at UDGMENT No. CATCHWORDS Industrial law - registered organization - whether employees members - whether previous resignations - whether requirement that membership "subject to the approval of the application by the Federal Executive" a condition subsequent - whether financial members - whether employee a "delegate". Industrial law - employer and employee - dismissal - whether by reason of proscribed circumstances - whether organization "seeking better industrial conditions" - whether employees dissatisfied with conditions - whether onus on employer discharged - decision by majority of council. Conciliation and Arbitration Act 1904 ss. S(1l)(a)d(c)(d)(f), (4), (5), 140(1)(c), 145(1). Municipal Officers (Northern Territory) Award 1982 Municipal Officers - Palmerston Town Council (Northern Territory) Award 1986 cl.17 STEPHEN PHILLIP GIBBS v. THE PALMERSTON TOWN COUNCIL Nos. V28 and V29 of 1987 Gray J. MELBOURNE 21ST DECEMBER 1987 FED COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION No. V.28 of 1987 dnd STEPHEN PHILLIP GIBBS Prosecutor THE PALMERSTON TOWN COUNCIL MINUTES OF ORDER THE COURT ORDERS THAT: 1. 2. The defendant, The Palmerston Town Council, is convicted of an offence against s.5 of the Conciliation and Arbitration Act 1904 ("the Act"), in that on 2nd June 1987 it did dismiss Margaret Mary Hooper from her employment, by reason of the circumstances: (a) (b) (c) that she was a member of the Municipal Officers' Association of Australia, an organization of employees registered pursuant to the Act; that she had appeared as a witness in a proceeding under the Act; and that, being a member of the Municipal Officers' Association, which was seeking better industrial conditions, she was dissatisfied with her conditions. The defendant is sentenced to pay a fine of $250.00 in respect of the offence. The defendant forthwith reinstate Margaret Mary Hooper in the position of finance officer or in a similar position. The defendant reimburse Margaret Mary Hooper any wages lost by her asa result of her dismissal on 2nd June 1987. The amount or amounts of such wages lost is or are reserved. Liberty is reserved to either party to apply in respect of the amount or amounts of wages lost, upon giving seven days' notice in writing to the other party. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FED COURT OF STRALIA } DIS' ctr I 4 ) No. V29 of 1987 ) INDUSTRIAL DIVISION ) 8 PHILLIP GIBBS Prosecutor THE PALMERSTON TOWN COUNCIL Defendant MINUTES OF ORDER THE COURT ORDERS THAT: 1. The prosecutor's application to amend the information and summons, by adding the words "or member" therein, is dismissed. The defendant, The Palmerston Town Council, is convicted of an offence against s.5 of the Conciliation and Arbitration Act 1904 ("the Act"), in that on 29th May 1987 it did dismiss Ronnie Richardson from his employment, by reason of the circumstances: (a) that he was a member of the Municipal Officers' Association, an organization of employees registered pursuant to the Act; (b) that he had appeared as a witness in a proceeding under the Act; and (c) that, being a member of the Municipal Officers' Association, which was seeking better industrial 2. . conditions, he was dissatisfied with his conditions. The defendant is sentenced to pay a fine of $250.00 in respect of the offence. The defendant forthwith reinstate Ronnie Richardson in the position of senior municipal inspector or in a similar position. The defendant reimburse Ronnie Richardson any wages lost by him as a result of his dismissal on 29th May 1987. The amount or amounts of such wages lost is or are reserved. Liberty is reserved to either party to apply in respect of the amount or amounts of wages lost, upon giving seven days' notice in writing to the other party. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE ERAL CO AU: > wees VICTORIA DISTRICT REGISTRY Nos. V28 and vV29 of 1987 INDUSTRIAL DIVISION STEPHEN PHILLIP GIBBS Prosecutor THE PALMERSTON TOWN COUNCIL Defendant REASONS FOR JUDGMENT JUDGE: Gray J. DATE: 21st December 1987 PLACE: Melbourne The defendant is charged on two informations with offences against s.5 of the Conciliation and Arbitration 1904 ("the Act"). So far as is relevant, that section provides as follows: "5(1)An employer shall not dismiss an employee...by reason of the circumstance that the employee - (a) is...an officer, delegate or member of an organization... (c) has appeared...as a witness, or has given...evidence, in a _ proceeding under this Act; or (d) being a member of an organization which is seeking better industrial conditions, is dissatisfied with his conditions; or (f) being an officer, delegate or member of an organization, has done...an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. Penalty: $400. (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. (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 may also direct that the employee be reinstated in his old position or ina similar position." In matter no. V28 of 1987, it is alleged that the defendant dismissed Margaret Mary Hooper by reason of a number of the proscribed circumstances, cumulatively or alternatively. The circumstances are: (i) that she was a member of the Municipal Officers' Association of Australia ("the Association"), an (ii) (111) organization of employees registered pursuant to the Act; that she appeared as a witness in proceedings under the Act; that she, being a member of the Association, which was seeking better industrial conditions, was dissatisfied with her conditions. In matter no. V29 of 1987, it is alleged that the defendant dismissed Ronnie Richardson by reason of a number of proscribed circumstances, cumulatively or alternatively. The circumstances are: (1) (ii) (iii) (iv) (v) that he was a delegate of the Association; that he was a member of the Association; that he had appeared as a witness in proceedings under the Act; that, being a member of the Association, which was seeking better industrial conditions, he was dissatisfied with his conditions; that as a delegate of the Association he had submitted a grievance to the defendant on behalf of amember of the Association for the purpose of protecting the industrial interests of the members of the Association, which act was within the limits of authority expressly conferred on him by the Association in accordance with its rules. The Court was told by Mr. Strong of counsel for the prosecutor that the prosecutor is the federal secretary of the Association. Mr. Giudice of counsel for the defendant admitted that the defendant is a body corporate, capable of being charged with an offence in the name in which it is charged. In a case such as this, the prosecutor carries the onus of proving beyond reasonable doubt the basic elements of the alleged offence, including the existence of each proscribed circumstance by reason of which it is alleged that the defendant acted. By reason of s.5(4) of the Act, the defendant carries the onus of proving on the balance of probabilities that it was not actuated by any of the proscribed circumstances alleged. This usually involves the defendant establishing by evidence that each proscribed circumstance alleged was not a substantial operative factor in the making of the decision to dismiss. See General Motors den Pty. Ltd. v. Bowling (1976) 12 A.L.R. 605, at p. 616 per Mason J. (as his Honour then was), and Lewis Construction Co. Pty. Ltd. vv. Martin (1986) 70 A.L.R. 135, at p. 137 per Gray J. By consent of the parties, the two proceedings were heard together, and the evidence in each proceeding was evidence in the other to the extent that it was relevant. It is convenient to deal with the issues which arise under sub headings. 1. s FACTS The following facts were the subject of evidence which was not in dispute and is accepted: (a) The Association is an organization of employees, registered pursuant to the Act, and therefore an organization for the purposes of s.5. (b) Each of Mrs. Hooper and Mr. Richardson was an employee of the defendant. The town of Palmerston was set up as a satellite town of Darwin by the Northern Territory Government under legislation. The early stages of its development were carried out by an authority known as the Palmerston Development Authority. In July 1985, Palmerston was proclaimed a town council, with an elected council of a mayor and six other aldermen. Mr. Richardson was an employee of the Palmerston Development Authority, and continued in his employment with the defendant. At all relevant times, he was employed as the senior inspector, whose major responsibility involved the enforcement of the by-laws of the defendant. Mrs. Hooper was employed by the Palmerston Development Authority as a rates clerk in July 1984. She was subsequently promoted to acting administration officer, and the title of her position was then changed to office manager. In October 1986, she was promoted to finance officer. As finance officer, she was in charge of the finance unit of the administration section of the defendant, and was required to perform various supervisory duties in relation to accounts and the collection and expenditure of moneys. (c) Each of Mrs. Hooper and Mr. Richardson was dismissed by the defendant from her or his employment. Mr. Richardson attended at his place of work on Friday 29th May 1987, and was given a letter signed by the Acting Town Clerk, Mr. Barry Strichen, in the following terms: "At a Special General Meeting of Council on the 28 May, 1987, it was resolved that after viewing the ' operation of Council it was deemed that your services are no longer required and you are to be terminated forthwith. Please ensure that all Council property is returned to the Administration Manager before you leave the premises. Your termination pay is available from the Administration Manager on return of the property." Mrs. Hooper returned to work on Tuesday 2nd June 1987, after being on sick leave. She was handed a letter signed by Mr. Strichen, in terms similar to that given to Mr. Richardson. Each of the two dismissed employees was offered a cheque said to be for a sum covering her or his entitlements to the date of dismissal. Fach refused to accept the cheque. Neither cheque contained any sum in lieu of notice; payment was up to the date of dismissal only. (d) Each of Mrs. Hooper and Mr. Richardson had appeared as a witness and had given evidence in a proceeding under the Act. Once the defendant was proclaimed as a town council, the Association sought to rope it into the Municipal Officers (Northern Territory) Award 1982, an award binding other local government authorities in the Northern Territory. The defendant resisted this claim, and sought an award in terms of the conditions to which employees had been entitled under the Palmerston Development Authority, namely conditions prevailing for limited tenure employees in the Northern Territory Public Service. The resulting dispute was arbitrated by Commissioner Connell of the Australian Conciliation and Arbitration Commission. The Commissioner heard evidence and submissions over several days, including 22nd July 1986. On that day, both Mr. Richardson and Mrs. Hooper gave evidence before the Commission. On 5th December 1986, Commissioner Connell gave his decision, and made an award entitled the Municipal Officers - Palmerston Town Council (Northern Territory) Award 1986. This decision and award represented a substantial victory for the defendant; it involved the rejection of the argument that. standard Northern Territory local government conditions should be applied to the defendant. The conditions of employment laid down by Commissioner Connell's award were largely those prevailing in the Northern Territory Public Service. The Association appealed from this decision and award. On 20th January 1987, the operation of the Municipal Officers - Palmerston Town Council (Northern Territory) Award 1986 was stayed pending the determination of the appeal or until further order of the Commission. On 26th March 1987, a full bench of the Commission heard the appeal. The decision on the appeal was delivered on 15th May; in substance, the full bench ruled in favour of the award, subject to variations being made to reflect more accurately the conditions applied by the defendant at the date when the award was first made. The proceeding was referred to a Commissioner for this purpose. The stay order remained in force until 5th June 1987, 7 days and 3 days respectively after the dismissals of Mr. Richardson and Mrs. Hooper. They did not therefore have the benefit of cl.17 of the Award, which would have restricted in a number of ways the right of the defendant to dismiss then. 2. DISPUTED ALLEGATIONS ON WHICH THE PROSECUTOR CARRIES THE ONUS OF PROOF. (a) That each of the Mrs. Hooper and Mr. Richardson was a member of the Association was the subject of dispute. Before joining the Palmerston Development Authority, each was employed by the Darwin City Council. It is not disputed that each was a member of the Association at the time when he or she worked for the Darwin City Council. When he left the Darwin City Council, Mr. Richardson spoke to John Walkley, an industrial officer attached to the South Australia and Northern Territory Branch of the Association. Mr. Richardson told Mr. Walkley that he understood that he was no longer eligible to be a member of the Association. A letter dated 17th September 1984 from the Darwin City Council to the Association contained a list of persons who were described as having "resigned". The list included "M. Hooper 23 July 1984" and "R. Richardson 2 March 1984". These dates coincide with the dates when Mrs. Hooper and Mr. Richardson joined the Palmerston Development Authority. The branch kept a card for each of the _ two, recording the details of their membership. On ist October 1984, Mr. Richardson's card was endorsed "resigned 2.3.84" 10. and Mrs. Hooper's was endorsed "resigned 23.7.84". No sum of money was then owing by either to the Association. Thereafter they were "rejoined". At all relevant times, rule 9(a) the Association provided as follows: "(a) A member may resign membership of the organisation by notice in writing if - (£1) the member ceases to be employed in or in connection with the industry of the Association, or (ii) the notice is given not less than three months before the resignation is to take effect and payment is made of all subscriptions, fines and levies owing by the member to the Association under these Rules to the date on which the resignation is to take effect. Notice of resignation shall be addressed to the Branch Secretary and delivered to that officer. Any member resigning under paragraph (i) hereof shall be liable for the payment of all subscriptions, fines and levies owing to the Association under these Rules at the date of leaving, and such monies may be sued for and recovered in the name of the Association." of the rules treated as not being members until they of This rule reflects the provisions of s.145(1) 11. of the Act. Certain provisions of rule 7, relating to admission to membership, should also be set out. "(a) An applicant for membership of the Association shall forward or cause to be forwarded to the Secretary of the appropriate Branch in the State in which the applicant resides or works a signed application for membership in the Association. (b) (1) Applications for (d) (ft) membership shall be considered by the Branch Secretary when received, and unless referred by the Branch Secretary to the next meeting of the Branch Committee of Management the applicant shall be and be deemed to be a member of the Association as from the date of the receipt of the application by the Branch Secretary, and shall be liable to pay for the first year of membership only a subscription for the unexpired portion of the then current financial year as at that date. All applications for admission to membership shall be forwarded by the Branch Secretary receiving the same to the Federal Secretary within three months of receipt. An application for membership of the Association from a These are as follows: 12. . person who previously has resigned from or been expelled from the Association shall be conditional on the payment of any moneys owing by the applicant to the Association and subject to the approval of the application by the Federal Executive. Provided that acceptance of a person as a member shall not be invalidated by non-disclosure of previous resignation or expulsion. On 26th September 1985, after the proclamation of the defendant as a town council, Mr. Richardson completed and signed an application for membership of the Association. This application was considered by Theodore Marks, the branch secretary of the South Australia and Northern Territory Branch of the Association and was not referred to the next meeting of the branch committee of management. The application was processed in the records of the branch on 7th March 1986. In approximately January 1986, Mrs. Hooper completed and signed an application for membership, which was handed to a_ representative of the Association. Apparently this application was lost. Mrs. Hooper therefore completed and signed another on 6th January 1987. This application was received at the branch office on or about 22nd January. It was considered by Mr. Marks and not referred to the next meeting of the branch committee of management. 