McKay v Department of Family and Community Services [2017] NSWIRComm 1028

Industrial Relations Commission New South Wales Medium Neutral Citation: McKay v Department of Family and Community Services [2017] NSWIRComm 1028 Hearing dates: 18 January, 13, 20, 21 & 22 February, 5 April 2017, written submissions on 12 and 21 April 2017 Decision date: 06 June 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The appeal of Denise McKay is dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – direction to resign – termination of employment – Child Protection Caseworker – Acting Manager Casework – execution of search warrant – discovery and seizure of synthetic cannabis – husband charged prosecuted and imprisoned – Risk of Significant Harm assessment on four year old child – allegations of misconduct – exposed child to illegal drugs – failed to report illegal activity – engaged in unauthorised secondary employment – independent investigation – misconduct allegations sustained by employer – on appeal allegations of failing to report illegal activity and unauthorised secondary employment not sustained – allegation of exposure of child to illegal drugs sustained on basis of appellant's gross negligence – necessary connection with employment established – appeal dismissed Legislation Cited: Industrial Relations Act 1996 Government Sector Employment Act 2013 Government Sector Employment (General) Rules 2014. Cases Cited: Briginshaw v Briginshaw (1930) 60 CLR 336 Re Pochi and Minister of Immigration and Ethnic Affairs (1979) ALR 247 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Rankin v Marine Power International Limited (2000) 107 IR 117 Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Rose v Telstra Corporation Limited – unreported, Print Q9292, Dec 1444/98, 4 December 1998 Category: Principal judgment Parties: Denise McKay (Appellant)