Stapelton, D. v. African Lion Safari Pty Ltd [1982] FCA 162

Federal Court of Australia|1982-06-29|Before: Ellicott J

Industrial law - Dismissal of employee - Whether employee member or delegate of an organization - Wnether employee entitled to the benefit of an

award - Whether purported oral variation of award took effect prior to signing of formal order - Whether employee seeking better industrial conditions - Employee asked to be delegate by union official - Whether employee a delegate of the organization pursuant to the Rules - Whether employee's

Order for Costs - Costs - Federal Court's power to award costs in proceedings arising under Conciliation and Arbitration Act - Whether Federal Court limited to power under Federal Court of Australia Act - Proceedings not instituted vexatiously or without reasonable cause.

Conciliation and Arbitration Act 1904 ss. 197A; 118A(1); ; 110; 53 40

DAMIEN STAPELTON v. AFRICAN LION SAFARI PTY. LIMITED

OF AUSTRALIA No. N.S.W. 36 of 1981 N.S.W. DISTRICT REGISTRY ;

AFRICAN LION SAFART PTY. LIMITED (Defendant ) ORDER

JUDGE MAKING ORDER: Ellicott J. DATE OF ORDER: 7 April 1982 WHERE MADE: Sydney

Damien Stapleton ("the informant"), as Federal Secretary of the Australian Theatrical and Amusement Employees' Association ("A.T.A.E.A.") has instituted proceedings pursuant to s.5 of the Conciliation and Arbitration Act, 1904 ("the Act") against African Lion Safari Pty. Limited ("the defendant") in relation to the dismissal of its former employee, Brian Tyrrell. He alleges that, on or about 16 June 1981, the defendant in breach of s.5 dismissed Mr Tyrrell by reason of the circumstances that he was a member of an organisation, i.e. the A.T.A.E.A., that he was entitled to the benefit of an industrial award, that he was a member of an

organisation seeking better industrial conditions and

was dissatisfied with his conditions, and that,being a member and delegate of an organisation ,did things which were lawful for the purpose of furthering and protecting the industrial interestsof the organisation and its members, being acts and things within the limit of the

authority expressly conferred on him by the organisation

in accordance with the rules of the organisation,

"5.(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his

prejudice, by reason of the circumstances that the employee -

(a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or

(b) is entitled to the benefit of an industrial agreement or an award; or

(ad) being a member of an organization which is seeking better industrial conditions, is dissatisfied with his conditions; or

(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

(4) In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not

actuated by that reason or taken with that intent."

It is clearly established that, as a result of s.5(4) of the Act, the onus is placed upon the informant to prove beyond reasonable doubt all the elements constituting

the offence except the reason or reasons for the defendant's ~_ action. It is for the defendant to prove, on the balance of probabilities, that it did not dismiss Mr Tyrrell for the reasons alleged. (cf. s5(4) of the Act and also see Atkins v. Kirkstall-Repco (1957) 3 F.L.R. 439, Roberts v. General Motors-Holden's Employees' Canteen Society Inc. (1976) 25 F.L.R. 415, Heidt v. Chrysler Australia Ltd. (1976) 13 A.L.R. 365, Jones v. Thiess Bros. Pty. Ltd. (1977) 15 A.L.R. 501, David John Lewis v. Qantas Airways Limited, Morling J. Federal Court of Australia, 22 September 1981 - unreported, Desmond

William Childs v. Metropolitan Transport Trust, Smithers J. Federal Court of Australia, 9 December 1981 - unreported).

The defendant company is the operator of the African Lion Safari at Warragamba. It is an amusement centre with primarily an animal park through which paying members of the public may drive their vehicles and view wild animals from the safety of their vehicles. There is a lion reserve and a tiger reserve. The centre also has other attractions such as a zoo, dolphinarium, a section for farm animals, train rides etc. and a restaurant. The centre has been in operation for thirteen

years. The defendant operates similar parks in other states,

Brian Tyrrell, prior to working in Australia, had been employed at a London dolphinarium by an associated enterprise, Pleasurama Amusement Parks. The London operation was closing down and a vacancy was offered to him in Australia,at the African Lion Safari at Warragamba, which he accepted,

until early 1974 when he resigned. He was re-employed in

August 1974 but resigned again prior to the ensuing : Christmas. He was again employed at the Safari from gust after Easter 1975 and remained so employed until

he was dismissed on 16 June 1981. During these periods of employment, Mr Tyrrell assisted contractors employed to build the dolphinarium, undertook general maintenance work, operated filtration plant and at times acted as a park warden.

