Orce Poposki v Warrigal Care T/A Coniston Nursing Home

[2018] FWC 4553

[2018] FWC 4553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Orce Poposki
v
Warrigal Care T/A Coniston Nursing Home
(U2018/5434)

DEPUTY PRESIDENT BULL SYDNEY, 9 OCTOBER 2018

Application pursuant to s.589 for an order to stay unfair dismissal hearing pending related criminal proceedings.

[1] On 25 May 2018 Mr Orce Poposki made an application for remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to his dismissal from Warrigal Care T/A Coniston Nursing Home (Warrigal). Prior to his dismissal Mr Poposki was employed as a Care Service employee with Warrigal on a casual basis and worked approximately 60 hours a fortnight. 1

[2] Warrigal opposes the application on the grounds that the dismissal was not unfair; but raises no jurisdictional objections to the hearing of the application by the Fair Work Commission (the Commission).

[3] Following an investigation, Mr Poposki was dismissed on the ground that he struck a resident on the back of the head. I note that the resident concerned was unable to participate in the investigation undertaken by Warrigal as he has no speech capacity, is unable to read or write, has difficulty understanding words spoken at normal pace and has poor vision.

[4] By way of remedy Mr Poposki seeks reinstatement or in the alternative, compensation.

[5] Mr Poposki is represented by the New South Wales Branch of the Health Services Union (HSU).

[6] The matter was listed for mention by telephone before me on 3 July 2018. Mr Maroney, industrial officer for the HSU, made an application for the matter to be stayed on the basis that Mr Poposki was facing criminal charges in relation to the same conduct which formed the basis for his dismissal.

[7] The Commission was also advised that Mr Poposki would be on an overseas holiday that was planned prior to his dismissal, departing Australia on 14 July and returning on 31 October 2018.

[8] Ms Healey, employee relations advisor, appeared on behalf of Warrigal at the mention. She indicated that Warrigal opposed the stay application. She did however concede that it would be ‘impossible’ for the matter to proceed while Mr Poposki was overseas.

[9] In light of the dispute between the parties in relation to the application for a stay of the matter, I issued Directions for the parties to file any written material in respect of the stay application.

[10] In addition to submissions filed by both parties, the parties also filed an agreed statement of facts. Having reviewed the material filed by the parties in relation to the stay application and being satisfied the matter did not involve contested facts, I instructed my chambers to request the parties confirm whether they consented to the matter being determined on the papers. Both parties confirmed their consent to that course of action.

Circumstances surrounding Mr Poposki’s dismissal

[11] The circumstances surrounding Mr Poposki’s dismissal as are relevant to his stay application are helpfully set out in an agreed statement of facts.

● Mr Poposki was employed with Warrigal from June 2015. Warrigal operates residential care facilities in the Illawarra region of New South Wales.

● On 16 February 2018 another employee of Warrigal made an allegation that Mr Poposki had that day assaulted a resident at Warrigal’s Coniston Nursing Home. Warrigal reported the allegation to the NSW Police on the same day.

● After Mr Poposki had left work that day, he received a telephone call from Ms Yvonne Frankham, Warrigal’s Residential Care Manager. Ms Frankham advised Mr Poposki that he was suspended from his duties while Warrigal investigated the allegation. This was confirmed in a letter to Mr Poposki on 23 February 2018.

● On 27 April 2018 Mr Poposki was advised that Warrigal considered the allegation had been substantiated and required him to show cause as to why he should not be dismissed.

● Mr Poposki subsequently attended a show cause meeting on 30 April 2018.

● On 5 May 2018 Mr Poposki was charged by NSW Police with one count of common assault pursuant to s.61 of the Crimes Act 1900 (NSW) in respect of the alleged assault of the resident on 16 February 2018.

● Warrigal dismissed Mr Poposki on 7 May 2018.

● On 25 May Mr Poposki filed his unfair dismissal application.

● On 19 June 2018 Mr Poposki’s criminal charge came before the NSW Local Court at Wollongong. He entered a plea of not guilty to the charge of common assault.

● The matter was listed for mention at the NSW Local Court on 31 July 2018.

[12] On 8 August 2018 my chambers requested an update from the HSU as to what had occurred at the mention of the criminal matter. The HSU advised that the criminal charges against Mr Poposki have been listed for hearing on 29 January 2019.

