Cook Islands Public Service Association (INC) v Maccauley [1981] CKHC 8 (24 February 1981)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

IN THE MATTER
of the Declaratory Judgments Act 1908

AND

IN THE MATTER
of the Public Service Act 1975

BETWEEN

COOK ISLANDS PUBLIC SERVICE ASSOCIATION (INC)
incorporated society registered at Rarotonga
APPLICANT

AND

JAMES JOSEPH MACCAULEY
of Rarotonga, Public Service Commissioner
BERNARD WALTER KANE and
RICHARD CHARLES CHAPMAN
of Rarotonga Public Servants
FIRST RESPONDENTS

AND

COOK ISLANDS PUBLIC SERVICE BOARD OF APPEAL
SECOND RESPONDENT

Date of Hearing: 3.12.80
Date of Decision: 24.2.1981

Clarke for applicant.
Solicitor-General for Respondents.

DECISION OF SIR GAVEN DONNE C.J.

This is a motion for a Declaratory Order determining the rights of appeal under the Public Service Act 1975 of certain public servants of the Cooks Islands.

The rights of appeal with which we are concerned are set out in section 40 of the Public Service Act 1975 which reads:

"Rights of appeal - (1) Subject to the provisions of sections 46 and 47 of this Act, every officer shall have a right of appeal in accordance with this section against the promotion of any officer, or the appointment of any person who is not an officer to any graded position if (in either case) the appointment of the appellant to the position would have involved his promotion:

Provided that no officer shall have any right of appeal in respect of any such promotion or appointment if the promotion or appointment was to a vacancy which had been notified in the Official Circular or otherside, unless the officer was an applicant for appointment thereto:

Provided also that any such appeal shall be deemed to have lapsed if, before the appeal is determined, the appellant is promoted to an equivalent grade or to a position with the same or higher maximum salary or the promotion or appointment that is the subject of the appeal is cancelled, or if the officer promoted or the person appointed dies, or vacates or renounces or becomes incapable of taking up the position or grade."

The right of appeal is thus given if the appellant would have been promoted if he has been the appointee. "Promotion" is defined in section 2 as follows:

" 'Promotion' means advancement from one grade to another within an occupational class or transfer from one occupational class to another involving in either case an increase in salary."

Now, Mr Clarke for the applicant contends that the "promotion" must relate to the position to which the appointment was made irrespective of the personal grading of the appellant. He further submits that a person must be graded for the position he holds in the sense that the personal grading of person occupying a position must coincide with that of the position.

I do not consider these submissions are tenable. Classification and grading under the Act are dealt with under sections 24, 25 and 26. The first step in grading must be under section 24(1) and (2). The section is concerned with (a) the establishment of categories of occupational classes (subsection 1), and (b) after that is done, the Public Service Commissioner and certain Departmental Heads appointed under section 10(4) must divide each occupational class into grades (subsection 2). In doing this, they must assess "the relative levels of responsibility and skills required to be exercised by employees" occupying each graded position and must also fix a salary rate to be paid in respect thereof. Positions in the Public Service are thus established under this section. The next step is to provide employees who are able to fill these positions. This involves an investigation of the qualifications and ability of every public servant. Consequently each public servant is considered and placed in an occupational class and graded in relation to his degree of "responsibility and skill".

This is done under section 25(1) which reads:

"Classification, grading and salaries of officers and probationers - (1) The Commissioner and the Departmental heads appointed pursuant to subsection (4) of section 10 of this Act shall place every officer and probationer in an occupational class and shall also place every officer and probationer in a grade in the appropriate occupational class according to the level of responsibility and skill required to be exercised in the performance of the duties assigned to him. Salary shall be payable to each officer or probationer according to his grading and on promotion, unless the Commissioner acting on his own or with the Departmental heads appointed pursuant to subsection (4) of section 10 of this Act, as the case may require, otherwise determines, an officer or probationer shall be awarded the minimum salary and proceed to the maximum for the grade as provided in section 27 of this Act."

