Industrial Relations Commission New South Wales Medium Neutral Citation: Fernandez v Office of the Director of Public Prosecutions [2025] NSWIRComm 2 Hearing dates: 9–10 December 2024 Date of orders: 24 February 2025 Decision date: 24 February 2025 Jurisdiction: Industrial Relations Commission Before: Paingakulam J, Deputy President Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal —Dismissal of a solicitor — Temporary employee — Unsatisfactory performance over an extended period — Multiple allegations — Procedural fairness — Dismissal not harsh, unreasonable or unjust — Costs — Costs sought on a Notice of Motion thrown away — Limited costs jurisdiction — Costs application dismissed Legislation Cited: Government Sector Employment Act 2013 (NSW) Government Sector Employment (General) Rules 2014 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations (General) Regulation 2020 (NSW) Cases Cited: Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust [2019] NSWIRComm 1013 Bankstown City Council v Paris (1999) 93 IR 209; [1999] NSWIRComm 530 Bar-Mordecai v State of New South Wales (2012) 83 NSWLR 125; [2012] NSWCA 207 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Corrective Services NSW v Danwer (2013) 235 IR 215; [2013] NSWIRComm 61 Cross v Secretary of the Department of Education (No 2) [2022] NSWIRComm 1115 Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364; [1998] NSWIRComm 289 Dr A v Health District (No 4) [2014] NSWIRComm 56 Grant Johnson and Department of Industry (on behalf of the Secretary of Department of Industry) [2017] NSWIRComm 1067 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257; [1992] FCA 366 McGinn v Secretary, Family and Community Services (2017) 268 IR 345; [2017] NSWIRComm 1039 Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167; [1993] NSWIRComm 93 Transport Workers' Union and Robar Enterprises (No 2) [2014] NSWIRComm 9 Transport Workers' Union (on behalf of Darren Roger Bargwanna) and Robar Enterprises (No 2) [2014] NSWIRComm 9 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Category: Principal judgment Parties: Matthew Fernandez (Applicant) Office of the Director of Public Prosecutions (Respondent) Representation: Counsel: C Bembrick (Respondent) Solicitors: Gorval Lynch (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2024/293486 Publication restriction: 1. Pursuant to section 164A(3) of the Industrial Relations Act 1996 (NSW) (the Act), each of the following is prohibited: a. The disclosure, sharing or publication of any information or material (including but not limited to a name or address) that identifies or may lead to the identification of: i. An accused or defendant in proceedings prosecuted by the ODPP, the Office of the Director of Public Prosecutions (ODPP); ii. A witness, complainant or other third person involved in, or associated with, proceedings prosecuted by the ODPP, save that the names of staff members employed by the ODPP may be disclosed. b. The disclosure, sharing or publication of any information or material that discloses or may lead to the disclosure of: i. Privileged legal advice in respect of matters prosecuted by the ODPP; ii. Prosecutorial decisions made by the Director of Public Prosecutions in relation to the conduct of a specific prosecution. 2. The pseudonyms in Confidential Schedule A are to be applied if it is necessary to publish, including in the parties' submissions, any part of the transcript or files of the proceedings which may contain the name of an accused or defendant in proceedings prosecuted by the ODPP. 3. Access to the Commission file in the matter of Matthew Fernandez v Office of the Director of Public Prosecutions (file no 2024/293486) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access. 4. The orders remain in force unless varied or revoked. DECISION 1. Matthew Fernandez was a Level 1 solicitor employed by the Office of the Director of Public Prosecutions (ODPP). His employment was terminated at the expiration of his temporary contract on 19 July 2024 on the basis of unsatisfactory performance. 2. On 9 August 2024, Mr Fernandez filed an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act) (Application). He alleges that his dismissal was harsh, unreasonable and unjust. He seeks an order that he be reinstated or re-employed by the ODPP and that he be paid backpay for the intervening period. 3. On the first day of the hearing, at the request of the ODPP, I made the following non-publication orders pursuant to s 164A of the IR Act: "1. Pursuant to section 164A(3) of the Industrial Relations Act 1996 (NSW) (the Act), each of the following is prohibited: a. The disclosure, sharing or publication of any information or material (including but not limited to a name or address) that identifies or may lead to the identification of: i. An accused or defendant in proceedings prosecuted by the ODPP, the Office of the Director of Public Prosecutions (ODPP); ii. A witness, complainant or other third person involved in, or associated with, proceedings prosecuted by the ODPP, save that the names of staff members employed by the ODPP may be disclosed. b. The disclosure, sharing or publication of any information or material that discloses or may lead to the disclosure of: i. Privileged legal advice in respect of matters prosecuted by the ODPP; ii. Prosecutorial decisions made by the Director of Public Prosecutions in relation to the conduct of a specific prosecution. 2. The pseudonyms in Confidential Schedule A are to be applied if it is necessary to publish, including in the parties' submissions, any part of the transcript or files of the proceedings which may contain the name of an accused or defendant in proceedings prosecuted by the ODPP. 3. Access to the Commission file in the matter of Matthew Fernandez v Office of the Director of Public Prosecutions (file no 2024/293486) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access. 4. The orders remain in force unless varied or revoked." Determination 1. I have determined to dismiss the Application. The reasons for which I have reached this decision are as follows. Background 1. Mr Fernandez commenced employment with the ODPP on 21 February 2022 as a full time Prosecution Officer (Administrative) Level 3 in the role of Legal Clerk, pursuant to a contract ending 20 February 2023. 2. On or about 15 February 2023, Mr Fernandez received a letter of that date offering him full time employment as a Prosecution Officer (Lawyer) Level 1 (Level 1 Solicitor) by way of temporary contract ending 30 June 2023. The duties of that role included screening police briefs, preparing advice about evidence and charges, assisting in the negotiation of pleas in appropriate cases, undertaking simple advocacy work and instructing in trials and appeals. The letter of offer included the following content: "The details of your conditions of employment are as follows: Classification: Prosecution Officer (Lawyer) Level 1 Commencing salary: $81,407.00 Level 1 Step Hours per week: 35 Entry on duty: 13/02/2023 End Date: 30/06/2023 You will be initially assigned to the role specified below. Please note that you may in the future be assigned to other roles or locations at the same classification within the agency, for organisational or capability development reasons. Role: Solicitor Level 1 – Statewide Commencing Location: Sydney Group 5 Please note that while your role is currently based in Sydney Group 5, operational changes may require you to be assigned elsewhere. It is important to note that this offer of temporary employment does not constitute ongoing employment and your employment will cease effective from the above mentioned end date unless otherwise notified. Changes in Office staffing arrangements can result in the early termination of temporary employment. It should therefore be borne in mind that temporary employment lasts only as long as the Director considers it administratively justified and may be terminated at any time if it is considered appropriate to do so. Temporary employment is also subject to satisfactory service, attendance and the continued availability of work. …" 1. The letter of offer concluded as follows: "Should you wish to accept employment in the above capacity, please digitally accept the offer. Please note that by accepting the offer you confirm your acceptance of the position on the terms and conditions stated above and no further negotiation will be entered into in relation to commencing salary or conditions of temporary employment." 1. On 15 May 2023, Mr Fernandez was offered and accepted an extension of his contract to 30 June 2024. The email which he received on that date was as follows: "Dear MATTHEW Thank you for your continued service to the Office of the Director of Public Prosecutions. The Director has approved an extension to your Temporary Employment. Your employment as a Solicitor, Level 1 in Sydney Group 5 is now extended up to 30.06.2024. Please note that: (1) This offer of a Temporary Employment contract is in accordance with the Government Sector Employment Act 2013 and does not constitute ongoing employment. (2) All other terms and conditions of employment will remain unchanged from your Letter of Offer. (3) Temporary Employment is subject to satisfactory service, attendance and the continued availability of work. (4) Although it is anticipated that your employment in Sydney Group 5 will extend to 30.06.2024, this will be reviewed on a regular basis and changes in funding and staffing arrangements may result in the early termination of a Temporary Employment contract. (5) We will endeavour to provide 4 weeks' notice should there be an intention not to extend the Temporary Employment contract beyond 30.06.2024. [Name of ODPP staff member] Human Resources Support Officer" 1. On 11 December 2023, Mr Fernandez was advised by his manager Ms Kate Chater during a performance appraisal meeting (December Performance Meeting) that his performance was unsatisfactory. In the course of that discussion, Ms Chater raised specific issues about eight matters as follows: 1. Matter A – resisting advice about the correct procedure for seeking approval for witness travel expenditure. 2. Matter B 1. Acting without delegated authority when incurring expenses and arranging flights for witnesses; 2. Failing to attend court on time, requiring another solicitor to rush to attend in his place; 3. Removing himself from an allocated matter to appear in another one without manager approval; and 4. Failing to take advice from a more senior solicitor. 1. Matter C – Engaging two experts in the same matter, one without approval. 2. Matter D 1. Failing to disclose evidence obtained during witness conferences; 2. Relying on that undisclosed evidence in the Crown Case Statement and a charge recommendation; 3. Rejecting the defence plea offer without the delegated authority to do so; 4. Drafting a Victim Impact Statement on behalf of the victim; 5. Standing the matter in the list and then hanging up on the Legal Aid solicitor who rang to find out when he would return to court; and 6. Defence complaints about late filing of submissions and contacting the Court without copying the defence into the email. 1. Matter E 1. Failing to follow express directions by failing to complete tasks required before and after court; and 2. Arriving at the office late in the morning. 1. Matter F 1. Failing to follow an express direction from his managing solicitor; and 2. Obtaining an officer in charge statement on an inappropriate issue. 1. Matter G – Failing to attend court. 2. Matter H 1. Appearing in the matter without managing solicitor approval; and 2. Advising the Court and the ODPP that he was unable to appear on the day of the hearing. 1. On 14 December 2023, at the request of Mr Fernandez, Ms Chater sent him an email confirming the content of the December Performance Meeting. That email afforded Mr Fernandez seven days to provide a written response to the matters raised. Mr Fernandez did so on 20 December 2023 (December Response). 2. On 18 January 2024, a salary increment increase was approved for Mr Fernandez. 3. On 2 April 2024, the day on which he commenced parental leave, Mr Fernandez received a letter from the ODPP notifying him of the ODPP's intention to terminate his employment at the expiry of his current contract due to unsatisfactory performance (Show Cause Letter). That letter afforded Mr Fernandez an opportunity to provide a response to the ODPP's proposed action by close of business on 17 May 2024, and he did so on that date. 4. On 14 June 2024, Mr Fernandez returned to work following his parental leave. 5. On 25 June 2024, Mr Fernandez's contract was extended to 19 July 2024 to enable the ODPP to properly consider the material provided by him on 17 May 2024, in response to the Show Cause Letter. The terms of that extension were as follows: "Dear Matthew Thank you for your continued service to the Office of the Director of Public Prosecutions. The Director has approved an extension to your Temporary Employment. Your employment as Solicitor, Sydney is now extended up to 19 July 2024. Please note that: 1. This offer of a Temporary Employment contract is in accordance with the Government Sector Employment Act 2013 and does not constitute ongoing employment. 2. All other terms and conditions of employment will remain unchanged from your Letter of Offer. 3. Temporary Employment is subject to satisfactory service, attendance and the continued availability of work. 4. Although it is anticipated that your employment will extend to 19 July 2024, this will be reviewed on a regular basis and changes in funding and staffing arrangements may result in the early termination of a Temporary Employment contract. 5. Your temporary employment will end on 19 July 2024. [Name of ODPP Staff Member] Human Resources Adviser." 