CATCHWORDS Industrial Law - dismissal of employee by reason of the circumstance that such employee is entitled to the benefit of an award - information pursuant to Concilzation and Arbitration Act 1904 s.5 - reason of such circumstance being a substantial and operative factor in the dismissal - decision recommending such dismissal made by a committee consisting of 8 councillors - committee's recommendation adopted by a general meeting of council consisting of 10 councillors 8 of whom were members of the committee so recommending - by-law of council that such adoption shall be a resolution of council - need that at least a majority of the 8 members of the committee be called as witnesses to prove that those forming such majority were not actuated by the reason ~ for dismissal alleged in the charge cf. Tooth & Co. -v- Lane Cover Municipal Council 1968 2 N.S.W.R. 17 - order for reimbrusement of lost wages - direction reinstating employee. Conciliation and Arbitration Act 1904 s.5(1) (b), s.5(4) and s.5(5) Gerda Voigstberger -v- The Council of the Shire of Pine Rivers (No.Q.5 of 1981) . 15 December 1981 BRISBANE EVATT J. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. Q.5 of 1981 INDUSTRIAL DIVISION ee ee ee BETWEEN: GERDA VOIGTSBERGER Prosecutrix - THE COUNCIL OF THE SHIRE OF PINE RIVERS Defendant -.-- -"- - i ORDER JUDGE MAKING ORDER: EVATT J. DATE OF ORDER: 15 DECEMBER 1981 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The defendant be convicted and fined $400. THE COURT DIRECTS THAT: 2. The defendant Council, The Council of the Shire of Pine Rivers reinstate the Prosecutrix,Gerda Voigtsberger in her old position or in a similar position, such reinstatement to date from 3 April 1981. THE COURT FURTHER ORDERS THAT: 3. The defendant Council, The Council of the Shire of Pine Rivers pay to the Prosecutrix, Gerda Voigtsberger the salary lost by her since 3 April 1981 agreed at $9,025.08 gross. The defendant Council is granted leave to deduct an amount as agreed between the parties from such gross salary moneys for tax together with the amounts paid to her on or about 3 April 1981 for annual leave, pro-rata long service leave and superannuation. In default of such agreement either party may restore the matter for further order and directions on 14 days notice to the Court and to the other party. Date Entered: DISTRICT REGISTRAR SAGE a SE tne TT | al eT AEN RAR RALLIES IPT SOA ONT EET EN nats apis 8 ee is} IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No.Q.5 of 1981 INDUSTRIAL DIVISION eee we BETWEEN:GERDA VOIGTSBERGER Prosecutrix AND:THE COUNCIL OF THE SHIRE OF PINE RIVERS Defendant 15 December 1981 EVATT Jd. REASONS FOR JUDGMENT By summons upon information dated 28 May 1981 brought in the Industrial Division of the Federal Court of Australia (No.Q.5 of 1981) Gerda Voigtsberger (the prosecutrix) claimed that contrary to s.5{1)(b) of the Conciliation and Arbitration Act 1904 (the Act) the Council of the Shire of Pine Rivers (the Council), a body incorporated under the provisions of the Local Government Act (Queensland) 1936 and liable to be sued in its said corporate name, dismissed the prosecutrix from her employment by it by reason of the circumstance that she was entitled to the benefits of the provisions of the Municipal Officers (Queensland) Consolidated Award 1975 as varied (the award). The notice of dismissal was issued on 21 January 1981 effective on 3 April 1981. bed 2. When the matter was called on for hearing on 30 July 1981 the defendant denied it was guilty as charged but made the following admissions:- "1. That the Defendant is and was at all material times a body incorporated in Queensland pursuant to the provisions of Section 6(2) of the Local Government Act 1936-1978, capable of suing and being sued in its corporate name. 2. That Gerda Voigtsberger was employed by the Defendant from 17.1.1974 up to and including the third day of April, 1981. 3. Gerda Voigtsberger was given notice of dismissal issued on the twenty-first day of January, 1981 and her dismissal was effected on the third day of April, 1981. 4. That at the time of her dismissal, Gerda Voigtsberger was a clerical officer within the meaning of the Municipal Officers Queensland Consolidated Award 1975." The relevant parts of s.5 of the Act read: "(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 - (b) is entitled to the benefit of an industrial agreement or an award; or Penalty: Four Hundred Dollars - (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. 3. (5) Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and any also direct that the employee be reinstated in his old position or in a similar position." In the prosecutrix's case evidence was led, which satisfied the Court beyond any reasonable doubt that at ail relevant times and in particular on 21 January 1981 through to 3 April 1981 she was a member of and that she was entitled to be and to remain a member of the Municipal Officers' Association of Australia (the organization) an organization of employees registered under the Act attached to its Queensland Branch. Accordingly she was then entitled to the benefits of the award referable to an adult clerical officer (see Cl.4 of the award, Burgess ~v- John Connell-Mott, Hay & Anderson Pty. Ltd., 37 F.L.R. 386 and cf. Leontiades -v- F.T. Manfield Pty. Ltd., 43 F.L.R. 193), which award was binding on that organization and on the defendant. At the conclusion of the case for the prosecutrix counsel for the Council submitted that there was no case to answer as the prosecutrix had not proved beyond reasonable doubt all the necessary elements of the charge. As stated the Court was satisfied beyond reasonable doubt that at all relevant times she was a member of the organization, that at such times she was entitled to be a member of the organization and accordingly was entitled to the benefits of the award to which the organization and the Council were parties. Accordingly in view of these findings and the admissions made by the Council the prosecutrix 4. had proved all the relevant facts and circumstances other than the reason set out in the charge as being the reason for the dismissal. Consequently it was then encumbent upon the Council under the provisions of sub-s.4 of s.5 to prove, on the balance of probabilities, that the dismissal was not actuated by the reason alleged. (see General Motors Holden Pty. Limited -v- Bowling 12 A.L.R. 605 especially Mason J. @ 617, with whom Gibbs, Stephen and Jacobs Jud. agreed.) Accordingly the Council's application for "no case to answer" was rejected. At this stage it is convenient to set out certain circumstances in respect of the employment of the