Musgrove v Murrayland Fruit Juices Pty Ltd

MUSGROVE v. MURRAYLAND FRUIT JUICES PTY. LTD. (1980) 47 FLR 156 Conciliation and Arbitration COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION

Smithers J.(1) CATCHWORDS

Conciliation and Arbitration - Dismissal of employee - Information for offence laid by employee against employer - Dismissal allegedly by reason of circumstances that employee entitled to benefit of award - Dismissal allegedly by reason of circumstance that employee member of organization - Employment record of prosecutor - Onus of proof - Substantial and operative reason for employer's action - Conciliation and Arbitration Act 1904 (Cth), s.5 (1) (a), (b). HEADNOTE

The prosecutor charged the defendant, his former employer, with dismissing him from its employ by reason of the circumstances that he was a member of an organization, and that he was entitled to the benefit of an award, in breach of s. 5

Held:

(3) Assuming, without deciding, that the relevant award entitled the prosecutor to perform the action that was the immediate cause of his dismissal, such a right was not a substantial and operative factor influencing the defendant's action. The defendant was not aware of the relevant provision of the award at the time of the dismissal.

Roberts v. General Motors-Holden's Employees' Canteen Society Inc. (1975), 25 FLR 415; Wood v. Lord Mayor, Councillors and Citizens of the City of Melbourne (1979), 41 FLR 1, applied. HEARING

MELBOURNE, 1980, June 3-5. #DATE 5:6:1980

INFORMATION.

The prosecutor laid an information against the defendant his former employer under s. 5

B. Cooney, for the prosecutor.

C.N. Jessup, for the defendant.

Solicitors for the prosecutor: Gill, Kane & Co.

Solicitors for the defendant: Irwin & Richards. T.J. GINNANE JUDGE1

June 5.

SMITHERS J. delivered the following oral judgment.

In this case the defendant, Murrayland Fruit Juices Pty. Ltd., is charged under s. 5 of the Conciliation and Arbitration Act 1904 (Cth) that it did dismiss the prosecutor, Clive James Musgrove, by reason of the circumstance that

The dismissal took place on 27th November, 1979, at the premises of the defendant at Mildura. The defendant had employed the prosecutor, Mr. Musgrove, for slightly less than two years at that stage, mainly in the capacity of a forklift driver, but Mr. Musgrove had various other duties to perform and from time to time he assisted in other aspects of the work being carried on in the factory. (at p157)

The business of the factory was the receipt of oranges in large quantities, the squeezing or squashing of those oranges by means of extractors, the juice being then pumped into evaporators where much of the moisture was taken out of the juice, and the juice was reduced to a concentrate. That concentrate was placed into drums which were transported on the forklift from the building in which the extractors and evaporators were, to a freezing room some twenty or thirty yards away. (at p157)

The drums in the ordinary course of the procedure should have been covered by a secure lid before being stacked in the freezing chamber. They would sit in the freezing chamber until required to be sent by the defendant to some customer who would buy the concentrate in the drums. There were at this factory some eight employees of various kinds who all contributed to the general carrying out of the procedures mentioned above. (at p157)

The prosecutor from the time of his employment had always received a wage which was twenty dollars above the strict award rate save that he was entitled to an amount over that strict rate for work performed in the freezer which he did perform in most weeks. There is no doubt that the defendant was bound by the award, that the prosecutor is a member and has at all times been a member of the Food Preservers Union of Australia, and there are no technical reasons why the prosecutor should not succeed provided that the court at the end of the case is satisfied that the reason for the dismissal was the circumstances that the prosecutor was a member of the organization or that he was entitled to the benefits of the award. (at p157)

It seems that by the beginning of November 1979 Mr. Carazza had become dissatisfied with various aspects of the prosecutor's work. In substance he said that it was mainly the attitude of the prosecutor which concerned him, in that he omitted to carry out certain functions which would normally fall to his duty, or would delay in performing them, or would do them in a slip-shod manner, and indicated by his general attitude that he had lost interest in his job. (at p158)

Being of this mind Mr. Carazza had a formal discussion with the prosecutor and explained to him that he was dissatisfied in these various ways and that he expected improved performance and improved attitude. This was obviously quite a serious discussion, so serious that Mr. Musgrove, the prosecutor, was so upset that he had to take the afternoon off because it upset him. (at p158)

It is perfectly clear, therefore, that without doubt in Mr. Carazza's mind, there was serious complaint with the performance of work by the prosecutor. At the same time it seems that there was similar disquiet in relation to this matter on the part of Mr. Goonan, who was in effect factory manager under Mr. Carazza, and Mr. Goonan obviously by this stage had acquired an antipathy towards Mr. Musgrove. (at p158)

Matters went along like this for some three weeks, but on 26th November Mr. Musgrove was requested to change his position in the company from forklift driver to attendant on the extractors. He was asked to come to work at 7 o'clock each morning. He agreed to this on condition that he received his lunchtime break at 12 o'clock, it being well known in the organization that he had a standing arrangement to meet his wife at about that time, and for that purpose needed to go at 12. This was agreed to and on the following day Mr. Musgrove duly arrived at 7 o'clock and he worked until 12 o'clock. (at p158)

When it was getting near 12 o'clock he reminded Mr. Goonan of the need to replace him at 12 o'clock and Mr. Goonan indicated he was taking steps to comply with that. A little later, about 5 minutes or 10 minutes to 12 o'clock, Mr. Musgrove spoke again, and then at 2 minutes to 12, when no replacement had arrived, Mr. Musgrove decided to take matters into his own hands, switched off the extractors, and announced to Mr. Goonan that he was taking his lunchtime. (at p158)