Power of the Commission to stay an unfair dismissal application

[13] I am satisfied that s.589 of the Act which provides for the Commission to ‘make decisions as to how, when and where a matter is to be dealt with’ provides the relevant power for the Commission to grant a stay application. There is an abundance of authority where the Commission has accepted it has the discretionary power pursuant to s.589 to stay an application before it. 2

[14] This power is to be exercised in the context of the Act as a whole. The Full Bench in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar 3 (Rustemovski) recently observed that the discretion exercised in a matter such as the present one is confined only by the subject matter and objects of the Act and as such the Commission has considerable latitude as to the decision to be made.

[15] The objects of the Act in relation to applications for relief from unfair dismissal are found in Part 3-2 of the Act set out in s.381 as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Relevant authorities

[16] The decision of Wootten J in McMahon v Gould 4(McMahon) has frequently been referred by the Commission when it has been asked to stay its own matters pending the outcome of criminal or civil proceedings in other jurisdictions.

[17] McMahon involved a stay of civil proceedings in circumstances where the defendant in the criminal matter was also the respondent in civil proceedings. It was the respondent in the civil proceedings that sought the stay of those proceedings. In this matter, the unfair dismissal applicant Mr Poposki is the defendant in criminal proceedings.

[18] Wootten J after reviewing a number of relevant authoritiesapproached the matterapplying the following guidelines:

(a) prima facie a plaintiff is entitled to have his action 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 defendant in a civil action to show that it is just and convenient that the plaintiff'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 the `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. The plaintiff 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 defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;

(i) 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 prosecution witnesses, or interference with defence witnesses;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations.

(k) the effect on the plaintiff must also be considered and weighed against the effect on the defendant; 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.”

[19] The guidelines outlined in McMahon above, despite not all having application in this matter are of assistance in the Commission’s deliberations. However the discretion to be exercised by the Commission for a stay primarily revolves around the circumstances of the application and the objects of the Act in respect to the unfair dismissal provisions. 5

[20] In their submissions in this matter, both parties have addressed the decision of Young CJ in Philippine Airlines v Goldair (Aust) Pty Ltd and Others 6(Goldair). Similarly to McMahon, that matter also involved circumstances where the party seeking the stay was the defendant in both the criminal and civil proceedings.

[21] In Goldair, Young CJ applied the reasoning of Megaw LJ in Jefferson Ltd v Bhetcha 7which stated, in part:

“There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under O.14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge - the so-called `right of silence' - does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings.”

[22] Young CJ then went on to state that:

“It is sufficient to say that the "right of silence" is a right which relates to criminal proceedings and it would need a very strong case indeed before the court should intervene solely on that ground to stay civil proceedings pending the determination of criminal proceedings.

….

The result is that the applicant has not shown that the civil proceedings should be stated (sic). I am not persuaded that there is a real and not merely a notional danger of injustice if the civil proceedings go ahead. If the allegations of fraud in the civil proceedings are as groundless as they are said to be, no injustice would accrue to the defendant, Papazoglou, if he were to say so now. No other ground was relied upon and the application must therefore be dismissed.”   

[23] In Howarth v Mornington Peninsular Shire Council 8an application was made by an applicant for a stay of an unfair dismissal proceeding in the Australian Industrial Relations Commission (AIRC) after the applicant was charged with a criminal offence. Commissioner Whelan applied the ratio in McMahon and Goldair and concluded that she was:

“[28] …not satisfied that a very strong case has been established for these proceedings to be stayed, either indefinitely, until the determination of the criminal proceedings, until the mention, or until the applicant can further deal with the material that has been submitted by the respondent.

[24] Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man 9 also involved an application for a stay by an applicant in unfair dismissal proceedings until after the conclusion of criminal proceedings brought against the applicant. SDP Watson stated:

“[31] ... 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:

“The right of silence is a right which relates to criminal proceedings and it would need a very strong case before the Court should intervene solely on that ground to stay civil proceedings pending the determination of criminal proceedings.”

[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.”

[25] The application for a stay or adjournment was rejected for the following reasons:

“[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 ... 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.”

[26] Justice Wilcox in Cameron’s Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd 10made the following observationin refusing an application for a stay of a civil proceeding.

