Elton v Bywater Medical Management Pty Ltd
[2011] QDC 114
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- Unreported Judgment
- Elton v Bywater Medical Management Pty Ltd[2011] QDC 114
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Elton v Bywater Medical Management Pty Ltd[2011] QDC 114
Elton v Bywater Medical Management Pty Ltd[2011] QDC 114
DISTRICT COURT OF QUEENSLAND
CITATION: | Elton v Bywater Medical Management P/L [2011] QDC 114 |
PARTIES: | ROSLYN ELTON (Plaintiff) V BYWATER MEDICAL MANAGEMENT PTY LTD (ACN 114 267 613) (Defendant) |
FILE NO/S: | 1604/08 |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 23 June 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 May 2011 |
JUDGE: | Dorney QC, DCJ |
ORDERS: | 1.That the defendant pay to the plaintiff damages in the sum of $9,873.28, together with interest at the rate of 5% per annum from 3 April 2008 until 3 October 2008 and thereafter at 10% per annum.2.That the plaintiff have judgment against the defendant on the defendant’s Counter-claim;3.That both parties have leave to file written submissions, if any, by 4.00 pm on 28 June 2011 with respect to calculations of interest and to costs. |
CATCHWORDS: | Employment – termination – reasonable notice or mandatory statutory notice – whether employer breached duty of confidentiality, fiduciary duty or statutory duty Acts Interpretation Act 1901, s 13 Administrative Decisions (Judicial Review) Act 1977 Corporations Act 2001, ss 57A, 58, 183, 1317E, 1317H, 1317J, 1337E, 13174 Industrial Relations Act 1988 Workplace Relations Act 1996, ss 661 Angas Law Services Pty Ltd (in liq.) v Carabelas (2006) 226 CLR 507 Bognar v Merck Sharp & Dohme (Australia) Pty Ltd [2008] FMCA 571 Burns v MAN Automotive (Australia) Pty Ltd (1986) 161 CLR 673 Grout v Gunnedah Shire Council (No 2) (1985) 58 IR 67 Macauslane v Fisher & Paykel Finance Pty Ltd [2003] 1 Qd R 503 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Quinn v Jack Chia (Australia) Limited [1992] 1 VR 567 Rankin v Marine Power International (2001) 107 IR 117 Shari-Lea Hitchcock v TCN Channel Nine Pty Ltd (No 2) Stewart v Nickels [1999] FCA 888 Windross v Transact Communications Pty Ltd [2002] FMCA 145 |
COUNSEL: | A Reed for the plaintiff S Fisher, solicitor, for the defendant |
SOLICITORS: | Just Us Lawyers for the plaintiff Neumann Turnour Lawyers for the defendant |
Introduction
- [1]On 3 April 2008 the plaintiff, Roslyn Elton, had her employment with the defendant, Bywater Medical Management Pty Ltd (“Bywater”), terminated by it. She was, at that time, employed as a Practice Manager for Bywater’s Oxley practice. The plaintiff claims damages for wrongful dismissal based upon an alleged failure by Bywater to provide reasonable notice of the termination.
- [2]Bywater, in its pleaded defence, did not rely upon a right to summarily terminate, even though that issue is raised in its written submissions. Rather, the defendant, in its Second Further Amended Defence, pleaded that four week’s notice was reasonable in the circumstances and that the payment by the defendant to the plaintiff of four week’s salary in lieu of notice discharged any further monetary obligation. In particular, paragraph 2 of the Second Further Amended Defence of the defendant clearly states that the defendant denies that the conduct in terminating and making the “notice payment” constituted a summary dismissal of the plaintiff.
- [3]Bywater’s reliance upon four week’s being reasonable is based upon s 661 of the Workplace Relations Act 1996 (Commonwealth).
- [4]The defendant has counter-claimed that it has suffered loss and damage, relying upon breach of confidence, breach of fiduciary duty and breach of s 183 of the Corporations Act 2001 (Commonwealth).
Background
- [5]It is not in dispute that the defendant gave to the plaintiff on 3 April 2008 a letter of termination dated that date. It is further not in dispute that, thereafter, Bywater paid the plaintiff the equivalent of four week’s salary.
