Saddington v Building Workers Industrial Union of Australia
[1993] FCA 473
•2 Jul 1993
413 1993
JUDGMENT No. .IPO .... l.....ll .. .. ....
IN THE FEDERW COURT OF AUSTRALIA )
1
VICTORIA DISTRICT REGISTRY 1 NO V1 14 of 1991 ) INDUSTRIAL DIVISION ) BETWEEN: JOHN ALLAN SADDINGTON
(Applicant)
W. TORPEY, M. SANTANA,
R. WILLIAMS . D. NOONAN. A. TOOTH, M. RATTEL, P. LENNON, 2. PRAZAC. T. SINCLAIR. M. NEWHAM, D.VAN DAM and M. KINGHAM
(Respondents)
Coram: Ryan J Place: Melbourne
Date: 14 June 1991
MINUTES OF ORDER
THE COURT ORDERS:
December 1990 as embodied the resolution that John Saddington be suspended from all responsibilities on full pay and comply with all directions of Messrs
Boatswain and Ethell;
1. That the respondents and each of them
the Rules of the Building Workers' Industrial Union of
Australia by treating as null and void and of no legal
effect:
(a)
so much of the resolution of the meeting of the National Executive of the Building Workers' Industrial Union of Australia held on 10 and 11
(b)
the whole of the resolution of the meeting of the National Executive of 6 and 7 February 1991 wherein it was resolved that "the National Executive strongly censures John Saddington for his actions attributed to his secret taping of sessions of the 1990 BWIU National Conference" and containing the following:
"This National Executive considers John Saddington's actions were irresponsible and were against the interest, intentions and decisions made at the 1991 National Conference. As a branch delegate to National Conference who supported and noted decisions in favour of such, his actlons lead to the BLF obtaining the tapes which was used in a manner CO discredit those discussions of Conference and the Union and the National Secretary.
Further National Executive recommend the BWIU Victorian Branch Management Committee to cease his employment as a full time Industrial Person because we consider him as untrustworthy and his employment is not in the best interest of membership.
That John Saddington be asked to resign his position of a branch delegate to National Conference."
2. That the Rule Nisi made 19 March 1991 by the Honourable Mr Justice Gray otherwise be discharged.
NOTE : Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) 1 VICTORIA DISTRICT REGlSTRY
) No V1 38 of 1991 ) INDUSTRIAL DIVISION ) BETWEEN: JOAN ALLAN SADDINGTON
(Applicant)
m: BUILDING WORKERS INDUSTRIAL
UNION OF AUSTRALIA and
V. RAFFA
(Respondents)
Coram: Ryan J U: Melbourne
Date
-- 02 July 1993
MINUTES OF ORDER
THE COURT ORDERS:
1. That the application be dismissed.
2.
That there be no order as to costs.
NOTE : Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY
) No V1 14 of 1991 ) INDUSTRIAL DIVISION )
BETWEEN: JOHN ALLAN SADDINGTON
(Applicant)
AND : L. FRASER, J. SUTTON, S. SHARKEY. W. ETHELL, W. TROHEAR,
D. McDONALD, R. TODD, G. WATSON.
V. RAFFA. M. BINGHAM. F. O'GSADY.
M. CORDWELL. B. CA:and M. KINGHAM
(Respondents)
AND No V1 38 of 1991 BETWEEN: JOHN ALLAN SADDINGTON
(Applicant)
m: BUILDING WORKERS INDUSTRIAL UNION
OF AUSTRALIA and V. RAFFA
(Respondents)
Coram: Ryan J
Place: Melbourne
Date: 02 July 1993
REASONS FOR JUDGMENT
Rvan J: The applicant, Mr Saddington, was elected in September 1987 for a four year term as Assistant Secretary in the Victorian Branch of the Building Workers Industrial Union ("the BWIU"), an organisation of employees registered under the
Indus t r ia l Re la t ions Act 1988.
On 15 ~ugust 1990, Mr Saddington wrote to Mr F. OfGrady as
"President BWIU" a letter which recited:
"I John Saddington hereby tender my reslgnatron as Assistant Secretary of the Burlding Workers Industrial Union of Australia in accordance with the Rules, effective from 15th August 1990."
Mr Saddington's letter was delivered on 15 August 1990 to Mr OZGrady, the then President of the Victorian Branch of the BWIU and was considered by a special meeting cf the State Management Committee of the BWIU which was held on the same day. The relevant part of the minutes of that ineeting records:
"Vince Raffa gave report concernmg John Saddrngton.
Moved R. Carter seconded M. NewhamThe SMC acknowledge receipt of John Sadd~ngton's letter of
res~gnatlon from posit~on as Assistant Secretary."
Mr Saddington's action in resigning was prompted by a desire to
evince sympathy with the Branch Secretary, Mr Henderson, whose resignation was also accepted on 15 August 1990, and to protest against a decision which Mr Saddington believed to have been taken to fill the vacant office of Branch Secretary by
instead of arranging an election to fill the vacancy. Mr appointment of another Assistant Branch Secretary, Mr Raffa, Saddington also believed that his resignation might force the holding of an election for both hls position and that from which Mr Henderson had resigned.
The provision in the Rules of the Victorian Branch of the BWIU which govern resignation by full time officers is Rule 29(4) which provides:
"A full time officer who desires to resign, shall give one month's
notice rn writing of intentron so to do to the SMC."
Mr Saddington was aware of that Rule and intended his letter to
take effect in accordance with it. He continued to work for one month after the letter had been delivered and was paid termination entitlements on the basis that his employment as Assistant Branch Secretary came to an end on 15 September 1990.
The minutes of the meeting of the State Management Committee of 20 August 1990 which followed that of 15 August 1990, contain the following entry relevant to M r Saddington:
"Moved R. Ryan seconded M. Newham
That the S.M.C. notes the wrrtten advice of John Saddrngton that he intends to resrgn from the office of Assistant Branch Secretary which has been submitted pursuant to Rule 2 9 ( 4 ) .
That the S.M.C. resolves upon the offrce of Branch Assrstant Secretary becoming vacant when John Saddington's resignation becomes effective it appornts Martin Brngham to that off~ce of Assistant Branch Secretary pursuant to Rule 19(16).
Amendment: Thankfi to John for contributron to the Branch.
F. O'Grady reported on discussions wrth J. Saddrngton re hrs
reslgnatlon. Natronal and State Officials spoke to J. Saddington to persuade him not to resign. John was also informed that the appointments to Secretary and two Assrstant Secretaries would be
decided tonrght.
B. Giangnacovo asked question re right to appornt.
V. Raffa replied.
D. Noonan suggested amendment thanking John for his contrlbut~on
to the Branch.
Amendment was accepted by mover and seconder."
As I have already noted, Mr Saddington continued, after writing his letter of 15 August 1990, to attend at the Branch Office of the BWIU and to discharge some of the duties for whlch he had been responsible as Assistant Branch Secretary. In the latter half of August 1990 he was approached by several members and asked to reconsider his resignation. He responded to those overtures by writing this letter dated 30 August 1990 to the State Management Committee:
"Due to the overwhelmrng support of members and some comrades within the organisatron for the lob that I have done and am doing, I hereby withdraw my resignatron."
