Scemnh pein tntneeenedinelnednnne | tbe abennbthe ASO NEE ty Ak ne An" ae Le Cede et ee eb sate mmeeans Ne ne ee CATCHWORDS Yelecommunications Act 1975 - Judicial Review of decision of Disciplinary Appeal Board - Disciplinary action against employee in relation to standard of dress ~- whether proceedings of criminal or civil nature - whether Board applied proper standard of proof - Application of convention No.11} of 1958 International Labour Conference to Commission - Commission bound to declare and pursue policy designed to promote elimination of dis~ tinction made on the basis of sex in employment ~ whether distinction referrable to sex was made on basis of sex or some other basis ~ Employer's common law right to give directions concerning dress - Employee's duty to obey lawful orders of Master ~ implied term of contract of employment that employee shall adopt a standard of dress reasonable in the circumstances. Telecommunications Act 1975, s.6(4), s.58 JAMES ALEXANDER HART v. ALLAN NIMMO JACOBS & ORS. a VG No. 117 of 1981 Smithers J. 23 December 1981 Melbourne ee ee IN meee We Sve stim anes Ae ae ee ee ta aoe nen leet ake ate anes see IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG No. 117 of 1981 GENDRAL DIVISION Between: JAMES ALEXANDER HART (Applicant) And: ALLAN NIMMO JACOBS , DESMOND JOHN LOVELOCK, and LEO BROCK as constituting a DISCIPLINARY APPEAL BOARD under Section 63 of the TELECOMMUNICATIONS ACT 1975 and THE FEDERAL Cour] uF AUSTRALE AUSTRALIAN . TELECOMMUNICATIONS COMMISSION (Respondents) Judge Making Order: Smithers J. Date of Order: 23 December 1981 Where Made: Melbourne ORDER THE COURT ORDERS THAT l. The decision of the Disciplinary Appeal Board whereby it dismissed the applicant's appeal against the decision that he had committed the conduct alleged in FN EE Tee AR enema art erent ten ene ate | me mt re re me mee rar qe ni rn ¢ 2. the three charges brought against him pursuant to s. of the Telecommunications Act 1975, namely; 1. That the said James Alexander Hart on 28th day of May, 1980 was guilty of wilfully disobeying a direction namely to maintain a standard of dress generally acceptable in the community and in Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction. 2. The said James Alexander Hart on the 17th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain a Standard of dress acceptable to Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction. 3. That the said James Alexander Hart on the 18th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain the standard of dress acceptable to Telecom, given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having the authority to give such a direction, and that the applicant be fined the sum of $40 on each charge, be quashed. That the respondent Commission pay to the applicant his costs of this application. 3. That the question of costs of the proceedings before the Disciplinary Appeal Board be reserved. 4. That the Court declares the rights of the parties as follows:- (a) in respect of the dress to be worn by the TPT TEN NE LE TT EN ee Fm rt NR tap EI GAMER ANE RES SE RY eH ar Tr ee os ik eed rr" eo eeeennrerentt" amend Ate eee ator " ee er (b) 3. applicant in and about the performance of his duties it is a term implied in the contract of employment that at all times, the applicant will observe a standard of dress that is reasonable in all the circumstances of his employment; in respect of the Convention, No. 111 of the International Labour Conference, s.6(4) of the Telecommunications Act 1975 does not of itself impose upon the respondent Commission a duty to refrain from conduct constituting discrimination as defined in the Convention. ST ERATE A PNT NON SR NT TON OTR SAMA A, RR RON NS RN SRI amr mrrinm, RTr =OS SS SOS I ' — e IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION Between: os And: Coram: Smithers Jd. 23 December 1981 ~ Melbourne Reasons for Judgment The applicant James Alexander VG No. 117 of 1981 JAMES ALEXANDER HART (Applicant) ALLAN NIMMO JACOBS, DESMOND JOHN LOVELOCK, and LEO BROCK as constituting a DISCIPLINARY APPEAL BOARD under Section 63 of the TELECOMMUNICATIONS ACT 1975 and THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Respondents) Hart, has at all relevant times been a Senior Technical Officer employed by the Australian Telecommunications Commission (Telecom). He works on the 7th floor of a building at 219 Elizabeth Street, Melbourne. His work is of a clerical nature; he performs most of it seated. In the course of his duties he does not ESE EYE TET Oy a eat eA eR r Se nero RE Se Lae mnLene em FARR TES <A we 28 meee meaner Tes eet Da Se pe aera Om a tnd nen aos 2. ordinarily deal with members of the public. Sometimes contractors and similar persons having business with the department do come to the 7th floor and the applicant is visible to such people at his work. He has been employed with Telecom for some years and is in a relatively senior position. He is a Senior Technical Officer Grade 1. He is employed in estimating costs of the installation of exchange equipment throughout Victoria. He works in an open office, some forty people being spread throughout the floor, most being in the general