Sandilands, George William v Australian Newsprint Mills Ltd

[1982] FCA 262

Re: GEORGE WILLIAM SANDILANDS
And: AUSTRALIAN NEWSPRINT MILLS LIMITED
Nos. V.32 and 33 of 1982
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.

CATCHWORDS

Industrial law - dismissal of employee - Informations pursuant to Conciliation & Arbitration Act 1904 s.5(1)(a) and s.5(1)(d) - Onus of proof - Substantial and operative factor influencing employer - Employee active in union campaign to secure recognition - Employee leaving duties to attend union meeting - dismissal for neglect of duty - whether breach of duty by employee excused because it was in course of industrial action.

Conciliation & Arbitration Act 1904 s.5

HEARING

MELBOURNE

#DATE 1:12:1982

ORDER

1. The information, V32 of 1982 be dismissed.

2. The information, V33 of 1982 be dismissed.

JUDGE1

Two informations have been laid by George William Sandilands, against the defendant, Australian Newsprint Mills Limited, under to s.5 of the Conciliation & Arbitration Act 1904 (the Act).

In the first information, V32 of 1982, the charge is that on the 11 June 1982 the defendant being an employer did, contrary to s.5(1)(a) of the Act, dismiss Mr. Sandilands, an employee of the defendant, by reason of the circumstance that he was a member of the Pulp & Paper Workers' Federation of Australia (the PPWFA) an organization of employees registered pursuant to the Act.

In the second information, V33 of 1982, the charge is that on 11 June 1982 the defendant did, contrary to s.5(1)(d) of the Act, dismiss Mr. Sandilands, an employee of the defendant by reason of the circumstance that Mr. Sandilands being a member of the PPWFA, an organization of employees registered pursuant to the Act, which was seeking better industrial conditions, was dissatisfied with his conditions.

It has been proved that on 11 June 1982 Mr. Sandilands was an employee of the defendant, that he was a member of the PPWFA, that the PPWFA was an organization of employees registered pursuant to the Act, that that organization was seeking better industrial conditions and that Mr. Sandilands was himself dissatisfied with his conditions of employment. These facts being established, s.5(4) of the Act takes effect in respect thereto. It provides that in any proceedings for an offence against s.5, ". . . if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent." Thus by virtue of s.5(4) an onus of proof is cast upon the defendant, in respect of each information to prove, on a balance of probabilities, that the defendant was not actuated by the reason alleged in the charge. Reading s.5(4) as part of s.5 it operates to provide that particular action taken by an employer may be said to have been actuated by a particular reason or circumstance if that reason or circumstance was a substantial and operative factor influencing him to take that action. Further, an employer may be said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action, although that reason was but one of a number of reasons which so influenced him. (see Roberts v. General-Motors Holdens' Employees Canteen Society Inc. (1976) 25 FLR 415, Cuevas v. Freeman Motors Ltd. (1975) 25 F.L.R. 67 at p.69, Mikasa v. Festival Stores Limited (1972) 127 C.L.R. 617., and General Motors Holden Pty. Ltd. v. Bowling (1976) 12 A.L.R.)

It follows from the above that the question before this Court is whether on the whole of the evidence the Court is satisfied as on a balance of probabilities that in dismissing Mr. Sandilands the defendant was not actuated by the circumstances alleged in the information, either alone or in conjunction with some other operating factor.

In this connection evidence has been given by the officers of the defendant to the effect that in dismissing Mr. Sandilands they were actuated solely by the fact that although he had been warned that if he left his employment to attend a meeting which had been called by the PPWFA for 2.00 p.m. on 11 June 1982 his employment might be reviewed, nevertheless he did leave his employment to attend that meeting and remained away for some twenty-five minutes or thereabouts. This evidence must be looked at against the background that Mr. Sandilands had been very active in a movement amongst the employees, the objective of which was to ensure the enrolement in the PPWFA of employees of the defendant who worked in the production section of the defendant's works for the purpose of securing recognition by the defendant and by the Conciliation & Arbitration Commission of the PPWFA as a representative organization of the production workers of the defendant in respect of their conditions of work. It is clear that this objective was in direct conflict with the intentions and policy of the defendant. For many years the production workers of the defendant had been members of the Printing & Kindred Industries Union (the PKIU) only. Also there had been in force an agreement between the defendant and six unions covering all of the workers in the defendant's employment pursuant to the operation of which, it is said, satisfactory industrial relations between the defendant and its workers had been maintained during many years. The PPWFA had no coverage amongst the defendant's employees and the defendant desired to preserve this situation.