Mr Tyrrell did not belong to a Union until 15 December 1980. Prior to that, however, A.T.A.E.A. had become interested in extending its membership if possible to cover employees of the defendant.

In June 1980 a letter of demand attaching a log of claims was served by A.T.A.E.A. on the defendant and on 12 August 1980 Robinson J., a Deputy President of the Australian Conciliation and Arbitration Commission found that an industrial dispute existed to which A.T.A.E.A.,

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On 24 November 1980 Miss Pikette and the informant,as officers of A.T.A.E.A.,visited the park to have a look at the operations as they applied and to ascertain just what interest A.T.A.E.A. would have in the park. On this visit they discussed matters with Mr Stafford Bullen, the managing director of the defendant 'and a thorough inspection took place. Mr Bullen indicated (inter alia) that,in his view, when unions came into some

establishments and wages were increased, the business

became unviable. He said he didn't want this to happen

at Warragamba and that if he was forced to pay increased rates of pay he would consider closing the park. He could see no advantage to any employee in the park being covered by a union.

In December 1980 Mr Tyrrell and three other employees went to Oberon to a house warming party. They were expected back at work the next day, Sunday 14th, but did not return, nor did they attempt to ring to explain their absence. On their return disciplinary action was taken. One employee was dismissed and the others were suspended. Mr Tyrrell was suspended from his employment for three days but subsequently was paid in respect of two of them.

On 15 December 1980,because of their suspension, Mr Tyrrell contacted the Union. He asked whether their suspension, as well as their wages and other conditions

On the same day Mr Tyrrell filled in an application form to become a member of A.T.A.E.A. and paid to it a joining fee and subscription. He was accepted as a member thereof on 17 December 1980.

As a result of this contact with the union, arrangements were made between the informant and Mr Tyrrell for a meeting to be called of interested "staff at the park. The meeting was held in January 1981 at the Warragamba Town Hall and was attended by some- - - eight members. "At it the type of work, rates of pay and the general safety in the park were discussed.

Following this meeting Mr Tyrrell was asked py other members of the staff to approach Mr Eric Dzenis, the general manager of the park, to put forward a log of complaints and ask for a pay rise. He saw Mr Dzenis and requested an increase from $3.34 to $5.50 an hour in pay. He also complained about the lack of security and the employment of school children. During the same conversation he told Mr Dzenis that he was a member of the union. Mr Tyrrell says that at this conversation Mr Dzenis said that if they got a pay rise Mr Tyrrell's job would probably | be on the line to which he replied "I expect that".

Some days after this conversation a meeting of staff was called by Mr Stafford Bullen, the managing director, at a restaurant on the defendant's premises. Approximately 20 employees attended this meeting. Mr Bullen indicated to them that the company couldn't afford a pay rise and that if the staff attempted through

a union or any other way to bring about a pay rise the

park could close. Mr Tyrreil alleges he said that he was running the operation and if they didn't like it they could go elsewhere.

On 18 May 1981 A.T.A.E.A. applied to Mr Commissioner Heffernan to make a"roping-in"award so as to have the Theatrical Employees (Recreational Complex and Theme Park)Award 1979 apply (anter alia) "to the defendant. The Commissioner granted the application. He said he proposed to vary the award to include the- To- defendant in the List of respondents. He said:-

the effect of roping (African Lion Safar1) into the award and the roping in decision will apply from the first pay period to commence on or after today's date."

Mr Tyrrell was informed of this decision on the day it was given and he, in turn, that day, informed Mr Dzenis.

About a week or so after this a meeting took place between officers of A.T.A.E.A. and employees of the defendant including Mr Tyrrell. At this meeting he was asked if he would be prepared to be the union delegate and he agreed. The union subsequently sent him a receipt book and application forms. He approached other members of the staff and asked them if they wanted to join the union. Between 6 and 10 June (inclusive) nine employees indicated they did and he accepted joining fees from them. Th1s money was then sent by him to the A,T.A.E.A. office.

to be a delegate,and before his dismissal, Mr Tyrrell

informed Mr Dzen1s and the park supervisor, Mr Bruce, that he had been asked to be a delegate and that he had

On 16 June 1981 Mr Tyrrell was called into Mr Dzenis' office. In the course of the conversation that then took place ,Mr Tyrrell was dismissed from his employment with the defendant. I shall deal in greater detail with this conversation when considering the reasons for his dismissal.

As stated earlier ,Mr Commissioner Heffernan, on 18 May 1981, indicated that a "roping in" award would be issued. On 22 June 1981 he signed an order in relation to the award in the following terms:-

By adding the following to clause 29 in the appropriate alphabetical order:-

African Lion Safari Pty. Ltd. Marches Road, Warragamba Dam

B. This order shall come into effect from the first pay period to commence on or after 18 May 1981 and shall remain in force for a period of 12 months."

