WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

-v-

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECH

DATE FRIDAY, 13 AUGUST 2004

FILE NO. PSACR 21 OF 2004

CITATION NO. 2004 WAIRC 12338

Result Application granted.

Catchwords Employee paid greater sick leave than his entitlement – Employer seeks to recover the overpayment – Whether industrial matter – Whether discretion should be exercised in favour of employee - Government Officer – Industrial Relations Act 1979 s 7(1), s 44, s 44(9), s. 80E; Property Law Act 1969 s 125

Representation 

Applicant Ms S. Thomas and later by written submission

Respondent Ms V. Jabr and later by written submission

_______________________________________________________________________________

Reasons for Decision

1         The union brings this claim on behalf of Mr Dinnie, an employee of the respondent.  While he was ill with meningitis between 26 September 2002 and 2 May 2003 Mr Dinnie was paid sick leave.  He was paid 22.1 days’ sick leave more than his entitlement and the respondent has required Mr Dinnie to reimburse this either by deducting it from his annual leave, repaying the cash equivalent or not accessing any further sick leave entitlements until his pro‑rata credits accumulate to cover the over-utilisation.  Mr Dinnie has objected to this. 

The Union’s Submissions

2         The union agreed that Mr Dinnie has been overpaid 22.1 days.  The union argued, however, that during the seven months of his illness Mr Dinnie contacted Mr Palm, an employee in the respondent’s personnel area, every three to four weeks to obtain advice on how many sick days were remaining to him.  Mr Dinnie advised Mr Palm that, if his health permitted, he wished to avoid having to use any of his annual leave entitlements.  Mr Dinnie regularly submitted medical certificates and was advised in writing by Ms King, Acting Team Co-ordinator, Personnel Services of the receipt of the certificates and his sick leave application forms.

3         The union submitted that on 1 April 2003 Ms King advised Mr Dinnie that a sick leave application was received from him for the period 30 January 2003 to 16 April 2003.  However, this application had not been processed until 1 September 2003, some five months after its receipt.  According to Ms King, Mr Dinnie’s final sick leave application for the period 17 April 2003 to 2 May 2003 had been received in personnel services on 10 June 2003. 

4         When Mr Dinnie had contacted Mr Palm on 1 April 2003 he was advised he had 27 sick leave credits remaining.  Mr Dinnie stated that his illness had reached a plateau at that time and his doctor was allowing him to determine when he felt well enough to return to work.  Based on Mr Palm’s advice Mr Dinnie made the decision that he had to attempt to return to work on 5 May 2003.  This would leave him with approximately eight days of sick leave credit which he could utilise if he needed to.  Mr Dinnie stated that if he had been told that he had run out of sick leave entitlements he would have attempted to return to work earlier rather than have to use his annual leave.  Mr Dinnie therefore returned to work on 5 May 2003. 

5         Between 17 June 2003 and 15 June 2004 there had been contact between Mr Dinnie and the respondent regarding the correct calculation of any outstanding entitlement.  During this period, Mr Dinnie discovered that an amount of leave had been deducted from his annual leave credits to cover the shortfall in his sick leave entitlements.  When Mr Dinnie queried this action the leave credits were restored to him.  It was on 15 June 2004 that the respondent advised Mr Dinnie that he had over-utilised his sick leave by 22.1 days.

6         In support of Mr Dinnie, the union stated that the respondent was obliged by s.7 of the Public Sector Management Act 1994 to maintain proper standards at all times in the creation, management, maintenance and retention of records.  By s.49D(2)(f) of the Industrial Relations Act 1979 an employer must ensure that details are recorded of all leave taken by an employee, whether paid, partly paid or unpaid.  Regulation 4 of the Industrial Relations (General) Regulations 1997 states than an employer is to ensure that the employment records of the employee are kept in a manner that enables compliance with s.49D of the Act to be readily ascertained. 

7         Accordingly, Mr Dinnie had done everything that had been required of him.  He had repeatedly sought advice from the respondent regarding the sick leave entitlements that he had remaining to him, accepted that advice in good faith and had made a decision when he would attempt to return to work based upon that advice. 