- [6]The plaintiff was first employed by Bywater as a Specialist Receptionist on 1 January 2005. Then, in August 2005 she was engaged as the Practice Manager for the whole of the 3 medical practices conducted by Bywater. The duties were those set out in Exhibit 1. This was then the subject of a written 6 month agreement, dated 7 August 2006; but then continued after that date. On 18 January 2008 Bywater appointed the plaintiff as Practice Manager for part only of the medical practices then being operated by Bywater, becoming the Practice Manager for the Oxley practice. The relevant documents regarding the appointments in August 2006 and January 2008 became, respectively, Exhibits 2 and 3. Exhibit 2 is a letter from Bywater to the plaintiff dated 7 August 2006 and Exhibit 3 is a letter from Bywater to the plaintiff dated 18 January 2008. Neither of those documents, on and from six months from 7 August 2006, contained any term of appointment dealing with giving of notice by either the employer or the employee to terminate the employment relationship.
- [7]Although the appointment as Practice Manager for Oxley involved the acceptance by the plaintiff of a lower rate of remuneration, it is clear that the Oxley practice, which involved both a medical centre and a specialist medical centre, was an important position, particularly because the plaintiff, at the relevant time, was personally engaged in discussions with the Canossa Hospital, including the overseeing of the development of the new medical centre there (involving liaison with builders and suppliers) and the development of the specialist and general medical practice by recruiting new staff and recruiting visiting medical practitioners. The latter aspects are set out in Exhibit 6 (which is the Certificate of Service given by Bywater to the plaintiff and dated 4 April 2008).
- [8]It is also not in contest that, in the position of Practice Manager for Oxley, the defendant paid the plaintiff a salary of $51,376.00 per annum, or $988.00 per week, exclusive of occupational superannuation contributions.
- [9]Important to the background also is that, in or about October 2006, Dr Greg Norman became sole director of Bywater. In the end, it was the decision of Dr Norman acting for Bywater which was the effective cause for the plaintiff’s termination in April 2008.
- [10]The defence’s counter-claim, as pleaded, relied upon an email sent by the plaintiff subsequent to the termination of her employment. In its Second Further Amended Defence and Counter-claim that email is pleaded to have been sent on or about 3 April 2008. As the trial progressed, it became clear that the email was sent on 13 April 2008 at 9.52pm. That will have consequences on much of the defendant’s pleadings concerning the counter-claim.
Reasonable Notice
- [11]In the defendant’s Second Further Amended Defence, it admitted paragraph 4 of the Amended Statement of Claim. That alleged that reasonable notice was a term implied by law.
- [12]But, by paragraph 3 of the defendant’s Second Further Amended Defence, the defendant relied upon s 661(2) of the Workplace Relations Act, alleging that because the plaintiff’s service period was more than 3 years, but not more than 5 years, and that the plaintiff was older than 45 years of age, the plaintiff was entitled only to receive payment of four week’s notice in accordance with the notice entitlements under that Act: see s 661(2)(a) and (b). While it is possible to read paragraph 3 as alleging that reasonable notice of that period satisfies such an implied term, the contentions in written and oral form substantially relied on the statutory period as mandatory and unchangeable.
- [13]For its part, the plaintiff relied upon the very many cases and the facts that state that there are a number of factors which need to be weighed in determining reasonable notice. Such factors include: the nature and duration of the employment; the status and importance of the position; the salary; the employee’s age; the employee’s degree of job mobility; the expected duration of employment; the professional standing of the employee; what the employee gave up to take up the employment; and the expected period of time it would take the employee to obtain alternative employment: see, for a relevant summary, Sappideen, O'Grady and Warburton: Macken’s Law of Employment (6th edition) (2009) at 269-272.
- [14]As well, the content of reasonable notice is to be determined at the date when the notice is given: see Quinn v Jack Chia (Australia) Limited [1992] 1 VR 567 at 580. Hence, evidence which the defendant attempted to lead about its practice later concerning notice was ruled irrelevant.
- [15]As agreed, the plaintiff had worked for the defendant for over three years. Over two and a half years of that involved employment in senior management positions, although the change in January 2008 is correctly characterised as the plaintiff accepting a termination of her then position as overall Practice Manager and being re-employed as the Practice Manager for Oxley at a lower (although not greatly significantly different) salary.
