Govt dept's misconduct case goes to pot


Govt dept's misconduct case goes to pot

A dismissed family and community worker has won her case against her employer despite synthetic marijuana being found in the family home where her child lived.


Get unlimited access to all of our content.

A dismissed family and community worker has won her case against her employer despite synthetic marijuana being found in the family home where her child lived.


Denise McKay had worked for Family and Community Services since 12 November 2007. She worked to assist vulnerable families and children. In early 2015 she was appointed acting manager in charge of case work.

On 12 August 2015 NSW police executed a search warrant at the home she shared with her husband, his father, and her four-year-old child. The police found a large quantity of prohibited synthetic cannabis and a large sum of money.

On 19 August 2015 a report was made by the police stating that Ms McKay's child had been exposed to illegal drugs. This report was known to FACS.

On 4 September 2015 Ms McKay was suspended from her job pending an investigation. The investigator found that she had exposed her child to drugs in the family home, that she failed to report illegal activity undertaken by her husband and his father, and that she engaged in secondary employment.

On 21 July 2016 the district director concluded that Ms McKay had engaged in misconduct warranting termination of her employment. She was given a chance to make submissions. Following a number of submissions Ms McKay was directed to resign.

On 1 September 2016 the district director wrote to Ms McKay advising her that her employment had been terminated.

She challenged the decision of her employer but was unsuccessful before the Industrial Relations Commission (IRC). She appealed to the Supreme Court of NSW.

The law

Under section 69(4) of the Government Sector Employment Act 2013 an employer can terminate an employee’s employment for misconduct.

Misconduct according to the Act can relate to an incident that happened whilst the employee was not on duty (s69 (1)).


Ms McKay argued that inadvertence in her private life to the criminality of another person did not constitute misconduct under s 69(1) of the Act.

The respondent argued that section 69 was clear and that the necessary misconduct need not occur at work. It further contended that in some cases negligence at work could amount to misconduct and, in that case, there is no reason why negligence or inadvertence away from work could not amount to misconduct.

Legal question

Firstly, the court noted that this was not a question of negligence. The court had to decide whether the inadvertence of Ms McKay (not her negligence) in her private life, in that she didn’t pay attention to the home situation she put her child in, constituted misconduct for the purposes of the Act.


The court noted that misconduct was undefined in the Act and proceeded to interpret it based on the text, context, and purpose of s69.

The text

The court stated that the word misconduct almost always captures a sense of mental or physical activity. It does not usually capture doing nothing or knowing nothing.

The context

The court noted that the context in which the word ‘misconduct’ is found, one which is basically about imposing sanction against an employee, does not suggest that inadvertence can constitute misconduct.

The purpose

The court noted that the purpose of the law can be seen as one that has punitive features in that, if contravened, it can lead to sanction. Negligence is sanctioned in certain circumstances but inadvertence is rarely punished especially when it is not combined with physical action.

As Judge Button put it: “In short, to my mind, each of the text, context, and purpose of s69 of the GSE Act suggest that true inadvertence in one’s private life is not of itself misconduct for the purpose of one’s employment.”

The fact that Ms McKay was inattentive or inadvertent to her child’s home surroundings was not misconduct for the purpose of terminating her employment.

Denise McKay v Department of Family & Community Services [2018] NSWSC 44 (2 February 2018)

Post details