Rosa Cornell v Falcon Settlements Pty Ltd t/a Peel Legal Barristers & Solicitors

[2020] FWC 1974

[2020] FWC 1974

FAIR WORK COMMISSION

DECISION

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

Rosa Cornell
v
Falcon Settlements Pty Ltd t/a Peel Legal Barristers & Solicitors
(U2019/11910)

DEPUTY PRESIDENT SAMS SYDNEY, 12 MAY 2020

Application for an unfair dismissal remedy – dismissal of restricted practitioner in small law firm – failure to meet billable hours targets – whether Small Business Fair Dismissal Code complied with – 2 warnings to improve financial performance over 11 months – explanations for failure to improve performance – formal training plan not required – claim of stressful work environment – applicant provided reasonable opportunity to improve performance – applicant understood what was expected of her – targets not met in final three months – dismissal meeting with support person – Code complied with – dismissal not unfair – application dismissed for want of Commission’s jurisdiction.

BACKGROUND

[1] Ms Rosa Maria Cornell was employed as a part-time (19 hours a week) Restricted Legal Practitioner by Falcon Settlements Pty Ltd, otherwise known as Peel Legal Barristers & Solicitors (‘Peel Legal’ or the ‘Firm’) in Mandurah, Western Australia. Ms Cornell was employed pursuant to a detailed contract of employment, referred to as a ‘Workplace Agreement’ (the ‘Agreement’) which, for present purposes, provided for a monthly Minimum Target (‘billable hours’) of $6,000.00; see: Annexure ‘A’ to this decision, and a discretionary bonus of 35% of professional fees, excluding tax and disbursements in excess of $6,000 per month; see: Annexure ‘B’ to this decision.

[2] Ms Cornell was dismissed from her employment on 4 October 2019 for unsatisfactory performance. The letter terminating her employment reads as follows:

‘Dear Rosie,

Re: Termination of your employment

I am writing to you about the termination of your employment with Falcon Settlements Pty Ltd (A.C.N 097 797 996).

On 6 December 2018 you met with the writer and Mariza Firmansjah. In that meeting, you were advised that you need to get moving on efficiency, focus on billable hours and to start progress to justify the profitability of your position.

On 17 July 2019 you had another meeting with the writer, Shivon Smilovitis and Katherine Cornell as your support person You were advised that your productivity and efficiency had not improved to the level required and you were given three months to improve.

We consider that your performance is still unsatisfactory and have decided to terminate your employment.

Your employment will end immediately. Based on your length of service, your notice period is two weeks. In lieu of receiving that notice, you will be paid the sum of $901.54.

You will also be paid your accrued entitlements and any outstanding pay, including superannuation, up to and including your last day of employment less the pro-rata reimbursement of Professional Indemnity Insurance and Practice Certificate.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.

We thank you for your valuable contribution during your employment with us. Please contact me if your wish to obtain a reference or Separation Certificate in the future.

We wish you well for the future.

Yours faithfully,

Matthew Bassett-Scarfe

Legal Managing Director’

[3] On 24 October 2019, Ms Cornell (hereafter referred to as the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking various orders from the Fair Work Commission (the ‘Commission’) in respect of her alleged unfair dismissal. The applicant set out in her Form F2, the following remedies she seeks from the proceedings:

•  ‘A written apology

•  Payment of $1,720.40 being for 1 unpaid hour worked weekly for 68 weeks.

•  Compensation for the period of unemployment, being up to 6 months after my dismissal.

•  Payment of $4,629.90 being for overtime worked and not paid for (averaged at 3 hours per week for 61 weeks), this does not include time spent studying for the Master of Laws.

•  Reimbursement of cost to undertake Master of Laws through College of Law $25,800.00 plus 6% interest p.a.’

[4] It will be immediately apparent that the only remedy available to be ordered by the Commission (assuming the applicant succeeds in her case), is for compensation. The other remedies are plainly beyond the Commission’s jurisdiction.

[5] Shortly stated, Peel Legal submits that it had complied with the Small Business Fair Dismissal Code (the ‘Code’) when it determined to dismiss the applicant for her ongoing failure to meet the Firm’s financial targets. Further, she had been given an opportunity to improve her performance over a period of six months and had been provided procedural fairness during the process leading to her dismissal. I apprehend there is no dispute that the Firm is a small business, with eight employees at the time of the applicant’s dismissal.

[6] Accordingly, this decision will deal with the question of whether Peel Legal had complied with the Code, and if it did so, it follows that the applicant’s dismissal would not be unfair; see s 385 of the Act – to which I will later return. It is important to observe that given the language of the Act and the Code, there is a degree of overlap with the jurisdictional question, the merits of the application and the processes adopted by the employer in effecting the dismissal. The evidence relied on in this matter is testimony to this observation.

[7] The application was remitted to me as a result of some case management issues in Western Australia toward the end of 2019. In accordance, with my usual practice, I convened a conciliation conference by phone on 2 October 2019. Settlement was unable to reached, and I issued directions for the filing and service of evidence and outlines of submissions, in preparation for an arbitration of the Firm’s jurisdictional objection. The arbitration was conducted on 7 February 2020 in Perth. Mr S Kemp, Principal, Kemp & Associates, appeared for Peel Legal, having been granted permission to be legally represented, pursuant to s 596 of the Act, notwithstanding it is obviously a law firm. I note that Peel Legal’s primary witness, was the Firm’s owner, Mr Matthew Jaime Bassett-Scarfe. The applicant appeared for herself.

EVIDENCE

[8] The following persons provided witness statements and/or gave oral testimony at the hearing.

•  Mr Matthew Jaime Bassett-Scarfe -Managing Legal Director

•  Ms Shivon Stavroula Smilovitis – Senior Lawyer

•  Ms Mariza Firmansjah – Bookkeeper

•  Mr Boon Kim Gwee – Restricted Legal Practitioner (not required for cross examination)

•  the applicant; and

•  Ms Katherine Cornell – the applicant’s daughter in law.

