TERMINATION OF EMPLOYMENT – other termination proceedings – related court proceedings – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant dismissed for misconduct – matter not resolved at conciliation – applicant sought indefinite adjournment as police investigation was ongoing – Commission granted two month adjournment – applicant sought further adjournment pending decision of investigation – respondent did not oppose application and further two month adjournment was granted – following second adjournment, applicant’s representative advised that no criminal charges had been laid civil proceedings had been commenced against applicant in County Court – a further adjournment was sought by applicant, who submitted it was inappropriate to have two trials dealing with the same issues as it could lead to inconsistent findings of fact – applicant submitted County Court matter should proceed first – Commission adjourned matter until February 2016 – no change in status of investigations – no criminal charges laid but County Court matter adjourned to preserve applicant’s privilege against self-incrimination – McMahon considered – Commission held applicant was on notice since respondent’s response to application alleged she was guilty of misconduct – applicant always at risk in commencing these proceedings – should applicant choose to give evidence in relation to the allegations relied upon by respondent, her evidence could be used against her in other proceedings – if matter proceeds applicant can exercise her right not to answer questions that may incriminate her – Commission not able to draw any adverse inferences from any decision applicant makes to exercise that right – Commission held matter should not be further adjourned – unlikely that County Court will hear and determine matter in near future – Commission and Court will determine different issues – Court will need to determine if applicant had misappropriated funds – Commission to determine if dismissal harsh, unjust or unreasonable – directions to follow. Morton v Lardner Mechanical Repairs P/L
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