1. On 8 July 2024, Mr Fernandez attended a meeting in which he was given a letter advising him that his contract of employment with the ODPP would not be renewed when it expired on 19 July 2024. Accordingly, his last day of employment with the ODPP was 19 July 2024. History of the Proceedings 1. Following an unsuccessful attempt at conciliation before Senior Commissioner Constant on 28 August 2024, on 2 September 2024 the matter was set down for arbitration on 19 and 20 November 2024, together with a timetable for the filing of evidence and submissions. The hearing dates were later vacated and the matter relisted in order to enable the ODPP to comply with a lengthy summons served by Mr Fernandez following his receipt of the ODPP's evidence. 2. On 17 September 2024, following the timetabling of the matter, the ODPP advised Mr Fernandez and the Commission that it would be challenging the Commission's jurisdiction to hear this matter. A Notice of Motion and supporting evidence was filed by the ODPP on 2 October 2024. 3. On 5 November 2024, and following the filing of Mr Fernandez's submissions on the Motion on 23 October 2024, the ODPP withdrew the Notice of Motion on the jurisdictional issue. Mr Fernandez has applied for his costs thrown away in respect of the Motion. I will return to that issue. 4. The matter proceeded before me on 9 and 10 December 2024. Jurisdiction 1. Notwithstanding the withdrawal of the ODPP's Notice of Motion challenging the Commission's jurisdiction, it is convenient to address that matter at the outset. 2. Section 83(2)(a) of the IR Act provides as follows: 83 Application of Part … (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes— (a) employees engaged under a contract of employment for a specified period of time or a specific task, … 1. Section 83(2) provides that Part 6 of the IR Act does not apply to an employee who is exempted from it by the regulations. Subsection 2(a) then deals with a class of employees to whom any relevant regulation may be directed. Clause 6 of the Industrial Relations (General) Regulation 2020 (NSW) (IR Regulation) provides as follows: 6 Other exemptions from unfair dismissal provisions (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act— (a) employees engaged under a contract of employment for a specified period of less than 6 months, (b) employees engaged under a contract of employment for a specific task, (c) employees serving a period of probation or qualifying period if— (i) the period, or the maximum duration of the period, is determined in advance, and (ii) the period, or the maximum duration of the period, is either— (A) 3 months or less, or (B) if the period, or the maximum duration, is more than 3 months—reasonable, having regard to the nature and circumstances of the employment, (d) employees engaged on a casual basis for a short period except employees who— (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. (2) This clause applies only with respect to dismissals under contracts of employment entered into on or after 1 October 1997. 1. It is clear from cl 6(1)(a) that employees engaged under a contract of employment for a specified period are excluded from the operation of Part 6 only if that contract is for a period of less than six months. The term of Mr Fernandez's contract is not in dispute. Mr Fernandez commenced as a Level 1 Solicitor on or about 15 February 2023 and his employment ended on 19 July 2024, a period of more than 17 months. Accordingly, the period during which he was employed as a Level 1 Solicitor was significantly longer than six months, without needing to consider the further period of almost 12 months during which he worked as a Legal Clerk. Consequently, Mr Fernandez's employment for a specified period is not something that could disentitle him to an unfair dismissal claim. Nor do any of the exclusions in cl 6(b)–(d) of the IR Regulation apply to him. Accordingly, the Commission has jurisdiction to hear this matter. Relevant legal principles 1. Section 84 of the IR Act relevantly provides: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 1. Section 88 of the IR Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. To be entitled to a remedy under the IR Act, the onus is on Mr Fernandez to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279. 2. It is well accepted that each of the words "harsh", "unreasonable" and "unjust" require discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer (2013) 235 IR 215; [2013] NSWIRComm 61: "[21] … It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'" 1. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167; [1993] NSWIRComm 93, the Full Bench made the following observations at 183: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." 1. The Commission is also required to have regard to the regulatory context of Mr Fernandez's employment in the determination of an unfair dismissal claim: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [146] per McColl JA. 2. Mr Fernandez's employment was subject to the Government Sector Employment Act 2013 (NSW) (GSE Act), which relevantly provides: 43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment— (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. … 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment— … (c) the performance of the employee is determined under section 68 to be unsatisfactory, … (h) a finding of misconduct has been made against the employee under section 69, … The instrument is to set out the ground or grounds on which the employment is terminated. (2) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency at any time if the employment is not ongoing employment. … 68 Unsatisfactory performance of government sector employees (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the person who exercises employer functions in relation to the employee may (without limitation on relevant action) take any of the following actions— (a) terminate the employment of the employee (after giving the employee an opportunity to resign), … 1. The Government Sector Employment (General) Rules 2014 (NSW) (GSE Rules) relevantly provide that: 10 Maximum period of temporary employment (1) The maximum total period for which a Public Service non-executive employee may be employed in temporary employment in the same Public Service agency is 4 years within any continuous period of 5 years. … (2) The period of 4 years referred to in subrule (1) or (1A) may, with the approval of the Commissioner in any particular case, be extended for an additional period of up to 12 months. (3) The Commissioner may determine classes of exceptions to this rule. Any such determination is to be made publicly available on a website provided and maintained by the Commissioner. … 14 Termination of employment (1) The employment of a Public Service non-executive employee may not be terminated under section 47 of the Act unless— (a) the employee is, to the extent that it is reasonably practicable to do so, notified of the proposed termination and given a reasonable opportunity to make submissions in relation to the proposed termination, and (b) the agency head has taken any such submissions into consideration. (2) This rule does not limit any of the other requirements under these Rules that relate to the termination of employment of a Public Service non-executive employee. … 35 Core requirements of performance management systems (1) The core requirements of a performance management system are as follows— (a) to set and clarify expectations for employees, (b) to guide and review employee performance, (c) to develop employee capability, (d) to recognise employee achievements, (e) to improve employee performance, (f) to resolve unsatisfactory employee performance, (g) to evaluate and strengthen practices. (2) The Commissioner may determine the essential elements of those core requirements. 36 Dealing with unsatisfactory performance (1) The person who exercises employer functions (the employer) in relation to a person employed in a government sector agency (the employee) may not take any action under section 68(2) of the Act in relation to the employee unless— (a) the employee's performance is determined by the employer to be unsatisfactory in accordance with the agency's performance management system, and (b) reasonable steps have been taken to advise the employee that the employee's performance is unsatisfactory and the basis on which it is unsatisfactory, and (c) the employee is notified that the employer is proposing to take specified action under section 68(2) of the Act in respect of the employee, and (d) the employee is given a reasonable opportunity to respond to the notice, and (e) the employer has taken any such response into consideration. 1. The interaction of s 47 of the GSE Act with the unfair dismissal jurisdiction of this Commission was considered by Newall C in McGinn v Secretary, Family and Community Services (2017) 268 IR 345; [2017] NSWIRComm 1039 as follows: "[6] Of course, as this is an application under s 84 of the Act, the question before the Commission is whether the dismissal was harsh or unreasonable or unjust, applying the tripartite test which is established by the statutory provision: Bankstown City Council v Paris (1999) 93 IR 209; Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [6]. [7] Nevertheless, any assessment of the dismissal pursuant to that tripartite test will properly include an examination of whether the statutory power to dismiss has validly been exercised; whether or not the statutory power was validly exercised would certainly bear upon the consideration of whether the dismissal was unjust, at very least. [8] In that context it must be borne in mind that where, as here, the employment relationship is governed by the GSE Act, the contract of employment is one bounded by the terms of the statutory power to employ: Director-General of Education v Suttling (1987) 162 CLR 427 at 437. The contract is not a common law contract and does not incorporate the common law concept of summary dismissal. Accordingly, the assessment of the validity of a dismissal effected pursuant to the powers granted in subs 47(1) of the GSE Act will not involve inquiry as to whether an employee's refusal to perform duties would have warranted dismissal at common law: see Director of Public Employment v Public Service Association (on behalf of Brown) (2008) 184 IR 134 at [52]-[69]; Hansen v Secretary of Department of Transport (2015) 255 IR 40. … [10] The lawfulness of a termination of a contract established under a statutory scheme which is effected pursuant to a statutory power, and specifically here s 47(1) of the GSE Act, will fall to be assessed on whether the power was validly exercised within its own terms, including in accordance with any regulations that might affect the exercise of the power. [11] The question of whether the dismissal was harsh, unreasonable or unjust within the meaning of the Act, a discrete question, falls to be assessed according to the well-established jurisprudence of the Commission in relation to cases brought pursuant to s 84." 1. Those principles have been held to apply equally to a termination of employment effected under s 47(2) of the GSE Act: Grant Johnson and Department of Industry (on behalf of the Secretary of Department of Industry) [2017] NSWIRComm 1067 at [13] (Grant Johnson). The case for Mr Fernandez 1. Mr Fernandez relied on statements dated 2 October 2024 and 18 November 2024, together with his evidence before the Commission. In his evidence-in-chief, Mr Fernandez set out the history of his employment relationship with the ODPP, as set out above. The additional evidence given by Mr Fernandez is summarised below. 2. Mr Fernandez was 33 years of age when his employment with the ODPP was terminated. He holds a Bachelor of Science from the University of Sydney and a Bachelor of Laws from Western Sydney University. He was admitted as a solicitor of the New South Wales Supreme Court on 24 June 2022 and was rotated to the ODPP Sydney Trial Group in July 2022, where Ms Kate Chater became his managing solicitor. 3. Mr Fernandez became aware of the ODPP's Performance and Development Process, applicable to all employees and implemented in accordance with the Performance and Development Guidelines (PDP Guidelines), at the commencement of his employment. Each employee has a Performance Development Plan (PDP) which runs from 1 October to 30 September every year. Mr Fernandez also understood that legal staff were required to participate in at least two formal practice reviews, which occurred alongside a solicitor file review. 4. Mr Fernandez completed and signed his 2021/22 PDP on 20 October 2022, which provided positive feedback from both his former manager and Ms Chater. 5. Mr Fernandez was entitled to 14 weeks of paid parental leave per year, which was able to be used other than in a single continuous period. He applied for two weeks of parental leave commencing 31 July 2023, the expected delivery date of his child. The leave, ending on 15 August 2023, was approved. Mr Fernandez's evidence was that Ms Chater's reaction to that leave request was to say to him, "You kept that to yourself", and that he was taken aback by that comment. 6. Due to complications with his partner's pregnancy, Mr Fernandez began leaving work between 5:00pm and 5:30pm each day in the period leading up to the birth of his son, leaving smaller administrative tasks to be completed the following day. His son was born on 31 July 2023, and he returned to work on 15 August 2023, having attempted to assist the colleagues who had assumed the carriage of his practice over the leave period. 7. Following his return to work, Mr Fernandez's partner began displaying symptoms of postnatal depression. This resulted in Mr Fernandez again leaving work between 5:00pm and 5:30pm to be able to assist his partner with their son. He also engaged in Employee Assistance Plan counselling. 8. Mr Fernandez stated that he completed the midyear check-in component of his PDP on 20 September 2023 and sent an email to Ms Chater requesting a face-to-face meeting to discuss the plan. Ms Chater responded to the effect that she hoped to complete all staff PDPs the following week and would send him a draft file review and an invitation to a meeting. However, Mr Fernandez did not receive either the draft file review or a meeting invitation. Mr Fernandez states that he interpreted this as there being no concerns with his performance. 