John McShane v Uniroyal Pty Ltd

CATCHTJORDS

Dismissal of union delegate

- S. 5(l)(a)

and (c) of

Conciliation and Arbitration Act

- informant one of

employees retrenched

- whether dismissal by particular

officer or by committee

- relevance of certain matters

to onus on defendant - informant transferred to different work

area 7 months previously and thereby more vulnerable

retrenchment - defendant's failure to transfer informant

back - defendant,without consulting union,changed its

previous practice

re method of retrenchment.

S.A. No. 5 of 1977

Between:

-	JOHN ElcSH.4NE	Infozmant
- and -

UNIROYAL PTY. LIMITED

Defendant

KEELY, J.

9 th

September ,

1977.

MELBOURNE

This Court orders

t h a t

t h e

information herein be dismissed.

IN THE FEDERAL COURT

S.A. No. 5 of 1977

OF AUSTRALIA

INDUSTRIAL DIVISION

Between:

JOIIN McSH4NE

Informant

- and -

UNIROYAL PTY. LIMITED

Defendant

9th September 1977.

Keely, J.

JUDGMENT

On 29th June 1977 John McShane

(the informant)

laid an information against Uniroyal

Pty. Limited (the

defendant) that on or about 27th May l977 it did dismiss

him contrary

to the provisions of

S. 5 of the Conciliation

and Arbitration Act

1904 (as amended) (the Act) by

reason

of the circumstances

that the informant:-

was an officer, delegate or member

of an organj-sation

(as defined in the Conciliation and Arbitration Act,

1904), or

was entitled to the benefit of

an award (as defined

in the Conciliation and Arbitration Act,

1904), or

has appeared as

a witness or has given evidence in

a proceeding under the Conciliation and Arbitration

Act, 1904, o r

was a member of an organisation (as defined

in the

Conciliation and’Arbitration Act,

1904) which was

then seeking better industrial conditions and the

said John McShane was dissatisfied with his conditions,

had absented himself from

work without leave, the

absence being for the purpose of carrying

o g t his

duties or exercising

his rights as an officer o r

delegate of

an organisation and having applied

for leave before

he absented himself and leave

being unreasonably refused

or withheld, or

being an officer, delegate or member or" (obviously

a typographical error for ''oftt) "an organisation

had done or proposed to

do an act or thing which

is lawful for the purpose of furthering or protecting

the industrial interests of the organisation or

its members, being

an act or thing done within the

limits of authority expressly conferred

on him by

the organisation	in accordance with the rules	of
l1

the organisation.

The organisation referred to in the information

was The Federated Miscellaneous Workers Union of Australia

(the Union).

Mr. J.W.

Shaw of counsel appeared for the infolmant,

and Mr. B.M. Snedden Q.C. eppeared with	Mr. A.V. Russell of
counsel for the defendant.

It was

established beyond reasonable doubt to my

satisfaction that:-

1. The informant was at all material times employed

by the defendant.

2.	The informant was at all material times	a menber
of the Union.

3. The Union was an organisation of employees within the meaning of the Act.

4 . The defendant was at all material times a body

corporate.

The informant was at all material times

a delegate

of the Union within the meaning of

S. 5 of the Act.

.	. *	3.
!

6 .

The defendant dismissed the informant

at Edwardstown

by giving him notice

of dismissal on Friday, 27th

May 1977 and paying him one week's pay	in lieu of
notice.

The informant gave evidence in

a proceeding under

the Act on three occasions including 22nd April 1977.

On each occasion

the evidence was given on behalf

, '

the Union before the Australian Conciliation and

Arbitration Commission.

In my view the matters set out in the paragrxphs

I 1

numbered I..

to 7. above prove all the facts and circamstances

constituting the offence other than the reason for the

defendant's action'' within the meaning of

S . 5 ( 4 ) of the Act.

(See Smithers, Woodward and Evatt,

JJ. in Roberts v. General

Motors-Holden's Employees Canteen Society Inc. (1975) 25

F.L.R.

415 at p.

424) .

In his final address Mr. Shaw did

not submit that

the evidence established that the defendant had dismissed

the

informant by reason	of any one of the circumstances alleged
in paras. (b), (d),	( e ) or (f) of the information quoted above;

nor did he submit that the evidence established that the

defendant dismissed the informant by

yeason-of the circumstance

that he was an officer (one of the allegations in para.

(a)

of the information) of the Union or

3 y reason of the circumstance

that he had appeared

as a witness

~ T I

a proceeding under the

Act

(one of the

a1 legations in para.

