Fawdry, Marcia Joyce v Royal Australian Nursing Federation Tasmanian Branch
[1986] FCA 298
•11 JULY 1986
Re: MARCIA JOYCE FAWDRY
And: ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH
No. T2 of 1986
Industrial Law
15 IR 139
COURT
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Everett J.
CATCHWORDS
Industrial Law - Dismissal of Employee - member of organisation - Breach of s. 5(1)(f) of Conciliation and Arbitration Act 1904-1985 alleged - onus of proof on defendant - held that onus not discharged and defendant convicted.
Conciliation and Arbitration Act (Cth) 1904-1985 s. 5(1)(f), s. 5(4)
GENERAL MOTORS HOLDEN PTY LTD v. BOWLING (1976-77) 12 ALR 605
HEIDT v. CHRYSLER AUSTRALIA LTD (1976-77) 13 ALR 365
HEARING
HOBART
#DATE 11:7:1986
JUDGE1
By an information dated 1 May 1986 Marcia Joyce Fawdry ('the prosecutor') began proceedings under s. 5 of the Conciliation and Arbitration Act 1904 ('the Act') against the Tasmanian Branch of the Royal Australian Nursing Federation ('the defendant') in which she claimed that, as a member of the defendant organisation, by which she was at the relevant time employed as an industrial organiser, she had been dismissed from that position in breach of s. 5(1)(f) of the Act. The relevant part of the information, as filed but as amended during the hearing, was:
"... on the 19th day of April, 1986 at Launceston in Tasmania the Royal Australian Nursing Federation Tasmanian Branch of 182 Macquarie Street, Hobart in Tasmania did as the employer of the prosecutor dismiss her from her employment by reason of circumstances that she being a member of an organization namely the Royal Australian Nursing Federation had done or proposed to do acts or things which were lawful for the purpose of furthering or protecting the industrial interests of the organization or its members such acts and or things being done within the limits of authority expressly conferred on her by the said organization in accordance with the rules of the organization contrary to the provisions of Section 5 (1)(f) of the Conciliation and Arbitration Act 1904-1977."
It was not disputed that the defendant was an 'organisation' as defined in sub-section 4(1) of the Act, or that the prosecutor was employed by the defendant at all relevant times.
Counsel for the prosecutor expressly conceded that she carried the onus of proving beyond reasonable doubt the following elements before she could establish a breach of paragraph (f) of sub-section 5(1) of the Act:
1. That the prosecutor was at the relevant time an employee of the defendant within the meaning of the Act.
2. That the defendant was at the relevant time the employer of the prosecutor within the meaning of the Act.
3. That the prosecutor was dismissed by the defendant.
4. That the prosecutor was at the relevant time a member or officer of the Federation.
5. That the acts and things alleged as being the reason for the prosecutor's dismissal by the defendant were lawful.
6. That those acts and things were done by the prosecutor for the purpose of furthering the industrial interests of the members of the organization.
7. That those acts and things were done within the limits of authority of the prosecutor expressly conferred on her by the Federation.
8. That the authority so conferred on the prosecutor by the defendant was conferred within the rules of the organization.
It was further argued by counsel for the prosecutor that if those elements were proved, the onus thereupon passed to the defendant to satisfy the Court, on a balance of probabilities, in accordance with the terms of s. 5(4) of the Act, as follow:
"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 legislative history of s. 5 of the Act, and the purpose which it has been designed to achieve in the relationships between employers and employees in Australian industry, were discussed in judgments of the High Court of Australia in General Motors Holden Pty Ltd v Bowling (1976-77) 12 ALR 605, in which the appellant company had been convicted by a majority of the Australian Industrial Court of an offence against s. 5(1) of the Act, in that it dismissed the informant respondent by reason of the circumstance that he was an officer or delegate of the Vehicle Builders' Employees Federation of Australia, an organisation of employees registered under the Act. At pp 616-7, Mason J, in whose reasons for judgment, Gibbs, Stephen and Jacobs JJ concurred, said:
"The question then is whether in the light of the facts as I have recounted them the majority in the Australian Industrial Court were correct in holding that the appellant had failed to discharge the onus placed upon him by s. 5(4). The appellant set out to satisfy the onus by proving that the respondent was dismissed because of his poor work record and his attitude to the job. The finding that this was not the reason for his dismissal, based as it was on an assessment of the credibility of the appellant's witnesses, cannot be disturbed, and indeed Mr Hulme, Q.C. for the appellant has not sought to disturb it.
