Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jordan Christopher Styche
v
The Commonwealth of Australia (Represented by The Australian Signals Directorate)
(U2021/8199)

Application for an unfair dismissal remedy – application for stay of proceedings.

[1] On 9 September 2021, Mr Jordan Christopher Styche (the Applicant) lodged a Form F2 Application for unfair dismissal remedy (the Application) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant asserted that he had been unfairly dismissed by The Commonwealth of Australia (Represented by The Australian Signals Directorate) (the Respondent) on 25 August 2021. The Applicant seeks reinstatement.

[2] In its Form F3 Employer Response, the Respondent provided that the Applicant was dismissed for engaging in “highly inappropriate conduct of a sexual nature, for which he has been criminally charged with 11 counts of ‘act of indecency without consent’ and two counts of stalking”. The Respondent stated that the dismissal was fair.

[3] The matter proceeded to a conciliation before a Staff Conciliator, however, did not resolve.

[4] The file was allocated to my Chambers on 20 October 2021. I set the matter down for a Conference/Directions by telephone on 26 October 2021.

[5] Ms Kayla Scott of Snedden Hall & Gallop Lawyers attended on the Applicant’s behalf and made an oral application pursuant to s.589(1) of the Act for the Application to be stayed pending an outcome in criminal proceedings commencing February 2022 (the Criminal Proceedings).

[6] Directions were issued for filing of materials in relation to the stay application.

[7] The parties filed materials in compliance with those Directions, however, prior to a decision being issued on the stay application, my Chambers were advised that the Criminal Proceedings, originally scheduled to commence in February 2022, had been adjourned until 31 October 2022.

[8] Accordingly, a further Directions Conference was conducted and Further Directions issued for filing of supplementary materials.

[9] This decision concerns the stay application made by the Applicant in respect of proceedings dealing with the Application (the Commission Proceedings). By consent of the parties, the stay application is being dealt with on the papers.

Relevant Provision of the Act

[10] The Commission’s power to stay an application is provided under s.589 of the Act:

“589  Procedural and interim decisions
             (1)  The FWC may make decisions as to how, when and where a matter is to be dealt with.
             (2)  The FWC may make an interim decision in relation to a matter before it.
             (3)  The FWC may make a decision under this section:
                     (a)  on its own initiative; or
                     (b)  on application.
             (4)  This section does not limit the FWC’s power to make decisions.”

Applicant’s submissions

[11] The Applicant submitted that in exercising its discretionary power under s.589(l) of the Act to stay the proceedings, the Commission should consider the following factors, in accordance with the principles set out in McMahon v Gould. 1 The Applicant submitted that while this case did not arise in Commission proceedings, the following principles are applicable in the current circumstances:

(a) the court’s task is one of ‘the balancing of justice between the parties’, taking account of all relevant factors;

(b) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(c) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(ii) the proximity of the criminal hearing;

(iii) the possibility of miscarriage of justice;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations;

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him.

(McMahon Principles)

[12] In further submissions, the Applicant submitted that the Commission should also have regard to the following principles:

a. Pursuant to section 589(2) and (3) of the Act, the Commission may make an interim decision when an application is made. Therefore, the Commission should have regard to the common law principles concerning interim applications.

b. The undesirability of two courts competing to see which of them determines common facts first.

c. Consideration of circumstances relating to witnesses.

d. Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

e. The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

f. How far advanced the proceedings are in each court.

g. The law should strive against permitting multiplicity of proceedings in relation to similar issues.

h. Generally balancing the advantages and disadvantages to each part. 2

[13] The Applicant addressed the relevant principles as follows.

The proximity of the criminal hearing

[14] While the Applicant had originally relied on submissions to the effect that the timeframe set for the Criminal Proceedings would not cause any significant delay in the Application, those submissions are no longer relevant given the now lengthy adjournment of the Criminal Proceedings.

The possibility of miscarriage of justice

[15] The Applicant noted that he was dismissed for allegedly ‘engaging in highly inappropriate conduct of a sexual nature, for which he has been criminally charged with 11 counts of ‘act of indecency without consent’ and two counts of stalking’. The Applicant submitted that the reason for his dismissal directly relates to the Criminal Proceedings, to which he has plead not guilty in relation to all charges.