Mr Saddington's letter of withdrawal of his resignation was
considered at a further special meeting of the State Management Committee on 6 September 1990 the minutes of which, omitting introductory matter, are as follows:
"F. O'Grady gave a report re J. Saddington's resignatron discussions with V. Raffa, M. Bingham, M. Kingham and F. O'Grady and legal advice sought (tabled) and report of today's Co- ordinators' meeting.
SU.hIMARY: Resolution to appoint V. Raffa, M. Kingham, M. Brngham to
positions and accepting resrgnatron stand. CO-ordrnators have
recommended John continuing rn employment (not as Assistant Secretary) from 15/9/90 untrl 28/9/90 re. completion of National Conference.
D. Van Dam asked questron re John's employment.F. O'Grady replled that John had been asked to consider stayrng in employment (not as Aasrstant Secretary). John's response is that he wants trme to csnsrder this positron.
F. Dominrck urged that J. Saddrngton should stay worklng with the Branch. B. Olrver clarified CO-ordrnatmg Commrttee posrtron re offerrng
John to stay on (not as Assistant Secretary).
A. Tooth spoke re legal advrce. The S.M.C. doesn't have the power
to rescrnd the appointments of acceptmg a withdrawal of resignation. Can John clarify what is John Saddrngton seeking re continuing employment.
Point of order. F. Domrnick rarsed point of order. The S.M.C. has not formally accepted resignation only received.
Chalr ruled against point of order and F. O'Grady explained sequence of events, re, reslgnatlon was accepted m accordance wrth rules. Resignation tabled 15/8/90. Accepted 20/8/90.
J. Saddrngton replied to A. Tooth.
A. Tooth asked for clarifrcatron re John's opmron on contrnurng
rn employment (not as Assistant Secretary).
J. Saddington replied that he needed time to consider and that all
he was requesting was employment until 28/9/90.2 . Prazek urged that we pursue the third Assistant Secretary
positron and maintarn J. Sadd~ngton employment until that time and
then re-appoint John as third Assistant Secretary.
V. Raffa spoke re legal advrce and reported that he supports John
continuing as off site Co-ordinator for duration of tune.
V. Raffa also supported John's request to be employed until
28/9/90.
M. B~ngham spoke in support of J. Saddington and indicated that he was prepared to resign from his appointment to Assistant Secretary to allow J. Saddrngton to be re-appointed to Assistant Secretary positron.
R. Carter asked why M. Krngham replaced V. Raffa instead of M.
Bingham.A. Tooth spoke against M. Brngham withdrawrng from the appointed posrtion.
Moved J. McCartney seconded A. Tooth
That this meeting adjourns consideration of John's request for
empLoyment from 15/9/90 until the next S.M.C. 17/9/90. 2 . Prazek spoke against. R. Wrlliams spoke against. V. Raffa spoke in favour. B. Ol~ver spoke in favour of M. Krngham resrgnrng to allow J.
Saddington to stand.
R. Carter indicated that if M. Kingham resigns as Assistant
Secretary. R. Carter will resLgn from S.M.C. to allow M. Kingham to be re-appornted to S.M.C.
3. McCartney spoke rn favour and urged J. Saddrngton to take up
offer of employment for duration of term.
CARRIED. "
Another special meeting of the State Management Committee was held on 12 September 1990. The minutes of that meeting, as far as they are related to Mr Saddington, record:
"The President then rarsed the questron of 3. Saddington's and M.
Bingham's legal opinion.
Moved A. Tooth Seconded J. McCartney that the status quo motron on
J. Saddington remains."
In late September or early October 1990 in the course of a meeting of the National Conference of the BWIU, Mr Sharkey, the
Assistant National Secretary of the BWIU, discussed with Mr
Saddington the terms on which the latter might continue in employment with the BWIU. As a result of those discussions, Mr Sharkey wrote Gn 11 October 1990 to M.r Raffa, as Secretary of the SWIU Victorian Branch, in the following terms:
"Further to our discussion at the National Conference in ~dela~de,
regarding the possible continued employment of John Saddington by
the Victorian Branch.You w ~ l l recall that I undertook, w ~ t h your express agreement, to discuss this matter with Comrade Saddington, on the basls that he would be offered contrnued employment unt~l the expiration of the term he was last elected for (the end of calendar year 1991) and at the wage rate for whlch he was elected, ie, State Assistant Secretary, but obvrously not carrying out duties or authoricy of State Assistant Secretary.
The speciflc duties it was proposed John accept were:
(a) Servrcing off-site awards as well as accepting the malor
respons~billty for all industr~al matters and restructur~ng (b)
Responsrb~l~ty for wall and floor tllers award and industrral matters and slmilar responsibrlity for stonemasons, both on- and off-srte.
I am pleased to advise that John has now indicated, durlng a
telephone discussion w ~ t h the undersrgned on Wednesday 10th October, 1990, that he wrll accept that proposal with the additronal request that he be allowed to contrnue to use the unron car for which he rs currently responsrbie.
Management Committee endorsement of the above package and assumlng I suggest that you recommend to the next meeting of the State
it is accepted, adv~se Comrade Saddrngton accordrngly."
Mr Saddington accepts that letter as accurately reproducing the terms which have been agreed between him and Mr Sharkey, save for
the stipulation that his continued employmant was to be until the expiration, at the end of 1991, of the term for which he had been elected Assistant Branch Secretary. According to Mr Saddington, the agreement was that his employment should continue until a new elected Assistant Branch Secretary entered upon his duties which might be as late as the end of 1993 if a proposal for amalgamation of the BWIU and the Australian Timberworkers' Union were to receive the requisite degree of support from members of the respective organisations.
Mr Sharkey's letter was considered by a meeting of the State Management Committee on 15 October 1990. The extract from the minutes of that meeting, as far as they were related to Mr Saddington, is as follows:
"JOHN SLiDDINGTON
V. Raffa gave report and tabled letter from Stan Sharkey and recommendatron from executrve meeting.
Conditrons:
Employed as field advrser.
Paid hrgher duties to the equ~valent of Ass~stant Secretary rates. To work rn the following areas: - Serv~cing off-srte awards with respons~bility for industrial
matters and restructurmg.
- Responsrbilrty for wall and floor tiles award and industrial
matters and similar responsibility for stonemasons, both on and
off -site.
- Labour HIstor~cal Graves.
- Trade Accreditation for stonemasons and tilelaying. - A.F.L. Log of Claims re football publrc (V.T.H.C.).
- In respect of oif-srte matters to be responsrble to M. Kingham. - To be supplied wrth union vehicle - Falcon. - Term of employment, until the next electron. Notwrthstanding any of the above J. Saddrngton to be subject to drrection of S.M.C., and the same disc~pline of any other employee.
Moved V. Raffa seconded R. Carter
That J. Saddington be employed subject to the conditrons of the tabled document.
R. Ryan asked question.
M. Kingham gave reply."
The tabled document was a memorandum headed "John Saddington's Conditions" which had been prepared earlier on 15 October 1990 by Mr O'Grady and M r Kingham after a discussion with Mr Saddington. Except for an interpretation that in respect of on-site matters, Mr Saddington was to be responsible to Mr Bingham it was reproduced word for word under the heading "Conditions" in the extract from the minutes which I have just quoted.
