Reihana v The GEO Group Australia Pty Ltd

[2015] FWC 922

[2015] FWC 922

FAIR WORK COMMISSION

EXTEMPORE DECISION RE STAY

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

Jason Reihana
v
The GEO Group Australia Pty Ltd T/A GEO
(U2014/5037)

and

Chintankumar Patel
v
The GEO Group Australia Pty Ltd
(U2014/5490)

and

Blake Reilly
v
GEO Group, The T/A GEO Group Australia Pty Ltd, The
(U2014/5711)

COMMISSIONER CAMBRIDGE SYDNEY, 6 FEBRUARY 2015

Unfair Dismissal claims - related criminal proceedings - stay of proceedings Ordered.

[1] This Decision is issued further to and as confirmation of the extempore Decision made during proceedings held on 6 February 2015.

[2] This Decision is made in respect to three applications for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The applications have been made by respectively, Jason Reihana, Chintankumar Patel and Blake Reilly, collectively “the applicants”. The respondent employer to each of the applications although named slightly differently in each case, is The GEO Group Australia Pty Ltd(the employer).

[3] These matters were listed before the Fair Work Commission (the Commission) for Conference/Hearing to commence at 10:00am next Wednesday, 11 February and continuing on the two following days, 12 and 13 February. The files were received in my Chambers yesterday, 5 February. There is a fourth related unfair dismissal matter (U2014/5495) which was not listed at the same time as these matters, and the file for that matter has not been provided to my Chambers.

[4] An initial examination of the files has revealed a somewhat difficult and unfortunate procedural history to date. One of the matters, U2014/5490, the case of Patel, had been the subject of proceedings before McKenna C on 10 October 2014, at which time McKenna C determined that, at the request of the employer, the matter was stood over pending the determination of related criminal proceedings. 1

[5] It appeared that criminal charges had been laid against three of the four related unfair dismissal applicants and that the applicant Patel was not subject to any potential criminal prosecution. Subsequently, the criminal charges made against the applicants Reihana and Reilly have apparently been withdrawn. The criminal charges against the fourth applicant in matter U2014/5495, are apparently scheduled to be heard in the District Court on 25 May next. Consequently, it would seem that the basis upon which McKenna C stayed or “stood over” the proceedings in the Patel matter (U2014/5490), had changed but only to the extent that any related criminal proceedings now involve one rather than three individuals.

[6] In such circumstances, I decided to list these matters for Mention today. During the proceedings today, it has been confirmed that these matters have a connection with criminal proceedings scheduled to be heard before the District Court of New South Wales on 25 May 2015 (the related criminal proceedings). Further, it has been confirmed that the determination of these matters would involve and could not avoid, a requirement for the Commission to make factual findings as to whether or not an assault, or as the employer suggested, an incident, occurred at the Parklea Correctional Centre on the afternoon of 26 December 2013.

[7] The question of whether such an alleged assault or incident occurred and its detail is a central feature of the related criminal proceedings. Those criminal proceedings will examine and settle certain factual contests about what occurred at Parklea Correctional Centre at around 2:30 pm on 26 December 2013. Those factual contests are the same as those requiring determination by the Commission in these matters.

[8] Consequently, the circumstances which gave rise to the determination by McKenna C to stay proceedings in the Patel matter, U2014/5490, have not materially altered and similarly apply now to both that matter and the other two matters, Reihana (U2014/5037) and Reilly (U2014/5711). I have therefore decided that proceedings in these matters 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 one or more of the applicants seek to more comprehensively argue for re-commencement of proceedings at a time earlier than that provided for in the Stay Order.

[9] Although it is regrettable that these matters will be 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 claims, are conducted in a manner which is fair and just to all involved.

[10] An Order to stay proceedings in these matters shall be issued separately. The files in these matters shall be retained in Chambers awaiting any future application for relisting which should be directed to my Chambers.

COMMISSIONER

Appearances:

Mr P Oates, Counsel appeared on behalf of the applicant, Jason Reihana;

Mr S Ryan, Solicitor appeared on behalf of the applicant, Chintankumar Patel;

Mr B Reilly appeared for himself.

Mr K Brotherson, Solicitor appeared on behalf of the respondent, The GEO Group Australia

Hearing details:

2015.

Sydney:

February, 6

 1   Transcript of proceedings in U2014/5490, (10 October 2014) @PN74 - PN77.

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