8         The union referred to the decision of the Public Service Arbitrator in Civil Service Association of WA v. Director General Department of Justice [2003 WAIRC 09922]  where an employee, Mr Simmons, had received some leave to which he was not entitled.  The Arbitrator, Scott C recognised that the respondent had to bear some responsibility for failing to record a period of leave taken by Mr Simmons and issued an order to the effect that the respondent and the applicant shared the burden of the error equally. 

9         The union in this case submitted that Mr Dinnie contacted the respondent on a number of occasions to obtain information about his remaining sick leave entitlements: the respondent had had a number of opportunities over a seven month period to check and verify the information it provided to Mr Dinnie.  The respondent was aware of Mr Dinnie’s wish to try and avoid over-utilising his sick leave and having to utilise annual leave credits.  The respondent was also aware of the seriousness of Mr Dinnie’s illness and therefore had a further obligation to ensure that the information he was provided with was correct. 

10      The union also referred to Greg Logan-Scales, Department of Consumer and Employment Protection v. Olten Pty Ltd [2003 WAIRC 09130] where His Worship W G Tarr IM stated that where there is an obvious error in the employer’s records raising a doubt about an entitlement, the employee should be given the benefit of that doubt. 

11      The union stated that in this matter the failure was the respondent’s to process some of Mr Dinnie’s sick leave applications in a timely manner and to take account of public holidays occurring during his sick leave on four separate occasions.  In one case five months elapsed between receiving the application for sick leave and processing that application so that it formed part of Mr Dinnie’s record.  It meant that the respondent failed to properly notify Mr Dinnie of the correct situation until seven months after he returned to work and then only after he queried the matter with Mr Palm whilst he was booking a period of annual leave.  The respondent must have been aware that there was a backlog in processing leave applications but did not advise Mr Dinnie that the figures provided to him may be inaccurate. 

12      The union also referred to s.125 of the Property Law Act 1969 to submit that if the person from whom recovery is sought received the payment (in this case sick leave entitlements) in good faith and altered their position in reliance on the validity of the payment it would be inequitable to recover part or even all of that payment.  The union submitted that it would therefore be inequitable to attempt to recover the over‑utilisation of sick leave. 

13      The orders sought by the union, as set out in its written reply to the respondent’s submission, are that Mr Dinnie be deemed to have been on paid leave, or that Mr Dinnie be credited with leave, for the 22.1 days in question. 

The Respondent’s Submissions 

14      The respondent approached the matter on the basis that Mr Dinnie has been paid for 22.1 days when he was absent from work due to sickness and when he had no entitlement to sick leave payment.  He has been advised that he has been paid without proper authority and has been offered various alternatives to remedy the situation which he has rejected.  In those circumstances, these various alternatives are no longer pursued by the respondent.  Rather, the respondent now intends to take action in the Perth Local Court to have Mr Dinnie repay the amount paid to him without proper authority. 

15      The respondent stated that the amounts paid to Mr Dinnie were paid out of the Consolidated Fund.  That is, they were paid out of consolidated revenue containing money appropriated to the Department of Justice by Parliament and maintained by the Department of Justice for the specific purpose of payment of wages. 

16      The respondent stated that although the money improperly paid to Mr Dinnie was related to the employment relationship between the respondent and him, Mr Dinnie’s present obligation to pay the money back to the respondent and the respondent’s ability to pursue it by legal action are not “industrial matters”.  Therefore the Public Service Arbitrator does not have the jurisdiction to enquire into and deal with it.  The respondent said in the alternative that the Public Service Arbitrator should refrain from further hearing the application on the basis that further proceedings are not necessary or desirable in the public interest because the appropriate forum for resolution of this dispute is the Perth Local Court. 

17      The respondent stated that the Arbitrator does not have the jurisdiction to deal with the matter because, although the fact that Mr Dinnie owes the respondent $4,858.50 arose out of the employment relationship, the liability for repayment and the action which the respondent must properly take to recover that money are not issues which are “in any meaningful way affected or related to the work, rights or duties of an employer and an employee in an industrial sense” as those words were used by Murray J in Robe River Iron Associates v. The MEWU (1995) 75 WAIG 2478 at 2479.  Rather, this matter relates to a common law cause of action which, in the words of Murray J “just happened in this case to arise factually out of the work which the employee was engaged to perform”. 

