Curran, W.J. v Comwalls (Wholesale) Meat Co. Pty Ltd
[1988] FCA 324
•27 JUNE 1988
Re: WALTER JAMES CURRAN
And: CORNWALL'S (WHOLESALE) MEAT COMPANY PTY.LTD.
No. VI 3 of 1988
Industrial Law
25 IR 394
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J(1).
CATCHWORDS
Industrial Law - alleged dismissal of delegate - information for offence - defendant calling no evidence - whether onus of proof on defendant discharged where a slender possibility that alleged dismissal was actuated by a reason forbidden by section.
Conciliation and Arbitration Act 1904 s. 5(1)(a), (d) and (f) and s. 5(4)
General Motors Holden Pty. Ltd. v Bowling (1976) 12 ALR 605 at 612
HEARING
MELBOURNE
#DATE 27:6:1988
Solicitors for the Prosecutor : Ryan Carlisle Needham & Thomas
Counsel for the Prosecutor : Mr. A. North with Mr. S. Howells
Solicitors for the Defendant : Kroger & Kroger
Counsel for the Defendant : Mr. P. Costello
ORDER
The information be dismissed.
There be no order as to costs.
The exhibits be returned to the prosecutor.
(NOTE: Settlement and entry of orders is dealt with in O.36 of
the Federal Court Rules.)
JUDGE1
I am satisfied, on the evidence before the Court, that the action of the defendant alleged in the charge, namely the dismissal of Mr. John Tye on or about 24 February 1987, assuming that it occurred, was not actuated by any of the reasons alleged in the information, laid by the prosecutor on 23 February 1988. I have reached that conclusion on the balance of probabilities, which is the appropriate standard of proof - see Gibbs J. in General Motors Holden Pty. Ltd. v Bowling (1976) 12 ALR 605 at 612. Accordingly I have decided that the information must be dismissed. Most of the matters which have led me to that decision were raised with Mr. North, of counsel, during his carefully researched and presented final address on behalf of the prosecutor. Since then I have read the transcript of that address and examined the references given in it to both oral and documentary evidence; I have also read the further passages cited in the references given to my associate by Mr. Howells, of counsel, on behalf of the prosecutor, since the adjournment on Friday.
I have not found it necessary to determine whether all the relevant facts and circumstances, other than the reasons set out in the charge as being the reasons for the dismissal, have been proved; that is because of my conclusion that the defendant has discharged the onus of proof under s. 5(4) of the Conciliation and Arbitration Act 1904 (the Act).
I should say, however, that those "relevant facts" included the question whether Mr. Tye was dismissed by the defendant. Last Thursday, during his submission that there was no case to answer, Mr. Costello, of counsel, on behalf of the defendant, submitted, unsuccessfully, that there was no evidence that Mr. Tye was dismissed on 24 February 1987 or at any other date; he placed reliance upon the provisions of the Federal Meat Industry Award 1981 and in particular upon clause 2 of Part III of that award. My tentative opinion is that that submission would not be upheld and that I would find, on the evidence, that the defendant did dismiss Mr. Tye on 24 February 1987. However, as I have not heard a final address on behalf of the defendant, I have not formed any concluded opinion on that question. In considering whether the defendant has discharged the onus of proof under s. 5(4), I have assumed, in favour of the prosecutor, but without deciding, that Mr. Tye was so dismissed.
The information alleged that the defendant has dismissed Mr. Tye, an employee, by reason of the circumstance that Mr. Tye:-
"(a) was, or had, been, a delegate of The Australasian Meat Industry Employees' Union, an organization of employees registered pursuant to the provisions of the Conciliation and Arbitration Act 1904, and/or
(b) was, or had been, a member of the said organization and/or
(c) being a member of the said organization which was seeking better industrial conditions, the said John Tye (also known as John Keogh) was dissatisfied with his conditions and/or
(d) being a delegate of the said organization had done 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 said organization in accordance with the rules of the said organization."
