[2018] NSWSC 44

Judgment Summary Supreme Court New South Wales

McKay v Department of Family & Community Services [2018] NSWSC 44 Button J The Supreme Court has upheld the appeal of Ms Denise McKay from a decision of the Industrial Relations Commission of New South Wales in McKay v Department of Family and Community Services [2017] NSWIRComm 1028. The decision against which she had appealed was itself the dismissal of an appeal against the termination of her employment with the Department of Family and Community Services. The appeal to the Supreme Court was limited to matters of law alone, and Justice Button made it clear that it was no part of his function to make findings of fact. The employment of Ms McKay had included her taking responsibility for children in need of protection. It was not disputed between the parties that a significant proportion of those children would be potentially or actually exposed to prohibited drugs. In 12 August 2015, police had executed a search warrant at the home where Ms McKay was living with her husband, his father, and their four-year-old child. The police located a quantity of “synthetic cannabis”, drug paraphernalia, and a significant sum of cash. Synthetic cannabis had become a prohibited drug some time before that date. An investigation ensued into Ms McKay. Adverse findings were made about her conduct and her state of knowledge by an investigator retained by the Department. On the basis of those findings, Ms McKay was invited to resign. When she did not, her employment was terminated. Ms McKay appealed to the Industrial Relations Commission. In a decision 6 June 2017, a Commissioner of that body upheld some of her grounds of appeal, on the basis that the Commissioner was not satisfied of some of the matters found by the investigator. The Commissioner nevertheless dismissed the appeal, on the basis that the lack of knowledge on the part of Ms McKay about the drug dealing that had been occurring in her family home, thereby exposing her four-year-old child to prohibited drugs, constituted misconduct for the purposes of section 69 of the Government Sector Employment Act 2013 (NSW). On appeal, each of the barristers agreed that the finding of the Commissioner should be understood as being that Ms McKay was truly inadvertent to what was occurring in her home, rather than that she was negligent or “wilfully blind” to it. Although Justice Button rejected two other grounds of appeal asserting that the Commissioner had committed an error of law, his Honour found that true inadvertence in one’s private life could not, without more, constitute misconduct for the purpose of the sanctions to be found in the relevant Act. For that reason, Justice Button upheld the appeal, and quashed the termination of the employment of Ms McKay. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.

Finally, in his judgment Justice Button expressed an appreciation that many may find it strange that a person in the circumstances of the appellant nevertheless succeeded in having the termination of her employment quashed. His Honour emphasised that he had expressed no view, nor made no judgment, about the appropriateness of Ms McKay for her employment. His Honour had merely interpreted the legal meaning of the contents of a statute that had been created by Parliament.

This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.