Federal Court of Australia

Gulliver v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No 2) [2023] FCA 1039

ORDERS

THE COURT DECLARES THAT:

1.    On 31 May 2023, the respondent The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane contravened section 50 of the Fair Work Act 2009 (Cth) by contravening clause 2.4.9 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2019-2023 (the Agreement) by its conduct in terminating the employment of the applicant, Jan Gulliver on 31 May 2023 and thereby failing, contrary to its obligation under clause 2.4.9 of the Agreement, to continue the status quo whilst the dispute resolution procedure in clause 2.4.7 of the Agreement was being followed in respect of a dispute between her and the respondent (the Contravention).

THE COURT ORDERS THAT:

References to children

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), any access granted by the Court to a non-party to a document filed in the proceeding on application pursuant to the Federal Court Rules 2011 (Cth) be on terms that such access be restricted either by via the complete redaction in any such document of the name of any child mentioned in that document or, alternatively and if the Court so directs, by the substitution for the name of the child in that document of a pseudonym corresponding with a pseudonym adopted by the Court in the reasons for judgment as delivered on 7 July 2023, as revised by the Court.

Pecuniary penalty

3.    The respondent pay a pecuniary penalty in the amount of $25,000 in respect of the Contravention (Pecuniary Penalty).

Compensation

4.    In addition to the Pecuniary Penalty and by way of appropriate compensation in respect of the economic loss suffered by her as a result of the Contravention, the respondent pay to the applicant the sum $28,832.76 (Compensation).

Due date and default

5.    The Pecuniary Penalty and the Compensation be paid by the respondent to the applicant on or before 18 August 2023 (due date).

6.    In lieu of payment directly to the applicant as provided for by Order 5, the respondent may, if so directed by the applicant in writing before the due date, pay the Pecuniary Penalty and the Compensation to her solicitor on or before the due date.

7.    The written receipt of the applicant or, as the case may be, her solicitor shall be good discharge of the respondent’s payment obligations created by this order.

8.    In default of the payment to the applicant by respondent of the total of the Pecuniary Penalty and the Compensation by the due date, the amount then outstanding may be recovered by the applicant as a debt due to her by the respondent.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    This proceeding stands in the list for judgment in respect of the orders to be made as a sequel to the conclusion which I reached on 7 July 2023 that the respondent CathEd had, in the way described in the judgment delivered ex tempore that day, see Gulliver v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2023] FCA 823, contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) by a contravention of cl 2.4.9 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools Queensland, 2019 to 2023 Enterprise Agreement. These reasons for judgment must be read in conjunction with those earlier reasons for judgment, which I shall term the liability judgment. For convenience, I shall adopt the same abbreviations as in the liability judgment.

2    As to the liability judgment an issue emerged after its delivery, ex tempore, with respect to the incorporation by reference of a description of the industrial dispute. As incorporated by reference without any redaction, that description would include the names of particular school students who are children. Upon that realisation occurring to the parties, there was a joint promotion this morning of an order which would restrict access to which a non-party might otherwise be entitled to an unredacted version of any affidavit filed and read in the proceeding which contained names of children. In addition, it was submitted that there ought to be an assignment in the text incorporated by reference of pseudonyms where children appear. Each party identified a reason for that as lying in a policy of CathEd to preserve, to the extent lawfully possible, the anonymity of school children but particularly in relation to the present proceeding. It was further submitted that there was no particular diminution of the accepted public interest in open justice by like redaction, or by the assignment of pseudonyms, if there were to be any provision of an affidavit to a non-party.

3    As to publication, there is power conferred by s 37AF of the Federal Court of Australia Act 1976 (Cth) to order restriction of publication. Occasion for such an order must exist: see s 37AG. Here, the joint position of the parties reflecting a particular policy does not, in any way, occasion surprise, nor, in my view, does a taking up of that policy occasion any unwarranted interference in the longstanding public interest in open justice. That being so, I shall include in the orders pronounced today, an order which restricts access to unredacted versions of affidavits where particular children are named if access is sought by a non-party. Further, the reasons for judgment in respect of liability will contain pseudonyms in the event that a non-party were to establish a sufficient reason for access to an affidavit filed and read. That affidavit would be provided in a form which either redacts completely the name of a child concerned or at least has inserted the pseudonym, which corresponds with that adopted in the liability judgment, as revised.

4    I turn then to the question of what other orders are appropriate in having regard to the conclusion as to liability in the liability judgment?

