WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CARMELINA GRIGSON

APPLICANT

-v-

THE ST CECILIA'S COLLEGE SCHOOL BOARD

RESPONDENT

CORAM COMMISSIONER P E SCOTT

DATE THURSDAY, 24 NOVEMBER 2005

FILE NO. APPL 1555 OF 2004

CITATION NO. 2005 WAIRC 03124

CatchWords Industrial Law (WA) – Claim of harsh, oppressive and unfair dismissal – Claim of denied contractual benefits – Contractual term – Unilateral variation to contract – Employment in position – Redundancy – “Suitable alternative employment” – Termination at initiative of employer – Contractual benefits denied – Manner of dismissal unfair – Reinstatement impracticable – Industrial Relations Act 1979 (WA) s.29(1)(b)(i) and s.29(1)(b)(ii) – Independent Schools’ Teachers’ Award 1976 (No. R 27 of 1976) – Western Australian Catholic Schools (Enterprise Bargaining) Agreement No. 1 of 2000 – Policies and Procedures of the Catholic Education Commission of Western Australia

Result Dismissal found to be unfair

 Denied contractual benefits due

Representation 

Applicant Mr G Stubbs (of Counsel)

Respondent Mr P McGowan (of Counsel) and with him Mr M Jensen (of Counsel)

Reasons for Decision

The Claim

1         This is a claim made pursuant to s.29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 in which Carmelina Grigson claims that she has been unfairly dismissed by the respondent from her employment as Head of Primary.  She seeks compensation for loss and injury.  In addition, Mrs Grigson seeks an order for denied contractual benefits being loss of annual salary for what she says is the remaining 5 years of her fixed term contract of employment and other benefits not paid on termination of employment.

2         The Commission has heard evidence from Mrs Grigson; Anthony Michael Chinnock, the Principal of St Cecilia’s College at Port Hedland from 2001 until the end of 2004, and Philip Thomas Riley, the Co-ordinator, Employee and Community Relations Team with the Catholic Education Office from July 2003.

Background

3         The history of Mrs Grigson’s employment is that she graduated as a teacher and was employed by the respondent in 1993 as a primary school teacher.  From January 1995 to December 1997, she was employed at St Joseph’s School in Busselton as a Year 2 teacher and music specialist. 

4         Mrs Grigson was married in 1997.  Her husband took up a position in Port Hedland late that year.  Mrs Grigson wished to accompany her husband and advised St Joseph’s School that she wished to resign her employment.  St Joseph’s School then offered her 12 months’ leave rather than accept her resignation.  She accepted this 12 months’ leave. 

5         In November 1997, Mrs Grigson received a telephone call from Father Walter McNamara, the parish priest of the Port Hedland parish, indicating that he had heard that she was returning to Port Hedland and he wanted to know if she was interested in a teaching position with the respondent.  She indicated that she was.  Mrs Grigson then received a call from the respondent’s then Principal, Mrs Annette Cope.  Mrs Cope confirmed that there was a teaching position available and it was offered to Mrs Grigson (Exhibit A4), who accepted this position on a one year contract commencing 1 January 1998 (Exhibit A5). 

6         Mrs Grigson commenced employment with the respondent as a Year 2 classroom teacher in 1998.  She has given evidence that she was subsequently asked to perform additional responsibilities, which she undertook. 

7         In 1998, Mrs Grigson was advised that the Principal wished to change the structure of the school for 1999 and this included the creation of the position of Primary School Co-ordinator.  Mrs Grigson was encouraged by the Principal to apply for this position and, while initially declining to do so because her husband had completed his assignment in Port Hedland, she subsequently received a second approach encouraging her to apply for the position and did so.  She was successful in that application and commenced in the position as Primary School Co-ordinator for the 1999 school year.  Mrs Grigson was given an additional 12 months’ leave from St Joseph’s School in Busselton to take up the position of Primary School Co-ordinator with the respondent. 

8         Mrs Grigson’s evidence demonstrates, and it is clear also from the evidence of Anthony Chinnock, that Mrs Grigson was offered and accepted the position of Head of Primary for the respondent for the years 2000 and 2001 with an increase in salary to take account of additional responsibilities.  The parties entered into a Deed of Agreement (“the First Deed”) to cover this new arrangement.  There was a Preamble to the First Deed which included the following:

“5. The Deed of Agreement

5.1 The purpose of the Deed of Agreement or contract is to define, and thereby to clarify, the agreed bases of the employer-employee relationship within the employment situation.  A contract gives rise to legal rights and obligations.

5.2 Employment as Head of Primary takes place within this framework of both civil and canon law.  The former protects and obligates the Head of Primary as a citizen of Western Australia; the latter protects and obligates the Head of Primary as a Church member with a specific ministry.”

(Exhibit A7)

9         The terms of the First Deed which are relevant to this matter are:

“3. EMPLOYMENT

3.1 Upon execution of this Agreement, the Head of Primary shall be conclusively deemed to have read and agreed to be bound by the conditions of employment set out herein and as set out in such external document, or documents, as appended.

3.2 The parties agree that the term of this Agreement shall commence on the date specified by the Employer and shall continue for a period specified in the Schedule.

…

4. DUTIES AND RESPONSIBILITIES OF THE HEAD OF PRIMARY

4.1 The Head of Primary agrees to devote her/himself exclusively to the duties of the Head of Primary during normal school hours and further agrees not to engage in any other employment without first obtaining the permission of the Employer.

4.2 The Head of Primary is responsible for:

4.2.1 THEOLOGICAL LEADERSHIP

(a) providing religious leadership for the school community;

(b) articulating the mission of the school;

(c) maintaining active membership of the Catholic Church and a manner of life which gives witness to that membership;

(d) fulfilling such Accreditation requirements as are prescribed by the Employer;

(e) striving to develop a school culture of rituals and practices which reflect Catholic faith and values;

4.2.2 EDUCATIONAL LEADERSHIP

(a) providing educational leadership for the school community;

(b) promoting a curriculum, based on an integration of faith, culture and life, that promotes the religious, intellectual, social, cultural and physical development of the children;

(d)(sic) fulfilling such professional and faith development requirements as are prescribed by the Employer;

(e)(sic) involving students as far as practicable in educational choice and decision making.

4.2.3 PASTORAL LEADERSHIP

(a) striving to nurture a sense of community;

(b) providing for pastoral care of staff;

(c) providing for sound standards of pastoral care of students and for a disciplined and caring learning environment;

4.2.4 ADMINISTRATIVE LEADERSHIP

(a) making provision for effective communication between all members of the school community;

(b) assuming those functions detailed in the Appendix to this Deed

(c) keeping parents regularly informed of student progress and school events.

4.3 The Head of Primary shall implement the policies, guidelines and instructions promulgated by the Commission (the Catholic Education Commission of Western Australia), from time to time.

5. CONTRACT OF EMPLOYMENT

5.1 The initial contract of Head of Primary shall be for a First Term of two (2) years.

5.2 Subject to the conditions set out in this clause the Employer may offer to the Head of Primary a term of contract hereof on the conditions contained herein:

5.2.1 At the completion of the first term of two (2) years (the “First Term”), the Head of Primary may be offered a new contract by the Employer;

5.2.2 The new contract period shall be for a period of four (4) years commencing on the day following the expiration of the First Term (the “Second Term”)’ (sic)

5.2.3 A further contract period may be offered to the Head of Primary by the Employer for a further, final period of four (4) years commencing on the day following the expiration of the Second Term (the “Third Term”) (sic)

5.3 The Employer shall have the sole discretion whether or not to offer a new contract Term under this Agreement, and shall in any event only offer such a contract Term in accordance with this clause:

5.3.1 If the Head of Primary has not during the term of this contract, then current (or any preceding contract Term) committed a serious breach of the Head of Primary’s Responsibilities;

5.3.2 If, in the opinion of the School Board and as a result of the review of the Head of Primary’s discharge of Responsibilities, the performance of the Head of Primary has been such as to qualify the Head of Primary for a new and separate contract of employment.

5.4 At the conclusion of the Third Term the position will be advertised and the Head of Primary is eligible to apply for appointment as Head of Primary at the same school or at any other school.