13. It was the prosecutor's case that the respective membership applications were perfected on the dates on which they were considered by Mr. Marks, in accordance with rule 7(b)(i). The defendant argued that neither applicant became a member because each had resigned previously and there was no evidence of approval of either application by the federal executive of the Association, pursuant to rule 7(f). There are two problems with the defendant's argument in this respect. In the first place, it is by no means clear that either Mrs. Hooper or Mr. Richardson had resigned from membership previously. The authorities establish that, unless the rules of a registered organization s0 provide, membership does not cease automatically if a member ceases to be employed in an occupation which falls within the eligibility rules of the organization. Some of the cases which establish this proposition are collected conveniently in Re An Application by Pritchard; Re Federated Clerks' Union of Australia (S.A. Branch) (1985) 12 F.C.R. 66, at p. 73. To them should be added Turner v. Australasian Coal & Shale Employees' Federation (1984) 6 F.C.R. 177, at p. 194. The rules of the Association do not provide for the automatic cessation of membership if a member should cease to be employed in any of the occupations referred to in rule 5, which contains the Association's conditions of eligibility for membership. Even if such a rule existed, the evidence does not disclose that the employment 14. of Mr. Richardson and Mrs. Hooper with the Palmerston Development Authority took them outside rule 5. The Palmerston Development Authority would fall within "Statutory Authorities, Corporations, Trusts, Boards or Commissions" within that rule, and on the limited evidence before me, was exercising "functions of a public nature in = some way analogous to those exercised by local authorities." See R. v. Gough; Ex parte Municipal Officers' Association of Australia (1975) 133 C.L.R. 59, at p. 69 per Gibbs, Stephen, Mason and Jacobs JJ. and Burgess v. Municipal Officers' Association of Australia (1985) 9 F.C.R. 115, at p. 120 per Evatt and Northrop JJ. There is nothing in the present case that could be construed as a resignation or notice of resignation in writing, so as to satisfy the requirements of rule 9(a)(1i1) of the Association's rules or s.145(1)(b) of the Act. In this respect, Mr. Giudice relied on the letter dated 17th September 1984 from the Darwin City Council to the Association. He argued that the Darwin City Council was the agent of each of Mr. Richardson and Mrs. Hooper for the collection and payment of contributions (by the payroll deduction scheme), and so was their agent also for the purpose of communicating their resignations from membership. An employer collecting contributions regularly and paying them to a trade union is not necessarily the agent of the employees from whom the dues are collected, but may be the agent of the trade union. See Re Federated Liquor & Allied Industries Employees' Union of Australia; Ex parte Farrow 15. (1976) 27 F.L.R. 430, at p. 433. Even if there were an agency relationship for the purpose of paying contributions, the employer as agent would not necessarily have authority to bring about the cessation of the employees' union membership by notifying his or her resignation. In the present case, a question of construction also arises. The letter from the Darwin City Council simply informs the Association that certain persons have "resigned". On its face, the letter seems to refer to resignation from employment with the Darwin City Council, not from membership of the Association. Some of those listed as having "resigned" may have been taking up employment which would fall within the conditions of eligibility of the Association, and might desire to remain members of the Association. In such cases, it would be strange if notification by the Darwin City Council that they had "resigned" was enough to terminate their membership of the Association. The letter uses the past tense; it does not have the appearance of giving notice of resignation. In the case of any persons who were resigning from the Darwin City Council to undertake employment elsewhere in, for example, local government, there was no attempt to give three months' notice. There is authority that provisions such as rule 9(a) should be construed strictly, and that where a period of notice is required, notice of resignation can only be effective if it specifies the date of resignation expressly or by implication. See Hassett v. Harding (1976) 27 F.L.R. 457, at pp. 461-463. In the present case, 16. . there is no evidence of any resignation that would comply with rule 9(a) of the rules of the Association, or s.145(1) of the Act. It follows that the membership of Mr. Richardson and Mrs. Hooper continued after they left their employment with the Darwin City Council. The second problem for the defendant arises if I am incorrect in the conclusion that there was no resignation from membership by either Mrs. Hooper or Mr. Richardson. The defendant's argument assumed that the requirement in rule 7(f) of the rules of the Association, that an application from a person who had resigned previously was subject to the approval of the federal executive, was a condition precedent to membership. In my view, this is not so. The change of language from "conditional on the payment of any moneys owing" to "subject to the approval of the application by the federal executive" suggests that the rule intends to make the latter requirement a condition subsequent, not a condition precedent. Anomalies would result from the rule as it appears presently if this were not so. A previous member applying to rejoin and failing to disclose previous membership would take advantage of the proviso to rule 7(f) and would become a member, but disclosure of previous membership (or knowledge by an official of this fact) would mean that an applicant never became a member unless and until the federal executive voted on the application. It was urged that the proviso had been added to the rule at a later time 17. than the creation of the balance of rule 7(f), and that therefore anomalies created by the proviso should be disregarded. In my view, however, the proviso was intended to deal with the situation in which membership could be struck down by a federal executive decision years after the making of an application, upon the discovery of previous membership. The scheme of the rules is that membership should commence on the date of receipt of the application by a branch secretary. Rule 7(d) is designed, among other things, to notify the federal secretary, who can bring to the attention of the federal executive the application from a previous member. The federal executive may then reject the application, although would probably be required to afford natural justice to an applicant before doing so. In Re Australian Glass Workers' Union (1973) 22 F.L.R. 17, at pp. 26-27, Smithers J. held that a provision in the rules of an organization that membership should be "subject to the endorsement by the branch management committee" made that endorsement a condition subsequent to membership. In my view, the same conclusion should be reached as to the requirement of approval of an application by the federal executive in rule 7(f) of the Association's rules. On any view, therefore, Mr. Richardson and Mrs. Hooper were members of the Association at the time when they were dismissed from their employment. They were members either by the continuance of their earlier membership, from 18. the time when they were employed by the Darwin City Council, or by virtue of their respective applications after the defendant was declared a town council. On the evidence, the correct view is that they never resigned, and so remained members throughout. It is to be noted that the prosecutor was allowed by consent to reopen his case on the subject of membership, but called no evidence of any notice in writing of resignation following the cessation of Mr. Richardson's or Mrs. Hooper's employment with the Darwin City Council. The proper conclusion is that both remained members of the Association throughout. (b) Whether Mr. Richardson was a delegate of the Association was also in dispute. Rule 18(a) of the Association's rules provides: "A majority of members employed in any area of membership or part thereof may with the approval of the Branch Committee of Management appoint from amongst their number a person or persons to act as Steward or Stewards, or Workplace Representative or Workplace Representatives and advice of such appointment shall be given to the Branch Secretary and approved by the Committee of Management. Failing such appointment, the Branch Committee of Management shall have the power to appoint a Steward or Stewards, or Workplace Representative or Workplace Representatives and the Branch Committee of Management may at any time terminate the appointment of the Steward or Workplace Representative however appointed. 19. Stewards or Workplace Representatives shall have such rights and duties as Federal Council or Federal Executive may from time to time determine together with additional rights and duties as are determined by the Branch Committee of Management." On 21st May 1986, a meeting of all of the members of the Association employed by the defendant elected Mr. Richardson unopposed as a workplace representative. Two industrial officers of the association, Kym Wilmott and Sharon Holmes were present. At that time, Mr. Richardson enquired about the payment of contributions to the Association. He was told by Ms. Wilmott and Ms. Holmes not to worry about paying them then; it was said that the Association would make arrangements inthe future for the payment of contributions by payroll deduction and when these arrangements were settled, all arrears could be paid by all members. On 26th May 1986, Ms. Holmes reported to a meeting of the branch committee of management as to the election of Mr. Richardson as a workplace representative. In the minutes of that meeting, there appears under the heading "Appointment of Workplace Representatives" a resolution "that in accordance with Association Rule 18, the following members be appointed as Workplace Representatives for the period 24.3.86 to 30.6.87..." there follows a list of persons, among whom is "R. Richardson - Palmerston Town Council". By 20. letter dated 4th June 1986, Mr. Marks wrote to Mr. Richardson, advising him that the branch committee of management had recently appointed him as workplace representative for Palmerston Council until 30th June 1987. By another letter of the same date, Mr. Marks advised the town clerk of the defendant of Mr. Richardson's appointment as a workplace representative. In January 1987, a system of payroll deduction was instituted for the payment of contributions of members of the Association employed by the defendant. At that time, Mr. Richardson paid to the Association arrears of contributions demanded by it. There is no evidence of the amount paid by Mr. Richardson, or of the manner of calculation of his arrears, but there is clear evidence that on the books of the Association Mr. Richardson is treated as having paid all that was required. It is also clear that he paid nothing in respect of the period between the cessation of his employment with the Darwin City Council and the date of his purported rejoining. No sum in respect of this period was demanded of him, because he was not regarded as a member during that time. Rule 11 of the rules of the Association relates to subscriptions. So far as is relevant, it provides as follows: "(a) (b) (c) (d) 21. A member shall pay to the Association either an annual subscription in advance or a payroll deduction subscription in accordance with the scales as determined from time to time by Federal Council or Federal Executive and in accordance with sub-rules (b) and (c) herein. Payment of annual subscriptions may be made annually in advance on the Ist day of July in each year or at the option of the member either - (1) by half-yearly instalments in advance on the lst days of July and January in each year; or (11) by quarterly instalments in advance on the list days of July, October, January and April in each year. Such subscriptions shall be paid to the Association and collected for it by the Branch Secretary or an authorised agent. Payment of payroll deduction subscriptions may be made where a member has authorised an employer to deduct the subscription from salary and the employer has agreed to make such deduction and regularly remit the subscriptions to the Association. In special circumstances the obligation of a member to pay a subscription or arrears of subscription may be waived by the Federal Executive on the recommendation of a Branch Committee of Management. Provided that the Federal Executive may delegate its power to waive subscriptions or arrears to subscriptions to a 22. e Branch Committee of Management and in so doing may establish such policies or guidelines as the Federal Executive determines." Certain provisions of rule 13, which deals with unfinancial members, are also important. They are: "(a) (1) A member owing annual subscriptions or fines or levies for a period of 3 months after they first become due shall be deemed to be unfinancial. (b) An unfinancial member shall not be entitled to any of the rights and privileges of membership including the right to hold or continue to hold office or to participate in any ballot of members of the Association or to vote or speak at any meeting of the Association or Branch. It shall not be necessary to serve an unfinancial member with any notice of meeting." The defendant took the point that Mr. Richardson could never have been appointed a workplace representative in accordance with the rules of the Association, because he was unfinancial and rule 13(b) deprived him of any entitlement to be so appointed. In response to this, the prosecutor advanced a number of arguments designed to establish that Mr. Richardson was a "delegate" within the meaning of s.5(1)(a) and (f) when he was dismissed on 29th May 1987. 23. The first argument was that Mr. Richardson was financial on 21st May 1986, having paid all that was demanded of him by the Association, or having had the payment of his contributions deferred by Ms. Holmes. The obligations of a member to pay are set out clearly in the rules, particularly rules 11(b) and (c), already quoted. Express provision is made in rule 1l(d) for waiver of the requirement that a member pay a subscription. There is no express power in the rules of the Association which would enable the deferral of the obligation to pay subscriptions. It is not at all clear that a branch committee of management would have the power to defer the obligation to pay. Further, there is no evidence in the present case that the branch committee of management or any other governing body purported to authorize Ms. Holmes to allow the deferral of subscriptions. Any such authority may not be valid if it had been given. No doubt it was convenient for the Association to defer payment. Undoubtedly there is some injustice in holding that a person who is willing to pay and is told by an official of the Association not to pay is to be regarded as unfinancial. This injustice was recognised in Re Slaters, Tilers & Roofing Industry. of Victoria (1983) 72 F.L.R. 411, in which it was held that the nomination for election of a member who had tendered his union dues to the secretary of the union at the union office, but whose tender had been rejected by the secretary, amounted to an irregularity. It was there held 24. that the rules did not operate to make such a ~*member unfinancial, and if they had the rules would have contravened $.140(1)(c) of the Act. That decision is undoubtedly correct in holding that, in the circumstances, an irregularity resulted from the rejection of the member's nomination. It does not stand, however, as an authority that in all cases a member who pays all that is demanded is financial. There are cases which provide instances where members of registered organizations who have paid all moneys demanded of them have nevertheless been held to be unfinancial. In Re Federated Clerks' Union of Australia; Ex parte Tanner (1986) 70 A.L.R. 79, at pp. 94-96, it was held that a person who joined late in a period for which he was obliged to pay a subscription, but of whom such a subscription had not been demanded, was unfinancial some years later, the arrears having carried forward. In Re Application by Brophy for an Inquiry into an Election in the Federated Clerks Union of Australia (Federal Court of Australia, Keely J., 5th June 1987, not yet reported), it was held that all members who had been allowed a 20% ""rebate" of contributions by a branch council, which had no power under the rules so to reduce contributions, were unfinancial. In each case, the members concerned could have claimed that they had paid all that was demanded of them. In Rowling v. Harding (1976) 27 F.L.R. 369, at pp. 372-374, the Australian Industrial Court held that members of an organization who had failed to pay entrance fees were nevertheless financial, as no demand had 25. been made of them for such fees. A distinction was drawn, however, between the rules of that organization providing for the payment of contributions by specified times, and the absence of any similar provision with respect to entrance fees. In my view, where the rules of an organization provide for the payment of contributions by specified dates, and provide for the status of an unfinancial member if