18      The respondent submitted there is no jurisdiction to enquire into and deal with this matter in such a way as to prevent the respondent from recovering an amount of money paid without proper authority as it is not properly characterised as an “industrial matter”.  The effect of the Public Service Arbitrator granting the order sought by the union in this case would be to injunct the respondent from taking legal action to recover the amount owed to it. 

19      Further, although the Public Service Arbitrator in other cases has considered similar situations in terms of the overall fairness and attempted to come up with a result that best reflected the equity and good conscience of the matter the respondent submitted that approach is not ultimately appropriate.  Not only are there the legal principles which have a firm footing in good public policy but also in a matter such as this there are issues other than fairness to an individual to consider.  Relying upon Attorney General v. Gray [1977] 1 NSWLR 406, a decision of the New South Wales Court of Appeal, the respondent submitted that public monies dispersed contrary to statute can be recovered despite representations made by those who dispersed them and this is necessary to safeguard the financial stability of the State.  Where a determination has been made as to the salary which is fairly appropriate to the work to be performed that is the only salary which may be paid for that work. 

20      The respondent submitted that pursuant to s.64(2) of the Public Sector Management Act 1994 Parliament has entrusted the Director General of the Department of Justice to pay his employees “the salary which is fairly appropriate to the work to be performed” and that is the only salary which may be paid for his work.  The Parliament makes appropriation of money to the Department of Justice so that the Department of Justice may pay to its employees the correct remuneration for that classification.  There is no authority for the Director General to unilaterally pay an employee who is classified at a certain level more money than the corresponding level of remuneration for that classification.  Such a payment would be made without parliamentary approval.

21      Here, the respondent has paid Mr Dinnie out of the Consolidated Fund despite the fact that he did no work and was not using leave to which he was entitled.  Those payments were not authorised by Parliament and estoppel does not arise in these circumstances. 

22      The respondent also queried whether s.125 of the Property Law Act 1969 has application to monies paid out of the Consolidated Fund without proper statutory authority; it does not expressly oust the common law principle and the respondent does not believe that s.125 of the Property Law Act 1969 can override the sound principle, based on important public policy considerations, that the Consolidated Fund can only be expended in a way in which Parliament authorises. 

23      (The respondent also noted the argument put in the union’s written submissions that Mr Dinnie would have returned to work earlier than he did if he knew he had exhausted his sick leave.  The respondent submitted that this position is a questionable one.  It leads to the conclusion that Mr Dinnie is submitting firstly that it is not only fair that the respondent pay Mr Dinnie money when he was not working, but also that it do so when he was capable of working but chose not to do so.  The respondent stated in its written submission that it wished to test this argument fully in evidence before the Public Service Arbitrator.  However, this position was subsequently withdrawn by the respondent and the Arbitrator was asked to make its decision without further reference to it.)

Conclusions

24      The facts of the matter are sufficiently agreed between the parties and are set out in the reasons above.  The respondent challenges the Public Service Arbitrator’s jurisdiction to deal with the matter on the ground that it is not an “industrial matter” as that is defined.  Accordingly, the Public Service Arbitrator is obliged to consider the issue of jurisdiction first. 

25      The jurisdiction of the Public Service Arbitrator is set out in s.80E of the Act.  By s.80E, relevantly, the Public Service Arbitrator has the exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer.  It is not argued that Mr Dinnie is not a government officer and I find that he is. 

26      In accordance with s.80G of the Act, the Public Service Arbitrator convened a conference of the parties pursuant to s.44 of the Act.  The matter was not settled by agreement between the parties.  Section 44(9) of the Act states:

 “(9) Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.”

27      For the Public Service Arbitrator to hear and determine the question, dispute or disagreement presently before it, it must be a question, dispute or disagreement “in relation to” an “industrial matter”. 

28      An “industrial matter” is defined in s.7 of the Act, where relevant, as follows:

 “ ‘Industrial matter’ means any matter affecting or relating or pertaining to the work, privileges rights, or duties of employers or employees in any industry, or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to -

 (a) the wages, salaries, allowances or other remuneration of employees or the prices to be paid in respect of their employment;

 (b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;”

29      The definition later also states that an “industrial matter”:

 “ … also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute …” [followed by some exclusions which are not presently relevant].