5    At the time of its delivery, and as the orders made that day indicate, it was contemplated that the parties would bring in proposed minutes of a declaration to give effect to the conclusion as to liability. I have had the benefit of the provision of proposed minutes of the requisite declaration, from both Mrs Gulliver, as well as CathEd. It is necessary that the declaration be sufficiently precise to capture exactly the contravention found to have occurred. Having considered the proposed wording by each of the parties, I consider that a declaration in these terms is necessary to give effect to the conclusion reached in the liability judgment. The declaration will be that on 31 May 2023, the respondent, the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane ABN 49 991 006 857, contravened s 50 of the FWA by contravening cl 2.4.9 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2019-2023, the agreement, by its conduct in terminating the employment of the applicant, Jan Gulliver, on 31 May 2023 and thereby failing, contrary to its obligation under cl 2.4.9 of the agreement to continue the status quo whilst the dispute resolution procedure in cl 2.4.7 of the agreement was being followed in respect of a dispute between her and the respondent.

6    It is necessary to commence the consideration of the other orders to make as a consequence of being satisfied that a contravention has occurred by reciting precisely what was the contravention, because both s 546 in respect of pecuniary penalty orders and s 545 in respect of other orders are predicated upon what is “appropriate”. What is “appropriate” must necessarily be related to the particular contravention which the court is satisfied has occurred.

7    I now consider the question of whether it is “appropriate” to impose, pursuant to s 546 of the FWA, a pecuniary penalty? I put the question that way because it does not necessarily follow in respect of each and every contravention of the FWA that there must be a pecuniary penalty order.

8    Section 546 confers on the court a discretion, with the discretion falling for exercise in the circumstances of a given case as to what is “appropriate”. In that regard, it is necessary to give effect to the purpose of a pecuniary penalty regime. That purpose is not to be assimilated with the purposes of the criminal justice system. Instead and overwhelmingly, the purpose of a pecuniary penalty regime is deterrence, not just specific deterrence but general deterrence: see Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426 (Pattinson). The end to which such deterrence is directed is adherence to an ordained norm of conduct and also the reverse of that. That is, to put a price on a departure from an ordained norm of conduct which is sufficiently high to make any such departure an act of folly. The price must therefore be greater than just an affordable business or private outlay for engaging in contravening conduct.

9    In light of Pattinson, many cases decided at intermediate level or at original jurisdiction level in this Court must be read with a degree of caution. Even so, there are particular considerations which have been identified in earlier cases which remain relevant to consider in relation to the imposition of a pecuniary penalty. Notably, these cases are Trade Practices Commission v CSR Limited [1991] ATPR 41-076, at [40], per French J, (as his Honour then was); Kelly v Fitzpatrick [2007] 166 IR 14, at [114], per Tracey J, and a judgment of the Full Court, Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 (McAlary-Smith), at [60]. I do not propose to list out considerations there identified, although I have taken such considerations into account. Those which I have found particularly influential will be apparent enough from what follows.

10    Another reason why I have not listed out those considerations is that a checklist approach to the imposition of a pecuniary penalty is, in my view, to be eschewed. When all is said and done, the task of deciding whether or not to impose a penalty and, if so, its amount, is a process which has been described as one of “instinctive synthesis”: see McAlary-Smith at [26] to [28] and [55].

11    In relation to this case, the agreement is one which has a pervasive application to the conduct of educational activities by the Roman Catholic Church in Queensland. CathEd, the branch of the church which, in the Brisbane diocese, conducts those activities, conducts a number of schools, on the evidence.

12    The conduct of educational activities by the Roman Catholic Church is very long standing. It is an adjunct to the witnessing and promotion of that branch of the Christian faith by that church. There is a public interest served in the provision of education. The provision of education by the church relieves, to that extent also, the public purse in the provision of public education facilities. But when a church, and it is not unique to the Roman Catholic Church, conducts educational activities, it must “render unto Caesar what is Caesar’s” (Gospel of St Matthew (Chapt 22, Verse 21). By that, I mean it must adhere to the governing law of the land, including materially, in this present context, the industrial law of the land.

13    The industrial law of the land relevantly includes, via s 50 of the FWA, adherence to the terms of a governing enterprise agreement. In the liability judgment, I referred to the important role, which conciliation can, and has played, in the Australian industrial relation system for a very long time indeed. This was taken up in submissions made on behalf of Mrs Gulliver in identifying a particular reason why it was apt to impose a pecuniary penalty.

