Pryde, A.J. v Coles Myer Ltd

[1990] FCA 469

Re: ANTHONY JOHN PRYDE
And: COLES MYER LIMITED TRADING AS K-MART AUTO
No. S I2 of 1990
FED No. 469
33 IR 469

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

HEARING

ADELAIDE

#DATE 31:8:1990

ORDER

The information be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Anthony John Pryde has laid an information under s. 334(1) of the Industrial Relations Act 1988 ("the Act") against Coles Myer Limited trading as K-Mart Auto ("the defendant") which, as amended by leave at the hearing, alleged that the defendant on 13 October 1989: "being the employer of the Prosecutor, did contrary to the provisions of Section 334(1)(a) and Section 334(1)(j) of the Industrial Relations Act 1988 dismiss the Prosecutor, who was employed by the defendant, because the Prosecutor was a delegate of the Vehicle Builders Employees' Federation of Australia and because in his capacity as delegate the Prosecutor (had) done various acts and things for the purpose of furthering and protecting the industrial interests of the said Vehicle Builders Employees' Federation of Australia which acts or things were lawful and within the limits of an authority expressly conferred on the Prosecutor by the organisation under its rules."

1. Counsel for the defendant admitted (T. 3) that at all material times:-
   

1. The defendant was a body corporate, trading as K-Mart Auto.

2. Mr. Pryde was an employee of the defendant.

3. The defendant was a respondent to the (Federal) Vehicle Industry Repair Services and Retail Award ("the award"), which award governed Mr. Pryde's employment.

4. The Vehicle Builders Employees' Federation of Australia ("the Union") was an organisation of employees registered under the Act.

1. On the evidence the following findings are made:-
   

(a) Mr. Pryde is and was at all material times a qualified motor mechanic, now aged 43, who worked for the defendant from 21 September 1981 until 13 October 1989 (T. 32).

(b) He became a member of the Union in January 1982 and was elected as a shop steward of the Union in March 1982 (T. 35). Some time later an additional shop steward was elected and Mr. Pryde then became the senior shop steward and continued in that capacity until 13 October, 1989.

(c) On 13 October, 1989 he was dismissed.

(d) As shop steward he took steps to recruit as members of the Union persons, who were employed at one or other of five of the defendant's establishments, and who were eligible to join the Union. At Kurralta Park, West Lakes, Firle and Colonnades almost all of the eligible employees of the defendant became members of the Union but those employed at its establishment at Ingle Farm, about six in number, did not join the Union; Mr. Joe Cirillo was the Auto Manager at Ingle Farm at that time.

(e) Between March, 1982 and 13 October, 1989 Mr. Pryde was an active shop steward. On a substantial number of occasions, in his capacity as shop steward, he participated in discussions with representatives of the defendant's management as to various matters relating to the wages or conditions of members of the Union employed by the defendant.

1. There were three issues as to which there had been considerable discussion between the Union and the defendant; they were still unresolved at the time of Mr. Pryde's dismissal on 13 October, 1989. Those issues were:-
   

(i) A claim that overtime payments should be calculated by applying the overtime rate to the actual rate being paid for ordinary time, instead of applying it to the minimum rate payable under the award. It may be added that in January 1990 this claim was granted by Mr. Siemsen on behalf of the defendant.

(ii) A claim that the defendant should agree to implement a "closed shop" in relation to employees eligible to join the Union.

(iii) A claim that the defendant should agree to deduct, from the wages payable to those employees who were members of the union, the appropriate amount in payment of each member's Union dues.

1. Mr. Pryde was a very impressive witness who had a good memory and expressed his answers carefully - notwithstanding the surprisingly long period of time during which he gave evidence. His examination in chief occupied no less than 95 pages of transcript and his cross-examination occupied 92 pages.

2. In my opinion Mr. Pryde was a truthful witness. I accept his evidence (T. 190) that he did not use the language which Mr. Cirillo swore he had used on 12 October, 1989. Mr. Cirillo was an extremely poor witness. His evidence was quite unreliable and, in addition, on many occasions his answer was simply "I can't remember". I reject his evidence wherever it conflicts with that of Mr. Pryde, including his evidence, at page 290 of the transcript, that Mr. Pryde used certain language to him late in the afternoon on 12 October, 1989.

3. I may add that, even if that language had been used by Mr. Pryde, in my opinion it might not, in all the circumstances, have been such as to justify dismissal, as distinct from a strong reprimand and a specific warning that any similar conduct in the future would result in summary dismissal. In such a case it is important to remember what the Privy Council said in Jupiter General Insurance Co. Ltd. v Shroff (1937) 3 All ER 67 at 73-4:
   

"Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of Dec. 21, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, C.J., was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded."

Although Mr. Pryde initially commenced proceedings in the South Australian Industrial Commission, alleging that his dismissal was harsh, unjust or unreasonable, in this court he has brought proceedings alleging an offence against s. 334 of the Act. This is not a case of an allegation of unfair dismissal within the meaning of clause 6(d)(vi) of the (Federal) award on the ground that the dismissal was "harsh, unjust, or unreasonable". In the present case the question which the court has to decide is not whether the dismissal was "harsh, unjust, or unreasonable". Nor is it whether the defendant could have - or should have - acted differently in all the circumstances of the case, including the length of Mr. Pryde's service with it.

1. The question is whether the defendant has satisfied the onus of proof placed upon it by s. 334(6) of the Act. That sub-section, relevantly, provides as follows:
   

"In a prosecution for an offence against subsection (1), ... it is not necessary for the prosecutor to prove the defendant's reason for the action charged ... but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or part) by the reason ... specified in the charge."

It is, of course, sufficient for the defendant to satisfy the court on the balance of probabilities - it is not necessary that the court be satisfied beyond reasonable doubt as to those matters.

1. On the evidence I find that the decision to dismiss Mr. Pryde was made by Mr. Siemsen and that he did so after discussing the matter with Mr. Rossiter, who had advised him that the conduct reported by Mr. Cirillo warranted dismissal in the circumstances. Both Mr. Rossiter and Mr. Siemsen were called by the defendant to give evidence in the case. Both have specifically denied in their evidence in chief that the dismissal of Mr. Pryde was actuated in any way by the fact that he was a delegate of the Union or his activities as a delegate; that denial was maintained by them under cross-examination. In his final address Mr. Cummins submitted that the court should find that they and Mr. Cirillo had jointly planned to get rid of Mr. Pryde. I am not prepared to do so. Such a finding if made, would amount to a finding that Mr. Rossiter and Mr. Siemsen had conspired to commit perjury in this court.

2. Mr. Siemsen's evidence was that the decision to dismiss Mr. Pryde was made by reason of the language which, according to the oral report of Mr. Cirillo, had been used to him by Mr. Pryde in the presence of a lady customer and another employee. I have rejected Mr. Cirillo's evidence that that language was used but I accept the evidence of Mr. Rossiter and Mr. Siemsen that each of them was told by Mr. Cirillo that that language had been used in the presence of those persons.

3. Mr. Cummins pointed out that the defendant had not called as a witness Mr. O'Grady, the mechanic who, according to the defendant, had heard the language allegedly used by Mr. Pryde. However, it was equally open to Mr. Cummins to call him as a witness if he considered that his evidence could assist the prosecutor's case.

4. Notwithstanding all of the very detailed evidence that was called as to the activities of Mr. Pryde since he became a shop steward in March 1982, on the evidence as a whole I have reached the conclusion that it is more probable than not that the defendant, in deciding to dismiss Mr. Pryde, "was not motivated (whether in whole or part) by the reason ... specified in the charge". Accordingly the information is dismissed.