Employer faulted for 'procedural deficiencies' amid valid reason to dismiss
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim from a lawyer who said he was fired over his internet browsing history, among other performance issues.
Meanwhile, the employer argued that it had a valid reason for dismissal since it found that the lawyer had “wasted” a significant amount of time on the web instead of assisting one of its valuable clients.
The said attorney commenced full-time employment as a patent and trademark lawyer in May 2021 at Chrysiliou IP Pty Limited, as Trustee for the Chrysiliou Law Unit Trust. Around May 2023, the firm's director expressed concerns about the attorney's perceived lack of responsiveness to a client's legal matter.
In one of the emails that the director sent, he told the lawyer: “I am a little concerned about this – as mentioned a couple of times before, the client has indicated that this is urgent yet no draft or even an email with an update has been sent to the client!”
Rather than addressing the performance issue constructively, the attorney criticised the director and opted to recuse himself from the matter, citing the client's vague information.
Subsequently, the attorney was instructed to attend a formal meeting to discuss the alleged poor performance, and his access to workplace systems was suspended. Accusations of being "aggressive and abusive" during the meeting were also levelled against him.
Director’s final warning before dismissal
On June 2, 2023, a final warning letter was issued, inviting the attorney to review and respond to the warning later that day. In the meeting, he explained his inability to address the client’s request weeks earlier due to prior work commitments and deadlines.
The director again wrote to the lawyer and said:
“Your lack of communication with the client and with me, as principal of the firm, has brought the firm into disrepute and has damaged its reputation. I have had a long-standing relationship with this client.”
“That relationship has been adversely affected by your lack of communication and your failure to perform the task allocated to you in a timely and responsible manner. These actions are in breach of your employment contract,” the director added.
The employer scrutinised the attorney's internet browsing history (both personal and professional) around the time of the alleged underperformance and concluded that he had been “dishonest” about his work demands, suggesting that he had available time to complete the task but chose not to fulfill his responsibilities.
Based on these allegations of dishonesty, the attorney was summarily dismissed the following week for serious misconduct, without being afforded an opportunity to respond to the allegations against him.
Lawyer’s internet browsing history
The FWC said that the lawyer “chose to prioritise other activities over the [client’s] matter,” but said that he was not dishonest or that this was the reason for the dismissal.
“Rather, the valid reason for the dismissal was [his] poor performance and unsatisfactory conduct when the performance issue was brought to his attention which ultimately led to the [employer] losing trust and confidence in [him].”
“[The employer] had a valid reason for dismissal, it appears to have attempted to bring a swift end to the [attorney’s] employment upon discovery of browsing history which it submitted establishes ‘time wasted by the lawyer’ to be 7.32 hours over 4 days, not counting browsing during lunch periods as well as dishonesty during the disciplinary process.”
However, the FWC said that the employer’s “actions in bringing a swift end to [his] employment upon discovery of the browsing history have resulted in procedural deficiencies in relation to the dismissal, including a failure to notify [him] of the [true] reason for dismissal.”
The FWC still acknowledged the attorney's unsatisfactory conduct in addressing performance issues but ultimately deemed the allegations of dishonesty unfounded.
It also highlighted that the time spent browsing the internet did not equate to the time required for the client's work. Ultimately, the FWC said that the attorney should have been given a chance to respond to the accusations before dismissal. Thus, it found that his dismissal was harsh, and awarded him proper compensation.