[16] The Applicant submitted that the Respondent has failed, throughout the process leading to his dismissal and in the Commission, to provide any evidence that substantiates or demonstrates the Applicant has engaged in the alleged conduct. The Applicant submitted the Respondent has only relied on the information that has been made available through the Criminal Proceedings. The Applicant submitted that in these circumstances, it would be reasonable to wait until the Criminal Proceedings have been finalised and that evidence tested, prior to his Application being progressed and finalised in the Commission.

[17] The Applicant submitted that if he is found not guilty of the alleged conduct in the Criminal Proceedings, it would follow that the allegations of misconduct relied on by the Respondent in terminating his employment could no longer be substantiated.

The burden of the defendant (the applicant) of preparing for both sets of proceedings concurrently

[18] The Applicant submitted that the Criminal Proceedings were commenced prior to the Commission Proceedings. The Applicant submitted that he commenced his Application in the Commission to comply with the relevant limitation period for filing an application under s.394 of the Act. He submitted that if he had the option to later file his unfair dismissal application following conclusion of the Criminal Proceedings, then he would have proceeded in that manner.

[19] The Applicant submitted that the resource implications involved in the preparation for both proceedings concurrently would be a significant burden on him.

[20] Further, the Applicant submitted that the balance of convenience favours granting the stay application for the following reasons:

a. The Applicant would suffer a greater prejudice compared to the Respondent because:

i. if the Commission Proceedings would be heard before the Criminal Proceedings, the Applicant’s defence in the latter proceedings may be seriously prejudiced.

ii. the prosecution could obtain the transcript of the Commission Proceedings where evidence was given by the Applicant and use it in its advantage in the Criminal Proceedings.

iii. the decision in the Commission Proceedings most likely would be published before the one in the Criminal Proceedings. If the Applicant is unsuccessful in his unfair dismissal application but found not guilty in the Criminal Proceedings, he would have to first obtain leave to appeal the Commission’s decision outside the statutory 21 days (assuming there is more than 21 days between the two decisions which is very likely). That would require further uncertainty and considerable costs to be wasted.

iv. the Respondent’s prejudice, if any, would be minimal because the Respondent is unlikely to rely on any witnesses to give evidence in relation to the Applicant’s conduct. The Respondent’s decision to terminate the Applicant’s employment was based on his alleged breach of the Code of Conduct following the Applicant being charged with acts of indecency and stalking.

b. The Applicant could suffer harm – potentially a lengthy imprisonment in relation to the Criminal Proceedings – for which damages by way of retrospective payment of salary or reinstatement would not be an adequate remedy. This situation would apply if the Applicant is successful in relation to the Commission Proceedings, he is reinstated in his role, but subsequently found guilty in his Criminal Proceedings.

c. The Applicant has been struggling with conducting both proceedings concurrently and that had an impact on his mental health.

d. The Applicant relies on his family’s financial assistance in defending the Criminal Proceedings and in relation to his unfair dismissal application. If both matters were to be conducted within a short period of time of each other, that would cause financial burden on the Applicant and his family.

Two courts competing in determining common facts

[21] The Applicant submitted that being charged with criminal offences gave rise to his termination. Consequently, the substance of his criminal charges would need to be investigated by the Commission during the hearing, albeit at a different burden of proof, in order to determine whether the termination was harsh, unjust or unreasonable.

[22] The Applicant cited the Decision in Kevin Boyce v Scott Corporation Limited T/A Bulktrans (Boyce) 3, in which Commissioner Saunders (as he then was) considered a stay application in the context of an unfair dismissal application and subsequent criminal charges being laid, and found that:

“[…] 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

[23] The Applicant submitted that this authority should be given weight in consideration of the stay application.

Consideration of circumstances relating to witnesses

[24] The Applicant submitted that he is yet to know whether he will give evidence in the Criminal Proceedings. The Applicant submitted that given the onus rests with the prosecution to prove beyond reasonable doubt that the Applicant committed the offences, the Applicant can choose whether to give evidence or not, as influenced by a number of considerations.

[25] The Applicant submitted that for him to have any prospects of succeeding in his Application before the Commission, he would have to give evidence and be cross-examined which could potentially lead to evidence that may be either self-incriminatory or against his interest. The Applicant submitted that this is supported by the findings in Boyce where it was determined that:

“[…] 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.”