14    Provision for informal dispute resolution was seen to be the Australian way and to have been so from the inception on a federal industrial system. The Commonwealth parliamentary debates which preceded the introduction of the conciliation and of what became the Conciliation and Arbitration Act 1904 (Cth) (Conciliation and Arbitration Act) amply bears this out. As an account of the history of the enactment of the Conciliation and Arbitration Act on the Museum of Australian Democracy website records accurately, having regard to Hansard, that act had “a difficult passage through parliament” and “brought down two governments”.

15    One of those governments was that of the Honourable Alfred Deakin. In his first prime ministership in reintroducing the Conciliation and Arbitration Bill into the parliament in March 1904, Mr Deakin stated, in his second readings speech of 22 March 1904, “The procedure of the administration of Justice is not adopted until the methods of persuasion have been tried. Those methods are applied first and must be exhausted before a case comes to arbitration.” Some of what followed is of jurisprudential interest in that it evidences conceptions with respect to the proposed court of conciliation and arbitration which, half a century later in R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, were found to be flawed. But the basic premise upon which it was put on behalf of Mrs Gulliver that conciliation first was a longstanding feature of Australian industrial relations is born out by the text of the Conciliation and Arbitration Act, as it came first to be enacted, in ss 16, 23, 24, and 25 in particular, as confirmed by regard to Mr Deakin’s second reading speech.

16    CathEd did not decline to participate in the ordained conciliation process. The evidence discloses that it actively did participate. That, as I consider was correctly put on its behalf by its counsel Mr Mackie, is a mitigating factor. Further, the contravention is not found in the failure to conciliate but rather in an interruption of a status quo during the agreement ordained dispute resolution process.

17    The commission’s recommendation was non-prescriptive as to particular individual documents which were to be provided to Mrs Gulliver. And for the avoidance of doubt, there is no adverse criticism whatsoever intended in respect of the particular recommendation made by the commission. Instead, the recommendation was that Mrs Gulliver be provided with a class of documents by CathEd. That class was the material which would be placed before the decision-maker. That which would be placed before the decision maker was a subject peculiarly within the knowledge of CathEd. Mrs Gulliver had no control over what would be placed before the decision-maker. She had, as she saw it, a very real interest in understanding with precision the alleged misconduct by her by having available to her a copy of the investigation report. The essence of the dispute between the parties had come down to a question posed to the commission. That question resulted in the recommendation I have mentioned. But Mrs Gulliver never departed from her desire to have access to the report.

18    Had that report been placed before the decision-maker as part of the material, that would have necessarily meant, if the recommendation were followed by CathEd, that she would have been given a copy of that. As CathEd saw it, the recommendation brought the dispute to an end, but it would only do that if the other party to the dispute, Mr Gulliver, were satisfied that what had been provided included the investigation report, such that she would, if the commission's recommendation were followed, receive a copy.

19    CathEd, in my view, deliberately chose not to give Ms Gulliver the investigation report. But it did not in so doing, in my view, consider it was failing to adhere to the recommendation. Instead, CathEd seems to have forgotten that the recommendation was not an end in itself to the dispute resolution process. Ms Gulliver had a right, if so advised, to press for an arbitrated outcome that would see her, if successful in arbitration, given a copy of the investigation report. But she could only make a decision, and certainly only make an informed decision, as to whether to proceed to the later dispute resolution stage of arbitration, if she knew that CathEd’s disposition was not to give the decision-maker the investigation report, but rather that it had already given her that which would be placed before the decision-maker.

20    CathEd was under no obligation to comply with the recommendation, nor was Ms Gulliver. CathEd did not, in my view, set out not to comply with the recommendation. Instead, it just seems to have deluded itself that the recommendation was an end in itself, and that it was complying with it because it had already given Ms Gulliver that which the commission recommended. Truly, that was a delusion, industrially, and that delusion was manifested by an interruption of the status quo by the termination on 31 May 2023. CathEd seems to have forgotten that its own knowledge as to what would be placed before the decision-maker was relevant to the dispute resolution process.

21    Ms Gulliver had had a steadfast earlier interest in obtaining the investigation report. CathEd’s actions and inaction – action in terminating interrupted the status quo, and its inaction in failing to inform her of the disposition not to give the investigation report to the decision-maker, its executive director, denied her the opportunity of making an informed decision about whether to proceed to arbitration. The two seem to me to be different sides of the same coin that was expended by interrupting the status quo by termination.

22    In relation to an enterprise agreement which has a pervasive application to educational activities conducted in this State by the Roman Catholic Church, there is a need to send a message in respect of adherence to the terms of the enterprise agreement. The case is not, in my view, one where no pecuniary penalty should be imposed.

