AUCKLAND TRAMWAYS DISPUTE

Auckland Star, Volume XXXIX, Issue 177, 25 July 1908, Page 9

AUCKLAND TRAMWAYS DISPUTE

OTIHS IF im GOOBT. I; CONDUCTOR HERDSON REINSTATED, VALID REASONS FOR DIS- j MISSAL J I RIGHT TO CALL EVIDENCE. I B/IR. LYSAGHT3 METHODS. Cnder the Industrial Conciliation and Arbitration. A' r . A.a>l its before 1 -p-:-a.l B--ard of Conciliator's of the N-.,r.h-ra District, in the nia::-r o: ia ■n.iu>-.riai_d:.-'puw bewa the Aii'-'ilar.-; Ei .r-.c Lran-.~a.73 industriiu L>U:n..f ■'• rU r-. ln-r-i:iafwr .m.-m lii-j anii:n. i='i "---■■ Aii-.ic.an.! h-: .k-Trifli'-rav 1 ,-T. r ar.y. Li'-:.-, ; ,i. ixen-ioafter caßed :.,- and or an na.ie bei*--n fi" union uJ tbc eaipioyw :-K -I -v, JUr. I--. ■-- ------ '"■<-■• - a - -5 0" lix-k -•■-"-Tiav a:t.>rnoi?n. the l-.-::-a- 'i 1..- Board. Dr. StcArtiiur. S.-M-. -"I leUvering the decision of tile ir".;ar I. -a i:: ..-p.. -;.,.,■.a. 3':ard of Conciliator!!, having :.i:..-". .'-.•> -onsiiuratioa the matter ,>-■ ;- dispute, md a-.-ard the union by its represenpab ; e;ir ' bj iia reprasentiheard toe auni-=w s called and ex..i;r.::i":i ue =ai«i parties respectively, do hereby "Tha; is betfri-n '-he Uaion and the njemb.'rs liiereof and the ecploytr. ar-i Tm<iv? the agreement. the vreis. cou.iiti-ias and provuione -nz oat m r.y, hereto, and of :.:;.- recommendatii;n shall be binding upon the •Iγ.:-. p. and upon fvery mernner therwof. am] 'i~ tn th • emri »ver. and that tii. , said i<!-:i-' I'ooditioc*. and provisions shiiii be deen:. . 10 be aa 1 they are hereby in-(nr-Ki—Lced ::i and dev-lared to form r>£.TZ c f '-._!- reeommendasion; and. further. that Lne 1121. n .iad rnembur thereof and -!).• emplovtT tiiail respectively do. oorerv- an: perform every matter and tniriix tv this recommendation, and by tie ----ii tonus, conditions and provisions respectively require to be done, observed an.; p«n"oried, and shall not do anything in contravention oi r.^ !a rvconamendation cr n£ the said :jtt* conditions and proTTEions. but =haL in all respects abide try and perform the same, .md the Boam doth further direct --hat this re- : commendauon ih.iii take effect from the firs: day at September, 190S, and shall ev-n;innd in forte uziu the 3b: day 01 I.—Than conductor Herdson b e reinj stiMd in his. position. i __p, a - the General Manager shall arre a written guarantee that 13. rature I:. (?mpi jvee troin the =er-r-.ce -hail be givea j. vauo. reason for his 3 That any enrpioyee beins -sent to the bead oifice for aa"alleged fault suaii see all reports made against mm :uid have jhe right to ._-ali eriocrice on his behalf. 4. —That any inspector piroved guu-y of cr false atrainst ercpUjytes shall br , instantly di=mis=ed. 3.—seeing that Mr. Lysaght's questionable metilCKli the real cause i_i Che strike of November, UKXS, and thiit the harassing cf 2iot.>rmea and condtictorj by ticket inspectors has iecn in oc*?d.eHL'e to his instructions, ac nhoxl be frciri cirecc cjntacc wiui tiie t3.— T-ie Board iirects that the forezoma recoaniMendationa =2iall taice alieet •.γ-jco the rlrst day ot September. i:»0S. and ahail ; eontiuur in force until til.. , Zlsz day uf 1010. iSigaed) A. Mci_3THL"rl, Chtiirmaa.'The President went on to say tolI0W3: — \ir.h..ii'.-h the evidence was aecesear'.iv voiLLUiinous, the e^annnaiion or ■vitni-si'-s .va.- uonduuled in a friiinuly spirit. A-l tnii nestings of the ijoard, buth in camera and in public, have been fiiliv attended by the memoera. it may bj welP to observe that m all matters ecming before the Eoard the decision 01 the B>. aril chilli b'" da trii-auntrii by a majoriiy of tae voces of the members o-T.-ln"i-ii thu .:iia;rmaii, except ia tii« of an equality or such vows, in whi 11 case the '.'liaannan. shall have the ei.-ti,i:r vote. rwo .j;au.scs contained in an amendet: application oi the nniitn were objected c-. by :a.' company. Tin; ob-j«;uon was -^P litii by mc. and ch-e anion eaereupot withdrew them. The number at clause lef- .vis six. and as the parties were unabii? 