In Bigg v SAS Trustee Corporation [2016] NSWCA 236, the New South Wales Court of Appeal dismissed an application for leave to appeal a decision about a former employee’s entitlement to a superannuation benefit.
Mr Bigg applies for a superannuation benefit
Mr Bigg was dismissed from his employment with the Police Force in 1996 on the basis that he had engaged in corrupt or criminal conduct. In 2014, Mr Bigg applied for a medical discharge benefit from the Police Superannuation Fund.
The Police Regulation (Superannuation) Act 1906 (NSW) provides that a ‘disabled member of the police force’ can access medical discharge benefits from the Police Superannuation Fund. The definition of a ‘disabled member of the police force’ extended to a member of the police force who was incapable of exercising his or her functions because of an infirmity at the time that he or she ‘resigned’ or ‘retired’ from the police force.
Mr Bigg’s argument
Mr Bigg argued that his dismissal was unfair and unjust. He suggested that, on that basis, he ought to be treated as if he had resigned or retired. He suggested that the parliament would not have intended to provide people in his situation without access to a medical discharge benefit.
Mr Bigg’s argument is rejected
In a unanimous judgment, the Court of Appeal held that Mr Bigg was not entitled to a superannuation benefit as he had not ‘resigned’ or ‘retired’ from the police force. In so doing, it provided some commentary on the ordinary meaning of the words ‘resign’, ‘retire’ and ‘dismiss’. It said:
- A person ‘resigns’ from employment when he or she advises the employer that they will no longer work in that employment from a particular date.
- A person ‘retires’ from employment either because they have reached a compulsory retiring age, or because they have made a decision to no longer be in employment.
- An employee is ‘dismissed’ when the employer brings the employment relationship to an end, often because of some form of unsatisfactory conduct by the employee.
Lessons for employers and employees
Though the result in Bigg was something of a foregone conclusion, it does contain an important lesson that both employers and employees should keep in mind.
Whenever you are confronted with a dispute that requires you to apply words in a contract, regulation, Modern Award or statute, you should try as best you can not to let the result that you want to achieve colour the way that you interpret the relevant words.
The best place to start is always with the ordinary meaning of the words used in the document. You should then read the surrounding provisions in the document to see whether they shed any light on the meaning of those words. You should think about what the words mean, not what you think is just or favourable to you.
How can JFM Law help?
If you have any queries regarding the drafting of an employment document, or if you are seeking advice as to the interpretation of a document, contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au
The information contained in this post is current at the date of editing – 3 October 2024.
