FEDERAL MAGISTRATES COURT OF AUSTRALIAservices.thomson.com.au/cpdnews/docs/Workforce/Grrifith... · 2008. 7. 30. · Griffith University v Leiminer [2008] FMCA 1045 Cover sheet and

Griffith University v Leiminer [2008] FMCA 1045 Cover sheet and Orders: Page 1

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRIFFITH UNIVERSITY V LEIMINER [2008] FMCA 1045

INDUSTRIAL LAW – breach of Collective Agreement – breaches admitted – imposition of penalty Building & Construction Industry Improvement Act 2005 Crimes Act 1914

Workplace Relations Act 1996 Community & Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 Cotis v Pow Juice Pty Ltd [2007] FMCA 140 Flattery v Zeffirelli’s Pizza Restaurant [2007] FMCA 9

Furlong v Australian Workers Union and Ors [2007] FMCA 443 Kelly v Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Printing & Kindred Unions & Others v Visa Paper Products Pty Ltd (1994) 127 ALR 673 Trade Practices Act v Mobil Oil Australia Limited (1984) 4 FCR 296 Applicant: GRIFFITH UNIVERSITY

Respondent: MICHELLE LEIMINER

File Number: BRG 1078 of 2007

Judgment of: Burnett FM

Hearing date: 28 May 2008

Date of Last Submission: 28 May 2008

Delivered at: Brisbane

Delivered on: 28 July 2008


REPRESENTATION

Solicitors for the Applicant: Mr D. Williams

Solicitors for the Respondent: Mr D. Quinn


ORDERS

(1) That the Respondent having been found to have contravened s.719

Workplace Relations Act is ordered to pay the sum of $500 by way of

penalty.

Griffith University v Leiminer [2008] FMCA 1045 Reasons for Judgment: Page 1

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

BRISBANE

BRG 1078 of 2007

GRIFFITH UNIVERSITY Applicant

And

MICHELLE LEIMINER

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 13 December 2007 the applicant, Griffith

University (the University), applies for the imposition of a penalty

under section 719 (1) of the Workplace Relations Act 1976 (WR Act)

for breach of a collective agreement. The respondent admits the

contravention and breach. The matter proceeded to hearing for the

purposes of determining an appropriate penalty.

Background

2. On 5 February 2007 the respondent commenced employment at the

University on a full time basis in the position of Lecturer, Level B in

the School of Education and Professional Studies at its Logan Campus.

3. Prior to her employment the respondent was offered the choice of

entering into an Australian Workplace Agreement or a Collective

Agreement applying to all the University staff. In her statement of


acceptance in response to the offer of appointment dated 15 January

2007 the respondent accepted her appointment under the Griffith

University Academic Staff Union Collective Agreement (the Collective

Agreement) by checking the box affording her that election.

4. In accepting the appointment under the Collective Agreement she

acknowledged she had read and understood and that she agreed to

abide the conditions set out in the offer of appointment which included

employment conditions governed in part by the Collective Agreement.

5. From the moment of her employment the respondent was an employee

bound by the Collective Agreement.

6. The Collective Agreement relevantly provided:

“Part 6 – Cessation of Employment

37 Termination of Employment

37.1 Notice of Termination is termination at the initiative of the

University and shall only occur as provided for in this Agreement.

37.2 Notice of Termination by the University

37.2.1 The notice period for termination of employment for

a continuing academic staff member, except in the case of

serious misconduct, is 6 months.

38 Resignation

The notice of resignation to be given by a staff member is the

same as the notice of termination required of the University.

At the discretion of the relevant Pro-Vice Chancellor or Deputy

Vice Chancellor, a shorter period of notice may be grated on

request of the staff member.

Where a staff member fails to give the required notice, the

University has the right to withhold monies due to the staff

member, to a maximum amount equal to the ordinary rate of pay

for the period of notice.”

7. The respondent was required by the Collective Agreement to provide

six months notice of her resignation unless a shorter period of notice

was requested and granted at the discretion of the Pro-Vice Chancellor

or the Deputy Vice Chancellor.


