FEDERAL COURT OF AUSTRALIA

Symons v White (Sydney Catholic Schools) [2018] FCA 949

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge be set aside.

3.    The respondent pay the appellant the sum of $62,262, together with interest on and from 13 December 2013, or such other date as may be fixed by the Court or agreed between the parties.

4.    In relation to any possible costs order:

(a)    the appellant have leave to make any application for costs within 14 days by filing and serving written submissions of no longer than 3 pages, together with any supporting affidavit evidence that may be required;

(b)    the appellant notify the associate to Justice Bromwich within 14 days if no costs application is to be made;

(c)    if a costs application is made by the appellant, the respondent file and serve any written submissions upon which he wishes to rely of no longer than 3 pages, together with any supporting affidavit evidence that may be required, within 14 days of service of submissions and any evidence for the appellant; and

(d)    any costs determination be on the papers, unless either party seeks an oral hearing and such a hearing is granted by the Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia dismissing a claim in contract. Other aspects of the claim also failed, but do not need to be considered further as they are not pursued on appeal. There is no dispute that the associated jurisdiction of the Federal Circuit Court was engaged on the contract issue and that this is a competent appeal.

2    The law in relation to contract formation is well established and requires only the briefest re-statement to ensure that the fundamental judicial function of identifying and applying the law to the facts at hand is observed. The question of whether an enforceable contract has been entered into depends upon an assessment of the intention of identified parties, viewed objectively, to voluntarily assume legally enforceable duties for real consideration: Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8; 209 CLR 95 at [24]-[25]; see also Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120; 163 FCR 62 at [23], [118]-[119]; Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; 231 FCR 403 at [34]-[48]. The only live issue in this case is the existence of the relevant “intention”. There is no issue concerning enforceable duties or real consideration if such an intention is established. That intention is to be ascertained by considering what would be objectively conveyed by what was said and done by the parties, having regard to all the relevant circumstances. Ermogenous at [25] makes it clear that this has nothing to do with uncommunicated subjective motives or intentions.

Overview

3    The appellant, Mr Alistair Symons, worked in a senior position at a Catholic High School in Sydney at the time of the events to which this proceeding relates. During the course of 2013, it was made tolerably clear to him that his future employment prospects at the School were quite bleak. The School had, by then, become part of the system of Catholic Schools in the Roman Catholic Archdiocese for Sydney, trading as Sydney Catholic Schools. That body had therefore become Mr Symons’ employer. Sydney Catholic Schools had determined that the School was overstaffed. Active steps were being taken to reduce numbers, especially at Mr Symons’ level.

4    The Executive Director of Sydney Catholic Schools, Dr Daniel J White, was, in that capacity, the respondent to proceedings brought by Mr Symons in the Federal Circuit Court and is the respondent to this appeal. The evidence made reference to the Sydney Catholic Education Office (Sydney CEO), which it seems was responsible for the administration of Sydney Catholic Schools.

5    In the first half of 2013, Mr Symons commenced looking for other employment, with one job at the University of Notre Dame looking particularly promising.

6    On 14 October 2013, a meeting took place in relation to Mr Symons’ employment at the School. In attendance were Mr Symons, the principal of the School, Ms Janine Kenney, and a consultant, Mr Mervyn McCormack. Mr McCormack had been employed to help Sydney Catholic Schools reduce staff numbers. During the meeting, Mr McCormack told Mr Symons about a Career Change Package whereby he could receive an eligible termination payment of half of his annual salary in return for resigning, along with accrued entitlements. Ms Kenney and Mr McCormack knew that Mr Symons was seeking other work. Ms Kenney had, on 5 September 2013, participated in a referee check by the University in that regard.

7    At the meeting on 14 October 2013, Mr Symons was told that Mr McCormack would send him an email about the Package. He was also told that the Package was “designed to assist people transitioning in employment outside of the catholic education system and to tide them over in the event that they do not find immediate employment”. There was no evidence of anything else being said at the meeting about any other condition attaching to the Package. A specific condition was set out in the email that was subsequently sent to Mr Symons.

8    On 18 October 2013, Mr Symons received an email from Mr McCormack about the Package. On 20 October 2013, Mr Symons emailed back to say that he would seek advice on the Package and would respond by the end of the week. On 25 October 2013, Mr Symons was told by the University that he was one of two applicants for the job who was being recommended for appointment. Later the same day, he indicated by return email to Mr McCormack that he would accept the Package. Several days later, he received a letter dated 28 October 2013 from the University offering him the job.

9    In 2013, the Sydney CEO had a Career Change Policy that addressed the circumstances and means by which a Package would be offered. It provided that the Package would not be made available to teachers “who will remain in the teaching profession, albeit in a different sector or with a different employer”. There was no evidence before the Court below that Mr Symons had been told about the Policy, let alone its terms, at any time before about 26 November 2013 and certainly no evidence that this had happened prior to him formally resigning by a letter dated 8 November 2013. The only evidence that he had been told about the Policy was in his own affidavit evidence as to first becoming aware of the Policy in 2014 by reason of being told about it by a union official, and because it was referred to in a letter sent by that official on his behalf, dated 26 November 2013, which suggested that he might have known about the Policy by that time. That evidence is considered below.

10    After Mr Symons had resigned, but before he had concluded his employment with the School, it was decided by Sydney Catholic Schools that he would not be paid the benefits of the Package insofar as it provided an eligible termination payment. It seems that this was due to Mr Symons accepting employment with the University sometime after 28 October 2013. This was after the date of contract formation relied upon by Mr Symons, being 25 October 2013.

11    Prior to Mr Symons concluding his employment with the School, the Independent Education Union wrote to the Sydney CEO on his behalf, by letter dated 26 November 2013, expressing the Union’s understanding that the Package had already been agreed upon and urging that he be paid in accordance with the Policy. The eligible termination payment was not made.

12    Mr Symons sued Dr White in the Federal Circuit Court, alleging, inter alia, that he had a contractual entitlement to the eligible termination payment. The primary judge found:

(1)    that there was no concluded contract;

(2)    that even if there had been such a contract, the Policy was a condition of that contract that denied a right to be paid the eligible termination payment if alternative employment was obtained in the teaching profession; and

(3)    that the job with the University was in the teaching profession.

On appeal, each those three conclusions are challenged by Mr Symons.

