Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for stay in relation to criminal appeal proceedings - application refused.

[1] Kun Sroung Cheung has applied for an unfair dismissal remedy in relation to the termination of his employment by Victoria Police on 20 May 2020. On 7 August 2020, he sought an adjournment of the proceedings until separate criminal appeal proceedings in the County Court of Victoria are finalised. The adjournment request was heard and refused on 17 August 2020. These are my reasons for refusing the request.

[2] The discretion to stay civil proceedings when there are criminal proceedings involving the same subject matter is not to be exercised lightly - including in the context of a statutory scheme which envisages that applications of this kind will be dealt with both fairly and quickly. Ultimately it comes down to what the interests of justice require in the particular case.

[3] Mr Cheung has asserted his right to silence in the criminal proceedings, which arise for the most part from the same set of alleged facts relied upon by Victoria Police as founding valid reasons for Mr Cheung's dismissal. He says this puts him at a disadvantage in prosecuting the civil proceedings because it limits the evidence he can bring in support of his case. It is the same criticism he makes of the dismissal itself. He says he was unable to participate fully in misconduct proceedings leading to his dismissal because at the time, the criminal proceedings were still before the courts.

[4] Separately, Mr Cheung asserts that any misconduct proceedings connected with the criminal charges against him will become baseless if his appeal succeeds, although he acknowledges the different burden of proof that applies in criminal as opposed to civil proceedings. Finally, Mr Cheung asserts that there is no relevant connection between the alleged misconduct (which he vehemently denies) and his former work division and work function. This is a question that can largely be resolved by examining the nature of Mr Cheung's role and his obligations as an employee of Victoria Police in light of the alleged misconduct.

[5] Victoria Police submits that Mr Cheung can run his case without putting his position at risk in the criminal proceedings by simply putting it to proof as to whether it had valid reason(s) for dismissal. It points to prejudice if a stay of indefinite duration is granted. Victoria Police also says there are available mechanisms to overcome any perceived disadvantage to Mr Cheung in these proceedings including confidentiality orders. Mr Cheung submits that because of the special relationship between Victoria Police and the Office of Public Prosecutions, which has responsibility for the criminal proceedings, evidence led in these proceedings has the potential to influence the criminal proceedings with or without measures to ensure its confidentiality.

[6] These arguments must be weighed in light of the nature of the application made by Mr Cheung and materials already filed in support of his case. The application itself is primarily directed at remedying procedural shortcomings said to flow from Victoria Police acting on his dismissal at a time when "there was not enough on the face of the record to support a sensible decision". Findings of criminal responsibility had been made but had been appealed. For Mr Cheung, the continuing court process meant he was unable to participate fully in misconduct proceedings brought by Victoria Police in relation to the same alleged facts without creating the risk of prejudice to his position in the appeal.

[7] The materials filed by Mr Cheung to date include a submission to the above effect, covering matters of procedural fairness and the reliability of evidence available to Victoria Police when it decided to terminate his employment; whether the conduct of Victoria Police in the misconduct process was consistent with relevant industrial instruments and policies; and whether it was harsh in the circumstances not to wait for the conclusion of the criminal proceedings.

[8] Mr Cheung also relies on documents that are for the most part already known to Victoria Police or already on the public record. Documents relied on only in this proceeding are particular to the unfair dismissal jurisdiction, including the Commission's Unfair Dismissal Benchbook and submissions about the adjournment and merits of the application. There is no witness statement either from Mr Cheung or any other person in support of his application and from what I can see, no information that might tend to shed new light on Mr Cheung's involvement in the alleged conduct in question. In those circumstances, it is hard to identify any real prospect of substantial injustice to Mr Cheung in the criminal proceedings if the unfair dismissal application continues although I acknowledge the possibility that Mr Cheung may have chosen to adopt a different course in terms of the evidence led had the criminal proceedings now concluded.

[9] A further difficulty is that there is no firm timetable for the hearing or determination of the criminal proceedings which by the parties' best estimate is at least 6 to 12 months away, not assisted by delays related to the COVID-19 pandemic. There is a risk that memories will fade over time to the detriment of both parties if the application is not heard until an unspecified time in the future, although there is only limited direct evidence to be adduced in these proceedings. For the most part, the evidence is drawn from historical documentary materials. Delay will also mean a lack of finality in the proceedings for some significant time, with the result that both parties will be called upon to make a greater investment in terms of personal and financial resources than would ordinarily be expected in proceedings of this kind.

[10] Finally, there are risks of prejudice to both parties if an adjournment is granted at this late stage in the proceedings. For Mr Cheung, the primary relief he seeks and his purpose in bringing the application will largely be defeated. For Victoria Police, unnecessary costs will have been incurred in preparation for a hearing that will likely have to be incurred again once a new hearing date is set. There is no guarantee that the sole witness to be called by Victoria Police will remain available to give evidence in 6-12 months' time.

[11] Mr Cheung is in this position at his own instigation as the applicant in this matter. I make no criticism of him for it in light of the statutory timeframe within which unfair dismissal applications must be made. Had he chosen to wait until the criminal proceedings were finalised, there is no guarantee that an extension of time to bring an unfair dismissal claim would have been allowed.

[12] In the end though, whether Mr Cheung's appeal in the criminal proceedings succeeds or fails will not determine the questions that arise in this case. The application before me is about whether the dismissal was harsh, unjust or unreasonable, with particular emphasis on the point in time at which it occurred. Any findings I make will rest on the evidence before me, weighed only on the balance of probabilities. Mr Cheung is at liberty to exercise the privilege against self-incrimination in the hearing of this matter if he wishes, and it appears from his decision not to file a witness statement in the matter that he has adopted this course. No adverse inference can or will be drawn against him on this basis.

[13] On balance, I am persuaded that Mr Cheung can be afforded a fair hearing without an adjournment sine die. The interests of justice require that the matter proceed to be heard and determined as currently listed.

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