The business of the defendant had been conducted for many years at Boyer in Tasmania. In 1978 it determined to establish a newsprint manufacturing complex at Albury in the State of New South Wales. For this purpose, at very great expense, it established a large mill involving large buildings and the installation of a great deal of heavy machinery and equipment of many varieties and great complexity. The company advertised for additional employees. Applicants for employment were interviewed. Mr. Sandilands was one of such applicants. He was engaged and commenced work on 30 March 1981. He was told, as all production employees were told, that it would be necessary for him to join the PKIU and this he did on 30 March 1981.

On 31 October 1980 the PPWFA by letter to the defendant, made a demand that the defendant pay and observe the rates of pay set out therein and observe the terms and conditions of employment claimed therein with respect to all the employees of the defendant, whether members of the PPWFA or not who were employed in or in connection with the manufacturing, processing and supply of pulp paper and similar commodities. On 18 November 1980 the PPWFA gave notification pursuant to s.25 of the Act of the existence of a dispute with several parties including the defendant. On 11 December 1980 the parties attended before Deputy President Isaac. The defendant opposed the application on the ground that there was already a satisfactory agreement in force covering its employees which was made with the six unions referred to above. Notwithstanding the defendant's opposition Deputy President Isaac found that a dispute did exist and referred it for hearing to Commissioner McLagan. The matter came on for hearing in March 1981. Again the defendant opposed the granting of the application and Mr. Commissioner McLagan decided on 15 April 1981 that it was in the interests of the public that the application so far as it concerned the defendant should not be further heard. On 15 May the PPWFA lodged notice of appeal. That appeal was heard in February 1982 and dismissed by the Full Bench on 11 February 1982.

In contemplation of the determination of the appeal the PPWFA called meetings at Albury outside the plant for 11 February and 12 February 1982. Two meetings were held so that the persons on shift could attend a meeting when they were not on duty. As a result of those meetings a letter was written to Deputy President Isaac urging that it was no longer in the public interest to refrain from hearing the dispute because of changed circumstances, namely, that the PPWFA had received a petition signed by a majority of the production employees at the Albury plant stating that they believed it was in the interests of all concerned that the PPWFA be given the opportunity to represent production workers at the Mill and urging the PPWFA to make application to the Commission to bring that about. As a result of this letter Deputy President Isaac ordered a new hearing. That hearing came on before Mr. Commissioner Hastings in April 1982. On 3 June 1982 the decision was announced. The Commissioner rejected the application.

On 25 May 1981 there was a meeting of the PPWFA in Albury which was attended by Mr. Sandilands, Mr. Northover the Federal Secretary of the PPWFA, Mr. Graham a vice president and nine or ten employees. The situation was explained by Mr. Northover. By a resolution of the meeting Mr. Sandilands was asked to "stand in as a delegate" for the PPWFA. Subsequently, as such a delegate, he had conversations with Mr. Braithwaite, then the Manager at the Mill and other senior members of the staff of the defendant. It appears also that Mr. Sandilands gave evidence before Commissioner Hastings on 15 April 1982.

About this time Mr. Sandilands posted up notices on the noticeboard setting out entitlements of employees under various sections of the Act including s.5 and 134, the existing award and preference clauses.

In February 1982 a notice was placed on the defendant's noticeboard prohibiting the posting of notices on that board unless prior approval was obtained from the Personnel Department.

