A HEW TRIBUNAL

Dominion, Volume 4, Issue 1145, 5 June 1911, Page 6

A HEW TRIBUNAL

I 'FOR TRAM HANDS. S. ■■■■-.■ _ •

f DISMISSALS AND WHEREFORE?

i FIRST TWO APPEALS,

SOME'INTERESTING PASSAGES,

The first sitting of tho newly-appointed Tramway Appeal Board was held at ■the Magistrate's Court on Saturday. Dr. AM'Arthur, S.M., presided, and thercwero with him Mr. .1. R.i Palmer, Town' Clerk (representing \\\Q City Corporation.-Tram-ways) and Air. D, Dalton (representing the ■employees). . , ~ i : Tho first case dealt with was the- appeal of John Michael Kicrmandei-against us dismissal on May 8 last. Mr. E. Ci. Jellicoe appeared for appellant, and the City Solicitor (Mr.. J. O'Shea) for tho respondent corporation- .. . In opening the case, Mr. Jellicoe said •Kierniandcr had been hi the tramway service for about four-and a half years. iNo •cause had been assigned for his dismissal, !but tho ostensible cause appeared to be ' >that ho had received a faro for which a I ticket had not been issued. . Ho was a 'married man of good character, but it was now suggested that he was dishonest, lie I had come under tho ban of his employers '.representatives during the past eighteen 'months for ' some unaccountable reason, and, on inoro than one occasion; had been .reported as ■ being physical y unlit tor ■work. On each .occasion, however, he ■had secured a medical certificate showing (that he was.fit, and'had accordingly resumed" work. 'Then, more recenllj;, ho had 'been presumptuous enough to think tnat ■ he' was entitled to promotion, and hi 3 cle.mand' for a better position had been supW.ed by the union. From that time the employers' representatives had_ sought to bring about .his dismiss., , and this dislinissal was merely an attempt to deleat Ibis demand for promotion. Misconduct, .yilful disobedience, or wilful neglect were the only offences for which an employee .Uii-lit be dismissed. An 'error of judgment, or an isolated case of carehossness ■would not suffice, and, to support his ' contention, counsel quoted from a case, recently dealt with by the Privy. Council. , Mr O'Shea: We accept the. principles ilaid down in that judgment. Mr. Jellicoe: I'm glad to hear that.the. Corporation . of- Wellington- accepts he Titlings of tho Privy Council, for .it is the ■highest tribunal one can appeal to. (Laugii- . ter.) The Conductor and His Tickets. John Michael Kirrmaniler, ' appellant, ,tafed on oath that he had been in Wl-lin-'ton for six or seven years, and had join d the tramway 1907. About eighteen mon lis. ago he had .been reported for n OV SIC «,Lr tn 'but had obtained a medical certificate to +ho contrary, and had continued work. The same thing happened on another occasion. About three monhs ago ho wished to be promoted to the position of nrst--elass conductor,'and had.placed his position before the head office. Receiving no satisfaction there, he: had referred the case to the union, who supported his claim. He was last employed on the trams on May 8, on tho Miramar-Seatouu run On the previous day ho had been on tho.Karori section.. After dark, on one ■trip from Karori to Newtown, there was a heavy load of passengers,, and-he was kept brisr. giving change to passengers, a nunibsr of whom had oven tendered gold. He had not completed taking :fares when the ear came to a stop at the end of a section' on'thy city side of the tunnel. Two men there alighted, ancVwitncss collected 2d. for 'their fares. His block or tickets for that section had run out, ami he bad consequently to go to the •box at the end of the car and get a new block for that section. The two men had then disappeared, and appellant tore off two tickets for their fares, .and threw them away. He made the trip to Newtown, and madoup.his ticket bill correctly. ' On "the way back from Newtown to Karori, an inspector boavded tho car and appellant told him of the occurrence with the two men and their fares. Tho inspector said;. "I know one of fflenu I wa£ there, and could have put my baitd on vou at the time." Tho inspector then looked-over tho ticket bill, and remarked that evervthing wns'salisfactory;' 'On tho .following\lay, apnellant received a letter notifying "him 'not' I 'to resume'duty; until after an inquiry had been made into a report that ho had failed' to issue two tickets to passengers. Ho attended the inquiry beforo Mr. Richardson and Mr. Cnble.'an'd the latter:directed him (appellant) to hand in his uniform. Acting on advice'from his solicitor,' he 'asked Mr. Eichai;dson to assign a cause for his dismissal, but that .request had not'been complied, with. ' To Mr! O'Shea: He had,been working on the wharf when appointed to tho tramway service. . Reported Previously.