open office where the applicant works. In the course of the performance of his duties the applicant is visible to them. The applicant has been wearing a caftan in the course of his duties on the 7th floor for some considerable time. It has been the subject of discussion between the applicant and the officers of Telecom senior to him. From time to time they have indicated that the wearing of the caftan is unacceptable. On 20 December 1979 Mr. Halley (the Supervising Engineer Country Installations West) of Telecom and a senior officer of Telecom delivered a written direction to the applicant in the following terms, namely, "Standard of Dress Confirming the discussion with the Assistant Superintending Engineer Development (Mr. A Wright) in his office on 14 Dec. 1979, your present practice of wearing a caftan and thongs during working hours 1s not acceptable. You are therefore directed to maintain a standard RR ere RE Re net er! eet o Ime ee eee eee ee ee ee ee } ae dE emma een ea ee ee en oem SER FEST RMA PELE Ret EN Step ee ieee: of dress generally acceptable in the community and in Telecom in future as is expected of an officer in your position. Disciplinary action will be taken if you wear your caftan and thongs during working hours in future." On 28 May 1980, 17 February 1981 and 18 February 1981 the applicant wore a caftan in the course of the performance of his duties. He was directed to wear something more suitable to Telecom than a caftan. The applicant considered that Telecom was not entitled to give this direction. He so stated and did not comply with it. Because of his conduct disciplinary action was taken against him under s.58 of the Telecommunications Act 1975 (the Act) in respect of charges in the following terms:~ "1. That the said James Alexander Hart on 28th day of May, 1980 was guilty of wilfully disobeying a direction namely to maintain a standard of dress generally acceptable in the community and in Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction. 2. The said James Alexander Hart on the 17th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain a standard of dress acceptable to Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction. 3. That the said James Alexander Hart on the 18th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain the standard of dress acceptable to Telecom, given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country cons Rapmnamentaee - — ne ee et ee re tee eee + Pi ee ce emimgaInert a teen a eeyrere OY AAR "Oe ae ¥ pam ITTY FN eae ~ 7a nae BS rete ae Ba aint A PU LCR, epee tea ly pr LE cies yay ae tee (tebe ant (Ee epee ee ee RS Sa fe RE OE ENE NN UE NRE RN RE CERNY ane semer mer renner 'ea oe heh ro wet OM eS ae WEE la eee dk Nee RTI Rr pnp ren ee re ae eee eee 4. installations west, a person having the authority to give such a direction." It being found against the applicant that he had committed the conduct alleged and thereby had failed in his duty as an officer he was "fined" $40 on each charge. He appealed to a Disciplinary Appeal Board pursuant to s.62(1) of the Act. The Matter was duly heard by a Board comprised of the personal respondents to this application. The Board made findings:- "(A) The directions as set out in the aforementioned charges were in fact given to the Appellant. (B) The officer (Mr. A.N.D. Halley) ... had the necessary lawful authority to give the relevant directions to the Appellant. (Cc) The Appellant wilfully disobeyed the directions. ... (D) ase (E) ae (F) All charges arose as a result of the Appellant wearing a Caftan whilst on official duties. (G) ae" The Board also found that each one of the three directions was lawful in all the circumstances with which the Board was concerned. The Board dismissed the appeal and confirmed the "fines" which had been imposed. It took the view that there was a common law right in an employer to give such directions and accordingly the giving of the same was lawful. a ae Hed Need eine a ene NE a Re teres et eat nthe ath Molar mae ee ea eee nab ee Te pect na Dna AE Lealalentite SERA orate cee aA AE Uae alll ing Sel A Lie SURE nt re TER Te eR enter oe _ eee — mane, ee ee Re 5. One ground of attack on these findings was that they had been made by reference to the standard of proof on a balance of probabilities whereas the Board should have applied the criminal standard of proof beyond reasonable doubt. I do not accept this submission. They concern and provide a means of dealing with matters which in essence are alleged breaches of contract. They may result in the application of sanctions but not criminal sanctions. The so called fine took effect merely by a deduction from remuneration. The Board also rejected the applicant's contention that the directions given constituted a contravention of a Convention of the 1958 International Labour Conference on the subject of diiscrimination on the basis of sex. The Convention The Board held that Telecom was bound by the convention but that the directions did not amount to discrimination as defined therein. It gave no reasoned comments in this respect. The applicant's contention rests upon the provisions of s.6 ss.4 of the Act which provides:- "It is the duty of the