Sean Scott Lawrence v Hobart Coaches Pty Ltd
[1994] IRCA 6
•28 Jun 1994
C A T C H W O R D S
INDUSTRIAL LAW - Unlawful termination - motion to dismiss application on ground contract of employment excluded from operation of the Act - whether contract of employment for a specified period of time
Industrial Relations Act 1988 ss170CC 170EC
Paragraph 2 of Article 2 of the Termination of Employment Convention
Industrial Relations Regulations Reg 30B
DAVID RALPH COOPER v DARWIN RUGBY LEAGUE INC
No DI 118 of 1994
NORTHROP J
MELBOURNE
20 SEPTEMBER 1994
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY No TI 104 of 1994
B E T W E E N :
SEAN SCOTT LAWRENCE
Prosecutor
A N D :
HOBART COACHES PTY LTD
Defendant
COURT: NORTHROP J
PLACE: HOBART
DATE: 28 JUNE 1994
MINUTES OF ORDER
THE COURT ORDERS THAT:
The information be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY No TI 104 of 1994
B E T W E E N :
SEAN SCOTT LAWRENCE
Prosecutor
A N D :
HOBART COACHES PTY LTD
Defendant
COURT: NORTHROP J
PLACE: HOBART
DATE: 28 JUNE 1994
REASONS FOR JUDGMENT
Hobart Coaches Pty Ltd ("the employer") has pleaded not guilty to a charge brought against it by Sean Scott Lawrence ("the employee"). The charge is brought under subsection 334(1) of the Industrial Relations Act 1988 ("the Act"). The charge alleges that the employer on 7 May 1993 dismissed the employee:
" ... because the employee -
(a)was a delegate of an organization, namely the Transport Workers' Union (being an organization that was registered under the provisions of the Industrial Relations Act 1988);
(b)being a member of an organization, namely the Transport Workers Union of Australia (being an organization registered under the provisions of the Industrial Relations Act 1988) that was seeking better industrial conditions, was dissatisfied with his conditions contrary to Section 334(1) of the Industrial Relations Act 1988;
(c)was entitled to the benefit of an award of the Commission, namely the Transport Workers (Passenger Vehicles) Award 1984."
Subsection 334(1) of the Act makes it a criminal offence for an employer to dismiss an employee because of any one or more of 10 grounds specified in the subsection. The parts of subsection 334(1) relevant to this prosecution are set out:
"334(1) An employer shall not dismiss an employee ... because the employee:
(a)is ... an officer, delegate or member of:
(i) an organisation; ...
(e)is entitled to the benefit of an award ... of the Commission; ... (or)
(g)being a member of an organisation that is seeking better industrial conditions, is dissatisfied with his ... conditions; ...
Penalty:
(a) ...
(b) in the case of a body corporate - $1,000."
Legal authorities show that on the proper construction of subsection 334(1), in relation to a dismissal, one offence only is charged, namely the dismissal, and the charge is proved if any one or more of the grounds specified in the subsection is proved, see for example Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 and the cases referred to at 260-1. It is useful, at this stage, to refer to subsection 334(6) of the Act, which concerns the onus of proof to be applied in prosecutions of this type. That subsection provides:
"334(6) In a prosecution for an offence against subsection (1), (2), (3), (4) or (5), it is not necessary for the prosecutor to prove the defendant's reason for the action charged nor the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge."
The principles of law to be applied in prosecutions of the type in the present case are discussed at length in Heidt at 266 to 271. That passage should be read in full as the principles discussed have equal application to the present prosecution. The provisions of subsections 5(1) and (4) of the Conciliation and Arbitration Act 1904 discussed in that passage correspond to subsections 334(1) and (6) of the Act. In the present case, counsel accepted, correctly in my opinion, that although there are minor differences in the wording of the two sections, the legal effect of them is the same. I propose to apply the principles discussed in Heidt to the facts found in this prosecution.
At the hearing, the employer made a number of admissions. On those admissions and on evidence given at the hearing, which was not really in dispute, the Court makes the following findings of fact. The employer is a corporation carrying on the business in Tasmania of operating passenger vehicles, being vehicles used for carrying passengers which are capable of carrying eight or more passengers or persons in addition to the driver. The employer was, and is, bound by the provisions of the Transport Workers (Passenger) Vehicles Award 1984 ("the Award"), an award under the Act. Under the Award the employer is bound to observe the terms of the Award with respect to its employees being drivers of the passenger vehicles whether those drivers are members of the Transport Workers Union of Australia ("the TWU") or not. The TWU is a party to the Award. The TWU and its members are bound by the Award. The employee was entitled to the benefit of the Award.
