In July 2020, Mr Dadley was convicted of serious sexual offences against a fellow employee. In September 2020 Fire and Rescue NSW (FRNSW) took action to terminate his employment. Mr Dadley commenced proceedings in the Industrial Relations Commission seeking a ‘stay’ of unfair dismissal proceedings and of the decision to terminate his employment pending the outcome of his appeal to the Court of Criminal Appeal – Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084. 

The gist of the issue is that Mr Dadley had entered a plea of ‘not guilty’ and maintains that he is not guilty of the offences charged. It would therefore be premature to terminate his employment on the basis of his conviction and, further, the Industrial Relations Commission should be not deciding matters that are currently before another court, in this case the Court of Criminal Appeal.

Mr Dadley gave undertakings that if he appeal was unsuccessful he would withdraw his unfair dismissal claim. If he was successful he would not claim any compensation for lost earnings from the time the case was ‘stayed’ until it was resolved.

FRNSW argued that the determination in the Court of Criminal Appeal would not determine the matter. In disciplinary proceedings the respondent does not have to be satisfied that Mr Dadley engaged in the conduct to the criminal standard – ie beyond reasonable doubt. The burden in civil proceedings is ‘on the balance of probabilities’. FRNSW submitted ([32]) that

Even if the convictions are discharged (which is an entirely speculative exercise at this stage), FRSNSW will contend in the proceedings that Mr Dadley’s conduct was nevertheless serious and that the termination of his employment was warranted;

That is even without a criminal conviction they think they have enough material to warrant Mr Dadley’s dismissal. Accordingly, even if he is acquitted by the Court of Criminal Appeal that will not determine the issues that FRNSW can and should consider when deciding whether or not to terminate Mr Dadley’s employment.

Further FRNSW has a duty to ensure a safe workplace for all staff including the alleged victims of Mr Dadley’s behaviour. FRNSW submitted ([32](18)) that:

FRSNSW, as a public authority, is dealing with a workforce that is anxious to have a swift determination as to whether Mr Dadley will be returning to the workforce, irrespective of whether he is guilty of a criminal offence. That anxiety, and FRSNSW’s duty to employees to manager their well being, cannot be underscored. As noted above, FRSNSW intends to propound a case in the IRC that irrespective of whether Mr Dadley is guilty of a criminal offence (or not), he should not be reinstated or re-employed by FRSNSW.

Commissioner Webster considered the matters and said (at [48]):

… I have determined that the appropriate outcome is to allow a stay for the duration of the anticipated Court of Criminal Appeal proceedings… In doing so, while I have carefully considered the interests of the respondent, I am particularly concerned with the prejudice to the applicant’s case if the matter were to proceed without him first having the opportunity to have his conviction overturned and the potential waste of the parties and the public’s resources that will be realised if his appeal is unsuccessful.

That last point related to the undertaking given to withdraw if the matter was unsuccessful. If a stay was not granted evidence would have to be given, repeating what had already happened in the criminal trial to determine whether the decision to dismiss was reasonable or not. By granting a stay if the case is lost in the Court of Appeal that will be the end of the matter and there will be no waste of resources again revisiting the facts. If Mr Dadley is successful in his Appeal then the matter can come back for consideration so that may require revisiting the matter but that is where they stand today so there is not great disadvantage to either party.

Discussion

This must be an incredibly difficult position for FRNSW. No doubt they would say they have a zero-tolerance policy for sexual misbehaviour. We’re not told when the alleged offences occurred, but we are told ([40]) that the ‘victim express[ed] relief at the finalisation of the criminal matter and that she has been on paid leave for four (4) years’.  It also appears that the applicant, Mr Dadley has been away from work for four years ([40]).

FRNSW has two employees whose interests are diametrically opposed but who must both be treated according to law and in particular with respect to Mr Dadley, with appropriate due process if his employment is to be terminated.  

As the Commission noted it could take 9 to 12 months for an appeal to be heard. A delay that Commissioner Webster described (at [39]) as ‘a considerable delay to the current proceedings, though not inordinate’. But that may not be the end of the matter. There could be further proceedings for example, the Court of Criminal Appeal may uphold an appeal and order a new trial. In that case (at [39]):

It is effectively “anyone’s guess” how long it will take for the criminal proceedings to be brought finally to an end with all avenues of appeal concluded. It is conceivable that this could take years.

If the appeal is resolved against Mr Dadley that will be the end of the matter and he will not continue with his application. If it is resolved in his favour then this matter may be resurrected and the question of his ongoing employment will be considered. In the meantime one can only infer that both the victim and Mr Dadley remain on the books as ‘employees’ even though neither are actually at work.

Commissioner Webster said (at [35])

… the Commission is exercising a discretion which necessarily requires the balancing of competing interests of the parties and a consideration of the interests of justice and the public interest.

It was her view that, given the undertakings offered by Mr Dadley, justice required a stay of the proceedings. However, one can’t help but recall the adage that ‘justice delayed is justice denied’.