9. On 13 October 2023, Mr Fernandez emailed to say that he intended to take the balance of his parental leave from early April 2024. On asking Ms Chater whether taking that leave would cause any issues with his continuing employment in view of his temporary contract, he was told to contact one of the human resources (HR) business partners. Ms Chater added that "whatever you choose to do is entirely up to you", which concerned him because he thought that it implied that exercising his leave entitlements would impact his continuing employment with the ODPP. He contacted HR to establish his parental leave balance and was told that it was 13 weeks. 10. On 5 December 2023, Mr Fernandez applied for two days of carers leave to support his partner with her postnatal mental health problems. Ms Chater approved the leave and sent Mr Fernandez an invitation to the December Performance Meeting, which he understood to be regarding his recent trial. 11. Mr Fernandez stated that at the December Performance Meeting, Ms Chater raised several allegations for the first time, and he was shocked by them. As a result, he was unable to reply to all the matters immediately, although he did reply to some of them. He requested that Ms Chater send him an email outlining the allegations in writing. At 5:33pm Ms Chater texted Mr Fernandez to see how he was feeling as she was aware that "some of our discussion took you by surprise". 12. Ms Chater provided the requested email on 14 December 2023. In it, she stated that a number of the allegations appeared to constitute breaches or potential breaches of the ODPP's Code of Conduct and indicated that she intended to submit a report to the Solicitor Executive in order for a decision to be made about what action, if any, should be taken. Attached to that email was a copy of the December practice review and the December file review containing the above allegations. 13. On 19 December 2023, Ms Chater removed Mr Fernandez from his position as assisting solicitor for a trial due to commence in January 2024. Mr Fernandez was concerned that this would "severely limit my ability to demonstrate improvement in my performance". 14. Mr Fernandez sent the December Response to Ms Chater on 20 December 2023. In addition to responding to the allegations, Mr Fernandez stated that more frequent meetings with his manager would be beneficial to his performance, that he had regularly and systematically sought guidance and advice from colleagues, and that he had engaged a mental health practitioner to assist him in working on his time management and punctuality due to his struggling with becoming a father. He acknowledged the seriousness of the allegations and committed to assisting as best he could in the investigative process. 15. In the December Response, his subsequent updates to the December Response and his evidence before the Commission, Mr Fernandez accepted a number of the allegations made. In relation to Matter A, Mr Fernandez accepted that he had formed the view that the advice given to him by both the officer in charge and the witness assistance service officer about the process for the approval of advance payment of witness expenses was incorrect, that he had challenged what they had both told him, and that he now accepted that their advice had been correct. He further stated that once his manager had notified him of the correct process (which he accepted occurred when the officer in charge contacted her to resolve the issue), he adhered to it. Mr Fernandez also stated that his failure to follow the correct procedure occurred at the advice of a Level 2 Solicitor who confirmed his proposed course, but he now knew that the process which he had sought to follow had no application to the circumstances with which he was dealing. 16. In relation to Matter B, Mr Fernandez understood "why concerns were raised about my acceptance of guidance and instruction, as well as issues related to teamwork and task management". He explained that retrospective approval of expenditure that he had incurred had been required for flights only and not the witness expenses, and that the delays in seeking the necessary approval were largely attributable to his work in another matter. He further stated that his difficulties in working with Level 2 Solicitor Ms Caitlin Deibe occurred because he "misunderstood the extent of her supervisory role and my responsibilities in the trial preparation" and that he "didn't believe the roles were correctly interpreted". Mr Fernandez agreed that he did not accept that Ms Deibe could require him to seek her approval before undertaking a task until this was confirmed by Ms Chater. Mr Fernandez further stated that the "only instance in which I didn't follow an explicit direction" was occasioned by a "misunderstanding" by Ms Deibe about what had occurred in relation to a witness expense process. 17. Mr Fernandez further accepted that it was "inappropriate" to ask Ms Deibe to cover the deliberation period of a jury trial in which he was instructing in order to enable him to appear in the unrostered severity appeal list, as he had done. While he also accepted that arriving late at court was "never acceptable", he said that he was about 10 minutes late for the second day of a pre-trial hearing and not 20 minutes late for the first day of trial as contended. In the December Response he sought "clarification as to why a different version of events is described", and in evidence before this Commission he stated that the issue had been "mischaracterised" by Ms Chater in her file review due to it having been "misrepresented" by Ms Deibe. In cross-examination, he also accepted that his organising of a replacement occurred when Ms Deibe called him 15 minutes before the scheduled court appearance to ask whether he had prepared the materials, and he asked her to attend in his place. 18. In cross-examination about Matter C, Mr Fernandez indicated that he failed to engage the approved expert to write a report in order to meet a court deadline because he failed to diarise that court deadline. He then accepted that, upon his return from leave, he made enquiries of another (unapproved) expert about completing a report at short notice and gave her no indication that her engagement was subject to manager approval. Ms Chater was required to approve the expenditure for that report after the expert had taken steps to prepare it. 19. In relation to Matter D, Mr Fernandez accepted that the matter could have been resolved far more expeditiously with appropriate communication, avoiding the "must proceed" direction from the court. He accepted the fact that he did not communicate a plea offer to Ms Chater as soon as it was received, that he instead conferenced the victim, and that he tried to solve the resulting problems himself rather than speaking with a more senior solicitor. He accepted that he did not bring a second plea offer to the attention of Ms Chater when it occurred. However, he stated that there was a "misunderstanding" both as to when the victim was spoken to concerning the plea offer and their stance on the plea. He also stated that his charge certification recommendation was "comprehensive" and that his failure to consider important factors was a result of his inexperience. 20. Mr Fernandez accepted that the first time Ms Chater (or, in her absence, an Acting Managing Solicitor) was aware of the two plea offers (first to the aggravated charge and then to the charge simpliciter) was when he prepared the charge certification report. Mr Fernandez stated that he had spoken to a Level 2 Solicitor about the matter but could not recall whether that was the Level 2 Solicitor who had been allocated as his mentor for the matter. Mr Fernandez accepted that he should not have drafted the Victim Impact Statement, but stated that he had sought guidance from a Level 2 Solicitor who was not allocated to the matter, as both the allocated Level 2 Solicitor and the Solicitor Advocate had not been available when he needed the advice. Mr Fernandez did not accept that he had coached the witness or was determined to achieve a particular outcome in the matter. He provided explanations for contacting the court without copying the defence into the email (size limitations on their email system), late filing of documents (Australia Post delays) and hanging up on a Legal Aid solicitor (being subjected to verbal abuse). 21. When asked about Matter E in cross-examination, Mr Fernandez accepted that there was work which was required to be undertaken before court each day, such as printing documents and compiling materials, which then had to be transported to the courtroom. He further accepted that when asked by Ms Deibe to get to the office in time to at least assist with the transport of the material, he attended work at 9:15am so that he could do the 10-minute walk to court by the time that it started at 9:30am, but when he arrived at the office, Ms Deibe had already left. He also accepted that he had told Ms Deibe that he was unable to arrive any earlier on the morning in question because he had had to help his partner use public transport in the morning. He disagreed that his conduct in the matter was indicative of a resistance to assist in preparation. 22. As to Matter F, Mr Fernandez accepted that it was "inappropriate" to seek a statement from the officer in charge setting out their views for not laying a particular charge, as he had done, and that this could have led to unnecessary complications, particularly in the event of a not guilty plea. Mr Fernandez accepted that the further statement which he had sought from the officer in charge should have been confined to evidentiary issues and attributed his failings to his inexperience and lack of being proactive about seeking guidance. Mr Fernandez accepted that Ms Chater had directed him to file the certified charge, however he instead sought the additional statement from the officer in charge because he believed that to be the appropriate course at the time. He did not accept that this amounted to failure to follow a reasonable direction because he filed the charge by the date required for the relevant listing. Mr Fernandez accepted that Ms Chater had discussed this issue with him at the time that it occurred but said that he did not understand from that conversation that his performance on the matter was unsatisfactory. 23. In relation to Matter G, Mr Fernandez accepted that on 11 December 2023, he failed to attend a mention hearing for this matter. However, he stated that the Solicitor Advocate was not expecting to be instructed in a mention of that nature, and he was not required to be there. He accepted that he had not sought his manager's approval to appear in the matter in the first place and that he should have done so. 24. Finally, in relation to Matter H, Mr Fernandez stated that he had been approached about his capacity to appear in the matter and indicated that he was available, as it appeared fairly straightforward. He accepted that he should have updated his manager about the allocation of the matter to him and stated that he stayed in the matter for "consistency of appearance, except on one occasion where another solicitor had to fill in as I was busy". Mr Fernandez accepted that he cross-examined a Commonwealth Director of Public Prosecutions (Commonwealth DPP) witness but that this was "only a couple of discrete questions for the assistance of the court – seeking clarification as opposed to undermining credibility". He nonetheless stated that it was not something that he would do again. 25. Despite his request for a follow-up meeting after providing his response to the allegations, he did not receive any correspondence (from Ms Chater or anyone else) concerning a second meeting. Mr Fernandez stated that he did not understand his performance to be so poor as to indicate the termination of his employment and that this was reinforced by a pay increment increase which he received on 18 January 2024. 26. Mr Fernandez stated that on his return to work in early January 2024 he was allocated only one trial, scheduled for February 2024 and that prior to the December Performance Meeting, he had been assigned new matters each month. He took sick leave due to anxiety and stress from 29 January 2024 to 19 February 2024. 27. Mr Fernandez stated that in March 2024, Ms Chater had PDP finalisation meetings with his colleagues in Group 5 but made no attempt to organise such a meeting with him. On 13 March 2024, Ms Chater updated Mr Fernandez's PDP, adding comments to his midyear check-in from September 2023, which can briefly be summarised as follows: 1. Mr Fernandez had applied himself over the year, particularly in committal and advocacy work. He had also instructed in a number of trials, but some issues arose about which he was counselled before a comprehensive review was conducted in December 2023. His skills were developing in that regard and he was urged to seek and accept guidance from more senior solicitors as he had done in a recent matter; 2. Mr Fernandez was a keen advocate and had received positive feedback in that regard, but it was noted that Managing Solicitor approval must be sought before appearing in any non-rostered short matters; and 3. Mr Fernandez would benefit from more learning and development in a number of (specified) areas and he had been exposed to some of the issues that can arise in committal matters. 1. Mr Fernandez stated that despite Ms Chater commenting that he would benefit from more learning and development, he did not receive any learning or development support or training following her comments. 2. Mr Fernandez's evidence was that on 15 March 2024, Ms Chater removed him from being the instructing solicitor for the sentence in Matter G. That afternoon, he completed the annual review section of his 2022/23 PDP, rating his performance as "meeting expectations", and attaching updated replies to the December File Review, December Practice Review and email of allegations sent in December 2023. In these replies, he provided further details of his version of events and sought clarification on the specifics of allegations. He did not receive any response. 