Campbell, Ross Johnson v Gonnan, John

IN THE AUSTRALIm )

B No. 35 of 1976

i	INDUSTRIAL COURT

In the matter of

THE CONCILIATION AND ARBITRATION

ACT 1904

B E T W E E N :

ROSS JOHNSON

CM'IPBELL

Claimant

- and -

JOHN GORMAN and OTHERS

Respondent

Coram: Dunphy, A.C.J.

matt, J.

St. John, J.

ORDER OF THE COURT:

This Court doth Order that

e nine firstnamed

Respondents and each of them treat and continue to treat as

a nullity all proceedings which took place at Room

68, Trades

Hall, Goulburn Street, Sydney

at o r about 2.30 p.m. on 3 March

1976 in relation to charges laid against the claimant under

Rule 37 of the Rules of	the Federated Marine Stewards and
Pantrymen's Association	of Australasia.

I	I N THE AUSTRPLIAN

B No. 35 o f 1976

INDUSTRIAL

COURT

IQ the matter

of -

THE CONCILIATION AND ARBITRATION

ACT 1904

B E T W E E N :

ROSS

JOHNSON

CAMPBELL

Claimant

JOHN G O W N and OTHERS

i	RespQndent

Coram:

Dunphy, A.C.J.

Sydney

Tuesday, 13th December, 1977

Evatt ,

St.

John, J.

FSASONS FOR JUDGEMENT

, , . ' 8 - '

Ross Johnson Campbell (the claimant) has

made appl ica t ion

pwsuant to Sec t ion

141 of

the Concl l ia t ion

and

Arbi t ra t ion

Act 1904

f o r , i n t e r a l i a

an order against the

firstnamed

respondents

in the following terms:-

f140

That the

nine

firstnamed

Respondents

and each of

them t r e a t and continue t o

t r e a t as a n u l l i t y all proceedings which

took place

a t Room 68, Trades

Hall, Goulburn

S t r e e t , Sydney a t or about

2.30

p.m.

Narch 1976

i n r e l a t i o n t o c 5 a r g e s l a i d

against the claimant under Rule

of the

Rules of the Federated

Marine

Stewards

and

Pantrymen's Association of Australasia.If

Other orders sought originally are

longer sought.

The

Federa l Counci l o f the organisa t ion re fer red to in

the

order sought

a t its meeting on 3 March, 1976 purported t o

suspend the claimant from

membership

i n circumstances

which

the claimant alleges manifest

denial of natural

j u s t i c e and a lack of

power

i n the Federal Council.

The

f a c t s a r e

i n dispute.

Because of

the

conclusions

law we

have reached

do no t f i nd

It necessary to resolve

the d ispute

and will

assume

t h e f a c t s t o

be as alleged by

the	respondents.

The

claimant was

a t a l l r e l e v a n t t i m e s

member

o f the

registered organisation, the Federated

Marine Stewards

and

. . ./2

- 2 -

Pantrymen's Assoclation of Australasia. On

3 February, 1976

in the ship IfAustralian Trader", then

at sea, the passengers

were being served luncheon and the claimant,

a ship's

delegate named Richard Grenville, and others were assisting

in the provision of luncheon for the passengers

by carrylng

out duties

in the pantry and handing meals to waiters from

an area known as the hot press.

A notice, placed there by

ship's officers, prohibiting the use of obscene language

by staff in the pantry had for sometlme been displayed on

a notice board in the pantry area. The claimant allegedly

used foul language

in describing to a cook nearby the

propensities of one of

his friends for violence and his

friend's capabllitles in that regard. Mr. Grenville, a

steward, and one

of the I'shLpIs delegates1', spoke

t o the

claimant about his language and the claimant replied with

question asking

Mr. Grenville Ivho he thought he was. At the

time the pantry and the claimant kwein charge of a pantrypan who was present. The second steward, another person with power to direct the claimant was temporarily absent but

on his return

Mr. Grenville asked his permission to leave

the hot press for the purpose of speaking to another ship's

delegate named Miller. This request

was granted and

subsequently Mr. Miller and

Mr. Grenville drafted a document

which D%.

Grenville termed

a I'citatlonl' making allegations

of misconduct against the claimant. The main allegations may

be summarlsed by stating that the service from the press

was

thrown into disruption by loud and continued disgusting language

which could clearly be heard by the passengers

i the diqiqg

room.

*/3

- 3 -

A meeting of members of the organisation

on board the ship

was called

by the two delegates

and held at 10 a.m. on 8

February, 1976.

