//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] FWC 4770
procedural. Proceedings in the unfair dismissal matter were stayed pending the finalisation, withdrawal or other appropriate disposal of the related criminal proceedings. The stay contemplated revocation or...
2 cited instruments linked from this judgment.
The Commission paused the unfair dismissal case until the related criminal case was resolved. It considered that the employee could be unfairly disadvantaged if required to present overlapping evidence first in the employment case, where the standard of proof differs from the criminal standard. The employer’s attempt to limit the case to the loss of a Working with Children Check and alternative work did not remove that concern. The stay could be changed if circumstances justified an earlier restart.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,170 words · generated 02/10/2026
Mbu Nikoka Lyzette brought an unfair dismissal application against Safe Places Community Services Limited, trading as Safe Places for Children. The application was made under s. 394 of the Fair Work Act 2009. The dismissal took effect on 22 June 2020, and the application was filed on 3 July 2020, within the 21-day period identified by the Commissioner ([2]–[3]).
The dispute was not yet a determination of whether the dismissal was unfair. The immediate question was procedural: should the Commission pause the unfair dismissal case while related criminal proceedings against the applicant remained unresolved? The applicant’s solicitor requested a stay on 29 July 2020, stating that the applicant was a defendant in ongoing criminal proceedings ([5]). The employer opposed the request, arguing that the unfair dismissal case could be decided without traversing the facts behind the criminal charges ([10]–[14]).
The employer characterised the dismissal as resulting from the applicant’s loss of an essential qualification, namely her Working with Children Check. It also relied on s. 9 of the Child Protection (Working with Children) Act 2012, describing that provision as preventing an employer from continuing to employ a barred person in child-related work ([11]–[12]). The employer said the Commission only needed to decide whether the loss of the qualification was a valid reason for dismissal, and whether alternative employment was available ([14], [16]).
The Commissioner did not accept that framing as a reason to require the applicant to proceed immediately. The decision explains that the Commission could not restrict the evidence the applicant might seek to rely on. It also considered that the same factual circumstances could be examined in both cases, with different standards of proof applying ([20]–[23]). The Commission therefore decided to stay the unfair dismissal proceedings until the criminal proceedings were finalised, withdrawn or otherwise appropriately disposed of. The stay could be revoked or altered if circumstances changed and either party sought an earlier restart ([24]).
This was a decision about the timing and fairness of proceedings. It did not decide whether the applicant’s dismissal was unfair, whether the employer had a valid reason, or whether the alleged criminal conduct occurred.
The Commissioner’s central concern was prejudice. If the unfair dismissal case proceeded first, the applicant might have to present evidence about facts that were also in issue in the criminal proceedings. The Commissioner considered that the Commission could not artificially confine her evidentiary case to avoid those facts. The decision states that the applicant would be “clearly prejudiced” if required to conduct the unfair dismissal case before the criminal proceedings had been determined or otherwise finalised ([20]–[22]).
A further concern was that the same factual circumstances could be assessed differently in the two proceedings. The unfair dismissal case would involve findings on the balance of probabilities, while the criminal case required proof beyond reasonable doubt. The Commissioner expressly recognised that the differing standards could produce different findings about the same circumstances ([22]). The decision does not treat that possibility as proof that either process would be wrong. Rather, it identifies the risk as a reason to avoid forcing the employee to conduct the employment case first.
The Commissioner also rejected the employer’s apparent reasoning about criminal charges. The employer’s Form F3 suggested that because the criminal standard was higher, the laying of charges meant that the applicant had engaged in the conduct on the balance of probabilities ([18]). The Commissioner described that proposition as “fundamentally illogical and unjust” and asked what would follow if the charges did not result in a conviction ([19]). The reasoning is that a charge is not itself a finding that the alleged conduct occurred. Nor, in the Commissioner’s view, could the alleged conduct automatically be treated as established under the civil standard simply because charges had been laid.
The Commissioner linked that concern to the applicant’s “presumption of innocence” and rejected the proposed artificial restriction on the evidence she might advance in the unfair dismissal proceeding ([20]). This was not a conclusion about the ultimate merits of the employment claim. The Commissioner specifically acknowledged that the dismissal might ultimately not be unfair even if the applicant were not convicted ([21]). That qualification separates the stay decision from any prediction about the substantive outcome.