8. On or about 30 May 2007 by a letter of that date the respondent

received an offer of employment from Southern Cross University

(SCU) to take up employment as a lecturer in early childhood

education in the School of Education at the Coffs Harbour Campus of

that university commencing on Monday 16 July 2007.

9. At approximately 2.33pm on 30 May 2007 the respondent forwarded

an email to Professor Wyatt-Smith, Dean of the Faculty of Education;

Professor Howard Middleton, Head of School; and , Dr. Lindsay Parry,

Deputy Head of School advising that she had been offered a position

with SCU to commence on 23 July 2007. In her email the respondent

requested that Professor Wyatt-Smith meet with her to discuss the

offer.

10. Later that day Dr Parry emailed a reply and arrangements were made to

meet at about 3.00pm at Café M28 at the University Mt Gravatt

campus. During the course of their discussion she informed him of the

proposed commencement at SCU at the beginning of Semester 2. She

also mentioned she believed it was possible to put in place good

transitional arrangements at the University for Semester 2.

11. Significantly Dr Parry informed the respondent of the six month notice

period. The respondent says this was the first time she became aware

of that requirement.

12. Following that meeting the respondent drafted her letter of resignation

and hand delivered it to Professor Wyatt-Smith’s personal assistant

later on the afternoon of 30 May.

13. In the meantime the respondent proceeded to draft a transitional plan in

anticipation of her resignation taking effect on or before 16 July.

14. On 31 May a meeting was convened between the respondent and

Professor Wyatt-Smith, Dr Middleton and Ms Gelena Dekkar from the

University’s Human Resources Section. At that meeting Professor

Wyatt-Smith confirmed that the University required the respondent to

provide six months notice consistent with the Collective Agreement.

The respondent was told her resignation would not be accepted (at that

time Professor Wyatt-Smith had not received the letter of resignation).


15. At that meeting Professor Wyatt-Smith informed the respondent that

the University could not accept her resignation to take effect on the

date before the end of the teaching year because the respondent had an

existing commitment to teaching and course convenorship for the

second semester which commitments had already been programmed

into the academic timetable. The parties discussed means by which the

six month notice period could be ameliorated. This included a

suggestion that the respondent discuss the commencement date of her

employment with personnel at the SCU to see if a new commencement

date could be arranged. The respondent was not amenable to this

suggestion. In turn she suggested that she could continue to perform

her convenorship and teaching responsibilities remotely from off

campus after she resigned. This suggestion was dismissed by Professor

Wyatt-Smith as unworkable. As a compromise position it was

proposed that the respondent might consider an earlier departure date

that would enable her to move to SCU before the end of the six month

notice period but allowing her to finish working on the Griffith

University campus by about the end of October 2007. Ultimately no

compromise was achieved.

16. Following the discussions between the respondent and Professor

Wyatt-Smith and Associate Professor Middleton there was discussion

between Professor Wyatt-Smith and her immediate superior, Professor

McMeniman the relevant Pro-Vice Chancellor.

17. The discussion between Professor Wyatt-Smith and Profession

McMeniman was had by telephone as at the time of that discussion

Professor McMeniman was travelling overseas in Italy. Professor

Wyatt-Smith briefed Professor McMeniman with the background facts

and in particular informed her of that aside from the respondent’s

teaching commitments and class allocations for the second semester,

the respondent had entered into an arrangement with the University in

respect of her teaching load for the first semester. That arrangement

permitted the respondent to complete her PhD in the first semester in

return for which the respondent was to take up a shortfall in the

teaching load in the second semester. On the basis of those matters

Professor McMeniman informed Professor Wyatt-Smith that the

University could not accept the respondent’s resignation to take effect

on a date before the end of the teaching and second semester.


18. These events caused the respondent some confusion. At paragraphs 34

to 37 of her affidavit she explained her position as follows:

“34. She said that I could take the resignation letter back now.

That way if SCU did not agree to waiting 6 months for me to take

up the position I would not be without a job. She said words to

the effect of she did not want to see me without a job.

35. I was confused about her intention but took this to mean I

could be in the situation of having given 6 months notice to GU

but then SCU not employment me because a start date of 30

November would be too late for their requirements.