“It is said on behalf of the respondents that, confronted with a choice between defending this application on the merits or maintaining his right of silence, Mr Whelpton is likely to choose the latter course. The result, it is said, is that justice will not be done in the civil action. This may be so, but the failure of the respondents to advance the case necessary for the Court to determine the matter on its merits will be the result of a conscious choice by them to prefer a higher interest. It is not unusual for people to choose not to bring, not to maintain, or not to defend, civil proceedings or not to adduce particular evidence because to do so may conflict with some higher interest. And, in this case, any notion of postponing the civil trial so as to increase the possibility of achieving perfect justice in the evidentiary sense runs into the difficulty that to do so necessarily involves the visitation upon the applicants of the very considerable prejudice of delay.”

[27] In Commissioner of the Australian Federal Police v Zhao and Another 11(Zhao)the High Court considered the principles regarding the granting of a stay of civil proceedings where related criminal proceedings were on foot. In that matter, the respondents in civil proceedings sought a stay of those proceedings until the completion of the criminal proceedings against the second respondent.

[28] The High Court noted that:

“Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.” 12

[29] The High Court found that it will be appropriate for a court to order a stay “where the interests of justice require such an order.” 13

[30] In dismissing the appeal from the decision of the Court of Appeal of the Supreme Court of Victoria, the High Court found that:

“The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical.

The Commissioner contends, as the primary judge had held, that it was necessary that the second respondent state the specific matters of prejudice before a stay could be contemplated. However, to require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid.” 14

[31] The High Court considered the prospect that a civil proceeding may prejudice a criminal trial and that such prejudice may require a stay of the civil proceedings to be hardly novel. The High Court found that the second respondent could point to a risk of prejudice, while the Commissioner of the Australian Federal Police could not.

[32] In Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission 15(CFMEU v ACCC) the Full Court of the Federal Court considered circumstances where the parties seeking a stay of civil proceedings (stay applicants) were potential witnesses for the respondent in those civil proceedings, and were also subject to related blackmail charges.

[33] The Full Court noted that the presiding judge had not been persuaded that he should assume the stay applicants were likely to give evidence at all in the civil proceedings. That was not a finding challenged on appeal. The Full Court found that in the absence of a basis for thinking the stay applicants would be likely to give evidence in the civil proceedings (if they could do so free of the risk of prejudice to the blackmail proceedings) their position was different to that of the second respondent in Zhao, and thus the matter was distinguishable from Zhao.

[34] The Full Court went on to say [36]-[38]:

“In the absence of that evidence there was no basis for concluding that an invidious choice was actually faced by Setka and Reardon. We would accept that the wish or need to defend or protect a financial interest (as in Zhao) is not essential, and that an invidious choice may be founded upon a person’s desire to clear his or her name and assist the organisation in which he or she is a senior official (as was here contended). However, the mere possibility that Setka and Reardon might desire to clear their names or assist the CFMEU does not establish that they are confronted by an invidious choice. Setka and Reardon may have no wish or desire to give evidence in the s.45D proceeding. For instance, they may have no basis for thinking that their evidence could be of assistance either to themselves or to the CFMEU.

The issue may be expressed thus: does it suffice to establish an “invidious choice” that Setka and Reardon might give evidence in the civil proceeding? Or, is it necessary that there be an evidential basis for thinking that it is likely that they would give evidence in that proceeding were it not for the potential of prejudicing the criminal proceeding? Inherent in the applicants’ position is that the former question should be answered “yes”. It is evident from what is said above that we disagree.

The High Court in Zhao evidently considered that the evidentiary burden upon an applicant to establish the existence of an invidious choice was not onerous. But that burden was not discharged in this case. Instead, the applicants’ submission impermissibly assumed the existence of the invidious choice for which they contended. They have not established that doubt attends the primary judge’s approach sufficient to warrant reconsideration by a Full Court.”

[35] Recently, in Visy Board Pty Ltd v Rustemovski 16the Full Bench of the Commission considered the question of a stay in the context of unfair dismissal proceedings. In that matter, at first instance, Commissioner Bissett had vacated directions to file evidence on the application of applicants in two related unfair dismissal proceedings. The respondent in the matter had commenced civil penalty proceedings in the Federal Court which related to the applicants, although they were not named respondents. The respondent appealed the Commissioner’s decision.

[36] The Full Bench noted that the appeal seemed to proceed on the basis that the Commissioner was bound to apply McMahon. The Full Bench determined this was not the case, and in doing so said:

“[43] In McMahon v Gould Wootten J had to decide whether a civil proceeding brought by a liquidator against the defendant in respect of acts done by him as a director should be stayed until the determination of criminal proceedings involving the same subject matter pending against the director. Wootten J identified as ‘guidelines’ a series of matters to consider in determining the exercise of the discretion to stay the civil proceeding. The circumstances in the present matter are quite different – it is the applicants who are seeking the ‘stay’ and the discretion being exercised is a statutory, not an inherent power. In any event it appears to be common ground that the McMahon v Gould ‘guidelines’ do not purport to establish a rigid code and that the consideration that bear upon a decision to stay a proceeding will vary according to the individual case (see Websyte at [115]).

