Mr Paul Lewis v Go to Court Franchising Pty Ltd T/A Go to Court Lawyers

[2017] FWC 4023

[2017] FWC 4023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Paul Lewis
v
Go To Court Franchising Pty Ltd T/A Go To Court Lawyers
(U2017/3171)

COMMISSIONER HUNT BRISBANE, 31 OCTOBER 2017

Application for an unfair dismissal remedy – whether a valid reason for dismissal – dismissal harsh unjust and unreasonable – application granted – compensation awarded

[1] On 23 March 2017, Mr Paul Lewis made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Go To Court Franchising Pty Ltd T/A Go To Court Lawyers (GTC Lawyers) was harsh, unjust or unreasonable.

[2] Mr Lewis was employed by GTC Lawyers on 21 March 2016 as a Senior Associate and Senior Civil Supervisor, including management of the firm’s civil matters in Queensland, New South Wales and Victoria. He was dismissed from his employment on 9 March 2017.

[3] GTC Lawyers did not raise any jurisdictional objections to the application, and I am satisfied there are no threshold issues required to be determined. Importantly, Mr Lewis’ earnings did not exceed the high income threshold pursuant to s.382(b)(iii) of the Act.

[4] GTC Lawyers made application to be represented at hearing by a lawyer other than an employed lawyer. At a telephone hearing on 3 July 2017, pursuant to s.596 of the Act I declined to grant leave to GTC Lawyers to be represented by a lawyer other than an employed lawyer. I had before me communication from Mr James Stevens, CEO of GTC Lawyers to Mr Lewis at the time of the dismissal, where Mr Stevens informed Mr Lewis that he had been a commercial barrister and commercial lawyer for 17 years. I considered that Mr Stevens was more than eminently qualified to represent GTC Lawyers if he wished to do so. Further, I was not satisfied the matter was sufficiently complex to require a legal representative other than an employed lawyer.

[5] The matter was listed for hearing in Brisbane on 6 and 7 July 2017. At the hearing Mr Lewis represented himself and Ms Michelle Makela, Managing Partner appeared on behalf GTC Lawyers.

[6] The following witnesses gave evidence and were cross-examined:

• Mr Paul Lewis;



• Ms Karen Woodland, Mr Lewis’ domestic partner at the time of the dismissal;



• Ms Michelle Makela, Managing Partner GTC Lawyers;



• Ms Melissa Jarvin, Solicitor GTC Lawyers;



• Ms Kristen Moore, Solicitor GTC Lawyers;



• Ms Sylvie Maranis, Victorian State Manager GTC Lawyers; and



• Mr Mitchell Cavanagh, Queensland State Manager GTC Lawyers.

Background

[7] Prior to commencing with GTC Lawyers, Mr Lewis was self-employed as a sole trader solicitor working in Sydney from his home office. Mr Lewis came to know Mr Stevens, as Mr Lewis performed a number of agency matters for GTC Lawyers.

[8] Mr Lewis agreed to commence working for GTC Lawyers, and he and Ms Woodland relocated from Sydney to south-east Queensland. Mr Lewis commenced working out of the Tweed Heads office, located in northern NSW in March 2016.

[9] On 2 June 2016, Mr Stevens and Mr Cavanagh conducted a first review of Mr Lewis’ employment with him. He was chastised for having billed to matters that did not hold funds in trust, and for not achieving enough billable hours. Mr Lewis considered that when he commenced he had been given ‘problem files’, or as Mr Stevens is said to have called them, ‘dog files’. 1 Most of these were old matters in which clients were disgruntled and for which there were no funds in the firm’s trust account to cover professional fees.

[10] Mr Stevens said to Mr Lewis, “Are you up to this role? I don’t see that you are!” Mr Lewis replied, “I have only been in the role for just over two months and am more than capable of fulfilling it [once] I have found my feet. I can and will do it!” 2

[11] In a second employment review conducted in September 2016, Mr Lewis was chastised by Ms Makela and Mr Cavanagh for not achieving the required billable hour’s target, however the managers then conceded that an incorrect formula had been used, and Mr Lewis had marginally exceeded his target.

[12] In a third review in December 2016, it was Mr Lewis’ evidence that he was complemented on a number of areas of performance.

[13] Mr Lewis prepared a strategic planning document during the Christmas 2016 period, and provided it to the firm in January 2017. The document identified concerns and problems with the practice area of civil litigation. Mr Lewis suggested ways to improve the practice. It was Mr Lewis’ evidence that Ms Makela informed him on receipt of the document, “Your strategy document has merit and warrants further discussion.” 3

[14] A fourth review was conducted by Mr Cavanagh on 1 March 2017. Mr Lewis had achieved 83% of billable target, and it was his evidence that Mr Cavanagh said to him it was a ‘stand out performance’ for the quarter.

The lion and the zebra email

[15] During this fourth review, Mr Lewis informed Mr Cavanagh that he was aware that the morale of solicitors he worked with was low because an email, considered inappropriate by some, had been sent by Mr Stevens to all staff. The email is referred to as the ‘lion taking out the zebra’ email. The email, in part is reproduced below, with original emphasis by Mr Stevens:

‘12 January 2017

Dear Legal Team,

Further to Michelle’s very important email, I would like to convey a few related concepts. I strongly suggest that everyone consider this email very carefully, because it directly concerns each of you.

our wages bill is now well over [redacted] per week. While this expansion of staff is in line with our “World Domination” strategy as previously outlined, it does require all staff to make budget for it to be viable. This means that we need to bill at least [redacted] per week to be financially sustainable for this many people (including initial consult fees). We currently average around [redacted] per week (including initial consult fees). Therefore, unless our received income from professional fees goes up by at least [redacted] per week over the next few months, some people are going to get fired;

If there is no improvement, the people who will be fired, of course, are the ones who are not making budget;

……..

……..

……..

6 from Monday 16 January, you are required as part of your contract of employment with us to record 8 hours a day, EVERY day. You need to get into the habit, immediately, of making sure you do not leave work until ALL your time for that day is recorded. You are also required to make budget. If you do not record all time, including non-billable time, on a daily basis, you make it impossible for us to know what you have done that day. We cannot run the business this way. We will not be happy. At all.

Up until now, we have given you the benefit of the doubt, generally speaking, and accepted your verbal explanations for missing timesheets.

Let me be very clear (in a nice friendly way) on this people – we cannot and will not continue to do this. There will, from this point forward, be no acceptable excuse for missing timesheets. Your 3^rd formal warning will also be your termination notice. That is to say – 3 strike and you’re out!

As you would expect, I take my obligations to pay each of you your wages every fortnight VERY seriously. I expect you to take your responsibilities to bill all time, and make budget, JUST as seriously.