Mr. North said in final address that the prosecutor primarily relied on paragraph (a) of the information, i.e. his allegation of an offence against s. 5(1)(a) of the Act. However, he also relied on paragraph (b), which alleged an offence against s. 5(1)(a), related to Mr. Tye being a member of the Australasian Meat Industry Employees' Union (the Union); he also relied on paragraphs (c) and (d) which alleged offences against s. 5(1)(d) and s. 5(1)(f) respectively.
Section 5(4) of the Act provides that:
"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."
The defendant did not call any evidence.
Mr. North relied upon the following passages from the reasons for judgment of Mason J. (with which reasons Stephen and Jacobs JJ. agreed) in Bowling's case:-
(at 617-8) "Section 5(4) imposed the onus on the appellant (the defendant employer) of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent (the prosecutor), in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
I would, for my part, accept the finding that the principal reason for the dismissal was that the appellant (the defendant employer) considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others. Even so, this finding does not carry the appellant the whole distance.
It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward. No doubt this is an advance which could be made if officers of the appellant had said in evidence: "We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward", and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward."
Mr. North submitted that in the present case, using the words of Mason J., "the evidence was consistent with the hypothesis that" the defendant was actuated by one or more of the reasons alleged in the information. He said that he did not submit that, in order to discharge the onus of proof under s. 5(4), an employer must call evidence as to the reasons for dismissal.
In my opinion the statement by Mason J., as to the evidence being "consistent with the hypothesis", was not intended to convey that a defendant company, which has not called evidence as to the reasons for a dismissal, must be convicted where, on the evidence before the court, there is "a slender possibility" that the employee was dismissed by reason of the circumstance that he was a delegate. I have taken the words "a slender possibility" from a later passage in Bowling's case where Mason J. said (at 619):-
"We are left, then, with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the respondent was a shop steward. If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal."
The principles stated in Bowling's case are, of course, of general application. However, in considering the application of those principles to the present case, two matters should be borne in mind. First, that Mr. Bowling was dismissed as an individual employee, not as one of a class of employees performing similar work. That may be contrasted with the present case where Mr. Tye was one of the slaughtermen on the mutton chain, of whom all except one were dismissed by the defendant on 24 February 1987. Second, in the second paragraph quoted above from p. 617 of the report, Mason J. accepted "the finding that the principal reason for the dismissal was that the appellant (the defendant employer) considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others". That finding may be contrasted with the present case. There is nothing in the evidence to even suggest that on 24 February 1987 the defendant company, or any of its officers, regarded Mr. Tye as a troublemaker, or believed that he had deliberately disrupted production or that he had engaged in any similar conduct or, that he had, at any time on or before 24 February 1987, set a bad example to others; nor is there any evidence that it considered that its industrial troubles had begun, or had become significantly worse, after Mr. Tye became delegate. In saying that I have not overlooked the brief reference in Mr. Tye's evidence to the previous delegate; it may be added that the defendant's statement of claim, in the Victorian Supreme Court, alleged that there had been stoppages of work in May, June and July 1986 i.e. before Mr. Tye's employment began.
The evidence of Mr. Tye showed his activities as the delegate to have been very different from those of Mr. Bowling, as disclosed in Bowling's case. Mr. Tye described his function as that of a "go-between" between the employees and Mr. Matthews. It was said that Mr. Matthews was a director of and a major shareholder in the defendant company. On the evidence I find that Mr. Matthews decided, on behalf of the defendant, all matters material to these proceedings, including the dismissal of employees and the granting or refusing of claims by the employees.
I find, on Mr. Tye's evidence as a whole, that he was, until 24 February 1987, no more than a "go-between", who received complaints from the other employees and took those complaints to Mr. Matthews; further, that his actions on and before 24 February 1987 were such that he could not have been regarded by the defendant as a troublemaker or as one who had deliberately disrupted production or as one who had used his influence as a delegate to set a bad example to other employees. In using those words, taken from Bowling's case, I am not, of course, suggesting that the principles there enunciated by the High Court are limited to the dismissal of shop stewards or delegates whose conduct falls within those categories. However, Mr. Tye gave evidence that he had used his influence to persuade the employees to continue working after they had decided to stop work and on one occasion, after the employees had carried a resolution to go home instead of starting work, Mr. Tye called for another vote on that question. That evidence, and evidence that Mr. Tye was no more than a "go-between", is part of the setting in which the court has had to decide whether, on the balance of probabilities, the defendant was actuated by any of the reasons alleged in the information.
