Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application for order in the nature of a stay - criminal proceedings - stay application granted - substantive application adjourned pending conclusion of criminal proceedings

• [1] The Fair Work Commission ("Commission") can decide how, when and where a matter is to be dealt with,[1] and so it has the power to adjourn a matter by vacating directions issued, effectively granting a stay on proceedings.[2]

• [2] In this case the Applicant, Ms Renee Darby (Ms Darby/ Applicant), has applied for an order in the nature of a stay ("the adjournment application") and the Respondent, Grace Removals (Australia) Pty Ltd ("Grace Removals/ Respondent") opposes the adjournment application.

• [3] The Applicant had been employed by the Respondent since 2009. She was dismissed on 20 January 2025.

• [4] The dismissal related to matters that are now the subject of criminal proceedings.

• [5] Section 589(1) of the Fair Work Act 2009 ("the Fair Work Act") provides that the Commission may make decisions as to how, when and where a matter is to be dealt with.

• [6] The power to adjourn the proceedings, effectively granting a stay, is a statutory discretion, not an inherent power. The relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion, exercised in the circumstances under which the stay application is made.[3]

• [7] Section 577 of the Fair Work Act requires the Commission to perform its function and exercise its powers in a manner that:

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

(d) promotes harmonious and cooperative workplace relations.

• [8] Section 578 requires the Commission, in performing its functions and exercising its powers in relation to a matter, to take into account, among other things, the objects of the Act, equity, good conscience and the merits of the matter.

(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.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

• [9] Ms Darby filed her unfair dismissal application on 10 February 2025.

• [10] Grace Removals filed its Employer Response on 20 February 2025.

• [11] The Commission's staff sought to conciliate the matter and the issues in dispute could not be resolved. It was subsequently allocated to me. I issued directions on 6 May 2025. On 13 May 2025 the Applicant, by correspondence to the Commission, requested that her application be adjourned while the related criminal law proceedings were underway. I declined the request, and my chambers indicated that any party wishing to seek an order in the nature of a stay or indefinite adjournment should file an appropriate interlocutory application and supporting materials such as affidavits. The parties were advised that I would hear from them as to the programming of any such application at the mention listed for 21 May 2025. Ms Darby filed her adjournment application the next day, and subsequently provided a document entitled "Verdict and Judgment Record," in her name, bearing the seal of a Magistrates Court, referring to redacted criminal proceedings, and showing those proceedings had been adjourned to 17 June 2025.

• [12] At the mention on 21 May 2025 both parties confirmed that there were criminal proceedings underway, and both parties agreed that the criminal proceedings related to the same underlying facts as those referred to in the substantive application and the employer response, in these unfair dismissal proceedings. The Respondent nonetheless opposed the adjournment application.

• [13] On 21 May 2025 after hearing from the parties at the mention, I vacated my earlier directions and programmed directions to determine the Applicant's adjournment application.

• [14] As the parties were self-represented, I drew their attention to various decisions in which the Commission had considered similar issues.[4]

• [15] Ms Darby filed submissions in support of the adjournment application on 4 June 2025. Grace Removals filed submissions on 6 June 2025.

• [16] Ms Darby filed submissions in reply on 25 June 2025. In her submissions in reply Ms Darby told the Commission that the court date of 17 June 2025 had been vacated and the criminal matter was listed for mention on 1 July 2025.

• [17] On 15 July 2025, I sought an update from the parties in relation to the criminal proceedings. Ms Darby advised that a new trial date has been set for 24 September 2025.

• [18] In summary, Ms Darby's submissions were as follows.

• [19] It is not in dispute that the criminal charges currently before the Magistrates Court concern the same factual matters that form the basis of her unfair dismissal application. The outcome of the criminal proceedings will directly affect the evidence and findings relevant to this matter.

• [20] If the Commission were to proceed with this application while the criminal matter remains unresolved, she would be required to respond to allegations and facts that are concurrently being addressed in a criminal court.

• [21] Proceeding with this matter now would place her in a position where she may be required to give evidence or make submissions that could be used against her in the criminal proceedings. This may prejudice her right to silence and her ability to defend herself in the criminal jurisdiction. This creates an unfair burden, forcing her to choose between defending her position in these proceedings (i.e. prosecuting her application) or preserving her rights in the ongoing criminal case.

• [22] She submitted that the authorities to which I had referred the parties confirmed that the Commission may grant an adjournment where a party is facing related criminal charges, especially where there is a genuine risk of prejudicing that party's criminal defence or undermining the fairness of concurrent proceedings.

• [23] She submitted that the Respondent had not identified any significant prejudice it would suffer from a temporary stay. In contrast, she would suffer real legal prejudice if required to proceed with the unfair dismissal application prematurely.

• [24] She proposed that these proceedings be adjourned, subject to review at the conclusion of the criminal proceedings and submitted this would ensure fairness and preserve the integrity of both the criminal and Commission proceedings while allowing for timely review.

• [25] In summary, Grace Removals' submissions were as follows.