Mr Saddington was not present at that meeting and did not accept
that the term "field adviser" appropriately described the duties which he was to undertake under the agreement which had been concluded with Mr Sharkey. In any event, he discharged the duties enumerated in the minutes of the meeting of the State Nanagement Committee of 15 October 1990 although Mr Saddington claims that Mr M. Bingham took little or no ~nterest in his attention to on-site matters. As IW Saddington explained it, he continued to carry out all the duties whlch he had previously discharged as Assistant Branch Secretary, except countersigning
cheques and attending meetings. He received salary at the rate applicable to an Assistant Branch Secretary, which was higher than that for organisers, and for field advisers w h ~ are appointed officials carrying out duties similar to those performed by elected organisers.
In about December 1990, the National Executive of the BWIU considered whether Mr Saddlngton should be expelled from membership of the BWIU because he had allegedly passed to the Buiiders Labourers Federation, an unregistered union of employees, a tape recording which he, Saddington, had made of part of the BWIU's 1990 National Conference which had been held in Adelaide. The minutes of a meeting of the National Executive of the BWIU held on 10 and 11 December 1990 contain this entry concerning M r Saddington:
"That the QLD branch proposition to expel John Saddington from the union be received and actron withheld pendlng an lnvestigatron of the tape issue.
Furthermore we drrect Assistant National Secretary Ernre Boatswain and National president Bill Ethell rnvestigate the matter and report back to the National Executrve.
John Saddrngton is to be suspended from all responsrbilities on full pay until the rnvestrgation LS completed and is to comply with all drrections of Comrades Boatswarn and Ethell."
That meeting apparently had before it the following letter from Mr W. Trohear, the State Secretary of the Queensland Branch of the BWIU to Mr McDonald, the National Secretary:
"I wrlte rn reference to the leaked tape of the B.W.I.U. 'S
Natronal Conference in Adelaide.It rs common knowledge that the sessron was taped by John Saddington, from the Victorran Branch, without the Federal Conference's permissron.
organiser of the Vlctorran Builders Labourers Federatron by an I have also personal knowledge that the tape was glven to an officer of the Bullding Workers' Industrial Union who attended the conference. I can only assume that John Saddlngton was the officer who passed on the said tape with the rntent of misch~ef mak~ng and causlng the Buildrng Workers' Industrial Unron embarrassment.
It was well known at the Federal Conference that John Saddlngton's nose was out of jornt because of recent restructuring withrn the Vrctorian Branch of the BWIU and had resrgned his position.
Tom, as one of the Federal Executive officers who lobbred that John Saddington should be accommodated wrthln the Victorran Branch I feel an obligation to be the Executive Offrcer who raises this issue before Federal Executrve.
I wish to propose that the forthcomrng Federal Executive of the 10th and 11th December take a decislon to expel John Saddrngton for this act of deliberate treachery in passing on prlvate
information to persons in the fall knowledge that such an act
would be detrimental to the interests of ths BWIU."
Before the National Executive meeting of 10 and 11 December 1990,
Mr Ethell, the National President of the BWIU, had spoken to Mr
Saddington about the tape recordings which he had allegedly provided to the Builders Labourers Federation. Mr Saddington went to his car to get tapes on which he had recorded part of the National Conference of the BWIU in Adelaide at the end of September 1990, but found that they were no longer in his car.
Mr Ethell then told Mr Saddington that the matter of the tapes
would be discussed at the next meeting of the National Executive, and that the allegations against him could have serious consequences for both Mr Saddington and the Victorian Branch.
On 13 December 1990, Mr Boatswain, the Assistant National Secretary of the BWIU, gave Mr Saddington a copy of the letter from Mr Trohear and of the resolution of the National Executive and told him that he had been suspended from all Union responsibilities and should hand over his car keys and all Union
with that direction by returning his two-way radio, petrol card
property and documents in his possession. Mr Saddington complied
and car keys and handed such documents as he had to Mr Kingham. On 13 December 1990, Mr Raffa, as Secretary of the Victorian Branch, published a memorandum advising staff that Mr Saddington had been suspended from membership. That memorandum was in the following terms:
"The Nat~onal Executive has made a declslon to suspend John
Sadd~ngton from membership.
John Saddington is suspended on full pay from the Branch whrlst an enquiry rs conducted by the Nat~onal Executive over the incidence6 around the taping of National Conference debate which subsequently was grven to the B.L.F."
On 18 January 1991, Mr Boatswain wrote to Mr Saddington referring to their conversation of 13 December 1990 and continuing:
"I recall advising you, at that tune, that your suspension from
membership wrth pay was effectrve from then, pending an investigation on the matter by the President and myself and further we were required to report to the National Executrve at their next meeting.
I also recall that both the President and I advrsed you that there was tabled at the Natronal Executrve meeting, a resolution moved by the Queensland Branch, for your expulsron from membership. This resolutLon would also be dealt with at the next meeting.
The next National Executrve meeting is scheduled for the 6th and 7th
February, 1991.
If you wrsh to do so, you may place before that meetrng any statement in
writrng. "
Subsequently, Mr Boatswain wrote a further letter dated 23 January 1931 to Mr Saddington, seeking to correct the suggestion in the earlier letter that Mr Saddington had been suspended from membership. Omitting formal parts, that letter was in these terms :
"Further to my letter dated 18th January 1991, I w ~ s h to advise you of a
correction to that information set out in that letter. The correction to the rnformation is that the National Executrve decislon of the 11/12/90 stated in part ..." John saddrngton is to be
suspended from all responsib~litles" .... where as my letter said that the decrs~on had, suspended your membersh~p. The error on my part was caused by myself not being in possession of the decision in written form during the perxod when my letter was written and the phone conversation between your solicitor and myself took place, and that I was relylng upon my recollection of the format of the National Executrve.
I apologise for any rnconvenience that may have been created by my error. "
The National Executive of the BWIU met on 6 and 7 February 1991. Minutes of that meeting, as far as they reflect proceedings concerning Mr Saddington, are as follows:
"The National Executrve strongly censures Member John saddrngton for his actions attributed to his secret tap~ng of sessions of the 1990 BWIU National Conference. In partrcular statements of Tom McDonald, National Secretary, which were subsequently given to Norman Gallagher who transcribed the tapes and used the ~nformatron agarnst the BWIU by making the transcrrpt public and by mrsrepresentation of the actual statements made at the National Conference to the detriment and disadvantage of the BWIU and FEDFA.
A report by National Assistant Secretary Ernie Boatswain ar.d Presrdent
Sill Ethell of their discussions wrth John Saddington followrng the December 1990 Natronal Executive meeting rndlcated that John Saddington had :
1) admitted taping sectrons of the Nat~onal Conference 2 ) that he had not obtained permission or agreement to do so
3 ) that he was told not to continue taprng at Conference by the President on the 1st day of Conference
4) that he had taped statements made by Tom McDonald on the 2nd day of the conference
5 )
that he had told some of the V~ctor~an Branch Officrals of
the BWIU that he had a tape of the Nat~onal Conference 6 ) that he had also taped the Vrctorian Branch Annual Conference in the same manner and had also a tape with Klara Mitchell recorded
Saddington told Boatswain and Ethell that he had made two tapes and had dubbed over several times taped speeches so that he could tape other statements made after the initial taped statements, He denred handrng the tapes to Gallagher or anyone else, and asserted someone unbeknown to must have done so.
This Natronal Executrve considers John Saddingtons actions were irresponsible and were against the Interest, rntentrons and decisions made at the 1991 National conference. As a branch delegate to National Conference who supported and noted decisrons In favour of such hrs actions lead to the BLF obtaining the tapes which was used rn a manner to discredrt those drscussion's of Conference and the Unron and the Natronal Secretary.
