Unfair dismissal cases and criminal charges

In a recent decision of the Fair Work Commission in a pending unfair dismissal case, the Commission reviewed the principles which apply to it staying the proceedings pending the finalization of pending criminal charges which may impact upon the case. This results from the requirement that an applicant lodge a claim within 21 days of the dismissal, which in some cases is in the context of delays by the criminal and civil courts in resolving criminal charges which may impact upon the facts.


[34] In the case of Orce Popski v Warrigal Care T/A Coniston Nursing Home [[2018] FWC 4553] Deputy President Bull undertook a thorough analysis of the authorities relevant to this matter. It is unnecessary to repeat that analysis here.

[35] The matter before Deputy President Bull concerned an employee who was dismissed following an investigation undertaken by his employer into particular alleged conduct. Prior to the dismissal the employee was charged by the police. The employee then made an application to the Commission for an unfair dismissal remedy. The applicant then sought a stay of the proceedings of the unfair dismissal remedy pending the finalisation of the criminal proceedings.

In the above case Deputy President Bull held that,

“[57] Further, the Full Bench in Rustemovski, citing the broad statutory discretion of the Commission, eschewed the rigid application of the McMahon principles on the basis that such an approach would obfuscate the Commission’s primary obligation of ensuring the parties are afforded a fair hearing.

[58] It is not in dispute that the conduct leading to the applicant’s dismissal is the same conduct associated with the criminal charge. In any criminal proceedings the onus of proof is beyond reasonable doubt and the proceedings are subject to the rules of evidence. Whereas in Commission proceedings the Evidence Act 1995 (Cwth) is ordinarily applied, it is not mandated, and the onus of proof as is applied to civil matters is on the balance of probability. On this basis there is an unavoidable potential for different outcomes concerning essentially the same circumstances.

[59] This leaves the potential prejudice against the applicant in jeopardising his right to silence in the criminal charge. While it is correct to argue that if the criminal assault allegation is without merit, Mr Poposki would potentially not suffer injustice if the Commission hearing proceeded. It would still potentially prejudice his right to silence in the upcoming criminal trial concerning the same allegation having given evidence under oath and been subject to cross examination in an unfair dismissal application. As stated by Dean J in Reid v Howard it is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person.” (References omitted)

[36] In situations such as this the Commission has a wide discretion to exercise if it wishes.

[37] Delaying a hearing is undesirable for obvious practical reasons.

[38] Delay is also at odds with one of the Objects of Part 3-2 Unfair dismissal of the Act, s.381(1)(b)(i), to deal with such applications quickly.

[39] Part 3-2 Unfair dismissal of the Act also requires that a “fair go all round” is accorded to both the employer and the employee concerned.

[40] As the Full Bench held in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyari [[2018] FWCFB 1255] at [49],

“…Ultimately the relevant question is: what does justice require in the circumstances?”

[41] Considering the circumstances of this case and particularly that the evidence of the complainant and of the Applicant is very likely to be absolutely critical to both this application and the criminal proceedings, I have decided that it would be unjust to the Applicant to continue to now proceed with this application.

[42] Consequently, this application will be stayed pending the finalisation of the related criminal proceedings. The parties will have liberty to apply to vary or cancel the stay order [PR724246] should future events warrant that.”

Concerning an Applicant and  BHP WAIO Pty Ltd (202)) FWC 5892 delivered 4 November 2020 per Williams C