McGinn v Secretary, Family and Community Services [2017] NSWIRComm 1039

Industrial Relations Commission New South Wales Medium Neutral Citation: McGinn v Secretary, Family and Community Services [2017] NSWIRComm 1039 Hearing dates: 28, 29 June 2017 Date of orders: 10 July 2017 Decision date: 10 July 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: DISMISSAL – employee dismissed pursuant to statutory power – common law tests not relevant – exercise of power to be considered within statutory structure of contract - refusal to work established – requirement for procedural fairness – procedural fairness afforded – statutory power correctly used DISMISSAL – even where statutory power basis for dismissal, test remains test under Act – dismissal neither harsh, nor unreasonable nor unjust – application dismissed JURISPRUDENCE OF COMMISSION - Commission not court of strict pleading – tests applicable to striking out defences not applicable to employer's reply in s.84 proceedings – summary judgment not available to applicant in proceedings brought under s.84 Legislation Cited: Government Sector Employment Act 2013 s.47(1)(f) Industrial Relations Act 1996 s.84 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Director-General of Education v Suttling (1987) 162 CLR 427 Director of Public Employment v Public Service Association (on behalf of Brown) (2008) 184 IR 134 Hamod v State of New South Wales & Anor [2011] NSWCA 375 Hansen v Secretary of Department of Transport (2015) 255 IR 40 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 100 Category: Principal judgment Parties: Mrs Sophia McGinn (applicant) Secretary, Family and Community Services (respondent) Representation: Mrs S McGinn (applicant in person) Mr A Shariff (counsel) respondent File Number(s): 2017/141480