McVicar v Commissioner for Railways (NSW) - [1951] HCA 50

THE COMMISSIONER FOR RAILWAYS

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Railways-Employees-Dismissal at pleasure-Right - of Commissioner-Failure to

become financial member of industrial union-Government Railways Act 1912- 1950 (N.S.W.) (No. 30 of 1912-No. 19 of 1950), 88. 70 (1), 78, 104.

An officer employed under the Government Railways Act 1912-1950 (N.S.W.) is, by SS. 70 (1) and 78 of that Act, not entitled to the continuance of his employment beyond the duration of the Commissioner's pleasure, and he MELBOURNE, cannot recover damages if the Commissioner, acting honestly, dismisses him.

The Commissioner is not precluded by S. 104 from using his right to dismiss an officer for failing to comply with an instruction that he should become a financial member of an industrial union of employees recognized by the State Industrial Court or by the Commonwealth Court of Conciliation and Arbitra-

Price v. Rhondda Urban District Council (1923) 2 Ch. 372; Short v. Poole Corporation (1926) Ch. 66; and Fennell v. East Ham Corporation (1926) Ch. 641, considered.

Decision of the Supreme Court of New South Wales (Full Court), affirmed.

APPEAL from the Supreme Court of New South Wales.

In an action brought in the Supreme Court of New South Wales the plaintiff, Errol Roy McVicar, claimed from the defendant, the Commissioner for Railways (N.S.W.), the sum of £5,000 for wrongful dismissal from his employment.

The plaintiff alleged in his declaration that he had entered into the service of the Commissioner upon terms that he would well

VOL. LXXXIII.-34

83 CLR 522

OF A. and truly and faithfully serve the Commissioner as a permanent

officer for wages and reward until such time as the plaintiff resigned or retired from the service, and that the Commissioner would not dismiss him unjustly or capriciously or without good and sufficient cause, and although he served from January 1919 until 27th Sep- tember 1948 truly and faithfully and was always ready and willing (N.S.W.).

to continue in that service until determined in accordance with that arrangement, the Commissioner, in breach of the said term, dismissed him unjustly, capriciously and without good and sufficient cause, as a result of which he was deprived of wages, profits and advantages, and the right to participate in the superannuation fund for the Commissioner's employees and he lost other benefits accruing to him for his said service.

In a second count the plaintiff claimed wages alleged to be due to him between 29th September 1948 and 3rd January 1949.

The Commissioner denied the allegations and pleaded that at all material times the plaintiff was an officer appointed within the meaning of the Government Railways Act 1912, as amended, and held office only during the pleasure of the Commissioner and that the Commissioner without assigning any reason therefor duly and lawfully removed the plaintiff from his employment under the authority of the Act. The Commissioner further pleaded that before the alleged breach the plaintiff misconducted himself in the service by wilfully disobeying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1951] HCA 50
Decision Date: 3 October 1951

CaseChat Overview and Summary

The case of *McVicar v Commissioner for Railways (NSW)* concerned an appeal to the High Court of Australia from the Supreme Court of New South Wales. The appellant, Errol Roy McVicar, a railway employee, sued the Commissioner for Railways for wrongful dismissal, claiming damages for loss of wages and benefits. McVicar alleged that his dismissal was unjust, capricious, and without sufficient cause, in breach of an implied term of his employment. The Commissioner, however, contended that McVicar held his position at pleasure and was lawfully removed under the *Government Railways Act 1912-1950* (NSW).

The central legal issue before the High Court was whether an employee of the Commissioner for Railways, appointed under the *Government Railways Act*, could claim damages for wrongful dismissal when dismissed for failing to comply with a directive to become a financial member of an industrial union recognised by the State Industrial Court or the Commonwealth Arbitration Court. This involved determining the scope of the Commissioner's power to dismiss employees, particularly in light of statutory provisions granting the power to dismiss "at pleasure" and the potential application of the doctrine of ultra vires to the reasons for dismissal.

The High Court, in a joint judgment, affirmed the decision of the Supreme Court. It held that officers appointed under the *Government Railways Act* held their positions "during pleasure only" and were therefore not entitled to the continuance of their employment beyond the Commissioner's pleasure. Consequently, an employee dismissed by the Commissioner, acting honestly, could not recover damages for wrongful dismissal. The Court found that the statutory provisions, sections 70(1) and 78 of the Act, did not impose limitations on the Commissioner's power to dismiss based on the reasons or motives for the dismissal. The Court distinguished the English cases relied upon by the appellant, such as *Short v. Poole Corporation*, noting that those cases involved challenges to the validity of a policy or plan of action as being ultra vires the corporate body's functions, rather than actions for wrongful dismissal of an employee holding office at pleasure. The Court also rejected the argument that section 104 of the Act, which protected employees from being compelled to forgo civil rights, precluded the Commissioner from dismissing an employee for failing to join a recognised union, finding no statutory entitlement to remain a member of a specific union to the exclusion of others.

The appeal was dismissed with costs.

Orders