Further National Executive recommend the BWIU Victorran Branch Management Committee to cease his employment as a full time Industrral Person because we consrder him as untrustworthy and his employment is not in the best interest of the membershrp.
That John Saddington be asked to resrgn hrs posrtlon of a branch delegate to National Conference."
After that action had been taken by the National Executive, Mr Raffa, as Victorian State Secretary of the BWIU, wrote to Mr Saddington:
"I have now rece~ved the resolut~on of the National Executive,
incorporat~ng the report into your alleged actlvrties at the Nat~onal
Conference.The Executive Officers have resolved that they wish to present a copy of the resolutron to you and to receive your reactions to the resolut~on.
Therefore it has been decided to ask you to attend the next Executive
Officers meeting on Monday 25th February 1991 at 8.30 a.m.
~t the meet~ng you will be able to cite a copy of the resolution and
cornlent.
If this meeting time 1s Lnconvenient for you please contact me."
Mr Saddington attended the meeting of Executive Officers in
accordance with that invitation and was there invited to attend the next meeting of the State Management Committee which was to take place on 4 March 1991. That invitation was confirmed by letter dated 1 March 1991 from Mr Raffa to Mr Saddington.
During the week preceding the meeting of 4 March 1991, Mr Saddington was approached by Mr Nicoli, a Field Adviser within
been authorized to offer Mr Saddington a position as a Field the Victorian Branch of the BWIU. Mr Nicoli said that he had Officer with the Victorian Branch with no set duties and at the remuneration appropriate to a Field Adviser. M r Saddington declined that offer.
The minutes of the meeting of the State Management Committee on 4 March 1991, as far as they record matters concerning Mr Saddington, are as follows:
"V. Raffa asked S.M.C. if they wanted J. Saddington to be present during
debate. Agreed to allow 3. Saddington to attend durrng report.
V. Raffa gave report re J. Saddington's suspensron.
Summary of Secretary's recommendatron:J. Saddrngton should be asked to return to employment with the Branch on
Freld Advrsers terms and conditions, no spec~al "contract". J. Saddington addressed the S.M.C. Moved A. Tooth seconded D. Van Dam
That the S.M.C. resolution of October 15th in relation to J.
Saddington is rescrnded.That suspension of J. Saddrngton is discontinued. J. Saddington's employment to be contrnued on the basis of a field advrser according to the rules. B. Gragnacova asked question re John's terms pre-suspension. F. O'Grady replied.
D. Noonan asked question of J. Saddrngton. J. Sadd~ngton replred. J. Saddlngton left meetrng to allow full debate of the matter.
A. Tooth (mover) spoke rn favour.
M. Brngham spoke agarnst.R. Carter spoke against.
D. Van Dam spoke in favour.
M. Santana spoke rn favour.
2 . Prasec spoke against.
F. Domrnic spoke agarnst. V. Raffa spoke rn favour. M. Newham called pornt of order.
Chair ruled agarnst.
F. Domrnic called pornt of order.
Chair ruled against.V. Raffa continued to speak ln favour.
M. Brngham called pornt of order.
Chalr ruled against. V. Raffa cont~nued to speak in favour. D. Noonan spoke in favour.
A. Tooth spoke in reply.
CARRIED. "
The consequences of the resolution of the State Management Committee of 4 March 1991 were detailed to Mr Saddington by Mr
Raffa in a letter dated 15 March 1991 which was in these terms:
"I am wrrting to you rn relatron to your employment by the Branch as a
Field Adviser.
As you are aware, the State Management Committee on the 4th March, 1991
resolved to not take the disciplinary actron recommended by the National
Executrve, to discontrnue your suspension and to continue your
employment as a Faeld Advrser according to the Rules of the Branch. The
SMC was concerned that the previous arrangement exceeded its powers and
action taken was simply to bring your employment withrn the scope of the
rules for the appointment of Field Advisers. The relevant rule is rule
23 (3) (e) which provides rn part that "...field advrsers ... may be
appointed for periods of three months, provlded that the maximum period
of apporntment subject to quarterly revrew by the SMC shall not exceed
twelve months..."I note that m dr~cussions fcllowrng the meeting on 4 March, 1991 and subsequently on 12th March, 1991 you indrcated that you would not accept employment other than on your "speclal contract". Since 4 March, 1991 I note that whlLe you have accepted payment in advance of your wages you have not attended at thrs office for work.
I propose, ln the event that you do not attend for work on Monday 18th March, 1991, to put the following motion to the meeting of the SMC that evening: -
That State Management Committee notes that Mr. Saddlngton has not attended for work an accordance with the resolution of the State Management Committee meeting on 4 March, 1991 and hereby accepts Mr. Saddington's abandonment of has employment in the terms set out in the resolution of 4 March, 1991."
The members of the SMC believe that you stall have much to contrrbute to the Branch and I hope that you will attend for work on Monday and avold the need for actron by -the SMC to accept your aban2onment of employment."
On 18 March 1991, at a further meeting of the State Management
Committee the following resolution was carried:"That the SMC notes that J. Saddinaton has not attended for work m accordance with the resolutaon of th; SMC meetlng of 4/3/91 and hereby
in the resoiutlon of 4/3/91." accepts J. Saddlngton abandonment of has emplovment in che terms set out - .
Thereafter on 19 March 1991 the rule nisi was granted in the related proceedings numbered V1 14 of 1991 and on 15 April 1991 there occurred a further meeting of the State Management Committee. The relevant extract from the minutes of that meeting is in these terms:
"J. Saddlngton
Moved B. Oliver Seconded D. Noonan
This State Management Committee Meeting resolves:i) That the decisron of the State Management Committee ("the S.M.C.")
of 4 March, 1991 to rescind the apporntment of John Saddrngton as a field advrser by the State Management Committee on October 15, 1999 (the October 15, 1990 apporntment") rs hereby reminded;
L ) That accordrngly the resolution of the S.M.C. of 18 March, 1991 to accept John Saddington's abandonment of employment rs also hereby rescinded;
iri) That the resolutron of S.M.C. of 4 March, 1991 that John
Saddington's suspension be discontinued is hereby affrrmed;iv) That, subject to paragraph (v) of this resolutron, the S.M.C. recognrzes that the October 15, 1990 appointment 1s and always has been valrd and of full force and effect;
v) The S.M.C. notes the lrmitatron on its powers to appolnt freld advisers contained in rule 23(3)(e) of the rules whrch provides that :-
"(3) Subject to these rules, the S.M.C. shall :-
(e) appoint field advisers to advrse members
on
specrfic matters as d~rected by the S.M.C.
Freld
advisers ... may be appornted for perrods of
three
months, provrded that the maxrmum period of appo~ntment subject to quarterly revrew by the S.M.C. shall not exceed twelve months. Further appointment may only be by decrsion of the
Annual
State Conference."
