Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Stay application - police investigation - application dismissed

• [1] The Commission can decide how, when and where a matter is to be dealt with,[1] and so it has the power to adjourn a matter by vacating directions issued, effectively granting a stay on proceedings.[2]

In this case the Respondent in the substantive proceedings, Ithaca Crystals Pty Ltd ("Ithaca Crystals") has applied for a stay. The applicant, in the substantive proceedings, Ms McLaren, opposes the stay application. As well as seeking a stay, Ithaca Crystals asks that the parties be directed to report back to the Commission in eight weeks.

The parties both refer to the natural person of the Respondent, Mr Andrew Marshall, in the materials they have filed in relation to this application. Ms McLaren's submissions in relation to this stay application refer to Mr Marshall as the Second Respondent. She could have named him as a respondent when she made her substantive application,[3] but she did not do so; she referred to him as a contact person for Ithaca Crystals. Mr Marshall is not presently a respondent in these proceedings.

It is common ground that Ms McLaren resigned from her employment on 15 July 2024, effective 26 July 2024, but that the employment ended on 23 July 2024.

• [2] Ms McLaren's application describes some events that she says occurred on 23 July 2024, including the Respondent's Director Mr Andrew Marshall taking her phone without asking, failing to return it when asked, and trying to take it into the toilet. The application states she tried to stop the door closing, at which point Mr Marshall pushed his forearm into her chest. She says others told Mr Marshall to return her phone and he refused, but eventually one of the other staff was able to retrieve it. She says she understood Mr Marshall's comments to mean he wanted her to leave. She says she left work and went to the police station to give a statement about what had happened. She says that at 8:24 pm that night, she received an email from Mr Marshall with no text but attaching a payslip. She says that it was not normal to receive a payslip on a Tuesday, so she understood this to mean that Mr Marshall had terminated her employment early. Her submissions in response to this present application argue that if the Respondent took her leaving as a resignation, it should have, but did not, taken positive steps to confirm the resignation.[4]
• [3] On the other hand, Ithaca Crystals' response states that on 23 July 2024 Ms McLaren had physically assaulted Mr Marshall, and after doing so decided to leave the workplace early and without authorisation. It says she did so without notifying Ithaca Crystals that she was leaving early, nor providing a reason for doing so. Ithaca Crystals says that for this reason it formed the view that Ms McLaren had voluntarily resigned from her employment prior to 26 July 2024. It then paid out her entitlements, and in an act of good faith paid her for the rest of her notice period from 24 July 2024 to 26 July 2024.
• [4] On 12 August 2024, Ms McLaren applied to the Commission to deal with contraventions involving dismissal, under s 365 of the Fair Work Act 2009 ("the Fair Work Act"). In its response, filed on 30 September 2024, Ithaca Crystals raised a jurisdictional objection, namely that Ms McLaren was not dismissed. On 10 October 2024, I issued Directions in order to determine the jurisdictional objection, listing the matter for Hearing on 7 November 2024.
• [5] On 17 October 2024, the Respondent's lawyer informed my chambers that Mr Marshall, also his client, had become aware of an ongoing police investigation into Mr Marshall's conduct with Ms McLaren, and asked that this matter be adjourned until the police investigation was complete. Ms McLaren consented.
• [6] On 21 October 2024, my chambers advised the Directions of 10 October 2024 would be vacated. However, the adjournment was not to be indefinite: my chambers also advised that parties should report back by 18 November 2024 as to whether any further adjournment was sought, and, if so, whether the request was made by consent.
• [7] On 29 October 2024, I issued further Directions granting each party leave to be legally represented, vacating directions [2] through [6] of the Directions dated 10 October 2024, and adjourning the matter until a date to be fixed not before 18 November 2024.
• [8] On 18 November 2024, Ms McLaren's lawyer informed my chambers that Ms McLaren had not received any updates from the police and was unaware of the current status of the police investigation. It was Ms McLaren's view that the matter should proceed. Ithaca Crystals asserted, in response, that given Ms McLaren was unable to confirm the progress of the police investigation it would be inappropriate for the matter to proceed at this time.
• [9] On 20 November 2024, I issued further Directions to deal with this issue. On 28 November 2024, Ithaca Crystals applied for a stay. In summary the grounds of the application were that:

(a) Ms McLaren complained to the police that Ithaca Crystals' Director assaulted her;

(b) this complaint relates to the same incident referred to in Ms McLaren's substantive application;

(c) there is an ongoing police investigation; and

(d) "the Respondent" has a right to silence and to be protected against self-incrimination, information from this matter could be used against "him" in a potential criminal prosecution, and "they" would be unable to freely give evidence in these proceedings.