contributions are not paid, effect must be given to those rules even if, for the sake of convenience, officers of the organization have purported to waive or defer the obligation to pay contributions. This conclusion is all the more inevitable in a case such as the present, in which the rights of a party other than the organization and the member concerned are affected. Not having paid any subscriptions since the date of his "rejoining" of the Association, Mr. Richardson was unfinancial by virtue of rule 13(b) on 21st May 1986. Further, on the view which I take, he never became financial up to the time of his dismissal; his failure to pay any sum in respect of the period between the cessation of his employment with the Darwin City Council and his purported rejoining, during all of which time he remained a member of the Association and obliged under its rules to pay subscriptions, produces this result. On the assumption that Mr. Richardson was not financial, the prosecutor attempted to argue that he could nevertheless be elected as a workplace representative, 26. . because this was not an "office" within the meaning of rule 13(b). That may be a correct construction of the rules, but Mr. Strong conceded that the ability to be elected as a workplace representative was a right or privilege of membership, within rule 13(b). Such a right or privilege could not be conferred on Mr. Richardson on 21st May 1986, while he was unfinancial. In the alternative, the prosecutor argued that if Mr. Richardson could not be elected by his fellow members at Palmerston, he could be appointed by the branch committee of Management under rule 18(a), and that the resolution of 26th May 1986 could be justified under the power so given to the branch committee of management. It was argued that rule 18(a) permitted even the appointment of a non-member of the Association as a workplace representative, for example where it was desired to appoint an experienced or capable delegate of another union to lead or assist a less experienced or less talented member. It followed from this, so it was said that the appointment of an unfinancial member was permitted. In my view, even if the rules do permit the appointment of a non-member, when a member is appointed as a workplace representative, this is a right or privilege of membership within rule 13(b), s0 cannot be conferred on an unfinancial member. Even more importantly, the power of the branch committee of management under rule 18(a) to appoint a workplace representative is exercisable "failing such 27. appointment", i.e. failing an appointment by the majority of members employed in the area of membership concerned. on 26th May 1986, the branch committee of management was acting on the basis that Mr. Richardson had been appointed by the members at Palmerston. It was not purporting to exercise its own power of appointment. The result is that Mr. Richardson was never validly appointed as a workplace representative on 2lst or 26th May 1986. It was then argued by the prosecutor that Mr. Richardson became a delegate by specific authorization to act, given to him by Mr. Marks during the events leading up to Mr. Richardson's dismissal. The details of these events will be given later. The short answer to this submission is that, on the view which I take, Mr. Richardson was unfinancial at all relevant times. Even at a later stage of his employment, rule 13(b) prevented the right or privilege of representing the members being conferred on him validly. In case Mr. Richardson was found not to have been a delegate, the prosecutor sought leave to amend the information in matter no. V29 of 1987, during the trial, to add an alternative allegation that Mr. Richardson conveyed the grievance of Mrs. Hooper as a member, for the purposes of s.5(1)(f) of the Act. By consent, the application for leave to amend was deferred until final addresses. Evidence was 28. e given of the adoption by the federal council and federal executive of the Association of policies under which members may become authorized to act on behalf of the Association for specific purposes. Because Mr. Richardson was never financial, however, such specific authority was aright or privilege that could not be conferred on him as a_ member; it was a right or privilege of membership within rule 13(b). If the information were to be amended, the charge in the amended form could not succeed. The proper course is to dismiss the application for leave to amend. It follows from what I have said that the charge in respect of Mr. Richardson must be dismissed in so far as it relies on the allegation that he was a "delegate", for the purposes of s.5(l)(a), and so far as it depends upon s.5(1)(f) of the Act. The prosecutor has failed to establish beyond reasonable doubt that Mr. Richardson was a "delegate". (c) There was also a dispute as to whether the proscribed circumstances the subject of 3.5(1)(d) were proved to exist, namely that the Association was seeking better industrial conditions and that each of Mr. Richardson and Mrs. Hooper was dissatisfied with his or her conditions. Section 5(1)(d) requires that there be identified industrial conditions which the relevant organization is seeking to better, and that the employee member must be dissatisfied 29. with the same industrial conditions. See Heidt v. Chrysler Australia Ltd. (1976) 26 F.L.R. 257, at pp. 268-270, and Stapleton v. African Lion Safari Pty. Ltd. (1982) 65 F.L.R. 61, at pp. 67-68. In the present case, the Association was seeking an award to bind the defendant. The history of proceedings in relation to this claim has already been set out. There is no evidence of the precise terms of any claims which led to the dispute in settlement of which the award was sought. It is noted, however, that the award which was made included cl.17, which related to the circumstances in which employees of the defendant might be dismissed. In the award made by Commissioner Connell on Sth December 1986, that clause included the following: "(a) The rules of natural justice will be applied to dismissal proceedings and Council will not act harshly, unjustly or unreasonably in dismissing an employee. (d) An employee may be dismissed instantly if he or she commits an act of gross misconduct on the job such as: Assault Drunkeness Drug abuse Chronic absenteeism Disobedience of a lawful order Damage to Council property Neglect to specific safety requirements Abuse of staff 30. Abuse of clients or the public but such dismissal shall first be enquired into by a person other than the one bringing the complaint of gross misconduct. (e) In all cases before dismissal is carried out the appropriateness of a lesser penalty such as a warning, reprimand, transfer to another work area, fine, loss of an increment or demotion shall be considered." It is proper to infer that the claims made on behalf of the Association must have been claims in respect of job security at least to the extent of those provisions. When Mr. Richardson and Mrs. Hooper were dismissed, the award was not yet in force. In these circumstances, the issues which arise are whether the Association was still seeking industrial conditions in terms of job security, or whether it had abandoned that claim by applying successfully for a stay of the operation of Commissioner Connell's award. In my view, the Association was still seeking those conditions. The stay application resulted from the issue whether the general conditions of employment in the defendant's establishment should be those of the Northern Territory Public Service, or those binding other local government authorities in the Northern Territory. The making of the stay application did not amount to an abandonment of all claims which the Association wanted to achieve. It was a tactical manoeuvre, 31. designed to bring about the achievement of other claims. The earliest at which the Association could be said to have achieved its object as regards job security conditions was the lifting of the stay order, consequent upon the decision of the full bench of the Australian Conciliation and Arbitration Commission in relation to the Association's appeal. That took place on 5th June 1987, after the dismissals of Mr. Richardson and Mrs. Hooper. In order to determine whether Mr. Richardson and Mrs. Hooper were dissatisfied with their conditions in any relevant respect, it is necessary to examine some of the history of their employment. Mr. Richardson's original engagement by the Palmerston Development Authority was for two years from Sth March 1984. There is in evidence an agreement in writing between the Northern Territory Government and Mr. Richardson, bearing that date, and constituting the engagement. As has already been said, Mrs. Hooper began with the Palmerston Development Authority in July 1984. On 15th December 1985, Ms. Wilmott and Ms. Holmes visited Palmerston and met with the defendant's staff. There was a discussion in which concerns were expressed about the loss of some existing conditions if an award were made containing standard local government conditions. On 16th December 1985, Ms. Wilmott and Ms. Holmes met with some of the defendant's staff, the 32. then mayor, Mr. Roger Teague (the town clerk) and Alderman Briscoe (a member of the council). An assurance was given that all staff would be employed on their existing conditions, pending the making of an award. This was confirmed, so far as Mr. Richardson was' concerned, by a letter from Mr. Teague to him, dated 17th December 1985. This letter also promised that when an award was made, Mr. Richardson would be offered a permanent appointment with the defendant under no less than the terms and conditions of service currently enjoyed and with no loss of accrued entitlement. On 21st February 1986, Mr. Teague wrote to Mr. Richardson advising that his contract of employment was to expire on 4th March 1986, and offering continued employment on the terms applicable to limited tenure employees of the Northern Territory Public Service, pending an award being made. By letter dated ist October 1986, Mr. Teague offered Mrs. Hooper permanent appointment as administration manager on the conditions applicable to limited tenure employees of the Northern Territory Public Service, pending the making of an award. Mrs. Hooper accepted this offer by signing a copy of the letter on 10th October 1986. By letter dated 8th December 1986, Mr. Teague advised Mr. Richardson of the decision of Commissioner Connell and also informed him that: 33. "Council has undertaken that regardless of the outcome of any new award being established, that current staff employed by the Palmerston Town Council would be under no less than the terms and conditions of service enjoyed prior to the establishment of an award with no loss of accrued entitlements. I wish to advise that this undertaking will be continued to be observed by Council whilst you remain in the employ of the Palmerston Town Council." Mrs. Hooper received an identical letter of the same date. By notice dated 2lst January 1987, Mr. Richardson advised all staff of the stay order in relation to Commissioner Connell's award, and advised that all staff were employed under conditions prevailing prior to the making of the award. On 14th April 1987, Mr. Teague circulated to all staff a memorandum on the subject of grievance procedures. This memorandum may have been prompted by the raising of a grievance on behalf of an employee named Ron Richter, who alleged that he had been harrassed by Mr. Strichen. Mr. Richardson communicated Mr. Richter's complaint to Mr. Teague, and Mrs. Hooper formally lodged a grievance. The last two paragraphs of Mr. Teague's memorandum on grievance procedures are noteworthy: 34. "If there are any departures from the grievance procedures as outlined the matter will lapse, unless the Town Clerk considers there are extenuating circumstances. Interference by other employees, supervisors or Section Managers not directly involved in the matter, will not be tolerated under any circumstances." On 27th, 28th and 29th April 1987, a Mr. Geoff Raddatz visited the offices of the defendant. His position was that of manpower development executive for the Northern Territory Local Government Institute Training Committee. He had been commissioned by the defendant to prepare a_ report on the training needs of the defendant's staff. On those days, he conducted a number of interviews with members of staff, and presented each with a questionnaire. On 30th April 1987, Mr. Richardson and Mrs. Hooper together approached Mr. Teague about Mr. Peter Lowrey. Mr. Lowrey had been appointed by the defendant as administration manager. He had thereby been placed in charge of Mrs. Hooper. She had a number of complaints to make about Mr. Lowrey, which reflected complaints made to her by members of the staff under her. In substance, these complaints related to suggestions that Mr. Lowrey was insufficiently aware of what staff beneath him were doing and were required to do, and was devoting insufficient time and energy to his job by reason of his habit of taking long lunch breaks and drinking 35. alcohol in the course of them. Mr. Teague received the complaints and stated that Mr. Lowrey would be dismissed when the Raddatz report was received. He asked Mrs. Hooper to keep a diary of Mr. Lowrey's activities. The following day, Ist May, Mr. Richardson sent Mr. Teague a memorandum reflecting these discussions. On 18th May 1987, two incidents occurred involving Mrs. Hooper. She had a conversation with Alderman Boakes, in which she confided in him her concern about management problems. As she was proceeding to the car park, Mrs. Hooper passed Mr. Teague and Mr. Strichen. Mr. Teague said to her, "Option one, dismissal of the town clerk". He explained that the mayor was trying to sack him and said that he would fight to avoid being sacked. On the following morning, 19th May, Mrs. Hooper arrived at work at 7.15 a.m. (her usual time of arrival) to find that section of the defendant's office in which she usually worked locked. Only Mr. Lowrey had a key and he was not there. Mrs. Hooper was frustrated by her inability to get to work. She went with Anita Coad, one of the staff whom she supervised, toa nearby coffee shop for a cup of coffee. Some time later they were joined by Elizabeth Whinnen, another of the staff supervised by Mrs. Hooper. Mrs. Hooper vented her frustration to Ms. Coad and Ms. Whinnen by being critical of Mr. Teague. She described Mr. 36. Teague as "an administration manager's arsehole". Following this conversation, the three returned to the office and engaged in their normal work. On the next day, 20th May, Mrs. Hooper was summoned by Mr. Teague's secretary to see Mr. Teague. Twice she went to his office and was kept waiting. When she was admitted to Mr. Teague's office, Mr. Lowrey was there and Mr. Teague had a tape recorder. He turned on the tape recorder and proceeded to record an interview with Mrs. Hooper. This interview had three elements. First, Mr. Teague extracted from Mrs. Hooper an admission that she had made the derogatory comment about him on the previous day, which I have already quoted. Second, Mr. Teague instructed her to complete by 30th June an accounting procedures manual. This was a document apparently required of all local government authorities by law. Reports from previous auditors of the defendant had criticised the defendant for not having prepared such a manual. Mrs. Hooper was aware of the need for such a manual, and had performed some work which might have been useful in the preparation of it. She protested, however, her own incapacity to prepare the full manual, and the impossibility of preparing it in the time allowed, especially having regard to the fact that she had already arranged to take annual leave from 2lst June. Third, Mr. Teague turned to Mr. Lowrey and said: 37. "Also Peter I will be delegating to you, I am sick and tired of the disruption that has been caused in this office and this Council, absolutely and totally. I will be delegating to you in writing the power to dismiss instantly, anyone that causes, that disobeys an order or causes disruption within the office." The interview was obviously intended to convey the threat of instant dismissal unless Mrs. Hooper performed the task of preparing the accounting procedures manual, a task which she regarded as beyond her responsibilities, beyond her capacity (although she could do much of the work towards its preparation) and impossible to complete within the time available. On the same day, Mr. Richardson received a strange memorandum from Emily Schindler, his immediate supervisor. This memorandum was in the following terms: "I would like to have a list of all known unregistered dogs and have each household served with a notice accordingly by the end of today. In addition, I would like to have prepared a Report on all outstanding dog and traffic matters. Further to this, I was not presented with the requested memo regarding the operation of the Inspectorate over the past two weeks which was due on Friday. This should also be forthcoming. 