10 agree upon any of unese. I wi in a!! ..ra.=es call-id upon Co exercise 133 eaj;:nj vote. tiit!n. it is evidfiixi tha: [ must have boeai lie deciding ale men: m -'ach ciause. I Chink it id tuj du;~ to ny viewa on each ciaost as bri-Hly as I can with some degree 01 fairness. Clause 1: '"That Conductor Herd.-«ra bt reinsta:«i in nis position, or givea a Btttisfactorv reason for his dismissal.'"— Ta.'H' is .1 iirsc: conilict of evidence a; to '■:;a- Look place between the inspiictor .iiiiii ::!■-> conductor. The inn-p"H;tor': report .vas talc-in as correct, and th-t eonductnr was not coiled ou for his defencp. In mv opinion was a case thai fihui:! 1 have investigated. If the inspector had ijeen proved Co bt .1 \■ -.1 iat*' punishmene wooid havt iiad 1 iaiutary .;!iect ou those inclined tc foiioiv in zhu path of thu offender: bm thn in-a -.vijulu have fult that the culprii iuu\ r\,,'. ' :i .••■"il-'in.T'd without .1 hear- ! inc. i: ■'.>■> conductor's version had beer pr ; v: • an.! tht? inspector deall with, "■aniit'nc!? would have benn instiiivi :i :';ii> mi'n. <. v n-e cannot overlook the ■■"Iγ of :he inspector's report, which BUiwii "1 fo'-ind iwo L r iris on car."' a fac. onu was 3 married woman, and

be α-liier from 23 to 25 years old. To I tt mzid there was a covert insintiatio-a . i the term "two girls.'" The inspector j Duifci out his error, but did not r.aink it ! =onh while to correct it. The macagex : istinguiahEa between "to disniisa'' and to •iUcharg^." , bat I do not agree with in in tite distinction, for reasons which I hall grve presently. The award of the our: ■ind'r waich tile parties are work l ig a: present does no: vie the word | discharge,"" but only the general word which, in ay opinion. in-jhid-M ' ■ li i eh:"ra'e." Moreover, no was •iren tor di.-;missal or <hswhichever yon pW-ase to call it. unil tau strike *ii in progresr. Viewing the osrt in the of the evidence, Herdon wu.i go; a sitisfiictory r-ea-son -r aia diamfxs.il. I con=ki«r "that he hoaiil hava !ie«a allowed to cj.U evilence. and that the res-jlc shouid have ol'owed according!v. t: would be d:l3u.z co " j oj.-ii l " )w. ana. all i hing , ; it appears to mc best 0 reinstate H-rison. and thus restore 1 i>ncd*"HCH i" , . ;he employ>^3. Clause 2.—"The general manager shall ive a written tn;arancee tliat in future ,3t *mp : lypp bi-ins liismissed from rhe us .'.'.'" It has been arcempted ii draw a ■!■ --.i-. •.ion between the word.-. ■i;.-n:i.-s"" and ".lischarge." [n general crict s. qso "ilisxnUs" is the general '-era ."■i nieacs "to -on! d-'M , "": its.i° "disliarge'" is a mode ot di.*mi.-sai. and linns -to n ::<>■-, r.i v ehargi or duty." TH.-rnn-'s"' i- apniicahle to persons of all :r:.i.'~. whi! = ; ■•iisch.anr"" :• for tiip most .a.n L'i;nnn.*d to th.jse in. subordinate :'j~itionj. ".~i;i:'.; ; s" :i~uji!v implies d:srrace: "ilisc barge" not attessarily so. i'■■■ dismiss or a man from a jubiis service, »iiethcr i:arr ; .v-ii on by a .vh.il-' 1 that -i>rvi: c U inuraasing r.inst im--y.-r r.hat thfre i. ; =on:a faal: to be found ft-"-h the uian either in his conduct or in his work, [ience, in t." opinion, in -;:eh x service .l can dismissed or dia- ',:■ en:i;l'''i to recnivp a v.ilid ri'a-iJn .'- : " hi: .iism^sa 1 . or diseharg". and -he mire ?■) ;i J ,J, be a week's pay .a lieu of nnr.;.'f>. ca;.-. to my mind. implies aa uuer wani ot confldfact» in him. Cioiwiy aiiied to this subject ot : "or diciiarge is that . j g;ving whac "is g"nt>ns!:Y called a. reference or a plux:wisr. I: is α-jual for empkiyera such a.-) the .■ompany in thi» pnasent iii?p>ir*. to a.