Harrison v P & T Tube Mills Pty Ltd [2009] FCAFC 102

FEDERAL COURT OF AUSTRALIA

Harrison v P & T Tube Mills Pty Ltd [2009] FCAFC 102

INDUSTRIAL LAW – whether dismissal for a prohibited reason or for reasons which include a prohibited reason – whether trial judge erred in accepting evidence of decision maker – whether respondent discharge onus under s 809 Workplace Relations Act 1996 (Cth) INDUSTRIAL LAW – where appellant affixed pro-union sticker to body – where refusal to obey lawful and reasonable direction to remove sticker Workplace Relations Act 1996 (Cth)ss 793(1)(a), 809 Australian Tramways Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35, distinguished General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, distinguished Harrison v P & T Tube Mills Proprietary Limited [2009] FCA 220, affirmed SHANE JOSEPH HARRISON and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v P & T TUBE MILLS PTY LTD

QUD 98 of 2009

RYAN, MARSHALL AND LOGAN JJ

28 AUGUST 2009

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

fair work division QUD 98 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SHANE JOSEPH HARRISON

First Appellant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Second Appellant

AND: P & T TUBE MILLS PTY LTD

Respondent

JUDGES: RYAN, MARSHALL AND LOGAN JJ

DATE OF ORDER: 28 AUGUST 2009

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

fair work division QUD 98 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SHANE JOSEPH HARRISON

First Appellant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Second Appellant

AND: P & T TUBE MILLS PTY LTD

Respondent

JUDGES: RYAN, MARSHALL AND LOGAN JJ

DATE: 28 AUGUST 2009

PLACE: BRISBANE

REASONS FOR JUDGMENT THE COURT: 1 On 6 May 2008, the respondent, P & T Tube Mills Pty Ltd ("One Steel") terminated the employment of the first appellant, Mr Harrison. At the time, Mr Harrison was a delegate representing fellow employees who, like him, were members of the second appellant, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU"). 2 Mr Harrison's dismissal occurred after his refusal to comply with what One Steel considered to be a lawful and reasonable direction to remove a sticker from his neck. The dismissal arose in the context of disharmony at the workplace between pro-union and anti‑union employees, which included the dissemination of competing stickers. 3 Mr Harrison and the AMWU challenged the dismissal in a proceeding before the primary judge invoking the freedom of association provisions contained in Pt 16 ofthe Workplace Relations Act 1996 (Cth) ("the Act"). His Honour dismissed that application. Mr Harrison and the AMWU have appealed from that order, the reasons for which were published in Harrison v P & T Tube Mills Proprietary Limited [2009] FCA 220.

The parties 4 One Steel has a tube manufacturing factory at Acacia Ridge in Brisbane. There are four mills at the site, each of which constitutes a line for the production of tubular steel items. The work of the employees who operate the mills is inherently dangerous. The primary Judge found that One Steel had a formal policy of allowing employees freedom of choice as to whether or not they joined a union. However, his Honour inferred that One Steel would have preferred to have had no union activity on site although he found no evidence that the minimal level of existing union membership was seen as a problem. One Steel tried to give effect to its preference by keeping employees contented so that union membership was not particularly attractive. However, One Steel was careful to fulfil its legal obligations concerning union membership and those of its employees who were members of the AMWU. 5 Mr Harrison joined the AMWU in early 2007. On 8 June 2007 he became an AMWU delegate at the site. The AMWU is an organisation of employees registered under the Act with eligibility to enrol employees, including those at One Steel in classifications similar to Mr Harrison's. At all relevant times, One Steel, through its management, was aware of Mr Harrison's membership of the AMWU and his election or appointment as an AMWU delegate.

the Critical issue for determination 6 The critical issue for determination on this appeal is whether the primary Judge erred in being satisfied that One Steel had rebutted the presumption created by s 809 of the Act that the dismissal had occurred for the reason, or reasons that included the reason, that Mr Harrison was a delegate or member of the AMWU. Central to his Honour's resolution of that issue was whether the direction to Mr Harrison to remove the sticker from his neck had been reasonable and lawful.