As you know from my previous email about recent World Records achieved in the number of bookings we are making, the business is going very well. There are massive opportunities with Go to Court for each and every one of you. Having said that, those of you unwilling or unable to pull your own weight are, to put it simply, wasting your time and ours. Rest assured, the Lion will soon be catching up with any sick Zebras at the back of the herd…

………….’

[16] On 17 January 2017, Mr Stevens sent the following email to all staff:

‘Dear all,

It has come to my attention that, while we have had some great feedback about the new system of recording 8 hours a day, my email of last Thursday has caused concern amongst some staff.

A summary of the negative feedback I have received is:

(1) asking me to record 8 hours a day is “micro-managing” and unnecessary. Aren’t we trusted?’

(2) I don’t currently get enough work to make budget, so am I about to be fired?

(3) The Lion and the Zebra thing was over the top, and James is a $##@@!!!!!

I would like to provide you all with a response to these concerns, and I am happy to speak with any of you personally on [number] if you have any further concerns.

As for (1), the purpose of this exercise is not to micromanage, or because we do not trust you. I say this sincerely. The purpose is purely to make the business better for everyone. I have personally been to dozens of salary reviews, and I have heard dozens of our lawyers who have billed 15 hours a week struggle to tell us what they were doing for the rest of the week. This is because they did not record any of what they did and could not, of course, remember – because it was weeks later when they were being asked. We trialled the new system with the Salisbury PLT’s, to address this exact issue. The feedback we got was that it was a good idea because they, and we, could easily account for all of their time. It also helped identify time that WAS billable, but was not being captured. Quite a lot of it, in fact.

We are not interested in how long it takes you to go to the toilet. We are interested in knowing what you did all day in specific enough terms to help us run the business properly, but not in so much detail that it drives everyone mad. There are drop-down categories of time in Filepro to assist you in this. If you believe there should be more, or less, or different categories, please let us know.

Trust is very important. If we didn’t trust you, we would not continue to hire you. And trust goes both ways – you need to trust us that we are doing this because we think it will improve the quality of the business and the service that we provide – not because we are ##$$@@!!ers.

As for (2), I said very clearly below – If you tell us you don’t have enough work, and for whatever reason we still can’t get you enough work, you can blame us!

I’m not sure why this message didn’t get across to some people. No-one who is doing their job properly is in ANY danger of getting fired. We didn’t go to the considerable trouble to hire you just so that we could fire you for something that isn’t your fault! If you are not getting enough work, again, just tell us! The only people in danger of being fired are people who are not making budget despite having more than enough work to do so. We would only fire someone for this if they had been given proper warnings and every opportunity to fix the problem.

Going forward, we are getting record numbers of bookings. We received [number] yesterday, which is (yet another) world record. There will be enough work to go around, and new people simply need to be patient and build up their practice. So again, I assure you – if you do your job properly and follow the procedures we have asked you to follow, you job is very secure. In 7 years we have never fired a person because we did not have enough work for them.

As for (3), what can I say? If you don’t like my sense of humour, you wouldn’t be the first to say so! The tone of the email, upon sober reflection in the cold light of day, may have seemed a bit severe to people who don’t me very well (and maybe even to some who do). I sued this tone because I felt everyone needed to know how important making budget is to the sustainability of the business. If [I] offended anyone, I do apologise.

Kind Regards,

James’

[17] The email then concluded with a cartoon of a lion and a zebra standing on their hind legs, shaking hands while smiling at each other.

[18] Mr Lewis’ evidence was that when he informed Mr Cavanagh that a number of staff had been unhappy about the email, Mr Cavanagh replied that he had encouraged Mr Stevens to send out the email of 17 January 2017 as an ‘explanation’. Mr Lewis contended the following was discussed:

Lewis: Yes, good staff will be looking for a new job and the ones that aren’t up for it will be looking for ways to hide their tracks.

Cavanagh: Sometimes James shoots from the hip. We have a new policy of written warnings prior to dismissal so that staff will feel more secure this is getting implemented as we speak.

Lewis: So we’re putting a system in place just as we tell our clients they have to have?

Cavanagh: Yes

Case management and supervision of various matters

[19] Mr Lewis was working largely in a supervisory capacity in respect of a number of matters during 2016 and 2017. Where I refer to the files or matters below, I have used a pseudonym to protect the anonymity of the clients of GTC Lawyers, and I have made an Order to that effect [PR597246].

Hart litigation

Ms Moore’s evidence

[20] Ms Moore commenced employment with GTC Lawyers on 27 February 2017, and holding a restricted practising certificate, she was required to be supervised by a lawyer with an unrestricted practising certificate. Mr Lewis, while performing work from Tweed Heads supervised Ms Moore’s work in Victoria.

[21] Ms Moore inherited a number of civil files, and it appeared to her that there were a substantial number of concerning issues with the files.

[22] Ms Moore held concerns with respect to a file with a client, Mr Hart, as the proceedings were listed for a Pre-Hearing Conference on 8 March 2017. Ms Moore considered that with information she had received from the client, the prospects of succeeding were poor, and she encouraged the settlement of the matter. From early March 2017 she determined that there were not enough funds in the trust for the firm’s attendance at the Pre-Hearing Conference.

[23] Ms Moore attempted to contact Mr Lewis by phone on 1, 2 and 3 March 2017. She left a voicemail on each occasion informing Mr Lewis she wished to discuss the Hart matter. On 6 March 2017, Ms Moore and Mr Lewis spoke on the telephone, with Ms Moore raising with Mr Lewis all of the concerns she held. Mr Lewis informed her he would speak to Mr Hart, as he had developed a good rapport with him.

[24] Ms Moore considered the fact that Mr Hart had removed roadworthy tyres from his vehicle, and replaced them with tyres that were not roadworthy to be a significant issue as to the legitimacy of Mr Hart’s litigation. It was Ms Moore’s evidence that Mr Lewis confirmed to her he knew of this fact.

[25] On 7 March 2017 at 9.53am, Ms Moore sent an email to Ms Maranis outlining concerns she held with respect to three matters; Hart, Smith and Jones. With respect to the Hart matter, Ms Moore reported to Ms Maranis that she had spoken with Mr Lewis the day before, and Mr Lewis had stated that he would call the client as soon as possible. Ms Moore held concerns that Mr Lewis had not yet done this, and time being of the essence, the firm needed to act promptly, especially if the firm was going to cease acting for the client.

[26] At approximately 10.34am, a conference call was held between Ms Maranis, Ms Moore and Mr Lewis. Ms Moore outlined her concerns, and Mr Lewis stated he had not yet called Mr Hart. Ms Moore stated that she held concerns that the firm had not complied with Rule 42A.01 of the Magistrates Court General Civil Procedure Rules 2010 (Victoria), and a costs application had been foreshadowed by the other party. Ms Moore recommended that to limit the firm’s potential liability in the matter, there should be attendance at the Pre-Hearing Conference, and attempts could be made to settle the matter before it went to hearing.