On 24 May 1982 the PPWFA wrote to the defendant seeking:-
(1) recognition of the PPWFA as the relevant organization to represent the industrial needs of production workers at Albury;

(2) a wage increase of $30 per week to all employees from 1 January 1982 and automatic wage increases as from 1 July 1982 in accordance with the CPI;

(3) shorter working hours based on an average 35 hour week for day workers.

The letter advised that unless the demands were acceded to within 7 days such failure would place the PPWFA in dispute with the defendant over those matters. The defendant did not respond to this letter.

On 10 June 1982 the PKIU held a stop work meeting on the premises for the purposes of discussing its own negotiations on wage claims and conditions. At the stop work meeting a motion of no confidence in the PKIU was carried by a majority of about 48 - 26 with a number of members abstaining. A number of members then left the meeting and held a separate meeting of their own. They elected a deputation of four to meet the defendant and to make various requests including a request that the company recognize the PPWFA as a union representing them as well as the PKIU. Mr. Sandilands was one of the delegates. The delegates were told that the matters they wished dealt with could not be the subject of negotiation as the company did not recognize the PPWFA. They returned to the meeting. The situation was further discussed and it was resolved that a meeting should be held outside the mill premises in the afternoon of Friday 11 June. Late on the afternoon of 10 June, notices were posted in many parts of the plant, announcing that a meeting of the PPWFA would be held at 2.00 p.m. on Friday, 11 June to which members and others interested were invited. Mr. Graham indicated in evidence that the decision on 10 June to hold a meeting in respect of which persons actually on shift would leave their work to attend was a deliberate industrial tactic, an exercise of direct action to put pressure on the defendant as part of the PPWFA's campaign to obtain recognition as representative of the production workers at the defendant's mill. One might have thought that it was scarcely wise or fair to induce men to take a course which might imperil their employment or even if that were the case, to consent in their doing so. On the morning of 11 June Mr. Graham endeavoured to persuade Mr. Trippett the defendant's industrial and employment officer to negotiate with him, but Mr. Trippet's response was that the company did not recognize the PPWFA.

On 10 June 1982 Mr. Thompson the Albury Manager of the mill was in Sydney in conference with Mr. Gibson the defendant's Managing Director. Mr. Trippett was also present. During the afternoon Mr. Mason, the defendant's personnel training officer at Albury telephoned Mr. Gibson and informed him that the PKIU had held a meeting on that day, from which persons who desired to be represented by the PPWFA had broken away. He explained that a deputation of those persons had requested permission to hold a meeting of their own on site and had requested that an official of the PPWFA be permitted to come on the site to address that meeting. Mr. Gibson relayed this information to Mr. Thompson who took the phone and spoke to Mr. Mason. He instructed Mr. Mason to refuse both requests and Mr. Mason asked what attitude he should adopt if the employees who had left the PKIU meeting held a meeting off site. Mr. Thompson replied that the defendant would consider it a breach of discipline in respect of which some action would be taken and he should convey that to the delegates. Mr. Mason did this. The delegates returned to the breakaway meeting and it was then that the decision was taken to hold a meeting of the PPWFA at 2.00 p.m. the next day to which persons on shift, whether members of the PPWFA or not, would be invited to attend.