23    Although the emphasis with enterprise bargaining under the FWA is on agreement in the workplace, parliament has made deliberate provision for the inclusion in enterprise agreements of recourse to that Australian way of conciliation first and then arbitration, if need be. The old procedure has been adapted to modern times of enterprise bargaining.

24    Another consideration which intrudes is that although the model term for dealing with disputes for enterprise agreements found in sch 6.1 to the Fair Work Regulations 2009 (Cth), for which reg 6.01 provides, in furtherance of s 737 of the FWA, makes no express reference to the maintenance of the status quo, that the model clause does, nonetheless, contemplate the following in clause 6 of the model term:

Model term

(1)    If a dispute relates to:

(a)    a matter arising under the agreement; or

(b)    the National Employment Standards;

this term sets out procedures to settle the dispute.

(2)    An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

(3)    In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

(4)    If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

(5)    The Fair Work Commission may deal with the dispute in 2 stages:

(a)    the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b)    if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i)    arbitrate the dispute; and

(ii)    make a determination that is binding on the parties.

Note:    If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

(6)    While the parties are trying to resolve the dispute using the procedures in this term:

(a)    an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b)    an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i)    the work is not safe; or

(ii)    applicable occupational health and safety legislation would not permit the work to be performed; or

(iii)    the work is not appropriate for the employee to perform; or

(iv)    there are other reasonable grounds for the employee to refuse to comply with the direction.

(7)    The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.

25    In substance, clause 6 of the model term looks to a preservation, subject to identified exceptions, of a status quo with employment.

26    So there is a wider interest, although the interest in adherence to an enterprise agreement of pervasive application is reason enough, in sending a message of deterrence to interruption of a status quo whilst an ordained dispute resolution process is being followed.

27    It is difficult to think of a more serious interruption of a status quo during dispute resolution processes than the termination of the employee concerned. That is another reason why it is not apt to impose no penalty.

28    Serious though the contravention was, I do not accept the submission made on behalf of Mrs Gulliver that the contravention warrants the imposition of the maximum penalty. Of course, the maximum penalty is a yardstick, but it does not follow from Pattinson, that a maximum penalty is apt to serve the ends of deterrence of each and every case. CathEd has no history whatsoever of any contravening industrial conduct.

29    It seems inferentially likely to me that the occasion of the finding of contravening conduct is embarrassing in itself to CathEd. I do take that into account in relation to the amount of pecuniary penalty necessary to serve the ends of deterrence.

30    It is also important to be precise as to the association between pecuniary penalty and the particular contravening conduct. It is no part of my function to form any view as to whether or not the termination constituted, for the purposes of the FWA, an unfair dismissal, much less to penalise CathEd in respect of the termination.

31    Another factor to consider is that CathEd was not taking its own counsel, although it did have access to experienced in-house industrial advice in the proceedings before the commission. It also had the benefit of external legal advice. It is just that, with all due respect, the advice which I accept CathEd acted upon contained within it the flaw of not thinking through the fact that there were two parties to the industrial dispute and that even though that dispute had refined itself to a question posed to the commission, which yielded a recommendation, that was not as I have observed already an end in itself, Mrs Gulliver had rights. CathEd, by terminating her employment, deprived her in the most extreme way possible of a right to proceed to arbitration.

32    In QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2010) 204 IR 142 (Queensland Rail), at [59] and [60], Keane CJ, as his Honour then was, and Marshall J, in their joint judgment, identified, in the circumstances of that case, mitigating factors such as the absence of dishonesty or deliberate breach on the part of the appellants and the circumstance that the contravening conduct was the first offence for each of the appellants. I have already adverted to this being the first offence for CathEd. I am well persuaded that there was no dishonesty on the part of CathEd. The interruption of the status quo by termination was deliberate, but that deliberateness was the result of the misunderstanding, which I have mentioned, on the part of CathEd.

33    Also in Queensland Rail, in that joint judgment, it was regarded as an aggravating factor that the breach was heedless of the rights of employees. That feature, in my view, is present here. The interruption of the status quo was heedless of Mrs Gulliver’s right, if she had known she was not going to receive the investigation report, to proceed to seek an arbitrated outcome.

34    Queensland Rail, of course, concerned a contravention common to multiple industrial agreements covering a very large number of employees. There is, obviously, a difference of fact and degree here, but the agreement is not one confined in its application just to Mrs Gulliver.

