Childs, D.W. v. Metropolitan Transport Trust [1981] FCA 229

Federal Court of Australia|1981-12-09|Before: Smithers J

Industrial law - dismissal and prejudice to employee - Information pursuant to Conciliation and Arbitration Act 1904 s.5 - Onus of proof - substantial and operative factor - Alteration of employee's position to his prejudice - injury to employee in his employment - dismissal of employee. Employer actuated by circumstances specified in s.5(1) of the Act - Employee proposed to appear in proceedings under the Act - Commission hearing pursuant to a notice under s.25 not disclosing interstate character of dispute. Whether a proceeding within s.5(1)(c) of the Act - Employee's dissatisfaction with his conditions - requirement that better conditions being sought by organization be specific - Membership of Union as an actuating circumstance in decision to dismiss employee ~ Requirement of some relevant quality in

Desmond William Childs v. Metropolitan Transport Trust

TRUST (Defendant) Judge Making Order: Smithers J. Date of Order: 9 December 1981 Where Made: Melbourne ORDER

The Court finds that on 22 December 1980 the defendant

altered the position of the informant to his prejudice by

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The Order of the Court is that the defendant be convicted and a penalty of $400 be imposed on the defendant and that the amount of this penalty be paid to the Municipal Officers'

The Court finds that On 23 December 1980 the defendant

dismissed the informant by reason of the circumstances that

(b) the informant was entitled to the benefit of an award; (c) the informant proposed to appear and give

seeking better industrial conditions the informant was dissatisfied with his

4, The Order of the Court is that the defendant be convicted

and a penalty of $400 be imposed on the defendant and that the amount of this penalty be paid to the Municipal Officers'

Liberty to apply in respect of any other relief to which

) ) VICTORIA DISTRICT REGISTRY ) V. No. 16 of 1981 ) )

IN THE MATTER OF The Conciliation ' and Arbitration Act 1904

Upon an information dated 2 September 1981 Desmond William Childs informs the Court that the defendant Metropolitan Transport Trust (the Trust) was guilty of conduct

contrary to the provisions of s.5 ss.1 of the Conciliation and

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(a) was a member of the Municipal Officers! Association (MOA) an organization registered pursuant to

(b) waS entitled to the benefit of the Muncipal Officers' Association (Metropolitan Transport Trust)

(a) being a member of the said organization which was seeking better industrial conditions he was

(e) being a member of the said organization he had done or proposed to do acts and things which were lawful for the purpose of furthering

of the organization, being acts or things done within the limits of the authority expressly conferred on him by the organization in accordance with

On 22 December 1980 the defendant did injure the informant in his employment by reason of the circumstances set out in

On 23 December 1980 the defendant did dismiss the informant from his employment by the reason of the circumstances set out

The material conduct alleged in respect of the first and second charges was that by a notice in writing dated 22 December 1980 the defendant informed the informant that as from 5 January 1981 he would cease to hold the position of acting senior revenue clerk and return to the position of pay

The material in respect of the third charge was that the defendant delivered to the informant notice in writing

dated 23 December 1980 in which the defendant notified the

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informant that his employment with it would terminate as from

"5(4) In any proceedings for an offence against this section, 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."

In the application of s.5 it is to be noted that in respect of action taken by an employer, he 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 Mikasa v. Festival Stores (1972) 47

A.L.J.R. 20 and General Motors-Holdens Pty. Ltd. v. Bowling (1976) 12 A.L.R. 605.

At the close of the informant's case Dr. Jessup submitted that there was no case to answer in respect of the charge that on 22 December 1980 the defendant altered the position of the informant to his prejudice. He made a similar submission in respect of the charge that on 22 December 1980 the defendant did injure the informant in his employment. I aid not accede to the submission in respect of the first charge but I did accede to that in respect of the second. I

"This matter has been argued apparently as far as it can be by counsel and it is necessary that I should indicate my findings in respect of the submissions made to me by Dr. Jessup. So far as the first count in the information is concerned, namely, that on 22 December the defendant altered the position of the informant to his prejudice in his employment, by reason of one or more or all of the circumstances set out in paragraphs l(a), {(b), (c), (a) and (e) of the information, I am of the opinion that having regard to the facts before me, as they stand at the moment, without evidence contradicting those facts, I would consider that there is a case for the defendant to answer.

The answer to the problem depends upon the proper interpretation of section 5 of the Conciliation and Arbitration Act 1904, and in particular the proper construction of the wordstalter his position to his prejudice' in the opening sentences of the section. I think it has to be observed that basically the mischief aimed at by section 5 is a class of action taken by an employer against an employee not because there is anything wrong in taking that action in a proper case, but taking that action where it is actuated by various reasons, or one of various reasons, closely connected with the operation of the Conciliation and Arbitration Act which are set out in Section 5. Recognising that the objectives of the Act, which are to encourage unionism and the observance of awards, the settling of disputes by conciliation and arbitration and through representative bodies of employers and employees, parliament has been aware of the fact that those objectives would be largely frustrated if employees, who were minded to be activists, energetic or even less than energetic in what I call the operation of the Conciliation and Arbitration Act, were subject to fear that they would be injured in their employment if they did take an active part in union affairs and in pressing what they thought were the rights and privileges which ought to be assocated with their employment.