- [16]The status and importance of the position in which she was employed when her employment was terminated was shown by the fact that it was still a senior management position. Again, as earlier observed, the plaintiff’s duties involved managing the largest of Bywater’s medical centres and exercising considerable responsibility for the new practice centre at Oxley in its “start-up”. Exhibit 4, although it was used by the defendant to attempt to establish alleged inefficiencies in the plaintiff’s actual management, shows the many functions that were part and parcel of the exercise to effect this “start-up”.
- [17]It must be remarked that the plaintiff’s annual salary at the date of termination is, as conceded by the plaintiff, an apparently modest amount. But, in a case such as this, its effect really is in the eventual sum of money that will be claimable for the number of weeks leave for which appropriate notice is determined to be reasonable. I accept the submission by the plaintiff that greater importance should be given to status and responsibility in this case rather than the extent of remuneration in the determination of this issue of reasonable notice.
- [18]The plaintiff was 56 at the time of termination, being born on 10 January 1952.
- [19]Although the plaintiff gave evidence that equivalent positions were not readily available, her own evidence about the efforts she made to obtain substituted employment do show that there was suitable alternative employment available after some months. Concerning this matter of mobility, Holmes J (as she then was), with whom McMurdo P and White J (as she then was) agreed, in Macauslane v Fisher & Paykel Finance Pty Ltd [2003] 1 Qd R 503 held that the fact that the employee was able to obtain alternative employment within a specific period after termination must be doubted as constituting an independent factor to be taken into account, because the period of reasonable notice must be determined as at the time when notice is given: at 517 [27]. Even so, Holmes J remarked that it might, at best, provide some indication of the employee’s mobility between employers: at 517 [27]. Here, I find that it does provide an indication of mobility of a person as a Practice Manager involved in medical practices. Even so, it is but one factor.
- [20]As for an expected duration of the employment but for this termination, it is impossible to disregard the actual evidence led, without objection, at trial that from the defendant’s perspective there were issues about workplace relationships in so far as the plaintiff and some of the other employees of Bywater were concerned. Necessarily, given other approaches to the problem, these may have been able to be resolved. Certainly, as the plaintiff has contended, no issue has been raised on the pleading that the matters amounted to misconduct justifying summary dismissal. Such pleadings govern the conduct of this case. Overall, I find that there may well have been issues that needed resolution if this employment had not been terminated when it was, but that that did not play strongly with respect to determining what would have been reasonable notice in all of the circumstances. It is not a case, as many are in similar such conditions, of dealing with a five or ten year contracts of employment.
- [21]As for what the plaintiff gave up, her evidence was to effect that she left a former secure position, although only to take the position of a Specialist Receptionist, when her services where sought by this employer in 2005.
- [22]I have been referred to many cases which were proposed as being comparable decisions to this one. Noting that White J in Macauslane held that minds may well differ, and reasonably, as to what might be reasonable notice in any set of circumstances (at 511 [5]), I conclude that six months constituted a reasonable period of notice in this case.
- [23]While it might well be thought that the plaintiff’s concession, in cross-examination, that she was of the opinion that she could give four week’s notice for termination at her behest might be thought to circumscribe what the Court can do based on the notion of reciprocity, it is clear from the judgment of Holmes J in Macauslane that there is no underlying pattern of reciprocity so far as notice in Australian employment law is concerned: at 514 [18]. As remarked by Holmes J, at the highest, the notion of reciprocity may constitute as a factor to be taken into account in determining what is reasonable notice, particularly where a very substantial period of notice is required from the employee, with a correspondingly lengthy requirement being attributed to the employer: at 515 [21]. That circumstance does not exist here. Consequently, it is my view that the position of the employer here, concerning a need to hire a replacement, is very different from that of an employee seeking alternative employment.
- [24]But such reasonable notice can only apply if either s 661(2) of the Workplace Relations Act does not require, without exception, a statutory period of notice or does not otherwise impose, as a very strong factor in determining reasonable notice, a template for the circumstances that exist here.
- [25]Thus, it is necessary to consider what that Act imposes on, or requires as a factor influencing the terms of, the relationship in question.
Statutory Period of Notice
- [26]It is accepted by both parties that if the Workplace Relations Act does impose a statutory term of notice which cannot be avoided by an agreement between the parties containing an implied term of reasonable notice, then the salary proffered, and accepted, in lieu of notice conforms with the requirements of s 661.
