Shelley Edwards v TouchPoint HCM Solutions Pty Ltd T/A TouchPoint HCM Solutions

[2017] FWC 6494

[2017] FWC 6494

FAIR WORK COMMISSION

DECISION

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

Shelley Edwards
v
TouchPoint HCM Solutions Pty Ltd T/A TouchPoint HCM Solutions
(U2017/10840)

COMMISSIONER WILSON MELBOURNE, 6 DECEMBER 2017

Application for indefinite adjournment of application for Unfair Dismissal Remedy.

[1] On 23 November 2017, the Respondent, TouchPoint HCM Solutions Pty Ltd, made an application to the Fair Work Commission for Shelley Edwards’ application for unfair dismissal remedy to be adjourned, potentially indefinitely, for two reasons. Firstly, it was put forward that the Respondent desired criminal proceedings against the Applicant arising out of the circumstances of her dismissal to be determined prior to the unfair dismissal application proceeding in the Commission. Secondly, it was put forward that the Respondent was not able to mount its defence to Ms Edwards’ unfair dismissal application in the time allowed by the Directions issued by the Commission since a company director, critical to its case, would be overseas in the first part of December 2017.

[2] The Applicant agreed with the application for adjournment, submitting that proceeding with her unfair dismissal matter may prejudice her in the criminal proceedings if she has to file statements in the unfair dismissal proceedings.

[3] The Commission’s Directions otherwise required the Respondent, TouchPoint HCM Solutions, to file its materials by Monday, 4 December 2017; Ms Edwards to file her material by Monday, 11 December 2017; and for the Respondent to file any further materials by Monday, 18 December 2017. The hearing or conference in relation to this matter was nominally listed in Brisbane for Wednesday, 31 January, Thursday, 1 February and Friday, 2 February 2018, noting that the three days allowed for the hearing or conference would likely be adjusted after the filing of the parties’ materials.

[4] At the time of the Mention Hearing conducted by me on Tuesday, 28 November 2017 in relation to the adjournment application, the Applicant has been charged with criminal offences, without the detail of those charges being before the Commission. An initial hearing by a Court of the charges was scheduled for 4 December 2017. The Commission has not been informed of the charges laid, or of the outcome of the initial hearing.

[5] The Commission has been informed that the hearing of the charges against the Applicant is at a very early stage and that a trial may not be concluded within the next 12 months.

[6] Relevantly, the Respondent is identified as a small business employer within its Employer Response Form, a matter which the Applicant has not yet challenged. The Employer Response Form discloses that at the time of Ms Edwards’ dismissal, her former employer employed 8 people, including Ms Edwards.

[7] The Respondent also submits that its dismissal of Ms Edwards was consistent with the Small Business Fair Dismissal Code. The Respondent contends that the reasons for Ms Edwards’ termination came about for a variety of matters, including unsatisfactory work performance, but also because of conduct which it argues is serious misconduct. Because of the nature of the allegations made against Ms Edwards I do not consider it appropriate to detail in this decision the precise conduct which is alleged against her, save to say that it is serious and may well have justified immediate dismissal, subject to the usual considerations of evidence and consistency with the Code.

[8] The discretion to stay civil proceedings, such as this, when there are criminal proceedings involving the same subject matter, is one that is not to be exercised lightly, with each case to be determined on its merits. The overriding principle involves balancing the interests of justice between the parties. An exercise of the privilege against self-incrimination by the Applicant could not, as part of that balancing exercise, be itself determinative of the discretion. 1 The matters to be considered include “whether there is a real and not merely notional danger of injustice in the criminal proceedings, a likelihood of causing injustice in the criminal proceedings, or a real prospect of substantial injustice therein if the civil proceeding continues”.2

[9] The exercise of the self-incrimination privilege within the context of an employment matter, including questions asked as part of an investigation, “means that a witness cannot be compelled to answer questions that may show the witness has committed a crime with which the witness may be charged if the answers may place the witness in real and appreciable danger of conviction” 3. While there must, for the exercise of the privilege, be a real and appreciable risk of criminal prosecution if a question is answered, and that the person must have a bona-fide apprehension of that consequence on reasonable grounds,4 the Commission is not able to draw any adverse inferences from the decision made to exercise the privilege.5

[10] In this matter, the Respondent, TouchPoint HCM Solutions, alleges conduct on the part of Ms Edwards which meets, on the balance of probabilities, the requisite test within the Small Business Fair Dismissal Code, namely that “the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”. TouchPoint will need to put sufficient evidence before the Commission to support a finding that the test has been met. In order to do so, it will need to show that its belief was genuinely held, and objectively speaking based on reasonable grounds, as well as whether there had been a reasonable investigation into the matter. 6 In the event that the Respondent fails to show the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code, the Commission must turn to a consideration of whether, on the balance of probabilities, her dismissal was an unfair dismissal within the meaning of s.387 of the Fair Work Act 2009 (the Act). That consideration will particularly turn on whether there was a valid reason for her termination of employment.