• [10] On 28 November 2024, along with its application, Ithaca Crystals filed written submissions. Despite my directions allowing it to file any affidavits, the Respondent also sought to file a signed but unsworn witness statement of Ms Rachael Fogarty, dated 28 November 2024.
• [11] On 5 December 2024, Ms McLaren filed written submissions.
• [12] I have read the parties' materials, including the submissions. I have considered them, and will refer to them as necessary in these reasons.

• [13] Section 589(1) of the Fair Work Act provides that the Commission may make decisions as to how, when and where a matter is to be dealt with.
• [14] The power to adjourn the proceedings, effectively granting a stay, is a statutory discretion, not an inherent power. The relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion, exercised in the circumstances under which the stay application is made.[5]
• [15] Section 577 of the Fair Work Act requires the Commission to perform its function and exercise its powers in a manner that is, among other things:

(a) fair and just;

(b) quick, informal and avoids unnecessary technicalities; and

(c) open and transparent.

• [16] Section 578 requires the Commission, in performing its functions and exercising its powers in relation to a matter, to take into account, among other things, the objects of the Act and any objects of the relevant Part of the Act, equity, good conscience and the merits of the matter. Section 3 provides for the object of the Fair Work Act. The most relevant part of the object for present purposes is:

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by ... (e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and ...

• [17] The substantive application is brought under Part 3-1, General Protections, of the Fair Work Act. Ms McLaren relies on sections 340 (which relates to workplace rights) and 351 (which relates to discrimination). Section 336 of the Fair Work Act sets out the objects of Part 3-1, most relevantly as follows:

336 Objects of this Part > > (1) The objects of this Part are as follows: > > (a) to protect workplace rights; > > ... > > (c) to provide protection from workplace discrimination; > > (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. > > ...

• [18] The objects of the Fair Work Act and the relevant Part of it include providing accessible and effective procedures, and effective relief. Effective relief, in relation to a general protections matter involving dismissal, can be obtained through conciliation in the Commission, or, if conciliation does not yield a settlement, applying to the courts. Before conciliation, though, the Commission will determine the Respondent's jurisdictional objection. A stay order would delay determination of that objection.
• [19] In Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar,[6] the Full Bench stated:

(a) the statutory discretion must "be exercised having regard to the Commission's central obligation to provide a fair hearing to parties in proceedings before it;"

(b) that obligation arose:

(i) directly from section 577(a) of the Fair Work Act, which directs the Commission to perform its functions and exercise its powers in a manner that 'is fair and just', and

• (ii) from the implied obligation to act judicially;[7] and
• (c) that one aspect of the duty to act judicially is "the obligation to afford a party a reasonable opportunity to allow his or her case to be put;"[8] and
• (d) that the Commission's primary obligation is to ensure the parties are afforded a fair hearing, and that ultimately the relevant question is: what does justice require in the circumstances?[9]
• [20] The parties rely[10] on McMahon v Gould[11] ("McMahon"). In that case the court considered an application to stay civil proceedings in light of criminal proceedings about the same subject matter. The court listed several guidelines with which it approached its decision in this matter. Those guidelines have since been considered in various cases and jurisdictions, including in the Fair Work Commission.[12] But though the guidelines are helpful:[13]
• (a) McMahon related to the exercise of an inherent power, not a statutory discretion; [14]
• (b) the Commission is not bound to follow McMahon;[15]
• (c) in any event McMahon does not establish a rigid code, and deciding a stay application will depend on the individual case;[16] and
• (d) rigidly applying McMahon may inappropriately confine the exercise of the Commission's discretion.[17]
• [21] Ms McLaren makes submissions arguing that the guidelines in McMahon favour her position against the stay application. Ithaca Crystals refers to some of the guidelines from McMahon as being "neutral criteria" and others as positively supporting its stay application.
• [22] The argument that some of the guidelines are "neutral criteria" is made on the basis that there is no criminal hearing, so they effectively do not apply. I disagree. In the absence of any criminal proceedings being on foot, the guidelines they refer to are not "neutral" but weigh against granting the stay. In refusing the stay application in McMahon, Wootten J relied upon the applicant's failure to make a case that the civil case was likely to attract publicity that might prejudice criminal jurors, or that the criminal trial was imminent or that disclosure of the accused's case might give rise to malpractice in the criminal trial.[18]
• [23] Ithaca Crystals also makes submissions that some of the guidelines in McMahon favour granting a stay. These submissions go to the issue of whether Mr Marshall would give evidence in these proceedings for the purposes of pressing the jurisdictional objection, and how that might affect him and any potential future criminal proceedings.
• [24] Ms McLaren submits that the "altercation" of 23 July 2024 is not salient to the question of whether she was dismissed, and neither Ms McLaren nor Mr Marshall would be required to give "detailed" testimony in relation to it. I do not accept this submission. As I understand Ithaca Crystals' response, Ithaca Crystals argues that it took Ms McLaren's departure from work, in light of what it describes as her assault of Mr Marshall, as being the basis for it to form the view that she had voluntarily resigned. [19] So, the altercation may be relevant, and either or both of them may, but would not necessarily, give testimony about it.
• [25] Ithaca Crystals' submissions refer to Mr Marshall's right to silence and against self-incrimination. Ithaca Crystals also raises the issue of "whether the defendant has already disclosed his defence to the allegations." [20] I take these submissions as referring to the following paragraphs from McMahon:[21]

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding ... > > (h) However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgement, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding. > > (i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings; > > (j) in this regard factors which may be relevant include ... the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses... [and] whether the defendant has already disclosed his defence... > > (k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. ...

