WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE ST CECILIA'S COLLEGE SCHOOL BOARD

APPELLANT

-and-

Carmelina Grigson

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Commissioner J H Smith

 Commissioner S M Mayman

HEARD Wednesday, 2 August 2006

DELIVERED THURSDAY, 17 AUGUST 2006

FILE NO. FBA 10 OF 2006

CITATION NO. 2006 WAIRC 05293

CatchWords Industrial Law (WA) - Appeal against order of Commission - Application for orders in relation to alleged harsh, oppressive or unfair dismissal and/or outstanding contractual benefits - Employee's position made redundant and employment terminated - Construction of terms of contract - Application of an award or enterprise bargaining agreement to contract of employment - Assessment of damages for wrongful early termination of fixed term contract - Remittal for purpose of adding to evidence - Appeal allowed - Independent School Teacher Award 1976, The Western Australian Catholic Schools (Enterprise Bargaining) Agreement 1 of 2000 - Industrial Relations Act 1979 (WA) (as amended), s29, s41(4), s49, s,49(6a), s114(1), Division 2B Part II

Decision Appeal to be allowed, submissions to be made as to appropriate orders

Appearances

Appellant Mr J F I Curlewis (of Counsel), by leave

Respondent Mr G Stubbs (of Counsel), by leave

Reasons for Decision

THE ACTING PRESIDENT:

The Appeal and the Order Appealed Against

1          This is an appeal which has been instituted under s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).

2          The appeal is against an order which was made by the Commission on 10 March 2006.  The order was made after the Commission heard the respondent’s application for orders in relation to her alleged harsh, oppressive or unfair dismissal and/or outstanding contractual benefits.  This application was made to the Commission pursuant to s29 of the Act.

3          The Commission published reasons for decision on 24 November 2005.  The reasons concluded with a direction that the parties confer about the amounts to be paid to the respondent as a consequence of the reasons.  Following the parties conferring, a further hearing and the filing of written submissions, the Commission published supplementary reasons for decision on 2 March 2006.  As stated, the Commission’s order was then made on 10 March 2006.

4          The order which was made by the Commission was that it “hereby:-

1. DECLARES that Ms Carmelina Grigson was unfairly dismissed by the respondent.

2. DECLARES that reinstatement is impracticable.

3. ORDERS that the respondent shall pay to Carmelina Grigson the following amounts being contractual entitlements:

(a) 4 years salary at the rate of $79,774.00 per annum.

(b) 6 weeks’ salary, being $10,228.38, as paid maternity leave.

(c) 22.806 calendar days’ pay as accrued long service leave.

(d) Expenses of:

(i) $3,818.81 for removals,

(ii) $88.00 for accommodation,

(iii) $960.00 for travel.

4. The amounts set out in:

(a) paragraph (a) of Order 3 shall be paid within 28 days.

(b) paragraphs (b), (c) and (d) of Order 3 shall be paid forthwith.

5. The application otherwise be, and is hereby dismissed.”

5          The appeal against the order was instituted on 28 March 2006.

6          Subsequently, on 11 April 2006, on the application of the appellant pursuant to s49(11) of the Act, I ordered the stay of the operation of order 3(a), until the hearing and determination of the appeal.

The Factual Background

7          The dispute at both the hearing and the appeal was largely about the contractual arrangement which had been entered into between the appellant and the respondent.  The respondent had been employed by the appellant as the Head of Primary at St Cecilia’s College in Port Hedland.  It was agreed that she was engaged in this position from 1 January 2000 until 31 December 2001.  It was also not in dispute that the respondent’s employment with the appellant in this position continued until late December 2004.  It was also not in dispute that the position of Head of Primary at St Cecilia’s College was made redundant by the appellant, commencing from the beginning of the school year in 2005.  The appellant’s position was that it was entitled to make the position redundant and that the termination of the respondent’s employment consequent upon this was neither unfair nor in breach of contract.

8          The respondent’s position was that she had a fixed term contract of employment which continued until 31 December 2009.  The respondent also contended the contract could not be lawfully terminated at an earlier time by the appellant on the basis of redundancy.  The respondent contended that the early termination of her employment by the appellant constituted both an unfair termination and one which was in breach of the contract of employment.

9          Additionally, a major area of dispute at first instance was whether the duration of the contract of employment was until 31 December 2009, as contended by the respondent, or 31 December 2005, as contended by the appellant.

10       A summary of the basis of the dispute between the parties is as follows.  In setting out this summary, I have to a considerable degree relied upon the reasons for decision of the Commission at first instance.  In those reasons, the Commission set out in considerable detail the factual background.  It was not argued by either party to the appeal that the Commission had been in error in setting out the factual background.

11       The respondent commenced her employment with the appellant as a primary school teacher in 1993.  After occupying a number of positions within the Catholic Education system in Western Australia, including with the appellant, the respondent was offered and accepted the position of Head of Primary with the appellant at St Cecilia’s College in Port Hedland for the years 2000 and 2001.  The terms of this employment relationship were set out in a Deed of Agreement (the First Deed).  A schedule to the First Deed was executed by both the respondent and the Chairperson of the School Board on 24 November 1999.

12       There was a preamble to the First Deed.  Clause 1 of the preamble provided an overview of Catholic Church established schools.  Clause 2 of the preamble set out the duties and responsibilities of the Head of Primary.  These were in general terms under the headings “Educational, Pastoral, Theological and Managerial”.  Clause 5 of the preamble to the First Deed was as follows:-

“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.”

