THE QUEEN v ROBERT JOHN WOOD [2000] NZCA 251 (2 November 2000)

IN THE court of appeal of new zealand

ca133/00

	between	the commissioner of police
		Appellant

	and	kelvin bruce campbell
		Respondent

Hearing:	9 August 2000
Coram:	Richardson P Thomas J Blanchard J
Appearances:	P J Dymond and H Wilberg for Appellant Respondent in person
Judgment:	15 August 2000

judgment of the court delivered by Blanchard j

[1] Mr Campbell, a law practitioner, has for some years been a non-sworn member of the Police.He brought a claim against the Commissioner in the Employment Tribunal, removed into the Employment Court, seeking relief in the form of damages and penalty against what he views as a systematic discrimination against non-sworn members of the Police in the fixing of their pay scales as compared with those for sworn members.By way of illustration, he says that the applicable general salary band used to fix his starting salary in March 1997 was $49,677 to $66,237, whereas, if he had been a sworn member, the band would have been $65,674 to $76,619.He told the Court that he accepts that there are matters which justify a differential but not one of that magnitude. He also said that he has no wish to become a sworn member even if that were otherwise open to him.

[2] Sworn members have, as Mr Campbell accepts, a special status as constables. Their office derives from common law and now has statutory recognition in the Police Act 1958.A sworn member of any rank is an officer of the Crown and a public servant but is not an employee or agent.A constable's authority is original, not delegated, and is exercised at his or her own discretion by virtue of the office: he or she is a ministerial officer exercising statutory rights independently of contract (Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1955] AC 457, 489 - 490).The constable's oath imposes duties and obligations over and above the day-to-day duties which may be involved in a particular position within the Police.The duties to serve the Crown, to keep the peace and to prevent crime arise from the oath, not by way of contract.

[3] The amended statement of claim contains six causes of action.The first is a personal grievance claim alleging unjustifiable disadvantage.The second to fourth claims allege breach of contract and seek damages.They refer to provisions in Mr Campbell's individual employment contract and the applicable collective employment guide.The particular focus of the case has become the following provisions:

Individual Employment Contract

2.2 During the term of this Contract the Commissioner and the Controlling Officer shall act as good employers in all dealings with the Appointee.

2.3 For the purposes of this Contract a good employer is an employer who treats employees fairly and properly in all aspects of their employment.

Collective Employment Conditions Guide

1.3.01 The parties are committed to the principle of equality of employment opportunity.All terms and conditions of employment are to be implemented on that basis and in particular noting the requirements of Sections 56 and 58 of the State Sector Act, which are appended to this contract, and Section 7 of the Police Act.

[4] Sections 56 and 58 of the State Sector Act 1988 read:

56. General principles

(1) The chief executive of a Department shall operate a personnel policy that complies with the principle of being a good employer.

(2) For the purposes of this section, a "good employer" is an employer who operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring-

(a) Good and safe working conditions; and

(b) An equal employment opportunities programme; and

(c) The impartial selection of suitably qualified persons for appointment; and

(d) Recognition of-

(i) The aims and aspirations of the Maori people; and

(ii) The employment requirements of the Maori people; and

(iii) The need for greater involvement of the Maori people in the Public Service; and

(e) Opportunities for the enhancement of the abilities of individual employees; and

(f) Recognition of the aims and aspirations, and the cultural differences, of ethnic or minority groups; and

(g) Recognition of the employment requirements of women; and

(h) Recognition of the employment requirements of persons with disabilities.

(3) In addition to the requirements, specified in subsections (1) and (2) of this section, each chief executive shall ensure that all employees maintain proper standards of integrity, conduct, and concern for the public interest.

(4) For the purposes of this section, "employee" includes a member of the senior executive service.

...

58 Equal employment opportunities-

(1) The chief executive of a Department-

(a) Shall in each year develop and publish an equal employment opportunities programme for the Department:

(b) Shall ensure in each year that the equal opportunities programme for that year is complied with throughout the Department.

(2) The chief executive of a Department shall include in the annual report of the Department-

(a) A summary of the equal employment opportunities programme for the year to which the report relates; and

(b) An account of the extent to which the Department was able to meet, during the year to which the report relates, the equal employment opportunities programme for that year.