In addition, Mr. Tye gave evidence that as to various industrial issues, including the finishing time for labourers, the training of "learners", the use of staff and the paying of holiday pay into the bank, he (Mr. Tye) came to know about those issues, as being problems, by reason of the men complaining about them to him. His evidence contained frequent references to "complaints made by the men", and to complaints by them at meetings. Speaking of "the men" he said that they "were sick and tired of being threatened with the sack", that they "wanted that higher rate of pay" on change over from one slaughtering time to another. On the other hand, it should be noted that at times in his evidence Mr. Tye referred to "what we wanted" - as distinct from what they wanted - and he also expressed his personal dissatisfaction with certain industrial conditions. Nonetheless, on his evidence as a whole, I am satisfied that he gave Mr. Matthews the impression that he was no more than a "go-between" bringing complaints from the employees to management.
On receiving some of the complaints from the employees, Mr. Tye contacted the Union organizer, who then attended a meeting of the men. Asked how one meeting was arranged, Mr. Tye said the "members called the meeting themselves". He denied playing "any part at all" at that meeting. That meeting led to Mr. Tye and the organizer going to see Mr. Matthews but Mr. Tye "just sat down and let Rod (Dillon - the organizer) do all the talking". Another set of complaints led to another Union organizer, Mr. Bill Christiansen, attending a meeting of the men. He and Mr. Tye then went to see Mr. Matthews about those complaints. Mr. Tye gave evidence that at that meeting he "sat and let Bill do all the talking". Asked "did you add anything at all" he said "No, not to my recollection".
On the other hand, on some occasions, Mr. Tye took complaints from the employees to Mr. Matthews without any Union organizer being present and on those occasions he spoke on behalf of the employees. However, on his evidence overall, I must reject Mr. North's submission, in his final address, "that Mr. Matthews would have seen him as ... in some way responsible for the promotion of a whole host of industrial issues which at times involved stoppages of work, expenditure of money, difficulties, abuse and unpleasantness".
In an endeavour to support that submission, Mr. North referred to the statement of claim by the defendant in an action in the Supreme Court of Victoria, in which Mr. Tye was the fifth defendant. The statement of claim was dated 6 May 1987 and alleged, amongst other matters, that Mr. Tye had performed certain acts on various days after the dismissal, including acts on 25 February, on 8 days in March, on 8 days in April and on 4 of the 6 days in May 1987. Apart from an allegation as to a cessation of work on the day following the defendant's dismissal of the mutton slaughtermen, those allegations all appear to relate to an alleged picket at the premises in March, April and May 1987. Those allegations of actions by Mr. Tye in the period 25 February to 6 May 1987 are part of the context in which to consider the fact that the defendant, on 6 May 1987, in its statement of claim, also made allegations as to conduct by Mr. Tye in the months before the dismissals. I have taken into account the fact that those allegations were made by the present defendant on 6 May 1987, as to conduct by Mr. Tye said to have occurred before the dismissals; I have also taken into account the fact that the Supreme Court writ against six defendants, including Mr. Tye was issued on 25 March 1987. Nonetheless, on the whole of the evidence, and in particular that of Mr. Tye, I am satisfied, on the balance of probabilities, that the defendant on 24 February 1987 was not actuated by any of the reasons alleged in the information.
Mr. North also sought to rely upon the failure of the defendant to cross-examine Mr. Tye as to the following statement by him in his evidence in chief (transcript 213):-
(Mr. North) "What was it that - you ended up at the end of that day not having a job. How did that come about, that you did not have a job?
(Answer) Because I was a delegate."
