Ryan Licastro v Patrick Robinson and Co T/A Patrick Robinson and Co

[2018] FWC 5931

[2018] FWC 5931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Licastro
v
Patrick Robinson and Co T/A Patrick Robinson and Co
(U2017/13361)

COMMISSIONER WILSON MELBOURNE, 24 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] This decision concerns the merits of Ryan Licastro’s dismissal by Patrick Robinson and Co (Patrick Robinson), a Melbourne law firm. An earlier jurisdictional decision made by Deputy President of Gostencnik found that Mr Licastro’s employment with the Respondent ended on 19 December 2017. 1 In the course of the jurisdictional decision the Deputy President noted that there had been withdrawal by the Respondent of two further jurisdictional objections namely whether Mr Licastro’s earnings were above the high income threshold and whether the Respondent’s firm was a small business.2

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. As a result of the jurisdictional decision it is unnecessary for me to consider questions either of whether Mr Licastro was a person protected from unfair dismissal or whether his dismissal was consistent with the Small Business Fair Dismissal Code. The jurisdictional decision also addressed and overcame the matter of whether the application was lodged prior to the date of dismissal, and so as a result it is also unnecessary for me consider whether the application was within the time period allowed for within the Act. Finally, in relation to s.396 no argument has been put before me to the effect that Mr Licastro’s dismissal was a genuine redundancy. As a result of these considerations there are no initial matters requiring consideration before the merits of the application.

FORM OF PROCEEDINGS

[3] Prior to the commencement of proceedings I indicated to the parties my views about the form in which the proceedings should take (s.399) and suggested to them that I considered it appropriate for the matter to proceed by way of a hearing since there were factual matters requiring determination in an environment in which there was some significant contest between the parties. No person objected to this approach and so the matter proceeded by way of a hearing.

[4] For the reasons set out below, I have found that Mr Licastro was not unfairly dismissed and accordingly his application for unfair dismissal remedy must itself be dismissed.

PERMISSION FOR REPRESENTATION BY A LAWYER

[5] On 24 August 2018 Patrick Robinson, the Principal of his firm, advised the Commission that he sought to be legally represented in order for there to be a dispassionate presentation on behalf of the Respondent to the Commission. Mr Robinson also disclosed a concern on his part that it may be difficult for him to appropriately proceed without legal representation. That application was objected to by the Applicant, Mr Licastro who is professionally a lawyer, but would be unrepresented in these proceedings.

[6] The Respondent's application is taken to be a request for permission to be granted pursuant to s.596(2)(b) of the Act, which goes to the unfairness that would arise because the Respondent is unable to represent itself effectively. The Applicant objected to permission for legal representation to be granted, particularly for the reason that it would not enable the matter to be dealt with more efficiently and that it would not be unfair to the Respondent to be required to represent itself since its principal Mr Robinson is himself a solicitor.

[7] I had regard not only to the submissions that each party has made about the question of representation, but also to the various submissions, witness statements and documents filed in these proceedings, including in the initial jurisdictional matter and earlier and incomplete proceedings conducted before Commissioner Cribb including having regard to the transcript of the hearing before her. Moreover, I also had regard to the decision of Senior Deputy President Richards in the matter of CEPU v UGL Resources Pty Ltd (Project Aurora)[2012] FWA 2966, in which the Commission discussed the ascertainment of the view as to whether a person is unable to represent themselves effectively (see [10] – [16]), with it being noted both that establishing an objective standard on the subject of the criterion within s.596 (2) (b) would be "particularly elusive" as well as:

“[16] It appears, then, that before permission to be represented can be granted, a person must be unable to represent himself, herself or itself effectively, and following the plain language definitions of the Macquarie Dictionary (Revised Third Edition) and the Australian Concise Oxford Dictionary (Third Edition), this means the person must be unable to represent himself, herself or itself in a manner that creates a “striking impression”, or which has an “impressive” effect or which is “powerful in effect”.

[8] In the circumstances, and after considering Mr Robinson’s submissions, which highlight the difficulties he perceived in continuing to represent himself, I was persuaded that he may be unable to create the “striking impression” referred to in CEPU v UGL Resources. As a result of these considerations, I granted permission to the Respondent to be legally represented in the proceedings before me, with Mr Zero Partos of Counsel appearing.

