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Re: GEORGE ALBERT BYRNE and GEORGE MORTIMER FREW
And: AUSTRALIAN AIRLINES LIMITED
Nos. N I2 of 1991 and N I4 of 1990
FED No. 373
Inudstrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CWDS
Industrial Law - Commonwealth - Industrial Relations Act 1988 - Transport
Workers (Airlines) Award 1988 - whether dismissal "harsh, unjust or
unconscionable" - effect of employer's failure to conduct own investigation -
effect of delay in informing employee of suspicion of misconduct.
Damages - General Principles - Breach of employment contract - unlawful
dismissal - whether discount to be made for possibility of later lawful
dismissal - whether deduction to be made for income tax.
Industrial Relations Act 1988 (Cth): ss.178, 347
Transport Workers (Airlines) Award 1988: cl.11(a)
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Bostick (Australia) Pty Ltd v Grogevski (Full Court of the Federal Court, 14
May 1992, unreported)
British Home Stores Ltd v Burchell (1978) IRLR 379
Wheeler v Philip Morris Ltd (1989) 97 ALR 282
Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 45
Thompson v Hodder (1989) 21 FCR 467
HRNG
SYDNEY
#DATE 4:6:1992
Counsel and Solicitors P. Hall QC with B.D. Hodgkinson
for Applicant: instructed by Carroll and O'Dea
Counsel and Solicitors R. Burbidge QC with F. Parry
for Respondent: instructed by Freehill Hollingdale and Page
ORDER
THE COURT ORDERS THAT:
1. The application of each applicant is dismissed.
2. No order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
The applicants in each of the present matters ordered to be heard together,
Mr George Byrne and Mr George Frew, seek the imposition of a penalty pursuant
to the provisions of s.178 of the Industrial Relations Act 1988 (Cth) ("the
Act") arising from their respective dismissals from the employment of the
respondent, Australian Airlines Limited ("the Airline"). They seek, in
addition, damages. They claim that the summary termination of their
employment was, within the meaning of cl 11(a) of the Transport Workers
(Airlines) Award 1988 ("the Award") harsh, unjust or unreasonable and hence in
breach of the Award.
2. The jurisdiction of the court to impose a pecuniary penalty for breach of
an award is attracted by virtue of s.178(1) of the Act (see the definition of
"Court" in s.4(1)). It is not in dispute that the applicants have standing to
sue for, and recover a penalty for, breach of the award (see s.178(5)(ca)).
The claim for damages arises under the court's accrued or pendant
jurisdiction.
3. It is conceded further that the Airline is a person to whom the provisions
of the award applies.
The background to the dismissal
4. The background to the event which led to the dismissal of the applicants
is not seriously in dispute.
5. Thefts from passenger baggage had been a significant problem for airlines
operating at Sydney airport for many years. Despite attempts to gather
evidence of thefts, it had proved extremely difficult to obtain such evidence.
The number of customer complaints had escalated over the years and in 1989
there had been hundreds of complaints. In many instances bags had been
slashed with razor blades or knives, zippers had been broken, locks had been
damaged and in some instances items such as perfume had been broken in bags
causing damage to clothing. One estimate of the damage occasioned at Sydney
airport put the damages at hundreds of thousands of dollars.
6. Morale, as at January 1987, was not high among the employees of the
Airline as a result of the prevalence of baggage pilfering. According to the
evidence of Mr Davies who commenced employment with the Airline at that time,
security was lax, it was perceived that security officers and honest porters
had been intimidated and there was a general perception that nobody was to
report anything, nobody was to see anything and it was best if nobody did
anything about it. Conversely, there were a lot of honest employees. The
Airline's reputation was being affected by the incidence of theft from
passenger baggage, its image with tourists and the general public was
suffering and this, in turn, further affected staff morale.
7. Baggage on particular flights was targeted. A popular target was the
flight to and from Coolangatta, a holiday destination. Apparently it was
perceived by those involved in the pilfering that tourists were likely to have
valuable items in their luggage. Items commonly stolen included cameras,
personal effects, money, jewellery, clothing such as leather jackets, suits,
leather goods, children's toys, ex-servicemen's medals and decorations and
children's moneyboxes. Many thefts probably went unreported, the victim being
uncertain where the loss had occurred.
8. Attempts by security officers to detect occurrences of theft were on some
occasions made difficult by complaints by porters of intimidation and
harassment. Porters walked off the job and were apparently supported by their
union delegates. Management, to avoid an industrial dispute, so the evidence
of employees of the Airline indicated, was forced to withdraw the security
officers.
9. In January 1988, Mr Davies, who at that time was employed by the Airline
as its security manager for New South Wales and the Australian Capital
Territory, was approached by the Australian Federal Police seeking cooperation
in an on-going investigation into theft from baggage carried by the Airline.
The investigation became known as "Operation Peacock". A similar
investigation was carried out at Melbourne airport. The Sydney investigation
had included collating information obtained from informants to see if there
was some correlation between occasions of loss and particular porters whose
responsibility it was to load and unload aircraft. Mr Davies had been
undertaking a similar study and had developed a computer programme to carry
out a statistical analysis. He supplied the results of his study to the
police. It is not suggested that these inquiries revealed any involvement of
either Mr Byrne or Mr Frew.
10. Mr Byrne and Mr Frew had been working as drivers of what is known as a
Cochrane and Weston Cargomaster machine, a device which lifts cargo and
baggage to the door of the cargo hold on aircraft. They did, however, help
out with manual loading as the occasion required, usually on the morning
shift.
11. Mr Hunt-Sharman, who at that time was a Detective Constable with the
Australian Federal Police assisting the investigation, deposed to the
difficulties of obtaining evidence of interference with passenger baggage
occurring in the hold of an aircraft. He said that there was virtually no
visibility into the hold from outside an aircraft unless the observer was
standing close to the doorway. The view into a hold can be easily obscured by
the porters during the loading and unloading cycle. Porters standing
immediately outside the hold could act as "cockatoos" if anyone approached.
Even if a porter were spotted with an open bag, it could be difficult to
disprove an explanation of the porter that the bag had accidentally come open
during handling and was being repacked.
12. In view of the difficulty of obtaining evidence by conventional means,
consideration was given in discussions between the police and the Airline to
installing secretly concealed video cameras in the holds of aircraft and other
locations in the airport such as porters' locker rooms. The police, however,
did not pursue this.
13. An incident occurred in July 1988 when aircrew and flight attendants
observed a porter going through passenger baggage at Sydney airport.
Apparently an emergency periscope had been erected, located in the passenger
cabin, which provided a view of the forward aircraft hold. The porter involved
had been summarily dismissed.