13       The First Deed proper contained 15 clauses.  Particularly relevant to the dispute between the parties were the following clauses:-

“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”)

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.”

14       An appendix to the First Deed set out the respondent’s base salary, a country complexity allowance and a district allowance.  The appendix provided that, in addition, the Head of Primary was “eligible to receive all allowable benefits from the Pilbara Package.  For 2000, the Head of Primary will not have a classroom teaching load”.

15       Also attached to the First Deed was a schedule.  The schedule included the following:-

“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”

16       As stated earlier the schedule was signed by the respondent and the Chairperson of the School Board on 24 November 1999.

17       With respect to clause 3.1 of the First Deed, it was common ground that there were no “external” documents appended to the First Deed.

18       Other terms and conditions contained in the First Deed were about superannuation, leave entitlements, professional development, travel allowances and dispute resolution.

19       In accordance with the terms of clause 6 of the First Deed, a formal review of the respondent’s performance was undertaken in August 2001.  Evidence about this process was given at first instance by the respondent and Mr Anthony Chinnock.  Mr Chinnock gave evidence for the appellant.  Mr Chinnock was the Principal of St Cecilia’s College at Port Hedland from 2001 until the end of 2004.  A Mr Geoff Hendriks from the Catholic Education Office also assisted with the review process.

20       The respondent was on leave from October to December 2001.  Her evidence was that she did not receive advice as to the outcome of the review or a new contract of employment by the end of the 2001 school year.  Accordingly, she corresponded with Mr Hendriks about this subject.  Mr Hendriks responded to the respondent to the effect that the review had been finalised and he did not know why she had not been advised accordingly.

21       For his part, Mr Chinnock said that, with administrative assistance, he had prepared a new contract of employment for the respondent which was also entitled “Deed of Agreement” (the Second Deed).

22       The respondent was on maternity leave from 1 January 2002 until 31 December 2002.  (The evidence does not appear to explain why the respondent was on maternity leave prior to the term of her contract of employment being extended.  For the purposes of the appeal, however, this is not material).

23       The respondent’s evidence, which was accepted by the Commission at first instance, was that on 13 March 2002, Mr Chinnock attended at her home and presented her with a copy of both the written review report and the Second Deed.  The review report was very positive about the respondent’s work.  The last page of the report included a recommendation that the respondent be offered the opportunity to “take up the second segment of her Deed of Agreement”.  The review report was signed by Mr Chinnock and dated November 2001.

24       The terms and conditions of employment set out in the Second Deed were as described by the Commission at first instance “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”.  This included the terms which have been quoted earlier from the First Deed.

25       Attached to the Second Deed was an “Appendix to the Agreement” which provided a space for the salary to be specified.  This was not however completed.  There was also reference to allowances including country complexity district allowances.  This was also not completed.  The appendix also said that the Head of Primary “will be eligible to receive all allowable benefits from the Pilbara package”.  The appendix also said that “Teaching Load is not to exceed 0.4 teaching load”.

26       It was again common ground that there were no “external” documents appended to the Second Deed.

27       The respondent’s evidence, accepted by the Commission at first instance, was that attached to the Second Deed given to her by Mr Chinnock on 13 March 2002 were two schedules.  The first attached 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”

28       The second attached schedule contained the following:-

“ITEM 1: THE HEAD OF PRIMARY:

 Mrs Carmelina Grigson

ITEM 2: THE SCHOOL:

 St Cecilia’s College

SECOND TERM

PERIOD OF APPOINTMENT: 01/01/2002        until      31/12/2005”

29       It was the evidence of the respondent that the schedule which referred to the later period in time was attached to the Second Deed in front of the other schedule.  Nothing however turns on this.

30       Both schedules provided places for the signature of the respondent and the Chairperson of the School Board.  At the time when the schedules were handed to her, neither had been signed by the Chairperson of the School Board.

31       The evidence of the respondent, accepted by the Commission at first instance, was that she asked Mr Chinnock whether both schedules should be signed, and he said yes.  In answer to a question by her counsel as to whether Mr Chinnock had said anything about “how long the school was offering you employment for”, the respondent said: “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”.  (Transcript p14)

32       The respondent’s evidence was that she took the Second Deed to consider it overnight.  After Mr Chinnock left her house, she read the Second Deed and signed the two schedules in the place provided.  The respondent then returned the Second Deed including the two schedules to Mr Chinnock at St Cecilia’s College the next day.

33       The two schedules to the Second Deed were not signed by the Chairperson of the School Board until some months later.  They were however both signed by the Chairperson of the School Board on 12 June 2002.  Mr Chinnock said that he was aware the Chairperson had signed both schedules.

34       The respondent 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.

35       There was evidence that during the course of 2003 the appellant was reviewing the structure of St Cecilia’s College in Port Hedland.  One reason for this was significantly declining enrolments in the secondary school.  An intention emerged to close the secondary school.  As a consequence it was decided that the position of Head of Primary would be abolished. Instead, the structure of senior personnel at the primary school would become a Principal, Assistant Principal (Administration) and Assistant Principal (Religious Education).

36       By letter dated 23 March 2004, Mr Chinnock advised the respondent of the anticipated new structure.  The letter intimated that the respondent would become an Assistant Principal.

