Navigating the Intersection of Criminal Allegations and Unfair Dismissal in the FWC

In a case that exemplifies the legal tension between criminal proceedings and employment rights, the Fair Work Commission (FWC) recently granted a further stay of unfair dismissal proceedings for a teacher formerly employed by All Saints Greek Orthodox Grammar.

The teacher, Mr Jamie Richards, is currently facing criminal charges in the New South Wales Local Court relating to allegations of assaulting three students—allegations which also led to the imposition of Apprehended Personal Violence Orders (APVOs) and the suspension of his Working With Children Check (WWCC).

Navigating the Intersection of Criminal Allegations and Unfair Dismissal in the FWC

Timeline of Events

• June 2024: All Saints Grammar terminated Mr Richards' employment following his being charged by NSW Police.

• September 2024: Deputy President Tom Roberts stayed the FWC unfair dismissal proceedings, pending resolution of the criminal trial originally set for April 2025.

• July 2025: Due to a further delay in the criminal proceedings—now adjourned until November 2025—the teacher applied to the FWC to extend the stay.

• 4 July 2025: Deputy President Roberts issued his decision in Jamie Richards v All Saints Greek Orthodox Grammar [2025] FWC 1924.

The Commission’s Reasoning

The teacher argued that the unfair dismissal case should remain on hold, citing:

1. No change in the criminal charges.

2. The fact he is still seeking reinstatement.

3. The court delay was beyond his control.

4. The delay to November was not excessive.

   
   

Conversely, the school opposed the extension of the stay. It maintained that the dismissal was not solely based on the criminal charges but also due to:

• The suspension of the teacher’s WWCC by the Office of the Children’s Guardian.

• The APVOs that effectively barred his return to school premises.

• The suspension of his teaching accreditation by the NSW Education Standards Authority.

The school further argued that even if the teacher were acquitted, these restrictions could persist and preclude reinstatement, thus maintaining the validity of the original dismissal grounds.

Legal Considerations

Deputy President Roberts acknowledged that under the Fair Work Act 2009, a dismissal can be lawful but still be considered harsh, unjust or unreasonable depending on context (see s.385(c) of the Act).

He also highlighted a significant risk of injustice to the teacher if the stay was not extended, as running concurrent criminal and industrial proceedings could prejudice the teacher's defence. The Deputy President noted that the delay, while undesirable, was not so lengthy as to prejudice the employer’s ability to present its case.

Outcome

The Commission granted a further stay until 10 November 2025, aligning with the rescheduled date for the criminal hearing. The FWC recognised the balance that must be struck between the interests of justice and procedural fairness in employment matters when they intersect with serious criminal allegations.

Conclusion

This case underscores the complexities involved when criminal proceedings overlap with employment disputes. The FWC’s decision reflects a cautious and principled approach—protecting the procedural rights of an accused employee while also acknowledging the operational realities facing an employer in the education sector.

The matter will now resume later this year unless further adjournments occur. Regardless of the outcome in the criminal jurisdiction, the FWC will still be required to assess whether the dismissal, when viewed in its totality, meets the statutory criteria of fairness under the Act.