14. Subsequently, viewing lenses erected in the holds of various aircraft
were covered up by porters or obscured and in one instance a viewing lens was
smashed. In or about September 1988 a decision was made by senior management
of the Airline, it would seem on the recommendation of Mr Davies, to install
surveillance cameras in the holds of various aircraft. One such camera was
installed in the hold of a Boeing 727 aircraft scheduled as Flight TN2 to
Adelaide and Perth from Sydney on 11 October 1988. The video camera was
located on the middle of the wall of locker 4, (that is to say at the rear of
the locker facing forward and pointed towards locker 3). The recording unit
was activated at about 8.00am and deactivated at about 8.25am. The plane was
scheduled to depart Sydney at about 8.35am. On that day a team of four
porters was allocated to load and unload manually luggage from lockers 3 and
4. The four men involved were the applicants, Mr Brosnan and a Mr Harvey.
Messrs Byrne and Brosnan commonly worked together as a team. Mr Frew did not
work regularly with either on manual unloading, although he often worked with
Mr Harvey as a team driving the Cochrane and Weston machines.
15. Before turning to the video, it is necessary to describe the location of
lockers 3 and 4 on the aircraft. In so doing, I should note that while I
initially declined the invitation of the parties to view the lockers and to
see, at first hand, the loading and unloading of a similar aircraft, I did
ultimately hold a viewing, as there seemed some disagreement between the
witnesses as to the visibility of what was occurring in locker 3 from the
point of view of a person handing up luggage, a dispute readily resolved by a
view.
16. A Boeing 727 series 200 aircraft has four lockers for passenger baggage,
freight and mail. Lockers 1 and 2, situated at the front of the plane, have
only one doorway providing access to both lockers. Lockers 3 and 4 are at the
rear of the plane. They are divided only by removable material which
witnesses described as webbing. Despite the description, it was opaque. Each
of these lockers has a doorway on the right-hand side of the plane (when
facing forward); these doorways are towards the front of the respective
lockers. The floor of lockers 3 and 4 is continuous. The side walls are
vertical but at each side they slope inwards following the curvature of the
aircraft fuselage. The lockers are situated underneath the passenger cabin of
the plane. The bulkhead at the rear of locker 4 and that at the front of
locker 3 is vertical. A pole, situated mid-way between the side walls, runs
between the floor and ceiling just forward of the locker 4 door. The webbing
which divides the lockers is attached to the pole, ceiling and side walls by
straps which leave a gap of approximately 6 inches around the perimeter.
17. Locker 3, the larger of the two lockers, is about 15 feet long whilst
locker 4 is about 7 feet long. The floor of the lockers is about 6 feet wide.
The height from the floor to the ceiling is approximately 5 feet, but the
floor tapers up towards the back of locker 4. The doorway to locker 3 is
approximately 4 feet 6 inches high and the same distance wide. The doorway to
locker 4 is approximately 3 feet high and 4 feet wide. The bottom of the
doorway to locker 3 is about 5 feet above the tarmac; that to locker 4 is
slightly higher, approximately 5 feet 6 inches above the tarmac. When there
is little luggage to load, and one may assume when that luggage is light (this
was the case on the day the view took place), porters stand on the tarmac and
throw the luggage up to the porter stacking the luggage in the hold. On other
occasions, porters may stand on a luggage trolley to gain height. These
trolleys have a base which is almost 2 feet from the tarmac. The bottom of
the door of locker 4 thus is only about 3 feet 6 inches above the base of the
trolley and comes more or less up to the waist of a porter of average height
standing on the trolley.
18. Subject to the extent to which the webbing might obscure vision, a porter
standing on a trolley loading locker 4 would have little difficulty seeing
inside both lockers 3 and 4. Incidentally, standing on the tarmac at the
doorway to locker 4, it is possible to see clearly into locker 3, even with
the webbing in place, because there is vision underneath that material looking
upwards through the gap left by the straps. Thus a porter loading locker 4,
but standing on the tarmac, could, if he so desired, see relatively clearly
what was taking place in locker 3.
19. Flight TN2, a daily flight, is normally a busy flight. Luggage is usually
placed at the terminal on trolleys which separate out the luggage travelling
to Perth from that travelling to Adelaide. The luggage for Perth is stacked
in locker 3, that for Adelaide in locker 4. If there were little luggage it
would be possible that only one trolley would be used on which luggage for
both Perth and Adelaide was placed. When luggage is presented by passengers it
is tagged with a label, upon which are letters indicating the destination (eg
"PER", "ADL"). The labels are also colour-coded, so that it is possible to
tell at a glance the intended destination of each piece of baggage.
20. There will usually be at least one trolley used for each of lockers 3 and
4, and sometimes up to three or four for locker 3. Usually one trolley
suffices to fill locker 4. Where, as on the day in question, two teams are
operating, there will usually be one person at the trolley outside the door to
locker 4 handing in the baggage, cargo or mail and the other inside locker 4,
receiving and stowing the baggage. The other two members of the team of 4
porters will usually do the same for locker 3. When locker 4 is loaded, the
two porters from it will usually give the others a hand to finish loading
locker 3. If there is sufficient space in locker 4, this might be done by
loading the nearmost section of locker 3 through the doorway for locker 4. It
is not known what quantity of luggage was required to be loaded on 11 October
1988.
The video
21. Three versions of the video are in evidence. The first includes a
segment of 15 minutes showing the unloading of baggage from the aircraft, as
well as the process of loading baggage destined for Adelaide and Perth. The
second and third videos are confined to that part of the first video concerned
with loading. The second is in slow motion with enhanced sound. The third
shows a reverse image of the first video, not in slow motion, thus recording
the scene in its actual orientation, rather than the mirrored image actually
recorded. It also displays a digital read out of time elapsed.
22. At the start of the unloading operation the webbing is fastened at the
point dividing lockers 3 and 4 to the pole. Mr Brosnan can be seen in locker
3 bending down. He approaches the webbing and undoes that part of it which is
on the left of the plane. Mr Byrne, who was also in locker 3, comes forward
and takes up position in locker 4. Prior to his so doing, a voice can be heard
saying:
"As soon as I saw you blokes out here I knew
that it had to be flight 2."
23. At that point of time both Mr Byrne, who is in locker 4, and Mr Brosnan
are visible. There are some words which to me are inaudible, although
according to Mr Hunt-Sharman they appear to be Mr Byrne saying to Mr Brosnan:
"I'll stack and you look after it."
24. A suitcase is then handed through the locker door to Mr Brosnan and at
the same time Mr Brosnan calls out to the person standing below, clearly Mr
Frew:
"George, give us that Perth one."
25. Mr Brosnan then places the suitcase in locker 3 parallel to the webbing
and about 2 feet 6 inches or 3 feet forward of the webbing. A smallish bag
with two handles (presumably the "Perth one") is then handed up and Mr Brosnan
places it between the webbing and the suitcase. There are, as already
indicated, gaps of up to about 6 inches between the webbing and the pole,
where the webbing is secured by what look like straps to the pole. Mr Byrne is
sitting about 2 feet away from Mr Brosnan apparently waiting for luggage to be
given to him to load. The second bag is placed in position at approximately
50.10 seconds on the timer. Mr Brosnan can be then seen bent over the bag for
approximately 24 seconds. While this is occurring, Mr Byrne calls out to Mr
Frew for "a couple of small ones". There are handed up a bag and a case.
