Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069

Industrial Relations Commission New South Wales Medium Neutral Citation: Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069 Hearing dates: 15 June 2018 Date of orders: 01 November 2018 Decision date: 01 November 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: 1. Order that the period of employment of Ms McKay with the respondent is taken not to have been broken by the decision of the respondent to dismiss her. 2. Order that the respondent pay an amount calculated in accordance with [52] of these reasons. 3. Direct the parties to have discussions and provide each other with such documentation as necessary to facilitate that calculation. 4. Direct the appellant to file short minutes giving effect to these orders within 21 days. 5. I grant liberty to apply in the event of disagreement about the calculation. Catchwords: PUBLIC SECTOR – disciplinary appeal – appeal to Supreme Court – appeal allowed remitted to Industrial Relations Commission – orders under s 100D (1)(b)-(c) – whether orders should be made – calculation of what the employee would have received - whether the appellant has a duty to mitigate loss - overarching discretion Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Terrigal Memorial Country Club Ltd v Federated Liquor and Allied Industries Employees Union of Australia, NSW Branch [1992] 46 IR 14 Texts Cited: The Australasian Faculty of Occupational & Environmental Medicine, Royal Australasian College of Physicians, Australian and New Zealand Consensus Statement on the Health Benefits of Work. Position Statement: Realising the Health Benefits of Work, (2011) Category: Consequential orders (other than Costs) Parties: Denise McKay (Appellant) Department of Family and Community Services (Respondent) Representation: Counsel: A Crossland (Appellant) R S Warren (Respondent)