38. Please provide a list of all individuals and organisations who have designated parking bays or paid parking rates in the Water Tower Car Park including the number of bays or vehicles used by each." This memorandum bore the handwritten inscription "Noted RT20/5". Mr. Richardson complained to Ms. Schindler of the impossibility of performing all of the tasks, particularly those required in the first paragraph of the memorandum, by the end of the day. In response, Ms. Schindler drew his attention to the handwritten notation, and told him to take notice of its presence. Mr. Richardson took it to be, as it was, a notation by Mr. Teague, signifying his approval of the memorandum. Also on the same day, Mrs. Hooper told Mr. Richardson of her tape recorded interview with Mr. Teague and Mr. Lowrey. On 21st May 1987, Mr. Teague and Mr. Lowrey again interviewed Mrs. Hooper, this time without a tape recorder. They asked her about progress on the accounting procedures manual, and suggested that she cancel her leave if necessary, in order to complete the manual. Also on the same day, Mr. Teague accosted Mr. Richardson, calling him "a bastard" and warning him to "leave 39. Liz alone". This last demand was a reference to Ms. Whinnen, with whom Mr. Teague was then having a relationship outside the office. In this conversation, Mr. Teague suggested that Mr. Richardson was trying to get him sacked. He also asked Mr. Richardson not to be seen walking behind him into the council offices. Also on the same day, Mr. Richardson requested a copy of the transcript of Mrs. Hooper's tape recorded interview on 20th May. This transcript was provided. Mr. Richardson convened a meeting of members of the Association employed by the defendant. Six persons attended. The meeting resolved unanimously to put the question of production of procedures or manuals of any nature by members to the state secretary of the Association for clarification, and until that question was resolved between the secretary and the defendant that no member should develop procedures or manuals. There were other resolutions concerning support for the defendant in the area of work practices, and the continuance of work to the best of the members' ability, subject to requests for work to be carried outside the normal spread of hours being regarded as overtime. The members present at the meeting undertook that any member dismissed summarily would be fully supported by the rest of the members. These resolutions were conveyed to Ms. Holmes, who promised to act in relation to them. They were also conveyed by Mr. Richardson to Mr. Teague by memorandum dated 22nd May 1987. 40. e On Monday 25th May, Mr. Lowrey had a conversation with Mrs. Hooper, in which he recommended that she proceed to complete the accounting procedures manual. On 26th May, the Northern Territory Confederation of Industry, acting on behalf of the defendant, notified to the Australian Conciliation and Arbitration Commission the existence of a dispute between certain employees who were members of the Association and the defendant "in that alloted Csic.J duties are being refused to be performed." The notification was by telex message, and sought a hearing at the earliest possible opportunity. On the following day, Mr. Lowrey again spoke to Mrs. Hooper regarding production of the accounting procedures manual. Following this interview, Mr. Richardson found Mrs. Hooper and Ms. Coad in tears. Mrs. Hooper told Mr. Richardson that she had been approached by a senior officer regarding the production of the accounting procedures manual and that she feared dismissal. She told him that she intended to submit a grievance and asked Mr. Richardson to represent her. By that date, Mr. Strichen was acting town clerk, Mr. Teague having gone on sick leave on Friday 22nd May. A conversation occurred between Mr. Strichen and Mr. Richardson 41. in which Mr. Strichen asked Mr. Richardson if he had told Mrs. Hooper to refuse to produce the accounting procedures manual. Mr. Richardson telephoned Mr. Marks and had a conversation with him about dismissal procedures. As a result, Mr. Richardson put up a notice on the letterhead of the Association, headed "ADVICE TO MEMBERS. 'DISMISSAL PROCEDURES'". This notice, as its title suggests, contained advice about dismissal procedures, and particular advice about questions such as the tape recording of interviews, and rights to certified copies of transcripts if interviews were recorded. In the notice, Mr. Richardson offered to assist members with further advice. Mr. Richardson then had a discussion with Mr. Lowrey, in which he advised Mr. Lowrey that questions of manuals and procedures had been referred to the state secretary of the Association, and that the defendant should negotiate with him. Mr. Lowrey said that he wanted Mrs. Hooper to state in writing that she would not do the accounting procedures manual. Mr. Richardson said that he was acting on behalf of all members of the Association, and reiterated the position that the defendant should negotiate with the state secretary of the Association. Other views were exchanged, including the proposition put by Mr. Richardson that Mrs. Hooper felt harrassed, by being continually pressed for the accounting procedures manual, and under threat. There was also a discussion about whether 42. e Mr.Lowrey had been delegated the power of instant dismissal and whether he could exercise this power validly. No agreement was reached, and the conversation was more of an exchange of views than anything else. Also on the same day, Mr. Richardson sent two letters to Mr. Strichen. One sought verification on oath of the contents of the transcript of interview between Mrs. Hooper and Mr. Teague. The other advised Mr. Strichen that the question of the preparation of procedures and manuals was in the hands of Mr. Marks and that the defendant should deal with him in relation to that matter. The letter also said that Mr. Richardson had received complaints of undue pressure, which would be brought to the attention of the state secretary, and might be the cause of a grievance being lodged against a senior officer of council. On 28th May, Mr. Richardson received a letter from Mrs. Hooper, which was described as a grievance letter. It is convenient to set out the contents of this letter: "I am writing to ask you to initiate grievance procedures on my behalf. I wish this action to be taken against Mr. R. Teague, Mr. B. Strichen and Mr. P. Lowrey, for the following reasons: 1. On Wednesday 20 May 1987, I was summonsed to a meeting with the Town Clerk Mr. Teague. On arrival, I was made to wait outside some 20 minutes until he was available. 43. On entering his office, I saw that the Administration Officer, Mr. P. Lowrey was also present. The Town Clerk immediately started a tape recorder going to record the meeting. I was not asked if this was agreeable to me, or if I required an independant Csic.J witness. I immediately felt intimidated by his actions and aggressive attitude. 2. The Town Clerk accused me of making derogatory statements about his management style. His source of information was not present to corroborate this statement. I was quite prepared to follow up this point about management but was overided Csic.] every time I attempted to defend myself. 3. The Town Clerk ordered me to write an Accounting Property Manual by 30 June 1987. No consideration was given to how I would execute my normal duties and carry out this task simultaneously. Nor was any consideration given to the fact that I would be on leave from 20 June. Also, as a comparison, it took a qualified accountant at least three months to prepare a similar document for the Darwin City Council. 4. The Town Clerk then advised the Administration Manager he would be delegating the power to dismiss instantly anyone that disobeys an order or causes disruption within the office. I believe the implication of this statement (when viewed in the light of the Interview Transcript) is a direct threat to my employment status. Since this interview, I have been subjected to harrassment on four occasions by the above officers to complete the aforesaid Manual. This demand has been in 44. total disregard to my duties, and the fact that the Finance Section is currently understaffed. 5. The Town Clerk advised that the interview was not a _ counselling. However, I believe that his attitude was intimidatory in nature, and that at no time did he endeavour to follow Council procedures. 6. I must point out that on 20 October 1986 I was formally "counselled" by the Town Clerk & and ECsic.J] the Administration Manager on a matter of heresay Csic.J. The Town Clerk admitted he had made a mistake, and as a result, the matter would go no further, and the counselling memo would be taken off my personal file. The fact is that both this and the latest interviews were based on hearsay. 7. j.%-I. must state that my concerns about the management of the Council is based on the fact that procedures in both the salary and purchasing areas are not being followed by the Chief Executive Officers. It is my job to oversee these procedures as I am answerable to the auditors. I feel that this coupled with the foregoing does put undue stress on my self and my staff I have taken this step reluctantly, but I feel that I am being subjected to undue pressure and harrassment to provide Council with the benefits of my knowldge Csic.] and experience gained over the duration of ny working life before joining the Council. Accordingly, I consider my current circumstances inequitable, and I therefore request you as my representative to put these facts to Council" 4s. e This letter was passed on to Mr. Strichen on the same day with a letter from Mr. Richardson, requesting a full impartial inquiry involving both himself and Mrs. Hooper. On the same day, Mrs. Hooper left her place of work to attend her medical adviser, and went from there to her home on sick leave. These events show that Mrs. Hooper was clearly concerned about the question of job security. The threats of instant dismissal which were made to her in the event of her refusal to complete the accounting procedures manual were on her mind. In my view, this concern amounted to a dissatisfaction with her conditions in this respect. Had the Association's claim that the defendant afford natural justice to employees before dismissing them been achieved finally, Mrs. Hooper would have had protection from the threat of instant dismissal, and this would have eased her mind substantially. Her dissatisfaction was made known to the defendant in the interview with Mr. Teague and Mr. Lowrey on 20th May, and by her grievance letter of 28th May. The question whether Mr. Richardson was dissatisfied with his conditions is more difficult. It is noted that, to fulfil the requirements of s.5(1)(d) of the Act, Mr. Richardson must have been dissatisfied with his own conditions of employment, and not with those of Mrs. Hooper. 46. The fact is, that by 28th May, the issue of job security and instant dismissal had become one for all members of the Association employed by the defendant. Mr. Richardson, as the leading light of those members expressed the dissatisfaction. If Mrs. Hooper could be dismissed instantly, then so could any member, including Mr. Richardson. This fact weighed on his mind, especially as a result of the unusual memorandum from Ms. Schindler which he had received on 20th May. Mr. Richardson was entitled to the view that it was no coincidence that on the same day as Mrs. Hooper was given an effective ultimatum, i.e. instant dismissal on failure or refusal to perform what she saw as an impossible task, he was being given what he saw as an impossible task. Both of these tasks apparently emanated from or had the approval of Mr. Teague. It is true that Mr. Richardson had satisfied Ms. Schindler as to his performance of the tasks concerned, but that is not to say that more would not come of the question of instant dismissal. I am of the view that, by 28th May 1987, Mr. Richardson had become dissatisfied with his conditions of employment in so far as they concerned procedures for dismissal. He made this dissatisfaction known by his oral and written communications to Mr. Teague, Mr. Lowrey and Mr. Strichen, and by the letter accompanying Mrs. Hooper's grievance. I am therefore of the view that the prosecutor has proved beyond reasonable doubt that each of Mrs. Hooper and 47. é Mr. Richardson was a member of the Association within the meaning of s.5(1)(a), each appeared as a witness in a proceeding under the Act within the meaning of s.5(1)(c), and each satisfied the elements of s.5(1)(d). The onus therefore lies on the defendant to prove that none of these factors was a substantial operative factor in the dismissal of each of Mrs. Hooper and Mr. Richardson. 3. THE BVENTS PRECEDING THE DISMISSALS. On 21st May 1987, Mr. Teague went on sick leave, as has already been mentioned. On the following day, he wrote a letter addressed to the mayor and alidermen, in which he resigned as town clerk. After referring to some positive aspects of his experience as town clerk, and to the support of elected members and "loyal staff", the letter continued: "However, of recent times this direction has been lost by individuals who have deliberately and wilfully set out to 'set up' = senior officers of this Council. The events which led to the call for my dismissal by the Mayor, I believe in my ow mind, was a result of these disloyal staff, i.e. information that log books had been discontinued when they had not. The gross act of disloyalty by two individual staff in particular in generating and providing misinformation and manipulating information to serve self interest is totally and absolutely inexcusable. This is despite the fact that I introduced grievance procedures (copy attached) which was developed in consultation with the Municipal 48, . Officers Association. They have chosen not to use the mechanism they sought to have put in place. These individuals will, no doubt, having systematically caused disharmony and division, continue to be a problem source to the integrity of this Council. As Chief Executive Officer I am responsible for the actions of my staff and, as such, I accept responsibility for this situation. I am therefore unable to continue having lost the confidence and loyalty of staff." The letter was distributed by Mr. Teague to at least some of the aldermen. As a result of the letter, the mayor convened an urgent special meeting of the council for Saturday 23rd May. At that meeting, there was controversy over whether Mr. Teague's resignation should be accepted. The mayor, Ms. Jan Higgins, apparently wished to accept the resignation immediately. Other aldermen, apparently led by Alderman Briscoe did not. So far as can be gathered from the transcript of a tape recording of the meeting, it was resolved to treat Mr. Teague as being on "special" leave until the ordinary meeting of the council in June. On the agenda for the special meeting was an item entitled "staff review". This item was placed on the agenda at the request of Alderman Briscoe. On Saturday 23rd May, it was decided to defer discussion of this item until Thursday 28th May, to await the arrival of the Raddatz report. 49. e As has already been stated, the Raddatz report was intended to show the results of a survey on training needs for staff employed by the defendant. It was delivered by Mr. Raddatz during the week following 23rd May. A copy was forwarded to each member of the council one or two days before 28th May. The report set out three principal questions which it was said had been asked of each staff member. It also referred to "an organisational climate questionnaire" as having been used in the survey. As well as matters relevant to training needs, the report contained sporadic references to other matters. On page 1, there was a reference to "several non-training issues affecting the operation of the Council which need addresing [Csic.1". On page 4 there appeared the following: "Throughout the interview process it became clear that there was a considerable amount of disharmony within the Council organisation. It was felt by interviewees that much of this disharmony was being created by the actions and attitudes of a small "clique" of employees within the Finance Section. Interviews from within the Finance Section and other departments expressed concern in this area. It was also evident to the writer that, within the Community Services Department there is a disgruntled employee who has an axe to grind with a member of the management team. Indeed there is evidence of cohesion between this person and one employee in the Finance Section. The writer is of the opinion that the intentions of these people should be of major 50. e concern to management and that appropriate action should be taken immediately to rectify the situation. The present organisational climate can be attributed primarily to two factors: 1. the need for a change of management style due to organisation growth over the past two years. 