Originally, in order to protect employees from the fear of injury in their employment, parliament enacted what is now section 5, but the section did not then include the words "or alter his position to his prejudice'. No doubt, because it was found that a man could 'suffer because of his

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activities in the operation of the Act, through action taken against him by his employer because of those activities, which did alter his position in his employment to his detriment, but did not actually injure him then and there in a practical way. It seemed good to parliament, therefore, to say to employers, "You must not dismiss him for any of those reasons. You must not injure him in his employment for any of those reasons and you must not, whether you injure him or not, alter his position to his prejudice.".

The overall intention is that employees shall feel free to operate the act without fearing dismissal, injury or prejudicial alteration of their position. It is possible to read the word

'position' in a narrow way merely as referable to the immediate incidents of day-to-day employment.

circumscribed in meaning. It seems to me that the word 'position' should be read rather to refer to

a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment.

Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of section 5, and I think it takes place on the day of cancellation or repudiation of the promise that was made.

From then on his position is substantially altered. The term has gone. I do not think that this is a forced or fanciful construction of the word 'position' or of the meaning of the total phrase. I am told I must apply a fairly restricted meaning because this is a penal statute, but I feel that I should apply a natural meaning, not forced or fanciful in any way and a meaning which accords with what seems to me to be

the intention and the objective of the relevant Statute. Therefore, so far as the first count is concerned I am unable to find at this moment that

So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word 'injure' seems to be used, the informant was injured in his employment on 22 December. It did not occasion him any immediate loss of income. It did not mean that he did not do the same work during the period that his employment in the senior revenue pay clerk's office entailed him in performing that work. It is said that it reduced his status so far as the rest of the staff were concerned and did so as from that very moment. No doubt that is quite probable and probably did occur but it seems to me that that kind of thing is more aptly considered to be an alteration in his position than an injury. I cannot help thinking that 'injury' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.

It has been said to me that his employment was not an employment for six months because I should interpret the advertisement as incorporating a term into that employment that it was during that six months probationary in the sense that it could be brought to an end 1f the employer felt that he was not measuring up to the requirements of the new position or that he was in fact not measuring up to what one would expect of a man who was in the position for six months with a view to possible permanent employment therein.

It seems to me that putting the matter as high as it can be for the defendant at this stage of the case, it could not be put higher than that the informant was offered employment for six months; that he accepted it and that the Trust accepted him on an agreement for six months. The advertisement in question reads as follows:

Acting Senior Revenue Clerk ... during this probationary period.'

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with a satisfactory degree of competence to justify the continuance of the six months period. But that, on the evidence so far adduced, was not alleged.

In the letter of his reduction of the term of his employment as senior revenue clerk, it is said that the first matter of substance is that there is a reference to the Municipal Officers' Association having lodged an application to reclassify the position from grade 6 to grade 7 and that the hearing of the dispute is coming on early in January. It is not clear what that provision has to do with the substance of what the letter achieves. It goes on:

'Because there was no logical successor to the previous Senior Revenue Clerk you were appointed to act in the position for a trial period'

'It is now my intention to appoint another officer to act as Senior Revenue Clerk for a period of three months in order to determine, by performance, the

. most suitable person for the position. I hope that a permanent appointment can be made by May 1981'

Suggesting that the informant is still the person who may be considered for the permanent position. And then it goes on:

'As from Monday, 5 January 1981, you will resume your position as Pay Clerk.'

Well, in those circumstances I am satisfied that if I had to decide the matter without further evidence and having regard to the onus of proof provision in section 5, sub-section 4, I would feel constrained to say that the charge had been made out.

Accordingly, it will be necessary to proceed with that charge was well as one relating to dismissal, but at this stage I should dismiss the second count, and I do."

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On the submissions mentioned above it was not put that there was not evidence upon which a finding beyond reasonable doubt might be made of the existence of one or more of the circumstances specified in ss. (a) to (f). I am satisfied

(a) at all material times the informant was a member of the Municipal Officers' Association of Australia, an organization

(b) at all material times the informant was . entitled to the benefit of an industrial award, namely the Municipal Officers' (Metropolital Transport Trust) Tasmania

(c) as from 27 November 1980 until 23 December 1980 the informant proposed to give evidence in a proceeding under the Act

(ad) being a member of the M.O.A. which was seeking better industrial conditions the

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I am not satisfied that circumstance (e) alleged is

There is no dispute concerning the existence of circumstances (a) and (b) above, but there is concerning the existence of circumstances (c) and (d). Concerning (c) it was urged for the defendant that a positive finding could not be made because the relevant "proceeding" was not a proceeding under the Act. The proceeding in question was one initiated by a notice purporting to be given under s.25 of the Act. That notice was dated 27 November 1980, it was signed by the Federal Secretary of the Union. It was in the following

"In pursuance of Section 25 of the Conciliation and Arbitration Act 1904, the Municipal Officers' Association of Australia hereby notifies you of the existence of an Industrial dispute between the Metropolitan Transport Trust and the Municipal Officers' Association of Australia, 1-3 O'Connell Street, North Melbourne, 3051, in respect to the following matters:

Yr. Metropolitan Transport Trust have appointed Mr. Des. Childs to the position of Senior Revenue Clerk, on the 17th August, 1980.