BACKGROUND

[9] Ryan Licastro commenced employment with Patrick Robinson and Co on 20 March 2017 and was employed by the firm as a personal injury lawyer. Mr Licastro was admitted to legal practice in 2010 and has practised since in the area of personal injuries. Before being employed by Patrick Robinson and Co he had been employed by two other firms involved in personal injury law, Ryan Carlisle solicitors of Geelong and IPD lawyers. Mr Licastro applied for a position with the Respondent as a Senior Personal Injury Solicitor and was successful in obtaining that employment on a salary of $130,000 per year with superannuation to be paid in addition to that amount. 3

[10] Evidence was given in the matter by Mr Licastro and Mr Robinson, each on their own behalf, and by Ana Fernandez, a legal secretary employed by Patrick Robinson and Co, with her giving evidence on behalf of the Respondent.

[11] Despite the Respondent not pursuing the jurisdictional objection that it was a small business employer within the meaning of the Act, it nonetheless is a small firm, with around 17 people engaged in it. 4 In addition to Mr Robinson and Mr Licastro, the firm employed only a handful of other lawyers, with four other people indicated in the Applicant’s list of employees as lawyers.

[12] The evidence given by Mr Robinson is that his firm has operated since 2 July 1990 and that since establishment the firm has acted on a no-win/no fee basis for injured people. The firm operates by word-of-mouth, advertising in only one community newspaper. Mr Robinson’s evidence was that the firm always tries to be optimistic about potential cases and that it would try cases that other firms would not. It was always his firm and he expected that other solicitors engaged within the firm would come and discuss matters with him with him being the person who decided what the firm takes on or not. 5

[13] That evidence, together with the tenor of the other evidence given by Mr Robinson, leads to the conclusion that the firm is strongly led by Mr Robinson personally, with the expectation that those working in the firm do so in accordance with the parameters set down by Mr Robinson.

[14] Mr Robinson has a firm belief that client conferences should always be conducted face-to-face and that decisions about the taking on or the turning away of work were decisions to be made by him. The evidence given by Mr Licastro leads to the conclusion that he did not particularly see a need to do either. He saw it as more efficient, both for the firm, as well as clients, to conduct client conferences by telephone and he saw it as consistent with his status as a Senior Solicitor to make decisions about the taking on or turning away of work.

[15] The actual work performed by Mr Licastro involved working on personal-injury files, which involved progressing cases from initial client contact through to preliminaries such as the obtaining of medical and other reports and making contact with insurers, as well as eventually commencing and conducting the process of litigation where that became necessary. Mr Licastro said that when he commenced with Patrick Robinson and Co he took on quite a number of partly completed files from a previous lawyer. The evidence overall on the subject of the cases would indicate that each file would operate over a period of at least many months and potentially several years. Mr Licastro gave evidence that because of this, as well as the state in which he inherited files, each of the files were at various different stages. His evidence also included that there are some practical difficulties, as well as workload difficulties in progressing the files.

[16] The Respondent indicates that when Mr Licastro left the firm he had been responsible for approximately 65 files. 6

[17] On 14 November 2017 Mr Robinson went to see Mr Licastro about some concerns he held. Mr Robinson led evidence during the hearing that the concerns raised during this discussion included the following:

• That Mr Licastro’s method of conducting his work was at odds with the way the firm practices in particular with regards to his communication style; 7

• That Mr Licastro failed to listen to critique and amend his behaviour accordingly, instead he argued against such advise; 8

• That Mr Licastro was mismanaging his files, highlighted with respect to client AA because he had failed to apply for a waiver for court hearing fees as he was unaware that such an application was available to the client 9 and

• That there were serious concerns regarding Ms Licastro’s knowledge base in personal injury. 10

[18] Mr Robinson’s evidence was that prior to this meeting he held some concerns about Mr Licastro’s performance from fairly early within the employment relationship but that he had not previously articulated those concerns to Mr Licastro. These concerns were held particularly around his management of files based on a potentially sub-level knowledge base. 11 These concerns were born from the management of two files in particular of client P and client U:

Client P:

• Mr Licastro acted against the instructions of client P when he contacted the Accident Compensation Conciliation Service to advise that the firm was acting for client P after specifically being told by the client not to take any further action as he wanted to keep the fact that he was seeking legal advice private from his employer until he had decided how he wished to proceed. Client P left the firm as a result of this. 12

Client U:

• Mr Licastro was instructed to take on client U’s file from a previous solicitor with the client providing the signed authority for this transfer. However, after failing to forward on the client’s signed authority, documents continued to be provided to the previous solicitor who in turn contacted the client causing distress to the client. When client U rang to discuss the issue with Mr Licastro he did not answer and therefore the client reverted back to his previous solicitor. 13

[19] The evidence from both parties is that the precipitator for the 14 November 2017 meeting had been Mr Robinson learning that Mr Licastro had missed a particular date in respect of litigation involving client D. 14 Mr Robinson was also concerned that Mr Licastro was not seeing clients face-to-face, was making decisions about the taking on or turning away of work, and was not taking client phone calls when they rang.

