Mojgani v Aerial Taxi Cabs Co-operative Ltd t/as Canberra Cabs
[2001] ACTSC 120
•13 December 2001
CAMERON MOJGANI v AERIAL TAXI CABS CO-OPERATIVE SOCIETY LIMITED T/as CANBERRA CABS [2000] ACTSC 120 (13 December 2001)
CATCHWORDS
CONTRACT – agreement by taxi driver to abide by provisions of by-laws of co-operative society – whether society breached contract by purporting to make findings and take disciplinary action against driver – whether society complied with procedural requirements of by-laws – whether nature of allegations against driver contravened by-laws providing that drivers should not cause interference with the operations of the society and should not act in a manner that brings the society into disrepute or is likely to do so.
Workplace Relations Act 1996 (Cth)
Banks v Transport Regulation Board (Victoria) (1968) 119 CLR 222
No. SC 332 of 99
Judge: Crispin J
Supreme Court of the ACT
Date: 13 December 2001
IN THE SUPREME COURT OF THE )
) No. SC 332 of 99
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:CAMERON MOJGANI
Plaintiff
AND:AERIAL TAXI CABS CO-OPERATIVE SOCIETY LIMITED T/as CANBERRA CABS
Defendant
ORDER
Judge: Crispin J
Date: 13 December 2001
Place: Canberra
THE COURT ORDERS THAT:
The parties have liberty to bring in short minutes of orders giving effect to the findings in the reasons for judgment herein and to raise any issues left unresolved including any issues as to damages and costs.
The plaintiff seeks redress in relation to findings purportedly made and penalties purportedly imposed by a supervisory committee convened by the defendant Society to hear allegations that the plaintiff had, by his conduct, contravened certain of its by-laws. The plaintiff claims that the defendant’s conduct constituted a breach of contract. He also claims that the By-laws under which the decisions of the committee were purportedly made constituted an unreasonable restraint of trade and/or a breach of the Workplace Relations Act 1996 (Cth). Ms Keys who appeared on his behalf indicated that he did not wish to pursue these aspects of his claim “at this time” but did argue that the defendant’s conduct amounted to a restraint of trade. It was also contended that the By-laws were ultra vires the Rules of the Association, that the Supervisory Committee had breached the rules of natural justice and that it had been inappropriate to take proceedings against him for the contravention of two separate by-laws based upon the same conduct.
The plaintiff was advised of the proposed hearing by letter dated 22 September 1998 and given the following details:
It is alleged that you contravened Society By-law 40(s), which states inter alia; “Not by means of his radio or otherwise cause interference with the operations of the Society,” in that you have caused interference to the operations of the Society by your harassment of a female member of staff, Ms K Thomson, on 1 April 1998 and prior. Documentation made available to the Supervisory Committee is attached.
The accompanying documentation consisted of a statement which Ms Thomson, an employee of the defendant, had made on 2 April 1998, records of interviews with her on 30 April and 9 June 1998 and a record of an interview with Ms Ferguson, who was also employed by the defendant, on 27 August 1998. These documents contained a miscellany of allegations against the plaintiff. In particular, it was alleged that in the week before 1 April 1998 he had placed his hand over the top of Ms Thomson’s hand and then kissed his own hand. The documents also included allegations that he had been “preaching his opinion on religion and women and morals” and contained generalised complaints about views which it was said he had communicated to others at largely unspecified times in the past. The interviewer had asked Ms Thomson whether she had witnessed the plaintiff forcing his attention on anyone else and she had said that “he does it to all the girls”. There were further complaints that he had proposed marriage to Ms Thomson and to another woman. The record of the interview on 9 June 1998 included the statement that Ms Thomson “spoke generally of the lead up to the incident [n which the plaintiff had held her hand] and how there had been many other incidents”. She said that “initially [the plaintiff’s] actions were regarded as stupidity, but his persistent stupidity was now regarded as harassment”.
The plaintiff’s solicitors wrote to the defendant by letter dated 13 October 1998 objecting to some of the material being disclosed to the Supervisory Committee and seeking further and better particulars of the allegation. The defendant’s solicitors replied by letter dated 22 October 1998 rejecting most of the contentions concerning the disclosure of material to the Supervisory Committee and providing the following response to the request for further and better particulars.
