Stapelton, Damien v African Lion Safari Pty Ltd

[1982] FCA 60

Re: DAMIEN STAPLETON
And: AFRICAN LION SAFARI PTY. LIMITED
No. NSW37 of 1981
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Ellicott J.

CATCHWORDS

Industrial law - Dismissal of Employee - Whether employee member or delegate of an organization - Whether employee entitled to the benefit of an award - Whether Order purporting to vary award a valid and effective variation - Whether employee seeking better industrial conditions - Employee asked to be delegate by union official - Whether employee a delegate of the organization pursuant to the Rules - Whether employee's membership of organization or seeking to improve industrial conditions a substantial and operative reason for dismissal - Unsatisfactory work performance of employee - Discharge of onus of proof by employer with anti-union attitude.

Conciliation and Arbitration Act 1904, ss.5, 41

HEARING

SYDNEY

#DATE 7:4:1982

ORDER

The information be dismissed.

JUDGE1

Damien Stapleton ("the informant"), as Federal Secretary of the Australian Theatrical and Amusement Employees' Association ("A.T.A.E.A.") instituted proceedings pursuant to s.5 of the Conciliation and Arbitration Act, 1904 ("the Act") against African Lion Safari Pty. Limited ("the defendant") in relation to the dismissal of its former employee, Barry Bevan, and certain other former employees.

He alleged that on or about 8 July 1981, the defendant in breach of s.5 dismissed Mr Bevan and the other employees by reason of the circumstances that each was a member of an organisation, that is A.T.A.E.A., that each was entitled to the benefit of an industrial award and that each was a member of an organisation seeking better industrial conditions and was dissatisfied with those conditions.

At the hearing the informant limited his case to the dismissal of Barry Bevan but added as another circumstance that referred to in s.5(1)(f) of the Act, namely, that being a member and delegate of an organisation, he did things which were lawful for the purposes of furthering and protecting the industrial interests of the organisation and its members, being acts and things within the limit of the authority expressly conferred on him by the organisation in accordance with the rules of the organisation.

These proceedings were heard immediately following those relating to the dismissal of Brian Tyrrell (No. N.S.W. 36 of 1981) and it was agreed at the hearing that I should treat as evidence in this case the whole of the evidence and exhibits in that matter. The findings of fact made by me in my judgment in that matter should be treated as forming part of this judgment. I shall not repeat them except where I feel it desirable to do so.

The defendant also admitted at the hearing that A.T.A.E.A. was an organisation registered pursuant to the Act, that the defendant was duly incorporated, that Barry Bevan was employed by the defendant and that he was dismissed from that employment.

As indicated in my judgment in matter No. N.S.W. 36 of 1981, the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence, except the reason or reasons for the defendant's action. It is for the defendant to prove, on the balance of probabilities, that it did not dismiss Mr Bevan for the reasons alleged.

The defendant company operates the African Lion Safari at Warragamba. It is an amusement centre with primarily an animal park through which paying members of the public may drive their vehicles and view wild animals from the safety thereof. There is a lion reserve and a tiger reserve. The centre also has other attractions such as a zoo, dolphinarium, a section for farm animals, train rides etc. and a restaurant. It has been in operation for 13 years. The defendant operates similar parks in other States.

Barry Bevan was employed by the defendant for four years prior to his dismissal on 8 July 1981. For the first three years he was employed as a casual and for the last year full time. His main employment was as park warden. He did general duties as well which included plumbing work, cleaning up, mechanical maintenance work in the pinball arcade and repairing railway lines and fences. Whilst he was a casual employee, he apparently had a clash with Mr Hayworth-Booth and continued on under an assumed name "Barry Scott." When he became permanent he again used his real name.

On 16 December 1980 he applied to become a member of A.T.A.E.A. The relevant documents were tendered in evidence and I am satisfied beyond reasonable doubt that he was a member of A.T.A.E.A. from 14 January 1981 (when his application was accepted) until his dismissal.

In my judgment in matter No. N.S.W. 36 of 1981 I referred to several meetings. Mr Bevan attended the meeting at Warragamba Town Hall in late January 1981 and a meeting called by Mr Stafford Bullen at the park restaurant some time later. Mr Bevan did not give evidence in the earlier proceedings. He said in evidence in this matter, that, at the latter meeting, Mr Stafford Bullen said to Mr Tyrrell "The union will do you no good and will do the rest of you no good. If you are not happy working here, you can find yourself another job. If you are not happy with the pay, find yourself another job. If you try to get a pay rise through the union or any other means I will close the park."

