COLINIEGUARD YATSON v VESTRAC Bar iitiG COPRORATICN

This is an application under section 119 of the Conciliation and Arbitration Act, 1904, (the Act) for the imposition upon Westpac Banking Corporation (the respondent) of a penalty of the alleged breach of a term of the Bank Messengers (Fe@eral) Award 1966, in that it did, "disrate Earl RB. Ellis as a result of a charge or complaint made egainst the said Earl R. Ellis without informing him of the nature of such charge or complaint and without gaving him a reasonable opportunity to make an explanation. . .....-.-. .".

Mr Marshall, counsel, eppeared for the'applicant. Mr Dowling of Queen's counsel appeared with Mr Turner for the respondent.

Tt was admitted by the respondent that at all material times: 1. The applicant, Mr Colin Edward Watson was secretary of the Victoriar branch of the Australian Bank Employees' Union (the organisation), an officer of the organisation and authorised under 1ts rules to sue on its behalf. 2. the organisation was an organisation of employees reqistered under the Act and a party to endbound by the eawerd. 3. The respondent was a duly i1ncorporated cempany and bound by thé award. The evidence established that at all material times Mr Ellis was a member o= the organisation and that he had been employed by the respondent for about four years as head messenger after being a messenger for many years.

Mr Ellis gave evidence that on 22 November 1982, in response to a request he went to the office of the respondent's accountant, Mr Gordon Jeseph, with the assistant accountant, Mr Richard Membrey. He said that Mr Joseph asked him to remain quiet wntil he had finished saying what he had to say. In cross - examination 1t wes put to Mr Ellis expressly that the Latter statement, "is a complete and utter febricatiom"', and that,

"no such thing was said to him at al? at any time on

22 November or at any other time". IZ completely reject those suggestions by Mr Dowling which were denied by

Mr Ellis and which were not supportecé by any evidence called by the respondent. Mr Joseph then told Mr Ellis that the personnel department "had received another letter of complaint", and referred ta "two or three other letters of complaint received over the last

two or three years both in the persarnel department

and in the accountant's area". He tcoid Mr Ellis that "in view of these complaints, senior management had decided that he could no longer hold the position of head messenger . . - «1 «2 2 we ew ee

Mr Joseph told Mr Ellis that his pay rate would remain the same subject to good conduct and asked him would he continue to carry out the duties of head messenger until 29 November 1982, when a bank officer would take over. Mr Ellis asked if he could see the particular letter of complaint to which Mr Joseph had referred and any other complaints that had been received but was told that that was "not possible". Mr Ellis made a sarcastic remark and expressed his disgust at the respondent's action, including its refusal to make him aware of the complaints or of the names of the persons making them. Mr Ellis was told that the decision had been made and there was nothing he could do about it. In fact, he contacted the organisation and various discussions took place between its officers and those of the respondent. Mr.See, the respondent's personnel manager, gave evidence that one such matter discussed was "whether we would be prepared to reinstate Mr Ellis at head messenger level with two subordinate messengers". I accept all of Mr Ellis' evidence as to what was said by Mr Joseph to him on 22 November 1982.

Clause 11 of the award is in the following terms: "Dismissals.

When a messenger 1s dismissed, suspended or reduced an wages or 1s unformed that he,is Gisrated, if

within one "month, theréaftér such ch messenger asks in

"action, he Shall be 2nformed "in writing of such réasons within a fortnight from the receipt of 'the réduest therefor; proviced that no_ messenger shail

Be » dismissed, cusrated or réduced "un Wweges "as a result of 'any charge or "coniblaint 7 made against "ham "without being unformed of the nature of such charge or" ~

Mr Dowling has submitted that the epplication should be dismissed because the applicant has failed to discharge the onus of proof. He advances four arguments in support of that submission. Firstly, that on the evidence Mr Ellis has not been "disrated". The Shorter Oxford Dictionary defines "disrate" as meaning "to reduce to a lower rating or rank".

Mr Dowling conceded that the effect of the respondent's decision was that Mr Ellis was relieved of the title of head messenger and was relieved of his duties as head messenger. In my opinion he was "disrated" by the respondent within the meaning of that word in clause 11 of the award. The respondent's first submission is rejected.

watson 25.5.84 161 gk lem 22 (Continued on page 161a)

Secondly, it was submitted that it had not been shown thet any disrating, if it occurred, was "as a result" of any complaint made against him. I have already set out part of the evidence of Mr Ellis as to what he was told by Mr Joseph on behalf of the respondent on 22 November 1982. 'That evidence was not denied. Mr See gave evidence for the respondent that the decision in relation to Mr Ellis was made on 18 or 19 November 1982. He said that he had "received the written complaint via my superior manager of the management services and immediately unformed Mr Joseph of the contents of it". The decision as to Mr Ellis "was taken on a collective basis" with the two superiors' of Mr See and Mr Joseph. Mr See said that they also decided that the task of communicating the decz1sion to Mr ELlis would be delegated to Mr Jcseph. The submission that Mr Ellis was not disrated "as a result" of any complaint must

"beirng imformed of the nature of such. ........-. complaint".," There' are two elements im this submission. "One _was that the words "being informed of the nature

of . 2 2 ee ee ee SUCH. we we ee CCompiaint* did not require that the messenger be so informed by

the employer. It was put that it was sufficient if the

information was received by the messenger from any source.