37       After receiving advice from her union, the respondent replied to Mr Chinnock by letter dated 18 May 2004.  The letter referred to the terms of the “deed of agreement which applied from 1 January 2002 until 31 December 2009”.  The letter said 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”.  The letter cited “Section 3. Employment, subsection 3.2” and then said the respondent did not agree to the suggested salary, and terms and conditions contained in Mr Chinnock’s letter.  The respondent sought confirmation that the conditions of her employment were those contained in the Deeds of Agreement and that those conditions continued to apply.  The respondent said she did not receive a reply to her letter dated 18 May 2004.

38       The other witness called for the respondent, Philip Thomas Riley, was the Co-ordinator, Employee and Community Relations Team with the Catholic Education Office from July 2003.  He gave evidence about his discussions with school staff about the restructuring of St Cecilia’s College in Port Hedland.  Included as part of this was a meeting with the respondent on 12 August 2004.

39       The reasons of the Commission at first instance set out in some detail the negotiations which continued between the appellant and the respondent from August to December 2004.  It is unnecessary for the purposes of deciding the appeal to recount this evidence.  In summary, the appellant maintained that the position of Head of Primary was being abolished and wished to offer the respondent the position of Assistant Principal (Administration), commencing on 1 January 2005.  The respondent did not indicate any acceptance of this position and maintained her rights as under the First Deed and Second Deed.  The salary package for the position for Head of Primary was found by the Commission to be approximately $24,000.00 higher than that of Assistant Principal (Administration).

40       The issue of the respondent’s position with the appellant was not resolved by mid-December 2004 and the respondent then made arrangements to leave Port Hedland and for the removal of her personal effects to Perth.

41       A further meeting between Mr Chinnock and the respondent on 13 December 2004 did not resolve matters.  The respondent told Mr Chinnock she did not intend to reply to the most recent letters which had been written to her by Mr Chinnock and did not intend to return to the school in 2005 under the conditions offered.  This discussion was confirmed by Mr Chinnock in a letter he wrote to the respondent on 14 December 2004.  The letter said he was “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”.

42       The respondent’s departure from the school was noted in the school newsletter dated 15 December 2004.  The respondent then returned to Perth.

The Findings and Conclusions of the Commission

43       The observations, findings and conclusions reached by the Commission with respect to the issues for determination are contained in the following summary.  At the end of each point I will indicate in brackets the paragraph number(s) of the reasons for decision of the Commission in which the point is made.  In summarising the Commission’s findings and conclusions, it is not necessary to set out all of the factors which the Commission said that lead it to reach the finding or conclusion it did.

(a)           Where there was any conflict between the evidence of the respondent and Mr Chinnock, the evidence of the respondent was preferred.  ([72])

(b)           The Commission said the question which arose was 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.  ([76])

(c)           The Commission concluded that the appellant was contractually able to and did offer the respondent both the second and third term of the agreement.  This conclusion was supported by clause 3.2 of the Second Deed and the fact that there were two schedules with the later period covered by and expiring on 31 December 2009.  These schedules were both signed by the appellant.  ([86])

(d)           Although stating that it was unnecessary to deal with the parties’ intentions, the Commission observed that neither Mr Chinnock nor the School Board advised the respondent that the appellant believed it was not bound by the period specified in the two schedules.  ([87])

(e)           The appellant had argued that it was entitled to terminate the respondent’s employment on the basis of redundancy as this was provided for in the Independent School Teacher Award 1976 (the Award), The Western Australian Catholic Schools (Enterprise Bargaining) Agreement 1 of 2000 (the EBA) and the Policies and Procedures of the Catholic Education Commission of Western Australia (the Policies).  The Commission said, referring to s114 of the Act, that parties could not contract out of the entitlements of an award or an enterprise bargaining agreement.  The Commission said that 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”.  ([88])

(f)            There was no provision within the conditions of employment which applied to the respondent by virtue of the Second Deed, which provided for her employment to be terminated due to her position being made redundant.  ([89])

(g)           Although the position of Head of Primary was made redundant, the appellant was not entitled to declare the contract redundant.  Nothing within the contents of the Award, the EBA or the Policies overrode the entitlements set out in the Second Deed.  The Second Deed as a contract was complete in itself and did not require any additional provisions to give it efficacy.  The Commission cited Hawkins v Clayton (1988) 164 CLR 539 at 573.  ([90])

(h)           The respondent therefore had an entitlement to continue employment with the appellant as Head of Primary until 31 December 2009.  The salary to be paid to her for that period was set out in clause 7 of the Second Deed.  An exhibit tendered indicated the salary at the time of termination was $79,774.000.  ([91])

(i)            None of the documents including the Second Deed, the Award, the EBA or the Policies set out in any right on behalf of the appellant to place the respondent in a suitable alternative position.  ([93])

(j)            The way in which Mr Chinnock communicated with the respondent with respect to her accepting the position of Assistant Principal “constituted hounding of [the respondent] to accept the lesser position notwithstanding that she was unequivocal in her rejection of that position, and was entitled to do so”.  ([96])

(k)           The termination of employment came about because of the abolition by the appellant of the position contracted for between the parties for the respondent to perform.  Accordingly there had been a dismissal by the appellant.  The Commission cited Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611 at 616, in support of this conclusion.  ([97])

