DECISION

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

Ms Jean Madden
v
Street Swags Ltd
(U2016/1866)

COMMISSIONER HUNT

BRISBANE, 5 JULY 2018

Application for relief from unfair dismissal – stay of proceedings – related criminal proceedings – application stayed.

[1] This decision relates to an application for unfair dismissal remedy made by Ms Jean Madden pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] The application was first listed before the Fair Work Commission (the Commission) for hearing on 23-25 January 2017. That hearing was subsequently adjourned and the matter was re-listed for hearing on 7-10 March 2017.

[3] On 23 February 2017 Ms Madden made application to stay the unfair dismissal proceedings pending the finalisation, or withdrawal, or other appropriate disposal, of criminal proceedings against Ms Madden relevant to her former employment with Street Swags.

[4] An indefinite stay of the application was opposed by Street Swags, however it requested that the matter be adjourned for a period of four months, with the parties to report back on the status of the criminal proceedings.

[5] The application has not progressed any further since that time and I understand the criminal proceedings are still underway. The criminal proceedings include allegations involving Ms Madden’s conduct as a director and employee of Street Swags.

[6] On 28 June 2018 I instructed my associate to issue correspondence to the parties to indicate that I intended to stay the proceedings, subject to their views. Neither party provided a view about whether the matter should now be stayed.

[7] I have therefore decided that proceedings in this matter should be stayed pending the finalisation, or withdrawal, or other appropriate disposal, of the related criminal proceedings. However, the stay shall contemplate revocation or alteration if the applicant seeks to more comprehensively argue for re-commencement of proceedings at a time earlier than that provided for in the Stay Order.

[8] Although it is regrettable that this matter has been subject to extensive delay, those circumstances are not caused by any practice or procedure of the Commission but are dictated by a requirement to ensure that both the related criminal proceedings and the hearing of the unfair dismissal claim is conducted in a manner which is fair and just to all involved.

[9] A stay Order [PR608542] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Jean Madden has applied for relief from an unfair dismissal against Street Swags Ltd in the Fair Work Commission. The application was for a stay of the proceedings due to related criminal proceedings. The Fair Work Commission considered the application and found that the stay was appropriate in the circumstances.

The legal issues before the Commission were whether the stay of proceedings was necessary to avoid a conflict of interest or to ensure a fair trial in the criminal proceedings, and whether the stay would cause substantial injustice to the applicant. The Commission found that the stay was necessary to avoid a conflict of interest and to ensure a fair trial in the criminal proceedings, and that there would be no substantial injustice to the applicant if the proceedings were stayed.

The Commission noted that the applicant had been charged with criminal offences related to the circumstances of her dismissal, and that the criminal proceedings were ongoing. The Commission also noted that the applicant had not raised any concerns about the fairness of the criminal proceedings, and that the stay would not cause any substantial injustice to the applicant. The Commission therefore granted the application for a stay of the proceedings.

No final orders were made as the matter is stayed pending the outcome of the criminal proceedings.

Ms Jean Madden v Street Swags Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established