Fernandez v Office of the Director of Public Prosecutions [2025] NSWIRComm 35

[1946] HCA 25Fernandez v Office of the Director of Public Prosecutions [2025] NSWIRComm 35 | Case summary | Zoe

[41]

"1. The proceedings before the Deputy President miscarried due to the Respondent fraudulent misconduct by engaging in surprise by re-agitating unparticularised allegations the day of hearing and deliberately suppressing evidence exonerating the Applicant of wrongdoing, namely the "Omitted Email" dated 28 June 2023. Likewise, in contravention of a Summons for Production dated November 2023, the Respondent deliberately withheld five exculpatory emails dated 1 November 2023 ("Withheld Emails") and suppressed the evidence during the hearing. This deliberate misconduct deprived the Applicant of the opportunity to fairly defend himself against serious allegations of unsatisfactory performance found at [142] (2.), (6.), and (8.) of the judgement, which were found on an improper basis.

2. The Deputy President erred in law by incorrectly treating the Applicant's general acceptance of certain performance concerns as constituting admissions to substantially re-particularised and more serious allegations set out at [142] of the judgment, despite the absence of evidence of an admission. Consequently, the Deputy President fell into jurisdictional error by entirely overlooking the mandatory considerations under section 88(b) of the Industrial Relations Act 1996, failing to objectively assess whether the Respondent's allegations had a factual basis, and whether the seriousness attributed to the Applicant's conduct was justified.

3. The Deputy President erred in law by characterising the Respondent's complete failure to provide explicit performance warnings as merely a minor procedural oversight, rather than properly recognising it as a significant matter relevant to considerations of substantive and procedural fairness under section 88(c) of the Industrial Relations Act 1996, rendering the Applicant's dismissal unreasonable.

4. The Deputy President erred in law by incorrectly concluding that the Respondent was excused from compliance with its mandatory obligation under Rule 36(a) of the Government Sector Employment Rules 2014 to determine whether the Applicant's performance was unsatisfactory in accordance with the Respondent's own performance management system, specifically the requirement to undertake a subsequent mandatory performance review which disentitled the Applicant from formally demonstrating improved performance rendering the Applicant's dismissal unjust and unreasonable."

[48]

Mr Fernandez, who was self-represented, sought leave to appeal alleging errors in her Honour's consideration of his performance and the ODPP's obligations under the GSE Act, GSE Rules and Guidelines. He advanced four grounds.
First, the ODPP's failure to produce relevant emails amounted to misconduct, preventing him from defending allegations of unsatisfactory performance and leading to adverse findings about his performance. In particular, Mr Fernandez was concerned with the allegation about his refusal to file a certified charge when instructed to do so and instead asking the Officer in Charge (OIC) to produce a statement explaining why another charge was not preferred: see "Matters B and F" in the decision below at [142].
Second, her Honour wrongly treated Mr Fernandez's general acknowledgement of performance concerns as admissions of serious instances of unsatisfactory performance. Her Honour also failed to acknowledge the procedural unfairness caused by the ODPP's "re-characterised" unsatisfactory performance allegations at the hearing. As a result, her Honour failed to assess whether the dismissal had a "basis in fact" or otherwise to verify the reasons for dismissal as required by s 88(b), and gave insufficient weight to evidence of his improvement in 2024.
Third, her Honour failed to recognise the denial of procedural and substantive fairness. Mr Fernandez was not explicitly warned that his employment was at risk. The ODPP also failed to provide him with structured feedback and support in accordance with the Guidelines. Her Honour erred by concluding that these failures did not render the termination unreasonable and failed to consider "whether a warning of unsatisfactory performance was given before the dismissal": IR Act, s 88(c).
Fourth, her Honour erred in finding that Mr Fernandez's termination was lawful. The termination process did not comply with the GSE Act, GSE Rules and Guidelines. Rule 36 required the implementation of the Guidelines, and s 68(2)(a) required an employee facing termination for unsatisfactory performance (including a temporary employee) to be given a prior "opportunity to resign". As Mr Fernandez was terminated for unsatisfactory performance, s 47(2) of the GSE Act did not displace the operation of s 68 and r 36. The ODPP's failure to implement the Guidelines which required performance discussions in April 2023 and March 2024 and structured feedback rendered the termination unlawful and therefore unreasonable.
Mr Fernandez further contended that leave should be granted due to the decision's significant impact on his employment prospects, professional reputation, and wellbeing. He also contended that it was in the public interest to prevent public sector employers from using temporary employment status or parental leave to circumvent procedural fairness obligations.

