AN EASTBOURNE RIPPLE

New Zealand Times, Volume LI, Issue 12009, 11 December 1924, Page 6

AN EASTBOURNE RIPPLE

COUNCIL SUED BY FORMER TOWN CLERK

CLAIM FOR £66 IN LIEU IF LEAVE OF ABSENCE

INTERESTING EVIDENCE GIVEN BY MAYOR

CASE HEARD YESTERDAY. At this Magistrate’s Court yesterday, before Mr W. G. Riddell, S.M., was heard a claim by Robert B. Witty,' former general manager of the borough of Basbbourne for th© sum of £66 6s 4d in lieu of leave of absence alleged to be due to him for the three years or so of his employment by- the Eastbourne Borough' Council —August, 1921. tp May, 1924. Mr D. Perry appeared on behalf of the plaintiff, and Mr H. E. Anderson for the* defendant council. STATEMENT OF CLAIM. ■ In his Statement of claim the plaintiff said that in August, 1921, he was engaged by the defendant council as town clerk, - treasurer, and returning officer of the borough of Eastbourne, on terms entitling him to three weeks’ .leave of absence on full pay in every year of his service, such leave to he taken by him as determined by the general manager of; the 'borough. In March, 1922, plaintiff was appointed general manager of the borough, and resigned from that position on May 10th, 1924. It was alleged that during the whole - period of the plaintiff’s engagement by the council he had not 'been granted: any leave of-absence. He, therefore, olaimed three weeks’ salary (£2l Is 6di) in lieu of leave of absence for the year ending August 25th, 1922, at £4OO per annum; £25 19s 3d in lien of three weeks’ leave of absence f<*» the year ending August 25t-h, 1923, at £460 per annum; and £l7 16s 2d, or two weeks’ salary, in lieu of leave-for the period from August 26th, 1923. to May 10th, 1924; making a total of £66 6s 4d.

“PRESSURE OF WORK TOO GREAT.”

Giving evidence in support of his claim, the plaintiff said that at no time Was the fact that he was entitled to leave' of absence questioned; -but daring the whole;of his two years and eight months with the oouncil ho had not'been a-way for more than five days in all —a day or two at a time. The pressure of work was so great all the time that he did not feel that he could get away for a holiday. He hung on hoping that the work would ease' off and rant he would be able to take tbe leave that he was entitled to. The question of his holidays was mentioned at times; but at no. time was he instructed by the council:.to go on,leave. Replying,to Mr Anderson, the plaintiff stated that for part of the ’ first year his salary j was £3OO only, though he claimed for leave that year at the rate of, £4OO a year. Mr Anderson, pointed out that the claim required to he adjusted in that and other similar respects. -The reason, or one of the reasons, for his not getting, or not taking his leave, added (he plaintiff, was not that he was also engaged in . other work at the time. For thrbe months -he, was. engaged in the management’of thdjrearnival, .(but that was with the consent' and approval of the council. It whs not on that account .that he did not get; his.-leave. ;

CASE FOR THE COUNCIL

“ACTION NOT STARTED IN' TIME.” On behalf of the*' Eastbourne Borough Council, Mr Anderson contended that under sub-section. 2, section 363.' of the Municipal Corporations Act, 1920, it was required that any action on such matters as that in question must be . taken within six months of tho plaintiff’s resignation. That'- section, as decoded in the case Mansfield v. Mayor of Blenheim,-1923. could not be overridden by any conditions laid downby the council, in the plaintiff’s appointment. ' Any such condition was, therefore; “ultra vires.” ' The council had no power to bind, itself toot. Now, the date of the resignation was April 9th and the present action had, not 'been started until October, 23rd, which was beyond tiie six months period prescribed by the Act. His Worship: The resignation is stated to have'taken place on May 10th. . , . Mr Anderson said that' the statement in question was not correct. He supposed it was put that; way as the plaintiff bad given . the council a month’s notice on April 9th or 10th — he was not quite sure which. ■■ Owing to some trouble which arose, the plaintiff was required to put in bis resignation. It was quite at the discretion of the council whether payment in liieu of accumulated leave would be allowed ; and the council', in its discretion, bad decided not to allow such payment. If the plaintiff’s engagement had been determined by dismissal, - the council had power to dismiss a. salaried servant at, any , time, for any reason,’ or for no reason, under section 58c of the Corporations Act, 1920; and l)e maintained that the plaintiff was, therefore, not entitled to anything further than his pay to date. Condition 11 of- the plaintiff’s appointment was to the effect: (1) That three weeks’ leave of absence be - given in each yeir on full pay • (2) the time for such leave to be, determined by the general manager; (3) that the leave would • not he accumulative ; (4) nor would payment be mode in lieu thereof; (6) except in certain exceptional cases, - where in the opinion of tl(o council it was advisable, to do so.