-sk ['■ r uertincat> J 3 and testimonials from : hose si) appiv f-ir empioymcat. This Msumes on ta.' pnrz ot the proposing empioyer :ha r . I 'mer employers of the applicant would, had he been satwfac;.';rv. a.iv- , 'jiv.'Ti h;m wstinionia-la. is ;t then coo moch to expect from them that which thtfy espi"-'i fro.n others? The siving J- character oi a servant is one 01 the most ordinarr circumatances which a member or society is called upon to make, even in his private capacity, and it is a. duty of importance to the Lntersts cf the public, espmiixlly when the employer is in a public or aemi-publln position. " En respect of that duty a party offemis grievoualy against the interests oi the community in giving a good character where it b= not deaerv-d. or against justice and humanity in either wrongfully notu.-ring to give li character or in wilfully misrepresenting one to tloa harm of the individual. It is clear thac m the absence of any speciSc airrtt'ment to that effect there is no leiral obligation binding a who iias retained another a≤ a ?nrvanc to give that pcr-<;n any eharacLer at on dismissal, and no action, will lie ig:unst aim for refusing to do -o. But it is equally i-lear that .1 mastiT v under a duty, whether it hi; caller! a moral duty or a duty to soviet;.. to give a ehanurter to a. discharged servant. Conscientious eommnnicatiocs ore privileged, axui Che pnvilege i≤ 3iit ailoweo only tor the benent of th!i pver. It :s of importance co the ptibdc tiiat characters shoold be readxly sivpn. Ike persou who applies for the ■rhara-oter and die p>fr-=un AH-) n, to take aim are erjuaJly benedti'd. There 13 no class to whom it i= of such vita! importance that cnaracwrs should on freely z:~ u n as honest servanr.s. A master is anvpiy protet'ti'd in the giving or a •'harurte , .-. th* has nothjiis to fear if he has acted uprightly. W her-; a master gives a -:iiaract.i-r of a servant, unless tee contrary be expressly proved, it will be oresnmed t!:ac t-ii^ , character wag given without naiice. and the servant to support an action must prove Uiat the charwas both falsely and maliciously given. Lord Ellenborongt, in LioLlgson v. .-oarit'tt .IB and A240i.~ 0 b served: " In. the -;isi! oi" niastex a.nd' =erTinx. the of mankind rsquin's that what ls said m fair <*omni?m- . cation terween man aad man shall be privileged ii made bena iide and without malice, li. however. £hn party ziving the character knows what he says to be un-tr-ae. that may deprive hi-n of the proteeticn which the law thxowa around Bullen, J.. in V\ nathcrston v. Hawkins il TJ3.- 110), said: " Lα actions of this '-rind, uniess the plaintiif can prove tlie worda to be malicious ;is Treli aa fikp, they ire not actionable." li l:.-.;jers v. Clifton .'33 and P587), Lori Alv«rstone. C.J., said: "If it were to be 'inLiorstoodl that whenever a master gives a 0:1.1 r'::aract«r to a servant who nas .rj.itt-.: his service, he may be forced by tin? iervajit in juatincation of such his conduct a-s a master to prove the particulars which he has staled the servant, it would be impossible for am masiiir jo iimiurar-nm: itht thu law. at team with regard to his own aax'etyi to give any character but the most favonrabii" zr his servant, and consequently i:;:posail>U fur a servant nec «ntJtleii to Lh« mosi favourable character to obtain any nev< place. Unfriestiunajly the master whe has a bad chanujter of a servant t» persons iaquiriag after his character n not bound to substantiate by proof '.vhai he has said, but it is equally clear thai the servant may. it he < - .an. prove tiu character to be false, and the questioi butieen the miLSter and the servant wil aiwav", in such case, be, whether whai the former has spoken conc(>rninff thi latter, bt> malicious and dleiamacorv." Where a master does give a dis charged srrvp.nt a character h-,» may per haps in doing male? a statement w'lir.i the S(>rvaiit rejar'W as di'famatorv an. uses as the foundation of aa action o libel or slander. mar be atatfi generally that such a statement I. made without ">»spi*as malk-p,"' is ; privilpired communioation. s" that thi master will not be !i:ibh> to the servan in respect of it. That is to say. if hi should be sued by the servant hp wil senernlly be enabled to rr-plv upon th. defence of privilege. [f this defenei is raised and proved, the servant mus then, in ordfr to suereeil in the action show that the master baa been gnilt; of express malice. Eut a communica tion will not ba priTlleged unless it L . made by a in the discharge o i soma public or private duty, whothe lesal or moral, or in the conduct of hi j own affairs in matters where his ir - terest is concerned. I have srone some i whit fully into this particular brand ! of the dispute in reply to what wa. j said by Mr Walkiate in his evidence oi