After the telephone conversation with Mr. Mason, Mr. Thompson and Mr. Gibson had discussed the situation and its background. Mr. Gibson's recollection was that they decided that if the defendant was advised by its solicitor that unauthorised absence from work was a breach of duty for which employees might lawfully be dismissed the employees who had gone to the PPWFA meeting during working hours were to be dismissed. Mr. Thompson's recollection was that although he and Mr. Gibson and Mr. Trippett discussed the background of the affair no decision to dismiss the employees was actually reached. However, when Mr. Thompson returned to the mill he ascertained that the employees who went to the PPWFU meeting had returned to the plant at the same time as the PKIU members who had stayed at the PKIU meeting. In view of this Mr. Thompson decided to take no action in respect of the unauthorised absence from work of those who attended the break away meeting during working hours. But on that same evening he learned that notices had been posted around the mill inviting members of the PPWFA and others to attend a meeting of the PPWFA at 2.00 p.m. the following day. At 8.00 a.m. on the Friday morning Mr. Thompson received a written report from Mr. Mason detailing the events of 10 June and mentioning that Mr. Sandilands had taken part as a delegate of the breakaway group in making the requests for permission, for an on-site meeting of the PPWFA and for the PPWFA organiser to come on to the site to address such a meeting or for permission to hold a PPWFA meeting off-site to be attended by persons then on shift. Mr. Thompson held his usual early morning meeting with the mill superintendants. The proposed PPWFA meeting was discussed. Mr. Thompson indicated that it was not an authorised meeting, that attendance by employees on shift would be a breach of discipline and the company would be forced to take some action as a consequence of it. He instructed the superintendants to endeavour to ascertain how many men intended to attend and to try to persuade the men not to do so. Depending on the number attending, the mill might have had to be shut down or men be called in from other sections of the establishment. Pursuant to the arrangement with Mr. Gibson on 10 June, Mr. Thompson having it in his mind to dismiss employees who left the mill to attend the proposed PPWFA meeting, telephoned the company solicitor Mr. Giudice. He received advice that if the period of absence from work was substantial, namely, more than a few minutes, dismissal would be lawful. For the purposes of these proceedings the minds of Mr. Gibson and Mr. Thompson were the mind of the defendant. Mr. Thompson telephoned Mr. Gibson, reported what had happened and the legal advice he had received. He said he had warned employees that if they left the plant disciplinary action would be taken. Mr. Thompson proposed to Mr. Gibson that if people on shift went to the meeting off the site he would dismiss them when they returned. Mr. Gibson approved this proposal. After lunch Mr. Thompson told Mr. Trippett to instruct the superintendants that "if people went to the meeting or left their jobs" they should be dismissed on their return. He instructed that employees should be warned of possible disciplinary action if they left the mill to go the meeting. Early in the afternoon, just before 2.00 p.m. Mr. Lassmann, the defendant's Mill Superintendent asked Mr. Sandilands if he intended to attend the meeting. Mr. Sandilands said that he felt obligated to go to the meeting. Mr. Lassmann said to him, "If you go to the meeting, I want you to be aware that your employment may be reviewed". Mr. Sandilands asked, "Does that mean that I will be fired?" Mr. Lassman replied, "I have been instructed to tell you that your employment situation will be reviewed.".

Mr. Sandilands did leave the mill, attended the meeting, and returned about twenty-five minutes later. He was then dismissed. He sought a statement in writing of the reason for the dismissal and was given a letter advising him that he had been dismissed for "neglect of duty". It is said that the reality was that he was dismissed at least partly because he was a member of the PPWFA, a member active in the campaign of PPWFA for recognition by the defendant. It is said also that another circumstance actuating the defendant in dismissing the informant was that Mr. Sandilands being a member of the PPWFA which was seeking better conditions for its members and others, was himself dissatisfied with his conditions. The following passages from Mr. Thompson's evidence are very much in point.

