A former Director of Boarding at Westminster School will take his pecuniary penalty claim to trial on the pleadings as they stand, after the school’s application to have him replead the claim, or have it struck out, was dismissed.
The decision, [2026] SAET 99, was delivered on 7 August 2026 by Deputy President Judge Rossi of the South Australian Employment Court, following a hearing on 1 July 2026.
The applicant held a permanent appointment as a teacher at the school. He was separately contracted as Director of Boarding and Head of Boys’ Boarding for three years from 21 January 2020, and then accepted a further five-year contract commencing 31 January 2023. A letter dated 22 December 2025 from the school’s Principal gave him notice that his employment would end on 6 January 2026.
Two matters are on foot. The first is a general civil action seeking damages for breach of contract. The second seeks a pecuniary penalty, an order a court may make under s.546 of the Fair Work Act 2009 (Cth) where it is satisfied that a person has contravened a civil remedy provision. The penalty claim alleges contraventions of s.50, which provides that “[a] person must not contravene a term of an enterprise agreement”. The clauses said to have been contravened are cll 4.6.4.2, 3.6.5 and 4.6.1 of the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2024.
On cll 3.6.5 and 4.6.4.2, the applicant’s case is that the agreement required the school to take identified steps, including putting deficiencies in performance in writing and providing counselling, before notice of termination was given, and that those steps were not taken. On cl 4.6.1, his case is that the notice provision deals only with permanent employees, so ending the five-year Director of Boarding term before it expired breached the agreement and his contract.
3.6.5.1 If an employee is negligent, inefficient, incompetent or unsatisfactory in the discharge of his or her duties, the School will inform the employee of the particulars in writing and provide counselling to assist the employee to overcome the inefficiencies or incompetence.
3.6.5.2 The procedure detailed above will be repeated over a period covering at least two (2) terms before notice of termination is given to the employee.
The school applied for directions requiring an amended penalty application or, alternatively, a concise schedule of contraventions, and sought orders that the claim be struck out or stayed if that did not occur.
that the penalty pleading was inadequate. In correspondence from its solicitors, a position it maintained in its written and oral submissions, the school said the pleading “does not plead the material contractual background, the proper characterisation of the Applicant’s employment, the factual matters said to constitute each alleged contravention, or the manner in which each clause is said to have been engaged and breached”. Relying on the Full Court of the Federal Court’s decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, it argued it is “especially important that those accused of a contravention know precisely the case that is to be made against them”, and said it remained unclear whether the alleged contraventions concerned the teaching position or the Director of Boarding position.
that he occupied both positions during the contracted periods, that the particulars sought would require him to speculate about the matters the school relied on in terminating his employment, and that where his case is that identified clauses required specific steps which were not taken, the school has “a good understanding of the case it is expected to meet”. He also referred to the no costs nature of the jurisdiction, and submitted the question was whether the current state of the pleadings causes a practical procedural unfairness.
that the penalty pleading fell to be considered together with the statement of claim in the civil action and the further particulars provided informally in correspondence between the parties’ solicitors. On that basis, the school had been given the clauses said to have been contravened, the factual basis on which those clauses were said to apply, and the material facts the court will be asked to act on at trial. He rejected the submissions that uncertainty arose from the combined effect of the two pleadings, or from the applicant holding the dual positions of teacher and Director of Boarding.
His Honour said that while it is important that a respondent know precisely the case to be made against it, that is “to be approached in a practical and robust manner”, observing that claims for a pecuniary penalty are not infrequently brought by applicants who are neither legally represented nor legally trained. He referred to the High Court’s holding in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 that the object of the civil penalty regime is primarily, if not solely, to promote the public interest in compliance with the Fair Work Act by deterring further contraventions.
It would not be in the interests of justice, nor facilitate the object of the civil penalty regime, for a court to adopt a pedantic or otherwise onerous approach to the provision of particulars by an applicant to a respondent.
On procedural fairness, His Honour found: “No procedural unfairness has been demonstrated by requiring Westminster School to proceed to trial on the basis of the current pleading.” The school had not demonstrated “an inappropriate degree of risk of surprise at trial”, or that its ability to prepare for trial and present its case had been unfairly affected.
At a glance
- Parties: A former teacher and Director of Boarding, and Westminster School Incorporated
- Citation: [2026] SAET 99 (ET-26-01093; ET-26-01212), Deputy President Judge Rossi, 7 August 2026
- Provisions: s.50 and s.546 of the Fair Work Act 2009 (Cth); cll 3.6.5, 4.6.1 and 4.6.4.2 of the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2024
- Outcome: The respondent’s application for directions dated 22 June 2026 is dismissed
- Who it affects: Employers responding to individual pecuniary penalty claims for enterprise agreement breaches in the South Australian Employment Court
The court recorded that both proceedings are currently to be heard and determined at the same time, with evidence received in one proceeding also taken as evidence in the other. Existing directions require witnesses to provide affidavits of evidence before trial, and the school is to have the applicant’s witness affidavits before it provides its own affidavit evidence.
Source: [2026] SAET 99
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