The employee was employed by the employer as a driver of passenger vehicles until his dismissal from employment. The dismissal forms the basis of this prosecution. At all material times the employee was a member of the TWU. Without deciding the issue, I am prepared to accept that at all material times the employee was a delegate of the TWU with respect to the premises of the employer and the drivers of passenger vehicles employed by the employer. The great majority of the drivers of passenger vehicles employed by the employer were and are members of the TWU. Although from time to time differences occurred between the employer and the TWU represented by Barry John Hansch, the organizer of the TWU assigned to the area of the employer, the relationship between the TWU and the employer was cordial. One thing became clear from the evidence, the employer was not anti-union. It accepted the TWU, it sought to co-operate with the TWU and consulted with the TWU on industrial matters.
Although the parties agreed that the employer dismissed the employee from its employment on Friday 7 May 1993, that date may be wrong. It is accepted the dismissal did take place. It may have been on Tuesday 11 May 1993 when the employee presented for work but was told he had been fired. For the purposes of this prosecution the actual date of dismissal is not important. The fact of dismissal is established.
There is no evidence before the Court to suggest that at any relevant time the TWU was seeking better industrial conditions and that the employee was dissatisfied with his conditions within the meaning of paragraph 334(1)(g) of the Act, see ground alleged in paragraph (b) of the information. As appears from Heidt at 268-70, the purpose of paragraph 334(1)(g) is identical with the purpose of paragraph 5(1)(d) of the Conciliation and Arbitration Act. The opinions expressed in Heidt have equal application to the facts of this prosecution. It follows, therefore, that the employee has not established the ground alleged in paragraph (b) of the application as a reason for the employer dismissing him. Further, in these circumstances, I have no hesitation in accepting the evidence of Donald Robert Hazell, the managing director of the employer, that the ground alleged in paragraph (b) had absolutely no bearing on his decision to dismiss the employee.
The employer knew that the employee was entitled to the benefit of the Award. All drivers employed by the employer were entitled to benefit of the Award. In these circumstances, I have no hesitation in accepting the evidence of Mr Hazell that the fact that the employee was entitled to the benefit of the Award had no bearing whatsoever on his decision to dismiss the employee.
It remains to consider the ground alleged in paragraph (a) of the information, namely that the employee was a delegate of the TWU. There is no doubt that the employee was a member of the TWU. By letter dated 23 December 1991, the secretary of the Tasmanian Branch of the TWU advised the employer that a meeting of the members of the TWU employed by the employer had "elected Winston Woods as Job Delegate and Sean Lawrence as Co-delegate". There is no evidence before the Court relating to the nature of a "co-delegate", or, for that matter, a delegate. Reference was made to the use of the word "delegate" in Clause 26 of the Award which provides for a grievance dispute procedure, but there is no evidence before the Court relating to any instance where that procedure was applied in respect to the employer. The Court was not referred to any rule of the TWU relating to the duties and responsibilities of delegates. In these respects, this prosecution is very different from the facts established in Cuevas v Freeman Motors Ltd (1975) 8 ALR 321, see particularly pp325-7. It is not necessary for the Court to determine whether the employee was a delegate of the TWU within paragraph 334(1) of the Act. I have already said, that for the purposes of this prosecution, I am prepared to assume that he was such a delegate.
On the facts so found, all the facts and circumstances of the dismissal in so far as paragraph (a) of the information apply, other than the reasons for the employer's actions in dismissing the employee, are proved. Accordingly, pursuant to subsection 334(6) of the Act, it is for the employer to prove on the balance of probabilities that "the action was not motivated (whether in whole or in part) by the reason specified" in paragraph (a) of the information.
Before turning to consider the evidence relevant to this issue, it is helpful to refer to what was said in Heidt at p268 but substituting subsection 334(6) of the Act for the reference to subsection 5(4) of the Conciliation and Arbitration Act. That passage, as so varied, reads:
"The provisions of s334(6) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge."
In the present prosecution, Mr Hazell, in his capacity of managing director of the employer, has given evidence that he made the decision to dismiss the employee. In answer to the question "Was the fact that Mr Lawrence was a delegate of the TWU, did that have any bearing whatsoever on your decision to dismiss him", Mr Hazell said, on oath, "It had no bearing on it whatsoever." Thus, the credibility of Mr Hazell as a witness of truth on this point is in issue. It is necessary to look at all the relevant evidence on this aspect of the prosecution, including the facts and circumstances leading up to the dismissal, the reason expressed by the employer for the dismissal as well as the denial by Mr Hazell that the employer dismissed the employee because the employee was a delegate of the TWU.