He also attended the meeting called by the union towards the end of May. At that meeting Mr Tyrrell volunteered to become the union delegate and Mr Bevan indicated that he was prepared to take on the position as co-delegate. Two days after that meeting he told Eric Dzenis and Russell Bruce that he had been made a co-delegate.

After Mr Tyrrell was dismissed on 16 June Mr Bevan says he was asked by one of the union officials, Mr Heaney, if he would be willing to take on the position of delegate. He agreed to this and was asked to inform the management. He subsequently told Mr Dzenis and Mr Bruce of his appointment.

After he agreed to be the co-delegate he says he asked two employees to become members of A.T.A.E.A. who said they would think about it. He also says that he nominated one employee for membership and seconded another. He did not collect any fees.

A further meeting was organised by the union at the Warragamba Town Hall on 26 June. At that meeting the conditions of employment at the park were discussed for the purposes of an Arbitration Commission hearing. Miss Pikette and Mr Stapleton were present and a document setting out a list of claims was produced. This was prepared by Miss Pikette. It included reference to such matters as rates of pay, hours of work, Saturday and Sunday shift work, meal intervals and allowances and accommodation. Under rates of pay it had classifications of various jobs and appropriate rates of pay. These claims, after being discussed at the meeting, became the basis of an application to the Commission.

On 8 July, Mr Bevan and five other employees were called to Mr Dzenis' office. He interviewed them one by one and each was dismissed from the defendant's employment. There is some conflict between Mr Dzenis and Mr Bevan as to what took place at this interview and I shall deal with this subsequently.

As pointed out earlier, the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence, except the reasons which actuated the dismissal.

I am satisfied beyond reasonable doubt that Mr Bevan was employed by the defandant at all relevant times up to 8 July 1981, that from 14 January 1981 until after 8 July 1981 Mr Bevan was a member of A.T.A.E.A. and that it was an organisation registered pursuant to the Act. I am also satisfied beyond reasonable doubt that on 8 July 1981 the defendant dismissed Mr Bevan as an employee.

It follows from these findings that the onus is on the defendant to establish that on the balance of probabilities it did not dismiss Mr Bevan by reason of the circumstance that he was a member of A.T.A.E.A.

As indicated earlier, the prosecutor also relies on the circumstance referred to in para (b) of s.5(1), namely, that Mr Bevan was entitled to the benefit of an industrial agreement or an award.

In dealing with matter No. N.S.W. 36 of 1981, I expressed the view that I did not find it necessary to come to a concluded view as to whether the order signed by Mr Commissioner Heffernan on 22 June 1981 was a valid variation pursuant to the Act. That was because Mr Tyrrell, the employee concerned with those proceedings, was dismissed prior to that date on 16 June. In this case, Mr Bevan was dismissed after the order was signed and it is therefore necessary to consider its status as an order under the Act. Was it an award or a variation of an award?

The order of 22 June 1981 certainly took the form of a variation. The Commissioner purported to vary the Theatrical Employees' (Recration Complex and Theme Park) Award, 1979. One difficulty I have in regarding this as a valid variation is that I am unable to conclude from the evidence before me that any of the original parties to the dispute which was the basis of the 1979 award were represented before Mr Commissioner Heffernan when he indicated that he would make an order on 18 May 1981. If a variation is to be made to an award it seems to me the parties to it should be represented even if the only purpose is to add other parties.

Another difficulty is that in this case the roping-in award was based not on the original industrial dispute that founded the 1979 award but on an industrial dispute found to exist between A.T.A.E.A. and the defendant and others by Robinson J. on 12 August 1980 resulting from the service of a log of claims in June 1980.

I must say that in these circumstances I have some doubt as to the power of the Commissioner to make a roping-in award varying an existing award when the roping-in award itself is based on a dispute not directly related to the dispute the basis of the earlier award and where the parties to the earlier award are not represented.

It would seem to me that in such a case the appropriate course would be to make a fresh award pursuant to s.41 on the basis of the new dispute.