(l)            Given the manner of dismissal and the conduct of Mr Chinnock in relation to it, there had not been a fair go all-round as the Commission said was “required in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia ((1985) 65 WAIG 385 at 386)”.  ([98])

(m)        The respondent had a fixed term contract to 31 December 2009.  The contract was breached by the appellant and accordingly the respondent was not allowed the benefit of working for the unexpired portion 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, [the respondent] is entitled to payment of salary at the rate of $79,774.00 per annum until 31 December 2009.”  ([100])

(n)           The Commission said one deduction which ought to be made from the denied contractual benefits claim was in respect of the period relating to the birth of the respondent’s third child on 20 March 2005.  The Commission concluded, on the basis of her past practice, that it was likely that the respondent would have taken 12 months’ maternity leave in respect of her third child.  Accordingly the respondent would not have been paid for that period in accordance with the Second Deed.  With respect to this period, the appellant would have paid the respondent six weeks’ pay in accordance with its paid maternity leave policy.  ([102]-[104])

(o)           With respect to the unfair dismissal, it was impractical to order reinstatement given the abolition of the respondent’s position.  The Commission said that therefore the question of compensation for loss or injury arises, as does the issue of mitigation.  The Commission said however that “any claim for compensation for loss in respect of salary, if established, would be double counting, and [the respondent] does not seek this in the event of her denied contractual benefits claim succeeding, which it has”.  ([106])

44       The Commission concluded its reasons by referring to some of the other claims for costs and allowances which had been made by the respondent.  The Commission then made the direction to confer which I have referred to earlier.

45       The supplementary reasons which I have mentioned earlier dealt with the quantum of the denied contractual benefit for loss of payment of salary, and claims for payment relating to allowances, maternity leave, removal expenses, superannuation and long service leave.  In relation to the denial of contractual benefits by non payment of salary the Commission said that the salary should be calculated on the basis that it was $79,774.00.  (Supplementary reasons at [28]).  The supplementary reasons at [29] to [32] show that the appellant raised the issue of whether the respondent had mitigated her loss in relation to the denied contractual benefit claim for non payment of salary.  The Commission referred to its initial reasons for decision at [100] and said that it did not intend to revisit the matter.

The Grounds of Appeal

46       The notice of appeal contained seven grounds.  It is appropriate to consider each of these grounds in turn.

Ground 1

47       This ground asserts the Commission “erred in fact and in law in finding that the appellant had offered and that the responded had accepted both the second and third terms of the Deed of Agreement”.

48       As argued the ground was directed towards criticism of the factual finding of the Commission that there had been an offer and acceptance of a contract of employment, evidenced by the Second Deed, which extended over the periods from 1 January 2002 until 31 December 2005 and 1 January 2006 until 31 December 2009.

49       In Sealanes (1985) Pty Ltd v Foley and Buktenica (2006) 86 WAIG 1239, at [19]-[21], the Full Bench considered the basis upon which it could interfere with findings of fact made by the Commission at first instance.  It is unnecessary for the purposes of this appeal to review or repeat what is there stated.

50       The written submissions of the appellant set out the evidence which it argued demonstrated that the Commission’s finding was “against the weight of evidence”.  All of the evidence set out in the appellant’s written submissions on this issue has been considered.  Some of this evidence was about what Mr Chinnock’s intentions were in having the Second Deed prepared.  In my opinion, it is not relevant to focus upon what Mr Chinnock’s intentions were.  What is relevant is an objective assessment of what the parties did.  In this respect, the Commission properly referred, in its reasons, to the fact that the appellant through its agent Mr Chinnock provided the Second Deed to the respondent with both schedules attached, covering two periods of appointment.  According to the evidence of the respondent, which was accepted by the Commission, Mr Chinnock told her upon enquiry that both schedules should be signed.  The respondent did this before returning the Second Deed and both schedules to Mr Chinnock.  The Chairperson of the School Board on 12 June 2002, and on behalf of the appellant, then signed both schedules attached to the Second Deed.  At no time was it asserted that this was done in error.

51       The appellant also referred to its intention referred to in the review report to offer to the respondent the “second segment of her Deed of Agreement”.  I do not think this is particularly cogent evidence.  The review report was dated November 2001.  The presentation to the respondent and the signing by her of the two schedules to the Second Deed occurred in March 2002.  The actions of the appellant in presenting both schedules to the respondent in the manner in which this was done by Mr Chinnock and in it signing both schedules in June 2002, strongly suggest a change of intention from November 2001 to March 2002 and beyond.

52       The written submissions of the appellant on this ground also refer to some of the evidence of Mr Chinnock about what happened when he said he discussed the review report and Second Deed with the respondent.  To some extent this evidence was in conflict with that of the respondent.  The evidence of the respondent was preferred by the Commission where it conflicted with that of Mr Chinnock.  The appellant did not attempt to argue that the Commission had committed an appealable error in making this finding.  Additionally, no such error is apparent from the reasoning of the Commission.

53       The appellant also asserted that the respondent in her evidence had acknowledged that “before a new and separate contract could be offered, there would have to be a further review”.  The submission referred to transcript page 59, line 7, during the cross examination of the respondent.  The evidence of the respondent at this point was however about the offer of a contract covering the second period of appointment, not the third.  It was put to the respondent by counsel for the appellant that the effect of the First Deed was that she “would complete the first term of two years and assuming that you hadn’t done any wrong – that’s 5.3.1- there was then to be a review before a new and separate contract would be offered”.  The respondent said she agreed with this proposition.  As stated this question and answer refers to the offer of the second period of employment, not the third.  Therefore it does not support the contention made by the appellant in its written submissions, with respect to the third period of appointment.  Moreover, consistent with what I have earlier stated, the respondent’s understanding of the contractual arrangement was irrelevant to both the question of what term of appointment had been offered and accepted, and the meaning of the First or Second Deed.