Mr. O'Shea was.proceeding .to question ■appellant as to. liis' character when employed on tho wharf, but Dr. M'Arthnr .considered that that ; could not to taken [into account in this case." Assuming that !he had made a lapse, was it to Tie brought tip now. aftei-- so- many years? : • Continuing, appellant admitted that he ,had previously been reported for an ocujuirence- on-November .13, 1909. Ho 'thought that his explanation to Mr. .KichaTdsoii 'had. been accepted ,as satisfactory, but,; a few days later, he had been told to report to Mr. Cable, who told .him that he was lucky not to have been *put out of the job. He admitted that, ,on anothev. occasion, he-had tho ticket ibill in his -pocket, instead of. in ' tho | f'rack,;and that, at the time, he had no. 1 green tickets entered up. In these circumstances, it would be possiblo for a /dishonest man' to sell tickets that, had ibeen picked iip off tho ear, and, when an ['inspector boarded.a. car, to enter up,a '[■starting number then. On another occa--sion he admitted having been reported for delaying to collect fares until tho lend of a section, and ho had also been * reported by Mr. Cable for riding in front of Jiis car,from Kent Terrace to the Town 'Hall. . , .•'.'"■. ■;■'.• . Mr. O'Shea cross-examined appellant nt length as to the crowd on the Karori ■ car on May 7, and tho reasou why appellant had noticed- that his block of tickets ihad run. out on tho section .from tho >cometery to ; the, tunnel. '-.'.;. ' Couldn't you have issued white penny tickets?— "ho". Would it have made any difference to the takings?—"lt would have, ' mado a great difference- to the returns of people travelling on the different sections/' Mr. -.Tellicoe:—l want tho Court to observe that the propriety of such a course is suggested by the cify solicitor. Alexander Sutherland, secretary of tho Tramways Union, deposed to interviwing Mr. Richardson, tho tramways engineer, in ■reference to appellant's promotion. Mr. ; Richardson referred tn appllant being 'physically unfit, and of an irritable disposition. Witness pointed out that there : w . er( i ine'l'cal certificates that dispone! ■of the.first-objection,- and no evidence 'to support the second. At a. subsequent interview, Mr. Richardson admitvoo. mat anpcllant was eligible for promotion. Witness was shown aimellant's record at tne time. Mr. O'Shea. was asking a question as tp what course a conductor would adopt .If ho wore dishonest, when Mr. Jellicoe objected, and the chairman iiohold his objection,, remarking that the'tramcars in Wellington were disgracefully crowded at times, and it mado one wonder how the conductor could get through his work. A Lively Interlude, Mr. O'Shea, in outlining the for the employers, stated that appellant had (riven general dissatisfaction, and had t been reprimanded on several occasions fallowing people to.over-ride, for not booking up his tickets, and for not collecting fares until tho end of the section. If conductors were allowed to accept money and then say that they threw the tickets away tho corporation would hnvo no control over them. Stuart Richardson, Tramways' Engineer, stated that appellant's career as a conductor had not been satisfactory. Mr. O'Shea was proceeding to lead evidence as to appellant's whole career as a .conductor, when Mr. Jellicoe objected. . The Chairman thereupon remarked that !i? thought that tho question to bo decided by the board was whether appellant stole 2d. on. tho particular occasion .referred to. Mr. O'Shea pointed out that tho man had been dismissed because he was generally unsuitable. The Chairman remarked that he had had experience on the Railway Appeal Board for some years now, and this sort r.f thing had always been objected to as svidehce." Continuing his evidence, witness went ~m to say. that appellant's, explanation