- [27]The defendant, who raised this particular argument, relied primarily upon a decision in the Federal Magistrates Court of Bognar v Merck Sharp & Dohme (Australia) Pty Ltd [2008] FMCA 571. There, O'Sullivan FM distinguished an earlier case from the same Court (namely, Windross v Transact Communications Pty Ltd [2002] FMCA 145). The criticism made in Bognar was that the earlier decision did not appear to involve a consideration of the impact of the “statutory minimum” in the Workplace Relations Act or the application of an award provision providing for an “actual” rather than a “minimum” period of notice: at [114].
- [28]The trouble with Bognar is that it was involved, in essence, with the application of an award provision which did provide for an actual rather than a minimum period of notice. So much appears for the consideration by O'Sullivan FM at [125] – [134]. Any further consideration in that case of s 661 is obiter.
- [29]For the plaintiff, the primary case relied upon was Grout v Gunnedah Shire Council (No 2) (1985) 58 IR 67. The plaintiff also relied upon Stewart v Nickels [1999] FCA 888.
- [30]I find the decision of Moore J in Grout to be of great assistance. Although he was considering the predecessor to the Workplace Relations Act, he was considering the section of the Industrial Relations Act 1988 (Commonwealth) which was in substantially similar terms. As analysed by Moore J, the section in question was in a part of the Act “which concerns the minimum entitlements of employees”. The relevant section was expressed to be a prohibition on termination unless the specified notice was given. Accordingly, if no notice was expressly agreed between an employer and employee, then the analogous section “does not operate to limit the period of notice that a Court would imply as reasonable notice by reference to the criteria that the common law has developed when determining damages for wrongful dismissal”: at 80. This was stated to be in contrast to sections in materially different terms which invest the employer with a statutory right to terminate irrespective of what the common law contractual rights of the parties, whether express or implied, are. When one examines, closely, the Part in which section 661 is placed, it is entitled “Minimum entitlements of employees”. By s 13(1) of the Acts Interpretation Act 1901 (Commonwealth), the headings of a Part into which any Act is divided “shall be deemed to be part of the Act”. Thus, if any ambiguity arises from the terms of s 661 by the use of the words “must not terminate” unless the “required” period of notice is given, or where the required amount of compensation instead of notice has been given or paid, then that ambiguity should be resolved in favour of there being merely a minimum standard set, rather than a mandatory requirement being placed upon the employment relationship. As context and purpose are important in interpretation, the context clearly provides that the purpose is that minimum standards are to be set. As remarked in the majority judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, in determining the question of purpose, regard must be had to “the language of the relevant provision” and “the scope and object of the whole statute”: at 390-391 [93].
- [31]Furthermore, it cannot be held that, when such a “minimum” period is set, it provides a benchmark for what is reasonable in all of the circumstances.
Failure to Mitigate the Damages
- [32]Although the defendant attempted to argue this issue on the basis of remoteness, it is clear that the issue in question here is whether the plaintiff has taken reasonable steps in mitigation. The treatment by Brennan J (as he then was) of the issues of remoteness and mitigation in Burns v MAN Automotive (Australia) Pty Ltd (1986) 161 CLR 673 was under the rubric of remoteness. In that consideration Brennan J held that foreseeability extends until it would be unreasonable for the injured party to fail to act to mitigate loss, with the onus of proving such a failure being on the party in breach. Since, in mitigation, the onus is on the party not in breach, the context does not assist here; or if it does, it simply shows that the issue of remoteness continues until such time as the time that mitigation would impose. Since the issue here is really not one of remoteness but of mitigation, nothing assists by reliance upon this analysis by Brennan J, in the circumstances of a termination of employment.
- [33]The defendant has also relied upon a novus actus interveniens, seizing upon the plaintiff’s own conduct as severing the causal link between the damage and the period of reasonable notice of termination. This matter is based upon the contention that the plaintiff has not proved that she was not able to return to full-time employment during the relevant period, or that she fully elected to retire from the work force.
- [34]The plaintiff called Dr Maloney, whose report became Exhibit 16. The cross-examination of Dr Linda Maloney, a general practitioner, did not go to any of the fundamental issues. Dr Maloney saw the plaintiff on the day after her termination, namely, 4 April 2008. The diagnosis from the beginning was that the plaintiff suffered a combination of an anxiety disorder and depression and, according to Dr Maloney, the plaintiff did not suffer from any other condition that made her unfit to work. The diagnosis was that these two conditions were the ones that made her medically unfit for employment and began after the termination was effected on the day before. Additionally, dealing with her return to work after April 2008, it was this practitioner’s opinion that the return to work on the advice of a psychologist did not change the opinion that the plaintiff remained unfit to work, at least until December 2009, and only then because she remained on medication which enabled her to work.