5.5 If, at the conclusion of the Third Term, the Head of Primary is unable to secure appointment as Head of Primary in a Catholic school in Western Australia, the Employer shall offer the Head of Primary a full-time teaching position at the same school.

5.6 If, at the end of any Term specified in clause 7.1, a new contract is not offered by the Employer to the Head of Primary the Employer shall give the head of Primary at least two term’s notice of the decision not to offer a new contract.

6. REVIEW

6.1 The Employer shall undertake a formal review of the Head of Primary during at least the final, second (2nd) year of the First Term and in the final, fourth (4th) year of the Second Term and at such other times as the Employer elects from time to time.

6.2 The scope of the review shall be the content of the Responsibilities of the Head of Primary, inclusive of those functions attached in the Appendix to this Deed.

6.3 The review shall be conducted with reference to the principles and procedures approved by the Commission for the review of Principals in diocesan-accountable schools.

6.4 The review will be used as one of the factors to be considered by the Employer when determining whether to offer a new contract Term.

7. HEAD OF PRIMARY’S SALARY

7.1 The salary payable to the Head of Primary at the commencement date hereof is the sum described in the Appendix to the Deed, which is the amount determined for the School by the Commission, from time to time.

7.2 The salary payable to the Head of Primary pursuant to Clause 8.1 shall be subject to review by the Employer in accordance with the determination of the Commission provided that salary payable to the Head of Primary upon any such review shall be not less than the salary payable to the Head of Primary immediately prior to such review.

7.3 The Head of Primary’s base salary category will be adjusted from 1 January of each year, where enrolment increases move the base salary to a higher category.  Enrolment numbers will be based on those submitted at the Commonwealth School Census of the previous year.

7.4 Reductions in enrolments will not be taken into account during the course of any particular contract term.  The Head of Primary’s salary will be adjusted downwards in response to enrolment changes at the time of offer of a new contract term. 

7.5 The Head of Primary shall be eligible to participate in the Deferred Salary Scheme in accordance with the conditions agreed by the Commission from time to time.

…

13. DEFAULT BY THE HEAD OF PRIMARY

If the Head of Primary fails persistently to discharge any part of the Head of Primary’s Responsibilities which in the opinion of the Employer is of a serious or substantial nature, then the Employer may by notice to the Head of Primary terminate the employment of the Head of Primary with effect from the date of such notice.  Without limiting the generality of the foregoing the Employer may so terminate the employment of the Head of Primary, if, in the opinion of the Employer, the Head of Primary has failed to maintain or conduct a manner of life in keeping with the aims of a Catholic school.

14. PRIOR TERMINATION OF AGREEMENT

The Head of Primary may terminate this agreement prior to the date of expiration by giving written notice of not less than six weeks written notice.  The Head of Primary acknowledges that every endeavour shall be made to give as much notice in excess of the minimum as possible to enable the Employer to recruit and appoint another Head of Primary.”

(Exhibit A7)

10      It is also noted that the First Deed provides many conditions of employment including superannuation, annual, sick, long service, paternity, special, bereavement and maternity leave, the last of which was unpaid.  It also provided for professional development, travel allowances and dispute resolution.

11      There was an “Appendix to the Agreement” setting out the salary and allowances applicable.  The base salary for the position of Head of Primary was $59,303.00, with a Country Complexity Allowance of $1,859.00 and a District Allowance of $2,413.00.  The Appendix also said:

“In addition to the above salary, the Head of Primary will be eligible to receive all allowable benefits from the Pilbara Package.  For 2000, the Head of Primary will not have a class room teaching load”. 

12      Attached to the First Deed was a schedule in the following terms:

“

ITEM 1: THE HEAD OF PRIMARY

  Mrs Carmelina Grigson

ITEM 2: THE SCHOOL:

  St Cecilia’s College Port Hedland

FIRST TERM

PERIOD OF APPOINTMENT: 1/1/2000        until      31/12/2001

THE HEAD OF PRIMARY

SIGNATURE        signed                       DATE    24 November 1999

THE CHAIRPERSON OF THE SCHOOL BOARD

SIGNATURE        signed                       DATE    24 – 11 – 99”

(Exhibit A7)

13      The First Deed sets out conditions of employment, however it makes no reference to being subject to any award or industrial agreement.

14      Mrs Grigson and Mr Chinnock have both given evidence that a formal review of Mrs Grigson’s performance was undertaken in August 2001, in accordance with the terms of clause 6. – Review of the First Deed.  Mr Chinnock undertook this review with a Mr Geoff Hendriks from the Catholic Education Office.  The process for the review included gathering the views of the parish priest, community members and other staff members as to Mrs Grigson’s performance.  It also involved Mr Chinnock and Mr Hendriks interviewing Mrs Grigson. 

15      There is conflicting evidence as to when Mrs Grigson was advised of the outcome of the review.  However, it is clear that there was a discussion at the end of the interview between Mrs Grigson, Mr Chinnock and Mr Hendriks.  Mrs Grigson says that she was advised that her future employment depended upon the successful outcome of the appraisal process and that she would be advised of the outcome within the next 4 weeks.  Mr Chinnock says that during what he described as the debriefing at the end of the meeting he informed Mrs Grigson that the review had been favourable and that “we would be happy to be offering her the next segment of the - - of the deed” (transcript page 75).

16      Mrs Grigson was on leave during this time, from October to December 2001.  She says that she did not receive advice as to the outcome of the appraisal or a new contract of employment by the end of the 2001 school year.  She sent an email dated Monday 17 December 2001 addressed to Mr Hendriks (Exhibit A8) advising him that she had still not heard or received any feedback in respect of the review.  She noted that there were only 4 or 5 days of school remaining, she wanted to know the outcome of the review and whether she would have a contract for the following year, and asked to be contacted that day at home.  Mrs Grigson says that Mr Hendriks responded saying that the review was finalised but he did not know why she had not been advised accordingly.

17      Mr Chinnock says he, with administrative assistance, prepared a new contract of employment for Mrs Grigson, entitled “Deed of Agreement” (“the Second Deed”) (Exhibit A10).

18      Mrs Grigson was on maternity leave from 1 January 2002 until 31 December 2002.  She says that during this period, on 13 March 2002, Mr Chinnock attended at her home and presented her with a copy of both the written appraisal report, entitled “Review of Mrs Carmelina Grigson” (“the Review Report”) (Exhibit A9), and the Second Deed (Exhibit A10).  The Review Report was very positive regarding her work, performance and approach to her job.  The last page of this report contained the following recommendations:

“1. That Carmelina Grigson be affirmed for the contribution that she has made in fulfilling the Head of Primary role over the last two years.

2. That Carmelina Grigson be offered the opportunity to take up the second segment of her Deed of Agreement.

3. That discussions be held between the Principal and Mrs. Grigson as to an appropriate teaching role associated with the Head of Primary position.

4. That attention be given to examing (sic) the day to day roles of the College Executive members including the Head of Primary.”

(Exhibit A9)

19      The Review Report was signed by Mr Chinnock, and dated “Nov. 2001”. 

20      The Second Deed which Mrs Grigson says Mr Chinnock gave to her at her home in Port Hedland on 13 March 2002, entitled “Deed of Agreement” (Exhibit 10), contained those terms set out above, which were contained in the First Deed (Exhibit A7).

21      Attached to the Second Deed was an “Appendix to the Agreement” which provided a space for the salary to be specified, although no salary was specified in the Appendix.  It notes that the salary included “all allowances eg Country (sic) complexity district etc.” and that “In addition to the above salary, the Head of Primary will be eligible to receive all allowable benefits from the Pilbara Package”.  Mrs Grigson says that attached to the Second Deed given to her by Mr Chinnock on 13 March 2002 were two schedules.  The first schedule contained the following:

“

ITEM 1: THE HEAD OF PRIMARY

  Mrs Carmelina Grigson

ITEM 2: THE SCHOOL:

  St Cecilia’s College

THIRD TERM

PERIOD OF APPOINTMENT: 01/01/2006        until      31/12/2009”

(Exhibit A10)

22      It provided for the signatures of the Head of Primary and the Chairperson of the School Board and for the date of each of those signatures.  Mrs Grigson says that when it was handed to her, the document had not been signed by the Chairperson of the School Board. 

