DISMISSAL UPHELD

New Zealand Herald, Volume LXX, Issue 21520, 17 June 1933, Page 12

DISMISSAL UPHELD

CIVIL SERVANT'S CASE ACTION AGAINST CROWN REFUSAL OF TRANSFER THE COMMISSIONER'S POWERS An action of an unusual character for alleged wrongful dismissal against the Crown came before Mr. Justice Reed in the Supreme Court yesterday. The suppliant was Harold Barnes, a former draughtsman in the Lands and Survey/ Department at Auckland (Mr. Gray), whose connection with the department was severed last August. Mr. Meredith appeared for the Crown, and evidence was given for the respondent by the Public Service Commissioner, Mr. P. Verschalfelt. Barnes asked for three months' salary, amounting to £-14 17s 9d, as compensation for his dismissal. Ho fctated /that on July 30 last he received notice of his transfer to New Plymouth on August 10, but as lie had en appeal against reduction of salary ponding, he took steps to have tho matter of transfer reconsidered. He was a married man with two young children, end was receiving £3 8s Id a week. Barnes said he could not agree to go until he knew the result of his appeal for a/ii increase in salary. On August 8 he was instructed that he must report at New Plymouth on August 10, failing; which he would be considered absent without leave and dismissed. Ho did not report and was dismissed. Ho contended that hiS> dismissal was enforced in violation of the statutory rights of the public serviceCivil Servant's Rights The respondent denied that Barnes had .taken steps to have his transfer reconsidered by the proper authority. Tt denied that ho had been dismissed, contending that ho had voluntarily terminated his contract of service. If he was dismissed, tho dismissal was in accordance with the provisions of the Public Service Act. and was justified because of his wrongful refusal to obey reasonable instructions. Mr. Gray referred to the very brief time left Barnes in which to make uj> his mind. His Honor: Was it a question of making up his mind? Has not a civil servant to go where he is sent? Mr. Gray: A civil servant has certain rights. He has a right to have certain objections or refusals considered by the Appeal Board. ' Course! said it was clear the department had made up its mind that if Barnes refused to obey the order to go that very day he would be dismissed. The suppliant, giving evidence, said when pressed by the chief surveyor on August 8 to say whether ho was going that night or not witness said that on his salary he could not do it. He was thereupon told that he was dismissed }<Tid to hand in his stores. He received certain assistance from his own and his wife's people in Auckland. Transieis Compulsory Answering Mr. Meredith, witness said he was 2(5 and was not quite 21 when he married. Unless his appeal for a salary increase had been granted ho did not intend to go to New Plymouth. Mr. 'Meredith said a person could not voluntarily terminate his employment and then seek compensation for dismissal. Barnes was automatically dismissed by virtue of section 50 of the Public 7 Service Act, which laid it down that no officer should be allowed to refuse compliance with any order of the Public Service Commissioner directing id? removal from one position to another. Disregard of any such order must be followed by ! dismissal unless the officer could adduce some valid and satisfactory reason. If any officer were allowed to outface the commissioner and say he would' not go, said Mr. Meredith, clearly the whole machinery of the public service would be brought to . a standstill. j Robert G. Macmorran, chief surveyor, said he had given Barnes his notice of transfer under . instructions from the head office. On August 8 Barnes said he would not leave for New Plymouth on his present salary. Witness gathered from him that he was leaving the department that afternoon . !■ Commissioner Claims Privilege f The Public Service Commissioner, Paul Verschaffelt, gave evidence thathe had had Barnes' letters placed before him, and he did not think they were sufficient to justify an alteration in his decision. In reply to Mr. Gray, he said the instructions for Barnes' transfer camo from him. Mr. Gray: Why was he suddenly, out of all these numbers, selected to go to New Plymouth? Witness: For very good reasons. Mr. Gfky: Do you feel free to express it?—No, I do not. Mr.-Gray: Was it a political reason? r—No, it was not. Witness said ho had no doubt that. Barnes /had dismissed himself, and so he did not send on his appeal to the Appeal Board. His Honor asked if witness claimed privilege in regard .to stating his reasons for the transfer. Witness said he did, and added that it was on account of Barnes' attitude, not in this particular mutter, but in other cases. "The service could not be carried on," ho said, "if it had to wait while men decided whether they would ' accept transfer or not." His Honor said it would be impossible to run the service if civil servants/had a right of appeal against the commissioner's order to transfer. Tho discretion was given absolutely to the commissioner. Mr/ Gray said the commissioner's powers appeared to have been exercised yery unreasonably in this case. "No Appeal Lies" His Honor said the matter wrfs obvious. In effect, tho position taken up by 'the suppliant was that on his present reduced salary he could not and would not go to New Plymouth. If he received a favourable answer to his appeal he would consider whether ho would go or not. On failing to comply with the final peremptory order t6 go lie was dismissed. The question was .whether ho was wrongfully dismissed. The answer was contained in the proper construction of section 50 of the Public Service Act, 1912. The effect of that section was that if in the proper administration of the civil service, of which the Public Service Commissioner was the sole judge, it was desirable that an officer should be transferred, that officer had ho alternative but to obey. The commissioner was made solo judge of the sufficiency of any reasons that might be lodged agaiiist the transfer, and from his decision there was no appeal. ' "It ys obvious," said His Honor, "that tho condition of the civil service would be chaotic if such were not the case. If the commissioner adheres to his opinion that the transfer should take place/, and the civil servant refuses to comply the statute provides a specific penally', the penalty of dismissal; and against that, in my opinion, no appeal lies. Other sections of the Act. and its amendments have no bearing upon (bis particular,section, which is a disciplinary one, and basic to the administration of tho civil service. There must b© judgment for the respondent."