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.