1. On 5 December 2023 the Applicant was advised by the Office of the Children's Guardian that an interim bar had been placed on his Working with Children Check (WWCC).

1. On 6 December the Applicant was advised by the NSW Education Standards Authority that his teacher's accreditation had been suspended as a consequence of the interim bar on his WWCC.

1. On 20 December 2023 the Applicant entered a not guilty plea in respect of each of the charges and the matter was listed for a two-day defended hearing on 4 and 7 April 2025.

1. The Criminal Proceedings were listed for further mention in the Bankstown Local Court on 8 August 2024. The April 2025 hearing dates were confirmed. The Applicant advised that he intended to give evidence in defence of the charges.

1. On 6 December 2023 the Applicant was informed by the Respondent that he would be suspended from ASOGS without pay for four weeks commencing from 29 January 2024.

1. On 5 April 2024 the Applicant was informed that his employment with ASOGS was to be terminated on 23 May 2024. That correspondence provided that 'Pursuant to Clause 8.5(a) of your Employment Agreement we hereby terminate your employment as you no longer hold a WWCC.'

1. On 7 June 2024 the Applicant filed an unfair dismissal application in the Fair Work Commission (Commission) seeking reinstatement and compensation.

• [3] With the consent of the parties, the application for a stay of proceedings was dealt with by way of written submissions. There was no argument that the Commission lacked the power to stay the proceedings if it were satisfied that it was appropriate to do so.

• [4] The Applicant argued that the reason given for the Applicant's termination was that he no longer held a WWCC and that in turn, the suspension of his WWCC arose because the Applicant had been charged with assault. He said that if the Criminal Proceedings are ultimately resolved with an outcome other than a finding of guilt, then his WWCC should be reinstated and in that case the Respondent's reason for termination no longer applies. The Applicant said these factual issues were critical to the determination of whether his termination was harsh, unjust or unreasonable, and any associated remedy.

• [5] The Applicant submitted that the most appropriate forum for the determination of the charges was the Local Court of New South Wales where he will be giving evidence in his own defence. He said that giving evidence in the civil proceeding in the Commission prior to the determination of the Criminal Proceedings may prejudice him and that findings made in the Commission may also have an impact on the Criminal Proceedings.

• [6] The Applicant also argued that if the unfair dismissal application is determined before the Criminal Proceedings are concluded "this will place (him) in an incredibly unfair position, having to argue the merits of his case without the critical underlying facts that led to his dismissal being determined, as well as his primary remedy (reinstatement) being frustrated by virtue of the administrative decision of the Office of the Children's Guardian." The Applicant said that although the delay consequent upon the granting of a stay was not insignificant, this was not because of any conduct on his part but because the Local Court was 'over-subscribed'. The Applicant said there was little to no prejudice to the Respondent beyond mere delay as he was no longer employed or being paid by the Respondent.

• [7] The Applicant said that given the 'intertwined' nature of the Commission and Criminal Proceedings, in the interests of fairness to him it was appropriate to grant the stay until the Criminal Proceedings are resolved.

• [8] The Respondent accepted that the determination of the application involved the exercise of a discretion. They also accepted what the Applicant described as the 'overarching considerations' in the determination of applications of this kind which were set out as follows in the decision of G Sanford v. Austin Clothing Company Pty Ltd trading as Gaz Man[1] (Gaz Man):

The respondent is prima facie entitled to have the matter determined as quickly as practicable. An adjournment should not be lightly entertained. The onus to make good the adjournment application lies with the applicant for the adjournment. The applicant is not entitled, of right, to an adjournment in light of the criminal proceedings. Each application for adjournment must be made on its own merits and balance the interests of the parties.[2]

• [9] The Respondent argued that the first four of the above considerations favoured the refusal of the present application.

• [10] The Respondent also submitted that the Applicant had not addressed all of the issues at play in the proceedings. In particular, the Respondent said that the Applicant's assertion or assumption that an outcome other than a finding of guilt in the Criminal Proceedings should result in the reinstatement of the Applicant's WWCC was not only 'heroic' but incorrect. They said it was entirely conceivable that even if the Applicant were found not guilty, the Office of the Children's Guardian would continue with the working with children bar[3] and the Applicant would be unable to return to work even if the Respondent was willing to reinstate him. Further, the Respondent said that the Applicant's submission that if the WWCC is reinstated the reason for reinstatement no longer applies, ignores both the existence of the APVO and the fact that the issue for the Commission is whether there was a valid reason for dismissal at the time of the dismissal.

• [11] Further, the Respondent submitted that if the Applicant were convicted, he would have no chance of being reinstated. However, if the Applicant were found not guilty, his WWCC and teacher's accreditation reinstated and the APVO withdrawn, the Respondent would need to determine for itself whether dismissal was appropriate and if not, whether reinstatement was practicable having regard to a range of matters, including the nature of the evidence given in the Criminal Proceedings.

