Lewis v Qantas Airways Ltd

[1981] FCA 154

Re: DAVID JOHN LEWIS
And: QANTAS AIRWAYS LIMITED (1981) 54 FLR 101
No. N.S.W. 7 of 1981
Industrial law - Conciliation an Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
NEW SOUTH WALES DISTRICT REGISTRY
Morling J.(1)

CATCHWORDS

Industrial law - victimization - union delegate engaged in industrial disputation - strike - change in delegate's duties - delegate involved in timekeeping offence with fellow employee - both employees dismissed - claim of victimization - dismissal unrelated to position as union delegate.

Conciliation and Arbitration Act 1904 (Com), s.5.

Conciliation and Arbitration - Dismissal of employee - Information for offence - Dismissal allegedly by reason of circumstance that employee a delegate - Delegate engaged in industrial disputation - Change in duties subsequently - Employee's claim of victimization - Onus of proof - Dismissal unrelated to position as union delegate - Conciliation and Arbitration Act 1904 (Cth), s. 5.

HEADNOTE

The prosecutor, a union delegate, was involved in industrial disputation with his employer, the defendant. Subsequently his roster and duties were altered by the defendant. He was dismissed after it was alleged that another employee had clocked his time card. He brought a prosecution against the defendant alleging that it had breached s. 5 of the Conciliation and Arbitration Act in dismissing him by reason of the circumstance that he was a delegate of a registered organization. All relevant matters except the reason for the prosecutor's dismissal were admitted by the defendant.

Held: (1) The defendant had discharged the onus imposed upon it by s. 5 (4) of the Act. The matters relied upon by the prosecutor as affording evidence that his dismissal was related to his union membership and activities had nothing to do with his dismissal.
(2) Information dismissed.

HEARING

Sydney, 1981, June 9-12; August 25-27; September 22. #DATE 22:9:1981

INFORMATION.

The prosecutor charged the defendant with a breach of s. 5 of the Conciliation and Arbitration Act 1904.

M. J. Sweeney, for the prosecutor.

C. L. Cullen Q.C. and J. N. West, for the defendant.

Cur. adv. vult.

Solicitors for the prosecutor: McClellands.

Solicitors for the defendant: Dawson Waldron.

T. J. GINNANE

ORDER

The information be dismissed.

Orders accordingly.

JUDGE1

This is a prosecution brought against the defendant Qantas Airways Limited ("Qantas") for an alleged breach of s. 5 of the Conciliation and Arbitration Act 1904, as amended. The information alleges that on 28 November 1980 Qantas, being the employer of the prosecutor, dismissed him by reason of the circumstance that he was a delegate of the Transport Workers' Union of Australia ("the Union"). Section 5 of the Act provides, in part, as follows:-

1. (1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee -

(a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organisation, or of an association that has applied to be registered as an organization;

(b) . . .

(1A) . . .

(2) . . .

(3) . . .

(4) 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.

(5) Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position."

The prosecutor was employed by Qantas for some ten years prior to 1 December 1980, on which date he was dismissed with effect from 28 November. He was employed in the flight catering centre at Mascot as a cabin attendant. At the time of his dismissal and for some years prior thereto he was a member of the Transport Workers' Union of Australia and a delegate of that Union.

At the commencement of the hearing, senior counsel for Qantas formally admitted all matters necessary to establish a breach of s. 5(1) of the Act, save that the reason why Qantas dismissed the prosecutor was that he was a member or delegate of the Transport Workers' Union. On this sole matter in dispute between the parties Qantas carried the onus of proof - see s. 5(4) of the Act.

The dismissal of the prosecutor arose out of an incident which occurred on 27 November 1980. The prosecutor, in common with other employees, had been issued with a bundy card on which he was required to stamp the times of his arrival at and departure from his place of work. Endorsed at the foot of every bundy card is a notice in the following words:

"N.B. Any employee clocking another employee's card will be liable to dismissal."