[27] Mr Lewis stated that he would contact the client to seek further payment by the client into the firm’s trust account to allow Ms Moore to attend the Pre-Conference Hearing. Ms Moore held concerns that Mr Lewis did not seem to be aware of the requirements of the Court rules in Victoria, and among other concerns held by Ms Moore, Mr Lewis did not offer any alternative solutions to the problem at hand.
[28] The client ultimately withdrew his instructions to the firm on the eve of the Pre-Hearing Conference. Ms Moore prepared a draft notice to the Court of the firm ceasing to act. Ms Moore attempted to call Mr Lewis to have him review the notice. Mr Lewis did not respond to Ms Moore’s call or text message sent at 12.52pm on 7 March 2017.

[29] Ms Moore’s Office Manager held an unrestricted practising certificate and was able to review the Notice before filing.

Ms Maranis’ evidence

[30] With respect to the Hart matter, it was Ms Maranis’ evidence that from 3 March 2017, Ms Moore brought this matter to her attention, and it was evident that she was becoming quite stressed as the file appeared to be a mess. Further, Mr Hart contacted the firm on 3 March 2017 wishing to speak to a partner of the firm. Ms Maranis attempted to call Mr Hart, however he did not take her call.

[31] By 7 March 2017, Ms Maranis was frustrated with Mr Lewis’ failure to contact Ms Moore or any other person to discuss the Hart matter, together with other files. Finally Mr Lewis contacted Ms Maranis by phone on 7 March 2017, and she joined him to a conference call with Ms Moore referred to at [26] above.

[32] In discussing the Hart matter, Mr Lewis stated that despite the client’s swapping of the tyres he still considered the litigation an action that Mr Hart could reasonably pursue, even if the swapping of the tyres had somewhat diminished his cause of action.

[33] When Ms Moore stated that the firm might be in breach of the court rules regarding subpoenas being issued, Mr Lewis replied, “Well yeah we might be.” Mr Lewis then said, “Even if costs are awarded it won’t be much.” Ms Moore stated it would likely be around $3,000, to which Mr Lewis replied that this “…wasn’t a big deal.” 4

Ms Makela’s evidence

[34] Ms Makela became aware of Ms Maranis’ concerns regarding Mr Lewis on the morning of 7 March 2017. She instructed Ms Maranis to forward to her the email outlining the issues, and asked Mr Lewis to urgently make contact with Ms Maranis to discuss. She informed Ms Maranis that if the issues weren’t resolved to her satisfaction, she should further contact her.

[35] In Ms Makela’s witness statement 5, it was her evidence that she held immediate concerns about the risk and potential liability to the firm as it could result in a negligence claim against the firm. She considered the exposure might include having to notify Lexon, the firm’s insurer; a complaint might be made by the client to the Legal Services Board; or a refund to the client might need to be issued. None of these concerns were articulated to Ms Maranis or to Mr Lewis.

[36] On 7 March 2017, Ms Makela and Mr Cavanagh spoke to discuss their concerns regarding Mr Lewis’ conduct. On 8 March 2017 they spoke again, where Mr Cavanagh discussed with Ms Makela concerns he held over Mr Lewis’ conduct in the Smith litigation.

Mr Lewis’ file note – Hart matter

[37] Mr Lewis contacted Mr Hart on 7 March 2017 and made a file note of the conversation. Relevant extracts of the file note follow:

‘…..Client was advised as to the merits of this offer and urged to seriously consider accepting. Client instructed that he refused.

Client instructed that the last solicitor he spoke with had said we need a further $3,000.00 to appear tomorrow and continue with the matter.

PL informed of status of account, currently $268.38 outstanding with $280.00 unbilled and confirmed that we would need funds in Trust to continue, in line with our CA [costs agreement] we cannot work when the file is in the red.

Client expressed that this has already cost him so much and he fears that the changes in solicitors has resulted in double billing.

PL accepted that there had been changes in solicitors, noting that [name] left our employ for health reasons, and assured Client that he has not been double billed…..

Client expressed that he has lost all confidence in GTC due to the number of solicitors that have worked on this matter and the progression of the matter generally.

……….

Client: “There is no point having your office appear at court for me tomorrow, all you want to do is gouge extra money from me. …..”’

Smith litigation

[38] Having been alerted by Ms Makela as to concerns the firm had with Mr Lewis, on 8 March 2017 Mr Cavanagh inquired of Ms Melissa Jarvin, Solicitor if she held any concerns regarding Mr Lewis’ supervision of her. Ms Jarvin was located at GTC Lawyers’ Strathpine office in Brisbane. On 8 March 2017, Ms Jarvin reported the following:

(a) In or around May 2016, it became apparent that Mr Lewis, in supervising Ms Jarvin’s work on the Smith litigation, had approved proceedings with an incorrectly named plaintiff;

(b) The client needed to be granted probate relating to an estate

(c) The proceedings were filed in the name of “The Estate of John Alfred Smith”, whereas they should have been filed in the name of “William John Smith as Executor of the Estate of John Alfred Smith” (pseudonyms used);

(d) The defendant in the Smith proceedings was seeking costs of approximately $1,100 for the ‘unlawful’ commencement of the action.

[39] On 24 March 2017, subsequent to Mr Lewis’ dismissal, Mr Cavanagh recommended to Ms Makela a credit of $1,100 to the client relevant to the costs for the other side. Ms Makela questioned Ms Jarvin:

“Hi Melissa Why would it cost the other side for us to amend the name. It doesn’t change their pleadings at all does it?”

[40] Ms Jarvin explained to Ms Makela that the defendant had been corresponding that it would not consent to a name change. Ms Makela responded:

“OK – that is a very rookie mistake one which Paul or [name] should have known – an estate is not a legal entity so can no sue or be sued in its own right it always has to be the executor – this is the same for Trusts.”

[41] On 24 March 2017, Ms Jarvin emailed Ms Makela and Mr Cavanagh stating:

“….So I need to be advising the client we screwed up? When Paul first discovered we were wrong, he told me to keep quiet about it and just advise the client we need to obtain a grant just so that no questions are asked later. I really should have told the client ages ago about this mistake then. I worry he will very upset if I tell him 10 months later..”

[42] Mr Cavanagh’s evidence at [33] of his witness statement stated the following:

‘It was further established to my and Ms Makela’s satisfaction that the applicant had directed Ms Jarvin not to mislead the client about the error in the [Smith] matter. Ms Jarvin emailed me ….on 24 March….”

[43] Mr Cavanagh referred to the email in [41] above. There is no evidence before the Commission that Ms Jarvin reported to Ms Makela or to Mr Cavanagh prior to Mr Lewis’ dismissal her concerns that she alleged Mr Lewis had asked her to mislead the client.

