Director-General of Education v Suttling

Director-General of Education v Suttling - [1987] HCA 3 - HCA 1982 case summary — Zoe

[17]

The only power conferred by the section is to make a temporary appointment. Circumstances may make it expedient that the appointment continue beyond six months. The incumbent of a position may be absent for an extended period by reason of sickness or leave. The exigencies of the Service may render it inappropriate to make a permanent appointment to a vacant position for the time being. Section 51(3) ensures that a temporary appointment will not be allowed to continue for a period in excess of six months without the Director-General directing his mind to the propriety of that appointment. Where, at the time when a temporary appointment is made, it is expected that the exigencies of the Service will make it expedient for the appointment to continue beyond six months there can be no objection to the anticipated term being stated. That was done in the case of Mr. Suttling's appointment. It was expected that his secondment would continue for two years and possibly longer. But there could be no binding commitment that it would do so. The exigencies of the Service, once perceived, are not immutable. They are always open to change. Section 51 must be construed consistently with the general responsibility of the Director-General "for the general conduct and the efficient, effective and economical management of the functions and activities of the Education Teaching Service": s. 37(1). It was Mr. Suttling's misfortune that the discharge by the Director-General of this responsibility led to a curtailment of the term of his secondment that had been anticipated at the time of his appointment. His expectations have been denied and he has every right to feel disappointed and aggrieved. In forecasting a period of two years for the secondment with the possibility of an extension, the advertisement calling for applications was proved, by subsequent events, to be grossly misleading. But unfortunately, in our view, Mr. Suttling cannot complain to a court of law. Like any other temporary appointment in the Service that carries with it a higher duties allowance for the appointee there can be no legal right to its continuance beyond the period of his occupancy of the position. The Act confers no security of tenure upon a temporary appointment. Such security of tenure as Mr. Suttling enjoys under the Act relates to the classification pertaining to his substantive appointment, formerly as Deputy Principal of a Class 2 Primary School and now as Principal Grade 3 of the Milsons Point Primary School: see the Act, ss. 71-78 and the GREAT Act, ss. 23-25. Whether the latter appointment is a promotion from his former position as Deputy Principal does not appear.

[49]

It may be that the position to which Mr. Suttling had been temporarily appointed was abolished by the Director- General in exercise of his power to determine staff establishments under s. 38(1)(d). The evidence does not disclose whether, or how, that position ceased to exist. When the office to which a Crown employee is appointed is validly abolished, the employee loses the benefit of the appointment unless he is able to invoke some statutory protection. Though the Crown may not have satisfied a condition affecting its exercise of a power to dismiss the employee, the employee is not kept in office if the office is abolished: Young v. Waller [23] . That principle invites consideration of the power of the Director-General to abolish positions while they are occupied by members of the Service. Members of the Service are protected in their membership and salary by the provisions of the Government and Related Employees Appeal Tribunal Act 1980 NSW as amended ("the GREAT Act"): s. 97(3) of the Act. The legislature can hardly have intended that when it conferred on the Director-General power to determine staff establishments, the Director-General was thereby empowered to destroy the security of employment and conditions of employment which the GREAT Act was enacted to protect. The abolition of positions is no doubt necessary from time to time in order to achieve "efficient, effective and economical management of the functions and activities of the Education Teaching Service" (s. 37(1)) and, when a position is abolished, either the services of the person occupying the position must be dispensed with or he must be transferred to some other suitable post. But the express provisions of ss. 71, 72 and 73 confer the powers which the legislature deemed appropriate for this purpose and it may be inferred that the legislature did not intend the exercise of the general administrative powers of the Director-General (including the power to abolish positions) should otherwise prejudice the security of tenure and salary of permanent appointees to positions in the Service.

[56]

Sub-sec. 1 of sec. 8 of the Industrial Arbitration (Amendment) Act 1926 does not fix or expressly empower the Minister to fix a period for which a chairman of conciliation committees should hold office. We agree with the view that sec. 30 of the Interpretation Act 1897 applies to sec. 8(1), and, accordingly, that the Minister had authority to suspend or remove a chairman from his office notwithstanding that a fixed term had been specified in his appointment. Rich J. appears to have shared that view [27] . Mr. Magrath's period of appointment was fixed pursuant to an express power and the general power of removal was limited to give effect to the period fixed pursuant to the express power: see per Starke and Dixon JJ. [28] , and the judgment of Harvey A.C.J. in the Full Court [29] . The power to fix a period of temporary appointment is not expressly conferred on the Director-General by s. 51 of the Act, but the power is none the less conferred by necessary implication: see sub-s. (3). It follows that a period of appointment fixed pursuant to that section cannot be abbreviated without cause. If the Director-General proposes to remove a temporary appointee from his position for cause before the fixed term of his appointment has expired, it would be necessary to observe any of the applicable requirements of Pt IV, Div. 6 of the Act and of Pt III, Div. 2 of the GREAT Act. But it is not necessary to consider those provisions, for the Director-General did not purport to remove Mr. Suttling from his position for any cause other than his intention to close down the Consultancy Service at Strathfield. That reason provides no ground for the exercise of the general power of removal. The power to abolish positions in determining staff establishments and the power of removal conferred by s. 30 of the Interpretation Act are both general in nature; neither can be exercised in derogation of the rights of members of the Service created pursuant to the power to make particular appointments under s. 51. It follows that the premature termination of Mr. Suttling's appointment is not supported by s. 30 of the Interpretation Act and that Mr. Suttling was wrongfully required to quit his position at Strathfield. 1. (1933) 50 C.L.R. 520. 2. [1898] A.C. 661. 3. (1933) 50 C.L.R., at p. 533. 4. (1933) 50 C.L.R., at pp. 530-531. 5. (1933) 50 C.L.R., at p. 535. 6. (1933) 34 S.R. (N.S.W.) 25, at p. 31.

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