Bowling v General Motors-Holdens Ltd

[1980] FCA 32

Re: LESLIE ROONES BOWLING
And: GENERAL MOTORS HOLDEN'S LIMITED (1980) 42 FLR 309
S.A. No. 20 of 1979
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
SOUTH AUSTRALIA DISTRICT REGISTRY
Keely J.(1)

CATCHWORDS

Industrial Law - whether dismissal by reason of circumstance that a union delegate - discretionary power to order reimbursement of "any wages lost" - whether for period before information laid - time necessary to seek legal advice and lay information - wages lost whilst informant seeking remedy in State Court - relevance of workers compensation payments - discretionary power to direct reinstatement - relevant factors - previous "invasion" of employer's office - informant's threat of repetition - participation in repetition - Conciliation and Arbitration Act 1904 s.5(1)(5).

Conciliation and Arbitration - Registered organization - Dismissal of employee - Alleged offence by employer - Delegate of organization - Act of delegate within authority for purpose of furthering or protecting industrial interests of organization - Onus of proof - Substantial and operative factor in dismissal - Conviction - Application by employee for reimbursement of wages - Application by employee for reinstatement - Conciliation and Arbitration Act 1904 (Cth), s. 5 (1) (a), (f), (3), (4), (5).

HEADNOTE

The informant was a shop steward and a delegate of a registered organization within the meaning of s. 5 of the Conciliation and Arbitration Act 1904 ("the Act") and at all relevant times was an employee of the defendant. On 10th August, 1978, the defendant summarily dismissed the informant and on 9th August, 1979, the information was laid against the defendant under s. 5 (1) of the Act.

Held: (1) That part of the information which relied upon s. 5 (1) (f) of the Act could not succeed because the informant had failed to prove any act or thing done by him within the limits of authority expressly conferred upon him by the organization in accordance with the rules.

(2) In relation to the alleged breach of s. 5 (1) (a) of the Act, the informant had proved all the relevant facts and circumstances other than the relevant reason and accordingly pursuant to s. 5 (4) of the Act the defendant was required to prove that in dismissing the informant it was not actuated by reason of the circumstance that the informant was a delegate of the registered organization.

(3) The question for the court was not whether the defendant was entitled to dismiss the informant but whether the defendant had satisfied the court on the balance of probabilities that the reason referred to in s. 5 (1) (a) of the Act was not a substantial and operative factor in the dismissal.

General Motors-Holden's Pty. Ltd. v. Bowling (1976), 51 ALJR 235, applied.

(4) The defendant on the evidence had failed to satisfy the court on the balance of probabilities that the circumstance that the informant was a delegate of the organization was not a substantial and operative factor in the decision to dismiss him.

(5) The defendant should be convicted and fined $300.

(6) As for the informant's application for the reimbursement of lost wages: (a) The court's discretionary power under s. 5 (5) of the Act included power to order payment of lost wages for that period after the informant's dismissal which was reasonably necessary to enable him to obtain legal advice and to institute proceedings under the Act. (b) As the informant had originally pursued remedies under State legislation, no order should be made for the period between the date when he commenced those proceedings and the date when the present proceedings were instituted. Bowling v. General Motors-Holden's Pty. Ltd. (1975), 8 ALR 197; Ferguson v. George Foster & Sons Pty. Ltd. (1969), 14 FLR 370, discussed. (c) The defendant must pay to the informant the difference between his actual earnings, including workers' compensation payments, and the amount that the informant would have received had he remained in his employment with the defendant until the date of judgment. Bowling v. General Motors-Holden's Pty. Ltd. (1975), 8 ALR 197, applied.

(7) On the evidence of the events preceding the informant's dismissal, the court would not exercise its discretion under s. 5 (5) of the Act to order that the informant be reinstated.

Jones v. Thiess Bros. Pty. Ltd. (1977), 30 FLR 422, applied.

HEARING

Melbourne, 1979, October 30-31; November 1-2; December 14; 1980, February 18-29; March 13. #DATE 13:3:1980

INFORMATION.

The facts appear from the judgment.

A. J. Regan and I. G. Peera, for the informant.

A. V. Russell Q.C. and D. Clayton, for the defendant.

Cur. adv. vult.

Solicitors for the informant: Playford, Nicholl & Co.

Solicitors for the defendant: Finlayson & Co.

T. J. GINNANE

ORDER

Orders accordingly.

JUDGE1

On 9 August 1979 Leslie Roones Bowling (the informant) laid an information against General Motors-Holden's Limited (the defendant) that on 10 August 1978 the defendant had dismissed the informant contrary to the provisions of s.5(1) of the Conciliation and Arbitration Act 1904 (the Act). Mr A. J. Regan appeared with Mr I. G. Peera for the informant and Mr A. V. Russell Q.C. appeared with Mr D. Clayton for the defendant which pleaded not guilty.

The information alleged that the defendant "dismissed an employee, namely the informant, by reason of the circumstances that the employee:
1. Was an officer or a delegate, and a member of an organization, as defined in the Conciliation and Arbitration Act 1904-1978 namely the Vehicle Builders Employees Federation, and the South Australian Branch thereof.

2. Was, as such, entitled to the benefit of an industrial agreement or an award, namely the 'General Motors-Holden's Limited (Part I) General Award 1976' which was binding upon the said General Motors-Holden's Limited and the said Vehicle Builders Employees Federation.

3. Being a delegate and member of an organization did an act or thing which was lawful for the purpose of furthering or protecting the industrial interests of the said organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the Rules of the organization."

