Musgrove, Clive James v Murrayland Fruit Juices Pty Ltd [1980] FCA 114

Please add enclosed transcript to transcript already supplied.

5 of the Conciliation and Arbitration Act 1904 that it did dismiss the informant, Clive James Musgrove, by reason of the circumstance that (a) he was a member of an organisation, namely the Food Preservers Union of Australia, an organisation of employees registered under the Conciliation and Arbitration Act 1904, and the Victorian Branch thereof, or (b) he was entitled to the benefits of an award, namely the Food Preservers Award 1973, expressed to be binding upon, amongst other persons, Murrayland Fruit Juices Pty Ltd and the Food Preservers Union of Australia and the members thereof or all of them.

The dismissal took place on 27 November 1978 at the premises of the defendant at Mildura. The defendant had employed the informant, Mr Musgrove, for slightly less than two years at that stage, mainly in the capacity of a forklift driver but Mr Musgrove had various other duties to perform and from time to time he assisted in other aspects of the work being carried on in the factory.

The business of the factory was the receipt of oranges in large quantities, the squeezing or squashing of those oranges by means of extractors, the juice being then pumped into evaporators where much of the moisture was taken out of the juice, and the juice was reduced to a concentrate. That concentrate was placed into drums which were transported on the forklift from the building in which the extractors and evaporators were, toa freezing room some 20 or 30 yards away.

The drums in the ordinary course of the procedure should have been covered by a secure lid before being stacked in the freezing chamber. They would sit in the freezing chamber until required to be sent by the defendant to some customer who would buy the concentrate in the drums. There were at this factory some eight employees of various kinds who all contributed to the general carrying out of the procedures mentioned above.

The informant from the time of his employment had always received a wage which was $20 above the strict award rate save that he was entitled to an amount over that strict rate for wor: performed in the freezer whichydid perform in most weeks. There is no doubt that the defendant was bound by the award, that the informant 1s a member and has at all tames been amember of the Food Preservers Union of Australia, and there are no technical reascns cy tne informant Should not succeed proviced that the court at tre end

of the case 1s satisfied that the reason for the dismissal was the circumstance that the informant was a member of the organisation or that he was entitled to the benefits of the award.

It seems that by the beginning of November 1979 Mr Carazza has become dissatisfied with various aspects of the informant's work. In substance he said that it was mainly the attitude of the informant which concerned him, in that he omitted to carry out certain functions which would normally fall to his duty, or would delay in perfcrming them, or would do them in a slip-shod manner, and indicated by his general atitutde that he had lost interest in his job.

Being of this mind Mr Carazza had a formal discussion with the anformant and explained to him that he was dissatisfied in these various ways and that he expected improved performance and improved attitude. This was obviously quite a serious discussion, so serious that Mr Musgrove the, informant was so upset that he had to take the afternoon off because it upset him.

It 1s perfectly clear, therefore, that without doubt in Mr Carazza's mind, there was serious complaint with the performance of work by the informant. At the same time it seems that there was similar disquiet in relation to this matter on the part of Mr Goonan, who was in effect factory manager under Mr Carazza, and Mr Goonan obviously by this stage had ecquired an antipathy towards Mr Musgrove.

Matters went along like this for some three weeks, but on 26 November Mr Musgrove was requested to change his position in the company from forklift driver to attendant on the extractors. He was asked to come to work at 7 o'clock each morning. He agreed to this on condition that he received his Lunch-time break at 12 o'clock, it being well known in the organisation that he had a standing arrangement to meet his wife at about that time, and for that purpose needed to go at 12. This was agreed to ane on the foJlowing day Mr Musgrove duly arrived at 7 o'clock and he worked until 12 o'clock.

When it was getting near 12 o'clock he reminded Mr Goonan of the need to replace him at 12 o'clock and Mr Goonan indicated he wes taking steps to comply with that. A little later, about $ minutes or 10 minutes to 12 o'clock, Mr Musgrove spcke again,eni tter at 2 minutes to 12 when no replacerent havirg arrived,

Mr Musgrove decided to take matters into his own hands, switched off the extractors, and announced to Mr Goonan that he was taking his luncn-time.

It appears that Mr Goonan did explain to Mr Musgrove that the man, one Steve Condar, who was the proposed stand-in for the period of Musgrove's lunch, was engaged in negotiaticns with a commercial traveller and until he had finished that he would net be available. Undeterred by this, Mr Musgrove went on and left the premises.