23      The second schedule attached to the Second Deed was in exactly the same terms as the first schedule, set out above, except that the period of appointment was specified as being “01/01/2002 until 31/12/2005”.

24      Mrs Grigson’s evidence about her being presented with the Second Deed with both schedules attached, and her signing them is of significance.  In examination in chief, she gave the following evidence:

“MR STUBBS:  Okay.  Now I think that you have indicated that you finally got the appraisal from Mr Tony Chinnock, is that correct?---Yes.

And can you recall when he provided that to you?---Yes.  In March of the following year, which was 2002.

Can you have a look at this document?  Is that the appraisal document that Mr Chinnock gave to you?---Yes, it is.

Or a copy of it.  I'll tender that document?---Yes.  Review of Mrs Carmelina Grigson is exhibit A9.

Now Mr Chinnock gave that to you in person, did he?---Yes.  Along with my new deed of agreement.

Okay.  Now were you on maternity leave at all during 2002?---Yes, for the entire year.

Okay.  Now when did - - sorry, Mr Chinnock gave you that document and he also gave you a further deed of agreement.  Is that correct?---Yes.

Okay.  Now is that a copy of the - - the deed of agreement that Mr Chinnock gave to you?---Yes, it is.

Okay.  And how did he give that to you?---He actually drove to my home, knocked on my back door and actually handed it to me in person.

Okay.  And was there any conversation between you and he about the agreement?---Yes.  He appraised me and congratulated me on my successful appraisal; handed me the contract in which I flicked through and saw there were two schedules at the back and I actually asked him the question, "Do I sign both of these" and he said yes.

MR STUBBS:  And did he say anything about how long the school was offering you employment for?---Yes.  He actually said the outcome of my appraisal was exceptional.  He was very pleased with my performance, not only him but the community involving the staff as well as outer community, and as we were a difficult to staff school with extreme transient staff members, I was offered the two terms attached.

Okay.  And did he - - did you sign the contract at that stage or at a later point?---No, I took the document.  I wanted to peruse it, to read it and I actually returned it to him at St Cecilia's College.

And when did you return it to him?---The very next day.

And had you signed the document at that point?---Yes, I had signed the document.

And you'd signed both of the schedules - - ?---Both of the schedules.

- - as he had requested?---Yes.”

(Transcript pages 13 and 14)

25      In cross examination, Mrs Grigson gave the following account:

“Mr McGOWAN:  Now you say - - well, you tell us again so there's no misunderstanding.  So on the one occasion Mr Chinnock gives you the review, which talks about the second segment of your deed of agreement, and he gives you this new deed of agreement.  Is that right?---That is correct.

All right.  And you say he said something to you at the time that he gave these documents to you?---Yes, he did.

And what do you say he said?---Mr Chinnock came to my home, knocked on my back door and said, "This is what you've been waiting for.  This is written confirmation of the outcome of your review with a successful review.  You have now a new deed of agreement."  I flicked through the deed of agreement; I noticed there were two schedules at the back and I asked the question, "Do I sign both of them?"  And his answer was, "Yes".

MR McGOWAN:  All right. And that's all that was said?---He asked me how I was, how my new baby was.  There was idle chitchat and I thanked him for finally getting the outcome of my review to me after 6 months and also my new deed of agreement.

All right.  And you don't recall anything else that was said?  Or rather, are you saying nothing else was said---I don't recall anything else being said.”

(Transcript pages 63 and 64)

26      In re-examination, the issue was traversed in the following way:

“MR STUBBS:  Now, my friend asked you about when Mr Chinnock came to your house with the new deed and the review, what, if anything was said about the issue of the duration of the new deed?

MR McGOWAN:  Well, with respect, if you don't lead - - you don't lead in re-examination, with respect.

MR STUBBS:  Was anything said?---Yes, there was.

What was it?---When I flipped through the new deed of agreement I noticed there were two schedules at the back with two different terms.  I specifically and explicitly asked the question, "Do I sign both of these" and his answer was "Yes".

And if you could just look - - you were shown exhibit A10.  Just go to the - - the schedules - - two schedules that you signed in March 2002.  Save for the - - the signatures when you received the document, was everything else on those schedules filled out?---Yes, it was.

And during that visit, Mr Chinnock, was there any discussion about staffing at the school?---Yes, there was.

And what was that?---St Cecilia's College is extremely hard to staff school and I know that personally because every year that I spent there we would be interviewing and trying to get staff to come to our school, because there was a high level of resignations and - - and staff leaving.

MR McGOWAN:  Commissioner, the question was, "What did he say".

MR STUBBS:  And she's telling us.

MR McGOWAN:  No, she's not. She's - -

MR STUBBS:  Yes, she is.  She's telling us.  Would you carry on please.

SCOTT C:  Well, yes, carry on.

WITNESS:  With that, he said, "It's extremely hard to find, not only one, Catholics, to come to Port Hedland.  People who have the manna (sic) of life, people who are trained, people who have experience.  We attract - - these were his words.  "We attract a high level of first year out teachers and then they leave after 1 year".  He said, "You have shown commitment, dedication, you have excelled in your position - - " I remember him saying that, "You do an exceptional job", they were his words, "and the college is happy to offer you this deed of agreement."

(Transcript page 69)

27      Mrs Grigson says that when the Second Deed with the attached schedules was presented to her by Mr Chinnock, she asked him whether she was to sign both the schedules and he indicated that she was.  Mrs Grigson signed both schedules on 13 March 2002 and returned the Second Deed with the two schedules to Mr Chinnock. 

28      Mr Chinnock’s evidence was that he has no clear recollection of when he met with Mrs Grigson or the circumstances under which she received the Review Report and the Second Deed.  He does not recall telling her to sign both schedules.  Mr Chinnock has given evidence that he recommended to the School Board that Mrs Grigson be offered the second segment of the contract by which I take him to mean the period “01/01/2002 until 31/12/2005”.  I understand him to say that the First and Second Deeds are part of the same agreement, that the first segment is that referred to as the “First Term” in clause 5. – Contract of Employment, at point 5.2.1 of both the First and Second Deeds.  The third segment would then be the “Third Term” referred to at point 5.2.3 of both the First and Second Deeds.  The Second Deed was not signed by the Chairperson of the School Board until some months later.  The reasons for the delay include that there was a new Chairperson of the School Board.  The two schedules to the Second Deed, having been signed by Mrs Grigson on 13 March 2002, were both signed by the Chairperson of the School Board, Jamie Cavey, on 12 June 2002.  Mr Chinnock says he knew that the Chairperson of the School Board signed both schedules.

29      Mrs Grigson continued on maternity leave for the remainder of 2002 and returned to work as Head of Primary from January 2003.  She again went on maternity leave from July 2003 until July 2004.  In August 2004, Mr Chinnock was on long service leave and Mrs Grigson acted as Principal during that 6 week period.  For the 2005 school year, Mr Chinnock was to take a year’s leave.  Expressions of interest were invited from those who wished to act as the school Principal during 2005.  Mrs Grigson applied but was unsuccessful. 

30      There has been evidence that during the course of 2003, consideration was being given by the respondent to the structure of the school and the fact that there were significantly declining enrolments in the secondary school.  The intention was to close the secondary school and to consolidate the school at the primary school.  As a consequence it was decided that the position of Head of Primary would be abolished.  Two new positions as Assistant Principals were to be created.  The structure of senior personnel was to be Principal, Assistant Principal (Administration) and Assistant Principal (Religious Education). 

31      By letter dated 23 March 2004, Mr Chinnock advised Mrs Grigson of the anticipated new structure and that:

“Each of the Assistant Principals would be required to teach a class with Administration Relief for one day.  Your salary would be according to the appropriate scale and would attract the appropriate Assistant Principal allowance. 

If you have any questions relating to these matters please do not hesitate to contact me, and I would be happy to clarify our plans to the best of my ability.”

(Exhibit A21)

32      Following advice from her union to the effect that she had a deed of agreement which applied from 1 January 2002 until 31 December 2009, Mrs Grigson responded to Mr Chinnock by letter dated 18 May 2004, referring to the terms of the “Deed of Agreement, which applies from 1 January 2002 until 31 December 2009”, that:

“Whilst I am currently on maternity Leave (sic), it is my clear understanding that the terms and conditions contained in the above document continue to apply at least until 31 December 2005.”