prosecutrix by the Council prior to 21 January 1981. In matter No.Q.1 of 1980 the prosecutrix on 7 August 1980 commenced proceedings against the Council under the provisions of s.123 of the Act claiming arrears in salary due to her from the Council over a period of some six years. In those proceedings it was claimed that during that period she was entitled to be paid at the rate set out in the appropriate clause in the award from time to time first for a female officer and since 1975 for an adult clerical officer. The substantial issue in those proceedings was whether the duties that she had performed from time to time in the course of her employment with the Council were "clerical duties" within the meaning of the 5. award. It had been agreed between the parties in that action that if it were determined that such duties were such clerical duties then the prosecutrix had been underpaid over the years an amount totalling approximately $8,700. After hearing lengthy evidence the Court reserved its decision. During the morning of 15 December 1980 the Court gave judgment and ordered that the Council pay to the prosecutrix the sum of $8,739.56. The solicitor for the Council was present in Court at that time. The following extract from the reasons for judgment in No.Q.1 of 1980 sets out the history of the matter prior to the bringing of those proceedings:- "A new Cl.4A was added to the Award effective as on and from 23 June 1976. The relevant part of this clause reads: 4A(a) Where in the employment of any respondent there is no appropriate salary classification in the award for an officer presently employed or proposed to be employed by such respondent, The Municipal Officers' Association of Australia and the Local Government Association of Queensland shall be advised by the respondent of the duties of the position, and a conference between representatives of the Municipal Officers' Association and the Local Government Association shall be convened before any appointment is made. The conference shall consider and determine the appropriate salary and classification for. the position concerned. If the parties are unable to agree, the matter may be referred to the Australian Conciliation and Arbitration Commission for determination. By letter dated 26 October 1978 the secretary of the Queensland Branch of the organization wrote to the Council concerning various matters of complaint arising out of an inspection at the respondent's (defendant's) premises held by an organizer of the organization. Included in such matters was a complaint that the applicant (prosecutrix) was being paid at a rate not in accordance with the 1975 Award and that the respondent (defendant) had not given any notice to the organization pursuant to Cl.4A of the Award in regard 6. to her duties. The letter then set out a list of the various duties that it was claimed were being performed by the applicant (prosecutrix) namely, photocopying, compliation of Council Reports, keeping records of us age ef photocopying machine, maintaining this machine in clean working order, ordering of photocopying stationery, offset printing, maintaining the offset printing machine in clean working order and associated duties, delivery of inter-departmental paper work, collection of mail from post office, general deliveries to and from city, preparing morning and afternoon teas for Councillors when required. Further, it was claimed that such duties were those of a "clerical officer" and as there was no provision in the Award for reducing a clerical officer's salary, the organization claimed that the applicant "must be paid 100% of the automatic adult clerical scale and that full payment of the Award salary must be made retrospective to a (stated dated). On 5 December 1978 the Shire Clerk of the respondent (defendant) advised the Branch secretary of the organization that the complaint concerning the salary paid to the applicant (prosecutrix) had been referred to the Council's Industrial Committee. The Reports of the Committee were tendered (Ex.B). The report of its meeting held on 10 May 1979, after setting out the list of the various duties referred to in the Branch secretary's letter of 26 October 1978, states that it was "doubtful whether the said duties could be described as clerical but the list of duties was reasonably accurate". Included in such report is the following: "Mr Voigtsgerger commenced duties with this Council on 17th January, 1974 at which time she was appointed as a "Messenger/Girl Friday" and was paid as a Messenger/Cleaner under the Miscellaneous Workers' Award. ce In June, 1974 it was ascertained that the classification of Messenger/Cleaner had been deleted from the particular Award and Council then had an option of paying her under either the- "Municipal Officers" Award or the "Clerks and Switchboard Attendants" Award. In July, 1974 it was resolved as follows:- "That the rate of pay now paid to Mrs G. Voitsberger is $58.19 per week and that as from the first pay period in July, 1974 Mrs G. Voitsberger be employed as "Messenger/Girl Friday" on a rate of pay equal to 80% of the Municipal Officers' Association's rate of pay for Third year Adult 7. Service Female Officer (Clause i1lb). Other conditions of Municipal Officers' Association's Award to apply". This rate of pay increased by automatic progression to 80% of 4th year service and 80% of 5th year service in 1975 and 1976 respectively. Subsequently, in view of her period of service to this Council, Mrs Voitsberger's rate of pay was increased to 83% of Adult Clerical Officer 5th year of Service, such increase being effective from July, 1977." Later in that report the following appears: "The main question would appear to be whether Mrs Voitsberger should be employed under the Municipal Officers' Association Award or some other Award, and consequently whether Clause 4A of the Municipal Officers' Association's Award is applicable. As Council in July, 1974 did place her under a Municipal Officers' Association Award rate with conditions of employment under the MOA Award, it would appear that Clause 4A of that Award would be applicable. The Committee may consider whether it is necessary for an application to be made to the Local Government Association and the Municipal Officers' Association for determination of a salary and classification applicable to the position held by Mrs Voitsberger." The matter was then stood over to the next meeting of the Committee to be held on 23 May 1979 when the Committee recommended: "Municipal Officer's Association be advised:- (1) The Municipal Officer's Association be advised Mrs Voitsberger is paid 83% of the Adult Clerical Officer rate of