The existence of this finding makes it difficult, though not impossible, for the appellant to succeed. To succeed the appellant has to show on the evidence that it was not actuated by the consideration set out in s. 5(1)(a). In the circumstances of this case it will not achieve this objective unless the evidence establishes the real reason for the dismissal, notwithstanding that the appellant failed to put it forward at first instance, and that it lies outside the ambit of s. 5(1)(a). The appellant now says that the real reason for the dismissal was correctly identified by Woodward J as the belief on the part of Mr Rosenboom and Mr Gould that the respondent deliberately disrupted production and was thus setting a very bad example to others. This belief, says the appellant, was not aided or assisted by reference to the respondent's position as a shop steward or to activities in which he participated as a shop steward.
Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, 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 sub-section, 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."
My understanding is that, in essence, the proposition expounded by Mason J in the last paragraph of the extract cited above was accepted by counsel for the prosecutor as delimiting the respective evidentiary burdens resting on the prosecutor and the defendant.
Although counsel for the defendant did not accept entirely the expression by counsel for the prosecutor of the elements in respect of which the burden of proof beyond reasonable doubt was upon the prosecutor, I do not consider there was any difference of substance between them. Nor was there any suggestion that the law as stated in the case of Bowling in his concurring judgment by Gibbs J in the following terms at p. 612 was not directly applicable to the facts of the present case:
"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." (emphasis added)
A preliminary submission was made by counsel for the defendant that s. 5 of the Act did not apply in the circumstances of this case, in particular because the defendant was not an 'employer' as defined in s. 4(1) of the Act. With the consent of counsel, I reserved my decision on the submission, for the determination of which the following provisions in s. 4 of the Act are relevant:
"'Employee' means any employee in any industry . . . whose usual occupation is that of employee in any industry;
"'Employer' means any employer in any industry . . . ;
"'Industry' includes -
(a) . . .
(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees."
I accept the argument of counsel for the prosecutor that she satisfies the definition of an 'employee in any industry'. The statutory definition of 'industry' is not exclusive, despite its extremely comprehensive terms. Even within such terms, I consider it would be repugnant to the fair interpretation of plain language to treat the prosecutor as not being employed in an 'industry' as defined. Moreover, to do so would stamp the Act as discriminatory against a particular group of employees who are closely associated with members of organisations registered pursuant to the Act. I therefore reject the submission that the information is outside the provisions of the Act.
In response to a request by the solicitors for the defendant, the following particulars (which, for convenience, have been renumbered) were furnished in amplification of the allegations in the information insofar as they remained relevant:
"(a) . . .
"(b)(i)(iv) The prosecutor cannot particularize the time, date and place of the acts and things done or proposed to be done which provided the reason for her dismissal, as those precise matters are peculiarly within the knowledge of the defendant. The prosecutor will rely upon the hearing of this summons either wholly or in part upon the provisions of Section 5(4) of the Conciliation and Arbitration Act 1904 . . . The prosecutor believes that she was dismissed from her employment by reason of the circumstances that she had been critical of the Industrial Officer of the Federation, one Gordon Grant, in respect of his delay in securing and his failure to secure . . . a wage increase for members of the Federation and in respect of his failure to fully inform members about the wage case then being pursued by the Federation and by reason of the circumstance that she might continue with such criticism.
(v) The acts and things referred to in paragraph
(i) to (iv) hereof were not unlawful.
(vi)(a) The acts and things referred to in paragraph (v) were done for the purpose of furthering the industrial interests of the members of the Federation in that they were done to facilitate the expedition and effectiveness of the wage case therein referred to.
(vi)(b) The acts and things referred to in paragraph (v) hereof were done for the purpose of protecting the industrial interests of the members (of the) Federation in that they were done to facilitate the expedition of and effectiveness of the wage case therein referred to.
(vii) The prosecutor alleges that the acts or things referred to in paragraph (v) hereof were within the limits of authority expressly conferred on her by the Federation in the conditions of service and the job specification annexed hereto and marked with the letters "A" and "B" respectively.
The prosecutor alleges that the aforesaid authority was conferred by the Federation in accordance with the Rules of the Federation but is unable to condescend (sic) to particulars of the Rule or Rules relied upon until she is supplied by the defendant with a complete copy of the Rules in force at the material time. A request for such Rules has been made this day."
These particulars furnished, in brief, from the viewpoint of the prosecutor, the background against which she claimed she was dismissed. She amplified the particulars in the following evidence:
"I believe that I was dismissed from my employment because I was acting on behalf of the members. I was critical of the industrial officer, Mr Gordon Grant, in direct relation to his delay and his failure to secure a wage increase for the members of the Federation."