Mr Bassett-Scarfe

[9] Mr Bassett-Scarfe’s practice has been in existence as a law firm for approximately 15 years. During that time, he has employed approximately 10 Article Clerks or Restricted Practitioners. Most have gone on to forge successful legal careers. However, during this period, it had been necessary to terminate the employment of two individuals.

[10] Mr Bassett-Scarfe said that in the course of the applicant’s employment, he had provided mentorship and guidance to her in respect to her files and met with her once or twice a day. In January 2019, Mr Bassett-Scarfe employed an experienced Senior Practitioner, Ms Smilovitis, to assist him in mentoring the two Restricted Practitioners – the applicant, and Mr Boon Kim Gwee (who remains in employment). In addition, Ms Smilovitis also arranged for the applicant’s further guidance and mentoring by a senior criminal law barrister.

[11] Mr Bassett-Scarfe described his oversight of the applicant as relatively informal and mostly not recorded. He stated the applicant did not always respond to guidance, constructive criticism or direction. This attitude, coupled with her poor financial performance, meant her continued employment became untenable. Mr Bassett-Scarfe described one example where having claimed she had unique expertise and qualifications in relation to websites, the applicant was asked in late 2018 to liaise with a contractor to update the Firm’s website. On 17 September 2019, Ms Smilovitis took over this task due to delays, and a failure to properly liaise with the contractor in a timely manner. The website was finally updated on 25 October 2019.

[12] Mr Bassett-Scarfe’s evidence was that on 6 December 2018, he and the Office Manager met with the applicant to advise her to improve her billable time, and informed her that her position was under review. She was provided with support and guidance in this respect. On 17 July 2019, a formal meeting was held with the applicant and her support person, Ms Katherine Cornell. Ms Smilovitis also attended. The applicant was advised that unless her financial performance improved within three months, her employment may be terminated. Handwritten notes of both meetings were tendered in the proceedings.

[13] Mr Bassett-Scarfe attached a letter from Ms Smilovitis dated 7 November 2019, which stated, inter alia:

‘I provided Ms Cornell with ongoing support and supervision from the commencement of my employment. For example:

1. I saw Ms Cornell each day she was in the office (unless she was in Court) and we would often discuss her files;

2. I arranged for several meetings with Ms Cornell covering the basics of family law and invited her to sit in on initial advice appointments with the consent of the clients;

3. I provided Ms Cornell with ongoing updates as regards family law legislation;

4. I provided Ms Cornell to well respected Counsel dealing with criminal law (whom I had established a professional relationship with through my husband when I had my own practice) to provide her with guidance and support in relation to criminal law matters and Ms Cornell would provide me with regular updates regarding the same;

5. I conducted regular file reviews with Ms Cornell to consider the progress of her files and any queries she had in relation to work given to her by the Director; and

6. I arranged for lawyers’ meetings within the firm to discuss areas of practice and any general issues and/or specific issues in relation to files.

I am aware that the Director spoke with Ms Cornell regularly because Peel Legal is a small office and the location of my office at the time was such that contact can be heard and observed.

I was present during the meeting with Ms Cornell, the Director and her support person on 17 July 2019.

I am satisfied that the support and supervision I provided to Ms Cornell was suitable and appropriate at all times.’

[14] In an accompanying document, Mr Bassett-Scarfe provided details of the Firm’s billable hours expectations. It is set at three billable hours per full time working day, well below the profession’s expectations of five to seven hours a day; see: Brief on Mental Health in the Legal Profession. The applicant’s charge out rate was $300.00 + GST. Working 19 hours a week resulted in recoverable billings of $10,800.00 a month. Mr Basett-Scarfe claimed that the applicant’s original target (in her Agreement) of $6,000.00 was an error; but, in any event, in the last 10 months of her employment, her average of $5,230.73 never even reached the lower incorrect figure. Mr Bassett-Scarfe said that the applicant was not directed to work specific overtime. Moreover, the billable target is deliberately set low in order to achieve a reasonable work/life balance, without the need for overtime. While the applicant did work on some of her days off, these were substituted at the applicant’s request and never denied.

Mr Boon Kim Gwee

[15] Mr Kim Gwee had practiced law in Singapore from 1997 – 2014 in the areas of family law, wills and probate, letters of administration and general litigation. As a Restricted Practitioner in Australia, he is required to be supervised for a period of two years. Mr Kim Gwee joined Peel Legal on 20 September 2018. He is supervised by Mr Bassett-Scarfe, and since January 2019, by Ms Smilovitis, in family law matters. He described the details of his supervision and the requirement for every letter and document to be checked, and discussions about court appearances, by one of his supervisors. He described them both as patient, insightful and approachable. He does not feel uncomfortable in asking questions where necessary as they are very willing to guide and support him.

Ms Mariza Firmansjah

[16] Ms Firmansjah’s evidence dealt with her preparation of the Firms ‘Fee Earner Budgeting’ which are provided to Mr Bassett-Scarfe, and are accessible to individual employees in respect to their own performance and the Firm’s general financial position. Ms Firmansjah attached six financial reports she had sent to the applicant covering the period between October/November 2018 and August 2019.

Ms Shivon Stavroula Smilovitis

[17] Ms Smilovitis was admitted in October 2003, and prior to her employment with Peel Legal, she had worked exclusively in family law in Mandurah. She had worked closely with the applicant and Mr Kim Gwee. She supervised their family law work through meetings, checking and amending draft emails, letters, court and other documents, explaining her suggestions and setting timeframes to complete tasks. She would regularly review their files to ensure the necessary steps were taken and correct times and billables were recorded.

