Steamships Trading Company Ltd v Leva [1989] PGLawRp 23; [1988-89] PNGLR 248 (21 July 1989)

Papua New Guinea Law Reports - 1988-89

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

[1988-89] PNGLR 248

N732

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STEAMSHIPS TRADING COMPANY LTD

V

RUBA LEVA

Waigani

Los J

6 July 1989

21 July 1989

INDUSTRIAL LAW - Offences - Dismissing employee by reason of “dissatisfaction with his conditions” - Onus of proof - Elements of offence to be proved beyond reasonable doubt - Proof that employer not acting for reasons alleged on balance of probabilities - Employee must be dissatisfied with own conditions - Executive membership of union not sufficient - Industrial Relations Act (Ch No 174), s 63(1), (3).

The Industrial Relations Act (Ch No 174), s 63, relevantly provides:

N2>“(1)    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.

...

N2>(3)      In a prosecution for an Offence 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.”

Held

N1>(1)      The effect of s 63(3) of the Industrial Relations Act on a prosecution for an offence under s 63(1) is that the prosecution must prove, beyond reasonable doubt, that the employer has dismissed the employee; that the employee was a member of an industrial union that is seeking better industrial conditions and that the employee is dissatisfied with his or her conditions before the employer may be required to prove, on the balance of probabilities, that it did not dismiss the employee for the reasons alleged.

Ferguson v George Foster & Sons Pty Ltd [1969] CthArbRp 424; (1969) 14 FLR 370 at 374 and Cuevas v Freeman Motors Ltd [1975] CthArbRp 2238; (1975) 25 FLR 67, adopted and applied.

N1>(2)      Proof that an employee was dissatisfied with her conditions for the purposes of s 63(1)(f) was not established from evidence that she was an executive member of an industrial union which was supporting other co-employees who were dissatisfied with their conditions.

Cases Cited

Cuevas v Freeman Motors Ltd [1975] CthArbRp 2238; (1975) 25 FLR 67; 8 ALR 321.

Ferguson v George Foster & Sons Pty Ltd [1969] CthArbRp 424; (1969) 14 FLR 370.

Ume More v The University of Papua New Guinea [1985] PNGLR 401.

Appeal

This was an appeal from a decision of the District Court to convict an employer of dismissing an employee contrary to s 63 of the Industrial Relations Act (Ch No 174).

Counsel

P Bolam, for the appellant.

D Hauka, for the respondent.

Cur adv vult

21 July 1989

LOS J: The appeal is from a decision of the Port Moresby District Court where the appellant was convicted for dismissing the respondent worker as a member of an organisation that was seeking better conditions of employment thereby contravening s 63 of the Industrial Relations Act (Ch No 174). The appellant’s grounds of appeal are:

N2>1.       That the conviction made by the District Court was wrong in and contrary to law in that:

(i)       That Court erred in giving consideration to and relying upon Section 25(1) of the Industrial Relations Act rather than Section 25(2) of the Industrial Relations Act.

(ii)      The Court erred in its interpretation of Section 63(1) of the Industrial Relations Act.

(iii)     The Court admitted, considered and relied upon evidence not properly admissible.

(iv)     The Court gave consideration to and relied upon matters not adduced in evidence.

(v)      The Court gave consideration to and relied upon matters not relevant to the proceedings.

(vi)     The Court erred in its application of principles of law in making its decision and erred in applying principles of law that were not relevant to the proceedings.

(vii)    The conviction was contrary to the evidence adduced to the Court.

(viii)    The Court failed to give adequate consideration to the evidence adduced by the defendant.

N2>2.       That the District Court erred in the exercise of its discretion in ordering the defendant to reinstate the informant and reimburse any wages lost by the informant.

N2>3.       That the District Court erred in the exercise of its discretion in ordering the defendant to pay the costs of the informant.

N2>4.       That the assessment by the District Court of the costs of the informant to be paid by the defendant was wrong in and contrary to law or alternatively that the District Court erred in the exercise of its discretion in its assessment of the costs of the informant to be paid by the defendant.

GROUND 1

The offence with which the appellant was charged is provided for in s 63(1) of the Industrial Relations Act which provides:

“Injuring Employee or Employer on Account of Industrial Action

N2>63(1)  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 the manner of proof as follows:

N2>“(3)    In a prosecution for an offence 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.”

I accept the appellant’s submission that, before it needed to adduce any evidence to defend a charge in respect of s 63(1) of the Act, the respondent had to prove that she had been dismissed by the appellant, she was a member of a union that was seeking better industrial conditions, and that she was dissatisfied with her conditions. These elements must be proved beyond reasonable doubt, that is, on the criminal standard of proof. Once the worker had proved these elements, the onus shifts to the employer to prove that it did not dismiss the worker for the reasons set out by the respondent. It only needed to prove that on the balance of probabilities. That is on the civil standard of proof.

I am not aware of any decision by a court in Papua New Guinea on this point. But counsel for the appellant referred me to two Australian cases on this point. The cases deal with s 5 of the Commonwealth Conciliation and Arbitration Act 1904-1968, which provided for an offence in similar terms to s 63(1) of the Industrial Relations Act. In Ferguson v George Foster & Sons Pty Ltd [1969] CthArbRp 424; (1969) 14 FLR 370 at 374, the Industrial Court said:

“The ultimate question in each case is whether it is proved in the manner and to the extent specified in the statute that in dismissing the man concerned the defendant did so by reason of the circumstance that he was a member of the Federated Engine Drivers’ and Firemen’s Association.

Section 5(4) of the Act provides that in any proceeding for an offence against s 5 if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.

Accordingly once the court is satisfied beyond reasonable doubt that the employer has dismissed an employee and that the employee was a member of an organization at the time of the dismissal it lies upon the defendant to prove that the employee’s membership of the organization was not a reason for the dismissal.”