Rule 70 of the rules of A.T.A.E.A. which is headed "Delegate" provide that the executive of each branch may in writing appoint one or more representatives. It then sets out the duties they are to perform and carry out. These include collecting and accounting for fees, levies and subscriptions from members of their branch, watching over the general interests and reporting to the secretary any infringement of the rules or breaches of

industrial awards and distributing and placing on notice

poards all matters as requested by the Branch Secretary.

No document was signed by the Executive of the N.S.W. Branch appointing Mr Tyrrell a delegate under Rule 70 or otherwise. What happened was that at a meeting of the New South Wales Executive on 17 June 1931 his appointment was reported as part of a report from the officers who attended the meeting and that report was _ adopted. As indicated earlier, as a result of the application . of s.5(4) of the Act, the onus is on the informant to. = prove beyond reasonable doubt all the elements constituting the offence except the reason or reasons actuating the dismissal. On the evidence before me and having in mind admissions made on behalf of the defendant, I am satisfied beyond reasonable doubt of the following:- (a) That Bruce Tyrrell was employed by the defendant at all relevant times; (b) That between 17 December 1980 and 16 June 1981 (inclusive) he was a member of A.T.A.E.A. (c) That the defendant dismissed Bruce Tyrrell on 16 June 1981; (d) That A.T.A.E.A. was at all material times an organisation registered pursuant to the Act; These findings are sufficient to place upon the

defendant the onus of establishing on the balance of

probabilities that in dismissing Mr Tyrrell it was not

actuated by the reason stated in s.5(1){a) of the Act, namely, that he was a member of an organization. However, the informant also relies on reasons which relate to the circumstances specified in paragraphs (b) (d) and (f) and the onus is on him to prove beyond reasonable doubt that the circumstances specified in . those paragraphs existed in this case.

Paragraph (b) in this case covers the alleged circumstance that Mr Tyrrell was entitled to the benefit - of an award. I am not satisfied beyond reasonable doubt that Mr Tyrrell was entitled to the benefit of an award.

Counsel for the informant submitted that the paragraph was satisfied because of Mr Commissioner Heffernan's decision on 18 May when he decided that a roping-in order would be issued. The actual order however was not signed and dated until 22 June 1981.

I am prepared to assume, for the purposes of deciding this matter, that the Commissioner's action in making this order amounted to a valid variation pursuant to the Act. I do not find it necessary to come to a concluded decision on the matter because I think it 1s clear that if it was a valid variation it was made not on 18 May, at the oral hearing, but on 22 June 1981 and that, therefore,there was no award in existence up to and including 16 June 1981(when he was dismissed)to the benefit

"hO(4) An award or decision made by a single member of the Commission shall be made by an instrument signed by the member and the instrument shall be dated with the date on which it is so signed, which date shall, for the purposes of this Act, be deemed to be the date of the award or decision."

. The purported variation was by means of an order. In ny

opinion s.40(4) applies to it and,as a result ,this order

was not made, even if valid wmtil 22 June. It follows - from this that Mr Tyrrell was not entitled to the benefit of an award at any time up to the time of his dismissal on 16 June. I am therefore not satisfied that the facts and circumstances relevant to an offence involving s.5(1)(b) have been proved beyond reasonable doubt.

Paragraph (d) of s.5(1) is also relied upon. Counsel for the informant submitted that Mr Tyrrell was a member of A.T.A.E.A., that it was seeking better industrial conditions and that he was dissatisfied with his conditions.

I am satisfied beyond reasonable doubt that the circumstances for the operation of paragraph (d) existed in this case. Mr Tyrrell was, as I have already held, a member of A.T.A.E.A. from 17 December 1980 onwards.

In June 1980 the union served a log of claims on the

defendant claiming better 1ndustrial conditions from it

which became the basis of a finding by Robinson J. that

an industrial dispute existed between A.T.A.E.A. and the

The informant, as an A.T.A.E.A. official,held a meeting at Warragamba Town Hall in January 1981 with employees of the defendant, including Mr Tyrrell, at which industrial conditions at the defendant's park were discussed. It was decided to get further information on rates of pay 1n similar establishments. Because it "was taking a long time to get the information, other members of the staff,at a time subsequent to this meeting, asked Mr Tyrrell to approach Mr Dzenis and put forward a log of complaints and ask for a pay rise. This he subsequently did. He asked for a substantial pay rise and complained about lack of security. Mr Dzenis says that subsequently other members of staff had disagreed with some of the complaints made by Mr Tyrrell but he acknowledges that he asked for a pay rise from $3.40 an hour to $5.50 an hour.