During the course of the proceedings it was established by evidence that at all material times:

1. The informant was employed by the defendant at its plant in Elizabeth, South Australia, in the Vehicle Assembly Plant (the V.A.P.);

2. The informant was a member of the Vehicle Builders Employees Federation of Australia (the Federation), an organisation of employees registered pursuant to the Act. Approximately 3,500 members of the Federation were employed at the Elizabeth plant including approximately 350 in the V.A.P.

3. The informant was an elected shop steward and was accordingly a "delegate" of the Federation within the meaning of the word "delegate" in s.5 of the Act. (See Bowling v. General Motors-Holdens Pty Ltd (1975) 8 A.L.R. 197 at p.199 and Jones v. Thiess Bros. Pty Ltd (1977) 30 F.L.R. 422 at p.426.)

4. The defendant was bound by the provisions of the General Motors-Holden's Limited (Part I) General Award 1976 (the award) in respect of its employment of the informant and the informant as a member of the Federation was also bound by the provisions of the award.

It was also established that the defendant dismissed the informant at Elizabeth on 10 August 1978 and the incorporation of the defendant was admitted by Mr Russell Q.C. It was common ground that the informant and defendant were the informant and defendant in Bowling v. General Motors Holdens Pty Ltd (1975) 8 A.L.R. 197. In that case the defendant was convicted of an offence against s.5(1) of the Act in dismissing the informant on 5 February 1975 and was ordered to forthwith reinstate the informant in his employment with the defendant. An appeal by the defendant was dismissed by the Full High Court (1976) 12 A.L.R. 605. The informant recommenced work with the defendant on or about 25 January 1976.

After the completion of the evidence for both the informant and the defendant Mr Regan announced that he was not relying on paragraph 2 of the information and also that he was not contending that the informant was dismissed by reason of the circumstances that he was an officer or a member of the Federation.

Section 5(1) of the Act so far as is presently material reads as follows:
"5.(1) An employer shall not dismiss an employee, . . . by reason of the circumstances that the employee -

(a) is or has been . . . (a) delegate . . . of an organization . . . or

. . .

(f) being . . . (a) delegate or member of an organization, has done . . . an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

Penalty: Four hundred dollars.

. . .

(3) A reference in this section to an organization shall be read as including a reference to a branch of an organization.

(4) In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent.

. . ."

As to paragraph 3 of the information set out above, I am not satisfied that the informant has proved "all the relevant facts and circumstances, other than the reason" set out in paragraph 3 of the information. There were various difficulties in the way of the informant in relation to paragraph 3 but it is sufficient to dispose of this aspect to say that in my opinion the evidence for the informant failed to show any "act or thing done (by the informant) within the limits of authority expressly conferred on him" by the Federation in accordance with its rules. Accordingly, s.5(4) did not place any onus upon the defendant in respect of paragraph 3 of the information.

As to paragraph 1 of the information, I am satisfied that the informant has proved "all the relevant facts and circumstances, other than the reason" set out in paragraph 1 of the information. Accordingly s.5(4) of the Act requires the defendant to prove, on a balance of probabilities, that in dismissing the informant it was not actuated by reason of the circumstance that the informant was a delegate of the Federation.

The notice of dismissal read to the informant on 10 August 1978 was in the following terms:
"You have been given previous warnings about unlawful and disruptive activities.

Yesterday you were seen to be leading a large group of employees from the Vehicle Assembly Plant up to the main administration block and took active part in the activity. This action was unlawful and extremely serious, and not only severely disrupted the operations of the administration office, but also caused a number of employees in that area to become frightened. The Company cannot and will not tolerate unlawful and disruptive activities of this kind. These activities were in breach of the award and grievance procedure.

I have no alternative therefore but to summarily dismiss you."

During normal working hours on the afternoon of 9 August 1978 the informant, together with other shop stewards of the Federation, had attended a stop work meeting of Federation members employed in the V.A.P. That meeting had been called by a decision of a meeting of the shop stewards held at an earlier time on the same day. The shop stewards of the Federation present at the two meetings included the informant, and Messrs Sweeney, Noone, Cornish, Bayne and McMillan. Of these shop stewards Messrs Noone, Cornish and Bayne were called as witnesses by Mr Regan, as were three other former employees of the defendant, Messrs Hayden, Sinnott and Wilson.

I accept the evidence that Mr Noone was elected chairman of the stop work meeting of the V.A.P. employees. I also accept the following evidence of the informant as to the matters discussed at, and the decisions made by that stop work meeting:
"Initially, two grievances were discussed, one relating to a claim by myself that I had been refused permission to see a senior shop steward on a number of occasions and another relating to an impending stand down arising as a result of events occurring the previous Friday when we were stood down. There was an issue raised in relation to the question of payment for lost time as a result of that stand down. . . .

. . . some people from the pit area in section 105 of the vehicle assembly palnt raised two other issues relating to loss of annual leave for some people in that area and also the demotion, I believe, of a senior leading hand. . . .

. . . it was decided that until such time as those four grievances were rectified that an overtime ban would be placed on the vehicle assembly plant. . . . a nearly unanimous decision. . . .

There was a decision made to go to the administration block and to present the grievances to personnel there and to leave. . . . the whole meeting should go . . . nearly a unanimous decision."

I also accept the evidence that the informant did not move or second the motion that the V.A.P. employees present at the meeting "should go to the administration block" - although the informant when asked if it was his suggestion at the meeting said "Not as I can recollect". I accept the evidence of E. W. Cornish that at the stop work meeting the informant expressed the view that the proposal to go to the administration block was a "good idea" but warned his fellow employees of the "possible consequences of such a mass action" and said that "he had no doubt the company would come down rather heavily on us".