3. On 18 March 2024, Mr Scott Jaeger commenced as Mr Fernandez's Managing Solicitor. On the same day, Mr Fernandez emailed HR raising a complaint against Ms Deibe for a breach of the Respectful Workplace Policy for "persistent and unjustified criticisms, often about petty, irrelevant or insignificant matters". On 20 March 2024, receipt of this complaint was acknowledged. Mr Fernandez requested an update on this complaint before going on parental leave nine days later but received no reply. 4. Mr Fernandez stated that, on his final day of work before commencing parental leave, his leave request was still "pending" despite the fact that he had applied for leave in October 2023. It was only when Mr Jaeger followed up with Ms Chater that she denied the leave request, indicating in the system that she was no longer Mr Fernandez's manager. Another request was then lodged, and leave was approved. 5. Mr Fernandez took parental leave from 2 April 2024 to 14 June 2024. He stated that on his return to work, he received notification that Ms Chater had updated his PDP and assessed his performance as "needs development to meet expectations of the role", despite not being his manager since 15 March 2024. 6. Mr Fernandez stated that he seeks reinstatement or re-employment with the ODPP and would be willing to work in an alternative team or office, including in the Parramatta or Penrith offices. He also stated that he had sought alternative employment with the Aboriginal Legal Service on 19 September 2024. 7. Mr Fernandez's evidence in reply consisted of further detail concerning the allegations made against him, which he considered to be largely procedural in nature. He maintained that he did not receive feedback (from Ms Chater or anyone else) throughout 2023 that his performance was unsatisfactory. With the benefit of the ODPP's evidence concerning those matters, his assessment of his 2023 performance was as follows: "It is my strong view that I was performing well given my experience level and the issues referred to in the 11 December 2023 meeting that were accurate were not so significant as to justify dismissal and could be corrected with minor improvements." 1. His evidence in reply also included a statement that he found Ms Chater's conduct in removing him as the instructing solicitor for a sentence hearing in a matter in which he had instructed at trial to be "a breach of the policy of continuity". 2. Mr Fernandez further stated that he was unaware of there ever being any recommendation to extend his contract by six months and that he would have accepted any such offer. He noted that he had taken a reduction in salary to accept a position with the ODPP, such was his commitment to pursuing that career. He stated that only two solicitors employed by the ODPP (Ms Chater and Ms Deibe) formed a negative view of him and that the vast majority of the solicitors with whom he worked were positive about him and he could work well with any of them going forward. 3. Moreover, Mr Fernandez detailed his performance in 2024 in his witness statement and statement in reply, describing a perceived improvement in performance and positive feedback. He stated that from December 2023 to his taking of personal leave in April 2024, he had dedicated himself to improving his performance by identifying areas where such performance could be improved, reviewing internal policy documents and being conscientious to seek advice from senior solicitors more frequently. He provided two examples of seeking such advice. As a result, Mr Fernandez said he received positive feedback from senior solicitors regarding his work in three different matters during February and March 2024, including feedback from Mr Noll, a Solicitor Advocate. He also gave evidence of a request which he received from Mr Jaeger to assist a new solicitor. Mr Fernandez noted that the April 2024 letter proposing the termination of his employment did not reference his work from December 2023 onwards. 4. Mr Fernandez contended that his dismissal was unjust because the ODPP's finding of unsatisfactory performance had no sound basis in fact. Mr Fernandez also contended that the power to dismiss him under s 47(2) of the GSE Act was not validly exercised by the ODPP. He contended that his dismissal was unreasonable because he was not given adequate opportunity to respond to the allegations of poor performance or improve his performance and was not adequately warned that he would be dismissed, and that it was harsh because a junior employee such as himself should have a reasonable expectation of performance development and because the consideration of his performance was tainted by unfair consideration of his taking of parental leave. 5. Mr Fernandez accepted that the reason given for his dismissal was a mix of performance and misconduct concerns, but pointed to the fact that those concerns were not raised again after he provided the December Response, until he received the 2 April 2024 letter. Mr Fernandez also pointed to the absence of any investigation process into the allegations against him following the ODPP's receipt of the December Response, and the brief but somewhat positive comments that he received in the March 2024 version of his PDP. 6. Mr Fernandez also contended that the ODPP failed to comply with GSE Rules r 35, which sets out the core requirements of performance management systems. Specifically, he submitted that the performance management system in place for him failed to set and clarify expectations, monitor, plan and review performance, or develop capability and resolve unsatisfactory performance. Mr Fernandez submitted that the ODPP failed to follow its own performance management guidelines in that there was no second practice review conducted prior to his dismissal, approximately seven months after the allegations were first raised. Accordingly, Mr Fernandez observed that there was no follow up to determine whether his performance had improved following the December Performance Meeting and, in particular, a Performance Improvement Plan (PIP) was not implemented. 7. Mr Fernandez also relied on the fact that he was not told during the December Performance Meeting that his employment was in jeopardy if he failed to improve. He pointed to the salary increment increase which he received in January 2024, which the PDP Guidelines indicated was not afforded to persons whose performance was an issue, and contended that, as this occurred shortly after his performance appraisal, it was confusing and added to the unfairness of the process. 8. It was submitted by Mr Fernandez that the Show Cause Letter did not constitute a warning as it indicated that a preliminary decision had been made, and that the time period between its receipt on 2 April 2024 and the proposed 30 June 2024 end date of Mr Fernandez's employment was insufficient to enable him to demonstrate that his performance had improved. Further, the representations in the Show Cause Letter to the effect that attempts to address his performance had been unsuccessful had "no basis in fact" as no attempt was made to address his performance after the December Performance Meeting. 9. In addition, Mr Fernandez pointed to the fact that nowhere did his June 2024 PDP review indicate that underperformance remained an issue. Accordingly, the termination of his employment on 8 July 2024 (effective 19 July 2024) aligned neither with his PDP or the ODPP's internal policy of managing underperformance. It was submitted for Mr Fernandez that the ODPP had therefore not complied with the obligation of GSE Rules r 15 (presumably referring to r 14) to notify him of the proposed termination and give him an adequate opportunity to make submissions. 10. In support of his contention that his dismissal was harsh, Mr Fernandez noted that, upon being notified of the allegations, he immediately stated that he needed support, that none was provided, and that, instead, his workload was reduced. This denied him the opportunity to demonstrate the skills that the ODPP had indicated that he lacked. 11. Mr Fernandez further submitted that it was open to the Commission to find that he was an ongoing employee rather than a temporary employee, given both the nature of his role and his length of service. In that event, it was submitted that the power to dismiss him was not validly exercised, as s 47(2) of the GSE Act applies only to temporary employees. Further, the failure to validly exercise this power rendered his dismissal unfair. 12. In oral submissions, Mr Fernandez asserted that the ODPP's position that it had complied with its performance management process was untenable in the face of the evidence of Mr Richardson that the ODPP had not complied with three aspects of its policy. That policy was said to apply to all employees, including temporary employees. It was submitted that this failure of procedural fairness rendered Mr Fernandez's dismissal harsh. 13. It was contended for Mr Fernandez that significant amounts of information were "withheld" from him. In particular, the memorandum from Ms Chater to Ms Sashi Govind setting out her concerns about the performance and conduct of Mr Fernandez contained allegations that were never provided to him to permit him to respond. Mr Fernandez submitted that, had he been given an opportunity to respond to matters not raised with him, he may have avoided dismissal. Further, Mr Fernandez submitted that staff members other than Ms Chater could have provided insight into his performance, and that Mr Richardson made no attempt to consider views other than those of Ms Chater. 14. Mr Fernandez asserted that the absence of any investigation into his complaint that Ms Deibe had exaggerated her version of events left the ODPP unable to determine the truth of allegations made against him. 15. Mr Fernandez also asserted that there was no scope for the ODPP to dismiss him due to manifestly poor performance notwithstanding failures in procedural fairness because the individual incidents themselves did not amount to serious misconduct and so there was an obligation to meet the procedural fairness requirements in the legislation. In that regard, Mr Fernandez drew attention to the fact that he was permitted to serve out his notice period, which demonstrated that he did not present such a risk to the ODPP that they could not have him working there anymore. As to the number of incidents raised, Mr Fernandez contended that it was "not appropriate for an employer to lump together over a historical period, a number of grievances that they have with an employee and say these amount to a sufficient basis for dismissal". 16. Mr Fernandez also pointed to the lack of evidence to establish that his performance had not improved since December 2023. He asserted that, on being alerted to the issues with his performance, he took significant action, as set out in his 17 May 2024 statement. He further submitted that many of the allegations related to matters which occurred around the time that he became a new father and that his termination in that context was harsh. 17. Finally, Mr Fernandez pointed to the evidence that Mr Richardson considered reinstatement to be an option in June 2024, until he got Ms Chater's second report at which point he changed his view. Mr Fernandez asserted that the content of that report was insufficient to justify his changed position, as Ms Chater's document did not disclose any new information. The Case for the ODPP 1. The ODPP relied on a statement of Mr Nigel Richardson, Human Resources Director, dated 5 November 2024, and a statement of Ms Kate Chater, Managing Solicitor, also dated 5 November 2024. In addition, the ODPP sought leave, on 4 December 2024, to rely on a statement of Ms Holly Bates, Senior Solicitor, of that date. However, Mr Fernandez objected to that evidence and leave to rely upon it was refused on 9 December 2024. 2. Mr Richardson gave evidence of the contracts governing Mr Fernandez's employment as set out above. He stated that Mr Fernandez received numerous opportunities for training and development throughout his employment including the new starter induction process, and ongoing training from March 2022 to July 2024 on a broad range of matters including advocacy, indictments, Early Appropriate Guilty Plea certificates, legal writing and the ODPP Code of Conduct. 3. Mr Richardson stated that on or about 15 January 2024, he was provided with a memorandum from Ms Chater to Deputy Solicitor Sashi Govind setting out her concerns about the performance and conduct of Mr Fernandez. Annexed to that report were Mr Fernandez's solicitor file review and solicitor practice review undertaken by Ms Chater and her file note of the December Performance Meeting. He formed the view that the matters raised in that material were serious and that Mr Fernandez's conduct could be categorised either as misconduct or unsatisfactory performance, preferring the latter because of his view that "the issues were largely borne from incompetence and underperformance rather than wilful misconduct". 4. Based on that material, Mr Richardson formed a view that it was appropriate to make a determination that Mr Fernandez's performance was unsatisfactory pursuant to r 36 of the GSE Rules, and that his employment be terminated in accordance with s 47(2) of the GSE Act. He provided an assessment and recommendations in a submission to Mr Craig Hyland, Solicitor for Public Prosecutions, on 15 March 2024, in which he recommended that such a determination be made in accordance with the GSE Rules. He further recommended that Mr Hyland consider terminating Mr Fernandez's temporary contract and that, if approved, that decision should take effect from 14 June 2024, being the end of Mr Fernandez's approved parental leave. 