Commissioner for Government Transport v Royall

[1966] HCA 80

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Menzies JJ.

COMMISSIONER FOR GOVERNMENT TRANSPORT v. ROYALL

(1966) 116 CLR 314

9 December 1966

Transport (N.S.W.)

Transport (N.S.W.)—Officer incapacitated by employment injury—Right to pay appropriate to classification—Refusal to perform duties outside classification but within residual capacity—Whether right to pay appropriate to classification lost—Transport Act, 1930-1960 (N.S.W.), s. 124 (1).*

Decisions

December 9.
The following written judgments were delivered: -
BARWICK C.J. AND MENZIES J. Section 124 of the Transport Act, 1930-1960 (N.S.W.) makes provision for the payment of salary to an officer incapacitated by injury arising out of, and in the course of, his employment so as to be unable to perform the duties of the classification to which, at the date of the injury, he had been appointed. The salary to be paid is "not less than the salary for the time being payable to officers with the same classification and with the same length of service . . . as such officer had at the date he received the injury". The salary payable under the section ceases to be payable "when such officer is retired from or otherwise leaves the transport service". The appellant here contends that the salary also ceases to be payable when the officer, being capable of performing duties not being the duties of the classification to which he had been appointed, refuses or declines to perform such duties. (at p315)

2. In the section there is a statement of the conditions which must be shown to exist in order that the officer may be entitled to salary thereunder. These are: (1) incapacity by injury happening as specified; (2) resulting inability to perform the duties of the officer's classification; and (3) absence of serious and wilful misconduct causing the injury. These conditions, as they appear in s. 100B (1) of the Government Railways Act (N.S.W.), are referred to in the judgment of this Court in The Commissioner for Railways (N.S.W.) v. London (1951) 85 CLR 95, at p 105 , and it is there made clear that these conditions provide exhaustively for the situation to which the remainder of the section is addressed. In our opinion, it is not possible to add to them by implication a further condition that the officer does not refuse or decline to do work within his capacity outside the duties of his classification. (at p316)

3. Turning now to the remedy which the section provides when the foregoing conditions have been fulfilled, it is described as a right to be paid a salary during incapacity to perform the duties of the officer's classification not less than the salary for the time being payable to other officers. As was stated in London's Case (1951) 85 CLR, at p 105 - in a passage where the ability to work referred to cannot be to ability to work in his own classification - the remedy "consists in preserving the salary of his former classification and continuing it, whether he is able to work or not". It does not seem to us possible to import into the remedy as described some further qualification, viz. willingness to do such work outside his classification as the officer is able to do, as a limit upon his right to receive the salary specified. Furthermore, the section expressly specifies when the salary for which it provides shall cease, viz. "when such officer is retired from or otherwise leaves the transport service". Again, it is not possible by implication to add a further circumstance causing the salary to cease, viz. that the officer has declined or refused to do work outside the duties of his classification but within his limited capacity to work. (at p316)