Subsequently, on that day, the claimant,

whilst in the plate locker, used most

objectionable and

f o u l language to Mr. Grenville. No passengers were within hearing on this occasion. Mr. Grenville subsequently laid

a charge pursuant to the rules of the organisation

a d

that charge was later said to

be made pursuant t o Rule

37 3. (a) which rule is in the following terms:

I'Any member who insults or uses abusive language

to any official of the Association vrhilst, such

official is in the course of his dutles as such

official, shall

be guilty of an offence under

the se Rule

On 17 February, 1976 the respondent Leslie Mullens, general

secretary of the organisation

mote on its behalf to the

claimant in the following terms:

"1 have been instructed by the Executive Council to

inform you that you are charged under

Rule 37 o f

the Rules of The Federated Marine Stewards and Pantrymen's Association of Australasia (amended

1959), re your conduct on board the I'Australian

Trader.

I	I am further instructed by the Executive Council
I	to inform you that you are not permitted to engage

- 4 -

i n t h i s I n d u s t r y a s

a Steward

u n t i l your case

is heard by the Federal Councll

of the Federated

Marine Stewards

and Pantrymen's Association

of	Australasia .

You

are hereby directed

t o appear before the

Federal Council

of The Federated Marlne Stewards

and

Pantrymen's Associatlon

o f

Aus t r a l a s i a a t

Room 68, Trades

Hall,

Goulburn

S t r e e t ,

Sydney,

a t 2 D 30 p .m. on the 3rd

March, 1976

t o answer

these

charges.

26 February, 1976 t h e s o l i c i t o r s

f o r the claimant

vrrote

reques t ing par t icu lars

o f

the charge referred

t o i n t h e l e t t e r

o f 17th and by h is rep ly da ted

2 March, 1976

Mr.

Mullens gave

the pa r t i cu la r s

i n the following terms:

VJsed obsene ( s i c ) and disgusting

language on

two separate occasion (s ic) whils t on duty. Language addressed t o Unlon Delegate within

the hearing of passengers including

women and

chi ldren and a l so the	members	o f	t h i s
Assoclation.

3 March, 1976

the claimant attended before the Federal

Council a t t h e

time and place specif ied.

was

excluded

from the meeting

room whilst evidence in support

of the

charge was glven against him and it i s conceded by respondents

who

were

p re sen t a t t he mee t ing tha t i n the

absence

the

claimant, evidence

of his general conduct

and character was

. .

- 5 -

given

the counci l .

The

said

council,

then

purported

t o suspend the appl icant

from membership

f o r a period.

The claimant puts

his case i n a number of ways.

F i r s t l y ,

he submits tha t ru le 37 .3(a)

has no app1iGatj.m and there

was no evidence upon which i t s breach could be	found beRore
the Council for the following reasons:

( a )

The

ship 's

delegate

is not an o f f i c j a l

w i t h i n

the

meaning

of the ru le .

(b 1

Assuming tha t a

ship's delegate is an off ic ia l ,

within the mesning

of the ru le

the s h i p ' s

delegate

was

no t ,

a t the relevant t ime,

i n

the course of

his

duties

a s such o f f i c i a l .

( c )

Such

ac t ion as

the

claiDant

ook

on 3 February

was

nei ther insul t ing nor abusive language, nor

was

It	d i r ec t ed to the de l ega te .

addition,

the claimant,

through his counsel,

submits

tha t he

has been denied natural justice by

the

respondent

members of

the councll .

p o i n t s t o t h e l e t t e r

February,

above

r e f e r r e d t o ,

as clear evidence that

a t

l e a s t M r .

Leslie Mullens

and such members of

the counci l

were

concerned

i n t h e a c t i o n r e f e r r e d t o

i p that

l e t t e r ,

prejudged the matter

and exhibi ted bias agains$ him when

they purported to

withdraw his permission to work i n the

industry.

F'urther,

the

charge

was

n o t c l e a r l y

made

known

. . ./6

- 6 -

t o him

i n t h e l e t t e r o f t h e

17th nQr

i n t h e l e t t e r

MaTch.

Neither the date nor place of tbe alleged offences

set

o u t

and

f a i r reading would

l ead the r ec ip i en t

t ha t l e t t e r t o

be l i eve tha t t he re

were two occasions upm

which women and

ch i ldren were

within

hear ing d is tance .

f i r ther ,

the

claimant

r e l i e s upon his exclusion from the room during the

time

evidence was

taken

and

the taking gf evidence, by the covncil,

hls

general conduct wrelated to the specif4c charges also

Ivhilst the claimant was excluded from the

room.

A s t o the submissions based

upon lack of

pqwe?

in the Fede ra l

Council

because

lack of

any

eyidence

it hqs been sqbmik~ecl

by counsel for the respondents

t ha t the

Tind$pg

guilt

by the council cannot be

re-exarniped

by t h i s Court and must

be accepted whether there

is any evidepce on which

the f inding

could be based

or not. Reliance

was placed on Australian

Workers!

