Elliott v Kodak Australasia Pty Ltd

proceedings below 16 The appellants filed affidavits by some eighteen witnesses, including Elliott. Various documents are annexed to these affidavits. Various other documents were separately tendered. A number of the appellants' witnesses were cross-examined. At the conclusion of the appellants' case the trial judge permitted counsel for Kodak to put a submission that there was no case to answer because there was no evidence that Elliott had been a delegate of the LHMWU, appointed in accordance with the rules of that organisation. His Honour rejected that submission. Kodak then went into evidence, reading affidavits of some seven witnesses, all of whom were cross-examined. The hearing, including closing addresses, occupied ten days. 17 The trial judge, having found that Elliott was a delegate for the purposes of s 298L(1)(a) of the Act (to which we shall return), moved to consider the onus which lay upon Kodak by reason of s 298V of the Act, which provides: "298V Proof not required of the reason for, or the intention of, conduct If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." 18 The trial judge, while retaining reservations about the subjectivity of some of the redundancy selection criteria, was satisfied that they were not inherently biased against Elliott in his role as a union delegate, or union delegates in general. There is no challenge to that finding. The trial judge then considered whether Kodak had proved that Elliott was not selected for redundancy because he was a union delegate by allocating to him low points under the selection criteria. His Honour described this as the decision-making process. His Honour considered the evidence of the witnesses called for Kodak. He dealt in particular with the evidence of Lay, Shannon, Walshe and McGowan as he did not consider the evidence of the other witnesses to be relevant to establishing what occurred in the decision-making process. Having done so, his Honour said: "84 The evidence as a whole from Kodak witnesses presented a compelling picture of Kodak being an employer which continues its historical support of the right of its workforce to collectively bargain and the right of union delegates to represent the workforce, with the expectation that such delegates will not act disrespectfully to management and vice versa. An enlightened modern trade union movement could not quibble with that approach. In fact, other evidence before the Court reveals a co-operative approach between other union delegates on site and Kodak management, including the principal delegate for the [LHMWU] on site, Mr Vasilakis. As noted above, in recording this view I am cognisant of the fact that subjective redundancy criteria is open to abuse. However, I can only act on evidence, and the evidence before me in this case together with my observation of those who gave evidence about how they conducted the redundancy process, leads me to believe that the process as it was applied in June 2000 was not utilised to target Mr Elliott. 2.5 THE APPLICANTS' EVIDENCE 85 The evidence adduced by the applicants, including evidence given by Mr Elliott, does not bear upon whether Kodak has discharged its onus under s298V of the Act. If the evidence of Kodak witnesses had been improbable with respect to Kodak's reasons for dismissing Mr Elliott one could legitimately have regard to the applicants' evidence to highlight that improbability. However for reasons earlier given that evidence was not improbable. 86 It is not the function of the Court to act as a Royal Commission into the activities of Mr Elliott since 1998, industrial or otherwise. I have no reason to doubt that Mr Elliott considers that he was a thorn in the side of management and I have no reason to doubt that he suspects that he was targeted for dismissal. However the objective evidence points to the contrary position. I mean no disrespect to Mr Elliott or the other witnesses called by the applicants in not making specific findings on each issue they raised. Whether someone was wrong to write a rude note, whether Mr Elliott swore or not, or whether Mr Elliott shouted or not is not germane to whether Kodak has discharged its onus under s298V of the Act. Similar remarks may be made about the significance or otherwise of Mr Elliott's role in representing [LHMWU] members on industrial issues (for example the introduction of new solvents and the provision of a female toilet)." 19 The participants in the decision-making process were Lay, Shannon and Walshe, although there is some debate about the role of Walshe. In considering the evidence of each of these persons, the trial judge accepted the evidence that they were not influenced in the decision they made by Elliott's position as a delegate. There is a separate point concerning the failure to cross-examine Walshe as to that aspect of his evidence, to which we shall return. His Honour rejected the submission that Elliott was dismissed because he was a member of the LHMWU. His Honour concluded that Kodak had not breached s 298K (when read with s 298L) of the Act when it dismissed Elliott, and also dismissed the claims in the accrued jurisdiction. There is no complaint about the latter aspect of the matter on this appeal.

