Dec 881/00 M Print S8287


Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

G Sanford


Austin Clothing Company Pty Ltd trading as Gaz Man

(U No. 34294 of 1999)



Termination of employment.


[1] This decision arises out of an application by G Sanford (the applicant), pursuant to s.170CE of the Workplace Relations Act 1996 (the Act), in relation to the termination of his employment by Austin Clothing Company Pty Ltd trading as Gaz Man (the respondent).

[2] The applicant's employment was terminated with effect from 1 December 1999. His s.170CE application was lodged on 2 December 1999. On 19 January 2000 the application was before Mr K Williams for conciliation, pursuant to directions of the Commission. The matter was not settled.

[3] A s.170CF(2) certificate was issued by myself on 31 March 2000. The applicant lodged an election to proceed to arbitration on 6 April 2000.

[4] On 28 May 2000 a notice of listing was issued fixing a date for arbitration of 10 and 11 July 2000. Directions were given on the same date, requiring the filing and service of witness statements, outlines of submissions and documentary materials by 19 June 2000. These directions were complied with by the respondent on 19 June 2000. The applicant did not comply with the directions.

[5] On 22 June 2000 the Commission vacated the date for arbitration and set the matter down for a hearing with respect to non-compliance with directions for 26 June 2000.

[6] On 23 June 2000 the applicant's solicitors wrote to the Commission asking that the non-compliance hearing be adjourned on the grounds that the applicant had been charged with the theft of monies from the respondent, and that compliance with directions would require statements and evidence in the Commission proceedings from the applicant involving the alleged theft, which would prejudice the applicant and may incriminate him in relation to the criminal proceedings. The criminal proceedings are listed for a contest mention in the Melbourne Magistrates Court on 1 August 2000.

[7] Later on 23 June 2000 the non-compliance hearing was "adjourned until further notice".

[8] On 26 June 2000 the respondent wrote to the Registrar opposing the adjournment of the non-compliance hearing.

[9] The matter was then relisted, as a non-compliance hearing, on 11 July 2000.

[10] In that hearing Mr Bromley, for the applicant, sought that the proceedings be stayed indefinitely, until after the criminal proceedings were concluded. Mr Harris, for the respondent, opposed that course. The issue to be decided is whether the arbitration in this matter, in effect, should be adjourned indefinitely, pending the conclusion of the criminal proceedings, with directions for the applicant to file and serve relevant materials suspended until some point after the conclusion of the criminal proceedings.

Submissions of the Applicant

[11] The applicant sought leave to stay the proceedings until the completion of criminal proceedings on the grounds that the applicant has the right or privilege against self-incrimination. This submission repeated the position put in the 23 June 1999 correspondence to the Commission that:

[12] The applicant contended that the attitude of the respondent was such that it was likely that any material arising in the present proceedings would find its way to the police, raising a real prospect of a real injustice to the applicant in respect of the criminal proceedings.

[13] It was submitted that the rights against self-incrimination are a fundamental common law right, which cannot be over-ridden except by express and unambiguous words. It was submitted that s.110 of the Act does not do that.

[14] The applicant submitted that, in the interests of justice, he be absolved from filing statements until the determination of the criminal proceedings.

[15] It was submitted that the issues in the s.170CE matter relate to the alleged misappropriation of funds which are the issues in the criminal proceeding. It was further submitted that no prejudice results from any delay in the unfair dismissal proceedings. It was submitted that, in the context of s.110 of the Act, it would be unjust to force the applicant to give evidence before the completion of the criminal proceedings, in circumstances where he was required to lodge a s.170CE application within a time limit.

[16] It was further submitted that the Commission has a discretion in relation to the adjournment application and is required to balance the interests of the applicant against those of the respondent. The refusal of the adjournment sought would seriously prejudice the applicant in respect of the criminal proceedings. No prejudice would arise to the respondent if the adjournment was granted. The implications are much more serious for the applicant and could significantly prejudice his future.

Submissions of the Respondent

[17] The respondent submitted that the Commission should reject the application for adjournment and :

[18] The respondent submitted that the Commission has a statutory obligation to deal expeditiously with the matter, found within:

[19] The respondent further submitted that:

[20] The respondent relied on the principles in McMahon v Gould [(1982) 1 ACLC 98] which have been subsequently applied in matters of this kind and which have been followed in later judgments and decisions. They are set out in Cargill v Shire of Lilydale [(1994) 58 IR 332] and include that:

[21] The respondent relied on paragraph (j) of the summary in McMahon:

[22] It was submitted by the respondent that, applying these factors, it is clear that there is no notional, let alone real, danger to the applicant in the criminal proceedings if he gives evidence in the Commission on his application.