The reason for the dismissal expressed by the employer at the time of the dismissal was the refusal of the employee to work rostered weekend overtime. Because of the nature of the business being conducted by the employer, including route bus services, rostered weekend work was essential as well as special weekend work. In the week leading up to Friday 7 May 1993, the employer became aware that it was likely that the employee would refuse to perform the overtime work for which he had been rostered for the weekend 8 and 9 May. Under the Award the employee was required to work reasonable overtime. On Friday 7 May, the employee told Mr Hazell he would not work that weekend. Mr Hazell told him that if he wouldn't work he was fired. He handed a letter to the employee. The letter, which was under the letterhead of the employer and was undated, was as follows:
"Mr Sean Laurence (sic)
98 Summerleas Rd
KINGSTON TAS 7050
Dear Sean
We wish to raise an issue of great concern with you in relation to your perception in regard to weekend overtime with this company.
At the time of your appointment you were made aware that one of the conditions of employment was to do required weekend work on a roster system with other drivers approximately every ten weeks.
This system was implemented to assist you and other drivers plan your personal activities. As part of your agreed employment you were also advised that additional weekend work would have to be carried out by those drivers that are available at the time.
Your intransigence in relation to any variation to weekend overtime can no longer be tolerated. If all drivers were to take your attitude, Hobart Coaches would be unable to operate our scheduled service for which our licences are granted, for the Public Travel requirements, therefore any refusal to comply with our instructions will leave us no other option than to terminate your employment.
Yours faithfully
Donald Hazell
MANAGING DIRECTOR
cc Mr Barry Hansch
Transport Workers Union"
The employee did not present for work on Saturday 8 May as required by the roster. He claims he was suffering from a boil which made it impossible for him to sit at the controls of a passenger bus. He presented for work on Tuesday 11 May but was told he had been dismissed.
The case made by counsel on behalf of the employee was that the refusal to work overtime was only an excuse engineered by the employer to dismiss the employee and so get rid of the employee who, being a delegate of the TWU, was a troublemaker and a thorn in the side of the employer.
At the hearing, much evidence was led relating to incidents involving the employer, other drivers, Dennis James Wiggins, the operations manager of the employer, Mr Hazell and Mr Hansch. Most of this evidence is irrelevant to the issue now under consideration. The employer is a relatively small company employing some 20 to 30 passenger bus drivers. Mr Hazell has had long experience in the road transport industry including driving road transport vehicles. He takes an active part in the management of the employer although he is not involved in the day to day affairs. This is left to Mr Wiggins who has direct contact with the drivers. Mr Wiggins prepares and publishes the weekend overtime rosters well in advance. As managing director, Mr Hazell takes final responsibility for the actions of the employer. Mr Wiggins and Mr Hazell each gave evidence.
The employee is a very talkative person. According to Mr Hazell, the employee is a good passenger bus driver and got on well with passengers. He is very good on tour work. The employee and Mr Hazell have had many talks about the employer's business. Mr Hazell believes, and has told the employee, that he is too able to be a driver and that he should start his own business. To some extent, the employee does engage in other activities, particularly in the entertainment area. I detected no animosity existing between Mr Hazel and the employee. They got on well together although some friction arose from the refusal of the employee to do some "specials" and from the reluctance of the employee to do rostered weekend work. The employee kept urging Mr Hazell to engage casuals to do the work. It was in this area of management that disputes did arise. Mr Hazell did not object to private arrangements between drivers by which one driver stood in for a rostered off driver, but that was to be done without reference to management. A number of the drivers were concerned by the fact that the employee was not doing his fair share of overtime and complained about this.
Nothing in the evidence supports a conclusion that the employee was engaged in activities of a delegate worrying the employer with industrial matters relating to drivers employed by the employer. There is nothing in the evidence to suggest that the employee, in the capacity of a delegate of the TWU, was a "troublemaker" or a thorn in the side of the employer. The main concern of the employee was to look after his own interests. This is established clearly, in my opinion, by a long letter dated 7 April 1993 written by the employee to Mr Wiggins. The letter refers to the problems arising from rostered weekend work and the possibility of getting casuals to do the work. The letter expressed reasons why the employee should be taken off not only the Saturday night roster but the weekend one as well. There then follows a long list of complaints made by the employee why he should not work at weekends. He referred to his other business and other voluntary work that he did. Weekend work interfered with these activities. Reference was made also to management activities with respect to other drivers and difficulties other bus lines were having with the TWU.
Other evidence refers to difficulties arising between the TWU and other bus lines but these matters have no relevance to this prosecution. There is no evidence to suggest that the employee, as delegate of the TWU, was worrying the employer. On industrial relations matters, the employer deal directly with Mr Hansch, the TWU organizer.
