Union to pay damages for illegal expulsion

Press, 26 December 1985, Page 3

Union to pay damages for illegal expulsion

A worker at the Fairton freezing works, near Ashburton, who was expelled from the Meat Workers’ Union after he objected to an illegal levy imposed to support members on strike at the Islington Works has been awarded more than $40,000 by Mr Justice Cook in a reserved judgment given in the High Court His Honour held that the union had no valid grounds for the expulsion of Joseph Robert John Horsburgh who was a janitor at Fairton when he was expelled from the union.

The award is the equivalent of the loss of three years wages amounting to $48,000 less $2490 earned by part-time employment and money received from the unemployment benefit. The claim against the union was heard early in October. Messrs D. I. Jones and P. A. Joseph appeared for Mr Horsburgh and Messrs B. McClelland Q. C. and S. L. Kaminski for the union.

Mr Horsburgh lost his job because his union ticket was taken from him after he objected to the $lO-a-week compulsory levy. Because no secret ballot was held before it was imposed the levy was ruled invalid.

Mr Justice Cook said that Mr Horsburgh was appointed a janitor at .the Fairton freezing works,

owned by the Canterbury Frozen Meat Company, in September, 1981. As the award contained an unqualified preference clause ne was required to be a member of the New Zealand Meat Workers Union.

Mr Horsburgh worked well but might have been unduly particular in relation to details and as a result raised the ire of some members of the union. Complaints were made about him and there was a definite animosity towards him. “While I am not satisfied that this had any real bearing on the decision made by the branch executive to expel him from the union, it was a background from which support for his retention of union membership was not likely to come,” his Honour said.

The real problem arose late in 1982. On November 2 a decision was made by the Canterbury branch that all meat workers should contribute $lO a week to the members at Islington who were on strike or were locked out. That move was subsequently adopted on November 19 by the national management committee of the union. At neither level was a compulsory levy sought. After the branch meeting, a Mr Pope, a delegate,

addressed a meeting of the sub-branch which was well attended. He told the members he wanted 100 per cent support for the proposal but the appeal remained voluntary. No resolution was put The first collection from members was to be on November 11. But before that there was an article in

the newspapers stating that a meeting of the Kaiapoi sub-branh had passed a resolution calling on members. to pay, and some of those at Fairton thought that they should also make the levy compulsory. At a meeting on November 10 a resolution “That we levy ourselves $lO per week and the proceeds to go to the Islington appeal” was declared to have been passed unanimously. Mr Horsburgh was not prepared to pay the levy. Intially he raised no question as to its legality but objected on principle. He told the delegate who approached him: “I don’t believe in supporting jokers who can go back to work and negotiate their problem.”

People at the works urged him to comply and his wife gave him $2O to make the first two weeks payment but he would make no further contributions.

The secretary made no secret of Mr Horsburgh’s refusal, details being given in a bulletin on the works notice board. It was said in evidence that some of the workers were “highly inflamed” because they had paid their dues and they considered that Mr Horsburgh should do the same. On November 26 the Fairton sub-branch executive purported to have expelled him from the union and the company was informed. Mr Horsburgh was told that because of his expulsion he was dismissed.

However, before that could take effect it was realised by the secretary that the sub-branch had acted beyond its powers, and a resolution was passed recommending that the branch executive expel him. The matter came before an executive meeting of the branch held on December 9 and 10. Mr Pope, who was a member of the executive, explained the case for exEulsion from the subranch’s view. Mr Horsburgh handed in a letter which was read to the meeting.

While containing a general protest against being coerced into making the payment, the only suggestion that the resolution was improperly carried was that “there is insufficient time

allowed for members to discuss and fully debate the real issue at stake.” Mr Horsburgh was urged to change his attitude to the levy and was given until the following day to change his mind. He declined to pay and on December 10 a resolution was carried expelling him.

The matter was given substantial publicity in the “Ashburton Guardian” of December 22 under a headline: “Sacked Worker Accuses Union of Blackmail.” The story said that the vote might have been in contravention of section 182 of the Industrial Relations Act The following day the “Guardian” carried an

article outling the union’s response. It stated that Mr Horsburgh could appeal against the expulsion under the rules of the union. -

Possibly there was a right of appeal but it did not appear to be in the copy of the rules put before the Court.

In 1983 Mr Horsburgh made a complaint to the Human Rights Commission that the motion passing the levy was not unaminous and that a secret ballot was not conducted. The commission concluded that the complaint had substance and told Mr Horsburgh that it was taking the matter up with the branch of the union and was willing to conduct conciliation proceedings. Nothing seemed to come of that.

A writ was issued by Mr Horsburgh in July, 1984, which alleged that the levy was illegal on the grounds that it breached the Economic Stabilisation Regulations and that it was contrary to section 182 of the Industrial Relations Act. In an amended statement of claim it was also alleged that the resolution did not comply with rule 30 of the union in that it was not decided by a show of hands or by secret ballot and was therefore unlawful. His Honour referred to the act which stated that no union member had to pay a levy in excess of $lO a year unless it was approved by a secret ballot.

It was held by Mr Justice Cook that the levy was illegal and that the branch had no valid grounds for the expulsion of Mr Horsburgh from the union.

“The union has expelled Mr Horsburgh without legal grounds and the question for determination must be the consequences which flow from that,” his Honour said.

Mr Horsburgh claimed loss under various headings because the union had used an illegal expulsion to pro-

cure his dismissal. He must be entitled to some remedy. Damages for loss of income from June 30, 1984, and $927 out-of-pocket expenses were claimed as well as general damages for “less of amenity, mental distress” and similar matters.

It was submitted for the union that Mr Horsburgh could have avoided expulsion by making payment of the levy under protest and then invoked the provisions of the Industrial Relations Act to the validity of the resolution and claim his payments back. •

“I cannot but think that the branch executive was aware that the resolution was illegal and had been passed in a manner not in accordance with the law.

“Initially the levy was to be voluntary and would have continued to be so had not some workers urged it be by resolution and thus imposed an obligation upon meembers to pay,” said Mr Justice Cook.

A proper award would be three years earnings at Fairton in the position which he held at the time of his expulsion. His Honour fixed the gross amount at $48,000 and held that tax on the earnings he would have received had he remained employed was not ■to be taken into account.

Throughout the latter part of the time since his dismissal Mr Horsburgh had been in receipt of an unemployment benefit which mitigated his loss of earnings and should be deducted from the damages which otherwise would have been awarded for loss of earnings.

Mr Horsburgh had complained that he had been unable to undertake social and sporting activities. He could not attend reunions and national bowling tournaments.

“These seem to" be “an ordinary consequence of being unemployed and no authority has been put before me >to indicate that additional damages should be awarded,” said his Honour.

Mr Justice Cook found that the branch executive’s expulsion of Mr Horsburgh from the union was illegal; that he was entitled to damages of $48,000 reduced by $2490 for part-time employment and payment of the unemployment benefit; and to out-of-pocket expenses of $927. Mr Horsburgh was also awarded costs.