pay. (2) She does not carry out 'the duties .of a Clerical Officer as defined in the Award. (3) Council cannot agree with the Municipal Officers' Association to pay Mrs Voitsberger - as an Adult Clerical Officer." The Committee's recommendation was adopted by the respondent Council at its meeting held on 4 June 1979 and the Branch secretary of the organization was advised of the Council's resolution, which followed verbatim the Committee's recommendation, by the Shire Clerk in a letter dated 6 June 1979. Although a reference was made in the minutes 8. set out above to a possible application being made by the respondent (Council) in accordance with C1.4A no evidence was before the Court of the organization or the Local Government Association of Queensland having been advised by the respondent (Council) that there was no appropriate salary classification in the Award for the applicant (prosecutrix) during the period 23 June 1976 to 7 August 1980. As the matter could not be resolved between the organization and the respondent (Council) the present application (No.Q.1 of 1980) was brought." The defendant in the present prosecution called the following witnesses,(a) Leslie Edgar Hughes, the Chairman of the Shire who had held that office and had prior thereto been a Shire Councillor for several years (b) Robert Thomas Brock, a Shire Councillor since April 1979 and (c) Donald Clive May, Deputy Shire Clerk since 1962. The Council Chambers of the defendant Council are situated some 30 km from the city of Brisbane. During the afternoon of 15 December 1980 the date when the Court handed down its judgment in matter No.Q.1 of 1980 the Finance Committee of the Council met for its usual monthly meeting. The agenda for that meeting included an item listed as "Court hearings pending". The evidence is that at the conclusion of the business listed for the consideration of the Committee that day the solicitor for the Council gave an oral report to the Committee regarding the decision of the Court given earlier that morning but none of the witnesses who were present at that meeting could recall in detail what had been said concerning the order of the Court and its reasons for judgment or the 9. consequences thereof. The minutes of that meeting show as the last entry the following resolution: "That the Shire Clerk produce a report to the next Finance Committee on clerical staffing within the Administration Department and any recommendations for additional or re-organisation of staff be put forward". In addition extracts of the minutes of (a) the following meeting of the Finance Committee of the Council held on 19 January 1981, (b) the General meeting of Council held that day following the Finance Committee meeting and (c) the General meeting of Council held on 2 February 1981, were tendered in evidence. The relevant extract of the minutes of the Finance Committee meeting held on 19 January 1981 includes the report of the Shire Clerk requested by the Committee on 15 December 1980. Such report initially sets out the relevant resolution of the Finance Committee of the 15 December 1980 set out above and then reads: "As there was a Court hearing on the question of the duties of one of Council's employees, the Shire Clerk and the Shire solicitor saw Mr George Fryberg, the barrister who appeared for the Council in this particular case and after discussions, the following report is submitted for Council's consideration". It is clear that the employee referred to in that sentence is the prosecutrix. 10. Thereafter is set out the various positions of all the employees in the administration section of the Council including the Shire Clerk, Deputy Shire Clerk, Administrative Officer, 5 Adult Stenographers, 4 Junior Stenographers, Switchboard Operator and Messenger/Girl Friday together with the various duties of those employees, the award classification and their salary. The duties of Messenger/Girl Friday are stated to be photocopying, printing, internal messages and external messages. The report then reads: Organisation and Procedures Organisational arrangements for the three senior Officers and the Switchboard Operator are satisfactory and enable their work to be carried out in a satisfactory manner. No need for any alteration to them has been demonstrated. At page 29750 of the Minutes, the Industrial Committee recommended:-— "COUNCIL AGREE TO THE APPOINTMENT OF ONE STENOGRAPHER AND PROVISION BE MADE IN THE BUDGET FOR A SENIOR STENOGRAPHER TO ACT AS A RELIEF GIRL WHEN OTHER GIRLS IN OTHER DEPARTMENTS ARE ON HOLIDAYS." This recommendation is being implemented by appointing one of the existing Adult Stenographers as the "floater". No increase in numbers is presently needed. " The Junior Stenographers' work is carried out in a satisfactory manner. The level of work is considerable. For example, 52,290 items of mail and 25,273 cheques were received in the last calendar year. It is not considered there is any present need for an increase in their numbers. The duties of the Messenger/Girl Friday originally involved making tea and running messages. Her current duties are set out above. These duties were recently held to constitute clerical duties in a judgement of the Federal Court. This was not the basis upon which the position was created. Asa 11. result the position of Messenger/Girl Friday is causing anomalies. The present incumbent of the office is now the fourth highest paid female on a staff of 37 Clerical Officers. She is to be paid $231.91 per week compared with Stenographers at the top of the scale on $219.96. A wage anomaly situation is undesirable for reasons of staff morale. The duties which attach to the position of Messenger/Girl Friday require, and are generally regarded by the staff as requiring, a lower level of skill and ability than those of Stenographers. It is unlikely that these staff attitudes will change. A question which must be considered is whether there is any need for the existence of this position. The duties which presently attach to it are markedly different from those applicable when it was created. The present duties could be re-allocated to other staff in the Department provided minor changes were made in some administrative procedures. It is not considered that such a re-allocation would have any measurable impact on office efficiency. If the position of Messenger/Girl Friday were abolished, there would be a cash saving to Council. Work levels in this Department are not considered likely to render any of the foregoing inapplicable during 1981. In a number of areas in this Department, the work load is expected to be reduced, and in other areas to maintain its present level or increase