[2022] FWC 273
General information, not legal advice.
Fair Work Commission
2022-04-29
Original judgment source is linked above.
"[...] in unfair dismissal cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. In the circumstances of this case, the primary factual contest in the unfair dismissal matter relates to whether the applicant engaged in the conduct alleged against him by the respondent in connection with the theft of fuel. The criminal matter will involve an examination of precisely the same factual matters. Notwithstanding the differences between the standard of proof in proceedings before the Commission and criminal proceedings, it is undesirable for two different courts and/or tribunals to make findings of fact in relation to the same factual matrix within a short period of time of each other."[4]
Consideration of circumstances relating to witnesses
"[...] if the applicant's unfair dismissal matter were heard a few weeks prior to the hearing of the criminal matter, there would, in my view in the circumstances of this case, be a real danger of an injustice to the applicant in his criminal matter because the prosecution in the criminal matter could access the transcript from the unfair dismissal matter and use the evidence given by the applicant and other relevant witnesses in the unfair dismissal matter to gain a real advantage in its preparation for, and running of, the criminal matter."
Whether work done on discovery and preparation might be wasted
Substantial waste of time and effort to bring actions in two courts involving substantially the same issues
How far advanced the proceedings are in each court
Generally balancing the advantages and disadvantages to each part
"[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 [referred to in the Applicant's submissions] 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.[45] 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 [(1885) [1885] UKLawRpCh 60; 29 ChD 50 at [58]]:
'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?"
"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."
"... the "right of silence" is a right which relates to criminal proceedings and it would need a very strong case indeed before the court should intervene solely on that ground to stay civil proceedings pending the determination of criminal proceedings."
(a) the Applicant has not specified the date to which the adjournment is sought, so it is difficult for the Commission to assess the prejudice caused by the delay (noting that there will be significant prejudice to the Respondent's ability to defend the claim arising from delay);
(b) the Applicant has failed to adequately substantiate the actual detriment to him should the proceedings in the Commission proceed, so this should be given little weight; and
(c) many of the Applicant's arguments regarding prejudice are misconceived, or start from the false premise that a finding of not guilty will render the Commission Proceedings unnecessary;
(d) there is a real prejudice to the Respondent from a substantial and indeterminate delay arising from the passing of time.
Burden on the Applicant of preparing for both sets of proceedings concurrently
Respondent has not provided any evidence to establish that the alleged misconduct occurred
If the Applicant is found not guilty, then the dismissal would be without proper cause
(a) the court finds that the person did not engage in the conduct;
(b) there is reasonable doubt as to whether key aspects of the conduct constituting the offence can be made out; or
(c) all elements of the offence are unable to made out by the prosecution, although some aspects of the alleged conduct were found to have occurred.
"In considering whether to exercise the discretion to make a decision with the effect that the applications would not be dealt with until after judgement is delivered in the Federal Court proceeding, it seems to me appropriate that I have regard to the relevant considerations that are taken into account by the courts in considering applications of this kind. Conveniently, in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited,[13] a case concerning an application to stay a proceeding because another proceeding involving related entities operating with a degree a common management and control, were involved in earlier commenced proceeding in New Zealand, Lockhart J set out a number of considerations his Honour said were relevant to the question whether a stay ought be granted:
"In my opinion relevant consideration is to be taken into account in the present case includes the following:
[2] Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited [1992] FCA 72; (1992) 34 FCR 287 at [16] cited in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others [2014] FWC 7326 at [5].
[3] Kevin Boyce v Scott Corporation Limited T/A Bulktrans [2016] FWC 594.
[6] [2000] AIRC 76 at [31].
[7] Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97.
[10] King v Freshmore (Vic) Pty Ltd (Print S4213, 17 March 2000, per Ross VP, Williams SDP, Hingley C).
[11] Visy Board Pty Ltd v Ulben Rustemovski and Fahim Ahmadyar (2018) FWCFW 1255.
Printed by authority of the Commonwealth Government Printer
Mr Jordan Christopher Styche
The Commonwealth of Australia
(1992) 34 FCR 287