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The Pamphlet Collection of Sir Robert Stout: Volume 81

The Board's Finding. — Victory for the Men

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The Board's Finding.

Victory for the Men.

Under the Industrial Conciliation and Arbitration Act and its amendments, before a Special Board of Conciliators of the Northern Industrial District, in the matter of an industrial dispute between the Auckland Electric Tramways Industrial Union of Workers, hereinafter called the Union, and the Auckland Electric Tramways Company, Limited, hereinafter called the employer, and of an agreement made between the Union and the employer dated 25th May, 1908.

Judgment in this case was given at o'clock on Friday, July 24th.

The President of the Board. Dr. McArthur, S. M., in delivering the decision of the Board, said:

"The Special Board of Conciliators, having taken into consideration the matter of the abovementioned dispute, and having heard the Union by its representatives duly appointed, and having also heard the employer by its representatives duly appointed, and having also heard the witnesses culled and examined and cross-examined by and on behalf of the said parties respectively, do hereby' recommend:

"That as between the Union and the members thereof and the employer, and under the abovementioned agreement, the terms, conditions and provisions set out in the schedule hereto, and of this recommendation shall be binding upon the Union and upon every member thereof, and upon the employer, and that the said terms, conditions, and provisions shall be deemed to be, and they are hereby incorporated in and declared to form part of this recommendation; and further, that the Union and every member thereof, and the employer, shall respectively do, observe, and perform every matter and thing by this recommendation, and by the said terms, conditions, and provisions respectively require to be done, observed and performed, and shall not do anything in contravention of this recommendation or of the said terms, conditions and provisions, but shall in all respects abide by and perform the same. And the Board doth further direct that this recommendation shall take effect from the first day of September, 1908, and shall continue in force until the 31st day of August, 1910.


"1.—Tliat Conductor Herdson be reinstated in his position.
"2.—That the General Manager shall give a written guarantee that in future any employee being dismissed from the service shall be given a valid reason for his dismissal.
"3.—That any employee being sent to the head office for an alleged fault shall see all reports made against him and have the right to call evidence on his behalf.page 124
"4.—That any inspector proved guilty of making mis-statements or false reports against employees shall be instantly dismissed.
"5.—Seeing; that Mr. Lysaght's questionable methods were the real cause of the strike of November, 1906, and that the recent harassing of motormen and conductors by ticket inspectors has been in obedience to his instructions, he shall be removed from direct contact with the men.
"6.—The Board directs that the foregoing recommendations shall take effect from the first day of September, 1908, and shall continue in force until the 31st day of August, 1910.

A. McArthur,


The President went on to say as follows:—Although the evidence was necessarily very voluminous, the examination of witnesses was conducted in a friendly spirit. All the meetings of the Board both in camera and in public, have been fully attended by the members. It may be well to observe that in all matters coming before the Board the decision of the Board shall be determined by a majority of the votes of the members present, exclusive of the Chairman, except in the case of an equality of such votes, in which case the Chairman shall have the casting vote.

Two clauses contained in an amended application by the Union were objected to by the Company. The objection was upheld by me, and the Union thereupon withdrew them. The number of clauses left was six and as the parties were unable to agree upon any one of these. I in all cases called upon to exercise my casting vote. As then, it evident that I must have been the deciding element in each clause, I think it is my duty to explain my views on each clause as briefly as I can with some degree of fairness.

Clause I: "That Conductor Herdson be reinstated in his position, or given a satisfactory reason for his dismissal."

There is a direct conflict of evidence as to what took place between the inspector and the conductor. The inspector's report was taken as correct, and the conductor was not called on for his defence. In my opinion, it was a case that should have been carefully the investigated. If the inspector had been proved to be correct, adequate punishment would have had a salutary effect on those inclined to follow in the path of the offender; but the men would have felt that the culprit had not been condemned without a hearing. If the conductor's version had been proved correct, and the inspector dealt with, confidence would have been instilled in the men. One cannot overlook the tone of the inspector's report, which stated: "I found two girls on car." As a fact, one was a married woman, and the other from 23 to 25 years old. To my mind, there was a covert insinuation in the term "two girls." The inspector found out his error, but did not think it worth while to correct it. The manager distinguishes between "to dismiss" and "to discharge," but I do not agree with him in the distinction, for reasons which I shall give presently. The award of the Court under which the parties are working at present does not use the word "discharge," but only the general word "dismiss," which, in my opinion, includes "discharge." Moreover, no reason was given for Herdson's dismissal or discharge, whichever you please to call it, until the strike was in progress. Viewing the case in page 125 the light of the evidence, Herdson was not given a satisfactory reason for his dismissal. I consider that he should have been allowed to call evidence, and that the result should have followed accordingly. It would be difficult to reopen the case now, and, all things considered, it appears to me best to reinstate Herdson, and thus restore confidence in the employees.