only slowly, during this year. An overall downturn in work is already occurring, and this may be expected to continue. Recommendation: Council's decision is required." As at 19 January 1981 the prosecutrix had been employed by the Council for 'just over seven years. The award made provision for increments in salary for each year of service for adult Clerical Officers and for adult Stenographers. In the case of adult Stenographers such increments ceased after 5 years service whilst those of adult Clerical Officer ' 12. ceased after 7 years service. As at July 1980 C1.10 of the Award provided for a salary for an adult stenographer of more than 5 years service as $10,893 p.a., and for a salary for an adult clerical officer of more than 5 but less than 6 years service at that rate whilst the salaries of such clerical officers of more than 6 but less than 7 years service was $11,160 and those of more than 7 years service was $11,485. The minutes of the meeting of the Finance Committee heid 19 January 1981 go on to show: Item No. Description Committee's Recommendation 30.00 Administration 1. Council note the above Departmental report. Clerical Staffing 2. The position of Messenger/ Girl Friday be abolished. 3. The duties presently attaching to the position of Messenger/Girl Friday be re-allocated among the clerical staff in the Admin- istration Department. 4. The services of employee no. 4779 be given (sic) forthwith in accordance with the requirements of the Municipal 13. Officers' (Queensland) Consolidated Award. 6. The Municipal Officers' Association of Australia be notified of these decisions. 7. No further appointments be made to inside staff in any Department without the approval of Council. 8. No further replacement of inside staff be made without the approval of Council. It is noted that a recommendation No.5 does not appear. It is accepted that "employee No.4779" was the prosecutrix. Evidence which is accepted is that eight councillors were present at this particular meeting of the Finance Committee. The total nwnber of councillors forming the Council at all relevant times was eleven including the Chairman. All councillors are members of the finance conmittee but in practice it was seldom that all councillors attended such committee meetings. Following the usual practice the General meeting of Council was held during the evening of 19 January 1981 following the afternoon meeting of the Finance Committee. It is accepted on 14. that at this General meeting of Council ten councillors were present including the eight who had attended the Finance Committee earlier that day. Page 31960 of the minutes of that General meeting of Council show:- Reception and Consideration of Committee Reports: Recommendations made by the Finance Committee moved That the minutes of the Finance Committee seconded meeting heid on Monday 19 January 1981 be received as a report. Thereafter such minutes include the following two consecutive minutes. © Staffing moved In Committee's Recommendation No.4, it be seconded amended to read, "The services of Employee No.4779 be terminated and give (sic) notice forthwith in accordance with the requirements of - 15. the Municipal Officers' (Queensland) Consolidated Award". Adoption of the Finance Committee Report: Pp Pp moved That the report of the Finance Committee Meeting seconded be adopted with amendments." Pursuant to the Local Government Act (Queensland) 1936 certain by-laws had been made by the Council which, after approval by the Queensland Governor-in-Council had been published in Queensland Government Gazette Vol. CCXXXIII (No.51) dated 4 April 1970. Clause 21 of those by-laws which is set out in By-law No.3 Part A - Proceedings, Business and Meetings of the Council provides:-— Committee reports 21.(a) A report of committee shall be considered and dealt with at the meeting at which it is presented. (b) If in a report of a 'committee distinct recommendations are made, the decision of the Council may be taken separately on each recommendation. (c) A report of a committee, or a position thereof, may be amended by the Council in any manner it may think fit, or may be referred back to the committee for further consideration. (d) The recommendations of a committee shall so far as adopted by the Council, be resolutions of the Council. Accordingly, the adoption on 19 January 1981 by the 16. General meeting of Council of the said report of the Finance Committee as so amended became the resolution of the Council. Thereafter by letter dated 21 January 1981 the Shire Clerk advised the prosecutrix of the decision of Council that her services had been terminated effective 3 April 1981. The first page of the minutes of the General meeting of Council (p.32059) held on 2 February 1981 were in evidence. Those minutes show that ten councillors including the Chairman attended that meeting together with certain officers employed by the Council. Immediately after apologies the following two consecutive resolutions appear. "Confirmation of Minutes: General Meeting of Council: moved That the Minutes of the General Meeting of seconded Council held on Monday, 19th January, 1981 be taken as read and confirmed. CARRIED Page 31960 - Item 30-00 - Administration Department Clerical Staffing moved After the word "terminated" be inserted "on the 17. seconded grounds of redundancy" and the word "give" should read "given". " CARRIED Clause 17 of Part A of By-law No.3 referred to above reads:- Confirmation of minutes 17. The minutes of every proceding meeting not previously confirmed shall be taken into consideration, as the first business of every ordinary meeting of the Council, in order that such minutes may be confirmed, and discussion thereon shall not be permitted except with respect of their accuracy as a record of proceedings. Evidence which is accepted shows that over the years since 1962 when Mr May commenced employment with the Council as Deputy Shire Clerk through to January 1981 no member of the clerical or stenographic staff had been dismissed. Further, following the Court's decision in matter Q.1 of 1980 the only department of the Council which the Shire Clerk was so asked to report on was the Administration Department. At that time there were several other departments of the Council including the Engineering, the Building, the Health and the Planning Departments. Indeed strictly the Administration Department was then made up of five sections namely, the administrative section, the accounts-pay section, the rates section, the legal section and the records section. Employed in these sections were some twenty-five clerical officers or stenographers in addition to the eleven stenographers