The informant estimated the number of Federation members present at the stop work meeting as being 250-300. A large number of those members, variously estimated at figures ranging upwards from 150 employees, walked from the place where the meeting was held - outside the fence around the defendant's premises - to the administration offices, a distance which the informant estimated at approximately 300-400 yards. A substantial proportion of the employees who had attended the stop work meeting - estimated by some witnesses called by the defendant to be approximately 50 per cent, including one shop steward, Mr McMillan - did not go to the administration offices. On arrival at the administration building the Federation members went upstairs to an area which included the offices of Messrs Lea, Holland and Murray. Between the entrance to that area and Mr Murray's office there was a large area (the office area) in which approximately 40 clerical staff normally worked at desks. The arrival of the V.A.P. employees disrupted the normal work activities of those clerical employees, some of whom left their desks. I accept the informant's evidence that "a dozen or so" V.A.P. employees entered the office area before he entered and that he waited for the four shop stewards who arrived after he did - Messrs Noone, Sweeney, Cornish and Bayne.

Mr Russell, for the defendant, called a number of witnesses including the following who were employed by the defendant: Messrs Crisp (the manager of the body and vehicle assembly plant at Elizabeth), Stanton (personnel relations manager in South Australia), Lea (the personnel relations manager at Elizabeth), Holland (the industrial relations manager at Elizabeth), Murray (the general supervisor, employee and industrial relations at Elizabeth), Swandale (a senior personnel officer at Elizabeth), Klaffer (a senior personnel officer at Elizabeth), and Mansfield (a general foreman at Elizabeth).

Although it was common ground that there was no violence there were conflicting accounts given in evidence as to the effect of the arrival of the V.A.P. employees in the office area - including the noise level. I do not accept the evidence of Mr Noone that the V.A.P. employees "were all very quiet . . . and stayed there very quietly", nor the evidence given by the informant that he "thought it was a cordial atmosphere" apart from the discussions with Mr Murray. I accept the evidence by Mrs Uray, a clerk working that day in the office area, that she was "terrified", "filled with apprehension", "agitated and frightened". Mrs Uray left her work area for about five minutes and went into the employment office. Mrs Uray was an impressive witness. I accept her evidence that the general atmosphere was "volatile" and "sort of explosive" and that the V.A.P. employees present "were all jeering and aggressive" and that remarks were made by the V.A.P. employees to the clerical staff "sort of doubting the credibility of our work" together with remarks to the effect that "all the people did in the office was to have cups of tea".

Mr Lea gave evidence that the presence of the V.A.P. employees in the office area made him feel "very nervous" and he also felt "a certain amount of helplessness". He said that he regarded it as "a deliberate attempt to intimidate the personnel management of the company and its officers". He "regarded the action as extremely serious". He regarded the action of the V.A.P. employees in entering the office in such large numbers as showing a "blatant and what seemed to be calculated disregard for the feelings and concerns of other fellow employees". I accept this evidence of Mr Lea which was given in a convincing manner. I also accept the evidence of Mr K. W. Smith, a material control supervisor employed in the main administration office, that it was a "potentially explosive" situation and that he was concerned "for the people, particularly the ladies who worked in the office".

A conversation took place in which three officers of the defendant - Messrs Lea, Holland and Murray - and three shop stewards - Messrs Bowling, Sweeney and Noone - participated. The informant gave evidence that he said to the defendant's officers that the employees had come to the office to discuss a number of grievances. He also said that during that conversation he may have raised with Mr Murray one of the matters the subject of the resolutions at the stop work meeting earlier that day. Messrs Lea, Holland and Murray gave evidence that the informant was the main spokesman for the V.A.P. employees and that, in answer to repeated requests that he should take the employees away from the office area, Mr Bowling repeatedly said that the employees had come to present their grievances to the company and were not going to leave until they had done so. The informant and Messrs Noone, Bayne and Cornish all gave evidence that the main spokesman for the V.A.P. employees was Mr Noone and that when the informant started to talk one of the employees said that Mr Noone should do the talking as he was the chairman of the stop work meeting which carried the resolutions.

As I have already stated, there are certain parts of the evidence given by Messrs Bowling and Noone which I do not accept. As I shall indicate later there are important parts of the evidence of Messrs Crisp and Lea which I do not accept. However, on the issue of fact as to whether the main spokesman for the V.A.P. employees was Mr Bowling or Mr Noone I do not "feel an actual persuasion" that it was Mr Bowling as the defendant contends (see Dixon J. in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p.361). Nor do I feel an actual persuasion that it was Mr Noone. On this issue I was not assisted by anything in the demeanour of any of the witnesses. Nor did the cross-examination of those witnesses by Mr Regan and Mr Russell Q.C. respectively succeed in persuading me to reject the evidence given in examination in chief on this issue by any of the witnesses. On all the evidence in this case I am unable to say that it was inherently more probable that the main spokesman was Mr Bowling. Nor that it was inherently more probable that it was Mr Noone - although I have accepted the evidence that he was chairman of the stop work meeting. In this connection I am not prepared to accept the evidence of Mr Hayden (cp. evidence of Messrs Noone and Wilson) that at the stop work meeting "we nominated Brian Noone who was the chairman of the meeting to speak, and of course he had the support from the other shop stewards . . .".