(a)[The plaintiff’s] behaviour, should the allegations be made out, would be considered sexist, as harassment of a fellow worker and contrary to appropriate standards of behaviour in a modern workplace and generally. Further his behaviour if it is found to be as complained about would stand to bring the Society itself into ridicule and contempt.
(b),(c) & (d)In addition to the documents previously provided, we enclose copy of a further statement dated 16 October 1998 obtained from Ms Thompson. This together with the documents previously provided speak for themselves and sufficiently particularise the matters under review.
Neither the statement dated 16 October 1998 nor a copy of a subsequent letter apparently written by the plaintiff’s solicitors on 28 October 1988 were tendered in evidence.
However in a letter dated 5 November 1998 the defendant’s solicitors referred to that letter and a preceding telephone conversation in which the plaintiff’s solicitors had apparently expressed concern that the allegation may have been brought under the wrong by-law and had asked for this aspect of the matter to be reviewed. The letter from the defendant’s solicitors continued:
We have done so and advise that the reference to the Committee will now be on the following terms:
1.of By-law 40(c) which provides that drivers will “not act in a manner that brings the Society into disrepute, or is likely to bring the Society into disrepute”.
2.By-law 40(s) which provides that drivers will not “by means of his radio or otherwise cause any interference with the operations of the Society".
In relation to the specific issues raised in your letter of 28 October we advise as follows:
· By-law 40(s) was in operation at the time of publication in September 1997.
· By-law 40(y) was introduced on 3 July 1998.
On 9 November 1998 the Supervisory Committee upheld both complaints imposing a penalty in respect of the complaint under by-law 40(c) and a suspended penalty in respect of the complaint under by-law 40(s).
It is these findings and penalties that the plaintiff contends constitute a breach of the agreement between the parties.
The defendant did not rely any statutory power such as that discussed in Banks v Transport Regulation Board (Victoria) (1968) 119 CLR 222. It contended rather that the plaintiff was amenable to the disciplinary provisions of the By-laws by virtue of an agreement to abide by them. The agreement is not under seal and is tersely expressed. The consideration for the assumption of the obligation is not specified though I assume the parties contemplated that it would involve the provision of radio services and other facilities subject to the by-laws. More importantly, there is no explanation of the nature and extent of the contractual obligation to “abide by” the By-laws. For present purposes I am prepared to assume that this obligation not only required his compliance with any duties thereby created, but also his acceptance of the disciplinary regime which they contained. However, this obligation cannot be taken to have required the plaintiff to accept the consequences of any decision made by a supervisory committee purportedly under the authority of the By-laws. On the contrary, I think he should be taken to have agreed to be amenable to the disciplinary regime only to the extent to which the relevant by-laws were valid and to the extent that the defendant acted in accordance with the procedures specified therein and/or in accordance with the rules of natural justice. He should also be taken to have agreed to accept only such decisions as were reasonably open to the Supervisory Committee in the circumstances.
The power to make by-laws is contained r 70 of the defendant’s rules which provides that the Board of Directors may make by-laws “not inconsistent with these Rules, the Act or the Regulations to facilitate the proper, efficient and orderly function of the Society”. The rule also specifies a number of particular matters for which by-laws may be made including:
(c) a code of conduct to be observed by drivers of taxi cabs (including members), which may include provisions relating to:
(i)standards of dress; and
(ii)penalties of breaches of that code of conduct, including suspension of access to the radio system.
Any issue as to whether or not a particular by-law may be authorised by this rule must be considered in the context of the stated purpose, namely “to facilitate the proper, efficient and orderly function of the Society”. That purpose must in turn be considered in the context of objects of the Society which r 6 states in the following terms:
(a)to organise and operate a taxi cab service in the Australian Capital Territory; and
(b)to organise and operate a radio – telephone base station and office in connection with that taxi cab service; and
(c)to maintain and encourage the highest possible standard of public transport in the Australian Capital Territory; and
(d)to increase the status and prestige of the taxi business; and
(e)to provide a mutual indemnity fund, Mutual Aid fund or similar fund for the benefit of members of the Society in respect of loss or damage to taxi cabs owned by a member; and
(f)to do such other things as are calculated to promote the economic interests of members.