[20] The meeting was obviously robustly conducted. Mr Licastro considers that the meeting turned into an ambush, 15 but that despite the situation he had endeavoured to provide reasons for missing the deadline as well as that he had reasons for progressing files as he saw fit. The product of the meeting was that Mr Licastro was told he would be given a written warning about the future of his employment. Mr Robinson kept a file note about the conversation which includes the following material:

“Speaking to Ryan on Tuesday, 14 November 2017.

We begin by talking about [client AA] but I say to Ryan having commenced this discussion I would like to raise with him a number of concerns that I have about his work.

I say to him that with respect to [client AA] he has not done a waiver for the client.

He is aware of our practice of applying for a waiver of Court fees for our clients' as he has done it on another file.

However not doing it on [client AA] has potentially cost me up to $5,000.00 or more which will not be recoverable from the client as he does not have two bob to rub together.

I also say to him that the tax issue was in the memorandum of conference on the file.

He clearly has not fully read the file.

Ryan says that the file was 18 volumes and it was impossible to read everything.

I say to him that one of the essential things that should be read in court preparation is the memorandum of conferences that are on the file.

I turn to [client PF] and I say that I have never seen a serious injury prepared in the way that one was prepared.

I say to him that on the Affidavit and draft statement of claim Company A is listed.

On the application that he has prepared to accompany the Affidavit and draft statement of claim, Company B is named.

Finally when the OM is issued Company C is named.

Ryan tells me that he spoke with two barristers [Barrister name removed] and [Barrister name removed] about this application and they are both experienced barristers.

I say to him that he may have spoken to them about the matter generally but the fact is that the Serious Injury application and the OM have listed three separate companies which I do not believe the barristers would have thought was the proper way to do the application.

I say that potentially there could be serious difficulties here with this matter.

The Serious Injury application has been issued against company B.

Following rejection of that application we had 30 days to issue an OM against company "B" and we have not done that we have issued against company "C".

This is a course of employment matter and we now may well have a serious difficulty pursuing company "B" one of the three companies that we have targeted.

In addition we have to start a serious injury application against Company C which was the employer as at the time of our client's industrial accident.

I say that the client may well have lost four or five months here.

This is a client who is in financial difficulties.

Ryan says that he does not believe that [client PF] is in financial difficulties.

He talks about objects that [client PF] says that he has got at home and says there does not seem to be any shortage of money.

I say that is not the point.

I say that I think that he has lost me two clients.

The first was [client P].

This man came into to see us in conference we gave him a lot of advice about his claim which was potentially an enormous claim because his earnings were so large.

I have a memory that they were something like $300,000.00 a year.

In any event Ryan has not mentioned the salary on his memorandum of conference.

The client wanted advice but made it clear he did not want our input into the conciliation that was happening at the ACCS.

He did not want to make any significant claim at this point of time because he basically wanted to return to work and preserve his job which was so well paid.

Despite these instructions which I remember clearly, Ryan has no reference to them at all in his memorandum of conference.

Subsequent to the conference he has contacted the conciliation service who have in turn contacted the client and the client has become quiet angry with us.

I had to apologise to him but I suspect very strongly we will not see him back at this office again given our failure to follow quiet clear instructions.

The second matter was [client U].

I say we were taking over his file from [previous solicitor name] at Dandenong.

The client signed an authority for us to act.

The authority sat on the file.

[previous solicitor name] received the Section 98 determination and contacted our client.

Our client contacted us but his calls were not taken or answered.

Subsequently [previous solicitor name] convinced him to come back to his firm.

If the authority had been sent to [previous solicitor name] he would have had no right to contact our client.

If those calls had been answered we may have rectified the situation that had occurred.