Accordingly the S.M.C. resolves that the October 15, 1990 appointment was valrd only to appornt John Saddrngton to the posrtion of freld adviser for a maximum perlod for twelve months subject to quarterly revrew and John Saddington's appointment is therefore to be continued on
the basis of hrm being employed for twelve months from October 15, 1990 subject to quarterly revrew by the S.M.C. thrs being the maximum period
of apporntment for which the S.M.C. had and has power under the Rules;vr) That the question of the apporntment of John Saddrngton for any period longer than twelve months from 15 October, 1990 is, under Rule 23(3)(e) of the rules, a matter for the Annual State Conference.
vii) That rn accordance with the rules and the October 15, 1990 apporntment which recognrzed that notwrthstand~ng any of the specifrc duties glven to him at that time he was to be subject to the dlrectlon of the S.M.C. the duties henceforth to be carried out by John Saddington pursuant to the October 15, 1990 appointment are to be such duties as are specified by the S.M.C. whrch duties shall be consistent with the work of other freld advrser and the rules, and shall be as close as posslble to those duties specrfied in the October 15, 1990 appointment having regard to the lengthy period during whrch John Saddington has not carrled out those duties and the fact that some of those dutres have been dealt wlth and should continue to be dealt by other officials of the Branch;
viii) That John Saddington be given a reasonable time with which to consider his position and return to work in accordance with this resolution and that accordingly he is to present himself for work in accordance with thrs resolution at the usual starting time on the morning of 22 April, 1991;
LX) That John Saddlngton be compensated for the loss of the use of a union vehrcle from the date of his suspension to the date of this resolution and that he be compensated for hls loss of salary by virtue of the State Management Committee's purported rescrssion of the October 15, 1990 resolution and that the detalls of such compensation are to be determined by the secretary in consultation wrth John Saddlngton.
X) That the terms of appointment for all freld adv~sers be examined to ensure that such appointments are m accordance with the rules and that all freld advisers be subject to quarterly revlew as requrred by Rule 23
(3) (e). Amendment to (virr) of tabled resolutron
Moved A. Tooth seconded R. Carter
That lf J. Saddlngton doesn't return by 22/4/1991, he will be terminated and all holrday leave entitlements and wages owing paid.
CARRIED.
AMENDED RESOLUTION WAS PUT AND CARRIED."
Mr Saddington elected not to return ro work by 22 April 1991 as stipulated in that resolution and on 23 April the State Management Committee met and resolved:
"That the S.M.C. terminates John Saddingtonrs employment and
pays all wages and entitlements due."
Mr Saddington was notified of that resolution by letter dated 30 April 1991 from Mr Raffa as State Secretary. He was later paid an amount of $10,421.63 calculated as follows:
"PRO RATA ANNUAL LEAVE:
(10 days = 68.4h.)
ANNUAL LEAVE LOADING (17.5%)
PRO RATA LONG SERVICE LEAVE
(0.6000x1.3 X $777.33)
3 R.D.03S OWED (22.80h)
REDUNDANCY: 31 weeks X $40.00
- LESS : TAX 31.25%
NETT TERMINATION PAY $ 2,846.28 ----------
WAGES FROM 18.3.91 TO 22.5.91:
LESS: TAX (Ordinary) 9 weeks and 3 days 1,880.35 -
SUPERANNUATION (9 weeks) 174.87 MEDIBANK (9 weeks) 66.60 ----------
NETT ORDINARY WAGES $ 5,340.55
SUMMARIZED:
NETT TERMINATION PAY $ 2,846.28 NETT ORDINARY WAGES 5.340.55 ----------
TOTAL AMOUNT THIS CHEQUE $ 8,186.83
PLUS CAR ALLOWANCE 2,234.80"
As already noted, Mr Saddington, on 19 March 1991, obtained a rule nisi calling on the respondents orders to show cause why the following orders should not be made:
"1. That the respondents and each of them perform and observe the Rules of the Burlding Workers' Industrial Unlon of Australia ("the organrsatron") by recognrsmg the applicant to be an Assistant Secretary of the Victorlan Branch of the organlsatron.
2. That the respondent M. BINGHAM perform and observe the sard Rules by:
(a) ceasing and desisting from acting in or occupying the office of Assistant Secretary of the Victorlan Branch of the organrsation; (b) ceasing and desisting from holding himself out to be an Asslstant Secretary of the Vrctorran Branch of the organisation. 3. That the respondents and each of them perform and observe the sard Rules by treating as null and vord and of no legal effect so much of the proceedings of the Natronal Executive of the said organisation held on 10 and 11 December, 1990 as purported to deal wlth a motion or motrons concerning the expulsion of the applrcant as a member of the organisation.
4. That the respondents and each of them perform and observe the sald Rules by treatrng as null and vord and of no legal effect the resolution of the meetlng of the Nat~onal ~xecutr;e of the said organisation held on 10 and 11 December, 1930 wherein it was
"That the Queensland branch proposition to expel John Saddington from the Union would be received and action wrthheld pendrng an investigation of the tape issue."
"Furthermore we direct Assistant National Secretary Ernie Boatswarn and National Presrdent Bill Ethell rnvestigate the matter and report back to the Natronal Executive."
''John Saddington is to be suspended from all responsrbilities on full pay untrl the Lnvestigatron is completed and is to comply wlth all directrons of Comrades Boatswain and Ethell."
5. That the respondents and each of them gerform and observe the said Rules by treating as null and vord and of no legal effect so much of the proceedings of the Natlonal Executive of the said organisation held on 6 and 7 February, 1991 as purported to deal wrth a motion or motions concernrng the expulsion of the applicant as a member of the organrsation.
6. That the respondents and each of them perform and observe the sard Rules by treatrng as null and void and of no legal effect the resolutron of the meeting of the National Executrve held on 6 and
7 February, 1991 wherein it was resolved that "The National
Executrve strongly censures Member John Saddington for his actrons attributed to his secret taping of sesslons of the 1990 BWIU Natlonal Conference" and contarnrng the following:
"Thrs National Executive considers John Saddington's actions were irreaponsrble and were against the interest, intentions and decrsions made at the 1991 National Conference. As a branch delegate to Natronal Conference who supported and noted decrsions in favour of such, his actrons lead to the BLF obtarning the tapes which was used in a manner to discredit those drscussLons of Conference and the Union and the Natronal Secretary.
Further Natronal Executrve recommend the BWIU Victorian Branch Management Commrttee to cease hls employment as a full tlme Industrral Person because we consider him as untrustworthy and his employment rs not in the best interest of membership.
That John Saddrngton be asked to resrgn his positron of a
branch delegare to National Conference."
The first issue which thus arises concerns the effectiveness of the resignation of which Mr Saddington gave notice on 15 August
In my view Mr Saddington's letter of 15 August 1 9 9 0 was properly to be construed as a giving of notice of resignation. It expressly recited that it was given "In accordance with the Rules". In the light of my finding that Mr Saddington was aware
of Rule 29(4) and intended his letter to take effect in accordance with it, it can only be concluded that the letter was framed to give the requisite one month's notice of resignati~n
and that the phrase "effective from 15th August 1990" had the effect of fixing the date from which the period of notice was to run. That the letter was so understood by both Mr Saddington and the State Management Committee of the BWIU is confirmed by his continuing to serve as assistant secretary for the four weeks which ensued after 15 August, and by the Management Committee's
action on 20 August 1990 of appointing Mr Bingham as Branch Assistant Secretary "upon the office ... becoming vecant when John Saddington's resignation becomes effective". It is also significant in this conteirt that Mr Saddington's termination entitlements were calculated as at 15 September 1990.
