Habuka Lawyers v Higaturu Oil Palm Pty Ltd [1996] PGDC 1; DC2 (11 March 1996)

Unreported District Court Decisions

[1997] PNGDC 5 - HABUKA LAWYERS V HIGATURU OIL PALM PTY LTD

[1997] PNGDC 5

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO. 537 OF 1995

HABUKA LAWYERS

V

HIGATURU OIL PALM PTY LTD

Popondetta

Manuhu SPM

29 February 1996

11 March 1996

INDUSTRIAL LAW - Offences - Dismissing employee by reason of union membership -Onus of proof - Court to be satisfied, on balance of probability, that union membership was not a substantial and operative factor influencing employer to dismiss - Totality of evidence to be considered.

Cases Cited

Steamships Trading Co. Ltd. v. Leva [1988-89] PNGLR 248

State v. Aubafu Feama & Ors. [1978] PNGLR 301

Bowling v. General Motors-Holdens [1975] 8 ALR 197

Atlas Steel Pty Ltd v. August & 32 Ors., Hinchliffe, J, 5 October, 1994

Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Counsel

E Kamburi for the Informant

P Payne for the Defendant

JUDGMENT ON VERDICT

11 March 1996

MANUHU SPM:  The Defendant was charged under Section 63(1)(a)(f) of the Industrial Relations Act, Ch. No. 174 (hereinafter referred to as the Act) for dismissing from employment Messrs. Ladri Kuli, Damien Oah, Amos Govira and ninety four (94) other employees by reason of the circumstance that they were members of the Higaturu Oil Palm Processing Workers Union (hereinafter referred to as the Union) who were seeking better industrial and employment conditions and were dissatisfied with their conditions.  The relevant Section reads:

“An employer who:

(a)      dismisses an employee; or

because, the employee:

(f)      being a member of an organization that is seeking better industrial conditions-is dissatisfied with his conditions,

is guilty of an offence.”

Section 63(3) provides for the manner of proof as follows:

N2>“(3)    In a prosecution against this section, if all the facts and circumstances constituting the offence other than the reason for the defendant’s action, are proved, proof that he was not actuated by the reason alleged in the charge is on the defendant.”

The effect of Section 63(3) is that the elements of the charge must be proved beyond reasonable doubt, that is, on the criminal standard of proof.  Once the worker has proved these elements, the onus shifts to the employer to prove, on the balance of probability, that it did not dismiss the worker for reasons alleged in the charge:  Steamships Trading Co. Ltd. v. Leva [1988-89] PNGLR 248.

The evidence adduced by the prosecution consisted of the affidavits of Ladri Kuli and Damien Oah.  These affidavits were sworn on 29 February, 1996.  Counsel for the defendant only challenged matters contained in paragraph 18 of Kuli’s affidavit.  It was suggested to Kuli that Notice of Dismissal was served on 20 July and not 28 July.  The witness appeared to have forgotten what actually took place at the relevant time.  Nevertheless, as there were no other Notices for Dismissal on the evidence adduced by the prosecution, I am satisfied, for the time being, that the only Notice of Dismissal is the one dated 28 July.  This means that the matters contained in paragraph 18 remain uncontradicted.

At the close of the prosecution’s case Mr. Payne conceded and I am so satisfied that the prosecution had proved its case beyond reasonable doubt.  In the circumstances, I do not intend to repeat the evidence which are well documented in the above mentioned affidavits.

It now lay upon the defendant to prove on the balance of probabilities that it was not actuated by the reason alleged in the charge.

Evidence for the defendant was in the form of an affidavit sworn by Mr. Richard Caskie, the General Manager of the defendant company, on 8 February, 1996.  The following are his recollection of the main events, in chronological order, leading up to the eventual dismissal of the members.

·         8 February - The Union delivered a log of claims to the defendant claiming a 40% pay increase and Long Service entitlements.

·         29 May - The Union advised the defendant that the members would not perform maintenance and other work on weekends.  The weekends actually affected by this decision were 10-11 June, 17-18 June and 24-25 June.

·         10 July - Thirteen Mill employees were given Retrenchment Notice owing to their non-attendance at weekend duties.  This action by the defendant prompted other Mill employees to stop work and damage was done to company property.  Police were called in to restore order.

·         14-15 July - The Union conducted a secret ballot to determine the question of a strike action.

·         17 July - The Union failed to attend a meeting with the defendant’s management and officials from the Department of labour and Employment ( hereinafter referred to as the Labour Department).  The defendant issued a letter in English and Pidgin advising all employees to return to work on 19 July.  The letter (Annexure D(1)) reads:

“As a result of the Labour Department advice all company employees are directed to return to work on Wednesday 19th July, 1995, at 07:30 Hrs.

“Employees are directed to report to their designated areas within the company.  Failure to do so will result in them being considered to have terminated their employment with the company and the vacant positions will be filled.”

On this day also the result of the secret ballot was declared in favour (211 to 4) of a strike action.