The decision also identified a risk of a “perverse outcome”: conduct found not to have occurred in the unfair dismissal proceedings might subsequently be proven beyond reasonable doubt in the criminal proceedings ([23]). The Commissioner’s practical response was to defer the employment case until the criminal proceedings were appropriately disposed of. The order was not described as permanent or incapable of change. It expressly contemplated revocation or alteration if circumstances changed ([24]).
The decision does not purport to establish a comprehensive new test for stays in all cases involving criminal proceedings. It describes prejudice from requiring an unfair dismissal applicant to proceed before related criminal proceedings as “well established” ([23]). Its contribution is therefore best understood as an application of that concern to the particular overlap and arguments in this case, rather than as a general rule that every unfair dismissal case must wait for any related criminal case.
Before the stay decision, the employer’s position was that the unfair dismissal case could be determined narrowly. It argued that the loss of an essential qualification was the reason for dismissal, that s. 9 of the Child Protection Act prevented continued employment of a barred person in child-related work, and that the facts underlying the charges did not need to be examined ([11]–[14]). The Commissioner considered that the applicant’s evidence could not be restricted in the manner proposed and that the underlying factual circumstances could be relevant to the unfair dismissal case ([20]–[22]).
After the decision, the immediate procedural position was that the unfair dismissal proceedings were paused pending finalisation, withdrawal or other appropriate disposal of the criminal proceedings. The stay remained capable of being revisited if circumstances changed ([24]). The decision did not determine the meaning or full operation of s. 9 of the Child Protection Act, nor did it determine whether the loss of the Working with Children Check was a valid reason for dismissal. Those matters were advanced in the employer’s submissions, not finally resolved in this decision.
The Commissioner also referred to White v Mahoney [2015] FWCFB 4952, noting that the employer’s apparent approach to s. 9 broadly followed dicta in that decision. The Commissioner then stated that White v Mahoney had been quashed by the Full Court of the Federal Court in Mahony v White [2016] FCAFC 160 ([17]). The present decision does not reproduce the Federal Court’s reasoning or explain the detailed consequences of that judgment. Its relevance here is limited to the Commissioner’s observation that the earlier Commission decision relied on in the employer’s approach had been quashed.
At [19], the Commissioner rejected the idea that criminal charges establish the conduct alleged merely because the criminal standard of proof is higher. In plain English, being charged does not itself prove the alleged conduct, even under the civil standard. The Commissioner connected this point to the possibility that the charges might not result in conviction.
At [20], the Commissioner said the applicant was entitled to the presumption of innocence and that her evidentiary case could not be artificially and unjustly restricted. In plain English, the employer could not secure refusal of a stay simply by insisting that the employment case be confined to a narrow issue if the applicant’s case might fairly involve the underlying facts.
At [22], the Commissioner explained that the same facts could lead to findings on the balance of probabilities in the employment proceeding and proof beyond reasonable doubt in the criminal proceeding. In plain English, the legal tests differ, so results about overlapping factual matters need not be identical.
At [23], the Commissioner referred to the established prejudice an applicant may suffer if required to prosecute an unfair dismissal claim before related criminal proceedings have concluded. The passage places the case within a broader procedural concern, while the decision itself gives the reasons why that concern mattered on these facts.
At [24], the Commission stated the operative result: the unfair dismissal proceedings would be stayed until the related criminal proceedings were finalised, withdrawn or otherwise appropriately disposed of. The stay was not necessarily fixed for all time, because the same paragraph allowed for revocation or alteration if circumstances changed.
The reasoning is most directly engaged where an unfair dismissal proceeding and criminal proceedings concern overlapping factual circumstances, and the employee may need to address those facts in the employment case. The decision’s concern was not simply that criminal proceedings existed. It was that the applicant could be prejudiced by having to present her employment case first, while the same factual matters remained unresolved in the criminal case ([21]–[23]).
A further feature was the employer’s argument that the unfair dismissal case could be confined to the loss of an essential qualification and the availability of alternative work ([11]–[14]). The Commissioner rejected the proposed confinement as a sufficient answer to the stay request because the Commission could not restrict the evidence the applicant might seek to advance ([20]–[22]). Thus, the decision is relevant where one party says that the employment case is narrow, but the other party’s evidence may fairly extend to facts also at issue in the criminal proceedings.
