(f) it may terminate a training contract as at the date specified in the order;

(fa) it may order an employer (including a substituted employer) to pay to another employer specified costs associated with the early termination of a training contract, where that termination occurs wholly or partly due to the use of a financial or other inducement or reward;

1. As noted by the Full Bench of the SAET, the powers of the SAET pursuant to s 65(2) are discretionary.[1] That said, these powers do not include power to order the payment of compensation to an employer. Consequently, the power of the SAET to order a payment to PBN is the power to order the payment of specified costs as prescribed by s 65(2)(fa).

1. While Mr Shaw had resigned his employment with PBN and commenced employment with Kozco, his training contract with PBN had not been terminated at the time of hearing of PBN's application. Consequently, unless the training contract was terminated, there was no power to order any payment to PBN.
2. Section 67 of the Skills Act precludes legal representation for parties to a dispute at SAET. Given that none of the parties were able to be legally represented, I considered it appropriate to deal with the dispute broadly within the limits of the Tribunal's jurisdiction.
3. The South Australian Employment Tribunal Act 2014 at s 8 includes the following within its main objectives:

(f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

1. I considered it appropriate not to restrict consideration of the dispute to the resolution sought by PBN in its application, but to take into account all the circumstances of the dispute between the parties in light of the remedies that the Tribunal was able to consider.
2. Adopting this broad approach, two questions arose to be determined by the Tribunal:
   • 17.1. Whether an order should be made terminating the training contract; and if so
   • 17.2. Whether an order should be made for payment to PBN for specified costs associated with that early termination.
3. On the day of the hearing, PBN consented to the termination of the training contract, and so I made an order that day pursuant to s 65(2)(f) that the contract was terminated as of 23 September 2022, Mr Shaw's last day of work with PBN.
4. This then left the remaining issue of an order for payment to PBN. I explained to the parties that the Tribunal is limited to ordering payment only in the circumstances described in s 65(2)(fa), as there is no power for the Tribunal to order the payment of a transfer fee.
5. The hearing then proceeded on whether the reason for the termination of Mr Shaw's contract was wholly or partly due to a financial or other inducement or reward by Kozco; and if so, whether PBN had incurred specified costs as a result.
6. This was the subject of agreed documentary evidence and of oral evidence by Mr Philip Nacevicius on behalf of PBN, Mr Shaw on his own behalf and Mr Andrew Johnson on behalf of Kozco.

1. Mr Shaw commenced his employment with PBN on 15 August 2019 and commenced on a training contract as an apprentice electrician on 1 November 2019.
2. On 5 September 2022, Mr Shaw sent an email to Mr Nacevicius, his manager at PBN, giving three weeks' notice of his resignation effective 23 September 2022. The email referred to his 'resignation as an electrical apprentice'.[2] He worked his notice, with his final day at PBN being Friday 23 September 2022.
3. He then started work with Kozco the following Tuesday 27 September 2022.
4. Mr Nacevicius then sent Mr Shaw transfer application forms for him to sign with his new employer for the transfer of his training contract, which Mr Nacevicius followed up by text message and drew no response.
5. On 15 October 2022, Andrew Johnson from Kozco emailed PBN advising that Mr Shaw had commenced employment with them and asked PBN to sign an attached training contract termination form so that Kozco could re-sign him.
6. On 19 October 2022, Mr Nacevicius emailed in reply that he did not consider this to be a termination but a transfer, to which he would not agree until Kozco agreed to pay PBN the appropriate transfer fee.
7. By letter dated 3 November 2022, the Department for Innovation and Skills sent PBN a request for its agreement to terminate Mr Shaw's training contract. Agreement was refused and signed by Mr Nacevicius on behalf of PBN on 17 November 2022.
8. The transfer fee for a small business, which PBN was, for the transfer of an apprentice in the third year of a training contract, was at that time $4,800, and in the fourth year, $6,400. PBN claimed that Mr Shaw was transferring to Kozco in his fourth year of his training contract, and that it was entitled to the transfer fee of $6,400. In the absence of the transfer fee being paid, PBN sought compensation in the equivalent amount.

1. Although the training contract was terminated by the Tribunal with the consent of Mr Shaw and PBN, this was almost a year after Mr Shaw's last day of work with PBN when there was no visible prospect of him being

re-employed there. The unassailable trigger was Mr Shaw's resignation and therefore the reasons for that resignation are most relevant to the questions of inducement or reward. 2. Here I note that inducement or reward need only be part of the reason, not the whole reason for the termination.

