When Criminal Proceedings and Employment Law Intersect

The ‘Ugly’ in ‘the Good, the Bad and the Ugly’ in our Restraint of Trade part 2 podcast from 8 August 2025.

In an interesting intersection of criminal law and employment law, the Fair Work Commission (FWC) has granted multiple delays in unfair dismissal proceedings initiated by a former teacher, highlighting the complex balance between different jurisdictions, as well as between procedural fairness and employer operations and obligations.

Background

In December 2023, the teacher was charged with four counts of common assault, relating to three different students, arising from events which allegedly occurred in November 2023. The teacher plead not guilty to each charge, and the matter was listed for a 2-day hearing in April 2025.

The November events led to the students taking out apprehended violence orders against the teacher, prompting the Office of the Children’s Guardian to suspend his Working with Children Check (WWCC), which in turn led to his teacher’s accreditation being temporarily suspended.

In light of his inability to attend school premises, or continue teaching generally, the teacher’s employment was terminated in May 2024.

The Original Application and Further Applications for delay

In June 2024, the teacher filed an unfair dismissal application with the FWC seeking reinstatement and compensation. As the relevant criminal charges were due to be heard in April 2025, the Applicant made an application to stay the unfair dismissal proceedings until such a time as the criminal charges had been resolved.

In September 2024, Deputy President Roberts approved this request, noting that there was no serious prejudice to the employer’s case, and found in favour of allowing the Applicant the opportunity to present his case at both the criminal proceedings and before the FWC. Specifically, that the interests of justice were best served by resolving the criminal matter first.

The criminal hearing was then postponed until November 2025. Unsurprisingly, the Applicant made a further request to defer his unfair dismissal hearing, which was again resisted by the employer. The employer stated that the criminal proceedings would not necessarily determine the outcome of the unfair dismissal application as the relevant teaching restrictions may remain in place even if the Applicant is acquitted. Further to this the employer stated that the question before the FWC was whether the employer had a valid reason for dismissal at the time – according to the employer this valid reason was a suspension of his accreditation and restriction on his WWCC, which are essential criteria for the role. Deputy President Roberts noted that it is well established that a valid reason can exist, and the termination may yet be determined as harsh, unjust or unreasonable in the circumstances.

So, Deputy President Roberts again found in favour of the Applicant, citing his original reasoning, and placing emphasis on a lack of substantive changes in the situation. The criminal charges remained the same, the Applicant’s plea remained the same, the remedies sought remained the same, and the Applicant was not responsible for the delay to the criminal proceedings. So, while the delay to the unfair dismissal proceedings was undesirable, this was outweighed by the risk of injustice to the Applicant should he be required to give evidence in the Fair Work Commission prior to the criminal proceedings.

Key Take Aways

This case underscores the tensions between an employee’s right to a fair hearing and an employer’s duty to maintain a safe and compliant workplace. It also illustrates the FWC’s nuanced approach to procedural fairness, especially when criminal proceedings are ongoing.

For legal professionals, this case serves as a reminder to consider the broader implications of criminal allegations on employment status, particularly in regulated sectors like education. It also highlights how external legal processes can influence internal employment decisions.

Stay tuned for a resolution of this one, with the proceedings now expected to take place in November this year.

Mr Jamie Richards v All Saints Greek Orthodox Grammar [2025] FWC 1924 (24 July 2025)

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.