or clerks mentioned in the 18. Shire Clerk's report. It is clear from that report and from the evidence of both Mr Hughes and Mr Brock that the Shire Clerk was told by the Finance Committee members on 15 December 1980 that despite the wording of the resolution adopted that day he was to report only on that section of the Administration Department known as the administrative section. It was that section to which the prosecutrix was attached. It should also be remembered that the Shire Clerk was not called to give evidence nor was any explanation led as to the failure to call hin. Further, Mr May stated that the annual budget for the financial year 1981/82 was in the order of $34 million including costs for loans work for water supply and sewerage works. The wages component in that gross figure was approximately $4.5 million. The prosecutrix's estimated annual salary ($12,950) plus on-costs (28.35%) for contigencies such as pay-roll tax, holiday pay, sick pay, annual leave, workers compensation insurance and superannuation during that period amounted to approximately $16,600. Further, the witnesses called on behalf of the defendant agreed that the duties that the prosecutrix had performed were continued after her dismissal as such duties were necessary for the proper administration of the Council and there was no suggestion that at any time that the prosecutrix whilst employed 19. by the Council was not gainfully employed. It was submitted on behalf of the defendant Council that the Court should find on the evidence that the reasons for the adoption by Council of the resolution to dimiss the prosecutrix were three fold; first that in fact work generally in the administrative section was diminishing, secondly, that as a result of her dismissal there would be a saving of money and thirdly, that such dismissal would eliminate a morale problem whether actual or perceived brought about by the so-called "anomaly" namely, the prosecutrix (had she remained in the employ of the Council) would have received a salary some $12 p.w. higher than a senior stenographer of more than 5 years service. In reply counsel for the prosecutrix argued that the Court should reject the evidence of both Mr Hughes and Mr Brock that these three grounds were the only reasons for them so resolving at the Finance Committee meeting held on 19 January 1981. He submitted that the Court in all the circumstances of the case could not be satisfied on the palance of probabilities that a substantial and operative factor influencing their @ecision made that day to dismiss the prosecutrix was not the fact that the Court had determined on 15 December 1980 that the prosecutrix was entitled to be paid the salary provided for in the award for a clerical officer of more than seven years service. (see G.M.H. -v- Bowling(supra.) @ 616.) 20. Counsel for the prosecutrix submitted that the Court should consider all the facts and circumstances leading up to the dismissal including any reason expressed at the time of the dismissal as well as any denial of the reason alleged in the charge. In this regard I respectfully adopt what Northrop J. has stated in Heidt -v- Chrysler 26 F.L.R. 257 @ 268: "The provisions of s.5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins ~v- Kirkstall-Repco Pty. Ltd., (1957) 3 F.L.R. 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." In Atkins case(supra.) a Full Court of the then Commonwealth Industrial Court at p.441 said:- "Provided that the company shows on the evidence that it was not actuated in dismissing White because he was a union delegate, it is of course unnecessary for it to prove why it dismissed him, or whether it did so on reasonable grounds, but at the same time when it advances a reason of dismissal, the reasonableness of its conduct may be of importance in weighing the truth of the evidence which its officers give as to what actuated the dismissal." Under the provisions of s.16 of the Local Government Act (Queensland) 1936 provision is made that minutes are to be made of all proceedings of local councils and committees and that the minute books shall be open to inspection by any rate payer. It 21. was argued that such an inspection of the minutes of Council meetings held on 19 January 1981 and 2 February 1981 would result in the person reading the minutes believing that the prosecutrix had been dismissed "on the grounds of redundancy" and that such ground was the sole reason for her dismissal. But on the evidence it is clear that there was no redundancy. The duties that she had performed were still necessary and were still being performed after her dismissal by other employees. This, it was argued, was something that as a matter of course would be the result of her dismissal, but not the cause of her dismissal. It was not suggested by any of the witnesses called on behalf of the Council that at any time the prosecutrix had not been gainfully employed. In support of the argument that there was in fact no redundancy counsel for the prosecutrix relied on what was said by Evatt J. in Grayndler -v- Cunich (1939) 62 C.L.R. 573 @ 596. "In my opinion, the case of Grayndler -v- Broun (1928) 27 A.R. (N.S.W.) 46 was wrongly decided so far as it laid down that an employer is entitled to dismiss an employee entitled to an award merely because his reason for doing so is that he does not wish to be saddled with the heavier burden of the award rates. If this general principle were accepted, a vital provision would be completely excised from the statutory scheme..... If an employer, who, ex hypothesi, is a party to the industrial dispute and is bound by the award, could set the award at nought not merely by differentiating between unionists and non-unionists, but by dismissing unionists in his employ so soon as they became entitled to better conditions under the award, one of the great purposes of the industrial-arbitration system would be defeated........ Upon the findings of the magistrate which are borne out by the evidence, and which I accept and indorse, he erred in holding that because the employer desired to 22. save himself the expense involved in paying the higher award rate, he could not be guilty of contravening the section. I hold that, on the contrary, this desire is merely corroborative of the undoubted fact that the employer was quite ready and willing to retain Fitzgerald in his service so long as he remained disentitled to the award benefits and the employer did not have to pay them. A plain and very bold and daring contravention of sec.9 (the precursor of s.5 of the Act) has taken place, and this court should itself impose a penalty or remit the matter of penalty to the magistrate." Earlier his Honour had stated at p.594-5 "As I have already pointed out, we are not investigating a case where a business or department is being closed down...... It was argued that the example given by Evatt J. of a business or department being closed down completely is a classic example of redundancy. In such cases the employees' functions are no longer to be carried out. But this was not the position in the present case and accordingly the Court should not accept the reason as shown in the Council's resolution that the prosecutrix had been dismissed on the sole ground that had been made public, namely, on the grounds of redundancy, as such reason lacks substance. In the circuwnstances of the present case it did not mean and could not be said to be that her position was redundant in the industrial sense. Further the circumstances under which the words "on the grounds of redundancy" came to be included in the amended resolution of 2 February 1981 were significant. It showed, so it was argued, that the Council on 2 February 1981 had 23. endeavoured to overcome the clear inference that a substantial and operative reason for the dismissal as at 19 January 1981 was the fact that a majority of Councillors had become aware that the prosecutrix was then entitled to a benefit of the award, namely a salary at the rate of an adult clerical officer with seven years service. Further it is significant that not one of the three reasons for the dismissal suggested by the Council in its submissions to the Court had been mentioned in the resolution of the Council and accordingly the Court should in all the circumstances look carefully at the evidence of the witnesses called on behalf of the defendant in this regard. In this regard the so-called ""anomoly" being a reason for the creation of a staff morale problem and consequently a justification for dismissal is in point. Clearly any anomoly was the result of the differing rates provided for in the award itself and the so-called "anomoly" was really the Council's quarrel with the award itself. The Council chose to resolve that quarrel not by seeking a change to the award but by dismissing the prosecutrix. Further when Mr Hughes was first asked in cross-examination whether the fact that prosecutrix's salary had been wup-graded from $177.13 to $231.91 was the factor that determined that she was the person whose job was to go he answered "that it was not the matter that determined that at all. I can only speak for myself". When asked by the Court 24. immediately after giving that answer whether such up-grading was a reason for the dismissal he answered "it was a factor for consideration". Thereafter he refused to clearly answer similar questions, his answer being "it was a factor that I considered" or words to that effect. When pressed for a firm answer and 1t having been made plain to him that the line of such questions did not infer that it was the sole reason for his decision he agreed quite reluctantly that it was one of the considerations that exercised his mind in coming to the decision that the prosecutrix's services should be terminated. In my view the circumstances in the case are such that any tribunal of fact would be drawn to the conclusion that it could not be satisfied that a substantial and operative factor influencing the making of the decision to dismiss the prosecutrix was not the fact that the Court had determined on 15 December 1980 that the prosecutrix was entitled to be paid the salary of an adult clerical officer under the award. What are those circumstances? First the Court so determines. On that very day a report by the Shire Clerk in respect of the very section in which the prosecutrix was employed is called for. the Shire Clerk reports accordingly without any recommendation. The Finance Committee consisting of 8 of the 10 Councillors which at that time were able to attend the Council recommends that only one employee loses his or her job and it so happens that that employee is the same person who the Court has determined was entitled to be paid in accordance with the particular award, 25. which decision was the subject matter causing the Finance Committee to call for the report by the Shire Clerk. In my view the sequence of events clearly demonstrates a nexus between the dismissal of the prosecutrix and the fact that the Council through its Finance Committee decided on the very day when the Court's decision was handed down that something had to be done about the effect of that decision. Although the maxim "commonsense is not always true" may at times apply in certain circumstances, such is not the position in the present case. I am of the view that the submissions of counsel for the prosecutrix referred to above should be upheld. In all the circumstances I am not satisfied on the balance of probabilities that the Council itself in its stated reasons for such dismissal as set out in the amended resolution adopted by it, namely "on the grounds of redundancy", was not actuated by the reason as alleged in the charge. On the other hand, if the decision of the Finance Committee of 19 January 1981 is the essential and material decision to be considered in this case then the reason or reasons given for such decision has or have to be examined. Only 2 of the 8 Councillors who made that decision have given evidence. Again I am not satisfied on the balance of probabilities that the minds of those 2 Councillors were not then actuated by reason of the fact that the prosecutrix was 26. entitled to the benefit of the award as discussed earlier herein and that that reason was not a substantial and operative factor influencing them to make the decision to dismiss her. In my view, even if it were accepted that the minds of both Mr Hughes and Mr Brock were not so actuated the defendant would not have discharged the onus placed upon it by sub.