54       The appellant also referred to the respondent’s letter to Mr Chinnock dated 18 May 2004 which I have referred to earlier in these reasons.  It was argued that the contents of this letter showed that the respondent “did not necessarily consider she had a contract extending until 2009”.  Again this submission suffers from the defect that the respondent’s opinion as to the duration of her contract of employment was not relevant.  In any event, however, the primary position of the respondent as expressed in this letter was that the “deed of agreement”, “applied from 1 January 2002 until 31 December 2009”.  In my opinion the contents of the letter do not support this ground of appeal.

55       In my opinion this ground of appeal, as argued, has not been established.

Ground 2

56       This ground of appeal was drafted in a fairly convoluted fashion.  As argued the ground seemed to address two issues.  The first was whether the words used in the First Deed were such that the appellant was contractually prevented from offering the third term of the contract pursuant to clause 5 of the First Deed, until such time as a review had been conducted of the respondent’s performance during the second term, in accordance with clause 6 of the First Deed.  The second issue argued was that if the First Deed and the Second Deed were properly construed, the conclusion which the Commission ought to have reached was that the respondent had a contract of employment with the appellant which only extended for the duration of the second term, from 1 January 2002 until 31 December 2005.

57       To consider this ground it is necessary to consider the meaning of the First Deed and the Second Deed and the contractual arrangement which was engaged in by the parties.

58       The process involved in a court construing a contract was considered by Gleeson CJ in Wilson v Anderson (2002) 213 CLR 401 at [8].  There, the Chief Justice said:-

“The law of contract seeks to give effect to the common intention of the parties to a contract. But the test is objective and impersonal. The common intention is to be ascertained by reference to what a reasonable person would understand by the language used by the parties to express their agreement.  If the contract is in the form of a document, then it is the meaning that the document would convey to a reasonable person that matters. … In the case of a will, or a deed, or other written instrument, the object of a court is to discover, and give effect to, the intention of the testator, or parties; but it is in the meaning of the instrument, discovered according to established principles of construction, that such intention is found.” (Footnotes omitted)

59       Essentially therefore it is a process of considering the language used in the First Deed and the Second Deed to ascertain the meaning of the documents as reflecting the intentions of the parties.

60       In my opinion, the parties were not contractually prohibited, by the terms of the First Deed from entering into a contract of employment for both the second and third terms, at the time and in the circumstances in which this occurred.  That is, there was nothing prohibiting the parties from entering into such a contract in 2002, and prior to any review report having been compiled with respect to the respondent’s work performance during the second term.

61       The appellant supported this ground of appeal by reference to the words used in clause 5 of the First Deed.  Reference was made to the use of the words “the employer may offer to the Head Primary a term of contract”, in clause 5.2.  It was argued that as this did not refer to the offering of plural  “terms of contract”, any purported offer and acceptance of “terms of contract” evidenced by the schedules to the Second Deed were unenforceable.  I do not accept this contention.

62       The terms of clause 5.2 of the First Deed are permissive and not restrictive.  The clause sets out what the appellant, as the employer, “may offer”.  The clause does not attempt to set out things which the employer may not offer.  The clause did not prevent the making of an offer by the appellant employer outside its terms.  Accordingly, even if the appellant succeeded in establishing that the offering of a contract of employment to 31 December 2009 was outside the terms of the First Deed, this would not make such a contract invalid or unenforceable.

63       Similarly, in my opinion, the terms of clause 5.3 of the First Deed did not prevent the appellant from making the offer to the respondent which the Commission found that it did.  With respect to clause 5.3.1, the respondent had not during the first term of the contract committed a serious breach of her responsibilities.  Secondly, with respect to clause 5.3.2, the appellant in making the further offer of employment it did, clearly formed the view that the performance of the respondent was such as to qualify her for a new and separate contract of employment.

64       With respect to clause 5.3.2 the Second Deed did constitute “a new and separate contract of employment”.  It was just that, as found by the Commission, this contract covered the time periods up to and including 31 December 2009.

65       The timing of the reviews which were to take place pursuant to clause 6 of the First Deed do not alter my conclusions.  There is nothing in the First Deed which, in my opinion, provides that the appellant is prevented from making an offer of employment to cover the period up to 31 December 2009.  As noted by the Commission at [80] of its reasons,  clause “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”.  In my opinion, because of this the First Deed seems to have contemplated the prospect that the duration of the contract of employment could be extended to 31 December 2009, at a time earlier than any review report prepared in accordance with clause 6.

66       In my opinion, the contractual arrangement between the parties following the agreement evidenced by the Second Deed was as follows.  Clause 3.2 of the Second Deed sets out the “term of this agreement”.  The agreement was for the employment of the respondent as Head of Primary at St Cecilia’s College.  Clause 3.2 said 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”.  There were two schedules to the Second Deed.  Accordingly, sense can only be made of clause 3.2 if one has regard to the period specified in both schedules.  This period was, compendiously, from 1 January 2002 until 31 December 2009.  Accordingly, in my opinion, the parties agreed by the Second Deed that the agreement would continue until 31 December 2009.  The “term” was the period of time over which it had been agreed the respondent would be the Head of Primary at St Cecilia’s College.

