Brakoulias, Nicholas v Yakka Pty Ltd [1982] FCA 314

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IN THE FEDERAL COURT OF AUSTRALIA

V. No.41 of 1982

VICTORIA DISTRICT REGISTRY

INDUSTRIAL DIVISION

BETWEEN: . NICHOLAS BRAKOULIAS Prosecutor — and YAKXA PTY. LIMITED Defendant NORTHROP J. "| ORAL JUDGMENT 10 DECEMBER 1982,

. + Nicholas Brakoulias as prosecutor has brought this

information under s.5 of the Conciliation and Arbitration Act

1904 against Yakka Pty. Limited as defendant, alleging that the

defendant as employer did, contrary to s.5{1) of the Conciliation

and Arbitration Act, dismiss him by reason of the circumstance

that he was a delegate of the Clothing and Allied Trades Union of Australia, an organization of employees under the Act.

an The alleged dismissal took place on 8 September 1982, and I have been informed that the prosecutor is seeking an order that he be reimbursed for wages lost by him and is seeking a direction that he be reinstated in his old position or in a Similar position. At present the informant has other employment, The hearing of the information in relation to the charge has been

heard separately from the issues of what orders and directions

should be made if the defendant is found guilty.

Because of all these factors it is desirable that

the parties know their legal position as quicrly as possible so

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that they may regulate their affairs without the uncertainty presently existing. Because of other commitments, detailed

reasons for judgment cannot be prepared for some considerable period. However, I have formed a firm view on the issue of whether the defendant committed the offence alleged, and I propose to announce my opinion on that matter.

Ag Applying the criminal standard of proof,on all the evidence I am satisfied that the prosecutor was a delegate of an organization within the meaning of s.5(1)(a) of the Act, that he was employed by the defendant at its Brunswick shop and that he was dismissed from that employment on 8 September 1982 by the plant manager, Brunswick, Mr, McAdam, being a person having

authority to dismiss him. On the whole of the evidence, I am

"satisfied beyond reasonable doubt that all the relevant facts

and circumstances, other than the reason set out in the information as being the reason for the dismissal, have been proved, Accordingly, under s,5(4) of the Act, it lies upon the defendant

to prove on the balance of probabilities that the dismissal was

not actuated by reason of the circumstance that the prosecutor

was a delegate of the Union,

I am satisfied that a reason for the dismissal was because Mr. McAdam had discovered certain irregularities relating to the piece-work tickets of another employee of the defendant, namely Miss Terry Watts, which Mr. McAdam believed resulted from

the incompetence of the informant in performing his duties, and

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accordingly the informant or prosecutor shouid be dismissed,

Mr. McAdam believed also that comments made by the prosecutor

at a stop-work meeting held immediately after Miss Watts had been dismissed from her employment on 27 August 1982 justified the dismissal of the prosecutor, but Mr. McAdam had taken no further steps to investigate the matters giving rise to that belief, apart from the facts relating to Miss Watts, before he dismissed the prosecutor. He had investigated the facts relating to Miss Watts at the request of an organizer of the Union, who sought the

reinstatement of Miss Watts in her employment.

The establishment of one reason for dismissal, however, does not of itself negate the reason alleged in the information. On the whole of the evidence I am satisfied, on the balance of probabilities, that the defendant has proved the negative, namely that in dismissing the prosecutor it was not actuated hy reason of the circumstance that the prosecutor was a delegate of the Union. Put in other words, the defendant has proved, on the balance of probabilities, that the proscribed reason for dismissal was not a substantial and operative factor in the

dismissal of the prosecutor,

In coming to that conclusion I have taken into account my assessment of the witnesses while giving their evidence, all the surrounding facts and circumstances including the fact that the stated reason for dismissal was, on the evidence, justified,

and on the evidence of Mr, McAdam and Mr. Hazelden that in

dismissing the informant they did not have regard to the fact that

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the prosecutor was a delegate of the Union. I have had regard aIso to the fact that the defendant conducts "closed shops",

that is, where all relevant employees are members of the Union, and that there are shop stewards appointed by the Union if each

establishment conducted by the defendant, and that regular

meetings occur between management and the shop stewards, Further,

having regard to the whole of the surrounding facts and circum-

stances, including the demeanour of the witnesses, J accept the

evidence of Mr. McAdam and Mrs. Valeri that they had not authorized, .

the prosecutor to accept blank piece-work tickets used by Miss Watts which had not been signed by either of them, In any event, even if I rejected that evidence and accepted the evidence of the prosecutor on this point, to adopt the words of Mason J, in

General-Motors Holden's Pty. Limited v, Bowling (1976) 51 A.L.J,R

235 at p.241, I am not satisfied on the whole of the evidence that

the dismissal was consistent with the hypothesis that the

defendant was actuated by the proscribed reason,

.

In my opinion the defendant is not guilty of the

offence charged. Accordingly, the information is dismissed,

Ifany party so requests I will prepare and publish

written reasons for my judgment, but there would be some delay

before that could be done. 'ee Th 3 2 cei ore ee a CREE od 3

. ot io coraky thet this and the three (3) ; proceding pages cre a true copy of the Measons for Fudy.cert herein of the | Hocuwable Mr, Justiee Ne-thep i /

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