At the meeting which Mr Bullen called at the restaurant, reference was made, according to Mr Dzenis, to the increase "the union delegate had asked for".

Early in May 1981 discussions took place between Miss Pikette,employed by the union as an industrial research director, and Mr Tyrrell relating to conditions with a view to identifying the changes that would have to be made to the award in order to apply it to the defendant. The award included provisions as to wages

which were not themselves entirely appropriate to the

had claims in respect of wages. This evidence satisfies me beyond reasonable doubt that A,T.A.E.A. was seeking better industrial conditions which included wages and that Mr Tyrrell was dissatisfied with his conditions as to wages. I think the evidence also meets the test in

relation to paragraph (d) suggested by Northrop J. in

Heidt v. Chrysler Australia Ltd.((1976) 13 A.L.R. 365 at. p. 375) namely, that the-words "Yan organisation which : is seeking better industrial conditions" do not refer

to the general objective of an organisation but to identified industrial conditions which the organisation is seeking to better and that it is those conditions with which the employee must be dissatisfied.

It follows in my view that the circumstances referred to in paragraph (d) are established beyond reasonable doubt in this case.

The remaining allegation is that paragraph (f) applies. It will only apply in this case, if Mr Tyrrell was, prior to his dismissal, a delegate of A.T.A.E.VA. within the meaning of that paragraph.

I am not satisfied beyond reasonable doubt that he was.

The word "delegate" in s.5(1)(f) could, I think, cover a person who was not actually called a delegate but whose functions were those of a delegate. He might,

for instance, be called a "representative" yet be a

delegate for the purposes of the paragraph. (See Cuevas v. Freeman Motors Limited (1975) 25 F.L.R. 67 at pages 71-75).

Mr Tyrrell intended to perform and did,in fact, perform, the duties of a delegate after the meeting in May 1981. However, he was not appointed in writing, the only formal act being the adoption of a written report at a meeting of the New South Wales Branch of A.T.A.E.A. which took place after his dismissal. None- of the steps taken by the executive or by officers of the union, on the evidence before me, amounted, in my opinion, to an appointment in writing in accordance with rule 70. Even if they did the only "writing" would be the minutes of the branch meeting but these did not come into existence until after his dismissal.

The question which remains on this aspect is whether paragraph (f) envisages a delegate who undertakes the duties of a delegate with the authority of the organisation but is not appointed in accordance with the rules of the organisation.

In my opinion, paragraph (f) contemplates a delegate who is appointed in accordance with the rules. It speaks of a delegate doing an act or thing which 1s lawful for the purposes of furthering the industrial interests of the organisation "being an act or thing done within the limits of authority expressly conferred on him by the organisation 1n accordance with the rules of the organisation", These latter words, 1n my opinion,

one that is conferred in accordance with the rules.

This can only be done, in this case, pursuant to rule 70

and this requires a delegate to be appointed in writing. This was not done prior to his dismissal, as I

have held, and therefore Mr Tyrrell was not"a delegate"

within the meaning of paragraph (f) notwithstanding the

fact that the duties he performed with the knowledge of the

organisation and the subsequent approval of its executive

In the light of these findings it remains to consider whether the defendant has proved, on the balance of probabilities, that its action in dismissing Mr Tyrrell was not actuated by reason of any of the circumstances that he was a member of A.T.A.E.A. (paragraph (a)), or that being a member of A.T.A.E.A. which was seeking better industrial conditions, he was dissatisfied with his conditions (paragraph (d)). On the authorities, because the onus is on it, the defendant must satisfy me, on the balance of probabilities, that neither of these circumstances was a substantial or operative reason for dismissing Mr Tyrrell, otherwise I must find it guilty of an offence against s.5(1) of the Act. (See G.M.H. Pty, Ltd. v. Bowling (1976) 12 A.L.R.605). It is not enough for the defendant to establish that

neither of these was the sole or predominant reason.

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In presenting its case on this matter, the defendant went into evidence with a view to establishing that the reason for Mr Tyrrell's dismissal was his poor work performance and the fact that he indicated he was leaving and that alternative arrangements had been made to provide plumbing and electrical maintenance which he . might otherwise have provided. The persons involved in the dismissal were Mr Dzenis, the general manager, - _ Mr Hayworth~Booth a former general manager, but then a consultant executive and Mr Stafford Bullen, the managing director of the defendant.