On the evidence, the Court finds that only rarely did the employee refuse to work weekend overtime but that he raised the issue continually.
In the week leading up to Friday 7 May 1993, Mr Wiggins heard from other drivers that the employee would not perform his rostered weekend work for the coming weekend. The employee says that on Wednesday 5 May, Mr Wiggins told the employee that if he didn't work on Saturday and Sunday he would be fired. Mr Wiggins does not recall this meeting, but relies on comments from other drivers. He discussed the matter with Mr Hazell. On the morning of Friday 7 May Mr Hazell spoke to the employee. The employee told Mr Hazell he would not work at the weekend. Mr Hazell referred to the other drivers, their complaints, and the need to be fair to all drivers. Mr Hazell said he told the employee that if he refused to work at the weekend he would have to dispense with his services. Mr Hazell said that the employee told him that if he was going to sack him, he wanted it put in writing. Mr Hazell then rang his solicitor. He drafted a letter with help from Mr Pamplin, the marketing manager of the employer. He took the letter to his solicitor who approved its terms. This is the letter set out earlier in these reasons.
In the afternoon, Mr Hazell saw the employee. He asked the employee if he had considered what they had discussed that morning. The employee said he was not going to drive at the weekend. Mr Hazell gave the letter to the employee. The employee read it and asked "Does this mean I am going to be dismissed?" Mr Hazell said "yes" and the employee said "I'll see you in court". On the morning of Tuesday 11 May, the employee rang Mr Hazell and asked "Am I sacked?" Mr Hazell affirmed this.
Mr Hansch gave evidence. Initially he said he received a facsimile copy of the letter set out earlier in these reasons sometime in the afternoon of Friday 7 May. He then had a meeting with Mr Hazell and Mr Wiggins and was told by them that they were concerned with the refusal by the employee to work the overtime roster and that they had had complaints from other drivers. Mr Hansch decided to hold a meeting with the drivers able to attend. Later, he said that on Thursday 6 May he had a phone call from Mr Wiggins warning him of the developments with the employee and that the meeting with management took place on the Thursday and a meeting held with the drivers on the Friday at 12 noon. At that meeting, a number of drivers confirmed what management had said, namely that they were upset because the employee was not doing his fair share of overtime. Others were not upset. Mr Hansch did not take the matter up with management after that meeting. The letter was sent to Mr Hansch before it was given to the employee.
The evidence of the employee is that on Wednesday 5 May he had a row with Mr Wiggins concerning working the weekend roster and that he told Mr Wiggins that he wasn't going to do it. Essentially, there is no substantial conflict about the evidence relating to the dismissal.
The employee did say in evidence that he was suffering from the boil and had made an appointment to see his doctor after work on Friday 7 May. He said he wanted to tell Mr Hazell why he wasn't going to work but Mr Hazell was not interested.
Having seen and heard the witnesses, I accept Mr Hazell as a witness of truth. I accept his evidence, set out earlier, that the fact that the employee was a delegate of the TWU had no bearing whatsoever on his decision to dismiss the employee. It is quite clear that the employee was taking a deliberate attitude towards not working on his rostered weekend. He had made his position clear earlier in the week. The employer, through its managing director, acted on the expressed view of the employee and took steps to implement the dismissal. The employee was not dismissed until he had finally said he refused to work at the weekend. Although he had ample time to refer to his medical complaint, he did not attempt to raise it until after he had been given the letter. By that time it was too late. This is not a case claiming unfair dismissal.
In this case, it is not necessary for the Court to express any opinion relating to the credibility of the employee as a witness. On his own evidence, it is apparent that he was dismissed because of his refusal to work his weekend roster. There is just no evidence to support a finding based on ground (a) of the information.
In all the circumstances, the Court finds that the employer has established the defence based upon subsection 334(4) of the Act. The Court finds that the employer in dismissing the employee was not motivated, whether in whole or in part, by any of the reasons specified in the information.
The information is dismissed. There is no need to consider the matters relevant to the ancillary orders sought in the information.
I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment of The Honourable Mr Justice R.M. Northrop.
Associate:
Date:
ATTACHMENT
Counsel for the Prosecutor: Mr R.W.F. Young
Solicitors for the Prosecutor: Jennings Elliott
Counsel for the Defendant: Ms M.H. Beswick
Solicitors for the Defendant: Dobson Mitchell and Allport
Dates of Hearing: 13-14 April 1994 and
25 May 1994
Date of Judgment: 28 June 1994
Signed:
Dated:
0