- [35]The cross-examination went to Dr Maloney not dealing with the issue of the plaintiff’s application to SunSuper to access her superannuation in or about the first month after her employment with Bywater was terminated. But the cross-examination did not suggest that if the doctor had been told about the application to access her superannuation by the plaintiff she would have, in any way, changed her medical opinion.
- [36]From my review of the evidence of Dr Maloney, taken as a whole, and the evidence of the plaintiff, I conclude that they show that the plaintiff did not fail to mitigate her loss. I accept that she applied for and received payments from her superannuation fund based upon an expressed intention at the time to retire. But I find that that expressed intention to retire was one which was entirely consistent with the diagnosis reached by Dr Maloney. It was only after that time, following upon consultation with the psychologist, Dr Judith Sheraton, that the plaintiff made attempts to return to work, tentative though they were, and partly unsuccessful though they were.
- [37]Because the plaintiff did attempt to mitigate her loss, the sums of money that she did earn in the relevant six months’ period are to be taken into account on the debit side in the final assessment of what her damages are.
Damages for Wrongful Termination
- [38]I accept that it is appropriate that the plaintiff’s entitlement to damages includes an entitlement for any loss of superannuation benefits because, as stated by Holmes J in Macauslane, on any view, upon entering a contract of employment an employer assumes a legal obligation imposed by the relevant Commonwealth legislation to pay superannuation, with the contributions to be made by the employer to the employee constituting the performance of that obligation, and not merely being some additional benefit conferred: at 518 [30]. Thus, the loss of such a benefit during the period of reasonable notice arises directly from an employer’s breach of contract in failing to give the required notice, or make payment in lieu: also at 518 [30].
- [39]No issue has been taken about the appropriate level of superannuation contributions being, at the appropriate time, at 9%. It will therefore be necessary to calculate such an additional loss to determine the final damages.
- [40]In accordance with Rankin v Marine Power International (2001) 107 IR 117, all such damages are to be calculated on the gross value of the salary: at 156 [368]. From the initial calculation of the loss of salary and loss of superannuation benefits, there needs to be deducted the annual leave payment made on termination, as well as the termination payment already received and the amounts received from alternative employment during the relevant six month period.
- [41]The damages are therefore calculated as follows:
| Loss of Salary for six months | $25,688.00 | |
| Loss of Superannuation Benefits | $2,311.92 | |
| Four weeks’ payment by defendant | $3,952.00 | |
| Annual leave paid on termination | $3,235.64 | |
| Earnings from alternative employment for six months | $10,939.00 | $18,126.64 |
| Damages | $9,873.28 |
- [42]Interest has been claimed in the Amended Statement of Claim at 10% per annum from 3 April 2008.
- [43]Since damages were accruing during the six month period from 3 April 2008 to 3 October 2008, interest should only be allowed at the rate of 5% per annum between those dates. Interest thereafter is allowed at 10% per annum.
Confidential Company Information
- [44]Partially because of the defendant’s wrong identification of the date of the plaintiff’s email being 3 April 2008 rather than 13 April 2008 and partly due to the evidence that I have accepted, I hold that the defendant, the plaintiff by counter-claim, has failed to establish that the plaintiff used any “confidential” company information, for the reasons to be next canvassed.
- [45]Accepting that the plaintiff owed a duty of confidentiality to Bywater as an employee – as the plaintiff has admitted in her Amended Answer to Counter-claim – it is important to identify whether what is to be claimed to be confidential was, in fact, confidential. As canvassed in Shari-Lea Hitchcock v TCN Channel Nine Pty Ltd (No 2) [2000] NSWCA 82, 3 conditions are arguably necessary, being; first, the information has to have the necessary quality of confidence; secondly, it must have been imparted in circumstances imparting an obligation of confidence; and, thirdly, it requires some form of unauthorised use causing detriment: per Spigelman CJ at [25]. But, it is probably the law that only the first is authoritatively settled as applicable in Australia: at [28].