I say that with [client PK] that file was transferred to [internal lawyer at Patrick Robinson & Co] because Ryan was resistant to the client's intention to pursue her equal opportunities claim.

It is not Ryan's call as to whether we will assist her in that matter. It is mine.

We risk losing the client if that is what is she wants to do and we do not follow her instructions.

I say to him that his legal knowledge and legal experience is surprisingly limited.

He has been in practice for six or seven years before he came here but has only really

practiced in work cover matters.

He may know serious injury but he has large gaps with common law.

He asks what I mean by that and I say that he had to ask me how to do an Affidavit of

Documents.

He was not aware about the court rule about service of medicals.

Finally I heard him speaking to [internal layer at Patrick Robinson & Co] to ask about a summons to witness.

He has done some TAC but has never done a VCAT application.

He says that he enjoys his work and wants to continue with it.

I say to him that he must cover the gaps m his knowledge as quickly as possible.

In this firm we have contact with the client.

We have clients who come here from other firms and their main complaint is that they can never speak to their solicitor.

Solicitors at this firm deal with clients and build relationships with them.

We are a word of mouth firm essentially and referral by past clients is the main source of our work.

We solve the client's problems for them.

We do not have a situation that occurred with him in the matter of [client D] where the son rang saying that there had been a breakdown in payments by the insurer/employer.

Ryan's advice was for [client D]'s son to contact the insurer and ask for the matter to be rectified.

I say that is our job.

He disputes that he made this call and gave that advice to the client.

I say that is not what I saw on a telephone attendance at the time.

I say to him that he must communicate with his clients.

They are entitled to be told how the case is going.

They are entitled to have their difficulties resolved with our assistance.”

[21] The warning alluded to in the meeting of 14 November 2017 was actually given to Mr Licastro on 28 November 2017, with the warning specifying the following things:

“Tuesday, 28 November 2017

Mr Ryan Licastro

Ryan,

I refer to our initial discussion approximately three weeks ago in respect to your work performance.

We spoke again on Wednesday, 22^nd November 2017 after that it had come to my attention that you had not issued an Originating Motion in the matter of [client D] within 30 days of receiving the rejection notice.

In these conversations I raised with you a number of serious concerns that I had as to the quality of your work.

In particular I referred to the following matters;-

l. Serious Injury application [client D]

You filed the County Court Originating Motion application approximately one month out of time.

You asserted that this was under control.

You had an understanding with [Defendant’s Solicitor’s name] the defendant's solicitor and there would not be problem with this time issue.

You said then when you received the response material rejecting the application you rang [Defendant’s Solicitor’s name] and expressed your view that our clients' Serious Injury application was very strong, and should have been accepted.

[Defendant’s Solicitor’s name] conceded that the application probably should have been accepted and said he would have a look at the matter again and asked you put on hold the issue of the Originating Motion.

You have then allowed the 30 day time limit to expire without filing the Originating Motion at Court.

In deciding on this course of inaction without speaking to the client or myself you have put the clients claim at risk and exposed this firm to a potential negligence claim.

If ultimately we are forced to apply to a Court for the Originating Motion to be accepted out of time on the basis of your discussions with [Defendant’s Solicitor’s name], he may or may not confirm your version of those conversations.

I asked if you had confirmed the content of your discussions with [Defendant’s Solicitor’s name] in writing but you did not directly answer that question.

I note that [Defendant’s Solicitor’s name]'s principal is [Defendant’s Solicitor’s Principal name] who is a tough opponent not prone to granting indulgences.

Ultimately if Work Cover does not accept the application out of time and we are unsuccessful in an application to the Court. I will have to advise [client D] that we can no longer act for her.

I will have to recommend that she instruct other solicitors to act for her in her possible action against this firm for your negligence.

I will also have to refer this matter to my insurer.

The basic excess when a claim is made against this firm is $5,000.00. This amount is doubled when the claim arises from a failure by the firm to comply with a time limit.

Accordingly the excess in this matter will be $10,000.00.

[client D] has a strong claim. You made the comment that [client D]'s psychiatric injuries were the worst that you had seen.

The firm will lose the professional costs that would have resulted from the successful conduct of this claim ($40,000.00 to $70,000.00).

This will be the first negligence claim against this firm in many years.

2. [client D]

There was an earlier issue when [client D]'s weekly payments were stopped without cause by the insurer and/or employer.

[client D]'s son rang this office to seek our assistance in this matter and you advised him to contact the insurer and deal directly with them in relation to this issue.