The standards of proof also mattered. The Commissioner identified the balance of probabilities in the unfair dismissal matter and proof beyond reasonable doubt in the criminal proceedings ([22]). The judgment does not say that different standards alone automatically require a stay. Its reasoning connects those standards with the factual overlap, the risk of prejudice, and the possibility of differing findings.
The decision should not be read as establishing that an acquittal necessarily makes a dismissal unfair. The Commissioner expressly noted that the dismissal might not be unfair even if the applicant were not convicted ([21]). Nor did the decision decide whether a qualification-related dismissal was justified in this case. It determined only that the unfair dismissal proceeding should not go forward while the related criminal proceedings remained unresolved in the circumstances described.
The supplied judgment contains no account of later cases applying, distinguishing or criticising Mbu Nikoka Lyzette v Safe Places for Children. It is therefore not possible, from this source alone, to state how later courts or Commission members have treated this decision.
The judgment does identify the treatment of an earlier authority. It says that White v Mahoney [2015] FWCFB 4952 contained dicta broadly followed by the employer’s approach, and that the Full Court of the Federal Court quashed that decision in Mahony v White [2016] FCAFC 160 ([17]). The judgment does not set out the Federal Court’s reasons, so this account should not be expanded into propositions about what Mahony v White decided beyond the quashing recorded here.
For research purposes, the important distinction is between the stay ruling made in this case and the prior authority noted in passing. This decision’s stated basis is the prejudice associated with overlapping facts, the inability to artificially restrict the applicant’s evidence, and the differing standards of proof ([20]–[24]). The judgment does not claim that its conclusion was an application of a particular later authority, nor does it report subsequent appellate review of the stay decision.
The decision leaves the merits of the unfair dismissal claim unresolved. It does not determine whether the loss of the Working with Children Check constituted a valid reason for dismissal, whether the employer complied with its obligations under the Child Protection Act, or whether alternative employment was available. Those issues appeared in the employer’s submissions, but the Commissioner did not decide them in the stay ruling ([11]–[14], [21]).
The decision also does not determine what would happen if the criminal proceedings ended in an acquittal, conviction, withdrawal or another form of disposal. It specifies that the stay would last until finalisation, withdrawal or other appropriate disposal, but does not prescribe how the unfair dismissal case would then be resolved ([24]). The Commissioner’s observation that a dismissal might still not be unfair even without a conviction confirms that the criminal outcome would not, by itself, determine the employment claim ([21]).
The judgment does not explain how a party would establish that circumstances had changed sufficiently to justify earlier recommencement. It only says that either party could seek revocation or alteration of the stay in that event ([24]). Nor does it give a detailed test for balancing the delay to the employer against the prejudice to the applicant. It records that delay was regrettable but considered necessary to ensure both proceedings were fair and just ([25]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
s.394 - Application for unfair dismissal remedy
Unfair dismissal claim - related criminal proceedings - stay of proceedings Ordered.
[1] This Decision involves the determination of a contested stay application.
[2] The request to stay proceedings has been made in respect to an application for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The application for unfair dismissal remedy was made by Mbu Nikoka Lyzette (the applicant). The respondent employer is Safe Places Community Services Limited ABN 53 131 345 910 T/A Safe Places for Children (the employer).
[3] The unfair dismissal application was filed on 3 July 2020, and it indicated that the date that the applicant's dismissal took effect was 22 June 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. The unfair dismissal application attached inter alia, a copy of a termination letter dated 22 June 2020 (the termination letter).
[4] On 13 July 2020, the employer filed an employer's response to the application (Form F3). The Form F3 did not indicate that any jurisdictional objection was raised in respect to the unfair dismissal application. However, the Form F3 asserted inter alia, that the unfair dismissal application was frivolous and vexatious, and completely without merit, and that the assertions made by the applicant's representatives were mischievous and misleading.
[5] On 24 July 2020, the unfair dismissal application was the subject of unsuccessful conciliation. On 29 July 2020, the Parties were advised that following the unsuccessful conciliation, the unfair dismissal application was being referred for conference/hearing before a Member of the Fair Work Commission (the Commission). Also, on 29 July 2020, the solicitor acting for the applicant sent an email to the Conciliator who had conducted the conciliation on 24 July (the Conciliator). In this email, the solicitor acting for the applicant requested that the Commission stay the proceedings in this matter until the conclusion of ongoing criminal proceedings in which the applicant is the Defendant. Regrettably, this email communication was not copied to the employer.
