JUDGMENT No. 104.21. CATCHWORODS INDUSTRIAL LAW - prosecution under 3.5(1) - whether dismissal by reason of circumstance that informant was delegate or proposed delegate of union - not "delegate" appointed in accordance with union rules - meaning of "delegate" - whether spokesperson for workers sufficient to constitute him a delegate - consideration of operative factors in dismissal. Conciliation and Arbitration Act 1904 s.5 PLUMTON V. CATHAY HOTEL PTY.LTD. Q.2 of 1987 SPENDER J. BRISBANE 22 OCTOBER 1987. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) Q.2 of 1987 INDUSTRIAL DIVISION ) BETWEEN : CHRISTOPHER PLUMTON Prosecutor AND: CATHAY HOTEL PTY. LTD. Defendant MINUTE OF ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 22 OCTOBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: the information be dismissed grant liberty to apply within 7 days on the question of costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. | IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) Q.2 of 1987 INDUSTRIAL DIVISION ) BETWEEN : CHRISTOPHER PLUMTON Prosecutor AND: CATHAY HOTEL PTY. LTD. Defendant SPENDER J. BRISBANE 22 October 1987. REASONS FOR JUDGMENT This 18 a prosecution in respect of an alleged breach of s.5(1) of the Conciliation and Arbitration Act 1904 ("the Act"). Section 5(1) relevantly provides: "An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee - (a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or (d) being a member of an organization which is seeking better industrial conditions, 1s dissatisfied with'his conditions; or (f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or 1ts members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization." The information alleges that on the 18 November 1986 Cathay Hotel Pty. Ltd., being an employer within the meaning of the Conciliation and Arbitration Act 1904, dismissed an employee, the informant Mr. Plumton, contrary to the provisions of s.5(1) of the said Act. The particulars of the charge, after amendment, are:n- "A. Dismissing an employee, to wit Christopher Plumton, by reason of the circumstance that he was a delegate or proposed delegate or member of the Federated Liquor and Allied Industries Employees' Union of Australia and the Queensland Branch thereof. B. Dismissing an employee, to wit Christopher Plumton, by reason of the circumstance that he was a member of the Federated Liquor and Allied Industries Employees' Union of Australia and the Queensland Branch thereof which was seeking better industrial conditions and was dissatisfied with his conditions. C. Dismissing an employee, to wit Christopher Plumton, by reason of the circumstance that he was a delegate of the Federated Liquor and Allied Industries Employees' Union of Australia and the Queensland Branch thereof and as a delegate had done a lawful act for the purpose of furthering or protecting the industrial interests of the said union or its members, being an act within the limits of the authority expressly conferred on him as a delegate by the said union." Christopher Plumton commenced employment with the defendant company at the Prince Consort Hotel in Brisbane in about August 1986. He was employed by the then manager of the hotel, David Knight, originally as a casual bar attendant. He subsequently became a permanent employee described by the parties as a "roustabout". Mr. Plumton described his duties in an affidavit:- "My duties included mixing and dispensing of drinks, and setting up bars. I was also being trained to count tills and change floats, reading tills and balancing cash. I relieved in the Bottle Shop when necessary. I also undertook duties associated with beer reticulation and including closing down and flushing of beer lines at the end of a day's trading and bar supervision which included sending staff on breaks, cashing change at bank, setting up the Cellar Bar for disco nights, stocking stubbies for Friday night disco and opening the hotel for trading in the mornings." Much of the evidence in this case concerns an incident which took place on the evening of 7 November 1986 and the events which followed. Shortly before that date, Mr. Knight ceased to be employed at the Prince Consort Hotel. The management of the hotel had passed to Mr. Robert Mew, a director of the defendant company ("Cathay Hotel"). There was evidently some ill feeling between Mr. Knight and the new ownership 'of the Prince Consort Hotel. Mr. Mew asserted in evidence that he felt threatened by Mr. Knight. At the time with which this proceeding is concerned, the Prince Consort Hotel had a reputation as a fairly "rough" hotel, and a significant proportion of its patronage were indigenous Australians. According to Mr. Plumton, Mr. Knight, when the manager of the hotel, had very little trouble controlling the behaviour of patrons, but that since the termination of Mr. Knight's employment, the behaviour of patrons had deteriorated. On 7 November 1986, Mr. Plumton finished work at approximately 6 p.m. and some time later that evening went to the Wickham Hotel, Fortitude Valley, where he met Mr. Knight. At about 10 p.m., he went in the company of Knight to the Cellar Bar, a disco at the Prince Consort Hotel. Mr. Knight had, on a number of occasions since the termination of his employment, returned to drink at the hotel, a matter of concern to his previous employer. At approximately 11 p.m., two plain clothes police officers entered the Cellar Bar, arrested Mr. Knight, and removed him. The police had been called by management to remove Mr. Knight from the premises