35    I have found the question as to the amount of penalty to impose, taking into account the considerations which I have mentioned, a very difficult one, indeed. It was relatively easy to reach a conclusion that the case was neither one for the imposition of a maximum penalty nor for no penalty to be imposed. I consider it particularly important that the amount of penalty not be able to be viewed by any reasonable person as having trivialised the dramatic cessation by termination of an ordained requirement for preservation of the status quo. And yet the penalty must also be tempered by the mitigating factors, which I have mentioned.

36    Doing the best that I can in terms of drawing disparate considerations together, the appropriate penalty, in my view, is the sum of $25,000.

37    I turn, then, to the question of other orders? Once again, it is necessary that these orders be “appropriate.” It has been observed of s 545 of the FWA that the nature of the power conferred by s 545(1) is “preventative, remedial and compensatory,” the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, at [103] to [108]. An order will only be “appropriate” if it is directed to the end of preventing, remedying or compensating a person in respect of a contravention which the Court is satisfied has occurred. As found in the liability judgment, the contravention here interrupted a status quo that the enterprise agreement ordained must continue during the dispute resolution process for which it provided. As I have mentioned, the Commission’s direction was non-prescriptive. As I have also mentioned, in the aftermath of the Commission’s recommendation, CathEd, and only CathEd, knew what material it was going to place before its decision-making executive director. It, and only it, knew that this was not going to include the investigation report which Mrs Gulliver had sought.

38    Because CathEd chose, in the aftermath of the Commission’s recommendation, not to tell her what it was going to place before the decision-maker, Mrs Gulliver was not able to make any informed decision as to whether to press to arbitration the obtaining of that report. Had CathEd told her what it was going to place before the decision-maker, she would then have to have decided, in short order, whether to press to the second stage of the dispute resolution process. Given Mrs Gulliver’s steadfast earlier interest in securing that report, I consider it as more likely than not that she would have sought arbitration. Although estimates, on the evidence, differ as to the length of time it might have taken to secure an arbitrated outcome from the Commission, the estimates varying from 8 to 10 to 12 weeks, it seems more likely than not, having regard to the expedition with which the Commission had earlier dealt with the industrial dispute at its anterior stages that this would have occurred sooner rather than later. I consider that each party, CathEd and Ms Gulliver, for its or her own reasons, is inherently likely to have pressed the Commission for expedition. Thus my conclusion is that it is more likely than not that the eight-week estimate is the more accurate period within which arbitration would have occurred.

39    Of course, in respect of whether the arbitrated result was or was not in favour of ordering the disclosure of the report, it would have been possible for either party – but here, relevantly, Ms Gulliver – to have pressed for leave to appeal to a full bench of the commission, assuming the arbitrated outcome was that the investigation report not be provided. But on the face of the reasons which the Commission had provided for in answering the question, and in making the recommendation, and in the event that there was a reasoned arbitrated order that CathEd was not obliged, for procedural fairness reasons, to provide the investigation report, Ms Gulliver would have had very great pause for thought indeed about whether to seek leave to appeal. And she did not have unlimited funds at her disposal.

40    In those circumstances, I do not consider, in relation to compensation for economic loss, I should regard it as more likely than not that the period for arbitration would have been extended by an application for leave to appeal, and the hearing and determination of the same by a full bench.

41    Of course, another factor to consider in relation to compensation for economic loss is that the arbitrated outcome, even if favourable to Ms Gulliver, would not have brought the question of whether there had been alleged misconduct in the workplace, and if so, the appropriate response to that by CathEd as an employer, to an end.

42    Judging by the speed with which CathEd moved following the Commission’s recommendation and the length of time of the suspension to that point, I find that it is inherently likely that CathEd would have made a decision after any arbitrated outcome with expedition; more likely than not, within a fortnight. The status quo with which cl 2.4.9 of the enterprise agreement requires to be preserved is a status quo during a dispute resolution process: no more than that, and no less.

43    Had the staged procedure run its course to an arbitrated outcome, any decision, be it to terminate or not to terminate, would have brought Ms Gulliver's period of suspension to an end. CathEd’s decision of 31 May 2023 prematurely brought that period to an end. Had CathEd notified Ms Gulliver of what it proposed to place before the decision-maker, it is inherently likely that this notification would have occurred no later than 31 May 2023, perhaps earlier, but certainly not later. It is from then that Ms Gulliver would have made her decision to seek arbitration. Arbitration would have occurred and CathEd would have made a consequential decision one way or the other in any event.