Nature and scope of appeals and the need for error to be demonstrated

13    The applicable principles in this appeal, which is an appeal by way of rehearing but with no element of discretion as to the decisions ultimately required to be made, were stated in Fox v Percy [2003] HCA 22; 214 CLR 118 as follows at [25] (omitting footnote references):

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:

“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”.

14    Regard should also be had to what was said in Fox v Percy at [26] to [29] as to the stress that may arise between appellate obligations and duties and appellate restraint, especially when credit issues are said to be involved and the issue arises as to advantages enjoyed by a trial judge. In Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93 per Allsop CJ at [2]-[10] and Perram J at [45]-[54], especially at [49], the Full Court succinctly explained the approach that should be taken to the finding of error by an appeal court in a situation such as this; see also Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2018] FCAFC 78 at [487]-[491].

The requirement for reasons

15    The High Court in DL v The Queen [2018] HCA 26 at [32] restated the principles in relation to what is required to constitute adequate reasons in any proceeding, civil or criminal, in which a judicial officer is the tribunal of fact and law (footnotes omitted):

The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

16    Since reserving judgment in this case last week, the Full Court, in considering and allowing another appeal from the same primary judge as in this case but in a judicial review context, emphasised the importance for proper reasons, and not just conclusions, to be provided: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [25]-[26].

17    Many simple or straightforward cases, or cases obviously devoid of any merit, may well lend themselves to an ex tempore or oral judgment. When used appropriately, as it is by many judges of this Court and of the Federal Circuit Court, that is likely to significantly lessen the burden on a primary judge in performing his or her judicial function, and undoubtedly helps to contain a burgeoning judicial workload and avoid unnecessary costs being incurred. However, the use of ex tempore judgments does not absolve a judge of the responsibility of giving proper reasons: BZD17 at [26].

18    When ex tempore judgments are used inadequately or inappropriately, the quality of justice delivered may fall below acceptable standards, perceived efficiency may be illusory, the burden of performing the primary judicial function properly may shift to an appeal court, costs may be greatly increased (especially due to an appeal) and the final resolution of a dispute may be delayed, rather than accelerated. In those circumstances, litigants suffer (especially successful litigants if the original decision does not survive an appeal and a costs order is made). In the event of remittal to another judge, which is often necessary, if not inevitable, when determinative or otherwise indispensable adverse credit findings are made that cannot be replicated on appeal, the additional burden then falls on the judicial colleagues of the primary judge.

Overview of the primary judge’s reasons

19    As is commonly the case when a dispute arises as to contract formation, the live issue concerns characterisation as to what, objectively, took place on the totality of the circumstances. The primary judge’s reasons offer no real assistance because his Honour did not acknowledge that this process of characterisation was required to be based on all the relevant circumstances, although numerous references were made to an objective assessment, albeit mostly, if not entirely, in the form of a conclusion rather than by a process of reasoning. His Honour did not refer to any version of the test described in Ermogenous and referred to above at [2], nor indeed to a single authority or statement of the legal principles to be applied.

20    The primary judge, by a sparse ex tempore judgment relative to the issues in this case, manifestly failed to give adequate reasons, and in places reached conclusions that were plainly wrong, as discussed in some detail below. The approach taken by his Honour has required a detailed and searching review of what took place before his Honour and the evidence that was before the Federal Circuit Court. As will be seen, the review revealed that his Honour relied upon evidence that did not, in fact, exist, failed to have regard to important evidence that did exist, drew inferences that were not available to be drawn and made adverse findings of credit, apparently based in part on a form of cross-examination of Mr Symons by his Honour, that were either baseless or manifestly unfair and unreasonable. For that and other reasons associated with the merits of Mr Symons’ contractual claim, the appeal must be upheld, and the contractual relief sought in the Court below must be granted.

Before the primary judge

21    The case pleaded in the statement of claim was as follows (emphasis in original):

Careers Change Package

9.    On 14 October 2013, Mervyn McCormack, a Regional Consultant employed by the Respondent, and Janine Kenney, the School Principal, put forward an offer to the Applicant of a careers change package comprising of 26 weeks’ salary in addition to other entitlements (“the Careers Change Package”) if the Applicant terminated his employment.

Particulars Meeting between the applicant, Mr McCormack and Janine Kenney, the School Principal on 14 October 2013.

10.    During the course of the meeting with Mr McCormack and Ms Kenney on 14 October 2013, the Applicant requested that the offer be made in writing.

11.    On 18 October 2013, Mr McCormack sent correspondence to the Applicant on behalf of the Respondent outlining the payments which would be made if the Applicant accepted the offer of the Careers Change Package.

Particulars

Email correspondence from the Respondent to the Applicant dated 18 October 2013.

12.    On 25 October 2013, the Applicant accepted the offer of the Careers Change Package by email communication (“the Acceptance email”).

Particulars

Email correspondence from the Applicant to Mervyn McCormack, a Regional Consultant employed by the Respondent, dated 25 October 2013.

13.    On the same day, the Respondent responded to the Acceptance email and referred the matter to the Human Resources department.

Particulars

Email correspondence from Mervyn McCormack, a Regional Consultant employed by the Respondent, dated 25 October 2013.

14.     As a result of the offer by the Respondent and its acceptance by the Applicant, an enforceable contract was formed and the Applicant was entitled to receive the payments set out in the Career Change Package upon termination of his employment (“the Career Change Package Contract”).

22    The defence pleaded did not address the substance of the claim and may be treated as amounting to little more than a denial that the elements necessary for contract formation were present. It is therefore necessary to turn to the evidence in some detail.

23    The accounts of Mr Symons, Ms Kenney and Mr McCormack of what took place at the meeting on 14 October 2013, as relevant to subsequent contract formation, were not materially different. For completeness, each account is reproduced as deposed to in evidence, and in the case of Mr Symons and Mr McCormack, supplemented by parts of their evidence in cross-examination.

24    Mr Symons deposed to the following in his first affidavit:

9.    On 14 October 2013, I was called into a meeting with Mervyn McCormack who was a Regional Consultant for the Respondent and the School Principal, Janine Kenney.

10.    During the meeting, we had a discussion with words to the following effect:

McCormack said:    “We do not have a position for you next year. But we can offer you a Career Change Package.”

I said:                “What is a Career Change Package?”

McCormack said:    “For people in your position we offer a payment to help transition you to other employment.”

I said:                “Can I please have it in writing?”

McCormack said:    “I’ll send it to you by email.”

I said:                “What happens after that?”

McCormack said:    “If you accept the CCP, let me know via email. Then you need to write a letter of resignation to the Principal.”