-s.4 of s.5 of the Act. In order to so discharge that onus it was necessary in my view that the defendant call at least a majority of the 8 Councillors present at that meeting of the Finance Committee and for the Court to have accepted the evidence of such a majority of Councillors that they were not so actuated. The decision of that Finance committee is in my view the critical decision in the case. It was that decision which formed the bases for its recommendations which subsequently were merely "rubber-stamped" by Council later in the evening. This being so it was essential in the circumstances of this case that the Court should have had before 1t those who made that decision in order that a determination could be made as to whether or not any Councillor in making his determination that afternoon had considered the fact that the prosecutrix had become entitled to be paid a salary under the Award and if so whether that fact was a substantial and operative factor influencing that Councillor to take the action he did. In this regard reference is made to the observations of a 27. Full Court of the Australian Industrial Court in Roberts -v- General Motors Holdens'' Employees' Canteen Society Inc. (not fully reported - judgment 21 October 1975 —- B. Nos.177 and 178 of 1975-partially reported 25 F.L.R. 415) where the Court (Smithers, Woodward and Evatt JJ.) @ pp.15-16 of the roneod reasons for judgment stated: "The defendant, General Motors-Holden's Emplooyees' Canteen Society Inc. is an incorporated body. The management of its affairs is in the hands of a general committee.... The relevant enquiry in this case therefore is whether either of the circumstances (1) and (3) mentioned above was a substantial and operative factor influencing the Executive Committee to make that decision. ........6.- It is apparent that, when a decision is made by a committee, different considerations may have operated on the minds of the various members of the committee, and not all the considerations operating on the mind of every member would necessarily be known to the others. In addition at could well be that, in the decision-making process, the influence of one or more members may, for various reasons, have been greater than that of others. The effective decision may even have been made by a person who was not a member of the committee. In any particular case, a recommendation of one man may have been rubber-stamped by others without their giving the matter independent consideration. In another case a person actuated by improper motives may have overborne the minds of others who were not so motivated. Or a person improperly motivated may have presented a dishonest case to others. Of course there may be cases in which it would not be proper to go behind the proceedings of a formal meeting of a particular body. But in the ecircumstances of this case it is our view that the problem should be approached through an analysis of the motives and parts played by the individual actors." Robert's case was referred to by Mason J. in G.M.H. -v- Bowling(supra.) @ p.616 (see also Bowling -v- G.M.H. (1975-6) 8 A.L.R. 197 @ 201; Wood -v- City of Melbourne Corporation (1979) 26 A.L.R. 438 @ pp.466-7; Musgrove ~v- Murrayland Fruit Juices 28. Pty. Ltd. (No.V.6 of 1980) unreported - judgment 5 June 1980, cited Butterworths Industrial Service p.2234.) Counsel for the defendant submitted that the Court should not and indeed could not consider what were the reasons causing each Councillor present at the Finance Committee meeting held on 19 January 1981 to make his determination that afternoon. He submitted that the decision to dismiss the prosecutrix was the decision of Council as resolved by it and the Court should not look beyond that particular resolution to ascertain the reasons therefor. In this regard he relied upon the decision in Tooth & Co. Pty. Ltd. -v- Lane Cove Municipal Council given on 6 April 1967 as reported in (1968) 2 N.S.W.R. 17 @ 17-20 where Street J. (as he then was) stated:- "I am of the view that the interrogatory should not be allowed. It is directed in its terms to ascertaining what may have been a particular mental process on the part of the defendant. The defendant, being a municipal corporation, has itself no mind. There are, of course, many occasions on which it is necessary to attribute to a municipal corporation attitudes of mind such as purpose, opinion, intention, and the like. These attitudes of mind are, however, fictional, in that they proceed upon the assumption which is made in each instance that a municipal corporation has a mind. Where a suit raises as a relevant issue the state of mind of an andividual, then a properly framed interrogatory directed to the ascertainment of ingredients in that state of mind would no doubt be allowed. Where, however, the suit concerns the act of a municipal corporation it appears to me to be unreal to direct to that corporation an interrogatory upon what matters were present to its mind in relation to a particular event. The inferences drawn and conclusions reached by courts upon purpose, intention or opinion on the part of municipal corporations are drawn and reached as a result of evidence of objective facts. But the fact that in those cases decisions are made that a municipal corporation had a particular mental state does not travel to the extent of raising the rid 29. fiction that the corporation has in truth a mind, the processes of which can be examined through medium of interrogatories, as is the case with a personal party." Later his Honour stated:- "Mr Mahoney also refers me to the company approach exemplified in the decision in Duke of Sutherland —-v- British Dominions Land Settlement Corpn. Ltd., (1926) 1 Ch. 746. ..... The interrogatory before me is aimed at the defendant corporation in respect of something which is to be assumed to have taken place in the mind of the corporation itself. This is not a case in which some subordinate officer of the corporation, acting within the scope of the duties of his office, formed an intention or took matters into account so as to render his mind vicariously the mind of the corporation. Nor 1s it a case such as the Duke of Sutherland's Case,(supra), where it was the state of mind of the individual directors themselves which was the relevant matter for dispute." This decision in my view does not assist the defendant. The recommendation to dismiss was that of the Finance Committee constituted by 8 Councillors. As stated earlier that recommendation was merely rubber-stamped later that day by a Council consisting of 10 members, 8 of whom constituted the particular Finance Committee making that recommendation. Accordingly in my view it was relevant and essential that the Court should have been able to "analyse the motives and parts played by (at least a majority of) the individual actors", namely the said 8 Councillors. But 6 of those 8 Councillors were not called as witnesses. In all the circumstances the defendant has failed to satisfy me that on the balance of probabilities it when making its decision to dismiss the prosecutrix was not actuated by the reason alleged in the charge. Accordingly I find the defendent RRO OREO AEH NY OTE LI SEL EIT ST TEN ON FLO ERT TLR TAI AEG Rs BS ' 30. quilty as charged. It was agreed at the hearing that in the event of the Court so finding counsel for the parties may then put submissions as to penalty and whether any order under sub-s.5 of s.5 of the Act should be made reimbursing any wages lost by the prosecutrix and-whether any direction should be made that she be reinstated in her old position or in a similar position. Submissions may now be so made. Iecertify that this and the buenby-nine, preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justace 0G. Pua. Kinle Ubenseca: Associate Dated: Bagi, The parties having had time to consider the above reasons - for judgment the Court now makes the following determinations. As pointed out in the reasons for judgment handed down this morning the Court has determined in this matter that the defendant is guilty as charged. Submssions as to penalty, reinstatement and reimbursement of wages lost have been made by counsel. 