Criminal Charges and an Unfair Dismissal
An employee who claims they were unfairly dismissed must usually pursue their case promptly. But what happens when the same facts behind a dismissal are also the subject of criminal charges?
In a recent decision, the Fair Work Commission confirmed that it can adjourn, or effectively pause, unfair dismissal proceedings where criminal matters are underway. In this case, the employee had been dismissed earlier in 2025 over conduct that later led to criminal charges. Both the employer and the worker agreed the events giving rise to the dismissal were the same as those in the criminal matter, which was still before the Court.
The employee asked the Commission to hold off on deciding the unfair dismissal case until after the criminal trial. She argued that moving forward with this would unfairly force her to choose between giving evidence that could harm her criminal defence, or staying silent and losing ground in the unfair dismissal claim.
The Commission agreed, noting that while there’s no automatic right to a stay just because criminal charges exist, a short adjournment may be justified where there's real risk of prejudice. Preparing for both cases at once, especially while self-represented, would place a heavy burden on the employee.
Importantly, the Commission clarified that its power to grant an adjournment comes from the Fair Work Act, which gives it flexibility to manage proceedings fairly. In this case, balancing both sides’ interests led to the matter being formally adjourned until after the scheduled criminal hearing.
This decision reinforces that while the Fair Work Commission aims to deal with matters quickly, it must also ensure fairness. That said, employees must still show real and specific risks. The Commission will weigh these risks against the employer’s interest in a timely resolution.
For employees facing criminal allegations tied to a dismissal, this case confirms that the Commission has the discretion to adjourn proceedings until the criminal matter is resolved.