Shortly after 3 p.m. on 27 November, Mr. Parsons, who occupied the position of Employee Relations Officer at the flight catering centre, observed an employee named Macfarlane standing near the bundy clock. Believing Macfarlane to be acting suspiciously he kept him under surveillance. He saw Macfarlane punch a bundy card and place it in the rack beside the bundy clock. Parsons retrieved the card and observed that it did not belong to Macfarlane. When challenged by Parsons, Macfarlane admitted that he had punched the card and said that he had been asked to do so by another employee, whose name he would not divulge. The card which he had punched was in fact the prosecutor's card. Not unnaturally this led Parsons to believe that the prosecutor had either directly or indirectly asked Macfarlane to punch his card. Parsons then set about trying to ascertain whether the prosecutor was still on the premises. His enquiries led him to believe that the prosecutor was not on the premises. He himself had last seen the prosecutor at about 2.15 p.m. the same day when he had come to Parsons' office to make a complaint about a particular working condition. I am satisfied that Parsons gave me a substantially accurate account of the events of 27 November and that those events led him reasonably to believe that Macfarlane and the prosecutor had made some agreement that Macfarlane would punch the prosecutor's bundy card for him.

After discussing the matter with Mr. Hare, the catering operations manager at the flight catering centre, Parsons informed Macfarlane that he was suspended from duty until 11 a.m. the following morning when he should present himself to, in effect, show cause why he should not be dismissed. Parsons sent a telegram to the prosecutor's home informing him that he had been suspended because another employee had been apprehended clocking his bundy card, and requesting him to report to Parsons' office at 11 a.m. the following day. The projected meeting scheduled for the following morning was not held because of the unavailability of Mr. Brewer, the Transport Workers' Union organiser who had been asked to represent Macfarlane and the prosecutor at the meeting. However, the meeting was held on the following Monday, 1st December and both Macfarlane and the prosecutor attended with Brewer. The meeting was held at the office of Mr. McLean the Qantas Personnel Manager. Macfarlane maintained that another employee, whose identity he declined to reveal, had asked him to clock bundy card number 5565 without informing him that that was the number of the prosecutor's card. He said he did not know this was the prosecutor's card, which in fact it was. He also said that the other employee had informed him that the holder of card 5565 had worked through his lunch hour. He claimed that this was regarded by some of the men as being some justification for leaving work before the end of the shift. McLean also afforded the prosecutor an opportunity to give his explanation of the events of the previous afternoon, but he declined to offer any explanation. Brewer made an unsuccessful plea for leniency on behalf of the prosecutor and Macfarlane and both men were dismissed. They both exercised the right given to them by company policy to make further appeals for clemency, but these appeals were rejected. Later in these reasons I shall refer in greater detail to the events of 1 December and to the hearing of the appeals.

The early years of the prosecutor's employment with Qantas appear to have been uneventful. Initially he was one of six Transport Workers' Union delegates at the food catering centre but for one reason or another his co-delegates ceased to exercise their functions as delegates and the prosecutor became the only delegate at the centre.

In 1980 an industrial dispute developed at the centre. Part of the work of cabin attendants consisted of servicing aircraft arriving at and departing from the International Terminal. The work involved the carrying of food in appropriate containers to aircraft in vehicles described as hy-lift trucks, and the removal from aircraft of used catering equipment and refuse. For the most part this refuse consisted of remnants of meals consumed in flight by passengers on aircraft arriving at the Terminal. Some members of the Union claimed that the work of taking food to and removing refuse from aircraft should not be done by the same men using the same vehicles. It was claimed that the use of the one vehicle for such work was a breach of the regulations made under the Pure Foods Act (N.S.W.). The Union complained to the Health Commission of New South Wales which arranged for its officers to inspect the method of working adopted by Qantas in servicing aircraft.