4 .

However Mr. Shaw submitted that the Court should find that the defendant dismissed the informant from its employment by reason of the circumstance that the informant

was a delegate or member of the Union

(S. 5(l)(a)

of the Act)

and by reason of the circumstance that the informant had

given evidence

in a proceeding under the Act

(S. 5(l)(c)).

On the evidence it is clear that the informant

was dismissed

as one of a group of 49 employees (reduced

from a list of 52) who were retrznched by the defendant

following upon a substantial reduction in orders which

resulted in a requirement for substantially less production.

I f

Mr. S1.lar.r did not deny that there

was some basis for economic

retrenchment at the Edwardstotm plant around

May 1977"

but submitced that the defendant

in dismissing the informant

had a "collateral pcrpose" which co-existed "with the economic

rationale".

Referring to the onus placed

upon the defendant by

S. 5 ( 4 ) of the Act, Mr. Shaw submitted that,

on the whole

!	of the evidence, the defendant had failed to establish on
a balance of probabilities:-

(a)

what person or persons or what committee within the defendant company actually made the decision

t o dismiss the kformant;

and

(b)

that, in deciding EO dismiss the informant, the

defendant was

not actuated by reason of the

Circumstance that the informant was

a member or

a delegate of the

Union,

o r by reason of

t h e

circurrlstance

that

t h e .informant had given evidence

i n a

proceeding under the Act.

As to each

of the matters

in (b )

above it i s c l e a r

that "an

employer may be said to have been actuated

by a

p a r t i c u l a r r e a s o n i f

was

subs t an t i a l

and operat ive factor

inf luencing h i m t o take that ac t ion , -a l though that reason was

but

one of a number of reasons which

s o influenced him'' - per

Smithers and Evatt,

JJ. i n Bowlinx v. General

liotors-Holden's

Pty. L t d . (1975) 8 A.L.R.

197 at p.

200.

par t icular ly wel l prepared f inal address which

contained

many

r e fe rences to ma te r i a l pa r t s

t h e t r a n s c r i p t

the evidence,

Mr.

Shaw

ana lysed the ev idence g iven , c r i t i c i sed

the

evidence called by

the

defendant and referred to contradictory

evidence given

on c e r t a i n a s p e c t s

by Mr.

McCormick

(Personnel

Manager of the defendant)

on t h e one hand, and by

Mr.

Dolan

( Indus t r i a l Re la t ions

Manager)

the

o ther .

a l s o c r i t i c i s e d

t h e d e f e n d a n t ' s f a i l u r e t o

call

certain witnesses ,

p a r t i c u l a r

i t s failure t o call Mr.

Footner (the

Managing Director and Chief

Executive whose

o f f i c e was

s i t u a t e d a t the

Edwardstovm

p lan t )

and M r .

Hall

(the Manufacturing Manager).

Many of M r .

Shaw's

cri t ical comments were f u l l y

jus t i f ied . There

were

cont rad ic t ions

a t

times

between

the

evidence given

by Bir'

McCormick

and

Mro Dolan.

In addi t ion

number

mat ters

a m not prepared to accept

accura t e the

evidence of Mre McCormick and Mr.

Dolan where

it confl ic ted with

evidence given

by the informant

o r by M r .

Egl inton ( the

Branch

Secretary of

t h e Union) o r by M r .

Hoberg

( t h e Shop Steward f o r

tkLe Union

a t

the Edwardsto~\n plant) .

. - .

6 .

j	.	,	m
I
I

However

the defendant

i s no t r equ i r ed to sa t i s fy

the

Court beyond

reasonable doubt

t o the ma t t e r s s e t ou t

i n S.

5 ( 4 ) of the Act.

As t o Mr.

Shawls submission -

( a )

above,

on a cons idera t ion of the evidence

as a whole I a m persuaded

that

i s more

probable than not

that

the dec is ion to d ismiss

the informant

was

made by Mr.

McCormick a f t e r be ing au tho r i sed

by the Edwardstown Management Committee on 2 7 t h May 1977 t o

effect the ret renchments necessary to reduce product ion and

accordingly to dismiss

employees.

I a m also persuaded

that it i s more probable than not

t h a t (1) there was

no d iscuss ion by t h e Management Committee

any of

the names

employees

l i s ted for re t renchment ,

and

( 2 ) that the Management Committee did not have before

it a t any

material time those

names ( including the name of the informant).

accept the evidence that , before

the

dec is ion was

made

2 7 t h May

1977 t o dismiss

the 52 employees,

M r .