• [26] It submitted the discretion under section 589 of the Fair Work Act is broad, and that in determining whether an application may be stayed, the Commission is primarily bound by the considerations in section 577.

• [27] It submitted it is not in dispute that the Commission has the power to grant a stay of proceedings, but the power must be exercised only in appropriate circumstances. It submitted that a stay of application is prima facie inconsistent with the requirements that the Commission deal with an application in a prompt manner.

• [28] Grace Removals referred to McMahon v Gould,[5] and the considerations set out in that judgement. Having done so it submitted:[6]

"The applicant relies on the criminal charges as the basis of the application for a stay, as it may impinge her "right to silence and my ability to defend myself in the criminal jurisdiction." There is no such entitlement as of right. As was set out in Sandford v Austin Clothing Company Pty Ltd trading as Gaz Man (2000) (adopting the approach of Young CJ in Phillipine Airlines v Goldair) there is no right to silence in civil cases and there needs to be a "very strong basis" before a stay could be granted on that basis."

• [29] Grace Removals further submitted that Ms Darby bears the onus to show that it is just and convenient that the Respondent's rights should be interfered with.

• [30] It submitted that in accordance with McMahon and Sandford, there should be no presumption that an adjournment will be granted, and serious consideration needs to be given before any action interferes with this right.

• [31] It submitted the Applicant is not automatically entitled to an adjournment because she is involved in a criminal hearing, that she has not proven that an adjournment is necessary, and that she has failed to identify the prejudice she says she would suffer. It says further she has not identified the prejudice that would arise from being cross-examined in two different proceedings.

• [32] It submitted that the Commission's task is a 'balancing of justice between the parties' taking all relevant factors into account. It submitted that in determining whether a civil matter interferes with a defendant in a criminal matter's right to silence the following relevant factors may be considered:
  • The possibility of publicity reaching and influencing jurors in the criminal matter;
  • The proximity of the criminal hearing;
  • The possibility of a miscarriage of justice;
  • The burden on the defendant of preparing for both the civil and criminal matters; and
  • Whether the defendant has already disclosed his defence to the criminal allegations.

• [33] It submitted that the Applicant had not adduced evidence to sufficiently support her application, and there is no evidence of real, as opposed to notional, injustice.

• [34] It argued that the suggestion that Commission proceedings may cause the Applicant to disclose her defence ignores that the Applicant has already disclosed her defence in her substantive unfair dismissal application at paragraphs [1] and [3]-[4]. Accordingly, this was a factor that should weigh against the grant of a stay, and the decision in Popovski v Warrigal Care is distinguishable.

• [35] It said it would be prejudiced by delay and the associated decline of witnesses' memory. It argued that unnecessary delay in any matter is inconsistent with the proper administration of justice.

• [36] In summary, Ms Darby's submissions in reply were as follows.

• [37] She did not seek to indefinitely delay proceedings; she did not expect the matter to extend significantly beyond the mention date of 1 July 2025. The adjournment sought is therefore both reasonable and limited in duration.

• [38] She submitted it is incorrect to suggest that no real prejudice has been identified. The preparation required for both matters remains substantial and cannot be separated. The facts and events of both the Commission matter and the criminal charge are deeply intertwined. Proceeding with the Commission matter prior to the conclusion of the criminal trial poses a serious risk to the fairness of the criminal defence; including the possibility of premature or unintended disclosure of defence strategy, or potential self-incrimination during the Commission proceedings. She submitted that the Respondent's assertion that the defence has already been exposed is inaccurate. While some material facts may have been disclosed in the course of the application, the complete defence strategy - including legal arguments, witness examination, and evidentiary decisions remains under development and is sensitive. She submitted that forcing the Commission matter to proceed now risks compelling further disclosure that may be prejudice to the outcome of the criminal trial. She submitted that these risks are real, not speculative, and justify the adjournment being sought.

• [39] Ms Darby also made a submission about the Respondent causing delay in the criminal proceedings. This was asserted in the submissions in reply and I will not take it as an uncontested fact. I have not had regard to it.

• [40] There is no evidence before the Commission, but the parties have provided documents and have made representations about matters of fact that were not in dispute. I am able to take those matters into account.[7]

• [41] In Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar,[8] the Full Bench stated:

(a) the statutory discretion must "be exercised having regard to the Commission's central obligation to provide a fair hearing to parties in proceedings before it;"

(i) directly from section 577(a) of the Fair Work Act, which directs the Commission to perform its functions and exercise its powers in a manner that 'is fair and just', and

(ii) from the implied obligation to act judicially;[9] and

(c) that 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;"[10] and

(d) that the Commission's primary obligation is to ensure the parties are afforded a fair hearing, and that ultimately the relevant question is: what does justice require in the circumstances?[11]

• [42] The Respondent referred to McMahon v Gould[12] ("McMahon") in which the court considered an application to stay civil proceedings in light of criminal proceedings about the same subject matter. The court listed several guidelines with which it approached its decision in this matter. Those guidelines have since been considered in various cases and jurisdictions, including in the Fair Work Commission.[13] But though the guidelines are helpful:[14]

• • McMahon related to the exercise of an inherent power, not a statutory discretion; [15]
• • the Commission is not bound to follow McMahon;[16]
• • in any event McMahon does not establish a rigid code, and deciding a stay application will depend on the individual case;[17] and
• • rigidly applying McMahon may inappropriately confine the exercise of the Commission's discretion.[18]

• [43] I accept that staying an application is prima facie inconsistent with the requirement to act quickly. However, quickness is not the only obligation pursuant to section 577 and must be balanced against other considerations in that provision having regard to the objects.