As a result of those inspections the Health Commission wrote to Qantas alleging breaches of the relevant regulations. In due course it prosecuted Qantas for such alleged breaches. Qantas has denied the breaches and is defending the proceedings brought against it. It is no part of my function in this case to determine whether Qantas did infringe the regulations. However, counsel for the prosecutor submitted, correctly in my opinion, that the Union's conduct in complaining to the Health Commission was a source of considerable irritation and embarrassment to Qantas which prided itself on what it regarded as the high standard of its catering operations. The Union and Qantas came to regard this issue as the "quarantine dispute" and I shall refer to it by that name.

The prosecutor was clearly in the vanguard of the Union's action against Qantas in the quarantine dispute. The dispute reached such proportions that it led to a 12 day strike in June-July 1980. The strike terminated on 2 July and between that date and the date of his dismissal the prosecutor claims that Qantas so treated him in his employment that it manifested an intention to victimize him as a reprisal for the leading role which he had played in the quarantine dispute. Although there was no obligation on the prosecutor to call any evidence in chief (as the onus lay on Qantas on the only issue in dispute) evidence was called on his behalf for the purpose of proving Qantas' intention to victimize him. It is convenient to refer to this evidence before considering the evidence called by Qantas in support of its contention that the prosecutor's union position and industrial activities played no part in the decision to dismiss him.

For some 18 months prior to the strike which ended on 2 July 1980 the prosecutor had been rostered on a special permanent 6 a.m. - 2 p.m. shift. He was the only person on the shift and he found it convenient for his purposes. Whilst engaged on this shift he spent a good part of his working day working with the foreman in charge of servicing hy-lift trucks. This work was to his liking, particularly as it meant that he spent more time in the catering centre building than other men whose duties required them to spend much of their time driving to and from aircraft. Working in the building on the permanent shift was an advantage to him because his union members knew where he could be found should they wish to approach him on any matter. Moreover, the permanence of the shift was seen by the prosecutor as assisting him in dealing with management. He said that being on the permanent shift gave management a clear idea of what shift he was on at all times and allowed him to have more contact with the management. It was his wish that he should stay permanently on the shift. However, shortly after the termination of the strike he was rostered to work on the normal 7 a.m. - 3 p.m. shift. Hare said in evidence that the change of shift had no relation whatever to the strike or to the prosecutor's part in it. He said that it was quite common to change the duties of drivers in the catering section and that it was almost impossible to roster any group of men to the satisfaction of all of them. Whatever roster was adopted was likely to lead to some men being dissatisfied. He said that he did not treat the prosecutor any differently from other drivers in the matter of change of rosters and duties. In his belief relations between him and the prosecutor had never been strained. He agreed that at one point of time he had given the prosecutor an undertaking not to change his shift, but said that the undertaking was not given on a permanent basis and that there "is no way anybody in the catering operations section could be given an undertaking to remain on a permanent roster forever. It just could not be done." He gave reasons why it had become necessary to change the prosecutor's roster and duties. I see no reason to doubt Hare's evidence and I think he was a frank and honest witness.

From time to time prior to the strike it was a small part of the prosecutor's duties to train new recruits as drivers of hy-lift trucks. He was paid some modest increment to his ordinary weekly wage whilst engaged in this work. Prior to the strike the prosecutor was the only employee who was requested by the management to train new drivers. Shortly after the strike the company proposed that a few additional men should to carry out driver-training duties when required. The explanation for this proposal was again given by Hare. His evidence on this matter includes the following:

"We found we were continually short of drivers and there was a requirement to train a number and we were not sure how many, whether it was between 6 or 20, and we discussed it with the union. By the same token, I felt that one driver-trainer is just not sufficient. There should be at least a minimum of two, because at least if they are rostered accordingly I can have one there all the time. I originally suggested six, the union suggested that was too many, and I said we can talk about that. I think they suggested two and I think I was going to suggest three, but we did not resolve that matter.

"Previously there had been one only? - - - Yes, while the TWU were doing it, only one.

"That had been Mr Lewis for some time? - - - Yes.