This conduct upset Mr Goonan a great deal. He felt he had been humiliated in the face of otter employees and he regarded it as the last straw of the long processs of incidents, more or less sé€rious, which had irritated him in relation to Mr Musgrove's conduct over the last few months. He told Mr Carazza that he regarded it as so serious that Mr Musarove would have to be dismissed, and indeed, said ut was either he or Musgrove wlio would have to leave.

Mr Carazza took the view that the circumstances justified dismissal and he instructed Mr Godnan to bring this about, and that afteznoon Mr Musgrove was duly dismissed.

. It appears that there 1s a4 clause in the award, clause 19(a), which it 1s said entitled Mr Muscrave to take his half-hour lunch at 12 o'clock on this day because according to the award clause 149({a) states that:

Subject to the provisions of this clause, no day work or day shift employees shall work for more than five hours without a break for

a meal, which break shall be 30 minutes, except where employers and the majority of employees covered by this award agree te a break of nor more than one hour nor less than 30 minutes.

that this clause js introduced by the words "subject

to the provisions of this clause" and an interesting argument has been submztted to me by reason of the provisions .1n followirg sub-clauses - in clause 19, and in particular sub-clause (e) (1), clause 19(a) should be interpreted as permitting the employer to require the employee to work without a meal break, notwithstanding that he has worked for five hours without a meal break previously, in certain circumstances or indeed absolutely, an@ that if that be so then the court should infer

that on this occasion the defendant did require Mr Musgrove to continue to work notwithstanding that the five hours was up and notwithstanding that he had not had a meal break, the situation being according to the arguments submitted by Dr Jessup, that the consequence was

that the lost meal break would be made up by the penalties provided for in clause (e) (1). Mr Cooney

has argued that clause (e) (1) has to fit itself into

the general prohibition in clause 19(a) requiring that

meal break and that in truth and in fact it does fit

• I do not find it necessary to decide whether or not on this particular day the prosecutcr was entitled pursuant to clause 19(a) to defy the request of his employer that he continue to work because I am satisfied that even if that be so the facts of this case are such that I am satisfied that the defendant, in particular, Mr Carazza, did not dismiss the employee by reason either of the fact that he was a member of the union or that he was entitled to the benefit of clause 19(a) or of any other provision of the award. The critical question 1s whether the respondent dismissed the incident by reason of the circumstance that he was entitled to the benefit of the award. I may sey at the outset that I am thoroughly satisfied that there was no question of him being dismissed by reason of the fact he was a member of the union. So the critical question is whether the circumstance that the applicant

"was entitled to some particular benefit of the award

and, of course, 19{a) 1s relied upon, was an cperable

in the mind of the defendant which influenced the defendant to dismiss the applicant wher it did. The defendant

and that the applicant was entitled to certain benefits thereunder. The defendant did not know wnat some of

those benefits were but the defendant had no objection

to the applicant having those benefits whatever they were.

As to these benefits that they did not know of ané did not know the nature and extent cf, they were not influenced by thcse factors to take action against

the applicant. The situation was that having become unfavourably inclined to the informant on various indefinite grounds, almost of a personality incompatability, the smouldering hostility flared

It so happened that the applicant was entitled to his meal break at the time at which he took 1t. There

is no evidence he knew that but that is, I think, irrelevant. Certainly the defendant did not know it. It may be said that the respondent cught to have known and that ignorance of the law is no excuse, but the question is as to the reason which actuated th> defendant in taking the action that it did and that anvolved

not what the defedant ought to have known or what ought to have been in its manager's mind but what actually was in their minds. What circumstances

were in their minds when they dismissed him? They could not act by circumstances of which they had

I think that this last statement 1s supported by the reference to my own remarks in Woed v The City of Melbourne Corporation in 26 Australian Law Reports at pages 438, 447 and 448 and, of course in Roberts v General Motors ~ Holdens' Employees' Canteen Society Inc (1975-76) 25 FLR 415, and various other cases decided in this court in recent years.

When one looks at what the circumstances were an the mind of Mr Carazza which influenced hur to take action against Mr Musgrove we find they can be easily summarised by saying that he haa an established hostility and that there had been what appeared to him a high-handed act in the turning off of the extractors for the purpose of taking lunch and the defiance to Mr Goonan when Mr Goonan said he was not to go to lunch.

The existence of the award and the informants entitlements thereunder were just not in the mind of the defendant. To my mind 1t cannot be said that aman has acted by reference to a particular circumstance when he knew nothing about it.

