Mrs Kylie Green v Northern Territory Commissioner for Public Employment
[2022] FWC 1302
•26 MAY 2022
| [2022] FWC 1302 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Kylie Green
v
Northern Territory Commissioner for Public Employment
(U2022/1532)
| COMMISSIONER RIORDAN | SYDNEY, 26 MAY 2022 |
Application for an unfair dismissal remedy
On 4 February 2022, Mrs Kylie Green (the Applicant) lodged a Form F2 Application for unfair dismissal remedy (the Application) pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The Applicant asserted that she had been unfairly dismissed by the Department of Health, Northern Territory Public Service when she was summarily dismissed pursuant to s.50 of the Public Sector Employment and Management Act 1993 (the PSEM Act) on 14 January 2022. The Northern Territory Commissioner for Public Employment is the named Respondent in this matter. The Applicant seeks reinstatement.
In its Form F3 Employer Response, the Respondent provided that the Applicant was dismissed due to a breach of discipline that amounted to misconduct of a serious nature warranting summary dismissal.
The Respondent declined to participate in a conciliation of the matter before a Staff Conciliator. Accordingly, the file was allocated to my Chambers on 10 March 2022 for further dealing.
I set the matter down for a Conference/Directions by telephone on 16 March 2022. A further Conference/Directions was conducted on 18 March 2022, further to which written directions were issued for arbitration of the matter (the Arbitration Directions).
The Applicant has complied with Direction 1 of the Arbitration Directions, filing her materials on 8 April 2022. The Respondent has complied with Direction 2 of the Arbitration Directions, filing its materials on 4 May 2022. However, prior to filing the Applicant’s reply submissions in accordance with Direction 3 of the Arbitration Direction, the Community and Public Sector Union (CPSU) wrote to the Commission on 10 May 2022 requesting the hearing listed for 7 June 2022 be adjourned and Arbitration Directions be vacated (the Stay Application). The Respondent objected to the Stay Application and indicated its preference for the matter to proceed as originally listed.
Directions were issued on 10 May 2022 for filing of materials in relation to the Stay Application (the Stay Directions). In the same correspondence, the Applicant was granted an extension until 31 May 2022 for filing her reply submissions in accordance with the Arbitration Directions.
Both parties filed materials in compliance with the Stay Directions.
This Decision concerns the Stay Application made by the CPSU on behalf of the Applicant. By consent of the parties, the Stay Application is being dealt with on the papers.
Relevant Provision of the Act
The Commission’s power to stay an application is provided under s.589 of the Act:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.”
Applicant’s Submissions
The Applicant submitted that in late April 2022, she became aware of an ongoing police investigation in relation to allegations of fraud by the Applicant that is related to the current matter before the Commission. The Applicant submitted that to date, she has not been contacted by the police in relation to that investigation. The Applicant submitted that the Respondent’s materials filed on 4 May 2022 disclosed information regarding the police investigation.
The Applicant seeks a stay of the substantive matter, pending an interim or final outcome of the police investigation.
The Applicant submitted that pursuant to s.577 of the FW Act, the Commission must perform its functions and exercise its powers in a manner that is ‘fair and just’. Section 578 provides that ‘in performing its functions or exercising powers in relation to a matter’ under the Act, the Commission ‘must take into account’ … ‘the objects of the Act’ and ‘equity, good conscience and merits of the matter’.
The Applicant submitted that s.589(1) provides that the Commission may make procedural decisions as to how, when and where a matter is to be dealt with, and that section 589(4) confirms the Commission’s powers are not limited in determining procedural decisions to be followed by the parties.
The Applicant submitted the Commission must affirm the Stay Application pending an interim or final outcome of the police investigation of allegations of fraud against the Applicant consistent with the Commission’s obligations to exercise its powers in a manner that is ‘fair and just’.
The Applicant submitted that a decision to affirm the Stay Application does not result in an injustice to either party. The Applicant submitted, however, that if the Stay Application is refused it would be contrary to the public interest in achieving the most efficient use of resources for both the Commission and the parties.
The Applicant noted that she was dismissed pursuant to s.50 of the PSEM Act for breaches of discipline pursuant to s.49(m). The Respondent’s materials disclose that the Applicant’s alleged fraudulent conduct was reported by the Respondent to the police as potential criminal conduct prior to the commencement of any internal disciplinary process in August 2021. The Applicant submitted, therefore, any outcome arising from a police investigation may be relevant to the Commission’s considerations in the current unfair dismissal matter.
Further, the Applicant submitted that there are potential matters of prejudice to the Applicant that should be considered given the knowledge of an open police investigation and disclosure of this fact in the Respondent’s materials which in the context of a hearing would become a matter of public record.
Respondent’s Submissions
The Respondent submitted that the Commission should decline the Stay Application for the following reasons.