"It meant that when training of a new driver was required, Mr Lewis did it and received additional pay? - - - Yes. I might add, it was very infrequent, we never did have a very large requirement to train drivers. It seemed to come in blocks. If we trained 12 drivers they would probably last us from six to eight months.

"The company's proposal was to increase the number of driver-trainers from one to six? - - - That was my proposal.

"Wanting to settle on three? - - - It never has been settled. We are still talking about that.

"At all events, there is no doubt, is there, that Mr Lewis made it clear he thought he was being victimised on account of his change of positioning being put back on shift work and this proposal to increase the number of driver-trainers? - - - That is what he said, yes."

However, as early as 1977 the prosecutor had complained that he was being victimized. At that time he complained that he was being victimized because another employee was assigned to a relieving position which he had filled on previous occasions. After the reason why the other employee was given the job was explained to the prosecutor he did not pursue his complaint.

Whether as a result of the strike or for other reasons, relations seem to have deteriorated between the prosecutor and the Qantas management personnel with whom he had contact. One sign of the deterioration was the prosecutor's refusal to discuss with management matters affecting his members. On 3 October 1980 the Industrial Relations Manager for Qantas wrote to the Branch Secretary of the Transport Workers' Union of Australia drawing attention to the prosecutor's reluctance "to participate in dialogue with Company representatives in a constructive manner" and suggesting that unless the prosecutor was prepared to change his attitude as the union delegate "he should step aside in the best interests of all concerned". The writing of this letter was relied upon as evidencing Qantas' desire to prejudice the prosecutor by having him removed as a union delegate.

I turn now to consider the evidence relied upon by Qantas to make out its case that its decision to dismiss the prosecutor did not offend against s.5. To make out such a case an employer is obliged to prove that the consideration referred to in s. 5(1)(a) of the Act was not a substantial and operative factor which actuated it in dismissing the prosecutor. See General Motors-Holden's Pty. Limited v. Bowling (1976) 51 A.L.J.R. 235. The onus must be discharged according to the balance of probabilities - see per Gibbs J. at p. 239.

There were three separate occasions when Qantas gave consideration to dismissing the prosecutor. The first occasion was on 1 December 1980 when McLean interviewed the prosecutor in company with Brewer. McLean had been contacted by Parsons on 27 November and informed of the timekeeping offence which Macfarlane and the prosecutor had allegedly committed. It was part of McLean's duties to deal with matters of this kind. He said that the company's policy with regard to falsification of time cards was that it was a reason for dismissal of the employee concerned. There does not seem to be any doubt that this was, in fact, the company's policy. As I have already observed, at the foot of every bundy card was a notice stating that any employee clocking another employee's card would be liable to dismissal. Further, there was evidence that each employee is issued with a booklet entitled "You in Qantas" and on p. 3 of that booklet the following appears:

"Most importantly, don't clock on or off for someone else. To do so is not only dishonest, but constitutes misconduct which is a ground for summary dismissal."

Moreover, from time to time notices were displayed on staff notice boards drawing the attention of employees to various matters. Some of these notices were tendered in evidence and it is clear that the attention of staff was drawn to their obligation to observe correct timekeeping procedures. One such notice provided:

"Under no circumstances shall an employee 'clock' another employee's attendance card nor request another employee to 'clock' his or her card for him. Any breach of this regulation shall render the employee or employees concerned liable to summary dismissal."

another notice read:

"Bundying of cards

Staff are aware that anyone found clocking another employee's card either on or off places the employee in a position whereby his services could be terminated from the Company.

There have been indications that this may have occurred recently and this Staff Notice is being circulated to remind staff that this unlawful act can place an employee's employment in jeopardy.

Would all staff therefore ensure that they do not involve themselves in that improper type of practice."

Before interviewing the prosecutor on 4 December McLean first interviewed Macfarlane in company with Brewer. Macfarlane did not deny that he had clocked the prosecutor's bundy card. His explanation was that he had been asked to clock the card by another employee (not the prosecutor) but he declined to name the employee who had made the request of him. When the interview with the prosecutor commenced, he said: "The Court is in session." When asked what he had to say, he said: "Nothing." He later left the room and there was further discussion between Brewer and McLean. McLean then told Brewer that he could see no reason for not dismissing both Macfarlane and the prosecutor. He asked both men to return to the room and informed them of his decision to dismiss them.