A large volume of evidence was submitted by the prosecution without objection - correctly in my opinion - with regard to events in the months preceding the dismissal of the prosecutor. It is clear, and not disputed, that this period was marked by a deterioration in the relations between the prosecutor and the management of the Federation. Many of the incidents which occurred in this period were not disputed. It is sufficient to say that up to the time of the dismissal of the prosecutor, an atmosphere of extreme tension existed in the top administration of the Federation, and that it reached a stage of personal hostility between the prosecutor and senior staff, including Ms Hill, the secretary of the Tasmanian Branch of the Federation.
A number of nursing educators at the Launceston General Hospital joined the ranks of those opposing Mr Grant. On 17 January 1986 six such nursing staff wrote to the State Secretary criticising Mr Grant's competence in industrial negotiations and urging that, in the "absence of evidence substantiating satisfactory progress with the case . . . Mr Grant be replaced by a committed nurse with industrial awareness".
There was evidence of many other matters which were the cause of friction and personal unpleasantness; most, if not all of them, have been referred to in the written submission of counsel for the prosecutor and I have considered the transcript of the evidence relating to them. However, in view of my decision in this case and the reasons to be expressed for it, I do not consider it is necessary to state, and comment on, every such incident.
At the close of the case for the prosecution, counsel for the defendant submitted that there was no case to answer because the prosecution could not, on the evidence tendered at that stage, bring herself within paragraph (f) of s. 5(1) of the Act. In particular, he argued that she was not an 'officer', because the definition of 'office' in s. 4(1) of the Act refers only to persons within the organisation who are elected to such a position in accordance with the rules of the organisation.
Counsel for the prosecutor then stated that he abandoned any reliance on the allegation then in the information that the prosecutor was an "officer". The information was amended accordingly, with the result that the prosecutor relied only on the fact that she was a member of the defendant organisation.
The submission that there was no case to answer was nevertheless pursued on the basis that there was no evidence that what "the prosecutor did was within her authority as a member". I rejected the submission and said I would state my reasons later. I now do so.
The prosecutor was appointed Industrial Organiser of the Tasmanian Branch of the Federation with effect from 5 February 1985. She received a duty statement, which was in the following terms:
Responsibility:
Responsible to the State Council of the Royal Australian Nursing Federation (Tasmanian Branch) through the Secretary; in the first instance to the Industrial Officer.
Duties:
Recruitment of nurses into membership of the Federation.
Visit all areas of employment on a regular basis and report thereon.
Assist members with answers to queries, complaints and other problems - bring these to completion. Give advice on wages/salaries, conditions of employment and other employee entitlements. Ensure employers are complying with Awards.
Report regularly on activities.
Dispute & Grievance Handling
The Organiser will, as far as is practicable, attempt to resolve individual and work-site problems on behalf of and with the membership, in accordance with Branch policy in relation to grievances within the following parameters -
i) identification of problems by direct consultation with the membership and with Federation representatives;
ii) collection of relevant data (facts);
iii) interpret the information gathered and propose strategies designed to secure a solution;
iv) maintain continued communication with members and Federation representatives in the affected area;
v) develop an ability to respond to urgent situations.
Requirements of the Position:
The requirements of the position demand that the occupant develop a working knowledge of all relevant Awards and legislation which relates to Nurses in the work situation -
e.g. (1) all Nursing legislation;
(2) Industrial Relations Act 1984 Hospitals Act 1918
Long Service Leave Act 'State Employees' (Long Service Leave) Act Health Safety & Welfare Act Conciliation and Arbitration Act All Awards affecting nurses.
The occupant of the position will have the ability to work without supervision, to show initiative and to possess ability to negotiate with management on behalf of members. Will have proven ability to be self-organising. Will be required to negotiate settlement of disputes and develop expertise so as to represent members at Industrial Commission hearings and other hearings in the absence of the Industrial Officer.
In my opinion, at the close of the prosecutor's case, the information, particulars and evidence tendered on her behalf were such that there was a case for the defendant to answer. The averments in the information, supported by the particulars given, were in accordance with paragraph (f) of sub-section 5(1) of the Act. There was no evidence that any act of the prosecutor was outside the scope of her authority. I shall deal separately with the disciplinary matter which arose in the course of a telephone conversation between the prosecutor and the secretary on the night before the prosecutor was dismissed. It will be necessary to consider this conversation in detail.