[11] As mentioned previously, the Respondent’s adjournment is predicated on two grounds; its Director’s unavailability in December to prepare the necessary responses, as well as the potential criminal proceedings against Ms Edwards. The first matter can be accommodated quite easily with no undue prejudice to either party or unreasonable delay on the part of the Commission.

[12] In relation to the second matter the Commission is greatly concerned that there is, at this time, no firm timetable for the determination of the criminal proceedings. It is also the case that a finding by a Court that Ms Edwards is not guilty of the matters before it does not necessarily determine the matters about which the Commission is required to make a decision.

[13] In relation to the potential prejudice to Ms Edwards in the event that the matter proceeds before the Commission, the nature of the jurisdiction to be exercised by the Commission and the consequential questions for determination lead to a consideration that there would not be any significant prejudice of an evidential nature. Ms Edwards is, of course, entitled to exercise her privilege against self-incrimination should she choose to do so, from which the Commission is not able to make any adverse findings against her exercise of the privilege. How Ms Edwards may choose to proceed in a hearing or determinative conference before the Commission, whether by giving evidence on her own behalf or not, would be a matter for her, and the Commission would then be obligated to make its decision on the basis of the material before it. A finding by the Commission that Ms Edwards’ dismissal was neither consistent with the Small Business Fair Dismissal Code or otherwise not an unfair dismissal would also be capable of standing on its own, being a decision arrived at on the basis of the evidence before the Commission, in contrast to the matters that may be agitated before a Court.

[14] In relation to potential prejudice of an adjournment to the Respondent, it is to be noted that the Applicant does not, within her application form, seek reinstatement, but rather compensation, were the matter to proceed. Her application form also refers to only seeking partial compensation, instead of the maximum compensation available under the Act. While those matters potentially diminish any prejudice of an adjournment to the Respondent, it is also to be noted that prejudice may accrue from the extended delay of these proceedings through the diminution over time of memories about conversations which may be critical to findings that need to be made by the Commission. It is unlikely, at least on the material before the Commission, that any of the Respondent’s witnesses would not be available for the giving of evidence if there were to be an extended adjournment.

[15] My decision is to allow the matter to proceed to be heard and determined. Other than the matters set out above, I take into account that it is unlikely a Court would hear and determine any charges against Ms Edwards in the near future, and that the Commission and a Court will be required to determine different issues, with the focus of the Commission’s enquiry being upon the question of whether her dismissal was consistent with the Small Business Fair Dismissal Code or, if not, whether her dismissal was harsh, unjust or unreasonable.

[16] Consequential to this decision, the matter will be relisted for Hearing or Conference before the Commission in Brisbane in the week of Monday, 19 February to Friday, 23 February 2018, and the Directions upon the parties for the filing of materials will be reset as follows:

1. The respondent (TouchPoint HCM Solutions Pty Ltd T/A TouchPoint HCM Solutions) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant:

•  the Respondent's Outline of Argument: objections;

•  the Respondent's Statement(s) of Evidence; and

•  the Respondent's Document List

by no later than noon on Thursday, 21 December 2017.

2. The applicant (Mrs Shelley Edwards) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent:

•  the Applicant's Outline of Argument;

•  the Applicant's Outline of Argument: objections;

•  the Applicant's Statement(s) of Evidence; and

•  the Applicant's Document List

by no later than noon on Wednesday, 17 January 2018.

3. The respondent (TouchPoint HCM Solutions Pty Ltd T/A TouchPoint HCM Solutions) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the applicant:

•  the Respondent's Outline of Argument; and

•  Any other material it wishes to file in reply.

by no later than noon on Wednesday, 31 January 2018.

COMMISSIONER

Appearances:

Mr H Jordaan, solicitor, on behalf of the Applicant.

Mr A Worling and Mr L Sugars for the Respondent.

Hearing details:

2017.

Melbourne (by telephone):

28 November.

 1   National Union of Workers - New South Wales Branch v Nick Belan[2017] FWC 1439 at [8]; with reference to Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 [109].

 2   Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 [110].

 3   Grant v BHP Coal Pty Ltd [2017] FCAFC 42 [106]; with reference to Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 [294], per Gibbs CJ.

 4   Grant v BHP Coal Pty Ltd [2017] FCAFC 42[109].

 5   Morton v Lardner Mechanical Repairs Pty Ltd[2016] FWC 3982 [16].

 6   Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 [40]–[41]; with reference to Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359; (2012) 219 IR 128 [29].

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