The stickers AND RELATIONS BETWEEN ONE STEEL AND MR HARRISON 7 The learned primary Judge traced the history of events affecting One Steel's relations with the AMWU and Mr Harrison since the latter's accession to the position of Union delegate in June 2007. His Honour found that "each of the major incidents which occurred appears to have been directly provoked by [Mr Harrison]." It seems to have been undisputed that, as his Honour found, from about June 2007 until May 2008 Mr Harrison had been very active in promoting Union affairs at the site. That activity included distributing literature, putting up notices, handing out stickers and singing Union chants. He spoke to other employees about Union business and urged on them the benefits of Union membership. He also made representations directly to One Steel management about matters of concern to the AMWU or its members. That occurred, his Honour found, without causing any particular friction with management except on one occasion when Mr Harrison had arranged for two AMWU organisers, Mr Bradley and Mr Loggie to attend a meeting with two management representatives without first advising those representatives that the organisers would be in attendance. 8 The increased AMWU activity which Mr Harrison generated provoked a reaction in the workplace from some One Steel employees who were unsympathetic or openly hostile to the AMWU. One manifestation of that reaction was the appearance of "Say No" stickers which Mr Harrison found offensive because he regarded them as advocating that employees should "say no" to Union membership. Mr Harrison therefore urged One Steel management to ban the distribution of "Say No" stickers. That request led to management's imposing a general ban on the affixing to helmets of all stickers, including those advocating "Say No" and those extolling the benefits of AMWU membership or otherwise promoting the interests of the AMWU. The ban was later extended to the affixing of stickers to ear muffs. 9 A meeting between One Steel management and representatives of the AMWU had been appointed for 14 April 2008 and Mr Harrison proposed to attend wearing AMWU stickers on his shirt. He was dissuaded from that course by Mr Loggie, one of the AMWU organisers, but, despite that advice, "felt the need", as his Honour found "when he entered the room, to draw attention to the fact that he was not wearing stickers. Despite Mr Harrison's involvement in initiating the ban on stickers, he was determined to demonstrate disapproval of it to the extent that it applied to him." 10 Notwithstanding the general ban against stickers on helmets and ear muffs, stickers continued to appear elsewhere at the One Steel site. In particular, they came to be affixed to employees' lockers, frequently without the consent of the employees using the affected lockers. That generated complaints to management who also received complaints from Mr Harrison that AMWU stickers had been stolen from the workplace or defaced. As well, in late 2007 or early 2008 Mr Harrison and two other AMWU members started wearing AMWU stickers on their work clothes. When not removed before washing of the clothes, those stickers caused clogging of the site washing machine. As a result, One Steel management requested that stickers be removed from clothing before it was washed. 11 Eventually, by late April 2008, One Steel management regarded the "sticker issue" as "out of control" and, on 24 April 2008, issued a memorandum banning, with effect from 30 April 2008, stickers from lockers, company-issued clothing and more generally. The memorandum indicated that the use of any stickers on site would require management approval and called on supervisors to enforce the policy. 12 Mr Harrison's advocacy of the AMWU's cause generated particular hostility between him and a Mr Tavita which, according to Mr Harrison, led to threats of physical violence being made against him by Mr Tavita. Each man complained to management about the other and, on the version preferred by his Honour, Mr Harrison was, on 1 July 2007, asked to, and did, apologise to Mr Tavita but Mr Tavita refused to accept the apology. Another incident occurred on 4 June 2007 when Mr Harrison, before commencing his own shift, had gone on to the shop floor where employees in Mr Tavita's section were completing their shift. He did so for the purpose of talking to an AMWU member to whom he offered a Union T-shirt. He was asked by Mr Tavita to leave and that request was later reinforced by Mr Hasemann, Mr McGuire and Mr Newbegin of One Steel management, who told Mr Harrison that talking to employees who were still working was disruptive and that he should confine his Union proselytising to his own time or meal breaks and should respect the rights of those who did not want to hear his message. 13 On 27 October 2007 an altercation occurred between Mr Harrison and Mr Tavita about the use of bad language in the lunch room. As a result, each man was given a written "final warning" which was contemplated as "Step 3" in One Steel's protocol for dealing with misconduct. The primary judge was satisfied "that the issue of the final written warning was not, itself, evidence of any hostility towards Mr Harrison or of any desire to discriminate against him because of his union membership, status as a delegate, union activity or by any other feeling of personal animosity.' 14 The issue to Mr Harrison of the final warning noted at [13] above led to a conference at the Australian Industrial Relations Commission ("the Commission") on 20 December 2007. Other issues were raised at the conference by One Steel in relation to Mr Harrison, including the fact that he had been spoken to about; · the parking of his motorcycle in the wrong place; · the placing of his AMWU cap on other employees' mugs and in a refrigerator in the lunch room; and · the singing of union chants in the lunch room..