[26] The Applicant submitted, therefore, that his right not to give evidence in his Criminal Proceedings competes unfairly with the requirement of him to give evidence in relation to his unfair dismissal application.

Whether work done on discovery and preparation might be wasted

[27] The Applicant noted that the Respondent has informally requested discovery of the prosecution brief received in relation to his Criminal Proceedings. The Applicant submitted that he opposes such evidence being provided to the Respondent and pre-empts that, if the Respondent presses for its production, it would give rise to a subsequent interim application that the Commission would have to determine.

[28] The Applicant submitted that if he is found ‘not guilty’ after the Commission Proceedings had been heard, the preparation for, and attending the hearing of the Commission Proceedings, would be wasted. The Applicant submitted that any additional time spent, together with funds incurred in relation to preparing and running a subsequent appeal would also be wasted.

[29] The Applicant submitted that the Application is not time-sensitive regarding the Respondent’s evidence, and it is unlikely that the Respondent could call witnesses of fact whose memory could fade if the hearing is delayed.

[30] Further, the Applicant submitted that if he is found guilty of the current charges, he will discontinue the Application.

Substantial waste of time and effort to bring actions in two courts involving substantially the same issues

[31] The Applicant submitted that if the Commission found that the Applicant’s dismissal was harsh, unjust or unreasonable, and determined that he should be reinstated, this decision could be influenced at a later time by findings in the Criminal Proceedings in case the Applicant were to be found guilty. In that instance, whether the Applicant would have to serve any time of imprisonment or not, the Respondent would have to investigate the Applicant’s employment again and most likely terminate his employment for the second time. The Applicant submitted that this would be time and money wasted.

How far advanced the proceedings are in each court

[32] While adjourned, the Applicant submitted that the Criminal Proceedings are more advanced than the Commission Proceedings, given that the Criminal Proceedings were scheduled to commence in February 2022 but due to the Applicant contacting COVID-19 had to be rescheduled to commence on 31 October 2022, being the earliest date that the ACT Magistrates Court could accommodate a five-day trial.

[33] The Applicant noted that the Application before the Commission has not yet been scheduled for hearing.

Generally balancing the advantages and disadvantages to each part

[34] Referencing the Objects of the Act, the Applicant noted that the Commission should ensure a ‘fair go all round’. Further, the Applicant noted that s.381(b)(i) and (ii) of the Act establishes that the procedures for dealing with unfair dismissal applications are quick, flexible and informal, and address the needs of employers and employees.

[35] The Applicant submitted that the requirement to hear and determine matters quickly should not prevail over the Applicant’s right to have a fair hearing of his Criminal Proceedings. The Applicant submitted that the Commission must give appropriate weight to the probability of the Applicant, if he were to be found guilty in the ACT Magistrates Court, facing a penalty of imprisonment of to up to seven years, against the prejudice against the Respondent that might be minimal, if any, in Staying this Application.

Respondent’s Submissions

[36] The Respondent submitted that the onus is on the Applicant to make good the adjournment application.

[37] The Respondent cited the decision in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar, 5 in which a Full Bench of the Commission considered, in the context of concurrent proceedings in the Federal Court of Australia, the exercise the Commission’s discretion to grant a stay under s.589 of the Act. In that the decision, the Full Bench stated:

“[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) 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?”

[38] The Respondent submitted further that, as observed in Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man: 6

“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.”

Pleading ‘not guilty’

[39] The Respondent submitted that it is not clear why the Applicant pleading not guilty to the criminal charges weighs in favour of granting the stay. The Respondent submitted that the burden of establishing the prejudice that might flow to the Applicant as a result of concurrent criminal and civil proceedings lies on the Applicant and requires an evidential basis and the identification (by the Applicant) of the ‘invidious choice’ that prejudices the Applicant's position in the criminal proceedings. 7

[40] In its further submissions, the Respondent submitted that it now understands the Applicant to be making an argument that the Commission Proceedings being heard prior to the Criminal Proceedings would constitute an infringement on the Applicant’s “right of silence”. The Respondent cited Philippine Airlines v Goldair (Aust) Pty Ltd, 8 in which Young CJ, citing relevant authorities, stated that:

“… 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.”

[41] Further to the above matters, the Respondent submitted that, having regard to the Applicant’s initial and further submissions, the application for the stay of proceedings should not be granted on the basis that:

(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.