5. Mr Richardson then gave evidence of the letter provided to Mr Fernandez on 2 April 2024, and the receipt of two statements from Mr Fernandez on 17 May 2024 in reply. Mr Richardson gave evidence of considering Mr Fernandez's responses in June 2024 and maintaining a "primary view" that the termination of his employment was appropriate. However, having regard to the approaching end date of Mr Fernandez's contract, Mr Richardson stated that he considered whether Mr Fernandez could be given a contract extension of six months "in order to provide him an opportunity to respond". Mr Richardson's evidence was that he provided this alternative to Mr Hyland because "he would be able to offer greater perspective as to the seriousness of the conduct and its potential impact upon the ODPP". 6. Mr Richardson gave evidence of having made a recommendation to Mr Hyland on 13 June 2024 containing both above options, noting that Mr Fernandez had requested a 12-month extension to his contract to prove his suitability for the role, and further recommending that Mr Fernandez's contract be extended to 19 July 2024 to enable the ODPP to properly consider his representations. In response to that material and having regard to the material that Mr Fernandez had provided, Mr Hyland sought additional feedback from Ms Chater. Ms Chater provided a further memorandum to Mr Hyland on 21 June 2024, and on 25 June 2024, Mr Fernandez was advised of the brief extension to his contract to 19 July 2024. With the benefit of this additional information from Ms Chater, Mr Richardson advised Mr Hyland that the more appropriate course was to terminate Mr Fernandez's employment. Mr Fernandez was informed of the decision not to renew his contract by letter on 8 July 2024, and his employment ceased at the 19 July 2024 expiration of his contract. 7. In making his recommendation on 13 June 2024, Mr Richardson stated that he took into account the material concerning a complaint made by Mr Fernandez against Ms Deibe for a breach of the Respectful Workplace Policy in March 2024, in which he appeared to accept responsibility for the majority of the performance issues raised but offered a different perspective about how they came about, and expressed a view that many of the issues raised about his own performance may have been based on an inaccurate version of events. 8. Finally, Mr Richardson gave evidence that reinstatement of Mr Fernandez would be impractical as the ODPP had lost all trust and confidence in him, and the implications for the ODPP of him failing to perform his role with competence, diligence and integrity were serious. In that regard, Mr Richardson pointed to the failure of Mr Fernandez to improve his performance in response to feedback. 9. In cross-examination, Mr Richardson accepted that allegations of underperformance should be put to an employee in detail, that employees should be allowed to respond and given an opportunity to improve, and that employers should monitor that improvement. He considered that the ODPP's obligations included r 36 of the GSE Rules and that he formed the view that Mr Fernandez's performance was unsatisfactory pursuant to that rule. He also considered that Ms Chater had complied with that rule up to and including 11 December 2023. 10. Mr Richardson conceded that he did not specifically check compliance with the ODPP performance management guideline, including whether Mr Fernandez had participated in two practice reviews. He further stated that it was his view that the ODPP had complied with its performance management system despite Mr Fernandez not being assessed under the performance improvement guidelines, as these were designed "mainly for ongoing employees" as they were "predicated on an annual review process" which was impractical for persons employed for a lesser period. He accepted that Mr Fernandez received an increment increase in January 2024, and that this would indicate that there were no performance issues. 11. Mr Richardson's evidence was that he relied totally on the information provided by Ms Chater both in December 2023 and June 2024 in relation to the prosecution function and made no attempt to verify it. He stated that he was not aware of any attempts to address Mr Fernandez's underperformance after December 2023. He also stated that he did not contact either Ms Chater or anyone else about Mr Fernandez's performance before making his recommendation, noting that Mr Hyland had made his own enquiries of Ms Chater on receipt of his recommendation. Further, while he accepted that his recommendation to Mr Hyland set out two equally valid options, he maintained his evidence that his primary view was that Mr Fernandez should be terminated. He confirmed that he formed that view on or about 25 June 2024, after receiving additional information from Ms Chater and notwithstanding that Mr Fernandez had a new manager at that point. He did so because the decision to terminate Mr Fernandez related to "the historical issues that had been raised in his performance". Further, Mr Fernandez's new manager had managed him for a period of only two weeks, which was immaterial in the context of 12 months of unsatisfactory performance. Mr Richardson accepted that Mr Fernandez's performance was not monitored following notification of the allegations in December 2023. 12. Mr Richardson accepted that the complaint made by Mr Fernandez about Ms Deibe had not been investigated at that point and that he did not speak to her about it. He accepted that the process to terminate Mr Fernandez for misconduct was not followed and that he therefore could not form a conclusion that Mr Fernandez's conduct amounted to misconduct. 13. Ms Chater's evidence was that Mr Fernandez joined her team in August 2022 and she supervised him until 18 March 2024. It was apparent to her that there were issues with his performance throughout 2023, both from her own observations of him and from reports received from other staff. Ms Chater broadly described the performance issues that she had identified with Mr Fernandez as follows: "(a) failing to carry out the responsibilities of his role; (b) negatively impacting Crown cases, including causing significant delay to Crown cases; (c) failing to complete work in a timely manner and failing to meet Court deadlines; (d) refusing / failing to carry out reasonable directions; (e) acting without delegated authority; (f) engaging in inappropriate conduct in Court; (g) failing to demonstrate insight as to his own performance issues; and (h) failing to attach documents such as Charge Certification directions to [the case management database] (e.g. Matter D)." 1. Ms Chater conducted both a file review and a practice review of Mr Fernandez's practice. Specific problems that she identified in individual matters have been set out above. In addition, Ms Chater stated that Mr Fernandez failed to record hours worked on timesheets between June and December 2023 and took leave during that period without approval. A further issue raised was leaving excessive tasks to a leave buddy when Mr Fernandez went on leave. 2. Ms Chater's evidence was that on each occasion that a performance issue arose, she or an Acting Managing Solicitor or mentor raised them with Mr Fernandez. Her approach was to explain why the issue was problematic, set out or reiterate the correct approach and make it clear that the issue should not happen again. 3. Ms Chater stated that she did not meet with Mr Fernandez to discuss his PDP in September 2023, and that she met with him to formally discuss her concerns about his performance on 11 December 2023. During that meeting, she told Mr Fernandez that the role of a prosecutor was not for everyone, as it was highly regulated, required teamwork and collaboration and an ability to recognise when you need approval, assistance or guidance. Ms Chater stated that the issues with Mr Fernandez's performance, such as making decisions or working unilaterally, single-mindedly pursuing a particular outcome and not seeking guidance or direction, suggested that he might be better suited to a defence role where there was a single stakeholder. Ms Chater recorded Mr Fernandez's surprise at this feedback and his response that mistakes were a "normal part of learning". 4. Ms Chater followed up this meeting with an email on 14 December 2023, which attached the draft file review and practice review documents and advised him that a report would need to be sent to the Solicitor Executive about the issues raised. She invited Mr Fernandez to respond to that material, which he did. She then provided all of that material, together with her report, to Ms Govind. She was then on leave from 22 December 2023 until 12 February 2024. 5. Ms Chater gave evidence that Mr Fernandez's performance goals for himself lacked insight into his capabilities and experience. She noted that Mr Fernandez had listed inclusion on the trial developmental list as a 6–12-month goal. Ms Chater stated that that list was for Level 3 Solicitors, or, on occasion, Level 2 Solicitors with at least four years of experience at that level, and that Mr Fernandez was not suitably experienced to take carriage even of complex summary hearings, as he also sought to do. 6. Ms Chater's evidence was that her recommendation that Mr Fernandez's contract either be terminated or not renewed at its expiration was made after careful consideration of the issues that had arisen in the previous 12 months, without sufficient improvement and little to no acknowledgement of any error on his part. She stated that it was the first time that she had ever taken steps to have a solicitor under her management terminated for performance or conduct issues. She stated that Mr Fernandez had told her that his personal situation was not impacting his performance. 7. Ms Chater stated that in June 2024, she was asked to review and comment on the material which Mr Fernandez had provided to the ODPP, which she did. Those comments included that she was not aware of any improvements in his performance between December 2023 and March 2024, but that he had had a new manager since that time who ought to be consulted. She also noted Mr Fernandez's continued lack of insight into the issues with his performance in several respects. She described Mr Fernandez's evidence concerning specific examples from the performance reports as "inaccurate and misleading". She also denied saying words to the effect of "You kept that to yourself" when Mr Fernandez informed her of his partner's pregnancy. Her evidence was that she expressed delight and asked whether she could share that news at a team meeting. 8. In relation to the applicant's 2024 performance, Ms Chater's evidence was that she had been informed by Solicitor Advocate Mr Noll that Mr Fernandez "needs to learn the basics of being an L1 instructor". 9. Finally, Ms Chater stated that the increment increase awarded to Mr Fernandez in January 2024 was approved on 18 January 2024 by an Acting Managing Solicitor without input from her and that, had she been consulted, she would have recommended that Mr Fernandez's pay increase not be approved. 10. In cross-examination, Ms Chater confirmed that she began to manage Mr Fernandez after he had been at the ODPP for eight months and was not aware of him having any performance issues at that time. He was promoted to Level 1 Solicitor while working for her. She accepted that Mr Fernandez was a very junior employee who would need guidance and make some mistakes. She also accepted that employees should be notified of specific issues when they underperform so that they can improve their performance. Her evidence was that she did raise performance concerns with Mr Fernandez and that by December 2023, "there was no turning back as far as I was concerned". 11. Ms Chater stated that, prior to that point, she had told Mr Fernandez why his conduct was wrong and what had to be done to fix it and that, given the requirement for him to read and understand the ODPP Code of Conduct, he should have been aware of the potential consequences and that his performance needed to improve. Her evidence was that the conversations that she had had with Mr Fernandez had made it very clear that he was not meeting the requirements of his role and had in fact breached various office policies. Towards the end of 2023, she had formed the view that the repetition and significance of Mr Fernandez's performance issues constituted misconduct. 12. Ms Chater was asked whether feedback had been given to Mr Fernandez in writing prior to 14 December 2023 and she stated that Mr Fernandez had been counselled in emails prior to that point. She accepted that Mr Fernandez was not given her report to Ms Govind and that it was far more detailed than the email which she sent to Mr Fernandez because it contained content from both his file review and his practice review (which were provided to him). 13. Ms Chater denied that it was Mr Fernandez's request for parental leave that caused her to ask him to attend the December Performance Meeting. She accepted that Mr Fernandez raised his sleeping difficulties due to being a new father during his performance review but stated that in previous conversations about that issue, Mr Fernandez had told her that it was getting better and that he was coping. She also stated that her delay in approving a second period of parental leave for Mr Fernandez was because she had concerns about his performance and did not wish to create an expectation that his contract would be extended. 14. In relation to the allegation that Mr Fernandez incurred expenses without delegated authority, Ms Chater accepted that the monies expended were appropriate and were retrospectively approved. She also accepted that, after receiving an email from her on 10 November 2023 regarding the third matter where an issue of that nature had arisen, Mr Fernandez sought her approval for witness expenses. 15. In relation to the allegation that Mr Fernandez did not act in accordance with the ODPP Guidelines in eliciting further evidence from witnesses, Ms Chater stated that she was not aware that Mr Fernandez made that mistake in relation to Matter D until after she read his charge certification report. 