"As there was no alternative employment available to the Applicant we had no option but to terminate her employment. Given their whole argument is that we should have considered alternative roles and there are no alternative roles available to her they will naturally fail and waste everyone's time, including a member of the Fair Work Commission and cause us to incur costs which will likely be recoverable from her representative as they are the ones that are pressing this application."
[7] Regrettably, this email communication was not copied to the applicant's solicitor. However, on 31 July 2020, after this matter had been allocated to the Commission as currently constituted, my Associate provided a copy of the employer's email of 30 July to the solicitor acting for the applicant.
[8] The unfair dismissal application was the subject of a Pre-Hearing Conference/Conciliation by telephone held on 19 August 2020. During the Pre-Hearing Conference/Conciliation it became apparent that the employer was unaware of the email of 29 July 2020, from the applicant's solicitor to the Conciliator which contained the request for a stay of proceedings. The proceedings were adjourned in order to provide the employer with a copy of the email of 29 July 2020, and to allow the employer to consider the request for a stay of proceedings. The employer was required to subsequently indicate whether it maintained any objection to the stay of the proceedings, and if it did so, to provide an outline of argument in support of its position opposing any granting of the request for a stay.
[9] On 28 August 2020, the employer provided an outline of argument in support of its opposition to the applicant's request for a stay of the unfair dismissal proceedings.
[10] In summary, the employer's outline of argument opposed the stay of proceedings as requested by the applicant because it asserted that the proceedings in the unfair dismissal matter would not prejudice the applicant's position in respect of the criminal proceedings in which she is the defendant. The employer asserted that the factual circumstances relevant to the determination of the unfair dismissal matter would not involve the factual circumstances that would be traversed in the criminal proceedings.
[11] The employer's outline of argument has asserted that the unfair dismissal proceedings would be confined to the question of whether the applicant's loss of an essential qualification, described as a "Working with Children Check" represented valid reason for her dismissal. The employer stated inter alia, that: "The Applicant applied for, and was employed to perform, child-related work. Losing an essential qualification was the reason for her termination."
[15] The employer's opposition to the applicant's request for a stay of proceedings has presented as an unusual and somewhat incongruous position for the employer to adopt. Following the unsuccessful conciliation, the employer wrote to the Conciliator and complained that the unfair dismissal application would "naturally fail" and "cause us to incur costs...". The stay of the unfair dismissal proceedings, pending the outcome of the criminal proceedings, would potentially provide for what might be described as the least cost option whereby, in the event that the applicant was convicted, she may subsequently discontinue the unfair dismissal claim.
[16] The employer's position in opposing the stay manifests as an attempt to have the applicant run her unfair dismissal claim on the basis that it would be confined to evidence that did not involve any aspect of the facts and circumstances that are the subject of the criminal proceedings. This approach has attempted to rely upon the assertion that the dismissal of the applicant, because of the loss of an essential qualification, and the associated operation of s. 9 of the Child Protection Act, must represent a valid reason for dismissal, and apparently confine any further argument as to whether the dismissal was harsh, unjust or unreasonable, to the question of the availability of "alternative employment".
[18] The employer's apparent predisposition for summary contemplation of an unfair dismissal claim in circumstances where the applicant has been the subject of criminal charges and those charges operate as the catalyst and/or reason for the decision to dismiss, is, regrettably, reflective of an approach that is fundamentally unjust and should be discouraged. In this regard, it was somewhat disturbing to have observed the following statements that were included in the employer's Form F3 document:
"5. While it may be the case that the Respondent did not investigate the allegations, this was due to the allegations being investigated by the Joint Child Protection Response Program. This investigation led to criminal charges being laid against the Applicant. The standard of proof for criminal charges is higher than that required in this jurisdiction. Therefore, on the balance of probabilities the Applicant engaged in the conduct that led to the criminal charges and led to her rendering herself unemployable in the child protection industry by having her working with children check barred.