Proposed length of the adjournment

[42] The Respondent notes that the Criminal Proceedings are scheduled for a 5-day hearing commencing on 31 October 2022. The Respondent noted that the Applicant seeks a stay of the Application until ‘after the hearing of the criminal proceedings’ but does not provide further particularisation.

[43] The Respondent submitted that it is unclear whether the Applicant is seeking an adjournment until the Criminal Proceeding is heard, or until after the proceedings have been finalised by way of verdict. The Respondent submitted that the Applicant has provided no information in relation to the expected timeframes for the ‘finalisation’ of the Criminal Proceedings.

[44] The Respondent submitted that in light of this lack of specificity, it is not possible for the Commission to conclude that the 'timeframe [for the adjournment] is not so significant', as the timeframe is indeterminate.

[45] The Respondent submitted this is a material concern, given the delay will likely cause significant prejudice for the Respondent as further outlined below.

Prejudice to the Applicant

[46] While the Applicant has made submissions to the effect that he is not sure at this time whether he will give evidence in the Criminal Proceedings, the Respondent submitted that the Applicant has or should have already been provided with the brief of evidence against him, given the Criminal Proceedings were originally scheduled to commence in February 2022.

[47] The Respondent noted that it has requested the brief of evidence from the Applicant but has not been provided it. The Respondent submitted that there may be matters in the brief of evidence that may be material to the Commission’s determination of this matter. The Respondent noted the Decision in Stocks v Johns (No. 2), 9 in which it was determined that evidence against the defendant in the criminal proceedings was relevant to the Victorian Supreme Court’s decision not to grant a stay.

[48] The Respondent submitted that given the Applicant has refused to provide any information about the evidence against him in the Criminal Proceedings, the Commission is not in a position to properly consider the nature of the prejudice to the Applicant of participating in the Commission Proceedings. The Respondent submitted that this has resulted from the Applicant’s decision not to place this information before the Commission.

[49] Further, the Respondent contended that if, as asserted by the Applicant, the allegations of conduct substantiating a valid reason for termination are groundless, no injustice would accrue to the Applicant in respect of the Criminal Proceedings if he were to give that evidence now in the Commission Proceedings.

Burden on the Applicant of preparing for both sets of proceedings concurrently

[50] The Respondent submitted that the Applicant has provided no evidence of the burden of preparing for both the Commission Proceedings and the Criminal Proceedings being heard concurrently. The Respondent submitted that a mere assertion of a significant burden is not sufficient, and evidence must be provided for the Commission to be satisfied of any burden existing. The Respondent submitted, therefore, the Applicant’s submission in this regard should be given no weight.

Alleged possibility of a miscarriage of justice

[51] The Respondent submitted that the gist of the Applicant’s case regarding the alleged possibility of a miscarriage of justice relates (in the Applicant’s view) if the Applicant is found not guilty, then the dismissal would be without proper cause. The Respondent submitted that it does not ‘logically follow’ that if the Applicant is found not guilty in the Criminal Proceedings, that the allegations of misconduct on which the Respondent relied to terminate the Applicant’s employment can no longer be substantiated.

[52] The Respondent relied on its earlier submissions on this issued which provided as follows.

Respondent has not provided any evidence to establish that the alleged misconduct occurred

[53] The Respondent submitted that the Applicant submits it is relevant to the issue before the Commission that the Respondent has not provided evidence to substantiate or demonstrate that the Applicant’s alleged conduct has occurred. The Respondent submitted that this consideration is not relevant, as the Respondent has not yet been required by the Commission to file evidence regarding the conduct. It submitted that at the appropriate time, as directed by the Commission, it will file its evidence in defence to the Application.

If the Applicant is found not guilty, then the dismissal would be without proper cause

[54] The Respondent submitted it is not in dispute that the conduct leading to the Applicant’s dismissal is the same conduct that is the subject of the criminal charges. It nevertheless submitted that the Applicant’s submission is incorrect on this point for a number of reasons.

[55] The Respondent noted that a person may be found ‘not guilty’ of criminal charges for a number of reasons, including:

(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.