issues on appeal 20 Elliott and the LHMWU submit that the trial judge was wrong to find that the evidence adduced by them, including evidence given by Elliott, did not bear upon whether Kodak had discharged the onus imposed on it by s 298V of the Act and that his Honour should have taken into account the evidence called by the appellants in determining whether or not Kodak had discharged that onus. A subsidiary point is raised as to the effect of failure to cross-examine witnesses. The appellants also put what amounts to a fall-back submission that if Elliott was not a delegate, he was a member (and an active member) of the LHMWU, which was the reason for his dismissal. 21 By notice of contention, Kodak says that his Honour erred in finding that Elliott was a delegate of the LHMWU.

delegate? 22 It is appropriate to consider first, whether the notice of contention has been made out. 23 The point taken by Kodak in its submissions is that for a person to be a delegate within the meaning of s 298L(1)(a), the delegate must be validly appointed pursuant to the rules of the union. The trial judge rejected that argument. The appellants support that decision but submit that, in any event, the findings of fact made by the trial judge necessarily lead to the conclusion that Elliott was a validly appointed delegate of the LHMWU. 24 In our opinion, the appellants' contention is plainly correct. The starting point is that there is no definition of the term "delegate" in the Act. It consequently must bear its ordinary meaning. In Cuevas v Freeman Motors (1975) 8 ALR 321 ("Cuevas") Smithers and Evatt JJ said (at 325): "The expression 'delegate' in its ordinary meaning comprehends a person sent or deputed to act for or represent another or others…" In other words, the delegate is an agent of the union. This is consistent with the definition of "officer" in s 298B of the Act which, in relation to an industrial association, includes: "…a delegate or other representative of the association…" 25 Agency or delegation to such a person is a question of fact capable of proof in various ways. In April 1999 Elliott was elected as delegate for the dispersions section by members of the LHMWU in Building 2 to represent their interests as union members. Others were then elected as delegates for other sections in the same building. His Honour also found that, after becoming a delegate, Elliott was involved in several industrial issues that affected LHMWU members in the dispersions section. His Honour held that, in the course of carrying out his responsibilities as a delegate, Elliott was involved in many meetings with management and that he had been an active delegate who, in the issues in which he had been involved as a negotiator, had considerable success on behalf of the members. His Honour said that there was no dispute that Elliott performed the duties of a union delegate and was recognised by Kodak management as the LHMWU delegate for the dispersions section in Building 2. Counsel for Elliott referred on the appeal to various passages from the evidence which would establish that the responsible officials of the LHMWU were aware of the appointment of Elliott as a delegate and aware of his activities, on behalf of the union, in representing workers on the shop floor to the employer. None of this is in any real dispute. Kodak's point is that there was no evidence that Elliott was formally appointed as a delegate within any requirement contained in the rules of the LHMWU and, indeed, those rules were not tendered by the appellants. 26 In Cuevas Smithers and Evatt JJ said (at 325): "This evidence may be considered in the light of the proposition that 'the existence of a particular relationship may be proved by parol evidence though the terms which govern such relationship may be in writing['] (see Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 at 75; 26 ALR 225 at 228). And there is no reason to doubt the dictum of Spicer CJ in Murphy v Applebee (1959) 3 FLR 361 at 363, that the oath of a person that he was a member at a particular time is prima facie evidence of membership. It is pointed out that the taking of certain of the procedural steps laid down by the union rules for the acquisition of membership was not expressly dealt with in the evidence. But nothing in the evidence suggests that those steps were not taken and there is much to suggest that they must have been. Accordingly, on the evidence of membership, we are satisfied beyond reasonable doubt that at all the material times the informant was a member of the union. Union membership was, of course, a condition of the informant occupying the position of shop steward. On the basis of his being a union member there was no specific challenge made on the defendant's behalf to his election as a shop steward. We are satisfied that he was duly elected as shop steward pursuant to the rules and was a shop steward of the union at all material times." (Emphasis added.) Their Honours went on to hold that a shop steward was a delegate within the ordinary meaning of that term. This approach is consistent with that of Windeyer J and Owen J in Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 (particularly at 576-577 and 588-589); see also Reynolds Bowstead & Reynolds on Agency 16th ed. Sweet & Maxwell, 1996 at 51‑55. 27 We do not see any escape from the proposition that the only proper inference to be drawn from the evidence tendered was that Elliott had been properly appointed as a delegate of the union pursuant to its rules. Kodak did not tender any evidence to the contrary. 28 This makes it unnecessary to consider whether a person needs to be validly appointed, according to the rules of the union, as a delegate to come within s 298L(1)(a). The notice of contention must be rejected.