[44] It may be noted that in De Simone the Victorian Court of Appeal observed (at [7]):

‘The McMahon v Gould guidelines have been applied in Australian courts many times… Often the case will be determined without express reference to the guidelines but by reference to the justice of the situation, and in that sense such cases follow the McMahon v Gould line of authority.’

[45] It is important to bear in mind that the Commissioner at first instance was exercising a general discretion. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission the High Court made the following observations about the nature of ‘discretion’:

‘”Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.’ [Emphasis added]

[46] The discretion exercised in the present case was only confined by the subject matter and objects of the FW Act and, as such, the decision maker had considerable latitude as to the decision to be made.

[47] In such circumstances the McMahon v Gould principles may be of some assistance, by way of broad guidance, but each case must be determined having regard to its particular circumstances and to the statutory framework within which the discretion is to be exercised. The discretion was required to be exercised having regard to the Commission’s central obligation to provide a fair hearing to parties in proceedings before it. Such an obligation arises directly from s.577(a) of the FW Act, which directs the Commission to perform its functions and exercise its powers in a manner that ‘is fair and just’, and from the implied obligation to act judicially. One aspect of the duty to act judicially is the obligation to afford a party a reasonable opportunity to allow his or her case to be put.

[48] In our view the rigid application of the McMahon v Gould guidelines in the present context may also operate to inappropriately confine the exercise of the Commission’s discretion. As Bowan LJ observed in Gardner v Jay:

‘When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the act or the Rules do not fetter the discretion of the Judge why should the court so do.’

[49] Elevating any of the McMahon v Gould guidelines into a ‘test’ to be satisfied as a condition precedent to the exercise of the Commission’s discretion – as the Appellant appears to contend – also serves to obfuscate the Commission’s primary obligation, to ensure that the parties are afforded a fair hearing. Ultimately the relevant question is: what does justice require in the circumstances?

(Citations omitted)

[37] The parties have addressed a number of these cases in their submissions.

Applicant’s submissions

[38] Mr Poposki’s submissions in support of his stay application are contained in written submissions filed on 10 July 2018 and in reply on 25 July 2018.

[39] Mr Poposki submitted that in line with the decision of the Full Bench in Rustemovski the key consideration in a stay application is the question of what justice requires in the circumstances.

[40] Mr Poposki says that, similar to the circumstances in Rustemovski, the asserted valid reason for his dismissal is identical to the conduct alleged in the criminal proceedings against him.

[41] Reliance is also placed on the decision of the High Court in Zhao. Following Zhao, he says that for a stay to be granted specific matters of prejudice do not need to be stated, but rather the party seeking the stay needs only to identify a risk. Mr Poposki says there are ‘several’ risks here should a stay not be granted, including that in fulfilling the requirement to file and serve evidence and be subject to cross examination, Mr Poposki will abrogate his right to silence in the criminal proceedings.

[42] Mr Poposki further refers to CFMEU v ACCC 17 in which the Full Court of the Federal Court considered that evidence must exist to support a basis for concluding that an invidious choice is actually faced by the applicant for the stay. That is, it must be likely that the applicant in the stay application would give evidence in the civil proceeding were it not for the risk of prejudicing the criminal proceedings. Contrasting the situation in that case, Mr Poposki says the likelihood of him being required to give evidence is apparent. He contends that it would likely be ‘fatal’ to his unfair dismissal application if he did not give evidence in that matter, and, but for the criminal proceedings, he would do so.

[43] Mr Poposki refers to the decision of Commissioner Hunt in Madden v Street Swags Ltd. 18In that matter the applicant was the subject of ongoing criminal proceedings and the Commissioner granted a stay of proceedings on her own initiative.

[44] Mr Poposki says that the matters in common between the criminal proceedings and the unfair dismissal matter are not a discrete and narrow aspect of the application’s claim but are identical.

[45] Mr Poposki says that as per the decision in Rustemovski, it is clear the decision of McMahon (on which Warrigal rely) did not purport to establish a rigid code. He says the factual scenario in McMahon is important. Unlike the present matter where he is the applicant, in McMahon it was the defendant in the civil proceedings who sought the stay. The Court in McMahon proceeded on the basis the plaintiff in that matter had a right to access the remedy it sought.