1. Mr Nacevicius gave oral evidence that he had no idea Mr Shaw was unhappy with PBN or looking to move on until he resigned. He said he was blindsided by the resignation, and it was not until these proceedings that he learned of a raft of grievances that Mr Shaw had apparently been keeping to himself.
2. He said that on Monday 5 September 2022, after the end of a day in which there was a toolbox meeting and Mr Shaw could have approached him then in person, Mr Shaw sent him a text asking if he was free to have a chat the next morning. Mr Nacevicius said that he straight away had an inkling of what that meant and so he phoned Mr Shaw and 'asked him to spill it'.[3]
3. He said Mr Shaw told him he'd been offered another position. Mr Nacevicius said to him that he was contracted and that Mr Nacevicius would have to go through 'all kinds of hoops to get rid of you, but you can just resign, at a whim'.[4] Mr Nacevicius said there was no point in talking about it as it was obvious Mr Shaw had made up his mind, so he just asked him to formalise it. Then the resignation email arrived that same evening and the notice period commenced.
4. The email Mr Shaw wrote was brief and included these words, 'It was not an easy decision to make, the past 3 years have been excellent. Thank you for the opportunity and for everything I have been able to learn at your company'.[5]
5. Under cross examination by Mr Johnson, Mr Nacevicius said that the only information that he had about Kozco having offered inducement or reward was Mr Shaw telling him in the resignation phone call that the position entailed more money.[6]
6. Mr Nacevicius said he was advised by his training provider, MEGT, to apply for the transfer fee from Kozco as he was entitled to it.
7. Under cross examination by Mr Shaw, Mr Nacevicius denied that Mr Shaw had told him in the resignation phone call that he was the one 'searching for more opportunities to grow as an electrician' as well as more money.[7]
8. Tendered by Mr Shaw were a number of text messages which were apparently sent by Mr Nacevicius.
9. When I asked Mr Nacevicius whether he agreed that those texts were sent by him, he agreed that they were and then went on to say that they had been forwarded to all the tradesmen, referring in particular to a text dated Thursday 28 April, sent at 11:32pm to Mr Shaw.[8] He said he had been particularly frustrated with Mr Shaw's performance that day and understood that the contents and language were 'rather robust',[9] but he had been put in an awkward position by Mr Shaw in relation to an external contractor who did not want to keep working with him. He confirmed this text was forwarded to all the senior tradesmen in the business, along with the external contractor.
10. He said Mr Shaw had put the texts into evidence to paint a particular picture, but that did not give the context. I invited Mr Nacevicius to give that context in his evidence if he wanted to.
11. He then said that he had problems with Mr Shaw's attitude, that he was inconsistent but 'you find a lot of apprentices these days are like that'.[10]
12. When asked by me if he had discussions with Mr Shaw in person about those issues, he said 'not specifically'.[11] He then went on to say that where there was a disciplinary or attitudinal issue, he would send a text, and all the senior tradesmen would get the same text message and would know who it was about.
13. I asked if Mr Shaw would have been expected at work the day after the 11:32pm text. Mr Nacevicius said he would, for a normal start time of

7-7:30am. 14. I asked Mr Nacevicius if he thought the language and timing of his texts were a reasonable way for him to treat his employees. In the midst of further comments about stresses and frustrations in his work he said, 'Sure, absolutely, probably not acceptable in a broader sense'.[12] 15. In relation to the PBN claim for compensation, I asked Mr Nacevicius if he was able to specify any costs that he had incurred as a result of Mr Shaw's early departure from the business. I noted that s 65(2)(fa) refers to compensation for specified costs. 16. Mr Nacevicius said that he did not try to replace Mr Shaw and had cut his workforce but could not put a value on it, other than to say it was time, productivity and 'compromises in a lot of difference areas with a lot of different things' and that he did not think 'you could put a singular value on it'.[13] 17. In cross examination by Mr Johnson, Mr Nacevicius agreed that if he had replaced Mr Shaw with a labourer, it would have cost him more than the apprentice rates he had been paying Mr Shaw, but that he had not done that.