the subject. It is not amply a matter between a private employer and his servant. It is a matter which concerns above and beyond the master and ser- n vant. the great body of the people. The t public are those who are most inti- j I mateiy concerned in the matter. It is j r for the public good that there she-old be s the xrtmeet confidence between the com- i pany and it 3 servants. The public safety anil convenience demands that ( =uoh confidence should exist. ilr Walk- ( late's arguments are applicable as be- 1 rTeen an ordinary master and his ser- c vant. but are not so in mv opinion when ; - a public service is concerned. Asraiu. ■ th<? company is fully protected by the i common law in the matter of dismis- ; -a!s. disoharses, and in the giving of characters. Relying upon the principles contained \ in the foregoing. I am strongly of opin- ; inn that an employee on being dismissed j from the service should be erven a valid , reason for hi? dismissal. Clause 3.—"'Any employee being sent tr> the head-ofiee for an alleged fault shall see all reports made against him. and have the right to cail evidence on his own behalf, as inspectors' - reports are often found to be misleadins. and exifrperated to suit requirements of the traffic manager." In my opinion, if an employee is °umraoned to the head-office for an allecred fault, he should b<? shown all the reports against him. It is only" | hiiTe jastice that an accused per?ca ■ should know exactly the narure of the j accusation bron<rht against him. and who | it is that accuses him. A necessary ! i-nroHary is that he should be allowed j ! to call evidence on his own behalf. t T consider that there should he a court i of appeal, to which an employee may irav" recourse if not satisfied with the | derision in his case. Such" court might consist of the manager of the company. ! a representative of the employees and j the Mayor of Auckland, the iastnamed ;, as representing the public, who are deeply i cr-ncprued in the doings of the company. | Clause 4.—'" Any inspector proved sruilty oi making mis-statements or false k'pporca against employees shall be inilaatly disTrds.-ed." I A request of this sort. I consider re- ; quires only to be preferred in order to kn urreed to. An inspector wri-.o is ! proved to have acted in the. manner j -latt'ci 's umvjrthy of any position cf responsibility in any -walk of life. He should not and must not be left in a posi- ' !ion anyone. Mr. Walklate states, candidly je has no time for any such. Clause 5. —"SeeLEr that Mr L.yaagh.t'3 I'iestionable methods were the real cause of the strike of November, lOQti. and that t.if recent harassing of motorrrrer. :in-ii conductors by ticket inspectors has b*en: in obedience to his instructions, he -hcul.i !ji- removed frcrn direct contact with th«> i rii.-n. a* the L'nion is oi opinion that i there will be n-o peace or harmony in the service, so lons' as he is retained in his present position." Pile chief causes of complaint a'legec! against Mr Lysaght are the folkrwing:—| (ill That hf> was the instigator of the round robin, which led to the resignation of Heaney. 