25    Mr Symons was not directly challenged on any of the above evidence, such that it stands as evidence of what was communicated to him at the meeting, except to the limited extent that there was a difference on a presently peripheral matter as to the work available to him at the School. In particular, there was no challenge to Mr McCormack being asked by Mr Symons to provide the offer of the Package in writing, to Mr McCormack agreeing to do so by email, and to Mr Symons being asked by Mr McCormack to give any acceptance by reply email. As will be seen, nor did Mr McCormack dispute that this was part of the conversation, with him mostly only giving evidence of additional things that were said. That evidence informs the objective interpretation to be given to the emails that were subsequently sent both ways.

26    Mr McCormack agreed with [9] of Mr Symons’ affidavit reproduced above. As to [10], he deposed to the following:

17. In respect of paragraph 10 of Mr Symons’ affidavit:

(a)     A meeting between Mr Symons, Janine Kenney (School Principal of MSJM) and Myself occurred at MSJM.

(b)    I did not say to Mr Symons that “we do not have a position for you next year”. I said to Mr Symons, words to the effect of:

“We do not have a position for you as a deputy principal next year, however, we can offer you ongoing employment in an administrator/coordinator role”;

and

“We know you were disappointed after you were told earlier in the year that you wouldn’t continue in the position of deputy principal next year and that you have been looking around for other employment.”

(c)    Mr Symons enquired of me, in words to the effect of:

“Are there any other options?”

And;

“Are there any jobs available in the system in other regions?”

(e)    I said to Mr Symons:

“We can make enquires about jobs in other regions.”;

And;

“Given that you might not get a job quickly we can offer you a CCP.”

(f)    It was at that point that Mr Symons asked me what a CCP was. I explained to Mr Symons the purpose of the CCP in words to the following effect:

“The CCP is designed to assist people transitioning in employment outside of the catholic education system and to tide them over in the event that they do not find immediate employment.”

27    Mr Symons took issue only with (b) above from Mr McCormack’s affidavit, and stood by his account. Nothing turns on the difference as to what was said at the meeting on that particular topic.

28    In cross-examination, Mr McCormack gave the following evidence:

Now, when you indicated that you could offer Mr Symons a career change package, he asked what that was?---Yes.

…

You agree that Mr Symons asked you what a career change package was. Correct?---Yes. Correct.

And it was clear to you from him asking that question, that he didn’t know what a career change package was. Correct?—Correct. Correct.

And you described it as a payment to help employees transition to other employment?---Correct.

And, you indicated that a condition of the acceptance of a career change package was that the employee would not seek reappointment for five years within the Catholic Education Office, Sydney?---Correct.

And that was the only condition you explained to Mr McCormack at the meeting – Mr Symons, I should say, at the meeting?---I’m in no position to recall whether I added anything else at that – at that time.

29    Ms Kenney deposed to Mr McCormack and Mr Symons having used the term “Career Change Package” quite a lot during the conversation on 14 October 2013, but that she did not make any contribution in the meeting herself. She recalled Mr Symons asking Mr McCormack what the Career Change Package was and that he responded with words to the effect of, “It’s to assist people changing from their current position to new employment”.

30    There was no evidence of any mention being made at the 14 October 2013 meeting of the existence of the Policy. At most, one aspect of the Policy was arguably mentioned, although without using its actual terms, nor its specific source. It was, in Mr McCormack’s words, expressed by reference to the “design” of the Package, in the sense of the purpose or intention behind the Package, rather than to conditions. The contents of the Policy were not referred to except in this limited way. The key and most important part of the above evidence in relation to contract formation is that Mr Symons was told at the meeting, in response to his request to receive an offer in writing, that this would be done by email, and that if he accepted the offer, he should do so by email. This was, on any reasonable view, vitally important evidence to take into account in understanding what subsequently transpired. However, it received only a passing, incomplete and thereby inaccurate reference by the primary judge.

31    On 18 October 2013, Mr McCormack sent the following email to Mr Symons, with the following attachment:

(1)    The text of email was as follows:

Dear Alistair,

Pls find attached a calculation prepared by CEO Payroll if you accept a career change package. The gross figure is $115,328.33, subject to tax of $21,434, therefore a net payment of $93,894.33. Acceptance of such a package prevents employment by Sydney CEO for a period of five years.

Alternatively, a fulltime (non-promotion) teaching position at a CEO Inner West Region school may become a possibility, and I am awaiting feedback from that Region.

I will await your instructions.

Rgds,

Merv McCormack

(2)    The text of the attachment to the email was as follows (emphasis in original):

Alistair Symons [69189000]

Termination effective 28/1/2014 – Career Change, ETP [26 weeks]

Employment start date: 29/1/1996, FTE 1.0; FN salary $4789.38

 

Amount $	Description	Units
2873.63	Regular/Ordinary Pay
50,192.70	LSL	104.80 days
62262.00	ETP	26 weeks $62,262
115,328.33	GROSS
21434.00	Tax on ETP

Note: The gross figures above are QUOTE only and can be affected by:

•    Variable in YTD earnings may affect ETP payments

•    Rounding on LSL

If any ETP payments than tax is shown is shown only for this component.

To calculate ETP payment, requires YTD earnings:

Estimated YTD taxable earnings [includes leave paid out at termination] as at 28/1/2014:

 

EduPay YTD	14089.14
PHRIS Leave Loading	1676.28
PHRIS YTD [Pay 14 to 26], excludes pre tax	61052.94
PHRIS Pay 14FN01	2873.63
PHRIS LSL at term	50192.70
Total estimate	129,884.69

LSL estimated:

777.26 [Pay 13FN20] + 17.490336 [1320-1326] + 1.7490336 [1401] = 796.49936 [104.8 days]

32    On 20 October 2013, the following email exchange took place:

(1)    at 3.31 pm, Mr Symons emailed Mr McCormack as follows:

Dear Merv

Thank you for your email.

I’ll seek advice on the package and get back to you by the end of the week.

(2)    at 4.19 pm, Mr McCormack replied by email as follows:

That’d be great, Alistair

33    On 25 October 2013, the following email exchange took place:

(1)    at 1.27 pm, Mr Symons sent the following email to Mr McCormack:

Dear Merv

I’ve considered the offer and I’m prepared to accept it.

Regards

Alistair

(2)    at 4.14 pm, Mr McCormack responded:

Hello Alistair- will now ask HR for their advice to action this matter. Will be in touch asp.