At a meeting on 24 January 2008 with One Steel management representatives and Mr Bradley, the AMWU organiser, Mr Harrison agreed to modify his behaviour to obviate concerns about the three last mentioned issues. 15 On 2 May 2008, Mr Harrison attended a barbecue on site wearing an AMWU sticker on his neck. Mr Hasemann, the Operations Supervisor at Acacia Ridge and Mr Allard, the Site Operations Manager each asked Mr Harrison to remove the sticker. Mr Harrison refused to remove the sticker until he had been instructed in writing to do so. A meeting then occurred in Mr Allard's office during which Mr Harrison was asked why he would not remove the sticker. Mr Harrison responded to the effect that, if management wanted to be childish he would also be childish and not remove the sticker unless he had an instruction to do so in writing. Mr Harrison said that he would take such an instruction to the AMWU which, in turn, would respond within seven days. Mr Allard replied, in effect, that a written instruction was not required and that One Steel could not run a business that way. Mr Allard then suspended Mr Harrison on full pay, pending a further meeting on 6 May 2008. 16 On 6 May 2008, a meeting occurred between Mr Hasemann, Mr Allard, Mr Newbegin, the National Organizational Development and Training Manager for One Steel and Mr Harrison, who was accompanied by Mr Bradley, the AMWU organiser. Mr Harrison and Mr Bradley contended that the request to Mr Harrison to remove the sticker from his neck had been unlawful. After some discussion about the incomplete removal, since the memorandum of 24 April 2008, of stickers from walls and cups in the workplace, Mr Allard asked Mr Harrison whether he understood how serious the situation was and whether he had anything further to add. Mr Harrison replied that he had nothing. The meeting was then adjourned for half an hour during which the One Steel management representatives discussed what had been said by Mr Harrison and Mr Bradley. The meeting then reconvened and Mr Allard asked Mr Harrison whether he had any further response. No response was made and Mr Allard said that he had decided to dismiss Mr Harrison summarily with immediate effect. After some discussion about Mr Harrison's entitlements, Mr Allard agreed to pay Mr Harrison five weeks' wages in lieu of notice.

The reason or reasons for the termination 17 The primary Judge accepted Mr Allard's denial that Mr Harrison's union membership and position as a delegate had been reasons for the dismissal. His Honour found, on the balance of probabilities that those factors had not formed part of the reasons for the decision to dismiss Mr Harrison. No basis has been established on appeal to disturb that finding. 18 Mr Allard gave evidence that Mr Harrison's wearing of the sticker on his neck had been intentional, pre-meditated and designed to show contempt for Mr Allard's position on banning stickers. Mr Allard said that the issue was not so much about stickers in themselves but about Mr Harrison's deliberate disregard of an instruction given to him by Mr Allard. 19 Mr Allard also testified that between 2 and 6 May 2008, he had considered Mr Harrison's stance and had consulted with One Steel's senior management and solicitors. He said that the reason for the dismissal had been Mr Harrisons' wilful disobedience of a work instruction. Mr Allard claimed that his decision had nothing to do with Mr Harrison's union membership or delegate status. 20 Counsel for the appellants contended that Mr Allard's evidence should not have been accepted by the primary judge because a letter sent by One Steel's solicitors to the solicitors for the appellants gave other reasons for the dismissal. That assertion of other reasons raised the distinct likelihood, so the argument ran, that the prohibited reasons of Mr Harrison's membership of the AMWU and his status as a union delegate had formed part of the reason for the dismissal.

The Sparke Helmore letter 21 In a letter dated 7 May 2008, One Steel's solicitors, Sparke Helmore, wrote to the AMWU's solicitors setting out "several key factors" which management had taken into account. The reference to "several key factors", Counsel for the appellants contended, left open the possibility of other unstated factors, including the alleged prohibited reasons, having influenced the decision to terminate Mr Harrison's employment. The Sparke Helmore letter identified the "several key factors" as including: 1. The failure of [Mr Harrison] to obey a reasonable and lawful direction on repeated occasions;

2. The significant disruption to the normal commercial operations of the site due to deliberate and wilful conduct by [Mr Harrison] to cause maximum disruption; and

3. The potentially adverse health and safety consequences that may have followed if the deliberate disruption were allowed to continue.

