[2014] FWC 2931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Cooper
v
Australian Taxation Office
(U2013/15300)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 MAY 2014

Application for relief from unfair dismissal.

[1] Mr Kevin Cooper’s employment with the Australian Taxation Office (the ATO) was terminated on 14 October 2013. He lodged an unfair dismissal application alleging that the termination of his employment was unfair.

[2] At the conciliation of the application, Mr Cooper’s representative asked that the matter not proceed to hearing until Mr Cooper’s appeal against his conviction was heard and determined. At this time, Mr Cooper has not lodged an appeal.

[3] On 11 December 2013, I adjourned the application. On 13 February 2014, the matter was listed for a mention. While the ATO did not object to a further adjournment, the ATO expressed concern about the delay. The application was further adjourned.

[4] Subsequently, further advice was received from Mr Cooper’s representative about the reasons for the delay in lodging an appeal.

[5] On 26 March 2014, the ATO submitted that, given the delays, the Fair Work Commission (the Commission) should consider whether the matter should proceed. On 29 April 2014, Mr Cooper’s representative advised that the decision to lodge an appeal had further been delayed and asked that the matter not be listed until after May 2014 and if the appeal is lodged that the matter not be listed until after the appeal is heard and determined.

[6] The application for an adjournment was considered at a mention on 5 May 2014.

[7] Mr Denis Fitzpatrick, Mr Cooper’s legal representative explained the delay and advised that he expected that Senior Counsel would soon be in a position to provide advice about the appeal.

[8] Mr Jason Noakes, the ATO’s legal representative, opposed the further adjournment of this matter. He submitted that even if an appeal was successful the matter may be remitted for re-hearing.

[9] Mr Fitzpatrick advised that Mr Cooper had given evidence at the trials below.

[10] I determined not to further adjourn this matter. These are my reasons.

[11] One of the objects of the Fair Work Act 2009 is to provide a remedy if a dismissal is found to be unfair. Such remedies included reinstatement and/or compensation. In this matter Mr Cooper is seeking reinstatement. The Commission, in dealing with unfair dismissal claims, is required to provide a fair go to both employers and employees. Part of that is hearing and determining matters promptly whilst providing procedural fairness to both parties.

[12] It is clear that the existence of simultaneous criminal proceedings does automatically lead to an adjournment of a civil proceeding.

[13] Senior Deputy President Watson in Sanford v Austin Clothing Company Pty Ltd  1considered the relevant authorities and I adopt the approach set out in that decision.

[14] Mr Cooper gave evidence in his criminal matter and was cross examined. There will be no prejudice to Mr Cooper is he gives evidence in his unfair dismissal application.

[15] The matter before the Commission is not the same as the matter before the Court. The Commission does not have to decide if Mr Cooper is guilty of any criminal offence. The Commission must decide if the termination of Mr Cooper’s employment was harsh, unjust or unreasonable.

[16] Mr Fitzpatrick submitted that because the ATO relied on Mr Cooper’s conviction to justify the termination of his employment, the question of whether Mr Cooper’s conviction is overturned is relevant and that should be determined prior to the hearing of his unfair dismissal application.

[17] The ATO submitted that its defence of this application can proceed notwithstanding that Mr Cooper may appeal his conviction.

[18] In all the circumstances, I do not consider that a further adjournment is warranted. Mr Cooper had not appealed his conviction and he may not. If he does, his conviction may stand or fall. It is not clear how long that will take or when a decision will be handed down. The success or otherwise of any appeal if filed will not determine the outcome of unfair dismissal application. The ATO is entitled to have this matter heard and determined.

[19] Directions will be issued for the parties to file material in support and opposition to this application.

DEPUTY PRESIDENT