30      The matter referred to the Public Service Arbitrator was the circumstances of Mr Dinnie taking paid sick leave during a period of illness which lead him to have been paid more sick leave than his entitlement.  Mr Dinnie was on leave of absence.  The entire period was paid leave of absence.  Subsequently it has become apparent that his sick leave entitlement did not cover the entire period of his absence but as a matter of fact Mr Dinnie was on paid leave for the entire period of his absence.  

31      At the time that he was paid the sick leave both Mr Dinnie and the respondent believed he had an entitlement to it.  This was incorrect and the respondent later required him to enter into an arrangement to allow the respondent to recoup the additional period in excess of his entitlement paid to him.  I find that the over-utilisation by an employee of his or her sick leave entitlement is a matter which relates to, or pertains to, leave of absence as that is referred to in the definition of “industrial matter”.  Therefore, the question, dispute or disagreement to be heard and determined under s.44(9) is an  “industrial matter” as defined. 

32      By s.44(9), the question, dispute or disagreement is to be “in relation to” an industrial matter.  The words “in relation to” will necessarily take their meaning from the context in which they are used.  They are words of broad meaning and the issues between the parties about the situation now faced by Mr Dinnie resulting from the respondent seeking to recoup the excess leave entitlement are “in relation to” the circumstances of Mr Dinnie being paid sick leave during a period of illness which exceeded his entitlement.  The words “relating to” as they are used in s.66(2) of the Act have been held to be words of the widest import and should not, in the absence of compelling reasons for the contrary, be read down: Jones v CSA (2003) 84 WAIG 4 at [19] and there does not appear to be any reason not to regard similarly the words “in relation to” as they are used in s.44(9).  I find that the question, dispute or disagreement is “in relation to” an industrial matter.

33      When the matter was referred for hearing the claim of the union was that the Public Service Arbitrator order that Mr Dinnie not be penalised for any over-utilisation of his sick leave entitlements; however, in granting relief or redress under this Act the Public Service Arbitrator is not restricted to the specific claim made or to the subject matter of the claim: s.26(2).  The claim made does not determine whether or not the matter before the Public Service Arbitrator is an industrial matter.

34      The respondent characterised the matter before the Public Service Arbitrator as a dispute over an alleged overpayment.  It argued that the action which the respondent must properly take to recover the money that has been overpaid is not an issue which is an “industrial matter” because it does not relate to the work, rights or duties of an employer and an employee in an industrial sense.  However, I do not believe that the matter before the Public Service Arbitrator can be so narrowly characterised.  The stated intention of the respondent now to make a claim in the Perth Local Court was not a part of the matter before the Public Service Arbitrator.  It was not the question, dispute or difficulty that has been referred for hearing and determination and the declaration by the respondent of an intention to make a claim in the local court does not determine whether or not the matter before the Public Service Arbitrator is an industrial matter. 

35      It may well be an option open to the respondent to take the matter to the Perth Local Court.  The authorities make it quite clear that no order of this Commission is able to remove the right of an employer to take such an action.  In Robe River Iron Associates v. The MEWU (op.cit.) the company had issued a summons out of the Local Court at Perth claiming damages from an ex-employee as a result of damage caused to a piece of equipment by the alleged negligence of the ex-employee.  The basis of the compulsory conference before the Commission was that the company was acting unfairly and the union had sought an order that the company not proceed further with that action.  The Industrial Appeal Court held that such an action cannot be stayed by an order of the Commission. 

36      However, the matter now before the Arbitrator stands in marked contrast to the facts in that matter: not only is Mr Dinnie a current employee but also the matter concerns the respondent having paid Mr Dinnie for the entire period of his illness in excess of his leave entitlement.  There is no present action in the Local Court and no application for an order in relation to any such action.

37      There is direct authority for the proposition that the demand by an employer that an employee pay to it a sum of money which had been paid to the employee and to which the employee was not entitled, where the lack of entitlement is not a matter in dispute, is not an “industrial matter”: Association of Draughting, Supervisory and Technical Employees, WA Branch v. Building Management Authority (1992) 72 WAIG 2162.  In that matter, the Full Bench examined the definition of “industrial matter” (as it was in 1992 and necessarily before its later amendment in 2002) and held that an amount paid to an employee to which the employee was not entitled did not relate to the right of an employee as an employee if he was not entitled to it under his contract of employment. 