22 In effect, the third factor was bound up with the first. Mr Allard was concerned that it was likely that, if the instruction about the sticker were disobeyed with impunity, that other lawful instructions, including those relating to safety in a dangerous workplace, would be accorded diminished respect. 23 The second factor was disavowed by Mr Allard in his evidence and appears to have been a reference by Sparke Helmore to previous concerns with Mr Harrison's conduct which had been ventilated in the Commission. The second factor advanced by Sparke Helmore amounted to no more than an assertion that Mr Harrison's continued and deliberate challenging of lawful instructions had the capacity, in the mind of management, to disrupt the operation of the workplace in a commercially advantageous way. As the primary Judge said, "I think it unlikely that Mr Harrison's previous history could be overlooked. However … it was the disruption rather than the conduct, to which the letter referred". 24 In any event, the Sparke Helmore letter specifically disavowed that the alleged prohibited reasons had formed part of the reason for the dismissal, saying: Further, so that there can be no misunderstanding, the status of [Mr Harrison] as a Union delegate or that the relevant sticker was a Union sticker was an irrelevant consideration and not taken into account by [One Steel] when they decided to terminate [Mr Harrison's] employment. 25 Even if the Sparke Helmore letter be read as referable to Mr Harrison's work history and other unstated reasons, its express disavowal of the prohibited reasons means that it cannot assist in establishing the case which the appellants have sought to make. 26 Mr Allard also wrote his own letter to Mr Harrison on 7 May 2009, explaining the reasons for his dismissal. The letter referred to Mr Harrison having been "repeatedly given a lawful and reasonable direction" which he refused to follow, "in breach of company policy". That letter referred to the meeting on the previous day at which Mr Harrison had been given a further opportunity to respond to the allegation against him that he had refused a lawful and reasonable direction and had been alerted to the consequences of a refusal to follow it. The letter confirmed the decision summarily to dismiss Mr Harrison and attributed no reason for it other than his refusal to comply with a reasonable and lawful direction.

A reasonable and lawful DIRECTION 27 Counsel for the appellants submitted that the direction to Mr Harrison to remove the sticker from his neck was not reasonable or lawful. Even if the direction had not been reasonable or lawful, if the termination had been by reason of non-compliance with that direction, it does not follow that it was for a prohibited reason. However no occasion arises to examine the consequences of the direction's having been unreasonable or unlawful because the primary Judge considered, correctly, that it had been both reasonable and lawful. 28 By 6 May 2008, the general issue of stickers at the workplace had become a matter of serious concern for management at One Steel. As the primary Judge said, "the wearing of stickers had become a cause of conflict within the workplace". His Honour also observed, again correctly, that "One Steel had a legitimate interest in maintaining harmony on site and an obligation to its employees to do so". 29 The sticker which Mr Harrison placed on his neck was an AMWU sticker but management was concerned that stickers of any type should not be displayed because of the capacity which their display had to generate conflict between sections of the workforce. A different view might have been taken had the sticker been advocating support for a particular AMWU campaign such as one for increased wages or paid paternity leave, and had it not been displayed in the context of a pre-existing conflict about the use of stickers. 30 The wearing of a sticker on an employee's neck in defiance of a workplace ban on stickers in the context of their having caused or contributed to conflict between workers on site can readily be distinguished from an employer's refusal to allow union members to wear a union badge which was considered in Australian Tramways Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 and similar cases. In the Brisbane Tramways Case, for example, the evidence admitted of a finding that the employer's giving of a direction that employees were not to wear badges of any kind, other than those supplied by the employer, was part of a policy of the employer to suppress unionism. On the facts, that is not this case.

Conclusion 31 We can detect no error by the primary Judge in expressing himself as satisfied, on the evidence before him, that One Steel had discharged its onus of proving, on the balance of probabilities, that it had not been influenced by Mr Harrison's AMWU membership or his status as a delegate when it dismissed him. The decision-maker, Mr Allard, gave sworn evidence to that effect. The primary Judge accepted that evidence. No reason has been advanced on the appeal to demonstrate any error in that acceptance. 32 The circumstances of this can be contrasted with those in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 where some relevant decision-makers had not given evidence. In Bowling, Gibbs J said, at 612; If in the present case evidence had been given by the directors responsible that that employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged. 33 In the present case the responsible decision-maker, Mr Allard, gave evidence that he had taken the decision to dismiss Mr Harrison because he had been guilty of misconduct and that he, Allard, had not been influenced by Mr Harrison's membership of the AMWU or his status as a Union delegate. He acknowledged that he had thought that there may be ramifications because Mr Harrison was a delegate. His evidence was accepted and nothing has been shown on appeal to impugn that acceptance. It follows that One Steel discharged the onus of proving that the dismissal had not been for a prohibited reason, or for reasons that included a prohibited reason. 34 In the light of the findings of the primary judge, no occasion arises for considering the question agitated at first instance and, on appeal, of the interaction between paragraphs (a) and (o) of s 793(1) of the Act. Paragraph (a) in our view, as Counsel for One Steel accepted, is wide enough to apply to the present case had the facts permitted. It follows that, for the reasons which we have endeavoured to explain, the appeal must be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Marshall and Logan.

Associate: Dated: 28 August 2009 Counsel for the Appellants: Mr J Pearce

Solicitor for the Appellants: Carne Reidy Herd

Counsel for the Respondent: Mr J Murdoch SC with Ms S Moody

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 13 August 2009

Date of Judgment: 28 August 2009