Having regard to these objects I am unable to accept Ms Keys’ contention that by-law 40, which purports to lay down a code of conduct to be observed by drivers, should be considered ultra vires the Rules and hence invalid. Nor can I accept that the particular rules said to have been contravened by the plaintiff should be regarded as ultra vires. In my view, a rule purporting to proscribe conduct that brings the Society into disrepute, or is likely to bring the Society into disrepute, may legitimately form part of a code of conduct intended to facilitate the objects of the Society in increasing “the status and prestige of the taxi business”. A rule proscribing conduct causing interference with the operations of the Society is plainly one which may facilitate the proper, efficient and orderly function of the Society in seeking to achieve its stated objects.
I am also unable to accept Ms Keys’ submission that the Supervisory Committee’s decision was invalid because of a failure to comply with by-law 19a. That by-law provides that a driver who has allegedly contravened or failed to comply with a provision of the Rules or By-laws may be offered the option of taking two penalty points immediately or having the matter referred to the supervisory committee. Ms Keys submitted that it had been incumbent upon the defendant to offer the plaintiff this option. However the terms of the by-law do not suggest that the defendant must offer a driver such an option in every case and there may be many circumstances in which it would be quite inappropriate for the defendant to do so. In my view, the provision merely authorises the defendant to offer such an option. It remains free to decide whether it is appropriate to do so in any given case.
However, the defendant was also bound to comply with the terms of the contract and Ms Keys’ criticisms of the procedures employed by the defendant in dealing with the complaints against the plaintiff cannot be so readily dismissed. By-law 19b provides that any driver summoned before the supervisory committee “will be notified in writing at least seven (7) days prior to the proposed hearing and be given details of any alleged breach of the Rules or By-laws to be discussed at the hearing”. It may be noted that this provision contains the verb “will be” rather than the verb “may be” which is employed in by-law 19a. Having regard to the nature of this by-law and the terms in which it is expressed I am satisfied that it was incumbent upon the defendant to comply with it and that in the absence of waiver the plaintiff should not be taken to have agreed to abide by any decision of a Supervisory Committee made without such compliance.
In the present case the letter advising the plaintiff of the referral to the Supervisory Committee merely quoted the provision of the by-law which he was said to have contravened, and asserted that he had “caused interference to the operations of the Society by your harassment of a female member of staff, Ms K Thomson, on 1 April 1998 and prior”. As mentioned earlier, some statements were attached. Those documents and a shorter statement subsequently obtained from Ms Thomson were said to “sufficiently particularise the matters under review”. However, as I have mentioned, the statements contained a miscellany of allegations covering an extended and largely unspecified period of time, and referred not only to the plaintiff’s conduct but to attitudes and beliefs he allegedly held. Despite Ms Thomson’s stated view that what she thought was his persistent stupidity should be regarded as harassment, it is clear that many of the allegations could not be regarded as falling within that description, at least in the absence of further particulars
Whilst the By-laws may not have required the defendant to provide particulars with the precision that might be expected of a prosecuting agency in a criminal case, it did require the defendant to give the driver “details of any alleged breach”. I am unable to accept that it was an adequate compliance with this requirement to give a driver copies of statements containing numerous generalised complaints and leave him to deduce the real gravamen of the alleged breach. The driver was entitled to be given details of the conduct which the defendant contended constituted the relevant breach of the By-laws and that necessarily involved more than generalised assertions of attitudes he was said to possess and/or the perceptions and grievances of others. In my view the letter of 22 September 1998 and the accompanying documents did not fulfil this requirement.
Furthermore, the letter advising him that he was alleged to have contravened by-law 40(c) was dated five days prior to the hearing, and contained no further details in relation to that allegation. Even if both parties could be assumed to have understood that the same facts were relied upon in support of that further allegation, the defendant had still failed to observe the requirements of by-law 19b. The defendant’s legal representatives may have failed to raise the matter before the supervisory committee, but there is no evidence of any statements or conduct made by the plaintiff or those acting upon his behalf which might fairly be regarded as involving a waiver of his entitlement to due notice.