Because of the incomplete nature of the evidence on this matter I am not satisfied beyond reasonable doubt that there was an award to the benefit of which he could have been entitled. At the same time I think it important that I point out, first, that a fuller consideration of the circumstances might well establish beyond reasonable doubt that the purported variation was valid and effective to apply the 1979 award to the defendant and its employees and, secondly, that, had I been so satisfied in these proceedings, I would, nevertheless, have been satisfied, on the balance of probabilities, that Mr Bevan was not dismissed by reason of the circumstance that he was entitled to the benefit of an award, that is to say, it was not a substantial and operative reason for Mr Bevan's dismissal. My reasons for coming to this view are reflected in those I will subsequently state regarding the circumstances in paras (a) and (d) of s.5(1).

Reliance is also placed in this case on para (d) of s.5(1), namely, that Mr Bevan was dismissed by reason of the circumstance that he was a member of an organisation which is seeking better industrial conditions and he was dissatisfied with his conditions. I am satisfied beyond reasonable doubt that he was a member of A.T.A.E.A. an organisation registered pursuant to the Act, that it was at all material times seeking better industrial conditions and that he was dissatisfied with his conditions. I think it follows from his presence at the meeting on 26 June that considered the claims which subsequently became the basis of an application to the Commission, that Mr Bevan was dissatisfied with his conditions in so far as they were reflected in that document.

The informant also relied on para (f) but for the reasons which I gave in dealing with matter No. N.S.W. 36 of 1981, I am not satisfied beyond reasonable doubt that the facts and circumstances relevant to the operation of para (f) existed as at the relevant time. Mr Bevan was not, in my view, appointed a delegate pursuant to the rules of A.T.A.E.A. and therefore para (f) could not apply.

In the light of these findings it is now necessary to consider whether the defendant has proved on the balance of probabilities that its action in dismissing Mr Bevan was not actuated by reason of any of the circumstances that he was a member of A.T.A.E.A. or that, being a member of A.T.A.E.A., which was seeking better industrial conditions, he was dissatisfied with his conditions.

I have already set out the facts relating to Mr Bevan's employment and his appointment as a co-delegate and delegate of the union. It is true to say that his involvement in union matters up to his dismissal was not as great as Mr Tyrrell's. His dismissal however took place not long after Mr Tyrrell's and after proceedings had commenced in the Commission resulting from Mr Tyrrell's dismissal. It also followed a period of union meetings on 28 May and 26 June where claims for better conditions including wages were discussed with employees of the defendant. Mr Bevan had been present at the meeting called by Mr Bullen and Mr Bullen's dislike of unions was well known.

The informant claims that in this atmosphere it should be presumed over any denial by the defendant's witnesses that Mr Bevan's union membership and dissatisfaction with his conditions were a substantial and operative factor in his dismissal.

The defendant however has in this case again attempted to refute this inference by giving positive evidence as to the reasons for the dismissal. There are some differences between the evidence of Mr Dzenis and Mr Bevan relating to what took place when Mr Bevan was dismissed. Not a great deal turns on this. However as in matter No. N.S.W. 36 of 1981, I regard Mr Dzenis as an honest and reliable witness and I prefer to accept his version of the facts where a choice has to be made.

Mr Bevan says that when he was called into Mr Dzenis' office on 8 July, Mr Dzenis said to him "I have got a bit of bad news to tell you. The directors have decided we have got to streamline staff. Here is your termination pay and a week in lieu." He also says that Mr Dzenis said they were going through hard times, they had to streamline and that the dismissals were on the principle of last on first off. Five others were dismissed at the same time.

Mr Dzenis however denied having said it was on the basis of last on first off. As indicated earlier, I prefer Mr Dzenis' version of the conversation. He is unlikely to have said it because he retained Mr Brody who had only been there for several weeks. Mr Bevan had been there for four years. He may have misunderstood what Mr Dzenis said to him. Mr Dzenis said he made it very brief and indicated to Mr Bevan that he had been instructed by the directors to cut the numbers down and that he was dismissing him to which Mr Bevan said "Oh well, fair enough."

This difference is not, in my view, of great relevance. What is more important is whether I accept the evidence of Mr Dzenis and Mr Bullen as to the reasons actuating the dismissal.