[46] Mr Poposki says the matter should be stayed until the final determination, withdrawal or other disposal of the criminal proceedings. He says that if the Commission does not stay the matter, it should be adjourned until after he returns from overseas on 31 October 2018.

Respondent’s submissions

[47] Warrigal opposes the stay order sought by Mr Poposki.

[48] Relying on McMahon, Warrigal says that Mr Poposki has failed to establish that he would be subject to a real risk of injustice if his unfair dismissal application was to proceed. It says Mr Poposki ‘simply’ seeks the order on the basis he will abrogate his right to silence to his prejudice in the criminal proceedings. In reference to the guidelines in McMahon, it says it is relevant that there is no evidence from Mr Poposki to suggest the Commission proceedings are likely to attract media attention that might prejudice criminal jurors, that the criminal proceedings are imminent, that the disclosure of Mr Poposki’s case would result in a miscarriage of justice in the criminal proceedings and that it would be onerous for Mr Poposki to prepare for both proceedings.

[49] Warrigal says it would be prejudiced by ‘any delay’ in the proceedings on the basis that the memories of key witnesses would diminish with the passing of time, and it is therefore in its interests for the Commission proceedings to be determined as quickly as possible.

[50] Warrigal says that the decision in McMahon was applied by Young CJ in Goldair who said that the right to silence was a right that applied in criminal proceedings and that a very strong case would need to be established for a stay to be granted. Warrigal says Mr Poposki has not established a strong case. It says that if the assault allegations are as groundless as Mr Poposki says they are, he would not suffer injustice if the Commission proceedings proceed as the same time as the criminal proceeding.

[51] Warrigal relies on other cases in the AIRC which it says have applied the ‘very strong case’ test from Goldair, including G Sanforth v Austin Clothing Company Pty Ltd trading as Gaz Man 19(Sanford) and Andrew Kvackaj v Monash University20(Kvackaj).

[52] Warrigal says that ‘applying’ Sanford and Kvackaj to the present matter, there is also a statutory presumption that unfair dismissals are resolved in a prompt manner. This is said to arise from ss.366(1)(a), 381(b)(i), 577(b) and 578(a) of the Act. Warrigal says that the stay sought by Mr Poposki is of uncertain duration as there is no certainty as to when the criminal proceedings will be finalised. It says it would be contrary to the statutory presumption in the Act for unfair dismissal applications to be resolved in a prompt manner if the stay was granted.

[53] Warrigal also says that the fact Mr Poposki seeks reinstatement ‘suggests’ the matter should be heard by the Commission sooner rather than later.

[54] However Warrigal ‘acknowledges the difficulty of continuing proceedings’ while Mr Poposki is overseas, and requests the matter be set down for hearing after he returns on 31 October 2018.

Consideration

[55] Warrigal relies on the decision of McMahon and several decisions of the Commission which have closely followed it. It says the Commission ‘has frequently relied upon McMahon when determining whether Commission proceedings should be stayed pending the termination of criminal proceedings’.

[56] However, as discussed above, the circumstances in McMahon are different to the current matter. McMahon involved the determination of whether civil proceedings brought by a liquidator against the defendant in respect of acts done by him as a director should be stayed pending the determination of criminal proceedings against the director, concerning the same subject matter. It was the defendant in the civil proceedings who sought the stay. The principles set out in McMahon are therefore centred on the balancing of the entitlement of a plaintiff in civil proceedings to have their claim heard in a timely manner against the danger of injustice to the defendant in a criminal proceeding. By contrast, in this matter it is the applicant who seeks the stay.

[57] Further, the Full Bench in Rustemovski, citing the broad statutory discretion of the Commission, eschewed the rigid application of the McMahon principles on the basis that such an approach would obfuscate the Commission’s primary obligation of ensuring the parties are afforded a fair hearing.

[58] It is not in dispute that the conduct leading to the applicant’s dismissal is the same conduct associated with the criminal charge. In any criminal proceedings the onus of proof is beyond reasonable doubt and the proceedings are subject to the rules of evidence. Whereas in Commission proceedings the Evidence Act 1995 (Cwth) is ordinarily applied, it is not mandated, 21 and the onus of proof as is applied to civil matters is on the balance of probability. On this basis there is an unavoidable potential for different outcomes concerning essentially the same circumstances.