Nothing of real substance in this case turns on the decision as to whether I should accept the prosecutor's witnesses or the defendant's. There are differing versions of events and some minor conflicts emerge. A vital witness was Mr Dzenis, the defendant's Manager. It was he, of course, who terminated Mr Tyrrell's employment and it was he who had discussions with Mr Hayworth-Booth and Mr Stafford Bullen before doing so. The authorities indicate that it is important to know what actuated not only the person who dismissed the employee but also superiors who gave him instructions in relation to it.

I regard him as an honest and reliable witness and I prefer to accept his version of the facts where a choice has to be made. All the witnesses are, in my view,

pasically truthful. Some were at times prone to exaggeration

What is also important, as I have indicated, is whether I accept the evidence of Mr Hayworth~Booth and Mr Stafford Bullen, particularly their evidence as to why they thought Mr Tyrrell should be sacked. Obviously, although Mr Dzenis was the one who normally decided to dismiss employees, it is proper to infer from the evidence that, in a given case, he would have followed the direction of Mr Hayworth-Booth or Mr Bullen. ;

The evidence is clear that between June 1980 and 16 June 1981 there was considerable activity by the union in relation to employees at the defendant's park. There were a number of hearings before the Commission, several visits by un1on officials to the park and a number of meetings with employees. Some employees joined the union and demands were made by Mr Tyrrell seeking better wages etc. following a meeting called by the union and requests by other employees.

In March or April 1981 Mr Bullen called a meeting of employees and he admits that at that meeting he could have said it didn't matter if everybody joined 10 unions. It had no effect on what the company could pay and there was no purpose in joining a union. He did not like unions and his opposition to them was well known. He didn't

consider that an award for the park was appropriate.

In late May 1981 A.T.A.E.A. officials purported to appoint Mr Tyrrell a delegate of the union and this immediately became known to Mr Dzenis.

It is not surprising of course that 'against this background a suspicion might arise that Mr Tyrrell was dismissed because of his union membership and activity and dissatisfaction with his conditions.

The defendant however submits that neither of these were substantial or operative reasons. It is claimed that he was dismissed for other reasons, namely, that he had proved to be an unsatisfactory employee, that he had expressed a firm intention of leaving a month or so before he was dismissed and that some steps had been taken in anticipation of his leaving to use contractors in his stead. When he indicated he was not leaving on 16 June 1981 his employment was terminated.

The effect of s.5(4) of the Act is not to create any special difficulty for an employer who wishes to dismiss an employee who is a union member or official. As Gibbs J. (as he then was) said in

employee who is dismissed for disruptive activities

circumstance must have had something to do "with his dismissal."

It is understandable ,however,that the section places the onus on the employer,because the reasons for dismissing an employee will often be matters which are peculiarly within the knowledge of the employer.

If the onus provision were not there, the object of the section would no doubt,in many cases,be defeated through lack of proof by the prosecutor beyond reasonable doubt that the reason was one of the circumstances mentioned in s.5(1). It does not mean however that an employer who doesn't like unions or employees being involved in union activity can never dismiss an employee so involved without breaching the section.

The total effect of the section including the onus provision is to make such an employer careful that he has other reasons for dismissing such an employee before doing so. The mere existence of an anti union attitude in the mind of the employer does not prevent

proof on his part that other reasons actuated the dismissal.

It does mean however that the court, in determining whether the onus has been discharged will need to have before it cogent evidence as to the actual reasons.

Mr Dzenis says that on 16 June 1981 he called Mr Tyrrell into his office and told him that he had indicated that he intended to leave and that they had

made arrangements with contractors to perform his work. .

Mr Tyrrell then said that he did not resign, he did not need to leave and that he had been told that this would happen. Mr Dzenis then dismissed him, Mr Tyrrell's

to leave; also his work had certainly deteriorated over the previous six months or so. He needed more constant supervision by myself. He

realised that Andrew Hayworth-Booth who was the general manager and associate director did not have as much say in the running of the company

as previously, and he used this to his advantage, because he realised that he could get away with

and there was the matter of our friendship involved."

He also said he had dismissed him because he had already got contractors to do his work and that he was

placed in a position where he had committed himself to

Mr Dzenis told Mr Hayworth-Booth that Mr Tyrrell was going to resign. Mr Hayworth-Booth had until mid-1980 been general manager and executive director of the defendant. After that and up to the time of the dismissal he was a consultant and Mr Dzenis reported to him. He says that when he told him

Mr Hayworth-Booth reminded him that Mr Bullen and he had often spoken to him previously with regard to _ engaging contract labour to do the electrical and plumbing work.

Mr Hayworth-Booth told him that the wheels were set in motion and Mr Tyrrell had shown his intention to leave and that the time had come when they had to dismiss him.