MAYOR GIVES EVIDENCE

COUNCIL’S “EXTREME DISSATTSFACTION.” • Herbert William Short (Mayor of Elastbourne) stated that atyits meeting on April 9th last the Eastbourne Borough Council voiced its extreme dissatisfaction with Mr Witty’s management of the borough’s affairs: He 'was asked to retire from the room, when the whole position was discussed, and it was decided that the matter should -be left in witness’s hands to relievo Mr Witty on the following day of his position. On the following morning* as witness was catching an early boat to town, Mr Witty overtook him, and said that, in view of what had happened the night before, he tendered his resig niltion, which he, had put in writing Witness replied tliat he was glad -of that, as it had absolved Him from an unpleasant duty; because if he had not tendered bis resignation it would have been his duty to relieve him of his position as from that day..- Mr Witty said, “I didn’t think they would go as far as that.!’ Witness, however, told him that that* was the position; he relieved him of his office and would require him to hand over the keys at 5 o’clock that fternoon. Plaintiff asked for a dkj»a

delay; and he agreed,to it,-the keys being handed over on April- 11th. - His Worship: He, therefore, left the council’s Bervioe on April 10th ? Mr Short: April 11th. Witness added’ that the; plaintiff made-no claim of any kind against the council; But the council subsequently paid him one month’s salary up to May 10th. MAYOR CROSS-EXAMINED “HE WAS FIVE MINUTES TOO SOON.” MT Perry: Did the council act on his . or did you take action on the' council’s resolution and dismiss him ? ' Mr Short: He tendered -his resigns, tion, and therefore dismissal was not necessary. He was five minutes too Boon—at which I was pleased, as it was not a .pleasant duty. Mr Perry: Do you remember the form of the written resignation. M£ Short; No; I cannot recall it. Mr Anderson read the. letter in which plaintiff tendered his resignation of the post, and said that he would he glad to be relieved of it within a month from date, April 10th.. His Worship: So that the council paid him to the end of the month, hut relieved’’him of his position two days after the resolution'was passed P Mr Short: Yes; the council practically paid him a month’s salary in lieu of notice. ■ “LEAST SAID SOONEST MENDED.” Mr Perry asked whether there were other causes for dissatisfaction with the plaintiff. -Mr Short: Yes; it had been going on for some considerable time. But I don’t suppose you want to go into all'that. Least said, soonest mended. *Mr Perry: There were other cases of resignation from the service of. the council, were there notp . ” Mr Anderson suggested that it was not . necessary to go into such matters. His Worship said that they were not relevant. , Mr , Anderson contended that under Mansfield v. Blenheim Borough Council, the Eastbourne Council had no power to agree to pay salary in lieu of leave of absence.

FOR THE PLAINTIFF

“RESIGNATION ACTED UPON.!’ For the plaintiff,\-Mr Perry argued that,.though fo; part of the timb.Mr Witty was general, manager . for ( the borough; that’did not mean that he could take his-leave when he liked. He ; could not determine his own leave; that ..was for <the council to do. -Reading the letter of resignation, he contended that the only conclusion that the court could’Come to from all the circumstances was that -that, resignation was - acted upon, and that the plaintiff was not dismissed; if only because the plaintiff was paid wages up to May 10th. In that case, he maintained, the • action- was commenced in time. The. action was Commenced on October 23rd, and the six months within which it must -be started did not. expire till November 10th. He contended that, the council, once... the plaintiff, had -accepted the post, had. no discretion in regard fo leave or payment in lien thereof: He was entitled to leave; and, since, as general manager, he - could not determine his own leave, the council could only determine it. ' -: Mr Ahderson pointed out that -Mr Wi(ty had at' no time applied to the council for leave during the time that he Was General manager. ■ His Worship reserved his decision.