Both are loaded normally in locker 4. Mr Brosnan moves the bag, over which he
has been bending, closer to the webbing and then can be seen crouched over
what appears to be another bag for about 43 seconds. Two small bags are
thrown up to Mr Byrne who moves them in the direction of locker 3 and
continues to load other cases. Mr Brosnan then passes the bag which has been
occupying his attention out to the porter outside the aircraft, without
comment and takes the next soft bag, it could be a haversack, behind the
webbing. He can be seen bent over this bag for something over 37 seconds,
from time to time obscured by Mr Byrne who is stacking bags, at times in front
of the camera. Just after the 37 second mark, Mr Brosnan reaches into the
back pocket of his shorts, takes, one may assume, something out and then
returns to the case. He can then be seen bent over the case again, his right
arm moving in a motion consistent with the turning of a key back and forth.
This occupies another half a minute. He then returns to the door of the
locker and throws the bag down to Mr Frew. In the meantime, Mr Byrne has
thrown another soft bag, probably a haversack, behind him, consistent at least
with Mr Byrne intending it for Mr Brosnan. Mr Brosnan takes this and two
other small bags behind the webbing. The video becomes wholly obscured at the
end of 3 minutes and approximately 30 seconds. Apart from throwing Mr Brosnan
the bags, Mr Byrne throughout can be seen loading luggage normally.
The events between October 1988 and 28 March 1989
26. The video was sent to Melbourne to be examined. It remained in Melbourne
(there is no explanation why) until it was returned to Sydney on or around 24
January 1989. In the meantime, in January 1989 the Transport Workers Union
became aware that cameras were being used in the holds of aircraft. A letter
was written by Mr Davies on 20 January 1989 advising that this was so. That
letter followed a discussion between management and the Union.
27. On 24 January, Mr Davies, who had had the tape collected from Melbourne
and brought to Sydney, handed the tape (among others, it would seem) to
Constable Hunt-Sharman at a meeting at which were present other
representatives of the Airline, including Mr Hazell, the then Assistant
Security Manager for NSW and the ACT, and other representatives of the police.
Copies of the tapes so handed over were made and the originals handed back for
safe keeping. At a meeting the next day, the figures appearing on the tape
were identified for the police and a conference was held as to whether what
appeared on the tape was normal working procedure.
28. According to his evidence, Mr Anderson, then New South Wales State
Manager, viewed the video some time in February 1989 at the offices of the
Australian Federal Police in Goulburn Street, Sydney. He said that he had
formed the view that what he had seen on the video was Mr Brosnan rifling
passenger baggage for items which he could steal. He concluded that Mr Byrne
must have been aware of what Mr Brosnan was doing having regard to the close
proximity within which the two were working. Further, he concluded that Mr
Byrne was directly assisting Mr Brosnan from the way Mr Byrne had placed a bag
conveniently near to Mr Brosnan. He formed the view that Mr Frew was also
aware of Mr Brosnan's activities. In so doing, he identified Mr Frew from the
reference to "George" on the sound track of the video. He said in an
affidavit filed in the proceedings:
"I was satisfied that Frew responded to that
request by handing up an item of passenger
baggage to Brosnan and received that item of
passenger baggage from Brosnan out of the hold
when Brosnan had finished with it. He also
received back out of the hold other luggage
after Brosnan had finished his activities... I
thought he was directly involved in the stealing
from passengers' luggage."
29. Accordingly, Mr Anderson said that he formed the view that the conduct of
each of Mr Brosnan, Mr Byrne and Mr Frew was such that it justified instant
dismissal unless each could offer an innocent explanation of his conduct and
explain what he was doing consistent with proper normal loading operations.
30. Mr Anderson was challenged in cross-examination as to whether he had not
seen the video until April, that is to say, until after each of the applicants
had been dismissed. He rejected the suggestion. Mr Davies, in giving
evidence-in-chief, corroborated Mr Anderson's attendance at the Goulburn
Street premises in February. He only recalled attending Goulburn Street with
Mr Anderson on one occasion. He denied that it was possible that this was in
April and said that it would have been prior to the dismissal action having
been taken. There were tendered in evidence documents referred to as "action
sheets" maintained by the Australian Federal Police. An entry of 14 April
1989 referred to a meeting at Goulburn Street at which, inter alia, Mr
Anderson was present. An earlier entry of 15 March 1989 referred to a
briefing for Mr Anderson being tentatively arranged for 20 March 1989. The
entry of 20 March 1989 gave details of a briefing of Mr Davies, but showed no
reference to an attendance by Mr Anderson. There was no reference in the
action sheets to any meeting at which Mr Anderson attended in February 1989.
31. Mr Hunt-Sharman, in cross-examination, agreed that had there been a
meeting with Mr Davies and Mr Anderson on 20 March 1989, he would expect it to
have been recorded. He said in re-examination that if the briefing had been
cancelled he would have expected to see a note of that fact as well in the
action sheets. He said, in cross-examination, however, that he thought he
recollected Mr Anderson coming to Goulburn Street on two occasions, as well as
a meeting with Mr Anderson at his office. In re-examination, he was asked to
give his conclusions as to whether a meeting with Mr Anderson went ahead on 20
March 1989 and replied that he tended to think that the meeting took place and
that it had just not been recorded.
32. After giving careful consideration to the evidence on this point, I have
formed the view that on the balance of probabilities a meeting did take place
at Goulburn Street which Mr Anderson attended and at which he saw the video at
some time earlier than the termination interviews and probably on 20 March
1989, rather than in February. I accept Mr Anderson as a witness of truth
(indeed, it was not suggested that his credit was in any way impugned). No
doubt after a lapse of time, it is difficult to remember whether a particular
event occurred in February or March, but I doubt that Mr Anderson's memory was
so fragile that he would be unable to remember whether he saw the video before
he made the decision to terminate the employment of the applicants rather than
at some time later. To reject Mr Anderson's evidence, would ultimately
involve rejecting as well the clear recollection of Mr Davies that the video
had been viewed by Mr Anderson in Mr Davies' company prior to the termination
interviews and the recollection of Mr Hunt-Sharman that such an occasion had
taken place probably on 20 March. While written records can generally be
relied upon as being less prone to failure of recollection, they are not
necessarily infallible. Accordingly, I accept Mr Anderson's evidence that he
had seen the video prior to making the decisions which led to the holding of
the termination interviews.