Best wishes,

Merv

34    On 27 October at 2.19 pm, Mr Symons responded to the last email from Mr McCormack with the following:

Thank you.

35    Mr Symons was cross-examined to the effect that he had in some way kept the fact of seeking employment with the University a secret. That evidence in cross-examination, along with prior questioning in the form of cross-examination by the primary judge, was relied upon by his Honour to make adverse credit findings against Mr Symons. Those credit findings were objectively unreasonable and unfair. However, that cross-examination evidence does not need to be considered in any detail as it was largely, if not entirely, irrelevant, mostly because it fell within the category of uncommunicated subjective motives or intentions that cannot be taken into account, following Ermogenous at [25].

36    Although no basis was established for any obligation imposed upon Mr Symons to disclose the fact that he was seeking alternative employment, it is plain that the two persons most intimately involved in dealing with him on the question of the Package and his resignation, Mr McCormack and Ms Kenney, knew that he was seeking alternative employment and that this quest had reached an advanced stage by the time of the 14 October 2013 meeting. Indeed, on 5 September 2013, Ms Kenney was asked by the University to provide a referee check regarding a position that Mr Symons had applied for. She says that she also told Mr Symons about that telephone conversation a few days later, so that, on her account, he was aware that it was not a secret that he was seeking employment with the University. Perhaps against his interest, Mr Symons denied being told of the conversation by Ms Kenney. Mr McCormack was also aware that the referee check had been sought prior to the 14 October 2013 meeting and chose not to ask Mr Symons about it.

37    It must have been obvious to both Mr McCormack and Ms Kenney that some sort of selection process had already been undertaken by the University for a referee check to be made and that a decision could not have been too far away. The inescapable inference is that, unless the University had some very bizarre employment practices and procedures whereby staff were employed sight unseen, an interview must have taken place with Mr Symons to reach that point. Mr Symons was entitled to consider that the fact of an interview taking place was not something that had to be referred to in his affidavit. Indeed, such evidence was liable to be rejected as being irrelevant for reason of being unable, rationally, to affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, or at least unnecessary and therefore an undue waste of time: see ss 55(1) and 135(c) of the Evidence Act 1995 (Cth).

38    The primary judge took a very different and, objectively, erroneous view of the relevance, or at least the weight, to be given to the cross-examination of Mr Symons in respect of his not overtly and expressly disclosing the fact of being interviewed for the position at the University. Yet his Honour made only a passing reference at [10] to a highly relevant and important item of evidence, being the discussion at the 14 October 2013 meeting about how an offer of the Package would be communicated in writing and how that offer could be accepted. His Honour described that conversation as being merely a “discussion in relation to [Mr Symons] being sent a communication”, and either ignored or failed to appreciate the significance of what had been said. His Honour then said at [11] that, to the extent that there was any inconsistency between the evidence of Mr Symons and Mr McCormack, his Honour would prefer the latter, describing Mr Symons as not having impressed him as a witness of credit. However, the credit of Mr Symons had little or no role to play in relation to contract formation, or, if there was a contract, to the employment restriction aspect of the Policy being a condition, or, indeed, to how such a condition should be interpreted. The evidence on that topic was largely not in dispute and was objective in nature.

39    There was no material dispute about what was said at the 14 October 2013 meeting, and the emails were required to be read and understood in that context. Nothing else went to the question of contract formation, despite misconceived reliance by the primary judge and by Dr White on events well after the date on which it was asserted that a contract was either formed, or alternatively was not formed and therefore never came into existence, being 25 October 2013. Such evidence of subsequent events was of little or no relevance to the issues required to be addressed and resolved. In particular, there was nothing in the evidence to suggest that any separate document constituting the Package existed. On the evidence, the Package was the set of payments that would be made in return for resignation, relevantly including the eligible termination payment. Those payments were outlined in Mr McCormack’s 18 October 2013 email and its attached calculations, which are set out in full at [31] above.

40    Mr Symons was cross-examined about his awareness of the existence of the Policy. He adhered to his second affidavit in reply, in which he said that he was not aware of the existence of the Policy until it was brought to his attention by a Union organiser in 2014. He was cross-examined about a letter that was sent on his behalf by that Union organiser on 26 November 2013, which made explicit reference to the Policy.

41    Because the Union letter of 26 November 2013 referred to the Policy, and because Mr Symons had earlier in cross-examination agreed that he saw and approved of the contents of any letter sent on his behalf by the Union, it was put to him in cross-examination that it was false to say that he did not know about the Policy until 2014. He responded that he had had a conversation in 2014 with the person who wrote the letter, during which he remembered her mentioning the Policy. While there was no acceptance by Mr Symons that he did, in fact, know about the Policy before 2014, it was open to the primary judge to reject that evidence based on the Union letter. It would also have been open to the primary judge to infer, based on a combination of Mr Symons’ evidence about his involvement with correspondence sent by the Union and the fact that such correspondence on 26 November 2013 referred to the Policy, that Mr Symons knew of the Policy by late November 2013, although I note that I would not have drawn such an inference on such slender and equivocal evidence. Even taken at its highest, however, that evidence did not afford any basis for inferring any knowledge of the Policy prior to the drafting of the Union letter, and certainly not prior to him contacting the Union because of a refusal to abide by the terms of the Package, let alone of the contents of the Policy, especially when there was no suggestion by Ms Kenney or Mr McCormack that it had been referred to at all during the 14 October 2013 meeting.

42    The primary judge was undeterred by the lack of evidence on this topic. First, his Honour had earlier himself posed questions in the form of cross-examination to Mr Symons in a manner laced with incredulity. His Honour suggested that Mr Symons’ evidence of not knowing about the Policy (presumably as at 14 October 2013, although that is not clear) could not be correct. This was apparently a reference to the Union letter of 26 November 2013 in which the Policy is referred to. His Honour then made a leap of logic by suggesting, without any sound evidentiary foundation, that Mr Symons knew at the 14 October 2013 meeting that there was a document that contained conditions relating to the Package. No witness had suggested that there was a separate document constituting the Package beyond the email and its attachment sent on 18 October 2013, save perhaps, it might be inferred, for any formal documentation that might later have been drawn up by human resources staff working for the School or for the Sydney CEO to reflect the contents of the email with final calculations. No such documentation was in evidence, nor was shown to have ever come into existence. His Honour’s questioning of Mr Symons in the form of cross-examination ended by apparently suggesting that he should have drawn the conclusion that such a document existed. Mr Symons must have been mystified at this line of questioning, given its absence of any factual or evidentiary foundation. To his credit, however, he held his ground in saying, on an objectively reasonable basis, that he knew of no such document.