The current award classifies that position as Grade vii.

Metropolitan Transport Trust have refused to appoint Mr. Child at the award rate, claiming he should be appointed at Grade vi.

Metropolitan Transport Trust claim that the position is one of Acting Senior Revenue

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No such position or classification exists in the award.

Metropolitan Transport Trust have therefore refused to abide by the current award.

Because of this situation, I now seek to have this matter which is at an impasse, determined by the Commission before it leads to serious disputation."

Dr. Jessup contended that the dispute specified in the notice was clearly not one extending beyond the limits of any one state nor, as I understood, did the notice disclose a situation which was likely to give rise to an industrial Matter which did so extend. He contended also that the dispute disclosed in the notice related only to the question whether or not the Trust was observing the award and that that

was a matter for a proceeding under s.119 of the Act but not

It is clear that at the relevant time the informant intended to give evidence in a proceeding which he understood to be initiated by the notice and in which in due course a member of the Commission, in the course of his duty under the Act, would conduct a hearing, and, as the fact was, that the General Manager of the Trust and its senior officers were aware of the informant's intention and understanding of the position and so understood it themselves. It may be conceded that interstate aspects of the dispute do not expressly appear

on the face of the notice. Nevertheless it is clear that the

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notice seeks the intervention of the Commission in a dispute in an industrial matter, "before it leads to serious

: é : : : : disputation.". Clearly the notice invokes the exercise of

[The notice was treated by the Commission as one requiring a response on its part in the performance of its duty and the exercise of powers vested in it by the Act. It set a date for a hearing and a hearing took place on 5 January 1981 before Commissioner McLagan. The parties duly appeared. The issue and the circumstances in which it arose were seriously argued by both sides and the Commissioner ultimately made a recommendation that the informant should have been receiving the rate of pay which he claimed. It is important that from first to last it was the genuine belief of all concerned in the "proceeding" that the claim by the Union for a determination was made in the genuine course of invoking the exercise of the powers of the Commission under the Act. No submission was made to the Commissioner that he lacked jurisdiction to hear the matter raised by the notice. If such a submission had been made, it is not certain, that on the general issue whether the Trust should pay award rates of persons permanently appointed to classified positions to persons appointed to such positions in an acting capacity, particularly as there was no classification for acting appointments, it might not have been shown that questions

outside the award were involved. Also it might well have been

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shown that there was was a sufficient likelihood of the dispute extending beyond the limits of Tasmania. But however, this may be it is my opinion that in the context of s.5(1)(c) the reference to a proceeding under the Act comprehends a proceeding brought under the Act and extends to any proceeding in which the jurisdiction and powers of the Commission are bona fide invoked, certainly where the matter in issue 1s an industrial matter. It is hardly to be thought that s.5(1)(c) 1s not intended to protect an employee who intends to give evidence in a proceeding honestly believed by all concerned, to be a proceeding under the Acc but which is found to be misconceived and rejected for lack of jurisdiction under the Act. Reference may be made to Trobridge v. Hardy (1965) 94

C.L.R. 147 at p. 156, Little v. The Commonwealth (1947) 75

C.L.R. 94 at p. 113, Parisienne Basket Shoes Pty. Ltd. v.

Whyte (1937) 59 C.L.R. 369, Deputy Commissioner of Patents v.

Board of Control of Michigan Technological University (1979)

28 A.L.R. 551 at pp. 560, 562 and 568 and Collector of Customs

(N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 A.L.R.

decision in In Re Turbet & Ors ex parte The Australian

Building Construction Employees and Builders' Labourers

Federation 2 December 1980 High Court of Australia (as yet unreported), had been to the effect that the matters in issue

raised no interstate dispute and was not likely to do so there

would have been no proceeding under the Act. Accordingly I

Concerning finding (d) above the first submission of the informant was that throughout 1979 to 1980 the Union had made various demands some of which were still unsatisfied and throughout the whole period the informant was dissatisfied with his remuneration. I do not accept this submission. But it was also submitted that from the moment the Union filed the s.25 notice the Union should be seen to be asserting, not only that grade 7 was the proper rate of remuneration for the informant, but that payment at the award rate was payable to every employee doing the work in any award classification whether he was appointed permanently or in an acting capacity. It seems clear that a claim for full classification rates for acting appointees, where the circumstances are that such rates are not paid or the claim is not admitted, is a claim for better industrial conditions. A Union which seeks to obtain recognition of such a claim may be said to be seeking better industrial conditions. It 1s apparent that in the proceedings before the Commission the Union was seeking recognition of the view that persons in acting positions should be paid the award rate for those positions and that the duties of the employees should be related to specific classifications. On the other hand the Trust was seeking recognition of a discretion on its part to remunerate acting appointees at rates under the award

rates for the relevant classifications, and to allot duties

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irrespective of award classifications. In this sense therefore the Union was seeking better industrial conditions and this had become apparent to the management of the Trust certainly since the latter part of 1979. And in relation to the matter involved therein the informant was not satisfied