It follows from this conclusion that the defendant, in order to succeed in the prosecution must discharge on the balance of probabilities the onus of proving that the dismissal of the prosecutor on 18 April 1986 was not actuated by the averred reasons or taken with the averred intent. I have expressed the obligation on the defendant in these terms, because it was not argued by counsel for the defendant that the information, supplemented by particulars, did not contain any "reason or intent" within the meaning of s. 5(4) of the Act.
The defendant's answer to the case alleged against it was a denial that the prosecutor was dismissed for any reason other than her refusal, late on the evening of 17 April 1986, in response to a telephone request from the State Secretary in Hobart, to travel from Launceston to Hobart the next day for further discussions with the State Secretary.
I respectfully adopt the following passages from the judgment of Northrop J. in Heidt v Chrysler Australia Ltd (1976-77) 13 ALR 365, at pp 372-3:
"The action of the employer qua the employee is prohibited only if it is by reason of any one or more of the circumstances enumerated in pars (a) to
(f) inclusive of s 5(1) of the Act. The circumstances in this sense are the facts by reason of which the employer takes action against the employee. An employer may have many reasons for taking the action. In order to establish an offence under s 5, it is not necessary for the informant to establish that the reason alleged was the only or sole reason actuating the employer; the reason alleged need not be the predominant reason . . .
"The Industrial Court has expressed the effect of s 5 in this way: 'Reading s 5(4) as part of s 5 taken as a whole, we are of opinion that a particular action taken by an employer may be said to have been actuated by a particular reason or circumstance if that reason or circumstance was a substantial and operative factor influencing him to take that action. Further, an employer may be said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action, although that reason was but one of a number of reasons which so influenced him'; per Smithers and Evatt JJ in Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197 at 200 and Cuevas v Freeman Motors Ltd (1975) 8 ALR 321 at 322.
"In the hearing of an information under s 5 of the Act, the informant bears the normal onus of proof of establishing the guilt of the defendant beyond reasonable doubt. The 'burden of proof' in this sense is stable but the burden of introducing evidence at any particular time may shift from time to time: see Purkess v Crittenden (1965) 114 CLR 164 per Barwick CJ, Kitto and Taylor JJ, at 167-8. The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer. It is for this reason that s 5(4) is of such importance - it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities: Bowling v General Motors-Holdens Pty Ltd, supra, at 200-1.
. . .
"The provisions of s 5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439 The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge."
The case of Heidt was decided before the amendment of s. 5(4) of the Act by Act No 108 of 1977, which substituted a new sub-section in which the notion of "intent" was added to the question of "the reason for the defendant's action". The effect of the amendment was to enlarge the area of the burden of proof borne by a defendant.
One further fact should be emphasised before the essential issue which arises under s. 5(4) of the Act is considered. Reference has been made to a letter of 17 January 1986 from six senior nursing staff of the Launceston General Hospital to the State Secretary. The principal relevance of the letter in the events which happened is that its substance was to be discussed at a special general meeting of the Federation due to be held on 23 April at Hobart. Its terms (formal parts omitted) were:
"We the undersigned regret that for some time we have felt a lack of confidence in Mr Gordon Grant's handling of our career structure and wage case. His presentation of information at the meeting at Launceston General Hospital on last Wednesday the 15th January was inadequate. Furthermore we sincerely feel that he is ineffective in his endeavours to progress our professional advancement.
We doubt whether Gordon Grant has an adequate awareness of our situation as he has not visibly demonstrated a sincere and concerted effort to achieve the career structure and wage increase we are seeking (negotiations for which are now well into their second year).
The meeting was held in an air of presupposition that nurses were more concerned with the interim rise, however we feel that career structure is the most important issue. It was disappointing that so little prominence was given to this fundamental aspect.
It is our belief that an attempt was made to manipulate the membership into accepting that Council's proposal was presented, without sufficient information or discussion of alternatives.
Therefore we are very dissatisfied with the way the meeting was conducted. We are deeply concerned about the effectiveness of the RANF's strategies to promote our case and more specifically Gordon Grant's ability to implement them.
In light of the above statement we therefore submit the following proposals:
1. An opportunity for the membership to evaluate progress on the career structure and work value case as prepared by the State Industrial Officer be provided in the form of a written precis. This is to be accompanied by an assurance from the Council that the draft document has been scrutinized by them. The information is to be provided to us at least one week prior to the next General meeting.
2. In the absence of evidence substantiating satisfactory progress with the case, the present State Industrial Officer (Mr Gordon Grant) be replaced by a committed nurse with industrial awareness.