- [46]The plaintiff’s evidence was to the effect that email addresses that she used in sending the email on 13 April 2008 (Exhibit 10) were email addresses obtained from business cards which were publicly available, or were given personally to her, or emails that were provided to her without any requirement for confidentiality. The recipients were former fellow employees, and some medical practitioners, allied health practitioners and service providers. To a large extent, the lack of confidentiality was established by questions asked in cross-examination. The answers given as to the source of the email addresses was that the plaintiff did not have any access, at all, to the defendant’s computer system after her meeting with Dr Norman, because that was denied to her immediately upon her termination. Rather, she obtained the information from business cards kept in her personal diary, containing individual email addresses which she had earlier obtained and which were written into that diary from the sources already discussed. It is difficult to see what “confidential” information was, thus, used by the plaintiff. In any event, the plaintiff did not use any such information, even if confidential, for any business purpose, but simply to put what she saw as her side of the story of termination before people who would be directly interested in being given both sides of the history of those relevant events. As such, they lacked, in context, the necessary quality of confidence.
- [47]But even if the email addresses were to be found to be information obtained in confidence, simply utilising them for the purpose of informing persons of what occurred, when the reason for such informing was generated by what was seen to be self-serving information disseminated by the defendant itself, takes the use of the information out of the area of a relevant breach of the duty of confidentiality.
- [48]I accept that what occurred on 3 April 2011 and the communication made by the defendant thereafter concerning the events of that day justified a response by the plaintiff to the clear implication that the termination was, at least, consensual. So much appears from the email message which became Exhibit 8, being a message sent by the defendant on 3 April 2008 at 10.06 pm. This can be extracted from the statement that the parting of ways occurred, after a long discussion between Dr Norman and the plaintiff, when it was “agreed” as “the appropriate way to move forward”. What is clear from the actual letter given to the plaintiff by the defendant, under the hand of Dr Norman, on and dated 3 April 2008, is that the decision to terminate was a decision to do so immediately, in circumstances where the belief was formed by the defendant’s authorised representatives that the plaintiff’s behaviour was “unacceptable” and amounting to “harassment and bullying”. The further communication on 4 April 2008 by the defendant, again under the hand of Dr Norman, which became Exhibit 9 and was a memo to all staff at Bywater Medical, was to the effect that the separation followed a “long discussion” where it “was felt this was only the only way forward”. Again, it presents a clear notion of a consensual decision.
- [49]When the terms of the email of 13 April 2008 are then examined, what the plaintiff conveyed was that there was no “mutually amicable decision” but rather that the plaintiff was “summarily dismissed”. While that may not be an accurate description of the strict legal consequences of what occurred on 3 April 2008, it does convey the immediacy of the termination of employment.
- [50]The second aspect of the email communication will be dealt with a little later (concerning Jody Hammel).
- [51]For the moment, though, I conclude that there is nothing in the expression of the view to the persons who were recipients of the plaintiff’s email of 13 April 2008 which showed any breach of a duty of confidentiality, even if confidentiality had existed.
- [52]The second aspect, as just mentioned, is the reference to the summary dismissal being “due to” a “WorkCover stress leave complaint lodged by” Jody Hammel. The email went on to state that the plaintiff wanted the recipients of the email to know that Jody Hammel’s allegations were false and that such allegations would be fully tested in the appropriate courts.
- [53]From the circumstances as I find them to be in the evidence given as to this issue by both the plaintiff and the defendant, and from an examination of the Workers’ Compensation Medical Certificate of Dr Robin Burns dated 3 April 2008, the following conclusions can be reached.
- [54]First, the certification was given by Dr Burns was that on 3 April 2008 – the date of termination – Jody Hammel was diagnosed as suffering from anxiety and depression and that the stated cause was “work place bullying”. That certificate also shows that Jody Hammel’s total inability to work was only from that day to 10 April 2008. From a further certificate given by Dr Burns on 7 April 2008, containing the same diagnosis and the same stated cause, Jody Hammel was stated to be fit for a restricted return to work from 8 April 2008 to 15 April 2008. The restricted duties were that the book-keeping duties to be undertaken were required to be done at home for only four hours a day for only four days a week.
- [55]Secondly, as appears from a concession by Dr Norman in cross-examination, taken together with a positive assertion by the plaintiff in her own evidence, it was Dr Norman who told the plaintiff on 3 April 2008 about the WorkCover certificate concerning Jody Hammel and that it involved, as is abundantly clear from Exhibit 5, harassment and bullying.
