DECISION RE STAY

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

Mbu Nikoka Lyzette
v
Safe Places for Children
(U2020/9148)

Unfair dismissal claim - related criminal proceedings - stay of proceedings Ordered.

[1] This Decision involves the determination of a contested stay application.

[2] The request to stay proceedings has been made in respect to an application for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The application for unfair dismissal remedy was made by Mbu Nikoka Lyzette (the applicant). The respondent employer is Safe Places Community Services Limited ABN 53 131 345 910 T/A Safe Places for Children (the employer).

[3] The unfair dismissal application was filed on 3 July 2020, and it indicated that the date that the applicant’s dismissal took effect was 22 June 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. The unfair dismissal application attached inter alia, a copy of a termination letter dated 22 June 2020 (the termination letter).

[4] On 13 July 2020, the employer filed an employer’s response to the application (Form F3). The Form F3 did not indicate that any jurisdictional objection was raised in respect to the unfair dismissal application. However, the Form F3 asserted inter alia, that the unfair dismissal application was frivolous and vexatious, and completely without merit, and that the assertions made by the applicant’s representatives were mischievous and misleading.

[5] On 24 July 2020, the unfair dismissal application was the subject of unsuccessful conciliation. On 29 July 2020, the Parties were advised that following the unsuccessful conciliation, the unfair dismissal application was being referred for conference/hearing before a Member of the Fair Work Commission (the Commission). Also, on 29 July 2020, the solicitor acting for the applicant sent an email to the Conciliator who had conducted the conciliation on 24 July (the Conciliator). In this email, the solicitor acting for the applicant requested that the Commission stay the proceedings in this matter until the conclusion of ongoing criminal proceedings in which the applicant is the Defendant. Regrettably, this email communication was not copied to the employer.

[6] On 30 July 2020, the employer sent an email to the Conciliator which inter alia, identified that the dismissal of the applicant related to obligations that the employer had in respect to the Child Protection (Working with Children) Act 2012 (the Child Protection Act). This email also stated inter alia:

“As there was no alternative employment available to the Applicant we had no option but to terminate her employment. Given their whole argument is that we should have considered alternative roles and there are no alternative roles available to her they will naturally fail and waste everyone’s time, including a member of the Fair Work Commission and cause us to incur costs which will likely be recoverable from her representative as they are the ones that are pressing this application.”

[7] Regrettably, this email communication was not copied to the applicant’s solicitor. However, on 31 July 2020, after this matter had been allocated to the Commission as currently constituted, my Associate provided a copy of the employer’s email of 30 July to the solicitor acting for the applicant.

[8] The unfair dismissal application was the subject of a Pre-Hearing Conference/Conciliation by telephone held on 19 August 2020. During the Pre-Hearing Conference/Conciliation it became apparent that the employer was unaware of the email of 29 July 2020, from the applicant’s solicitor to the Conciliator which contained the request for a stay of proceedings. The proceedings were adjourned in order to provide the employer with a copy of the email of 29 July 2020, and to allow the employer to consider the request for a stay of proceedings. The employer was required to subsequently indicate whether it maintained any objection to the stay of the proceedings, and if it did so, to provide an outline of argument in support of its position opposing any granting of the request for a stay.

[9] On 28 August 2020, the employer provided an outline of argument in support of its opposition to the applicant’s request for a stay of the unfair dismissal proceedings.

[10] In summary, the employer’s outline of argument opposed the stay of proceedings as requested by the applicant because it asserted that the proceedings in the unfair dismissal matter would not prejudice the applicant’s position in respect of the criminal proceedings in which she is the defendant. The employer asserted that the factual circumstances relevant to the determination of the unfair dismissal matter would not involve the factual circumstances that would be traversed in the criminal proceedings.

[11] The employer’s outline of argument has asserted that the unfair dismissal proceedings would be confined to the question of whether the applicant’s loss of an essential qualification, described as a “Working with Children Check” represented valid reason for her dismissal. The employer stated inter alia, that: “The Applicant applied for, and was employed to perform, child-related work. Losing an essential qualification was the reason for her termination.”

[12] The employer’s outline of argument also mentioned the operation of s. 9 of the Child Protection Act and stated inter alia: “… an employer must not commence employing, or continue to employee, a barred person from child-related work.” Consequently, according to the employer’s outline of argument, in respect to the unfair dismissal matter, “…there is no need to traverse the facts that gave rise to the criminal charges.”

[13] The employer’s outline of argument also stated; “The Applicant was terminated due to failing to maintain an essential qualification which has been determined previously by the FWC to be a valid reason for dismissal. We submit that any finding of not guilty would not, in any event, automatically lead to a conclusion that the applicant was unfairly dismissed.”

[14] In its conclusion, the employer’s outline of argument asserted that: “The FWC is merely being asked to determine whether the loss of the Applicant’s WWCC, an essential qualification, is a valid reason for dismissal.” And; “As the Applicant has not demonstrated any real risk of injustice the FWC would not be justified in denying the Respondent their fundamental right to a hearing in the ordinary course.”