67       This conclusion is reinforced when one has regard to both schedules which were signed by the parties.  The schedules referred to a “period of appointment”.  The “period of appointment” was 1 January 2002 until 31 December 2005 in one schedule and 1 January 2006 until 31 December 2009 in the other.  This was therefore, in my opinion, the total period over which the respondent was appointed as Head of Primary of St Cecilia’s College.

68       The contents of clause 5.1 of the Second Deed was no longer operative by the time of its execution.  This is because the period of the “initial contract” of the respondent as referred to in that clause had already passed by the time of the agreement evidenced by the Second Deed.  Additionally, the contents of clauses 5.2 and 5.3 were also not operative by the time of the execution of the Second Deed.  The parties by that time, by their actions in making the agreement which constituted the Second Deed for the period up and including 31 December 2009, had already passed through the contractual stages envisaged by these clauses.

69       In my opinion, it has not been established that the Commission erred in reaching the conclusion it did with respect to the duration of the contract of employment.  For this reason I would not uphold this ground of appeal.

Ground 3

70       This ground in effect asserted that the Commission erred in reaching the conclusion that the appellant was not lawfully entitled to terminate the contract of employment on the grounds of redundancy.  It was argued that the terms of the EBA and the Policies allowed this to occur and specified the procedures which would follow if it did.  It was submitted the Commission erred in its reasoning contained in paragraph [88] of the reasons for decision, which I have summarised at [43](e) above.

71       The EBA was registered as an “industrial agreement” by the Commission pursuant to Division 2B of Part II of the Act.  There was no dispute that the EBA bound the appellant and the respondent pursuant to its terms and s41(4) of the Act.  Clause 21 of the EBA contained what was described as “Redundancy Provisions”, including the payment of severance pay where “a school proposes to make one or more teaching positions redundant”.

72       Although the contents of the EBA applied to the employment of the respondent by the appellant, the terms of the EBA did not become terms of the contract of employment.  They applied to that employment by virtue of the contents of the EBA and the provisions of the Act.  (See by analogy Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 420-421).

73       Additionally, there was nothing stated in the First or Second Deed which incorporated by reference the terms of the EBA into and as terms of the contract.

74       Section 114(1) of the Act relevantly provides that a person shall not be freed or discharged from any liability or penalty or from the obligation of any “industrial agreement”. It also provides that any contract entered into which purports to have this effect is “null and void”.

75       In this instance, as correctly found by the Commission, the contract of employment did not contain any provisions entitling the appellant to terminate the contract on the basis of redundancy.  The respondent’s argument that the appellant was not lawfully entitled to terminate the contract of employment on the basis of redundancy did not involve an attempt to discharge the respondent from any “liability”, “penalty” or “obligation” as contained in the EBA and referred to in s114(1) of the Act.  This is because the contents of the EBA with respect to the redundancy provisions provided no liability, penalty or obligation upon the respondent.  In my opinion, for example, it would be a misconstruction to regard the reference to the redundancy provisions in the EBA as being an obligation on behalf of the respondent to accept that the appellant was lawfully entitled to terminate the contract of employment on the basis of redundancy.  The EBA simply set out the processes and payments which would follow in the event of a lawful redundancy taking place.

76       There is nothing to prevent a contract of employment from being entered into which contains conditions which are superior to those contained in an award or industrial agreement.  This commonly occurs with respect to the payment of wages.  As to the basis upon which the appellant was entitled to terminate the contract of employment with the respondent, the contract (constituted by the Second Deed) arguably contained terms superior to that of the EBA.  (I use the word arguably as it may be doubted that the EBA provided an entitlement for the employer to terminate upon redundancy, as opposed to, and as stated, the processes and payments which would follow if a lawful redundancy occurred).  This was because the contract contained no entitlement for the appellant to terminate the contract on the basis of redundancy.  To this extent, the terms of the contract applied and the Commission did not err in its conclusion on this issue as explained in its reasons.

77       With respect to “the Policies”, the appellant attempted to argue that the Catholic Education Commission of Western Australia Policy Statement on Termination of Services of Staff Members – Redundancy (AB 198, the Redundancy Policy) was part of the contract of employment.  There is however nothing expressly in the First Deed and Second Deed which states this.  Also, the Redundancy Policy was not appended to the Second Deed as it might have been pursuant clause 3.1.

78       The appellant referred to clause 4.3 of the Second Deed to try and support its argument that the Redundancy Policy was incorporated into the contract of employment.  Clause 4.3 of the Second Deed is in the same terms as clause 4.3 of the First Deed quoted above.  This refers to the Head of Primary implementing policies promulgated by the Commission.  (This was defined in clause 2.1.3 of the Second Deed to mean the Catholic Education Commission of Western Australia).  The Redundancy Policy did not however constitute a policy which the appellant could implement.  Instead it imposed obligations on the employer in the circumstances in which it applied.  It did not therefore come within the terms of clause 4.3 and become part of the contract of employment.

