Opinion Number. 484

Subject

PUBLIC SERVANT WHETHER COMMONWEALTH LIABLE TO GRANT FURLOUGH : NATURE OF RESIGNATION

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902-1911, s. 71

Date
Client
The Prime Minister

On 18 September 1912 I gave an opinion(1) on the case of Mr A.B., late clerk G.P.O. Sydney, who had retired after 29 years' service, but who had not been granted a gratuity under section 71 of the Public Service Act.

In that opinion I advised in effect that section 71 although permissive in form con-ferred on officers a right to have their cases considered under it and that, Mr B. having retired after more than 20 years and not having been granted furlough or been reduced for misconduct, his case was a proper one for reconsideration under the section.

The opinion has been referred to the Public Service Commissioner, who has directed the following memorandum to be written thereon:

Case of Mr A.B., Clerk, General Post Office, Sydney, and his right to a gratuity under Sec-tion 71 of the Public Service Act. MEMORANDUM to The Secretary, Prime Minister's Department.

I am directed to return herein the papers relating to the above case together with the Opinion of the Attorney-General thereon. In doing so, the Commissioner desires me to say that when dealing with this case the view was taken that it was a case virtually of 'res-ignation' and not a retirement contemplated by the Act. Mr B. tendered his resignation to take up employment outside the Service, and as he was a contributor to the State Super-annuation Fund, and could only obtain a refund of his contributions on retirement, he was retired from the Service to overcome this technicality in regard to the State law. There is a distinction between the case of a voluntary resignation like Mr B. 's and that of a retire-ment from the Service.

The Commonwealth and the Public Service Acts of all the States provide that an officer can only be retired through infirmity or having reached the statutory age. In other circumstances his severance can only be by resignation, and had Mr B. been entitled to a pension he could not have received it under the conditions under which he left the Service, thus showing he would not be regarded as a 'retired' officer.

The particulars of the case will be clearly ascertained from the copy of the statement hereunder, which was submitted by the Department when dealing with it:-

'Mr A.B., Clerk, Telegraph Branch, applied for six months' furlough on full pay as from 1 December 1911. In support of his application he stated that he had private matters which required his personal and continued attention for a considerable period, and would,doubtless, necessitate his visiting another State. He added that, after his length of service extending over a period of 29 years, he felt that his health, though not seriously impaired, needed recuperating, and that a change and rest from official duties would enable him to return to work invigorated for further service.

Mr B.'s application was granted, and he commenced his furlough on 1 December 1911. On 15 idem, however, he wrote stating that since commencing his furlough he had been appointed to a very responsible position outside the Service which he had decided to accept from 1 January 1912. He requested in view of his service in the Department that he might be granted the furlough and retired, without gratuity, as from 31 May 1912, or if this concession could not be allowed, that the leave for December be debited to the accumulated leave due to him, and his retirement effected as from 31 ultimo. He also ap-plied for a refund of his Superannuation contributions.

In view of the fact that Mr B. was, from 1 January 1912, taking up a position outside the Public Service which he would not, under the provisions of Public Service Regulation 73, be allowed to accept whilst an officer of the Department, and further, as it is not the prac-tice to allow furlough prior to retirement unless such retirement is owing to age or infir-mity, it was proposed to recommend, as Mr B. 's record had been an exemplary one, and as he actually entered upon his furlough, that the period be altered to one month, and that he be allowed to retire, without gratuity, as from 1 January 1912.

On 8 January, however, a further communication was received from Mr B. in which he requested that his case might be dealt with under the provisions of the Public Service Act of 1911, section 6(2) of which provides that where an officer has continued in the Pub-lic Service at least twenty years, but has not been allowed furlough under section 71 of the principal Act, the Governor-General, on the recommendation of the Public Service Com-mission, may grant such officer six months' pay on retirement.

Under the circumstances mentioned herein, I shall be glad to be furnished with a rul-ing as to whether this is a case which comes under the provisions of the new Act, Mr B. 's retirement being practically a voluntary resignation, nominally called a "retirement with-out gratuity" so as to enable him to receive a refund of his Superannuation contributions.'

The whole tenor of the Act is to make the granting of furlough or of payment in lieu thereof, permissive, and in the circumstances set out above it was held that Mr B. 's sever-ance from the Service was virtually by resignation, and consequently it was not considered that the merits of the case justified the application of the provisions for the payment of salary in lieu of furlough.

The Commissioner will be glad to have a direction from the Prime Minister as to whether all officers with the requisite period of service are to be granted payment in lieu of furlough on leaving the Service except in cases where they have forfeited their right to consideration by misconduct.

The papers have now been returned to me by direction of the Prime Minister for in-formation as to whether the memorandum of the Commissioner in any way affects my previous opinion on the subject.

The memorandum does not affect my opinion of 18 September 1912 but I wish to point out that resignation is merely a form of retirement, and that the fact that a retire-ment of an officer was virtually by resignation would not operate to take his case out of the section.

The Public Service Act does not entitle an officer to retire until he arrives at the age of sixty, but if the Crown sees fit to permit his resignation before that time his resig-nation would be a retirement from the Public Service within the meaning of section 71.

[Vol. 10, p. 402A]

(1)Opinion No.473.

(2)Section 6 of the Commonwealth Public Service Act 1911 repealed section 71 of the Commonwealth Public Service Act 1902-1909 and inserted in its stead a new section 71.