In evidence before me McLean said that there was nothing unusual in him interviewing the prosecutor before deciding to dismiss him. Whether or not an interview was held with a suspended employee depended on the circumstances of the particular case. It was put to McLean that another Qantas employee who had committed a timekeeping offence had not been dismissed but he said that he had no knowledge of this occurrence. He also said that he regarded the prosecutor's refusal to give any explanation of the events of 27 November as being an indication of his guilt, as he was not prepared to say anything in his own defence. He said that his personal relations with the prosecutor were quite cordial. Before interviewing the prosecutor he made enquiries of the various personnel departments in Qantas to confirm his understanding that employees who had committed timekeeping offences had been dismissed. His enquiries apparently confirmed his understanding. He said that at some time subsequent to 28th November he had prepared a typewritten list on which appeared the names of employees who had been apprehended committing timekeeping offences. The list was headed "Timekeeping Violations. Qantas Precedents." and it showed that every employee who had been apprehended for a timekeeping offence had been dismissed. But in three cases (which had occurred in 1969) the dismissed employees had appealed to a more senior officer of the company and on appeal they had been permitted to resign the service of the company.

I was impressed with McLean as a witness and I formed the view that he bore no ill-will to the prosecutor. I am of the firm opinion that the prosecutor's position as a union delegate and his involvement in past industrial disputation with the company were not taken into account by McLean on 1 December when he made his decision to dismiss the prosecutor. It is significant that McLean did not single out the prosecutor for treatment different from that meted out to Macfarlane, who was not a union delegate and who had not taken any special part in the quarantine dispute. It is true that, in a sense, there was no direct evidence before McLean proving that the prosecutor had directly or indirectly requested Macfarlane to "clock" his bundy card. But, to say the least, the facts were such as to give rise to a reasonable inference that Macfarlane had acted as he did at the express or implied request of the prosecutor. Whilst the legal niceties appropriate to a more formal proceedings might not have been observed at the interview on 1 December, I am satisfied that neither Macfarlane nor the prosecutor was unfairly treated. If facts favourable to the prosecutor did not emerge at the interview, that failure was due entirely to his own refusal to say anything in his own defence. It was submitted on behalf of the prosecutor that his refusal to offer any explanation was explicable because he reasonably believed that McLean was biassed against him. I do not think the prosecutor was justified in holding this view, if in fact he held it. I am satisfied that, in deciding to dismiss the two employees, McLean believed that he was acting consistently with company policy and past practice in similar cases. I do not think that the prosecutor's position as a union delegate or any action taken by him as a member of the Transport Workers' Union had anything to do with the decision to dismiss the two men.

An appeal procedure was open to the dismissed men. Under this procedure it was open to them to appeal to a more senior officer and if they were dissatisfied with the outcome of that appeal there was a right of further appeal to the General Manager or his nominee.

