Gapes v Commercial Bank of Australia Ltd [1979] FCA 9; - FCA 1979 case summary — Zoe

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Gapes v Commercial Bank of Australia Ltd [1979] FCA 9;

[1979] FCA 9

Federal Court of Australia|1979-03-13|Before: Northrop J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

1979-03-13

Before

Northrop J

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

[1]

Gapes v Commercial Bank of Australia Ltd [1979] FCA 9; (1979) 38 FLR 415 (13 March 1979)

[2]

GAPES v. COMMERCIAL BANK OF AUSTRALIA LTD. [1979] FCA 9; (1979) 38 FLR 415

[3]

Conciliation and Arbitration - Breach of award - Failure to pay for work done - Restrictive work ban - Refusal by employee to perform all duties - Legal relations between employer and employee - Contract of employment and award - Whether employee ready, willing and able - Actual performance of work - Variation of contract of employment - Award entitlement to salary - Onus of proof - Conciliation and Arbitration Act 1904 (Cth.), s. 119 - Bank Officials' (Federal) (1963) Award. The claimant attended his place of work but refused to perform some of his duties that his union had selected to be banned in pursuance of a wage campaign. The respondent permitted the claimant to attend and to perform the remainder of his duties but refused to pay the respondent for three days in which he applied selective work bans. The claimant commenced proceedings under s. 119 of the Conciliation and Arbitration Act 1904 by which a penalty was sought to be imposed upon the respondent for breaching the award by not paying the claimant his wages for work done in the course of his employment. Legal relations between the claimant and respondent are determined by (i) the contract of employment in part, and (ii) the award in part. At common law, in an action by an employee for damages for breach of his contract of employment, the employee must prove that he is ready, willing and able to perform his part of the contract. The award does not place a duty on the respondent to make payment of salary to the claimant where the claimant neither performs all his duties nor is ready and willing to perform all his duties. The onus of criminal standard is on the claimant to prove that the respondent has breached the award.

[19]

11. "All officers are therefore to acquaint themselves with these instructions (managers, accountants and other supervisory staff are to facilitate this) as ignorance will not be an acceptable excuse. 1. Officers are required to perform all the duties normally allotted to them in the course of their daily work and any other duties which may be allotted to them in which they have received training or have had sufficient practical experience to enable them to carry out those duties. 2. Should officers participate in industrial action involving absence from work or refusal to perform all or any portion of the duties allotted to them in terms of (1) above, the following will apply: (a) Officers must inform their manager, departmental head, officer in charge or next available senior officer of their intention, or election, to participate in industrial action involving absence from work or refusal to perform all or any portion of their allotted duties in terms of (1) above. (b) In the event of any manager electing to participate in industrial action involving absence from work or refusal to carry out his duties and responsibilities, the State manager's office must be informed immediately such decision is taken by the manager. (c) Officers participating in the industrial action are not permitted to commence or recommence work until they agree to perform all of the duties allotted to them in terms of (1) above. (d) Officers are required to observe security precautions by: (i) handing over all cash, negotiable instruments, keys, confidential material etc., under their control to the manager or next most senior officer not participating in industrial action, or if this is not possible, (ii) locking up all such items under their control, ensuring that the premises are secured in the normal way if last to leave. (e) Officers who have refused to work or are refused permission to work or commence work under circumstances outlined above, are required to record the time of cessation of duty in the appropriate records and immediately leave the bank's premises. Under no circumstances are any attempts to be made by any other member of the bank's staff to forcibly eject officers who refuse to leave the bank's premises. (f) The manager, or in his absence the next available most senior officer, is to ensure that a full diary record is made of any officer's announcement that he refuses to perform, or any officer's election not to perform, all allotted duties. Also, the instructions issued to that officer in consequence and the resulting actions of the officer (e.g. refusal to leave the premises etc.) are to be recorded therein. (g) Should officers, having refused to perform all or any portion of the duties allotted to them in terms of (1) above, and as a result having been refused permission to work or commence work on any day, elect at any time to resume full duties, they will be permitted to sign on and commence work at that time. (h) The bank will exercise its right to refuse to pay remuneration for the full period during which duties in terms of (1) above are not performed. (i) In assessing the appropriate deduction from salary for the period described in (h) above, instructions outlined under "payment of salaries" are to be followed. 3. Officers who continue to perform portion only of their duties or in other ways fail to comply with any of the foregoing procedures and instructions are informed that such action or default on their part in no way negates the bank's rights to refuse permission to work and/or to make the appropriate deduction from salary." (at p419)

[21]

