Denise McKay v Department of Family & Community Services [2018] NSWSC 44

Denise McKay v Department of Family & Community Services [2018] NSWSC 44

The Commissioner erred in law by finding that the plaintiff's true inadvertence in her private life to criminal events occurring around her could constitute misconduct under s 69 of the Government Sector Employment Act 2013 (NSW). Although off-duty conduct can constitute misconduct, the text, context and purpose of s 69 did not support treating sincere lack of awareness, as distinct from negligence or wilful blindness, as misconduct justifying the termination decision.

Jurisdiction
Australia
Judgment Date
02 February 2018
Procedural Posture
Appeal Pursuant to S 197 B of the Industrial Relations Act 1996 (nsw) / Supreme Court Appeal From a Commissioner of the Industrial Relations Commission Dismissing an Appeal Against Termination of Employment
Outcome
The appeal to the Supreme Court was allowed; the Commission's order dismissing the plaintiff's appeal was set aside; the plaintiff's appeal to the Commission was allowed; the matter was remitted for ancillary orders; costs were awarded to the plaintiff.
Legal Topics
['appeal Limited to Questions of Law' 'termination of Government Sector Employment' 'misconduct Under S 69 of the Government Sector Employment Act 2013 (nsw)' 'briginshaw Standard' 'findings of Fact With No Evidence' 'private Life and Out of Duty Conduct']
['industrial Law' 'employment Law' 'public Sector Employment'] ['appeal Limited to Questions of Law' 'termination of Government Sector Employment' 'misconduct Under S 69 of the Government Sector Employment Act 2013 (nsw)' 'briginshaw Standard' 'findings of Fact With No Evidence' 'private Life and Out of Duty Conduct']

Case Brief

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Procedural Posture

Appeal Pursuant to S 197 B of the Industrial Relations Act 1996 (nsw) / Supreme Court Appeal From a Commissioner of the Industrial Relations Commission Dismissing an Appeal Against Termination of Employment

Legal Issues

  1. 1 ['Whether the Commissioner made findings of fact for which there was no evidence, amounting to an error of law.' 'Whether the Commissioner failed to apply the Briginshaw standard when determining the misconduct allegation.' "Whether true inadvertence in the plaintiff's private life to the criminality of another person could constitute misconduct for the purposes of s 69 of the Government Sector Employment Act 2013 (NSW)."]

Ratio Decidendi

The Commissioner erred in law by finding that the plaintiff's true inadvertence in her private life to criminal events occurring around her could constitute misconduct under s 69 of the Government Sector Employment Act 2013 (NSW). Although off-duty conduct can constitute misconduct, the text, context and purpose of s 69 did not support treating sincere lack of awareness, as distinct from negligence or wilful blindness, as misconduct justifying the termination decision.

Court Disposition

The appeal to the Supreme Court was allowed; the Commission's order dismissing the plaintiff's appeal was set aside; the plaintiff's appeal to the Commission was allowed; the matter was remitted for ancillary orders; costs were awarded to the plaintiff.

Orders

  • ['The appeal of the plaintiff to this Court is allowed.' 'The order of the NSW Industrial Commission (the Commission) dismissing the appeal of the plaintiff to the Commission is set aside.' 'The appeal of the plaintiff to the Commission is allowed.' 'The matter is remitted to the Commissioner for the making of...