of the Karori affair had not been satisfactory; neither-had'his' general career as a conductor. That was why ho had been dismissed. Mr. O'Shca was leading further evidence as to Mr. Rieharusoivfs opinion, when Mr. Jellicoo again objected. The witness, ho said, could. think what he liked, but he would have-to go ; Somewhere else to think. He must not think in the witness-box. • ;. ■ . '.. ~ Mr. O'Shea (in a loud voice): Ho shall think in the witness-box.. (Laughter.) This was a new law of evidence, continued Air. O'Shea, brought out by. Mr. Jellicoe- from England. . . , Mr. Jellicoe retorted lliat.it was not new at all, and the witness was- not going to think ill the witness-box-while he v lli. 'Jellicoe) was there. . ~ ' The Chairman ruled that the witness s opinions .were not evidence. ..'.■,, t In cross-examination witness said that he did not believe appellant a story as, to the Karori affair, but admitted that it was possible that the story was true. Mr. Jellicoe: Now tell us on your oath, was he dismissed for stealing twopence ?- "very well then, what dismissed for'-"Because his conduct:was: generally unsatisfactory." , , That won't satisfy me. I'm a haid man to satisfy'you know. Can you name any act that would justify you "i.«»» 5 himP-Witness referred to the incident ot November 13. IUUU. ~ Is that the only case you can mention now of your own knowledge ?-Witn«*. said it was the only one he could mention without referring to Hip i>lc. After further questions, Mr. Jellicoe asked: "Now you've told us he wanit dismissed for stealing 2d., what was ho dismissed for?"-"On account ot his previous unsatisfactory behaviour. Then why didn't' you dismiss: him bc-foro?-"Because it was not sufficient to justify a dismissal." Mr. Jellicoe: 'Thank you. George Fuller, inspector, who had been on a cur which crossed appellant s car on the Karori Road, and who subsequently made the report of the affair relating to the non-issue of tickets to two passengers also gave evidence. Witness considered that the explanation which Kiernander had tendered to him was unsatisfactory, and had said to him: "Thats a verj "Cross-examined by Mr. Jellicoe witness stated that he considered, that he had a i good job as inspector. Mr Jellicoe: And 1 suppose you make a largo number of reports every day. "It all depends what you call a largo number." , , , „ v Mr. Jellicoe: You do yourdutj »- les. You appear to thinkl do it too well. I, Mr. Jellicoe: 1 am sure Ol it. Walter John Duncan, residing at iNortliland, was a passenger on a Karon cat on which appellant was a conductor on May 7. When he left the car ho gave the conductor a two-shilling piece as up til then, the -conductor had .no called toi the fares. Witness received Is. lOci. change, but no ticket. . A companion of the previous witness also gave evidence, and the case conCl T)r e M'.Vrthur said that the Court would come to its decision in due course, and report to the Minister. . . THE.SECOND CASE. BOARD'S IMPORTANT RULING. ' The appellant in the next case was John Joseph Ward, ex-conductor He iasrepr esented by Mr E J. I.tzgibbon. Mr. O'Shea stated that the appellant entered the service on February i.,, IJII. In seven instances, extending from March 8, and all closely related, ho had not satisfied the Dcuartment, and the conclusion come to on May 3, as the result of theso seven matters, was that he w'as not a fit roan.to.have in tho service. He was. accordingly, dismissed on May ill. The Magistrate: That is three months. ; .It is not like going back, as you wero trying to do in the other case this morn- ■&. O'Shea: I admit that the case was not put before the board in the proper wav-this morning. Mr. Fitzgibbon submitted that the appellant was entitled to know exactly on what-grounds ho had been dismissed, jis the onus was imon him to nrovo his case ,pa appeal. If the Department .refused to give a man any definite reason for dismissing him, could they compel him to 'answer every charge' that they had on their ; files against him:' That would be a most unjust thing. Ho had his Worship's report on the case at Auckland, in which