[18] Ms Smilovitis said she saw and spoke to the applicant every day and enjoyed an open line of communication with her throughout the day. As she had expressed an interest in criminal law, Ms Smilovitis arranged support and guidance for her from a well-respected Counsel in relation to Magistrates and District Court matters. She was also aware Mr Bassett-Scarfe had regular contact with the applicant.

[19] Ms Smilovitis reported that on 15 July 2019, the applicant told her she was feeling stressed with work and her studies. Ms Smilovitis suggested she contact LawCare for support and emailed its contact details to her later that day. It was Ms Smilovitis’ evidence that Mr Bassett-Scarfe spoke to her on a few occasions about the applicant’s performance. In the meeting she attended with the applicant and Mr Bassett-Scarfe on 17 July 2019, she recalled it was conducted appropriately and respectfully, and the applicant had understood what was expected of her.

[20] Ms Smilovitis described the work environment as friendly, supportive and positive. She noted a farewell morning tea was held for the applicant on 7 October 2019. Ms Smilovitis said that on 25 January 2019, she had introduced a time recording system for non-billable work to help monitor the productivity of the fee earners. She attached a report of her own non-billable time spent in supervising the applicant and Mr Kim Gwee. This disclosed her non-billable hours of 145.50 from 25 January 2019 to 12 December 2019.

The applicant

[21] The applicant provided a number of responses and a bundle of documents in respect to the Agreement, legal training and continuing training extracts from legal journals, various emails, and the reasons for the remedies she seeks from this application. The applicant’s evidence and response to the Firm’s evidence is set out in a statement (Exhibit 3). In her statement, the applicant stated that she had worked a minimum of 20 hours per week, one hour more than her contracted hours of 19, that she had attended court and undertook extra work on days for which she was not paid, and had worked through her lunch on many occasions.

[22] The applicant said she had contacted the Legal Practice Board of Western Australia (the ‘Board’) and was told the extra hours worked would not count towards her practising certificate, as her contract specified 19 hours. She was advised to make a complaint about this discrepancy to the Legal Profession Complaints Committee (‘LPCC’). She was reluctant to do so, and met Ms Smilovitis to discuss the matter, who then brought it to Mr Bassett-Scarfe’s attention. She believed that Mr Bassett-Scarfe was upset about this and held three meetings with her that day (2 October 2019) to discuss her working hours. He told her if she could prove the extra hour, he would support her application to the Board. The applicant believed the real reason for her dismissal was her complaint to the LPCC.

[23] The applicant submitted that her case rests on one question – was there a plan put in place to help her improve her performance. This was what the Code required, and despite Mr Bassett-Scarfe providing brief notes of meetings held with her, at no time was she provided with training to help her meet job expectations. As this was her first job working in a law firm, she knew nothing about what was, or was not billable hours, or any other aspects of the profession that she needed to know to become a qualified solicitor. She had relied on Mr Bassett-Scarfe to train her. He did not do so; rather, he threatened her with dismissal, and never explained how to achieve improvements in productivity and efficiency, as there was no written plan to follow.

[24] The applicant identified a number of factors which impacted on her productivity:

(a) Relying on a single 2015 study by someone named Ryan Anderson, the applicant asserted that it can take 23 minutes to recover from a single interruption at work. In a small firm, although Ms Firmansjah mostly dealt with phone calls and client walk-ins, most staff were available to do this. She had found it difficult to refocus, if she was interrupted when undertaking difficult and/or unfamiliar tasks.

(b) It was impossible at times to meet financial targets despite meeting billable hours targets. This is because some billable hours were chargeable at a lower rate than the billable target hours. For example, advice interviews are charged at $75 for up to 45 minutes, not at a rate of $300 per hour. Further, as an inexperienced lawyer, she needed to pre-brief for an interview for between 30-60 minutes.

(c) The criminal matters she was qualified to conduct were short term engagements, presenting limited opportunities to accrue billable hours. To meet criminal billable hours, required accepting non-client engagements on a regular basis.

(d) It was a common practice to ‘write off’ invoices issued to clients, and this was not advised to the restricted practitioners, including herself.

(e) Mr Bassett-Scarfe would often change the scope of work after completion and then claimed she did not follow instructions. In one example, she was asked to check the constitution of an Association to check if it had a windup clause. She had used a Checklist to do so and after spending 34:23 minutes on the matter, she advised Mr Bassett-Scarfe that the Constitution contained all the relevant clauses. A few days later, she received the file back. Mr Bassett-Scarfe’s notations did not reflect his earlier instructions. A later email purporting to be his earlier instructions, meant the work could not be completed in the time frame given. This was reclassified as non-billable work.

(f) Mr Bassett-Scarfe would repeatedly ask her to redraft documents for which extra time was non-billable work. One example was when she drafted a discontinuance. Mr Bassett-Scarfe told her it was excellent, but still suggested a number of redrafts. The simple task ended up taking an hour and a half.

(g) From the outset of her employment, Mr Bassett-Scarfe appeared under pressure. He behaved angrily, derided former employees and his temper did not improve. She found his behaviour bullying and intimidatory, including ignoring her all day. She emailed her concerns about the Association matter (see: (e) above) to Ms Smilovitis who was acting HR manager, and therefore was the appropriate person to take her concerns to. The applicant claimed she had got on well with all employees, except Mr Bassett-Scarfe.

(h) She was so worried about her level of training and supervision, she decided to undertake a Masters of Law, majoring in family law. She believed that by doing so, she would be able to work full time. However, she now finds her studies were wasted. In July 2019, she finally learnt about management of billable hours from an online program.

[25] In her response to Ms Smilovitis’ statement, the applicant took no issue with it, but noted her only guidance and discussion was in the area of family law. There were no concrete steps put to her to improve productivity and efficiency. In any event, she and Ms Smilovitis only worked together on Wednesdays and Fridays. In response to Mr Kim Gwee’s statement, the applicant had no issue with it, save to note he had been an experienced long-term lawyer in Singapore, and therefore his supervision and training was minimal.