after he refused to leave. Mr. Plumton deposes to the fact that, as a consequence of the police intervention on the evening of 7 November 1986, the patrons of the disco, and in particular a number of aborigines present, became upset and fights broke out. Because of the disturbance and the fighting in the Cellar Bar Mr. Plumton considered it to be unsafe for staff to continue working and suggested to staff that they stop work. Mr. Plumton then made an announcement over the public address system. He says that he announced that the staff were ceasing to work because of Knight's arrest and because the staff considered it unsafe to be working. Mr. Plumton then spoke to Mr. Mew. Mr. Mew was informed that the workers were going on strike until David Knight was released, saying that they considered Mr. Knight's arrest to be the cause of the disturbances. Mr. Plumton says that he believed that if the management of the hotel approached the police, Mr. Knight would be released, and as a consequence the disturbance at the hotel would cease. Mr. Hing, the father of Mr. Mew, and another director of Cathay Hotel, responded by saying that, 1f the staff did not return to work that evening, they would be dismissed. The matter was not resolved that evening. A staff meeting was then organised by Mr. Plumton at the hotel on Saturday, 8 November 1986 at 9 a.m. The meeting was attended by the acting assistant secretary of the Federated Liquor and Allied Industries Employees Union of Australia Queensland Branch, Mr. Hardie, and a union organiser for the area, Kathy Neucom. The meeting was an informal one. The topics discussed included the safety of staff at the hotel, the need for improvement in security measures at the hotel, and the employment status of those employees who had not returned to work on the previous evening. The meeting , agreed that a member of staff accompany the union officials to put to management demands formulated at the meeting. Mr. Plumton, being the member of staff most familiar with the events of the previous evening, was chosen to fill this role. At the meeting of the delegation with management, agreement was reached that no worker would lose his employment as a result of taking part in the incident the previous evening, and that the management and workers were to meet the next day, Sunday, 9 November 1986, without union officials being present, to discuss issues of concern arising out of those events. A further meeting took place on the Sunday, which was attended by the staff and management. At this meeting the staff were introduced to a Mr. Potter who was to assume an advisory role to Cathay Hotel in the running of the hotel. Mr. Potter was the previous licensee of the hotel with some deal of experience in the hotel trade. Mr. Potter gave the staff what he described as a "pep talk" and stated that measures would be undertaken to improve the standard of the hotel in general. During the next week or so, a number of confrontations occurred between Mr. Potter and Mr. Plumton, including an incident where Mr. Potter purported to dismiss Mr. Plumton for smoking. In fact, Mr. Plumton had been smoking in an area which had been designated by Mr. Mew as an area in which staff were permitted to smoke. Mr. Potter was clearly of the opinion that Mr. Pliumton was a troublemaker and on at least one occasion invited Mr. Plumton to resign. Potter stated in his evidence that he had reproached Mr. Plumton on a number of occasions for disturbing other staff while they were working, and also on his failure to rectify a simple problem with the gas line. During this period, the defendant company advertised the position of duty manager at the hotel. Mr. Plumton says that he become concerned that there would be insufficient work for two duty managers and that he considered himself, in effect, to he performing the role of a duty manager, though his designation was officially that of a roustabout. Mr. Plumton's job as permanent roustabout was during this time offered to Mr. Michael Bell, who was employed as a casual roustabout. Mr. Bell refused. Ultimately, Mr. Plumton was dismissed on the 18 November 1986, the reason given being his inexperience. Instances of such inexperience cited by Mr. Mew and Mr. Potter in their evidence included failure to flush out the beer lines properly, failure the lock the front door of the public bar one evening, and a_ general lack of understanding of beer reticulation. Mr. Mew claimed under cross-examination that he had received complaints approximately four to five times a week from the cellarmen about the flushing out of the beer lines. However, despite this alarming number of complaints he says he never attempted to ascertain who was responsible and discuss the problem with that person. It may be accepted the cleaning out of the beer lines is important to the efficient conduct of an hotel. It is unclear from the evidence whether Mr. Potter did actually confront Mr. Plumton on the issue of flushing out the beer lines. There certainly were not the approaches to Mr. Plumton by anybody from the side of management that one would expect if the deficiencies in this important respect were as frequent as asserted. The cellarman from whom these regular complaints allegedly originated (and who was still an employee of the hotel) was not called to give evidence in these proceedings. In this regard, the observations of Smithers and Evatt JJ. in Bowling v. General Motors Holdens Pty. Ltd. (1975) 8 A.L.R. 197, at p.205, might profitably be noted: ",.. in acase in which direct knowledge