1 b) That he gave instructions to inspectors to conceal or disguise themselves in order to come utk* wares or unknown: upon conductor's or motormen. i< , ) That he gave instructions that men who had given notice of leaving j or who had been given notice to leave. | ?hould b<? specially watched. I d! That he instructed inspectors to j T"t the assistance of their friends in j trapping the conductors. (pi Thdt In? altered or added to the j reports sent in by inspectors. , < i f I That he sh-ould not give a fair i h«arin<r to those who were reported at the head office. (£l That he stated that conductors could not be honest men, and were thieves. j ilr. Lysaaht gives an absolute dsnial to each and. all of these charges, and j states that whatever he did was only! acting under instructions. H;? states t,hat he received the Toumi-robin" j from the late Mr. Eidd. and acted only , under hi 3 instructions. He parsed it on j to Inspector McElwain. who obtained I signatures, but who states that he did not know who drew up the document, jam [ am satisfied on the evidence of ilr. | ilartelli. and on the absurdity of a man- ' air*?r orating up a u round robin' , to cc presented to himself to dischargn an em- . . ployee, that Mr. Kidd wii not die par-1 ent of that paper, and further that ilr. Lvsasrht. if not the parent thereof, was tin; moving spirit therein. In references . CO charges (b), (cX and (d), there is; i zhf: direct and positive evidenci; of Campbell. Buckley. Cox. and Bassett. and in ■ part of Ash and Maekay, besides the ■ indirect evidence c" othera. Several ! witnesses have swo.n that they never ; sot such instructions, but two of these ! ire inspectors appointed at the ■ time of the late strike. and ■ hay» only had recent experience. Mills' case has special reference to cuj..-:ts (c). Mills asserts thac he put in j a second report. Rosaer and Carter are • snr-p that there was a second written > r"port. not now produced, with ad<iiti-ons to it in a writing ' not that of Mills. This ia ■leaied by Lrsajrht. There is. however, i a cvpevrritten report, signed by Lysaght. '„ containing statements said to have been made by" Mills, which are denied by ! Mills. Mr Hansen is certain that he ! never saw a second written report. In other parts ot the evidence there are I rtatements as to alterations being made ' in reports. Charge (f) ia made for the ma-it part hi general terms, by a few I of the witnesses, but few, if any, par- ' creuiars are given, except by Bassett. ' Cni a,nd Bassett swear positively ; o the Last oharge. In my opinion. Mr Lysaght. perhaps from an excess of zeal in his office, or from an over-confidence in the 3 powei-3 he thought iir?ested m him, issm'il instniccions, or made suggestions 3 and said things which, after due refl-ec--1 linn, he has found unwarranted. I am unable to cake his denial against the 8 direct evidence of many witnesses, 1 who I have no reason to believe " : arf other than credible. There is wifaI ■ out doubt a very strong current of disc I ccmtent against him on the part of the ] prm>k\j-ees, and I feel certain that he - ami they cannot work in accord. He '- must have been cognisant, at any rate n since "November, 1906, of the strong feeli inir aeainst him in reference to certain f practices which, went on under his manri I ogement. It is not sufficient for him to s plead' ignorance of th-em. He slionld a have known of tiiom. I consider that it c> would be in the interests of all parties — t the Company, the employees, and the ■> puWic—thai Mr Lysaght should be g+ven II .>. position that will remove him from (> : direct contact with the men. p ' (TLiuse 6—"That the employees of the t ; company shall not be asked to work i. with any -'blacklegs."' who went back to y work during the last strike."' [■ j There is evidently a strong feeling s amonast the employees against resum«E i ing work with the two men who refused :r j to go out. I consider that these two is ! men were entitled to their own opinion i-1 as to striking or not. and I do not think ;- j it fair or just that they should be punh i ished for having the courage of their a opinions. I cannot therefore agree n with the denmiid contained in this daase.

