Crawford v Traffic Control (Metro) Pty Ltd [2002] QIRC 28 (2002) 169 QGIG 263

28 March, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 263 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Michael Crawford AND Traffic Control (Metro) Pty Ltd (No. B51 of 2001) COMMISSIONER BLOOMFIELD 19 March 2002 Reinstatement – Application by Respondent for adjournment – Issues of prejudice considered – Commission to await result of criminal proceedings – Adjournment granted – Reasons given for granting of adjournment. DECISION On 13 December 2001 I issued a brief decision on transcript acceding to the respondent’s request for adjournment of reinstatement proceedings lodged by Mr Crawford. I indicated I would provide more fulsome reasons in the course of time. These are those reasons. Facts of the matter The applicant alleges he was assaulted by the Chief Executive Officer of the respondent, Mr Geaney, on the evening of 19 December 2000. On 22 December 2000 the applicant gave written notice to the respondent that he regarded Mr Geaney’s conduct as so outrageous that he could no longer work for the company. An application alleging unfair dismissal was lodged on 10 January 2001. At conciliation proceedings on 6 February 2001 the applicant was offered reinstatement with arrears of pay. The offer was rejected, apparently on the basis that the applicant was so traumatised by the events of 19 December 2000 that he could not return to work Sometime after 20 December 2001 Mr Geaney was charged with assault and the matter ultimately was set down for committal hearing at the Sandgate Magistrates Court on 2 August 2001. The result of those proceedings was that Mr Geaney was committed to stand trial in the District Court. In order to prevent the application lapsing the applicant’s barrister wrote to the Commission on 9 May 2001 indicating the applicant wished to keep the matter alive “and to reserve justice for both parties” (see applicant’s written submissions). A subsequent conciliation conference was conducted by the Commission on 1 November 2001, at which time the applicant’s representative informed the Commission that Mr Crawford had obtained other employment in June 2001 and was seeking compensation in respect of his alleged unfair dismissal. Again, the matter did not settle. It was referred to the callover list. At a callover on 29 November 2001 the respondent requested the matter be adjourned pending the outcome of the committal hearing, due to be held in the first half of 2002. The applicant opposed adjournment. The application was referred to the Commission as presently constituted for determination. As indicated above, I adjourned the proceedings. -- 1 of 2 -- 264 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 March, 2002 Reasons for granting the adjournment The applicant has obtained alternative employment and is happy in that employment. He is not seeking reinstatement to his former position on the basis that reinstatement is argued to be impracticable. He is only pursuing the remedy of compensation for lost income and the circumstances associated with the employer’s alleged breach of his contract of employment (see Serratore v Doyles Construction Lawyers (No 2) (2001) 168 QGIG 9). In support of its argument for adjournment, the respondent referred me to Anita Ho v Viva Nightclub Pty Ltd (2001) 167 QGIG 395 and the similarities between that matter and the matter before me. It was submitted that Mr Geaney and/or the respondent would suffer a prejudice if Mr Geaney was required to elect whether or not to give evidence at the unfair dismissal hearing. This was because if Mr Geaney was required to give evidence before the Commission he could perhaps prejudice the determination of the criminal proceedings. If he declined to give evidence in the unfair dismissal proceedings because of the impending criminal proceedings such action could prejudice the respondent. The respondent’s representative said that position should be contrasted with the position of the applicant, Mr Crawford. Mr Crawford would suffer no prejudice as a result of the delay because he had found other employment and was only seeking compensation. The respondent’s representative also referred me to the decision of Fisher C in John Paul College v Lawrence Waterman and QCCI v Lawrence Waterman (1999) 162 QGIG 269 where the Commissioner referred to the generally adopted principle of allowing criminal matters to be exhausted before related civil matters are heard on the basis that it does provide fairness to the accused. The Commissioner adjourned the matter for further consideration pending the outcome of the committal hearing. The applicant’s representative drew my attention to a contrary statement of Vice President Linnane in Ho v Viva Nightclub Pty Ltd where the Vice President said “I do not necessarily agree that such a general principle exists. Whether or not an adjournment of an unfair dismissal hearing will be granted will depend on the merits of any such application and the potential prejudice to the parties.”