·         18 July - The Union advised the defendant (Annexure G) that “our members and your employees” would not return to work as requested on 17 July.  It is apparent that the general employees had joined the Union members on the strike.

·         19 July - A large number of workers failed to return to work.

·         20 July - A “To Whom It May Concern” Letter of Dismissal (Annexure I) was served on the employees.  The Letter reads:

“Company employees who failed to report to work as directed on Wednesday July 19, are advised that their employment with the company has been terminated.

“The company advises that entitlements of those individuals concerned are being calculated, date of payment will be advised.  All concerned employees are advised that prior to payment being received all company housing must be vacated and those concerned are to leave the company property.”

·         20 -25 July - A large number of workers still failed to get to work.

·         26 July - A meeting was held in Port Moresby and was attended by Labour Department officials;  the said Mr. Caskie; the General Secretary of the Trade Union Congress, Mr. John Paska; and the Union officials.  At the meeting the issue of termination was discussed whereby Mr. Caskie advised that the decision to terminate would not be rescinded. A Memorandum of Understanding was executed by the parties concerned.  This effectively ended the dispute between the Union and the defendant.

·         27 July - The said Mr. Paska wrote to the defendant and requested, inter alia, that it “...reverse its position on terminating the employees who did not respond to the notice to return to work.”

·         28 July - The defendant delivered a “Notice of Termination of Employment” to 453 employees individually. The said termination is the subject of these proceedings.

At this juncture let me analyze certain aspects of Mr. Caskie’s evidence which were the subject of cross-examination by Mr. Kamburi.

Mr. Caskie was, firstly, cross-examined at length on the manner of the service of the Notice of 17 July for the workers to return to work on 19 July.  At the end of the day Mr. Caskie conceded that he could not be sure as to whether (or not) the Notice was served on all the employees concerned.  I am satisfied, nonetheless, that there was an actual reply to this Notice by the Union.  The Union was the mouthpiece for the members.  Evidence show that from 29 May to 28 July every actions taken by the members were consistent with directions from the Union.  This shows that there was effective communication between the Union, the members and the other employees, for that matter.  I assume they all lived together in one compound.  I am, therefore, satisfied that Notice to return to work on 19 July was duly served on the members.

There were also some dispute in relation to the Notice for Dismissal.  There is one addressed to “To Whom It May Concern” dated 20 July and there is another entitled “Notice of Termination of Employment” dated 28 July.  Which of them was the formal dismissal notice?  To me, the date of the dismissal does not matter - there was still a dismissal.  In any case, I accept that dismissal of the employees was effective on 20 July.  It appears to me that on 20 July the defendant, given the large number of employees on strike, could not identify all the employees who were absent on 19 July, and; similarly, the defendant could not ascertain the specifics of the dismissed employees’ entitlements.  I am of the view that the defendant decided that it had to act consistently with the Notice to return to work.  Consequently, a “To Whom It May Concern” (letter) Notice of Dismissal was issued on 20 July and subsequently a “Notice of Termination of Employment” to the individual employees were issued on 28 July to complete the formalities of the dismissal exercise for 453 employees.

This finding is also supported by various matters raised in meetings and correspondence exchanged before 28 July.  However, as I have said, if the effective date for dismissal was in fact 28 July I still cannot see how that will matter to the prosecution’s case.

Defence counsel’s argument in this case is that the reason for the dismissal of the members was not as a result of their union membership but rather by reference to their failure to return to work on 19 July.  It is argued that this conclusion is supported by the fact that, first, the action taken by the defendant was based on advice by the Labour Department, and, secondly, that  the number of workers dismissed well exceeded the total number of union members.

There is only one answer to these arguments.  Ignorance of the law is no excuse:  Section 23 of the Criminal Code, Ch. No. 262.  See also State v. Aubafu Feama & Ors. [1978] PNGLR 301.  If the action taken by the defendant is found to be contrary to law the defendant cannot claim as a defence that it was advised to do what it did by someone else.  Similarly,  the  defendant should have known  that as Union members were involved in the strike they are  “protected” by the Act.  In my view the defendant just did not care that Union members were involved in the strike.

Mr. Payne also submitted that  the strike action was unlawful.  This argument must fail because the validity of the strike  action was never a ground for the dismissal.  Secondly,  Section 61 of the Industrial Organizations Act, Ch. No. 173 does not support the defendant’s argument.  Nevertheless, when Section 61 is considered  together with Section 48 of  the same Act the Rules of the Union should have been adduced into evidence so that the procedures in respect of strikes or lock-outs by the Union could be determined.  In the absence of the Rules I cannot appreciate counsel’s argument on the validity of the strike.  I find, therefore, that the strike, at least on 19 July, was lawful.

The prosecution’s contention is that the Court must look at all the circumstances of the case to determine whether the defendant was actuated by the reason alleged in the charge.