(3) For the purposes of this section and section 56 of this Act, an equal employment opportunities programme means a programme that is aimed at the identification and elimination of all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, or tend to cause or perpetuate, inequality in respect to the employment of any persons or group of persons.

[5] Section 7 of the Police Act 1958 says:

7. Employment principles

The Commissioner shall operate a personnel policy that complies with the principle of being a good employer by following, subject to this Act, as closely as possible and as if he or she were the chief executive of a Department, the provisions of sections 56 and 58 of the State Sector Act 1988.

[6] The fifth cause of action alleges failure to implement an effective equal employment opportunities (EEO) policy contrary to these statutory provisions and seeks a compliance order.The final cause of action asks for a penalty under s53(2)(b) of the Employment Contracts Act and we are not now concerned with that.

[7] An order was made in the Employment Court for trial of the following preliminary issue:

Is it open for the applicant as a non-sworn member of the police to claim that the Commissioner is in breach of his legal obligations by reason of the fact that the applicant's agreed terms and conditions of employment are claimed to be inferior to those for sworn members of the Police?

[8] In a reserved judgment delivered on 7 June 2000 the Chief Judge commented that counsel for the Commissioner was quite right in saying that Mr Campbell could not bring a disadvantage grievance; that it is precluded by s27(1)(b) where the action said to be unjustifiable (and the cause of the disadvantage) is "an action deriving solely from the interpretation, application, or operation...of any provision of any employment contract".We were told from the Bar that there was no argument on this point in the Employment Court and it is not presently before us.It has not been struck out and so remains alive in the Employment Court.

[9] The application before the Chief Judge was, he said, akin to one seeking a striking out and he approached it in that way.He observed that what Mr Campbell was saying in his claim was that the Commissioner "has contractual obligations with statutory underpinning identical in scope".He was of the view that the duty imposed on the Commissioner under s56 is a limited one requiring chief executives to operate a certain kind of personnel policy.By fixing Mr Campbell's remuneration at a markedly low level in comparison with the remuneration paid to sworn members the Commissioner had not failed to operate the required policy.But, the Chief Judge said, the position under s58 was somewhat less clear.He acknowledged that the phrase "subject to this Act" in s7 of the Police Act was important because it might limit the obligation imposed in mandatory terms on chief executives of departments.The obligation to follow the provisions of s56 and 58 of the State Sector Act was an obligation to follow them "as closely as possible".It must, he said, be a question of fact to be decided upon evidence whether the Commissioner "by not following s58 at all" had followed it as closely as possible or whether he could have followed it more closely.The answer depended on evidence of essentially practical considerations.On that view of the matter, the Chief Judge was not persuaded that Mr Campbell's case, so far as it relied on s58, was entirely hopeless.

[10] The Chief Judge then stated that his conclusions depended not only on a construction of the statutory provision but arose also from a proper construction of the applicant's Employment Contract.In his judgment, no useful purpose would be served by striking out parts of the case although it could properly proceed only as an action for breach of contract and an application for a compliance order.

[11] It has already been noted in this judgment that Mr Campbell's case, as pleaded, is one for damages for breach of contract.He has not pleaded the tort of breach of statutory duty.

[12] The appeal to this Court is governed by s135 of the Employment Contracts Act and is thus confined to a question of error of law "other than a decision on the construction of any individual employment contract or collective employment contract".

[13] Counsel for the appellant sought to persuade the Court that because Mr Campbell is indirectly relying upon s58 of the State Sector Act, the appeal is not concerned merely with construction of his employment contract; that the question relating to Mr Campbell's right to rely upon the statute, though arising in a contractual setting, transcends any mere question of interpretation of contract and that the appeal is thus within the jurisdiction of the Court.For the reasons to be given, this argument must be rejected, but it may be of some assistance to the parties if observations are made about the significance of s7 of the Police Act and about the ability of someone in the position of Mr Campbell to bring a claim relying directly upon ss56 and 58.