We anticipate an early reply to this matter."
A copy of the letter was sent to two individuals and a "Liaison Committee" of the Launceston General Hospital.
Notice of the special general meeting was published in The Examiner newspaper (Exhibit P11) on 19 April 1986, and I infer that the Secretary was aware of the impending meeting before the formal act of the dismissal of the prosecutor. The form of the advertisement was:
ROYAL AUSTRALIAN NURSING FEDERATION
(Tasmanian Branch)
I have received a request, from twenty members from Launceston, for a Special general meeting to consider the following matters.
As required by the Rules of our organisation members are hereby given notice of the meeting.
SPECIAL MEETING OF MEMBERS
Notice is hereby given of a Special Meeting of Members of the Royal Australian Nursing Federation (Tasmanian Branch) which will be held in the Town Hall, Hobart, on Wednesday April 23, 1986 at 7.00pm.
Business of Meeting:
1. A vote of no confidence in the Industrial Officer, and demand his removal from the position of Industrial Officer, RANF (Tas Branch).
2. That all votes taken at the Special Council Meeting of Wednesday March 26, 1986, be null and void.
3. That RANF State Council be prohibited in future from excluding any financial members from Branch meetings.
4. A motion of censure of the Secretary and Council for excluding financial members from Branch Meetings.
DEBRA HILL
SECRETARY
Finally, I am satisfied beyond reasonable doubt that all of the acts which the prosecutor did, and which she said she believes were the reason for her dismissal, were, within the terms of paragraph (f) of s. 5(1) of the Act, "lawful for the purpose of furthering or protecting the industrial interests of the organisation or its members", and, further, were "done within the limits of authority expressly conferred on her by the organisation in accordance with the rules of the organisation". A certified copy of the registered rules of the Federation was tendered in evidence. I am satisfied - and it was not argued to the contrary - that the rules did not contain any provisions which operated against the prosecutor's reliance on paragraph (f) of sub-section 5(1) of the Act.
The evidence for the prosecutor was given by her and Ms J D Smith, a nursing officer of the Federation. I accept their evidence. I formed the view that Ms Fawdry is an honest, forthright, responsible and competent officer, who at all times had the interests of members of the Federation very much at heart. There was no dispute about many matters of fact. However, to the extent that there was conflict as to facts between the prosecutor and witnesses called for the defendant, I do not hesitate to prefer the version given by the prosecutor.
It is clear that by 17 April 1986 there was serious antagonism among a number of staff, with some involvement by members of the Federation's Executive. The discord had begun some months earlier. I have already referred to the letter dated 17 January 1986 from Launceston General Hospital nursing staff to the State Secretary. Ms Fawdry said she first saw (a copy of) that letter at the Launceston Office of the Federation about 21 January. On the same day, or the following day, about 10 pm she received a telephone call from the State Secretary. Her evidence was:
"She (the State Secretary) asked me if I would come to Hobart the next day and I asked her what for, and she said to discuss the outcomes of the general meetings that had been held around the State a few days prior. And I said, 'Why do I need to come to Hobart to discuss them, why cannot we discuss it over the phone? What is there to discuss?' And she said, 'I just want to discuss the outcomes of the meetings.' So I thought perhaps that - I was suspicious actually, because it was very late at night; it was in my own home; I was off duty. It is late even for a friend to call, let alone your boss to call you. And I said to the secretary, 'What is really going on, Debra? Am I in any sort of trouble?' and I said that because I was suspicious because of the lateness of the hour and also because I had had an argument with the secretary and the industrial officer on the north-west coast the week before."
Ms Fawdry went to Hobart the following day and attended a meeting at which the State Secretary and Mr Grant were present. I accept Ms Fawdry's evidence that although at first the results of meetings of Federation members in different parts of the State were discussed, a number of matters of discipline were then raised and Ms Fawdry was, in her words, "hauled over the coals". All of the matters were, in my opinion, trifling or inane. I accept Ms Fawdry's evidence that finally the State Secretary produced the nursing sisters' letter of 17 January and said: "This is why you were really called to Hobart; this is what all these questions have been about." Ms Fawdry was questioned about the letter, especially as to whether she had prior knowledge of it - that is, before she saw a copy of it in the Launceston office of the Federation about 21 January. Later the same day Ms Fawdry returned to Launceston.
In her evidence, Ms Hill said she did not recall the letter having been mentioned at that meeting. She went further and said "I do not think it was." She did, however, remember discussion about some at least of the matters which I have described as "trifling or inane". I reject Ms Hill's evidence about the letter of 17 January.