The defendant's case was that the informant was dismissed because he had played a "leadership role" in the actions of the V.A.P. employees inside the administration offices on 9 August 1978 which actions the defendant's officers regarded as being unlawful and as a contravention of the award as to "the grievance procedure", that those events were frightening and the company had a duty to ensure the safety of its office employees and was obliged to demonstrate plainly that any repetition of such conduct in the future would not be tolerated. As Mr Crisp expressed it - "we wanted to make it perfectly clear to everyone in the plant . . . that that standard of behaviour would result in dismissal regardless of who did it".

In my opinion on the informant's own evidence as to what he did in the administration offices on 9 August 1978, the defendant was entitled to dismiss the informant - irrespective of whether he was the main spokesman. However, the question in these proceedings is not whether the defendant was so entitled but whether it has satisfied the Court on the balance of probabilities that, in dismissing the informant, it was not actuated by the reason alleged in paragraph 1 of the information, namely, that the informant was a delegate of the Federation, i.e. that that reason was not "a substantial and operative factor" in the dismissal - per Mason J. in General Motors Holden Pty Ltd v. Bowling (1976) 12 A.L.R. 605 at p.619. As Gibbs J. said in that case (at p.612):
"However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization. The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged."

I accept the evidence given by Messrs Crisp, Stanton, Lea, Murray and Holland that the decision to dismiss the informant and Mr Sweeney and to reprimand Mr Noone was taken by Mr Crisp on the recommendation of Mr Lea - with which recommendation Messrs Murray and Holland were in agreement. The defendant's officers were cross-examined at considerable length as to whether the decision to dismiss was a collective decision. In final address Mr Regan sought to rely upon an answer by Mr Crisp in cross-examination that "I guess you could say that (it was) a collective decision". However, in my view that answer, when considered in the light of preceding answers, meant no more than that Mr Crisp obtained:
"facts from a variety of areas, as I said, from my own supervisors, from my own knowledge, from what is recounted to me by people, on top of the collection of the data and the input from other people's advice, I look to the personnel department to give me such advice."

Mr Crisp gave evidence that he reached his decision after considering Mr Lea's recommendation and after taking legal advice both as to the legality of the actions of the V.A.P. employees in the administration office and as to whether dismissal "was a lawful action for us to take in response to what we saw as an illegal act". Mr Crisp had decided that the conduct of the V.A.P. employees in entering and refusing to leave the administration office when requested was unlawful, had decided that the informant was one of the leaders and had then looked at possible penalties in respect of that conduct. He said that in deciding that the informant was one of the leaders he was influenced by the information given to him by the defendant's officers who had been present in the administration office at the time that Mr Bowling -

(1) called the remaining shop stewards (Messrs Cornish and Bayne) over to join himself and Messrs Sweeney and Noone;

(2) did most of the talking on behalf of the V.A.P. employees to the defendant's officers;

(3) addressed the assembled employees; and

(4) immediately before the V.A.P. employees left the office asked the assembled employees to leave.

Mr Crisp was apparently mistaken in his belief that the informant had "addressed" the employees ((3) above). Mr Crisp was not present on that occasion and none of the evidence before the Court suggested that such an address had taken place. Mr Crisp said that he would not question the judgment and recollection of Messrs Lea, Holland and Murray who were present at the time and who had informed him that the informant was playing a leadership role in the events.

In answer to a question as to why he dismissed the informant Mr Crisp gave the following answer:
"An act occurred in the office block that I personally found unacceptable, and still do, an act where 150 people chose to occupy an office area that they normally would not and perhaps by intimidation or other means achieve a certain end when I believe there is a perfectly acceptable and available procedure for doing that without going to those extremes. That happened. I believed and agreed with Mr Lea, Holland and Murray that as a management group we should not let that happen again. I still believe that. That we needed to identify the people that we believed to be the leaders of that occupation and discipline them. We analysed that, I analysed it with the information that was provided to me, and it was recommended to me that reprimand of Les Bowling and Mr Sweeney would not be a suitable discipline because reprimands of these people in the past had been disregarded and of no avail and we needed to be absolutely crystal clear, everyone to be absolutely crystal clear that this was not accepted. The only alternative open, was I believe - it was recommended to me that the suitable and only alternative open was the dismissal of Les Bowling and Colin Sweeney and the reprimand of Brian Noone. That is how it came about, that is why I dismissed Les Bowling."

I accept that the conduct of the informant in the administration offices on 9 August 1978 was a substantial reason for the decision to dismiss the informant. However, on the evidence the defendant has failed to satisfy me on the balance of probabilities that the circumstance that the informant was a delegate of the Federation was not a "substantial and operative" factor in the decision to dismiss the informant. On this aspect the credibility of the witnesses called by the defendant - and in particular the credibility of Mr Crisp - is important.

In examination in chief Mr Crisp gave evidence in an impressive manner. However, under cross-examination some of his answers were evasive, some answers were contradicted by his own evidence elsewhere and some answers were contradicted by evidence given by other witnesses called by the defendant and were inherently improbable in all the circumstances. These matters were such that, when coupled with his demeanour under cross-examination, I was unable to accept a number of his answers including his denial that the decision to dismiss the informant was by reason of the circumstance that the informant was a delegate of the Federation.

It may be desirable to illustrate what I have said as to Mr Crisp's evidence by reference to the transcript and to set out my views on the answers given.

(1) An example of contradictory evidence by Mr Crisp is as follows:
"(Mr Regan) Whilst you were there you were aware that other company officials still regarded him (the informant) as a troublesome shop steward?

A. Yes."
A little later in his cross-examination Mr Crisp gave the following answers:
"Q. You knew other people in the company still regarded Mr Bowling as troublesome?