• [26] I am not bound by the foregoing, but it is helpful in considering the exercise of the statutory discretion. Mr Marshall's interests and those of the corporate entity of which he is said to be a director may or may not diverge. But whether they do or not, neither Ithaca Crystals' nor Mr Marshall's rights and interests are trumps and Ms McLaren's rights and interests must also be considered.
• [27] Ms McLaren also relies on Anderson & Ors v Australian Security and Investment Commission[22] to submit that asserting the privilege from self-incrimination is not sufficient and there must be a bona fide apprehension of a real and appreciable risk of the consequence on reasonable grounds.
• [28] Ms McLaren refers to Smith v Kelsey & Ors; Dalley & Ors v Kelsey & Ors.[23] She submits that in that, a Council CEO joined individual councillors as Respondents in an adverse action (general protections) matter in the Queensland Industrial Relations Commission; and that the Crime and Corruption Commission also brought criminal charges against those councillors, relating to the CEO's dismissal. She submits the court found a stay was not appropriate, noting a substantial difference between the issues to be determined in the civil proceedings in the QIRC, and the criminal proceedings, the latter of which required an element of dishonesty. In the present case, though, the events giving rise to Ms McLaren going to the police station are the same events that the Respondent relies on, at least in part, to assert that Ms McLaren voluntarily resigned her employment, which is the basis of the jurisdictional objection that Ms McLaren was not dismissed.
• [29] I will also briefly refer to some recent matters of this Commission in which stays have been sought in relation to criminal proceedings or police investigations:

(a) In Orce Poposki v Warrigal Care T/A Coniston Nursing Home [2018] FWC 4553, the Applicant in the substantive proceedings sought a stay, relying on related criminal proceedings. The Applicant had been charged with assault before being dismissed. At the time the stay was being considered, the criminal proceedings had been commenced, the Applicant had entered a plea of not guilty, and the criminal matter had been listed for mention. The Commission carefully considered a number of authorities including those I have referred to above. The Commission granted the stay, as well as granting the parties liberty to apply to remove or vary the stay.

(b) In Mr Alistair Nicholls v Van Dairy Group Pty Ltd [2020] FWC 5335 the substantive Applicant was being prosecuted for cattle theft. The criminal proceedings had been underway for some time and he had pleaded not guilty, on 28 January 2020. The Tasmanian courts then issued practice directions delaying jury trials until at least 21 July 2020, and subsequently until further notice. The Commission proceedings had been the subject of several short adjournments, by consent, but the Respondent now wanted the matter to proceed. The substantive Applicant applied for a stay. The Commission refused to grant a stay.

(c) In Jonathan Small v BHP WAIO Pty Ltd [2020] FWC 5892 the substantive Applicant asked for a stay due to related criminal proceedings. He had been charged. He did not know when the charges would be heard. The Commission considered Orce Poposki v Warrigal Care T/A Coniston Nursing Home [2018] FWC 4553 and relied on the thorough analysis in that decision. The Commission granted the stay, and granted the parties liberty to apply.

(d) In Mr Jordan Christopher Styche v The Commonwealth of Australia (Represented by the Australian Signals Directorate) [2022] FWC 273 the substantive Applicant applied for a stay pending criminal proceedings. He had been charged with 11 counts of 'act of indecency without consent' and two counts of stalking before being dismissed. He had pleaded not guilty. The criminal proceedings were underway, and had been adjourned to a date later in the year. The Commission granted a stay until the criminal matter had been determined and a verdict issued, and the Commission also listed the matter for further directions on a later date. In Mr Jordan Styche v The Commonwealth Of Australia (Represented By The Australian Signals Directorate) [2023] FWC 921 the Commission granted a further stay pending the outcome of a criminal appeal.

(e) In Glenn Andrews v Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration and Air-Conditioning [2023] FWC 209 the general manager of the substantive Respondent informed the Commission he had reported the substantive Applicant to the police. The Respondent applied for a stay until a criminal investigation was complete. The Commission refused to grant the stay.