I accept that, where it is shown that a messenger 1s in possession of knowledge of a carmmlaint, the extent of that knowledge may be relevant in determining whether he has been "informed of the nature of .......2.2.- such... . . . - . . ._complaint" within the meaning of the ciause. However, I reject the submission that there is no breach of the clause where the employer has disrated a messenger as a result of a complaint and has taken no steps whatever to inform the messenger of the nature of the complaint made against him, but seeks to deny any award breach on the basis that the messenger had some knowledge of the nature of the complaint, gained from sources other than the employer. The respondent's submissicon on this aspect involves copstruing the words "without being informed" as meaning "without being aware" and cannot be upheld. In any event, on the evidence, Mr Ellis was not informed by anybody of the "nature of (the) complaint", in the sense that he had never seen the particular written complaint which Mr Joseph referred to on 22 November 1982, and was told that it was not possible for him to see the earlier complaints.

watson 25.5.84 16la gk lam 3a (Continued on page 1616}

The other aspect of the third submission was that it was said that Mr Ellas had been "informed of the nature of such complaint" and it was not necessary for him to be given details of the complaint. I accept that the words "nature of the complaint" at first glance may not appear to require details. However, those words must be read in their context. The clause, in requiring that the empioyee be "informed of the nature of" a complaint is plainly intended to give the employee (1n this case Mr Eilis) "a reasonable opportunity to make an explanation"; that purpose 1s made clear by the following words of the clause. In that context, the words ""1nformed of the rature of the complaint" must be construed as requiring thet an employee shall be given sufficient details of the complaint to enable him to take advantage of the "Feasonable opportunity to make an exaplantion" which the remainder of clause 11 requires his employer to give to him. In my opinion, the evidence showed that Mr Ellis was not given, either by the respondent or by anybody else, information as to "the rature of (the) complaint" to the extent necessary in order to comply with the requirement that he be "informed of the nature of such eo eo ee ee ew hehe COMplaint"; the respondent's third submission 1s rejected.

Lastly, Mr Dowling submitted that any "disrating" of Mr Ellis did not occur on 22 November 1982, contending that 1t did not occur before 29 November 1982, because the respondent's decision, as communicated to him, did not require him to hand over the responsibilities of the position of head messenger until 29 November 1982. In his submission the words in clause 11 "provided that no messenger shall be . ...... . . =. dusrated oe 2 ee ew ee el he" VOfer to the day upon which any such disrating takes effect, and do net refer to the day upon which the decision is made.

The evidence made it clear that the decision to disrate Mr Ellis occurred on 18 or 19 November 1982 and was conveyed to him on 22 November 1982. I accept his evidence that on that later date he was specifically told by Mr Joseph "that the decisions had been made and there was nothing I could do about it". In my op2nion at that time he had been "disrated" within the meaning of clause 11 ~ notwithstanding that he was asked would he continue to carry out the duties of head messenger for one week.

The purpose of clause 11 is to ensure that a messenger is not disrated "without being informed of the nature of such . ...... . . « complaint and being given a reasonable opportunity to make an explanation", that 1s, before any decision to disrete. In my opinion the words "no messenger shall be oe ee ew ee eh. 6disrated", construed in their context, mean that the employer shall not decade to disrate a messenger without first giving him the information (as to the comolaint) and the "reasonable opportunity", both of which are required by the clause.

watson 25.5.84 161b gk lam 4a (Continued on page 161c}

Mr Dowling submitted thal Mr Ellis had had an opportunity to "make an explanation" within the meaning , of the clause in that he could have made an explanation during the week following 22 November 1982 when Mr Joseph told him of the bank's decision to disrate him. ' ° However, by that time, the decision had been made and in my opinion it is not to the point, in considering whether clause 11 of the award was breached on or before 22 November 1982, to contend that it was theoretically possible that that decisicn might have been subsequently reversed or that the respondent might have been persuaded by the organisation "to reinstate Mr Ellis at head messenger level". Accordingly, the respondent's last submission is also rejected.

I find on the evidence that the respondent on or about i9 November 1982 committed a breach of clause 11 of the award in that it disrated Mr Earl Ellis as a result of a complaint made against him, without informing him of the nature of the complaint and without giving him a reasonable opportunity to make an explanation.

The maximum penalty that may be imposed is $1000 and in mv opinion the respondent's breach 18 a2 serious one. However, I have taken into account whet Mr Turner has persuasively advanced this morning and also the

. fact thac 1t has not been alleged that the respondent has previously breached the award or any other award.

. of last Friday that the respondent "acted in a most reasonable manner here" and acted "nroperly". On

the contrary, it acted in breach of its clear obligation under the award to give Mr Ellis information as to the complaint, and in addition it failed to give him any opportunity to make an explanation.

In all the,circumstances a penalty of $500 is imposed. As requested by the applicant, it is ordered, under section 120 of the Act, thet the penalty of $500 be paid by the respondent, Wespac Banking Corporation, to the Australian Bank Employees Union.