A. Yes.

Q. Troublesome in his role as shop steward?

A. Active. Active.

Q. You do not think that other people in the company regarded him as troublesome in his role as shop steward?

A. No."
I am quite unable to accept the last answer and the previous answer appeared to me to be evasive.

(2) Mr Crisp also gave the following answers in cross-examination:
"Q. Mr Bowling had not been . . troublesome during your time in supervision since mid 1977, in your view?

A. No more than anyone else.

Q. He was not a disruptive influence as a shop steward, in your view?

A. No.

Q. He was not an especially militant shop steward, in your view?

A. No."
I also reject those answers.

(3) During cross-examination Mr Crisp gave the following evidence:
"Q. You were aware that during the log of claims campaign a tendency had developed for other shop stewards in the vehicle assembly plant to request to see Mr Bowling when they had any complaints?

A. I cannot recall a specific instance of that.

Q. Were you aware that that was a cause of concern amongst any other company officials?

A. Not particularly, no.

Q. Not particularly. Were you aware of it at all?

A. No.

Q. You never discussed that matter with Mr Murray?

A. No."
I do not accept Mr Crisp's answers of "no" to the last and to the second last questions which I have quoted and I consider that his first answer was evasive. On this aspect Mr Murray had at an earlier stage given the following evidence:
"In the terms of the senior shop steward, I am saying he was seeking to be the major influence as opposed to seeking the role of the senior shop steward, as allowed under the award.

(Mr Regan) You expressed concern about this development to Mr Crisp?

A. Yes.

Q. Did he agree with you?

A. I believe so because he had been advised of incidents where other shop stewards, on having a grievance in the vehicle assembly plant, were demanding to see Les Bowling.

. . .

Q. You mentioned to him (Mr Holland) on occasions there was concern expressed by yourself and Crisp as to the extending influence of Bowling?

A. I would think so, yes."
(4) I am also unable to accept the following answers given by Mr Crisp in cross-examination:
"Q. Did you know that Mr Bowling was involved in organising the bans and stoppages in relation to the award campaign?

A. Not particularly, no.

Q. Not particularly. Were you aware of it at all?

A. I think - - - okay. No."
(5) Another example both of inconsistency of evidence and of evasiveness in the answers arose out of evidence in chief by Mr Crisp that prior to August 1978 his relationship with Mr Bowling was "good" and that until 9 August 1978 he expected that relationship to continue and that he "had nothing to suggest anything else". That evidence may be contrasted with -

(a) Mr Crisp's evidence that before 9 August 1978 he knew of "at least two" reprimands being given to the informant;

(b) the opening sentence of the statement read to the informant when he was dismissed on 10 August 1978:
"You have been given previous warnings about unlawful and disruptive activities.";
(c) the answer given during his cross-examination that he was not surprised that the informant led the "disruptive action" in the administration offices. That answer appeared to be given reluctantly and was preceded by three rather evasive answers as follows:
"Q. Did not your day to day contact with Mr Bowling make you wonder how he could have come to lead this most disruptive action?

A. I was more concerned that the action had taken place.

Q. You were not surprised that Mr Bowling, who had given you no trouble, led this most disruptive action?

A. I was surprised that that action had taken place, yes. I was surprised and extremely upset and disappointed by it, yes.

Q. You were surprised that it took place. Were you surprised that Mr Bowling led it?

A. Very few things at Elizabeth surprise me.

Q. You were not surprised that Mr Bowling led it?

A. That was not an emotion I recorded at the time. There were others, but not that."

Mr Crisp denied that his decision to dismiss the informant was "by reason of the circumstance that (the informant) was . . . (a) delegate of . . ." the Federation. I am not prepared to accept that denial - assuming that it was intended by the witness to convey the meaning that that circumstance was not a substantial reason for the dismissal. However, I should add that Mr Crisp did not expressly say that the circumstance that the informant was a delegate of the Federation was not a "substantial and operative factor" in the decision to dismiss the informant. Nor did he expressly say "that in dismissing him (he was) not influenced by the fact that he was a shop steward . . ." or that the informant was dismissed "without regard at all to his position as a shop steward" - see General Motors Holden Pty Ltd v. Bowling (1976) 12 A.L.R. 605 per Gibbs J. at p.612 and per Mason J. at p.617. I am not suggesting, of course, that a defendant in order to discharge the onus of proof under s.5(4) of the Act is required to lead evidence using any particular words.

In this connection the form of the denial given by Mr Lea in re-examination - as to the reasons for his recommendation that the informant be dismissed - was as follows: (a) his belief that the informant was a militant shop steward was not "one of the reasons or a reason";

(b) the fact that the informant at a mass meeting had seconded a motion rejecting the company's offer in the negotiations for a new award did not "form any part of (his) reasons";

(c) the fact that the informant was a member of a committee of shop stewards which "proposed or prepared guerilla actions during the award campaign" was not "a reason";

(d) the fact that on certain occasions the informant had stopped the assembly line in relation to safety issues was not "a factor".

In each of (a), (b), (c) and (d) the evidence was that the matter enquired of was not "a reason" or "a factor" or "one of the reasons" or "any part of" the reasons. The next question was in a different form, namely:
"Q. I think you said that you did not sack him because you understood him to be a militant shop steward. Did you recommend that he should be sacked because he was a shop steward?

A. No."

The evidence of Mr Lea was also given in an impressive manner during his evidence in chief. Mr Lea was under cross-examination for a long time. Even assuming that he at times gave answers which he did not really mean because of fatigue, his demeanour as a witness, coupled with his failure on a substantial number of occasions to answer the question put, was such as to leave the Court with no real confidence in the reliability of his evidence on matters which were in issue in the proceedings. Again it may be desirable to illustrate by reference to the transcript.