"MR. GRAY: Tell me this, were you before 10 June aware of the fact that meetings which were said to be PPWFA meetings had been held off the site? --- Yes. For how long were you aware of those? --- Many months. How did you become aware of them? --- The meetings were advertised in the local party and it was a topic of conversation among people on the site. Among who? --- Many people. People at management level, operators. They would discuss with you directly the question of union membership, would they - operators? --- I do not know they discussed the question of union membership, but it would come up from time to time speaking with operators around the site that meetings were being held and so forth. And that people wanted to join the PPWFA? --- Yes, that some people wanted to. You were told that by operators? --- Yes. By Mr. Sandilands at any stage? --- I do not recollect him telling me. Was it a matter of concern to you that these meetings were being held over a period of months and that people were manifesting a desire to join the PPWFA? --- It was a matter of slight concern, but it had not caused any disruption to work or activities on the site. I was not concerned unduly about it." . . . "Did that concern you that you felt the PPWFA was planning to continue its campaign? --- It concerned me. It was becoming a nuisance at that time. Indeed that was a time before Mr. Commissioner Hastings decision of 3 June, was it not? --- That is right. What was your attitude then after the decision of Mr. Commissioner Hastings when it became apparent to you that the PPWFA was not going to drop off? --- I expected after Commissioner Hastings decision that they would have. But it became obvious to you within a week of that that they were not, did it not? --- Yes. In fact we have had evidence and no doubt you heard, during the week beginning 7 June I think it was - the week that ended in the Friday's dismissals - that a number of meetings were held and Mr. Graham was in Albury. Were you aware of that? --- Yes. That I take it was a matter of great concern to you? --- Well, it was a matter of concern. I was unable to determine beforehand whether these meetings were just being held to discuss the outcome of Commissioner Hastings decision or whether they were to plan some further action. It became obvious to you at least by the Thursday afternoon that they were to plan some further action, I take it? --- Yes. When you got the phone call from Mr. Mason? --- Yes. You then realised that you still had on your hands an active campaign from within your own plant on behalf of the PPWFA? --- Yes. You were in no doubt about that at all? --- There was none in my mind, no. You knew also, did you not, that there was dissatisfaction among employees with respect to conditions? --- There were a number of claims about wages and conditions that had been made and were being prosecuted. But apart from the ones that were being prosecuted specifically there was a general mood of dissatisfaction, was there not? --- I do not believe there was, apart from those claims. Dissatisfaction with the PKIU in relation to their handling of them? --- I had heard people say that. And with the company's response to them? --- There always are people who are unhappy with the company's response to any claim. It was more specific than that in this case, was it not? --- I do not believe so. It was just a general grumbling, "We do not get enough". There were specific things that troubled people in the production area? --- Not outside the claims that had been made. But outside the claims that had been granted or indeed were being pursued? --- I guess there was bound to be someone or some people who were unhappy with the result. Your reading of the transcript of the proceedings before Commissioner Hastings would have led you to that view no doubt? --- I had that view independently of that transcript. There were 7 persons who gave evidence for the PPWFA in those proceedings? --- Yes. And each of them expressed dissatisfaction with a number of things? --- Yes." . . . The question was really that there was no doubt in your mind that he was at the very heart of the campaign? --- Mr. Sandilands and some others yes. And no doubt in your mind that he was a PPWFA member? --- I understood him to be a member of the PPWFA. He said he was and I did not dispute it. A number of other persons were also PPWFA members? --- They said so, yes. HIS HONOUR: You did not really doubt it? --- No, I did not, but I certainly knew that they were PKIU members, that they were having their subscriptions deducted from their wages, and no-one had resigned from it, and the PKIU also were saying they represented these people. MR. GRAY: So that you understood them to be dual members? --- Yes. I was sure about the validity but it was no great concern to me. HIS HONOUR: Subject to technicalities you thought there were an unspecified number of your employees who might be members of the PPWFA? --- Yes, certainly. MR. GRAY: You say it was not a matter of very great concern to you, but I put it to you that it was a matter of very great concern to the company in the week after Mr. Commissioner Hastings decision that there were still people claiming to be members, still people conducting an active campaign on behalf of the PPWFA? --- It was of concern to us that there were such members, but it was not anything that was relevant in any decision we had to make at that time. HIS HONOUR: I understand they said they had 90 members at one stage, the PPWFA, and also that people had signed a petition purporting to act as members of the PPWFA. That is correct, is it not? --- Yes, that is so. If you had 100 members all wanting to be members of the PPWFA, you could not treat that as trivial, could you? --- No, but there was another side to that. It was said to me that there were 90 or so people who were members of the PPWFA. It was also known to me that there were 128 people or so, which included all of the 90, who were paid-up members of the PKIU. That is not quite - here you have people with the PKIU, and from the point of view of the company you like that, and you did not look forward with any pleasure to having another union come in upsetting the four-party ---? --- I certainly did not look forward to having two unions covering one area. Quite so, and there would be all sorts of difficulties about that, would there not? --- Yes, many. You would be faced with people wanting different awards? --- Yes, there would be constant demarcation disputes. You would have the two unions competing to show which was the most obstreperous, as one might say? --- Probably. So that as far as you were concerned it was pretty important to keep the PPWFA from getting even a solid footing in the company establishment, was it not? --- That is true. The difficulty I had was in assessing how much weight to put on those claims that the federation had 90 or so members. So far as I knew that was being said to me and not supported by any documents and so forth. I knew for certain that those 90-odd people and some others belonged to the PKIU, and that no-one had resigned from it."