. The applicant’s representative also referred me to McMahon v Gould (1982) 7 ACLR 202 in support of his contention that there is no general principle which provided for a stay of civil proceedings where criminal proceedings were afoot. In particular, I was referred to the general guidelines set out by Wootten J (at 206) which his Honour used to determine the matter before him. It was also submitted that the authorities clearly provide the onus of proof is on the person seeking the stay and that the onus is on the respondent to clearly demonstrate that there is a real prospect of substantial injustice if the stay is not granted. In response, the respondent’s representative referred me to The Police Service Board and Another v Morris and The Police Service Board and Another v Martin (1995) 59 ALJR 259, Black & White Cab Co. Pty. Limited v Kelk (1984) 2 Qd.R. 484 and Ceasar v Sommer (1980) 2 NSWLR 929. The respondent’s representative also conceded that if the application for a stay in the proceedings was granted it would have a greater liability for backpay if the Commission determined (over the objections of the applicant) that reinstatement was appropriate. The representative also conceded that if compensation was awarded one of the repercussions of the requested delay might be an award of interest on the amount involved because of the delay in the proceedings. The respondent’s representative also informed me that he had been in discussions with the office of the Director of Public Prosecutions about expediting the hearing of the assault charges. Indications were the matter would be listed in the January callover, with the hearing expected to be some three to four months after that date. It was submitted that this was a similar delay to that considered by the Vice President in Ho v Viva Nightclub Pty Ltd. After considering all of the above material I determined to grant the respondent’s application to have the matter adjourned pending the outcome of the District Court proceedings. In so deciding I especially took into account the following matters:– (i) There has already been a substantial delay on the applicant’s part in bringing the matter to trial. The history of the matter reveals no previous efforts to have the matter dealt with expeditiously. (ii) The hearing of the criminal charges against Mr Geaney are likely to occur in the first half of 2002. (iii) The respondent accepts that possible consequences of the requested delay could be a higher award of backpay if the applicant is reinstated or an order for payment of interest on any amount which might be awarded as compensation. (iv) There is a potential for prejudice to the respondent if its primary witness, Mr Geaney, claims privilege during the course of an unfair dismissal hearing. The Commission would be required to determine whether to decide the matter in the absence of Mr Geaney’s evidence or to adjourn the matter until after the criminal proceedings. (v) There could be prejudice to Mr Geaney if he was required to give evidence in the unfair dismissal proceedings prior to the criminal proceedings. (vi) The unfair dismissal proceedings would be shortened to a considerable degree if Mr Geaney is found guilty of the assault charge. (vii) The potential for prejudice to Mr Geaney and/or the respondent should the matter proceed to hearing prior to the criminal trial is much greater than the prejudice likely to be suffered by Mr Crawford from a further delay in the commencement of the unfair dismissal proceedings. In the course of giving my brief reasons on the transcript on 13 December 2001, I also directed the respondent’s representative to write to the Commission after the callover in the District Court in January to inform me of the scheduled hearing dates. I indicated I would arrange with the Vice President for the matter to be listed for further callover prior to the criminal proceedings so that hearing dates for the unfair dismissal application could be set, and directions issued. I subsequently received advice from the respondent’s solicitor to the effect that the District Court had allocated trial dates in the week of 22 April 2002. Later advice was received from the applicant’s representative to the effect that the matter had been re-scheduled for hearing in the week commencing Monday 3 June 2002. In light of that development I will ask the Vice President to list the matter for callover, and issuing of directions, in either late April or early May 2002. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Released: 19 March 2002 Appearances:– Mr C. Crawford for Mr M. Crawford the Applicant. Mr P. Cece, of Deacon and Milani, for Traffic Control (Metro) Pty Ltd. -- 2 of 2 --