McCormiclc

knew

the informant’s name was

on t h e l i s t of employees whom i t vas

proposed

to dismiss a l though there

was

confl-ict of

evidence

between M r . McCormick and Mr.

Dolan as t o when Mr.

McCo-rmick

was

to ld tha t the informant

‘ s name

was

on the l i s t and a l s o

some

c o n f l i c t

to the ac tua l t e rms

the d iscuss ion

which

then took place.

In his submission _.

(b) above ( that . the defendant had

no t

shown t h a t it was

not ac tua ted

the reason al leged) ,

M r .

Shaw r e l i e d upon various surrounding circumstances

matters against

which

the d ismissa l

the informant should

collsidered.

these circumstances

I make the follolving

f indings:-

. . ..-

I n 1975 the

defendant

tool: var ious

act

ions

intended

I t

t o r e s u l t

i n the Union being

removed

from the p lan t" .

Although r e l a t i o n s between

the

defendant

and

t h e

Union subsequently

improved,

the

company continued

to favour another organizat ion

employees

( the

Rubber

Workers

Union)

aga ins t

the

(Miscellaneous

Workers) Union

in matters such

as the defendant ' s

d i rec t ions regard ing the co l lec t ion

dues

from

members

during working hours.

3 .

On the las t occasion

(apparently

many years before)

on which t h e Union' S members were retrenched the

method

s e l ec t ing the

employees

for retrenchment

(which I shall ca l l the previous method

s e l ec t ing

employees) was

"last on f i r s t o f f "

- based simply

on length of

se rv ice with t h e company and without

any regard to the department in which the	employee
was working.

The f i r s t l i s t of

employees

to be

re t renched

(Exhibi t 4 ) was

prepared by M r .

Dolan on t h e basis

of the previous	method	s.nd	d id no t - inc lude	the name
of the informant.

8 .

5. Had the previous method

s e l ec t ing

employees

been adhered

t o i n May L977 the informant would

not have been included

the group

employees

given dismissal no t i ces on 27th

May

1977.

G .

The

dec is ion i n May

1977

to depart

rom the previms

method of

s e l ec t ing employees for retrenchment

was

made without any discussions

with any of t h e Union' S

o f f i c i a l s . T h i s c o n t r a s t e d w i t h

t h e a c t i o n

t h e

company

took in February 1975

the Metal Trades

a rea when it decided to use the new method of

s e l ec t ing

employees

f o r

r e t r e n c h e n t .

t h a t

occasion the proposed change

of method was

discussed

with

a l l

o f

the Metal Trades Unions concerned and

the

defendant

sought and obtained their agreement

to the

new method.

There

was

sa t i s f ac to ry exp lana t ion e i the r

t o

the

o f f i c i a l s of

t h e Union

i n May

1977 or

i n evidence

t o t h e

Court as

t o wily

t h e company did not have

such discussions

with t h e Union before deciding

on the new method of s e l ec t ing employees for

retrenchment.

Nor

was

any sa t i s fac tory

idence

given as

t o t h e h a s t e

w i t h which

the defendant '

dec i s ion to r e t r ench

was

car r ied out

p a r t i c u l a r l y

i n view of

the per iod

time during which the

defendant had

known of the nEed f o r some retrenchments.

The informant had been

transferred

from

the

Hard

Press Department

t o t h e

Hard T r i m Department

i n

September 1976. This transfer was to

enab le

him

t o more

readi ly per form his du t ies

as ac t ing Shop

Steward

during

the

absence

on long

service

l ave

' ,

of M r .

Hoberg,

bu t the t r a n s f e r was

sought neither

by t h e Union nor .by the

informant.

The

t r a n s f e r

was ef fec ted by M r . Dolan, who then regarded

it as

temporary but the informant

was

never t ransferred

back

t o t h e

Hard

Press Department although the

informant had suggested that he be transferred back

because of

a d i f f i c u l t y which had

a r i s e n with another

employee. Had the

informant

been

transferred

back

t o the Hard Press

Department,

would not

have

been

retrenched i n May

1977.

sa t i s fac tory

reason

appeared from the evidence of the defendant's

witnesses

t o

i t s

f a i lu re to t r ans fe r t he in fo rman t

back t o his former department after

it became known

to the defendant tha t there

would

retrenc'hmen-cs.