13. On Monday 30th October at a meeting with the manager of the Bairnsdale branch, the claimant told the manager that he would continue to apply the instructions contained in the A.B.E.U. circular. The manager told him that in that event he would not be allowed to work at all. That evening, upon request, the claimant handed to the manager his keys to the bank and the combination to the bank safe. The claimant told the manager that he intended to attend at work on the following day to perform his normal duties apart from those subject to the ban. On Tuesday 31st October the officers of the Bairnsdale branch, other than the claimant, performed all duties allotted to them. The claimant attended for work at his normal starting time of 8.30 a.m. For the first half hour he sat at his desk but did not carry out any of his normal duties. He refused to leave the premises and maintained his attitude of refusing to perform those duties the subject of the ban. At about 9 a.m. he had a telephone conversation with an official of the A.B.E.U. About the same time the manager of the branch had a telephone conversation with a person at the office of the State manager of the respondent. A conversation took place between the claimant and the manager, the substance of which was reduced to writing by the manager and signed by the manager and the claimant as being a true report of the conversation. The report reads: "Interview, 9 a.m., 31st October, 1978. Again discussed work requirements with Mr. R. Gapes who after further reference to union, refused to leave the premises as requested and demanded to be allowed to work in terms of A.B.E.U. bans. He was informed that he may therefore resume duties, but in terms of S.M.L. 27th October, 1978 - State manager's circular letter 15/78, he would not be entitled to be paid as from now, for any period of time he was not prepared to carry out his complete allocated duties in full, as required by bank in terms of his employment." The manager then returned to the claimant his keys to the bank but not the combination to the safe. Apart from the duties the subject of the bans, the claimant carried out all his other duties on Tuesday 31st October, and Wednesday 1st November, but on the second day the combination to the safe was returned to the claimant. (at p420)

[33]

21. At common law in an action by an employee for damages for breach of his contract of employment the employee must prove that he is ready, willing and able to perform his part of the contract: Australian National Airlines Commission v. Robinson [1977] VicRp 8; (1977) VR 87 . In that case, an employee airline pilot, in support of an industrial campaign being conducted by the organization of which he was a member, was prepared to perform his duties under his contract of employment on condition that if the executive of his organization called a stoppage of up to twenty-four hours' duration within the next seven days, he would not perform his duties during the period specified by the executive. The employer refused to allow the pilot to perform his full duties on this condition and no other work was provided. The pilot received no pay for the period no work was provided, and he brought an action claiming that the employer wrongfully and in breach of his contract of employment failed to provide employment for him and claiming damages for breach of contract. The Full Court of the Supreme Court of Victoria (Young C.J., Menhennitt and Griffith JJ.) held that the pilot should not be regarded as having repudiated his contract of employment and that in any event the employer did not regard the contract as being discharged. The court held that in order to succeed the pilot had to prove that he was ready, willing and able to perform his contract of employment. In a joint judgment the court said: "In any action for breach of contract a plaintiff must prove that he is ready, willing and able to perform his part of the bargain and an allegation to that effect used to be pleaded: see Jefferson v. Paskell (1916) 1 KB 57, at p 74 . Now, however, such a pleading or averment is to be implied: see Supreme Court Rules, O. 19, r. 14, and Gates v. Jacobs (1920) 1 Ch 567 . The effect of the rule is that the defendant, if he contends that the plaintiff was not ready, willing or able to perform his part of the contract, must, as was done in this case, set out such allegation in his pleading. Otherwise it will be assumed that the plaintiff is ready, willing and able to perform the contract. But when a defendant does raise by his pleading a question whether the plaintiff in an action for breach of contract was ready or willing to perform the contract, the burden of proving readiness and willingness rests upon the plaintiff" (1977) VR, at p 91 . (at p423)

[50]

37. These authorities are not of great assistance to the facts of the present case. There is no reason why the phrase "absent from duty" appearing in cl. 12 (c) should not be given its ordinary meaning as referring to physical bodily absence from duties. The award makes provision for payment of salary when the employee is not present at his place of duty and not performing his normal duties e.g. cl. 24, "annual leave", and cl. 24 (a) "sick leave". Clause 12 (c) does not confer a right on the employee, it confers a privilege upon an employer and the employer has a discretion to exercise that privilege or not as it so chooses. The award by conferring this privilege on the employer does not, by necessary implication, or by the application of the maxim, expressio unius exclusio alterius, confer a duty or obligation on the employer not to make a deduction of salary from an employee when the employee has no right to that salary. Under his contract of employment the claimant is not entitled to payment of salary for the three days he refused to carry out all his normal duties. The award by cll. 6, 7 and 26 does not confer a right on the claimant to payment of salary for those days, or rather, to be more accurate, the award does not place a duty on the respondent to make payment of salary to the claimant where the claimant neither performs all his duties nor is ready and willing to perform all his duties. Where an employee is absent from duty in the sense of not being present physically at the place where he should be performing his duty, and the employer makes deductions of payment of salary, it is relatively easy for the employer to establish that he has exercised the discretion conferred by cl. 12 (c). Where cl. 12 (c) does not apply, as in this case, the claimant must establish that the employer is bound by the award to pay the salary for the three days. This involves difficult questions of fact and of law. In the present case it involves the claimant establishing that under his contract of employment he was entitled to payment for those three days. Clauses 6, 7, 12 (a) and 26 of the award thereupon impose a duty on the respondent to pay to the claimant the salary determined in accordance with those clauses. The onus is on the claimant to prove that the respondent has committed a breach of the award. The criminal onus aplies, Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (23) but in the present case the result would be the same if the civil onus was applicable. (at p430)