Once what the Union is seeking has a sufficient specificity about it, and the employee's dissatisfaction is within what is specified, it would seem that circumstance (d) exists. In this case the claim can be seen to be specifically directed to achieving award rates for acting appointees, and the informant who was allotted duties including and extending beyond those of an award classification was an acting

The Informant as Staff Member and Union Member to May 1980

The informant joined the Metropolitan Transport Trust in July 1978 in the capacity of senior clerk. His classification was or later became "clerk special ability (b) pay clerk" and his remuneration was at award rate grade two. He was required by the Trust to join the relevant Union. The informant became a member of the Metropolitan Transport Trust sub branch of the M.O.A. and proxy committee man. The informant was very active. Tt is to be noted that with the exception of the General Manager every member of the staff of the Trust including those who might be considered part of Management were members of the sub-branch. Thus Mr. Adkins,the Traffic Manager and Industrial Officer and later Assistant General Manager and Mr. Byrne the Acting Secretary and Mr. Ling the Engineer were members of the Union and

There were a number of industrial issues of importance. They included the union demand for provision of duty statements to staff members, the payment of allowances for performance of higher duties, wage rates comparative with those of the public service, the allocation of duties of employees to accord with award classifications. The Union objected to bus drivers and members of another union being

appointed to clerical positions. It sought that vacancies and

new appointments be advertised. It claimed the right to have union representatives present when union matters were discussed between the General Manager and staff members. It sought the adoption of particular qualifications for clerical appointments. It was apprehensive concerning the effect of the introduction of an in-house computer on security of employment. On all these issues there was activity in which the informant took a prominent part. They involved him in delegations to the General Manager and in many personal discussions with him. The provision of duty statements was a recurring claim. The General Manager's attitude was generally that he agreed on the desirability of supplying the statements but there was great delay in implementing his agreement. The informant did not receive his until April 1980. However, nearly 'all had been provided by the end of May 1980. The provision of duty statements was linked to the problems concerning identification of classifications of staff members and higher duties allowances. And those in turn were linked with the problems of acting appointments and relieving appointments during long leave of staff members and the advertising of vacancies. In all these respects the General Manager maintained that he must have flexibility to appoint whom he chose and that to allocate duties within strictly defined award classifications unduly restricted his freedom. The Union did not concede any of those points and by April

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In his meetings with the General Manager the informant had made repeated representations about the policy of management in a number of areas. He complained in strong words that only one clerical junior had been recruited for years and that it was this which led to the introduction of bus drivers into the clerical staff. To this the General Manager replied that the introduction of bus drivers was traditional and provided incentive for the bus drivers. fhe General Manager and the Union were in disagreement on this issue. And they were in disagreement over most of the issues mentioned above. Repeatedly the General Manager insisted on the importance to him of the flexibility of existing practices and discretions. It was to this that the Union attributed the gap between the General Manager's expressions of intention to make changes as sought by the Union and their implementation. In pressing for these changes the informant was in the vocal

In one other matter the informant took action which caused the General Manager to send for him and upbraid him. A debate having occurred between two sections of the bus Grivers' union, the A.T.M.O.E.A., as to whether the General Manager of the Trust should be the chairman of the controlling Board of the Trust, the informant thought that the M.O.A. should have a policy on the point and wrote to his union expressing this view. At the interview The General Manager

was in a great rage and insisted that the matter was not one

which the Union or the staff ought to be considering. It may be noted that the General Manager was under the impression that the informant had taken a poll amongst staff members on the question. This issue surfaced in April 1980 or a little

In April, the committee of the sub branch of the Union considered various of the issues mentioned above and decided the time had come to consult the members in extraordinary meeting. The informant moved that an extraordinary meeting be held on 13 May 1980 to discuss various matters, namely, members of other unions performing duties of M.O.A., members' anxiety re introduction of an in house computer, duty statements for all staff positions and stability of working conditions. The motion was carried. Later, on the initiative of the informant, the subject of direct consultation by the Trust management with staff members on M.O.A. policies without union representation was added. The meeting was held and was well attended. Present were Mr. Byrne the acting secretary and Mr. Adkins. One Mr. Pullen, complained that on numerous occasions the Trust had not adhered to its agreement to comply with the sub-branch's request that all jobs be advertised in the Trust bulletin and moved that the M.O.A. again approach the Trust on the mattera This motion was carried. The informant moved that "firm resolute action" on the part of the sub-branch was needed to

