Mr Alistair Nicholls v Van Dairy Group Pty Ltd

[2020] FWC 5335

[2020] FWC 5335

FAIR WORK COMMISSION

DECISION

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

Mr Alistair Nicholls
v
Van Dairy Group Pty Ltd
(U2019/12746)

COMMISSIONER LEE MELBOURNE, 7 OCTOBER 2020

Application for an unfair dismissal remedy – stay of proceedings – related criminal proceedings – stay not granted

Introduction

[1] On 9 September 2020 the representatives for Mr Nicholls (the Applicant) wrote to the Fair Work Commission (the Commission) seeking the following orders pursuant to s.589 of the Fair Work Act 2009 (FW Act):

1. That the Application be stayed until the final determination, withdrawal, or other disposal of the criminal proceedings; and

2. The parties have liberty to apply remove or vary the stay order detailed at 1.

[2] At the Mention Hearing convened before me on 14 September 2020, the representatives for Van Dairy Group Pty Ltd (the Respondent) opposed the Applicant’s request to stay proceedings.

[3] Directions were set on 14 September 2020 for the parties to file written submissions. The Directions indicated that it is intended that the application made pursuant to s.589 of the FW Act be determined on the papers. Parties were asked to provide a written response by close of business Friday, 2 October 2020 should they object to this course of action and wish to be heard. Neither party raised an objection nor a desire to be heard.

[4] Permission has been granted to both parties under s. 596 of the FW Act for legal representation.

Background

[5] The Applicant was dismissed by the Respondent on 24 October 2019. Reasons for dismissal were in summary:

•  On 24 October 2019, the Applicant was caught driving a vehicle with 700 litres of milk belonging to the Respondent, and no permission had been given for the milk to be removed.

•  That 49 calves belonging to the Respondent had been tagged with the Applicant’s tags.

•  Other items missing from the Respondent were found on the Applicant’s property, including trailers and a tractor.

•  That the Applicant charged for various items for his personal use against the Respondent’s account.

•  In respect of the cattle theft allegation, the Applicant has been charged with one count of stealing by Tasmanian Police.

[6] The Applicant asserted in his Form F2 that the reason for his dismissal was the alleged theft of cattle but does not refer to the other allegations.

[7] The Applicant was bailed to appear in Burnie Magistrate Court on 28 January 2020 where he entered a plea of not guilty to the charge relating to the alleged theft of cattle.

[8] The Applicant’s submissions made on 21 September 2020 state as follows:

•  Due to Covid 19, on 24 March 2020 the Supreme Court issued Practice Direction No 3 of 2020, which outlines the following:

“Jury trials will not resume in Tasmania until at least 21 July 2020. Cases that are expected to go to trial will be adjourned to various dates between that day and the end of the year.”

•  On 10 June 2020, the Supreme Court issued Practice Direction No 4 of 2020 which eased some of the restrictions but details that criminal trials will not proceed in Burnie until further notice.

•  No further Practice Directions have been issued.

•  Since his committal to the Supreme Court, the Applicant’s criminal proceedings have been adjourned on a number of occasions pending a date for trial.

•  The Applicant’s criminal proceedings is next before the Supreme Court for directions on 10 October 2020.

[9] The Application for unfair dismissal remedy was lodged on 12 November 2019. The Applicant has sought a series of short adjournments on the proceedings since that time which have not been opposed by the Respondent and have been granted. However, as set out above, the Respondent opposes the orders now sought by the Applicant.

Submissions

The Applicant’s Submissions

[10] The Applicant makes the following submissions:

•  It is under the broad discretion of s.589 of the FW Act that the Commission may stay an application.

•  In determining whether an application may be stayed, the Commission is primarily bound by the considerations detailed under s. 577 of the FW Act, which dictates:

“The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations”

[11] While acknowledging that a stay of application is prima facie inconsistent with the requirement that Commission deal with an application in a manner that is quick, the Commission must consider what is “fair and just”.

[12] In Orce Poposki v Warrigal Care T/A Coniston Nursing Home (Poposki), 1 Bull DP determined that a stay of proceedings be granted in the circumstances of that case where an applicant’s criminal proceedings directly relate to the subject of their unfair dismissal application. The asserted valid reason for dismissal in the proceedings currently before the Commission, being the alleged theft of cattle, is the basis of the criminal proceedings.

•  As outlined in Poposki, 2 the Commission should take into account the prejudice to the Applicant’s right to silence in the criminal proceedings if he were subject to cross examination in an unfair dismissal hearing.

•  Further, it is submitted that if a stay is not granted, that this may disclose the Applicant’s defence to the criminal charges which would prejudice the criminal proceedings.

•  For the reasons detailed by Bull DP in Poposki, it is submitted that the prejudice facing the Applicant if a stay order is not granted outweighs any potential prejudice to the Respondent.

The Respondent’s Submissions

[13] The Respondent makes the following submissions:

•  It is not in dispute that Commission has the power to grant a stay of proceedings. However, that power must only be exercised in appropriate circumstances.

•  The decision of Wootten J in McMahon v Gould (McMahon) 3is frequently referred to by the Commission when it has been asked to stay its own matters pending an outcome in criminal or civil trials.

[14] The Respondent also refers to and relies on Sanford v Austin Clothing Company Pty Ltd trading as GazMan (Sanford) 4 where SDP Watson considered the approach to dealing with an adjournment in circumstances where criminal proceedings were also involved.

[15] Taking into account the principles set out in those cases, the Respondent submits as follows.