36. I thought this meant that I had no practical option but to

accept the SCU proposal to commence when SCU wanted me to

at the beginning of Semester 2. Otherwise I thought I might

submit my resignation and then find that SCU would not accept a

proposal to start in November and I would be left with no job to

go to.

37. I was very worried by this statement by Claire and what it

might mean. I was the main ‘breadwinner’ for our family and I

could not afford to be unemployed.”

19. Although there is some difference between the witnesses concerning

discussions alleged to have occurred on that date about whether or not

the respondent was advised of the process for requesting a shorter

notice period, nothing turns on that matter. Clearly, irrespective of

whether such discussion occurred, the University did not intend to

relax the notice period for the respondent and the respondent was

aware that the notice period was six months

20. Likewise the witnesses do not agree on the context of discussion about

the respondent conducting further negotiations with SCU or proposals

to deal with transitional issues to accommodate some later resignation

date. It is common that nothing was agreed between the respondent

and the University and that the offer by SCU required the respondent to

commence on 16 July 2007.

21. On 1 June 2007 the respondent received an email from Dr Parry in

response to her transitional plan. He confirmed six months notice was

required. However he did add that the notice period could be

negotiated.


22. On the same day Professor Wyatt-Smith informed the respondent by

email that the University could not accept her resignation to take effect

before 30 November 2007 and that she was required to provide six

months notice pursuant to the terms of the Collective Agreement. She

requested that the respondent liaise with SCU and revert to her with a

new date being no earlier than 30 November.

23. The University’s position would have been unambiguously clear to the

respondent following that email of 1 June.

24. Over the following couple of weeks the respondent was on leave.

During this period she was in contact with personnel at SCU.

Additionally she was aware that at this time there had been some

discussion between SCU and the University. Her initial impression

was that although nothing had come of any of the discussions they had

been positive.

25. However by the time of her return to work it was, or ought to have

been, plain to her that the University required her to work out her

standard notice period. In her affidavit the Respondent noted that on

12 June she had a conversation with Professor Jenny Graham,

Executive Dean, Faculty of Arts and Health Sciences SCU. Of that

conversation she noted:

“I recall Jenny said that SCU could not become involved or help

[her] legally. [She] would need to make a decision and that [she]

would be on [her] own.”

26. On 15 June SCU contacted the respondent and offered her a Level B

(Step 6) position. This was an improvement on the initial offer. In her

oral testimony the respondent acknowledged that the offer made her

feel better about her decision to take up the position. Although it may

have ameliorated any lingering doubts that the respondent had about

her proposed course of action I do not think it was instrumental in her

decision to resign from the University. That decision had been made

on 30 May. Later that day she again emailed her employers at the

University and confirmed her last day at the University would be 19

July. By inference it was clear she intended to proceed with her

resignation and would not serve out her six months notice period.


27. There were no further formal communications between the parties until

15 June 2007 when the respondent emailed Professor Wyatt-Smith and

Associate Professor Middleton to inform them that SCU had just

offered her an appointment at level B Step 6 and that she had received

advice from the NTEU (being her relevant industrial association). In

her email she stated that she had “decided to take up the position at

SCU. My final day at Griffith University will be July 19.”

28. The University did not accept her notice. By letter of 22 June the

Human Resources Director, Miss Walker wrote that “the University

would take every available avenue to enforce the requirements of the

notice period”. That was subsequently confirmed by correspondence

dated 12 July 2007 directed to the respondent by the University’s

solicitor.

29. By letter dated 12 July 2007 the University caused its solicitors to write

to the Respondent. They noted that the University would have the right

to withhold monies due to a maximum amount equal to the ordinary

rate of pay for the period of notice that the respondent failed to provide

and also that the failure would render the respondent liable to penalties

under the provisions of the WR Act for breach of the termination

provisions in the Collective Agreement.

30. Notwithstanding those matters the respondent proceeded to cease her

employment with the Griffith University and take up her position at the

SCU.