A SEW QUESTION. 3£r Rosser asked -whether the recomaeridatiocs were to be taken in eonjtrnctirrn with, the present award of the Arbitration • Coart. seeing that the award 1 ran out on November Ist, or if it ran j side by side with, any award in opera- j tion. The President said the Arbitration : Court cad its even duties to perform, and the Board had its own. This dilute ! had been referred to the Board under ; six heads, and they had given an an- j swor upon th-ose h<jads. and. accord- ■ inff to thr; cnncltsions come at. that was in" force from the Ist September. 1908, and will remain in force until the 31-st | August, 1910. lir Pvosser said he notice that on eer- 1 tain points both parties had agreed, and. : he believed, would honestly endeavour to carry out the provisions of the finding of the Board, but no mention had been j made of any penalties if the provisions j wer* not carried ont. The President said he did not take into consideration any question of penalty. The Beard did not provide any penalty, except that the breaking of the , agreement -would be a aerioud tuing for either party. Mr Kosser said the Union felt the seriousness of the position, the jrravity of the position they had been in during the last few months, and he. for one. who could not claim to be inexperienced in these matters, had also felt the seriousness ana responsibility that h;vl rested upon his shoulder; as secretary of the orsanisation. and he wished to say that the thanks of the Union —nay. he worid =>ny the whole community—were due to the Board for the patience they had displayed in listeninpr to the evidence which had taken such a considerable time. Furthermore, the evidence was complicated, and there was do doubt the Board had had a very difficult task to disintegrate the mass of evidence brought forward by the Union and by the Company. He wished to convey to the Hoard the 3r-n.«p of appreciation that the Union had of the attention bestowed and patience displayed by the Board in this particular matter. He felt the position was not only a serious one. but a peculiar on- 3 , as it would form a precedent for all time. Mr Walklate sai<i he was not quite clear as to the dates. The recommendation came into operation on the Ist September, and would run until 31st October. 1!HO. He thought that any finding or decision was to form part of any Arfitranon Court award. If *". would it not mean that it wnold fall in automatically with the award they were now working under, and then would follow in the nest award? The President said the Board fixed the d'M'ision for two years. Mr Walklate said he was certainly under the hnprnsKion thai it would form Dart of the awardThe President: Oh. no: this is a thing distinct and apart from an award of the Arbitration Court. Mr Walklate: But if it was not in the agreement? The President: It would be absurd for as to go to all this trouble for it to jbe knocked on the head on the 31st October. Mr Walklate: Not necessarily. It I comes under the control of the Court, j then. T take it? I The President: T can only say. as I 1 aaid to ilr Rosser. take your own trerabj les where you like. We need not argue i about it. I Mr Walklate then thanked (she Board : for the manner in which they had heard ! the evidence, and the able manner in ! which the proceedings had been conducted. Mr Rosser expressed his sense of ap- ; preciation of the manner in which Mr j Walklate had conducted his case. He 1 realised that he had bee.n fair in a very I trying position, and a pleasing feature ■ was that no acrimony had been imparted to the discussion. The President, on behalf of the Board. j then thanked both the representatives of the Company and the Union for their ' appreciation. The ease had been *plendidlv conducted, and it was a matter for I congratulation that the crucial points I of the case should have been approached wHiumt any bitterness or snarling , at one another. "I have conducted .1 7T«H.t many civil cases." added Dγ 1 McArthnr, "where more bitter feeling was displayed.'' He also paid a high tribrrte tn the witnesses, T'lerp might have been a Htle timidity in one case. : b'lt he rhons+it the witnesses nni» and all gave their evidence in a fair md straightforward manner. "[ t—.l=l." !i» concluded, ''that hot.h the anil the I Company will bnrv the hritehr-r. shake J hand", and pro nn as if this had not j taken place at aIL"