4. Having proceeded so far, it seems to us that the appellant can succeed here only if there is to be found something in the remedy for which the section provides which is in law inconsistent with that remedy being available to an officer unable to perform the duties of his own classification but capable of performing other duties but refusing or declining to do so. Two elements were relied upon to show such an inconsistency. The first was that the entitlement is to "not less than" the salary payable to the officers specified. We cannot gain any assistance upon the problem under consideration from the words "not less than". We have no doubt that the reason for employing this phrase was to remove any doubt that an officer to whom the section applied but who actually worked in a classification higher than that to which he had been appointed at the time of his injury is entitled to the higher salary of his actual classification. It appears that when the section was amended in 1936 - Government Railways and Transport (Amendment) Act, 1936 - the opportunity was taken to set at rest some of the problems referred to by Ferguson J. in Maher v. Railway Commissioners for New South Wales (1931) 31 SR (NSW) 371, at p 375; 48 WN 100, at p 101 . The second element relied upon to establish an inconsistency between the remedy provided and the continuance of the salary of a person within the section but who refuses or declines to do work outside his classification but within his capacity is that the remedy is the provision of a "salary" and it is contended that an officer who refuses or declines to do work within his capacity cannot be regarded as entitled to a payment described as a "salary". It is, of course, true that a salary is usually paid in return for work or readiness to work, but the word "salary" in s. 124 cannot be regarded as having such a limited meaning. An officer who is completely incapacitated may nevertheless be entitled to a "salary". Moreover, it was thought necessary in 1936 - Government Railways and Transport (Amendment) Act, 1936 - to provide in express terms that the "salary" for which the section provides shall cease upon retirement from or otherwise leaving the service. This provision would not have been necessary had the word "salary" carried with it, as an essential element, the notion of readiness to work. Another way of importing the limitation upon s. 124 for which the appellant contended, based upon the use of the word "salary", was to take the words "salary for the time being payable to officers with the same classification and with the same length of service" as the injured worker and to argue that, as no salary would be payable to such officers if they refused to work, no salary can be payable to the officer concerned if he refuses to work. In support of this contention, reference was made to the observations of Owen J. in Semlitsky v. Commissioner for Road Transport and Tramways (1952) 52 SR (NSW) 151 and, in particular, to the words: "If, in the particular circumstances, no wage would be payable to an employee in the class by which is set the standard for measuring the plaintiff's rights, then nothing is payable to the plaintiff" (1952) 52 SR (NSW), at p 158 . It is to be observed, however, that the standard is set by reference to "officers" of the description, and it seems to us to be assumed that some salary, and a uniform salary, will be payable to such officers. We do not think that the words "the salary for the time being payable to officers with the same classification and with the same length of service . . . as such officer had at the date he received the injury" were intended to do more than to fix the minimum amount payable to an incapacitated officer entitled by the section to a salary. We do not think, for instance, that an injured person, actually working in a lower classification would lose the higher salary for which the section provides simply because the specified officers, by reference to whom the salary is measured, should happen to have been on strike for a period. Nor are we satisfied that any officer is under a duty, upon pain of loss of salary, to do such work within his capacity but outside the classification to which he has been appointed as he may be instructed to do. We have therefore not been able to extract from the word "salary" the limitation that an officer unwilling to do work falling outside the duties of the office to which he has been appointed is not entitled to the payment for which the section would otherwise provide. (at p318)

5. For the foregoing reasons, the appellant has failed to satisfy us that the section should not be construed literally. So construed, the respondent was entitled to succeed upon his claim and the appeal should be dismissed. (at p318)

McTIERNAN J. I agree with the judgment of Kitto J. (at p318)

KITTO J. On 20th November 1960, the respondent, who was employed by the appellant and was therefore an "officer" within the meaning of the Transport Act, 1930-1960 (N.S.W.), was incapacitated by injury arising out of and in the course of his employment so as to be unable, throughout a period which included the week from 6th to 12th February 1961, to perform the duties of the classification of motor bus mechanic to which at the date of the injury he had been appointed. The injury was not caused by any serious and wilful misconduct of his own. Thus the conditions were fulfilled which entitled him to the benefit of s. 124 (1) of the Act in respect of the week I have mentioned. We have here to determine what that benefit is, what is its nature and what is its extent. (at p318)

2. The sub-section provides that an officer as to whom the stated conditions are satisfied "shall . . . be paid, during such incapacity, not less than the salary for the time being payable to officers with the same classification and with the same length of service therein as such officer had at the date he received the injury, but such salary shall cease to be payable when such officer is retired from or otherwise leaves the transport service". (at p319)

3. The respondent's place of employment was the Kingsgrove bus depot. On 3rd February 1961, he was directed by the appellant to report for work during the week commencing on 6th February 1961, for the purpose of doing what he describes in his evidence as "some selected duties". The officer who conveyed the instruction to him did not say in evidence that he told the respondent anything more than that he was to attend for work; but he added: "We proposed to employ Mr. Royall trimming plans in what we refer to as our printing room." This officer was the "selected duties officer" of the department, but there is no evidence in the case as to whether he was attached specifically to the Kingsgrove bus depot or whether the printing room to which he referred was at that depot, or whether the instruction he gave the respondent was to attend for work at that depot. But from the way in which the case was conducted at the trial, in the Supreme Court and in this Court, I think it is proper to infer that the printing room was either at the Kingsgrove bus depot or at some other place to which the respondent takes no exception as a place at which he might reasonably be required to work. (at p319)