There followed events which appear extraordinary, although I accept Ms Fawdry's version of them. They are narrated in the transcript of the examiniation-in-chief of Ms Fawdry as follows:
"And you returned directly to Launceston at the conclusion of the meeting?---I did.
Did anything happen that evening?---Yes.
What happened that evening?---Very late that ... evening again I received a call from the secretary.
What time was that?---It was around 10 o'clock.
And what was the nature of the call?---Requesting
I come to Hobart again the next day, and I asked her why and she said, 'To continue our discussions of the outcomes of the meetings',
and I thought, 'This is a bit odd', and I said, 'Debra, are you sure that is what I am coming to Hobart for, are you sure I don't need a representative?' And she said, 'Oh, no, it's nothing like that.'
What did you mean when you said 'are you sure I do not need a representative'?---Well, the RANF has a grievance policy for members whereby the members . . . have the right to know at any - this is to do with disciplinary matters or, you know, problems in relation to work, that the members have a right to know the nature of the complaint; the right to know what is going to . . . be proceeded with at the meeting and the right to have a representative with them, to represent them.
And why did you think you might have needed a representative?---Well, I just thought it was odd that she wanted me down to Hobart again the next day and also the lateness of the call again. I mean, what had happened between the time I left there in the afternoon and 10 o'clock in the evening.
So, what was Ms Hill's response to your query about whether you needed a representative? ---She said no.
And what happended then, did you agree to go to Hobart or was there further conversation?---I said - no, I said to her, 'Debra, I am off duty, it's very late at night, I am not prepared to make a decision at this time, I will ring you when I get into the office at 8.30 in the morning.'
And did you?---I did.
And as a result of that telephone call what did you do?---I was told I had to come to Hobart and I had to be there by 11 o'clock.
Did you go?---I did."
Ms J D Smith accompanied the prosecutor. Also present at the meeting was Ms Z M Cuthbert. Shortly after the meeting began, the Secretary told the prosecutor that she was being given a verbal warning for "passive insubordination". Relevant extracts from the transcript of Ms Fawdry's evidence are:
"Well, were any of the matters of the prior day's discussion raised again?---No, she had no intentions of raising them again. She said, 'I discussed them all yesterday and now I am giving you a verbal warning in relation to what we discussed yesterday', and I said, 'just a minute, Debra', I said, 'when you told me I was coming to Hobart yesterday it was to discuss the outcomes of the meetings, I was not aware that I was being reprimanded yesterday, although it was occurring that wasn't the purpose of the meeting.' And so I proceeded to bring up the points of the day before so that my representative would be familiar with what was said at the meeting the day before when I did not have a representative.
So, the points raised the day before were raised again? - - - That is right.
All of them? - - - Yes.
Yes. And how long did that meeting last for? - - - About three quarters of an hour.
And how did it finish . . . ? When . . . we finished I said to the secretary, 'So, you are saying that this is a verbal warning, what is going to happen to this verbal warning; is it going to be placed on my file?' and she said, 'I don't know what I'm going to do with it yet', and I said, 'Well, as soon as you do know you will be sure to tell me, won't you?'"
About a week later Ms Fawdry was in the Hobart office. Her evidence was:
". . . the secretary approached me . . . and she said, 'About that meeting the other day, Marcia', she said, 'I am very embarrassed about that. I handled it very badly. I would like you to forget that it ever happened. Nothing will be going on your record', she said, 'In fact I feel as if I should apologise but I am not going to.'
And that was the end of that? - - - Yes."
It appears that there was no further significant confrontation between the prosecutor and the Secretary for several weeks. On 13 March 1986 a Full Bench of the Tasmanian Industrial Commission delivered its decision on an application by the Tasmanian Branch of the Federation and kindred unions to vary a number of existing awards in relation to "work value increases". In many respects the reasons expressed by the Commission for its dismissal of the claims for interim salary increases were critical of the manner in which the applicants' case had been presented.
Ms Fawdry said that when members learned of the decision "they were furious" and there were many complaints. On 14 March a staff meeting was held in Hobart to discuss the decision. Ms Fawdry told Mr Grant about the complaints of members, "inasmuch as they . . . no longer have any faith in Mr Grant's ability to ever get them a wage increase".
Relations between the prosecutor and Mr Grant deteriorated further, as is illustrated by the following memorandum from Mr Grant to the Secretary, dated 17 March (formal parts omitted):
"At a meeting of members of staff on Friday, 14th March, 1986, Ms Marcia Fawdry, Organiser, reported that she had received a telephone call from an R.A.N.F. member from Launceston General Hospital who made a threat against my life.