The Respondent agreed that s.589(1) of the FW Act empowers the Commission to ‘make decisions as to how, when and where a matter is to be dealt with’. However, the Respondent relied here on the decision of Deputy President Bull in Peter French v The Good Guys Discount Warehouse (Australia) Pty Ltd T/A Good Guys O’Connor [2017] FWC 3545. While the Deputy President was considering an unfair dismissal application and a corresponding general protections application that covered much of the same material, the Respondent noted that the Deputy President set out relevant principles to be applied in stay applications as follows:
a.prima facie plaintiffs are entitled to have their actions tried in the ordinary course of the procedure and business of the court;
b.it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
c.the burden is on the [person seeking the stay] to show that it is just and convenient that the [other party’s] ordinary rights should be interfered with;
d.neither an accused or the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
e.the court’s task is one of ‘balancing of justice between the parties’ taking account of all relevant factors;
f.each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
g.one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s ‘right of silence’, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding;
h.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. [One party] in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the [other party] if they wished to defend the action, having to disclose in resisting an application for summary judgment, in the pleading of [their case] by way of discovery or otherwise, what [their] defence is likely to be in the criminal proceeding;
the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;
j.in this regard factors which may be relevant include:
i. the possibility of publicity that might reach and influence jurors in the civil proceedings;
ii. the proximity of the criminal hearing;
iii. the possibility of miscarriage of justice e.g., by disclosure of a defence enabling the fabrication of evidence by … witnesses
iv. the burden on [a party] of preparing for both sets of proceedings concurrently;
v. whether the defendants have already disclosed their defence to the allegations;
k.the effect on [both parties] must also be considered and weighed; and
l.in an appropriate case the proceedings may be allowed to proceed to a certain stage, e.g., setting down for trial and then stayed.
The Respondent submitted that when the Applicant became aware of the police investigation is irrelevant in a consideration of whether to grant a stay of the proceedings. The Respondent submitted similarly, the fact that the police are yet to contact the Applicant is irrelevant. The Respondent submitted that a police investigation will run its own course, and the timing of any police contact with the Applicant is an operational matter for the Northern Territory Police.
The Respondent further submitted that there is an “indefinite amount of time for the investigation”, subject to the resources of the police service, and the parties therefore do not know how long the investigation will take. The Respondent submitted that the risk of significant delays challenges the objects of Part 3-2 of the FW Act, including s.381 which the Respondent highlighted as providing that unfair dismissal proceedings are to be “quick, flexible and informal”.
Further, the Respondent submitted that there is sufficient evidence before the Commission for it to make a determination about the fairness or otherwise of the dismissal of the Applicant. The Respondent submitted that the outcome of the police investigation would result in a decision to prosecute or not to prosecute. It would be based on the prosecutor’s assessment that the evidence is sufficient to meet the criminal standard ‘of beyond reasonable doubt’. However, in the matter before the Commission, the standard is the civil standard of the balance of probabilities, and the Commission would need to have regard to the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 33.
The Respondent submitted that a decision based on the evidence that will be adduced in the current application would be consistent with the principles of fairness and justice. The Respondent submitted that a decision to stay the application would deny the Respondent a timely resolution of the matter.
The Respondent agreed with the Applicant that the outcomes of the police investigation may be relevant to the Commission’s consideration of the current matter. However, the Respondent submitted that it would not be critical.
Further, the Respondent submitted that if the current proceedings are stayed until the police investigation is concluded, it would then be open to the Applicant to apply for a further stay until any criminal proceedings are concluded. The Respondent submitted that in theory, it would be possible for the Applicant to continue delaying the current proceedings until all possible other actions are finalised.
The Respondent accepted that knowledge of the police investigation could become a matter of public record once the Commission publishes its reason for its decision; however, it submitted that there is nothing unusual about this. Both the Applicant and the Respondent are potentially exposed to reputational damage once the Commission issues its decision.
Further, the Respondent submitted that the Northern Territory Police already have the evidence that will be led in the current unfair dismissal proceedings.
Consideration
I have taken into account all of the submissions that have been provided by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
It was uncontroversial between the parties that the power to ‘stay’, or adjourn, the proceedings as sought by the Applicant was conferred by s.589(1) of the Act which states that the Commission “may make decisions as to how, when and where a matter is to be dealt with.” I accept that s.589 provides the Commission with discretion to consider whether a stay of the proceedings is appropriate, having regard to the particular facts and circumstances.
While there is an ongoing police investigation being undertaken by the Northern Territory Police, the Applicant has not been charged with any offence at this time. Therefore, there is no matter before a Northern Territory, or any other, Court and therefore there are no ‘concurrent proceedings’.
I agree with the Respondent’s position that the police investigation is subject to resources and timeframes outside the control of either the parties or the Commission, and therefore the timeframe for the conclusion of this investigation or any subsequent criminal proceedings is unknown. The Commission has a duty to maintain the objects of the FW Act, including pursuant to s.381 that unfair dismissal matters be dealt with in a “quick, flexible and informal” manner. In light of the unknown timeframe of the police investigation and any subsequent criminal proceedings, a stay of the application in these circumstances would be contrary to the objects of the FW Act.
As to any potential prejudice claimed by the Applicant in the event the stay is not granted, I note that privacy can be maintained in the proceedings. An application for an Order to protect the identity of both the Applicant and the Respondent can be made at the appropriate time.
Conclusion
In the circumstances and after having weighed the various relevant considerations, I find that the interests of justice and the objects of the FW Act would not be served by my staying the unfair dismissal proceedings.
The application for a stay of the proceedings is denied.
The Applicant is required to comply with the extended Arbitration Directions to file any reply materials by 31 May 2022. The matter will proceed to Arbitration Hearing as scheduled on 7 June 2022.
COMMISSIONER
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