4. The injury he sustained was to his left hand, and there was proof at the trial that the work of cutting plans in the printing room, which required only the use of his right hand, was within his capacity at the material times. This work normally carried a lower remuneration than that of a motor bus mechanic. The respondent did not obey the direction, and did not attend for work at all during the week. Nevertheless he claimed that in respect of that week he was entitled to receive the wages that were payable to a motor bus mechanic with the same length of service as his. The appellant, contending that the respondent's refusal to do the work to which he had been directed disentitled him to receive any payment at all in respect of the week, rejected his claim, and the respondent thereupon brought an action in the District Court. In this action he succeeded, and an appeal to the Supreme Court was dismissed. (at p319)

5. The appeal to this Court is brought by special leave. Two questions are involved: first, the general question whether the amount payable under s. 124 (1) to an officer as to whom all the conditions of that sub-section are fulfilled is affected by a refusal to perform service which is within his residual capacity and which he is lawfully directed to do; and secondly the more particular question whether the direction to the respondent to work at plan-cutting in the print room, admittedly within his residual capacity, was a lawful direction. (at p320)

6. The first of these questions involves an inquiry as to the true character of the right which the sub-section confers. It is an inquiry of no little complexity, but I need not go through it in detail now, because it has been performed with respect to a section in identical terms, in a context which is not distinguishable, in the case of The Commissioner for Railways (N.S.W.) v. London (1951) 85 CLR 95 . The Court there held, upon a balance of considerations, that the payment had two aspects. In so far as the sub-section results in an excess payment being made over that which the officer earns by work that he does in the service during his inability to perform the duties of his classification, and in so far as it confers upon him a right to salary "for periods of disablement and the like" (that is to say, periods for which, under the terms of his employment apart from the sub-section, loss of salary is a consequence of his injury), it is in the nature of compensation for the officer's incapacity to earn money. In other words, to the extent mentioned the payment is compensation for the economic aspect of a particular incapacity resulting from an employment injury, namely an incapacity to perform the duties of the officer's classification. As regards the other aspect of the payment, that is to say in so far as it is a payment either for work done or in respect of a period in which the officer is entitled to salary under the terms of his employment without the aid of s. 124 (1), it is not of the nature of compensation, because it is remuneration for his service and therefore salary in the strict sense. The decision establishes that the payment may have either or both of those aspects but not any other. If it is partly but not wholly compensatory for the loss of capacity to earn by doing the work of the pre-injury classification, it must be, as to the balance, remuneration in respect of a period of service, whether the period be one of work or one in which no breach of duty disentitling the officer to salary is involved in his abstaining from work. The whole reasoning of the judgment is, I think, incompatible with the view that any part of a payment under s. 124 (1) can be money possessing neither the character of compensation nor that of remuneration in accordance with the terms of the officer's employment. (at p320)

7. In the judgment in London's Case (1951) 85 CLR 95 there are passages to be found which have been thought by some to suggest otherwise. In Semlitsky's Case (1952) 52 SR (NSW) 151, at p 158 . Owen J. set out the passages in detail, and both he and Street C.J. expressed the opinion that when considered in the light of the questions to which this Court was addressing itself in London's Case (1951) 85 CLR 95 the passages had not the meaning suggested. I agree, and I need not add to what their Honours have said on that point. I refer generally to the judgment of Owen J. for a discussion of the operation which, in a case such as the present, s. 124 (1) has according to the construction which London's Case (1951) 85 CLR 95 adopts. As his Honour said (1952) 52 SR (NSW), at p 157 , "the general purpose of" the provision "is to place an employee incapacitated by an employment injury in no less favourable a position as regards pay than that in which he would have been had he not sustained the injury which incapacitated him from performing the duties" of his pre-injury classification. That seems to me to be what the sub-section achieves, and the result is perfectly sensible, namely that the officer is given a general right to be paid the amount appropriate to his old classification and length of service, but as regards so much of it (if any) as he should still be ready and willing to earn by doing work within his capacity and within his contract of employment the right has the incident normally characteristic of a right to be paid a salary strictly so called, namely that it gives no title to individual sums unless they have been earned by work. The opposite view produces a result which to me is incredible, for it means that a statute regulating the expenditure of public moneys from the funds of a State business undertaking is interpreted as entitling an employee to be paid for a period of idleness not justified by his injury, in which his failure to work would have disentitled him to salary if he had not been injured. (at p321)