44    Thus in assessing economic loss, which is “appropriate” with respect to the contravention, it is more likely than not that the status quo, plus a decision-making period, would have endured for 10 weeks after 31 May 2023.

45    Ten weeks has yet to run from 31 May 2023. Whilst, in theory, s 545(3) of the FWA would support the ordering of Ms Gulliver’s reinstatement for this period, with liberty to CathEd to make afresh at any time thereafter such decision as it may be advised in respect of the alleged misconduct, in my view, the industrial realities are that CathEd would be more likely than not to maintain her suspension during the balance of this notional 10-week period. Further, for better or for worse, CathEd has already decided that the alleged misconduct occurred, and that it warrants termination.

46    It is no part of my remit to decide whether the alleged misconduct did occur, much less to decide whether it would be unfair to dismiss Ms Gulliver as a sequel. Further, some seven weeks into this notional 10-week period, it seems unlikely in any event that Ms Gulliver would be brought back to teaching duties for, in effect, some three weeks. In these circumstances, I consider that the more appropriate order to make is not reinstatement at all, but one which is wholly compensatory.

47    That said, to order compensation for greater than the period which I have identified – and I was pressed to award compensation for a period which would run up to and including an expected retirement date – would be to award compensation for greater than the interrupted status quo. CathEd was not precluded from making a termination decision, if so advised, after the staged processes of their dispute resolution clause had run their course. It would not, in my view, be “appropriate,” having regard to the contravention found, to measure compensation for economic loss to a notional retirement date, even discounting that for contingencies. To that extent, I reject the submission made on Mrs Gulliver’s behalf for compensation. For better or for worse, CathEd chose to terminate Mrs Gulliver’s employment. CathEd could have made the same decision at the end of the dispute resolution process. It made it early, prematurely.

48    It is “appropriate” to compensate Mrs Gulliver for the period of prematurity. Whether or not CathEd’s decision amounted to an unfair dismissal is, if need be, for the Commission to decide. If it decides the dismissal was unfair, questions of reinstatement of compensation into the future, as a sequel to the dismissal, will then arise.

49    As to compensation for other than loss or remuneration for non-economic loss, I do not doubt that Mrs Gulliver gained much satisfaction from imparting her knowledge of science to successive generations of students. She also, I do not doubt, derived much satisfaction from undertaking extracurricular activities with students. All good teachers derive satisfaction in such ways.

50    Whether or not Mrs Gulliver’s good teaching is blemished by the alleged misconduct is, at the cost of necessary repetition, no part of this proceeding; however, CathEd’s submission that the loss of these types of satisfaction would have occurred in any event as a result of suspension during the course of the dispute resolution process, if that had run its uninterrupted course, although on full pay, is, in my view, a sound one. The non-economic losses, which I was pressed, on Mrs Gulliver’s part, to award, are not, in my view, appropriate because they do not flow from the contravention which I have found. I, therefore, propose, in relation to compensation, to confine compensation to economic loss over the period of the interruption of the status quo. Taking into account the likely period of time for arbitration and consequential decision-making, that period is, for the reason given, 10 weeks.

51    It is agreed between the parties that the amount of total remuneration by way of wage and salary and additional amounts, such as superannuation contribution, is $28,832.76. I, therefore, propose to award that amount as the amount appropriate to order CathEd to pay, in addition to the pecuniary penalty mentioned.

52    The FWA provides that the pecuniary penalty may be ordered to be paid to an applicant. It needs to be remembered that Mrs Gulliver has served a public interest, and an important one at that, in terms of industrial relations, in drawing to the Court’s attention to what has been found to be a contravention.

53    It is appropriate, therefore, that CathEd be ordered to pay the pecuniary penalty amount to her. It is, obviously, appropriate that the compensation also be ordered to be paid to her by CathEd.

54    It is possible, under s 546, for the Court to make an award of interest. This was sought on Mrs Gulliver’s behalf. I have considered whether or not to make an award of interest. However, the proceedings have been prosecuted by the applicant with, it must be said, the active cooperation of CathEd with singular diligence. Further, the Court has been able to reward that diligence by an expeditious hearing. Mrs Gulliver has not been kept out of her money for very long. An amount of interest is likely to be very little, indeed. In the exercise of my discretion, I decide not to make an award of interest.

55    The orders, then, will be for a declaration in the terms indicated, together with a pecuniary penalty in the sum indicated, and an award of compensation in the sum indicated.

Associate:    

Dated:    31 August 2023