38      The Full Bench held that it related to the right of an employer but not in relation to the contract of employment; rather it related to the employer as a person who alleged that the employee will unjustly enrich himself by a mistake.  The Full Bench held that it did not relate to the duties of employers or employees.  Neither was it a matter which related to the wages, salaries, allowances or other remuneration of employees because it was not remuneration, it was not part of the salary and it was not part of the allowance.  The Full Bench held that it did not relate to any other matters as defined nor to the work, rights or duties of employers or the work, rights or duties of employees. 

39      That decision of the Full Bench is binding on the Public Service Arbitrator however the definition of “industrial matter” has been amended since that decision.  The amended definition is set out in paragraphs [28] and [29] above.  The amendments effected by s.185(3) of the Labour Relations Reform Act 2002 added the words “or pertaining”; deleted the words “matter relating” and inserted the words “matter affecting or relating or pertaining”; inserted the words “the relationship between employers and employees”; and inserted the words “any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute”. 

40      The words “or pertaining” broaden what was already a broad definition.  For a matter to pertain to the relationship between employers and employees it must affect them in their capacity as such: R v. Coldham, ex parte Australian Social Welfare Union (1983) 15 CLR 297; re Alcan Australia Limited, ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 68 ALJR 626 at 629 and 630.  In this case, the payment by the respondent of the entire period of Mr Dinnie’s illness affects both the employer and the employee in those capacities.

41      The definition was also altered by including the words “the relationship between employers and employees”.  As the history of the matter referred for hearing and determination shows, Mr Dinnie maintained contact with the respondent frequently during his leave of absence.  The payments to him occurred as a result of that relationship between employer and employee.  I find in these circumstances that those additional words, too, are a significant change from the definition as it was in 1992. 

42      The inclusion into the definition of “any matter of an industrial nature” introduces a qualification to the definition of “industrial matter”.  That is, an “industrial matter” includes any matter of an industrial nature.  For the reasons already given, I consider that the issue of the amount of sick leave available to Mr Dinnie and his utilisation of it and the payment by the respondent of its employee’s entire period of absence are matters of an “industrial nature”.  They are matters which have given rise to an industrial dispute which has been referred to the Public Service Arbitrator and dealt with pursuant to s.44 and s.80E of the Act.

43      The submission that the respondent now intends to take action in the Local Court does not alter the above conclusion.  The changed intention of the employer in a matter before the Commission (or the Public Service Arbitrator) does not determine whether the Commission continues to have the jurisdiction to enquire into and deal with the industrial matter involving that employer.

44      For all of those reasons I find that the matter before the Public Service Arbitrator is within the Public Service Arbitrator’s jurisdiction. 

45      Although the respondent argued that the Public Service Arbitrator should not exercise its discretion in the event that it does have jurisdiction it is to be noted that in the exercise of its jurisdiction the Public Service Arbitrator shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.  It is to have regard for the interests of the persons immediately concerned, whether directly affected or not, and where appropriate for the interests of the community as a whole. 

46      The respondent argued that the recovery of public monies dispersed contrary to statute is necessary to safeguard the financial stability of the State.  From the approach adopted by the respondent, the issue is simply to be seen as the right of the respondent to recover monies overpaid.  For the reasons already given, I am unable to share that view.  Nevertheless, the importance to the State that public monies be recovered is not to be discounted.  Indeed, it is one of the considerations to which the Public Service Arbitrator is obliged by s.26(1)(c) in the circumstances of this case to have regard.  The point to be made is that it is only one of the considerations the Public Service Arbitrator is obliged to take into account. 

47      The Public Service Arbitrator will also take into account:

1. That the circumstances leading to the present situation arose from delays in the respondent maintaining its employment records.  These delays are in contravention of s.49D of the Industrial Relations Act 1979.  They are in contravention of s.7 of the Public Sector Management Act 1994.  That the respondent is in breach of two employment statutes is a material factor and one which makes it more difficult for the respondent to justify its position.  The position in which the respondent finds itself was caused by its own lack of compliance with the law.

