Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - stay of proceedings - related criminal proceedings - application stayed.

[1] This decision relates to an application for unfair dismissal remedy made by Ms Jean Madden pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] The application was first listed before the Fair Work Commission (the Commission) for hearing on 23-25 January 2017. That hearing was subsequently adjourned and the matter was re-listed for hearing on 7-10 March 2017.

[3] On 23 February 2017 Ms Madden made application to stay the unfair dismissal proceedings pending the finalisation, or withdrawal, or other appropriate disposal, of criminal proceedings against Ms Madden relevant to her former employment with Street Swags.

[4] An indefinite stay of the application was opposed by Street Swags, however it requested that the matter be adjourned for a period of four months, with the parties to report back on the status of the criminal proceedings.

[5] The application has not progressed any further since that time and I understand the criminal proceedings are still underway. The criminal proceedings include allegations involving Ms Madden's conduct as a director and employee of Street Swags.

[6] On 28 June 2018 I instructed my associate to issue correspondence to the parties to indicate that I intended to stay the proceedings, subject to their views. Neither party provided a view about whether the matter should now be stayed.

[7] I have therefore 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 the applicant seeks to more comprehensively argue for re-commencement of proceedings at a time earlier than that provided for in the Stay Order.

[8] Although it is regrettable that this matter has been subject to extensive 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 is conducted in a manner which is fair and just to all involved.

[9] A stay Order [PR608542] will be issued concurrently with this decision.

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