Commission, in performing its functions, to comply with the provisions of any Convention to the extent that it imposes obligations on Australia in relation to matters within the functions of the Commission." Convention number 111 was a convention "concerning es ca ae i thee Aer nt mantnmade! eereriey Lana ee IP a tc A rec ae Mum ativan a 2s cane MO eater et eet ES et SRR PALO! 6. discrimination in respect of employment and occupation". It was ratified by the Australian Parliament in June 1973. By article 1 of that convention it is provided that for the purposes of the convention the term "discrimination" includes inter alia, "any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation." It is provided by article 2 that each member for which this convention is in force "undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof." Article 3 provides that each member for which the convention is in force undertakes by methods appropriate to national conditions and practice - "(a) to seek the co-operation of employers and workers' organizations and other appropriate bodies in promoting the acceptance and observance of this policy; (b) to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy; (c) to repeal any statutory provisions and modify any administrative instructions or practices 7. which are inconsistent with the policy; (d) to pursue the policy in respect of employment under the direct control of a national authority. (e) eee (£) oe" In relation to s.6(4) of the Act it is to be noted that according to s.5 thereof the functions of the Commission arei- "(a) to plan, establish, maintain and operate telecommunications services within Australia; (b) eee (c) eee (d) to do anything incidental or conducive to the performance of any of the preceding functions." It would seem that employment of technical staff in relation to the planning of Telecommunications services in Australia is comprehended within paragraph (d) above, notwithstanding that there are express provisions in the Act, namely ss.39 and 42 which specifically authorise Telecom to appoint officers and engage temporary employees on specified terms. It is my view that 1t does not follow from the terms of s.6(4) of the Act that Telecom is bound to conduct its affairs as though 1t were subject to a legal duty to refrain from discrimination as defined in article one of the Convention. Telecom is under a duty, in performing its TTT ET ATR ERT rE oT Temes DR re re en eo ae ed adace mas oinataaar aceeacetee ahem amimacaiaadendiamaiemneaememn mania tantemanename miata waeannenne 8. functions, to comply with the provisions of the Convention to the extent that it imposes obligations on Australia in relation to matters within the functions of Telecom. Therefore, in relation to employment Telecom has a duty to comply with the Convention to the extent that it imposes obligations, not on Telecom, but on Australia. The obligations imposed on Australia by Article 2 of the Convention are not to refrain from conduct constituting discrimination as defined, but, as stated in Article 2, to pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. By Article 3 there is an obligation on Australia to pursue the policy in respect of employment under the direct control of a national authority. One would think that for the purposes of the Convention Telecom is such a national authority. Telecom is bound to declare and pursue a policy designed to promote by methods appropriate to its conditions and practice, equality of opportunity in and treatment in respect of employment and occupation with a view to eliminating any discrimination in respect thereof. Unless, therefore in the implementation of this obligation, Telecom has bound itself by appropriate process to refrain from conduct which constituted discrimination as defined, then it cannot be shown that particular acts of discrimination -— — a tte pee eh a ee net Lane anti or ee edit sane Mw eae Cee me eet ae pet ele Gnosis cia at, pilealtKette Oe tate Seed 9. contravene a legal liability upon it according to law. Such acts could be compatible with pursuit of the specified policy. Accordingly, in a case like the present, even if the applicant could show that he was subjected to discrimination as defined in the terms of the Convention it would not show a breach of the law by Telecom. But I do not think that Telecom's conduct as proved in this case did constitute such discrimination. It was proved that in the relevant circumstance Telecom required a male person to refrain from wearing a caftan whereas it would permit a female employee to wear one. This is certainly a distinction in treatment in employment by reference to sex. It is a question however, whether, assuming that Telecom was bound to refrain from conduct constituting discrimination as defined, it was a distinction, exclusion or preference "made on the basis of sex". That question inevitably relates to a distinction, exclusion or preference made by some person. It enquires as to whether the basis of his making the same was sex. It is to be observed that the critical words are "distinctions ... made on the basis of sex", and not "distinctions ... made by reference to sex". The Shorter Oxford