protect the future job opportunities of the members and moved

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that the M.O.A. would not accept members of another union performing the duties of positions covered by the M.O.A. award. He referred to a current issue concerning a relief for one Mr. Crawford who wished to attend the United States for a few months. He said that management was bargaining that if the M.O.A. insisted on a M.O.A. member relieving him then Mr. Crawford might not be granted leave. Mr. Ling, the engineer of the Trust moved an amendment somewhat softening the terms put forward by the informant. The amendment was carried. The informant briefed the meeting on a recent discussion with the General Manager on the matter of the effect on staff of reintroduction of an in-house computer and in which the General Manager had given an assurance that there would be no redundancies but had given no information as to the jobs which might be affected or to what extent. The informant moved that the sub-branch form a Technological Change sub-committee to monitor changes with particular reference to staff conditions, employment and security. This was carried. The informant moved that a sub-committee be formed to go the Minister for Transport to discuss security of tenure in the Trust. Mr. Adkins moved an amendment calling for a sub-branch committee

approach to the General Manager before any approach to the

The meeting received a written request from the informant that it discuss the matter of the General Manager's

direct attempts to negotiate M.O.A. business through

individual members without authorised union representation in attendance. The informant said that the General Manager had recently questioned individual officers from the accounts section as to why they required duty statements when in fact the sub branch executive had made numerous approaches to the Trust on that matter. The meeting carried a resolution that a letter be sent to the General Manager expressing the strong objection of the sub-branch to the General Manager approaching individual members or groups of members on M.O.A. matters and requesting him to address all M.O.A. matters to the executive. This last matter had reference to an interview to which the General Manager had called some members to his office and asked them why they needed their duty statements. He said "really, what do you want them for?" The informant said "Look Tom, we. have told you this all along that we need to base a claim regarding duty statements and also people need to know what they are required to do." It appears that it was the custom for the General Manager to be addressed by all staff members as "Tom". The General Manager appeared rather to

The sensitivity of the Trust to these various issues is demonstrated in the remarks of Mr. Adkins at the hearing pursuant to the notice under s.25 of the Act, which are set out hereafter.

was most active in union affairs and in persuasion of members

'to take real action on outstanding issues and that there was

something of a climax in union activity at the time of and at the meeting of 13 May. No doubt the General Manager was apprised of the proceedings at the May meeting and of the

Having been a pay clerk from July 1978 until May 1980 and having received but one complaint to him from any senior officer as to his conduct, it came as somewhat of a surprise to be called to an interview with Mr. Adkins and Mr. Hankin, another senior officer, on 23 May and told that there were numerous complaints about his manner to and relationship with the bus drivers to whom it was part of his duty to give their wages each week. It appears that the General Manager had instructed Mr. Adkins to interview the informant in the presence of another senior officer and inform him that there were complaints and that they were serious and that it was

imperative that he change his manner to the bus drivers.

Mr. Adkins opened the interview by saying that the General Manager had instructed them to interview him about complaints about his attitude with the drivers. He said also that the informant was too forthright in union affairs. So far as complaints were concerned it was mentioned that they were made by Mr. Geason, the secretary of the A.T.M.O.E.A.

The informant said he knew of one complaznt which had been

made good between him and the driver concerned and asked who were the people who had made other complaints and what they were. Mr. Adkins had to confess he could not particularise. But according to Mr. Adkins he told the informant that it could be serious for him if his manner to the drivers did not improve. And in relation to this matter and his forthright union activity he was informed that the General Manager had : bigger things in mind for him. Mr. Hankin pointed out that he should calm himself down because nobody was giving him any credit for getting benefits for them. Mr. Adkins descended upon particulars as to possible promotion Saying that with the movement to the eastern shore there would be positions created over there and that the informant was being looked at very seriously for a higher grade position at the Mornington depot. The informant said "Frank, it seems a bit like the old buy off trick to me" and Mr. Adkins said "Just calm yourself down and you will get on all right". The informant expressed doubts as to whether with his nature he could let things go which were not right. He said that he felt that any position he got, he

Mr. Adkins made a written report to the General Manager which omits any reference to that part of the conversation in which it was put to the informant that he should relax in his union conduct or 'that the General Manager had him in mind for bigger things. Its terms seem much

stronger in reporting a threat of possible dismissal than the

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substance of the conversation seems to indicate. It proceeds on the basis that there were numerous complaints and that they were all valid. It appears that none of them had been investigated. So to proceed was most unfair, and indeed, I think Mr. Adkins conceded as much. If Mr. Adkins had been asked to prepare a report which might be useful in case of a later move to dismiss the informant his report would have

There is no suggestion of further complaints and indeed during June and July there is little evidence of activity of the informant or anyone else on union matters. At the interview last mentioned the informant 'had been subjected to a caning and had been offered a reward 1f he calmed down. Apparently at the end of July he was regarded as sufficiently calm to receive the reward. A position was advertised in the

"ACTING SENIOR REVENUE CLERK - - Due to retirement on 15 August the Trust is calling for applications for the position of Acting Senior Revenue Clerk for a period of 6 months. Salary will be equivalent to Grade 6 M.0O.A. during this probationary period.