- [56]Thirdly, there is no evidence given by Dr Norman that the otherwise “confidential” information that he had about Jody Hammel was to be kept confidential by the plaintiff. It would be unlikely that such a condition could be placed on it, given that it was the acknowledged reason that Dr Norman gave to the plaintiff for her termination.
- [57]It is difficult, given that particular analysis, to conclude that the information about the issue of stress leave concerning WorkCover as a result of a complaint lodged by Jody Hammel was “confidential company” information. Why, given those particular circumstances, should the plaintiff be required to keep that information confidential and not be able, as she did in her email of 13 April 2008, to state that she was of the view that she had that the “identified” cause of stress leave communicated to her by a former employee was “false” and that she would contest such allegations in an appropriate court?
- [58]I, therefore, conclude that there was nothing contained in the email of 13 April 2008 which was confidential company information.
Fiduciary Duty
- [59]Since the defendant acknowledged in oral submissions that the content of the fiduciary duty concerning confidentiality would have the same ambit as the duty of confidentiality just discussed, there is no further aspect that needs to be addressed concerning any breach of fiduciary duty.
Section 183 of Corporations Act
- [60]Section 183(1)(b) of the Corporations Act states that a person who obtains information because the person has been an employee of a corporation must not improperly use the information to cause detriment to the corporation.
- [61]Before considering the issues of “improper use” and detriment, the issue of whether any breach of s 183 of the Corporations Act gives rise to a cause of action justiciable in the District Court of Queensland needs to be determined.
- [62]Section 1317E of the Corporations Act states that if a “Court” is satisfied that a person has contravened, amongst other provisions, s 183, it must make a declaration of contravention: see sub-section (1)(a). The provisions are defined to be the “civil penalty provisions”.
- [63]Section 1317H of the Corporations Act then states that a “Court” may order a person to compensate a corporation for damage suffered by the corporation if the person has contravened a “civil penalty provision” in relation to the corporation and damage has resulted from the contravention. Obviously, such an order may be made whether or not a declaration of contravention is made under s 1317E.
- [64]Section 57A of the Corporations Act defines a “Court” to mean courts which, as defined, do not include the District Court of Queensland, while defining a to “court” mean “any court”. Section 58AA(2) states that, except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under the Act may relevantly be brought in “any court”.
- [65]Thus, while s 1337E refers to the conferring of jurisdiction on the lower courts of each State [see sub-section 1(a)], there is a clear expression of the contrary intention in s 13174, even if, as appears to be unlikely, s 1337E extends beyond the Administrative Decisions (Judicial Review) Act 1977.
- [66]Given that s 1317J of the Corporations Act specifically gives power to a corporation to apply for a compensation order under s 1317H, it is not clear at all that a cause of action can be based upon a breach of statutory duty giving rise to general damages at law when the actual provision specifically provides for a remedy of a like kind for which jurisdiction is denied to a court such as the District Court of Queensland. Although the defendant was asked to provide any relevant authority which would establish this proposition advanced by the defendant, nothing has been given to the court which has provided any such assistance to it.
- [67]Accordingly, I conclude that there is no cause of action justiciable in the District Court of Queensland for damages for breach of s 183 of the Corporations Act. Therefore, there is no occasion to consider the meaning of such terms as “improperly use”: see, for example, the discussion by Gummow and Hayne JJ in Angas Law Services Pty Ltd (in liq.) v Carabelas (2006) 226 CLR 507 at 531-532 [65]-[66].
Detriment
- [68]Should I be wrong in the conclusions I have reached with respect to the issues of the duty of confidentiality, the fiduciary duty to like effect and a breach of s 183 of the Corporations Act, it would be necessary to consider the issue of detriment. In paragraph 18 of the Second Further Amended Defence and Counter-claim, the defendant alleged that it had “wrongly” suffered detriment in that there was injury to the good corporate standing of the defendant amongst the recipient parties who received the letter. In paragraph 21 of the same pleading, it is alleged that, further, or in the alternative, in the premises pleaded in paragraphs 12 to 19, the plaintiff acted in breach of her fiduciary duties. Paragraph 16 contains an allegation that the email sent by the plaintiff “wrongly” contained a number of statements that were of detriment to the defendant. As particularised they were the statements concerning WorkCover stress leave and the allegations of falsity. Subsequent to the oral submissions, I gave leave to the plaintiff to file material as to the Further and Better Particulars provided by the defendant of issues raised in its counter-claim. By letter dated 27 May 2011, that information was provided to the Court. Noting that the Second Further Amended Defence and Counter-claim of the defendant was filed on 6 April 2010 and noting that that pleading itself struck out particulars (iii) and (iv) from paragraph 16 of the Counter-claim, it is clear that any detriment flowing from the disclosure of the Jody Hammel information was reflected simply in that person being unable to work from 3 April 2008 until 10 April 2008. Since it is obvious that the email was not sent until after that period, that detriment could not be established on any basis.
