Elliott v Kodak Australasia Pty Ltd

THE COURT: 1 This is an appeal from the judgment of a Judge of this Court, dismissing an application by John Elliott ("Elliott") and the Australian Liquor, Hospitality & Miscellaneous Workers' Union ("LHMWU") (together "the appellants") against Kodak Australasia Pty Limited ("Kodak") made pursuant to s 298T of the Workplace Relations Act 1996 (Cth) ("the Act") alleging a breach of s 298K(1)(a), (b) or (c) of the Act and making claims in relation to wrongful termination of employment pursuant to the accrued jurisdiction of the Court. The LHMWU is an industrial association registered under the Act. 2 Elliott was employed by Kodak in November 1982 at its Coburg site. Soon after commencing that employment, Elliott became a member of the LHMWU. The LHMWU has had nearly 100% membership in its areas of coverage at the Coburg site at all material times. There are various buildings at the Coburg site. Elliott worked in the part of Building 2 known as the dispersions section, which involved the mixing of chemicals for the treatment of photo paper. There was also an emulsions section and a chemical preparations section in Building 2. 3 In April 1999 Elliott was elected by fellow employees in Building 2 as a delegate for the dispersions section. Other persons were elected as delegates for the emulsions section and the chemical preparations section. At that time there was also a site delegate. It will be necessary to return to Elliott's role as a delegate in due course. 4 On 9 June 2000 the operations manager in Building 2, Matthew Lay ("Lay"), wrote a memorandum to all 23 employees in the dispersions section. The memorandum advised the employees of Kodak's desire to effect redundancies in the section. The memorandum asked for "expressions of interest from people interested in receiving a redundancy package". It also stated that: "We will select people to continue in the dispersion operation based on the best mix of teamwork, know how, initiative, future potential and attendance. Where there is little difference in the selection criteria between candidates, we will take into account people's expressions of interest." 5 Elliott advised Lay by a note on a returned memorandum that he was not interested in being considered for a redundancy package. Elliott gave evidence that he did not want to work in a section where he would be liable to work night shifts. The only other available jobs for transfer had day/night shift operations. 6 Employees were selected to be made redundant if they received one of the lowest seven scores based on certain selection criteria. The relevant selection criteria were divided into four categories comprising: · Teamwork · Know how · Initiative · Other attributes 7 For current purposes, only the Teamwork category is relevant. The Teamwork category was divided into sub-categories, identified by his Honour as follows: · Good team player · Respects the dignity of others; Models Kodak values · Resolves conflict effectively · [Involvement in] High Performance Work Teams ("HPWT") 8 Similar selection criteria were used by Kodak for redundancy rounds in August 1998 and January 1999. In the 2000 redundancies, reference to "Models Kodak values" and "HPWT" were added. Lay made these changes in consultation with Ken Shannon ("Shannon"), who, at the time, was the supervisor in charge of the dispersions area. Shannon succeeded Scott McGowan ("McGowan") who had been the supervisor between January 1998 and February 2000. Sally Francis, the human resources manager, and John Walshe ("Walshe") approved the changes. Walshe was a director of Kodak and general manager of the relevant division of the company. In his affidavit, Lay explained the basis for these changes as follows: "The changes were made by me for the following reasons: (a) the Kodak high performance work team concept has become more important to the business over time; (b) respecting the dignity of others is only one Kodak value and I thought it important to make reference to all Kodak values…" 9 In the proceedings the "Kodak values" were said to be as follows: · Respect for the dignity of the individual · Integrity · Trust · Credibility · Continuous improvement and personal renewal · Recognition and celebration 10 In respect of the HPWT criterion, Lay gave evidence that the HPWT have been in the making at Kodak for the last five years. Furthermore, there appears to have been acceptance by the union of the introduction of HPWT. Clause 1.1 of the most recent enterprise bargaining agreement entered into by Kodak and the LHMWU says: "This Agreement has been developed by the parties to expressly support the Kodak Manufacturing Division and its employees in achieving the Business Goal of improving its competitive position and supporting employees by providing greater job security and improvement in working conditions. The key platform for achieving this goal has been the division wide thrust for the development and implementation of High Performance Work Teams across the site." (Emphasis added.) 11 As a result of the ranking process, Elliott received a score which rendered him liable to be made redundant and his employment was terminated on 22 June 2000. 12 The gist of the appellants' case is that the role of Elliott following his appointment as a delegate was a cause of his dismissal, this being a breach of s 298K(1), which (relevantly) provides as follows: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; …" 13 Section 298L(1) provides that dismissal of an employee "is for a prohibited reason if it is carried out because the employee…: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or … (n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee…by the industrial association under its rules." 14 It is alleged that the dismissal of Elliott was for a prohibited reason, within the meaning of s 298L(1)(a) of the Act, because Elliott: "(a) was a delegate of the [LHMWU]; or (b) was an officer of the [LHMWU]; or (c) proposed to become a delegate of the [LHMWU]; or (d) proposed to become an officer of the [LHMWU]; or (e) was a member of the [LHMWU]; or for more than one of the reasons referred to in paragraphs (a)-(e)." 15 The primary case for the appellants was that Elliott was dismissed for reasons that included the reason that he was a delegate, but if it were to be held that Elliott was not a delegate, then it was contended that the reason for the dismissal was his membership of the LHMWU.