43    When it came to his Honour’s reasons on this topic, the following was said at [4] to [5]:

The applicant failed, in his affidavit, to make a candid identification of his communications with the Notre Dame University. The applicant’s explanation for that lack of candour was unconvincing. The applicant also gave evidence in relation to an assertion about the existence of the Career Change Policy, that he did not become aware of it until 2014. That was entirely inconsistent with a letter written on his behalf in November 2013.

I do not accept the applicant’s evidence that he was unaware of the Career Change Policy at the time of the email communications said to give rise to the alleged agreement, nor do I accept, the applicant’s evidence in the assertion that he was not able to continue in his current position if he so chose. At the relevant time of the communications, his position was Administrative Coordinator. I accept the evidence given by Mr McCormack that, prior to the meeting on the 14 October 2013, the applicant had been informed he could continue in that role.

44    The primary judge, after reproducing the text of the 18 October 2013 email from Mr McCormack, said the following at [7] to [8]:

That email, in its opening line, referred to an attached calculation prepared by the CEO payroll. It also referred to a Career Change Package. From the communications that had taken place between the parties prior to that date, it was apparent, I find, and know by the applicant, that there was a written Career Change Package document identifying conditions in respect of the Career Change Package.

The reference to the Career Change Package in the email, in these circumstances, I find was a reference to the Career Change Policy identified in the affidavit of Cara Seymour. That Career Change Policy, in the affidavit of Cara Seymour, relevantly included a provision 3.5:

The Career Change Package will not be available to teachers:

…

who will remain in the teaching profession, albeit in a different sector or with a different employer.

45    The above passages indicate that the primary judge maintained his Honour’s baseless assumption that the reference to the Package in the 18 October 2013 email was a reference to a separate document. Yet, for the reasons outlined above, there was no evidence of any such separate document existing at any time, let alone in the critical period between 18 and 25 October 2013. That error led his Honour to conclude, incorrectly, that such a document existed, that it apparently comprised or included the Policy, and that this was a document that was referred to in the 18 October 2013 email. None of Dr White’s witnesses gave evidence to the effect that it had been communicated to Mr Symons that the Package was the Policy, or that it included or incorporated the Policy. The evidence went no further than suggesting that the Policy was the source of the reference to employment in the teaching profession disentitling an employee being offered the Package, and that it was the undisclosed basis for the comment made by Mr McCormack about this design feature of the Package.

46    The primary judge, having found that the reference to the Package in the 18 October 2013 email was a reference to the Policy, without the support of a shred of evidence for that conclusion, then turned to the job that Mr Symons had obtained with the University and said at [9]:

The applicant had been in communications with Notre Dame University since May of 2013. The applicant had attended an interview in September 2013. The applicant took up a position, which he asserted was an administrative position in the university, and therefore not within the scope of the reference to “in the teaching profession”. It is patent that a university is an institution involved in the teaching profession. The position the applicant was taking up, in an administrative role, was still one in the teaching profession within clause 3.5 of the Career Change Policy that was incorporated in the email sent to the applicant.

It is not apparent how the primary judge was able to conclude that the third dot point in cl 3.5 of the Policy was incorporated in the 18 October 2013 email sent by Mr McCormack to Mr Symons. There was no evidence to support that conclusion.

47    The primary judge then turned back to the question of contract formation and said:

10.    In any event, the email dated 18 October 2013 was not one on an objective assessment that manifested an intention to create legal relations. The reference in the email to “I will await your instructions” is entirely consistent with the author understanding that this was an invitation to treat, and not an offer capable of giving rise to a binding enforceable contract. The reference, also, to the attached calculation in the opening of the email made clear its incorporation in relation to the Career Change Policy. That document referred to the gross figures being a “QUOTE only”, with quote in capitals and underlined.

11.    The email also referred to the tax calculations being estimates. The reference to “Quote only” is entirely inconsistent with the email and attachment constituting an offer capable of acceptance. The response sent to Mr McCormack, on 25 October 2013, relevantly, was as follows:

Dear Merv

I've considered the offer and I'm prepared to accept it.

Regards

Alistair

12.    I do not regard the response, on an objective assessment, as giving rise to a binding agreement between the applicant and the respondent. First because there was no offer capable objectively of giving rise to the creation of binding legal relations.

13.    Secondly, to the extent that the applicant indicated that he was prepared to accept the offer he referred to, on an objective assessment that response is consistent with the applicant understanding he was being invited to treat in respect of a Career Change Package, reflected in a document with conditions. The communication sent on 25 October 2013 in the circumstances of this case was not objectively assessed as acceptance binding capable of giving rise to legal relations. I do not regard the email exchange identified above as giving rise to any binding agreement on an objective assessment in the circumstance of the parties, which included the capacity of the applicant to remain in his current position of employment at that time and both parties knowledge of the policy.

48    A number of observations can be made about the above passages:

(1)    The reference at [10] to the final sentence in the 18 October 2013 email, viz, “I will await your instructions”, was neither consistent nor inconsistent with any objective assessment of whether that email did or did not manifest an intention to enter into contractual relations, or whether it was reflective of an intention to treat. Rather, it was intractably neutral.

(2)    The reference at [10] to the email stating that gross figures were a “QUOTE only” could be taken into account in the mix, but it is well established that in the context of the termination of employment relations in which accrued benefits may not be static due to variations in the calculation inputs, such non-final figures will not generally be of great weight, let alone determinative, on the question of contract formation: see Tooheys v Blinkhorn [2008] NSWSC 499. Yet that and the even more nebulous tax liability estimate were treated by the primary judge at [11] as being “entirely inconsistent” with the email and the attached calculations constituting an offer capable of acceptance. No such clear inconsistency is apparent.

(3)    The balance of [11], [12] and [13] contained a finding that the response email of 25 October 2013 could not give rise to a binding agreement. The first reason given for that conclusion was a circular reference back to the 18 October 2013 email not being an offer capable of acceptance. The second reason given was that the use of the words “prepared to accept” in the 25 October 2013 email was consistent with Mr Symons understanding (subjectively, it seems) that he was being invited to treat. The repeated use of the words “consistent” and “inconsistent” are words of conclusion, and do not constitute or expose proper reasons or reasoning at all. In the context of the 14 October 2013 conversation about the Package offer and acceptance of that offer by email, the words “prepared to offer” should not be read in that limited way. Objectively, that is not the way that Mr McCormack responded, given that he emailed back some three hours later to say, “Hello Alistair- will now ask HR for their advice to action this matter. Will be in touch asp.” It seems inherently unlikely that something that had not been agreed would be “actioned”, or, indeed, likely that human resources staff would have needed to become involved if matters had not been past the mere invitation to treat stage.