(1) Mr Lea was cross-examined as to whether "it was a matter of concern to you that Mr Bowling was supposed to be extending his influence". The witness gave several answers which were evasive and cross-examination on that aspect continued for a considerable time. Because of his answers and his demeanour I reject his evidence that he "was not concerned any more than (he) would be concerned about anything else".

(2) Mr Lea was also evasive in answer to a question as to whether he knew that the informant "was playing a fairly militant role during the log of claims campaign". I do not accept the explanation given by the witness for his failure to answer the question.

(3) The witness also gave evasive answers on the question of whether he knew that the informant spoke at the mass meeting of approximately 1,500 employees in July 1978. Further, on this question Mr Lea gave evidence which contradicted an answer he had given previously.

(4) Mr Lea's evidence was also unsatisfactory on the question of whether in deciding to recommend the informant's dismissal he was influenced by any view that the informant had used his persuasive powers to induce the employees to march to the administration block. Mr Lea gave evidence that at the time when he decided to recommend dismissal he "did not have an opinion" on the question of whether Mr Bowling and Mr Sweeney had "got the V.A.P. employees into the office". I reject that evidence partly because of his demeanour and partly because it was inconsistent with the evidence of Mr Stanton.

(5) I also reject the evidence given by Mr Lea in cross-examination that the reason that a decision to dismiss the informant was made before the return of Mr Lea's immediate superior (Mr Stanton) at 8.30 in the evening of 9 August 1978 was that he "considered that the seriousness of the situation warranted immediate action to be taken, that in fact we had to take that action". On Mr Lea's own evidence the informant, along with Mr Sweeney and Mr Noone, had already been suspended from work earlier that day and the defendant's decision as to dismissal or otherwise was not to be given effect until the following morning. There is nothing in any of the evidence given by Mr Lea or by any other witness called on behalf of the defendant to support the view that a decision had to be made before Mr Stanton's return.

The references which I have made to the evidence of Mr Crisp and of Mr Lea are intended to illustrate why the evidence called by the defendant has failed to discharge the onus on it under s.5(4). Other references could be given from the evidence including that of other witnesses called by the defendant. For example, Mr Mansfield was evasive in answer to a question as to whether he "would have preferred Mr Bowling was not a shop steward in (his) area". In addition I reject his evidence that, from early 1977 until his dismissal on 10 August 1978, Mr Bowling was "no more active than other shop stewards in the plant". I also consider that Mr Klaffer was evasive in a number of his answers in cross-examination.

Before leaving the witnesses called by the defendant I should perhaps add that, because of the view which I have taken as to their credibility, the defendant would have failed to discharge the onus of proof under s.5(4) even if I had found as a fact that the informant was the main spokesman in the administration offices for the V.A.P. employees.

The foregoing are the reasons for the decision that the defendant company be convicted - a decision announced on 27 February 1980 at the completion of the hearing relating to the charge.

In considering what is an appropriate penalty I have had regard to the nature of the conduct of the informant as one of the V.A.P. employees in the administration office on 9 August 1978 and to his role as one of the spokesmen for those employees. I have taken into account the fact - as I have already found on the evidence - that the informant's conduct in the administration offices was a substantial reason for the defendant's decision to dismiss him. I have also taken into account the previous conviction of the defendant under the same section of the Act for dismissing the informant in 1975 - in respect of which offence the defendant was fined $300. The maximum penalty under the section is $400 - a maximum which "would do little to achieve" the "object of Parliament in enacting s.5" (per Smithers and Evatt JJ. in Bowling's Case (1975) 8 A.L.R. at p.210). In the light of the maximum penalty prescribed I consider that a penalty of $300 is appropriate to the circumstances of this case.

At the commencement of the hearing Mr Regan stated that, if the defendant were convicted, the informant would seek an order for the reimbursement of wages lost by him and would also seek a direction that he be reinstated in his old position with the defendant or in a similar position. Mr Regan accepted the position that, unless the defendant consented, it would not be proper for the evidence and argument as to the applications regarding loss of wages and for reinstatement to be heard before a conviction was recorded - see Jones v. Thiess Bros. Pty Ltd (1977) 30 F.L.R. 422 at p.438; (1977) 15 A.L.R. 501 at p.516.

After the announcement of the conviction Mr Regan called the informant to give evidence in support of his application for reimbursement of wages lost and for reinstatement. No further evidence was called by the defendant. Section 5(5) of the Act reads as follows:
"(5) Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position."

As to both the application for wages lost and the application for reinstatement Mr Russell Q.C. relied upon the delay which had occurred between the dismissal of the informant on 10 August 1978 and the laying of the information under the Act on 9 August 1979. However, on 1 September 1978 (22 days after his dismissal) the informant caused to be issued in the registry of the Industrial Court of South Australia an application for an order for his reinstatement under s.15(1)(e) of the Industrial Conciliation and Arbitration Act (S.A.). That application was one day out of time - a fact which led to applications for extension of time by the applicant and by other employees who had been dismissed including Mr Cornish. Mr Cornish's application for an extension of time was the subject of an unsuccessful application by the defendant to the Supreme Court of South Australia followed by an unsuccessful appeal by the defendant (by leave) to the Full High Court of Australia.