33. Mr Anderson, in making his decision, relied as well upon the views of Mr
Davies who had had considerable experience in security matters. Mr Davies had
discussed the matter on a number of occasions with Mr Hunt-Sharman and their
views coincided. Mr Hunt-Sharman had communicated to Mr Davies the
conclusions he had reached, based on his investigations, as to the modus
operandi of porters concerned with pilfering passenger baggage, where, in his
opinion, thefts were occurring, the operations of gangs of porters and the use
of so called "cockatoos" stationed outside the aircraft to warn of any
security guard or other personnel approaching the aircraft. He had also told
Mr Davies of a practice of removing bags from the plane on which they were to
travel after they had been searched, stripping them of their tags and ensuring
that the luggage went onto another flight or flights and perhaps to other
airports so that when the bag was eventually discovered it was impossible to
identify precisely where the theft had occurred. He told Mr Davies that the
practice was to target particular flights, particularly that proceeding to
Coolangatta and that to Perth because passengers travelling long distances
would be more likely to carry souvenirs. Soft bags and those without secure
locks on them were targeted, as was baggage from international flights and
that rejected as being too large to carry on board as hand luggage.
34. Mr Anderson communicated his decision to Miss Egles, the then Airport
Manager for Sydney Airport.
35. It had, for some time before that, been strict policy of the Airline that
any employees found interfering with passenger baggage would be dismissed
instantly. This policy was frequently advised to staff who were given notices
that the theft, removal or unauthorised possession of Airline property, or
property in the care of the Airline, would result in summary dismissal.
36. Towards the end of February 1989, Miss Egles met with Mr Anderson and Mr
Davies. At this meeting it was agreed that the police be requested to
complete their investigations so that action could be taken against the
various porters who had been identified as being implicated in thefts as a
result of video surveillance. Miss Egles did not independently turn her mind
to the guilt or innocence of the various porters concerned. She relied upon
what she had been told by Mr Davies as the security expert. In particular,
she relied upon Mr Davies telling her that both Mr Byrne and Mr Frew were
implicated.
37. In a conversation said to have taken place around March 1989, Mr
Anderson instructed Miss Egles to interview the porters concerned, including
Mr Byrne and Mr Frew. They were to be given time to give an explanation for
their behaviour; if an explanation was given, the matter was to be referred to
Mr Anderson. If no explanation was given, the porter's employment was to be
terminated. Apart from the fact that the interviews were to follow the normal
procedures for termination interviews, no specific format was dictated by Mr
Anderson.
38. On 22 March 1989, a search warrant was executed at the home of Mr
Brosnan. Nothing was seized. Later in the same day Mr Brosnan was arrested
and interviewed by the police. It was explained to him that the interview was
in connection with enquiries into an "allegation" that he had "stolen
Australian Airlines passenger luggage from the cargo hold of Australian
Airlines aircraft at Sydney Kingsford Smith Airport during October 1988". He
was asked whether, on 11 October 1988, he had opened passenger luggage in the
cargo hold of flight TN2 and removed luggage from suitcases. He said that he
could not recall anything of this nature. After a number of questions had
been asked and answered (notwithstanding the usual caution) Mr Brosnan was
shown the video. It was, it may be supposed, the first he was aware of its
existence. Thereafter he declined to answer questions, including a question
asking him to identify the other persons appearing on the video. That, of
course, was his right.
39. Mr Brosnan was dismissed by the Airline the next day. He was at some time
charged on a number of counts. Ultimately all were either withdrawn or
dismissed. He said that after the police interview he had had no contact with
either Mr Byrne or Mr Frew.
40. Mr Byrne's evidence was that after 22 March and before Mr Byrne was
dismissed, probably on 23 March, he went over to Mr Brosnan's house to see
what had happened and to discuss matters with him. He said that Mr Brosnan
had told him of the video and that Mr Byrne appeared on it. At some time,
either then or shortly after the dismissal, according to Mr Byrne, he and Mr
Frew had seen a solicitor. He said that he had had a discussion with Mr Frew
and told him that "he was being suspended on mistrust, being charged with
mistrust, charged with attempting to steal".
41. Mr Frew said that he did not, between the time of his suspension and
dismissal, speak to anyone.
42. On 23 March and 28 March 1989 respectively, search warrants were executed
at the homes of Mr Byrne and Mr Frew. Nothing was seized. Each was
subsequently taken by the police to be interviewed. Each was cautioned and
answered some questions, denying involvement in stealing from passenger
baggage. Each was then shown the video. The pages of the record of interview
of Mr Byrne after the showing of the video are missing. Mr Hunt-Sharman said
that thereafter Mr Byrne indicated that he did not wish to comment any further
about any of the activity involved. Mr Frew signed a statement at the
termination of his interview and after seeing the video. That statement is
complete. It concluded as follows:
"I am aware that company policy does not allow
any employee to open or interfere with passenger
baggage in any way, the penalty is dismissal. I
have never opened or interfered with passenger
baggage, nor have I been present when any other
person has done so.
During my employment at Australian Airlines I
came to know Danny BROSNAN and George BYRNE. I
would recognise these persons if I saw them.
I have been shown by Det Sgt Moir of the
Australian Federal Police a video... I can say
that the male persons on the film are known to
me as Danny BROSNAN and George BYRNE, Danny is
the white haired one. I recall that during the
film Danny says:
Danny said: (sic) George throw the Perth bag.
I cannot recall that happening in real life and
I do not want to comment on seeing it in the
film. I do not recall having the four bags
passed back out of the aircraft to me and I do
not want to comment on seeing this on the film.
I don't know what they were doing in the hold,
you can draw your own conclusions."
43. Mr Anderson was aware that the interviews had taken place. He did not
sight the records of interview, which were kept by the Police. Mr Davies,
presumably also aware that the interviews had taken place, advised Miss Egles
that each of Mr Byrne and Mr Frew had been interviewed by the police and had
been shown a copy of the video. On the same day Miss Egles spoke to Miss
Foisy, who was the Employee Relations Manager at Sydney airport at the time
and told her that Byrne and Frew were to be interviewed and, in the absence of
a satisfactory explanation, were to be dismissed. She requested that the
interview take place that afternoon.
44. At an earlier time Miss Egles had advised Miss Foisy as to specific
procedures to be adopted in conducting interviews with porters said to be
implicated in misconduct. The occasion of this conversation, which probably
took place on 16 February 1989, appears to have been an incident concerning a
number of porters who were dismissed for being "off area", that is to say
absent from the airport area whilst on duty. Specifically, they were to be
told that evidence involving them had been obtained from ongoing
investigations and that they were to be given an opportunity to put anything
they wished to say, including why their employment should continue. Porters
were also to be given the opportunity to discuss the matter privately with
union delegates. They were "to be allowed natural justice" by being asked,
individually, if they had any information or any other comments to make why
the Airline should retain their services. Depending upon their answer they
were to be advised that their services had been terminated or Mr Anderson was
to be contacted.
45. During the months of March and April 1989 a number of porters were
interviewed and subsequently dismissed. At each meeting two delegates from the
Transport Workers Union were present, usually Mr Podlogar and Mr Conley.
