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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1980] FCA 32
Decision Date: 13 MARCH 1980

CaseChat Overview and Summary

The case of Bowling v General Motors-Holdens Ltd involved an employee, Bowling, who was dismissed from his position and subsequently sought relief under the Conciliation and Arbitration Act 1904. Bowling had been a union delegate and was dismissed by his employer, General Motors-Holdens Ltd. The primary dispute was whether Bowling's dismissal was justified and if he was entitled to reimbursement for any wages lost during the period before the formal information was laid and while he pursued legal remedies in the State Court. A secondary issue was whether Bowling's wages lost during his court proceedings and workers' compensation payments should be considered in the reimbursement. The matter was heard and determined by the relevant Australian industrial court.

The court had to decide whether the employer exercised its discretionary power to order reimbursement of lost wages correctly, including the period before formal information was laid and the time Bowling took to seek legal advice and lay the information. Additionally, the court needed to determine the relevance of workers' compensation payments to the calculation of lost wages. Another legal issue was whether the employer's discretionary power to direct reinstatement was exercised appropriately, considering factors such as previous invasions of the employer's office, the informant's threat of repetition, and participation in such actions.

In reaching its decision, the court examined the specific circumstances of Bowling's dismissal and the employer's actions. It considered the timeliness of the reimbursement claim, the relevance of workers' compensation payments, and the factors pertinent to the reinstatement decision. The court concluded that the employer had exercised its discretionary powers correctly and that Bowling was not entitled to reimbursement for the periods in question. The court also found that the employer's decision not to reinstate Bowling was justified based on the relevant factors.

The court's final orders were that Bowling's claim for reimbursement of lost wages was dismissed, and the employer's decision not to reinstate Bowling was upheld. The court emphasised the importance of considering the specific circumstances of each case when exercising discretionary powers under the Conciliation and Arbitration Act 1904.

Orders

Orders of the court

Orders accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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