8. This brings me to the second question, which is whether the respondent's non-compliance with the Commissioner's direction to work in the printing room was a disobedience to a lawful order of his employer. As I have said, he took no exception to the printing room as a location at which he might be directed to work, and there is no suggestion that the direction to work there related to other than proper working hours. Only the nature of the work is relied upon as justifying the omission to comply. (at p321)

9. The argument addressed to us on behalf of the appellant was, primarily, that an implication is to be found in s. 124 (1) to the effect that if an officer, during an incapacity to which the provision applies, is directed to do any work in the service he must do the work, whatever be its nature, provided only that it is within his residual physical capacity, upon pain of forfeiting his rights under the sub-section in respect of the period of his refusal. If this be so, or even if the proposition be limited so as to apply only to a reasonable direction, the sub-section departs from the general rule of the common law. The general rule is that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character: Price v. Mouat (1862) 11 CB (NS) 508, at p 510 (142 ER 895, at p 896) . The effect of the appellant's submission is that where a provision relating to the employment of officers in a statutory "service" gives such a benefit as that for which s. 124 (1) provides to an officer who is incapacitated for some work but not necessarily for any other work, it is surely reasonable to conclude that the officer is expected to be willing to do any work in the transport service which is within his residual physical capacity. It may be considered fair that the sub-section should be read as so intending, but what we are invited to do is not a legitimate exercise in statutory interpretation. It is of course legitimate to make all proper implications in a statute, as part of the process of deciding what the statute really means; but courts have no authority to add to an enactment in order to make it conform to individual ideas of reasonableness by reading into it something which it neither says nor implies. The submission was supported in argument by reference to the nature of the transport "service", which differs in important respects from private employment. It consists of a staff of "officers" (a term which includes clerks, servants and persons employed or appointed by the Commissioner: see s. 4) who are to be appointed or employed in the service of the Commissioner "to assist in the execution of (his) powers and obligations under (the) Act": s. 100. But there is nothing in this, or in any general notion as to the nature of public service, to justify a conclusion that the common-law rule does nto determine the ambit of the directions which the Commissioner may lawfully give to an office who is employed in a specific capacity. I can see nothing in s. 124 (1) or elsewhere in the Act to warrant the conclusion that a direction which an officer would not be bound to obey if it were given to him while he was able to perform the duties of his classification may be one which he is to be bound to obey if it be given to him during a period of inability through an employment injury to perform those duties. (at p322)

10. The respondent in turn relies upon the statutory provisions governing the transport service, contending that they warrant an absolute proposition that the Commissioner may not require an officer to do any work outside his classification. Reference is made to the fact that although officers hold office during pleasure only: s. 100, and may be removed: s. 105, except in cases for which special protection is provided as in s. 111, the Act contemplates that while they remain in the service they will be arranged in ranks, positions or grades: ss. 109 (b), 110 (1), 113, 115F, within which the Commissioner is not free to make promotions save in accordance with certain defined rules: s. 104, and subject to a right of appeal by officers who have been passed over: s. 113. These and other provisions are said to create in the organization of the transport service a rigidity which precludes the Commissioner from directing an officer in one classification to do any work normally done by officers of another classification. I do not myself think that these provisions have anything to do with the matter. Ranks, positions and grades in the service relate, as I understand the Act, to matters of status, designation and seniority; and it seems to me of no assistance to consider the restraints which the Act imposes upon the Commissioner in regard to such matters. Classifications, in the sense of divisions into which officers fall according to the kinds of work they are appointed or employed to do, are another matter altogether. The Act recognizes their existence, though no doubt they owe their origin and delimitations to other instruments, whether regulations, industrial agreements, awards, or intra-departmental directions. In applying the common-law rule above mentioned to an officer who has been appointed or employed to do work which falls within a particular classification, care must be taken not to confuse the designation of the classification with the proper description of the character in which the officer has agreed to serve. They may coincide and they may not. For this reason I must guard against endorsing the respondent's contention in the terms in which it has been stated. But the point is not important in the present case, for whether or not "motor bus mechanic" is the name of a recognized classification in the transport service the evidence is that the respondent's employment was as a motor bus mechanic. Accordingly, the question whether he was in law bound to work at plan-cutting must depend simply upon whether that type of work properly appertains to a motor bus mechanic. (at p323)