2. the adverse effect which a couple of employees are inflicting on the whole organisation." On page 8, when discussing whether a change of town clerk was necessary, Mr. Raddatz referred to the fact that Mr. Teague had "the support and undoubted loyalty of all but' two employees". As part of his conclusion, at p. 10, Mr. Raddatz said: "Generally, it can be said that the Council has a team of employees who are most competent in the technical aspects of their jobs, and are highly dedicated to the success of the Council. With a change in emphasis on management style, coupled with appropriate support from elected representives, and the weeding out of those employees who are going to present a continuous disruption to the effective and efficient growth of the Council, the organisation will function in hormony Esic.J1." It should be noted that nowhere in Mr. Teague's letter of resignation or the Raddatz report was any mention made of the name of any member of the defendant's staff against whom any of the allegations which I have set out was made. 51. On Thursday 28th May, the council resumed its meeting which had been adjourned on the previous Saturday. The mayor and all six aldermen were present. The meeting was informed that Mr. Raddatz was available to address the meeting. It was also told that Mr. Brid Lyons from the Northern Territory Confederation of Industry was available similarly. After some discussion, the meeting resolved to invite Mr. Raddatz to answer questions first, followed by Mr. Lyons, and then to discuss the issue of staff review. Mr.Raddatz participated in discussion with the members of the Council for some time. He then left and Mr. Lyons joined the meeting. The meeting was adjourned for a short time to enable people to smoke. When it reconvened, discussion with Mr. Lyons continued. After he left, Alderman Boakes indicated that he would move a motion, but that he would need a short time to prepare it. Some other motions concerning matters raised in the Raddatz report were carried after brief discussion. Then Alderman Briscoe came up with a suggestion for a motion, and some discussion took place. After a short discussion, the gag was moved and carried. Alderman Boakes then moved a motion, which was seconded by Alderman Briscoe, and repeated and clarified. Alderman Auld-Wilson attempted to move an amendment, but the amendment seems to have been ruled out by the mayor after the mover of the motion refused to accept it, and without a vote. Ultimately, after some further short discussion, the meeting 52. e voted on the motion and it was carried by four votes to three. The motion as finally resolved was as follows: "The Council, after due deliberation of all the facts and information to hand, resolve to dismiss Margaret Hooper when she returns from sick leave and dismiss the inspector, Ronnie Richardson forthwith. " On the following day, Mr. Richardson was given his letter of dismissal, the terms of which have already been set out. The next Tuesday, 2nd June 1987, Mrs. Hooper was given her letter of dismissal when she returned from sick leave. 4. THE EVIDENCE CALLED BY THE DEFENDANT. The defendant's case was based on the view that the resolution of 28th May amounted to the decision to dismiss, and that the defendant carried the onus of establishing that none of the proscribed circumstances which existed was a substantial and operative factor in that decision. The four aldermen who voted in favour of the motion gave evidence, namely Aldermen Briscoe, Boakes, Cook and Taylor. Each gave evidence that he or she was not influenced in so voting by any of the proscribed circumstances alleged in the informations. Each purported to give his or her own reasons for voting in favour of the motion. 53. The reasons given by Alderman Briscoe were, first that Mr. Richardson and Mrs. Hooper were "causing a problem within the structure of the staff", second that they did not abide by the grievance guidelines, but went direct to the mayor instead of to the town clerk with their complaints, third that Mrs. Hooper refused to complete the accounting procedures manual, fourth that complaints had been made about the manner in which Mr. Richardson executed his duties as senior municipal inspector, particularly in relation to dogs, fifth, alleged victimisation by Mr. Richardson of some persons living in the municipality, and sixth an incident in which it was alleged that Mr. Richardson had made a false statutory declaration. Alderman Boakes cited as his reasons for dismissal "unrest within the council", the Raddatz report and the discussion arising out of it at the meeting, and the fact that he believed that Mr. Richardson was a "disruptive influence". He did not regard the accounting procedures manual as an issue warranting dismissal. Alderman Cook gave as her reasons the refusal of Mrs. Hooper to carry out an instruction to prepare the accounting procedures manual, complaints about the way in which Mr. Richardson carried out his duties, particularly in relation to dogs, and her understanding that Mr. Richardson 54. - was "being very disruptive within the council office chambers" and "virtually was a law unto himself within the staff". Alderman Taylor gave as his main reason Mr. Richardson's and Mrs. Hooper's "undermining attitude to both senior staff and to council in general" and his belief that they were "undermining the operations of the senior staff level of council". He said that his opinion in this respect was confirmed by the Raddatz report. As a matter of logic, s.5(4) of the Act does not impose on an employer charged with an offence under s.5 the burden of showing that it had a reason, good or bad, for dismissing an employee. It is sufficient if the employer concerned establishes that it was not actuated by any of the proscribed circumstances charged. No doubt, however, the failure of an employer to advance a positive reason to justify a dismissal must make it more difficult to satisfy the onus than if a reason is advanced. Further, the existence of a genuine reason, established as a matter of evidence, justifying the dismissal, must give an employer the best possible defence against a charge under the section. The advancement of a reason which is found to have been non-existent in fact may render the employer's task of establishing innocence more difficult. As the Commonwealth Industrial Court said in Atkins v. Kirkstall-Repco Pty.Ltd. (1957) 3 F.L.R. 439, at p. 441: 55. "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." In the present case, the defendant made no real attempt to establish any facts which would have justified dismissal of either Mr. Richardson or Mrs. Hooper. Some allegations were put to Mr. Richardson in cross-examination, and these will be dealt with in turn. It was established that Mrs. Hooper refused to produce the accounting procedures manual, but no attempt was made to establish as a positive matter that the instruction to prepare this manual in the time which Mrs. Hooper was allowed constituted a lawful instruction, i.e. that it fell within the scope of the duties which she could be required to perform under her contract of employment, or that it was a task which she could complete reasonably by 30th June, having regard to her other duties. The defendant relied on the evidence of the four aldermen called as to what they believed at the time when they voted for the motion which became the resolution of 28th May. It is true that if the decision to dismiss Mr. Richardson and Mrs. Hooper was motivated solely by beliefs as to their conduct, even if those beliefs were unfounded, the decision will not have been actuated by any of the circumstances proscribed by s.5 of the Act. Counsel for the prosecutor cross-examined each of the four witnesses vigorously, and submitted that in the circumstances their evidence could not be relied on as excluding the proscribed circumstances as substantial and operative factors in the dismissals. The submissions were based largely on the circumstances which surrounded the meeting of 28th May. It is to those circumstances which I must now turn, for the purpose of determining whether to accept the evidence of Aldermen Briscoe, Boakes, Cook and Taylor. 5. THE CIRCUMSTANCES SURROUNDING THE DISMISSALS. On 15th October 1986, shortly after Mrs. Hooper's appointment as a permanent employee of the defendant, a meeting took place between Mr. Teague, Mr. Lowrey, the defendant's administration officer (Ms. Deidre Skewes) and Mrs. Hooper. At the meeting discussion occurred regarding possible improvements in communication between departments in the defendant''s offices. Apparently Mrs. Hooper took things that were said at this meeting as involving accusations against her and the staff whom she supervised. The following day, she sent a memorandum to Mr. Teague, setting out her views about the meeting, and rejecting the accusations as 57. "unjust and petty". Her memorandum contained positive suggestions as to how communication might be improved. On the same day, Mr. Teague sent to Mrs. Hooper a memorandum in the following terms: "I wish to advise that you are required to present yourself to a formal counselling session at 10.00 a.m. on 20 October 1986 in my office. At the counselling session I wish to discuss the following: H your present attitude and disposition 3 your responsibilities and what is expected in the performance of your duties the continuation of your higher duties payment" In accordance with this direction, on 20th October 1986 Mrs. Hooper attended on Mr. Teague for counselling. After a discussion, it was agreed that nothing further needed to be done, and that Mr. Teague would destroy his memorandum requiring Mrs. Hooper to present herself for counselling. This was the only occasion on which Mrs. Hooper was ever counselled or rebuked in any way in respect of the performance of her duties for the defendant, until 20th May 1987. There can be no doubt that Mrs. Hooper was a valued and valuable employee of the defendant. It was her custom to attend for work at least an hour earlier than her regular 58. & starting time, and not to claim or receive any overtime payment in respect of the extra work. She was a person who had grown in her job, having come to the Palmerston Development Authority with previous experience as a rates clerk, and having accepted additional responsibility and done her best to carry it out. She developed computer systems for the defendant's financial operation and records. Prior to the appointment of an administration manager, she met with the "core team" of the town clerk and other department heads at regular meetings, to represent the finance section, and her views were accepted and acted upon. At the stage when she was dismissed, there could have been no complaint levelled against Mrs. Hooper on the ground of deficiency in the performance of her duties, other than any complaint which might have arisen from the requirement imposed on 20th May that she produce the accounting procedures manual before 30th June. None of the aldermen who gave evidence raised any criticism of her work; indeed, Aldermen Briscoe and Boakes agreed that no such criticism could be made. Ms. Peggy Hassell, the only member of the defendant's staff to give evidence, who was called to prove the accuracy of the tape recording of the meeting of 28th May, agreed that she had had no problems in her dealings with Mrs. Hooper. Mr. Richardson was similarly assiduous about his work. He also was accustomed to working beyond the normal hours of work, without being paid for overtime. He too was 59. e only disciplined on one occasion. This occasion arose out of a complaint by a resident of the municipality. It appears that, in the course of his duties, accompanied by his assistant, Mr. Russell Marlborough, Mr. Richardson had an altercation with a resident. The resident was driving a motor vehicle, and Mr. Richardson formed the view that she may not have had a driver's licence. He passed on this suggestion to the Northern Territory police. On 28th November 1986, Mr. Teague wrote to Mr. Richardson making him aware of an allegation that Mr. Richardson had used his position unnecessarily to cause harrassment in the performance of his duties, and had illegally made use of information acquired by virtue of his position as an officer of the defendant. The letter stated that Mr. Teague had formed the opinion that Mr. Richardson may have failed to fulfil his duties and responsibilities as an employee of the defendant in that he may have exceeded his authority in the execution of his duties. Mr. Teague transferred Mr. Richardson temporarily to a position within the engineering section of the defendant until such time as the matter was resolved. Mr. Richardson replied by letter dated 2nd December 1986. On 8th December, Mr. Strichen advised Mr. Richardson that he could return to his normal duties pending the completion of an investigation. 60. e By letter dated 22nd December 1986, Mr. Teague advised Mr. Richardson that he was satisfied that Mr. Richardson had not acted illegally and did not obtain information improperly as a council employee in the execution of his duties. The letter continued: "However, I am disturbed by your subsequent actions and reactions as the sequence of events unfolded in this investigation and believe that a lot of unnecessary trauma could have been avoided if you had acted ina more co-operative manner in the initial stages of the investigation. Further I wish to advise that as a result of this investigation I hereby direct that you will not lodge any formal sworn statements' to any policing authority without first obtaining formal written approval from the Town Clerk in the first instance. Any deviation from this direction will be taken as a failure to fulfil your duties as an employee of Council in the execution of your duties and responsibilities." Some of the aldermen who were called as witnesses gave evidence that they had received complaints from residents about the manner in which Mr. Richardson carried out his duties. For the most part, these complaints concerned his activities as a dog catcher. They involved suggestions that Mr. Richardson had actually enticed dogs into the street from their owners' premises, and then impounded them. One allegation was that Mr. Richardson had impounded a dog a second time on the day after its owner had 61. e secured its release. It was also suggested that, on occasions, Mr. Richardson had sat ina parked car, watching particular premises. None of these allegations was specific as to dates, names and places. None was put specifically to Mr. Richardson in evidence. In general terms, his evidence was to deny them. In the witness box, he impressed me as a conscientious person, both as to the evidence he gave, and as to his attitude to his duties. It is in the nature of the law enforcement process that, from time to time, some persons against whom the law is enforced will complain that its enforcers have victimised them. The fact that complaints were received against Mr. Richardson might just as well be evidence that he was carrying out his duties diligently as evidence that he was derelict in them. Some support is received for the view that Mr. Richardson was regarded as having carried out his duties well from the fact that, as a result of some complaints, the defendant employed Mr. Marlborough to assist Mr. Richardson, with a view to having available a witness to corroborate Mr. Richardson's account of his enforcement activities. Approximately a month before his dismissal, Mr. Richardson received a compliment from Mr. Teague on his efficiency and a suggestion that a pay rise was being considered for him. In addition, somewhat surprisingly in view of its proximity to his dismissal, Mr. Richardson received a compliment from Ms. Schindler on 21st May 1987. This was after Mr. Richardson had satisfied Ms. Schindler about his performance of the duties referred to in her 62. e memorandum to him on the previous day. She complimented him on his efficiency in his work, and indicated that in the preparation of the next budget, consideration would be given to reviewing his salary and increasing funding for his area of activity. In all the circumstances, I accept Mr. Richardson's evidence and find that he was a diligent and competent employee of the defendant. Although he was never validly elected as workplace representative, Mr. Richardson clearly believed that he was charged with the duty of representing the members of the Association employed by the defendant in their dealings with the defendant, and representing the Association to those members and to other employees and the defendant itself. In this respect, Mr. Richardson was active, industrious, serious and unabashed. In all his union activities, Mrs. Hooper was a staunch supporter. She was regarded as an unofficial deputy workplace representative. On 8th December 1986, a meeting of members of the Association employed by the defendant appointed her to be workplace representative whilst Mr. Richardson was on leave. Because Mr. Richardson spent a substantial amount of his working day out of the office, Mrs. Hooper took the burden of a good deal of the day to day functions of a workplace representative, consulting with Mr. Richardson when he returned to the office, and informing him of matters on which he could then act. She was his source of information on staff and salary matters. It cannot be 63. e doubted that Mr. Richardson and Mrs. Hooper were the most active of the Association's members employed by the defendant. They provided leadership and impetus for the activities of the Association within the defendant's establishment. Some examples have already been given of activities of Mr. Richardson and Mrs. Hooper on behalf of the Association and its members. There were other examples in the evidence. As well as appearing as witnesses in support of the Association's award claim, Mr. Richardson and Mrs. Hooper gathered evidence for that claim, which often involved requesting information from Mr. Teague. They were also involved in preparing the Association's case for the appeal from Commissioner Connell's decision. When it was proposed that membership of a superannuation scheme become compulsory for employees, Mr. Richardson took up the cause of those employees who did not wish to join. Both