The High Court rejected a tourism officer’s claim that his employment terms entitled him to become acting chief executive during the chief executive’s anticipated absence on sick leave. The court also refused his application for costs.
The proceedings began in April 2006, after the North Western Regional Tourism Authority advertised an acting chief executive post for the period from 18 April to 30 June. The plaintiff, a Senior Tourism Officer, argued that a 1993 job description entitled him to act as manager when the chief executive was absent. He did not apply for the advertised role, maintaining that it was his contractual right.
He relied on the job description’s wording, “to act as Manager in the absence of RTM”, and on evidence he said showed that senior tourism officers deputised for chief executives. The authority argued that the clause could require him to deputise when asked, but did not give him a right to be appointed to the acting role.
The court had granted an interim injunction on 18 April 2006 restraining the authority from proceeding with the selection or appointing another person. By the time the matter came before the court for hearing, the chief executive had returned to work, so the substantive relief was no longer necessary. The plaintiff pursued the case to establish his claim for costs. The court heard affidavits and oral evidence.
Mr Justice Michael Peart found that the job-description clause was not ambiguous. He was not satisfied that the plaintiff had established an invariable practice of appointing the senior tourism officer whenever a chief executive was absent, regardless of the length or nature of the absence.
The judge distinguished ordinary short absences, when a colleague could cover tasks while continuing in their own job, from a prolonged, full-time absence requiring someone to take over the chief executive’s role. He also referred to an earlier temporary appointment in 2000, when the acting chief executive was paid the salary appropriate to that role. In his view, the 1993 clause did not establish a right to assume the full-time post during a prolonged absence, with no provision for salary or existing duties.
The court concluded that the plaintiff had failed in his claim and was not entitled to an order for costs against the authority. The judgment does not record a final determination of the advertised appointment: the chief executive had returned, and the requested substantive relief was no longer pursued.