Mr Hayworth-Booth said in evidence he had discussed Mr Tyrrell with Mr Dzenis from mid-1980 and Mr Dzenis had indicated that Mr Tyrrell was increasingly difficult to handle and his work performance was not what it had been. He encouraged him to make the decision that if any employees were not satisfactory to him he should terminate them. He said he first heard of Mr Tyrrell leaving around February 1981 when Mr Dzenis told him he had heard a rumour to that effect. He asked Mr Dzenis to find out further details which he did.

Mr Dzenis told him he had spoken to Mr Tyrrell and that

Mr Tyrrell had told him he was going to leave to join a

former colleague at Oberon cutting timber where he pelleved the money to be earned was very high and that he intended to leave when some work had been carried out on a new freezer unit. He told Mr Dzenis that he thought that was an ideal solution to the problem. Mr Tyrrell had become an increasingly difficult person . to handle and as it was reported to him, it had got to the stage where his employment would have to be terminated. He was aware however, that Mr Tyrrell had some association - with the union and that that could lead to complications. He believed that if they terminated him when he probably should have been terminated, which was early in 1981, that this could lead to complications with the union because of his role. He said that Mr Tyrrell's activities as a member of the union did not weigh in his mind as a reason for his termination but as a complication. If anything, it delayed the process of him being terminated. Mr Dzenis came to speak to him about the time the work on the freezer unit was nearing completion and mentioned that the work was all but completed and what should he do about Tyrrell. Mr Hayworth-Booth told Mr Dzenis to find out whether Mr Tyrrell still planned to leave and if he did not plan to leave to terminate him. Mr Dzenis reported back to him after he was terminated.

When asked in cross-examination about the factors that played a role in the decision he made that

his work performance and his general attitude. The fact that he was a member

of the union complicated the matter but if anything it kept him employed for longer than he should have been."

small companies such as the defendant's, unions were

-not appropriate or necessary, but denied that that had

any bearing on the decision to terminate Mr Tyrrell.

Mr Stafford Bullen, the managing director of the defendant said that Mr Tyrrell's workmanship was criticised and he was told that he had been given notice but would not mind staying until after the freezer unit was finished. He said that having heard that he was going he accepted it. Mr Bullen's recollection was that Mr Tyrrell went to Mr Dzenis and said he didn't want to go and that that was mentioned to him and he, Mr Bullen, said not to accept Mr Tyrrell's change of mind and that he should go. He knew that Mr Tyrrell was a member of the union,and he agreed that his union membership was raised when he had a discussion about his leaving the company with Mr Hayworth-Booth and Mr Dzenis,but he denied that that was a factor that influenced his decision to suggest a termination of his employment.

He also confirmed that there had been discussions with Mr Hayworth-Booth about obtaining contractors for maintenance work which in his experience had proved

Although Mr Tyrrell's membership of the union and his union activity was in their minds, I think that the proper conclusion from this and other evidence to which I will now refer is that,on the balance of probabilities, neither his membership nor his attempt to improve his conditions actuated, or was a substantial and operative reason for, his dismissal.

The reasons given for his dismissal were that _ Mr Tyrrell had indicated his intention to leave and steps had been taken to engage sub-contractors in his place and that his work performance had become increasingly unsatisfactory. On the evidence before me I am satisfied that these were in fact the reasons which actuated his dismissal.

Mr Dzenis says that Mr Tyrrell indicated he might leave and go timber cutting to Oberon where there were already friends engaged in this work. At first he didn't give a definite time. However, in May 1981 he finally asked Mr Tyrrell to let him know whether he intended to leave or stay and Mr Tyrrell said he would be leaving at the end of the month. At the time a refrigeration unit had to be finished and Mr Tyrrell was to do the electrical work. He was asked to stay until that work was completed to which he agreed. Mr Dzenis then made arrangements with independent contractors to

Mr Tyrrell also took steps to dispose of some of his personal effects. He offered Mr Dzenis part of his fishing gear (the salt water equipment) but Mr Dzenis was not interested. In May 1981 he approached Mr Bruce asking him if he wanted to buy his diving gear.

personnel carrier - a collector's item which was in

_ pieces on the premises. He asked representatives about chain saws for use at Oberon.

The evidence also establishes to my satisfaction that in the view of his superiors his work performance had worsened. Mr Bruce, the Park supervisor and Mr Dzenis testified to this. A great deal of evidence was given in relation to this and I do not propose to go through it in detail.