Ironically, Mr Podlogar himself was dismissed shortly after the dismissal of
the applicants. The circumstances surrounding that dismissal are not in
evidence. Also usually present at interviews were Miss Egles, Mr Davies, Mr
Hazell, the assistant Security Manager and Mr Rod Smith who at that time was
the Ramp Services Manager. Miss Foisy prepared for herself a script of what
she should say. Unfortunately that no longer exists.
46. Miss Foisy arranged for Mr Byrne and Mr Frew to attend upon her at about
4.15 on 22 March 1989. She had been instructed to do so initially by Mr
Davies. She then, she said, rang Mr Anderson and told him of her conversation
with Mr Davies and sought the advice of Mr Anderson. He told her to suspend
the men pending further investigation on full pay during that period. When
the men presented themselves she saw them separately. According to her
evidence she said to each that they were being suspended on full pay pending
further investigations as a result of the ongoing investigations into the
thieving at the airport. Neither applicant made any response.
47. Mr Frew gave evidence that two union representatives were present at this
first interview and that Miss Foisy had said:
"You know there's been an ongoing federal police
inquiry... You're suspended on full pay pending
a federal police inquiry".
48. Mr Byrne gave similar evidence as to what Miss Foisy had said, although
he could not remember whether a union representative was present. He said
that this may well have been the case. Mr Podlogar, a union delegate who gave
evidence, was clearly not present at the interview on 22 March. Mr Connolly,
another union delegate present at the meetings subsequently held on 28 March
1989, was away from Sydney at the time of the trial and was thus unavailable
to give evidence.
49. Mr Hazell, a Security Manager with the Airline, gave evidence that he was
present at Miss Foisy's office on 22 April and that two union delegates were
present. According to his evidence Miss Foisy said:
"As a result of police investigations into the
theft of property from passenger baggage you
will be suspended without prejudice and on full
pay until these investigations have been
completed. Is there anything you wish to say."
50. According to his evidence neither Mr Byrne nor Mr Frew replied.
51. Nothing much turns upon the question whether the Union delegates were
there or not. If any delegate was there it was Mr Connolly, not Mr Podlogar.
Nor do the exact words used by Miss Foisy matter. I would find, however, that
she did say words which conveyed the idea that the police investigations were
concerned with the theft of articles from customer baggage.
52. Afterwards Miss Foisy had further conversations with Miss Egles, Mr
Davies and Mr Anderson. She was advised that charges had been laid against Mr
Brosnan. She was told in brief detail what was to be seen on the video and
that it did not appear to be normal procedure. She was told by Mr Davies that
both Mr Byrne and Mr Frew had been shown the video and that they had not
offered any explanation for the irregular loading of the baggage on the
aircraft. It was said that there was a very serious breach of trust involved.
Miss Egles said that the men concerned should be terminated but that the final
decision rested with Mr Anderson. Mr Anderson confirmed that he knew of the
situation and that unless further information was forthcoming that would make
a difference (presumably from the men themselves by way of explanation) she
should go ahead with the termination.
53. There is a significant difference in the accounts put forward by the
witnesses for the applicants and the witnesses for the respondent of what
occurred at the meetings on 28 March 1989 at which each of the applicants was
dismissed.
54. According to the evidence of Miss Foisy, she followed the same procedure
in each of the dismissal interviews she held in the months of March and April
1989. She called the applicants in together with the Union representatives and
advised them that the Airline was considering terminating their services "due
to breach of trust between the employer/employee relationship" (sic). She said
that the way she would proceed was to send them both out and then call them
back to talk to them individually.
55. When each man returned, accompanied by a union delegate, she asked
whether there was any reason why the company should retain his services. The
only comment she ever had in these interviews (she could not remember if it
was from one of the applicants) was a reference to the number of years of
service that person had with the Airline. The first interviewee was then
asked to leave the room and the second called in to be asked the same
question. After the second interviewee had departed there was some discussion
among the management representatives present at the meeting and then the men
were called back and in each case advised that they had been terminated
"because of breach of contract - breach of trust between employer/employee
relationship" (sic). They were advised that their services had been
terminated as of that day.
56. According to Mr Byrne's evidence, he was at no time asked during the
interview held on 28 March to explain his conduct or asked to put forward
reasons why his employment should continue. He says that he was not told that
his termination was as a result of evidence obtained through covert
surveillance or ongoing police investigation. Nor was he told that the
Airline relied upon any video evidence showing him to be engaged in any
particular activity. According to him Miss Foisy said:
"You are given the right to resign."
57. To this he replied:
"Why should I want to resign?"
58. Miss Foisy is then said to have replied:
"Since you will not resign, I now terminate you
for mistrust".
59. Mr Frew's evidence is similar. He denies that he was asked to explain
his conduct or to put forward reasons why his employment should continue. He
says that Miss Foisy did not use the word "misconduct". According to his
evidence she did not say that the termination resulted from evidence obtained
through covert surveillance or an on-going police investigation or say that
the Airline had or had relied upon any video evidence implicating him. His
version of the termination interview was as follows:
"Miss Foisey (sic) said to me: `We will give you
the right to resign.'
I said words to the effect: `Why should I
resign, I have done nothing wrong.'
Miss Foisey (sic) said to me: `If you will not
resign we will dismiss you on the grounds of
mistrust.'
I replied: `In what way have I misused the company's trust?".
60. He says that Miss Foisy either made no reply or said words to the effect
that he was terminated on the grounds of mistrust. She gave no direct answer
to his question. Thereupon Mr Frew said:
"Mistrust? After 26 years of employment?"
61. The applicants called Mr Podlogar, at the time a union delegate for the
Transport Workers Union, who, with a Mr Conley, was present at the 28 March
interviews to represent the employees. His version of the interview with Mr
Frew was as follows:
"Miss Foisey (sic): `We as employers can no
longer trust you to carry out your duties would
you like to resign?'
Frew: `Why?'
Miss Foisey (sic): `We can no longer trust you'.
Frew: `That's fine treatment after 25 years that
you now say you can't trust a bloke'.
Miss Foisey (sic): `Since you won't resign we
now terminate you for mistrust.'
62. Mr Podlogar's version of the Byrne interview was similar, save that he
says that Miss Foisy said that Mr Byrne could obtain legal advice concerning
the termination. Mr Podlogar's own employment was terminated on 31 March 1989
at an interview at which he says he was also given the option of resigning.
Although Mr Podlogar and Mr Connolly were supposedly present to represent the
men and to ensure that fair play was done, neither apparently protested that
the men had not been given an opportunity to speak in their own defence, or
for that matter that, according to Mr Podlogar's evidence, they were not told
why they were dismissed.