English Dictionary definition of the word ""basis" includes "a foundation, that on which anything is reared, and by which its constitution or operation is determined". Lord Cave said "the basis of a thing is that upon which it stands and on the failure of which it falls". Dawsons, Ltd. v. — aes ee ee ee ee ee eee Nee eo a ee a re ee ew een She ia AON He nee RL el Ne EA Cate rte Anette ne i 10. Bonnin (1922) 2 A.C. 413 at p. 432. The relevant enquiry is whether in making the distinction the person making it was actuated solely, or even alongside other considerations, by considerations of sex. What is proscribed is conduct of which the actuating circumstance is sex. If the real actuating reason for a distinction in dress by reference to sex is, for instance, decency, the distinction is made on the basis of decency and not on the basis of sex. It is because it just happens that decency concerns that area of life in which sexual differences are relevant that an appearance of discrimination on the basis of sex arises. A similar situation would arise in relation to distinctions based on considerations of health. Similarly if one considers a rule that unattended children may not travel On escalators, one sees a distinction between children and adults. It is made, no doubt, "on the basis" of safety. The rule is made not "on the basis" that children are to be subject to restrictions because they are children. Safety is the objective and the achievement thereof requires different rules for those who cannot look after themselves from those for persons who can. In the present case the distinction arises in relation to a different matter raising similar factual questions. ? The evidence is that the direction given to the applicant was given because Telecom believed that it was waters COARSER TREN TORT RTE ERR ARO IRONY erm eae a ee A aR ag RE owe EEN me eee mR eee NN my Oey iy me ee Re oT ge da hel a le Rca ee Re A Ee LL ee RY cl LN eS EN A NNR Se Se ore 2 row ee HSER UR Se ce 24K EL! Oita BO een ll. injurious to its image for him, being a man, to be seen to wear a caftan in the course of his work. In its mind no question of decency arose. "Image"is a much used word. But when used by a trader in connection with his business or by an institution in connection with its social or other operations, it comprehends the standing of the trader or the institution in the eyes of people whose opinion is thought to be relevant to the success of the trader's business or the achievement of the institution's objectives. The achievement and maintenance of a favourable opinion is a legitimate interest of the trader or the institution. The conduct of employees in connection with their work clearly touches and concerns that interest. A trader may well, even if mistakenly, take the view that the conduct of his employees both male and female in the matter of dress should be such that in his opinion it does not tend to injure or even that it should promote the image of his business undertaking. If he does, and, whether contractually entitled so to do or not, decides to require his employees, both male and female, to conform to a particular standard set by his opinion of what is good for his business image, it is clear that in the implementation of that decision, and the application of that standard, there may well be differences in the "treatment" of men and women. There will be distinction by reference to sex. Similarly an institution employing men and women may set standards of dress, and do so solely by reason of its opinion, applicable alike to men and women, of what standard is desirable to promote and preserve its image RE (TR EE RS GN ee HR Oe —— coo o ' EN RL EERO OTA Re OR te te te SER oe nh mt ee Pes atone er a 9d he RT A RT RR fe ta 12. as a business like institution devoting itself singlemindedly to its functions. Inevitably the standard would operate differently as between the sexes but the distinction would be based on the standard set by reference to the maintenance of the image and not on sex. The search for the basis on which the conduct of a person is founded 1s an exercise of fact finding. In every case of apparent discrimination on the basis of sex the enquiry, under this convention, is, whether in truth the conduct was engaged in because the person concerned was a man rather than a woman or solely to achieve some particular objective not sexual in nature or quality. The problem resembles that set by various statutory provisions which outlaw certain kinds of conduct by reference to the reasons actuating those who engage therein. Thus, refusal to supply a trader with goods for resale "for the reason that" see Trade Practices Act 1971 s.66B(2), Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores (1972) 127 C.L.R. 617. Similarly standing down an employee by reason of the circumstances that he "has failed to join in industrial action", Conciliation & Arbitration Act 1904 s.5 See Wood v. City of Melbourne Corporation (1979) 26 A.L.R. 430. In such cases the problem is to identify the actuating factor in the mind of the person engaging in the conduct in circumstances where on the evidence there are various possible factors. et a ct ee ee nn ee