Upon further enquiry, Ms Fawdry repeated the statement. On being asked to name the person who made the threat, she refused to give the name.
I regard this matter as serious in the following ways:
(1) As an employee, Ms Fawdry is obliged to pass on any information of the nature involved in this incident, especially when the welfare of one of its officers or employees may be affected. Not to do so would constitute failure on her part to perform her duty.
(2) Failure to provide a proper answer to the question constitutes a failure to obey a lawful direction or request.
(3) The nature of the threat itself is such that it should be taken seriously.
In view of the above, it is my request that Ms Fawdry be further pressed to provide the information as requested, otherwise further action should be taken. (emphasis added)
In addition, the Branch will have to contemplate action against the member involved."
Thereafter, the conduct of the affairs of the Tasmanian Branch of the RANF continued to be dominated by personal antagonisms, jealousies, petty complaints and lack of co-operation among staff. The climax occurred on the evening of 17 April 1986 and the following day. The detail of the relevant events appears clearly from the following extract from the transcript of the prosecutor's evidence-in-chief:
"Very well, on Thursday, 17 April this year at about 10.30 in the evening, where were you, do you recall? - - - I was at a friend's place.
In Launceston? - - - Yes.
And did something happen? - - - Yes, at 10.30 that night I got a phone call from the secretary, Ms Debra Hill.
Yes, did she tell you why she had telephoned? - - - She asked me what I had on the agenda for the next day and I said that I was intending to spend a day in the office to catch up on some paper work.
Did she tell you how she found you at your friend's place? - - - Yes, she - no, she did not tell me how she found me, but when I got home my boys told me that she had phoned my house and asked where I was.
So you said you were going to catch up on some paper work? - - - Yes.
And what did Ms Hill say to that? - - - She said that she wanted me to come to Hobart. I asked her what for and she said, 'Oh, just for a little talk.' And I said, 'Come off it, Debra, you have done this to me twice before and it has not ended up to be just a little talk. What have you really got in mind?' And she said, 'Oh. I knew you would feel that way'; she said, 'No, really, there is nothing. I just want you to come to Hobart for a talk.' And I said, 'It is very late to be ringing me, Debra. I do not believe that you want me to come to Hobart for a little talk. I won't be coming to Hobart tomorrow. I have been in Hobart three days this week. I saw you on Wednesday, why did you not have your little talk with me then?'
Yes, and what did she say to that? - - - She said she wanted me to come to Hobart and I said again, 'Debra, I won't be coming to Hobart tomorrow.' Then she said, 'I will expect you in Hobart at 11 am.' And I said, 'Debra, I won't be coming to Hobart tomorrow.' She said, 'Are you saying that you are going to disobey my instruction?' And I said, 'Debra, if you have to use that terminology the answer would be yes.' She said, 'I will expect you in Hobart at 11 am tomorrow', and she put the phone down."
There was some evidence concerning the prosecutor's state of health on 18 April and of the fact that she contacted her doctor's surgery; that her son telephoned the Federation's northern office and dictated a message through a telephone answering service that the prosecutor was sick and would not be at work that day. However, the evidence lacked clarity and the prosecutor's doctor was not called as a witness, although she furnished a medical certificate and an explanatory letter. Moreover, counsel for the prosecutor did not rely on her illness as a reason why she did not carry out the instruction to go to Hobart "for a little talk". He said: "She was not ill at 10.30 the evening before when she received the telephone call." I take the view that the question of the illness of the prosecutor is not relevant and I ignore the evidence relating to it.
The version of the telephone discussion on 17 April which was given in evidence-in-chief by Ms Hill was not markedly different from that of the prosecutor. Ms Hill said she contacted Ms Fawdry at the home of a friend "after 10 o'clock, about 10.15 pm'. The transcript record is:
"I spoke with Marcia and I said, 'Oh hello, Marcia. I would like . . . you to come to Hobart and be in Hobart at 11.30 in the morning to speak with me.' And she replied immediately, 'I am not prepared to come to Hobart.' And I said, 'Oh - you know, Marcia, I want you to come to Hobart.' And then she replied, words, something, words to the effect that, 'Oh well, I remember what happened last time you called me to Hobart.' And I went on and I said, 'Marcia, I would like you to come to Hobart to speak with me at 11.30' and she said, 'No.' And I said, 'Marcia, I am directing you to come to Hobart'. Oh, I beg your pardon, we did speak something about - I did say to her in that phone call, I said, 'Marcia, this is not a disciplinary matter. I wish to discuss several important matters with you.' She still said, 'No, I am not coming', and I said 'Marcia, I am directing you to come to Hobart to speak with me, in my office, at 11.30 in the morning.' And she said, 'No, I am not coming', and I said 'Marcia, are you refusing to obey my directive to you to come to Hobart tomorrow and speak with me?' And she replied, 'Yes'. The telephone call was then terminated.