he and Mrs. Hooper advocated the complaints of employees to senior officers from time to time. These included a complaint about bad language of senior officers in the office. They also discussed with management problems which might arise when an award was made, if existing staff retained their existing conditions and new staff were given different entitlements. Mr. Richardson raised with Mr. Teague the issue of a contractor doing work for the defendant without paying award wages to employees, and without being insured against workers' compensation 64. . Claims. Mr. Richardson represented the Association on the Northern Territory Local Government Industry Training Committee, having been nominated to do so by Mr. Marks. This committee was devoted to the advancement of employees in local government in the Northern Territory. on some occasions, Mr. Richardson handed the problems of members of the Association to the branch office of the Association, because he felt that he needed the assistance of the branch office in handling them. This occurred in relation to the complaint of an employee named Ron Richter that he was being harrassed by Mr. Strichen, and the problem of an employee named Deanna Loos, whose wages were paid by the Northern Territory Government, although she was controlled by the defendant and doing the work of the defendant, and who was regarded as not being entitled to all of the benefits of employment by the defendant. On other occasions, Mr. Richardson handled members' grievances himself. One was' the grievance of Mr. Marlborough about being required to work overtime at times which conflicted with commitments he had made to youth work in Palmerston. Another was in relation to the entitlements of an employee named Kristine Moore, who left as a result of disciplinary proceedings. Mrs. Hooper assisted with respect to Ms. Moore's entitlements, and also with respect to a dispute about Mr. Marlborough's entitlement to flexitime. Another issue was with respect to the home garaging of council vehicles, which Mr. Richardson pursued on his own behalf and on behalf of Mr. Richter. On behalf of 65. the Association, Mr. Richardson conducted a survey of the views of the defendant's employees about the spread of hours of work. On many occasions, he and Mrs. Hooper' convened meetings of members of the Association. He made many suggestions for improvement of council procedures, including the recording of work related injuries, and the institution of proceedings on behalf of the defendant. He maintained a notice board for members of the Association, and used it to keep them informed of Association affairs and matters of potential interest. It cannot be said that these activities on behalf of the Association met with universal approval. On 21st May 1986, immediately after Mr. Richardson's purported election as workplace representative, Mr. Strichen gave him an imitation of a Nazi salute and said, "heil Hitler". Mr. Teague was present at the time. After Mr. Richardson had given evidence before Commissioner Connell, there was a marked falling off in the degree to which his suggestions for improvements in procedures and such like within the defendant's operations were welcomed. Mrs. Hooper was also aware of a "them and us" attitude after she had given evidence in the award proceedings. Against this background, the events proximate to the dismissals should be viewed. The allegations made in the Raddatz report are vague in the extreme. Nowhere are 66. expressions such as "disharmony", "actions and attitudes", "an axe to grind", "cohesion", "intentions", "adverse effect" and "continuous disruption" defined or explained. The charges made in the report are not particularised at all. Further, the Raddatz report suffers from internal inconsistency and leaps of reasoning. The reference to a small clique of employees within the finance section narrows to a concentration on one employee in that section, and it is made clear in the passages which I have already quoted that only two employees (one of whom was not in the finance section) are accused in the terms of the report. The allegations jump from past or present conduct to future intentions, and the language becomes stronger as the report proceeds, Mr. Teague's letter of resignation is a little more specific, although some of its terminology is also vague. The fact that allegations were made in that letter, however, were not given as a reason for dismissal by any of the four aldermen who gave evidence. Neither the Raddatz report nor Mr. Teague's letter of resignation contains any reference to the names of the persons against whom accusations are levelled. According to the evidence, there was no discussion at the meeting on 23rd May of the allegations in Mr. Teagque's letter. When the meeting resumed on 28th May, no mention was made of the name 67. e of either Mr. Richardson or Mrs. Hooper until quite late in the meeting, during discussions with Mr.Lyons. It is clear, however, that everyone at the meeting knew the identities of the two who were the subject of Mr. Raddatz's comments. Certainly, no-one asked to be told the names. Mr. Lyons knew who was intended; he made a remark to the meeting suggesting that the town clerk of the Darwin City Council had been happy since the person concerned had left; the remark was obviously a reference to Mr. Richardson, who had been an active member of the Association while employed at the Darwin City Council. It produced general laughter in the meeting. Immediately after Mr. Lyons made this remark, Alderman Briscoe pointed out that the meeting was being recorded. The remark was subsequently deleted from a transcript of the tape recording of the meeting, and recorded as having been deleted at Mr. Lyons's request. On the face of it, the Raddatz report was to be concerned with questions of staff training needs. It went well beyond such questions in accusing members of the staff of disruptive behaviour, and advocating their dismissal. Some of the aldermen who gave evidence said that they were surprised to find such allegations and such suggestions in the report. Despite this, no-one at the meeting asked for any particulars of the allegations. None of the four witnesses was able to give a convincing explanation of the nature of the disruptive conduct that Mr. Richardson and 68. e Mrs.Hooper were alleged to have exhibited, and there were differences between the perceptions of the various aldermen of the nature of that conduct. From a very early stage in the meeting, it seems to have been assumed that Mr. Richardson and Mrs. Hooper would be dismissed. Apart from an early comment by Mr. Raddatz to the effect that he would normally recommend that people be counselled, but that the people referred to in his report had exhibited their attitudes for about twelve months, were set on their intentions and would go out of their way to ensure their aim, no question was raised whether any alternative action to dismissal was available or would be advisable. Mr. Raddatz characterized the aim of the two employees as to "get at" a couple of the management team. He said "They're after their heads, which is as simple as that, for reasons better known to them". Except for discussion about Mrs. Hooper's refusal to prepare the accounting procedures manual, the four aldermen who gave evidence as to their reasons for wanting the two employees dismissed did not advance those reasons to the meeting. Indeed, there was no discussion as to whether Mr. Richardson and Mrs. Hooper should be dismissed. Still less was there discussion as to whether anything that they had done or failed to do warranted dismissal. The meeting seems to have assumed that they would be dismissed. 69. e Substantial discussion occurred as to whether reasons for the dismissal should be given, and if so what reasons. Substantial discussion also occurred as to whether Mrs. Hooper should be dismissed immediately, or whether the grievance procedure should be carried further inher case before she was dismissed. Those who were concerned to advocate the latter course did so solely on the ground that the defendant's position would appear to be better if it allowed Mrs. Hooper the benefit of the grievance procedure before dismissing her. There was never any suggestion that the grievance procedure might resolve the problem; rather, those who were present were prepared to carry the procedure on as a sham, whilst intending at all times to effect Mrs.Hooper's dismissal. Indeed, the fear was expressed that, if Mrs. Hooper were again given a clear direction to prepare the accounting procedures manual, there was a danger that she might obey the direction, thereby depriving the defendant of her refusal to perform this task asa justification for dismissing her. The discussion about whether reasons should be given, and what form they should take if they were given, took place mainly in the presence of Mr. Lyons. His concern seemed to be to advise the aldermen how they might dismiss employees and avoid future legal proceedings arising out of the dismissal. His advice was confusing and, at times, of doubtful accuracy. On two occasions during this discussion, 70. e Alderman Boakes suggested the giving of reasons which were patently false, and which he conceded as false in the witness box. Further, Alderman Briscoe alleged to the meeting that sixty to eighty per cent of the staff of the defendant indicated to him that they would not work with Mr. Richardson and Mrs. Hooper. Although Alderman Briscoe gave evidence that he had received complaints from sixty to eighty per cent of the staff (about which further comment will be made), at no stage in the witness box did he assert that he had been told that people would not work with the employees concerned. The meeting had all the signs of a group of people bent upon the dismissal of two employees, uncertain whether they should give reasons, and searching for appropriate reasons to give, whether they be genuine or not. On two occasions, once while Mr. Lyons was present and once later, Mr. Strichen had to remind the meeting that Mr. Richardson had not refused to obey any direction, and that therefore this could not be relied upon asa ground for dismissing him. Indeed, one might search the transcript of the tape recording of the meeting, and listen to the tape recording itself, in vain for any indication as to why Mr. Richardson was to be dismissed. So far as the evidence goes, no explanation was ever given to the meeting as to why Mr. Lyons was present. At the outset of the discussion involving Mr. Lyons, he made reference to the notification of dispute to the Australian Conciliation and Arbitration Commission. Mr. Giudice invited 71. bad me to infer that Mr. Lyons had come to advise about that matter, and found himself being asked to advise about' the dismissal of employees. Whether that was the case or not, it seems strange that no-one should have queried Mr. Lyons' Presence or asked the reason for it when the meeting was informed that he was there. The simple fact is that all those present at the meeting seemed to have some understanding of why Mr. Lyons was present. No discussion occurred as to whether the dismissal should be summary or with pay in lieu of notice. This question was never decided by the council at all. It seems to have been left to Mr. Strichen to construe the resolution of council as requiring summary dismissal. Each of the four aldermen who gave evidence swore that he or she had not known at the time of the meeting on 23rd May that Mrs. Hooper or Mr. Richardson had been called as a witness in the proceeding before Commissioner Connell. Each said that he or she had only ascertained this fact in the office of the defendant's solicitors, during the week before the trial of the present proceeding began. In the course of the meeting on 23rd May, however, Mr. Lyons made reference to Mrs. Hooper having given evidence. On the issue whether the preparation of the accounting procedures manual was part of Mrs. Hooper's duties or not, Mr.Lyons said, "Anyway if my memory serves me correctly she cited that as evidence in the case, that she was performing that function." No-one at the meeting asked 72. e for an explanation of this comment, which was inexplicable unless they were possessed of the knowledge that Mrs. Hooper had in fact given evidence before Commissioner Connell. Perhaps the strangest incident in the whole meeting occurred shortly before Mr. Lyons left. It appears in the transcript of the meeting as follows: "Brid Lyons: Just one little hitch.... Alderman Briscoe: You said that was all. Brid Lyons: Just one, just one that you must be aware of Alderman Boakes: However, but. Brid Lyons: No, no, no. I think I've given you pretty clear advice. Alderman Auld-Wilson: On the other hand. Brid Lyons: 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 is, or has been, or proposes, or has at any time proposed to become an officer, delegate or member of an organisation or of an association that's applied to be registered as an organsiation. Csic.] 73. e Alderman Briscoe: So you're saying that we can't sack him because he's a member of the union. Brid Lyons: Yes. Alderman Briscoe : That's allright, because that's not the intention. Brid Lyons: Just watch your words. Alderman Auld-Wilson : Watch them carefully. Alderman Briscoe: Well that was never the intention in the first Place." There was evidence that Mr. Lyons was reading from something when he gave this piece of advice, although no-one who gave evidence could identify the book or document from which he read. It is plain that Mr. Lyons was quoting from s.5 of the Act. He did not, however, announce that he was doing so, but appears simply to have given advice in the terms in which it appears in the transcript. Why he should have given advice only in terms of s.5(1)(a), and said nothing about any of the other circumstances referred to in s.5, can only be the subject of speculation. Although Alderman Briscoe had no experience of the Act, he appears to have been able to equate the words "an organisation" with "the union". None of the witnesses was able to explain Mr. Lyons's advice "just watch 74. your words", or the comment from Alderman Auld-Wilson which followed. Plainly, they should be construed as advice that, if reasons were to be given, care should be taken to ensure that nothing in the reasons given would give rise to a suggestion that any dismissal was in breach of s.5(1)(a). In general, the tone of the meeting lacked an air of seriousness. There were frequent bursts of levity. The occasion did not seem at all appropriate to the serious question of dismissing two employees. As I have said, there was little or no discussion as to whether grounds existed for dismissal, or as to the nature of grounds if any did exist. It was assumed that the instructions given to Mrs. Hooper to prepare the accounting procedures manual were lawful and reasonable orders. Agreement on dismissal appears to have been arrived at tacitly at a very early stage of the meeting. At no stage did anyone suggest that the views of either person to be dismissed should be sought; the case was simply taken to be proved against' then. The only substantial question which divided the meeting was whether Mrs. Hooper's dismissal should be immediate or should be postponed until such time as the grievance procedure had been advanced to a further stage. It was on this division of opinion that the vote was four to three in favour of immediate dismissal. All of these occurrences suggest that there had been prior communication between some of the aldermen, or by 75. e some of them with another person or persons, about the fate of Mr. Richardson and Mrs. Hooper. Anyone looking at the evidence as I have outlined it so far would come to the conclusion that the fate of the two employees was sealed before the meeting of 28th May began, and that the meeting itself was concerned with carrying out dismissals ina way which would cause the least trouble to the defendant. Against this, however, is the evidence of all four aldermen who were called that the decision was actually taken at the meeting on 28th May. Each was cross-examined vigorously by Mr. Strong on the issue whether prior discussions had taken Place. The answers of the four are consistent and interesting. None was prepared to deny outright the occurrence of previous discussions. Each time the subject was broached with Alderman Briscoe, he gave answers to the effect that he could not recall discussions, or that they did not occur "in a broad sense" or to "the full extent" or "the full details". Similarly, when Alderman Boakes was asked whether he had discussed with other councillors whether there would be a resolution to dismiss Mrs. Hooper and Mr. Richardson, his answer was "No, not that I can recall". In cross-examination, he said, "I may have talked to someone about it but I do not recall doing so." He did concede that there was discussion both prior to the commencement of the tape recorded meeting, and during the meeting, in a manner which was not recorded. Some of this discussion took place between himself and Alderman Briscoe. Still later, he said, te 76. "I have not had discussions that I can recall with any other councillor regarding the dismissal of the two employees", but conceded that there may have been discussions of an informal and limited nature that he could not recall. Mrs. Cook gave evidence that she had contacted Mr. Teague by telephone between her receipt of