Mr Dzenis says that, early in July 1981, he had a conversation with Mr Bullen about modifying the tiger section of the park. Mr Bullen asked him to delay it for a while. He was concerned about the staff currently. employed and the state of the company and he felt that the staff numbers should be cut. At a later date Mr Dzenis was told to operate in future on four game wardens and three for a portion of the park known as "Pet's Corner". This meant dismissing three game wardens and three members of the Pet's Corner staff. Mr Dzenis says he was not given any criteria by Mr Bullen as to how to select the ones to stay or terminate and that he based his decision on merit on their work performance. This was judged from his own observation and also from observations by Mr Bruce, the park supervisor. He was not given any particular instructions about dismissing Mr Bevan. He decided to dismiss him because, although he was basically a reasonably sound warden, he was lacking in quite a few respects. Mr Dzenis said he made a habit of showing up late. He did not show a high regard for the animals he looked after and he was a bit on the slow side. A few weeks earlier he had had a major disagreement with Mr Bruce, the park supervisor, when Mr Bruce had made his pay up but decided on that occasion not to dismiss him but issue him with a stern warning.

In relation to his lateness, Mr Dzenis said he would arrange for him to be called on the telephone to enquire about his whereabouts when he was not at work at his set time and that he showed his dissatisfaction with Mr Bevan being late on quite a few occasions. He had also received complaints from Mr Bruce about him as to the manner in which he treated vehicles.

Mr Dzenis said he gave consideration to the fact that Mr Bevan held himself out as the union delegate but because the directors had instructed him to operate on a small number he had to choose the ones that were the better workers and were the more diverse. Around the same time the hours of opening the park were changed and the staff were used for performing maintenance work after it was closed to the public. Mr Dzenis was anxious to retain those staff who were more useful for that purpose.

Of the five others who were dismissed at the same time, Mr Dzenis believed four of them were union members. One of them, Mr Southern was not. Several of those who were not dismissed he believed to be union members.

Mr Bruce also gave evidence confirming Mr Dzenis. He said Mr Bevan's interest in his work had deteriorated, that he was consistently late, that he had spoken to him about calling into hotels and having a drink on pick-ups and that finally he had taken him off driving outside and restricted him to the reserve. A month before he was actually dismissed he had refused to pick up meat when he had had his pay made up but said he would give him one more chance and restrict him to the park.

I am satisfied from this evidence that Mr Dzenis chose to dismiss Mr Bevan because of his work performance compared with other employees. I am also satisfied that in making that choice he was not given any direction by Mr Bullen as to whom he should choose. He did, however, give consideration to the fact that Mr Bevan held himself out as the union delegate but that notwithstanding this he was justified in choosing him as one of those to be dismissed when comparing his work performance and capacities with those of other employees working in the game park and Pet's Corner.

Mr Bullen gave evidence that in early July he told Mr Dzenis they would have to cut back on staff, that they looked at the numbers and decided to cut back about six people, that he indicated to Mr Dzenis that he should keep the best people but Mr Dzenis had not told him which people were to be terminated. He agreed that prior to the dismissals the names of those employees to be terminated could have been mentioned including Barry Bevan and he recalled something being mentioned to the effect that his work had deteriorated. Mr Dzenis also mentioned to him Mr Bevan's membership of the union. He gave no specific instruction as to the dismissal of any particular employee. It was about the same time he gave instructions that no further persons were to be employed. An attempt was made to replace Mr Pruys, the maintenance employee and applications were called in the local press but this was against Mr Bullen's instructions and he was not in fact replaced. Mr Bullen said that when he was speaking about cuts being made, he did not take into account that there might be further union trouble if the union delegate was sacked again. He denied that Mr Bevan was dismissed to drive home the anti-union campaign that was being conducted.

The reason which actuated Mr Bullen's decision to cut back on staff was the decline in the profits from the park. As to this Mr Bullen gave evidence in matter No. N.S.W. 36 of 1981 and I am satisfied that prior to giving Mr Dzenis the instructions to dismiss six staff, he came to the view based on his knowledge of the finances that this was a proper decision to make in the interests of keeping the park open if it were to remain profitable. Problems were arising with the profitability of the park and similar parks in other States.

In the light of the evidence from Mr Dzenis and Mr Bullen, which I accept as truthful and reliable, I am satisfied, on the balance of probabilities, that the reasons for Mr Bevan's dismissal were the reasons given by Mr Dzenis and that they did not include the circumstance that he was a member of A.T.A.E.A. or that he was trying to better his conditions.

The information should therefore be dismissed.