THE RECENT TRAMWAY STRIKE.

New Zealand Herald, Volume XLIV, Issue 13488, 15 May 1907, Page 8

THE RECENT TRAMWAY STRIKE.

DECISION OF THE COURT.

TRAMWAY COMPANY FINED £5.

DISMISSALS NOT JUSTIFIED.

At the Arbitration Court yesterday afternoon judgments was given in the case against the Auckland Electric Tramways Company, Ltd., in which the company was, charged with having committed a breach of clause 6 of the award mad© by the Arbitration ; Court in !May;,;i9o4,;by, dismissing without good cause" 10 motormen and four conductors without a week's ' notice of dismissal or resignation /being given. ■ ' The : President r summarised the .evidence,, and quoted communications between the managing director of the, Tramways Company and Mr. A. Rosser, secretary of > the union. The Court; thought that/ it was the; duty of both motormen , and; conductors to teach learners when required to do so by' the company, and that the men were ''not' justified in refusing. I At the same time, they- thought that in the circumstances the. men honestly believed that as a matter of strict duty they were not ..bound to teach learners. They bad not been told of .the; duty when they were engaged; -it was" not' imposed specifically on ; "them by any of the company's rules, and .regulations, and the, instructing of learners was! only referred :to' incidentally on page 10 of -the ; book of rules and regulations; then force.' After writing his letter of November 14 Mr. Hansen gave: instructions to Mr. Carey, \ the company'selectrical engineer, to see whether the men would carry out their duty with regard/toteaching learners. In pursuance of these instructions ■ Mr. Carey.: interviewed a- number of motormen ' and ! conductors : on; the: willing to instruct a * learner or not, , and -. if the, answer was regarded ;as unsatisfactory, he was dismissed on the spot. Two ;of the motormen ' who.'; wero ; thus interviewed had each of them a learner on ; the car with him.; The Court , quoted'the evidence as to what took place at the .interviews. ~ Motorman Haslam.said: "I was dismissed about twenty-five minutes to / four p.m. on the 14th. ; Mr. Carey said to.. me, 'By-refusing duty you are breaking the company's rules and regulations.' . I said, 'Yes.' Ho said, 'Would you take a learner on with ; you?' I said, 'I have a learner on with mc.' i He. said, 'Apart from that, would you take another!learner- right now?' I replied, 'No. Under ordinary circumstances 1 might do, so, but under present circumstances certainly not.' Mr. Carey replied, 'I .am sorry; -> I must ; dismiss you.'" Motorman Houston . said: "Mr. I Carey mob me at tiro reservoir about;. half-past four on the 14th. Ho said, ' Young man,:: are you aware of the ', rules and regulations j under which/ you work:;for this company?';! My , learner was on the ear at tho time; he I had been driving,': I 'said I thought: I : was.'ji He ;./.-; asked :, hie was.■' I willing 1 to .-, take \ a \\ learner. I replied that I; had a learner .with'; me at -the: present 'time.' Carey, .'.said,; ' That's no answer to my. question. , If I take the present iearnor. away .will you .take, on another?' I replied I would not under , present conditions. "■' He said, ': 'Have-you. considered this matter?' ■/, I replied -J that I>! had. After further . conversation he, said,'! 'You 'i will, have to, consider .yourself dis-'! charged.' i ~".>-' i

•'NO WILFUL DISOBEDIENCE.*;/ , Mr. Cotter had contended that .the com'; pany had good, cau^-fof' dismissing these- ■ men' because:, they Had; been guilty /of wilful; "disobedience of a lawful order. 1 v The Court thought that except: in' one case there was: •no order addressed to any of the'men who ; wore; dismissed. ■■; It: was ■: not; necessary .: that ■ an 'order;should bo expressed in the _ terms .'■ of■ a command. It might be ; given; in the. form of a request, or a question, ' but it must amount to ; a direction to ..the; servant,to;, dp; or abstain , from doing, some particular ■ act. It was . clear that nothing of ; that kind was,' given. ■It was really ' an' examination of. the; men to ascertain what their views were with . regard to the teaching" of learners.! Mr. Carey did not in any ease li&s&> a learner,:. with him to put ;on : any ; of //the '■':'. oars, 'nor 5 ■■'were.' the , men directed or requested •; to /take ,| learners on the cars either then,or: at some i appointed .time -in the future. That it was I nothing J more T, ; " than ai. catechising Jof .the. ! rr^pn/was shown ; by, the ■ fact that;.the;tjues- ! ; tions put :by Mr. % Oarey; were asked of •, two • j motormen who at that very timo ; were, en- "•; 1 gaged in teaching learners. ': If rariythin'gHri I the ..nature of an order could be found in j . tho riconversation between Mr. : Carey an i .: I Uiomon there was no wilful disobedience"; <of such orders, because the men honestly oelio.ved that they were not bound 'as'.part .< ;of their dutios to- teach learners. .That the disobedience must be wilful was clear from the judgment of Baron Parke in Turner 'v. Mason (14. M. and W., 112, ; 116), and as , pointed out .bv the Chief Justice ! in Wilson I v. Kisri (18, N.Z.L.R., 807, 815) it was . riot j every act of disobedience by a servant that gives a ; master a, right to disohargo him. I The - Court t held that tho company" had failed to establish wilful disobedience of any lawful order by any of the men who were dismissed, except Boyco. .-/■ He * was a conductor and was asked to take ,a \ car from which another : <- conductor. had been.-dis-charged.- It was" 1 clearly • his • duty to. take the car, > and his refusal to do so justified his dismissal. His oase. gave point to the distinction between a ; question which -was intended to be a command and one which was put merely for the purpose of obtaining information. /Mr. Cotter • had also ! contended tho resolution of Novem- \ ber,' 13 : ("That until this • dispute j is settled, the men- will refuse to : teach any more learners,.' it is clearly not \ part of our duties"), which'was forwarded to the company by Mr. . Roseer, justified the dismissal because it amounted to insubordination and to conduct calculated seriously j to > injure 1 the company's business. " The j • question of .; what ":, misconduct .'■; would justify the dismissal, of a servant was considered by the Privy Council in the recent case of Cloustoii and Co., Ltd. v. Coxry (1906, A-.0. 122); and the following is a passage from the judgment in that case: "There is no fixed j rule of law ' defining the degree of miscon- | duct which will justify dismissal. Of course there may be misconduct in a servant which will. not justify the ; determination of ; the contract of service by one of the parties to \ it against the will of the other. ;On the ; other hand misconduct inconsistent with the fulfilment of the express or implied i conditions of service will justify dismissal." ;