Jones litigation

[44] The Jones litigation involved Mr Jones, who resided in Victoria, seeking an action for damage to his vehicle when he was involved in an accident in far-north Queensland. The other vehicle involved in the accident was a motorbike registered to a company in Queensland.

[45] Work was performed by the firm on the Jones file, and proceedings were commenced in Victoria. The Magistrates Court of Victoria struck out the proceedings on the basis that a Victorian Court does not have jurisdiction to hear the application, and it should have been filed in a Queensland Court.

[46] Mr Lewis had performed work on the matter between November 2016 and February 2017. Other lawyers had worked on the file; however the majority of the work from practitioners was those with restricted practising certificates and law clerks.

[47] In the telephone conference on 7 March 2017 between Ms Maranis, Ms Moore and Mr Lewis, it was Ms Moore who identified that the proceedings should never have been commenced in the state of Victoria. Ms Maranis’ evidence was that she could not recall what Mr Lewis said when this was put to him, however it was agreed the work would now be performed by a colleague in Brisbane. 6 Ms Maranis considered Mr Lewis’ attitude with respect to the Smith and Jones matters to be very nonchalant.7

Ms Makela’s concerns raised with Mr Stevens

[48] Ms Makela gave the following evidence:

‘On the 8 March 2017, I spoke by telephone to Mr James Stevens, advising him that Mr Cavanagh and I had concerns regarding the Applicant and his supervision of civil files, and that we had been informed of crucial mistakes made on 3 Victorian civil files, and 1 Queensland civil file. I did not go into the individual cases with Mr Stevens but mentioned that the errors revealed were commencing proceedings in the wrong jurisdiction, commencing proceedings with the incorrect plaintiff who had no standing, and incorrect court procedures being followed, and advised him that the errors pose a risk and potential liability to Go to Court Lawyers, and he was not capable of doing his job.’

[49] There was no further discussion with Mr Stevens relevant to the concerns Ms Makela held as to Mr Lewis’ conduct or capacity in handling various files.

Emails between Mr Stevens and Mr Lewis – 8 March 2017

[50] Mr Lewis was unwell on 8 March 2017 and did not attend for work. His evidence was that he did some work from home and reviewed some emails.

[51] On 8 March 2017 at 1.16pm, Mr Cavanagh sent to Mr Lewis the following email, and copied in Mr Stevens and Ms Makela:

‘Paul

Here are the WIP figures for this week.

…..

…..

You have not entered any billed time since last Friday. Why is that so? You need to remedy this immediately. James has already sought an explanation today from another office manager who was entering their WIP. You should anticipate a similar request…….’

[52] Mr Stevens sent an email to Mr Lewis at 2:18pm on 8 March 2017, together with Mr Cavanagh and Ms Makela in the following terms: 8

‘Paul

It is a breach of your contract not to enter time daily.

Further, how can you expect your people to do this when you are not doing it yourself???

What is the problem??????

…’

[53] Mr Lewis was at home that evening when he drafted a response to Mr Stevens. He asked Ms Woodland to review the draft email because Mr Lewis considered that Mr Stevens might react badly to anything that he might perceive as a challenge to his ‘ultimate authority within the firm’. At 7:54pm that evening Mr Lewis sent the following response: 9

‘James

I reply to all recipients of your email and include Tricia as a ‘CC’ on the basis that she fills the role of ‘National Practice Manager’.

The time entry issue that you refer to has been rectified and I am up to date. You are of course correct in that not having them done was remiss of me. As the entries have been logged before the billing day and therefore not affected the cash flow of the firm, I suggest that any breach of contract on my part is minor in nature. There are discussions that we might have on other breaches of our contract; I reserve these for the time being.

As to your question “What is the problem??????”:

The number of question marks that you utilise suggests that the question is of a broad nature and would therefore require a long answer? As a general and time efficient answer I say for now, that in my attempts toadequately [sic] perform the role that I was/am employed to fulfil, there are quite a few ‘problems’.

A precis of these ‘problems’ and a strategic plan as to solutions was put to Michelle back in early January and then passed on to Mitchell around that time. I have subsequently been told that the issues I have raised and solutions I proffer are of high merit and warrant further discussion. To this end I have been assured that a face-to-face meeting to discuss the identified problems and suggested solutions would be forthcoming. To date, I am still awaiting a third booking for such a meeting after the first two were cancelled.

Should I have misinterpreted your question “What is the problem??????” by assuming it was broad in nature; I invite you to define the issues that you want answered in more detail such that I can adequately address any concerns you might have.

Taking the liberty to pre-empt: I am not writing this response with a view to being a smart arse or anything of the sort. To the contrary, for the last twelve months I have been earnestly trying to fulfil the role that you and I agreed upon my fulfilling and I say:

• It is not a coincidence that the civil side of the practice is growing;



• It is not a coincidence that less work is being done on civil matters that do not have money in Trust;



• It is not a coincidence that, although still too high, the numbers of complaints by civil clients is declining;



• It is not a coincidence that our civil solicitors are obtaining better results for our clients;



• It is not a coincidence that the number of “dog files” has been greatly reduced, and;



• It is not a coincidence that we now have a core group of somewhat capable civil solicitors.

What is surprising, however, is that I have achieved the above for GTC with minimum to zero support and whilst being granted none of the control mechanisms that a practice area manager would ordinarily expect as a given.

The relationship between you and I is important to both of us – You are the employer and I am employed tomanage [sic] the civil law practice area of your national firm. Notably, this email to which I respond is the first one that you have directly addressed to me in the 12 months I have been employed in this role.

If you want to have a positive input and help me to grow your business stature and profitability I would of course welcome it.

…’

[54] Mr Stevens replied at 9:23pm that evening, copying in Mr Cavanagh, Ms Makela and Ms Tricia Habjan, stating:

‘Paul,

Thank you for your email.

While my email to you was intended to address one concern; namely, your consistent inability to record time on a daily basis, it is quite apparent from your extensive comments that your continued employment with us is untenable.

You are hereby given 2 weeks notice. You are not required to attend for these 2 weeks.

A more complete notice of termination will be provided in due course.

…’

[55] Mr Lewis’ access to GTC Lawyers’ emails was subsequently blocked and Mr Lewis did not receive, or was not able to access the email sent by Mr Stevens terminating his employment. The following morning Ms Makela contacted Mr Lewis by telephone. There is some contest about the precise words used. Mr Lewis’ evidence is the conversation went as follows: 10

‘Ms Makela: Have you seen James’ email?

Mr Lewis: Yes I replied to it.

Ms Makela: No, I mean the one he sent in reply to your reply.

Mr Lewis: No, the one I did reply to is the last one I have seen, why?