In our conversation last week you denied giving this advice but I attach hereto your diary note of that conversation.

You should have dealt with this issue on behalf of the client.

3. [client AA]

[client AA] has limited income and no assets.

He clearly qualified for a waiver of Court Fees.

Since coming to this office you have been made aware of our practice of application for a waiver of Court fees on behalf of clients of limited means.

You told me that you did not do this because you did not believe the waiver application to Court hearing fees.

I have been advised by other staff members that you were made aware of this firms practice to assist clients in applying for a waiver of Court hearing fees.

In any event, it was something that should have occurred to you.

The result of this is that the firm has incurred a significant unnecessary cost which may amount to $5,000.00 approximately.

3. [client P]

We conferred with [client P] at these offices.

[client P] suffered a disc injury in the course of his employment with Metro trains Melbourne Pty Ltd performing quite unique work.

I recall that [client P] was paid a very large salary for his work.

His possible serious injury/common law claim is probably worth well in excess of half a million dollars.

[client P] sought legal advice only.

He had concerns about keeping his job and resulting salary.

I clearly recall his instructions at the conference that he did not want us to take any steps on his behalf particularly in respect to the conciliation that was already on foot.

In your memorandum of conference there is no reference to these instructions nor to his quite significant salary.

Despite his instructions you have subsequently contacted the conciliation service who in turn then contacted [client P] about our involvement. [client P] was rightly very aggrieved by our failure to follow his very clear instructions given at conference.

I subsequently apologised to a very angry [client P].

He has not contacted us subsequent to his conciliation. l do expect him to do so in the future.

5. [client O]

You conferred with [client O] at these offices on 17 October 2017.

It is clear from the diary notes leading up to that conference that [client O] was quite concerned about his income situation, following the termination of his employment.

Your diary note of your conference with [client O] was typed up at my request one month after the conference. This note confirms that you advised [client O] at conference as to his possible Work Cover Serious Injury/Common Law claim and recommended that he seek a referral to [Professor’s name].

There is no reference to any discussion as to any available options in respect to

[client O]'s immediate financial situation.

You have sat in on a large number of conferences with me where I have dealt with clients in a similar situation and all alternative income sources have been investigated.

This did not occur in this instance.

A reading of the material on file indicates that an insurance medicolegal specialist stated that [client O] had an accepted Work Cover restricted duties claim.

In these circumstances if there had been continuity of certificates following acceptance of claim then he would have had an entitlement to reinstatement of Work Cover weekly payments of compensation. This would have eased his income situation following the termination of his employment.

Shortly after his conference with you [client O] instructed other solicitors to act on his behalf.

6. [client F]

You prepared this client's Serious Injury application which named Company (A) on the application, whereas company (B) had been named by Counsel on the supporting affidavit and draft statement of claim.

The application was rejected and you then issued a County Court Originating Motion against company (C). A County Court Originating Motion was not issued against Company (A) within the 30 day period

Subsequent to the defendant solicitors drawing our attention to the irregularities in your application a further serious injury application has been lodged against Company (C).

An application has been lodged with the Court to amend the names of the defendants in respect to the County Court Originating Motion application issued against Company (C).

There may be a successful resolution of the issues that have arisen from the irregularities in the naming of the defendants as detailed above. However this will depend on the response of the defendant's legal practitioners and the Victorian Work Cover Authority.

In our discussions, I expressed my concern about your lack of knowledge of certain essential steps in the Common Law process. This must improve.

I spoke with you about your lack of communication with clients where you expected your support staff to deal with enquiries made by clients, despite the fact that some clients were ringing on numerous occasions asking to speak to you as their solicitor without receiving your response.

This is a formal warning that the quality of your work has not been of the required professional standard. Your productivity must improve.

Please immediately review all files under your care and control to ensure that all necessary steps are being taken to protect and progress our clients claims for compensation and/or damages.

Yours faithfully,

PATRICK ROBINSON & CO”

[22] After receiving the warning Mr Licastro’s evidence is that he continued to work on his assigned files and believed that he was doing so appropriately.