Clause 2: "The General Manager shall give a written guarantee that in future any employee being dismissed from the service shall be given a valid reason for his dismissal."

It has been attempted to draw a distinction between the words "dismiss" and "discharge." In general usage the terms are synonymous. In the strict sense, "dismiss" is the general term, and means "to send away"; while "discharge" is a mode of dismissal and means "to relieve of a charge or duty." "Dismiss" is applicable to persons of all grades, whilst "discharge" is for the most part confined to those in subordinate positions, "Dismiss" usually implies disgrace; "discharge" not necessarily so. To dismiss or 'discharge a man from a public service, whether carried on by a public body or a private company, while that service is increasing, must imply that there is some fault to be found with the man either in his conduct or in his work. Hence, in my opinion, in such a service a man dismissed or discharged is entitled to receive a valid reason for his dismissal or discharge, and the more so if he be given a week's pay in lieu of notice, as this, to my mind, implies an utter want of confidence in him. Closely allied to this subject of dismissal or discharge is that of giving what is generally called a reference or a character. It is usual for employers such as the Company in the present dispute, to ask for certificates and testimonials from those who apply for employment. This assumes on the part of the proposing employer that former employers of the applicant would, had he been satisfactory, have given him testimonials. Is it then too much to expect from them that which they expect from others? The giving a character of a servant is one of the most ordinary circumstances which a member of society is called upon to make, even in his private capacity, and it is a duty of great importance to the interests of the public, especially when the employer is in a public or semi-public position. In respect of that duty a party offends grievously against the interests of the community in giving a good character where it is not deserved, or against justice and humanity in either wrongfully refusing to give a character or in wilfully misrepresenting one to the harm of the individual.

It is clear that in the absence of any specific agreement to that effect there is no legal obligation binding a person who has retained another as a servant to give that person any character at all on dismissal, and no action will lie against him for refusing to do so. But it is equally clear that a master is under a duty, whether it be called a moral duty or a duty to society, to give a character to a discharged servant. Conscientious communications are privileged, and the privilege is not allowed only for the benefit of the giver. It is of importance to the public that characters should be readily given. The person who applies for the character, and the person who is to take him are equally benefited. There is no class to whom it is of such vital importance that characters should be freely given as honest servants. A master is amply protected in the giving of a character. He has nothing to fear if he has acted uprightly. Where a master gives a character of a servant, unless the contrary be expressly proved, it will be presumed that the character was page 126 given without malice, and the servant to support an action must prove that the character was both falsely and maliciously given. Lord Ellenborough, in Hodgson v. Scarlett (1B and A240), observed: "In the case of master and servant, the convenience of mankind requires that what is said in fair communication between man and man shall be privileged if made bona fide and without malice. If, however, the party giving the character knows what he says to be unture, that may deprive him of the protection which the law throws around such communications."

Bullen, J., in Weatherston v. Hawkins (1 T. R. 110) said: "In actions of this kind, unless the plaintiff can prove the words to be malicious as well as false, they are not actionable."

In Rogers v. Clifton (3B and p587), Lord Alverstone, C. J., said: "If it were to be understood that whenever a master gives a bad character to a servant who has quitted his service, he may be forced by the servant in justification of such his conduct as a master to prove the particulars which he has stated respecting the servant, it would be impossible for any master (so understanding the law, at least with regard to his own safety) to give any' character but the most favourable to his servant, and consequently impossible for a servant not entitled to the most favourable character to obtain any new place, Unquestionably the master who has given a had character of a servant to persons inquiring after his character is not bound to substantiate by proof what he has said, hut it is equally clear that the servant may if be can, prove the character to be false, and the question between the master and servant will always, in such case, be, whether what the former has spoken concerning the latter, be malicious and defamatory."

Where a master does give a discharged servant a character, he may perhaps in doing so make a statement which the servant regards as defamatory, and uses as the foundation of an action of libel or slander. It may be stated generally that such a statement is made without "express malice." is a privileged communication, so that the master will not be liable to the servant in respect of it. That is to say if he should be sued by the servant he will generally be enabled to reply upon the defence of privilege. If this defence is raised and proved, the servant must then, in order to succeed in the action, show that the master has been guilty of express malice. Hut a communication will not be privileged unless it is made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest in concerned. I have gone some what fully into this particular branch of the dispute in reply to what was said by Mr. Walklate in his evidence on the subject. It is not simply a matter between a private employer and his servant, It is a matter which concerns above and beyond the master and servant, the great body of the people. The public are those who are most intimately concerned in the matter. It is for the public good that there should be the utmost confidence between the Company and its servants. The public safety and convenience demands that such confidence should exist. Mr. Walklate's arguments are applicable as between an ordinary master and his servant, but are not so in my opinion, when a public servant concerned. Again, the Company is fully protected by the common law in the matter of dismissals, discharges, and in the giving of characters.

