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Australia: Fair Work Commission reduces compensation amount to zero for unfairly dismissed solicitor where misconduct was discovered after the termination

Fair Work Commission reduces compensation amount to zero for unfairly dismissed solicitor where misconduct was discovered after the termination

The Fair Work Commission has reduced the compensation payable to a solicitor to zero, despite finding that he had been unfairly dismissed by a criminal law firm, on the basis that misconduct by the solicitor, discovered after his dismissal, fell “short of the judgement and good faith and fidelity required of an employed solicitor”.

In Hans v QS Law Pty Ltd T/A Quinn and Scattini Lawyers [2019] FWC 5034, the solicitor had previously accepted an offer of redeployment by the criminal law firm after his role became redundant during the closure of the current office. The redeployment required him to move to a new office, and on that basis, he negotiated a salary increase to compensate for the additional travel required. Almost 6 months after signing the new employment agreement, the solicitor was refusing to move to the new office and insistent that he was not required to move. Consequently, the solicitor was dismissed. Four days later, the solicitor was summarily dismissed for serious misconduct after it was discovered he had sent confidential information to his private email address and confidential client information to a lawyer at another law firm.

Relevantly, the Fair Work Commission found that the law firm had a valid reason to dismiss the solicitor, based on the solicitor’s refusal to relocate offices, which the Commission characterised as being a failure to comply with a reasonable direction. Notwithstanding, the failure to relocate fell short of “wilful and deliberate” conduct amounting to serious misconduct, and was considered to be “more in the nature of a refusal to cooperate, where the [solicitor] made various excuses but nonetheless continued to perform his duties adequately”.

Although there had been a valid reason to dismiss the solicitor, the Commission found that the law firm had failed to notify the solicitor of this valid reason prior to his dismissal. Accordingly, it was held that the lack of notice afforded to the solicitor and the failure to provide the solicitor with an opportunity to respond was unjust and unfair.

In considering the solicitor’s entitlement to an appropriate remedy for unfair dismissal, having already determined that reinstatement was not sought by the solicitor and was resisted by the law firm, the Commission reasoned that the employment would have likely ended within a week of the employee returning from planned leave, due to the solicitor’s persistent view he was not required to relocate. In addition to the two weeks payment in lieu of notice he was entitled to, the Commission calculated that had the Employee not been unfairly dismissed, his renumeration would have been 3 weeks’ pay.

The Commission, however, held that this amount of compensation should be reduced to zero, due to findings it had made that the solicitor had onforwarded the law firm’s template documents used to categorise clients to a Team Leader at another law firm and attempted to onforward to himself copies of those same documents. Whilst the Commission observed that, as a general rule, the sharing of precedents between law firms was practiced in certain circumstances, one document of the law firm’s was found to be commercial in nature, and further, would have been of some value to the Employee’s newly established law firm.