(Exhibit A22)

33      The letter cites “Section 3. Employment, subsection 3.2” and then says:

“On this basis I do not agree to the Salary and conditions as outlined in your letter.  Specifically,

• the salary entitlement is as a Head of Primary;

• the Agreements states (sic) that I am eligible to receive all allowable benefits form (sic) the Pilbara Package; and

• my Teaching Load is not to exceed 0.4 teaching load.”

(Exhibit A22)

34      Mrs Grigson sought confirmation that the conditions of her employment were those contained in the Deeds of Agreement and that those conditions would continue to apply.  She says that she received no reply to her letter of 18 May 2004. 

35      According to the evidence, Philip Thomas Riley had been directed by his supervisor to travel to Port Hedland in August 2004 to meet with members of the respondent’s staff to discuss the impending changes to the structure of the school and the implications for them.  Mr Riley says that he had asked for the personnel files of school employees to be forwarded to him prior to his arrival in Port Hedland but they were not made available to him.  He had a look at the school files when he arrived in Port Hedland.  The files did not contain the documents that he needed.

36      Mr Riley met with Mrs Grigson on 12 August 2004.  Mrs Grigson initially said in her evidence that she believed that at the meeting, she had a copy of her Deed of Agreement and the letter which she had written to Mr Chinnock dated 18 May 2004 (Exhibit A22) and gave or showed them to Mr Riley at that meeting.  However, she provided him with copies of the schedules to the Deeds and the letter by facsimile transmission on 27 September 2004. 

37      On 19 October 2004, Mr Riley responded to her by email apologising for not getting back to her earlier.  He went on to say:

“As I understand it there is still to be a formal announcement from CECWA (Catholic Education Commission of Western Australia) via the Bishop that the middle school campus will close in 2005, and I appreciate that this has been a source of frustration for you and the other staff involved.

Nonetheless the school resources section expects this to be the case.  I have discussed the implications of this with the Asst Director Terry Wilson with reference to past CEO practice. 

The view here is that your deed becomes redundant as the position HOP is effectively abolished and is also redundant.  There will be no consideration of maintaining HOP salary next year, nor to paying redundancy amount for the time spent as HOP as I understand you will be offered an alternative position as asst principal in the primary structure.  I appreciate this is not the news you would have hoped for.” 

(Exhibit A24)

38      By letter dated 20 October 2004, Mrs Grigson wrote to Mr Riley expressing her concern at the way she had been treated, noting that she did not receive a reply to her letter to Mr Chinnock of 18 May 2004 and stating “I wish to again reiterate that I do not accept the unconditional changes to the terms of my Deed of Agreement, as you propose”.  She cited a term of the Second Deed set out in clause 3.2 and said “In my agreement the end date is December 2009”.  She noted, too, that she did not agree to the salaries and conditions outlined in his correspondence as the salary entitlement was not as Head of Primary.  She noted her Agreement provided an entitlement to allowable benefits from the Pilbara Package and her teaching load was not to exceed 0.4 teaching load.  She stated that she believed she was entitled to have the terms of the contract honoured, and that she was entitled to a redundancy package in accordance with the Western Australian Catholic Schools (Enterprise Bargaining) Agreement.  Mrs Grigson sought a response by the end of the week, Friday, 22 October 2004 (Exhibit A25). 

39      Mr Riley responded that he would not be in a position to reply by that day but hoped to do so by the close of business the following Monday (Exhibit A26). 

40      On 25 October 2004, by email, Mr Riley advised Mrs Grigson that:

“From discussions with the Director he is prepared to consider a form of ex-gratia payment.  Once you are advised by Tony that the HOP is to be abolished and you are offered and accept the APadmin role the payment would be calculated on the difference in salary between the two roles and pro-rated as follows:

Difference in total package approx $17500p.a.

5 years in the HOP role at 2 weeks pay for each year of service = 10 weeks

10/52 weeks X $17500=$3365 approx.”

(Exhibit A27)

41      By letter dated 11 November 2004, Mr Chinnock formally notified Mrs Grigson that there was to be a new structure in place for the school from the beginning of 2005 that would be made up of the Principal together with two Assistant Principals.  “The Salary and time release for the Assistant Principal positions would be based on the conditions appropriate in a single stream school” (Exhibit A29).  In that letter, Mr Chinnock offered Mrs Grigson the position of Assistant Principal (Administration) beginning on 1 January 2005 and he said that he was able to make this offer “without the need for meritorious selection given that I am seeking to redeploy you as a result of your previous position of Head of Primary being declared redundant and is also in recognition of your dedicated service over many years.”  Mr Chinnock asked that Mrs Grigson indicate her willingness to accept the position by 3.00pm on Friday 19 November 2004 (Exhibit A29). 

42      A duty statement was provided to Mrs Grigson in respect of the Assistant Principal positions and a Draft Deed of Agreement was also provided for her consideration.  This Draft Deed attached a schedule which referred to the salary being “as per the Independent Schools Teachers Award and the Western Australian Catholic Schools EBA 2000” (Exhibit A30). 

43      Mrs Grigson says she asked for information as to the salary and was referred to the Administrative Assistant.  The Administrative Assistant declined to provide the information indicating that it should be provided by the Principal, so Mrs Grigson returned to Mr Chinnock and requested that it be provided.  She was provided with Exhibit A52 which showed that as at 1 January 2005, the Head of Primary “Total Annual Salary” would be $88,646.36 inclusive of $79,774.00 salary, $3,340.00 as Country School Allowance, $2,505.00 as Country Complexity Allowance and $3,027.36 as Location Allowance.  The Assistant Principal (Admin) was to receive the 4 year Trained Teacher salary of $57,044.00, plus Assistant Principal’s Allowance of $4,434.00 and Location Allowance of $3,027.36, totalling $64,505.36.  There was no reference to the Assistant Principal receiving the Country School Allowance, the Country Complexity Allowance or the Pilbara Package. 

44      In response to Mr Chinnock’s letter of 11 November 2004, Mrs Grigson wrote to him on 19 November 2004 saying that:

“The position, remuneration and conditions offered are not acceptable to me.  I reserve all my rights under my current contract of employment”.

(Exhibit A32)

45      On 22 November 2004, Mr Chinnock replied to her letter of 19 November 2004 saying:

“I have no real alternative at this point (but) to seek permission from the Personnel Section to advertise the Assistant Principal position, as staffing timelines are very cramped at this time of the year. 

I encourage you to reconsider and I will delay contacting the Personnel Section until 9.00am Wednesday, 24th November 2004.”

(Exhibit A33)

46      Mrs Grigson did not respond to this letter, and on 25 November 2004 Mr Chinnock again wrote to her, this time saying that he needed her acknowledgement that:

“• The position of Head of Primary at St Cecilia’s is redundant as of the end of the 2004 School year.

• You are rejecting the opportunity to be appointed to the Assistant Principal (Admin) position to take effect 1st January 2005 and that as a result of this the School will advertise in the near future to fill this position.”

(Exhibit A34)

47      On 26 November 2004, Mrs Grigson wrote to Mr Chinnock again reiterating that the position, remuneration and conditions offered to her were not acceptable and that she reserved her rights under her current contract of employment (Exhibit A35).

48      In a letter of 30 November 2004, Mr Chinnock advised Mrs Grigson that he would begin the process of advertising the position of Assistant Principal (Administration).  He also indicated that he had instructed the Administrative Officer, Ms Masters, to adjust Mrs Grigson’s salary as of 1 January 2005.  He said that he had done this as he believed an “overpayment situation” would not be in the school’s or Mrs Grigson’s best interest, and that Ms Masters could provide her with the relevant figures.  He also went on to refer to Mr Riley’s email to Mrs Grigson of 25 October 2004 and to the ex-gratia payment referred to therein.  He said “I will arrange for this payment to be made to you through our Payroll Office in Perth, direct to your nominated bank account” (Exhibit A36). 

49      There were then two memoranda from Mr Chinnock to the staff, the first calling for expressions of interest for the position of Assistant Principal (Admin), and the second announcing the changes to the structure of the organisation. 

50      The evidence of Mrs Grigson and Mr Chinnock is that around this period, the two of them met on a regular basis to discuss day-to-day work matters and on many of those occasions Mr Chinnock prompted Mrs Grigson in respect of accepting the Assistant Principal position offered to her. 

