Director-General, Dept of Ageing, Disability and Home Care v Lambert

(2009) 74 NSWLR 523; [2009] NSWCA 102

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Appeal to and from administrative tribunal
3. › Government and Related Employees Appeal Tribunal
4. › Appeal on question of law
5. › Whether it is sufficient that the Tribunal's decision manifests resolution of a question of law
6. › Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54
1. Administrative Law
2. › Appeal to and from administrative tribunal
3. › Government and Related Employees Appeal Tribunal
4. › Powers of Tribunal on appeal
5. › Whether Tribunal has wider powers than employer at first instance
6. › Whether Tribunal can impose probation when employer cannot
7. › Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 48
8. › Public Sector Employment and Management Act 2002 (NSW), ss 42, 46
1. Public Service
2. › Disciplinary action
3. › Dismissal from Public Service
4. › Protective versus punitive jurisdiction
5. › Relevant considerations
6. › Whether personal hardship to employee is relevant to protective function
7. › Whether period of probation can be imposed
8. › Public Sector Employment and Management Act 2002 (NSW), Pt 2.7, ss 41-46
1. Administrative Law
2. › Judicial review
3. › Concurrent proceedings
4. › Statutory appeal and judicial review summons
5. › Whether privative clause precludes judicial review
6. › Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 48(3)
7. › Supreme Court Act 1970 (NSW), s 69

Quick Take

In public sector disciplinary proceedings before GREAT, personal hardship factors are not relevant 'mitigating circumstances' that can be balanced against the protective purpose of the jurisdiction, except in narrow circumstances (where they show the impact of measures short of dismissal would be sufficient to prevent recurrence, or where choosing between equally protective alternatives). The Tribunal cannot impose conditions on reinstatement (such as probation) that the employer could not have imposed at first instance under the PSEM Act. An appeal under s 54 of the GREAT Act lies where the Tribunal's decision manifests resolution of a question of law, even if the Tribunal did not expressly identify the question.