M r Saddington's letter of 30 August 1990 purporting to withdraw
his resignation also belied any suggestion that the earlier letter had been an attempt, in breach cf Victorian Branch Rule
earlier letter is to be contrasted with the purported notices of 29(4), to resign forthwith on 15 August. In that sense, the resignation considered in Hassett v Harding (1976) 27 FLR 457, one of which used the expression "I forthwith hereby resign". If, as I have held, the letter of 15 August was a notice of resignation framed to take effect on 15 September, it was incapable of withdrawal except with the consent of the State Management Committee. Thus in Birrell v Australian National Airlines Commission (1984) 5 FCR 447 Gray J cbserved, at 457:
"The grving of notice of terminatron of a contract, in accordance with the terms of that contract, is a unilateral rrght. Its exercise does not depend m any way on the acceptance or rejectron of the notice by the other party to the contract. The grving of such a notice operates to determine the contract by cffluxron of the perrod of notice. It is clear that such a notice could be withdrawn by the consent of both partres to the contract; it seems unnecessary to determrne whether, in the case of wrthdrawal of a notice by consent, the existrng contract contrnues or a new contract comes into being. A question does arise, however, whether unilateral wrthdrawal of a notrce is possible. There is surprisingly little authority on thrs questron."
After reviewing the authorities which he then cited, his Honour continued, at 458:
"These authorities all support the view that unilateral withdrawal of a notrce of termrnatron of a contract of employment ru not possible. In princrple, this conclusron must be correct. The purpose of providing in a contract for a period of notrce of termrnatron rs to enable the party receivrng the notice to make other arrangements. An employee given notice by hrs or her employer has a period of time in which to seek another job; an employer who recerves notice has trme to arrange for a substitute employee. It would be harsh rf arrangements so made during the runnag of the notice could be drsrupted, and partres could be held to the~r contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possrble, could lead to an employee berng bound by contracts of employment with two employers, or an employer berng bound by contracts of employment with two employees, each being required to give notice to one or the other rn order to be extricated from thrs positron, or possrbly to suffer the requirement to forfeit or pay wages for a period of time. In my vrew, I should lean agarnst the adoption of any prlnclple whrch could lead to such unfortunate consequences, and I should follow the authorrties whrch tend to
establish that withdrawal of a notice of termrnatron of a contract of
employment can only be effected by consent of both parties. Thrs conclusion rs consistent with authority to the effsct that unrlateral wrthdrawal by a landlord of notice to quit rs not possible: see T a y l e u r
v W i l d ~ n g (1868) LR 3 Exch 303."
I respectfully agree. There can be no suggestion in the present case that the State Management Committee ever consented to the withdrawal of Mr Saddington's notice of resignation because it appointed Mr Bingham as Eranch Assistant Secretary to take office immediately upon Mr Saddington's resignat~on taking effect. The State Management Committee was clearly entitled to make an
anticipatory appointment of that kind; see e.g. Johnson v
Bei t seen ( 1 9 9 0 ) 41 I R 395 at 411. Moreover, at all times since 20 August 1990 Mr Bingham has been treated as an incumbent Branch Assistant Secretary and Mr Saddington has been regarded as no longer employed in that office.
Accordingly, it was for these reasons that I declined to make a rule absolute in terms of paragraphs 1 and 2 of the rule to show cause.
The challenge to the meeting of the National Executive of 10 and l1 December 1990 which was embodied in paragraph 3 of the rule to show cause was based on the proposition that the National Executive had no power under the rules to expel a person from membership of the BWIU. It is clear that Mr Trohear's letter which was before that meeting proposed that the National Executive exercise such a power in respect of M r Saddington. However, in the event, all that was done, as the minutes disclose, was to commission an inquiry into the "tape issue" and suspend Mr Saddington from all responsibilities on full pay until it had been completed.
memorandum to staff of the Victorian Branch to the effect chat M r It is true that, on 18 December 1990, Mr Raffa circulated a Saddington had been suspended from membership. Bowever, the misconceptions inherent in that memorandum, as well as in Mr
Trchear's letter and Mr Boatswain's letter to Mr Saddington of 18 January 1991 had been dispelled by the time of the next meeting of the National Executive on 6 and 7 February 1991. Since those misconceptions had long ceased to have any operative effect by
the time of the hearing of the rule to show cause, I regarded it as an appropriate exercise of the Court's discretion not to make an order absolute in terms of paragraph 3 of that rule.
By contrast, the suspension of Mr Saddington from all responsibilities was capable of having an effect even after the subsequent meeting of the National Executive in February 1991. That was so despite the fact that Mr Saddington was kept immune from any financial loss by the rider that his suspension from all responsibilities should be "on full pay". Since the effects which can be imputed to that suspension and to the censure imposed by the National Executive at its meeting on 6 and 7 February 1991 are not dissimilar, it is convenient to consider together paragraphs 4 and 6 of the rule nisi.
In Lynch v Waters (1967) 11 FLR 116, Dunphy and Kerr JJ, in a joint judgment, observed at 118:
"It [the federal executive] decrded to censure Mr Lynch and to direct publrcation of the fact of censure in the journal. Because we are of the view that this goes beyond the ordinary cut and thrust of debate and
punishment or penalty upon Mr Lynch, we believe that what was done was difference of op~nion withrn the union to the pornt of imposing a Invalid. Our reason for comrng to thrs conclusion 1s that, even if ~t 1s permissible for the federal executrve in the general management of the affairs of the union to impose such a penalty or punishment under r.9, lt could not do so without applyrng the prrnciples of natural lustrce in relation to the matter and as this did not occur the resolution inflicting the punishment or penalty of censure on Mr Lynch was invalid."
In the same case, Joske J said, at 123:
"In O'Neill v Copley (1965) 20 Industrral Informatron Bulletln 1, decided on 22nd January, 1965, thrs Court declared a resolution of censure null and void on the ground that the resolutron of the federal councrl of the unron, the body acting in the matter, had not applled the princrples of natural justice, as rt should, by informing the claimant in the case that he was m jeopardy, in the sense that the council was going to proceed to consider the questron of whether he had been gurlty of untruthfulness or making a false statement, and that they were going to consider other matters, nor did they give hrm an opportunity of being heard before they passed therr resolution of censure. All these things could have been done under the rules, but the councrl did not act under the rules and they censured the claimant without notrfying him or giving hrm an opportunrty to be heard in accordance wrth the pr~nciples of natural justice. The positron is similar to the present case in that they drd not charge the claimant under the rules, but they condemned him by way of censure without givrng hrm any opportun~ty of being heard. If they had charged him under the rules but had farled to grve him this opportunity, therr resolution likewrse would have been declared void. The transcript shows that the submrssrons made to tne court by the able and experienced counsel for the then respondents were very much to the same effect as counsel has made in the present case, vrz., that there was no formal charge, no offence and no penalty and that the federal council was actrng under its power ro conduct the affarrs and business of the unmn and was doing no more than expressmg disapproval. The court dld not accept these submissions. The question of censure was debated and the court undoubtedly regarded a resolutron or vote of censure as a form of Funrshment and condemnation for alleged mrsconduct casting a strgma and affectrng a person's reputation amongst hls fellow unionrsts. An attempt was made to d~stingursh this decision, but the decrsion as such was not challenged and rt does not appear to me that it can be drstmguished.