79       The appellant also sought to support its argument with respect to the Redundancy Policy by reference to a letter which the respondent wrote to the then Principal of St Cecilia’s College dated 29 September 1999.  This letter makes reference to the respondent having studied amongst other documents, “the Conditions of Employment of Teachers in Catholic Schools in WA (1994)”.  The letter stated that the respondent was happy to accept the position then offered to her being that of “Primary Campus Coordinator at the Primary School Campus from 1 January 2000 – 31 December 2002”.  This letter refers to a different time period and different position from that covered by the Second Deed.  It also had not been proved that the reference to the “Conditions of Employment of Teachers in Catholic Schools in WA (1994)” referred to in this letter, included the Redundancy Policy or some similar policy.  The letter does not provide any support for the appellant’s argument that the Redundancy Policy formed part of the contract of employment between the appellant and the respondent.

80       In my opinion, the appellant has not established that the conclusion reached by the Commission was in error and ground 3 should not be upheld.

Ground 4

81       This ground asserts the Commission “erred in fact and in law in finding that it was the intention of the appellant to materially alter the terms and conditions of the contract and offer the respondent both the second and third terms of the contract at the same time”.  The ground then sets out four pieces of evidence which it asserts support this conclusion.

82       The written submissions about this ground repeated those which were made about ground 1.  Ground 4 has not been established, in my opinion, for the reasons which have been given with respect to grounds 1 and 2.

83       Paragraphs 4.1 – 4.3 of the ground refer to the contents of the review report.  Reference is made in paragraph 4.3 to the recommendation in the review report that the respondent be “offered the opportunity to take the second segment of her Deed of Agreement”.

84       Paragraph 4.4 of the ground says that the School Board had made a decision to offer the respondent the second term of the period of employment.  The paragraph says that there was no evidence that the School Board had resolved to come to any different or other view.  In my opinion, this proposition cannot be accepted.  The evidence before the Commission given by the respondent as to what Mr Chinnock said to her when presenting her with the Second Deed and the two schedules constituted such evidence.  So too did the words contained in the two schedules and their signature by the Chairperson of the School Board in June 2002.

85       In my opinion, ground 4 has not been established.

Ground 5

86       Ground 5 was that:-

“Having found that the Respondent’s contract was unilaterally terminated by reason of the Respondent abolishing the Appellant’s position, the learned Commissioner was wrong in law in treating any claim for future remuneration as a contractual benefit when what she should have found was that in the circumstances as found the claim was one for damages for breach of contract.”

87       In its written submissions in support of this ground the appellant said that any “contractual benefit denied to the respondent, was the right to be employed and paid by the appellant on a month to month basis alternatively school term by school term basis until the end 2005, and thereafter, if applicable until the end of 2009”.  In my opinion, this misdescribes the contractual arrangement constituted by the Second Deed.  The Second Deed did not provide the respondent with a right to be employed and paid on a monthly or term basis.  It set out the agreement that she be employed until 31 December 2009.  By terminating the agreement before that period expired, other than in accordance with its terms, the appellant denied the respondent the contractual benefit of the opportunity to be paid her salary in accordance with the Second Deed until 31 December 2009.

88       Although not argued in the appellant’s submissions, to the extent that this ground may assert the Commission did not have jurisdiction to award, in effect, damages, in dealing with a denial of contractual benefits claim, any such assertion is contrary to the Industrial Appeal Court decision of Matthews v Cool or Cosy Pty Ltd (2004) 136 IR 156 at [24], [26], [27], [49], [54], [64], [73], and [76].

89       This ground has not been established.

Grounds 6 and 7

90       It is convenient to consider these two grounds together.  Both of the grounds attacked the amount which was awarded to the respondent with respect to her denial of contractual benefits claim for loss of salary.  As set out earlier, the Commission ordered the respondent be paid by the appellant four years salary at the rate of $79,774.00 per annum.

91       Ground 6 in effect asserted that in assessing the amount of this denied contractual benefit the Commission should have considered “all relevant circumstances including whether the respondent had mitigated any loss said to have been suffered”.

92       Ground 7 asserted that having regard to evidence which was detailed in the ground, the Commission should have found that there was no, or alternatively nominal, loss of contractual benefits.  The evidence detailed was said, in effect, to support the conclusion that the respondent was likely to find a similar position to that of Head of Primary at St Cecilia’s College.

93       Earlier in these reasons I have quoted from the reasons of the Commission at paragraph [100] and its reference to the Perth Finishing College decision of the Full Bench.  In my opinion, however, and with respect, the Commission did not fully set out the effect of the Perth Finishing College decision.  The authority does not stand for the proposition that in a denial of contractual benefits claim when there has been a wrongful early termination of a fixed term contract, the employee is “entitled to receive the benefit of the remuneration attached to the unexpired period of the fixed term contract”.

94       Relevantly, Sharkey P (with the concurrence of the other members of the Full Bench in Perth Finishing College) at 2315 said:-

“If the employment is for a fixed term not subject to termination by notice, damages will be equivalent to the salary over the entire period (see Re English Joint Stock Bank; Yelland's Case (1867) LR 4 EQ 350), subject on the same authority, to reduction for likelihood of re-employment within the remaining contractual period.”

95       In my opinion, in assessing the denial of contractual benefits claim the Commission should have but did not engage in this process.  It did not consider any reduction for the likelihood of re-employment by the respondent to 31 December 2009.  To that extent therefore the Commission erred.