Applications stating accounting qualifications and experience should be submitted to the Acting Secretary by 5 p.m., 30 July, 1980."

The informant applied for the position. His application was accepted. It is important that the appointment was for a period of six months albeit that it was described as a probationary period. Mn the hasis of the advertisement the successful applicant would anticipate permanent appointment if his performance was satisfactory during the probationary period. There was a duty statement for the position. It said nothing on the subject of devising

a system of recording statistics on various aspects of

revenue. However, on his being appointed, the General Manager

stated that he desired the informant to undertake that task. The informant agreed to do this. It waS apparent to the informant that the grade 6 salary advertised for the position was one grade below the award rate. The General Manager had downgraded the rate on his assessment of the work value. The informant indicated that he would accept the grade six rating until he had proved himself in the position after which he would want it reviewed. Thus the informant was given the position at a rate of pay below the award rate and a task not on the duty statement was added to the duties. This was a situation exemplifying the kind of flexibility which the General Manager had been anxious to preserve against those attempting to achieve duty allocations strictly in line with award classifications. And it was being implemented with respect' to the very man who had fought so hard against that

After the informant felt that he had mastered the work involved in his new appointment as described in the duty statement, he asked Mr. Byrne to take up the matter of regrading the salary to the award rate. Mr. Byrne advised him that the grading would not be reconsidered. This occurred more than once. In the end Mr. Byrne told the informant that the General Manager had the right to assess the rate for the position. The informant made it clear that he did not accept

The statistical task was described as devising a schedule or plan of presentation in convenient form in respect of certain information to be collected by the informant concerning revenue past and current, in terms of weekly run downs on passengers, revenue by sectional fares on various routes, charter work, transfer passes, pensioner concessions, and other aspects of the services provided' by the defendant. In this matter the informant was responsible to the Secretary, Mr. Byrne. The matter was explained to Mr. Byrne. The informant was instructed to take up with Mr. Byrne and the planning officer Mr. Gregg the format in which the statistics should be presented and the nature and extent of information required. As the General Manager agreed, the informant had to devise the new system of presenting and collecting the information considered relevant. What was required was described only in very general terms. Obviously some imagination had to be applied to decide what information was to be collected and how it was to be arranged. Consultation on these matters between the informant and Mr. Byrne was

The statistical task was never completed. The informant had a very difficult task to learn and perform the work of his new position. In addition he was to control certain staff members who felt another officer should have been appointed. He certainly applied himself in the job with

energy and enthusiasm and succeeded. It was inevitably weeks

nadie nent aacat dca tains aindedadammeaeatameeentemmtatenemnenn hte emmmenemmaememned an eo me oe eee - a me ae a

before he took up the matter of the statistics with Mr. Byrne. He said and I believe him, that he made several attempts to get Mr. Byrne to arrange a meeting with Mr. Gregg to determine the content and format of the information to be collected and presented. It seems that the meeting did not take place until about mid-November or even later. From then on the informant commenced the work of planning and collecting the information. The task was not promptly completed and Mr. Byrne spoke to the informant on more than one occasion urging early completion. The informant was willing enough to do this but his available time to do so in office hours was limited and he was unwilling to work overtime because the Trust would not pay for overtime worked. The informant showed Mr. Byrne drafts of the format and certain of the collected information and on 21 December told him he would have the work completed in a week.

So far as time for completion is concerned, the General Manager's letter of 22 December indicated it was his view that completion of the task might have taken up to about the third week of November. The informant never completed the task because he was dismissed on 23 December 1980. On 22 December 1980 he was informed by letter signed by the General Manager and delivered to him by Mr. Byrne that as from Monday 5 January he was to resume his position as pay clerk. The

I refer to your appointment to the above position on a temporary basis from 17 August, 1980.

The Municipal Officers' Association has lodged a dispute over the decision of the Trust to reclassify the Senior Revenue Clerk - Hobart, from Grade 7 to Grade 6, before advertising last August. I understand the date of hearing of the dispute before the Conciliation and Arbitration Commission has been postponed from 19 December to a date to be fixed early in January, 1981

Because there was no logical successor to the previous Senior Revenue Clerk you were appointed to act in the position for a trial period. It is now my 1untention to appoint another officer to act as Senior Revenue Clerk for a period of three months in order to determine, by performance, the most suitable person for the position. I hope that a permanent appointment can be made by May, 1981.

As from Monday 5 January, 1981 you will resume your position as Pay Clerk. In the meantime, you should complete the work I requested of you some months ago and submit it to the Secretary. I expected this work to have been completed at least four weeks ago."