16. In relation to the allegation that Mr Fernandez had engaged in conduct that made him a potential witness, Ms Chater stated that she was not aware that Mr Fernandez had consulted a more senior solicitor from a different practice group about preparing the Victim Impact Statement before he did so, and that she had made clear to him the (different) person from whom he was to seek approval of his work in respect of that matter. She also conceded that Mr Fernandez followed the direction that he was given not to tender the Victim Impact Statement that he prepared, but stated that he should not have obtained it in the manner that he did, and that the fact that it was not tendered would have been disappointing to the victim. 17. In relation to the allegation that Mr Fernandez failed to follow reasonable directions, Ms Chater was taken to examples of Mr Fernandez following directions that he was given and accepted that he did so. She also accepted that some of her comments on that issue were positive. She was challenged about the level of detail in her email of 14 December 2023 as being insufficient to enable Mr Fernandez to respond and stated that the email was a summary of their December Performance Meeting discussion, so she understood him to be familiar with the issues. 18. As to the allegation that Mr Fernandez had been late to court on occasions, she accepted that unexpected traffic delays occur, another solicitor attended in his place and the trial was not impacted. Ms Chater also accepted that the incident was a pre-trial hearing rather than the trial itself but stated that she was not concerned that the report to her that Mr Fernandez was 20 minutes late, when he was only 10 minutes late, was exaggerated. Nor did she accept that Mr Fernandez was not required to attend a mention in which a Solicitor Advocate appeared uninstructed, and stated that while it might occur, it was not the practice. 19. In relation to the allegation that Mr Fernandez failed to maintain appropriate relationships with external stakeholders, Ms Chater maintained that she was notified of a plea offer months after the event, resulting in work that could have been avoided. While she accepted that no staff member should put up with abuse from another practitioner, she also said that hanging up on a Legal Aid solicitor was not appropriate given the urgency of the situation and that Mr Fernandez should have referred the solicitor to her. 20. In relation to her final allegation regarding appearing in unrostered lists, Ms Chater accepted that Mr Fernandez did not appear in the relevant matter after being directed not to, but stated that he appeared shortly thereafter in another unallocated short matter. 21. Ms Chater accepted that she did not have a performance discussion with Mr Fernandez in September 2023 when he requested it and that several of the issues raised in December 2023 occurred prior to Mr Fernandez's request. Ms Chater maintained that she had had discussions with Mr Fernandez about performance issues as they arose and that "the inference" was that he was aware that the conduct issues raised with him exposed him to possible termination of his employment. 22. In was submitted for the ODPP that the termination of Mr Fernandez's employment was not unreasonable or unjust because he was employed on a temporary contract which did not constitute ongoing employment and which was subject to satisfactory service. As he was engaged in significant and continuing poor performance, further employment at the end of his contract period was untenable. 23. Further, the ODPP submitted that it had complied with the GSE Act and the GSE Rules in that Mr Fernandez's employment was terminated in writing and that prior to that occurring, he was notified of the proposed termination, given a reasonable opportunity to make submissions in relation to the proposed termination, and those submissions were taken into account. While it was maintained that the ODPP had no obligation to comply with s 68 of the GSE Act, it was submitted that it had done so. 24. The ODPP submitted that there was no requirement to put Mr Fernandez on a PIP because of his temporary employment status, unsatisfactory service and the discretionary nature of the process of managing performance. Further, while there was no requirement to give Mr Fernandez a warning before effecting his dismissal, he was said to be sufficiently on notice of his poor performance. Although consideration was given to extending Mr Fernandez's contract for a period, it was determined that further employment was untenable because the ODPP could no longer have trust and confidence in him as an employee. 25. It was submitted for the ODPP that the termination of Mr Fernandez's employment was not harsh as he had worked as a Level 1 Solicitor for fewer than 17 months, was 33 years of age and had other work experience. There was no evidence that Mr Fernandez would have difficulty obtaining alternative employment, and the contract under which he was employed expressly stated that it did not constitute ongoing employment. As such, it was said that he should have understood that the contract could or would conclude at its end date. It was submitted that the assertion that the ODPP inappropriately took into account the applicant's parental leave would not be established on the evidence. 26. In the event that the Commission determined that Mr Fernandez's dismissal was unfair, it was submitted that reinstatement was not appropriate due to the ODPP's loss of trust and confidence in Mr Fernandez. Further, there is insufficient evidence of a reasonable attempt by Mr Fernandez to find alternative employment in order for compensation to be payable. 27. In oral submissions, the ODPP pointed to Mr Fernandez's continued failure to take responsibility for his performance during the course of the proceedings before this Commission. In particular, Mr Fernandez repeatedly stated that "I understand these things now" and that he would do things differently if the same issue arose, yet it was apparent that he still considered that there were explanations and excuses for his conduct. In particular, the ODPP pointed to Mr Fernandez's asserted lack of understanding of the feedback that he had difficulty accepting guidance and his assertion that where he failed to follow a direction, this was due to a misunderstanding or a miscommunication. It was submitted that this was not supported by the evidence and that his inability to accept direction meant that there was no prospect of his performance improving. 28. It was further submitted that the complaint made by Mr Fernandez against Ms Deibe was said to be retaliatory in nature and justified his dismissal in and of itself. It was also said to be indicative of a failure by Mr Fernandez to accept and appreciate errors, and to blame others. 29. It was submitted that the evidence established that the increment increase awarded to Mr Fernandez in January 2024 occurred in error. 30. Finally, it was submitted for the ODPP that if I were to find that Mr Fernandez was not a temporary employee, the process as required by s 68 of the GSE Act and r 36 of the GSE Rules had nonetheless been followed. Alternatively, it was submitted that some slippage in certain parts of the process would not provide a basis for a finding that Mr Fernandez's dismissal was unfair given the weight of the evidence concerning his performance, the number and seriousness of the issues, Mr Fernandez's continued failure to appreciate that fact, and the absence of any obligation that he be given an opportunity to improve. This was notwithstanding the characterisation of the issues as underperformance rather than misconduct. Consideration The nature of Mr Fernandez's employment 1. The offer of employment made to Mr Fernandez expressly stated that his employment was non-ongoing and would cease from the specified end date unless he was otherwise notified. It made explicit the possibility of his reallocation to meet operational requirements. It further stated that changes in staffing arrangements could result in the early termination of his temporary employment, so that such employment "lasts only as long as the Director considers it administratively justified and may be terminated at any time if it is considered appropriate to do so". When Mr Fernandez's contract of employment was extended to 30 June 2024, it was on the basis that the situation would be reviewed regularly and that changes in funding and staffing arrangements could bring about its early termination. Further, in cross-examination, Mr Fernandez's evidence was that he understood that his employment as a Level 1 Solicitor was on a temporary basis and subject to him providing satisfactory service. 2. The evidence establishes that the extension of Mr Fernandez's contract from 30 June 2024 to 19 July 2024 was unrelated to the requirements of his role. Rather, it was to enable the ODPP to properly consider his 17 May 2024 submission and meet the requirements of GSE Rules r 14. 3. Mr Fernandez relied on the decision of Sloan C in Alexandra Boyce v Industrial Relations Secretary on behalf of the Australian Museum Trust [2019] NSWIRComm 1013 (Boyce) for the contention that his employment was in fact ongoing and, therefore, that the power to terminate his employment pursuant to s 47(2) of the GSE Act was not validly exercised. However, there are several significant factual differences between that matter and the circumstances in this case. In Boyce, the applicant worked for almost six years under six temporary contracts. This was well in excess of the four-year upper limitation period on temporary employment enacted by r 10(1) of the GSE Rules. Further, in Boyce, there was a point at which the applicant's employment continued beyond the end of her specified contract period, until such time as her employer put a further specified term contract in place. The purpose of her position – to create ongoing relationships with third parties – also pointed to a position of an ongoing nature. 4. By contrast, Mr Fernandez's employment of two years five months (across both roles) was well short of the limitation imposed by the GSE Rules. Mr Fernandez's employment always took place within the terms of a contract which he understood to be temporary. He was expressly able to be reassigned to meet operational needs across the state, and his position was subject to ongoing work and funding. The terms of his employment, including the fact that he was able to be moved between teams and even offices as required, underscores the temporary nature of his role. Accordingly, I find that Mr Fernandez's employment was indeed temporary. Compliance with GSE Act and GSE Rules 1. Section 47(2) of the GSE Act provides agency heads with an express power to dismiss a temporary employee "at any time". The only restriction on that power is that the termination be by instrument in writing. However, any such termination must also comply with GSE Rules r 14, which requires that an employee be given notice of the proposed termination and a reasonable opportunity to make submissions in relation to the proposed termination. 2. I am satisfied that the ODPP has complied with these requirements. Mr Fernandez was given written notice of his termination on 8 July 2024. Further, it is clear that the ODPP gave him notice of his proposed termination in the 2 April 2024 Show Cause Letter. That letter afforded him the opportunity to make submissions in response to the proposed termination, which he did on 17 May 2024. There can be no question that Mr Hyland considered the content of those submissions. 3. However, the termination of the applicant was the result of a determination that his performance was unsatisfactory. Any such determination must comply with the requirements of GSE Rules r 36: Grant Johnson at [25]–[26]. They include a requirement that the employee's performance is determined to be unsatisfactory in accordance with the agency's performance management system and that reasonable steps have been taken to advise the employee that their performance is unsatisfactory and why. The remaining requirements of GSE Rules r 36 are captured by GSE Rules r 14. 4. Mr Richardson accepted that Mr Fernandez's performance had been determined to be unsatisfactory, pursuant to GSE Rules r 36. He formed the view that the solicitor file review and the solicitor practice review, together with the December Performance Meeting, were sufficient to meet those requirements. He acknowledged that Mr Fernandez did not participate in a further performance management discussion in March 2024, and that he was not put onto a PIP to address his unsatisfactory performance prior to being terminated. It is also the case that Mr Fernandez did not undertake a performance discussion with Ms Chater in April 2023 shortly after assuming his Level 1 Solicitor role. 5. However, Mr Richardson's evidence was that the annual review process set out within the ODPP Guidelines was primarily directed to ongoing employees. While he accepted that the Guidelines applied to all employees, he stated that the application of the performance management system was less formal for temporary employees, many of whom were not employed for more than one year. I accept that evidence. Further, it is clear that by March 2024, a process to terminate Mr Fernandez's employment was already underway, consistent with his status as a temporary employee whose continuing employment was dependent upon satisfactory performance. The failure of the ODPP to continue to engage him in the performance management process must be viewed in that context. 6. Mr Richardson's recommendation to terminate Mr Fernandez was based on Ms Chater having had "several meetings" with Mr Fernandez in which she had outlined that his performance was not satisfactory. In fact, that was not explicitly stated to him until the December Performance Meeting. However, the evidence establishes that there were multiple discussions with Mr Fernandez about problems with his performance throughout the year in relation to the conduct of several of his matters. I am satisfied that those ongoing discussions represented attempts by the ODPP to assist Mr Fernandez to improve his performance. 