63. Mr Podlogar's evidence must be viewed with some care. First, his own
services had been terminated but a few days after the events with which the
present case was concerned. He gave the impression that he was not favourably
disposed to the Airline. He was asked his reaction to the investigation by
the police into pilfering. His response was revealing:
"I was highly critical of the manner in which it
had - the whole affair had been conducted. I
had said so to the security, the chief security
officer from Melbourne in that I believe the
fact that they were using audio to tape our
conversations and so on which is illegal in this
state, to be a breach of my civil liberties and
I said to that Mr Anderson as well and that I
had made an appointment to speak to my member of
parliament regarding the matter...".
64. Evidence of the interview was given on behalf of the Airline by Miss
Egles, Mr Hazell and Mr Rodney Smith, who at the time was Ramp Services
Manager at Mascot in charge of ground handling. His services included
supervising porters and he reported directly to Miss Egles.
65. Miss Egles deposed to attending, as far as she could recall, the two
termination interviews. She made no note of them. She had given Miss Foisy
the instructions to which reference has already been made concerning the
procedure to be followed at the interview (which she said was standard
procedure for a termination interview) and as far as she could recall the
interviews followed that procedure. Her recollection was that no reference
was made to the way in which either of the applicants were implicated in the
pilfering of passenger baggage. In her affidavit evidence, Miss Egles said she
had no recollection of any specific reference to the video. She later said
that she believed reference was made to the video evidence. She said that
Miss Foisy had used words to the effect that it had been drawn to the
Airline's attention that the respective men had been involved in passenger
baggage theft and that it would need an explanation for what had happened. No
explanation was forthcoming. The men were told that if they wished they could
go outside with a union representative and then come back. Each availed
themselves of the opportunity. She was unable to remember if Miss Foisy had
given either of the men the option of resignation, although she accepted that
in other interviews such an option was given. She recalled Miss Foisy saying
words to the effect that we (ie the Airline) no longer trust you.
66. Mr Hazell gave evidence that prior to the meeting there had been a
discussion between those present as to how the ensuing meetings were to be
conducted. During that discussion Miss Foisy had said that she was going to
invite the men in and explain to them that there was a matter under
investigation, in which they were involved, concerning the theft of passenger
baggage or passenger's property from baggage. Miss Foisy had then said that
the meeting would see what their reply was. According to his evidence at the
commencement of the interview (this evidence was that each man was interviewed
separately) Miss Foisy had said:
"You are aware that there is an investigation
into theft from passenger baggage and evidence
involving you has been provided to the police.
Do you have anything to say?"
67. In re-examination Mr Hazell said that Miss Foisy had made some reference
to the video.
68. No explanation was forthcoming from either Mr Byrne or Mr Frew. Each was
then given the opportunity to discuss the matter with the union delegates.
When no explanation was given, according to his evidence each was told:
"In that case your employment is terminated on
the grounds of mistrust."
69. Mr Hazell had prepared for his own purposes, at some time later than the
event, a list of porters (there were 23 in all) who had been dismissed or
given the opportunity to resign in March 1989. That document showed as a
heading under which the names of Messrs Byrne, Frew and Podlogar appear the
words:
"The three listed hereunder, were terminated in
accordance with the conditions of their award,
after being given the opportunity to resign."
70. Notwithstanding his use of these words, Mr Hazell was adamant that the
applicants were never offered the opportunity to resign. He could proffer no
explanation why the document was cast as it was. His diary, recording a
contemporaneous entry, read merely:
"George BYRNE 2.9.40
49 Eynham Road, Milperra.
Terminated, reason explained as "Mistrust".
George Mortimer FREW 18.9.39
8/70 Banks Ave Pagewood.
Terminated, reason explained as "Mistrust"
Connected with thefts with BROSNAN."
71. Finally, Mr Smith, who attended many of the termination interviews held
at or around the same time, was unsure whether he had attended the termination
interviews of Mr Byrne and Mr Frew. (The evidence of the other witnesses for
the Airline suggests that he did.) He said that at each interview he attended
the porters were told that there was some evidence implicating them and were
given an opportunity to put anything they wished to say. He said that they
were also given the opportunity to discuss their position privately with the
union delegates. At some of the interviews resignation was discussed. The
suggestion of resignation sometimes came from the men or the union
representative.
Observations on Credit
72. The credit of Mr Byrne and Mr Frew was in issue in the proceedings in two
ways. First there is the issue of the involvement of each of the men in the
alleged pilfering of customer baggage in October 1988. Each denied either
active participation or indeed knowledge of what Mr Brosnan was doing as
depicted on the video. Secondly, having regard to the submissions that were
made on behalf of the applicants of the requirements arising from the
provisions of the award that the termination be not harsh, unjust or
unreasonable, it is necessary to determine whether the version of what
happened at the termination interviews given by each of the applicants is to
be preferred to that given by the witnesses for the respondent.
73. Mr Byrne admitted that, placed as he was no more than two feet from Mr
Brosnan in the hold, he was in a position to see Mr Brosnan and what he was
doing. Mr Brosnan gave evidence and was cross-examined as to his role in the
events depicted on the video in some detail. He was unable to give any
satisfactory explanation. The only explanation that he gave was that perhaps
he was examining the baggage slips to see whether the baggage was on the right
flight, or addressed for the right destination, or was perhaps transship
baggage, that is to say baggage that has been booked in for an ultimate
destination beyond Adelaide or Perth, or booked from a port other than Sydney
for transshipment through Sydney for some ultimate destination. He had no
explanation for why this would take up to one minute, when a perusal of
colour-coded tags on which the destination is clearly shown would take but a
few seconds at the very most. The same can be said for transshipment labels,
which can be assumed to be less clear.
74. Nor could Mr Brosnan explain why, after calling for a Perth bag he would
ultimately unload it. While it is possible that the baggage could have been
either wrongly labelled or been a priority bag and thus to be loaded in
another hold in the aircraft, in either case it could be assumed that this
would have been picked up by Mr Frew before he handed the bag to Mr Brosnan
for loading. And even if one mistake may have been committed, it hardly
explains how it came about that a number of bags were, after being loaded and
examined by Mr Brosnan, offloaded. I have viewed the video on a number of
occasions and heard evidence as well from Mr Byrne, Mr Frew and others
familiar with the ordinary operation of loading and unloading. In my view,
and accepting that having regard to the gravity of the matter a higher onus
should be applied, (cf Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; M v M
(1988) 166 CLR 69 at 76-77) I would find that Mr Brosnan was indeed searching
through customer baggage, with the purpose of stealing items from that
luggage. In so holding I am aware that the charges against him were
ultimately dismissed or withdrawn. But if he were acquitted after a hearing,
it is probable that Mr Brosnan himself did not give evidence as he did before
me. I had the opportunity of observing him in the witness box under
cross-examination and have reached my conclusion based upon this observation
as well as viewing the video.
75. To return to Mr Byrne, it might, but for one matter, have been possible
to conclude that although placed to see Mr Brosnan, he did not in fact do so
because he was going about his work loading the luggage destined for Adelaide.