[26] As to Mr Bassett-Scarfe’s criticism at her for the delay in finalising the Firm’s website, the delays were entirely in Mr Bassett-Scarfe’s control. She was nervous working on it, as it was classified as non-billable work. In any event, the website went ‘live’ on 22 August 2019 (not in October 2019), as the following email from him on 22 August 2019 said:

‘Hi Rosa,

The Peel Legal website is now live. I have a couple of things to attend to which couldn’t be done prior to going live, Google Account and Security clearance, which I’ll get onto now.

Cheers

Alan.’

Ms Katherine Cornell

[27] As Ms Cornell’s witness statement is brief, I set it out in full below:

‘She attended the performance review on 17 July 2019, and that during this meeting there was no discussion as to how improvements to productivity and efficiency could be made.

She heard Mr Bassett-Scarfe say that work on my own matters was good and he had no complaint, I was performing well on my own matters.

No plan was put in place to help improve performance.’

Mr Bassett-Scarfe’s reply statement

[28] Mr Bassett-Scarfe said that the website project took five to six months just to update the existing site. In May or June 2019, a request was made for a substantially amended design. Various emails were exchanged about progress until early September 2019. The applicant’s role was to liaise with her colleagues and the external contractor. She was not requested to produce the website from ‘July to 11 September 2019’ and she had not indicated she was unable to collate and forward emails from colleagues to the website designers. These were simple communications. Ms Smilovitis dealt with the finalisation in short order.

[29] Mr Bassett-Scarfe rejected the applicant’s claim of disruptive interruptions at work. The firm has four employed support staff, with three full-time lawyers and the applicant part time. He believed disruptions at the reception desk would occur on around two to three occasions daily across all the solicitors. Such interruptions would be minimal.

[30] Mr Bassett-Scarfe recounted his version of the meeting on 2 October 2019 to discuss the applicant’s hours and her restricted practising status. Ms Smilovitis and Ms Firmansjah attended with him. The applicant had said she had been advised by someone at the Board to report him to the LPCC, given she was unable to obtained credit hours for actual hours worked. He had replied that the Board had approved the arrangement and he did not know what she was referring to. He asked for the name of the person at the Board and she told him. They discussed how she had needed full-time work, but no one ever told him she required a minimum 20 hours’ part time work for the purposes of the Act. He denied the hours she claimed she was told to work (9:20am – 5:00pm Wednesday and Thursday and 9:00am to 5:00pm Friday). Mr Bassett-Scarfe said he did not keep detailed time records as he was too busy, and he trusted his employees to attend to their work. The applicant claimed she was offended that he did not know when she arrived at work.

[31] Mr Bassett-Scarfe said that Ms Firmansjah confirmed his version of this conversation. Mr Bassett-Scarfe said he was happy to help her application to the Board to recognise whether the actual hours worked was correct; but he would not mislead the Board. The applicant replied that she didn’t need to verify anything and asked if she was being called a liar. The applicant mentioned her court attendances on her days off and that she had substituted the days. She could confirm all of her hours through diary entries.

[32] Shortly after, Mr Bassett-Scarfe contacted the person the applicant spoke to at the Board. She had confirmed it was not his obligation to ensure the 20 minimum hours required for restricted practitioners was being met, and the applicant should have been aware of this or was at least told of it. Mr Bassett-Scarfe was advised that although unusual, the applicant could apply to have the one hour recognised and such a request was dealt with on a ‘case by case’ basis. Mr Bassett-Scarfe had another meeting with the applicant and explained the Board’s position. He told her he was happy to help, but for ethical reasons, he needed verification. The applicant again said she didn’t need to verify anything, and he was calling her a liar. Mr Bassett-Scarfe said that in view of her tone and demeanour, he asked Ms Smilovitis to join the meeting. Mr Bassett-Scarfe explained it was illogical for him to deliberately reduce her hours to deny her gaining her practicing certificate. He could have simply paid her an extra hour and she could have worked that extra hour. In any event, Mr Bassett-Scarfe was unaware there was an Award for solicitors. The applicant replied:

‘You would be surprised by what I would think of you these days. I am offended that you say you don’t know when I turn up, you know when I get to work.’

[33] Mr Bassett-Scarfe stressed he did not keep ‘tabs’ on employees and the hours worked do not concern him, so long as clients are attended to. He relied generally on Ms Firmansjah about such issues and report to him, if necessary. The applicant then said he was ‘unethical and a liar’. Mr Bassett-Scarfe had since checked the Legal Services Award 2010 (the ‘Award’), and does not apply to employed solicitors. The applicant was not required to work overtime, and all his legal practitioners are paid well in excess of the Award. There is no basis for any underpayment claim. He remains unsure and unaware of what basis the applicant can report him to the Board.

[34] Mr Bassett-Scarfe believed that given the above meeting, there was now a breakdown in the employer/employee relationship and with little likelihood the applicant would improve her performance. He believed the applicant now has in her possession, confidential client information which is contrary to her Agreement and her duty as a legal practitioner. He had taken steps on 1 November 2019 and 9 January 2020 to protect the Firm’s confidential information. However, the applicant had not responded to his communications.

[35] Mr Bassett-Scarfe’s version of events concerning the request for work on the constitution of the Association in June or July 2019, was that he had asked her to provide a report and a letter to the client in respect to compliance with the relevant legislation. On 4 July 2019, he had a brief meeting with her to explain what was required by reference to legislative provisions and evidence to support any conclusion. On 5 July 2019, the applicant asked if she was required to draft a letter or to simply phone the client. He told her a letter was required. On 17 July 2019, the client asked for an update. He asked the applicant for an indicative time of two days for him to check her work. He had another meeting with her that day and again explained that she needed to check the Association’s Rules against any legislative requirements. On 12 July 2019, the applicant claimed she had performed all tasks and her original three paragraph email of 11 July 2019 was adequate. He recalled she believed her instructions were inadequate. At this point, Mr Bassett-Scarfe had completed the work himself, finalised the research and prepared the letter of advice. Mr Bassett-Scarfe also attached to his statement two other examples of work delegated to the applicant around this time and not completed.