31. At the hearing the following matters were in issue:

a) Whether it was or would have been reasonable for the University

to waive or modify the operation of clause 38 of the Collective

Agreement in the particular circumstances;

b) Whether the respondent made any real or reasonable attempts to

mitigate the effects of providing a lessor notice period;

c) Whether the failure to give six months notice resulted in financial

cost to the University and if so, what quantum;


d) Whether the failure to give six months notice resulted in a change

or increase to the workload for other staff and in particular Ms

Deborah Rossow and disruption to students;

e) Whether the University was or is required to fill the respondent’s

position; and

f) Whether the University is likely to incur costs in the amount of

$1,251.46 as a result of the failure to give six months notice.

Breaches

32. The University, as the Respondent’s employer is entitled to bring the

application: s.718 WR Act.

33. Insofar as breaches of the WR Act are concerned s.719 relevantly

provides:

“Section 719(1) An eligible court may impose a penalty in

accordance with this Division on a person if:

(a) the person is bound by an applicable provision; and

(b) the person breaches the provision.”

34. Subsections (2) and (3) are of no present relevance. Insofar as

penalties are applicable to an individual, section 719(4) of the Act

provides for the imposition of 60 penalty units ($6,600); see section

719(4) of the WR Act; section 4AB of the Crimes Act 1914.

35. In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray

FM identified “a non-exhaustive range of considerations to which

regard may be had in determining whether particular conduct calls for

the imposition of a penalty, and if it does the amount of the penalty”.

Those considerations would arrive from a number of decisions of the

Federal Court and the approach of His Honour in Mason v Harrington

Corporation Pty Ltd has been subsequently approved by that Court;

see Kelly v Fitzpatrick [2007] FCA 1080 per Tracey J. The

considerations identified were:

a) The nature and extent of the conduct which led to the breaches;


b) The circumstances of which that conduct took place;

c) The nature and extent of any loss and damage sustained as a

result of the breaches;

d) Whether there had been any similar previous conduct by the

respondent;

e) Whether the breaches were properly distinct or arose out of one

course of conduct;

f) The size of the business enterprise involved;

g) Whether or not the breaches were deliberate;

h) Whether senior management was involved in the breaches;

i) Whether the party committing the breach had exhibited

contrition;

j) Whether the party committing the breach had taken corrective

action;

k) Whether the party committing the breach cooperated with the

enforcement authorities;

l) The need to ensure compliance with minimum standards by

provision of an effective means of investigation and enforcement

of employee entitlements; and

m) The need for specific and general deterrence.

36. Both the University and the respondent accepted that these

considerations should guide the exercise of my discretion in the present

proceeding.

The nature and extent of the conduct

37. The nature of the breach was a failure to provide six months notice as

required under the Collective Agreement governing the respondent’s

employment. Notice provided was only 7 weeks and 1 day which fell

well short of the six months notice required.


38. The Collective Agreement constituted a part of the governing terms

and conditions of her employment with the University. By inference it

established terms and conditions which were acceptable to other

employees of similar stature to that of the respondent. It was

contended on behalf of the University that those terms and conditions

represented an industry standard. If that was the case generally, it was

certainly not the case in respect of the SCU which appeared to afford

much shorter notice periods. While there is compelling logic to the

arguments maintained by the University concerning a six month notice

period it is also equally plain that the notice period is not one of

universal application. I do not think it is necessary to make any finding

as to whether or there was indeed an industry standard, as such. The

fact remains that the conduct of the respondent was in breach of the

Collective Agreement.

39. Likewise an issue between the parties concerned whether it would have

been reasonable to waive or modify the operation of clause 38 of the

Collective Agreement. The dispute arises from the University’s right to

enforce its bargain. The parties were content with the terms of the

agreement at the outset so no issue of reasonableness arises.

40. The University had no obligation to waive clause 38. However

notwithstanding the legal position between the parties it is appropriate

to weigh up the circumstances when considering the penalty to be

imposed in circumstances where the University sought to hold the

respondent to her bargain.

Circumstances in which the conduct took place

41. The respondent did have the opportunity to elect either an individual

Workplace Agreement or the Collective Agreement. Her employment

with the University was her first significant employment as a senior

academic. She had only recently completed her Doctorate and was in

the process of transition from junior academic positions to more senior

academic positions. Clearly she did not apply a great degree of

attention or thought to the industrial regime governing her obligations.