_6. Given the criminal charges and the direction from the Office of the Children's Guardian that the Respondent had to comply with the requirement to not continue employing the Applicant within 7 days of the notice given on 16 June 2020, it is abundantly clear that there was a valid reason for termination."[_emphasis added]
[19] It was somewhat alarming to contemplate the prospect that because criminal charges had been laid, the conduct that was the subject of those criminal charges was somehow established on the balance of probabilities. This is fundamentally illogical and unjust. What if the criminal charges do not result in a conviction? The applicant, who has been cleared of criminal charges is nevertheless somehow automatically found, on the balance of probabilities, to have committed the conduct which was not proven, albeit upon the more stringent criminal standard of proof. There must be scope for a person who has been cleared of criminal charges to also be cleared upon the lesser balance of probabilities standard. A person may be entirely innocent, they may not have committed any of the conduct that was the subject of the criminal charges, and they cannot be automatically found to have engaged in the conduct by virtue of some contorted operation of the lesser standard of proof.
[20] Unfortunately, the employer's approach to opposing the applicant's request for a stay of proceedings has been misguided and fundamentally misconceived. The applicant is entitled to a presumption of innocence. The evidentiary case that the applicant may adopt in the unfair dismissal proceedings cannot be artificially and unjustly restricted as has been proposed by the employer.
[21] The Commission recognises that it may be very difficult to facilitate employment arrangements that could permit compliance with the Child Protection Act in circumstances such as those that are evident in this instance. The dismissal of the applicant may ultimately be found not to have been unfair, notwithstanding that the applicant may not be convicted of the criminal charges. However, the applicant would be clearly prejudiced if she was required to conduct the unfair dismissal proceedings before the criminal proceedings had been determined or otherwise finalised.
[22] The Commission could not restrict the evidentiary case that the applicant may seek to advance in support of her unfair dismissal claim. Therefore, the factual circumstances that would be examined in the unfair dismissal proceedings would lead to findings that were established upon the balance of probabilities, and the same factual circumstances may lead to different findings in the criminal proceedings based upon proof beyond reasonable doubt.
Printed by authority of the Commonwealth Government Printer
Mbu Nikoka Lyzette
Safe Places for Children [2020] FWC 4770
Proceedings in the unfair dismissal matter were stayed pending the finalisation, withdrawal or other appropriate disposal of the related criminal proceedings. The stay contemplated revocation or alteration if circumstances changed and either party sought earlier recommencement. A separate order was to issue ([24], [26]).
[6] On 30 July 2020, the employer sent an email to the Conciliator which inter alia, identified that the dismissal of the applicant related to obligations that the employer had in respect to the Child Protection (Working with Children) Act 2012 (the Child Protection Act). This email also stated inter alia:
[12] The employer's outline of argument also mentioned the operation of s. 9 of the Child Protection Act and stated inter alia: "... an employer must not commence employing, or continue to employee, a barred person from child-related work." Consequently, according to the employer's outline of argument, in respect to the unfair dismissal matter, "...there is no need to traverse the facts that gave rise to the criminal charges."
[13] The employer's outline of argument also stated; "The Applicant was terminated due to failing to maintain an essential qualification which has been determined previously by the FWC to be a valid reason for dismissal. We submit that any finding of not guilty would not, in any event, automatically lead to a conclusion that the applicant was unfairly dismissed."
[14] In its conclusion, the employer's outline of argument asserted that: "The FWC is merely being asked to determine whether the loss of the Applicant's WWCC, an essential qualification, is a valid reason for dismissal." And; "As the Applicant has not demonstrated any real risk of injustice the FWC would not be justified in denying the Respondent their fundamental right to a hearing in the ordinary course."
[23] These circumstances have been encountered in respect to unfair dismissal claims on many occasions. The prejudice that an applicant in an unfair dismissal matter would suffer if they were required to prosecute their case before related criminal proceedings were conducted and finalised has been well established. Further, the potential for what might be described as a perverse outcome should be avoided, whereby conduct found not to have occurred in the unfair dismissal proceedings, could subsequently be proven beyond reasonable doubt and establish a criminal conviction.
[24] Therefore, the Commission has decided that proceedings in this matter should be stayed pending the finalisation, or withdrawal, or other appropriate disposal, of the related criminal proceedings. However, the stay shall contemplate revocation or alteration if circumstances change and either Party wishes to argue for re-commencement of proceedings at a time earlier than that provided for in the Stay Order.
[25] Although it is regrettable that this matter will be subject to some delay, those circumstances are not caused by any practice or procedure of the Commission, but are dictated by a requirement to ensure that both the related criminal proceedings and the Hearing of the unfair dismissal claim, are conducted in a manner which is fair and just to all involved.
[26] An Order to stay proceedings in this matter shall be issued separately. The file shall be retained in Chambers awaiting any future application for relisting.