the Raddatz report and the meeting of 28th May. She asked Mr. Teague who the two staff members referred to in the report were, and was told. She asked whether further counselling would be of assistance, and Mr. Teague told her that he had tried that. She also said that there was discussion before the meeting of 28th May, amongst the aldermen who were present. She also spoke of telephone conversations with Alderman Auld-Wilson and Alderman Briscoe about Mr. Teague's resignation, and whether anything could be done to keep him. She conceded that there may have been other discussions between aldermen. Interestingly, Alderman Cook was uncertain whether there had been any mention of s.5 of the Act before the meeting; she was asked "You cannot remember whether that was discussed before this meeting?" and her answer was "Not in my presence that I recall". When it was suggested to her that someone may have made a_ statement to the effect that the two employees would have to go, her answer was, "I do not recall it". Alderman Taylor referred to comments made by other aldermen about Mr. Richardson and Mrs. Hooper in the week leading up to the meeting of 28th May, and said that he thought he would have had conversations with Aldermen Auld-Wilson, Williams and Briscoe. He did 77. e remember comments either from the town clerk or from other aldermen to the effect that Mr. Richardson and Mrs. Hooper had been "undermining council for a fair while". As to conversations before the meeting, he said, "But I honestly cannot say of which aldermen I had spoken to and what was actually said. I just cannot recall at the time...". He conceded that there was discussion immediately before the meeting began on 28th May. Alderman Briscoe had certainly had some discussions with Mr. Teague prior to the meeting of 28th May. He gave evidence that Mr. Teague had told him about his requirement that Mrs. Hooper prepare the accounting procedures manual, and her alleged refusal on two occasions to carry out this instruction. Indeed, it was Alderman Briscoe who first raised the topic of the failure of one employee to obey a lawful instruction at the meeting of 28th May. Everyone at the meeting appears to have shared this knowledge; no-one asked what Alderman Briscoe was talking about. It was also revealed that Alderman Briscoe was a close friend of Mr. Strichen, and was accustomed to drinking with him during Mr. Strichen's leisure time. Alderman Briscoe maintained that he and Mr. Strichen never discussed council business during their friendly contacts, and had not discussed Mrs. Hooper or Mr. Richardson at all. 78. ' Alderman Boakes also admitted to some conversation with Mr. Teague about Mrs. Hooper and Mr. Richardson before the meeting of 28th May. According to him, Mr. Teague said, "They shot at Barry, missed, and hit me." Alderman Boakes understood this statement as meaning that Mrs. Hooper and Mr. Richardson had conspired to bring about the termination of Mr. Strichen's employment with the defendant, but their efforts had resulted in Mr. Teague's resignation instead. Mrs. Hassell, whose task was to record the proceedings at meetings, gave evidence that there was brief discussion about "certain employees" on Saturday, 23rd May, and that they were the same employees who were discussed on 28th May. This brief discussion was not recorded as part of the meeting on 23rd May. In the meeting of 28th May, Alderman Taylor spoke of problems referred to in the Raddatz report as having been "highlighted to the members in the last week or so". Again, no question was raised by anyone at the meeting as to the meaning of this comment. Mr. Lyons opened his section of the discussion in the meeting with a statement that, "you are aware" that he had notified the Australian Conciliation and Arbitration Commission of the existence of a dispute. No-one denied such awareness, or questioned Mr. Lyons as to what he meant. 79. r In the course of the meeting, before the smoking break, Mr. Lyons said, "The other employee, as I understand the circumstances, is being disruptive to the normal management practice of council..." This was a reference to Mr. Richardson, as it followed Mr. Lyons's comment about the Darwin town clerk. There is no indication in the transcript of the meeting, or in the evidence, as to how Mr. Lyons came to know that the charge of disruption was being levelled at Mr. Richardson. There was also some controversy between the witnesses about documents. Alderman Cook remembered seeing Mr. Richardson's document entitled "ADVICE TO MEMBERS . 'DISMISSAL PROCEDURES'". She said she received a copy of it from Mr. Strichen before the meeting of 28th May, and she believed that he had distributed copies to other aldermen. She also thought that she may have received copies of the transcript of the interview between Mr. Teague, Mr. Lowrey and Mrs. Hooper on 20th May, Mrs. Hooper's grievance letter and the letter from Mr. Richardson forwarding it to Mr. Strichen, before the meeting. The other aldermen either did not recall or said that they had not received any documents prior to the meeting. The grievance letter was read to the meeting in full, and it is clear that the transcript of the interview on 20th May at least was available at the meeting. 80. Some events which followed the meeting of 28th May were also strange. The first was the text of the letters of dismissal given to Mr. Richardson and Mrs. Hooper; these misrepresented the effect of the resolution to dismiss the two employees. The council did not decide, as the letters suggest, that Mrs. Hooper's and Mr. Richardson's services were no longer required. The implication of redundancy, which the letters carried, must be seen as an attempt by Mr. Strichen to hide the true reason or reasons for the dismissals. On the morning of 29th May, when Mr. Strichen handed Mr. Richardson's letter of dismissal to him, Mr. Richardson protested, not surprisingly, and contacted Mr. Marks. Not only did Mr. Strichen refuse several times to speak to Mr. Marks on the telephone, but he threatened Mr. Richardson with removal from the premises by the police. The refusal of Mr. Strichen to give Mr. Marks the courtesy of an explanation is unexplained by evidence. Similarly unexplained is a memorandum addressed by Mr. Strichen to all of the defendant's staff, immediately after the dismissals. In this memorandum the claim is made that the dismissals were not based on the Raddatz report. This claim is inconsistent with the evidence called by the defendant. It could hardly have been made by anyone present at the meeting of 28th May, as Mr. Strichen was, unless that ™ 81. e person was prepared to lie, or was privy to some other reasons for the dismissals, which have not been brought into the open. Finally, the fate of the dispute notified to the Australian Conciliation and Arbitration Commission is curious. Having notified the dispute, the defendant purported to withdraw the notification when the dispute was listed for hearing. Further, the defendant objected when the Association attempted to have the Commission investigate the circumstances of the dismissals. The Commission upheld the objection, holding that it had no jurisdiction to hear the dispute. The defendant refused to let the Commission make a recommendation about the dismissals. If the defendant had valid reasons for dismissing Mrs. Hooper and Mr. Richardson, it would no doubt have been more willing to advance them to the Commission, if only to maintain good industrial relations with the Association and its own staff. 6. THE CREDIT OF THE DEFENDANT'S WITNESSES. It is clear that if the express evidence of the four aldermen who were called as witnesses he accepted, that they did not take into account any of the proscribed circumstances charged, the defendant will have satisfied the onus which lies on it. In deciding whether to accept that Lh) 82. evidence, it is necessary to bear in mind the unlikelihood that four apparently respectable and prominent citizens would all attend court and swear falsely as to their reasons for collaborating in the dismissal of employees. Against this unlikelihood, however, must be set the improbability of the chain of events described in the evidence. It is extremely unlikely that seven people, gathered in a meeting, would have achieved the degree of unanimity about the dismissal of Mr. Richardson and Mrs. Hooper which was said to have been achieved on 28th May, having gone through the processes which took place at that meeting. The events are, in my view, inexplicable unless some previous discussion occurred. The limited evidence of actual previous discussion, and the resort of each of the witnesses to a loss of memory about the content of any previous discussion would tend to reinforce this view. It may be that there was not a formal discussion involving all aldermen. Discussions which did take place may well have involved others, including perhaps Mr. Teague and Mr. Strichen. It is possible that some key aldermen discussed the question of dismissal with one or more of the senior officers of the defendant's staff. Speculation on what may have occurred serves no purpose. I am, however, satisfied that the question of dismissal of Mr. Richardson and Mrs. Hooper was the subject of some discussion prior to the recorded meeting of 28th May. 83. e I am also of the view that at least some of the persons responsible for determining the fate of Mrs. Hooper and Mr. Richardson must have been aware of the constraints of 3.5 of the Act. This is the only likely explanation for the complete absence of discussion at the meeting of 28th May of recent events, including the resolutions taken by members of the Association about the preparation of procedures manuals, and the raising of those issues with Mr. Marks. If Mr. Richardson and Mrs. Hooper were to be dismissed because they were disruptive, there was clear and recent evidence of behaviour which might easily have been regarded as disruptive. It is most surprising to find that behaviour not referred to by any of the aldermen who gave evidence, and not raised by anyone at the meeting. Given a group of people uninformed about s.5 of the Act, what better evidence could there have been of disruptive activities than the production of an organized response to a direction to Mrs. Hooper to prepare the accounting procedures manual? In all of the circumstances, the meeting of 28th May shows clear signs of having been organized and recorded as a piece of window dressing, so as to avoid any suggestion that the defendant was in breach of s.5 in ridding itself of its two most troublesome union members. The Raddatz report may or may not have included the allegations it did with this in mind; it is possible that Mr. Raddatz made those allegations fortuitously. Mr. Lyons had clearly been invited to give the a 84. meeting reassurance that the defendant could effect the dismissals without legal consequences. Mr. Giudice argued that even if there were a likelihood of some person or persons actively seeking to procure the dismissal of Mrs. Hooper and Mr. Richardson, by reason of one or more of the proscribed circumstances, the existence of that state of mind in such a person was irrelevant to this case. Only the minds of the four aldermen who gave evidence are relevant, so the argument went, because they are the only ones whose acts of voting in favour of the resolution of 28th May brought about the dismissals. As I have already said, there is a difficulty with this view, in that all seven of the persons able to vote at the meeting on 28th May were in favour of dismissal; the only difference between them was on the question whether the dismissal should occur immediately, or be postponed pending other events. There is no evidence as to what was in the mind of the mayor or the other two aldermen who did not give evidence. Leaving aside that complication, there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply "rubber stamps" a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the ™ mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority. These difficulties have been explored to some extent in the authorities. In Wood v. Lord Mayor, Councillors & Citizens of the City of Melbourne (1979) 41 F.L.R. 1, at pp. 19-20, Smithers J. said: "In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr. Kane, that mind may be located in the mind of one authorized officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon. In such circumstances where it is clear that one of the officers is junior to the other, and is seeking the co-operation and advice and possibly the direction of the other, obviously for a sharing of responsibility, it is not probable that the junior will have secret reasons not disclosed or act contrary to the advice or direction of the senior. The improbability is increased where the two men have acted for a long time in recurring situations, the junior as a working rule always doing what the senior would desire. 86. Accordingly in this case, I think the better view is that it was Mr. Rogan's mind which was the mind of the defendant. Possibly the mind of the corporation has to be inferred from Mr. Rogan's and Mr. Reilly's joint mind. What is in issue is a decision of the corporation. A decision is defined in the Shorter Oxford English Dictionary as including "the action of deciding" and, notwithstanding that Mr. Rogan characterized his part in the affair as giving advice, the corporation is entitled to have the total transaction looked at objectively by the court. It is the duty of the court to draw such inferences as are proper on the evidence as to who it was that played the decision-making part in the joint administrative activities culminating in Mr. Reilly performing the actual act of standing down. So doing I would attribute the decisive factor in the matter to have been Mr. Rogan's so called advice. A relevant statement of principle in this connexion is to be found in the judgment of Bray C.J. in Brambles Holdings Ltd. v. Carey: "Of course, if mental states like knowledge or belief are to be attributed to a notional and metaphysical entity like a corporation, this can only be done by attributing to it the knowledge or belief actually possessed by some one or more of its officers... Very difficult questions can arise in this connection...It is enough to say that, in my view, it is a fallacy to say that any state of mind to be attributed to a corporation must always be the state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes. This cannot be so when it is a case of successive holders of the office in question or of the holder of the office and his deputy or substitute during his absence." In Voigtsberger v. Council of the Shire of Pine Rivers (No.2) (1981) 58 F.L.R. 239, the decision of a local government authority to dismiss an employee was made by the finance committee, and adopted by the council later in the evening. Evatt J. took the view that the decision of the " 87. ~ finance committee was the critical one. As a number of the members of the finance committee were not called to give evidence, Evatt J. held that the onus on the employer had not been discharged. In the course of so doing, his Honour quoted from Roberts vv. General Motors-Holden's Employees' Canteen Society Inc. (1975) 25 F.L.R. 415, from a section of the judgment not appearing in the report of that case. The passage is set out at p. 256 of Voightsberger's case as follows: "The defendant, General Motors-Holden's Employees' Canteen Society Inc. is an incorporated body. The management of its affairs is in the hands of a general committee... 'The relevant inquiry 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... '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 it 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 30 motivated. Or a _ person improperly motivated may have presented a dishonest case to others." 