The only express provision in the rules of the BWIU which empowered the National Executive to impose penalties on members
was r. 21 (i) which provided:
"The National Executive shall, subject to the revrew of its actions by Natronal Conference have the care, control, superintendence, management and adminrstration in all respects of the affalrs, busrness, Natlonal funds and property of the unron and without llmitlng the generality of the foregoing it may -
(i) Ensure that officers, committeemen, delegates or members and Branches carry out the rules and decrsions of the unlon and subject to Rule 19 impose penalties [i.e., frnes not exceeding the sum of one hundred dollars, suspension, expulsion or dismrssal from office.] on officers, members, representat~ves, committeemen or delegates for knowrngly refusrng to comply with the rules or the declsrons of the Natronal Conference or the National Executrve. Provided that the rules, the decisrons of National Conference or the National Executive are available to members in the minutes of the National Conference or the National Executrve and the registered rules of the unron at each Branch offrce. No penalty shall be rmposed unless -
(1)
The offrcer, member, representative, committeeman or delegate concerned has been summoned to attend the meetrng seven (7) days prror to the meetrng;
(ri)
Partrculars are grven rn the summons of the offence alleged, rncludlng the time and place rt was alleged the offence was committed:
(lil)
He is afforded an opportunity of being present at the hearing and of being heard in h16 own defence, includ~ng an opportunity to cross-examine and to give and call evidence.
Period of suspensmon mnposed under these rules shall not exceed six months."
It is conceded on behalf of the respondents that the National Executive did not purport, at its meeting of 6 and 7 February 1991, to observe, in respect of Mr Saddington, the procedural requirements of that rule. Iil the light of the reasoning in Lynch v Waters ( s u p r a ) , I consider that, even if there were an implied power in the National Executive to censure a member and suspend him from all responsibilities of an employee within a branch, the principles of natural justice would have to be applied before those powers could be exercised.
It does not appear that M r Saddington had any notice of the meeting of 10 and 11 Gecember 1990 at which he was suspended from all responsibiliizies. Furthermore, it seems that he was only notified in the most general way that "the matter of the tapes" would be discussed at the next meeting of the National Executive
meeting, the resolution of the Queensland Branch seeking his on 6 and 7 February 1991. Although he was notified that, at that expulsion from membership would be discussed, it does not appear from the evidence that he was apprised of his liability to censure. Nor was there any attempt to formulate, with appropriate particulars, che charge against Mr Saddington on which his suspension from all responsibilities in December 1990 was based, and which was apparently to be considered at the February 1991, meeting of the National Executive. As well, it
does not seem that Mr Saddington was furnished, before the meeting of 6 and 7 February 1991, with a copy of the report prepared by Mr Boatswain and Mr Ethell. For these reasons the resolutions of the National Executive respectively suspending Mr Saddington from all responsibilities and strongly censuring him were invalid.
I do not regard Lynch v Walters as distinguishable because there the resolution of censure was accompanied by a direction to publish it in the union journal. As indicated by Joske J in his discussion of O'Neill v Copley, the effect of a suspension from responsibilities as an officer or employee and the imposition of a censure was to cast a stigma on the mentber and affect his reputation amongst his fellow unionists. Even if, as in the present case, it was not accompanied by a direction to publish it in the union journal, the suspension and censure were both capable of being published in some form, to the electoral and other detriment of Mr Saddington. Moreover, publication in fact
membership by the placing of Mr Raffa's memorandum of 18 December occurred, albeit mistakenly, of Mr Saddington's suspension from 1990 in pigeon-holes kept for the dissemination of documents to officers and staff of the Victorian Branch. A stigma similar to that cast by the resolution of censure was also cast by the recitals appended to that resolution that National Executive considered that Mr Saddington's actions were irresponsible and against the interests, intentions and decisions made at the 1991 National Conference, that it recommended that the Victorian Branch Management Comm~ttee cease Mr Saddington's employment as a full-time industrial person and that he be asked to resign his position as a branch delegate to National Conference.
Accordingly, I ordered on 14 June 1991 that the respondents and each of them perform and observe the rules of the BWIU by treating as null and void and of no legal effect:
(a)
so much of the resolution of the meeting of the National Executive held on 10 and 11 December 1990 as embodied the resolution that John Saddington be suspended from all responsibilities on full pay and comply with all directions of Messrs Boatswain and Ethell;
(b)
the whole of the resolution of the meetlng of the National Executive of 6 and 7 February 1991 strongly censuring John Saddington for his actions attributed to his secret taping of sessions of the 1990 BWIU national conference.
Queensland Branch for M r Saddington's expulsion and its deferral The receipt by the National Executive of the proposal from the was, I consider, within the power of the National Executive. Since that part of the resolution of 10 and 11 December 1990 did not impose any detriment on Mr Saddington I excluded it from the order absolute based on paragraph 4 of that part of that resolution which did no more than commission an inquiry into the matter which had been raised by the Queensland Branch.
AS I understood the minutes of the meeting of the National Executive of 6 and 7 February 1991, although there was before that meeting a proposal for the expulsion of Mr Saddi~gton as a member of the BWIU, the National Executive did not consider that proposal as a motion but confined itself to the question of whether Mr Saddington should be censured and what directions and recommendations should be appended to any resolution of censure. I therefore declined to make any order absolute in terms of paragraph 3 of the rule nisi.
By a statement of claim filed in proceedings numbered V1 38 of 1991 against the BWIU and Mr Raffa, Mr Saddington has alleged that, in or about October 1990, he was employed by the BWIU as an "industrial person". It is then alleged that, in breach of that contract of employment, on or about 15 December 1990, the 8WIU directed W Saddington to surrender all union property in his possession, including the motor car which had been provided to him. It is then pleaded that the resolution of the State
April 1991, to continue Mr Saddington's employment as a field
Management Committee of 4 March 1991, or alternatively of 15 adviser was a termination or repudiation of the contract of employment concluded in October 1990. Further or in the alternative, it is alleged that on or about 23 April 1991 the State Management Committee wrongfully terminated Mr Saddington's employment. Finally, it is pleaded that by reason of one or other of the alleged repudiations or terminations Mr Saddington has suffered loss and damage represented by loss of salary from
23 April 1991 until the date on which his contract of employment would have expired and the loss of use of a motor vehicle and
other benefits from about 15 December 1990 to the same date.A great deal of attention was devoted in the course of argument, to the question of whether Mr Saddington was employed in October 1990 as a "field adviser". In my view, little or nothing turns on the label which one or other of the persons involved in concluding his contract of employment attached to the capacity in which he was employed. I consider that Mr Sharkey acted as a mediator between the BWIU and Mr Saddington in negotiating terms on which the latter could continue to be employed within the Victorian Branch of the BWIU. Mr Sharkey proposed that Mr Saddington should continue to work within the Victorian Branch performing many of the duties which he had formerly undertaken as a Branch Assistant Secretary. As might be expected, some of those duties were specified by Mr Saddlngton in the course of his negotiations with Mr Sharkey.
I find that Mr Saddington agreed to accept an offer made by Mr . Sharkey that he would be employed within the Victorian Branch of the BWIU for the balance of the term for which he had been elected Branch Assistant Secretary, which was to the end of 1991, at a salary which was commensurate with that which he had received as Assistant Secretary and would continue to have the use of a union car. That offer was subject to ratification by the State Management committee of the BWIU. That ratification occurred on 15 October 1992 when the State Management Committee resolved that Mr Saddington should be employed essentially on the terms negotiated by Mr Sharkey, althouqh the State Management Committee's resolution contains a more extensive statement of the duties which M r Saddington was to perform.