Mr Bruce regarded Mr Tyrreil's work as totally unprofessional and unskilled and instanced his work and general attitude as being unsatisfactory. He said that Mr Tyrrell had been there a lot longer than he and that | although he had the authority to do so, he was not prepared to sack him but he did on many occasions ask Mr Dzenis that he either be straightened out or dismissed. However Mr Dzenis saw value in having Mr Tyrrell there in case of breakdowns for electrical work. Mr Bruce also regarded it as a problem for Mr Dzenis to dismiss Mr Tyrrell because they were fishing mates. The fact was that in the six months prior to 16 June 1981 Mr Tyrrell openly did what he

liked and so far as he was concerned he washed his hands

Mr Dzenis gave evidence about the standard of Mr Tyrrell's work and his attitude to his job. This included the poor standard of particular work, having to chase him up to do things, the taking of long lunch and smoko breaks, sleeping during working hours and rudeness.

Mr Dzenis confirmed that Mr Bruce had complained to him on a number of occasions about Mr Tyrrell. He also asked him to-terminate his employment. However, - _ Mr Dzenis had at first disagreed. Mr Tyrrell had been " there quite a number of years and Mr Dzenis considered him a friend and he felt he was useful. His services at times were required at odd hours and he was handy in that respect. However, he did have problems with the work Mr Tyrrell was doing under his supervision both during 1981 and prior thereto. Mr Dzenis gave a number of instances of this.

In relation to the standard of his work in 1981 Mr Dzenis said:-

Mr Dzenis was asked why he didn't dismiss him in December 1980 after he had failed to return from Oberon and said that at that stage he still considered

The suggestion was made that after December 1980 Mr Tyrrell's work performance had not deteriorated and that the only change in the situation was his union membership and activity.

of six months before his dismissal his work performance did decline. By May 1981 I think it is clear-that _ Mr Dzenis had formed the view that it was in the : interests of the defendant,having regard to Mr Tyrrell'ts work performance, that his employment be terminated.

One matter which was raised was whether Mr Tyrrell was regarded as a trouble maker because of his union activities. There was evidence that he had harrassed employees to goin the union and that some had complained to Mr Dzenis. He didn't mind employees being members of the union but he did obgect to them being forced.

I do not think there is any doubt, that, from the time he became a member of the union,Mr Tyrrell was regarded to some extent as a trouble maker, not because he was a union member but because he was the person chosen to seek better conditions for employees

Earlier in this judgment I referred to the dislike on Mr Bullen's part of unions and it would be very easy to infer from this and from the attitude towards Mr Tyrrell as a trouble maker that his union membership and pursuit of better conditions were factors in his

_ dismissal. However, I have had placed before me positive . and cogent evidence from witnesses whom I accept, that - . the reasons which actuated his dismissal were not these but those I have mentioned. It is clear that Mr Bullen's dislike of unions remained throughout and this has caused me to give careful consideration to whether this was a substantial and operative factor in the dismissal put I am satisfied that it was not.

Jeet » #8 ace a true covy of the Reus. sa a FUdament herein of his Honour lir. Justice Ellicott.

OF AUSTRALIA No. N.S.W. 36 of 1981 N.S.W. DISTRICT REGISTRY

On 7 April last I gave judgment in this matter and ordered that an information by Damien Stapleton ("the informant") claiming that African Lion Safari Pty. Limited ("the defendant") had committed a breach of s.5 of the Conciliation and Arbitration Act 1904 ("the Act") be dismissed.

In making that order I made no order as to the costs of the proceedings. The defendant has since applied for an order that the informant pay the defendant's costs of the proceedings. The informant claims that I have no power to make such an order first because I have already given judgment dismissing the information and, in effect, ~- am now functus officio and, secondly because of the

I propose to deal with this matter on the basis that I am not precluded from doing so because I have already given judgment. However, I am satisfied that, because of the provisions of ss.118A(1) and 197A of the Act, this Court has no power, in any event, to make such an order. Section 197A provides:-

"497A. .*y that this and the Aix ces ave a truo copy of the nent herein of his Honour

Industrial law - Dismissal of Employee - Whether employee member or delegate of an organization - Whether employee entitled to the benefit of an award - Whether Order purporting to vary award a valid and effective variation - Whether employee seeking better industrial conditions - Employee asked to be delegate by union official - Whether employee a delegate of the organization pursuant to the Rules - Whether employee's membership of organization or seeking to improve industrial conditions a substantial and operative reason for dismissal - Unsatisfactory work performance of employee - Discharge of onus of proof by employer with anti-union attitude.