ee oe ead mee ne te tan nN Me es wet te el ner tat er es Mae A he te NL a ele Ne Soha Dena Ae Tie SFA Mlen oe MT erent eeLT hE oy 7 13. It appears therefore that in the present case there would be no distinction, exclusion or preference, constituting discrimination, in contravention of the Convention, in Telecom's requirement that the applicant refrain from wearing the caftan. In relation to the situation arising under the Convention the cases to which I was referred by the parties relating to other anti-discriminatory provisions concerned Statutory provisions in different terms. Thus, In Re Rocca Group Ltd. v. Muise 102 D.L.R. (3d) 529 the question before the Court was whether the conduct in question was an "affront to the dignity of a female customer". In Schmidt v. Austicks Bookshops Ltd. (1978) 1 C.R. 85 a decision concerning the Sex Discrimination Act 1975 of the United Kingdom the critical issue was whether there had been "less favourable treatment of female employees." The Act provided that a person discriminated against a woman ... if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man. To my mind this text directs attention to the actual treatment. The actual treatment necessarily proceeds on the grounds of sex. The Court of Appeal took the view in Peake v. Automotive Products Ltd. (C.A.) (1978) Q.B. 233 that "arrangements which are made in the interest of safety ... are not infringements of the law." See per Lord Denning at p. 239. This ground of the decision was doubted by the same learned REO OE TT TN EEE TTS a ee eC SNE PSTN PNR AS AO RR IR A sort ah oedeeiaal i | | | | | | I | | | | | | | | | | | | } | | | | | | 14. Judge in Ministry of Defence v. Jeremiah (C.A.) (1980) 1 Q.B. 87 at p.98. But the text in question differs materially from the Convention. To tell a man he must not wear a caftan whereas 1f he were a woman he could do so is to treat him in that manner on the ground of his sex. But that is not to say that the distinction was made by some person on the ground of sex. That matter would be decided by asking not whether the actual treatment was on the ground of sex, for it clearly was, but what was the ground for the decision in the implementation of which, that kind of treatment resulted. See also Friedman v. District Court 48 L.W. 2794. Employer's Common Law Right to give Directions Concerning Dress The applicant contended that there was no common law right in Telecom to give directions that he should observe standards acceptable to it in the matter of dress or any directions as to what he should wear in the performance of his duties. No such direction was shown to be authorised by any statute or regulation and must be found if at all in the terms of the contract of the applicant's employment. It is apparent that the contract of employment contained no express term as to the dress to be worn by the applicant as an employee of Telecom. Accordingly the right to give the directions that were given must be found, if at all, in an implied term. TEE ETT EOS TOILE me mE pee Re em oo me 1 --—— — —- --- -—- awe eee SHH eens NRA nem ean! mt pa Lt in soma le eA il Lane er ne Hal TS Re A A A i a te eran tr Oe Mira Pare Ow eT aT eae 15. Counsel for the applicant said that although the Board did not say so in so many words it had regard to the existence of what was called a "policy" of Telecom in relation to dress which was said to exclude the wearing of a caftan by a man. It was contended that no such policy was proved and even if it had been it would have been quite irrelevant on the issue of the existence of the relevant implied term discussed hereafter, I accept this contention. The actual terms of the employment of the applicant were not in evidence. But it 1s clear that the applicant was engaged for remuneration to do the clerical work mentioned above. It would be part of his duty to work with other employees in a situation such as that described above. As was said by Lord Tucker in Lister v. Romford Ice & Cold Storage Co. Ltd (1957) A.C. 555 at p. 594:- "Some contractual terms may be implied by general rules of law. These general rules ... derive in the main from the common law by which they have become attached in the course of time to certain classes of contractual relationships, for example, landlord and tenant, inn keeper and guest, contracts of guarantee and contracts of personal service ... Without attempting an exhaustive enumeration of the duties imposed in this way upon a servant, I may mention: (1) the duty to give reasonable notice in the absence of custom or express agreement; (2) the duty to obey the lawful orders of the master; (3) the duty to be honest and diligent in the master's service; (4) ... (5) ... (6) ..." OT TTR ONTO A A CS AN AON TT ——- —-- eee et -- wer 16. Of course in relation to the duty to give reasonable notice the question of what notice is reasonable in any particular case is a question of fact to be decided by reference to the express terms of the contract and the surrounding circumstances. When one comes to identify orders that are lawful, in the context of a contract of employment, it is not lawfulness or unlawfulness in relation to the criminal law that 1S relevant, but