Brakoulias, Nicholas v Yakka Pty Ltd

[1982] FCA 314

VICTORIA DISTRICT	REGISTRY	1	V. No.41 of 1982
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DIVISION	INDUSTRIAL	)
BETWEEN :

NICHOLAS BRAKOULIAS Prosecutor

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and

Defendant

%?XXA PTY. LIXITED

NORTHROP J . . ORAL JUDGMENT 10 DECEMBE.3 1 9 8 2 .

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. Nicholas Brakoul iasasprosecutor has brought th i s

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information under s.5 of the Conci l ia t ion and Arbi t ra t ion A c t

1 9 0 4 aga ins t Yakka Pty. Limited as de fendan t , a l l eg ing tha t t he

defendant as employer d id , con t r a ry t o s.5(1) of the Conci l ia t ion

and Arbi t ra t ion A c t , d ismiss him by reason of the circumstance '

t h a t he was a de lega te of the Clothing and Allied Trades Union of

Aus t ra l ia , an organization of employees under the A c t .

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The al leged dismissal took place on 8 September 1982,

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and I have been informed t h a t the proseca tor is seeking a2 order

tha t he be re imbursed for wages l o s t by him and is seeking a

d i r e c t i o n t h a t h e b e r e i n s t a t e d i n h i s o l d p o s i t i o n o r i n a

. similar pos i t ion . A t present the informant hasotheremployment.

The	hear ing	of	the information	i n r e l a t ion to the cha rge has been
heard separaiely from the	issues	-	of	what orders and direct lons

shwlld be made i f t h e d e f e n d a n t is found gui l ty .

Because of a l l t h e s e f a c t o x s it i s d e s i r a b l e t h a t

t h e p a r t i e s kno;:  t h c l r l q a l pos i t l on as qujcLly as poss lb le so

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t h a t t h e y may r e g u l a t e t h e l - a f f a i r s w i t h o u t t h e uncer ta ln ty

p re sen t ly ex i s t ing . Becacse o f o the r commitments, d e t a i l e d

r easons fo r judgment cannot be prepared for some consider$Ae

period. However, I have formed a f i rm view on t h e i s s u e o f whether

the defendant commit ted the offence al leged, and	I	propose to
announce my	opinlon on	t h a t m a t t e r .

0 Applying the c r imina l s tandard pr o f of ,on a l l t h e

evidence I an s a t i s f i e d t h a t t h e p r o s e c u t o r was a de l ega te of an

o rgan iza t ion wi th in the meaning of s . 5 ( l ) ( a ) of the A c t , t h a t he

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was	employed by the defendant	a t its Brunswick shop and that he
was	dismissed from t h a t employment on	8 September 1982 by t h e

plant manager, Brunswick, Mr. McAdam, being a person having

a u t h o r i t y t o d i s m i s s him. On t h e whole of the ev idence , I am

- s a t i s f i e d beyond reasonable doubt that	a l l	t h e r e l e v a n t f a c t s
and circumstances, other than the reason	set	ou t i n the in fo rma t ion

as being the reason for t h e dismissal, have been proved,

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Accordingly, under s.5(4) of the A c t , it l ies upon the defendant

t o prove on t h e b a l a n c e o f p r o b a b i l i t i e s t h a t t h e d i s m i s s a l was I ,

no t ac tua t ed by reason of the c i rcumstance tha t the prosecutor

was a de l ega te o f t he Union.

. I am s a t i s f i e d t h a t a r eason fo r t he d i smis sa l was

because M r . McAdam had d i scove red ce r t a in i r r egu la r i t i e s r e l a t ing :

t o t h e piece-work t icke ts of another employee of the defendant ,

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namely Miss Terry Watts, which Mr. PIcAdam be l i eved r e su l t ed from

the incompetence of the informant in performing his dut ies , and

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accordingly the informant o r prosecutor shouid be dismissed.

M r . McAdam b e l i e v e d a l s o t h a t comments made by the prosecutor

a t a stop-work meeting held immediately a f t e r Miss Watts had been

dismissed from her employment cm 27 August 1982 J u s t i f i e d t h e

dismissal of the prosecutor , but M r . McAdam had taken no f u r t h e r

s t e p s t o i n v e s t i g a t e t h e m a t t e r s g i v i n g r i s e t o t h a t b e l i e f ,

a p a r t from t h e f a c t s r e l a t i n g t o Miss Watts, before he dismissed

the prosecutor . H e h a d i n v e s t i g a t e d t h e f a c t s r e l a t i n g t o Miss

Watts a t the reques t o f an organizer of the Union, who sought the

reinstatement of Miss Watts i n h e r employment.

The establ ishment of one reason for dismissal , however,

does not of i tself negate the reason al leged in the information.

On t h e whole of the evidence I a m s a t i s f i e d , on the balance

of probabi l i t i es , tha t the defendant has proved the nega t ive ,

namely	t h a t i n d i smiss ing the prosecutor	it was not ac tua ted	by
reason of the c i rcumstance tha t the prosecutor	was	a	delegate of

0 t h e Union. Pu t i n o t h e r words, the defendant has proved, on the

ba l ance o f p robab i l i t i e s , t ha t t he p rosc r ibed r eason fo r

d i smis sa l was no t a s u b s t a n t i a l and o p e r a t i v e f a c t o r i n t h e

d i smis sa l o f the ,p rosecu to r .

I n coming t o t h a t c o n c l u s i o n I have taken into account

my	assessment of the wi tnesses whi le g iv ing the i r ev idence , a l l
t he su r round ing f ac t s	and c l r cuns t ances inc lud ing the f ac t t ha t

t he s t a t ed r eason fo r d i smis sa l was, on the ev idence , j u s t i f i ed ,

and on the evldence of M r . McAdam and 1.k. Hazelden t h a t i n

d i smiss ing the informant they d id not have regard to the fac t that

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the prosecutor was a de l ega te o f t he Union. I have had regard

a l s o to t he f ac t t ha t t he de fendan t conduc t s "c losed shops" ,

t h a t is, where a l l r e l e v a n t employees are members o f t he Union,

and t h a t t h e r e	are shop stewards appointed	by t h e Union iG each
establishment conducted	by	the defendant , and tha t regular

meetings occur between management and the shop s tewards. Further ,

hav ing r ega rd to the V7hOle of the surrounding facts and circum-

s t ances , i nc lud ing the demeanour of the wi tnes ses , J accept the

0 evidence of Mr. McAdam and Mrs. V a l e r i t h a t t h e y had no t au tho r i zed , .

the prosecutor to accept b lank p iece-work t icke ts used by Miss

Watts which had not been signed by e i t h e r of them. I n any event,

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even i f I re j ec t ed tha t ev idence and accepted the evidence of

the prosecutor on t h i s p o i n t , t o a d o p t t h e words o f Mason J, i n

General-Motors Holden's Pty. Limited v. Bowling (1976) 51 A.L.J.R. '

235 a t p.241, I am n o t s a t i s f i e d o n t h e whole o f t he ev idence tha t

t h e d i s m i s s a l was cons i s t en t w i th the hypo thes i s t ha t t he

defendant was ac tua ted by the p rosc r ibed r eason .

I n my opin ion the defendant is n o t g u i l t y o f t h e

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offence charged. Accordingly, the information is dismissed.

. I f a n y p a r t y so r eques t s I will prepare and publ ish