'Those submissions have been taken into consideration by the Court in exercising its discretion in respect of each of those three matters. As to penalty, the defendant 1s convicted. I am of the -./31.. - 31 - view that there was a very bold and daring scheme put into effect by the defendant inmediately after the Court's decision handed down on 15 December 1980 to circumvent the effect of that decision. The scheme was a blatant attempt to get round the provisions of s.5 of the Conciliation and Arbitration Act. In all the circumstances, I am of the view that the proper penalty to be imposed 1s the maximum penalty which the Court is permitted oe to impose, namely $400. As to reinstatement, a Full Court of this Court 1n Rowling's case No.2, that 1s, Bowling -v- General Motors Holdens Lamited 33 ALR 297 has stated at pages 304 and 305 in its reasons for judgment delivered on 19 November 1980 that although the Court has a discretion under sub-s.5 of s.5, that sub-sectiorz "gives effect to an essential "feature of the policy and purpose of s.5". The judgment continues: "It is essential that an employer convicted of an offence against the section should not benefit from that offence by ridding itself of an employee by reason of any one or more of the circumstances specified. Accordingly. once the condition precedent has occurred, the court should give a direction to reinstate the employee unless there are good reasons why the employee should not be reinstated, for example if the employee does not desire to be reinstated." It is noted that special leave to appeal to the High Court from the decision of the Full Court of this Court in Bowling's case was refused on 5 December 1980. Later on on page 305, the Full Court of this Court went on to say: "The appellant desires to be reinstated in his old position or ina similar position. Prima facie, therefore, the direction should be given.". --/32.. = 32- In the present case, the prosecutrix desires to be reinstated and I am satisfied that there is no good reason why she should not be reinstated. The defendant's counsel has submtted, inter alia, that her job does not now exist. Mr May, the Deputy Shire Clerk of the defendant Council in his evidence given today has agreed that the duties that Mrs Voigtsberger had performed before her dismssal are still being carried out by other employees of the Council. Further, Mr May in his evidence stated that there was no other similar position available. In this respect it must be remembered that Mrs Voigtsberger's position at the time when she was dismissed was that of an adult female clerk. In the reasons for judgment of the Court handed down this morning, reference is made to the number of female clerks employed by the Council. In addition, it was submitted that there still remains the so-called anomaly referred to in the reasons for judgment handed down earlier today. These submssions do not persuade me that a direction to reinstate her in her old position should not be made.) 'To adapt the phraseology of the Full Court in Bowling's case at page 306, the so-called abolition of her job on 19 January 1981 was not sufficient to avoid a conviction being recorded and upon conviction, it does not constitute a good reason why reinstatement should not be directed. Otherwise the defendant here would gain from its actions and Mrs Voigtsberger would suffer from the result of discrimination and victimisation. Again, the Court in Bowling's case at page 308 said: .-/33.. - 33 - "Aan order for reinstatement is intended as protection for an organization, its members, officers and delegates. Again, to adapt the phraseology appearing immediately after that sentence,1t is clear that a further purpose for such an order is to ensure that members are not deterred by the fear of dismissal from bringing actions under the provisions of the Conciliation and Arbitration Act against : their employer claiming the difference between wages paid and the wages provided for in an award. Accordingly a direction is made that the prosecutrix be reinstated in her old position or 1n a similar position by the Council as from 3 April 1981. As to the reimbursement of any wages lost by the prosecutrix; I accept her evidence that she has not been in employment since her services were terminated on 3 April 1981. 'In those circumstances, and in view of all the circumstances leading up to her dismissal, I can see no reason why an order should not be made reimbursing her for lost wages or salary since 3 April 1981. Such salary has been calculated to amount to $9025.8 gross. Accordingly the Court makes the following orders and directions: 1. The defendant is convicted and fined $400; 2. The Court directs that the defendant Council reinstate the prosecutrix, Gerda Voitsberger, in her old position or in a simlar position, such reinstatement to date from 3 April 1981. 3. The Court orders that the defendant Council pay to Gerda Voitsberger the salary lost by her since 3 April 1981 to today's date, an amount agreed to be $9025.8 gross. Liberty is granted to the defendant to deduct from such gross «-/34.. - 34- amount, an amount as agreed between the parties for tax together with any moneys paid to Mrs Voitsberger on or after her dismissal on 3 April 1981 for annual leave, pro rata long service leave and superannuation. On deduction of such amounts, all her rights for annual leave, long service leave and supperannuation will of course then be restored. In default of agreement as to the net amount to be paid to Mrs Voitsberger, liberty is granted to restore the matter on 14 days notice to the Court and to the other party. - The Court makes no order as to costs in view of s.197A of the Act. The exhibits in the matter will be returned to the Registry and will be handed out in accordance with the rules of the Court to the parties who tendered them. r4és S043 I certafy that ti pantanet x BP 70 a true cony of the ent herein cf his Honour oak. cont a (Me Associate ———. eee