I agree with the University’s submission that her failure in this regard

is not a mitigating factor and that once she became aware of that


obligation she wilfully determined to proceed to terminate her

employment in breach of her agreement to provide six months notice.

42. As at 15 July SCU were not insisting she be bound to any arrangement

concerning employment with it. So much was implicit in the words

attributed to Professor Graham and directed to the respondent

informing her that she would have to “make a decision”. It follows

that in making her decision she did so well appreciating the existence

of the terms of the Collective Agreement; knowing that the University

was not prepared to release her without having received six months

notice; and knowing there was no compulsion to proceed with the SCU

offer.

Nature and extent of any loss or damage

43. The University claims that as a result of the respondent’s breach it has

suffered both pecuniary and non-pecuniary damage. The pecuniary

damage is said to be made up of additional teaching costs. Those costs

include other staff being required to assume additional responsibility

and teaching loads which the University had not previously

contemplated. That loss was quantified at $4,384.80. In addition the

University was required to engage casual sessional staff to ensure that

the University was able to deliver the teaching requirements for the

subjects that the respondent would have lectured in the second

semester. The cost of appointing that additional sessional staff was

$18,341.28. In total it follows that the cost to the university of

replacement staff approximated at $22,726.09. Although not quantified

there would also have been administrative costs.

44. It was agreed by Ms Walker that an offsetting allowance should be

made for the wages and salary which would otherwise have been

payable to the respondent. When grossed up to include an allowance

for superannuation the respondent’s annual salary approximated

$76,000 per annum. Had she worked out her full six month notice

period she would have been entitled to approximately $38,000 in

wages over that period. It follows that the University did not incur any

actual financial loss when allowance is made for the offset in salary.


45. In addition it was contended that the University lost non-pecuniary

benefits. They included the advantage the University may have

obtained from academic contributions expected to be made by the

respondent to journal articles which would have developed the

University’s research profile in the area of early childhood education.

In their submissions the University quite properly conceded that these

matters were not capable of quantification.

46. In its submission the University contended that even if the monetary

losses to it were minimal the more serious consequence was damage to

reputation, disruption to other staff, additional administrative and

managerial burden and disadvantage to students caused by the

respondent’s failure to meet the obligations of her engagement. Those

matters are noted.

Similar previous misconduct

47. There is no evidence of the respondent having breached any other

obligations under the Collective Agreement or any other agreement at

any other time.

Deliberateness of breach

48. Unquestionably in this case the respondent acted deliberately in

breaching the Collective Agreement. Her conduct however was

informed by advice received from those assisting her, in particular her

representative industrial organisation. The advice was plainly

erroneous. In any event despite the deliberateness of the breach I do

not consider the respondent’s conduct to be malicious. Clearly she was

motivated by self interest. The opportunity at SCU was professionally

enticing. It afforded her, as a junior academic, a unique opportunity to

develop a program from the ground up. It was clearly a professionally

exciting opportunity.

49. Throughout the course of the negotiations between the respondent and

SCU she was cognisant of the need to ensure that the University was

not “left in the lurch”. Almost immediately after receiving the offer

and concluding she wished to accept it she set about seeking to put in

place transitional arrangements. These are mitigating factors.


The respondent’s contrition, collective action and cooperation with

enforcement authorities

50. The respondent sought to ameliorate the inconvenience that she knew

her resignation would cause. There were extensive negotiations

between she and superiors at the University concerning the prospects

of compromising on her resignation. However agreeable terms could

not be reached. Finally and in order to resolve the matter the

respondent formally offered $500 to settle the proceedings. In the

University’s submission it was submitted that that offer did not suggest

contrition but rather was indicative of “further opportunism”. I do not

accept that submission. Undoubtedly the respondent was motivated by

self interest but I do not consider her conduct to be entirely cynical as

the University’s submission suggests. In reaching that conclusion I had

the opportunity to view the respondent under cross examination. She

impressed me as being somewhat naïve, perhaps even a little innocent

about these matters, but not cynical or malicious. I had no reason to

disbelieve her evidence concerning her motivations in respect of these

matters.