[23] There was then a further conversation between the two on 12 December 2017. Mr Licastro gave his evidence that he had not met with Mr Robinson about professional matters between the two meeting of 14 November 2017 and 12 December 2017. 16 Mr Robinson’s evidence is that the 12 December meeting was precipitated by him learning some other matters associated with the files being managed by Mr Licastro which concerned him greatly.17

[24] In particular Mr Robinson said that the matters which had changed between the November warning and 12 December 2017 which caused the need for the conversation on 12 December were the diary notes he saw about the client M calling to speak with Mr Licastro but with those calls not being answered, as well as the issue associated with the client F Mr Robinson had not been aware of either of those matters when he wrote the warning letter on 28 November 2017. 18

[25] Mr Robinson’s evidence is also that when he went to see Mr Licastro on 12 December 2017 he did not at that time at least intend to dismiss him. At the start of the meeting it had been his intention to discuss the matters associated with clients F and M, but had not made up his mind to terminate Mr Licastro. 19 It was Mr Robinson’s evidence that he formed the view there should be a dismissal after discussion of these matters in the first part of meeting on 12 December as well as the comments which Mr Licastro had made to him about the client F, including that in relation to client F his was a “a shit case and he's a criminal”.20 Mr Robinson became convinced from comments such as these that Mr Licastro was “an extreme danger” to his company and that he “was an unguided missile”.21

[26] Mr Robinson also put forward that Mr Licastro’s conduct had left his firm severely exposed financially with one matter, client D, now with his professional indemnity insurer and another, client F, potentially to be referred as well. His professional indemnity insurance arrangements included a $10,000 excess payment in each case. 22

[27] Mr Licastro denies strongly that he referred to the matter involving the client F as being a “shitty” case 23 and strongly contests the characterisation of his performance put forward by Mr Robinson, saying that, in relation to his methods of contact with clients, he was doing so efficiently, and that in relation to his handling of the files, he was making decisions properly, albeit under some level of high workload which may explain some of the problems which are merged.24 For example in respect of client D, he had initiated contact with the opposing solicitors, seeking to and obtaining their commitment that the relevant time frame for filing would be put on hold until instructions from the Victorian WorkCover Authority had been obtained which could impact whether the Defendant dropped its objection to the application. Mr Licastro puts forth was used in the offices of his previous employers.25 Mr Robinson notes in respect of that matter that the opposing solicitor had subsequently reneged on any commitment that may have been given about putting a hold on filing, which meant that the filing in the application was done out of time.26

[28] A termination letter confirming Mr Licastro’s dismissal was not provided to him by Mr Robinson, although Mr Robinson completed a file note about the conversation which is in comprehensive terms. It is accepted in evidence by Mr Licastro that the file note is in relatively accurate form except for some matters, and especially about it being stated that he had said that the case involving client F was a “shitty” file. 27 Despite the differences between the parties about the accuracy of the file note, I consider the evidence to be such as to allow a finding that the file note is, in its overall condition, a reasonably accurate recollection not only of the matters discussed, but some of the tone in which Mr Robinson and Mr Licastro exchanged their views. The contents of the file note include that the following matters were communicated by Mr Robinson to Mr Licastro as the reasons for the latter’s dismissal:

• A failure to take the necessary steps to effectively progress client M’s file coupled with an inability to receive constructive feedback or direction to enable him to achieve a better resolution for the client;

• A failure to obtain the correct taxation material in client F’s file, leading to the claim not being accepted by the insurer; and

• A failure to lodge materials in time in client F’s file or take the necessary steps to locate the client coupled with an inability to take responsibility for the deficient work on the file or receive direction on how to improve outcomes in future in similar circumstances. 28

LEGISLATION

[29] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[30] Determination of whether Mr Licastro’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[31] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 29

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 30

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 31

• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 32

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 33 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 34” (original references)

[32] I will deal with each of the criteria within s.387 in turn.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[33] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“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 (1995) 60 IR 1, when considering the construction and application of s 170DC.” 35

[34] The reasons set out in the Form F3 Employer Response Form in these proceedings summarise Mr Robinson’s decision to dismiss Mr Licastro as involving three considerations as follows:

“1. The Applicant’s knowledge of injury law was very limited. His work was not of the competent professional standard which resulted in a number of clients leaving this business.

2. The Applicant refused to take clients calls and to deal with issues that they had with WorkCover in respect to their statutory entitlements.

3. The Applicants unilaterally decided to ignore mandatory statutory time limits thereby putting this business at risk of being sued for his professional negligence.” 36

[35] Those matters are in different form to the matters are set out in the 12 December 2017 file note kept by Mr Robinson, however they somewhat reasonably summarise the matters upon which Mr Robinson obviously relied when it came to dismiss Mr Licastro.

