Claude Whitehead v State Bank of South Australia No. SCGRG 92/2101 Judgment No. 3748 Number of Pages 3 Local Courts Case Stated

[1992] SASC 3748

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MOHR J

CWDS
Local courts - case stated - question of law reserved for the determination of the Supreme Court by a Magistrate - The facts: the plaintiff retired from State Bank of South Australia in 1989 - Superannuation entitlement of $135,515.54 - plaintiff contends sum due $146,229.84 - action to recover difference - calculations and mathematical formulae of superannuation entitlements - definitions of "level of salary" and "monthly salary" - monthly salary of plaintiff held to be $3,172.00 State Bank of South Australia Act1983, Clause 1, Schedule 2.

HRNG ADELAIDE, 19 November 1992 #DATE 10:12:1992
Counsel for appellant:     Ms R Layton
Solicitors for appellant:    Stanley and Partners
Counsel for respondent:     Mr Bleby QC with Mr C Brohier
Solicitors for respondent: Corrs Chambers Westgarth

ORDER
Question answered.

JUDGE1 MOHR J This matter relates to a question of law reserved for the determination of this court by a Magistrate. 2. Mr Whitehead retired from the service of the State Bank of South Australia on the 17th April 1989. He was entitled to superannuation at a rate to be determined by the application of a formula appearing in a Schedule to the State Bank of South Australia Act 1983 to which I will refer in due course. On his retirement the Bank paid him $135,515.54 by way of superannuation. Mr Whitehead contended that the sum should have been $146,229.84 and commenced an action in the Local Court to recover the difference. 3. At the time of his retirement Mr Whitehead was employed by the Bank as the manager of its Royal Adelaide Hospital Branch on a salary of $38,070.00. He contends that it is this salary which should be the basis of the calculation of his superannuation. The Bank on the other hand contends that the entitlement should be calculated on the basis of the salary provided for in the appropriate award covering the position held by Mr Whitehead at the time of his retirement and not the actual salary he was being paid. 4. The question reserved was: "On the facts found and agreed and allowing for any proper inferences to be drawn from those facts and the documents referred to in the Statement of Agreed Facts, and on the proper construction of clause 10 of the Second Schedule to the State Bank of South Australia Act, 1983, what is the amount of the 'monthly salary' of the plaintiff for the purposes of calculating the plaintiff's entitlement to superannuation in accordance with sub-clause (1) of clause 10 of the said Schedule?" 5. Clause 10 of the Second Schedule to the Act deals with "Superannuation entitlement of Fixed Establishment Officers". Mr Whitehead was a fixed establishment officer of the Bank. Sub-clause (1) of Clause 10 provides a mathematical formula for calculating the entitlement. It is unnecessary to set it out. Suffice to say that the final figure arrived at by applying the formula will depend on "the monetary salary of the officer determined in accordance with sub-clause (4)". Sub-clause (4) reads:-
    "For the purposes of subclauses (1) and (2) the monthly
    salary of an officer shall be one thirty-sixth of the total
    salary that would have been payable to him in the period of
    three years immediately preceding the cessation of his
    employment with the Bank if, during that period, he had been
    paid at the level of salary applying at the time of the
    cessation of his employment is respect of-
    (a) the offices in the Bank that he held on a permanent basis
    during that period.
    (b) provides for those who held office in the Savings Bank of
South Australia and does not affect this matter." 6. It will be seen that the sub-clause makes provision for an employee who held two or more offices in the Bank during the stated period. Mr Whitehead held only one office and that was the one he held at the date of his retirement. 7. Mr Whitehead's "total salary" as at the date of his retirement was $38,070.00 per annum. The award salary for his position was less by some thousands of dollars. 8. The question to be resolved is what meaning is to be given to the words in the sub-clause:- "if, during that period he had been paid at the level of salary applying at the time of his cessation of employment in respect of (a) the office in the Bank that he held on a permanent basis during that period." 9. Mr Bleby QC who appeared for the Bank contended that the "level of salary applying to the office in the Bank" should be found to be the award salary for an office of that classification. Ms. Layton who appeared for Mr Whitehead made the point that the "total salary" referred must refer to the actual salary paid to Mr Whitehead and not that of another person who may or may not be employed in that office at the award rate of salary. 10. To my mind to ask the question "What was the salary applying to that office at the time of Mr Whitehead's cessation of employment? can only result in one answer. The level of salary Mr Whitehead received at that time, however it may have been fixed and for whatever reasons it was so fixed and was at the time he retired the level of salary applying to the office he held. 11. Accordingly I answer the question posed thus:- The "monthly salary" for the purposes of calculating the plaintiff's entitlement to superannuation in accordance with sub-clause (1) of Clause 10 of the said Schedule is $3,172.00.