(f) In Mr Jamie Richards v All Saints Greek Orthodox Grammar [2024] FWC 2319 Mr Richards, the substantive applicant, sought a stay. He had been charged with offences and his criminal proceedings were underway. He had pleaded not guilty. The matter was listed for trial. He had lost his Working With Children Check and teachers' accreditation because of the criminal matters and he had then been dismissed. The Commission granted a stay until shortly after the criminal trial date and gave parties liberty to apply if circumstances changed.

• [30] This matter is different to the matters listed above in which stays were granted. Even if the unsworn witness statement of Ms Fogarty is accepted, it refers to Ms Fogarty receiving a phone call from the police on 15 October 2024, conveying her recollection of the events of 23 July 2024, and declining to attend a police station to provide a formal statement. The statement says the police informed her they would be in touch. There is nothing before me to indicate that Ms Fogarty heard from the police again between the phone call of 15 October 2024, and the date of the statement, 28 November 2024.
• [31] The Respondent, in its submissions, refers to a "potential criminal prosecution," but it has put on no affidavit material to demonstrate that it has made any inquiries of the police as to the status of any police investigation. It properly concedes throughout its submissions that the matter is only under investigation and there is no criminal hearing. It asserts in submissions that the police have not yet contacted Mr Marshall.
• [32] There is no evidence before me to demonstrate any criminal charges have been laid, or that any criminal proceedings are underway. There is scant evidence of an investigation, and no evidence of any action being taken in relation to it after 15 October 2024. By the time Ithaca Crystals filed its materials on 28 November 2024, the police had not contacted Mr Marshall.
• [33] There is nothing explicit on the material to suggest that the Respondent itself, as opposed to or in addition to Mr Marshall personally, would bear any criminal responsibility or would itself be the subject of any police investigation, potential future charges, or potential future criminal proceedings.

• [34] What does justice require in the present circumstances? The Respondent's material is insufficient to warrant Ms McLaren being deprived of her right to have her application dealt with. Ithaca Crystals may have an interest in the possible future criminal charges against its natural person director. Mr Marshall is not presently a party to these proceedings, but it may be that his interests substantially overlap with Ithaca Crystals. But Ithaca Crystals' and Mr Marshall's rights and interests in relation to what is only a possible future charge are not currently sufficient to outweigh the effects of a stay on Ms McLaren or the Commission's obligation to make sure the parties get a fair hearing.
• [35] In light of the above, I decline to exercise the statutory discretion in favour of staying these proceedings. Accordingly, I dismiss the application for a stay.
• [36] The Applicant submits[24] that if the present application is not granted then the Commission could issue a stay at a later stage of the proceedings. I accept that the issue of staying the proceedings could be revisited if circumstances change. Each party has liberty to apply.
• [37] I will issue Directions to deal with the jurisdictional objection, separately.

1. The Respondent's application is dismissed.

2. The parties have liberty to apply.

[1] Fair Work Act 2009 (Cth) s 589(1) ('Fair Work Act').

[2] Fahim Ahmadyar v Visy Board Pty Limited T/A Visy Board [2017] FWC 6463, [19], a point undisturbed on appeal in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, and affirmed in United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 167, [8].

[3] Dr Reuben Kirkham v Prof Ann Nicholson & Prof Margaret Gardner AC and Others [2024] FWCFB 429.

[4] Applicant's submissions filed 5 December, [2(c)].

[5] United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 167, [8], applying Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194, [19].

[6] [2018] FWCFB 1255, [47].

[7] Citing Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519.

[8] Citing Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd [1993] HCA 18; (1993) 67 ALJR 389 at 390, and also referring to Re Australian Railways Union and others; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 at 23-24.

[9] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [48].

[10] Respondent's submissions filed 28 November 2024, [13] and following. Applicant's submissions filed 5 December 2024, [8] and following.

[11] (1982) 7 ACLR 202.

[12] See for example Mr Jamie Richards v All Saints Greek Orthodox Grammar [2024] FWC 2319; Mr Jordan Styche v The Commonwealth of Australia (Represented By the Australian Signals Directorate) [2023] FWC 921; Glenn Andrews v Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration and Air-Conditioning [2023] FWC 209; Mr Jordan Christopher Styche v The Commonwealth of Australia (Represented by the Australian Signals Directorate) [2022] FWC 273, Mr Alistair Nicholls v Van Dairy Group Pty Ltd [2020] FWC 5335; Orce Poposki v Warrigal Care T/A Coniston Nursing Home [2018] FWC 4553 and others.

[13] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [47].

[14] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [43].

[15] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [42].

[16] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [43].

[17] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [48].

[18] 7 ACLR 202, 208.

[20] Respondent's submissions dated 28 November 2024, [24].

[21] 7 ACLR 202, 206-207.

[22] [2012] QCA 301, [22].

[23] [2020] QCA 55.

[24] Applicant's submissions filed 5 December 2024, [1].

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