As to delay, Mr Regan relied on Bowling v. General Motors-Holdens Pty Ltd (1975) 8 A.L.R. 197 per Smithers and Evatt JJ. at p.211:
"In this case the informant did demonstrate quite promptly, not only his desire for reinstatement, but also his intention to seek it at law, by taking proceedings under the South Australian Act. . . . the delay in taking the proceedings in this court was not due to any wavering in the informant's desire to be reinstated or to mere inattention to the pursuit of that remedy at law."

Mr Regan submitted that in the present case the delay which had occurred was in virtually the same category as that unsuccessfully relied upon by the defendant in the earlier case of Bowling v. General Motors-Holdens Pty Ltd (supra) in which the Industrial Court ordered reinstatement and Smithers and Evatt JJ. decided that "it would be proper to award him the difference between his actual earnings and those he would have received for that period if he had remained in his employment with the defendant".

On the application for wages lost there was some evidence as to the periods when the informant was employed since his dismissal on 10 August 1978 and a period when he was receiving workers' compensation payments. Mr Regan said that the parties both had details of the amounts involved and that he was confident that they would "be able to agree on quantum, once the issue of liability is decided". Mr Russell Q.C. agreed with that course and suggested that liberty to apply be reserved.

One question to be determined is whether in exercising its discretionary power the Court should make an order for wages lost in respect of a period before the laying of the information. It is true that in Bowling's Case (supra) the period in respect of which the order for reimbursement of wages was made by the Industrial Court was a period commencing on the date on which the information was laid. This was because of the concession made on behalf of the informant in that case. As Smithers and Evatt JJ. said (at p.216):
"It was properly conceded by Mr Harrison that a claim for reimbursement with respect to the period prior to the laying of the information herein namely 20 June 1975, could not be sustained."
Despite the use of the words "properly conceded" it is clear that their Honours did not decide that question which had not been the subject of any argument before the Court. The section on its face authorises an order for "any wages lost", i.e. from the date of dismissal, and in Ferguson v. Foster & Sons Pty Ltd (1969) 14 F.L.R. 370 at p.381 the Industrial Court (Spicer C.J., Smithers and Kerr JJ.) made an order for payment "of wages lost from the date of dismissal until new employment was found". In my view where an employee has been dismissed in contravention of the section there is no reason in principle why the Court should refrain from exercising its discretionary power to require the employer to reimburse the dismissed employee in respect of any period after his dismissal which was reasonably necessary to enable him to obtain legal advice and to institute proceedings under the Act. However, as the present informant originally took a deliberate decision to pursue his remedies under the South Australian Act, I consider that this Court in the exercise of its discretion should not make an order in respect of wages lost by the informant between 1 September 1978 and 9 August 1979, i.e. between the date on which documents were filed on his behalf in the Industrial Court of South Australia and the date on which proceedings were instituted before this Court.

I agree with the view taken by Smithers and Evatt JJ. in Bowling's Case (supra) (see also Ferguson's Case (supra)) that the amount ordered in respect of lost wages should be "the difference between his actual earnings and those he would have received for that period if he had remained in his employment with the defendant" until the date of this decision. In my view workers' compensation payments received by the informant in this case should be treated as if they were actual earnings. On this application I reserve liberty to the parties to apply.

As to the application for a direction that the defendant reinstate the informant, Mr Regan submitted that an order should be made having regard to the following matters:

(1) The informant had been employed by the defendant since 1972 - except for periods off work due to his two dismissals by the defendant.

(2) His work as an employee was satisfactory, e.g. Mr Crisp gave evidence that he "had no complaints of (the informant) as a worker".

(3) The informant desired reinstatement and had not obtained regular employment elsewhere.

(4) The informant had not been guilty of undue delay in bringing the proceedings - a matter which I have referred to earlier.

(5) It had not been established that, if reinstated, either the informant's work as an employee or his attitude to that work was likely to cause any hardship or injustice to the defendant.

(6) It had not been established that any innocent third party was likely to suffer any hardship if the defendant were reinstated.

(7) Reinstatement should be ordered having regard to the objects of s.5. As to this aspect Mr Regan relied upon the statement by Smithers and Evatt JJ. in Bowling's Case (supra at p.210) (cited in Jones' Case 15 A.L.R. at p.518) that:
"The immediate object of Parliament in enacting s.5 can clearly be seen to be to remove fear of adverse action by an employer against an employee taking union office, and performing the functions of that office".

Mr Russell Q.C. in opposing the application for an order for reinstatement relied upon the informant's delay in instituting the proceedings under s.5 - a matter which I referred to earlier. He also submitted that:

(a) The informant's actions in the administration offices were unlawful. The mere entry into those offices in the circumstances constituted a trespass as it was outside any licence conferred by the defendant upon the informant as an employee; alternatively the continuation of the act after the informant was asked by the defendant's officers to leave the offices constituted a trespass.

(b) The informant's actions were a breach of the award in that they constituted a non-observance of the grievance procedure set out in clause 35 of the award.

(c) During the negotiations for a new award in 1978, the informant had played a part in planning and in co-ordinating "guerilla" activities designed to disrupt production.

(d) Mr Russell also sought to rely upon a number of decisions of the Commonwealth Conciliation and Arbitration Commission referring to the responsibilities and functions of shop stewards. These decisions, which he said "were decided, no doubt, without jurisdiction", were World Services and Construction Co. Pty Ltd v. Boilermakers Society of Australia (1961) 98 C.A.R. 459, Lewis Dixon Hillier v. Australian Stevedoring Industry Authority (1963-64) 105 C.A.R. 901, Minister of State for the Navy v. Federated Engine Drivers' and Firemen's Association of Australasia and another (1964) 107 C.A.R. 806 and Australasian Meat Industry Employees Union v. Thomas Borthwick and Sons (Australasia) Ltd (1965) 111 C.A.R. 501. I have not found any of those decisions to be of any assistance in considering the application for reinstatement.