51      It appears that Mrs Grigson and Mr Chinnock met on 8 December 2004 and had further discussions about the situation, but Mrs Grigson did not resile from her position.

52      Mrs Grigson gave evidence that she contacted Grace Removals, which normally provided relocation services to Catholic Education Office schools, and arranged for the removal of her personal effects to Perth.  There is no dispute that Grace Removals advised the Catholic Education Office of this arrangement.  The Catholic Education Office advised Mr Chinnock and he, without conferring with Mrs Grigson, contacted Grace Removals and cancelled the uplift arranged by her.  He then wrote to Mrs Grigson by letter dated 9 December 2004, in the following terms, formal parts omitted:

“In recent days you made application, as I understand it, for a relocation allowance to enable you to return from Port Hedland to the Metropolitan area.

A relocation allowance is only payable if you resign or your employment has been terminated.

It is important that I emphasise to you that your employment at the College has not been terminated.  What has happened is that your position as Head of Primary has been made redundant.

Therefore, in the absence of your resignation I have instructed the Catholic Education Office to put a hold on your relocation application at this time, in line with the Remote Area Policy.

However, as set out in my letter of 11 November 2004 to you, the College is pleased to offer you the position of Assistant Principal (Administration) to enable you to continue your substantive teaching duties.

I am keen that you accept the position that has been offered to you.

I had previously sought your commitment to taking up the Assistant Principal position by 19 November 2004.  However, given what transpired yesterday, I shall be pleased if you would let me know whether you will now accept the new position by 9.00 am Monday 13 December as it is important that the planning for the new school year in 2005 be completed as soon as possible.

I look forward to your early response to this letter.”

(Exhibit A39)

53      Also on 9 December 2004, Mr Chinnock wrote to Mrs Grigson in the following terms, formal parts omitted:

“With reference to our meeting yesterday, I provide the following information to you in clarification of your employment status at our College for the 2005 school year.

As previously advised, you were offered a position of Assistant Principal (Admin) at our College commencing in the 2005 school year, which you have declined.  If you would like to reconsider and accept the position, I would be more than happy to cease the advertising and filling of this position, even though the deadline notified to you earlier has since past.  Please advise me by close of business, Friday, 10th December 2004 if you wish to accept.

For your information and reference, I am pleased to provide you with the salary scales for you to undertake this position, which is attached.

If you do not accept the position of Assistant Principal (Admin), your position as a classroom teacher at St Cecilia’s College will take affect from 1st January 2005.  I have provided you with this information verbally in the past, but I am now providing it to you in writing to clarify any misunderstanding you may have in regards to your ongoing employment at our College, and I apologize if this has been the case.  I would be happy to discuss the classroom options with you further, if required.  I am also providing you with the salary scales for this position, for your information and reference.

If you would like to discuss the above information or require further clarification please don’t hesitate to contact me direct.”

(Exhibit A40)

54      This letter attached a schedule headed “Carmelina Grigson AP (Admin) Salary Schedule”, which set out the salary for an Assistant Principal commencing on 1 January 2005, the appropriate allowances, and the classroom teacher’s salary schedule.  It is not clear which of the two letters dated 9 December 2004 came first.

55      On 13 December 2004, Mr Chinnock and Mrs Grigson had a further discussion in which Mr Chinnock asked Mrs Grigson if she intended to reply to his recent letters.  She said that she did not intend to reply any further and did not intend to return in 2005 under the conditions offered.  Mr Chinnock then wrote to her on 14 December 2004 confirming that discussion.  In this letter he said, amongst other things:

“Your statements about not retuning (sic) next year come after my reassuring you, in writing, that the College has not terminated your employment.  I am therefore forced to conclude that you have resolved to abandon your employment at the end of this term.  I will accordingly plan for the 2005 school year without your presence at the College.”

(Exhibit A41)

56      Mrs Grigson’s departure from the school was noted in the school newsletter dated 15 December 2004 and she was referred to in glowing terms (Exhibit A44). 

57      Mrs Grigson then returned to Perth.

58      Mrs Grigson has submitted receipts covering the expenditure incurred by her to return to Perth.  She has also submitted a memorandum to her from the respondent dated 25 May 2004 which set out her long service leave entitlement as being 22.806 days as at 31 December 2004 (Exhibit A50).

59      Mrs Grigson’s evidence is that on 20 March 2005 she gave birth to her third child.  She has not worked since her departure from Port Hedland.  Although she has looked at positions advertised in newspapers and looked at the Catholic Education Office’s website in respect of positions available, she had not made any applications for employment. 

The Parties’ Submissions

60      The applicant says that she had a contract of employment with the respondent by which she was employed as Head of Primary until December 2009 (Exhibit A10).  The respondent abolished this position.  No suitable alternative employment was negotiated between them.  Her employment came to an end by the abolition of the position of Head of Primary.  That termination constituted a dismissal.  She says that in all the circumstances, the dismissal was unfair.  Further, she says that she has been denied the benefit of salary from her contract up to December 2009.

61      Mrs Grigson says she has been denied other benefits from her contract including 22.806 days long service leave and 47 days of sick leave entitlement.  She has also incurred relocation and travel expenses in relocating her family to Perth, a total of $4,869.61.

62      Mrs Grigson acknowledges that if there is an overlap between the claim of unfair dismissal and the denied contractual benefits in respect of the claim for payment of salary up until 2009, then she does not seek to double dip.  She would receive payment up until 2009 and not expect compensation for loss of salary for any period on account of unfair dismissal but says that such costs as the removal and travel expenses incurred by her constitute either a contractual entitlement or a loss compensable in accordance with the unfair dismissal which she suffered. 

63      The respondent says that the primary issue is whether Mrs Grigson was appointed for the period claimed and that is determined by the operative provisions of the Second Deed in clause 5.  The expression contained in the Review Report makes it clear, according to the respondent, that “as a result of the satisfactory review, the second segment” was to be offered to Mrs Grigson.  “The third term was entirely problematic based upon the need to meet conditions, time for which had not arrived.”  (transcript page 161)

64      The respondent says that the execution of the schedules per se has not effected a substantial change to the contractual arrangements between the parties.  Further, Mrs Grigson’s employment conditions were also prescribed by the Independent School’s Teacher’s Award 1976 (“the Award”), the Western Australian Catholic Schools (Enterprise Bargaining) Agreement No. 1 of 2000 (“the EBA”), and the policies and procedures of the Catholic Education Commission of Western Australia (“the policies”), in particular regarding redundancy.  The respondent says that clause 4.3 of the Deeds which provides that the Head of Primary shall implement the policies, guidelines and instructions promulgated by the Catholic Education Commission of Western Australia from time to time means that there must be an acceptance on her part of those policies, guidelines and instructions as applicable to her and thus were an operative part of her employment conditions.  The respondent says that Clause 3.1 of the Deed provided that execution of the Deed by her deemed her to have read and agreed to be bound by the conditions of employment set out therein and in any other external documents which were appended to it.  The respondent accepts, however, that the evidence does not suggest that there were any documents appended to the Second Deed when it was provided to Mrs Grigson, which set out conditions or terms of employment but says that clause 3.1 of the Second Deed, when read in conjunction with clause 4.3, underscores the point that the Award, the EBA and the redundancy policy, as a minimum, formed part of her agreement in her role as Head of Primary.

65      The respondent says that if the Commission finds that Mrs Grigson had an enforceable contract until the end of 2009, then Mrs Grigson’s evidence that she has taken 12 months’ maternity leave in respect of each of her previous children allows a reasonable inference that it is likely, if not highly likely, that she would have done the same in 2005 for the birth of her third child in March 2005. 

66      As to the issue of whether Mrs Grigson had mitigated any loss which might have arisen, the respondent says that a random bundle of newspaper clippings (Exhibit A51) submitted by Mrs Grigson does not demonstrate any support for her claim. 

67      The respondent says that there is no challenge to Mrs Grigson’s performance as a teacher or as Head of Primary and the documents are an endorsement of her in that regard.  On that basis, the respondent says that she would have had no difficulty in obtaining a position equivalent to the Head of Primary in Port Hedland. 