of the fact in issue is exclusively in the possession of the party who carries the onus, and the witnesses who can give that direct evidence are not called, and are not shown to be disqualified or incapacitated in some way from giving evidence, the falrlure of that party to call such witnesses is a matter calling for close scrutiny of the facts upon which he relies. The force of this comment is not reduced by the fact that these proceedings are criminal in nature, because by reason of s.5(4), the defendant''s case depends upon it affirmatively establishing that it was not actuated by the circumstance that the informant was a shop steward: . I do not believe that complaints in relation to such an important matter as beer reticulation could have been taking place for so long and that no decisive action was taken in this regard. Mr. Mew obviously has no experience in the running of a hotel and has difficulties communicating with his staff. However, one would anticipate that if the problem was as serious as suggested, some approaches to the party or parties responsible would have been made by the management. Mr. Plumton strikes me as' a hard working, ambitious young man with a degree of initiative who is eager to make a career for himself in the hotel trade. His self confidence and willingness to seek redress for perceived wrongs did not enhance his popularity with the new management, and were seen with positive distaste by Mr. Potter who, in giving his evidence, gave the impression of preferring staff who tugged the forlock more often than Mr. Plumton was obviously wont to do. My opinion of Mr. Plumton was that, had he been given further training at the Prince Consort Hotel, he would have proved an asset to the management of the hotel. It is alleged by the prosecutor that the defendant company has breached s.5 of the Conciliation and Arbitration Act in three particulars. First, that ait dismissed an employee, Mr. Plumton, by reason of the circumstance that he was a delegate or proposed delegate or member of the Federated Liquor and Allied Industries Employees' Union of Australia. Secondly, that it dismissed Mr. Plumton because he was a member of the said union which was seeking better industrial conditions and he was dissatisfied with his conditions. Thirdly, that it dismissed Mr. Plumton because he was a delegate of the said union and as a delegate had done a lawful act for the purpose of furthering or protecting the industrial interests of the said union or its members, being an act within the limits of the authority expressly conferred on him as a delegate by the said union. It is admitted that Cathay Hotel Pty. Ltd. was at all f relevant times the employer of the informant, and that the 10. Federated Liquor and Allied Industries Employees' Union of Australia was a registered organisation under the meaning of the Conciliation and Arbitration Act 1904. There is no doubt that Mr. Plumton was dismissed. Similarly, it is not disputed in these proceedings that Mr. Plumton was a member of the union at the relevant time. An important question in these proceedings is whether it has been established beyond reasonable doubt that Mr. Plumton was, prior to his dismissal, a delegate of the Federated Liquor and Allied Industries Employees' Union of Australia. In the reply to a request for particulars filed in these proceedings, the prosecutor claims that his authority to act as a delegate of the union was conferred by a vote of other employees at the staff meeting on the morning of 8 November 1986, such meeting being attended by the acting assistant secretary of the organisation anda union organiser. He admits that such authority was not conferred in accordance with the rules of the organisation. Rule 15 of the Federal and Branch rules of the Federated Liquor and Allied Industries Employees Union provides: "(Ca) The Committee of Management of the Branch shall have full power to call for nominations and to appoint delegates to collect members' contributions or other moneys due to the Branch of the Union from members at the place where the delegate is employed or at establishments authorised by the Branch Committee of Management , 11. It is clear from the evidence that this formal process was not followed. However, it was argued by counsel for the prosecutor that it is not necessarily fatal to the prosecution that Mr. Plumton was not formally appointed a delegate of the union in accordance with branch rules. The prosecutor claims that he undertook the duties of a delegate with the authority of the union, although not approved in accordance with the rules of the union. The authority of the union 1s said to be derived by the presence of two union officials, Mr. Hardie and Miss Neucom, at the meeting on Saturday, 8 November 1986. Mr. Plumton's status as the delegate of the union could only have been derived from this meeting. The meeting was attended by approximately 8 to 10 members of staff. Not all those who attended were union members. It is unclear as to how many employees at the Prince Consort Hotel were, at the time, members of the union. Mr. Plumton states in his affidavit: "At that meeting I was elected union delegate to act as spokesperson on behalf of union members at the hotel." Mr. Plumton could not recall the precise method by which he was appointed a delegate, that is whether by vote or by show or hands. However he says the general consensus was that he should act as spokesperson on behalf of the group. He later states: "Mr. Hardie informed both Mr. Mew and Mr.Hing that I had been elected