1. Mr Shaw submitted a written statement that he had prepared, and which had been provided to PBN and to Kozco prior to the hearing. There was no objection to that being admitted into evidence under oath by Mr Shaw.
2. Mr Shaw identified a number of sources of discontent with his apprenticeship at PBN and reasons why he had gone looking for work elsewhere. These included long hours of driving for work, no payment for excess travel, not getting the training that he thought he should be getting, and numerous inappropriate comments and acts in a work environment that was toxic and uncomfortable and affecting his mental health.[14]
3. He identified that he had approached another potential employer as early as 2020, not long after he started at PBN, and then four potential employers in April, May and June 2022.
4. In oral evidence, he said he approached Kozco via someone he played football with who worked there, which led to a meeting with their operations manager, Johnstone Maina. Mr Maina told him there was no vacancy as such, but Kozco was looking to expand their service department and offered him employment. From what he was told, Kozco were going to sort out the transfer of his apprenticeship.
5. He said the offer from Kozco included more opportunities to work weekends and overtime, to work away at the mines, to do other interesting work, and to receive higher pay as well.
6. It was after he had accepted the Kozco job that he gave notice to PBN. He then left it to Kozco to arrange the transfer of his apprenticeship.
7. In cross examination, Mr Nacevicius asked Mr Shaw why he had not raised his grievances with him or anyone at PBN before resigning, to which Mr Shaw replied that it was 'quite confronting and uncomfortable' to tell Mr Nacevicius things.[15]
8. The further cross examination by Mr Nacevicius was in substance directed to whether Mr Shaw's discomfort was justified, not whether it was real.
9. In cross examination by Mr Johnson, Mr Shaw clarified that the weekend work at Kozco was offered after he had signed his contract, not before. He also confirmed that Kozco had not approached him offering employment. It was Mr Shaw who approached them.
10. With the difficulties getting his training contract transferred across to Kozco, Mr Shaw had approached the training provider which dealt with his apprenticeship at PBN, MEGT, but found they did not assist him.

1. Mr Johnson gave evidence that he was the finance manager at Kozco and he also dealt with HR matters, including on-boarding and off-boarding of staff.
2. He tendered evidence by consent of pay records for the other apprentices employed by Kozco, which he submitted showed that Mr Shaw was paid the same or less than other apprentices Kozco employed.
3. He said that when Mr Shaw approached them looking for work via his friend at football, they did not know what his abilities were or what kind of worker he was, so his employment was on probation. Kozco had no reason to offer him any inducement to leave PBN, and from their point of view did not offer any inducement as the terms were no better than they paid others at his level.
4. Mr Johnson said Kozco had been advised by their training provider, MEGT, that the best way to bring an apprenticeship over from another employer was to terminate that training contract and sign them up on a new training contract. He tendered without objection a copy of paperwork to that effect for another apprentice, employed prior to Mr Shaw.[16]
5. He said that Kozco did have some apprentices leave before completing their training contracts, and when that happened Kozco agreed to the termination of their training contracts, as happened when apprentices came to them.
6. He said that MEGT were not helpful when PBN wanted a transfer fee. When it was requested, Kozco did not agree to pay it because after Mr Shaw started, they realised he did not have the experience level they expected from a fourth-year apprentice, so they were not getting the benefit of the training that the transfer fee was meant to cover.
7. He said if he had been aware of the transfer fee requirement, Kozco would have required Mr Shaw to have agreement from PBN about the transfer before starting, or else stay with PBN until his apprenticeship was complete.
8. Kozco had since ceased using MEGT.