[36] In a further statement, Mr Bassett-Scarfe explained the applicant’s billable hours target. Shortly after the applicant’s employment commenced, he noticed the Agreement target of $6,000.00 was incorrect and should have been $10,800.00. He raised the matter with the applicant. At no time then, or any time subsequently, had she queried this target. On 6 December 2018, when he met with the applicant, he informed her that her fees were below budget. Mr Bassett-Scarfe reiterated his understanding in the discussions in the meeting with the applicant on 17 July 2019, in which he told her that unless her financial performance improved within three months, her position may be terminated. At no stage, did she suggest she had insufficient work to meet the billable target. She did raise the clarity of his instructions and he told her to talk to him or email any concerns.

[37] In the ensuing three months, her performance was below budget, July 2019 – $7,054.00; August – $8,304.54 and September 2019 – $8,316.36. At the meeting on 4 October 2019, when he informed her of her dismissal, he invited her to return to the office on the following Monday for a formal farewell. She engaged in a final handover for most of the day on 4 October 2019. Mr Bassett-Scarfe could not recall if the applicant was handed the termination letter that day, or posted to her.

Oral evidence

Mr Bassett-Scarfe

[38] In cross examination, Mr Bassett-Scarfe was asked to explain what training he had provided to increase the applicant’s productivity and efficiency. He said:

‘We gave you constant guidance as to how you could better organise your files; how you should organise and focus on the task; we directed you to make sure you understood what the issue was that you were being asked to do; we said that if the task was delegated by myself and I was busy, that you - and you didn't have the opportunity to see me because of court commitments or other things, you should email me and make sure you were very clear on the task to be performed; and that you needed to focus on the actual billable task that you were being delegated to do, and not try and absorb a wide area of non-billable matters; that you needed to focus and organise your work in a more efficient manner.  There’s limits to what we can do to make suggestions as to how you do that.  We did show you some file organisation skills. There were…’

[39] Mr Bassett-Scarfe said there is no employer manual for solicitors as to how to increase productivity and efficiency. He added there was only two or three occasions when the applicant’s hours were discounted because she took too long to complete a task. As to the dismissal meeting on 4 October 2019, Mr Bassett-Scarfe said the applicant was given an opportunity to respond. In earlier meetings, Mr Bassett-Scarfe said it was made very clear on multiple occasions of what was expected of her. His file notes are brief, but they are not verbatim records of the many discussions he had with her.

[40] As to the change in the billable figure of $6,000.00 a month, Mr Bassett-Scarfe said that like all the other employed solicitors, it had been made very clear that the minimum expectation was three billable hours a day. He said the initial contract was provided to her, and she had an opportunity to comment on it. The applicant claimed the change to $10,800.00 a month was in May 2019, not December 2018. Mr Bassett-Scarfe was not aware if a document had been signed by the applicant to acknowledge the change in monthly billables. However, there had been issues about her billable hours and the three hours a day requirement early on in her employment, and continually raised with her.

Ms Firmansjah

[41] In cross examination, Ms Firmansjah agreed that there were some months (October and November 2018) where the applicant was on annual leave and personal leave. Ms Firmansjah said that although the monthly budget report does not adjust for periods of leave or time off, the budget for each month is co-related to other of the Firm’s records to explain discrepancies.

Ms Smilovitis

[42] Ms Smilovitis agreed that when the applicant had asked if there was any work for her to do, she had completed any extra work quickly and efficiently.

The applicant

[43] In the applicant’s cross examination, she acknowledged that a budget report sent to her by Ms Firmansjah at the end of the November 2018, reflected her budget billables as $10,800.00 a month. She explained that she did not really check it because in October 2018, she was on annual leave and in November, her mother had passed away and it was a very stressful time. Even so, the applicant acknowledged she had not objected to the $10,800.00 target and believed she was capable of meeting it, if clients came through the door. However, this was out of her control. She conceded she had not objected to the $10,800.00 at the meeting held on 6 December 2018 to discuss her performance. She had believed she was improving and was sure she was meeting her targets.

[44] In fact, the applicant said she was quite surprised to pass her probationary period. With the endless comments about meeting targets she got tired of it all and was thinking of resigning at the end of December 2018. However, when Ms Smilovitis was put on and was to be her supervisor, she decided ‘to give this firm another chance’. She learnt a lot from Ms Smilovitis, and she and all other employees made the job ‘bearable’. However, she claimed Mr Bassett-Scarfe constantly threatened and told her it was economically unviable to employ her. She was told she was useless and not making enough money for him, despite working in her own time. She was billing fees just short of $75,000.00 per annum – three times her salary of $25,000.00.

[45] The applicant agreed that except for two months, she had not reached budget. However, this did not take into account hours that were discounted or the fact she had worked some weeks where she was not given sufficient client files with billable work. She agreed she was given three months to improve at the meeting on 17 July 2019 and that if she did not, her employment may be terminated. She claimed that again, during this period, Mr Bassett-Scarfe regularly gave her unbillable work. She was always busy and juggling work and doing it quickly and efficiently. She could not choose her own work, but relied on the Principal giving her work. The applicant claimed that in the lead up to the 17 July 2019 meeting, she was under a lot of pressure and had expected to be sacked. Mr Bassett-Scarfe was always negative and threatening, rather than being helpful. She decided to research how to improve her performance and attended CPD courses in May 2019. She had really tried, but was floundering and could not ask Mr Bassett-Scarfe for help, because of their poor relationship.