49    The remaining operative paragraphs, [14] to [17], do not warrant reproduction. They quote and refer to Mr Symons’ 8 November 2013 letter of resignation, which included a subjective statement that he had been offered and had accepted the Package, and that his resignation was contingent upon the successful resolution of the Package. The primary judge described the first aspect as being an endeavour to suggest that a binding agreement had already been entered into. The better and fairer way to view that part of the letter is that it reflected Mr Symons’ subjective understanding of what had taken place, which was irrelevant for the purposes of the necessary inquiry into intention at the time, objectively assessed. The second aspect was described by his Honour as somehow making clear that Mr Symons was “well alive to there being a controversy in respect of the [Package]” and that he was “well aware” of the Policy with a condition as specified. Neither of those findings were supported by evidence and again, in any event, is subjective, rather than objective, evidence.

50    The most telling part of the primary judge’s reasons was his Honour’s failure to have regard to the most important evidence that went to contract formation apart from the 18 and 25 October 2013 emails themselves, being the conversation of 14 October 2013 that led to those emails being sent in the first place.

51    The primary judge found that even if there was an agreement, it was one that incorporated the Policy, again a finding that was made without reference to evidence, most likely because there was no direct evidence to this effect, nor any evidence by which that could properly be inferred. The primary judge’s reasons at [9] provide an explanation as to why his Honour considered at [17] that such a condition applied, and that Mr Symons taking up employment with the University was contrary to that condition for reason of being a position in the teaching profession.

Grounds of appeal

52    The grounds in Mr Symons’ notice of appeal dated 30 November 2017 are as follows:

1.    The Court below erred in finding that no enforceable contract was formed between the appellant and the respondent as a result of the acceptance by the appellant of the respondent’s offer of payment of a Career Change Package by email of 25 October 2013.

2.    The Court below erred in finding that, if an agreement was reached between the appellant and the respondent, it was subject to the condition recorded in the respondent’s Career Change Policy that a Career Change Package will not be available to teachers “who will remain in the teaching profession, albeit in a different sector or with a different employer.”

3.    In the alternative to ground 2, if the agreement had been subject to a condition that a Career Change Package will not be available to teachers “who will remain in the teaching profession, albeit in a different sector or with a different employer”, the Court below erred in finding that the appellant acted contrary to such a condition.

Ground 1 – contract formation

53    Mr Symons submits that the question to be determined is whether a reasonable person in his position would have concluded that Dr White, through his agents, intended to be bound by the offer of the Package. He relies on clear and compelling authority that an enforceable contract can be, and often is, formed by reason of a severance package being offered if an employee agrees to voluntarily terminate a contract of employment, citing Tooheys v Blinkhorn at [67] and Director-General, Department of Health (NSW) v NSW Nurses’ Association [2011] NSWIRComm 111; 209 IR 49 at [7]-[17], [32] and [96]-[98]. Mr Symons submits that a reasonable person in his position would have assumed that Dr White intended to be bound by the email offer of the Package, for reasons that included:

(1)    the terms of the conversation on 14 October 2013 and the terms of the two emails that that conversation led to, namely the emails of 18 October 2013 and 25 October 2013;

(2)    the value of what was being offered and what was being asked to be given up; and

(3)    the context by which he had been informed that there was no assistant principal position at the School and that he could either pursue redeployment or accept the Package and terminate his employment.

54    Mr Symons submits that the reasons his Honour gave for a contrary finding that there was no objective intention to create legal relations were unconvincing because:

(1)    The last sentence of the email of 18 October 2013, “I will await your instructions”, did not support his Honour’s conclusion that the email was an invitation to treat and no more. Rather, it supported the conclusion that the email was no more than a request for a response.

(2)    The “QUOTE only” reference in the email of 18 October 2013 does not indicate that the offer was not intended to be legally binding. The calculation sheet was sufficiently certain for immediate acceptance, especially as it set out the precise basis for the only right that was not accrued, being 26 weeks’ pay for the eligible termination payment. The “QUOTE only” reference was confined to the possibility that year-to-date earnings may affect that payment and long service leave entitlements may be affected by rounding.

(3)    The terms of the 25 October 2013 response did not objectively suggest that Mr Symons regarded the email of 18 October 2013 as no more than an invitation to treat. The phrase “I’m prepared to accept it” was nothing more than a communication of a decision to accept the offer referred to in the same sentence.

55    Dr White submits in response that a reasonable person in the position of Mr Symons would have been possessed of the knowledge and conduct attributed to him by the primary judge in his Honour’s reasons. It is difficult to understand what that is a reference to, given that so much of that attribution was made without the benefit of evidence, as detailed above. Dr White further submits:

(1)    That a person in the position of Mr Symons would have had awareness of the Policy, presumably in the period between 14 and 25 October 2013. However, Dr White could not identify any credible basis for that awareness beyond the erroneous reasoning of the primary judge, which was itself unsupported by evidence.

(2)    That a person in the position of Mr Symons would have been consciously suppressing the timing and “concluded” nature of the employment with the University. However, Dr White failed to address the fact that, rather than the University position being concluded by the time he sent his 25 October 2013 email, Mr Symons’ evidence was that he was told by the University earlier that day that he was one of two people being recommended for the job. The other person had been acting in the position during 2013. Thus the nature of the employment with the University was only concluded when Mr Symons received the written offer from the University dated 28 October 2013, and accepted that offer.

(3)    That a person in the position of Mr Symons would have been informed that he could continue in his present position without loss of pay. However, Mr McCormack’s affidavit evidence as to the plan for the 14 October 2013 meeting was that Mr Symons would be asked at that meeting if he was prepared to resign and accept an eligible termination package, or alternatively to accept a lesser role within the School.