whether the order is one, which, by the terms of the contract, the employer according to Jaw, is entitled to give and have obeyed. What is lawful, for the purpose, must in this case be ascertained from the implied terms of the contract. What those terms are is, of course, a question of fact. Lord Tucker contrasted contractual terms implied by general rules of law with those cases in which, from their particular circumstances, "it 1s necessary to imply a term to give effficacy to the contract and make it a workable agreement in such manner as the parties would clearly have done if they had applied their minds to the contingency which has arisen.". "These", says Lord Tucker are the "officious bystander" type of case, to use MacKinnon L.J.'s well known words in The Moorcock (1889) 14 P,D, 64. Accordingly, in this case to establish that the employer is entitled to require his employee to maintain a particular standard of dress it is necessary to show that the officious bystander having regard to the express terms of the contract and the surrounding circumstances would say that there is a -- pe Ne et meee ee palace Nanaia i aban Niet tanta tn Nert — a e P H 17. term in the contract to that effect. In performing this exercise it 1s necessary for him to remember that he speaks after the contract has come into existence. His task concerns a possible term to which neither party directed its attention before entering into contractual relations with the other. It is not a question of what stipulation either party, looking back, believes it would have made. On that basis they might never have been ad idem and the contract never have eventuated. The officious bystander has to contemplate a willing but not anxious employer and a willing but not anxious employee, persons with some equality of bargaining position. Probably in the nineteenth century such persons were easy to find. Today, the position is different. The only terms to be implied are those which it is necessary to imply to give efficacy to the contract and to make it a workable agreement in such manner as the parties would clearly have done if they had applied their minds to the contingency which has arisen. The important words are "necessary", "to give efficacy", "workable" and "clearly". The strict nature of the test, so stated, is in line with what was said by Jordan C.J. in Heimann v. Commonwealth of Australia (1938) S.R. (N.S.W.) 691 at p. 695 to the effect that :- "In order to justify the importation into a contract of an implied term which is not to be found in the express language of the contract when properly construed, and is not annexed by some TRA ETD ER TN OO HN EP RGA OY yt Ge em ee adabfaenl ate ted arm Pate Le a ee ee eee te een ne Ree Lie nee ae aeemee mash hae tei pen ie Pn aE NR re EER LT NE Ae ROE AN gerne —--—. _ -—— od ee ee ee - 18, recognised uSage, or by statute or otherwise it is essential that the express terms of contract should be such that it is clearly necessary to imply the term in order to make the contract operative according to the intention of the parties as indicated by the express terms." and further, "...It is not sufficient that it would be reasonable to imply the term. ~-. It must be clearly necessary. And the test of whether it is clearly necessary is whether the express terms of the contract are such that both parties, treating them as reasonable men ~ and they cannot be heard to say that they are not - must clearly have intended the term, or, if they have not adverted to it, would certainly have uncluded it, if the contingency involving the term had suggested itself to their minds..." See also Scanlan's New Neon Ltd. v. Tooheys Ltd. (1942) 67 C.L.R. 169 where, per Latham C.J. at p. 195, these words of Jordan C.J. are referred to with approval. The officious bystander in the present case on being asked what the parties clearly would have agreed upon if they had applied their minds to the contingency which has arisen, and still have entered into the contract, would need to be informed as to the circumstances relevant to the contract. In this case he would be informed that Telecom was a very large institution responsible for the provision of essential telecommunication services throughout Australia. He would, however, understand that to persons engaged in clerical or other employment in Australia freedom in matters of dress is sal a en ne La Ts SURF ie ON ee tiie tt nee lee Mel neal i ee 19. generally regarded as a basic and valued personal interest not lightly to be traded away. He would know however that the work under the contract of employment could be performed by persons dressing in many ways, some of them less conventional than others. It may be noted that in this very case the applicant, in his caftan, was an efficient officer and not in the van of Telecom's visible presence. It would be in this context that the officious bystander would look for a term which could be described as necessary to give efficacy to the contract to make it a workable agreement in such manner as the parties would clearly have agreed if they had applied their minds to the contingency which has arisen, or to make the contract operative according to the