Bias claim against conciliator rejected

Press, 9 February 1982, Page 4

Bias claim against conciliator rejected

A claim of bias against a conciliator because he held shares in a company involved in an industrial dispute over the dismissal of a worker, has been rejected by Mr Justice Hardie Boys in a reserved decision given in the High Court. Francis John Simmonds, an unemployed process worker, sought' a review of a decision of Leonard Fortune, an industrial conciliator, in which he held that Mr Simmonds's dismissal by P.D.L. Industries. Ltd. was justified because he had improperly absented himself from work. At the time of his dismissal Mr Simmonds was a factory delegate of the Canterbury branch of the New Zea'land Engineering Union and the workers went on strike.

The application was heard in the High Court on September 14, 1981, when Mr R. J. Murfitt appeared for Mr Simmonds; Mr . N, W. Williamson for Mr Fortune, the first respondent; Mr P. Mortlock for P.D.L. Industries, Ltd, the second respondent: and Mr B. S. Johns for the Canterbury branch of the Engineering Union, the third respondent. In his judgment his Honour said that Mr Simmonds had been employed since early

1976 by P.D.L. Industries, Ltd. He was a member of the Engineers' Union and was elected its factory delegate. On July 4. 1979, he was dismissed on a week’s notice. The reason given suggested to him that he was being penalised for his attention to union affairs. As a consequence all members of the union and also of the Packers’ Union employed at the factory stopped work.

The Minister of Labour called a compulsory conference and Mr Fortune was appointed its chairman. His recommendation that. the matter be referred to the Arbitration Court was not accepted. Work resumed on July 16 and the conference was held on September 3. Because the parties could not reach agreement Mr Fortune, as chairman, exercised his powers to make a decision settling the dispute. It was ruled by Mr Fortune that Mr Simmonds had not been dismissed because of his union activities but for the reason given by his employer that he had improperly absented himself from work. Mr Fortune directed that the employer make Mr Simmonds a payment of $436.

In December. 1979, Mr

Simmonds filed an application in the Supreme Court for a review of Mr Fortune’s decision under the Judicature Amendment Act.

The basis of the application was that Mr Fortune was a shareholder in P.D.L. Holdings, Ltd, a public company of which P.D.L. Industries was a fully owned subsidiary and because he had a financial interest in the dispute under his adjudication which disqualified him on the ground of bias. In December, 1973, Mr Fortune acquired 2800 50cent shares in P.D.L. Holdings which had a capital of $4 million. The fact that Mr Fortune owned the shares, but not the size of the holding, was known to a number of persons in the trade union movement, said his Honour. Mr W. R. Cameron, the president of the Canterbury Trades Council, learned of it from a union secretary who had been at the P.D.L. Christmas function in 1973 and had heard the managing director mention it in a speech of welcome. Mr Simmonds was not at the function.

Mr Cameron told Mr Fortune that he thought it was unwise for a union secretary, which Mr Fortune was at the

time, to hold shares. Over the following years Mr Cameron was under the impression that Mr Fortune had retained the shares.

The present secretary of the Canterbury branch of the union. Mr R. J. Todd, knew of Mr Fortune’s shareholding as Mr Fortune had told him about it many years ago. Mr Todd had shares in the company, one of his reasons being that he had access to company records. At the conference on September 3, 1979, Mr Fortune proceeded on the basis that all involved were aware of his shareholding in P.D.L. He saw no reason to decline appointment as chairman or to openly declare his shareholding any more than he felt constrained by the office he had previously held in the union because it was a matter of common knowledge. No objection was taken by any of those involved at any sta’ge. Both Mr Todd and Mr Cameron affirmed that in their view Mr Fortune’s shareholding would not in any way have affected his impartiality or influenced his decision so they made no objection to his appointment. P.D.L. obviously shared their confidence in Mr Fortune. In evidence Mr Simmonds asserted that he did not

know of Mr Fortune’s shareholding until after the conclusion of the conference, although he became aware of it prior to the publication of the decision.

Following the completion of the conference on September 3, an anonymous person circulated photocopies of a document giving evidence of Mr Fortune's shareholding. It was stated by Mr Simmonds that he received one of the documents after the decision was released and that it was only then that he realised the true position and decided to take action. The release of the decision was delayed so that any objections could be received. No instructions were received by Mr Cameron to lodge an objection, and so in due course the decision was released, his Honour said. Before the decision was released Mr Fortune had been informed that Mr Simmonds was aware of the shareholding and that if the decision was unfavourable to him, Mr Simmons would lodge an objection to the Minister on the grounds of lack of impartiality. Mr Fortune had replied that he would not be blackmailed.

Il emerged very clearly that there was strong opposition among trade union

members to officials holding shares in companies which employed union members. “It is obviously something to which anyone acting in a mediatory or adjudicative role in industrial matters ought to be sensitive. By that I do not intend any criticism of Mr Fortune,"’ said his Honour.

“Apart from Mr Sim-

monds, all witnesses spoke in the highest terms of Mr Fortune's integrity and his impartiality. They saw no reason to' think that his shareholding would in any way have affected his objectivity. Neither have I,"

No witnesses, apart from Mr Simmonds, had criticised Mr Fortune's decision. Mr Simmonds's attitude demonstrated very clearly the need to ensure not only that a just result was achieved in every dispute, but also that the appearance of justice being done was unblemished. His Honour held that Mr Simmonds had established no grounds for his application, for a review of Mr Fortune's decision.