[16] That there is no evidence submitted by the Applicant to support the present application and the grounds relied on go no further than asserting merely notional injustice and therefore the Applicant has not shown that it is just and convenient to stay the application, nor identified any real as opposed to notional risk of injustice.

[17] That the highest it is put by the Applicant is that the Commission should take into account the prejudice that may be suffered if the Applicant is cross examined. Despite that, the Applicant (who bears the onus) does not identify what the prejudice is or could be, and if a stay is not granted, that this may disclose the Applicant’s defence to the criminal charges which would prejudice the criminal proceedings. 5

[18] The Respondent further submits that:

•  The Applicant relies on mere fact that there exist criminal charges as the basis of the application for a stay, as it may impinge his ‘right to silence’.

•  There is no such entitlement as of right. As was set out in Sandford (adopting the approach of Young CJ in Goldair) there is no right to silence in civil cases and needs to be a “very strong case” before the stay should be granted on that basis. In this case, the Applicant has not made out that ‘very strong case’.

[19] The suggestion of the Applicant that proceeding with the Commission proceedings may disclose his defence ignores that the Applicant has already disclosed the defence in his Form F2 where he states at paragraph 3.2.1 that “the allegations are not true”, and as set in in McMahon, this is a factor that should weigh against the grant of a stay.

[20] The ‘mischief’ to which the ‘disclosure of defence’ aspect of McMahon is directed is the possibility of it leading to a miscarriage of justice due to that defence being referred back to prosecution witnesses who would tailor evidence. There is simply no evidence that this is a possibility.

[21] The Respondent also submits that the facts in Poposki are distinguishable from the present matter.

[22] In relation to other McMahon factors the Respondent submits:

•  The Applicant has not supplied evidence that the media may be interested in this application such that it may influence potential jurors on the criminal trial.

•  The criminal trial is not set down. There is no evidence supplied by the Applicant as to when that may be. This weighs against granting a stay.

•  There is no evidence that there would be an additional burden on having to prepare the two matters sufficient to grant a stay. Indeed, the Applicant states that the issues are the same. This weighs against granting the stay.

Consideration

[23] The relevant principles to apply in determining an application for adjournment are set out in McMahon and were summarised in Sanford as follows:

There should be no presumption that an adjournment will be granted. 6 The principles in relation to adjourning (or staying) proceedings are as follows:

•  a party to a matter before the Commission has a right to have the matter determined as quickly as possible

•  serious consideration needs to be given before any action interferes with this right

•  the party who applies for the adjournment must prove that it is necessary

•  a party is not automatically entitled to an adjournment because they are involved in a criminal hearing, and

•  an application for an adjournment must be determined on its own merits. 7

•  The Commission’s task is a ‘balancing of justice between the parties’ taking all relevant factors into account. 8

[24] In determining whether a civil matter interferes with a defendant in a criminal matter’s right to silence the following relevant factors may be considered:

•  the possibility of publicity reaching and influencing jurors in the criminal matter

•  the proximity of the criminal hearing

•  the possibility of a miscarriage of justice

•  the burden on the defendant of preparing for both the civil and the criminal matters

•  whether the defendant has already disclosed his defence to the criminal allegations. 9

[25] In this matter, the Applicant has not adduced evidence that supports the application. There is no evidence of real, as opposed to notional injustice. There is no identification as to what the prejudice might be to the Applicant if cross examined in the two proceedings.

[26] The Applicant asserts that an adjournment may disclose the Applicant’s defence to the criminal charges which would prejudice the criminal proceedings. However, three factors need to be considered on the prejudice point:

•  Firstly, at least an element of the Applicant’s defence to the theft of cattle allegations is already set out in the Form F2 where he submits that “the allegations are not true”.

•  Secondly, there is no entitlement as of right, there needs to be ‘a very strong case’ before the stay is granted. 10

•  Thirdly, there is no evidence that would satisfy me that there is a real prospect for a miscarriage of justice.

[27] Consideration of all these factors weigh against granting the adjournment sought. Other factors, consistent with the principles in McMahon, were set out in paragraph [23] – [24] of this decision. Having regard to those matters, I agree that:

•  There is no evidence that that jurors may be influenced through media coverage of this application.

•  It is not known when the trial will take place.

•  There is no evidence of an additional burden on having to appear for the two matters concurrently.

[28] Consideration of these three factors also weigh against granting the stay application.

[29] Finally, I have considered the decision in Poposki, but agree that the decision is distinguishable on the facts for the reasons set out by the Respondent. 11

Conclusion

[30] Taking into account all of the relevant factors, as set out above, I am not satisfied that it is in the interests of justice to grant the orders sought by the Applicant.

[31] Directions for the filing of submissions and the hearing of the matter will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR723340>

 1   [2018] FWC 4553.

 2   Ibid at para. 59.

 3 (1982) 7 ACLR 202 (19 February 1982).

 4   Print S8287 (AIRC, Watson SDP, 19 July 2000).

 5   Applicant’s submissions dated 21 September 2020 at para. 17.

 6   Print S8287 (AIRC, Watson SDP, 19 July 2000) at para. 26.

 7   Ibid at para. 31; summarising the relevant principles from McMahon v Gould (1982) 7 ACLR 202 (19 February 1982).

 8   Ibid a para. 28; citing McMahon v Gould (1982) 7 ACLR 202 (19 February 1982).

 9   McMahon v Gould (1982) 7 ACLR 202 (19 February 1982) at p. 206.

 10   Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287 (AIRC, Watson SDP, 19 July 2000) at para. 32.

 11   Respondent’s submissions filed 29 September at para. 4.2(k)