Diane Morton v Lardner Mechanical Repairs Pty Ltd

[2016] FWC 3982

[2016] FWC 3982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diane Morton
v
Lardner Mechanical Repairs Pty Ltd
(U2014/10729)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] Ms Diane Morton filed an unfair dismissal application on 9 July 2014. A conciliation occurred on 8 August 2014 but the matter was not resolved.

[2] Directions were issued and on 12 August 2014 Lardner Mechanical Repairs Pty Ltd sought an adjournment of the hearing due to unavailability of its key witness. On 22 August 2014, Ms Morton’s representative advised that there was a police investigation and sought an indefinite adjournment of the matter. A mention was held on 4 September 2014 to consider that application. At the mention the indefinite adjournment was pressed. Lardner did not oppose the adjournment, however I advised that I was not prepared to grant an indefinite adjournment but adjourned the matter for two months to enable the investigation to take place.

[3] On 31 October 2014, Ms Morton sought a further two month adjournment. She had been interviewed by the police and the adjournment was sought to await the decision of the police in this matter. Lardner consented to the adjournment.

[4] On 1 January 2015, a further mention was held and Ms Morton’s representative advised that no charges had been laid and civil proceedings had been commenced against Ms Morton in the County Court. Ms Morton sought an adjournment of the matter pending the outcome of the County Court matter. Ms Morton submitted that it was not appropriate for there to be two trials dealing with the same issues. Ms Morton submitted that this could lead to inconsistent fact findings and the County Court matter should proceed first. Lardner said the matter had been referred to the DPP and it consented to an adjournment.

[5] On 12 March 2015, Ms Morton’s representative advised that no charges had been laid but he was seeking an update on the matter. On 14 May 2015, Ms Morton’s representative confirmed that no charges had been laid.

[6] On 30 October 2015, a further mention was held. On that occasion the civil matter had been set down for a hearing in November 2015 but I was advised that the matter would not proceed until 3 May 2016. It was said that the criminal investigation was still on foot. Lardner advised that it no longer consented to an adjournment. Despite this I determined to adjourn the matter until February 2016.

[7] On 28 January 2016, the Commission was advised that there was no change in the status of the matter and on 29 January 2016 the Commission was advised that the no charges had been laid, but the County Court matter had been adjourned to preserve Ms Morton’s privilege against self-incrimination. There was no information about the status of the police investigation.

[8] On 29 April 2016, the Commission was advised that the County Court matter had been stayed until further order of the Court.

[9] On the same date, I advised the parties the matter would be listed a mention for the purpose of issuing directions.

[10] On 15 June 2016, a telephone mention was held. Ms Morton’s representative advised that there was no change in the status of the matter and that they sought an adjournment. Lardner’s representative advised that the police had finished its forensic examination of the records. It consented to an adjournment.

[11] At the conclusion of the mention I advised the parties that I proposed to issue directions for the further conduct of this matter and that I would publish my reasons.

[12] In this matter no criminal charges have been laid against the Ms Morton and the County Court proceeding has been stayed pending further order of the Court.

[13] Ms Morton submitted at earlier mentions that this matter should be adjourned to enable the County Court matter to determine the issues in dispute. I was subsequently advised that it has been stayed to protect Ms Morton privilege against self-incrimination.

[14] In McMahon v Gould 1 Justice Wooton of the New South Wales Supreme Court considered the approach to be taken if there is an application for an adjournment where a defendant in a criminal proceedings was a defendant in civil proceedings related to the same facts.

[15] In this matter Ms Morton is the applicant. Ms Morton has been on notice since the Form F3 – Employer Response was filed that Lardner alleged she was guilty of misconduct. Ms Morton was always at risk in commencing these proceedings that, should she chose to give evidence in relation to the allegations relied upon by Lardner, her evidence could be used against her in other proceedings including criminal proceedings.

[16] Ms Morton will, if this matter proceeds, have the right to exercise her right not to answer questions that may incriminate her. The Commission is not able to draw any adverse inferences from any decision she makes to exercise that right.

[17] In this matter Lardner alleges misconduct. Lardner will need to put sufficient evidence before the Commission to support a finding, on the balance of probabilities, that the alleged conduct occurred and that the conduct was a valid reason for the termination of Ms Morton’s employment.

[18] The matter had been adjourned earlier because the County Court was dealing with the same matter and it was anticipated that the trial would have occurred. However after this matter was adjourned, to allow that to occur, the parties agreed to stay the County Court matter.

[19] In those circumstances, I have decided that the matter should not be further adjourned. I note the position of Lardner in relation the adjournment applications has varied but it currently consents to the adjournment.

[20] I have determined that this matter should be heard and determined. I do so because it is unlikely that the County Court will hear and determine the matter in the near future. I also do so because the Commission and the Court will be asked to determine different issues. The Court will need to determine if Ms Morton has misappropriated funds. The Commission will need to determine if the dismissal was harsh unjust or unreasonable. That the Court may find Ms Morton did not misappropriate funds does not mean that the dismissal was harsh, unjust or unreasonable.

[21] Further Ms Morton’s position in relation to her privilege against self-incrimination remains unaffected.

[22] Directions for the filing of material will be issued with this decision.

DEPUTY PRESIDENT

 1 (1982) 7 ACLR 202

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