MANDAMUS ISSUED

New Zealand Times, Volume XLVII, Issue 10847, 12 March 1921, Page 9

MANDAMUS ISSUED

■ FAR-REACHING JUDGMENT P. AND T. OFFICER’S iPFEAL REGARDING SALARY. MUST BE HEARD BY BOARD. A writ of mandamus requiring the Post and Telegraph Appeal Board, of which Mr E. C. Cutten S.M., is chairman, to hear the appeal of Percy Reginald Sutherland, a junior officer in the department, has been issued by Sir Robert Stout, Chief Justice. This important action was heard at the Supreme Court on Tuesday, Mr M. Myers, instructed by tlhe Post and Telegraph Officers’ Association, appearing for the plaintiff, and Mr C. P. Skerrett, K.C., instructed by the Crown Law Office, for the department. The decision of the court, delivered yesterday, was as follows: POSITION OF SUTHERLAND. “. . . The appeal lodged by Sutherland is not very formal in its language. It is in the form of an appeal and letter, and states ‘the appeal is against the salary allotted to me in the current classification. list.’ This is wrong, because there is no current classification list against which he can appeal, and hence the appeal is informal. It is suggested, however, that the appeal can be aided by looking at the grounds, which will show that the appeal is not against the current classification list but against the determination of the Secretary of the Post Office that the increment given to the appellant shall be £4O for the year 1919-20. The grounds mentioned by the appeal seem to me to show this: It says, ‘That although I have received a £4O increment this year I am still one step behind those officers whom I cited in my appeal of last yekr as being my juniors on the list. . .’ If I am to read the appeal as meaning an appeal that the £4O increment granted to him to take effect from April Ist, 1920, is insufficient and ought to have been a larger amount, the question arises whether an appeal againsb-this would lie. Is there an appeal against a mere fixing of the amount of salary? That depends upon the interpretation of the statute. The Post and Telegraph Department Act, 1918, made provision for constituting a Posb and Telegraph Department and gave certain powers. . . and gave every officer of the department a right of appeal. This right of appeal was enlarged by the 1919 ct, No. 13, section 30. That section, as amended, now reads: ‘Every officer of the department shall have the right of appeal to the Post and Telegraph Appeal Board against (a) any determination of his superior officer relative to his classification, grade, salary, or promotion.’ It is clear from what has been shown in this case that there has been no classification, no grading, and no promotion to which an objection can be taken, or on which there is a right of appeal. What has been done, however, is the fixing of a salary. . .

£4O INCREMENT AS AGAINST £6O. “This appellant was an officer in class VII, and according to tlhe first schedule of the regulations there are twelve subdivisions in. this class, and the rates of salary and increment are shown in the first schedule. The increment that he 'has obtained is £4O. That appears not in the classification but in the list simply of the officers. He calls it a classification list, but it is not so. According to the increments detailed in the first schedule of the rules he would have been entitled to an increment of only £25. instead of that he has got £4O, and this seems to have been determined by the secretary under the authority or the sixth paragraph of part 1 of the regua cions dated July Ist, 1919. Paragraph 6 provides—‘The only increment shall be the difference between the officer’s salary as fixed for any year and the salary for the next highest subdivision of his class, provided that special increments in excess thereof may he granted by the secretary when the secretary is satisfied that the officers concerned are of special merit and ability in the performance of their duties.’ He got, as I have said, a special increment under this regulation of £4O, making his salary f0r0.920 £IBO, whilst from April Ist, 1919, to April Ist, 1920, his salary was only £4O. He states, however', in his grounds of appeal that some officers —and that is the fact—have obtained an increment of £6O for the year, and hd desires that his appeal shall be read as an appeal against the determination of only £4O as a special increment and the claim that the secretary ought to have made his increment £6O. RIGHT OF APPEAL? “The question then arises as to ’whether there can, be an appeal against this fixing of this special increment under paragraph 6 of the regulation. The contention of counsel for the appellant board is that there is no appeal against such a fixation by' the secretary, as this is not in the nature, of a salary. It does not become a salary until it has been paid for one year, as paragraph *1 of the regulations provides, as follows:—‘No annual increment shall accrue to any salary until the officer in respect of such salary has received the sum for a period of twelve months.’ If, therefore, he did not receive the salary for the year ended April Ist, 1921, the special increment courd not he treated as a salary. However, the first step has been tiken to make it a salary, because the increment has been given, and tfie question is could he appeal if no inerenent had beep given, as well as have an appeal against the increment being too small? In my;opinion, if the determination had been that he was to receive no increment that would he a determination about his salary, and tho words of the Appeal Act are that any determination of a superior officer relative to the salary of an officer of the department may be appealed against. It is clear that there has been a determination made by the secretary, namely, that the special increment shall be only £4O, and if that is not appealed against within certain time after the determination is made, then when the increment becomes operative as salary no appeal would lie, and right of appeal against a special increment could never arise, and salaries could be altered, therefore, where increments are concerned, and no appeal would be available to officer* in reference to their salary. In my opinion, to read the section in that way would be to give it too narrow an interpretation. As I read the statute, it means that, regarding the salary of an officer, if his superior officer determines that he shall have ’no increment and gives increments to other people, or if be gives increments that are not sufficient increments, the right of appeal must be held to arise because that is a determination dealing with his salary.

“MATTER FOR LEGISLATURE.’’ “It was suggested that the right to give special increments , authorised by paragraph 0. to which reference has previously iieco made, was not an n.pnaalable matter, because they were to

be granted by the secretary when the secretary is satisfied that the officers concerned are of special merit and ability in the performance of their duties; but it seems to me that the appeal i 6 against the determination of an officer, and in my opinion there is nothing to show that the right of appeal doe 6 not arise in the grant of a special increment. No doubt the fact is that there are thousands of officers in the service to whom increments are to he given, and that it is very inconvenient if each one of those thousands of officers could have the right of appeal if he is not satisfied with the amount fixed by the officer. That, however, is a matter for the consideration of the Legislature. The Legislature has chosen to give a right of appeal to every officer in the service, and it may mean that if that is availed of the appeal board may be in continuous session. Of course, the Parliament must rectify that if it is considered a grevious interference with the work of an important department. All that the court has to do is to see whether a Tight has been granted by the Parliament, and if that right has been granted it must be enforced however inconvenient it may be to the department or to the Public Service. “. . . . Possibly if the right of appeal had been raised in different form the appeal board might have thought fit to have inquired into it and dealt with it, but they seem to that as there was no classification list such as the appellant asserted, that an appeal could not lie. He is therefore to blame in not having put his appeal in proper form, and when I order a mandamus to issue I must do so without costs. I order that the appeal board must hear his appeal against an award of only £4O to him instead of £6O such as has been awarded to a few others in hie grade. The court has nothing to do with the merits of the matter: that is a matter entirely for the appeal board.”