Cuevas v Freeman Motors Ltd [1975] CthArbRp 2238; (1975) 25 FLR 67 also supports the principles in Ferguson’s case.

The appellant says that the respondent worker did not prove beyond reasonable doubt that she was dissatisfied with her own conditions. This submission is based on the evidence that was brought before the District Court and relied upon before me at the hearing of the appeal. On the day in question, the worker attended an executive committee of the Amalgamated General Workers’ Union (AGWU) at Gerehu. She went there as a member of the executive committee. She was the only one that went from “Cash and Carry” at Esplanade, Port Moresby, where she worked. There was a strike after the meeting, but it was a strike by employees of Associated Distributors at Gerehu. This was supported by the letters from the Honorary General Secretary of the AGWU. In the respondent’s own evidence she said:

“I am on the executive committee of the Union — Amalgamated General Workers’ Union (AGWU). I went with my committee to Gerehu Steamship. The meeting was about the log of claims and the condition between the manager and the staff were not good. The manager is (?) Laker (manager for Associated Distributor at Gerehu). The people who attended the meeting at Gerehu are steamships staff who work in Associated Distributors” [sic].

Upon this evidence the respondent is in a dilemma. The only evidence that shows that she herself could have been dissatisfied with her own conditions is her membership of the AGWU. She is numbered 46 on the list. The list states, LIST OF STEAMSHIPS TRADING COMPANY WHO ARE MEMBERS OF THE AMALGAMATED GENERAL WORKERS’ UNION. The letter from the Honorary General Secretary of the AGWU dated 7 September 1987 to the Steamships Trading Co Ltd sought to resolve two issues. The first one related to the relationships between the staff and the manager of Associated Distributors at Gerehu. This accords with the respondent’s evidence. The other issue related to working hours, rates of pay, rest break, maternity leave, overtime and housing. The respondent gave no evidence connecting those conditions with her conditions at Shed 3, “Cash and Carry”, Port Moresby, where she worked. It can only be implied that the respondent was not satisfied with her conditions. The implication is possible because of the number of the conditions specified earlier and the fact that she is also an employee of the same company. But the evidence from which I draw this inference is incapable of satisfying the element specified by s 63(1)(f) of the Industrial Relations Act, on the criminal standard of proof. I can only conclude that, as she was an employee of Steamships generally, she was giving moral support to other employees who were dissatisfied with their conditions. The respondent therefore failed to prove the element of dissatisfaction with her own conditions of employment beyond reasonable doubt. There is no need to call upon the appellant to prove that the respondent’s dismissal was not because she went on strike with others to improve their working conditions.

In my view, the issue is really whether the respondent was dismissed because she attended a union meeting as an executive of a committee of the AGWU. There cannot be any doubt that she was a member of the executive committee of AGWU. She attended the meeting in that respect. It is also beyond doubt that she did not talk to the “Cash and Carry” manager and did not seek permission before she left. She, however, did talk to the assistant manager, Fred Kaduku. The assistant manager said “OK”. It appears from the line of questions asked by the respondent’s lawyer and objections taken by the appellant’s lawyer that the meaning of “OK” was disputed. Was the assistant manager giving permission or was he agreeing to tell the manager of the respondent’s absence from work and the reasons for the absence? The assistant manager said he could give permission but not when the manager was at the work place. As the manager was there all the time when he said “OK”, he was agreeing to tell the manager. It would have been helpful to have some evidence on the past practice or if some rules (if any) issued by the employer had been produced in evidence. One thing is clear to me. She did not sneak out of work. She was conscious of the responsibility at work. She had sufficient respect for the manager to tell the assistant manager to inform the manager that she had to attend a union meeting. She rang back twice when she was at the meeting and talked to the manager himself. This was admitted in evidence by the manager. So that any claim that she was absent without any permission at all could not be supported by the evidence. The only conclusion any reasonable tribunal could have reached was that she was dismissed because she was attending a union meeting as a member of the executive of the AGWU. This conclusion could not be wrong when seen in the light of the evidence by the manager of “Cash and Carry” at Shed 3. He said permission to leave the work place would basically be given for someone who wanted to go to the clinic. “Anything in regards to other matters, specifically no.”

As I said earlier, the respondent is in a dilemma. The meeting was about the conditions of employment of the staff at the Associated Distributors Shed at Gerehu. As a member of the executive, she is not protected by the Act. Section 63(1)(f) excludes her. In my respectful view, this is unfair in view of the right to assemble, associate and belong to an industrial organisation guaranteed by s 47 of the Constitution. Union meetings and strikes cannot be properly managed without executive members. In a big company like that of the appellant, a member of the executive of a union of all the employees of the company may not necessarily be the one dissatisfied with his or her own personal conditions of work. Involvement in meetings or organisation of strikes may be by virtue of his or her position on the executive. The respondent’s position is a clear example of this. Under these circumstances, my view is that the dismissal of the respondent might be harsh and oppressive. And in this respect the respondent may have a cause of action based on s 41 of the Constitution. I cannot apply s 41 here because this is an appeal, and secondly because of the concern expressed in Ume More v The University of Papua New Guinea [1985] PNGLR 401. Nevertheless, I accept the grounds of appeal under ground 1.

GROUNDS 2 AND 3

It is not necessary for me to deal with ground 2 in view of my decision in ground 1. The costs of the hearing at the District Court went with the success of the prosecution. That no longer applies here because of my decision under ground 1.

ORDERS

It is ordered:

N2>(1)      That the appeal be upheld; and

N2>(2)      That the costs of hearing at the District Court and this appeal be paid by each party.

Appeal allowed

Lawyers for the appellant: Blake Dawson Waldron.

Lawyers for the respondent: Billy Oscar Emos & Co.