intention of the parties as indicated by its express terms. It seems to me that no more could have been found by the officious bystander concerning the matter of dress than that the parties would have included a term that the employee should adopt a standard of dress that was reasonable having regard to all circumstances relating to the performance by the employee of the work to be performed by him for Telecom under the contract. Under such a term the employer could lawfully give directions for observance of a standard of dress that was reasonable or the adoption or avoidance of particular items of dress which, objectively regarded, it would be reasonable to ee a a et i A RM FE A a emer an te et ela Baha CO NATL ERT EO me Ng me PES Mm mk AT CR CA NRMP ey a ol 20. adopt or avoid. But it could not give directions and require obedience thereof merely on the ground that what was directed waS acceptable to it. It was submitted by counsel for Telecom that the implied term should be different, namely, that it should be expressed as, that, the employer had a right to require the employee in matters of dress to comply with such directions as the employer might reasonably consider to be appropriate. It was put that the contract being one for employment in the employer's business the officious bystander would respond to the view that a large measure of discretion should be accorded to an employer whose money is at risk or who like Telecom had to present his organization to the public. No authority supporting this view was cited. I do not think that the officious bystander would regard such a term as necessary according to the tests of an implied term as stated by Lord Tucker or Jordan C.J. It is in the normal course of common law for standards that are objectively reasonable to be adopted where a standard is not expressly stated but must be supplied by implication. See the observations of Dixon J, as he then was, in Reid v. Moreland Timber Co. Pty. Ltd. (1946) 73 C.L.R. 1 at p.13. I think this conclusion is very much in line with the observations of Higgins J. in Australian Tramway Employees' Association v. Brisbane Tramways Company Limited & 1 TO ae re Argent tone oe — a => a ---- eee NnineaLiiemanimn ve tet mms Ae a re me akan el nee a: LR RE CTT TE RE RS A A RE a Pm, — - _ — - ae ee Saad 21. Ors. (1912) C.A.R. 35 at pp.41 and 42. He said:- "Mr. Badger has a quaint theory that he has a common law right to tell the employee what he should wear, apart from the power given to make regulations. I know of no such common law right. A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse to attend a particular church or to wear a certain maker's singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work. Prima facie, a man may wear what he likes so long as he does not offend against decency; and the burden lies on the employer to show the contrary." What is reasonable in particular circumstances or at a particular time is a question of fact. If in dispute it will depend upon the finding of whatever is the appropriate tribunal. There is a difference in nature between a duty to maintain a standard reasonable in the circumstances and a duty "to maintain a standard of dress generally acceptable in the community and in Telecom" (charge 1), or to maintain a standard of dress acceptable to Telecom, (charges 2 and 3). As to the first charge, there are two aspects to be noted. First, the expression "generally acceptable in the community" is vague and embarrassing to a person charged. This was recognised by counsel for Telecom at the opening of the proceedings before the Board. He sought leave to amend Mma Ed tne NE ea kl en be ite ne PAA hil oe ve te A A A EI RY RM AY A I Sates AL Dll OSS dee 24. terms. It is after enquiry and decision of an authorised officer that he may be "charged" with having failed in his duty in one of the respects specified in s.58(1). A copy of the charge may be required to be furnished to the organization to which the officer belongs. There may ensue an inquiry into "the charge" by an authorised officer, as a result of which that officer, if "satisfied" that the officer has failed to fulfil his duty as an officer, may decide upon certain sanctions. (see s.58(2) to (9)) The proper formulation of the charges is clearly a matter of importance. In particular if the officer is found guilty in relation to the charge as formulated the finding will be part of his record. It is particularly important that the allegation in the charge be within one of the specified items in s.58(1). To dismiss this appeal with the allegations standing as charged, by adopting the proposal that the Court should act according to the substance of the matter, would misrepresent the situation, and allow it to appear as a matter of record that there was a conviction on those charges, as though those charges correctly reflected Telecom's entitlement in respect of this officer, and accordingly all officers. It is fundamental that a finding of guilt be made and appear to he made by reference to the actual misconduct charged and not other misconduct. It was suggested that the course proposed would be a satisfactory course because the Board found, as a fact, that