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Kennard v Brighton Stream line Taxi-cab Co Ltd and TGWU
National Industrial Relations Court
[1973] IRLR 218
21 May 1973
HEADNOTE:
The facts: The complainant is a self-employed taxi driver. He had, it was assumed at the time, joined Brighton Stream line Taxi-Cab Ltd following a postal ballot. It was found that election of members of the taxi-cab organisation by postal ballot was a constitutionally incorrect method of election. All those (9 in all) elected by this method were put up for re-election at a special general meeting. Those present voted that the complainant should not be a member. Just prior to this meeting Mr Kennard had joined the Transport and General Workers' Union. The applicant asked the NIRC for interim relief.
The NIRC (Sir John Donaldson, R. Boyfield, F. J. Fielding) on 21.5.73 held that there was a prima facie case for holding that the complainant had been either wrongly expelled or wrongly excluded from the employers organisation. An interim order was made instructing the association to refrain from expelling or excluding the complainant.
The NIRC held: There was a prima facie case that the respondent company was an organisation of employers within the meaning of s.62(1) of the Act.
The complainant was entitled to an order an either view of the sequance of events. If the complainant had been a member of the company there was an admitted failure to follow the procedures laid down by the Industrial Relations Act for termination of membership. He had not been given notice of the proposal to terminate his membership nor the reason for it.
If the complainant had not been a member there was a good chance that although he is qualified as falling within the description of persons of whom the organisation is intended wholly or mainly to consist, he was arbitrarily or unreasonably excluded.
On the balance of justice an interim order was desirable restraining the company from purporting to terminate the applicant's membership or alternatively, to refrain from arbitrarily and unreasonably discriminating against him by excluding him from membership. Exclusion of the applicant from use of the company's facilities involved serious loss which could not be properly compensated at a later date. Nor would the company suffer any harm if the applicant were allowed to use the facilities pending a full trial.
COUNSEL:
For the Complainant: Mr J. L. WILLIAMS, Solicitor For the Respondent Company: Mr R. THOMAS. For the Respondent Union: No appearance, no representation
PANEL: President: Sir John Donaldson
JUDGMENTBY-1: The Hon. SIR JOHN DONALDSON
JUDGMENT-1:
The Hon. SIR JOHN DONALDSON (delivering the judgment of the Court): This is an application by Mr Kennard for interim relief against the Brighton Streamline Taxi-Cab Ltd. By his complaint he alleges, in the alternative, that either (1) he is being unreasonably and arbitrarily excluded from membership of the respondent company, which he alleges is an association of employers; (2) disciplinary action is being taken against him as a member of that association contrary to the Industrial Relations Act, or (3) the proper procedures required by the Act have not been taken in his case prior to terminating his membership.
The background to the matter is that Mr Kennard is a self-employed taxi-driver and has been so employed for some 14 years in the Brighton area. There was a gap in 1969 when he suffered the loss of his wife and gave up taxi driving for a short period, but in October 1971 he obtained a taxi-driver's licence from the Brigton Corporation and, simulataneously, applied to the respondent company for admission as a member.
The point has been taken that the respondent company is not an employers' association. That depends upon the definition which is contained in s.62 of the Act, which provides that -
62.(1) In this Act 'organisation of employers means an organisation (whether permanent or temporary) which either (a) consists wholly or mainly of employers or individual proprietors of one or more descriptions and is an organisation {219} whose principal objects include the regulation of relations between employers or individual proprietors of that description or those descriptions and workers or organisations of workers . . .
The point will of course remain open for argument hereafter, but the only challenge at present concerns whether the principal objects of the company include the regulation of relations between employers and workers or organisations of workers. We are satisfied that prima facie the principal objects of the respondent company do include such regulation. There is a good deal of evidence to support that conclusion in the minutes of an annual general meeting to which I shall refer in a moment. If they do, then, as from the coming into force of the Industrial Relations Act, Mr Kennard had certain rights which are set out in that Act.
He applied in October 1971, before the Act came into force, and was told that he would have to pay an entry fee of £ 100, and he paid it. He was further told that his acceptance as a member would depend upon the result of a postal ballot and that he would have to pay for that ballot too. He was asked to pay, and did pay, the sum of £ 7.50 in order that he might be a candidate in the ballot.
On 5th October 1971 or thereabouts he was told that he had been elected a member of the respondent company. Thereafter he plied his trade; he attended meetings of the company as if he was a member; he was allowed to ply for hire on the forecourt of Brighton Station (which, apparently, by arrangement between British Railways Board and the respondent company, is the exclusive right of the members of the Brighton Stream line Taxi-Cab Ltd.). He had those privileges. In addition he was able to use the radio service provided by the respondent company to obtain fares in so far as he was unable to acquire them otherwise. All those rights are undoubtedly of very great value. He himself has estimated that they are worth some £ 20 a week, but for the purposes of this application we do not have to consider whether that is right or wrong. Manifestly they are valuable rights.
