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Principal to pay compensation for ‘harsh, unjust’ dismissal of solicitor
In the weeks prior to the first of the COVID-19 lockdowns and amid allegations of a failure to pay commissions, a founding principal handed termination letters to two of his employees. Following a lengthy procedural history, the Fair Work Commission found that the dismissals were unfair and ordered him to pay at least $24,000.
Naomi Neilson
Under a police watch and in front of colleagues, founding principal Brett Galloway requested that solicitor Raymond Zhai leave the office building. In a termination letter, Mr Galloway accused Mr Zhai of becoming “aggressive and rude” and had caused Mr Galloway “personal embarrassment” with a client. The Fair Work Commission found no evidence to suggest this dismissal was warranted.
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In the original hearing, Mr Galloway was ordered to pay compensation to both Mr Zhai and a non-legal female employee. However, following the full bench’s decision to uphold Mr Galloway’s appeals, the matter was handed to the Fair Work Commission to decide whether Mr Galloway could file and rely on further evidence.
The Fair Work Commission found that an observation of a deputy president that the manner in which Mr Galloway, including through his legal representatives, engaged with the commission “fell well short of the standard expected of a ‘highly experienced and regarded lawyer’” was appropriate. The Fair Work Commission criticised Mr Galloway on his “poorly laid out” witness statement, submissions and delays.
One such criticism came from the “large amount of valuable time lost” during the proceedings. On two occasions, Mr Galloway’s application for adjournments were refused, but “alleged medical-related misadventures befell him shortly thereafter”, which would prevent the hearing from continuing. During another hearing, after failing to appear, Mr Galloway said he had suffered an injury caused by his dog.
Mr Galloway told the commission that given how he was feeling after the incident, “it would have been unwise to give evidence as he was not thinking clearly and was still suffering from slight vertigo”. However, the commission, which had closed proceedings after his non-appearance, decided against reopening the matter.
The Fair Work Commission found there was no denial of procedural fairness as Mr Galloway had “adequate opportunity to argue his case”. Further, there was a strong public interest in finalising the matter after Mr Galloway was warned “proceedings would not be allowed to drag out further than what had already occurred”.
Commenting on his conduct during the hearing, the Fair Work Commission took issue with Mr Galloway’s witness statement. It noted that the statement was “poorly laid out”, difficult to follow, and annexures were never filed with the commission.
On the issue of Mr Galloway’s closing submissions, the court noted: “With some measure of restraint, I will limit my comments to saying that the submissions are highly misleading and inaccurate in a way that they bear almost no resemblance to the evidence or what actually happened during the hearing. I do not consider it an effective use of time to correct all of the inaccuracies in this decision.”
The Fair Work Commission also found it “astounding” that Mr Galloway complained about procedural unfairness and a denial of natural justice during the proceedings “in circumstances that have already been described”, including his non-appearances.
Turning to whether Mr Zhai was unfairly dismissed, the Fair Work Commission found nothing to establish that Mr Galloway, at the time of Mr Zhai’s dismissal, held a belief that the solicitor’s conduct was sufficiently serious as to warrant summary dismissal. It found that Mr Zhai’s dismissal was “harsh, unjust and unreasonable, and … unfair”.
The entire judgment can be read on AustLII and JADE: Milena Molina and Raymond Zhai v Brett Galloway [2021] FWC 6394 (19 November 2021)