Conciliation and Arbitration Act 1904 ss. 197A; 118A(1); Z; 116; 5, 47

DAMIEN STAPELTON v. AFRICAN LION SAFARI PTY. LIMITED

OF AUSTRALIA No. N.S.W. 37 of 1981 N.S.W. DISTRICT REGISTRY

ORDER JUDGE MAKING ORDER: Ellicott J. DATE OF ORDER: 7 April 1982 WHERE MADE: Sydney

OF AUSTRALIA No. N.S.W. 37 of 1981 N.S.W. DISTRICT REGISTRY

Damien Stapleton ("the informant"), as Federal Secretary of the Australian Theatrical and Amusement Employees! Association ("A.T.A.E.A.") instituted proceedings pursuant to s.5 of the Conciliation _ and Arbitration Act, 1904 ("the Act") against African Lion Safari Pty. Limited ("the defendant") in relation to the dismissal of its former employee, Barry Bevan, and certain other former employees.

He alleged that on or about 8 July 1981, the defendant in breach of s.5 dismissed Mr Bevan and the other employees by reason of the circumstances that each was a member of an organisation, that 1s A.T.A.E.A., that

each was entitled to the benefit of an industrial award and

that each was a member of an organisation seeking better

industrial conditions and was dissatisfied with those

to the dismissal of Barry Bevan but added as another

circumstance that referred to in s.5(1)(f) of the Act,

namely, that being a member and delegate of an organisation, ~ he did things which were lawful for the purposes of

furthering and protecting the industrial interests of the_

organisation and its members, being acts and things within - @ the limit of the authority expressly conferred on him by the organisation in accordance with the rules of the organisation. These proceedings were heard immediately following those relating to the dismissal of Brian Tyrrell (No. N.S.W- 36 of 1981) and it was agreed at the hearing that I should treat as evidence in this case the whole of the evidence and exhibits in that matter. The findings of fact made by me in my judgment in that matter should be treated as forming part of this judgment. I shall not repeat them e except where I feel it desirable to do so. The defendant also admitted at the hearing that A.T.A.E.A. was an organisation registered pursuant to the Act, that the defendant was duly incorporated, that Barry Bevan was employed by the defendant and that he was dismissed from that employment. As indicated in my judgment in matter No. N.S.W. 36 of 1981, the onus is on the informant to prove beyond reasonable doubt all the elements constituting the offence,

except the reason or reasons for the defendant's action.

It is for the defendant to prove, on the balance of probabilities, that it did not dismiss Mr Bevan for the reasons alleged.

The defendant company operates the African Lion Safari at Warragamba. It is an amusement centre with primarily an animal park through which paying members of the public may drive their vehicles and view wild animals from the safety thereof. There is a lion reserve and a

tiger reserve. The centre also has other attractions such

as a zoo, dolphinarium, a section for farm animals, train rides etc. and a restaurant. It has been in operation for 13 years. The defendant operates similar parks in other States.

Barry Bevan was employed by the defendant for four years prior to his dismissal on 8 July 1981. For the first three years he was employed as a casual and for the last year full time. His main employment was as park warden. He did general duties as well which included plumbing work, cleaning up, mechanical maintenance work in the pinball arcade and repairing railway lines and fences. Whilst he was a casual employee, he apparently had a clash with Mr Hayworth-Booth and continued on under an assumed name "Barry Scott" When he became permanent he again

On 16 December 1980 he applied to become a member of A.T.A.E.A. The relevant documents were tendered in evidence and I am satisfied beyond reasonable doubt that he was a member of A.T.A.E.A. from 14 January 1981 (when his application was accepted) until his dismissal.

In my judgment in matter No. N.S.W. 36 of 1981 I referred to several meetings. Mr Bevan attended the meeting at. Warragamba Town Hall in late January 1981 and a meeting called by Mr Stafford Bullen at the park restaurant some time later. - Mr Bevan did not give evidence in the earlier. . proceedings. He said in evidence in this matter, that, at the latter meeting, Mr Stafford Bullen said to Mr Tyrrell "The union will do you no good and will do the rest of you no good. If you are not happy working here, you can find yourself another job. If you are not happy with the pay, find yourself another job. If you try to get a pay rise through the union or any other means I will close the park,"

He also attended the meeting called by the union towards the end of May. At that meeting Mr Tyrrell volunteered to become the union delegate and Mr Bevan indicated that he was prepared to take on the position as co-delegate. Two . days after that meeting he told Eric Dzenis and Russell Bruce that he had been made a co-delegate.

After Mr Tyrrell was dismissed on 16 June Mr Bevan says he was asked by one of the union officials,

Mr Heaney, if he would be willing to take on the position of

delegate. He agreed to this and was asked to inform the

Management. He subsequently told Mr Dzenis and Mr Bruce

At a glance

Court

Decision date

Before

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Source

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Judgment (268 paragraphs)

Cited By (2)