68      The respondent also says that it is clear that as a result of seriously declining numbers at the middle school campus, and with the high level of turnover of students in Port Hedland creating serious difficulty, that a plan was made over a period of time for the closure of the senior campus which ultimately occurred from the commencement of 2005.  The effect of this was the abolition of the position of Head of Primary.  The respondent says that if that is construed as creating a redundancy, then the Award, EBA and policies apply to that situation and, in particular, clause 21. – Redundancy Provisions of the EBA.  The respondent says that whichever provides the greater benefit to Mrs Grigson of the Workplace Relations Act 1996, the Catholic Education Commission’s policy on redundancy or the EBA would be that which applies to Mrs Grigson. 

69      The respondent says that it attempted to provide suitable alternative employment to Mrs Grigson by the offer made to her.  Although “suitable alternative employment” was not defined, the respondent says it does not require that it necessarily be “acceptable” employment.  The respondent does not resile from the fact that there is a measurable difference between the salaries of the positions of Head of Primary and that which Mrs Grigson was offered as Assistant Principal (Administration) but says that while that is an aspect to be considered, it is not to be a determinative aspect. 

70      In respect of the issue of the costs incurred by Mrs Grigson in returning to Perth and the cost of transportation of her personal goods and effects, the respondent says that as Mrs Grigson was not resigning, nor was she being appointed, that the policy on which she relies did not apply to her and she was not entitled to that benefit.

71      In reply, the applicant says that in respect of clause 4.3 of the Second Deed, that merely because the Second Deed required her to implement policies, guidelines and instructions promulgated by the Catholic Education Commission from time to time, it does not mean that they became terms of the contract of employment.  They are not incorporated into the contract either impliedly or expressly.  The contract required that as Head of Primary, Mrs Grigson implement them, but there is no importation of the terms of the policies, the EBA or the Award into her contract.  Mr Stubbs for the applicant points out that the respondent concedes that there was nothing appended to the Second Deed, except the schedules, which would have the effect of importing other conditions of employment into the contract. 

Conclusions

72      I have had the benefit of observing the witnesses as they gave their evidence.  Where there is conflict between the evidence of Mrs Grigson and Mr Chinnock, in particular as to the circumstances and timing of the presentation to Mrs Grigson by Mr Chinnock of the “Review of Mrs Carmelina Grigson” dated November 2001 (Exhibit A9) and the Second Deed (Exhibit A10), I prefer the evidence of Mrs Grigson.  I do so notwithstanding that in Mrs Grigson’s evidence, in examination in chief and in re-examination, she mentioned that Mr Chinnock had said to her during their discussion in March 2002 at her home that the school was extremely hard to staff, to find the appropriate people etc., and that she did not repeat this when asked in cross examination, in particular, when she was asked if there was anything further discussed, she did not mention that.  Nonetheless, Mr Chinnock’s evidence in respect of the time, place and the circumstances under which he presented her with the Review Report (Exhibit A9) and the Second Deed (Exhibit A10) is quite unclear.  He cannot recall those circumstances with any certainty.  He suggested that the offer of continuation of employment through a second term was discussed as part of the debriefing in the presence of Mr Hendriks at the conclusion of the review meeting in November 2001.  He does not recall whether the Review Report was provided to Mrs Grigson by himself personally, whether she picked it up from the school, and whether she was at work at the time or not. 

73      In all of the circumstances, I make the following findings which are relevant, in particular, to the conclusions as to whether or not there was a dismissal and the question of the entitlements arising from the contract.  I find that there was a review undertaken in accordance with the terms of the First Deed in anticipation of the expiration of the first term.  That review was undertaken by Mr Chinnock and Mr Hendriks in November 2001 taking account of the views of relevant people.  The Review Recommendations demonstrate, and I find, that Mrs Grigson was very hard working and dedicated; very supportive and encouraging of staff; had very good organisational skills at all levels; was extremely pastoral and strategic in dealing with parents, students and staff; was very thorough in tasks that were undertaken; was recognised as a practitioner and mentor; was committed to her faith; had a sound educational background; had been responsible for curriculum innovation; was a good listener and communicator, and was enthusiastic about her job.  It was recommended that she “be affirmed” for the contribution that she had made to fulfilling the role of Head of Primary over the previous two years; that she be offered the opportunity to take the second segment of her Deed of Agreement; that there be discussion with her as to an appropriate teaching role associated with the Head of Primary position, and that attention be given to the day to day roles of the college executive members including the Head of Primary. 

74      In accordance with the requirements of the First Deed, a decision was made by the School Board to offer Mrs Grigson at least one further phase of her contract of employment, at least being the second term referred to in clause 5. – Contract of Employment.  The Second Deed was then prepared by Mr Chinnock and his administrative assistant.  Mrs Grigson was provided with the Second Deed (Exhibit A10) by Mr Chinnock at Mrs Grigson’s home on 12 March 2002, when Mrs Grigson was on leave.  Mrs Grigson asked Mr Chinnock whether she was to sign both schedules and he indicated that she was to sign both schedules and she did so.  The Second Deed included two schedules, the first, in sequence, covering the period 1 January 2006 until 31 December 2009.  This was signed by Mrs Grigson on 13 March 2002 and by the Chairperson of the School Board, Mr Cavey, on 12 June 2002.  The second Schedule, in sequence, which covered a period of appointment from 1 January 2002 until 31 December 2005, was also signed by Mrs Grigson on 13 March 2002 and by Mr Cavey on 12 June 2002. 

75      There is no evidence to suggest that Mr Chinnock had not intended to provide to Mrs Grigson the Second Deed with both of those schedules attached, other than the terms of the second recommendation set out in the Review Report (Exhibit A9).  Although there is some suggestion in the evidence of Mr Chinnock that he had some discussion with Mrs Grigson in June of that year, after Mr Cavey had signed the Second Deed, and that there was agreement between himself and Mrs Grigson that what was “activated” was only the second term or, in Mr Chinnock’s words, the next segment of the Deed of Agreement, this was not put to Mrs Grigson.  I find that there is no credible evidence that it was ever suggested to her, or raised with Mr Cavey or anyone else for that matter, either verbally or in writing, that the signing of the schedule covering the period 1 January 2006 until 31 December 2009 was in error.

76      The question which arises, though, is whether the signing of the schedule covering the period to 31 December 2009 meant that the third term in the Second Deed had in fact been offered and accepted and whether this was to be subject to the terms of clause 5. – Contract of Employment.

77      In determining the terms of Mrs Grigson’s employment conditions it is necessary to examine the terms of the Second Deed (Exhibit A10)  which are, for all intents and purposes, identical to those set out in the document which covered the period 1 January 2000 to 31 December 2001, the First Deed.  The Second Deed provides in the Preamble that the purpose of the Deed is to define and clarify the agreed basis of the employment relationship.  That is so.  The contractual arrangements in terms of the period of the application of the Second Deed and arrangements for review are set out in clause 3. – Employment, 3.1 and 3.2, clause 5. – Contract of Employment, clause 6. – Review, and then, by reference to the schedules, certain other aspects.

78      Clause 3. – Employment notes that “upon the execution of this Agreement, the Head of Primary shall be conclusively deemed to have read and agreed to be bound by the conditions of employment set out herein and as set out in such external document, or documents as appended”.  Clearly, there were no documents appended other than the schedules.  Therefore, the schedules take on significance in that, subject to what else the agreement might have to say, Mrs Grigson is bound by the conditions in the Agreement (the Second Deed) and the schedules.

79      Clause 3.2 records that “the parties agree that the term of this Agreement shall commence on the date specified by the Employer and shall continue for a period specified in the Schedule”.  In this case, “the Schedule” is in fact two schedules.  Therefore, according to 3.2, “the term of the Agreement” shall continue to 31 December 2005 to 31 December 2009.