the direction of Telecom objectively looked at, was \ FORMS Ae eA PLAC UO) UT te eth tebe, Rett ct AN here ec ci has RON Ee mt ae Halk na 25. reasonable. But I do not think it did. Relevant passages in the findings are set out in the following terms:- "On the whole of the evidence the Respondent, through its Officers senior to the Appellant and who were lawfully authorised so to do, did give and was justified in giving the directions set out in the aforementioned charges. The Appellant at all material times failed to maintain a standard of dress acceptable to the Respondent. Each one of the three directions were reasonable and lawful directions in all the circumstances with which this Board is concerned." and later "The Board adopts the submissions made by Mr. Black regarding the Common Law rights of the Respondent to give the three relevant directions to the Appellant, that is to say, that he was required to maintain a standard of dress acceptable to the Respondent." In the light of the terms of the charges and the reasoning of the Board taken as a whole this is a finding that, on the basis that Telecom was entitled to specify the standard of dress, the direction was reasonable, in other words, that it was a reasonable exercise of a right to determine what was acceptable, a right which of course Telecom did not have. As mentioned above, whether at any time the wearing of a caftan would constitute a non observance of the applicant's obligation to observe the standard set in the implied term of the contract 1s a question of fact. The onus of proof of non observance is on Telecom. Having regard to the foregoing I consider that EEE ERT OT TORE ATR aera area ee aman ee nn a a el da rn Nat le melee ae ale an nn ep ein fae Lie i em Re ela S STi accel Sale Ne Keener NT be muah dA Rant Pear he nar en ett ne , 26. grounds of application for this review in particular, 2(a), 3(b),(£),(h),(i),(3), 4(e) and 5 of the application dated 6 August 1981 have been established. Accordingly it is my conclusion that the appeal must be allowed and the decision quashed. Order of the Court The Court is empowered, by s.16{1) of the Administrative Decisions (Judicial Review) Act 1977, to make, on an application for a review in respect of a decision, all or any of the orders specified in paragraphs (a) to (d) of that section. One order so specified (para.(c)) is an order declaring the rights of the parties in respect of any matter to which the decision relates. Having regard to the matters argued before me it appears to me that this is a case in which in respect of certain matters the Court should declare the rights of the parties. In the light of the foregoing the orders of the Court are, 1. That the decision of the Disciplinary Appeal Board whereby it dismissed the applicant's appeal against the decision that he had committed the conduct alleged in the three charges brought against him pursuant to s.58 of the Telecommunications Act 1975 namely; batt stad "soit ome meta chreateac i eee ealeamneea ee - — wone oe se en ae ere eee SENET Ye NR EEE Te 27. l. That the said James Alexander Hart on 28th day of May, 1980 was guilty of wilfully disobeying a direction namely to maintain a standard of dress generally acceptable in the community and in Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction. 2. The said James Alexander Hart on the 17th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain a standard of dress acceptable to Telecom given to him in his official Capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction. 3. That the said James Alexander Hart on the 18th Gay of February 1981 was guilty of wilfully disobeying a direction, namely to maintain the standard of dress acceptable to Telecom, given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having the authority to give such a direction, and that the applicant be fined the sum of $40 on each charge, be quashed. That the respondent Commission pay to the applicant his costs of this application. That the question of costs of the proceedings before the Disciplinary Appeal Board be reserved. That the Court declares the rights of the parties as follows:- (a) in respect of the dress to be worn by the applicant in and about the performance of TR PRR — — a ae a ——- _- ot nn nage t — ens oo ed ae Pee ee tee ee ee re er ek ate ean CONSE athe A ATE a ATA AO td EM te hee La le AE ye ci tle We arte oe 28. his duties it is a term implied in the contract of employment that at all times, the applicant will observe a standard of dress that is reasonable in all the circumstances of his employment; (b) in respect of the Convention, No. 111 of the International Labour Conference, s.6(4) of the Telecommunications Act 1975 does not of itself impose upon the . respondent Commission a duty to refrain from conduct constituting discrimination as defined in that Convention. emer SE ETRE PAE He, ' i I certiy that this and the Ney SCYCMV Preceuing payer ate a true copy oF thy Reasons for Judgment herein of the Honomable Mr. Justive SMW RE aM re eth Te Associate Dated:.23-/2-3/ AChE eee PMLCL SDTARIE 2 WO OER SRT IEEE SOO ETE aU SSS OK 6 4am bet. 2 See Ra ot eS ST A TITS ge a SI enn ee ener ~ Asker cp eee re ee rey