Consideration

[15] The employer’s opposition to the applicant’s request for a stay of proceedings has presented as an unusual and somewhat incongruous position for the employer to adopt. Following the unsuccessful conciliation, the employer wrote to the Conciliator and complained that the unfair dismissal application would “naturally fail” and “cause us to incur costs…”. The stay of the unfair dismissal proceedings, pending the outcome of the criminal proceedings, would potentially provide for what might be described as the least cost option whereby, in the event that the applicant was convicted, she may subsequently discontinue the unfair dismissal claim.

[16] The employer’s position in opposing the stay manifests as an attempt to have the applicant run her unfair dismissal claim on the basis that it would be confined to evidence that did not involve any aspect of the facts and circumstances that are the subject of the criminal proceedings. This approach has attempted to rely upon the assertion that the dismissal of the applicant, because of the loss of an essential qualification, and the associated operation of s. 9 of the Child Protection Act, must represent a valid reason for dismissal, and apparently confine any further argument as to whether the dismissal was harsh, unjust or unreasonable, to the question of the availability of “alternative employment”.

[17] The approach that the employer has adopted in respect to the asserted stringency of the operation of s. 9 of the Child Protection Act appears to broadly follow the dicta that was adopted by a Full Bench of the Commission in the Decision in the case of White v Mahoney  1. Importantly, the Decision in the case of White v Mahoney was quashed by a Judgement of the Full Bench of the Federal Court of Australia in Mahony v White [2016] FCAFC 160.

[18] The employer’s apparent predisposition for summary contemplation of an unfair dismissal claim in circumstances where the applicant has been the subject of criminal charges and those charges operate as the catalyst and/or reason for the decision to dismiss, is, regrettably, reflective of an approach that is fundamentally unjust and should be discouraged. In this regard, it was somewhat disturbing to have observed the following statements that were included in the employer’s Form F3 document:

“5. While it may be the case that the Respondent did not investigate the allegations, this was due to the allegations being investigated by the Joint Child Protection Response Program. This investigation led to criminal charges being laid against the Applicant. The standard of proof for criminal charges is higher than that required in this jurisdiction. Therefore, on the balance of probabilities the Applicant engaged in the conduct that led to the criminal charges and led to her rendering herself unemployable in the child protection industry by having her working with children check barred.

6. Given the criminal charges and the direction from the Office of the Children’s Guardian that the Respondent had to comply with the requirement to not continue employing the Applicant within 7 days of the notice given on 16 June 2020, it is abundantly clear that there was a valid reason for termination.” [emphasis added]

[19] It was somewhat alarming to contemplate the prospect that because criminal charges had been laid, the conduct that was the subject of those criminal charges was somehow established on the balance of probabilities. This is fundamentally illogical and unjust. What if the criminal charges do not result in a conviction? The applicant, who has been cleared of criminal charges is nevertheless somehow automatically found, on the balance of probabilities, to have committed the conduct which was not proven, albeit upon the more stringent criminal standard of proof. There must be scope for a person who has been cleared of criminal charges to also be cleared upon the lesser balance of probabilities standard. A person may be entirely innocent, they may not have committed any of the conduct that was the subject of the criminal charges, and they cannot be automatically found to have engaged in the conduct by virtue of some contorted operation of the lesser standard of proof.

[20] Unfortunately, the employer’s approach to opposing the applicant’s request for a stay of proceedings has been misguided and fundamentally misconceived. The applicant is entitled to a presumption of innocence. The evidentiary case that the applicant may adopt in the unfair dismissal proceedings cannot be artificially and unjustly restricted as has been proposed by the employer.

[21] The Commission recognises that it may be very difficult to facilitate employment arrangements that could permit compliance with the Child Protection Act in circumstances such as those that are evident in this instance. The dismissal of the applicant may ultimately be found not to have been unfair, notwithstanding that the applicant may not be convicted of the criminal charges. However, the applicant would be clearly prejudiced if she was required to conduct the unfair dismissal proceedings before the criminal proceedings had been determined or otherwise finalised.

[22] The Commission could not restrict the evidentiary case that the applicant may seek to advance in support of her unfair dismissal claim. Therefore, the factual circumstances that would be examined in the unfair dismissal proceedings would lead to findings that were established upon the balance of probabilities, and the same factual circumstances may lead to different findings in the criminal proceedings based upon proof beyond reasonable doubt.

[23] These circumstances have been encountered in respect to unfair dismissal claims on many occasions. The prejudice that an applicant in an unfair dismissal matter would suffer if they were required to prosecute their case before related criminal proceedings were conducted and finalised has been well established. Further, the potential for what might be described as a perverse outcome should be avoided, whereby conduct found not to have occurred in the unfair dismissal proceedings, could subsequently be proven beyond reasonable doubt and establish a criminal conviction.

[24] Therefore, the Commission has 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 circumstances change and either Party wishes to argue for re-commencement of proceedings at a time earlier than that provided for in the Stay Order.

[25] Although it is regrettable that this matter will be subject to some 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, are conducted in a manner which is fair and just to all involved.

[26] An Order to stay proceedings in this matter shall be issued separately. The file shall be retained in Chambers awaiting any future application for relisting.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722553>

 1   Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v Mr Gerald Mahony [2015] FWCFB 4952.