[23] The application for adjournment is to be decided in the context of the Act. Accordingly the provisions of s.98 are relevant. Section 98 provides:

[24] The provisions of ss.170CE(7) and 170CFA(6) are also directed to the timely processing of applications.

[25] Ryan JR in Nguyen v Kallan Nominees observed:

Whilst the observations of Ryan J were made in the context of the termination of employment provisions of the Industrial Relations Act 1988 (the 1988 Act), the observation would apply equally in the context of the provisions of the current Act.

[26] Whilst the Commission does have a discretion in relation to the adjournment application, it must be exercised in the context of the statutory scheme. There is a statutory presumption that termination of employment matters should be resolved as quickly as practicable. It follows that an application for adjournment must be properly made out.

[27] The applicant's case for adjournment was based entirely on the grounds that the filing of statements and giving of evidence by the applicant in the present proceedings would infringe his "right to silence" and prejudice his position in the pending criminal proceedings.

[28] In McMahon v Gould, Wootten J set out principles in relation to the applications to stay civil proceedings until the completion of criminal proceedings on the ground that one party was charged with offences arising out of the same alleged events involved in the civil proceedings. Those principles are as follows:

[29] Those principles were adopted in the judgement of Wilcox J in the Federal Court in Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Aust) Pty Ltd [(1984) 4 FCR 428] and by the Chief Justice of the Supreme Court of Victoria in Philippine Airlines. These cases involved applications for stays by defendants in civil proceedings who were defendants in criminal proceedings. The principles have been applied in respect of applicants in civil proceedings, specifically applicants in relation to termination of employment applications under the 1988 Act in Cargill v Shire of Lilydale and Nguyen v Kallan Nominees and in Howarth and Mornington Peninsula Shire Council in respect of the present Act.

[30] Ryan JR in Cargill v Shire of Lilydale noted of the different circumstances:

[31] The principles are applicable to the current adjournment application. The respondent is prima facie entitled to have the matter determined as quickly as practicable. An adjournment should not be lightly entertained. The onus to make good the adjournment application lies with the applicant for the adjournment. The applicant is not entitled, of right, to an adjournment in light of the criminal proceedings. Each application for adjournment must be made on its own merits and balance the interests of the parties.

[32] Where there are pending criminal proceedings the accused's "right of silence" is a relevant consideration, however, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. In the case of Philippine Airlines v Goldair , Young CJ concluded at page 386 that:

[33] Injustice to a defendant in the criminal proceedings is a relevant consideration in considering competing interests of the parties, but it must be a real and not merely notional danger.

[34] In the present case, the adjournment was sought on the basis of protecting the applicant's "right to silence" and avoiding prejudice to his position in the criminal proceedings. The only specification of the nature of the prejudice confronting the applicant came after questioning and was as follows:

[35] I am not satisfied that a very strong case has been established for these proceedings to be adjourned or stayed until the determination of the criminal proceedings, or for revoking the directions issued on 28 May 2000. I am not satisfied that a case has been made out to prevent determination of the present matter in the normal course. On what has been put to me, I am not satisfied that there is a real danger of injustice to the applicant if the present matter proceeds to arbitration in the normal course. To paraphrase the conclusions of Young CJ in Philippine Airlines, if the allegations of conduct substantiating a valid reason for termination are groundless, no injustice would accrue to the applicant in respect of the criminal proceedings if he were to say so now. The Commission, in determining whether the termination was harsh, unjust or unreasonable, will be required to make findings, on the balance of probabilities, as to whether or not conduct occurred which constituted a valid reason for termination. I have not been satisfied as to how such a finding, or the giving of evidence in relation to it, would create an injustice for the applicant in defending criminal charges to be determined beyond reasonable doubt.

[36] I am therefore not prepared to grant the application for adjournment.

[37] I direct the applicant to comply with the directions of the Commission of 28 May 2000, subject to a variation of the date in the first direction from 19 June 2000 to 4 August 2000. Attention is drawn to the note at the foot of the 28 May 2000 directions.

[38] The matter will be listed for arbitration in due course, during the week commencing 2 October 2000.




M Bromley, solicitor, for the applicant.

P Harris, of counsel, for the respondent.

Hearing details:



July 11.

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