Ms Makela: Your employment has been terminated effective immediately. You might not have got it because you have been blocked from the system.

Mr Lewis: What for? What about the matters I am working on?

Ms Makela: James didn’t like your email; we will take care of your files from here. You are not required to work your two weeks’ notice period. Please take your computer and keys into the office, pick up your personal belongings and leave.

Mr Lewis: But this doesn’t make sense…

Ms Makela: I am told not to discuss this further, that’s it.’

[56] Ms Makela’s evidence largely concurred with that of Mr Lewis, except that she asserted that she stated to Mr Lewis he was terminated for “serious misconduct" and the reason she had given to him was that it “relates to your supervision of civil matters and your comments in the emails yesterday”. 11

[57] Mr Lewis then sent an email to Mr Stevens (from his private email account) confirming that he had not received the email from him terminating his employment because his system access had already been blocked. Mr Lewis requested that Mr Stevens re-send the email that was sent. 12

[58] In response, Mr Stevens sent Mr Lewis the following email at 9.42am on 9 March 2017:

‘RE: Summary Dismissal

Further to your discussion with Michelle this morning, this email is to provide you with written notice of your termination, and the reasons for it. You are hereby given 2 weeks’ notice. You are not required to work out the 2 weeks’ notice. You are not required to work out the 2 weeks.

Your Email to Senior Management of 8 March 2017

Your email was of great concern to us on numerous levels.

For example:

(a) you acknowledged your breach of contract, but maintained that it was of a “minor nature only”. You were employed as an office manager, and one of your main responsibilities was to ensure time is entered on a daily basis by all staff. The fact that you were not doing it yourself, despite multiple warnings, is bad enough; the fact that you (still) think the ongoing breach is “minor” means that you simply do not understand your obligation to junior staff, and to this firm, and that you are unfit to be in a position of management;

(b) your comment “There are discussions that we might have on other breaches of our contract; I reserve these for the time being” is a direct threat; you are apparently reserving your rights to sue this firm for alleged (but unspecified) “breaches of contract”. While you are of course entitled to reserve whatever you like, we cannot maintain the employment of someone who is threatening to sue us.

(c) your comment “I have achieved the above for GTC with minimal to zero support and whilst being granted none of the control mechanisms that a practice area manager would ordinarily expect as a given”. This indicates you have no respect for your colleagues and the vast amount of assistance and support they have given you since you accepted the role – including, to start with – paying for your family to move here! Any ongoing professional relationship, given you unfortunate attitude, is unsustainable;

(d) the general tone of your email, which was sent to me and also addressed to other senior staff. While you have said you are not “writing this response with a view to being a smart arse”, you then proceed to do exactly that, and worse. Your email is rude, contemptuous, arrogant and self-aggrandising. Again, any ongoing professional relationship, given your unfortunate attitude, is unsustainable.

None of these major concerns can be addressed in any way except immediate termination. They cannot be remedied, as they relate directly to your attitude to your job and this firm.

2 Your Professional Abilities

As you know, you were strongly criticized by me at a review last year for (in part) believing that your abilities were greater than they actually are.

This is a particularly dangerous attitude for a commercial lawyer to have.

It is apparent that, since this review, you have made a number of serious mistakes in your work and consequently given junior lawyers the entirely wrong advice…

We are all aware that, in your mind, you are a very experienced and astute commercial lawyer – as is evidenced in part by your attitude when your mistakes are brought to your attention. I have been a commercial barrister and also a commercial solicitor for 17 years. I have known, and still know, dozens of astute and experienced commercial and civil lawyers, and I can tell you quite honestly and accurately that you are not anywhere near as skilled and experienced as you think you are. In my view, and with all due respect, you should re-evaluate your career path, as such an over-estimation of your own abilities in the world of commercial and civil law will inevitably lead to disaster. Understandably, we do not wish to be part of that impending disaster, and therefore we have no option but to terminate your employment now.

Mitchell Cavanagh will be sending you a more detailed breakdown of the mistakes and erroneous advice referred to in (2) above.

I will not be entering into any further communications with you.’ (original emphasis)

[59] Later that afternoon Mr Cavanagh sent to Mr Lewis the following letter:

‘Paul Lewis

RE: TERMINATION OF EMPLOYMENT

Further to Mr Steven email of today’s date I advise a number of matters have recently come to our attention which demonstrate conduct in the course of your employment that poses an unacceptable risk of damage to the firm’s reputation and exposes the firm to potential liability.

[Detailed reference to the Jones matter]

Identification of the correct jurisdiction in this matter demands only a basic knowledge of civil procedure and practice. You have failed to identify the issue with jurisdiction and approved filing the proceedings in the wrong jurisdiction despite reviewing an advice to the client and on three (3) separate occasions reviewing the offending pleadings which disclose no basis for filing in Victoria.

This conduct in the course of your employment indicates you either lack the required skills and experience (you asserted you had) to fulfil the role, or that you have been grossly negligent in your attention to matters in your role as supervising solicitor, or both.

Your conduct presents an immediate risk to the reputation of the practice. Your conduct has created an immediate risk of liability for the practice. These risks cannot be mitigated given the position you held required a solicitor to act without supervision and that we can as a matter of professional responsibility entrust a solicitor to do so. We cannot reasonably trust you to perform that very important role in light of your management of the matter of Hart.

We note further issues have and are coming to light. We do not consider it necessary to particularise those matters at this time given your conduct as outlined above is more than sufficient to demand the action we have now taken.

Yours Faithfully

Mitchell Cavanagh

Queensland State Manager

Go To Court Lawyers’

[60] A further letter was sent to Mr Lewis nearly four weeks later on 3 April 2017 13 and approximately two weeks after the application to this Commission was made. In fact, the letter dated 3 April 2017 was sent to Mr Lewis the same day GTC Lawyers filed and served a Form F3 Employer Response Form in this matter. The letter is reproduced below:

‘Dear Mr Lewis

RE: Termination of Employment

We refer to our letter of termination dated 9 March 2017, and as advised further issues had been brought to our attention regarding your supervision of the civil matters which required further investigation.

As a result of the further investigations, we advise the following negligent legal advice had been provided to the solicitors in which you were supervising:

Smith

A Statement of Claim was filed by our office. The Statement of Claim incorrectly named the plaintiff as [name]. The Statement of Claim should have named the Plaintiff as the Executor on behalf of the Estate. Probate had not even been obtained authorising the Executor to act.

The defendant in that matter filed a Notice of Intention to Defend and Defence taking the point the proceeding has to be brought by a representative of the Estate, that Probate had not been granted and that therefore it was unnecessary to otherwise respond to the claim.

We have recently approved payment from trust of $1,100 to meet the costs thrown away by the other party as a condition of their consent to amend the Statement of Claim.

