Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - concurrent criminal proceedings - previous stay of Commission proceedings - further adjournment of criminal proceedings - whether Commission proceedings should be stayed for a further period pending criminal proceedings

• [1] On 2 September 2024 I issued a decision[1] (First Stay Decision) and made an order[2] staying the proceedings in the present matter, which is an application for a remedy for unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Cth)(Act), until 10 April 2025 or until further order of the Commission. The proceedings were stayed on the application of the applicant in this matter, Mr Richards (Applicant), who was at the time, facing criminal proceedings in the Local Court of New South Wales (Local Court) arising out of events said to have occurred in the Applicant's workplace in late 2023. At the time of the First Stay Decision, the criminal proceedings were listed for a two-day hearing on 4 and 7 April 2025.

• [2] On 4 April 2025 the hearing of the charges in the Local Court were vacated and the matter was adjourned to be heard on 30 and 31 October and 7 November 2025. The Applicant now seeks a further stay of the Fair Work Commission proceedings until 10 November 2025. That course of action is resisted by the respondent, All Saints Greek Orthodox Grammar (Respondent).

• [3] The background to the present proceedings and the Local Court matter is described in the First Stay Decision. It is unnecessary to set those matters out here.

• [4] The Applicant contends that the stay of these proceedings should now be extended again because:

(i) the Applicant remains charged with the same number and type of offences as he was when the original stay application was brought;

(ii) the Applicant still seeks a reinstatement remedy;

(iii) the delay to the Local Court matter has occurred through no fault of the Applicant; and

(iv) the extension of the stay is not excessive.

• [5] The Respondent's primary submission in opposition to a further stay is that the outcome of the criminal proceedings will not necessarily resolve the issue for determination in the Commission proceedings. This is because, in addition to the criminal charges, Mr. Richards, a former teacher at the respondent school, has had a restriction placed on his Working with Children Check by the NSW Office of the Children's Guardian, an Apprehended Personal Violence order (AVO) issued by the NSW Police prohibiting the applicant from attending the school, and the applicant's teacher's accreditation has been suspended by the NSW Education Standards Authority. The Respondent pointed out that even if the Applicant is acquitted of the criminal charges, it is conceivable that one or more of these other limitations would remain in place and inhibit the Applicant's capacity to return to his former teaching position.

• [6] Further, the Respondent said that the question for the Commission to determine in the unfair dismissal proceedings was whether there was a valid reason for dismissal at the time of the dismissal and in this case, the withdrawal of the Working with Children Check and the AVO clearly provided such a reason. The validity of the reason for dismissal therefore did not necessarily turn on the ultimate outcome of the criminal proceedings.

• [7] In the First Stay Decision I accepted the Respondent's submission that the outcome of the Commission proceedings may ultimately depend on factors beyond simply the result of the criminal proceedings.[3] That proposition continues to hold. I also accept that any consideration as to whether there was a valid reason for the termination of the Applicant's employment will involve a consideration of circumstances in existence at the time the dismissal took effect.[4] It is also true however that the question of whether the Commission is ultimately satisfied that a dismissal was harsh, unjust or unreasonable must be determined by having regard to a range of factors of which the reason for the dismissal is one.[5] It is well established that a valid reason can exist for a dismissal, including for example the loss of a Working with Children Clearance, but the dismissal can nonetheless in all the circumstances, be harsh, unjust and/or unreasonable and therefore unfair.[6]

• [8] The First Stay Decision also made reference to the flexibility in the statutory scheme for remedies in unfair dismissal matters should the question of remedies ultimately arise. The Commission has considerable discretion in relation to remedies. It may make an order for reinstatement[7] and must not order compensation unless it is satisfied that reinstatement is inappropriate and it considers that an order for compensation is appropriate in all the circumstances.[8] Where reinstatement is ordered and the Commission considers it appropriate to do so, it may make any order that it considers appropriate for remuneration lost because of the dismissal.[9] Orders for compensation may be made and the amount of such order be determined, having regard to specified criteria, including any other matter that the Commission considers relevant.[10] The history of the proceedings, including the circumstances giving rise to any delay in having the matter dealt with, and the circumstances which prevail at the time of any proposed remedy, are matters than can be taken into account if and when the question of remedy arises.

• [9] The principles guiding the Commission's approach to an application of this kind were set out in the First Stay Decision and I have applied those principles in determining the current application. I accept, as the Applicant submitted, that the Applicant remains charged with the same offences as when the first stay application was made and continues to seek reinstatement in employment as was the case at the time of the First Stay Decision. I also accept that the Applicant has continued to actively defend the criminal proceedings and that even though the previous hearing dates in those proceedings were vacated on the Applicant's motion, the Applicant personally does not bear responsibility for the extended delay in bringing the matter to a hearing.[11] The risk of injustice to the Applicant that was referred to in the First Stay Decision continues to subsist. Whilst the additional delay is undesirable, I maintain the view that it is not of the order of magnitude that it will compromise the ability of the Respondent to present its case.

• [10] I propose to grant a further stay of the proceeding until 10 November 2025. The parties will have liberty to apply to vary or revoke the stay order should circumstances change.

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

[1] [2024] FWC 2319.

[2] PR778769.

[4] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at pp. 467, 468.

[5] Section 387.

[6] Toohey v. Executive Director of Catholic Schools [2017] FWC 4722.

[7] Section 390(1).

[8] Section 390(3).

[9] Section 391(3).

[10] Section 392(2).

[11] Local Court transcript page 2 lines 6-20.

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