88. e It is clear from these authorities that difficult questions may arise when a decision is taken by a committee, board or similar body. If attention is confined to those who voted in favour of the resolution to dismiss, is it necessary to show that all were actuated by a circumstance proscribed by s.5 of the Act? If it is umnecessary to show that all were so actuated, what number will suffice? Does there need to be a majority of the majority wrongly motivated, or is it enough to show that only one was wrongly motivated, if that one played a leading role in persuading the others to vote for the dismissal? It must be remembered that, in the case of a single person making a decision to dismiss, and proved to have acted upon a proscribed circumstance, the plea that the proscribed circumstance was only one of several reasons for the dismissal, and that the decision would have been the same if the proscribed circumstance had not been present, will not be heard. The question is whether the proscribed circumstance is a substantial operative factor, not whether it is the principal reason for dismissal, nor whether other reasons would have been sufficient had it been absent. It may be that the discovery that fewer than half of the persons who voted for a decision to dismiss were motivated by a proscribed circumstance would be fatal to the defence in a case involving s.5. The position would become even more difficult if different persons who voted in favour of a resolution to dismiss were found to have been actuated by 89. different proscribed circumstances. That is a question which does not arise however, in the present case. Alderman Briscoe is obviously one of the leaders among the aldermen. His performances, both in the meeting of 28th May and in the witness box, demonstrate that he is accustomed to putting his point of view strongly, with a lot of bluster and bluff, and having it accepted. He was fond of generalisations. In his evidence, he repeatedly referred to the creation by Mr. Richardson and Mrs. Hooper of a problem "inside the staffing structure", "a problem within the staff structures", "the downfall of the structure of the staff" and similar expressions. During the meeting of 28th May, he referred to "causing interference with...the smooth running of the machine", "causing inner problems with the whole structure of the system", "causing a big problem in the chain of command", "causing a great disturbance, in amongst our staff", "disruption...amongst the rest of the staff", "causing nothing but problems", "causes too much disruption" and "continually trying to disrupt the Council, they are not doing anything to benefit the Council, their whole aim is to destroy the whole inner structure of the Council". He spoke of "removing a little cancer from within the system." In the witness box, Alderman Briscoe was pressed strongly for details of these allegations. He was unable or unwilling to justify or particularise them. According to his evidence, he formed the view he had about the conduct of Mrs. Hooper and 90. Mr. Richardson as a result of complaints made to him by staff members. His evidence was that he received many such complaints, but directed the complainants to the town clerk, as he did not see it as the proper function of an elected member to receive communications directly from staff members about internal staff problems. Beyond giving the names of four persons, one of whom had resigned in December 1986, Alderman Briscoe was unable to give details of the complainants. This was 30, notwithstanding that he claimed to have received complaints from between sixty and eighty per cent of the staff. Further, when asked for details of the nature of the complaints, he could only suggest that Mrs. Hooper was responsible for putting pressure on one member of staff under her (the person who had resigned), and for exaggerating things. One instance of exaggeration was said to be a claim by Mrs. Hooper that an error made by one staff member had been in the region of $3,000, when it was in fact only an error of $300. Another was the suggestion that Mrs. Hooper had spread a rumour that the town clerk was responsible for the pregnancy of a member of staff. So far as Mr. Richardson was concerned, the complaints detailed by Alderman Briscoe were complaints from residents, not staff members, and related to his activities as dog catcher and to alleged victimisation. On several occasions, Alderman Briscoe represented to the meeting of 28th May that he had been told by sixty to 91. e eighty per cent or the majority, of the defendant's staff that they would not work with Mrs. Hooper or Mr. Richardson. The assertion was that the majority of staff would leave unless those two were dismissed. At no stage in the witness box did Alderman Briscoe attempt to justify this claim. Even on the assumption that he had received complaints from the majority of the staff, he did not claim to have been told by them that they would refuse to work with Mrs. Hooper and Mr. Richardson. Indeed, his evidence was that the complaints came over a long period, and that he had done nothing about them until 28th May. This is hardly consistent with receiving an indication that people would resign unless a certain course were taken. Alderman Briscoe claimed to have a firm position that he should not deal with staff complaints, but that they should go to the town clerk. Indeed, this was one of the reasons he gave for wanting to see Mrs. Hooper and Mr. Richardson dismissed. He alleged that they had gone directly to the mayor with complaints, and provided her with information, which she had used against the town clerk. This is apparently the explanation of Mr. Teague's reference to log books in his letter of resignation. It appears that the Mayor regarded herself as having been elected with a mandate to cut the defendant's budget. One of her target areas was motor vehicles owned by the defendant. She had instituted a system of log books for the motor cars, so that information 92. as to their use would be available. Mr. Teague was alleging that, as a result of information given direct to the mayor by employees of the defendant, the mayor had formed the view that the log books had been discontinued. Both Mr. Richardson and Mrs. Hooper denied the somewhat vague allegations put to them in cross-examination that they had communicated directly with the mayor. The cross-examination was not specific as to dates or times, as to items of information allegedly passed, or even as to whether the conversations were by telephone or personally. I accept the denials of Mr. Richardson and Mrs. Hooper. This is not to the point, however, if Alderman Briscoe was sincere in his belief that they had passed information to the mayor. The point to be made is that Alderman Briscoe was apparently unabashed about the glaring inconsistency of his position. He claimed to have justified the dismissal of Mr. Richardson and Mrs. Hooper in part on the basis that they had communicated information directly to the mayor. He also claimed to have justified their dismissal in part on the basis of information which he had received directly from staff members. The attempts which Alderman Briscoe made to detail the complaints of residents against Mr. Richardson were also vague. Undoubtedly, Alderman Briscoe had received some complaints against Mr. Richardson over his activities as a dog catcher, and perhaps some allegations of victimisation. 93. . These had been received some time earlier, and Alderman Briscoe had taken no action with respect to them other than to refer the complainants to Mr. Teague. It is difficult to accept, on 28th May 1987, these matters suddenly became reasons for the dismissal of Mr. Richardson. The suggestion that Mr. Richardson had made a false statutory declaration arose out of the incident for which Mr. Teague had disciplined Mr. Richardson in November and December 1986. Mr. Richardson had been cleared by Mr. Teague of any impropriety, but Alderman Briscoe claimed to have retained doubts about the correctness of a statutory declaration, which Mr. Richardson had made about the incident. Again, it is hard to see how these long standing doubts suddenly became @ reason for dismissal on 28th May. After a close examination of the transcript of Alderman Briscoe's evidence, I am unable to accept that he has given a full and truthful account of his reasons for wanting Mrs. Hooper and Mr. Richardson dismissed. If indeed he did regard Mrs. Hooper and Mr. Richardson as causing problems in the staff structure, or as breaking the chain of command, it was not because of complaints from other staff members, nor because of exaggeration, rumour mongering or pressure on more junior staff on the part of Mrs.Hooper. In no way does Alderman Briscoe's account of the complaints he allegedly received justify these descriptions. This leaves open the very real possibility that Alderman Briscoe regarded ~ 94. the two employees as causing a problem within the staff structure, or as breaking the chain of command, because they were active unionists, who took seriously their positions as members of the Association, and did what they could for their own and their fellow members' conditions of work. The language which Alderman Briscoe used, both in the witness box and at the meeting of 28th May, is entirely consistent with his taking this view, but with his knowledge that he could not take it overtly, because to do so would involve a breach of s.5 of the Act. His recognition in the meeting of the meaning of s.5 is significant. Alderman Briscoe was without doubt one of the leaders of the council, and was pushing hard for the dismissal of Mr. Richardson and Mrs. Hooper. As I have said, he was prepared to lie to the meeting to secure this end. Another who pushed strongly to the same end was Alderman Boakes. Alderman Boakes seems to have been keen to see Mr. Richardson and Mrs. Hooper dismissed. Early in the discussion with Mr. Raddatz at the meeting of 28th May, he questioned what would occur, "if these people that you mention in the report were not about?". During the discussion with Mr. Lyons concerning the giving of reasons, Alderman Boakes proposed the giving of two separate reasons, each of which he conceded in the witness box to have been false. He did not advance at the meeting the reasons which he advanced in the witness box. After Mr. Lyons left the at 935. e meeting, Alderman Boakes was keen to volunteer to move the motion for dismissal. He did in fact move it, although its form was altered to some extent in discussion. Apart from stressing that he was not a part of any faction on the council, and that he acted as he thought best in relation to each issue, Alderman Boakes was unable to explain his keenness to see the two employees dismissed. Nor could he give any adequate explanation of his preparedness to advance false reasons to justify dismissal. In my view, such conduct points to the existence of unstated reasons. Alderman Boakes also used vague phrases in evidence, including "unrest within council", "disruption" and "disruptive influence". Again, the content of these vague allegations was never explained by Alderman Boakes. On the evidence, they are consistent only with the view that Mr. Richardson and Mrs. Hooper were causing unrest and disruption within the defendant's staff because of their activities on behalf of the Association. Alderman Boakes reacted somewhat angrily in the witness box to the suggestion that he was not telling the truth. He pointed out that, as an accountant, he had a professional reputation to preserve, and would be unlikely to compromise that by lying in the witness box. There is no doubt that I must take into account the unlikelihood that Alderman Boakes would compromise his professional integrity at 96. by lying. On the other hand, his professional reputation might be in danger to some extent by being found to have been a member of a council committing an offence against s.5 of the Act. In the result, after considering his evidence carefully, I am not satisfied that Alderman Boakes was telling the full story. I find that there were reasons other than those revealed by him which actuated him in voting in favour of the resolution to sack Mr. Richardson and Mrs. Hooper. As to Aldermen Cook and Taylor, I have some uncertainty. Like Aldermen Briscoe and Boakes, they resorted to an inability to recall when questioned about previous discussions on the subject of dismissing Mrs. Richardson and Mr. Hooper. They were, however, more frank about the fact that such discussions did take place. On the other hand, each of Aldermen Cook and Taylor played a low key role in the decision to dismiss. To some extent, they were carried along by the obvious weight of opinion, pushed heavily by Aldermen Briscoe and Boakes, that dismissals should occur. They were concerned about delaying those dismissals, on the basis that delay to allow the grievance procedure to advance in Mrs. Hooper's case would only be a sham. They may well have acted without reliance on a proscribed circumstance, although influenced heavily by those who may have been. os 97. - Some discussion occurred during argument about whether certain persons who were not called to give evidence should have been called, and if so whether they should have been called by the prosecutor or the defendant. Mr. Giudice argued that, having called the four persons responsible for the actual decision to dismiss, he had done all that was necessary; if the prosecutor wished to challenge the genuineness of their reasons by other evidence, it was up to him to do so. Mr. Strong submitted that the failure to call other persons, such as the mayor and the other two aldermen, Mr. Teague, Mr. Strichen, other members of the defendant's staff, Mr. Raddatz and Mr. Lyons, amounted to a failure to call all of the evidence which might have been relied on to discharge the defendant's onus, and that this failure was an indication that the evidence would not have favoured the defendant. In my view, the defendant sought to satisfy the onus on a very narrow basis. It took the view that the actual decision to dismiss was the resolution of the meeting of 28th May, and that it was sufficient to call the four persons whose votes produced that resolution, and to rely on the proposition that the reasons they gave, however irrational, were sufficient to exclude the proscribed circumstances. No attempt was made to establish the existence of genuine objective reasons for the dismissals, or to explain the role of the mayor and the other two aldermen, the officers of the defendant and other persons, in 98. influencing the decision which was actually made. The defendant must stand or fall by the manner in which it chose to conduct the defence. To the extent to which its conduct of the defence leaves matters unexplained, I donot draw inferences unfavourable to the prosecutor from the lack of explanation. 7. CONCLUSION AND CONSEQUENTIAL ORDERS. My dissatisfaction with the evidence of Aldermen Briscoe and Boakes must lead to the conclusion that the defendant has failed to establish on the balance of probabilities that the dismissals were not actuated by one or more of the proscribed circumstances to which I have referred. Assuming, as I must, that each of Aldermen Briscoe and Boakes was influenced by one or more of those circumstances, it follows that the defendant has failed to show that those circumstances were not substantial and operative factors in the decision to dismiss. Having regard to the structure of s.5 of the Act, it is unnecessary to make positive findings on this issue. The evidence does suggest to me, however, the probability that Mr. Richardson and Mrs. Hooper were dismissed because they were active members of the Association, and because of their dissatisfaction expressed over the threats of instant dismissal for employees failing to obey instructions. The 100. e reason of the circumstances that she was a member of the Association, had appeared as a witness in a proceeding under the Act, and being a member of the Association which was seeking better industrial conditions, was dissatisfied with her conditions. I also propose to convict the defendant of an offence with respect to Mr. Richardson in similar terms. The maximum penalty prescribed for an offence under s.5 is a fine of $400.00. The defendant is a first offender. The level of any fine must reflect the Court's disapproval of the defendant's conduct, and take into account the need to deter the defendant and other employers, so far as is possible within the very limited range which the Act allows. In my view, in all of the circumstances, a fine of $250.00 on each charge is appropriate. The additional remedies provided for in s.5(5) of the Act are also to be considered. In the course of the trial, no doubt in reliance on what was said by the Full Court in Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at pp. 90-95, Mr. Giudice indicated that, if the defendant were to be convicted, he could not oppose the making of an order to reinstate each of Mrs. Hooper and Mr. Richardson. Such an order will be made. As to the question of reimbursement of wages, some calculations were tendered in evidence. They were put partly on the basis that Mr. Richardson and Mrs. Hooper might be entitled to more 1f they were not reinstated than if they were. The calculations therefore included sums for such things as pro 101. e rata long service leave and loss of superannuation entitlements. There was some controversy as to whether these items amounted to "wages lost" within s.5(5). In the event, since reinstatement will occur, it is appropriate only to order payment of the ordinary salary of each of the employees, together with any overtime and other allowances which he or she would have been expected to have earned if the employment had continued. These matters, in my view, amount to "wages lost". There was also argument about the impact of the law relating to income tax. It is unclear whether, in making an order for the payment of wages lost, the Court should order only the nett amount after deduction of income tax by the employer under the group tax scheme. I incline to the view that the order should be for the gross amount, and not for the nett. In the normal course, however, when Mr. Richardson and Mrs. Hooper are reinstated, the obligations of the defendant as an employer under the group tax scheme will operate. I expect that each of the employees will receive his or her entitlements and that group tax will be deducted in the normal course and forwarded to the Commissioner for Taxation. I propose to reserve the question of the amount of money which each employee is to receive, so that the parties may return to the Court if controversy arises. Appearances Prosecutor: Defendant: 102. e Mr. M. Strong Instructing solicitors: Ryan Carlisle Needham Thomas Mr. G. Giudice Instructing solicitors: Povey's. I certify that this and the preceding one hundred and one (101) pages area true copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: Rist December 1984 Associate: Melanwo rong .