Ensuring compliance

51. In its submissions the University referred to the observations of

Mowbray FM in Pangaea1 and in regard to the need to give

consideration to the principle objects set out in section 3 of the WR Act

which included ensuring compliance with minimum standards by

providing effective means for the investigation and enforcement of

employee entitlements.

52. Without diminishing the intent of the object or its application in this

case the object must be viewed in context. In the instant case the

breach is one which would be more appropriately sound in damages.

Ultimately a bargain was reached between the employer and the

employee. In this case the employee has breached the bargain but

beyond that it cannot be said that the breach has had broader

ramifications. The concept of penalties applying to breaches of

1 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7


industrial instruments is more properly directed to those breaches that

have a broader economic impact.

53. Accordingly it is no surprise to me that neither party was able to

appoint to any reported instance of a case involving the imposition of a

penalty in respect of a breach of a contract of employment between an

employer and an employee arising from an employee’s breach of the

termination clause. In my view the cases provided by both the

applicant and the respondent did not draw any useful parallels. Cases

involving a breach by an employer, particularly breaches concerning

underpayment of awards; see Kelly v Fitzpatrick; Mason v Harrington

Corporation Pty Ltd; Flattery v Zeffirelli’s Pizza Restaurant2; Cotis v

Pow Juice Pty Ltd3; are not apposite. Invariably cases involving the

underpayment of wages reflect upon the inequity of bargaining power

between those who hold financial power, namely employers and those

who do not, employees. In this case no question of abuse of financial

power could arise in the circumstance of recision by the respondent

employee of her agreement with the University as employer.

54. Likewise other cases referred to concerned instances of abuse of or

attempts to abuse, economic power in an industrial context: see for

instance the Community & Public Sector Union v Telstra Corporation

Limited4, a case involving an employer’s use of its power to

discriminate against employees governed by certain awards and

certified agreements; and Furlong v Australian Workers Union and

Ors5, a case involving the imposition of penalty for misuse of the strike

power by an employee organisation.

55. In its submissions the University submits that the only remedy

available in this instance is the imposition of a monetary penalty under

section 719. It submits that the Court should regard the respondent’s

breach of the Collective Agreement seriously. I accept that submission.

However in recognising that matter the relativity of the position of the

respondent in this case compared with the comparatives offered by the

University should not be overlooked. See Printing & Kindred Unions

& Others v Visa Paper Products Pty Ltd (1994) 127 ALR 673 at 686.

2 [2007] FMCA 9 3 [2007] FMCA 140 4 [2001] FCA 1364 5 [2007] FMCA 443


56. The University urges the Court to have regard to breaches of certified

agreements under the Building & Construction Industry Improvement

Act 2005 and in particular refers to the authorities of Cruse v CMFEU

& Anor6 supra and Furlong & Australian Workers Union & Others

supra. I have earlier touched upon the decision in Furlong. Likewise

the decision in Cruse involves penalties arising from the engagement in

unlawful industrial action. I do not think the penalties issued in

decisions arising out of unlawful industrial action provide any useful

guidance for the circumstances of this case.

Deterrence

57. It was submitted by the University that the Court should be guided by

the observations of Finkelstein J in CPSU v Telstra Corporation

Limited where His Honour observed at 230-312 that:

“In another context I observed that the object of imposing

pecuniary penalties may be either to punish, to deter, to

rehabilitate or some combination of the three: Australian

Competition and Consumer Commission v ABB Transmission and

distribution Limited [2001] FCA 383. In that case I also referred

to the problems associated with determining the appropriate basis

for imposing penalties on a corporation. Laws are made for the

protection of society. In this case of an offending corporation in

breach of legislation such as the Workplace Relations Act, the

notion of retribution or punishment does not seem to have a

significant role. First, a contravention of this type of legislation

does not excite notions of moral responsibility when compared

with contraventions of the criminal law where the community has

a just expectation that an offender should receive some measure

of punishment or that there will be no loss of respect for the law.

Put differently, there will not be any real sense of grievance in the

community at large if a corporation has not been dealt with in the

same way as an offender who attacks individual liberties or

freedoms.

