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Fresh off losing a general protections claim, Cisco’s former in-house lawyer has argued the Fair Work Commission failed to consider the full extent of his workplace treatment, including an allegedly unpaid bonus and the withdrawal of his salary protection.
The in-house lawyer advanced 28 grounds of appeal against Commissioner Pearl Lim’s decision to dismiss a general protections claim brought against Cisco Systems Australia, finding he was neither terminated on the employer’s initiative or forced to resign.
“The finding that I was not ‘dismissed’ under the Fair Work Act should not be mistaken for a rejection of all my underlying allegations or a comprehensive vindication of Cisco’s conduct.
“The Commission determined the dismissal question, not the full range of governance, regulatory and retaliation concerns I raised,” the lawyer said in response to questions from Lawyers Weekly.
“The Commission also made serious criticisms of Cisco’s handling of my circumstances and the evidence given by senior legal and HR personnel directly involved in the events.
“Those findings deserve attention in their own right.”
Cisco was accused of several failings in its treatment of the lawyer, including requiring him to return to work full-time after being discharged from hospital and undermining his position by reassigning tasks to other team members in the legal department.
The lawyer also alleged he suffered a medical episode after being told of potential terminations, was denied part of his 2023-24 financial year bonus, had his complaints about Cisco’s ethical and legal issues disregarded, and had his contract unilaterally altered.
In an 11-page letter to the chief legal officer, the lawyer said he formally accepted Cisco’s repudiation of his employment contract, and stated his view he had been “constructively dismissed”.
The lawyer said he still believed Cisco to be an “extraordinary company with the right values at its core”.
“Cisco entrusted me, as a senior lawyer, with global ownership of its software and cloud services licensing terms and leading the redesign of its contract architecture. Asking difficult questions formed part of that responsibility. I persisted internally because I believed in Cisco and expected it to uphold those values,” the lawyer added.
Noting that criticisms of Cisco “warrant scrutiny”, he added that his concerns went deeper and concerned contemporaneous documents the Commission “did not comprehensively adjudicate”.
“Cisco’s leadership and Board should independently examine that record. If the organisation defends conduct of this kind without ensuring meaningful accountability, what message does it send, particularly when its legal and HR teams bear responsibility for upholding standards across the business,” he said.
Lim was not satisfied Cisco evinced an intention to “no longer be bound by [his] employment contract”, nor was she satisfied Cisco engaged in a course of conduct with the intention of ending his employment, or that he had no effective or real choice to resign.
The lawyer grouped his 28 grounds of appeal under four broad categories, starting with the claim Lim erred by failing to determine his case “that no real work or sustainable income remained as his capacity to work increased” following his recovery from illness.
In this first set of grounds, the lawyer contended “his role disappeared, his remuneration was unsustainable, his skills were unused or not being invested in, and that no real prospect of a satisfactory employment relationship had been put to him”.
The Full Bench – made up of deputy president Kamal Farouque and commissioners Tim Lee and Scott Connolly – said there was no arguable error, finding Lim’s extensive reasons “demonstrate that she considered the case put by [the lawyer]”. The bench determined the permission to appeal matter on the papers.
In the second group of grounds, the lawyer contended the commissioner erred in her consideration of income protection insurance. It related to the lawyer’s reduction in wages due to the statutory maximum limits under workers compensation legislation.
Lim noted Cisco informed the lawyer he could use its income protection, which would have been a “topping up” of his workers’ compensation payments. Having been “worn out, aggrieved or in a poor state of mind”, the lawyer did not pursue this option.
There was no arguable error in this set of grounds.
The lawyer then unsuccessfully claimed Lim erred by failing to undertake an objective assessment of the whole course of conduct in assessing whether there was a dismissal.
Farouque, Lee and Connolly found Lim gave “extensive consideration” to whether Cisco’s conduct was repudiatory and whether the lawyer had been forced to resign.
The Full Bench also dismissed Lim’s fourth and final set of grounds, which variously contended Lim erred in findings made on matters related to credit, in her references to the evidence, and in findings made regarding evidentiary or factual matters.
The lawyer’s contentions the appeal engages the public interest also failed.
The lawyer said Cisco has “earned” its reputation as “a best place to work in Australia and globally”, and a favourable jurisdictional outcome should prompt reflection rather than replace it.
“If someone with my experience and legal knowledge struggles to secure protection after becoming seriously ill and raising concerns, what confidence can a more vulnerable employee have?
“Given the values Cisco’s Board and executive leadership champion, I would expect them to be appalled by the conduct I describe. I want them to examine the full record and ensure meaningful accountability,” the lawyer said.
