FWC delays Services Australia dismissal case during criminal proceedings
On 30 January 2026, the Fair Work Commission stayed an unfair dismissal case against Services Australia while related criminal proceedings over the same disaster payment claim continue.
For HR leaders, the case goes to a core practical problem: what happens to a dismissal dispute when the same conduct is also before a criminal court.
Camball Murphy had applied to the Commission for an unfair dismissal remedy under Part 3‑2 of the Fair Work Act 2009 after Services Australia terminated his employment. The employer said he was dismissed “for making dishonest representation when claiming he was eligible for a payment of taxpayers’ money,” referring to his claim for the Australian Government Disaster Recovery Payment (AGDRP) on 17 March 2025. The Respondent acknowledged that the dismissal and the Criminal Proceedings involved the same factual circumstances related to that claim.
On 12 December 2025, Murphy was charged with one offence of obtaining financial advantage pursuant to s.135.2(1) of the Criminal Code Act 1995 (Cth), described in the decision as the Criminal Proceedings. Earlier that day, at 12:46am and 2:05am, his then representative had already filed his submissions and evidence in the unfair dismissal matter. Murphy was served with notice of the Criminal Proceedings later on 12 December.
The unfair dismissal arbitration was listed for 4 and 5 February 2026. After the charge was laid, Murphy, through his new representative, applied to have the Commission stay his unfair dismissal case until the Criminal Proceedings were finalised. He submitted that continuing with the unfair dismissal arbitration at this time would give rise to a real risk of prejudice in the Criminal Proceedings, including by requiring him to give evidence, make admissions or disclose aspects of his defence while the criminal charge remained unresolved.
Services Australia opposed the stay. It argued that a stay of proceedings is an extraordinary remedy and that Murphy had already had significant opportunities to put his case, including during the disciplinary process and in the material filed with the Commission. It pointed out that his statements and submissions were already admissible in the Criminal Proceedings and submitted that, viewed as a whole, he had effectively failed to exercise his right to silence. The employer also raised concerns about delay: that witness evidence might become less reliable over time, that it could incur further expense, and that a longer delay could increase potential exposure to remedies such as reinstatement and lost wages.
Commissioner Spencer accepted that there is no automatic entitlement to a stay simply because criminal proceedings are on foot. The task was to balance the interests of both parties and decide what justice required in light of the Fair Work Act’s requirement that the Commission act in a manner that is fair and just and provides a “fair go all round.”
A key factor was the substantial and direct overlap between the unfair dismissal case and the Criminal Proceedings. Both turned on the same AGDRP claim, and the alleged facts in the Criminal Proceedings formed a significant basis for the reasons for dismissal. The Commission found that, to properly present his unfair dismissal case, Murphy would likely have to give evidence and be cross‑examined on those same matters, creating a real risk of prejudice to him in the Criminal Proceedings.
The employer suggested that a certificate under the Evidence Act 1995 (Cth) could be used to prevent Murphy’s answers in the unfair dismissal hearing being used in other proceedings. The Commission rejected this as not fully addressing the prejudice and noted that relying on such a certificate could complicate the conduct of the case and interfere with principles of open justice, for example by requiring restrictions on access to the hearing or record.
Taking into account the progression of the Criminal Proceedings, which had already been mentioned in the Toowoomba Magistrates Court and adjourned to 16 February 2026, and what it considered to be limited prejudice to the employer compared with the real risk of prejudice to Murphy, the Commission exercised its discretion to grant a stay.
Murphy’s unfair dismissal application is stayed under section 589 of the Fair Work Act until the Criminal Proceedings are finalised. Within seven days of the conclusion of those proceedings, he must advise the Commission in writing, and each party has liberty to apply.