It appears that Mr. Goonan did explain to Mr. Musgrove that the man, one Steve Condar, who was the proposed stand-in for the period of Mr. Musgrove's lunch, was engaged in negotiations with a commercial traveller and until he had finished that he would not be available. Undeterred by this, Mr. Musgrove left the premises. (at p158)

This conduct upset Mr. Goonan a great deal. He felt he had been humiliated in the face of other employees and he regarded it as the last straw in the long process of incidents, more or less serious, which had irritated him in relation to Mr. Musgrove's conduct over the last few months. He told Mr. Carazza that he regarded it as so serious that Mr. Musgrove would have to be dismissed, and indeed, said it was either he or Mr. Musgrove who would have to leave. (at p158)

Mr. Carazza took the view that the circumstances justified dismissal and he instructed Mr. Goonan to bring this about, and that afternoon Mr. Musgrove was duly dismissed. (at p159)

It appears that there is a clause in the award, cl. 19(a), which it is said entitled Mr. Musgrove to take his half-hour lunch at 12 o'clock on this day because according to cl. 19 (a) of the award: "Subject to the provisions of this clause, no day work or day shift employees shall work for more than five hours without a break for a meal, which break shall be thirty minutes, except where employers and the majority of employees covered by this award agree to a break of not more than one hour nor less than thirty minutes." (at p159)

The exception is irrelevant. It will be seen that this clause is introduced by the words "subject to the provisions of this clause" and an interesting argument has been submitted to me that by reason of the provisions in following sub-clauses - in cl. 19, and in particular sub-cl.

I do not find it necessary to decide whether or not on this particular day the prosecutor was entitled pursuant to cl. 19

As to these benefits that they did not know of, and did not know the nature and extent of, they were not influenced by those factors to take action against the prosecutor. The situation was that having become unfavourably inclined to the informant on various indefinite grounds, almost all of a personality incompatability, the smouldering hostility flared into flame when the prosecutor took his meal break and for that purpose switched off the extractors. It so happened that the prosecutor was entitled to his meal break at the time at which he took it. There is no evidence he knew that, but that is, I think, irrelevant. Certainly the defendant did not know it. I may be said that the prosecutor ought to have known and that ignorance of the law is no excuse, but the question is as to the reason which actuated the defendant in taking the action that it did and that involved not what the defendant ought to have known or what ought to have been in its manager's mind but what actually was in their minds. What circumstances were in their minds when they dismissed him? They could not act by circumstances of which they had no knowledge. (at p160)

I think that this last statement is supported by the reference to my own remarks in Wood v. Lord Mayor, Councillors and Citizens of the City of Melbourne

When one looks at what the circumstances were in the mind of Mr. Carazza which influenced him to take action against Mr. Musgrove, we find they can be easily summarized by saying that he had an established hostility and that there had been what appeared to him a high-handed act in the turning off of the extractors for the purpose of taking lunch and the defiance to Mr. Goonan when Mr. Goonan said he was not to go to lunch. (at p160)

The existence of the award and the prosecutor's entitlements thereunder were just not in the mind of the defendant. To my mind it cannot be said that a man has acted by reference to a particular circumstance when he knew nothing about it. (at p160)

For Mr. Musgrove it was argued that in truth and in fact it ought to be found that Mr. Carazza dismissed Mr. Musgrove by reason of the circumstance that Mr. Musgrove was entitled to a benefit under the award. The matter was put as follows, that it is fair to say that the reason which influenced Mr. Carazza to take action against the prosecutor was the commission by the prosecutor of an act, namely, going off to lunch, which was in fact and in law one which under the award he was entitled to commit and that in that case the relevant circumstance in the mind of Mr. Carazza was the taking by the prosecutor of an entitlement under the award. Accordingly, the dismissal was by reason of that entitlement, and thus, by reason of an entitlement under the award, and thereby the offence under s.5 was committed. (at p161)

I am unable to accept this submission. There is a sense in which it is valid but I do not think it is the sense which is relevant to s.5(1)(b). Section 5 is directed to the protection of the Arbitration and Conciliation system created by the Conciliation and Arbitration Act and that system works by the making of awards which bind the various parties. Any attack upon an award by an employer which is consciously directed to an award must be in grave danger of offending sub-s.

It is a criminal section; it is therefore to be read according to the natural meaning of the words. The natural meaning of the words imply that the dismissal has taken place because in the mind of the employer the employee was entitled to something under the award. There is no such circumstances in this case. (at p161)

I was referred to a number of cases in which circumstances something of the same nature but certainly not strictly the same were referred to, including Grayndler v. Broun

I have, of course, been quite aware that the onus of proof in relation to the findings that I have made has been on the defendant, and as to that I have to say that I do not say anybody has made consciously inaccurate statements in this case, but I am perfectly satisfied with the general accuracy of what Mr. Carazza said. (at p161)

In substance, I accept his evidence and I really see no reason for doubting him. So far as the defendant's general attitude to the award and the Act is concerned it is perfectly clear that the company exerted no vigour in acquainting itself as to what its duty was under the award in detail, but it is equally clear that it accepted its duties under the award, whatever they might be. The company was in peril of breaking the award, obviously from that whether it broke the award in dismissing Mr. Musgrove in the way it did is not a matter before me, nor is this case a wrongful dismissal case in any way. (at p162)

ORDER

The narrow inquiry in this case is whether Mr. Carazza took action because of the circumstances that Mr. Musgrove was entitled to some benefit under the award, be it cl. 19(a) or any other benefit, and the answer to that must be that Mr. Carazza did no such thing. He did not know about the provision. He accepted all provisions he did know about, and if one can cast one's eyes on to the probability, had he known, one must believe that, had he known that this man had an entitlement, he certainly would not have sacked him in the circumstances in which he did. Accordingly, in my opinion, this summons must be dismissed.

Information dismissed.