McVicar v Commissioner for Railways (NSW)

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.