For Mr Musgrove it was argued that in truth and in fact it ought to be found that Mr Carazza was dismissed by Mr Musgrove by reason of the circumstance that Mr Musgrove was entitled to a benefit under the award. The matter was put as follows, that it is fair to say that the reason which influenced Mr Carazza to take action against the prosecutor was the commission by the informant of an act, namely, going off to lunch, which was in fact and in law one which under the award he was entitled to commit and that in that case the relevant circumstance in the mind of Mr Carazza was the taking by the informant of an entitlement under the award. Accordingly, the dismissal was by reason of that entitlement, and thus, by reason of an entitlement under the award, and thereby the offence under section 5 was committed.

I am unable to accept this submission. There 1s a sense in which it is valid but I do not think it is the sense which 1s relevant to sub-section 5(1) (b). Section 5 1s directed to the protection of the Arbitration and Conciliation system created py the Conciliation and Arbitration Act and that system works by the making of awards which bind the various parties. Any attack upon an award by an employer which 1s consciously directed to an award must be in crave danger of offending sub-section (b) of section 5 but where aman acts in complete ignorance of the circumstance that the matter of dispute between himself and his employee 1s something in respect of which the employee has the award on his side, and completes his action remaining in that state of ignorance, I cannot think that it can be said that on the proper construction of section 5(b) that he has offended.

It 1S a criminal section; 1t 1s therefore te he read according to the natural meaning of the worcs. The natural meaning of the words imply that the a1snissal has taken place because in the mind of the emplicyer

the employee was entitled to something urder tre award. There 1s no such circumstance in this case.

I was referred to a number of cases in which circumstances something of the same nature but certainly not strictly the same were referred to including Grandler v Cunich in 1928, 27 New South Wales Arbitration Reports page 45 and Klanjscek v Silver 1958 4 FLR page 182. Those cases appear to me to support the view that I have taken above.

I think also the views expressed in the judgment in this court in Roberts' case supra also support it.

I have, of course, been quite aware that the onus of proof in relation to the findings that 1 have made have been on the defendant, and as to that I have to say that I do not say anvbody has made consciously inaccurate statements in this case, but I am perfectly satisfied with the general accuracy of what Mr Carazza said.

In substance, I accept his evidence and I really see no reason for doubting him. So far as the defendant's general attitude to the Award and the Act 1s concerned it 1s perfectly clear that the company exerted no vigour in acquainting itself as to what its duty was under the award in detail, but it is equally clear that it accepted its duties under the award, whatever they might be. The company was in peril of breaking the award, cbviously from that. Whether it broke the award in dismissing Mr Musgrove in the way 1t did is not a matter before me, nor is this case a matter of a wrongful dismissal case in any way.

The narrow enquiry in this case is whether Mr Carazza took action because of the circumstances that Musgrove was entitled to some benefit under the award, be 1t 19(a) or any other benefit, and the answer to that must be that Mr Carazza did no such thing. He did not know about the provision, He accepted all provisions he did know about, and 1f one can cast one's eyes on to the probapility, had he known, one must believe that, had he known that this man had an entitlement, he certainly would not have sacked him in the circumstances in which he did. Accordingly, in my opinion, this summons must be dismissed.

BETWEEN : MELBOURNE HOME OF FORD PTY.LTD., COL PAIGE FORD PTY.LYD., SLEYMAN FORD PIY.LID., HOLMESFORD PTY.LTD., DUHIG FORD PTY.LTD., GLEN HOLDINGS (VTCTORIA) PTY.LTD,, RUTELL FORD PTY,LTD., ALAN COFFEY MOTORS (RINGWOOD) PTY.LTMITED, ALAN COFFEY MOTORS (DANDENONG) PTY.LiMITLD, COOPER FORD PTY.LTD., NOW OAKLZTGiI MOTORS

PROPRIETARY LIMITED, BAYFORD MOTORS TTY. LTD. , KEN FOSTER MOTORS PTY.LTD.,

B.S. STILLWGLL FORD PTY.LTD. , ETHERIDGE PROPRIETARY LIMITED, BRIAN WOOD FOR) PROPRIE.ARY LIMITED, COURTNEY & PATTORSON MOTORS PROPRIETARY LIMITLD, MORLmY FORD PTY.LTD., FRANZ BIRD PROPRITUARY LUIMIED, LYON BROS.MOTORS PROPRIDTARY LIMITED

AND : TRADE PRACTICES COMMISSION AND RONAID MOORE BANNERILAN

p.17 last line, after the word "information" insert "wr Drusice

p.18 first line, after the word "than" insert "informaticn on",