The prosecutor exercised his right of appeal and his first appeal was heard by Mr. Ingram on either 3 or 4 December. Ingram was the company's Industrial Relations Manager - Ground Staff. He has since retired from the company's service. Parsons had also informed him on 27 November 1980 of the events of that day. After Brewer had been informed by McLean on 1 December that the two employees would be dismissed, an arrangement was made for Ingram to hear the appeal from McLean's decision. Brewer, Macfarlane and the prosecutor all attended at Ingram's office. It was put on behalf of the dismissed men that feeling was running high amongst the transport workers at the flight catering centre because of the dismissals, and that the penalties imposed were excessively harsh. Ingram asked the prosecutor whether he could explain the reason for not 'clocking' his own card if, in fact, he was still at work at the time the card was 'clocked', as was alleged on his behalf. To that question the prosecutor replied: "I have no statement to make." Ingram said that he asked Brewer whether there was any suggestion that the prosecutor was being victimised because of his union activities and "was given a very categoric assurance by Mr. Brewer that that was not being claimed." It was put to Ingram on behalf of the two men that he should not hear the appeal because he was the author of the letter of 3 October 1980. It will be recalled that in that letter the suggestion had been made that unless the prosecutor was prepared to change his attitude as the union delegate he should step aside. Ingram denied that the letter exhibited any bias against the prosecutor. He insisted on the letter being produced and read and after that was done and he had explained its contents, the union representative present said that it was "an entirely different situation to the one we were led to understand." Ingram gave his decision to affirm the dismissal in a letter dated 4 December 1980. In that letter he made reference to the extract from the booklet "You in Qantas" referred to above, referred to the prosecutor's failure to make any statement in his own defence, and said of both Macfarlane and the prosecutor that "there is reason to believe that, in the face of Management's warnings, they conspired to falsify timekeeping records and must accept the consequences of their actions." He therefore rejected the appeal. It is again to be noted that the prosecutor received treatment no different from that given to Macfarlane.

It was put to Ingram that, in effect, the prosecutor's past union activities did influence him in reaching his decision. I am satisfied that this was not the case and that he, like McLean, arrived at his decision on the basis of the time-keeping offence and company policy. I accept his evidence that he was unaware that an exception to company policy had been made in the case of one particular employee. He was therefore under the impression, which was substantially if not totally accurate, that offences of the kind with which Macfarlane and the prosecutor were accused had led to termination of employees' services in all other cases. Ingram said that he had heard at least 25 appeals against dismissal. Only two of these appeals had been made by employees charged with timekeeping offences. In those two cases, both employees had been initially dismissed and, on appeal, the dismissal of one of the employees had been confirmed and the other had been permitted to tender his resignation. The evidence leaves me in no doubt that Ingram believed that he was dealing with the prosecutor's appeal in a manner consistent with the manner in which other appeals had been determined. I am quite satisfied that in deciding the appeal he did not take into account the prosecutor's union position or activities.

Both employees exercised their further right of appeal to the General Manager or his nominee. Mr. Haynes, the Director of Commercial Services for Qantas, was nominated to hear this appeal. For some four years prior to 18 December when he heard the appeal, Haynes had been based in America and had no personal knowledge of the prosecutor or Macfarlane. Brewer and another union officer represented the two dismissed men and made representations on their behalf. Mr. Thornley who was the Manager of the Sydney International Terminal was present at the hearing of the appeal. He put to Haynes that the question to be considered was whether the company's rules had been broken in that there had been falsification of the time card. He said that the fact that the prosecutor was a union delegate had no bearing on the matter and that the company should follow past practice and dismiss both employees. Prior to the hearing Haynes had been informed by McLean of the company's policy on timekeeping offences. McLean told him that, in the past, timekeeping offences had led to dismissal of the employees concerned. As well as being the company's Director of Commercial Services, Mr. Haynes is a solicitor. His conduct of the appeal appears to have been impeccable and indeed no criticism of it was made by counsel for the prosecutor. The appeal was conducted in an informal manner, but I am satisfied that both dismissed men were afforded a fair hearing. What is more important, I have no doubt that the fact that the prosecutor was a union member and delegate had no bearing on Mr. Haynes' decision. That decision was conveyed by a letter which was in the following terms:

"I have duly considered the submissions put to me by the Union Representatives on 18th December, 1980.

Perusal of the material relevant to the charges laid against them, i.e. 'conspiring to falsify a timekeeping record' leaves me in no doubt that there were aware of, but wilfully ignored Company Regulations.

I therefore do not disagree with the decision of the first appeal as outlined in SI.349 of 4th December 1980, from the Industrial Relations Manager Ground Staff, and advise that I am unable to reinstate either appellant.