From the foregoing and the evidence generally I conclude that the decision to dismiss was connected with the PPWFA campaign to secure recognition. The defendant was really concerned to defeat that campaign if it could. It knew that the company could not prevent people from becoming members or prevent the PPWFA from holding meetings off site. It knew that many of its employees were members of the PPWFA. It knew that the PPWFA was trying to increase its membership. It must have known or believed that Mr. Sandilands was active in that movement. It is my belief that it knew that it must accept all those circumstances and did accept them. And I do not think that there was any thought in the mind of Mr. Thompson or Mr. Gibson of taking action against Mr. Sandilands or anyone else because he was a member of the PPWFA. But they did desire and decide to defend the company from the PPWFA so far as possible by refusing to permit its officials on the site, or the holding of meetings on the site and by refusing time off to employees to attend PPWFA meetings whether on or off site. But when the PPWFA and its members and supporters decided to take action involving stoppages of work in defiance of the defendant a situation had occurred in which the defendant could impose discipline and assert its authority and it decided that it should do so. It is a reasonable inference that the dismissals of 11 June reflected a determination to make it clear to all concerned that it would not tolerate direct action directed to promote the PPWFA's campaign. Having obtained advice that a substantial absence from duty would be lawful justification for a dismissal, it decided to use the weapon of dismissal to strike a blow against the PPWFA campaign. Thereafter, the PPWFA would find difficulty in using the same direct action tactic.

The question remains whether, when it dismissed Mr. Sandilands in the cause of inflicting a reverse on the PPWFA the fact that Mr. Sandilands was a member of the PPWFA was a circumstance activating the company in effectuating that dismissal. No doubt the fact that people including Mr. Sandilands were members of the PPWFA, and were seeking to enrol more employees as members, produced anxiety in the company lest the PPWFA should become strong enough to enforce its recognition by the company and the Conciliation & Arbitration Commission. It was thus minded to resist the PPWFA campaign. And when the campaign took an aggressive turn, by the adoption of direct action, the company felt impelled to act. So dismissals of the men who left the job in support of the PPWFA's campaign were determined upon. The persons to be dismissed were not identified by reference to their membership of the PPWFA. They were to be ascertained by reference to whether they absented themselves to attend the meeting. Of course the persons more likely to do this would be the PPWFA members but the notice calling the meeting invited non-members to attend. That invitation was a real one. Non-members were a real target of the invitation. I believe that Mr. Thompson did not know that Mr. Sandilands would be on shift at the relevant time and thus might be one to leave the mill to attend the meeting, but if he thought about it at all, that was of course a possibility. But in view of the warning which had been given to the employees the situation was that if Mr. Sandilands went to the meeting he virtually "picked himself" as potentially open to dismissal. If it occurred it would not be because he was a member of the PPWFA but because he left his work to attend the meeting. The circumstance that by leaving work and attending the meeting he participated in the campaign to force the company to recognise the PPWFA was the real and sole factor influencing it. That while so participating in this exercise he was a member, was but incidental. Any employee, member or non-member so participating, was necessarily in the list of those to be dismissed on that day, and the list was an exclusive list.