I might observe, he was not doing so with frenetic haste.
76. The problem with this interpretation, which was strenuously advanced by
his counsel, is that Mr Byrne can be seen pushing bags (soft bags at that) in
the direction of Mr Brosnan, bags which Mr Brosnan in due course takes behind
the screen that had been prepared. Add to this the fact that some of these
bags in due course return to the door of the hold for off-loading and it is
difficult indeed to conclude that Mr Byrne was innocent of all participation
in or knowledge of what Mr Brosnan was doing.
77. Again Mr Byrne was vigorously cross-examined. He was unable to give any
logical explanation for Mr Brosnan's actions, or for that matter his own in
pushing bags to Mr Brosnan. I do not accept his evidence that he did not know
what Mr Brosnan was doing. The furthest he was initially prepared to go was
to agree that Mr Brosnan's behaviour was "unusual", and "a bit suspicious".
Later, when pressed with further frames from the video, he went as far as
agreeing that Mr Brosnan's behaviour looked suspicious. He could, however,
not come up with any explanation for Mr Brosnan's behaviour other than that he
was going through the passenger baggage. He sought to explain his passing
bags in the direction of Mr Brosnan as putting these bags to one side to be
loaded later. He was forced to concede, after viewing the video, that there
was no way that the suspicious acts of Mr Brosnan could have been carried out
without his observing them at least in part.
78. I do not accept Mr Byrne's denial of involvement in, or knowledge of,
what Mr Brosnan was doing and find that Mr Byrne was involved in the
activities which Mr Brosnan was undertaking, in the sense that he had full
knowledge of what Mr Brosnan was doing and aided him in carrying out the
activity. Again, in reaching that conclusion, I have been guided by the onus
suggested in Briginshaw v Briginshaw (supra). I note too that while in his
affidavit he adverted to only one brush with the law, he had, as emerged in
cross-examination, a number of convictions, albeit some a considerable time in
the past. These convictions, of course, are irrelevant to the present
proceedings; his partial untruth in omitting them from his affidavit is
another matter.
79. The position is more difficult with Mr Frew. He does not appear on the
video, although his presence on the tarmac is acknowledged. Indeed Mr Frew
did not dispute that the person called "George" taking luggage from the
trolley for loading was himself.
80. For Mr Frew, it was submitted that he could see little, and in any event
did not look at what Mr Brosnan was doing. He was assisting Mr Byrne in the
loading of locker 4. Thus it was said that he too was neither involved in nor
knew of Mr Brosnan's activities.
81. I have given this question anxious consideration but have ultimately
concluded that Mr Frew also was involved in the activities undertaken by Mr
Brosnan, in the sense that he knew of them and assisted in their being carried
out. I have done so for a number of reasons. First, I observed Mr Frew in the
witness box. His answers to questions were sometimes evasive. He gave the
clear impression that even if he were aware of acts of pilfering there was no
way that he would report them. Although he did say that if aware of pilfering
he would tell that person to stop and if he did not, would "walk off the
plane". I do not accept that he would so act.
82. It is clear that if Mr Frew were loading from the trolley, his vision
into locker 3 would be obstructed. That is not to say that there would be no
vision. Some vision is available where the webbing is attached by straps to
the floor and the pole. More is available as the porter leans into the plane
to swing the luggage up into the hold. Even without this vision, the back of
Mr Brosnan's head and his rear would have been clearly visible to Mr Frew and
it would have been clear that Mr Brosnan was leaning over something for a
considerable time and not stacking luggage. Further, it would have been clear
that Mr Brosnan had built himself a screen with a suitcase.
83. But, what is more important are two matters. First Mr Frew handed the
Perth suitcase up to Mr Brosnan and ultimately took it back. He sought no
explanation from Mr Brosnan for why it was returned. Nor did he seek any
explanation for why the smaller soft bags were off-loaded. Secondly, if Mr
Frew had not been in on the activity it would not have been possible for Mr
Brosnan, without fear of being caught, to go about the activities in the
blatant and apparently fearless way that he did.
84. Other matters affecting Mr Frew's credit were raised. In his affidavit
evidence he had said that he had not been the subject of any disciplinary
procedure in the course of his employment with the Airline. In fact, he had
been clocked off work by Mr Brosnan and warned for this. However, I pay little
attention to this.
85. He deposed to having had no contact with either Mr Brosnan or Mr Byrne
between the suspension interview and the termination interview. This is not
only improbable, but also is contradicted by the evidence of Mr Byrne, whose
evidence on this point I would accept. Mr Frew's persistent response to
viewing the video and being questioned about what Mr Brosnan might have been
doing, was a stout assertion that he did not know what Mr Brosnan was in fact
doing. In so doing he gave the appearance of avoiding answering the questions
posed to him.
86. It was submitted that I should take into consideration the fact that Mr
Frew, like Mr Byrne, had, in his interview with the police, been co-operative
until shown the video when he refused to answer any further questions. This
is not a matter of significance in my view. Any person has the right to
maintain silence when questioned by the police, particularly when there is
evidence which might implicate him in the commission of an offence. To later
use the exercise of that right to denigrate the credit of that person seems to
me to be totally unfair. If there be any significance in this evidence at all,
it is that at no time did Mr Frew give an innocent explanation of what
occurred on the video.
87. No attempt was made to attack the credit of any of the witnesses of the
respondent. Rather, it was said their credit should be accepted, but it
should be recognised that as no records of the termination interviews were
kept, defects in memory could be accepted. There existed, so it was said, a
contemporaneous record, in the form of the note of Mr Hazell, which should be
accepted as correct, at least as far as it went. This record provided
corroboration for the version of the termination interviews as deposed to by
the applicants.
88. I formed a favourable view of Miss Foisy in the witness box. She had done
a diploma course in industrial relations and impressed me as a most
conscientious and reliable witness. Her conscientiousness is reflected in the
fact that she wrote out for herself a script of what she was to say during the
interviews. I would have no hesitation in accepting that she followed that
script. She was no longer employed by the Airline and there was no reason why
she should not assist the court to the best of her recollection, which I am
sure she did. There is in truth little discrepancy in the evidence given by
the various witnesses for the respondent Airline that could not be accounted
for by the usual vagaries of recollection. I place little reliance upon the
question whether the applicants were given the option to resign as the
witnesses for the applicants said, and as Mr Hazell's memorandum would
support, or not, as Miss Foisy, Miss Egles and Mr Hazell say. Mr Anderson,
whose credit was also not under attack, deposed that his instructions were
such that the applicants should, absent an explanation, be dismissed. He said
that other porters on later occasions were given the opportunity to resign,
but this opportunity was not proffered to Mr Byrne or Mr Frew. Having regard
to the matters affecting Mr Byrne's credit and that of Mr Frew, I would prefer
the evidence given on behalf of the respondent to that of either Mr Byrne or
Mr Frew, to the extent that there may be significant conflict.