certain men had been dismissed from tho tramway service, and tho wanagemsnt had refused to givo them any reason. Right to Know Why Dismissed. .The Magistrate: And what did I say? Mr. Fitzgibbon: That they had a right to know why they were dismissed. . ■ Tho Magistrate: And there was a long discussion in tho newspapers after my back was turned. I'm not speaking of what tho newspapers said themselves,- but of the : correspondence they printed. : Miv Fitzgibbon, proceeding, attributed tho setting up o£ the Appeal Boards under the new. Traniways Act to tho agitation which followed the Auckland incident ho had referred to. Even now, however, the difficulty was not over, for when a man asked those above 'him why he wa-, .dismissed, he got nothing but a brief certificate showing his period .of service. Counsel read the certificate given to liis client. The-Magistrate:" That is the old Auclc land one. Mr. Fitzgibbon said it was in the sarje form; The appellant had to prove his case..-against dismissal before he had been allowed to know on what grounds he had been dismissed. The onlv ground mentioned when he went to Mr Cable was, "We. havo found you generally unsatisfactory." Then he went to Mr Richardson, and received only the little bit of paper already produced Counsel submitted that if there was any charge .against his client which had not been brought to his notice or to the notice of the union, it should not be treated by the.board as a ground for discharge. Mr. O'Shea said there were several incidents which had led to the discharge of the.appellant. - Two occurred soon after he started, and no action was taken in regard to them. Then, on April 3, he started with the numbers not entered u" and was cautioned by an inspector. He did the same thing again on April 7 and was "severely cautioned,", and again' on April 18, as a result; of which lie was again severely cautioned and told that if it happened a third time, ho would be suspended. On May 3, he permitted a passenger to travel from Island Bay to tho Tramway Hotel Without paying a fare. He was then informed that he was considered unfit for the work and was instructed to hand in his uniform. If Mr. Fitzgibbon wanted to go into Mr. Aitken's affair, ho could do so. Mr. Fitzgibbon: If Mr. Aitken is' brought here, wo shall havo to bring other people whose evidenco Mr. Cable refused to take against Mr. Aitken's. The magistrate said that Mr. Palmer had just pointed out to him that the board should know whether the appellant had been informed in writing of the complaints against' him mentioned by Mr. O'Shea. Mr. Palmer had said that such complaints should always be in writing. Mr. O'Shea said tho man had been spoken to by Mr. Cable and cautioned by Mr. James on several occasions, but (here did not appear to have been anything in writing given to him, Tho men could see the record. Mr. Fitzgibbon said the secretary of the union had applied repeatedly to seo the records and had been refused and told that his proper courso was to go t'o (he j Appeal Board. The magistrate said that whenever an employee was called before an executive officer, ho should, have a memorandum showing why, and before a dismissal was recorded against him,- ho should, have a distinct record of the grounds of dismissal. We three members of, the board I do not approve of tho way it was done. Ho was just dismissed and has come hero to appeal. Adjourned. Mr. Fitzgibbon said that his client had had no opportunity of getting evidence on the charges against.him, Thero were four motormon ready to Say that ho was one of the best conductors they had ever had, allowing for tho fact that he was a new chum. The magistrate said the board was of opinion that' tho case should be adjourned until the direct charges on which tho appellant was dismissed had been placed before him. Then, wheu the appeal against those charges was begun, there should bo no further opening up of tho case. The charges should be confined to those of which notice was given. . Mr. O'Shea promised to give appellant the particulars to-day. , The board adjourned until 3 p.m. on Wednesday nest, \