as the union delegate and was there to represent the views of other the staff." Mr. Hardie in his affidavit states: "I told them that they 12. should elect one from their number to be the delegate for the union at the hotel and to accompany me during my negotiations with management. After a short discussion Mr. Plumton was elected as the delegate." Further: "During that meeting I told Mr. Mew that Ms. Neucom and I represented the union and that Mr. Plumton had been elected as the union's delegate at the hotel and had been asked to be present to speak on behalf of the other workers." However, under cross-examination, Mr. Hardie was less certain that Mr. Plumton had been specifically referred to as a delegate. The following discussion 1s indicative of the lack of clarity which surrounds Mr. Plumton's position: "Question: The word 'spokesman' might have been used? Answer: Yes Question: When you went along and saw Mr. Mew, you introduced Mr. Plumton as the spokesman for the meeting? Answer: Yes. Question: You did not use the word 'union delegate', did you? Answer: I may have. I cannot recall precisely. Question: I put it to you that you did not use the word 'union delegate'? Answer: I cannot disagree with that, spokesperson, union delegate." Mr. Mew, in his evidence, was quite adamant that the word 'delegate' was never mentioned in connection with the prosecutor. However, he did state that "... the effect of the words used by Mr. Hardie gave me the notion that Mr. Plumton was some sort of representative". Whether Mr. Plumton was a delegate as envisaged by 3.5(1) of the Act does not turn on whether he was described as a representative, spokesperson or delegate of the group. In Cuevas v. Freeman Motors Ltd. (1975) 25 F.L.R. 67, in the joint judgment 13. of Smithers and Evatt JJ. it was said, at p.72:- "It is clear that the words 'officer' and 'delegate' in s.5 do not necessarily have the same meaning as such words where they appear in the rules of an organisation." And further, at p.73:- "The expression 'delegate' in its ordinary meaning comprehends a person sent or deputed to act for or represent another or others". The meaning of the word "delegate" in the context of s.5(1)(f£) was considered by Ellicott J. in Stapleton v. African Lion Safari Pty. Ltd. (1982) 65 F.L.R. p.61 at p.68 where he said:- "The word 'delegate' in s.5(1)(f) could, I think, cover a person who was not actually called a delegate but whose functions were those of a delegate. He might, for instance, be called a 'representative' yet be a delegate for the purposes of the paragraph: see Cuevas v. Freeman Motors Ltd. (supra), at pp.71-75." He further said (at p.69):- "In my opinion, par.(f) contemplates a delegate who is appointed in accordance with the rules. It speaks of a delegate doing an act or thing which is lawful for the purposes of furthering the industrial interests of the organization 'being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization'. These latter words, in my opinion, indicate that the authority which he exercises is one that is conferred in accordance with the rules. This can only be done, in this case, pursuant to r.70 and this requires a delegate to be appointed in 14. writing". In my view, at best for the prosecution, Mr. Plumton was appointed at the meeting on Saturday, 8 November 1986 to act in a representative capacity in negotiations with the Management on behalf of those present at the meeting. The meaning assigned to the word "delegate" in Ceuvas v. Freeman Motors Limited (supra) as one who is "sent or deputed to act for or represent another or others" would encompass the role assumed by Mr. Plumton. However, the Act requires the delegate to be a "delegate of an organisation". While Mr. Plumton may have been "a delegate" for the purposes of the Act, I am not satisfied to the requisite standard or at all that he was a "delegate of an organisation". Mr. Plumton was nominated by those present at the meeting as spokesperson to express their concern in relation to the issue of security. Those present at the meeting included both unionists and non-unionists. I do not believe that the presence of union officials at the meeting is sufficient to warrant the conclusion that Mr. Plumton 1s properly to be characterised as a delegate of the union. The true situation, in my opinion, is that Mr. Plumton was a delegate or spokesperson of the employees at the Prince Consort Hotel who were present at the meeting rather than a delegate of the relevant union. There is no evidence to suggest that those members of the union present at the meeting elected Mr. Plumton as their delegate. I do not find the role assumed by Mr. Plumton as spokesperson for the 15. workers of the hotel sufficient to constitute him a delegate of the union for the purposes of the Act. Therefore I am not satisfied beyond reasonable doubt that the circumstances necessary for the operation of 3.5(1)(a) or 5(1)(f£) exist in this case. Section 5(1)(f) has an additional requirement that the act or thing done for the purpose of furthering or protecting the industrial interests of the organisation or its members be an act or thing done within the limits of the authority expressly conferred on him by the organisation in accordance with the rules of the organisation. As indicated previously, no expressed authority was conferred on Mr. Plumton by the organisation in accordance with the rules of the organisation. Section 5(1)(a) also contemplates the dismissal of an employee by reason of the fact that he proposes to become a delegate of an organisation. Mr. Hardie in his affidavit states that: "In the normal course of events the fact that Mr. Plumton had been elected to be a Delegate at' the Prince Consort Hotel would have been placed before the Committee of Management of the Queensland Branch of the Union at the next meeting. In the circumstance where workers at at particular hotel express the desire that a person be the Delegate, the Committee of Management almost invariably confirms that action and a letter is sent from the Union to the employer notifying the employer that the person is now the Delegate. In the case of Mr. Plumton and the Prince Consort Hotel this action was never taken because Mr. Plumton was sacked on the 18th November, 1986 and the question of his being a Delegate for the hotel after that date was no longer relevant." 