It was urged that if the PKIU had held a similar meeting, even an unauthorised meeting, it was unlikely that the defendant would have dismissed employees who attended. This is very likely true. But it does not assist in the enquiry as to whether or not membership of the PPWFA was a factor actuating the defendant in dismissing Mr. Sandilands. On the other hand in the unlikely but possible event that, at some time, the defendant should refuse to permit the holding of the PKIU meeting in working time, those attending could be lawfully dismissed. If they were it would be for breach of duty and not because they were members of the PKIU.

Both Mr. Gibson and Mr. Thompson said in evidence that Mr. Sandilands' membership of the PPWFA was not a factor which influenced them to dismiss him. These statements were of course self serving and could easily be made. They concern the difficult problem of identifying which, of various factors in one's mind that might have actuated conduct in question, actually did so. Accordingly they require careful consideration before being accepted as representing the real state of affairs. But I do so accept them. Nothing in the demeanour of these witnesses gave cause to doubt their bona fides. But, as indicated above, I am not satisfied that it was not a motivating factor in the decision to dismiss those who went to the meeting, that there was a connection between the meeting and the PPWFA campaign. However, the reality of the situation was that in the situation that arose it was not membership of the PPWFA that was critical, but the fact that the PPWFA campaign had reached the stage of direct challenge to the company by the calling of men off the job. It was not membership of the PPWFA that the company rejected. But the company did reject being subjected to the tactic of stoppage of work engaged in as an aggressive move to enforce recognition of the PPWFA. Those who participated therein would pay the penalty not because they were or might be members, but because, members or not, they were guilty of conduct in breach of their duty as an exercise of industrial force to put pressure on the company to recognize the PPWFA. The company could not tolerate that.

This conclusion is critical to the problem arising in the information under s.5(1)(a). It means that the circumstance that Mr. Sandilands was a member of the PPWFA was not a reason actuating the defendant to dismiss him.

With respect to the information under s.5(1)(d) of the Act I am satisfied, on the evidence, that the circumstance that Mr. Sandilands was dissatisfied with his conditions was not a reason actuating the defendant to dismiss him. Nor was the fact that the PPWFA was seeking better conditions for Mr. Sandilands and others. As Mr. Thompson said it was not to be doubted that a large number of the defendant's employees were dissatisfied with their conditions of work. The issue was recognition of the PPWFA. It was not the role of the PPWFA or Mr. Sandilands' relationship with it as an organization seeking better conditions for him and other employees, or his dissatisfaction, which actuated the defendant to carry out the dismissal of 11 June 1982. It was Mr. Sandilands' co-operation with the PPWFA as an organization seeking to secure recognition by direct action involving breaches of duty by employees, and the commission of his own breach, which so actuated the defendant. The whole exercise may well have proceeded on the assumption that breaches of duty by employees do not count, provided that they are committed in the course of what is called industrial action. But this is not so.

It was argued that light is thrown upon the circumstances that really influenced the company to dismiss the applicant by what occurred after Mr. Sandilands' dismissal. Altogether 17 persons were dismissed on 11 June 1982. A picket line was set up shortly thereafter and a further 25 persons were dismissed for failing to cross the picket line and to report to work. Negotiations between management and representatives of the PPWFA were held and were unsuccessful. Thereafter a conference of all Unions concerned was called by the ACTU. The ACTU recommended that the defendant re-employ all persons dismissed in their original positions of employment to settle the dispute. On 19 July 1982 the defendant wrote to all persons dismissed including Mr. Sandilands, offering re-employment. As a result of this twenty persons were re-employed, of PKIU members eight were re-employed and eight others had or have since found other employment. During this period Mr. Sandilands was overseas on a pre-arranged holiday. It extended from 27 June 1982 to 10 August 1982. On his return he replied to the defendant's letter and was interviewed, but no suitable position was found to be available. I do not find assistance in deciding the critical issue from the failure of the defendant to re-employ Mr. Sandilands.

Accordingly each of the informations must be dismissed.