96       I note that in Law of Employment, Macken and others, Fifth Edition, Law Book Company 2002 at page 299 the entitlement to damages for breach of a fixed term contract of employment by the employer is stated in similar terms, although Perth Finishing College is not cited.  Macken also makes reference to other contingencies which may reduce the quantum of damages.

97       This passage of Macken was quoted with approval by Hely J in Reynolds v Southcorp Wines Pty Ltd (2002) 115 IR 152 at [37] and also cited with approval by Barrett J in Rothemberger v Lumley General Insurance (2003) 58 NSWLR 288 at [29].

98       The respondent sought to argue that in the circumstances of this fixed term contract, the payment of the balance of the salary due over the remainder of the term of the contract was in the nature of a liquidated sum which could be recovered accordingly.  This submission was said to be supported by the decision in Abrahams v Performing Rights Society Ltd [1995] ICR 1028.  In my opinion, however, Abrahams is clearly distinguishable.  The conclusion reached by the Court of Appeal depended upon the terms of the contract of employment in that case.  Those terms are not repeated in the respondent’s contract of employment.  In particular, the contract of employment in Abrahams contained a clause that the employee was entitled to two years notice of termination, or salary in lieu of notice, for the early termination of a fixed term contract of employment.  The Court of Appeal held that the employer would have acted in accordance with the contract if it summarily terminated the employee’s employment and paid money in lieu of notice.  The Court of Appeal held that in such circumstances this was an amount the employee was contractually entitled to and there was no duty to mitigate loss.  (See for example page 1039 at G/H).  As stated by Macken at page 299, Abrahams stands for the proposition that where “there is an express provision for payment in lieu of notice, rather than sue for damages for breach of the contract … if the employer fails to make the payment, the employee may be in a position to enforce the payment in lieu of notice as a contractual debt …”.

99       The present position is not on all fours with Abrahams and the conclusions reached in that case by the Court of Appeal do not assist the respondent.  Additionally, Barrett J in Rothemberger at paragraph [30] held that the damages to be paid in a case of wrongful early termination of a fixed term contract are not a liquidated sum.

100    In this case the Commission was assessing a denial of contractual benefits, or damages, claim with respect to a fixed term contract of employment that spanned the period 2002 to 2009.  The contract was wrongfully terminated at the end of 2004.  The hearing before the Commission was concluded on 10 June 2005.  Therefore the period over which the contract should have run, if it did so according to its terms, spanned the period both before the hearing and in the future until 2009.  The assessment exercise by the Commission therefore involved both looking backwards as to what had occurred to date and looking forwards as to what might happen until the end of 2009.  With respect to an assessment of damages suffered prior to the hearing, the Commission should have had regard to whether the respondent had mitigated her loss.  (See for example Perth Finishing College at 2313, and see generally regarding mitigation the Sealanes decision referred to above).  With respect to the assessment of what might happen in the future, the Commission should have taken into account the likelihood of other employment and other damages reducing contingencies, within the remaining contractual period.  The Commission did not engage in this exercise and accordingly the appeal should be upheld.

101    It remains to be considered what orders should appropriately be made by the Full Bench.  Counsel for the respondent submitted that if the Full Bench reached this conclusion it would be appropriate to remit the matter back to the Commission for further hearing and determination.  It was submitted that it would be appropriate for the Commission to receive additional evidence as to what had occurred subsequent to the hearing in June 2005.  It was submitted that if this evidence was heard then the Commission could more justly assess the quantum of the denial of contractual benefits claim.  This submission was opposed by counsel for the appellant.

102    In my opinion, it would not be appropriate to remit the matter to the Commission at first instance on the basis submitted by counsel for the respondent. The Commission at first instance was obliged to asses the denial of contractual benefits claim on the basis of the evidence before it.  The fact that I have found the Commission erred in its approach to this assessment does not mean the respondent should have the opportunity of providing updated evidence to the Commission.  Although in at least a colloquial sense this would, as counsel for the respondent submitted, be just, the requirement of justice generally involves a finality to litigation.  This element of what is just will not be enhanced by adopting the course suggested by counsel for the respondent.

103    Section 49(6a) of the Act provides that the Full Bench is not to remit a case to the Commission after an appeal unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.  In my opinion, this is a case where the Full Bench ought not remit the case to the Commission at first instance but itself assess the quantum of the claim.  This is because the Full Bench is in as good a position as the Commission at first instance to make an assessment of the denial of contractual benefits claim on the basis of the evidence which has been given.

104    In considering the quantum of the denial of contractual benefits claim, I have considered, as requested by the parties, the written submissions made to the Commission at first instance on this issue.  These submissions do not however address the quantification of the denial of contractual benefits claim in the way in which I have outlined above.  Neither was the issue addressed in the oral or written submissions made to the Full Bench.  In my opinion, the issue should be addressed by written submissions filed by the parties within 14 days.

105    In my opinion a Minute of Proposed Orders reflecting these reasons should be issued.  If any party contends that in lieu of written submissions a further hearing should be convened then they may make these submissions in writing during the period within which they will be advised that they may indicate a desire to speak to the Minute.

COMMISSIONER J H SMITH:

106    I have had the advantage of reading the reasons for decision of His Honour the Acting President.  I agree with him in the conclusions he has reached and have nothing further to add.

COMMISSIONER S M MAYMAN:

107    I have had the advantage of reading in draft form the reasons for decision of His Honour the Acting President.  I agree with him in the conclusions he has reached and have nothing further to add.