DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Small
v
BHP WAIO Pty Ltd
(U2020/12242)

Application pursuant to s.589 for an order to stay proceedings pending related criminal matter.

[1] This decision concerns an application made by Mr Jonathan Small (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 10 September 2020. The respondent is BHP WAIO Pty Ltd (the Respondent).

[2] This matter was the subject of a conciliation conference with a staff conciliator however was not resolved and has been referred to me for determination.

[3] The Applicant now seeks a stay of the unfair dismissal remedy application proceedings due to a related criminal prosecution.

Background

[4] The Applicant was employed by the Respondent for just under 10 years.

[5] The dismissal of the Applicant followed a complaint made about the Applicant by another employee to the Respondent.

[6] The Respondent undertook an investigation into that complaint.

[7] The Applicant denied the allegations made by the complainant employee.

[8] The Applicant was provided with opportunities to respond to the allegations. The Respondents says the Applicant explained that he wanted to present his version of events but had accepted legal advice to not participate in the Respondent’s investigation.

[9] On 25 August 2020 the Respondent sent a show cause letter to the Applicant advising it was considering terminating his employment and providing him with an opportunity to consider the findings of the investigation and provide any further information for the Respondent to consider.

[10] That letter also advised the Applicant the Respondent had recently been advised by the police that he had been charged in relation to an incident on which the complaint made to the Respondent was based.

[11] The Applicant’s lawyers provided a written response to the show cause letter on 28 August 2020.

[12] On 31 August 2020 the Respondent wrote to the Applicant advising that in the circumstances he had not provided sufficient reason to justify continuing his employment and so he was dismissed as of that date.

Submissions

The Applicant

[13] It is submitted for the Applicant that the criminal charges relate to the same or substantially the same conduct that the Respondent concluded was a valid reason for the Applicant’s dismissal.

[14] At this stage the Applicant does not know when the criminal charges will be heard.

[15] It is submitted the Applicant has closely guarded his right to silence. Despite the obvious consequences for his employment he has disclosed nothing of his defence to the criminal allegation.

[16] If a stay is not granted the Applicant maintains he will likely suffer prejudice in that he will not be able to pursue his rights under the Act and also maintain his silence with respect to the claims which form the basis of the criminal proceedings.

[17] Not granting a stay in this matter is likely to have the practical result of preventing the Applicant proceeding with his unfair remedy application.

[18] A failure by him in a hearing of this application to address the asserted root cause of his dismissal would be detrimental and likely fatal to his unfair remedy case.

[19] Any evidence the Applicant may give the Commission may not be subjected to the same rules of evidence as in criminal proceedings.

[20] In circumstances where witness credibility may be of great significance in criminal proceedings, even a low chance of creating material for cross examination during the Commission proceedings presents an unacceptable risk for the Applicant.

[21] The criminal proceedings enliven the risk of a significant term of imprisonment for the Applicant.

[22] The risk he faces is real and not fanciful.

[23] The Applicant contends whatever prejudice the Respondent may suffer from a delay in proceedings is a matter that can be considered when determining what remedy to award if the Applicant was successful.

The Respondent

[24] The Respondent submits that it must be remembered that this application was made by the Applicant and with foreknowledge that he would need to defend himself in the concurrent criminal proceedings.

[25] The Respondent submits that the Applicant has failed to explore with the Commission or the Respondent measures that may be available to preserve the confidentiality of the Commission proceedings whilst allowing for their timely progression.

[26] The Respondent submits an adjournment and delay of the proceedings in this matter would visit significant prejudice upon it.

[27] The Respondent’s case will be prejudiced as the passage of time diminishes the memory of critical witnesses and the Respondent’s capacity to effectively make enquiries regarding and respond to issues raised in the Applicant’s materials.

[28] Further if a stay is granted the Respondent would be required to carry both a contingent liability on its books of account and an operational contingency resulting from the Applicant’s pursuit of reinstatement, for a period far beyond what is reasonable for an application of this kind.

[29] The Applicant has not sought an adjournment of a notional nor a finite duration rather the Applicant is seeking to have this matter adjourned indefinitely until after the criminal proceeding is determined.

[30] It is likely the criminal proceeding would not be heard before the end of 2021 with a decision potentially handed down sometime thereafter.

[31] This would amount to a plainly excessive delay inconsistent with the Objects of the Act.

[32] An extended adjournment will negatively impact on witnesses involved; prolonging their stress and apprehension.

[33] For these reasons the Respondent submits the application for a stay of proceedings should be dismissed.

Consideration

[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.

Final written submissions:

Applicant, 16 and 29 October 2020.
Respondent, 23 October 2020.

Printed by authority of the Commonwealth Government Printer

<PR724245>