For these reasons I am satisfied that the plaintiff’s contractual obligation did not require him to “abide by” these decisions. Conversely, I am satisfied that the defendant should be taken to have agreed to comply with the procedural requirements imposed by its own By-laws and that it did not do so.
However the plaintiff contends that the defendant erred in more than mere matters of procedure. He maintains that the conduct of which the defendant complained could not have constituted a breach of either of the particular by-laws in question.
The Supervisory Committee did not provide reasons for its decision. Nor was it required to do so. It seemed to have been common ground between the parties that the conduct that the Supervisory Committee found breached the By-laws consisted in each case of the plaintiff placing his hand over Ms Thomson’s hand and then proceeding to kiss the back of his own hand. However, it is difficult to discern the precise circumstances in which this act is said to have occurred. In her statement of 2 April 1998, Ms Thomson said that on the previous day the plaintiff had come into her office and told her that he wanted to talk to her about something that had happened during the previous week outside the building. He then told her that he had been hurt by comments she had made to him concerning a conversation about his sister. She then asked him if he remembered that prior to that statement he had been trying to kiss her. He did not agree that he had done so and she asked him again if he had been trying to kiss her hand last week. She said that he responded by saying that he had not been going to kiss her hand but to kiss his own which he placed over the top of her hand. She said that he “did in fact do this” even though she had told him that she didn’t want him to touch her. The statement is potentially confusing because it refers to other staff members as having been present at the time of “this incident”, and it is not entirely clear whether this is a reference to the incident in which the conversation occurred or the earlier incident outside the building. In a subsequent record of interview with Mr Muir on 9 June 1998, Ms Thomson said that there was “one great lie” in the letter from the plaintiff’s solicitors and that “he did grab my hand and he did attempt to kiss it”. She added that people described only as Leanne, Donna, Debbie and Brett were all present when it happened.
It should be noted that the provisions of the By-laws that the plaintiff is said to have contravened contain no reference to the harassment of employees. They are concerned only with protecting the Society from interference with its operations and from damage to its reputation.
Despite the defendant’s description of Ms Thomson as “a fellow worker” the plaintiff was neither a member of the Society nor an employee of it. His only relationship with it was a contractual one, and he had entered into that contract only because he leased a taxi from a person who was a member of the Society. In these circumstances, even if his conduct in taking hold of Ms Thomson’s hand could properly be characterised as “sexist”, “harassment” and “contrary to appropriate standards of behaviour in a modern workplace and generally” as the defendant had alleged, it is difficult to see how it could have brought anybody but the plaintiff into disrepute. The conduct is not said to have occurred whilst he was driving a cab or whilst he was acting for the defendant in some representative capacity. Ms Thomson did not claim that his conduct had in some way diminished her respect for the Society or otherwise affected its reputation, and there was no apparent reason for a reasonable observer to think that an incorporated co-operative society might bear some responsibility for the behaviour of a person who leased a vehicle from one of its members. Of course, there may be circumstances in which a driver acts in an unacceptable manner purportedly on behalf of the Society or in which the nature and or persistence of the conduct is of such a character as to suggest to a reasonable observer that it has been at least condoned by the Society. However this was not such a case.
In my opinion it is necessary to approach provisions such as those contained in by-law 40(c) with considerable caution. If construed too expansively the provision could be taken to enable the defendant to exercise disciplinary power over drivers in relation to almost any aspect of their personal lives. In a modern pluralistic society there will often be differing views as to where the bounds of propriety lie. Furthermore, Australia has long cherished freedom of speech, which is particularly important in a multicultural and pluralistic society. The affirmation of principles of equality and other important social values should not be accompanied by the intolerance of those with different cultural and religious beliefs that frequently accompanied earlier orthodoxies. Contractual provisions of this kind should not readily be construed as preventing the other party from expressing any religious or moral views contrary to those of the prevailing “party line”.