[14] Section 7 recognises by the words "subject to this Act" the separate regime for sworn police officers under the Act, which includes a particular method of setting their salary levels quite different from that applicable to non-sworn members, and in respect of which the Employment Tribunal and Employment Court have no jurisdiction.But it does not follow from the section that the Commissioner has no obligation to have regard to relativities between pay scales for sworn and non-sworn members when fulfilling his obligation to be a "good employer" and in otherwise complying with ss56 and 58 of the State Sector Act.This does not of course oblige the Commissioner to achieve absolute equality, as Mr Campbell accepts.He does not seek to be treated equally with sworn officers.His concern is with relativity.What a Chief Executive in the position of the Commissioner is obliged to do under s58 is to endeavour to achieve, through an appropriate programme, the identification and elimination of barriers which may cause or perpetuate inequality.But, even once that is achieved, differences in status, qualifications, skill and experience will naturally remain and will justify an appropriate differential in the treatment of employees.The difference in the roles of sworn and unsworn members can plainly be taken into account and may justify a significant differential, as the Commissioner obviously now considers to be the case.

[15] We are satisfied that it was not intended by Parliament that a private claim for damages could be directly made on the basis of ss56 and 58 alleging a breach of duty on the part of the chief executive in failing to be a good employer or in failing to implement or maintain an appropriate EEO policy. That is not to say that disregard or neglect of the chief executive's obligations will go without a remedy, but the enforcement of such obligations is appropriately by means of a public law proceeding - judicial review or declaration - seeking compliance.It is particularly to be noted that s58(3), which defines an EEO programme, does not in itself create any obligation and describes a programme that is "aimed at" the identification and elimination of discriminatory policies and procedures.The sections, taken together, therefore go no further than requiring the Commissioner to follow the policies of a good employer, as defined in s56, and to establish an EEO programme and maintain and report upon its effectiveness.

[16] But although the sections may not in themselves impose obligations of a kind able to be enforced by private suit for damages, it is always open to a chief executive to choose to undertake a contractual obligation which builds on the statutory provisions and contains an enforceable promise to abide by them. For breach of such a contractual commitment damages may then be sought. Essentially that is what Mr Campbell says in his statement of claim that the Commissioner has done by promising in the individual employment contract to act as a good employer and to treat employees fairly and properly and by incorporating by reference, through the collective employment conditions guide, a requirement to observe ss56 and 58.

[17] It seems to us that, pleaded in this way, the matter raised is one of interpretation of the particular contractual provisions and that, although the Chief Judge looked first at the question of construction of the statute, in the end he correctly saw the issue as being one of the proper construction of the employment contract.On that basis, he thought that Mr Campbell's claim was not so weak as to be hopeless and accordingly he was not prepared to give a negative answer to the question posed for the Court.

[18] The issue is one of the construction of the employment contract and this Court is precluded by s135 from determining it, whatever our view might be as to the merits.The appellant voices misgivings about the prospect of the Employment Court adjudicating on questions of relativities of salaries, saying that it is a matter for the Commissioner alone.It is unfortunate that the parties have chosen to ask for a ruling on a preliminary issue in a factual vacuum.Without evidence from which the facts can be established, particularly as to the processes undertaken by the Commissioner in arriving at salary scales, this Court is simply not in a position to say that as a matter of principle it would not be open to the Employment Court to determine that the Commissioner has acted in breach of Mr Campbell's employment contract in the respects alleged.While obviously the Commissioner must have a very considerable discretion in salary fixing and Mr Campbell should not underestimate the difficulty of a task he has set for himself, it is not beyond argument that what has occurred may be shown to be so extreme as to have contravened the Commissioner's contractual obligation to act as a good employer or another obligation which he has accepted by reference in the contractual documents to the sections which have been discussed.

[19] The Court being without jurisdiction, the appeal is dismissed.

[20] Mr Campbell asked us to overturn the Chief Judge's decision that, having represented himself, he should not receive any costs in the Employment Court. He did not however, cross-appeal the question of costs and we are unable to accede to his request, which was opposed by the Commissioner.As to costs in this Court, we take the view that, since Mr Campbell is not in private practice as a lawyer, he should not be treated any differently from any other litigant in person.We therefore make no costs award.

Solicitors

Crown Law Office, Wellington