This was a very basic error. It has cost the firm financially. It is an error that has the potential to cause serious damage to the firm’s reputation both with the client and Court registry.

An additional and very serious concern is that you directed a junior lawyer under your supervision, Melissa Jarvin, not to advise the client of the issue. This was clearly a dishonest attempt by yourself to cover up the matter though the error had exposed the client to additional liability.

The matter only came to the attention of management shortly prior [to] your dismissal when it was necessary to process the request the firm meet the costs of the other party.

Hart

Concerns about the manner in which the file was managed were identified when an experienced civil lawyer recently joined our team in Victoria and reviewed files. Although the matter was listed for a prehearing conference it was identified we had not requested any particulars of the defence; nor had we issued a notice of discovery. We had issued subpoenas but they were defective (and not likely to assist our client’s case). We had been put on notice that the other side will be seeking a costs order in relation to the defective subpoenas. The address on one of them was not in keeping with the court rules and service on the solicitor for the other side was out of date. We had not sought leave at an interlocutory hearing to issue subpoena to an individual not a party to the proceedings as required by the rules. Further, there appears there was very little basis for our client’s claim, he had no evidence to support his loss of use claim, his key claim for [amount] was a direct result of his actions (modifying the vehicle after purchase) and not likely to succeed and the contract of sale did not support our clients position.

You were contacted about these concerns when they were identified by another lawyer 2 days prior to the pre-hearing conference. You indicated you would call the client urgently. That was not done promptly and it was necessary to request repeatedly for you attend to the matter.

You recorded 366 minutes time spent on this file including attention to case strategy and the subpoena. A certificate certifying the merit of the claim was signed by one of our lawyers under your supervision.

Ralph

The Defence approved by yourself and filed in this matter incorrectly admitted the Plaintiff’s claim which was denied on our client’s instructions. Indeed there was no utility in filing a Defence if that admission was made.

Long

The Statement of Claim approved by yourself and filed sought orders the defendant was liable for a debt. There was no basis for that claim as pleaded as the assignment of the debt was not in writing as mandated by Instruments Act.

A systemic issue was identified in that letters of demand were routinely issued by yourself in Victoria seeking not only payment of a debt or damages but legal costs. The claims for legal costs was not proper. Similar claims have resulted in matters being referred to the Legal Service Commission.

The above including the negligent advice provided in relation to the Hart matter outlined in our letter of 9 March 2017 resulted in your immediate termination due to serious misconduct.

Yours sincerely

Michelle Makela

Principal

Go to Court Lawyers’

Evidence of Ms Michelle Makela

[61] Ms Makela conceded in cross-examination that the firm was relatively stretched by having at the very most, 12 solicitors with unrestricted practising certificates supervising another 68 or so solicitors across the country.

[62] In questioning from the Commission, Ms Makela acknowledged that with respect to the Smith matter, she was the supervising solicitor from 9 March 2016 until 23 March 2016 when Mr Lewis took carriage of the supervision. The following was put by the Commission and answered by Ms Makela: 14

‘I see.  So you've reviewed the claim and you've considered strategy.  So do you take any responsibility for the fact that the plaintiff was incorrectly named for the period between 9 March when you reviewed it and 23 March when Mr Lewis then took carriage of the supervision?---Hindsight, I should have been more specific with Ms Jarvin as to the reasons she needed to look into the plaintiff and the errors in the statement of claim.  I should have probably identified it more specifically.  I did ask her to talk to Mr Lewis about the plaintiff and she advised that she had done that.

Because Mr Lewis takes it on or starts supervising on 23 March, I understand it's then filed on 4 April?---Yes, Mr Lewis made some amendments, some suggestions to Ms Jarvin who adopted those and then he authorised it for it to be filed.

So you accept some responsibility for that period where you were supervising Ms Jarvin?---I only saw that document once and I advised Ms Jarvin that there were errors and that she needed to talk to him about the plaintiff and the contents of it, yes.  Because we'd received the statement of claim with that same plaintiff, from another solicitor, so I wanted her to sit down and go through it properly with the new civil solicitor, to make sure we got it right.

In cross-examination of Mr Lewis you've been critical of him?---Yes.

For not checking things while he's been the supervisor.  So can the same be said of you for not ensuring that Ms Jarvin came back to you within that period of time and simply saying Mr Lewis starts then that's when it needs to be at the pointy end?---I didn't ask her to come back to me.  I asked her to hold off under Mr Lewis started so she could sit down with him and go through it.

…

But your evidence is that you identified in that meeting that the plaintiff might not be correctly named?---Yes.

But you didn't ensure that that was something that she then took onto that meeting with Mr Lewis when he started?---No, she told me that she would discuss that with Mr Lewis, yes, but I did not follow up to make sure that it had been discussed or changed.’

[63] Ms Makela acknowledged the following in cross-examination: 15

‘My question is, the first time it was signified to me that the firm considered these errors so serious that it warranted termination was after the termination had taken place?---After you had been told you were terminated, yes.’

[64] She also stated that when she and Mr Cavanagh were discussing Mr Lewis’ performance on 8 March 2017, 16 they considered termination would be in the ‘pipeline’, and it was something they were going to attend to. Ms Makela stated, “…James attended to it instead on that evening.”17

[65] Ms Makela initally gave evidence that she and Mr Cavanagh had determined that Mr Lewis’s employment would need to be terminated. On further questioning from the Commission, and noting that nowhere in Ms Makela or Mr Cavanagh’s witness statement had this been put, Ms Makela’s evidence moved to a conclusion she and Mr Cavanagh reached that they ‘may have to terminate him for that’. 18

[66] Ms Makela confirmed that when she spoke with Mr Stevens on 8 March 2017, she did not discuss the specific matters over which she and Mr Cavanagh held concerns in respect to Mr Lewis’ conduct. 19

[67] The following questions were put by the Commission and answered by Ms Makela: 20

‘Did you intend to put anything to him for him to respond to? ---Yes, Mitch and I were going to - - -

Well, your earlier evidence was that you're relying on the conversation that Ms Maranis had with him? --- That Ms Maranis, yes.

What are you saying now?---Well, I don't know if we were going to because James terminated him the next day.  So we were gathering our information.  We hadn't set out a structure, this is what we're going to do.  It was the conversation that his ability is not able - he hasn't got the ability to perform this role.’

[68] Ms Makela stated that she was responsible for the Human Resource management for the firm. I asked her how she would have terminated Mr Lewis’ employment [with relevant procedural fairness]. She answered: 21

‘We would have probably provided him with the opportunity to sit down and review those issues and then we would have terminated him.

So that opportunity was taken out of your hands was it by Mr Stevens?---Yes.

Would you have followed the policies and procedures of the firm that you've attached in your statement at page 11 of your statement, following your statement annexures.  You can see that there's any issues following from paragraph 5.1 being employment obligations and KPIs applying to solicitors?---Yes.