[36] It may be taken both from the file note as well as the above summary that the matters set out in the summary were the ones that concerned Mr Robinson when he walked into the room with Mr Licastro on 12 December 2017 and which he sought to agitate with Mr Licastro. It may also be taken from what was said by both witnesses about the meeting that when Mr Robinson saw that there was no acceptance on the part of Mr Licastro that he needed to change and work to the way the firm or Mr Robinson expected him to work that the decision was made to dismiss him. The comments about the client F were undoubtedly the final straw. From those comments Mr Robinson discerned a complete misalignment of values and expectations as well as formation of the view, expressed in his oral evidence, about the risks of continuation of Mr Licastro’s employment.

[37] Mr Licastro strongly contests the recollection put forward by Mr Robinson about the discussion they had on the file associated with client F and in particular that he referred to the case as being “shitty”.

[38] To the extent there is conflict between the evidence of Mr Robinson and Mr Licastro, I prefer that of Mr Robinson’s.

[39] I have no doubt from viewing the totality of this file in the evidence given in the matter and the way the parties have engaged with each other that Mr Robinson robustly and potentially even vociferously stated to Mr Licastro his expectations of him as a lawyer, by no later than the warning conversation the two had on 14 November 2017, if not actually earlier. I doubt very much that there could have been much in the way of ambiguity about Mr Robinson’s displeasure at that time or what a warning might mean and especially if the content of the warnings were unheeded. I do not doubt that by late November that Mr Robinson’s expectations about how the firm expected Mr Licastro to operate with clients, by meeting them face-to-face, by taking their calls and by seeking his views about important decisions relating to the conduct of the file, were absolutely crystal clear. The product of all of the material before the Commission leads to such a conclusion and does not lead in a different direction such as might give rise to the perspective that Mr Licastro simply was not told or was not managed on these things. In short this was a firm whose motto may well have been “it’s my way or the highway”.

[40] Because Mr Licastro endeavours to downplay the importance of the 14 November 2017 meeting and the subsequent written warning and that his recollections about what then occurred in early December and on 12 December 2017 are similarly muted, his evidence on these matters is simply less plausible than the evidence given by Mr Robinson. A muted, low-concern recollection of what were most likely robust and difficult conversations is, frankly, difficult to draw from the evidence.

[41] Having accepted Mr Robinson’s evidence about the tenor of the conversation on 12 December 2017 and the matters discussed within it, it follows that I accept Mr Robinson’s proposition that when he went into the meeting he did not at that time have an intention of dismissing Mr Licastro and that he only formed a view about the dismissal when it became clear there was no acceptance of the matters he was discussing with Mr Licastro and that there was in effect a misalignment between their respective expectations.

[42] Given that the warning provided to Mr Licastro on 28 November 2017 had pointedly taken him to the need for him to improve his knowledge of what Mr Robinson regarded as essential steps in the common law process; that he needed to communicate better with clients; and that quality of his work needed to improve to the required professional standard, Mr Robinson was entitled to form the view in the meeting on 12 December 2017 that the matters discussed between them had not been acted upon sufficiently and were unlikely to be acted on in the future.

[43] The evidence overall leads to the conclusion that Patrick Robinson and Co had a valid reason for Mr Licastro’s dismissal relating to his capacity or conduct.

(b) whether the person was notified of that reason

[44] I am satisfied that Mr Licastro was notified of the reasons held by Patrick Robinson and Co for his dismissal. I am satisfied that the summary included within the Employer Response Form is broadly consistent with what may be regarded as a summary of the matters discussed with Mr Licastro in the dismissal meeting on 12 December 2017.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[45] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 37

[46] In this matter while I have found that there was a valid reason for Mr Licastro's dismissal, the evidence would not lead to a finding that Mr Licastro was given an opportunity to respond to the reasons held for his dismissal. This is because Mr Licastro’s dismissal took place shortly after Mr Robinson formed the view that it was necessary and within the same meeting in which he formed that view.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[47] Mr Licastro argued in his cross-examination of Mr Robinson that procedural fairness included “to afford someone a support person with any sort of meeting with their employer”. 38 Such proposition though is not the meaning of s.387(d), with the Act’s Explanatory Memorandum making it plain that the consideration is for those times when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. There is no positive obligation on an employer an employee the opportunity to have a support person present.39