purpose? 29 It was submitted for the appellants that the trial judge fell into error in not considering the evidence called on their behalf when making findings about the purpose of Kodak, as set out in [85] and [86] of his Honour's reasons, recited above. Counsel for Kodak sought to support the reasoning of his Honour by reference to the terms of s 298V and a passage from the judgment of Gibbs J in General Motors-Holden's Pty Ltd v Bowling (1977) 51 ALJR 235, where his Honour said (at 239): "If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged." (Emphasis added). 30 It was submitted by Kodak that determination of the reason or reasons for an employer's termination of the employment of an employee is a question of fact, and that the best evidence of that fact or facts was the evidence of the employees of Kodak who were directly involved in the decision to terminate. The reason for termination is peculiarly within the knowledge of the employer. 31 All these submissions may be accepted as far as they go. They do not, however, grapple with the problem that, in deciding whether to accept or reject the evidence of the witnesses called by Kodak, his Honour did not weigh up the evidence led on behalf of the appellants. This is a similar type of error to that identified by the High Court in State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; 160 ALR 588, in a case where the trial judge had rejected the plaintiff's case because he formed an unfavourable view of the credit of a witness based upon cross-examination, without taking into account a body of other evidence which was not challenged, together with the failure of the defendant to call evidence. (See particularly: Gaudron, Gummow and Hayne JJ at [62] - [64].) 32 The problem referred to above is illustrated by a passage that occurs in [86] of his Honour's reasons. His Honour accepted that Lay gave Elliott a low score in relation to the criteria of "Good team player" and "Resolves conflict effectively" by having regard to (inter alia) Elliott's alleged shouting at Lay on 10 May 2000 that Lay could not be trusted. In [86] his Honour said: "…whether Mr Elliott shouted or not is not germane to whether Kodak has discharged its onus under s298V of the Act…" If it were concluded on the whole of the evidence that the incident upon which Lay purported to rely in making the assessment did not happen, either at all or as he described it, that circumstance would at least be relevant to an assessment of the veracity of Lay's evidence as to his reason for the ranking. One possible explanation in those circumstances would be that Lay had fabricated incidents to justify a low ranking which was, in fact, based upon the prohibited reason. The point, however, goes beyond an individual instance. The question at issue was the bona fides of the ranking of Elliott. This cannot be judged in isolation from either the conduct of Elliott which was relied upon for the ranking, or the history of Elliott's employment by Kodak, which covered a period of 18 years and included promotions onmerit. After all, the ranking was designed to assess the value of the various employees to Kodak. It is an issue of broad assessment in which impression and even intuition may play a part. If, on the totality of the evidence, it may be inferred that Elliott became regarded by Kodak as less valuable as an employee after he became an active union delegate, such an inference could be taken into account in determining whether, on the balance of probabilities, Kodak had established that its reasons for dismissing Elliott did not include the reason that Elliott was a union delegate. 33 Counsel for Kodak referred to various passages in the judgment where the trial judge considered the evidence of the witnesses called for Kodak and submitted that, in substance, his Honour had, by accepting those witnesses, resolved any differences in their favour. We reject this submission as it is in the teeth of the expressed reasons of his Honour in [85] and [86]. 34 Counsel for Kodak then submitted that the matter should be resolved in its favour in any event, because of a finding his Honour had made in [70] of his reasons that none of the matters about which there was dispute, properly characterised, involved Elliott in his role as a delegate. This submission cannot be accepted for at least two reasons. The first is that it is hardly helpful (or relevant) to characterise conduct in a hypothetical vacuum rather than find what occurred and then characterise it. The second, and more fundamental, problem is that, even if the characterisation is correct, it does not meet the point. Lay was giving examples of Elliott's conduct which justified the ranking to support his contention that Elliott's role as a delegate was not taken into account. The hypothesis adverse to Kodak was that Lay was truly influenced by Elliott's role as a delegate and was using the other alleged incidents as a pretext. Under such an hypothesis, it would not be surprising that the conduct alleged to be relied upon would not be conduct engaged in as a delegate. 