• [12] The Respondent also disputed that there was an absence of prejudice to them beyond mere delay and pointed to the decline of memory and the potential for further legal costs. Finally, the Respondent referred to case management principles and the Commission's record for dealing with matters quickly and efficiently which was said to be irreconcilable with the proposed stay of proceedings.

• [13] In reply, the Applicant submitted that the correct approach to the considerations identified in Gaz Man was to consider all of the criteria as a whole, giving equal weight to each. He said that the focus of the inquiry should be on the determination of the Criminal Proceedings rather than unlikely scenarios relating to the continuation of the WWCC ban and the APVO. The Applicant referred to the Respondent's acceptance of his right not to give evidence that may put him at risk of incriminating himself. He said the present situation made it difficult if not impossible for the Commission to make an order for reinstatement if it were found that the dismissal was unfair. He said that the Commission would be aided by a finding in the Criminal Proceedings in determining whether the dismissal was unfair. He said that his suitability for reinstatement lies ultimately with the Commission, not the Respondent.

• [14] The Applicant submitted that the proposed delay in dealing with the Commission proceeding was not of such a magnitude as to contribute to declining memory amongst potential witnesses and that the (unidentified) additional costs simply did not arise since the application would simply be temporarily paused pending the outcome of the Criminal Proceeding. The Applicant said that the Commission's reputation for efficiency should not prevail at the expense of fairness to him and the conventional principles relating to stay applications.

• [15] In Baker v. Commissioner of the Australian Federal Police[4] the Federal Court of Australia was considering an application under the Administrative Decisions (Judicial Review) Act 1977 by two officers who had been charged with assault and unlawful imprisonment offences involving a member of the public. After the charges had been laid, the General Manager of the Australian Federal Police (AFP) issued notices to the applicants saying that the AFP was considering terminating their employment under the Australian Federal Police Act 1979 and issuing a notice under that Act on the basis that the matters alleged in the charges amounted to serious misconduct. The applicants were invited to put submissions to the General Manager as to why the specified actions should not be taken. The applicants contended that their right to silence was being negated by the actions of the AFP and such actions amounted to, amongst other things, an interference with the proper conduct of the criminal proceedings. The Court there described the dilemma of each applicant as follows:

... if he does not respond to the invitation to defend himself against dismissal and a s 40K declaration, then he may well be dismissed and a declaration made, but if he does defend himself, whatever he says may be used against him in the forthcoming criminal proceedings.[5]

It is clear that neither s 28 nor s 40K of the AFP Act abrogate the right to silence by compelling the employee to speak, such as is the case with, for example, ss 39_,_ 40 and 40A of the AFP Act and s 7(5) and (6) of the Complaints Act_. Put another way, neither of the applicants is obliged to incriminate himself by reason of the opportunity afforded to him. It is argued for the respondent that the dilemma in which the applicants find themselves is no worse in principle than that facing parties in concurrent criminal and civil litigation. There is a long line of authority which establishes that the granting of a stay of civil proceedings in those circumstances is discretionary in the civil court and that the choice of either fully pursuing a civil claim or a defence to a civil claim or not doing so to avoid the risk of self-incrimination is not sufficient in itself to warrant a stay. This line of authority, which is generally seen as commencing with McMahon v Gould_ (1982) 7 ACLR 202 and, in this Court, Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd [1984] FCA 406; (1984) 4 FCR 428, has been applied in this Court as recently as the decisions in Chambers v Commissioner of Taxation [1999] FCA 163 and Golden City Car & Truck Centre Pty Ltd v Deputy Federal Commissioner of Taxation (1999) ATC 4779.[6]

• [16] The decision in McMahon v. Gould[7] (McMahon), which the Court described as commencing a line of authority as to the circumstances in which a stay of civil proceedings might be granted, is a decision that has often been referred to in decisions of this Commission.[8] In Gaz Man, Senior Deputy President Watson extracted and relied on the relevant guidelines from McMahon as follows:

"(a) prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;

(b) it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c) the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;

(d) neither an accused or the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) this court's task is one of the `balancing of justice between the parties', taking account of all relevant factors;

(f) each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(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 judgment, 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:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(iii) 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;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations.