Just above "Formal warning letter".  It says there, "Further, there are of course other breaches of your contract that may result in a show cause letter including repeated client complaints or unacceptable work place behaviour"?---Yes, this is not - sorry, not implying in regard to serious breaches, serious misconduct breaches, these are KPI - - -

Well, even on the serious misconduct breach wouldn't you put that to the employee for them to respond?---Yes, that's what I said, if Mitch and I had done it we would have put together a letter outlining his reasons for termination and then terminating him.’

Evidence of Ms Melissa Jarvin

[69] Ms Jarvin gave evidence relevant to the Smith matter. Ms Jarvin commenced with GTC Lawyers on 11 February 2016 with a restricted practising certificate. She was supervised by Ms Makela until around 21 March 2016 when Mr Lewis commenced with GTC Lawyers.

[70] Ms Jarvin confirmed that she did not meet Mr Lewis until 23 March 2016, and at that meeting the Smith matter was discussed. On 9 March 2016, Ms Jarvin had sent an initial draft of a Statement of Claim in the Smith matter to Ms Makela for her to review. Ms Makela telephoned Ms Jarvin and informed her that the Statement of Claim needed some work and should be amended.

[71] I inquired of Ms Jarvin if she considered Ms Makela equally at fault as to the incorrect plaintiff’s name if she had supervision of the matter until 23 March 2016, and had identified with Ms Jarvin on 9 March 2016 the incorrect name of the plaintiff. Ms Jarvin answered that she did not consider Ms Makela to be responsible for the incorrectly named plaintiff, and it was Mr Lewis’ responsibility to have identified that before it was filed.

[72] I put to Ms Jarvin that she had worked on the file between 9 March and 23 March, purportedly under Ms Makela’s supervision, and charged the client, and therefore shouldn’t Ms Makela shoulder some of the responsibility? Ms Jarvin was loyal to Ms Makela and denied any responsibility of Ms Makela.

[73] When the issue as to the incorrect plaintiff being named became apparent to Ms Jarvin in May 2016, she had a telephone conversation with Mr Lewis on 4 May 2016 to the following effect:

‘Mr Lewis: I have my heart in my mouth. I was wrong. I have just spoken to a barrister friend of mine who has said we need to obtain probate and that the plaintiff’s name should be our client’s name as executor of the estate.

Ms Jarvin: What do I do? What do I tell the client?

Mr Lewis: Don’t specifically tell the client we were wrong. Instead tell them the Defendant is being difficult so we should obtain a Grant of Probate before moving forward so there aren’t any questions down the track just to be safe.’

[74] Ms Jarvin’s witness statement attests to her having an ‘impression’ from what Mr Lewis had said that she and Mr Lewis should ‘basically hide’ their mistake. Ms Jarvin considered that the issue should have been raised with the client, and the client afforded a discount. Ms Jarvin stated she could not be sure if she raised her concern with Mr Lewis.

[75] It should be noted that when Mr Cavanagh made inquiries with Ms Jarvin on or about 8 March 2017 as to any concerns she might have with respect to Mr Lewis’ supervision, Ms Jarvin did not make any assertions to Mr Cavanagh at this time that she had been directed to, or it was implied that Mr Lewis had asked her to cover the issue up. She reported to Mr Cavanagh only that there had been an issue regarding the incorrect naming of the applicant on the statement of claim. 22

[76] In cross-examination, Mr Lewis challenged Ms Jarvin as to whether she simply had an impression he wanted to hide the error, or whether Mr Lewis directly informed her to deliberately refrain from disclosing the error from the firm’s client. The following exchange occurred: 23

‘Well you think it's quite clear.  Did I say hide the mistake?---You basically did, yes.

Well that's not what your statement here says?---From the words that you said, it was quite clear.

There's a difference, would you agree, in what you've just said from the words you said, "it was quite clear" is different from saying you said it?---Yes, they are different.

They are different, aren't they?  They are.  So I will accept from you here that from the words I said you had the impression, you thought that's what I was saying, that's your evidence isn't it?---I asked you what I should tell the client and you told me to tell them what - basically just to cover it up.  So that - the other side were being difficult and so they didn't ask questions we should obtain probate.  As opposed to saying we made a mistake and we need to amend this and we need to decide whether we need to discount your file and whatnot, which I think is probably what should have happened.

Yes, I agree.  So I basically said it.  I didn't specifically said it.  Your impression was that that's what I wanted?---Yes.

Is that right.  You accept then - accepting that, you also accept that that is different from me saying lie to the client or do not tell the client.  They're different, yes?---You never told me to lie.

Thank you?---You told me to, I guess, not tell the full truth.’

[77] Mr Lewis again challenged Ms Jarvin where she stated in her evidence that she had informed Ms Makela and Mr Cavanagh that Mr Lewis ‘had told me not to tell the client’. Mr Lewis put to Ms Jarvin that he had not said that to her, to which Ms Jarvin responded, “Well, as I said, it was implied through the conversation.” 24

[78] Ms Jarvin’s evidence wavered, or her inexperience was apparent when she attempted to inform the Commission that the Smith estate was only valued at around $3,000 or $30,000. Mr Lewis provided his hand-written diary notes to demonstrate the estate could be worth more than $200,000 if the client the firm represented sought to recover a $193,000 loan to a third person from the estate.

Evidence of Ms Kristen Moore

[79] In evidence relevant to the Hart matter, Ms Moore stated that she had spoken with Mr Hart about the defence that had been put on by the defendant in the matter, and Mr Hart had informed her that he had taken roadworthy tyres off the car and put older, unroadworthy tyres on the car.

[80] It was Ms Moore’s evidence that when she spoke with Mr Lewis on 6 March 2017 to discuss the issue, Mr Lewis stated words to the effect, “Yes, he has said this to me.” 25

[81] Mr Lewis considered that a great deal turned on whether the client had informed Mr Lewis that the older tyres were unroadworthy or not. It was Mr Lewis’ evidence that he had not ever been informed by the client that the older tyres were unroadworthy; simply, they were the original tyres.

[82] Ms Moore’s evidence is that the original tyres, the ones on the vehicle in the dealership, were not roadworthy, and had to be covered in plastic and placed in the boot of the vehicle. The vehicle could only be registered with new tyres, and when the client later put the older tyres on the vehicle, this would have defeated any argument he was bringing before the courts due to the tyres being unroadworthy.

[83] At no stage during the cross-examination of Ms Moore did she attest to Mr Lewis stating to her that he too knew the tyres were unroadworthy.