The events of 23 December 1980 were a sequel to those of 22 December and I think that in the circumstances of this case identification of the real reasons for demotion on 22 December assist in identifying the real reasons for the dismissal on the 23 December. The General Manager asserted that the conduct of the informant in relation to the matter of the statistics was the only reason for the demotion. I do not believe this.' .1 am not satisfied that it was an operative reason at all. The contents of the letter of 22 December are not consistent with the General Manager's assertion. The letter bears the marks of careful preparation by a person who had decided to remove the informant from his position and was seeking to justify doing so. The draftsman has gone to the trouble in the first paragraph to mis-state the terms of the informant's appointment as acting senior revenue clerk. 'The appointment was for a fixed term. If the letter had commenced with an acknowledgement that the appointment was for a fixed term then, if the informant was to be demoted from 5 January, some reason would have had to be shown, some default on the part of the informant, justifying the cutting short of his fixed term. Had the situation been that the General Manager was justified in having "perceived" that the informant just "would not" perform the work of collecting the statistics,

there would have been a good reason for cutting short the

fixed term. The obvious course from every possible consideration would have been to state it. But if that notion were a fiction then there was no reason which could be alleged

as a good reason for cutting short a fixed term appointment.

In the third paragraph the General Manager indicates that the real reason for the demotion is a change of mind. He says - "It is now my intention to appoint another officer to act as Senior Revenue Clerk for a period of three months in order to determine, by performance, the most suitable person for the position." There is no suggestion that the informant has been defiant; has wilfully refused to carry out the task which he had undertaken to perform. The last sentence in that paragraph indicates that the informant himself may perhaps look forward to the permanent appointment which may be made in

It is not as though the General Manager did not have the matter of the statistics in his mind when he wrote the letter. The most critical comment that he makes in this respect is that he expected the work to be completed at least four weeks before. This is a far cry from a state of affairs in which he is removing the informant for gross default and indeed for actual refusal to perform the work, notwithstanding

Seal neelCantaal tte tant dhe tometeanelnaatendnenmenanmecnaeneeennennaenene

second paragraph in the letter the General Manager goes to the trouble of referring to the section 25 proceedings. With respect to the matter in hand these were quite irrelevant. The General Manager said that he inserted this paragraph in order to let the informant know that he knew of the proceedings. But by 22 December he could hardly have doubted that the informant was well apprised of that. The presence of the second paragraph indicates that in the mind of the General

Manager the demotion and the s.25 proceedings were related to

The terms of this letter appear to me to be in direct conflict with the General Manager's statement "So far as the reversion goes my one hundred per cent concern was that

he had not produced that revenue information." or as elsewhere stated by the General Manager that he "perceived" that the

informant "Would not" produce the statistics required. The

General Manager's explanation of the letter is just

unacceptable. It appeared in the following passage:-

"Why on earth did you not write to him and say, 'Dear Mr. Childs, this is over the odds. You have known for months and months that I regard those statistics as vitally important. I understand you have been given several deadlines aiready. You have failed in every one of them and therefore I must take you out of that position and send you back to be a pay clerk'. That would have been the true position, would not it?---That is correct, sir.

Why did you not tell him the truth?---Well, it is not a matter of telling the truth.

Fike eS vet AR ee mare eae tne tent tae tmnt ele Mar eee ete eee a eet nat ents dy me ehanten tetas te

Yes, it is?--~It is, but --- It is. He is entitled. The man 1s entitled to the truth? --- Correct. The point is, that in the context in which we work he had been told on a number of occasions by the financial controller Lo get those statistics. He had been told it was the day that he was appointed. In the context of that and the events that transpired, the operative thing is; that although you are going to be reverted, because you know - this is my thinking of it - you know that you have not produced that information, but although you are going to be reverted from 5 January I still want you to bring up to date those statistics which you should have done ' auring that time." There are various circumstances which point to a conclusion that the delay in relation to the statistics was not the reason for the demotion of the informant on the 22 December. Although according to the General Manager the production of the statistics had been a vital requirement for Management ever since he had been made General Manager in September 1979, he had never previously given instructions to anybody to produce them. It is relevant also that although the General Manager said that during the period between August 1980 and 22 December he had communicated through Mr. Byrne, Many deadlines for the production of the statistics, indicating to Mr. Byrne that such deadlines should be conveyed to the informant, no deadline had ever been communicated to the informant. The General Manager Said that he had no doubt that Mr. Byrne had communicated each one. There is no

indication as to what the sanction was to be for failure to

meet the deadlines. No deadline is mentioned in the letter of

Pref re en pre Re cnet eR RR rn ne re ae eee ee tte ee tte eee ce nen o we

I EE OTTER EE gh RETR Se on ten ean etre te a ety A

22 December. It would seem on the evidence that Mr. Byrne was a competent officer and if there had been deadlines the probability is that they would have been communicated to the informant. Again the General Manager said that although he Saw the informant from time to time in the corridor he did not ever speak to him about the statistics because he was leaving it to Mr. Byrne as head of the section to attend to the matter. But if the statistics were so vital it is strange that the General Manager, being, on all other counts, on good terms, and even the customary christian name terms with the informant, never on any occasion asked the informant how he was progressing with the statistics. And there is no suggestion anywhere that the General Manager ever put pressure upon Mr. Byrne himself as head of the section to ensure that the informant produce the statistics. I do not believe there