Whilst commercial organisations may legitimately seek the agreement of others to act or refrain from acting in a certain manner, the conduct of individuals is otherwise constrained by laws applied uniformly throughout the community, and it is for the courts to determine whether those laws have been broken. There may, perhaps, be people who would think less of a co-operative society if a driver was shown to have committed adultery, failed to adequately support his children or to have made unwanted advances to other people. However, the risk of the defendant’s reputation being damaged due to an unreasonable attribution of guilt by association offers no justification for concluding that by-law 40(c) would have authorised the Society to sit in judgment on matters of that kind.
The provision is concerned only with conduct likely to bring the Society into disrepute and in my view that means conduct likely to damage its reputation in the eyes of reasonable members of the community. In this context “likely to” means, if not probable, at least that there is a substantial risk of such damage. The defendant seems to have assumed that it was entitled to have the Supervisory Committee adjudicate on any grievances against the plaintiff by people if it happened to employ them. I do not accept that the relevant by-law was intended to authorise such a course, or that the plaintiff should be taken to have accepted such an intrusion into his personal life. Whilst the defendant’s desire to protect its employees from harassment is understandable, the by-law was, as I have mentioned, concerned only with the reputation of the Society, and that reputation was not likely to be damaged merely because the plaintiff placed his hand over the hand of a person in its employ and kissed it, or because he expressed religious or moral views contrary to those accepted by its staff.
Similar difficulties arise in relation to the contention that the plaintiff’s behaviour interfered with the operations of the Society contrary to by-law 40(5). The behaviour in question is said to have occurred outside the building and there is nothing to suggest that it had any real effect on the operations of the Society. It might be argued that any conduct which precipitated a complaint interfered with the operations of the Society because it required the Society to investigate and deal with the complaint. I do not accept that by-law 40(s) should be so interpreted. In my view, the by-law is concerned with conduct which causes some actual interference with operations that would otherwise have been undertaken, and not with behaviour that merely prompts some investigation of a complaint. None of the statements provided to the plaintiff contained any hint that there had been any such interference, and there has been no further evidence to that effect.
It is obviously true that harassment of staff may be capable of causing interference in the operations of their employer. Indeed, the statements served upon the plaintiff contained allegations of conduct towards other members of the defendant’s staff which might conceivably have had such an effect. However, the plaintiff was at all times told that the contraventions alleged related to his treatment of Ms Thomson and it was never suggested to him that he might be found to have breached the By-laws by virtue of his treatment of other members of the defendant’s staff. Nor is there any evidence to suggest that the Supervisory Committee made any findings against him on any such basis. Ms Thomson herself also made other accusations concerning the plaintiff, but it is unclear whether that they were relied upon by the defendant as constituting breaches of the relevant By-laws or whether the Supervisory Committee acted on them. Furthermore, Ms Thomson did not claim that any such conduct had reduced her capacity to discharge her duties or otherwise caused interference to the operations of the defendant.
For these reasons, I am satisfied that the allegations against the plaintiff as particularised would not have involved any infringement of either by-law even if they had been established after a hearing properly conducted with due notice.
Accordingly, I am obliged to conclude that the defendant’s conduct in purporting to make findings against the plaintiff and to impose penalties on him amounted to a breach or breaches of the contract between the parties.
As mentioned earlier, the plaintiff also claimed that the defendant’s conduct constituted an unreasonable restraint of trade that he had been denied natural justice and that he should not have been accused of breaching two by-laws by the same conduct. However having regard to the view which I formed of the other issues in the case, it is unnecessary for me to determine these claims.
In all the circumstances I think it is appropriate to order that the parties have liberty to bring in short minutes of orders giving effect to the findings in these reasons for judgment and to raise any issue left unresolved including any issues as to damages and costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 13 December 2001
Counsel for the plaintiff: Ms J Keys
Solicitor for the plaintiff: Capital Lawyers
Counsel for the defendant: Mr J Harris
Solicitor for the defendant: Chamberlains Law Firm
Date of hearing: 21 February 2000
Date judgment reserved: 10 December 2001
Date of judgment: 13 December 2001
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