[46] The applicant said that somebody had told her to lodge the unfair dismissal application because it might be months before she obtained another job. She conceded that she did not believe, around the 17 July 2019, that her financial targets were unreasonable, but as a restricted practitioner she was limited to what she could do in approaching clients. She also conceded that she did not ask for any training at the 17 July 2019 meeting. However, it was the supervisor’s duty to teach what is required.

[47] The applicant agreed she had the professional skills learnt at University. However, having never worked at a law firm, University training was more academic, rather than practical. Nonetheless, she had always followed Mr Bassett-Scarfe’s instructions. She believed that she needed 25-30 active cases to achieve billable targets. The applicant claimed in the week of her dismissal, she had actually signed up two new clients, so work was picking up for her. She described the ‘handover’ on 4 October 2019, as a ‘misnomer’ – some clients were advised to go elsewhere and a couple of matters had been completed. She had left the office at 2:30pm after a number of meetings with Ms Smilovitis concerning three or four files she had been working on. She described the experience as ‘weird’ and ‘really odd’. The applicant acknowledged that she had not, in her statements for these proceedings, raised the issue of not having enough work to do.

[48] In further questions from me, the applicant said she commenced a law degree as a mature age student, as a consequence of her family’s personal experiences with the fraudulent actions of the Banks and the adverse findings of the Hayne Banking Royal Commission.

[49] The applicant now understands that some of the remedies she seeks in this case are not open to the Commission to make due to the specific remedies in s 392 of the Act. As to her complaint to the LPCC, the applicant advised that the Committee is awaiting the outcome of this matter in the Commission before taking her complaint further.

Submissions for Peel Legal

[50] Mr Kemp for Peel Legal submitted that the Code requires the following:

•  a warning must be given to the employee that their employment is at risk of being terminated;

•  there must be a reasonable opportunity to respond to that reason; and

•  the employee must be given a reasonable chance to rectify any problem in performance or conduct.

If those steps are taken, dismissal may follow.

[51] Mr Kemp referred to the different approaches adopted by the Commission in determining how the Code’s requirements are to be applied; see: Law v Linehan Enterprises Pty Ltd T/A Service Assist [2018] FWC 57 (‘Law’) and Kotykhov v Dealer Trade Australia Pty Limited [2020] FWC 229. Mr Kemp submitted the approach in Law should be adopted here in that the reason for dismissal does not necessarily require the employee to be told the reason at the time of dismissal; rather, the reason is part of the warning process. In this case, the applicant received two warnings on 6 December 2018 and 7 July 2019. The warnings were clear. She understood her employment was at risk, if her billable hours target did not improve. There was ample time for her to improve, but she had not improved by 4 October 2019, and she was dismissed on that day for the same reasons as she was warned on 6 December 2018 and 7 July 2019. Mr Kemp observed that her target was low and set at $10,800.00 a month based on her part time employment.

[52] Mr Kemp submitted that the Code does not require formal training to be provided to a poorly performing employee. Even so, the applicant had never asked for training and it was unnecessary, in any event. She is an admitted solicitor with a law degree and was provided legal work which was within her skills and competence.

For the applicant

[53] The applicant’s written submissions are largely replicated in her evidence which I have extensively set out earlier in this decision. The applicant responded to Mr Kemp’s oral submissions by putting that she was confused by the jurisdictional objection and the merits of her claim. She had spoken to another lawyer, who indicated that jurisdiction in this matter was likely, and she wished an adjudication of whether she even had a claim.

[54] The applicant put that Mr Bassett-Scarfe had not explained to her how her productivity and efficiency could be improved. It wasn’t until she made independent inquiries in June 2019, that she realised productivity meant billable hours. With this knowledge, she relied on her evidence of why her hours were mostly non-billable hours; meaning she could not meet the targets. She also believed that billable hours can lead to conflict between the needs of the solicitor and the needs of the Firm. For this reason, she was careful not to overbill clients.

[55] The applicant said that the workplace was a very stressful environment, not because the work was hard, but because of conflict with Mr Bassett-Scarfe, who knew she was struggling. She believed that Mr Bassett-Scarfe did not meet the supervision rules of the Law Society of Western Australia.

[56] Finally, the applicant said she had not sought alternative employment as she was focusing on completing her Master of Laws, which she will complete shortly.

CONSIDERATION

[57] Section 388 of the Act deals with the Code as follows:

‘The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.’

[58] Section 23(1) of the Act defines a ‘small business employer’ and reads as follows:

‘Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.’

[59] The term ‘particular time’ in s 23(1), is the time at which the applicant for an unfair dismissal remedy was dismissed. In the present case, this time is 4 October 2019. There is no dispute that at this time, Peel Legal had no more than 10 employees, being employed solicitors, support staff, including the applicant and Mr Bassett-Scarfe.

[60] The legislative instrument referred to in s 388(1) above is the Code declared by the Minister as follows:

‘Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements’

[61] It is common ground that this is not a case of summary dismissal and therefore the sections of the Code applicable to this matter are those found under the headings ‘Other dismissal’ and ‘Procedural Matters’. It may be accepted that these sections of the Code provide for a number of mandatory and non-mandatory requirements which, if not complied with, may render the dismissal of the employee, inconsistent with the Code. Such a finding will still require the Commission to make subsequent findings on the other three matters in s 385 of the Act, if the employee has been unfairly dismissed. That section states:

‘What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.’

[62] On the other hand, if the Commission finds the employer has complied with the Code, that is the end of the matter and the applicant’s unfair dismissal cannot progress and must be dismissed. The particular factors in the Code applicable to this matter may be summarised as follows:

(a) the employer must give the employee a reason why their employment is at risk of being terminated;

(b) the reason must be a valid reason, based on the employee’s conduct or capacity to do the job;

(c) the employee must be warned their employment is at risk, if there is no improvement in their performance or conduct;

(d) a warning can be verbal, or preferably in writing;

(e) the employer must provide the employee an opportunity to respond to the warning/s;

(f) the employee must be given a reasonable chance to rectify the problem;

(g) rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations;

(h) in discussing with an employee that their dismissal is possible, the employee can have another person present to assist; and

(i) the employer will be required to provide evidence of compliance with the Code which may include:

•  a Code checklist;

•  copies of written warnings;

•  notes of meetings where discussions are held; and/or

•  statement and/or oral evidence from witnesses.