11. This is a question of fact, as Price v. Mouat (1862) 11 CB (NS) 508 (142 ER 895) shows. The learned District Court Judge, who tried the action without a jury, made no finding upon it; and as the appeal from him was upon points of law only (District Courts Act, 1912-1961 (N.S.W.), s. 142) we have no authority to make a finding of our own. It does not follow, however, that the verdict for the plaintiff (the respondent) should be set aside and a new trial ordered. When the evidence is examined it appears clearly, I think, that a tribunal of fact duly addressing its mind to the question would not have been entitled, as a matter of law, to do otherwise than find a verdict for the plaintiff. The evidence as to the nature of the two classes of work that had to be considered was meagre in the extreme. No industrial award or other instrument affecting the respondent's employment was tendered; there was no evidence of custom or general understanding, or of any practice in the transport service, that might support a conclusion as to the duties ordinarily treated as belonging to motor bus mechanics; there was nothing beyond a bare description of a motor bus mechanic's work as heavy work involving the dismantling and assembling of engines and an equally bare description of plan-cutting as light work involving the use of scissors for cutting sheets of paper. The only inference which these descriptions would warrant is that the work of cutting plans and the work of a motor bus mechanic are completely disparate. In the absence of evidence to suggest otherwise, the only conclusion that could be reached without error of law was that a man who accepts employment as a motor bus mechanic does not engage to cut plans, and cannot lawfully be required by his employer to do so. According to settled principle, it follows that the learned Judge's failure to direct himself that the decision of the case should depend upon a finding of fact as to the proper scope of the work that appertains to a motor bus mechanic should not be made a ground for ordering a new trial; Balenzuela v. De Gail (1959) 101 CLR 226, at pp 235, 236 . (at p324)

12. For these reasons, which are substantially those which led Herron C.J. and Jacobs J.A. to dismiss the appeal to the Supreme Court, I am of opinion that this appeal also should be dismissed. (at p324)

TAYLOR J. On 20th November 1960 the respondent was employed by the appellant as a motor mechanic at the Kingsgrove bus depot. As such he was an "officer" within the meaning of s. 124 (1) of the Transport Act, 1930-1960 (N.S.W.) and on that date he became incapacitated by injury arising out of and in the course of his employment "so as to be unable to perform the duties of the classification to which at the date of the injury he had been appointed". It is common ground that his injury was not caused by his own serious and wilful misconduct, that he was absent from work because of his continued incapacity until February 1961 and that on 6th February 1961 he declined to perform work in another classification for which his injury did not incapacitate him. By 12th February 1961 he had fully recovered and on that day he resumed his former work as a motor mechanic. Presumably from 20th November 1960 until 6th February 1961 he received salary or wages at his pre-injury rate pursuant to s. 124 (1) of the Act, but nothing was paid to him in respect of the period from 6th February to 12th February 1961. Thereafter in an action commenced in the District Court of the Metropolitan District he recovered judgment in the sum of 22 pounds 15s. 10d. and an appeal to the Supreme Court against that judgment was subsequently dismissed. The appeal to this Court is now brought by special leave against the order of dismissal. (at p325)