Relying upon the principles contained in the foregoing, I am strongly of opinion that an employee on being dismissed from the service should be given a valid reason for his dismissal.

page 127

Clause 3: "Any employee being sent to the head office for an alleged fault shall see all reports made against him, and have the right to call evidence on his own behalf, as inspectors' reports are often found to be misleading, and exaggerated to suit requirements of the traffic manager."

In my opinion, if an employee is summoned to the head office for an alleged fault, he should be shown all the reports against him. It is only bare justice that an accused person should know exactly the nature or the accusation brought against him, and who it is that accuses him. A necessary corollary is that he should be allowed to call evidence on his own behalf.

I consider that there should be a court of appeal, to which an employee may have recourse if not satisfied with the decision in his case. Such court might consist of the manager of the Company, a representative of the employees, and the Mayor of Auckland, the last-named as representing the public, who are deeply concerned in the doings of the Company.

Clause 4: "Any inspector proved guilty of making mis-statements or false reports against employees shall be instantly dismissed.

A request of this sort I consider requires only to be preferred in order to be agreed to. An inspector who is proved to have acted in the manner stated is unworthy of any position of responsibility in any walk of life. He should not, and must not, be left in a position over anyone. Mr. Walklate states candidly he has no time for any such.

Clause 5: "Seeing that Mr. Lysaght's questionable methods were the real cause of the strike of November, 1906, and that the recent harassing of motormen and conductors by ticket inspectors has been in obedience to his instructions, he should be removed from direct contact with the men, as the Union is of opinion that there will be no peace or harmony in the service so long as he is retained in his present position."

The chief causes of complaint alleged against Mr. Lysaght are the following:—
(a)That he was the instigator of the round robin which led to the resignation of Heaney.
(b)That he gave instructions to inspectors to conceal or disguise themselves in order to come unawares or unknown upon conductors or motormen.
(c)That he gave instructions that men who had given notice of leaving, or who had been given notice to leave, should be specially watched.
(d)That he instructed inspectors to get the assistance of their friends in trapping the conductors.
(e)That he altered or added to the reports sent in by inspectors.
(f)That he should not give a fair hearing to those who were reported at the head office.
(g)That he stated that conductors could not be honest men and were thieves.

Mr. Lysaght gives an absolute denial to each and all of these charges, and states that whatever he did was only acting under instructions. He states that he received the "round-robin" from the late Mr. Kidd, and acted only under his instructions. He passed it on to Inspector McElwain, who obtained signatures, but who states that he did not know who drew up the document. I am satisfied on the evidence of Mr. page 128 Martelli, and on the absurdity of a manager getting up a "round robin" to be presented to himself to discharge an employee, that Mr. Kidd was not the parent of that paper, and, further, that Mr. Lysaght, if not the parent thereof, was the moving spirit therein. In references to charges (b), (c), and (d) there is the direct and positive evidence of Campbell. Buckley, Cox, and Hassett, and in part of Ashe and Mackay besides the indirect evidence of others. Several witnesses have sworn that they never got such instructions, but two of these are inspectors appointed at the lime of the late strike, and have only had recent experience. Mills' case has special reference to charge (e). Mills asserts that he put in a second report. Rosser and Carter are sure that there was a second written report, not now produced, with additions to it in a writing not that of Mills. This is denied by Lysaght. There is, however, a type written report, signed by Lysaght containing statements said to have been made by Mills, which are denied by Mills. Mr. Hansen certain that he never saw a second written report. In other parts of the evidence there are statements as to alterations being made in reports Charge (f) is made for the most part in general terms, by a few witnesses, but few, if any, particulars are given, except by Bassett. Cox and Bassett swear positively to the last charge. In my opinion. Mr. Lysaght, perhaps from an excess of zeal in his office, or from an over-confidence in the powers he thought invested in him, issued instructions, or made suggestions and said things which, after due reflection, he has found unwarranted. I am unable to take his denial against the direct evidence of many witnesses, who I have no reason to believe are other than credible. There is without doubt a very strong current of discontent against him on the part of the employees, and I feel certain that he and they cannot work in accord. He must have been cognisant at any rate since November, 1906, of the strong feeling against him in reference to certain practices which went on under his management, It is not sufficient for him to plead ignorance of them. He should have known of them. I consider that it would be in the interests of all parties—the Company, the employees, and the public—that Mr. Lysaght should be given a position that will remove him from direct contact with the men.

Clause 6: 'That the employees of the Company shall not be asked to work with any 'blacklegs,' who went back to work during the last strike."

There is evidently a strong feeling amongst the employees against resuming work with the two men who refused to go out. I consider that these two men were entitled to their own opinion as to striking or not, and I do not think it fair or just that they should be punished for having the courage of their opinions. I cannot, therefore, agree with the demand contained in this clause.