7. Mr Fernandez submits that the termination of his employment was unfair because the ODPP invalidly exercised a power to terminate him under s 47(2) of the GSE Act (which applies to temporary employees) when he was in fact an ongoing employee. I have determined above that Mr Fernandez was a temporary employee. Accordingly, the ODPP's exercise of its power to terminate his employment pursuant to s 47(2) of the GSE Act was valid. 8. However, in the event that Mr Fernandez were found to be an ongoing employee, the exercise of power under s 47(2) of the GSE Act would not be validly exercised. It would instead be necessary to terminate Mr Fernandez under s 47(1)(c) of the GSE Act. That, in turn, provides for termination of an employee pursuant to s 68(2)(a) of the GSE Act, provided that the requirements of GSE Rules r 36 are met. While the ODPP engaged in ongoing performance discussions with Mr Fernandez, the evidence establishes that the ODPP performance management process was not strictly followed. 9. Despite these deficiencies in process and notwithstanding the fact that no finding of misconduct was made, I would nonetheless find that the termination of Mr Fernandez's employment was not unfair for the purposes of the IR Act. As held by Commissioner Newall in Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [6]: "While it is the case that in a given case breach of an employer's own policies can render dismissal unfair, it is not necessarily so, and Antonakopoulos v State Bank of NSW (1999) 91 IR 385 and similar cases do not say otherwise. Indeed, that leads me into this proposition. What the Commission has to address under s 84 of the Act, or under part 6 of chapter 2 of the Act, is whether a dismissal was harsh, unreasonable or unjust. Lawfulness of an action taken by a respondent, or observance of its policies, may well be a consideration but they do not detract from the actual consideration the Commission is required to carry out, that is, drawing on Bankstown City Council v Paris (1999) 93 IR 209 and the cases following it, whether a dismissal was unfair assessed by the tripartite test to which I have referred. That is the only basis on which s 84 applications can be determined, there is no other." 1. Mr Fernandez's manifestly unsatisfactory performance over several months is plainly established on the evidence before the Commission. His employment was terminated by the ODPP only after consideration had been given to his detailed explanations for his actions. Mr Fernandez's assessment that he has been unfairly treated is informed by his demonstrated lack of insight into the deficiencies in his performance. His evidence before this Commission demonstrates his continued unwillingness to take responsibility for that poor performance. Further, his proven resistance to guidance and direction permits an inference that, given the opportunity, his performance would not have significantly improved. My reasons for these findings are set out below. Was the termination of Mr Fernandez's employment unjust? 1. I do not accept Mr Fernandez's submission that his termination for unsatisfactory performance had no sound basis in fact and was therefore unjust. Ms Chater was an impressive witness. She was honest and forthright and made appropriate concessions. I therefore accept her evidence concerning Mr Fernandez's unsatisfactory performance during 2023. That evidence included complaints received from third parties as well as staff of the ODPP about Mr Fernandez's performance of his role. A few of the more serious examples of unsatisfactory performance, which were accepted by Mr Fernandez as having occurred, include: 1. Failing to notify the charge certifier as soon as an offer to plead guilty was received, which resulted in a plea ultimately being accepted to a lesser charge (Matter D); 2. Failing to file a certified charge when instructed to do so and instead asking the officer in charge to produce a statement about why another charge was not preferred (Matter F); 3. Removing himself from an allocated matter to appear in another matter without managing solicitor approval (Matter H); 4. Cross-examining a Commonwealth DPP witness in a joint state and federal sentence matter (Matter H); 5. Questioning the role of a more senior solicitor allocated to supervise a matter on which he was working (Matter B); 6. Failing to follow a direction given to him by a more senior solicitor in relation to the conduct of a matter (Matters B and F); 7. Approaching an expert who had not been approved in relation to producing a report because he had overlooked the relevant court deadline and needed to find someone who could provide a report at short notice (Matter C); 8. Questioning advice given to him by both ODPP staff members and third parties about processing witness expenditure instead of following said advice, and therefore accruing unauthorised expenditure (Matters A and B); and 9. Lateness to court, leaving counsel or Solicitor Advocates uninstructed and therefore being unavailable before court to undertake preparation tasks such as collation of materials in trials in which he was instructing (Matters C and E). 1. Mr Fernandez accepts that these events occurred but views them as "mistakes" or "misunderstandings" due largely to his inexperience. I do not agree. The evidence demonstrates that Mr Fernandez: 1. Had an exaggerated/unrealistically high view of his ability (as demonstrated by his seeking to participate in an advocacy course for much more experienced lawyers) and therefore did not seek guidance as needed and challenged guidance when it was given; 2. Was highly motivated to undertake advocacy work (including appearing in unallocated lists without permission from his manager) and gave insufficient attention to less interesting aspects of his role and the more mundane tasks associated with them; 3. Was unable to manage his time appropriately; and 4. Displayed a significant lack of judgement, both in failing to obtain advice from more experienced solicitors when it was required and in the decisions that he made in the absence of such advice. 1. I also accept Ms Chater's evidence that she and others in her team discussed with Mr Fernandez the shortcomings of his performance at the time they occurred throughout the year. However, I also accept that at no point prior to December 2023 was Mr Fernandez expressly told that his performance was "unsatisfactory" and that he did not appreciate that to be the import of discussions had with him. 2. Mr Fernandez raised a number of objections concerning the characterisation of his performance as unsatisfactory. He pointed to the lack of investigation by the ODPP of both the allegations against him and his complaint about Ms Deibe. However, Mr Fernandez has accepted most of the allegations against him. Accordingly, no investigation was required to establish their veracity. The ODPP's reliance on input from Ms Deibe as to Mr Fernandez's performance, in circumstances where Mr Fernandez alleged her to be harassing him with persistent unjustified criticism, is also of no consequence in respect of allegations of conduct that have been admitted. 3. Mr Fernandez pointed to many of the performance issues as having arisen during his first six months in the role, which meant they were of less relevance to his performance as at December 2023. However, the extended period to which Ms Chater referred in setting out issues with Mr Fernandez's performance only serves to demonstrate that the performance issues were serious and ongoing. 4. Mr Fernandez asserted that his performance improved after December 2023, so that by July 2024, many of the matters previously raised were no longer an issue. I am not able to make that finding, even on the balance of probabilities. The evidence which Mr Fernandez and Ms Chater gave of their separate conversations with Mr Noll concerning Mr Fernandez's 2024 performance attributed contrasting views to him. Further, the lack of insight demonstrated by Mr Fernandez as to the nature of his performance (a subject to which I will return) gives me pause before accepting his evidence that his performance significantly improved. However, I accept that Mr Fernandez was terminated in July 2024 as a consequence of his unsatisfactory performance in 2023. That is also a matter to which I shall return. Was the termination of Mr Fernandez's employment unreasonable? 1. The contention that Mr Fernandez was not given adequate opportunity to respond to the allegations against him appears to be based on the summary nature of the email sent by Ms Chater to Mr Fernandez on 14 December 2023 and Mr Fernandez's lack of access to the content of Ms Chater's report to Ms Govind. That report contained additional detail about the carriage of matters discussed with Mr Fernandez. Mr Fernandez was plainly given an opportunity to respond to the allegations discussed with him by Ms Chater, including those set out in the solicitor practice review and the file review. He did so extensively in December 2023, and provided additional comment on 15 March 2024, as well as on 17 May 2024. I am satisfied that any response provided by Mr Fernandez to the additional matters included by Ms Chater in her report to Ms Govind would not have altered the decision to terminate his employment given the number and significance of the matters to which he did respond. 2. As noted above, I accept that the decision to terminate Mr Fernandez in July 2024 was based on his 2023 performance. Mr Richardson stated that he relied on the advice of Ms Chater in making his recommendation to Mr Hyland that Mr Fernandez's employment be terminated. He also accepted that no real attempt had been made to assess Mr Fernandez's 2024 performance. Ms Chater did not return from Christmas leave until 12 February 2024 and ceased to be Mr Fernandez's manager on 18 March 2024. Mr Fernandez was on stress leave from 29 January 2024 to 19 February 2024. Accordingly, there was only a brief period during 2024 when Mr Fernandez was at work and being supervised by Ms Chater. 3. Given that circumstance, I accept that Mr Fernandez was not given any meaningful opportunity to demonstrate improvement in his performance in 2024. The Show Cause Letter that he received on 2 April 2024 was the product of a process that began with Ms Chater's report to Ms Govind in December 2023. Further, it is clear that the decision of Mr Richardson to recommend that Mr Fernandez's contract be terminated in July 2024, rather than to extend his contract for six months, was made based on Ms Chater's assessment of his 2023 performance. While Ms Chater's evidence was that she was unaware of improvements in Mr Fernandez's performance between 22 December 2023 and March 2024, she noted that she had ceased to be his manager on 18 March 2024 and that Mr Fernandez's new manager should be consulted. That did not occur. 4. The lack of meaningful assessment of Mr Fernandez's 2024 performance has to be viewed in the context of the gravity of the matters raised about his 2023 performance and relatively brief period that he was at work in 2024. As noted above, Mr Fernandez returned to work in early January 2024 and was then on leave from 29 January 2024 to 19 February 2024 and from 5 April 2024 to 12 June 2024. However, the number and nature of the performance issues identified were such that it was not unreasonable for the ODPP to terminate his employment instead of extending his contract to enable him to demonstrate meaningful improvement in his performance. 5. In addition, Mr Fernandez's evidence before this Commission gives me little confidence that his performance would in fact have improved. That is because of his unwillingness to accept the seriousness of the performance issues raised with him, either when they occurred or, with the benefit of the ODPP evidence, before the Commission. Indeed, his lack of insight is demonstrated by his maintaining "a strong view" that he was performing well, in the face of multiple concerns having been raised with him in discussions with Ms Chater or other solicitors in her team. 6. Also illuminating is Mr Fernandez's assertion that Ms Chater had "mischaracterised" his performance by reporting that he had been 20 minutes late for the first day of a trial when he was only 10 minutes late for the second day of a pre-trial hearing. Mr Fernandez appears not to appreciate that the difference in the accounts is immaterial. His concern that the feedback on which the ODPP acted in assessing his performance as unsatisfactory was not accurate needs to be viewed in that light. Further, as noted above, the problem with his being late for the pre-trial hearing was not confined to a brief period when the advocate appearing was not instructed. It also meant that Mr Fernandez was not available in the office to undertake the inevitable last-minute preparation required to be done by an instructing solicitor prior to attending court. Indeed, on the relevant occasion, he asked Ms Deibe to go to court in his place when she called him to find out whether one such task had been done. 7. Further, Mr Fernandez gave evidence at hearing that he needed to consider "valid feedback". When challenged about whether he thought he only needed to take on board feedback which he considered to be valid, he had difficulty responding. Eventually, he accepted that he had to take on feedback which he considered not to be valid. That evidence was indicative of his demonstrated propensity to question guidance and instructions that he was given. 8. I accept that Mr Fernandez was not expressly warned about the possibility of his employment being terminated in December 2023 when Ms Chater advised him that his performance was unsatisfactory. While that is a relevant consideration under s 88 of the IR Act, it is not determinative of the issue. In any event, Mr Fernandez's evidence before this Commission was that he understood his employment to be at risk following the performance management discussion. Accordingly, the ODPP's failure to provide an official warning to Mr Fernandez that he was at risk of his employment being terminated is not a matter that renders the termination of his employment unreasonable. Was the termination of Mr Fernandez's employment harsh? 