[56] The Respondent submitted that the Applicant does not explain the basis for him pleading ‘not guilty’ to the criminal charges. However, it noted the Commission is not bound by decisions made by courts in criminal proceedings and the Commission must satisfy itself, on the basis of the information before it, whether the dismissal was fair. 10

[57] The Respondent further submitted that in a criminal proceeding, the onus of proof is beyond reasonable doubt and the proceedings are subject to the rules of evidence. However, in proceedings before the Commission, the Commission may depart from the rules of evidence and inform itself as it sees fit and the onus of proof applied is the balance of probabilities. The Respondent submitted, therefore, there is the potential for matters arising from the same factual situation to result in different outcomes.

Prejudice against the Respondent

[58] While the Applicant has submitted that any prejudice against the Respondent would be minimal, the Respondent rejected that submission. The Respondent submitted that the Applicant has assumed that the Respondent would not rely on any evidence of witnesses to conduct its case. The Respondent submitted that while it has not prepared its case for hearing, it is likely that witnesses for the criminal case will be asked to give evidence during the proceedings.

[59] The Respondent noted that it is required to prove that there existed at the time of the dismissal facts that support there being a valid reason for the dismissal. It submitted that the Applicant’s conduct towards the young women serving him at the various retail stores is the relevant conduct, and the Respondent will seek to prove that the conduct occurred including by asking those young women to give evidence. The Respondent submitted that the passing of time raises a real prejudice for the Respondent in this regard. The Respondent contended that by the time the criminal proceeding is heard, it will be over a year since the relevant conduct occurred.

[60] The Respondent submitted that in the event the Applicant’s Application is successful, the Respondent may be ordered to pay wages not received in the interim period. It noted that while capped under the Act, compensation may also be ordered. The Respondent submitted that a substantial delay in the Commission proceedings may result in significantly increased remedy being granted to the Applicant if he is successful.

[61] Further and in the alternative, the Respondent submitted that where reinstatement is sought in unfair dismissal proceedings, the matter should be determined as quickly as possible. 11

[62] For all of these reasons, the Respondent submitted that the burden of demonstrating that the stay ought to be granted has not been discharged by the Applicant, and in the absence of evidence and particularisation to support the Applicant's submissions, the ordinary orders must be made for the timetabling of the matter.

Applicant’s Reply Submissions

[63] The Applicant noted that the Respondent completely failed to address many of its submissions in relation to the stay application. The Applicant submitted that this weighs heavily in favour of the Applicant discharging the burden on him to demonstrate that the stay application ought to be granted.

[64] The Applicant nevertheless addressed matters raised by the Respondent in its reply submissions as follows.

Date to which the stay is sought

[65] The Applicant clarified that the stay is sought until the first business day after the Criminal Proceedings have been heard, being 7 November 2022.

Prejudice against the Applicant

[66] The Applicant submitted that his right to silence in the Criminal Proceedings is not the sole ground for staying the Commission Proceedings, but it is one of many as outlined in the Applicant’s submissions in relation to the stay application. The Applicant therefore submitted that the statement of Young CJ referred to in the Respondent’s Submissions is not applicable to these proceedings as it refers to situations where the Court’s intervention would require “A very strong case before the Court should intervene solely on that ground to stay civil proceedings” (Applicant’s emphasis).

[67] The Applicant submitted that the Commission does not require the evidence against the Applicant in the Criminal Proceedings to understand the prejudice to the Applicant with respect to his right to not give evidence in the Criminal Proceedings if he chooses to do so. The Applicant submitted that his right to silence exists regardless of the evidence put against him in the Criminal Proceedings, and the importance of his right to silence is not affected by that evidence.

Prejudice against the Respondent

[68] The Applicant restated his submissions that the potential stay of proceedings poses minimal to no prejudice to the Respondent because the Respondent’s case should not be reliant on witnesses of fact, but instead the requirements provided pursuant to the Australian Public Service Code of Conduct which should predicate whether the Applicant’s employment should have been terminated. Further, the Applicant submitted that the Respondent did not provide any clear submissions, nor did it adduce any evidence, in relation to potential prejudice against it in the event this Application is stayed.

[69] The Applicant also noted that compensation is capped under the Act, and therefore, the Respondent would not face any substantial prejudice by way of a greater potential remedy if the Commission Proceedings are stayed.

[70] The Applicant submitted that should the Commission find that the Respondent may suffer prejudice as a result of the Application being stayed, the Commission should be satisfied that prejudice is immaterial and that it would be heavily outweighed by the prejudice suffered by the Applicant.