• [44] The Respondent correctly submits that an accused is not entitled as of right to have a civil proceeding stayed because of a pending criminal proceeding and nor is there any presumption that a stay will be granted; instead, I need to balance justice between the parties, taking all relevant factors into account, including the accused's right of silence. Balancing the parties' interests and providing a fair go all 'round is consistent with the objections of Part 3-2 of the Fair Work Act, set out above.

• [45] The Applicant has a right to silence in criminal proceedings. It is correct to say that an Applicant does not have an entitlement to a stay to avoid prejudicing that right. However, if there is a potential for real prejudice to that right, that is a relevant consideration in balancing justice between the parties. The potential for real prejudice to the Applicant, if she is able to be cross-examined in these proceedings before the trial in her criminal matter, about the same underlying facts, is self-evident.

• [46] The criminal hearing is proximate, due in slightly more than two months. The prejudice to the Respondent of a short delay is limited. Particularly in light of her self-represented status in these proceedings, I accept the Applicant's submissions that having to prepare for both the civil and criminal matters would impose a burden on her.

• [47] I accept the Applicant has disclosed some assertions of fact in her application, that may be relevant to her defence. I also accept she has not disclosed her 'defence strategy.'

• [48] What does justice require in the present circumstances? This is not a matter where the Respondent is seeking to deprive the Applicant of her right to have her application dealt with.

• [49] In this matter it is the Applicant in these proceedings, who is the defendant in the criminal proceedings, that is seeking the stay. The Respondent is opposing the stay.

• [50] In my view, the criminal proceedings have been moving along while this matter has been before me. The potential effects on the Applicant of having to prosecute this application while defending her criminal proceedings outweigh the potential effects of a stay on Grace Removals.

• [51] I am satisfied that I should exercise my discretion to grant Ms Darby's adjournment application and adjourn the matter. I accept her submission that she does not seek an indefinite adjournment. I will exercise the discretion and adjourn the matter until 25 September 2025. The matter will be listed for mention shortly after that date. In the meantime, the parties will have liberty to apply if circumstances change.

(a) Ms Darby's application for an unfair dismissal remedy is adjourned until 25 September 2025, subject to further order or direction to the contrary.

[1] Fair Work Act 2009 (Cth) s 589(1).

[2] Fahim Ahmadyar v Visy Board Pty Limited T/A Visy Board [2017] FWC 6463, [19], a point undisturbed on appeal in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255 and affirmed in United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 167, [8].

[3] United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 167, [8], applying Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194, [19].

[4] Orce Poposki v Warrigal Care T/A Coniston Nursing Home [2018] FWC 4553; Mr Alistair Nicholls v Van Dairy Group Pty Ltd [2020] FWC 5335; Jonathan Small v BHP WAIO Pty Ltd [2020] FWC 5892; Mr Jordan Christopher Styche v The Commonwealth of Australia (Represented by the Australian Signals Directorate) [2022] FWC 273 and Mr Jordan Styche v The Commonwealth Of Australia (Represented By The Australian Signals Directorate) [2023] FWC 921; Glenn Andrews v Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration and Air-Conditioning [2023] FWC 209; Mr Jamie Richards v All Saints Greek Orthodox Grammar [2024] FWC 2319.

[5] (1982) 7 ACLR 202.

[6] Respondent's submissions filed 6 June 2025, [5] - [6].

[7] R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228, 243 (Barwick CJ); Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

[8] [2018] FWCFB 1255, [47].

[9] Citing Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519.

[10] Citing Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd [1993] HCA 18; (1993) 67 ALJR 389 at 390 and also referring to Re Australian Railways Union and others; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 at 23-24.

[11] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [48].

[12] (1982) 7 ACLR 202.

[13] See for example Mr Jamie Richards v All Saints Greek Orthodox Grammar [2024] FWC 2319; Mr Jordan Styche v The Commonwealth of Australia (Represented By the Australian Signals Directorate) [2023] FWC 921; Glenn Andrews v Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration and Air-Conditioning [2023] FWC 209; Mr Jordan Christopher Styche v The Commonwealth of Australia (Represented by the Australian Signals Directorate) [2022] FWC 273, Mr Alistair Nicholls v Van Dairy Group Pty Ltd [2020] FWC 5335; Orce Popovski v Warrigal Care T/A Coniston Nursing Home [2018] FWC 4553 and others.

[14] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [47].

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