At the time when that answer was given I did not consider that Mr. Tye was intending to say not only that he had been sacked but also that he had been sacked by reason of the circumstance that he was a delegate. The question to which he gave that answer was directed (as were several other questions) to finding out how it was that he believed that he was sacked. Having read carefully the transcript of the evidence, my recollection that the statement did not have that meaning is confirmed.
The transcript (pp. 213-214) of the context to the answer relied upon by Mr. North includes the following passages:-
(Mr. North) "Right?---Because we had already been sacked, they were. He sacked the four slaughtermen on the chain at that time, when I was moving house, and one labourer. As far as I could tell, I just took it for granted that I was sacked with them, though he never actually told me that I was sacked.
....
In support of what? What was the support for?---For us to come back, because we were sacked.
What do you mean by sacked?---Did not have a job.
....
Why did you not have your job?---I do not know. I was not there.
What was it that - you ended up at the end of that day not having a job. How did that come about, that you did not have a job?---Because I was a delegate.
Did something happen which led to you not having your job as a slaughterman? Can I put it this way: you have given evidence that you thought you were sacked?---Yes.
What made you think that?---I thought all the other ones were sacked; because I was a delegate, that - - -
When you say he, you mean Mr. Matthews?---Yes, Bill Matthews.
Did he say something to you which gave you a belief that you were sacked?---Yes. He said, "You are all sacked". He said, "I will sack youse for misconduct, if there is any trouble. But I will sack youse" - he put the plural in there - so he said, "I will sack youse for economic reasons, if there is no trouble".
When he said, "I will sack you," what was he talking about?---I do not know.
Did you understand from that conversation anything about what would happen the next day?---No.
....
Can I ask you why did you not go to do any work?---Because I thought I was sacked."
It should perhaps be added that Mr. Tye at times had difficulty in understanding questions, including questions during his evidence in chief; further, that he assented to a suggestion (made in evidence in chief) that he had "very considerable difficulty remembering what happened when". However, there was nothing in his evidence to suggest that he was not telling the truth to the best of his ability.
The passages just quoted from Mr. Tye's evidence give an account of what was said by Mr. Matthews to Mr. Tye on the subject of the dismissal of the slaughterers on the mutton line. Elsewhere in his evidence, Mr. Tye said that Mr. Matthews, in speaking of the dismissals said that "he was sick and tired of the trouble that has been going on and that he will not be opening the mutton floor again". Just before giving that evidence Mr. Tye said that, at the end of that conversation, he had said to Mr. Matthews "Okay, Bill, I'll see you". Mr. Tye explained that by those words he (Mr. Tye) had meant:-
"like the last time that we were sacked, he came around to my place and gave us a list of all the men he wanted back. So with that I thought, well, it will be a few days or something like that before he comes around and wants to re-employ us."
On the evidence as a whole, I find that Mr. Tye did not believe on 24 February 1987 that he had been sacked because he was the delegate or because of any act done by hm as the delegate; I also find that he did not believe that he had been dismissed because he was a member of the Union or because he, being a member of a Union which was seeking better industrial conditions, was dissatisfied with his conditions.
I am satisfied, on the balance of probabilities, that
the defendant did not dismiss Mr. Tye by reason of the circumstance that he was a delegate or a member of the Union (see paragraphs (a) and (b) in the information). For essentially the same reasons, I am satisfied that it did not dismiss him by reason of the circumstance that, being a delegate of the Union, he "had done 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 said organization in accordance with the rules of the said organization" (see paragraph (d) in the information). In reaching that conclusion I have not found it necessary to form any concluded view as to certain difficulties facing the prosecutor; I have assumed, without deciding, that the acts done by Mr. Tye were acts "within the limits of authority expressly conferred on him by (the Union) in accordance with its rules".I am also satisfied that the defendant did not dismiss Mr. Tye by reason of the circumstance that, being a member of the Union, which was seeking better industrial conditions, he was dissatisfied with his conditions (see paragraph (c) of the information).
Accordingly the information is dismissed.
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