- [69]Additionally, with respect to detriment alleged to flow from the “improper use of company information”, the particularisation was that the loss suffered by the defendant was that Dr Norman had to adopt the role ordinarily occupied by Jody Hammel. Again, that could only have been until 10 April 2008 on the other particularisation given.
- [70]No evidence was given at all that there was any injury to the good corporate standing of the defendant among recipient parties who received the email. None of them were called to give evidence.
- [71]Nevertheless, given the way that the evidence ran during the case, it was clear at all times, and even from the Further and Better Particulars given, that the defendant was claiming that it lost income due to an alleged inability of Dr Norman to generate professional fees as a result of reacting to the content of the email of 13 April 2008.
- [72]While this does not particularly sit well with the particulars given by the defendant’s Solicitors’ letter of 6 April 2010, the later letter of 10 August 2010, following orders that I made regarding further disclosure and further particularisation, shows that the defendant was continuing to claim a total of 51.5 hours for loss associated with professional duties that Dr Norman was unable to meet, as a result of having to respond to the relevant email.
- [73]Turning, then, to the allegation of that loss of 51.5 hours. Obviously, anything before 13 April 2008 is irrelevant. That immediately disposes of 15 hours. It is also difficult to rationalise how the time of 9 hours claimed to be lost on 28 November 2008 (which was, instead, spent in finalising a response to a complaint from the Medical Board) has anything to do with the issues raised in the causes of action pleaded. That leaves some 27.5 hours. Given, also, that 12 hours on 21 and 27 November 2008 were spent with respect to the Medical Board complaint and (apparently) a meeting with its instructing solicitors concerning it, a further 12 hours is deleted. That would then leave to some 15 hours.
- [74]There were concessions by Dr Norman in cross-examination that he had, even if the plaintiff’s employment had not been terminated, a need to attend planning meetings for Canossa Hospital. Given that 11.5 hours claimed deals with such planning and implementation, some deduction from that time must be made as well. Lastly, there was a meeting of 2 hours in total for staff meetings at Jindalee and Forest Lake on 17 and 21 April 2008. Those staff meetings may well have been necessary to address a reasonable response to the assertions in the email of 13 April 2008, on the assumptions underlying this consideration.
- [75]There was also the issue of why the defendant, through Dr Norman, decided to write letters to very many people who were not the recipients of the email. Allied with that is that the letter sent to such people contained the discussion of an issue totally unconcerned with the plaintiff’s termination.
- [76]Doing the best one can to tease out the actual time that the defendant really lost as a result of directly responding to the alleged detrimental statements, the best that the Court can do is to determine that there were some 6 hours or so that could satisfy the requirement that it is more probable than not that they were a reasonable response to issues raised in the plaintiff’s email of 13 April 2008.
- [77]The next aspect to be considered is how that is translated into the defendant’s loss, and not Dr Norman’s personal loss. On the evidence given to the Court, including an analysis of Dr Norman’s fees which were set out in Exhibit 20, the best calculation that can be made is that the actual loss to the defendant company was in the order of $200.00 per hour. On that basis, any loss, were it necessary to calculate it, would be in the sum of $1,200.00 only.
Orders to be made
- [78]On the conclusions that I have reached, the orders will be as follows:
- (a)That the defendant pay to the plaintiff damages in the sum of $9,873.28, together with interest at the rate of 5% per annum from 3 April 2008 until 3 October 2008 and thereafter at 10% per annum.
- (b)That the plaintiff have judgment against the defendant on the defendant’s Counter-claim;
- (c)That both parties have leave to file written submissions, if any, by 4.00 pm on 28 June 2011 with respect to calculations of interest and to costs.