(e) Mr Russell also submitted that it was "undesirable that an order for re-employment should be made . . . because it is likely to have the effect . . . in the mind of the ordinary person, that s.5 not only protects shop stewards, but that it licenses them to engage in unlawful activities, wrongful activities . . .". I do not accept that submission. In my opinion where the Court is considering whether to exercise its discretionary power to direct the reinstatement of an employee who has been dismissed in contravention of s.5 of the Act is would be wrong for the Court to take into account, as a reason against making such an order, the possibility - or even the certainty if it were established - of such an order resulting in the public having such a wrong belief. Plainly the position of shop steward confers upon an employee no immunity from proper disciplinary measures taken against him as an employee. As Mason J. said in General Motors Holden Pty Ltd v. Bowling (1976) 12 A.L.R. 605 at p.616:
"It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons."
(See also Hyde v. Chrysler (Australia) Ltd (1977) 30 F.L.R. 318 at p.332 per Northrop J.)

In considering whether to direct that the informant be reinstated I have given consideration to all of the matters relied upon as supporting the submissions of Mr Regan and Mr Russell respectively - although I have not been influenced by the matters in (d) and (e) above relied upon by Mr Russell. I have considered the application in the light of the evidence as a whole except those portions of the evidence which I have refused to accept. As the Court said in Jones v. Thiess Bros. Pty Ltd (1977) 30 F.L.R. 422 at p.442:
"The section does not lay down any criteria by which the court should be guided in exercising its discretion. On the one hand, the section does not in terms require the existence of special circumstances in order to warrant the exercise of the court's discretion in favour of the dismissed employee. On the other hand, the section does not say that, upon conviction, the court 'shall, unless in all the circumstances (it) thinks it undesirable so to do', direct that the employee be reinstated in his old position or in a similar position (compare the wording of s.142 of the Act - although in an entirely different context)."

I have decided to refuse the application for reinstatement and in so doing I have given great weight to one aspect.

Mr Mansfield gave evidence that on 19 July 1978 he was told by the informant that "if personnel did not pull their heads in they would get the same treatment as had been given to Rosenboom" (in 1976). Mr Mansfield said that he asked the informant what he meant by that statement and that the informant said that "the people on the afternoon shift invaded Mr Rosenboom's office to put their points across to him" - Mr Rosenboom being then the afternoon shift superintendent. I have rejected Mr Mansfield's evidence on one issue - and found him to be evasive on another matter. However, the evidence by Mr Mansfield on this aspect was adhered to despite cross-examination at some length and there was nothing in his demeanour to cause me to doubt this part of his evidence.

In addition the informant was not prepared to expressly deny that he had made a statement to that effect. Under cross-examination by Mr Russell Q.C. he said "I do not remember ever saying anything like that". That answer was pursued as follows:
"Q. When you say you do not remember saying anything like that, are you saying you did not say it or that you just do not have any recollection of it?

A. I do not remember the incident at all.

Q. You do not remember Mr Mansfield saying to you, 'What do you mean by that?' and replying to him, 'One night on afternoon shift about 100 people off the mainline tried to get into Bill Rosenboom's office and let the company know how they felt'?

A. I have no recollection of that at all.

Q. Thinking back now, do you still say you have no independent memory of one night in about 1976 when about 100 people from the main line tried to get into Mr Rosenboom's office?

A. Not that I can recollect at this point of time.

Q. You do not remember being in that group yourself?

A. I do not remember."
I accept Mr Mansfield's evidence on this aspect and find the following facts:

(1) The informant was in the front row of a large group of employees who in 1976 "invaded Mr Rosenboom's office" - to adopt the words used by the informant as given in Mr Mansfield's evidence.

(2) On 19 July 1978 the informant threatened similar action in respect of the offices of the personnel officers if they did not change their attitude.

(3) On 9 August 1978 the informant told the stop work meeting that the proposal that the V.A.P. employees at the meeting should go to the administration block was a "good idea". It is true that he warned his fellow employees of the "possible consequences of such a mass action" and said that "he had no doubt the company would come down rather heavily on us". However, I do not regard those statements by the informant as being in any way designed to dissuade the employees from going to the administration block. On the contrary, his support of it as a "good idea" is consistent with the threat made on 19 July 1978. Also, the informant was on his own evidence one of the spokesmen for the V.A.P. employees in the administration office although I have not been persuaded that the informant was the main spokesman.

In these circumstances I have come to the conclusion that it would not be a proper exercise of the Court's discretion to direct that the informant be reinstated in his old position or in a similar position. Accordingly that application is dismissed.

Mr Russell Q.C. on behalf of the defendant applied for the time for appeal against the conviction fixed by the Rules to be extended to a date 21 days after the delivery of these reasons for judgment - to enable the defendant to consider the reasons for judgment. I grant that application.

The order of the Court is:

1. In respect of the conviction of the defendant under s.5(1)(a) of the Conciliation and Arbitration Act 1904, announced on 27 February 1980, the defendant is ordered to pay a penalty of $300.

2. The application for an order directing that the informant be reinstated in his old position or in a similar position is dismissed.

3. The parties have liberty to apply as to the application for the reimbursement of any wages lost by the informant.

4. The time fixed for appeal against the conviction is extended to the date 21 days after the delivery of these reasons for judgment.