(The underlining is mine)

Now, this section very clearly personally grades the public servant in his occupational class. There is no requirement to place him in any specific graded position in that class. He does however receive the salary payable according to his grading. All this section does is to give the public servant a personal grading which will qualify him for a position in an appropriate grade in the specific occupational class. The grading he receives does not necessarily relate to the position he holds, (Subsection 3). Section 26 provides for reviewing of grading of the Public Service on a continuous basis (subsection 1). Subsection 2 provides for the steps to be taken in the case where a post is regarded to one not coinciding with that of the officer then occupying it. In such a case, it does not follow that that officer is regarded to qualify him for the post. Subsection 4 gives our officer the right to apply for a review of the classification and regarding of the position he holds with a right of appeal if he is not satisfied with the review. It is possible also for the position to be regraded in this review without a consequent regrading of the officer.

I have no doubt, after considering these sections, that grading of position and grading of public servants are not necessarily inter-related. The position does not determine the grading of the officer holding it; his grading must qualify him for it. If it does not, he can be removed from it - see section 26(2) (supra).

I now turn to the question of promotion as defined in the Act (supra).

Firstly, the term applies to advancement from one grade to another - not from a graded position to another graded position. Secondly, it involves an increase in salary. The concept of promotion is that of advancement which must be accompanied by an increase in salary. Now salary accompanies a personal grading under section 25(1) and is personal to the officer graded. I am therefore of the view that in considering whether an officer has the right to appeal, the question as to whether an appointment to the position in respect of which the appeal is lodged must depend solely upon his personal grading and the salary payable to him therefor as opposed to the grading of the position he holds. I was referred by Mr Clarke to sections 20(b) and 21. These sections, I consider do not affect the position. The former relates to cases where no suitable position is available for the grading of the officer, section 21 relates to transfer. Both provisions are designed to meet the special circumstances mentioned therein.

The two officers on whose behalf these proceedings are taken are Mr P. Etches and Mr E. Ponia.

Mr Etches

I consider Mr Etches has a right of appeal. Mr Etches has a personal grading of Grade IV Scale 12. The position the subject of the appeal is Grade V Scale 14, carrying a salary of $7,020 minimum to $8,964 maximum. However, Mr Etches was at the material time receiving a salary in excess of this maximum, namely $10,216. In 1974 he, then an expatriate, chose to opt to accept local appointment in the Public Service. He was accepted by the Department of Education on the following terms (inter alia) recorded in a letter of the 27th March 1974 as follows:-

"2. The employee will not suffer any reduction in his basic salary, but this basic salary will be expressed as the local grading for his job plus an adjustment allowance to bring the total remuneration to the expatriate basic salary level at the time of termination of the contract.

Furthermore, although the local grading of the position will attract local salary increases, the adjustment allowance will abate by the amount of such increases until, eventually it disappears.

The effect of this is to 'freeze' the remuneration of the employee until such time as his local grading catches up with his basic expatriate salary."

I am satisfied therefore, that Mr Etches must be regarded as being employed on the basic local salary for the position he holds, namely a maximum of $7,884. Any additional payment he receives is not related to his local grading in the Public Service but is an "adjustment allowance" in pursuance of the special arrangement recorded in the letter from his Department (supra). For these reasons I have held he has the right to Appeal.

Mr Ponia

I have already held that it is the personal grading of the officer which determines his right to appeal. Here Mr Ponia by virtue of his personal grading, has the equivalent grading specified for the position in respect of which he appeals. Although he occupies a position on a lower scale than his personal grading, which, if it were the equivalent of the position he holds, would entitle him to appeal, his personal grading precludes him that right. I hold he has no right of appeal.

Sir Gaven Donne, K.B.E.
Chief Justice

Solicitor for the Applicant: Clarke Ingram & Co, Rarotonga.
Solicitor for Respondent: Solicitor-General, Rarotonga.