(k) the effect on the plaintiff must also be considered and weighed against the effect on the defendant; and

(l) in an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed."[9]

• [17] The Commission in Gaz Man noted that the principles derived from McMahon had been adopted in other matters in which, as was the case in McMahon, the applicants for the stay were the defendants in both the civil and criminal proceedings. The Commission also noted that a similar approach had been adopted in respect of applicants in civil proceedings and specifically, applicants in relation to termination of employment matters under predecessor legislation.[10] In re-emphasising guideline (i) from McMahon the Commission said:

Injustice to a defendant in the criminal proceedings is a relevant consideration in considering competing interests of the parties, but it must be a real and not merely a notional danger.[11]

• [18] In Visy Board Pty Ltd t/a Visy Board v. Rustemovski and Ahmadyar[12] a Full Bench of the Commission dealt with an appeal against a decision at first instance to adjourn unfair dismissal proceedings in circumstances where the Appellant employer also had proceedings on foot in the Federal Court of Australia alleging contravention of civil penalty provisions of the Act by various parties, but not including the applicants in the unfair dismissal proceedings. The Bench noted that although those applicants were not named as parties to the Federal Court proceeding, it was alleged in the pleadings that those persons had directed, authorised and/or organised employees to take certain industrial action.[13] In refusing permission to appeal, the Bench concluded that the Commissioner at first instance was not bound to apply McMahon.[14] The Bench went on to say:

[43] In McMahon v Gould Wootten J had to decide whether a civil proceeding brought by a liquidator against the defendant in respect of acts done by him as a director should be stayed until the determination of criminal proceedings involving the same subject matter pending against the director. Wootten J identified as 'guidelines' a series of matters to consider in determining the exercise of the discretion to stay the civil proceeding. The circumstances in the present matter are quite different - it is the applicants who are seeking the 'stay' and the discretion being exercised is a statutory, not an inherent power. In any event it appears to be common ground that the McMahon v Gould 'guidelines' do not purport to establish a rigid code and that the consideration that bear upon a decision to stay a proceeding will vary according to the individual case (see Websyte at [115]).

[44] It may be noted that in De Simone the Victorian Court of Appeal observed (at [7]):

'The McMahon v Gould guidelines have been applied in Australian courts many times... Often the case will be determined without express reference to the guidelines but by reference to the justice of the situation, and in that sense such cases follow the McMahon v Gould line of authority.'

[45] It is important to bear in mind that the Commissioner at first instance was exercising a general discretion. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission the High Court made the following observations about the nature of 'discretion':

'"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.' [Emphasis added]

[46] The discretion exercised in the present case was only confined by the subject matter and objects of the FW Act and, as such, the decision maker had considerable latitude as to the decision to be made.

[47] In such circumstances the McMahon v Gould principles may be of some assistance, by way of broad guidance, but each case must be determined having regard to its particular circumstances and to the statutory framework within which the discretion is to be exercised. The discretion was required to be exercised having regard to the Commission's central obligation to provide a fair hearing to parties in proceedings before it. Such an obligation arises directly from s.577(a) of the FW Act, which directs the Commission to perform its functions and exercise its powers in a manner that 'is fair and just', and from the implied obligation to act judicially. 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.

[48] In our view the rigid application of the McMahon v Gould guidelines in the present context may also operate to inappropriately confine the exercise of the Commission's discretion. As Bowan LJ observed in Gardner v Jay:

'When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the act or the Rules do not fetter the discretion of the Judge why should the court so do.'

[49] Elevating any of the McMahon v Gould guidelines into a 'test' to be satisfied as a condition precedent to the exercise of the Commission's discretion - as the Appellant appears to contend - also serves to obfuscate the Commission's primary obligation, to ensure that the parties are afforded a fair hearing. Ultimately the relevant question is: what does justice require in the circumstances? (footnotes omitted)

• [19] The exercise of the Commission's discretion in this case must be undertaken in accordance with the legislative context in which the present application arises. Regard must be had to the statutory framework which the Act establishes for dealing with applications for relief from unfair dismissal. This includes the objects of the Act itself and in particular, the objects of Part 3-2[15] which provide:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

• [20] Section 577 also relevantly provides:

(1) The FWC must perform its functions and exercise its powers in a manner that:

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

(d) promotes harmonious and cooperative workplace relations.

• [21] It is apparent from the above that there is a statutory requirement for the Commission to deal with matters as expeditiously as possible whilst at the same time recognising that there will almost invariably be a balancing of interests and considerations involved in the performance of the Commission's functions. There is also a need to ensure that the outcome is fair and just and, in the case of matters arising under Part 3-2, a requirement that there is a "fair go all round" afforded to both parties.