Union v. Bowen 77 C.L.R. 601 (Bowep's Case),

Bowen's

case was

dis t inguished by this Court in Clark ,v .*

P r i n t m g and Kindred Industries

Union and Others (1976

9 A.L.R.

621).

The Court 1 s no t bound to accept an

inGorrect

interpretat ion of rules by

domestic tribunql and

where

there

i s no

evidence

on which

the t r ibunal can f ind

a g it

d i d

f ind, the Court in proceedmgs pursuant to Sect ion

141

the Act,

may

make

appropriate

orders.

The rules contain only

one r e fe rence to

a delegate:

it is

provided that that person can

demand the production of members!

./7

- 7 -

contribution books

and f a i l u r e t o

so produce makes the member

l i a b l e t o

small penalty.

There

is evidence before

us that

the p rac t i ce s ince

1972 on

the shlp l lAustralian Trader"

was

tha t fo r each fou r

week

per iod there

was

e l ec t ed ,

a t the

commencement

that per iod,

two

sh ip ' s de lega tes .

Mr. Grenville has given evidence

as t o what he conceived

h is d u t i e s t o

i n that pos i t i on and the claimant

also gave

some evidence as t o his understanding o f the dut ies .

It was

submitted by counsel for the respondents that

this

evidence

could be regarded

as proof

t h a t t h i s was

well k n o ~ m

prac t iqe

within the organisation and

supplemented

the

rules.

think

it too scanty to

amount

t o such proof

i n r e l a t i o n t o the

pract lce of the organisat ion,

the evidence

i s confined

t o t h a t p a r t i c u l a r s h i p

from

1972 until

1976.

o f f i c e r

the organisat ion

gave

evidence of any

such p rac t i ce

elsewhere.

t o t h e

meaning

the word

l l o f f i c i a l l l

i n rule 37.3(a)

i s t o be noted

that it i s an

o f f i c i a l "of the association1',

which

i s a

descr ip t ion whxh does not readi ly

f i t a person elected

by the members on a part icular

ship. "Off lcer ' l

i s

defined

i n

the Conci l ia t ion

and Arbi t ra t ion Act

and the word

'IOfficers'I

i s

used

to desc r lbe e l ec t ed o f f i ce r s o f t he o rgan i sa t ion

i n

the wr i t ten ru les .

Having

regard to the contex t

i n

which

the

word

"off ic ia l" appears

a re in doub t

as t o whether a

sh ip ' s

delegate

o f f i c i a l w i t h i n t h e

meaning

o f

t h a t r u l e .

are of

t h e view that a t the

time

the inc ident in the pantFy

. ./8

- 8 -

on 3 February there is no satisfactory evidence that such

actlon as Mr.

Grenville took was in the course of

his duties

as such official, even assuming him to be qne. There is

certainly no satisfactory evidence that the duties of

ship's delegate would include policing rules

of conduct made

by the employer

f o r the carrying out

of employees' duties,

particularly when the employee's superior was present.

It would be odd indeed

if discipline could be taken out of

the hands of the superior present and in charge and vested

by practice

or rule in a delegate or some such person.

There was, before the council, no evidence that language

used by the claimant

in the hot press area on

3 February

was addressed

to a delegate, or was insulting

or abusive,

It was argued that the lncldent of

8 February, 1976 was

merely a prolongation or continuation of the incident of

3 February. This desperate attempt to justify the council's

decision has no merit. There is nothing	in the evidence $0
support it.

The combmation of circumstances adverted to

in relation to

the laying

of and the wording of the charge, the holding

and conduct of the meeting

of the Federal Council at which

the clalmant was suspended

in our view clearly amount to

denial of natural justice.

It is unnecessary for

us to

consider whether any one

or other singly

o r in combination

would amount to such denial.

The claimant was entitled

. /9

- 9 -

t o more specific information

as t o what the charge

charges were aga ins t him.

was e n t i t l e d t o

know wha$

the evidence against

him was.

was e n t i t l e d t o have the

evidence confined

t o those charges

a t l e a s t up

t o the

stage

f inding

o f

gu i l t . C lea r ly ,

j u s t i ce

d id

not

appear to

be done.

Counsel f o r the respondents

has urged t h a t we

exercise o u r

d i sc re t ion aga ins t

the

claimant becaupe he admitted using

foul language to the delegate

Mr.

Grenville on 8 February,

dec l ine to

do so.

To leave a f inding o f g u i l t t o stand

may

af fec t the c la imant ' s fu ture

both

in,

r e l a t i o n t o

his

work and his membership of the union.

We make absolute the order sought.

[1977] FCA 97

13 Dec 1977