I have assumed for the purposes of these reasons that the
resolution of the National Executive of 10 and 11 December 1990 suspending Mr Saddington from all responsibilities and the directions given to him, pursuant to that resolution, by M r Boatswain, to deliver up, amongst other things, his car keys and petrol card, anounted to a breach of the contract of employment concluded on 15 October 1990. However, even if that assumption be correct, the breach did not sound in damages because, as Mr Saddington conceded, he was later paid in full an amount by way of car allowance up to 22 May 1991 which included the period after 13 December during which he was deprived of the use of a union car.
In my view, the applicant is correct in characterizing the
resolution of the same body on 15 October 1990. The latter repudiation of the contract of employment embodied in the resolution of the State Management Committee of 4 March 1991 as a resolution was expressly rescinded and Mr Saddington was, in effect, invited to accept a new contract of employment as a field adviser in accordance with the rules of the Victorian Branch. The only indication of the application of those rules to "field advisers" is provided by r.23(3) which stipulates that:
"(3) Subject to these rules, the S.M.C. shall:
(e)
Appoint field advisers to advise members on specific matters as directed by the S.M.C. Field adv~sers must be financial members of not less than one year's cont~nuous membership and may be appointed for periods of three months, provided that the maximum period of appo~ntment subject to quarterly review by the S.M.C. shall not exceed 12 months. Further appointment may only be by decision of the Annual State conference."
However, I infer that the intent of the framers of the resolution of 4 March 1991 was to deprive Mr Saddington of the higher duties allowance which had previously increased the level of his salary to that of a Branch Assistant Secretary. It may also have been intended, although this is less clear, to deprive Mr Saddington of the use of a union car or a car allowance to which he had previously been entitled.
In any event, the reduction in salary implicit in the resolution of 4 March 1991 was, of itself, sufficient to constitute a repudiation by the B.W.I.U. of the orlginal contract of employment; c. f. O'Connor v Argus & Australasiarl Ltd [l9571 V.R. 374 per O'Bryan J at 389. That repudiation was accepted by Mr Saddington when he declined to return to work, as invited, by 18
March 1991.
It therefore remains to consider the loss, if any, which M r Saddington sustained by reason of the repudiation by the BWIU and whether he should have mitigated that loss by accepting either the offer of new employment as a field adviser embodied in the resolution of 4 March 1991, or the resurrection of the original, repudiated, contract which the resolution of 15 April proposed.
The normal measure of damages for repudiation of a contract of employment, including wrongful dismissal is the salary which the plaintiff would have received between the date of repudiation and the earliest date on which the contract could have come to an end by effluxion of time fixed by the contract itself, or the permissible giving of notice.
In the present case the relevant period was from March 1991 until the date on which elections within the Victorian Branch were to be held at the end of 1991. (I reject the contention advanced on behalf of the applicant that account should be taken of the prospect that the term of his employment would be extended to the end of 1993 if the proposed amalgamation between the BWIU and the Australian Timber Workers' Union were to come to fruition. Mr Sharkey's letter of 11 October 1990 to Mr Raffa expressly recited that he was authorized to offer continued employment only until "the end of calendar year 1991". Nor is there any reference in the minutes of the meeting of the State Management Committee of
beyond the end of 1991. I accept Mr Sharkey's evidence that, in Saddington was to be employed, to any extension of his employment 15 October 1990, which purported to set out the terms on which Mt- the course of the negotiations which he undertook at the instigation of the State Management Committee, he told Mr Saddington only that, in the event of amalgamation, he, Sharkey, would use his good offices to secure Mr Saddington a position as the BWIU representative in the forestry and forest products division of the amalgamated union).
In calculating damages according to the normal measure, there is to be deducted from the amount which the employee would have received had the contract enured for its minimum lawful term, the amount which the plaintiff obtained, or should reasonably have obtained, in other eaployment. See e.g. Monk v Redwing Aircraft
CO [l9421 1 K.B. 182 at 186. 1 accept that Mr Saddington had no real prospects of obtaining alternative work as an employee during the balance of 1991, either in the union movement or by returning to his trade as a carpenter and joiner. He received sorne income amounting to about $3600 as a sub-contractor between the end of April and 6 June 1991. I find that he could reasonably have been expected to derive income from that type of work at only that rate for the rest of the year.
Those findings were sufficient to cast on the respondents the onus of showing that the applicant has failed to mitigate his damages. For a discussion of that onus see e.g. Go.Zdburg v Shell Oil CO of Australia Ltd (1990) 95 ALR 711 at 714 et seq. I
establishing a failure to accept alternative employment offered consider that the respondents have discharged that onus by by the BWIU itself. The authorities make it clear that an opportunity for mitigation may be offered by an employer who has conunltted a breach of a formerly subsisting contract of employment. Thus in Brace v Calder [l8951 2 QB 253 the plaintiff's employment was terminated by the dissolution of a partnership occurring on the retirement of two partners. However, the two partners who proposed to carry on the business offered to continue the plaintiff's employment and it was held that he should have mitigated his damages by accepting that offer. See also Barnes v Port of London Authority
[l9191 2 KB 581. It is a question of fact in each case whether a plaintiff has acted reasonably in refusing other offers of employment from an employer who has repudiated a former contract of employment: Shindler v Northern Raincoat CO [l9601 1 WLR 1938; Yetton v Eastwoods Froy [l9671 1 WLR 104.
In the present case, it is unnecessary to consider whether -W Saddington acted reasonably in declining to accept the offer embodied in the State Management Committee's resolution of 4 March 1991 which I have found to be of employment at a reduced total salary and, possibly, without the use of a car or the provision of a car allowance. That is because the later resolution of 15 April 1991 effectively offered M r Saddington,
entitled under the original contract concluded in October 1991. without loss of continuity, all the benefits to which he was The fact that the framers of that resolution were at pains to make it clear that Mr Saddington's continued enjoyment of those benefits would be subject to the processes of review applicable to the continuing employment of a field adviser did not make it reasonable to refuse the offer to resurrect his former contract. It would have been reasonable to accept that offer and wait and see whether he, in fact, enjoyed, for the rest of 1991, the full benefits which he would have derived from the original contract.
For this reason, I conclude that Mr Saddington was entitled to no more than nominal damages for the BWIU's repudiation of the original contract. Because he has received an ex gratia amount representing salary and related benefits in respect of the period from his acceptance of the repudiation, 18 March 1991, until 22 May 1991 it is inappropriate to make any award of nominal damages.
Accordingly, the application in proceedings numbered V1 38 of 1991, must be dismissed. However, because Mr Saddington has succeeded in establishing the repudiation for which he contended, and because most of the hearing was occupied by issues also raised by the rule nisi in proceedings No V1 14 of 1991 in which no order for costs could be made, I regard it as a proper exercise of the Court's discretion to make no order as to costs on the later application.
I certify that this and the preceding thirty four (34) pages are a true copy of the reasons for judgment of his Honour Mr Justice Ryan Associate:
Date: A Lt, Iq.3
Counsel for the applicant
in both matters: Mr P Harris Solicitors for the applicant in both matters: Gill Kane and Brophy Counsel for the respondents in both matters: M r D Staindl Solicitors for the respondents in both matters: Holding Redlich
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