The attorney started employment in May 2021 on a full-time basis. In May 2023 the director of the firm raised concerns about the attorney’s lack of response to a client regarding a legal matter.

Rather than take steps to address the performance issue, the attorney criticised the director and responded that he would excuse himself from the matter as the information provided by the client was vague.

The attorney was directed to attend a formal meeting to discuss the alleged poor performance. His access to the client database and other workplace systems was suspended after the meeting. The attorney was also accused of being “aggressive and abusive” in the meeting.

A final warning letter was sent on 2 June 2023 inviting the attorney to review and respond to a final warning in a meeting later that day. There he stated that he was unable to act on the client request several weeks earlier due to his other work commitments and deadlines.

The employer reviewed the attorney’s internet browsing history (personal and professional) around the time of the alleged underperformance and formed the view that he was dishonest about the work demands because his internet use suggested he had time available to do the work but chose not to.

Based on the alleged dishonesty, the attorney was dismissed without notice the following week for serious misconduct. He was not given an opportunity to respond to the claims of dishonesty or the proposed dismissal.

Decision

The FWC considered the attorney’s poor response to the performance issues to be unsatisfactory conduct of itself.

Nonetheless, the FWC found that the claims about dishonesty were ill-founded and the time taken to browse the internet would not have been equivalent to the time required to do the work for the client.

The FWC also found that the attorney should have been given an opportunity to respond to the dishonesty claims and browsing the internet before being dismissed.

Considering all factors, the FWC found the dismissal to be harsh and awarded the Applicant compensation.

Learnings for business

It is very important to follow clear, consistent and fair processes when considering terminating employment, to minimise the risk of any dismissal being considered harsh, unjust or unreasonable by the FWC.

How the Victorian Chamber can help

Our experience Workplace Relations Consultants can expertly guide you through the necessary steps in any performance, conduct or disciplinary process.

Workplace Relations Advice Line

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line on 03 8662 5222.

Our experienced team are here to give you over-the-phone advice about human resources or workplace relations issues.

Fair Work representation

Managing claims in the FWC can be one of the most stressful and costly issues for your business. With help from our Workplace Relations consultants, you can rest assured our expertise is on your side.

Employment Termination

It is important to manage the termination of an employment relationship carefully to ensure you meet your legislative obligations, regardless of whether the employment contract is terminated by the employer or employee.