35 While it is clear that his Honour formed a favourable impression of the respondent's witnesses, which continued after hearing from the appellants' witnesses, it cannot be said that there is no reasonable chance that, had his Honour grappled with the conflicts between the witnesses about particular matters, his Honour's acceptance of the respondent's witnesses as truthful and reliable would have altered. 36 Counsel for Kodak submitted that the manner in which the trial judge dealt with the evidence of Walshe was, in any event, decisive in his client's favour. His Honour accepted that Walshe's final approval was necessary to effect the termination that flowed from the redundancy process, and that his role was to check and, if necessary, revise the score which resulted from the process. Walshe gave the following evidence: "Mr Elliott's involvement in the enterprise bargaining negotiations and other industrial issues at the plant in no way influenced or motivated my views about his assessment against the criteria by Mr Lay and Mr Shannon." As to this, His Honour said: "Mr Walshe was not cross-examined on that aspect of his evidence. Having regard to the evidence of Mr Lay and Mr Shannon referred to above and to the evidence of Mr McGowan which I shall shortly deal with, I do not consider the above evidence of Mr Walshe to be improbable. Therefore, I consider the fact that Mr Walshe was not cross-examined on that evidence to be a critical factor in support of Kodak's discharge of its onus under s298V. (Compare Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 at [23] to [30], where certain evidence given by a Mr Cartwright was recorded as having "a degree of improbability" about it, but no cross-examination occurred on that aspect of his evidence and no findings were made by the primary judge with respect to s298L(1) of the Act.)…" This submission was linked with the proposition that the difficulty arising out of the evidence of Lay because of the disputed items is of no ultimate significance because Shannon, who participated in the ranking, was not influenced by the same considerations. 37 The first difficulty with this argument is that Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe's power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe. 38 Even this analysis takes too narrow a view of the issue. The mere fact that there was no sharp question of fact as to any material upon which Shannon relied to form his assessment, does not mean that evidence as to the actual behaviour of the applicant is not relevant to assessing the bona fides of the evidence given by Shannon. It may be that, in the end, consideration of that evidence would cast little doubt upon the evidence of Shannon. That, however, is not the test. The difficulty is illustrated by the fact that the trial judge took into account, in favour of Kodak, the evidence of McGowan as to his view of Elliott, based upon Elliott's character and conduct. His Honour was plainly entitled to take this into account as bearing upon the bona fides of the other employees, but McGowan was not a decision-maker and his views were not even communicated to Walshe. In effect, he paints a picture consistent with that said to be observed by Lay, Shannon and Walshe. What, however, of evidence which tends in the other direction, given by Elliott and a number of witnesses called by him? The trial judge is, of course, entitled to accept the evidence of the Kodak decision-makers once he took into consideration evidence given by the other witnesses. In the ordinary way, this may or may not involve accepting or rejecting, in whole or in part, evidence of those witnesses, and may involve reconciling all or part of that evidence. This process does not necessitate resolving every conflict which emerged on the evidence, or dealing with every piece of evidence which was tendered. It is necessary, however, to consider the whole of the evidence and deal with it in a conventional fashion.

member 39 As the position of Elliott as a delegate has been confirmed, there is no need to consider the question qua member on that account. We should say that, in any event, we can see no basis for an attack upon the finding that there was no breach of s 298K by virtue of any prohibited reason having a relationship with membership of the union. The Coburg plant had been fully unionised for many years, with no evidence, either in this case or other cases, of victimisation because of union membership.

orders 40 The appeal must be allowed. The judgment and orders below will be set aside and the matter remitted to the trial judge for reconsideration in the light of these reasons. It was not contended by the appellants that this would be an inappropriate outcome. 41 Section 347 of the Act prohibits orders for costs in a proceeding in a matter arising under the Act, including an appeal, unless the proceeding was instituted vexatiously or without reasonable cause. It was not submitted that either exception applied in this case. I certify that the preceding forty‑one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court .

Associate: Dated: 20 December 2001 Counsel for the Appellant: WL Friend; MA Irving

Solicitor for the Respondent: Blake Dawson Waldron