There is evidence of willful damage to property by the members but this was not a ground for dismissal.  The sole ground for dismissal was that the members failed to turn up for work on 19 July.  It is important to note that the right and wrong for the dismissal is not a concern for this Court.  What is required for the purposes of the defence is a finding that the court is satisfied, on the balance of probability, that the employees position as Union members was not a substantial and operative factor influencing it to dismiss the employees on 20 July.  It is upon a consideration of the totality of the evidence that the Court must make its conclusion on the issue:  Bowling v. General Motors - Holdens [1975] 8 ALR at 205.

The defendant relies on the appeal case of Atlas Steel v. Gideon August & 32 Ors., Hinchliffe, J., 5 October, 1994.  This case is practically identical to the present case.  The respondents have been on strike when the appellant, on 21 June, 1993, wrote to the them as follows:

“Atlas Steel - Lae wish to advise all workers on strike that as of June, 23 twelve midday workers who do not return to work will be considered to have abandoned their jobs.

“The company will then make any of the positions available for new employees.”

On 23 June only two workers returned to work.  The rest did not and were dismissed.

His Honour Hinchliffe, J. on appeal from the decision of the District Court accepted the appellant’s only reason that dismissal was because the workers did not comply with the “order” of 21 June.  His Honour went on to say that it is not an offence under Section 63(1) to terminate an employee who fails to comply with a reasonable direction to return to work.  Under Section 36(1) of the Employment Act, Ch. No. 373, his Honour continued, an employer is entitled to terminate an employee without notice if the employee does not comply with a lawful and reasonable direction.

I would be dishonest to myself if I do not express dissent with his Honour’s conclusion in the cited case.  As a matter of law,  the appellant was perfectly free to terminate the workers employment for any reason or reasons which seem good to it, provided that, the reason or one of the reasons was not that the workers were officers, delegate or members of their union.  In my respectful view, therefore, in restricting himself to the order to return to work and the consequential dismissal, his Honour failed to consider the purpose of the order, which gave rise to the dismissal, in the light of  the industrial climate at the relevant time:  Bowling v. General Motors - Holdens (supra).

The order speaks for itself.  It specifically made reference to workers “on strike”.  In my humble view, the order was nothing more than a perfect prejudicial act to circumvent a strike action which was not found to be unlawful.  Hence, for the two workers who returned to work as ordered they just had to abandon their right to meaningfully assemble, associate and belong to an industrial organization as guaranteed under Section 47 of the Constitution and regulated by various Acts of Parliament.  In Steamships Trading Co. Ltd. v. Leva (supra) Los, J. made the following remarks at page 252:

“As I said earlier, the defendant is in a dilemma.  The meeting was about the conditions of employment of staff at the Associated Distributors Shed at Gerehu.  As a member of the executive, she is not protected by the Act.  Section 63(1)(a)(f) excludes her.  In my respectful view, this is unfair in view of the right to assemble, associate and belong to an industrial organization guaranteed by S. 47 of the Constitution.  Union members and strikes cannot be properly managed without executive members.”

Back to the point.  A proper and practical analysis of the evidence in the Atlas Steel case should have led to the conclusion that the order to return to work was an anti-union action and the consequential dismissal a contravention of Section 63(1).  Secondly, as the strike action and the right to assemble, associate and belong to an industrial organization are guaranteed by the Constitution reliance on Section 36(1) of the Employment Act was, in my respectful view, inappropriate and irrelevant.

One might argue that the defendant in Atlas Steel case was only required to prove its case on the civil standard of proof.  That is true but such finding must be practical and capable of belief in its reality.

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical, comparison of probabilities, independently of any belief in its reality.”  (Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361)

In my respectful view, therefore, for an employer to succeed it must point to a reason or reasons that, in normal circumstances, is either unlawful, or which, according to past practices or rules, warrants dismissal.  For instance, in Bowling V. General Motors - Holdens (supra) the informant was dismissed owing to his unsatisfactory attitude towards his job and to supervision.  (The defendant was still convicted due to its inability to show that dismissal was not actuated by the informant’s union activities.)

In the case before me, there is evidence that the defendant was entitled to dismiss those members and employees who caused damage to company property.  Similarly, if the members had resorted to violent tactics the defendant would be entitled to have them dismissed.  On the other hand, as in the Atlas Steel case, an employer cannot dismiss an employee following “disobedience” to an order to stop a strike action and to return to work.

In the end, if I have to consider this case my way, the defendant should be convicted.  However, I remind myself that justice means justice according to law.  My hands are, therefore, tied.  According to law, decisions of the National Court are binding on the lower courts.  The relevant facts in the Atlas Steel case are practically identical to the present case.  I have no choice but to adopt his Honour’s interpretation of the order to return to work and his views on the resultant dismissal.

I find ultimately that the defendant had issued a lawful and reasonable direction to the members on 20 July to returned to work which they failed.  This was the reason for their dismissal.  Their dismissal was, therefore, proper and was done in accordance with Section 36(1) of the Employment Act.  I find the defendant not guilty.

Verdict:  Not guilty

Lawyer for the Informant:  Habuka

Lawyer for the defendant:  Blake Dawson Waldron