16. Counsel for the prosecutor argued that the fact that Mr. Plumton persisted in raising the issue of security and remained in close contact with the union is sufficient evidence from which to infer that Mr. Plumton continued in his representative capacity in the week subsequent to the meeting and that in due course his position as a delegate would have been recognised by the Federated Liquor and Allied Industries Employees Union. Ultimately, it might have eventuated that Mr. Plumton would be formally appointed as a delegate of the union. The fact is, however, that at the time of his dismissal, Mr. Plumton did not propose to become a delegate of the union within the meaning of para.5(1)(a) of the Act, and whatever may be the reason or reasons for his dismissal, Mr. Plumton was not dismissed by reason of the circumstance that he proposed to become a delegate of the union. I am satisfied that Mr. Plumton was not dismissed simply because he was a member of the union. Other union members at the hotel continued in employment and were not discriminated against to their detriment. His union membership was not a substantial and operative factor in his dismissal. Finally, it is necessary to deal with the submission that the dismissal of Mr. Plumton came within the terms of 3.5(1)(d), that is, that he was dismissed by reason of the circumstance that "being a member of an organisation which is seeking better industrial conditions, is dissatisfied with his conditions". La Regard must also be had to the terms of 3.5(4), which 17. provides:- "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." On this aspect of the case, two things may be said. First, the evidence does not permit the conclusion that at the time of Mr. Plumton's dismissal, the Federated Liquor and Allied Employees Union of Australia was seeking better industrial conditions. Second, even if the union were seeking better industrial conditions at that time and Mr. Plumton was dissatisfied with his conditions, I am satisfied on the balance of probabilities that that circumstance was not a substantial and operative factor in his dismissal. The difficulty about this aspect of the case, (and it is areal one) is that the case for the informant 1s really predicated on a view that Mr. Plumton was unfairly dismissed, and an attempt has consequently been made to fit the circumstances of his dismissal into ome or other of the statutory circumstances proscribed by s.5 of the Conciliation and Arbitration Act 1904. That there are grounds for thinking that Mr. Plumton's dismissal was unfair may properly be accepted. I simply do not believe the proferred explanation concerning the repeated baa! 18. failure properly to flush the beer lines. I believe this feature has been resorted to, to give a veneer of respectability to a managerial decision difficult otherwise to justify. The view I take of the evidence is that there was a serious clash of personalities between Mr. Potter and Mr. Plumton. Mr. Plumton was in fact dismissed because of the view that was entertained that he was non-cooperative, divisive, and a troublemaker. It emerged clearly from the evidence of Mr. Potter that he regarded Mr. Plumton as an uncooperative employee and "a stirrer" and that the hotel would run more smoothly without his presence. He suggested to Mr. Plumton that he might wish to resign and, on another occasion, attempted to dismiss him over the smoking incident to which I have earlier referred. As to the conclusion that the evidence does not establish that at the time of Mr. Plumton's dismissal the union was seeking better industrial conditions, the sequence of events suggests friction between Mr. Plumton and primarily Mr. Potter. However, Mr. Plumton does not assert any reagitation of any question of security or staff safety with any person from management, and there is no suggestion from any other source of continuing interest by the union in these aspects. t The opinion I have is that, from the union's point of 19. view, questions of the of staff were security and that the union's industrial conditions at the concerned, were realised by the November 1986. For the above reasons, Counsel and Solicitors for Prosecutor: Counsel and Solicitors for Defendant: Date of Hearing: Date of Judgment: security of the hotel and the very much peripheral to the Prince meeting of safety question of job objectives so far as the Consort Hotel were Saturday, 8 I dismiss the information. ! certify that this and the k= preceding pages 4ré a true copy of the reasons for judgment herein of His q \ Man Mr Justice Spendet " "Associate 22 |re{O7 Dated Mr. Jerrard instructed by C. Carberry & Co. Mr. Applegarth instructed by Chambers McNab Tully & Wilson 30 April and 1 May 1987 22 October 1987