[48] There was no refusal by Patrick Robinson and Co for Mr Licastro to have a support person in any discussions that were had about the future of his employment, with none being asked for. Accordingly, this factor is a neutral consideration in my decision.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[49] The evidence shows that Mr Licastro was provided with a warning about his future employment on 28 November 2017. That correspondence plainly sets out to Mr Licastro that changes are required to his performance and what those changes were. I have no doubt that any person receiving the letter in question would have understood at that point, if not before, that there future employment was in jeopardy and that without significant and sustained change to their work performance, they would be dismissed.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[50] As set out above, Patrick Robinson and Co is a small business, albeit not within the definition of the term within the Act. Notwithstanding its size, there is no evidence before the Commission that such impacted on the procedures it followed in effecting the dismissal of Mr Licastro.

[51] Demonstrably, Mr Robinson had sufficient knowledge of proper employment practice to advise Mr Licastro of his concerns about his work performance and warn him of the consequences of a failure to address those matters. In such context it would appear unlikely that the size of the enterprise impacted upon the procedures Mr Robinson followed in effecting Mr Licastro’s dismissal. In some respects the dismissal was a product of the things Mr Robinson heard, or perhaps did not hear, in the course of the meeting on 12 December 2017 and it is probable that the enterprise’s small size had no particular impact on what was essentially a spur of the moment reaction.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[52] Similarly, there is no evidence that the absence of dedicated human resource management specialists or expertise in Patrick Robinson and Co enterprise likely impacted on the procedures that followed in effecting Mr Licastro's dismissal.

(h) any other matters that the FWC considers relevant

[53] The Commission does not consider there are any other matters requiring to be dealt with in this decision.

[54] After considering each of the criteria within s.387, the only matter which falls in potential favour of Mr Licastro is the fact that he was not afforded an opportunity to respond to the reasons held by the Respondent for his dismissal. However, I consider that the failure by Mr Robinson to afford Mr Licastro that opportunity is explained by the overall circumstance in which the two found themselves. In particular a warning had been issued by the Respondent to Mr Licastro in late November following a meeting with him about two weeks prior to that and, in the course of the meeting on 12 December 2017 Mr Robinson was simply not satisfied that there had been any change on Mr Licastro's part or that there would be any meaningful change within a reasonable period. I consider in overall effect that even had Mr Licastro been given an opportunity to respond to the reasons for dismissal held by Mr Robinson that his response would not have been especially meaningful or likely to give rise to any matters that would reasonably persuade Mr Robinson that dismissal should not occur.

[55] As a result, I am unable to find that Mr Licastro was unfairly dismissed.

[56] As a result, Mr Licastro’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr Ryan Licastro on his own behalf.

Mr Z. Partos of Counsel for the Respondent.

Hearing details:

2018.

Melbourne:

29, August.

Printed by authority of the Commonwealth Government Printer

<PR700723>

 1   [2018] FWC 1436.

 2   Ibid, [2].

 3   Exhibit R1, Witness Statement of Patrick Robinson, pg. 1.

 4   Exhibit A1, Witness Statement of Ryan Licastro, pg. 4.

 5   Transcript, PN471 – PN473.

 6   Exhibit R1, pg. 1.

 7   Transcript, PN157.

 8   Transcript, PN491.

 9   Transcript, PN489.

 10   Transcript, PN490.

 11   Transcript, PN483.

 12   Exhibit R1, pg. 2; Transcript, PN484.

 13   Ibid, pg. 3; Transcript, PN483.

 14   Transcript, PN26 – PN27, PN550.

 15   Transcript, PN27.

 16   Transcript, PN28.

 17   Transcript, PN502 – PN512.

 18   Ibid.

 19   Transcript, PN513 – PN514.

 20   Transcript, PN537.

 21   Transcript, PN539, PN 602 – PN604.

 22   Transcript, PN603.

 23   Transcript, PN609.

 24   Transcript, PN610.

 25   Transcript, PN34.

 26   Transcript, PN495, PN550.

 27   Transcript, 609.

 28   Exhibit R2, Bundle of Documents, attachment 4.

 29   Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

 30   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 31   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 32   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 33   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 34   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 35   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 36   Form F3 Employer Response Form, item 3.1.

 37   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 38   Transcript, PN 535.

 39   Explanatory Memorandum to the Fair Work Bill 2008, [1542].