REASONS FOR DECISION

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

Mr Kevin Boyce
v
Scott Corporation Limited T/A Bulktrans
(U2015/11092)

COMMISSIONER SAUNDERS

NEWCASTLE, 12 FEBRUARY 2016

Application for an adjournment

[1] After having received written submissions from each of the parties, I informed the parties in writing on 27 January 2016 that I had, in accordance with the applicant’s request, decided to adjourn the arbitration hearing/conference in this unfair dismissal matter from 11 and 12 February 2016 to 5 and 6 April 2016. The respondent opposed the applicant’s adjournment application and requested reasons for my decision to grant the adjournment. These are my reasons for making that decision.

Background

[2] The applicant was dismissed by the respondent on 1 August 2015 on the grounds of serious misconduct.

[3] On 18 August 2015, the applicant, through his union, the Transport Workers’ Union of Australia (TWU), filed an unfair dismissal application in the Fair Work Commission (Commission) in relation to his dismissal by the respondent.

[4] On about 1 September 2015, the applicant was charged with larceny under section 117 of the Crimes Act 1990 (NSW) for “steal[ing] certain property of the value of $20, to wit, diesel fuel the property of Chemtrans” (criminal matter).

[5] The unfair dismissal matter was set down for arbitration on 24/25 November 2015 before the Commission. The TWU applied to have the matter adjourned pending the hearing of the criminal matter in the New South Wales Local Court in Newcastle.

[6] Another member of the Commission refused the adjournment and the matter was again listed for arbitration on 15 December 2015. However, the respondent was unable to attend on 15 December 2015 because of a conflict with another matter.

[7] The criminal matter came before the New South Wales Local Court on 26 November 2015, at which time a plea of not guilty was entered by the applicant in these proceedings and the criminal matter was set down for trial on 15 January 2016. The Commission then listed the unfair dismissal matter for arbitration on 11 and 12 February 2016.

[8] In January 2016, as a result of police unavailability, the hearing in the criminal matter was adjourned from 15 January 2016 to 18 March 2016. As a result, on 19 January 2016 the applicant made an application to the Commission for the unfair dismissal matter to be adjourned until the conclusion of the criminal matter.

Consideration

[9] On 21 January 2016, the applicant filed written submissions in support of its application for an adjournment. On 25 January 2016, the respondent filed written submissions in support of its opposition to the adjournment application. I had careful regard to both sets of submissions before making my decision, balancing justice between the parties, to grant the adjournment.

[10] The respondent relied on the decision of SDP Watson in Sandford v Austin Clothing Co Pty Ltd. 1 I applied those principles in determining the adjournment application by the applicant. I also applied the principle that the Commission should deal with unfair dismissal matters in a way that is quick, flexible, informal, addresses the needs of employers and employees, and that a “fair go all round” is accorded to both the employer and the employee concerned (s.381 of the Act).

[11] In addition to having regard to the matters referred to in the previous paragraph, I placed weight on the following factors in making my decision to grant the adjournment:

(a) First, I have not stayed the unfair dismissal proceedings or stood them over generally. The period for which I have adjourned the unfair dismissal matter is only for approximately seven weeks. That is a short period of time; and

(b) Secondly, 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.² It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 3 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 Commission4 and criminal proceedings,5 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. That is precisely what would happen in this case if the unfair dismissal proceedings were not adjourned for a short time to allow the criminal matter to be heard on 18 March 2016. Further, 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.

COMMISSIONER

1 Print S8287

2 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

3 Ibid

4 On the balance of probabilities, applying the Briginshaw standard

5 Proof beyond reasonable doubt

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