The notion that the informant would decide to defy the General Manager in a matter regarded by him as vital was of course quite absurd. From the effort put into the job by the informant it is clear that he was doing everything he could to ensure that at the end of the probationary period it would be clear to all concerned and especially the General Manager that he was a most efficient senior revenue clerk and

The letter of 22 December was delivered by Mr. Byrne

to the informant. They went through it together. Mr. Byrne said to the informant "You have got that case going through which Tom does not go all that much on". He also said, "Oh yes, we have no complaints regarding your work, but that stuff that Tom asked you to get out has not been forthcoming.". They then discussed the reasons for that as referred to above, and the fact that the day before the informant had said it would be ready in a week. There may have been room for criticism of the informant as to the delay in producing the Statistical information, but in the light of the foregoing I do not accept the evidence of the General Manager that the one and only reason for 'termination of the informant's occupancy of the position of acting senior revenue clerk was that he had failed or refused to perform the task of collecting and

In the search for the real reason it is hardly to be found in any considerations of managerial advantage. There was no real point in removing the informant, in breach of the terms of his appointment, a mere six weeks or thereabouts before it would have expired according to its terms. The informant, admittedly, was performing well in the position in all respects save the production of the statistics and to send him back to the office of pay clerk was to place him in close contact with the drivers again. , And to terminate his appointment contrary to its terms was certain to rouse

feelings of resentment. The General Manager was well aware

that the informant would "sound off" on the matter of his

I think the real reason for the demotion is to be found in the informant's insistence on his award entitlement. The appointment was an acting one, it was at a rate of pay according to the General Manager's opinion of work value rather than the award rate, and the tasks allotted were in excess of those specified in the relevant duty statement. It implemented the "flexibility" which the General Manager had been claiming throughout the controversies of the previous twelve months. It would be satisfactory to management that the informant accepted such terms. But he did not. He failed to respond to his promotion on the terms offered, remaining his difficult self, not only asserting his rights under the award but going to the length of getting the Union to take the

Trust before the Commission where the practice of the General

Manager's policy of "flexibility" would be called in question.

In such circumstances the General Manager might well feel disappointed and frustrated. The informant's action was

The General Manager had a staff structure which was out of line with the fourteen year old classifications in the award. Although this might have been inconvenient in some

respects, it did enable the General Manager to allot duties

and fix rates of pay on an individual basis giving him great flexibility and authority. The advantages of this "flexibility" were greatly valued by the General Manager. It was seen aS helpful to him at a critical period in the Trust's affairs, and generally in his efforts to reorganize it, after a period in which it is suggested that there had been a run down in efficiency. In these circumstaces it would not be surprising that thought was given by management as to what might be done to preserve the Trust's flexibility in management and organization of the staff. There was little to be done other than to put the case to the Commission as Mr. Adkins did in fact put it as hereafter set forth. In the light of my assessment of the General Manager's methods of thought it would not be surprising that he would think that some ofthe signficance might be taken out of the case if the informant were no longer entitled to the award rate in question and was in a different position where he was receiving the award rate.

It is my view therefore, not only as a result of the application of the terms of s.5(4) of the Act, but also on the probabilities, that in deciding to demote the informant the General Manager waS actuated by frustration and annoyance that the informant was entitled to benefits under the award, that he proposed to appear aS a witness to give evidence in the proceeding initiated by the s.25 notice, and that being a

member of the M.O.A. which was seeking better industrial

conditions in the sense mentioned above, he was dissatisfied

I turn now to the dismissal of 23 December 1980. As anticipated by the General Manager the informant did "sound off" concerning his demotion. It so happened that at lunch time on 23 December one Ewing sat with him as he was concluding his meal. Ewing was a person with university qualifications who did part time work for the Trust and was a friend of the, planning officer and an acquaintance of Mr. Byrne. The 'informant complained to Mr. Ewing about his demotion, spoke of management as providing jobs for the boys, referred to the appointment of the planning officer in terms suggesting that it came about as a reward for services rendered by him in circumstances of some breach of confidence in another capacity. He criticised the payment by the Trust of the air fare for that officer and his wife on their honeymoon in Perth. He referred to Mr. Byrne as the General Manager's "hatchetman". Mr. Ewing said that the informant applied the expression "corrupt". Mr. Ewing passed the contents of this conversation to Mr. Byrne who apprised the General Manager who apprised the planning officer. The planning officer confronted the informant who conceded that he had in substance said of the planning officer what was alleged. It appeared that the honeymoon was in Perth where the planning officer went on a mission for the Trust, the Trust paying his fare and

At a glance

Court

Decision date

Before

Source

Judgment (283 paragraphs)

Cited By (1)