[63] In the applicant’s own words, she submitted there was only one question which will determine whether Peel Legal had complied with the Code: was there a training plan put in place to help her improve her performance? Despite this, the applicant’s intermingled submissions and evidence meandered over matters which are beyond the Commission’s jurisdiction, or were matters extraneous to this question. These included reasons why she could not meet the targeted billable hours budget:

•  she had never previously worked in a law firm;

•  her lack of knowledge of the business imperatives of a law firm, such as what billable hours are;

•  she was offered no training as to improving her billable hours; and

•  Mr Bassett-Scarfe was unapproachable and she felt bullied and intimidated by him.

[64] I shall return shortly to these issues and the applicant’s posed question. At this juncture, I intend to make findings on the other mandatory requirements of the Code by reference to the factors set out at [62] above.

(a) Reason why the applicant’s employment is at risk

[65] It cannot be disputed that the reasons why the applicant’s employment was at risk were her failure to meet the financial expectations of the employer; being a standard requirement to make a minimum of three hours of billable work a day. Given the applicant’s part time employment, this was prorated to reflect a billable hour of $300 + GST for 19 hours a week, resulting in a monthly budgeted target of $10,800.00. There was some issue taken as to the applicant’s workplace agreement which specified $6,000.00 as the monthly target. This was an obvious mathematical error. The applicant claimed she was not told of this change until May 2019. This claim is not supported by the evidence. The applicant received her monthly targeted report in November 2018 and her performance was discussed at a meeting on 6 December 2018. She would have been well aware that the target was $10,800.00, given the very purpose of the meeting was to discuss her financial performance. While I accept that in November 2018, the applicant was experiencing stressful personal and distressing circumstances, that cannot explain her failure to know what was expected of her. In any event, the focus on the $6,000.00 or $10,800.00 target is irrelevant in the sense that the applicant had always been aware that the monthly figure was predicated on a minimum 3 hours of billable work a day. In my view, this controversy was little more than a ‘red herring’. It does not support a finding that the applicant did not know the reason for her dismissal.

(b) Whether the reason was a valid reason, based on the employee’s conduct or capacity to do the job;

[66] The use of the term ‘valid reason’ in the Code presumably arises from a connection to the meaning of ‘valid reason’ contained in s 387(a) of the Act, going to the matters required to be taken into account by the Commission when determining whether a dismissal is ‘harsh, unjust or unreasonable’. Given that the term is used in the same Part of the Act, it may be safely accepted that it has the same meaning as ‘valid reason’ in s 387 of the Act. This conclusion is founded in a principle of statutory construction which requires that a word or phrase used in different sections of an Act, is taken to have the same meaning, unless a contrary intention is expressly stated.

[67] This conclusion obviously leads to the widely and well-known meaning of ‘valid reason’ which is drawn from the judgement of Northrop J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then-Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v [Peterson] Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’ (citations omitted)

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[68] For the following reasons, I am satisfied that the reason for the applicant’s dismissal was ‘sound, defensible and well founded’:

1. The budgeted billable hours target for the applicant was the same for all the Firm’s employed solicitors; namely three hours a day. She was not treated any differently to her colleagues.

2. On any objective view, three billable hours a day for an employed solicitor is a low expectation for any law firm and should be very achievable. I agree with Mr Bassett-Scarfe that the profession’s norm can be from 5-7 hours a day. Moreover, I find it extraordinary, and frankly unbelievable, that the applicant did not initially know what billable hours are and how they are achieved. In any event, it is not an overly complex concept; a simple inquiry of her colleagues or professional body would have answered any query she might have had on that score.

3. It was the applicant’s own evidence that:

•  at no time did she object to the $10,800.00 monthly billable hours target; indeed she believed she was capable of making the target (but other factors prevented her from doing so);

•  she did not believe that the financial targets were unreasonable; and

•  she acknowledged she was struggling (‘floundering’) and was surprised she passed her probation and had considered resigning at the end of December 2018. She stayed because Ms Smilovitis had commenced employment. I note she was very complimentary of Ms Smilovitis’ support and guidance.

4. Apart from the months of April and May 2019 (and accepting some discrepancies at times when the applicant was on leave), at no time in the period of employment from 18 April 2018 to October 2019 (18 months) did the applicant achieve her billable monthly targets.

(c) and (d) Warnings given in writing and verbally

[69] It is common ground that the applicant was warned in meetings on 6 December 2018 and 7 July 2019, in clear and expressed terms, that unless her financial performance improved, her employment may be terminated. In the later meeting, she was given three months to demonstrate an improvement and, in the subsequent months, did she meet the billable target. Mr Bassett-Scarfe’s brief contemporaneous notes of the meetings are not subject to any serious challenge. This evidence is accepted.

(e) and (f) Opportunity to respond

[70] The applicant was given an opportunity to respond to her poor performance and provided with more than a reasonable chance to rectify the problem. Accepting she was on notice at the 4 December 2018 meeting and further notice of 3 months (a total of 11 months), it cannot seriously be posited that the chance to improve was perfunctory or insufficient; let alone unreasonable.

(g) Person to assist in discussions

[71] Although not expressly called a support person in the Code, it seems to me that an employee at risk of dismissal, may be allowed to have a person to assist in discussions, is akin to s 387(d) of the Act – dealing with an unreasonable refusal to allow a support person present. In that context, while I accept that the applicant did not have a support person in the meeting of 6 December 2018, there was no evidence that she had made such a request and the request was refused. In any event, the applicant did have a support person in the meetings of 7 July 2019 and 4 October 2019.