• [22] As a general proposition, once an application is commenced, both parties can expect that the matter will be dealt with as quickly as possible. Unnecessary delay in any matter is inconsistent with the proper administration of justice[16]. The potential delay involved in granting this application, whilst not inconsiderable, is not in my view, at least as presently advised, of, or likely to be of, the order of magnitude that would compromise the capacity of the Respondent to present its case or manifest some other obvious unfairness. I note that in Kvackaj[17] the Commission was dealing with, and ultimately refused, an adjournment application by an applicant who had filed his original application for an unfair dismissal remedy on 12 November 2003 and was still pressing for an adjournment in May 2005. In Construction, Forestry, Mining and Energy Union v. BHP Coal Pty Ltd[18] the Commission stayed proceedings for over eighteen months at the suit of a respondent in circumstances where criminal proceedings had yet to be commenced. In Visy Board[19] the Commissioner at first instance granted an adjournment in circumstances where the Federal Court proceedings on which the applicant relied had not, at the time of the decision, been listed for hearing but was programmed for mediation some two months later. In this instance the hearing dates for the Criminal Proceeding have been set and there is a likelihood that the matter will be determined by April 2025 or shortly thereafter.

• [23] Generally, it is true that a witness's memory may fade over time. The Respondent's assertion that they may be prejudiced by the diminished memories of witnesses is a relevant consideration. However, I also take into account the duration of the delay and the fact that the Applicant and any witnesses he might call, will be in no different position. The Respondent did not specify any adverse cost implications for them in granting a stay and I am unable to identify any such implications.

• [24] I also note that the Applicant seeks reinstatement and compensation in the substantive application. There is, as was argued in Visy[20], a desirability in having matters dealt with quickly where reinstatement is sought. However, to the extent that the remedy of reinstatement becomes available to the Applicant, the proposed delay would generally present an additional obstacle to an applicant rather than work against the interests of a respondent resisting an order for reinstatement.[21] Similarly, it seems to me that an applicant in these circumstances would have to acknowledge that in considering any order for compensation or lost pay, the Commission would have to have regard to the fact that the delay in the hearing of the matter to which any order might relate was brought on at their initiative. The statutory scheme for the remedy of compensation or lost pay in unfair dismissal matters allows for such contingencies to be taken into account[22].

• [25] I accept, as the Respondent contends, that the outcome of the unfair dismissal application may ultimately depend on a range of factors other than the outcome of the Criminal Proceedings. However, I think it is also necessary to consider the impact that the refusal of the application for a stay would have on the Applicant's capacity to prosecute his unfair dismissal application. In order to properly present his case, the Applicant would likely have to give evidence and be subjected to cross-examination on that evidence. Such evidence could then be used against him in the Criminal Proceedings. I also think it likely that there would be a substantial and direct overlap in the factual material that would be relevant to the determination of both matters[23]. The reason given for the termination of the Applicant's employment was that he no longer held a WWCC. The interim WWCC bar arose from the 4 charges against the Applicant.[24] The circumstances giving rise to the charges may be relevant to the unfair dismissal matter. Whilst it is true that the Applicant is not obliged to incriminate himself in the unfair dismissal proceeding, there is in my view a real risk of injustice to the Applicant in that the presentation of his case may be hampered by the need to avoid the prospect of self-incrimination.

• [26] There is another aspect of the statutory scheme for unfair dismissal matters that should be taken into account. An applicant must bring an application within 21 days after the dismissal takes effect or within such further period as the Commission allows[25]. Unlike other civil proceedings, an applicant under Part 3-2 is not able to safely delay the commencement of a proceeding to a time more suited to avoiding any potential conflict with extant criminal proceedings without the real risk that an extension of time would be refused and the cause of action extinguished.

• [27] On balance I am satisfied that the application for a stay of the proceedings should be granted. I do not consider there is serious prejudice to the Respondent in adopting this course and any prejudice that does exist is outweighed by the desirability of ensuring that the Applicant has a reasonable opportunity to present his case. Taking all of the relevant factors into account I am of the view that the interests of justice are best served by granting the stay. I therefore propose to stay the present proceedings until 10 April 2025. The parties will have liberty to apply to vary or revoke the stay order should circumstances change.

• [28] An order giving effect to this decision will be published separately.

[3] Savet v. Rosebank College [2023] NSWSC 1015 per Wright J at [111].

[4] [2000] FCA 1339

[8] See for example Kvackaj v. Monash University 3 June 2005, PR 958598, French v. The Good Guys Discount Warehouse (Australia) Pty Ltd t/a Good Guys O'Connor [2017] FWC 3545 and Poposki v. Warrigal Care t/a Coniston Nursing Home [2018] FWC 4553.

[12] [2018] FWCFB 1255

[16] Esso Australia Pty Ltd; Esso Offshore Enterprise Agreement 2011 [2018] FWC 6244 at [19].

[17] Kvackaj v. Monash University 3 June 2005, PR 958598.

[18] [2014] FWC 9205.

[19] [2017] FWC 6463.

[23] See Construction, Forestry, Mining and Energy Union v. BHP Coal Pty Ltd [2014] FWC 9205.

Printed by authority of the Commonwealth Government Printer