John McShane v Uniroyal Pty Ltd

[1977] FCA 70

CATCHTJORDS

Dismissal of union delegate - S. 5(l)(a) and (c) of

Conciliation and Arbitration Act - informant one of 52

employees retrenched - whether dismissal by particular

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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 to

retrenchment - defendant's failure to transfer informant

back - defendant,without consulting union,changed its

previous practice re method of retrenchment.

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S.A. No. 5 of 1977

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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)

I 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,

or

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

2.

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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
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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

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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

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corporate.

5. The informant was at all material times a delegate

of the Union within the meaning of S. 5 of the Act.

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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.

7. 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 of

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the Union before the Australian Conciliation and

Arbitration Commission.

In my view the matters set out in the paragrxphs

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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

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(one of the a1 legations in para. (c) of the information)

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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"

I 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 it was a 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.

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

of 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) on the o ther . He 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 , in 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 on

a number of mat ters I a m not prepared to accept as 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) .

. - .

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However the defendant i s no t r equ i r ed to sa t i s fy

I the Court beyond reasonable doubt as 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 it 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 52 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

of any of the names of 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).

I accept the evidence that , before the dec is ion was made on

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 a 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

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some c o n f l i c t as to the ac tua l t e rms of 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 by the reason al leged) ,

M r . Shaw r e l i e d upon various surrounding circumstances as

matters against which the d ismissa l of the informant should

be collsidered. As to these circumstances I make the follolving

f indings:- - . . ..- - I

7.

1. I n 1975 the defendant tool: var ious act ions intended

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t o r e s u l t i n the Union being removed from the p lan t" .

2. 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 of 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 of 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 of s e l ec t ing the employees for retrenchment

(which I shall ca l l the previous method of 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.

4. The f i r s t l i s t of employees to be re t renched

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(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.

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5. Had the previous method of s e l ec t ing employees

been adhered t o i n May L977 the informant would

not have been included 5n the group of employees

given dismissal no t i ces on 27th May 1977.

G . The dec is ion i n May 1977 to depart f 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 in 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 . On 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

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to the new method.

7. There was no 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 ev idence

given as t o t h e h a s t e w i t h which the defendant ' S

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 of time during which the

defendant had known of the nEed f o r some retrenchments.

9.

8. 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

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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, he would not have been ,

retrenched i n May 1977. No sa t i s fac tory reason

appeared from the evidence of the defendant's

witnesses as 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 be 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

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t ransferred than it would have been (again

r e l a t i v e t o his fellow employees) had he not

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been t r ans fe r r ed in September 1976. In o the r

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words he was mar's more vulnerable" to retrenchment

as a r e s u l t of 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 .

9. The r eason fo r t he change i n the method of 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 no 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. 52 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 of the informant from the l i s t .

11.

1 This could have been done on 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

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a strong one and not open to any valid criticism

by fe l low employees because the transfer was ef fec ted

in order to enable the informant to more r ead i ly

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

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
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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 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. On 2 7 t h May 1977 M r . Dolan made a 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 .

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12. The defendant fa i led to of fe r the informant

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employment a t i t s o ther p lan t at Salisbury although

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it was seeking new employees there shor t ly before

the d i smis sa l on 2 7 t h May 1977. .

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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

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have re fer red a re only re levant to the ex ten t t o which they

i may assist in determining whether the defendant was ac tua ted

by any of the reasons al leged in the information. The quest ion

i s simply whether the defendant has satisfied the onus of 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 - a denial maintained under cross-examination - t h a t

he d i rec ted tha t the informant be dismissed on 2 7 t h May 1977

by reason of any of the circumstances forbidden by S . 5(1)

of 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	:
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t o s a t i s f y t h e	Court	beyond	reasonable doubt. Despite	a	l	l	I
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' 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
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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

or

c

i

rcumstances

a

l

leged

in

the

;

information.

Accordingly the information i s dismissed.

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