As I am conscious of the past service of both individuals, I am prepared to accept their resignation, with effect from 1500 hours on 28th November, 1980, within five days (by 24th December, 1980) of your receipt of this correspondence. I must stress however, in making this offer, I do so without in any way resiling from my view that serious misconduct invites summary dismissal."

It would have been surprising if Haynes had come to any different decision in the light of the company's policy on timekeeping offences, the belief which he reasonably held that past offences had invariably led to dismissal, and to his finding that both men had broken the company's rules.

Evidence was given before me that in July 1981 two employees who had absented themselves from work without permission and who had attempted to suppress that fact from their employer's knowledge had not been dismissed by the company. However, I do not think the different treatment meted out to these men casts any doubt on the company's case before me. The events and the circumstances surrounding them were different from the timekeeping offences for which Macfarlane and the prosecutor were dismissed and there were special circumstances affecting the men concerned which explain the company's decision not to dismiss one of them and to permit the other to offer his resignation.

Mr. Yates, the Deputy General Manager of Qantas, was also called in evidence. He is the person who has the overall responsibility for the day-to-day operation of the airline's activities. He said he was not consulted before the prosecutor was dismissed and did not learn of his dismissal until after the event. He seems to have taken no part at all in the original decision to dismiss the men or in the subsequent appeals or their determination.

It will be seen from what I have written above that I am satisfied that the matters relied upon by the prosecutor as affording evidence that his dismissal was related to his union membership and activities had nothing to do with his dismissal. Although the quarantine issue was an embarrassment to Qantas and notwithstanding the prosecutor's active involvement in it, I am satisfied that it had nothing to do with the decision taken at any level to dismiss the prosecutor. Nor do I think that the change in the prosecutor's roster and duties subsequent to the strike are indicative of victimization of the prosecutor because of his part in the strike. The reasons for those changes were satisfactorily explained in evidence by Hare. The same can be said of the decision to train new recruits as drivers on hy-lift trucks. This decision seems to me to have been taken for legitimate industrial reasons and was not part of any desire by Qantas to penalize the prosecutor because of his union activities. I think there is much substance in the view that the prosecutor was very prone to see evidence of victimization when none existed. The 1977 incident supports this view.

In Hyde v. Chrysler (Australia) Limited (1977) 23 A.L.R. 97 at 110, Northrop J. pointed out that the fact that an employee happens to be a shop steward "does not confer on that employee an immunity from dismissal by reason of the circumstance that he is a delegate of an organisation." That observation, with which I agree, is particularly apt to the facts of the present case. The timekeeping offence for which the prosecutor was dismissed had no relation to his position as a union delegate or to the part which he had played in the industrial disputation with the company. His position as delegate gave him no immunity from dismissal for the offence. A passage in the judgment of the Court Session of the Industrial Commission of New South Wales sitting in Court Session in In re Dispute at Broken Hill Pty. Co. Limited Steel Works Newcastle (No. 2) (1961) A.R. 48 at p. 66 makes the same point as that made by Northrop J. to which I have referred above. Speaking of s.95 of the Industrial Arbitration Act (N.S.W.), which has much in common with s. 5 of the Conciliation and Arbitration Act, Richards, Beattie and Kelleher JJ. said:

"Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union. It is basic to our system that employees should be organized in industrial unions and it is through such unions that approach must be made to the tribunals set up. Men who are willing to play a part in the affairs of an industrial union are entitled to expect that they will not be prejudiced in their employment because of any legitimate actions they take in any union office they assume. Indeed, it is an offence under s.95 of the Industrial Arbitration Act for an employer to dismiss an employee or injure him in his employment or alter his position to his prejudice by reason of the fact that the employee is an officer, delegate or member of a trade or industrial union. But, while this Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions."

I have carefully examined all the evidence to ensure that the prosecutor was not unjustly penalised for his activity as a representative of his union or for his participation in the quarantine dispute. I am satisfied that this did not occur. I have no doubt that Qantas has discharged the onus imposed on it by s. 5(4) of the Act. The information will therefore be dismissed.