In November 1971 there was an annual general meeting of the company. The only minute of that meeting which, so far as we know, has any bearing on questions of membership was one which records that another gentleman was elected. He was specially elected because he, unlike Mr Kennard, had been rejected on a postal ballot. But so far as Mr Kennard was concerned nothing at all was said, and it seems to us that for the purposes of this application that is some evidence that the company, in general meeting, tacitly accepted that he was a member at that time. On the dates it seems likely that there was a further general meeting in November 1972 or thereabouts - and I perceive a nod which rather indicates that that piece of detective work is not so far wide of the mark. Of course, we have not been told what happened at that meeting; but again, the fact that there was a further general meeting at which no point was taken on Mr Kennard's membership will at any rate provide him with an argument for saying that he was tacitly accepted at that time as a member.
But for some reason which has not been disclosed, in the early part of this year somebody started to enquire as to whether it was in fact in accordance with the rules of the company that members should be elected by a postal ballot. It is perfectly clear from the company's articles that while power is taken to make rules and regulations which will permit members to be so elected, it is arguable that in the absence of such regulations being made and we have been told that they have not been made a postal ballot is not the right way to elect members.
Having discovered that possible defect in their procedures, the committee which runs the company put down a motion for a special general meeting to be held on 10th May in these terms: 'That members voted in on postal ballot after 8th April 1971 be accepted'. When the meeting was held, that resolution was interpreted as being a proposal that each individual member who had been so elected should be proposed afresh for membership and voted on individually. There were 9 people affected. 8 of them were duly elected or, alternatively, their existing membership was affirmed. In the case of Mr Kennard the vote went against him and immediately afterwards he was asked by the chairman to leave the meeting.
We do not know, on the evidence, why the company decided to purport to exclude Mr Kennard. We should be shutting our eyes to the obvious if we did not conclude that it was not unrelated to the fact that in March of this year Mr Kennard took it into his head to join the cab drivers' section of the Transport & General Workers' Union. That is a most unusual section of the trade union in that it $99 protect the interests not only of those who are employed as $99 but also the self-employed owner drivers of taxi-cabs. For reasons which have been explained to us, this was thought to be $99 to the interests of the respondent company. We express absolutely no view as to whether the company is right or wrong about that. We may even tually have to reach some conclusion about it. We have made various suggestions for getting over the problem but they have not been accepted.
So the position is that we have no definite evidence as to why the company took this action. We simply know that they did.
We are therefore faced with a situation in which, if Mr Kennard was a member of the company, there was an admitted failure to follow the procedures laid down by the Industrial Relations Act for terminating his membership. On that basis Mr Kennard would plainly be entitled to an order.
The alternative view is the one for which the company contends. It is that Mr Kennard never was a member at any material time notwithstanding that he was granted all the facilities of membership for 18 months and that the company had the use of his money for that period (although of course it has now offered to return it). If he was not a member, then the proceedings at the special general meeting must have related to an application by him for membership.
The question then arises of whether that application was rejected for some arbitrary or unreasonable cause and whether as a result Mr Kennard can contend that although he is qualified as falling within the description of persons of whom the organisation is intended wholly or mainly to consist, he has been excluded from membership of the organisation contrary to s.69(1) of the Act.
In our judgment there is a good chance, within the meaning of the criteria which are to be applied upon an application for interim relief, that Mr Kennard is right on one or other basis: either that he always was a member and was wrongly expelled, or that he was not a member but was wrongly excluded. Which, if either is right, will have to be decided hereafter, but there is certainly a strong prima facie case for so holding.
On the balance of justice - which is the next matter that we have to consider - we are all agreed that suddenly to exclude Mr kennard from the use of the forecourt at Brighton Station, and to deny him the use of the radio service, both of which he has been using for a long period of time, would be a serious loss. It has not been suggested to us that that is a loss which could be properly compensated in money terms at some later date. Nor has it been suggested that any harm will be done to the company if Mr Kennard is allowed to use those facilities pending a full trial of the action. So the balance of justice certainly points to the making of an interim order.
Finally, we have to be satisfied that any interim order which we make is such as we could make by way of a final order. It seems to us that provided that we had reached the necessary conclusions of fact, we could on a final hearing order the company to refrain from purporting to terminate Mr Kennard's membership or, alternatively, to refrain from arbitrarily and unreasonably discriminating against him by excluding him from membership of the company. Subject to discussion on the exact wording of the order, we propose to make an order in those terms by way of an interim order.
DISPOSITION:
Prima facie case found, interim order granted
SOLICITORS:
Phillip G Sherwood & Co
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