80      Clause 5. – Contract of Employment sets out that there are three contractual terms, the first being for 2 years, the second being for 4 years, and the third being for 4 years.  Clause 5.2 says that subject to the terms of clause 5, the employer may offer a term of contract.  Clause 5.2.1 says that at the completion of the first two years the Head of Primary may be offered a new contract and that that new contract shall be for a period of 4 years commencing on the day following the expiration of the first 2 years.  At point 5.2.3 it provides that a further contract may be offered for a final 4 years commencing on the day following the expiration of the second term i.e. the first period of 4 years.  I note that 5.2.1 says that the second term contract period may be offered at the completion of the first two years, but there is no such provision as to the timing of the offer of a third term.  Clause 5.2.3 simply says when the final period of 4 years would commence, not when it is to be offered.  Clause 5.3 gives the employer sole discretion as to whether or not to offer a new contract term and “shall in any event only offer such a contract Term in accordance with” the condition set out in the clause, being, provided that during the term of the contract the Head of Primary has not committed a serious breach of her responsibilities and, if in the opinion of the School Board and as a result of the review, the performance is such as to qualify her for a new and separate contract of employment.

81      Clause 5.4 says that at the conclusion of the third term the position is to be advertised.  The remainder of clause 5 refers to what is to occur at the conclusion of the third term.  None of those provisions is relevant as they arise only at the completion of the third term. 

82      Clause 6. – Review requires the employer to undertake a formal review of the Head of Primary during at least the second year of the first term and in the last year of the second term and at such time as the employer elects from time to time.  It sets out the scope of any review and by whom it is to be conducted.  At 6.4, it says that the review is to be used as one of the factors to be considered by the employer when determining whether to offer a new contract.

83      There does not appear to be any requirement upon the employer to only offer the third term in the final year of the second term, or that it is to be offered only after a review in the last year of the second term.  There is a suggestion that it was intended to be that way, i.e. by reference to the timing of the review, but it is not prohibited for the employer to do it any other way eg. to offer the second and third terms at the same time. 

84      Clause 5.2 says that subject to the conditions set out in that clause, the employer may offer the Head of Primary a term of contract, and the employer may offer the second term at the completion of the first term and may offer the third term.  In deciding whether to make that offer, it has to consider whether there has been a serious breach of responsibilities, and it has to have undertaken a review of the Head of Primary’s responsibilities.  There is nothing to prohibit the employer in particular circumstances from offering a contract for the second and third term at the same time, albeit I conclude that it was anticipated that the offer of the third term would occur at the conclusion of the second term.  One can well imagine, given the staffing difficulties that there were with the School, that the respondent would wish to ensure that it had and would retain for some years to come, the services of such an exemplary teacher and Head of Primary as Mrs Grigson had demonstrated herself to be, which was recognised in the review, performed by Mr Chinnock and Mr Hendriks. 

85      The provisions of clause 6 which set out the arrangements for the review, likewise say the employer shall undertake a formal review at particular points but does not link the review only to the offer of another term or say that those reviews shall only be for the purpose of determining whether a new contract is to be offered.  Clause 6.4 says that the review will be used as one of the factors to be considered when determining whether to offer a new contract term.  Therefore, I conclude that while a review is one of the factors it is not the only factor, and there is no prohibition upon the second and third terms being offered together following the first review. 

86      Further, my conclusion that the respondent was able to offer Mrs Grigson both the second and third term of the arrangement is fortified by reference to clause 3. – Employment, at 3.2. which provides “that the term of the Agreement shall commence on the date specified by the Employer and shall continue for a period specified in the Schedule.”  In this case, there were two schedules, the latter period covered by them expires on 31 December 2009.  Both were signed by the respondent.

87      Although it is unnecessary to deal with the parties’ intentions, I find that it was the respondent’s intention, and that of Mr Chinnock in advising the School Board, that Mrs Grigson would be offered both the second and third terms.  I say this on the basis that Mr Chinnock was instrumental in the preparation of the Second Deed and the two schedules, made a presentation to the School Board, provided the Second Deed with the two schedules attached, to Mrs Grigson and advised her to sign both schedules.  He presented the Second Deed with the two schedules to the School Board Chairperson for signature and both were signed.  Neither Mr Chinnock nor the School Board advised Mrs Grigson that the respondent believed it was not bound by the period specified in the two schedules.  Nothing was raised in writing with anyone which might suggest that Mr Chinnock, either then or soon thereafter, or at any other time until after the termination, believed that the parties were not contracted for the third term.  The discussions and communications between Mrs Grigson, on one hand, and Mr Chinnock and the Catholic Education Officer, on the other hand, regarding the restructure of the school and the status of Mrs Grigson’s contract, centred on the assertion of the contract being “redundant” or “abolished”, not on any assertion by the respondent of it expiring on any given date.

88      As to the application of the Award, the EBA and the policies of the Catholic Education Office, it is true that there is no capacity for parties to contract out of the entitlements of an award or an enterprise bargaining agreement (Industrial Relations Act 1979, s.114).  However, where parties enter into an agreement that provides conditions which are more beneficial to an employee, then those conditions are to be applied to the employee’s benefit.  That is what occurred in this case. 

89      Further, there is no provision within the conditions of employment which applied to Mrs Grigson by virtue of the Second Deed, which provide for her employment to be terminated due to her position being made redundant.  The Second Deed provided only limited ways for the employment to be brought to an end and they are in circumstances set out in clause 14, i.e. that the Head of Primary may terminate the Agreement prior to the expiration date by giving six weeks’ notice in writing.  There is no provision for the respondent to terminate the employment other than in not offering a new contract, or rather the second or third terms of the contract, on account of the Head of Primary committing a serious breach of his or her responsibilities or as a result of a review finding that the Head of Primary has not discharged his or her responsibilities.  Otherwise the arrangement between the parties would continue until the expiration of the third term.  The only circumstances under which it might come to an end are those specified in the Second Deed or by agreement.  There was no agreement. 

90      There is no suggestion that the position of Head of Primary was not made redundant.  Although the position was made redundant, the employer has no entitlement to declare the contract redundant.  The parties still have a contract between them and nothing within any of the other documents, the Award, the EBA or the policies, overrides the entitlements set out in the Second Deed.  The Second Deed sets out all of the necessary conditions of employment, including the arrangements for termination, leave, and determination of salary.  This contract is complete in itself and would appear to require no additional provisions to give it efficacy (Hawkins v Clayton (1988) 164 CLR 539 at 573).

91      Accordingly, I find that Mrs Grigson had an entitlement to continue employment with the respondent as Head of Primary with the attached conditions for the period until 31 December 2009.  The salary to be paid for that period is set out in the Second Deed by reference to clause 7. – Head of Primary Salary, i.e. to be the salary set out in the Appendix which is to be an amount determined for the school by the Catholic Education Commission.  This salary was subject to review by the employer in accordance with the determination by the Catholic Education Commission provided that the salary was to be no less than that payable to the Head of Primary prior to the review.  There could be adjustment to the salary according to the number of enrolments but that salary could not be reduced, according to clause 7.  Therefore, Mrs Grigson’s salary was to continue at least at the rate applicable to her at the time of the termination of her employment.  Exhibit A52 indicates that it would have been $79,774.00 as a category 2 Head of Primary.

92      The termination of employment came about by the respondent deciding to restructure its organisation.  The position of Head of Primary held by Mrs Grigson was to no longer exist from 1 January 2005.  The school structure was to be replaced by a Principal together with an Assistant Principal (Religious Education) and an Assistant Principal (Administration).  Mrs Grigson was offered the position of Assistant Principal (Administration) from 1 January 2005.

93      There is no reference within any of the documents including the Second Deed, the Award, the EBA or the policies which sets out any right on the part of the respondent to place Mrs Grigson in a suitable alternative position.  There is no definition of what might constitute a suitable alternative position.  There are decisions and awards of various tribunals, industrial agreements and legislation which define “suitable” or “acceptable alternative employment”.  They specify that the test to be applied is an objective one and usually includes consideration of the wage or salary of the new position being as close as possible to that being lost; the level of duties, responsibilities, qualifications and experience being at a similar level, and the hours of work and location not being to the employee’s detriment (see Termination, Change and Redundancy Case (1984) 294 CAR 175, (1984) 295 CAR 673; Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1989) 31 IR 365; Public Sector Management Act 1994, s94(6) and Public Sector Management (Redeployment and Redundancy) Regulations 1994, Reg. 3)

94      It is quite clear, though, that the position offered to Mrs Grigson was a lesser position than that of Head of Primary.  This is confirmed by the job description for the new position requiring lesser duties than those contained within the requirements of her position as Head of Primary, it involved a greater teaching load, and the salary package difference between the position offered to her and that for the Head of Primary was approximately $24,000.00 per annum, not $17,500 referred to in Exhibit A27 (see Exhibit A52).  This could not be considered to be a minor difference.  The new position was not in overall charge of the primary school in the way the Head of Primary was.  I find that the position offered to Mrs Grigson was significantly less in salary, conditions and status.  Accordingly, it was not a suitable or acceptable alternative position by any measure.