[59] This leaves the potential prejudice against the applicant in jeopardising his right to silence in the criminal charge. While it is correct to argue that if the criminal assault allegation is without merit, Mr Poposki would potentially not suffer injustice if the Commission hearing proceeded. It would still potentially prejudice his right to silence in the upcoming criminal trial concerning the same allegation having given evidence under oath and been subject to cross examination in an unfair dismissal application. As stated by Dean J in Reid v Howard 22it is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person.

[60] Warrigal states that the memories of relevant witnesses will be affected by the effluxion of time if the stay were to be granted. Although it is not clear at this stage what witness evidence will be called in the unfair dismissal proceedings, I accept it is generally true that witness memory diminishes over time. However, this will apply equally to Mr Poposki and any witnesses he might choose to call.

[61] Warrigal also says that the fact that Mr Poposki seeks reinstatement suggests the matter should be heard ‘sooner rather than later’. Mr Poposki says the remedy sought is not relevant to the Commission’s considerations in balancing justice between the parties.

[62] A similar argument was made before Commissioner Bissett at first instance in Rustemovski. The Commissioner accepted that where reinstatement was sought by an applicant in unfair dismissal proceedings the matter should be determined as quickly as possible, however this needed to be balanced against other factors when considering a stay application. On appeal the employer argued that the Commissioner had not given enough weight to this consideration. The Full Bench determined that the weight to be accorded to the consideration was a matter for the Commissioner and went on to state:

“[55] Further, we do not accept that the Commissioner erred in the manner contended by the Appellant, indeed it seems to us that to the extent the delay in the finalisation of the unfair dismissal applications may create difficulties in relation to any order for reinstatement, the burden of that would fall on the Respondents rather than Visy. It seems to us that the delay would provide Visy with an argument against reinstatement, which it potentially would not have absent the adjournment.”

[63] Similarly, in the present matter it could be said that the delay in the finalisation of Mr Poposki’s application would in fact provide Warrigal with an argument against reinstatement should the application for unfair dismissal succeed. I do therefore not consider the fact that Mr Poposki seeks reinstatement to be a significant or determinative factor weighing against the granting of a stay. It is noted that Mr Poposki’s application claims compensation as an alternative remedy to reinstatement.

[64] The submissions from Warrigal that there is no certainty as to when the criminal proceedings will be finalised are now overcome by the setting down of a hearing date. As stated above, Warrigal ‘acknowledges the difficulty of continuing the proceedings’ while Mr Poposki is overseas. It requests the matter be set down for hearing after Mr Poposki’s return. If that were to occur, the matter would not likely be heard following directions for witness statements and written submission from both parties until late December 2018 or early January 2019.

[65] In the event Mr Poposki’s stay application is granted, noting the time of the hearing of the criminal matter being 29 January 2019, the hearing before the Commission if it continued would likely be held in March 2019.

[66] I have determined that in the interests of justice Mr Poposki’s stay application will be granted. I am unable to identify any serious prejudice to Warrigal in adopting this course. The issue to be tried in both matters is essential the same, the date of the criminal proceeding is now known and combined with Mr Poposki’s return from her pre-planned overseas holiday will not cause a delay of significance in his unfair dismissal hearing should it proceed after the criminal hearing.

[67] Despite my decision in this matter, liberty will be reserved for any party to make a further application to remove or vary the stay order should the criminal proceedings not proceed as anticipated.

DEPUTY PRESIDENT

 1 F3 at [1.5], F2 at [3.2.2]

 2   See for example Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FWC 7282 at [42]

 3   [2018] FWCFB 1255

 4 (1982) 7 ACLR 202

 5   Visy Board Pty Ltd v Ulben Rustemovski and Fahim Ahmadyar[2018] FWCFB 1255 at[47]

 6   [1990] VR 385.

 7 [1979] 1 WLR 898.

 8   [1999] AIRC1158

 9   Print S8287

 10 4 FCR 428 at 435

 11 (2015) 255 CLR 46.

 12   Ibid, at [35]

 13   Ibid, at [36]

 14   Ibid, at [42-43].

 15   [2016] FCAFC 97

 16   [2018] FWCFB 1255

 17   [2016] FCAFC 97

 18   [2018] FWC 3828

 19   S8287 [2000] AIRC 76

 20   [2005] AIRC 492.

 21   See s.591 of the Act

 22 [1995] HCA 40; 184 CLR 1at [6]

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