56    Dr White further submits that the Policy clearly provided that it would not be available to teachers in excluded employment, and that this was clearly explained to Mr Symons by Mr McCormack. However, the passage relied upon in the Policy, quoted at [44] above, was a reference to the design of the Package. Mr McCormack made no reference whatsoever to the Policy itself, and the passage referred to was not, in any event, a description given to Mr Symons of a condition, as suggested by this submission, but, rather, was at most an indication of a reason why an offer of a Package might not be made. Even then, it was not stated in terms that excluded the University job that Mr Symons had applied for, given that this could reasonably be understood as, in Mr McCormack’s words, “employment outside of the catholic education system”, if that phrase was to be understood, quite reasonably, as referring to Catholic schools. There was no evidence that Mr Symons had any basis for any other understanding of what Mr McCormack was referring to.

57    Dr White relied on evidence given by Mr Symons in cross-examination, including in response to questions in the form of cross-examination by the primary judge. However, that evidence did not, in Dr White’s submission, constitute any concession by Mr Symons as to the terms of the Policy, not least because Mr Symons had not, at the relevant time, been proven to have known at the relevant time that the Policy existed. It is not to the point that someone could theoretically infer or suspect that the offer of the Package might (or might not) be guided by a written policy lurking in the background.

58    Dr White submits that there was no offer and acceptance but, rather, only a quotation and an equivocal indication by Mr Symons of his preparedness to accept it. However, that submission places too much stock on, at most, infelicity of phrasing, and makes the same mistake as the primary judge by ignoring the conversation of 14 October 2013 by which the emails of 18 and 25 October 2013 came to be sent. Neither Mr Symons nor Mr McCormack were lawyers, and some common sense and context must be applied to the objective assessment of what took place. Reading the words of emails literally and out of context is simply not a good enough approach. Stripped of the primary judge’s rhetoric, there was no proper evidentiary foundation for the conclusion that Mr McCormack had engaged in nothing more than an invitation to treat.

59    Dr White submits that the conclusions reached by the primary judge were correct, including, in particular, the reliance placed by his Honour on the 8 November 2013 letter of resignation. However, that ex post facto letter could not, in all the circumstances, have any material bearing on the objective assessment required of the events and context leading up to the emails of 18 and 25 October 2013. If a contract was already in existence by 25 October 2013, the 8 November 2013 letter of resignation could not change that.

60    Dr White relies upon the adverse findings made by the primary judge as to a supposed lack of candour by Mr Symons in relation to his dealings with the University. However, for the reasons outlined at [35]-[38] above, that part of his Honour’s reasoning was fundamentally flawed. It was also, at least in part, based on the following seriously flawed evidence.

61    Mr Symons was cross-examined in relation to a University document concerning the selection process for the job that he ultimately obtained. The University document suggested that the University selection process had been concluded in Mr Symons’ favour well before either the unchallenged telephone call that he received from the University on 25 October 2013, or before the letter he received from the University dated 28 October 2013. The University document was apparently obtained by subpoena but was not served or proven before it was used to cross-examine Mr Symons. He was therefore cross-examined on that document without prior notice or other warning.

62    While such cross-examination of a witness on a prior representation by someone else may take place, it may only do so in accordance with strict and long-standing limitations originating at common law and reflected in s 44 of the Evidence Act. The University document was not Mr Symons’ document, nor a record of any representation made by him, yet no regard was had to the strict requirements of s 44 that apply when seeking to cross-examine a witness about a prior representation that was made by someone else. Unless properly proven, the most that can be done by way of cross-examination in relation to such a document is that the witness can be shown the document without it being identified, and asked if he or she adheres to his evidence. Just because such a document appears on its face to be a business record does not mean that it will be admitted into evidence, especially if regard is had to the request provisions in Division 1 of Part 4.6 of the Evidence Act. A cross-examiner relies upon such a document without prior warning at his or her peril. Be that as it may, the valid objection made by Mr Symons’ counsel to the cross-examination was overruled and the document was admitted into evidence only after the cross-examination in relation to it had taken place. No complaint is made about that on appeal. However, that state of affairs did not permit the document to form part of the matrix of evidence by which gratuitous adverse credit findings were made, albeit that those adverse credit findings were almost entirely irrelevant.

63    Dr White also relies on the possible formal breach by Mr Symons of his contract of employment by commencing to work for the University before he had formally concluded employment with the School and whilst on leave, without giving written notice. While that may have been a breach, and a very formal breach at that, it was not explained how that was relevant to the issue of contract formation or any live fact in issue in the proceedings.

64    The arguments advanced by Mr Symons are cogent and compelling, especially when taken with the analysis above of what took place before the primary judge and his Honour’s reasons. None of the submissions for Dr White are persuasive. They are not even entirely accurate. The case for finding that there was an objective intention to enter into contractual relations is overwhelming, especially when the conversation on 14 October 2013 leading to the emails of 18 and 25 October 2013 is properly taken into account and evaluated. The primary judge erred in the many respects detailed above in reaching a contrary view. It follows that his Honour’s findings on this point must be set aside.

65    Ground 1 as to the formation of a contract by the Package must succeed. There was a valid and binding contract, which Dr White has failed to comply with.

Ground 2 – the Policy, or part of the Policy, as a condition of the Package

66    Mr Symons submits that there was no evidentiary basis for the primary judge’s conclusion that, if a binding agreement had been reached, there was a condition that the eligible termination payment would only be made if he did not remain in the teaching profession. Numerous submissions are made in support of that conclusion, including the absence of any evidence that Mr Symons even knew about the Policy as at 25 October 2013. It is not necessary to detail those further submissions because the primary submission is unassailably correct. For the reasons discussed in some detail above, there was no evidentiary basis for the conclusion reached by his Honour as to there being any such condition attaching to the contract if formed. A policy or internal guidance concerning the making of an offer is of no contractual force or effect unless communicated and incorporated so as to form part of the bargain, objectively assessed. Such a meeting of the minds was not shown to have taken place.

67    Dr White submits that the “sheer unacceptability” of Mr Symons’ continued assertion that there were no contractual conditions (presumably beyond the express, but irrelevant, condition in the 18 October 2013 email) was an interesting alternative to identifying any evidence that demonstrated that such contractual conditions had even been discussed, let alone incorporated into the contract. The associated reliance on an asserted lack of candour by Mr Symons did not assist this rather barren argument. Similarly, reliance is placed by Dr White on Mr Symons’s oral evidence supposedly being in stark contrast to his affidavit evidence, to the effect that his first contact with the University was on the day that he “alleges” he accepted the Package, and then as to his supposedly vague affidavit evidence in reply on this topic. The fundamental flaw in this argument is that not disclosing the antecedent fact of being interviewed by the University was of no moment for the reasons set out at [35] above.