I n the weeks preceding 2 7 t h May

1977 , during which

the defendant

was consider ing making retrenchments,

the defendant ' s o f f icers

v e ~ e

aware

t h a t t h e

in fo rman t ' s s en io r i ty ( in yea r s

of service with

the defendant) would be lOt7er r e l a t i v e t o

his

fel low employees

in t h e a r e a t o

which

he hsd been

10.

t ransferred than

it would have been (again

r e l a t i v e t o

his

fellow employees) had he not

been

t r ans fe r r ed

in September

1976.

o the r

I I

words he was mar's more vulnerable"

retrenchment

r e s u l t

being transferred to and remaining

i n t h e

Hard

T r i m Department where

the persons

employed, generally

speaking,

had

subs t an t i a l

.	sen io r i ty .

The r eason fo r

t he

change i n the method

s e l ec t ing

employees for retrenchment which the defendant

gave both to the

Union i n May

1977 and in evidence

to the Court

was

that,

i f the ret renchments

had

been

ca r r i ed

o u t under

the previous

method of

se1ectF;ig

employees,

the p lan t opera t ions

would

not have been

v i ab le - unless accompanied by

a scheme f o r the

r e t r a i n i n g of

employees,

which

scheme would have

been costly. However thc informant could have been employed on the work which he had formerly done

i n the

Hard

Press Department and

r e t r a i n i n g would

have been required for

him.

10.

On 2 7 t h May 1977 Mr. Dolan

decided

- and Mr. McCormick

subsequently approved

his dec is ion -

t o d e l e t e

3 names

f r o m

t h e

l i s t of.

employees

to be re t renched

( 2 of these 3 names were deleted

at the request

of the Union). The defendant company could

have

d s o dele ted the

name

the informant from the

l i s t .

11.

This could have been done

t h e

ground

that

t h e

informant 's

name

would

not have been on

the

l i s t

but f o r his t r a n s f e r by

the defendant

in September

1976

from

t h e Hard Press Department t o t h e

Hard

T r i m Department.

Such a ground would have

been

strong one and not open to any valid

criticism

fe l low employees because the transfer

was

ef fec ted

in order to enable the informant to

r ead i ly

perform his du t i e s as a c t i n g Shop Steward

r e l a t i o n t o h i s f e l l o w	employees.	There	was	no	1 1
i

sa t i s f ac to ry exp lana t ion e i the r t o the o f f i c i a l s

the Union

in May

1977 o r i n e\-icience to the Court

as t o why

the name of the informant

was

not deleted

from t h e l i s t of

employees t o be retrenched.

11.

2 7 t h May

1977 M r .

Dolan

made

q u i t e p e r s i s t e n t

a t t empt to

dissuade

the informant from talking

t o

M r .

Hoberg

immediately a f te r the informant

was

to ld

of	h i s d i smis sa l .

I I '

12.

The

defendant fa i led to of fe r the informant

employment

a t i t s o ther p lan t

Salisbury although

, .

it was

seeking new

employees there shor t ly before

the

d i smis sa l

on 2 7 t h May

1977.

. c '

I (

12.

1 ".

However ' the quest ion

which the Court has

to dec ide

i s

not whether the defendant

112s

behaved

f a i r l y o r u n f a i r l y

t o the informant.

Nor i s it whether

the defendant could have

o r should

have

acted d i f f e r e n t l y .

The mat te rs

to which I

have re fer red a re only re levant to

the

ex ten t t o

which they

may

assist

in determining whether the defendant

was

ac tua ted

any

of the

reasons al leged

the

information.

The quest ion

i s

simply whether

the

defendant

has

satisfied

the

onus

proof

under S . 5 ( 4 ) of the Act.

Mr. HcConnick has

spec i f i ca l ly den ied

in h i s

ev idence

i n chief

denial maintained under cross-examination

t h a t

he d i rec ted tha t

the

informant be dismissed

2 7 t h May

1977

by reason of any of the circumstances forbidden

by S . 5(1)

the Act.

M r .

Dolan has made and maintained

a similar denia l .

Under	S . 5 ( 4 ) of	the hc t it i s not	necessary	far	the	defendant	:
!

t o s a t i s f y t h e	Court	beyond	reasonable doubt. Despite	a	l	l	I
!

' I	of	t h e m a t t e r s t o	which M r .	Shaw	has re fer red ,	on	the evidence
I .

as a whole I cons ide r t ha t

i t i s more probable than not

that

the defendant ,

in deciding to dismiss the

informant,

was

not

ac tua ted by any of

the

reasons

rcumstances

leged

the

;

information.

Accordingly the information

i s dismissed.

I ',

[1977] FCA 70

9 Sep 1977