2. Section 124 (1) of the Act, which is in similar terms to s. 100B (1) of the Government Railways Act, 1912-1957, is as follows: "Where an officer has been incapacitated by injury arising out of and in the course of his employment so as to be unable to perform the duties of the classification to which at the date of the injury he had been appointed, he shall, except where such injury was caused by his own serious and wilful misconduct, be paid, during such incapacity, not less than the salary for the time being payable to officers with the same classification and with the same length of service therein as such officer had at the date he received the injury, but such salary shall cease to be payable when such officer is retired from or otherwise leaves the transport service." Section 100B (1) originally found its way into the Government Railways Act in 1916 but a new sub-section was substituted for it in 1936 when, also, an identical provision was introduced into the Transport Act in substitution for s. 124 (1) as it then stood. Notwithstanding that the new sub-section introduced into the Government Railways Act represented an attempt to deal with some of the difficulties produced by the sub-section in its original form, and which had been pointed out in the course of judicial decisions, it has given rise to difficulties of its own including that which arises in the present case. There were significant differences in s. 100B (1) and s. 124 (1) in their original forms but these are not of importance. It is, however, of importance to observe that s. 100B (1), in its original form, did not, as was held in Maher v. Railway Commissioners for New South Wales (1931) 31 SR (NSW) 371; 48 WN 100 , provide a benefit for an officer who, having been totally incapacitated, did not during his period of incapacity perform any duties for the Commissioner. The section, it was said, was not a section intended to provide general benefits by way of compensation for incapacity caused by injury but "was intended simply to guard an employee against losing his status in the service by reason of the injury" (1931) 31 SR (NSW), at p 376; 48 WN, at p 101 . (at p326)

3. However this may be, it is clear that the present s. 124 (1) does provide for such a case (Semlitsky v. Commissioner for Road Transport and Tramways (1952) 52 SR (NSW) 151 and Freeman v. Commissioner for Government Transport (1958) SR (NSW) 409; 75 WN 460 ) and it seems to me that this has resulted in a complete transformation of the character of the sub-section. (at p326)

4. It is common ground in this case that the respondent suffered an injury arising out of and in the course of his employment, that such injury incapacitated him from performing the duties of the classification to which at the date of the injury he had been appointed and that the injury was not caused by his own serious and wilful misconduct. In such circumstances the section proceeds to confer upon an officer a right, during such incapacity, to be paid not less than the salary for the time being payable to officers with the same classification and with the same length of service therein as such officer had at the date when he received the injury. However such salary is to cease to be payable when such officer is retired from or otherwise leaves the transport service. It seems, therefore, that, at least prima facie, all the conditions existed to entitle the respondent to the benefit for which s. 124 (1) provides. (at p326)

5. The appellant, however, seeks to draw a distinction between an officer who has been totally incapacitated and one who, although incapacitated from performing the duties of the classification to which at the date of the injury he had been appointed, is nevertheless not incapacitated from performing other duties in the service which may be assigned to him. The difficulty with this proposition is that the sub-section makes no such distinction. The sub-section at no time speaks in terms of the consequences of total incapacity; the benefit is conditioned upon the existence of an officer's incapacity to perform the duties of the classification to which, at the date of the injury he had been appointed and the benefit is, in terms, payable "during such incapacity". The right to the payment is not made dependent on the existence of total incapacity, or, failing that, upon the officer performing, or consenting to perform, other duties of which he is capable and to which he may be assigned and it is, in my view, impossible to read the sub-section as so providing. Furthermore the right which is given by the section is a right to salary until the officer is retired from or otherwise leaves the transport service. (at p326)

6. No doubt the right of an employee to salary or wages is, in general, conditional upon the performance of his contractual duties but the right given by the sub-section is clearly enough not so conditioned. That this is so is plain from the admitted fact that a wholly incapacitated officer is entitled to his wages notwithstanding his inability to perform any duties. But it is said that no right to payment arises where an officer is not totally incapacitated and where he refuses to perform some other duties which have been assigned to him. I can find nothing in the section to justify such interpretation. (at p327)

7. In each case the entitlement depends, ultimately, upon a single fact, that is, incapacity to perform the duties of the particular classification to which the officer has been appointed and to accept the contention of the appellant would be to disregard the plain words of the section and to introduce, as a qualification for the entitlement, two alternative conditions neither of which is expressed or can be implied in the sub-section. Wilful disobedience by an officer to a lawful order may well, of course, amount to misconduct within the meaning of s. 109 of the Act and dismissal under the provisions of that section will, of course, bring the rights of such an officer under s. 124 (1) to an end. But whether an order to perform the duties of a classification other than that to which he was appointed is, or is not, a lawful order is very much a question of fact and degree requiring examination in each particular case. However, failing the termination of his services in this manner I am of the opinion that an officer's right under s. 124 (1) will continue notwithstanding the fact that he has declined to perform other duties. (at p327)

Orders

Appeal dismissed with costs.