I have said that in any case of evidentiary conflict between the prosecutor and Ms Hill, I accept the evidence of the prosecutor. Ms Hill did not impress as a witness, either in respect to the manner of her specific responses to questions, or in her general demeanour.
There was no further official contact between the prosecutor and the Secretary. The Secretary proceeded to act in a summary way. She was obviously intent on procuring the dismissal of the prosecutor. It was clear that there could be no reconciliation between them. The Secretary called a meeting of the executive of the Tasmanian Branch of the RANF at 4.45 pm on 18 April. Apart from formal matters the minutes of that meeting, which ended at 5.10 pm, merely recorded:
"The Secretary relayed the conversation she had had with the Industrial Organiser on the evening of 17th April, 1986.
Executive agreed that this constituted failure to follow a lawful directive from the Secretary and agreed the Industrial Organiser should be summarily dismissed."
A formal letter dated 18 April advising the prosecutor that she had been dismissed - although no reason was stated - was delivered to the prosecutor at Launceston on 19 April.
Before stating my conclusions on what is the essential issue, it is necessary to make some comment on the evidence of the three witnesses called in support of the defendant. They were:
Mrs M A Murray, Senior Vice-President of the Tasmanian Branch of the RANF;
Ms Z M Cuthbert, Junior Vice-President; and
Mrs P J Wright, President.
The evidence of these three witnesses followed a uniform pattern, expressed by Mrs Murray in the following words:
"I really mean for the previous few weeks and around about that time (18 April 1986) the union was not able to function properly as a union because of a lot of division in the union. The actual people who were employed - the secretary and other people who were employed to work for the members - were not able to get anything much done because of a lot of division within the union itself.
Does that go back as far as January 1986, in your opinion? - - - It certainly goes back a few months, yes."
It is clear that all of the three witnesses accepted the version of the telephone discussion on 17 April, given by the Secretary, between her and the prosecutor. I have already stated that I do not completely accept that version, but prefer to regard as accurate the account of the prosecutor, although there is no decisively significant difference between the evidence of the prosecutor and the Secretary.
I do not impugn the veracity of any of the three supporting witnesses for the defendant. However, it is not in dispute that they accepted the statements of the Secretary, and paid no regard to the provisions of s. 5(4) of the Act. None of them apparently raised any question of giving the prosecutor an opportunity to explain why she took the attitude which she admittedly expressed in the telephone conversation.
I am not prepared to accept the assertions by some of the three witnesses, that their knowledge of past events within the Federation's administration did not affect their decision on 18 April. The President, Mrs Wright, said she had suspicions that the prosecutor was implicated in the sending of the letter dated 17 January 1986 by senior nursing staff of the Launceston General Hospital to the Secretary of the Tasmanian Branch of the RANF, but that she had "no proof".
While I accept the bona fides of the three witnesses to the extent that each believes she was, in agreeing to the summary dismissal, acting in the best interests of the Federation, I do not consider that the evidence of any of them advanced the case of the defendant in discharging the onus which it bore under s. 5(4) of the Act.
The case reveals a regrettable series of events in the history of the Tasmanian Branch of the Royal Australian Nursing Federation. For several months the administration permitted its affairs to degenerate into an unsavoury situation of personal antipathies, which led to divisiveness within the organisation.
I am satisfied that the remedy adopted - that is, the summary dismissal of the prosecutor - was unlawful, in that it infringed paragraph (f) of s. 5(1) of the Act. Specifically, I conclude that the defendant has failed to discharge the statutory onus on it of proving, on a balance of probabilities, that the action of dismissing the prosecutor was not actuated by the reason, or taken with the intent, averred in the information, supplemented by the particulars furnished and the evidence adduced by the prosecutor.
The result is that the information is, in my opinion, proved. The primary formal order is that the defendant is convicted of an offence against s. 5 of the Act.
I shall hear the arguments of counsel in relation to appropriate consequential orders, in particular those for which provision is made in s. 5(5) of the Act, and also in respect of the question of penalty.
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