Attorney General's Department of NSW v Lupcho Dafkovski [2007] NSWIRComm 94

Attorney General's Department of NSW v Lupcho Dafkovski [2007] NSWIRComm 94

The statutory bar in s25(3) of the GREAT Act does not arise where an employee files a notice of appeal to GREAT and withdraws it before hearing; thus, the respondent was not precluded from bringing an unfair dismissal claim. The dismissal was harsh given the lack of prior incidents, the limited substantiation of the allegations, and the respondent's long, otherwise unblemished career. No error was shown in the refusal to award back pay, but a refusal to order continuity of employment was not justified when reinstatement is ordered.

Jurisdiction
Australia
Judgment Date
04 May 2007
Procedural Posture
Appeal and Cross Appeal / Decision on Appeal and Cross Appeal
Outcome
Appeal dismissed; Cross-appeal partly allowed
Legal Topics
['unfair Dismissal' 'public Sector Employment' 'sexual Harassment' 'jurisdictional Challenge' 'statutory Interpretation' 'remedies for Unfair Dismissal']
['industrial Law' 'employment Law'] ['unfair Dismissal' 'public Sector Employment' 'sexual Harassment' 'jurisdictional Challenge' 'statutory Interpretation' 'remedies for Unfair Dismissal']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Decision on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether s25(3) of the Government and Related Employees Appeal Tribunal Act 1980 precluded the respondent from bringing an unfair dismissal action after withdrawing an appeal to GREAT;' "Whether the respondent's dismissal was 'harsh' within the meaning of the Industrial Relations Act 1996;" 'Whether the Commission should have made orders for back pay and continuity of employment following reinstatement.']

Ratio Decidendi

The statutory bar in s25(3) of the GREAT Act does not arise where an employee files a notice of appeal to GREAT and withdraws it before hearing; thus, the respondent was not precluded from bringing an unfair dismissal claim. The dismissal was harsh given the lack of prior incidents, the limited substantiation of the allegations, and the respondent's long, otherwise unblemished career. No error was shown in the refusal to award back pay, but a refusal to order continuity of employment was not justified when reinstatement is ordered.

Court Disposition

Appeal dismissed; Cross-appeal partly allowed

Orders

  • ['Leave to appeal for the appellant granted; appeal dismissed.' 'Leave to appeal for the respondent as to continuity of employment granted; appeal upheld to this extent.' "Order substituted: Mr Lupcho Dafkovski's period of employment with the Attorney General's Department of New South Wales is to be taken as not...