[71] The Applicant therefore submitted that the Commission should make orders that the stay application be granted and the Commission Proceedings stayed until 7 November 2022.

Consideration

[72] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.  

[73] I acknowledge that the Applicant made submissions as to his current financial status and concerns relating to his mental health, to which the Respondent replied. However, these submissions are not relevant to my consideration of whether to exercise my discretion to grant the stay application, accordingly they have not been summarised in this Decision.

[74] It was uncontroversial between the parties that the power to ‘stay’, or adjourn, the proceedings as sought by the Applicant was conferred by s.589(1) of the Act which states that the Commission “may make decisions as to how, when and where a matter is to be dealt with.” I accept that s.589 provides the Commission with discretion to consider whether a stay of the proceedings is appropriate, having regard to the particular facts and circumstances.

[75] I acknowledge the authorities cited by the parties in their submissions. I further note the decision in Bowker v DP World Melbourne Limited (Bowker), 12 in which Gostencnik DP considered whether a stay of proceedings pursuant to s.589 of the Act was appropriate where related Federal Court proceedings were on foot. The Deputy President stated:

“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:

● Which proceeding was commenced first.

● Whether the termination of one proceeding is likely to have a material effect on the other.

● The public interest.

● The undesirability of two courts competing to see which of them determines common facts first.

● Consideration of circumstances relating to witnesses.

● Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

● The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

● How far advanced the proceedings are in each court.

● The law should strive against permitting multiplicity of proceedings in relation to similar issues.

● Generally balancing the advantages and disadvantages to each party”. 14

[76] Noting the above authority and having regard to the parties’ submissions, I agree with the Applicant that the issues for determination in the Criminal Proceedings directly relate to this Application, being the reasons on which the Respondent relied in terminating his employment. Whilst the Respondent is correct that the Commission is not bound by the same rules of evidence and onus of proof imposed on the Courts, I nevertheless agree with the Applicant that the testing of the evidence in the Criminal Proceedings will have a bearing on the Commission Proceedings and the question of whether the Respondent had a valid reason to dismiss the Applicant.

[77] As a result, there is considerable argument that the interests of justice may be best served by giving primacy to the Criminal Proceedings in considering the stay application. I have taken this into account.

[78] I also acknowledge that the Applicant has submitted that if he is found guilty in the Criminal Proceedings, then he will discontinue the Application before the Commission. The resources of the Commission are scarce and should not be wasted. The granting of a stay will ensure that the Commission’s resources will not be wasted if the Commission reaches a different conclusion to the Court. I have taken this into account.

[79] I also note that both parties are legally represented in this matter before the Commission. These legal costs are an additional cost borne by the parties which may be wasted if the Applicant is found guilty in the Criminal Proceedings. I have taken this into account.

[80] In relation to the possible failing memory of the Respondent’s witnesses, I note that the witnesses are not employees of the Respondent. It would appear that these witnesses are not even known to the Respondent at this time. Further, if a stay is granted, then these witnesses would have given detailed evidence in the Criminal Proceeding in the 8 weeks prior to the Commission Proceedings. I have taken this into account.

[81] Taking into account the obiter in Bowker and in Boyce, I am satisfied that any prejudice to the Respondent in granting a stay is minimal compared to the possible prejudice that would be suffered by the Applicant if the Commission were to determine his application at this point in time. I have taken this into account.

Conclusion

[82] In the circumstances and after having weighed the various relevant considerations, I am satisfied that the interests of justice are served by my staying the Commission Proceedings until such a time as the Court has determined the criminal matter and delivered a verdict.

[83] Accordingly, the Application is stayed until 7 November 2022. A Directions Conference will be convened at 9:30 am AEDT on Tuesday, 8 November 2022.

[84] In relation to the Respondent’s submissions in relation to remedy, if there is any consideration for backpay by the Applicant if he is successful in this Application, then the period of the stay sought by the Applicant will be discounted in that determination.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR738239>

 1   (1982) 7 ACLR 202.

 2   Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (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.

 4   Ibid at [11(b)].

 5   [2018] FWCFB 1255.

 6   [2000] AIRC 76 at [31].

 7   Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97.

 8   [1990] VR 385.

 9   [2019] VSC 854.

 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.

 12   [2014] FWC 7326.

 13   (1992) 34 FCR 287.

 14   Ibid at 291.