89. It follows that I would find that at the termination interviews Miss
Foisy outlined at the outset that the Airline was considering termination of
the applicants' services due to breach of trust. There was some, albeit
limited, reference to the video. It is more probable than not, having regard
to the evidence of Mr Hazell, Miss Egles and Mr Smith, that reference was made
to the involvement of the applicants in passenger baggage theft and the men
were invited to give an explanation. She then sent the men out of the room
with the union representative to confer. It is probable, despite her evidence
that she did not see the men together at any time. When the men returned
again individually, I find that she then asked whether there was any reason
why their services should be retained. It is probable that Mr Frew at some
stage referred to his 26 years of employment. When no answer on the
substantive matter of baggage pilfering was forthcoming, she then advised that
the service of each man was to be terminated. Some reference was made to lack
of trust, probably the word "mistrust" was used. I find it unnecessary to
decide whether the men were given the option to resign, as no submission was
made by either party that the use of these words should affect the outcome,
except so far as that use might assist in the overall finding of what happened
at the interview.
The applicants' submissions
90. The starting point of the applicants' submissions on what in effect was
their real case, namely the claim for damages against the Airlines, was that
the provisions of cl.11(a) of the Award were incorporated into the contract of
service between the Airline and each of the applicants. It was then said that
the requirement that termination be not harsh, unjust or unreasonable carried
with it a number of obligations which had to be observed by the Airline in
terminating the services of an employee. Failure to observe any of them led,
it was submitted, to the result that the termination would be harsh, unjust or
unreasonable and in consequence the dismissal would be wrongful, thus
entitling the applicants to damages. Damages were, so it was said, to be
assessed for the loss of the opportunity to continue the employment,
discounted if appropriate (it was not, so it was said, in the present case)
for foreseeable events which might have brought the employment to an end: cf
Wheeler v Phillip Morris Ltd (1989) 97 ALR 282 at 312.
91. This meant, in the present case, that a calculation should be made of the
amount that could have been earned by the men had they continued in their
employment with the Airline until normal retirement age, ie 65 years, setting
off those amounts which have been or will be earned by each of the applicants
in their respective new employment positions. No allowance should, it was
submitted, be made for income tax otherwise payable on that salary. In the
result, the applicants submitted that they were entitled to the following
amounts: Mr Byrne, $192,313 and Mr Frew, $145,387.
92. The obligations imposed upon the Airline, as a result of the Award, were
said to include:
* The obligation to "indicate the issues and matters as
regarded as significant and calling for explanation" ie to
put to Mr Byrne and Mr Frew the specific case against them.
* The obligation not to rely upon suspicion of misconduct but
to conduct an independent inquiry of its own into the
involvement of the men in pilfering baggage before making a
decision to terminate their employment.
* The obligation to afford the men natural justice or
procedural fairness by giving them an opportunity to be
heard in reply to the charges put against them.
* The obligation to take into account in terminating the
employment of an employee, only those matters which are
relevant and not to take into account matters which are
irrelevant.
The obligations imposed upon an employer by cl.11(a) of the Award
93. Although a formal submission was made to the contrary, there seems little
doubt that the requirement in cl.11(a) of the Award, that termination be not
harsh, unjust or unreasonable, is incorporated into the contract of service
between the Airline and the respective applicants. So much was decided by the
majority of the full court of this court in Gregory v Phillip Morris Ltd
(1988) 80 ALR 455, a decision which I am bound to follow.
94. In Gregory the court was divided. The effect of the division is of
little practical importance. The majority in that case, Wilcox and Ryan JJ.,
was of the view that there were two possible bases for the inclusion of the
terms of a relevant award in the contract of employment. The first was that
the award provision imports a term into the contract of employment
independently of the intention of the parties, (cf Amalgamated Collieries of
WA Ltd v True (1938) 59 CLR 417 per Dixon J. at 431). The second was that
there should be implied into the employment agreement such a term. Jenkinson
J., while holding that the provisions of the award relevant in that case were
not incorporated in the contract of service expressly or by implication, held
that nevertheless the award created in the employee a right to sue for damages
for breach in the event that termination of employment by the respondents was
harsh, unjust or unreasonable.
95. The application of the law of implied terms to incorporate the provisions
of an award into the contract of service may have some difficulty, cf BP
Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at
26 and Gregory at 479-480. One problem which might arise would be where the
provisions of the award contradicted the express terms of the employment
contract. Another is that it would become a necessary prerequisite to any
claim based upon an award provision to prove the existence of facts which
would lead to the implication of that term. Thus, different results could
arise in different claims brought by different employees covered by the same
award. In fact, both avenues relied upon by the majority in Gregory in
support of the view that the award provisions are incorporated into the
contract of employment have attracted criticism: see eg Macken, McCarry and
Sappideen, The Law of Employment, 3rd ed, The Law Book Company Ltd, 1990 at
502-3.
96. Given that, whatever the rationale, an employee may bring an action
against his employer for damages for breach of the award provision requiring
termination to be not harsh, unjust or unreasonable, it is more profitable to
direct attention to what these words require of the employer in a case such as
the present.
97. Clause 11(a) was inserted in the award as a result of the Termination,
Change and Redundancy Case (1984) 8 IR 34. As the Commission pointed out in
that case (at 39) the standard contract of employment clause extant at that
time provided for dismissal for any reason upon the employer giving one week's
notice. Unfair dismissals were not prohibited, nor were there any procedural
safeguards for employees in dismissal. There was, in addition, a power of
summary dismissal in cases where there was misconduct justifying instant
dismissal. There was debate whether the Commission should adopt the test
applied in the Industrial Tribunals of a number of the States that the
dismissal be not harsh, unjust or unreasonable, or not fetter the discretion
of the Tribunal save to act upon the objective that there be "industrial
justice". The Tribunal was of the view that in the result there was no
significant difference between the two tests and adopted the former.
98. The Australian Council of Trade Unions had sought the insertion into the
Award of a provision that:
"An employer shall not dismiss an employee in a
manner or for a reason which is harsh, unjust or
unreasonable."
99. The submissions of the Australian Council of Trade Unions, so far as they
related to procedural matters, were not adopted. That body had argued that,
in addition, specific procedural matters be dealt with in the award. These
included (at 46):
"(i) an opportunity for an employee to answer
allegations made against him before
dismissal action is taken;
(ii) dismissal procedures involving a number of
stages including verbal and written
warnings; and
(iii) the right for an employee to be notified
in writing and receive, on request, a
written statement of reasons for
dismissal."
100. The Tribunal then said (at 47):
"We agree that as a general principle employees
should not be dismissed before being given an
opportunity to answer allegations against them
and we believe that employees should be
forewarned by an employer, where possible, in
cases of unsatisfactory performance or
misconduct. Furthermore, our understanding of