On the other hand, the basic objective of punishment should be to

enhance social welfare by minimising the net social cost of

wrongdoing. This is achieved by deterrence. Here I speak not

only of specific deterrence but also general deterrence. In a case

such as the present, that may be of some importance. The reason

is that Telstra submits that there is no need to impose any penalty

6 [2007] FMCA 1873


because it will not offend again. That may be true. But even if

there be no need for specific deterrence, there will be occasions

when general deterrence must take priority, and in that case a

penalty should be imposed to mark the law’s disapproval of the

conduct in question, and to act as a warning to others not to

engage in similar conduct: R v Thompson (1975) 11 SASR 217. It

is also important to remember that proscribed conduct is often

engaged in because it is profitable, or will enhance the

profitability of the company. To deter conduct engaged in with

that purpose, any penalty imposed must have the potential to

render the conduct unprofitable. The achievement of that object

is subject to the limitations placed upon the court’s power by the

legislation in question. …”

58. I agree with His Honour’s observations that even if there be no need

for specific deterrence (as would be the case here) there will be

occasions when general deterrence must take priority and in that case a

penalty should be imposed to mark the law’s disapproval of the

conduct in question and to act as a warning to others not to engage in

similar conduct. I note however that His Honour’s remarks in that

regard were prefaced in permissive rather than mandatory language.

Ultimately it will always be a matter for discretion.

59. In summary the authorities referred to by the University support the

imposition of a penalty in particular “such as to deter not only the

particular offender, but others who may be disposed to engage in

prohibitive conduct of a similar kind”; Trade Practices Act v Mobil Oil

Australia Limited (1984) 4 FCR 296 at 298 per Toohey J. However all

the authorities referred to involve circumstances where the

contraventions involved circumstances where the nature of the breach

extended beyond the relationship between the complainant and

respondent. Directly or indirectly those cases involved an element of

morality extending the behaviour beyond the parties immediate to the

transaction.

60. In this case the less powerful of the two parties to the transaction has

breached the agreement. No moral imperative arises beyond the

commercial morality associated with fulfilment of one’s bargains.

61. This proceeding for breach could have remained a matter to be

privately resolved between the parties but for the University’s

determination to prosecute. An outcome for that breach could have


been simply achieved by the parties agreeing terms in respect of the

breach. The University is entitled to prosecute the respondent’s breach.

However in the circumstances I do not accept this breach warrants a

significant penalty. The evidence demonstrates that in strict financial

terms the University has indeed saved by reason of the respondent’s

early termination. Arguably the difference between the respondent’s

projected income and the expenses incurred by the University might

broadly equate with the economic value of the respondent’s academic

output. However I appreciate such a simplistic analysis is nefarious.

In addition the University has retained approximately $1,800 in holiday

and other accrued benefits which were forfeited to the University

following the respondent’s breach.

62. The respondent has profited from her breach of the Collective

Agreement. She has moved to more remunerative and professionally

rewarding employment. Although I do not accept there was any

immediate commercial motivation on her part she has clearly profited

both directly and indirectly from her contravention. In broad terms the

respondent’s profit on the contravention was roughly $1871. 7 When

allowance is made for her loss of leave entitlements forfeited to the

University ($1800) her net gain is approximately $71. In my view the

penalty in this case should reflect the profit gained by her breach

together with a sum to reflect a sanction for her wilful breach of

contract.

63. I consider an appropriate penalty in this instance to be $500 (rounding

up). Given the breach is one more in the nature of breach of a private

bargain I do not consider any significant loading should be provided

for the matter of determination in this instance.

7 Salary SCU (including superannuation) $84,840.21 p.a. of $7070 per month; Salary GU (including superannuation) $76,333.41 or $6361 per month giving a difference of $709 gross per month or approximately $420 net. Projected over 4 ½ months approximated at $1,800.


Conclusion

64. The respondent admits to having breached a workplace agreement by

having resigned from her employment without giving agreed notice. I

award a penalty against the respondent for the contravention in the sum

of $500.00.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Burnett FM Associate: Beverley Schmidt Date: 28 July 2008

Documents

FEDERAL MAGISTRATES COURT OF AUSTRALIAservices.thomson.com.au/cpdnews/docs/Workforce/Grrifith... · 2008. 7. 30. · Griffith University v Leiminer [2008] FMCA 1045 Cover sheet and