2. Correspondingly, Mr Dinnie, through his union, comes to the Public Service Arbitrator with clean hands: throughout his period of illness he regularly made contact with the respondent’s officers for the express purposes of monitoring his sick leave entitlement.  Mr Dinnie has acted in good faith and, with all due respect to him, most appropriately and properly. 

3. Further, the circumstances giving rise to the matter are not in any sense attributable to Mr Dinnie making a representation that he was entitled to the sick leave he was paid. 

4. By s.125 of the Property Law Act 1969 the receipt by Mr Dinnie at the time of payment during the entire period of his absence was “in good faith” and his remaining absent accordingly in reliance upon the information given to him by the respondent itself is a relevant consideration.  That section also obliges the Public Service Arbitrator to have regard to all possible implications in respect of the parties other than the union or Mr Dinnie to that payment.  I include in those implications that the recovery of public monies dispersed contrary to statute is necessary to safeguard the financial stability of the State.

The Property Law Act 1969 is, by its title, an act to amend and consolidate the law relating to property.  “Property” is defined in that Act to include real and personal property and any estate or interest therein and any thing or chose in action.  A chose in action is a proprietary right that is recoverable by action (Alderson v. St Columba - Kingswood College (2004) 84 WAIG 181 per Smith C at [103]).  I consider the respondent’s right to take action in the Local Court to be a chose in action.

The Property Law Act 1969 does not expressly state that it does not apply where any of its provisions are inconsistent with a provision of the Industrial Relations Act 1979.  I consider therefore that the provisions of s.125 are applicable to these circumstances.  I find that s.125 of the Property Law Act 1969 is a relevant consideration for the purposes of this matter. 

48      I also take into account the decision and the comments of Scott C in the matter referred to by the union.  The manner in which the Public Service Arbitrator approached the matter before her was, with all due respect, correct.  It is not to be approached on the narrow basis that the respondent urges.  Rather, all matters are to be taken into account.  In the different circumstances of the matter before Scott C, she decided that the parties should share equally the burden of the issue. 

49      I also take into account the comments of His Worship W G Tarr IM to which the union has referred me.  I regard his Worship’s comments as most apposite to the circumstances of this case: there was an obvious error in the employer’s records which raised a doubt about Mr Dinnie’s sick leave entitlement; he should be given the benefit of the doubt. 

50      In this case, there has been no contribution to the error by the employee concerned.  Rather, the error has been entirely the fault of the respondent who also has not complied with the law.  The employee with particularity queried his entitlement on many occasions to precisely avoid the situation in which he now finds himself.  In contrast to the respondent, the employee has s.125 of the Property Law Act 1969 in his favour. 

51      The decision in this matter is also to take into account the interests of the persons immediately concerned and the interests of the community as a whole.  It is manifestly important that monies paid without authorisation be able to be recovered either by the alternatives presented to Mr Dinnie, or in default by the action foreshadowed by the respondent.  Were it otherwise, the Consolidated Fund would be at risk of unauthorised expenditure on a potentially great scale.

52      The balancing of these issues is only able to be done on a case-by-case basis.  The decision reached in one case will not set a precedent for the circumstances of a different case.  Having regard to the genuineness of Mr Dinnie’s illness; that his period of absence was covered by medical certificates; and that the fault lies only with the respondent for what has occurred, the equity and good conscience lies with Mr Dinnie: he should be given the benefit of the doubt. 

53      Correspondingly the cost to the Consolidated Fund is not a significant cost.  The burden upon Mr Dinnie if he is obliged to repay the sum of $4,858.50 (as the respondent’s withdrawal of the re-payment options will oblige him to do) is far greater in a relative sense than the burden to the Consolidated Fund if he is not obliged to do so. 

54      Further, this decision turns very much on its own facts.  The risk of unauthorised expenditure on a potentially great scale is thus quite small. 

55      In all of the circumstances of this case the union has made out its claim.  I consider that the appropriate order to make is that Mr Dinnie be deemed to have been on paid sick leave for the 22.1 days prior to his return to work on 2 May 2003.  A Minute of the order to that effect now issues.