68    No attempt is made by Dr White to explain why Mr Symons had any obligation to disclose that he was applying for other jobs, especially when it was well known by the two key people representing him, namely Ms Kenney and Mr McCormack, that this was taking place. There is no substance to the contention that Mr Symons was, for one moment, suggesting in his first affidavit that his first contact with the University was on the day that he was told by telephone that he was one of two people being recommended to be appointed. It is difficult to understand how his evidence could rationally be interpreted in that way. It is equally difficult to understand why the primary judge thought so much of this, except perhaps by reason of a failure to appreciate that a person who has applied for a job and has had referee checks made almost certainly had to have been interviewed between those two events. There is nothing in any of the submissions for Dr White that comes close to meeting the submissions for Mr Symons.

69    There was simply no evidence by which it could be concluded that the contract was subject to any condition of the kind contained in the Policy to the effect that employment in the teaching profession would disentitle Mr Symons to the eligible termination payment. It follows that Mr Symons’ second ground of appeal must also succeed.

Ground 3 – whether Mr Symons was employed by the University in the teaching profession

70    In light of the conclusion that has been reached on ground 2 to the effect that there was no condition of the kind that the primary judge found did exist, it is not strictly necessary to reach a concluded view on ground 3. Mr Symons submits that this was not required on his part if he succeeded on ground 2. Dr White does not express a view either way. It is therefore appropriate to give some indication as to this ground, but it is necessarily obiter.

71    Mr Symons submits that the primary judge erred in concluding at [9], reproduced above at [46], that because the University was involved in the teaching profession, he was thus remaining in the teaching profession despite taking up an administrative role at the University that was not a teaching position. He submits that that role did not entail continuation of a teaching career, to which the Policy was, in terms, directed. Thus he submits that even if the condition applied, he did not breach it.

72    Dr White relies upon aspects of the similarity between the role that Mr Symons left with the School consequent upon his resignation and the role that he took up with the University. However, that submission begs the question of whether the coordinator role at the School was itself still in the teaching profession. It may be accepted that Mr Symons’ prior role as an assistant principal probably did meet that description, but even that is not clear when regard is had to the terms of the Policy, as considered further below.

73    The answer to the competing submissions lies in a consideration of the Policy in which the condition relied upon appears, rather than simply of the words in the third dot point to cl 3.5 in isolation. That provides the best guide as to what was intended by the Policy if it, or this part of it, was a condition to the contract, contrary to the conclusion reached as to ground 2. That is best done by reproducing the portions dealing with the rationale and the guiding principles in the Policy, together with the actual policy statement to which those aspects apply. Those portions were as follows (verbatim; emphasis in original):

CAREER CHANGE POLICY

1.0    RATIONALE

The Catholic Education Office (CEO) Sydney recognises that although teaching can be a very satisfying and personally gratifying career, the aspirations of some teachers may change over time. In these circumstances the teacher might like to opt for a different career. The Career Change Package has been introduced by the CEO as a way to support teachers who are seeking a non-teaching career to assist them in retraining and other transition costs.

2.0    GUIDING PRINCIPLES

2.1    The Career Change Package is specifically designed to assist teachers who are at the stage in their lives and careers where they are looking for a change from teaching.

3.0    POLICY

3.1    Career Change is available to teachers with at least 10 years service with the CEO Sydney.

3.2    Eligible teachers are offered a transition package of 50% of the annual salary of Step 13 of the Teachers’ Common Scale (less the applicable tax).

3.3    Part-time teachers will receive a pro rata payment.

3.4    For schools supporting the application of a teacher for a career change, the vacancy created must be filled by a New Scheme Teacher. Where practicable this will be a targeted graduate. Normal recruitment processes for targeted graduates will be applied.

3.5    The Career Change Package will not be available to teachers:

•    on Workers Compensation or Leave Without Pay

•    who are retiring

•    who will remain in the teaching profession, albeit in a different sector or with a different employer

•    who are at Stage 3 of ‘Formal Disciplinary Procedures: Regional Level’ of the Archdiocesan Procedures for Addressing Performance-Related Matters and Professional Competence.

74    The following observations may be made about the rationale and guiding principles aspects of the Policy reproduced above:

(1)    the stated rationale at cl 1.0 is to encourage a movement towards a non-teaching career; and

(2)    the guiding principles at cl 2.1 refer to a change from teaching.

75    The rational way to read the reference in the third dot point of cl 3.5 to “remain in the teaching profession” in the above context is that the Policy was designed to offer a way out of a teaching role, and therefore that a package would not be offered if a person remained in a teaching role, even with another employer. Mr Symons did not remain in a teaching role. It is of no moment that he already probably was not in a teaching role as at October 2013. It is also not necessary to decide whether the Policy, if made a contractual condition, would exclude a teacher taking up a leadership role with no teaching component, such as a non-teaching principal, or deputy or assistant principal who did not teach.

76    It follows that even if, contrary to the conclusion reached in relation to ground 2, a condition in terms of the third dot point of cl 3.5 of the Policy did apply, Mr Symons would not have been in breach of it. However, the finding to the contrary about the operation of the condition by the primary judge does not survive ground 2 being upheld.

Conclusion

77    The first two grounds of appeal must succeed. The third ground of appeal in the alternative consequently falls away.

78    The orders of the primary judge must be set aside. In lieu, Dr White must pay Mr Symons his full eligible termination payment in the sum of $62,262 plus interest. That interest should be calculated by reference to the date that Mr Symons’ employment with the School in fact ceased, being, on the evidence, 13 December 2013, subject to any contrary date being advanced to vary that, or agreement between the parties.

79    The appeal succeeds on a point litigated in the Federal Circuit Court’s associated jurisdiction, rather than under the Fair Work Act 2009 (Cth). The parties have not been heard as to whether the restriction on costs in s 570 of the Fair Work Act applies to this separate cause of action, which may not be a “matter arising under” that Act: see s 570(1). No view should be expressed either way on that point as the parties have not been heard.

80    The appropriate course is for Mr Symons to be given leave to make any application for costs within 14 days, and to notify my associate within that time if no such application is to be made. If such an application is made, Dr White should be given an equivalent time to respond. The determination of any such application should take place on the papers unless a compelling reason is advanced for there to be a further hearing.

81    The making of these additional orders is not intended to either encourage or discourage the making such a costs application. Section 570(1) may or may not apply.

Associate:

Dated:    29 June 2018