1. I do not accept Mr Fernandez's submission that his termination was harsh given his junior solicitor status and expectation of performance development. Mr Fernandez was offered a mentor from whom he could seek guidance or advice in relation to each of his matters. The evidence establishes Mr Fernandez's inability to recognise when he needed assistance, his repeated unwillingness to seek that assistance from his allocated mentor, and his propensity to question whether directions that he was given were appropriate. 2. A significant amount of the cross-examination of Ms Chater was directed to procedural matters, such as whether allegations were put to Mr Fernandez in writing, whether he was notified before 2 April 2024 that his performance could lead to the termination of his employment and whether he was given an opportunity to improve his performance. I have already addressed the ODPP's asserted procedural failings concerning the absence of any warning to Mr Fernandez that his employment might be terminated, the making of allegations to Ms Govind which were not put to him, the ODPP's failure to follow its performance management process to the letter and the absence of the investigation of Mr Fernandez's complaint against Ms Deibe. In all the circumstances of this matter, I do not accept that any of those matters, or all of them in combination, rendered Mr Fernandez's dismissal harsh. 3. Nor do I accept that Mr Fernandez's exercise of his right to parental leave in any way influenced the decision to terminate him. The evidence points overwhelmingly to his employment having been terminated due to his ongoing poor performance. I do accept that he had difficulty adjusting to his role as a new father and that sleep deprivation and his partner's mental health issues following his son's birth made his work life more challenging. However, that is not a matter that renders his dismissal harsh in light of his inability to accept or acknowledge the seriousness of his errors, and his demonstrated propensity both to challenge those in authority and to attribute errors to "misunderstandings" or the result of others' actions. 4. It is unfortunate that Mr Fernandez received an increment increase on 18 January 2024 in view of what was unsatisfactory performance on his part. That plainly occurred in error. Given the nature and extent of the detail provided to Mr Fernandez about his performance issues at the December Performance Meeting, I do not accept that his receipt of that increment increase could reasonably have caused him to question the veracity of that feedback. 5. It was also unfortunate that, an assessment having been made by Ms Chater in December 2023 that Mr Fernandez's performance was such that his contract should not be renewed, he was not notified of that state of affairs until 2 April 2024. There was a period of almost four months during which Mr Fernandez was uncertain about his future, causing him a degree of anxiety and stress. Further adding to that unfortunate state of affairs was the ODPP's inability to consider and act on Mr Fernandez's 17 May 2024 response to the Show Cause Letter in advance of the 30 June 2024 expiry of his temporary contract. That is particularly so given Mr Richardson's March 2024 recommendation that consideration be given to terminating Mr Fernandez's contract at the end of his parental leave (being 14 June 2024), preventing the need for him to return to the office. Conclusion 1. Taking into account all of the above matters, I find that the termination of Mr Fernandez's employment was not harsh, unreasonable or unjust. Costs on the ODPP's Notice of Motion The submissions of the parties 1. As noted above, Mr Fernandez seeks costs thrown away in filing submissions on the ODPP's Notice of Motion challenging the Commission's jurisdiction in the matter. Annexed to Mr Fernandez's submission was an itemised schedule of costs in the sum of $5,539.00, plus GST. 2. Subsections 181(1) and (2) of the Act provide as follows: 181 Costs (1) Subject to the rules of the Commission and any other Act or law— (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (2) However, the Commission, when it is not in Court Session, may award costs only in the following cases— (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if— (i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that Mr Fernandez's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. … 1. I have addressed the Commission's jurisdiction at the outset of this decision. It is readily apparent that the Commission had jurisdiction to hear the matter in circumstances where the fixed term of Mr Fernandez's second contract was well in excess of six months. 2. The parties agreed that this matter could be addressed by way of written submissions without the need for oral argument. Mr Fernandez relies on s 181(2)(b) of the IR Act in submitting that "the ODPP's Notice of Motion was instituted without reasonable cause". Mr Fernandez also relies on s 181(2)(c) of the IR Act and submits that "the ODPP unreasonably refused to settle the claim", noting his correspondence to the ODPP on 18 September 2024 offering to "settle the claim by way of the ODPP withdrawing the claim" and indicating an intention to seek costs in the event that the Motion was pressed. No submission is made by Mr Fernandez that the ODPP's Motion was frivolous or vexatious for the purposes of s 181(2)(c). 3. The ODPP submits that the costs sought by Mr Fernandez are not costs that can be ordered pursuant to s 181(2) of the IR Act. Relying on the decision of Backman J in Transport Workers' Union and Robar Enterprises (No 2) [2014] NSWIRComm 9 at [8], the ODPP submits that the relevant "proceedings" for the purpose of s 181(2)(b) of the IR Act are Mr Fernandez's substantive claim before the Commission. The ODPP further submits that the decision of Backman J at [8]–[9] makes clear that "institutes proceedings without reasonable cause" refers to the commencement of proceedings, noting that this would extend to a motion to re-litigate a final determination, as determined in Dr A v Health District (No 4) [2014] NSWIRComm 56 at [27]–[28] (Dr A), relying on Bar-Mordecai v State of New South Wales (2012) 83 NSWLR 125 at 137; [2012] NSWCA 207 at [39] (Bar-Mordecai), but does not extend to "a routine interlocutory order in extant proceedings": Bar-Mordecai at [39]. 4. Relying on the decision of Sloan C in Cross v Secretary of the Department of Education (No 2) [2022] NSWIRComm 1115 (Cross), the ODPP submits that the Motion is not an "application" for the purpose of s 181(2)(c) of the IR Act. Further, the ODPP submits that a plain reading of the provision makes it clear that the "claim" referred to is the overarching claim, i.e., the unfair dismissal claim, and not a Motion of the type presently in issue. 5. In the event that the Commission determines that its jurisdiction to award costs is enlivened, the ODPP submits that the Commission ought to decline to exercise its discretion to award costs, noting that the discretion to award costs is rarely exercised in unfair dismissal cases. The ODPP notes that a party cannot be said to have commenced proceedings without reasonable cause simply because their argument proves unsuccessful. Rather, there had to be no substantial prospect of success at the time of instituting the proceedings. That is, it must be clear from Mr Fernandez's own version of the facts that the proceedings must fail. 6. The ODPP submits that its decision to withdraw the Motion does not, of itself, provide a basis to determine that it was manifestly groundless, particularly as it was not heard and determined by the Commission, and notes that the question of whether there was reasonable cause falls to be determined at the time that the Motion was filed. The ODPP further submits that an application will not generally have been instituted without reasonable cause where it is dependent upon the determination of disputed facts or the resolution of arguable points of law and that, had the Motion proceeded, dispute would have arisen as to whether the various cases dealing with temporary employment were applicable in light of the specific provisions in Mr Fernandez's contract. 7. In addition, the ODPP submits that there is no evidence that any offer, being the correspondence between the parties referred to by Mr Fernandez in his submissions, was rejected unreasonably by the ODPP, that the Motion was withdrawn well in advance of the hearing, and there can be no suggestion that the ODPP did not reasonably and carefully consider its prospects of success on the Motion at the time when that correspondence was received. Finally, the ODPP submits that an award of costs to Mr Fernandez may serve as a signal that parties will be penalised for withdrawing Motions of this type before a hearing, even when they determine that it is appropriate to do so. Does the claim fall within the provisions of s 181(2)(b) or (c)? 1. Section 181(2)(b) of the IR Act concerns proceedings instituted without reasonable cause. Mr Fernandez did not consider whether the filing of a Notice of Motion amounts to instituting proceedings for the purposes of the IR Act. A number of authorities cast doubt on that proposition. In Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) and Robar Enterprises Pty Ltd (No 2) [2014] NSWIRComm 9, Backman J held at [9]: "The expression 'institutes proceedings without reasonable cause', appearing in s 181(2)(b) focusses on the institution of proceedings. The parties did not address the meaning or scope of the words 'institution of proceedings' however both the applicant and the respondent appeared to adopt in submissions a narrow construction of the words which is consistent with the commencement of proceedings or, at the time of commencing the proceedings." 1. Similarly, in Cross, Sloan C observed at [27] that an application for costs in that matter proceeded on the unchallenged assumption that in filing the Notice of Motion, the Secretary "instituted proceedings" within the meaning of s 181(2)(b). 2. However, in Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364; [1998] NSWIRComm 289, Cahill VP, Hill and Maidment JJ and Redman C held as follows at 401–2: "First, we reject Mr Rothman's submission that a respondent to proceedings cannot be a party who institutes proceedings within the meaning of the section other than in the case of an appeal. In our opinion, a respondent to proceedings who makes an application to dismiss or strike out the claim in those proceedings is a 'party who institutes proceedings'. The proceedings which have taken place on and from 14 July 1997 have been proceedings instituted by the respondent's notice of motion." 1. Accordingly, it is open to me to find that the ODPP's Notice of Motion instituted proceedings for the purposes of s 181(2)(b) of the IR Act. 2. As to whether the proceedings were instituted without reasonable cause, the relevant test is whether, on the facts apparent to the moving party at the time of instituting the proceedings, there was no substantial prospect of success: Dr A at [14], relying on Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264­–5; [1992] FCA 366. This is such a case. Even accepting that Mr Fernandez was employed for a specified period, on the ODPP's own case, that period was well in excess of six months. I am able to make that determination in the absence of argument on the Motion. 3. Turning to s 181(2)(c) of the IR Act, I accept the ODPP's submission that a plain reading of the provision makes it clear that the "claim" to which the provision refers is Mr Fernandez's unfair dismissal claim under Part 6 of Chapter 2 of the IR Act. This is consistent with the decision of the Full Bench of the Commission in Bankstown City Council v Paris (1999) 93 IR 209 at 218–219; [1999] NSWIRComm 530: "Construing the relevant part of s 181(2)(c) in its overall statutory context, we conclude that the evident purpose of the provision is to encourage the settlement of proceedings to which it applies. The criterion set out in the provision is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim. We also consider that on the proper construction of the provision, an affirmative conclusion may be reached on at least two bases. First, where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party. The second situation in which the criterion could be satisfied is where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. We emphasise that, although the legislature has clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings, the legislature has also evinced a clear intention that costs orders be available in circumstances where there has been a failure on the part of a party to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. Once the statutory criterion has been met, the Commission's broad powers and discretions under s 181(1) are available for exercise." Should the Commission exercise its discretion to award costs? 1. The remaining question is whether this is a matter in respect of which the Commission should exercise its discretion to award costs. As noted by the ODPP, the Commission is essentially a non-costs jurisdiction. The ODPP withdrew its Motion well in advance of the hearing date. In addition, the authorities as to whether the ODPP's Notice of Motion challenging jurisdiction amounted to the institution of proceedings for the purposes of s 181(2)(b) of the IR Act are not consistent, as set out above. Given those matters and the manifest lack of merit of Mr Fernandez's substantive claim, I decline to award Mr Fernandez costs thrown away on the Motion. Orders 1. I make the following orders: 1. The Application is dismissed. 2. The application for costs on the Notice of Motion is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2025