1. I have no difficulty accepting each of the witnesses as honest and doing their best to give their evidence to the best of their recollection and understanding.
2. Although each had a different perspective on the events they were describing, there was no conflict of significance to the issues for determination.
3. I note that both employers in this matter, PBN and Kozco, were using the same training provider at the time of Mr Shaw's resignation from PBN and employment by Kozco. It appears from the evidence that each of these employers received different advice from the same training provider as to how the process of Mr Shaw's transition from PBN to Kozco should be managed. That is most unfortunate. Had there been more consistency at that level, these proceedings may have been avoided.
4. That said, there is no doubt in my mind that the relationship between Mr Nacevicius and Mr Shaw was in serious difficulty before Mr Shaw gave his notice of resignation.
5. It was not in dispute that Mr Shaw did not raise a number of his grievances with Mr Nacevicius before he resigned. I accept that Mr Nacevicius does not agree that a number of the complaints now raised were valid. It is not necessary for me to decide between them on those issues.
6. I accept that Mr Shaw did not feel comfortable raising his concerns with Mr Nacevicius. On the other hand, Mr Nacevicius appeared to have no difficulty expressing his displeasure with Mr Shaw whenever and however he wanted.
7. I note that Mr Shaw's approaches to other employers started around the time of the 11:32pm 28 April text from Mr Nacevicius.
8. I have not repeated the content of that text because it is not necessary to do so. I rely on my own observation that it was a protracted full-blown attack on Mr Shaw, expressed in highly abusive and offensive terms.
9. However tired and frustrated Mr Nacevicius may have been that night, the timing, content and manner of his communication with Mr Shaw was entirely inappropriate and a health risk, not just to Mr Shaw, but to the other employees to whom the text was forwarded. That Mr Shaw started actively seeking work elsewhere should come as no surprise to anyone. That it was a surprise to Mr Nacevicius is an indicator of what he erroneously considered acceptable conduct by an employer.
10. The tone, content and lack of confidentiality in other texts by Mr Nacevicius, as admitted by him and in evidence, suggest that the 11:32pm text was not far from Mr Nacevicius' normal range of communications to his employees.
11. In the context of Mr Nacevicius' clearly communicated unhappiness with Mr Shaw's attitude, and Mr Shaw's discomfort with Mr Nacevicius' conduct in the workplace, the attractiveness of the Kozco employment offer to Mr Shaw is more characteristic of an escape from an unhealthy work environment than a response to inducement or reward.
12. I find that Kozco did not act to induce Mr Shaw to leave his employment or breach his training contract with PBN. Kozco was approached by Mr Shaw who was understandably determined to leave PBN and was looking for another employer to continue his apprenticeship. While the hourly rate offered by Kozco was higher than what he was being paid by PBN, it was no higher than Kozco paid other employees at his level.
13. The power given to the Skills Commission to approve a transfer of a training contract from one employer to another pursuant to s 54N, relies on the consent of the new employer and its agreement to pay the transfer fee required by s 54O.[17] The Skills Commission can approve such a transfer, but cannot order it.
14. As noted by this Tribunal in Gauci v AC Constructions & Home Maintenance:

The intention behind s 54O is to recognise the investment by employers into apprentices by seeking to reduce the occurrence of other employers poaching third and fourth year apprentices, who are usually more productive than apprentices in their earlier years.[18]

1. Given that consent of the new employer is required before the Skills Commission can approve the transfer, the disincentive to poach apprentices is supported by the power given to SAET to order a payment when there is a termination due to inducement.
2. However, the SAET power is not to order payment of a transfer fee. The power in s 65(2)(fa) requires the SAET to firstly be satisfied that the particular criteria for payment are met, and secondly, to exercise its discretion about whether payment should be ordered and if so, in what amount.
3. Even if I find that the reasons for Mr Shaw's resignation included the offer of higher pay and more varied work at Kozco, I am still left with the other criteria for an order for payment, which is specified costs incurred by PBN in association with the termination.
4. The language of the statute is particular - it refers to specified costs. It does not use a more general term, like loss or compensation.
5. In the absence of any power by the SAET to order a transfer or the payment of a transfer fee, it was for PBN to substantiate its claim for payment by identifying the type and amount of the costs that it incurred as a result of the termination. It is not open to me to simply adopt the amount of the transfer fee as a cost to PBN and order Kozco to pay that amount.
6. In his evidence, Mr Nacevicius did not identify any particular costs that he incurred as a result of the termination of Mr Shaw's contract. He spoke in general terms of loss of productivity and benefit from the training of Mr Shaw. Despite prompting, he did not identify any particular kind or amount of cost that he had incurred. He did not give evidence that would allow me to assess specific costs as the Skills Act requires.
7. Consequently, even if I am wrong about the reason for the early termination of the training contract, the evidence provided by PBN is insufficient for me to make an order for payment to it by Kozco, as there were not costs specified.

1. The application by PBN Electrical Pty Ltd as trustee for Orion Group Trust for an order in its favour of the payment of specified costs pursuant to

s 65(2)(fa) of the South Australian Skills Act 2008 is dismissed.

[1] Financia Pty Ltd ATF Financia Unit Trust v Danielle Taglienti [2023] SAET 85 at [32].

[18] [2023] SAET 38 at [63].