(h) Evidence of compliance with the Code

[72] There is no doubt that the respondent has provided evidence of its compliance with the Code and/or the applicant does not seriously contend that the Code was not complied with; save for the training issue to which I now turn. The applicant’s question to be answered which will determine compliance or non-compliance with the Code; see: [60] above, relates to her view that she was provided no training plan to help improve her performance. The first observation to note is that the words of the Code do not require Mr Bassett-Scarfe to provide the applicant with additional training. Unlike the other mandatory Code requirements, the word ‘might’ is not one of compulsion or mandate.

[73] Secondly, to suggest that an employed and admitted solicitor requires a written training plan or Performance Improvement Plan (‘PIP’), to know and understand how to improve his/her financial contribution to the Firm by meeting reasonable billable expectations of management, is to my mind, unreasonable and unnecessary. For a University-trained employed solicitor to claim she was unaware of billable hours, or how a law firm operates in practice, beggars belief and is simply not credible.

[74] The purpose of supervision and guidance to a restricted practitioner is to supervise, guide and check the work of the employee, for which the person has spent many years in learning and training. In short, supervision and guidance in the legal profession is not to train the employee on the basics of what might reasonably be expected to have been learnt at University, or by personal inquiry and research.

[75] In any event, the extent to which the applicant was supervised and guided by Mr Bassett-Scarfe and Ms Smilovitis constituted training, there is an abundance of evidence – even from the applicant herself – that she was regularly counselled and advised of what was expected of her, and what was necessary to address her shortcomings. In addition, arrangements had been made to have a senior experienced Counsel provide her with support and guidance on criminal matters. To suggest a formal training plan was necessary in a small and busy law firm, is both unrealistic and impractical. It is not the intention of the Code. Accordingly, I would ‘answer the applicant’s question’, by stating that no formal plan was necessary, practical or reasonable, and importantly, such a plan was not a requirement of the Code.

[76] Lastly, in deference to the applicant’s wide-ranging submissions as to the reasons and explanations for her failure to improve her performance; see: [24] above, and which I accept she reasonably believes, I make the following comment. Apart from her complaint to Ms Smilovitis of 11 July 2019, see [35] above, which I note was made only four days after her three month formal warning, there was no evidence of the applicant raising these excuses or explanations until these proceedings or when the termination of her employment was imminent. The complaint to Ms Smivolitis seems to be the only cogent evidence of the applicant being ‘upset’ with Mr Bassett-Scarfe’s conduct; the email goes no higher than she was upset with his notations and his ‘alleged storming around the office’ and about her tasks in respect to reviewing an Association’s constitution. It is not described as ‘bullying or intimidatory’ conduct of Mr Bassett-Scarfe or him constantly threatening her with dismissal. In any event, there was not much evidence about this incident. On its face, given the task was to check the statutory requirements relevant to an Association’s constitution, it was hardly a complex or time-consuming task for a trained solicitor. In addition, it is difficult to reconcile the applicant’s allegation of Mr Bassett-Scarfe’s bullying and intimidation and constant threats, with her other evidence that he often ignored her, she had been happy with Ms Smilovitis’ support and guidance, and that the other witness evidence was that although the Firm was busy, it was friendly and collegiate. Indeed, the applicant herself said it was great place to work (if it wasn’t for Mr Bassett-Scarfe).

[77] It seems to me that it would have been somewhat unrealistic to expect Mr Bassett-Scarfe to have been ‘thrilled’ by the complaint the applicant had made about him to the LPCC which, as far as I am aware, has not been pursued, let alone substantiated.

[78] Further, the applicant’s evidence that she was not given enough work (to improve her billable hours), is difficult to reconcile with her admission that she had never raised this claim until these proceedings. With little evidence, the applicant assumed that allowance was not made for non-billable hours, ‘write offs’ of her invoices, changes in the scope of tasks or redrafting documents, which had adversely impacted on her performance.

[79] Lastly, to suggest that ‘interruptions’ at work such as taking phone calls or attending the front desk during busy times, could result in a concentration loss of 23 minutes before ‘regaining focus’, is simply nonsense. In any event, the author of the study she relied on does not evaluate minor interruptions, such as ‘phone calls’ in a small busy legal practice. It would seem incomprehensible that ‘interruptions’ of this kind, for a trained solicitor, would impair such a person for 23 minutes. Moreover, this matter was a post facto explanation and little more than the applicant’s ‘clutching at straws’, to justify her otherwise weak case.

[80] For all the above reasons, I conclude that the respondent has met its obligations under the Code and complied with all its requirements. In these circumstances, the applicant’s dismissal by Peel Legal on 4 October 2019 was not an unfair dismissal, pursuant to s 385 of the Act. Accordingly, the Commission has no jurisdiction to consider the merits of the application and it must be dismissed. I so order. These proceedings are concluded.

Postscript

[81] Notwithstanding the above conclusions, I have great admiration for a mature aged woman who embarks, for the first time, on a career in the law after being prompted to do so by the wrongs in society’s institutions she had experienced and witnessed arising, in particular, from the adverse findings of the Hayne Banking Royal Commission. That said, I note her comments that she was ‘surprised’ she passed her probationary period, and in late 2018, she had considered resigning, due to the pressures of work and study. In my opinion, these are indicia, perhaps, of Peel Legal not being the right ‘fit’ for her at this point in her legal career. That is not to say she will not become a very good lawyer, but this might best be achieved in a larger, more diverse firm, rather than a small and busy boutique firm, such as Peel Legal.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Mr S Kemp, Kemp and Associates, for the respondent.

Hearing details:

2020.

Perth:

7 February.

Printed by authority of the Commonwealth Government Printer

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ANNEXURE ‘A’ (Note: this Annexure is “Annexure B” in the Agreement)

ANNEXURE ‘B’ (Note: this Annexure is “Annexure C” in the Agreement)