95      As Mrs Grigson had a contract of employment with the respondent as Head of Primary, and that position was abolished, it does not mean that Mrs Grigson was automatically required to take on an Assistant Principal position.  Her contractual entitlement was the higher position. 

96      It is clear that Mr Chinnock wished to have Mrs Grigson continue in employment with the respondent even in the lesser position.  The respondent offered to her an ex gratia payment for her acceptance of the lesser position, which was not acceptable to her.  Given her contractual entitlement, it is not surprising that a lesser salary and position, plus $3,365.00, was not acceptable.  The respondent, through Mr Chinnock, continued to try to urge Mrs Grigson to accept the lesser position.  Prior to November 2004, Mrs Grigson had made clear her rejection of the lesser position.  The ex gratia payment was then offered to her.  On no less than 6 occasions between 11 November and 14 December 2004, Mr Chinnock wrote to Mrs Grigson in varying tones from urging to threatening.  In addition, over the period he raised the issue with her in a number of discussions.  Mr Chinnock continued to speak with Mrs Grigson, write to her and, ultimately, cancelled her arrangements to uplift her possessions from the town and attempted to insist that she take on the position.  He acted as if her acceptance of a lesser position was a fait accompli by instructing that her salary be adjusted as of 1 January 2005, and saying that he would arrange for the ex-gratia payment offered in Mr Riley’s email of 25 October 2004 to be paid directly to her bank account (Exhibit A36).  In the end, this constituted hounding of Mrs Grigson to accept the lesser position notwithstanding that she was unequivocal in her rejection of that position, and was entitled to do so.  The respondent and the Catholic Education Office appear to have believed that they were entitled to require her to take up the lesser position and were completely at a loss to understand what their obligations were to Mrs Grigson.  In the end, Mrs Grigson was adamant, as was her right, in rejecting a lesser position than she was contracted with the respondent to enjoy. 

97      Accordingly, the termination of her employment came about because of the abolition by the respondent of the position contracted between the parties for Mrs Grigson to perform.  She was not simply engaged as an employee, she was engaged as Head of Primary.  For there to have been a change to the contract of employment would have required her consent.  She did not consent.  There was no right on the part of the respondent to unilaterally change the contract between the parties to place Mrs Grigson in another position.  Nor was there the right on the part of the respondent to unilaterally terminate the contract between the parties other than in accordance with the terms of the contract (Twaddle trading as Mount Hospital Pharmacy v Byrne (2003) 83 WAIG 5 at 12 (FB)).  This is what the respondent effectively did.  There has been a dismissal by the respondent (Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611 at 616). 

98      As to the manner of the dismissal, I have noted earlier that Mr Chinnock continued to raise the issue with Mrs Grigson, both in writing and verbally, and to attempt to push her to take a new and lesser position, and to treat it as a fait accompli.  The respondent’s conduct in cancelling the uplift of her goods when it was clear that her intention was to leave town was also unfair.  Mr Chinnock also advised her that her expressed intentions led him to conclude that she had resolved to abandon her employment (Exhibit A41).  She was hounded.  There has not been a fair go all round as required in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia ((1985) 65 WAIG 385 at 386).

Amounts Due

99      In respect of the claim of denied contractual benefits, Mrs Grigson claims she is due payment of salary at the rate of $79,774.00 (Exhibit A52) until 31 December 2009. 

100   In this case, Mrs Grigson had a fixed term contract to 31 December 2009.  It is not necessary in a case such as this that she perform the work, and the employer is under no obligation to provide work (Tony Welsh v Laurence Hills (1982) 62 WAIG 2708 at 2709).  I find that the respondent has breached the contract and by virtue of this breach Mrs Grigson was not allowed the benefit of working for the unexpired period of the contract and thus receiving the salary attached to that unexpired period.  According to Perth Finishing College Pty Ltd v Susan Watts ((1989) 69 WAIG 2307 at 2316-17), the employee is entitled to receive the benefit of the remuneration attached to the unexpired period of the fixed term contract.  Therefore, Mrs Grigson is entitled to payment of salary at the rate of $79,774.00 per annum until 31 December 2009.

101   The parties have not specifically addressed whether Mrs Grigson is entitled to the allowances paid to her for remote towns, country complexity allowance and location allowance.  It would, on first blush, appear that these were not due to her on the basis that she did not remain in Port Hedland and was therefore not incurring the conditions one imagines were relevant to those allowances (see Chevrontexaco Australia Pty Ltd (Formerly Chevron Australia Pty Ltd)  -v-  Anthony Richard Ross (2004)(84 WAIG 3120).  However, the parties are to confer and advise if they are not able to resolve that matter.

102   There is one deduction which ought to be made from this award and that is in respect of the period relating to the birth of Mrs Grigson’s third child.  In 2002, Mrs Grigson took 12 months’ maternity leave in respect of the birth of her first child, and again from the middle of 2003 to the middle of 2004, she took 12 months’ maternity leave for her second child.  She has given evidence of having given birth to her third child on 20 March 2005.  Mrs Grigson says she does not know how much maternity leave she might have taken had she been employed, although she thought it might have been 6 weeks.  However, Mrs Grigson was not employed from the end of the 2004 school year and at the time of hearing, she had made no efforts to find employment. 

103   Based on the fact that Mrs Grigson took 12 month’ maternity leave in relation to each of her first and second children, I find that, on the balance of probabilities, she would have taken 12 months’ maternity leave in respect of her third child.  Accordingly, she would not have been paid for that period in accordance with the Second Deed.

104   The respondent says that Mrs Grigson would have benefited from the payment of 6 weeks’ pay on account of its Paid Maternity Leave policy (Exhibit R1), so one would assume the respondent would make that payment to her as if she had been employed.

105   As to her claim for long service leave, the Second Deed provides that long service leave is portable within the Catholic Education system, and no particulars were argued before the Commission as to the payout of any entitlement.  Given my earlier finding regarding the dismissal, the parties are to confer and advise the Commission if they are unable to resolve this aspect of the claim.  The same applies in respect of sick leave, albeit there is no provision within the Second Deed for any accrual to be paid out on termination. 

106   As to the question of the unfair dismissal, it would be impracticable to order reinstatement as the position held by Mrs Grigson has been abolished.  Therefore, the question of compensation for loss or injury arises, as does the issue of mitigation.  Mrs Grigson’s evidence was that she was only interested in jobs as Head of Primary in Perth, and these were the only jobs she looked at.  Given that she had been working in Port Hedland, and prior to that in Busselton, to so restrict herself creates some difficulty for her to demonstrate that she has mitigated her loss.  In any event, she made no applications for any positions.  Mrs Grigson says that she was confident that in due course she would get a position as Head of Primary.  There was no suggestion in her evidence of any damage to her job prospects or to her reputation by the dismissal.  She has suffered no injury in that regard.  There is no other evidence of injury. In any event, any claim for compensation for loss in respect of salary, if established, would be double counting, and Mrs Grigson does not seek this in the event of her denied contractual benefits claim succeeding, which it has.  She does, however, claim loss in respect of her relocation costs.  I am satisfied that these costs for removals of $3,818.81 and accommodation expenses of $88.00 have been incurred as a result of the unfair dismissal.  Accordingly, they ought to be paid to her. 

107   There is also a claim for travel allowance in the amount of $960.00 for the approximately 1600 kilometres from Port Hedland to Perth, in accordance with the Remote Area Package (Exhibit A48).  Clause 3.6 – Travel Provisions provides for an allowance payable on appointment or on resignation.  There is no provision for an entitlement on dismissal, or at the expiration of a contracted period.  However, Mrs Grigson would have incurred costs for travel which constitute part of the loss she suffered.  Accordingly, the parties ought to confer regarding any amount due.

108   The parties are to confer regarding the amounts to be paid to Mrs Grigson as a consequence of these Reasons for Decision and advise the Commission within 14 days of the outcome of those discussions.