Evidence of Ms Sylvie Maranis

[84] Ms Maranis had been tasked by Ms Makela on 7 March 2017 to chase Mr Lewis up relevant to concerns that Ms Moore had with a number of files, including the urgent Hart matter. Ms Maranis agreed in cross-examination that when she spoke with Ms Makela on the phone on 7 March 2017, she discussed a number of concerns regarding Mr Lewis, but there weren’t any discussions held regarding termination of Mr Lewis’ employment, or impending termination. 26

[85] Ms Maranis understood that following the conversation she had with Ms Makela, Ms Makela was going to discuss with Mr Cavanagh the concerns held by Ms Maranis as to Mr Lewis’ attitude. In answering a question from the Commission, Ms Maranis responded, “…but we didn’t take it any further…..” 27

[86] The following exchange occurred between the Commission and Ms Maranis relevant to whether Ms Maranis was disciplining Mr Lewis, or discussing case management: 28

‘Well, were you addressing with Mr Lewis concerns that you had about these matters?---Absolutely.

Were you disciplining him in any way?---My first objective was to obtain immediate responses from Mr Lewis as to what we could do with these files as they were becoming quite pressing.  From memory, there was a conference or a court date on the Wednesday that Ms Moore had been trying to contact Mr Lewis about from, to my knowledge, at least the Friday before, which was the 3rd.  So, my first objective was to try and find a resolution for Ms Moore.

So you were making enquiries, were you, about these matters?---I was making enquiries.  My background is not in civil litigation, I have a criminal law background, so I wanted to make enquiries and find out all the information and convey my - and then to convey my concerns to Ms Makela.

Were you copied in on the emails that dealt with Mr Lewis's timekeeping?  You weren't, were you?  No, Trish is the national practice manager?---No, I don't think so.

All right.  So how did you then learn that Mr Lewis's employment had come to an end?---I can't recall if I spoke to Ms Makela or Mr Stevens.

How many partners are there in the firm?---There's one in each state, yes, at that time, yes, there was one in each state and Mr Stevens is currently our CEO.

Would you expect to be consulted as a partner if the national civil lead was going to be dismissed?---Not always.

Sometimes?  If the other practice leads were going to be dismissed, would you expect to be consulted?---Not always, no.’

Evidence of Mr Mitchell Cavanagh

[87] In cross-examination Mr Cavanagh accepted that prior to 6 March 2017 no formal matter in relation to allegations of Mr Lewis not performing his role adequately had been brought to his attention. Mr Cavanagh conceded that the process the firm should have adopted would have been to bring it to the attention of Mr Lewis, for a discussion to occur, 29 and an opportunity to be heard.30

[88] Mr Cavanagh agreed that Mr Lewis had not been given an opportunity to be heard, and Mr Cavanagh had not spoken with Mr Lewis at all relevant to any concerns he had.

[89] Relevant to the lion and the zebra email, Mr Cavanagh denied that he spoke with Mr Stevens directly as to the concerns held by a number of employees of the firm. Mr Cavanagh accepted that at the 1 March 2017 review, he and Mr Lewis spoke about a new policy that was being introduced around performance management, to give ‘staff security in their employment.’

[90] In cross-examination Mr Lewis inquired of Mr Cavanagh why the policy was not followed in the case of his dismissal. Mr Cavanagh answered: 31

‘The policy didn’t apply in the circumstances of your dismissal insofar as the policy relates very specifically to performance against key performance indicators, and doesn’t contemplate dismissal for misconduct. But to answer your question no, this policy was not followed in the case of your dismissal.’

[91] In a question from the Commission as to what Mr Cavanagh and Ms Makela discussed on the telephone on 8 March 2017, Mr Cavanagh answered: 32

‘It started on 7 March.  So 7 March is when I got copied in on an email from the new civil solicitor Kristen Moore in Victoria, in fact I think the email may have come from the office - or the state manager down there Sylvie Maranis to Ms Makela.  I was just copied in on that but as a result of that, we spoke later that afternoon about the need to get to the bottom of those matters that had been raised.  I also set about the process of just making some inquiries in Queensland, which led me to speak to Melissa Jarvin who was the main junior solicitor doing civil, and that's when the other matter of [Smith] came to my attention.  I'm not sure of the exact time but I believe it was on the afternoon of 8 March that Ms Makela and I spoke about the nature of the errors that were apparent to us and discussed what that meant for Mr Lewis' ongoing employment.  I'll just speak for what I said.  At that point I expressed a concern about what appeared to be the fairly fundamental nature of the errors as against Mr Lewis' senior position and high level or responsibility, and essentially expressed a concern that his holding or continuing to hold that position would be untenable if those matters were made out.  That's as far as I recall the conversations going as’

[92] Mr Cavanagh stated that he considered that if the concerns the firm had with Mr Lewis’ performance had substance, it would suggest that it would be untenable for Mr Lewis to continue his employment as he held a senior position, and fundamental errors could not be accepted.

[93] Mr Cavanagh confirmed that he was not aware of Mr Steven’s decision to dismiss Mr Lewis until he read the 8 March 2017 email the following morning. Mr Cavanagh had not immediately seen Mr Lewis’ email of 7.44pm on 8 March 2017, so when he opened his emails on 9 March 2017, he read the email terminating Mr Lewis’ employment first.

[94] The following questions were put by the Commission and answered by Mr Cavanagh: 33

‘What did you think when you read that?---I was surprised because I hadn't been involved in that process, and I should emphasise I am generally not involved in the process of a final decision to hire or fire.  I was aware that there'd been an issue with Mr Lewis's WIP not being entered as required and I was aware that various people were looking into the matters that had been first raised on 6 March and came to my attention on 7 March, but I wasn't aware until I saw those emails that a decision had been made to terminate Mr Lewis's employment.

 49 Closing Arguments of the Applicant filed 13 July 2017 at [122].

 50   Ibid at [40]

 51   (1995) 621R 371 at 373

 52   (1995) 621R 37

 53   O'Connell v Westfarmers Kleenheat Gas Pty Ltd[2015] FWCFB 8205

 54   Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [271]

 55   Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487

 56 (2006) 155 IR 22

 57   Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

 58 Fabre v Arenales (1992) 27 NSWLR 437, 449

59 Sayer v Melsteel[2011] FWAFB 7498 at [20].

60 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

61 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

62 Ibid

 63   ASP Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230

64 [2015] FWCFB 1033

65 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10]

66 He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15] per Gray and Mansfield JJ

67 Since Sharp, it has been held in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWC 5264 that reg.1.07 does apply to the expression “serious misconduct” where it appears in the Small Business Fair Dismissal Code.

68 [2001] VSC 150; (2001) 107 IR 117

69 Ibid at [240]

70 Ibid at [250]-[257]

71 [2007] FCA 1903; (2007) 168 IR 375

72 (1998) 88 IR 21.

73 [2013] FWCFB 431.

74 [2014] FWCFB 8683.

75 [2015] FWCFB 2267.

76 Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762 [83].

77 Ibid.

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