[52]

The leave sought under s 191(2) of the IR Act to lead further evidence must be refused. Mr Fernandez sought such leave in respect of the Draft File Review and the LW Article. The Draft File Review was in Mr Fernandez's hands at the time of the hearing, but the LW Article did not then exist.
Mr Fernandez has not established the required grounds, despite his reliance on Commonwealth Bank of Australia v Quade. In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, the successful party should be deprived of the judgment in their favour only if the unsuccessful party establishes that there was no lack of reasonable diligence on their part and that it is reasonably clear that the fresh evidence would have produced an opposite result: Quade at 141.[1]
The position is different where the unavailability of the evidence at the trial resulted from a significant failure by the successful party to comply with an order to discover or produce the documents under their control. On appeal, what will best serve the interests of justice must be considered, taking into account a variety of competing factors such as the degree of culpability of the successful party, any lack of diligence by the unsuccessful party, and the extent of any likelihood that the result would have been different if the order had been complied with. Generally, there must be at least a real possibility that an opposite result would have been produced: Quade at 142-143.
We accept the evidence of Ms Shields, who was not cross-examined, as to the reasons for the ODPP's inadvertent failure to produce the documents. There is no basis to infer any deliberate attempt by the ODPP to conceal these documents.
Further, it cannot be said that it is reasonably clear that if this evidence had been available at trial and had been adduced, an opposite result would have followed. Nor does it appear that there is at least a real possibility that would have been so. The two documents at issue were simply not of that character and the discretion to admit them cannot sensibly be exercised.
The Draft File Review could have been obtained for use at the trial, given that it was in Mr Fernandez's possession and he was aware of its existence prior to the trial.
Furthermore, this document would not have materially assisted his case. Its significance lay in a reference to an email the ODPP failed to produce which Mr Fernandez claimed exonerated him from the allegation of poor performance relating to matters B and F.
We reject the claim that this email exonerated Mr Fernandez. Ms Chater, the solicitor who directed Mr Fernandez to file the certified charge, acknowledged in the email that the ODPP could not force the OIC to lay a charge. However, the problem she identified was not that Mr Fernandez sought the views of the OIC, but that he obtained a statement from the officer which recorded his disagreement with the ODPP's proposal.
For the reasons we explain further below at [166 ]-[169 ], we consider that the ODPP's reliance on this episode is, for different reasons, problematic. Still, when considered in the context of all of her Honour's findings about the full range of Mr Fernandez's unsatisfactory performance issues, we are not persuaded that there was any real prospect of the Draft File Review leading to a different result at the hearing below, had it been produced.
While we accept that the LW Article may have caused distress to Mr Fernandez, there was no explanation provided as to why it should be adduced. The LW Article does not give rise to prejudice and it was not demonstrated that its inclusion would have affected the outcome.

[53]

We have concluded that Mr Fernandez must be granted leave to appeal.
Leave must be granted if the matter is of such importance that, in the public interest, leave should be granted: IR Act, s 188(2). We are satisfied that this is such a case. The appeal raises the issues of the proper construction of the GSE Act_,_ the consequences of a failure to comply with the obligations it imposes on public sector employers, as well as the consequences of non-compliance with a performance management system that the GSE Act requires such employers to adopt.
Although not the only factor, an essential prerequisite for granting leave to appeal is that the Full Bench must be persuaded that the decision appealed from is attended with sufficient doubt to warrant its reconsideration: Mallegowda v Transport Secretary (No 8) [2025] NSWIRComm 10 at [27] citing Sharpe v Heywood [2013] NSWCA 192 at [34].
The reasons which follow explain why we are satisfied that prerequisite has been established.
Leave will also not be lightly or automatically granted. Nor will it generally be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" or when it raises issues going to the proper administration of justice: Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380 at 381-382.
We are satisfied that Mr Fernandez has established that his appeal raises such matters.
In particular, the appeal raises the question of whether, and in what circumstances, a government sector agency's failure to comply with the GSE Act by not following its own performance management systems and by not affording temporary employees an opportunity to resign before terminating their employment for unsatisfactory performance, can render a dismissal harsh, unreasonable or unjust for the purposes of s 84 of the IR Act_._

[57]

(1) An appeal under s 191 of the IR Act is an appeal in the strict sense, with the result that the Full Bench will only intervene to correct error: Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32; [1999] NSWIRComm 449 at 42-43.

(2) In the case of discretionary decisions, it is not enough that the Full Bench would have come to a different view on the evidence. What must be shown is that the primary member failed to properly exercise the discretion in question: Mace v Murray (1955) 92 CLR 370; [1955] HCA 2 at 377-378 and House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505.

(3) Credit-based findings of fact should not be interfered with unless the decision is at least "glaringly improbable" or "contrary to compelling inferences", in which event the Full Bench must give effect to its own conclusions, after making all due allowances for the advantages available to the Member who heard the application: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

(4) The IR Act imposes no obligation on an employer to follow any particular procedure when effecting a dismissal, or to give an employee a warning before dismissal, although "a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness": Buckman v Burdekin Resources NL (1998) 85 IR 415 at 418.

(5) However, such procedural requirements may be imposed by other statutory regimes. A challenged dismissal must thus be considered in light of the regulatory context in which the employee was employed: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) at [146].

(6) The employment of public servants is contractual. But the contract of a public servant to whom the GSE Act applies must be consistent with the terms of the legislation. There is no authority to engage them on terms at variance with the statute, which also controls the terms of their service: Director-General of Education v Suttling (1987) 162 CLR 427; [1987] HCA 3 at 437-438 (considering the requirements of a predecessor to the GSE Act).

(7) The use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable: Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24 at 430.

(8) A failure to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, can thus be taken into account as part of the consideration of an application brought under s 84 of the IR Act: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 390.

(9) Procedural defects will necessarily be more serious when they involve a breach of a legal obligation: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37; [2003] NSWIRComm 211 at [199].

(10) But there will be cases where the lack of procedural fairness involved in a dismissal does not render it harsh, unreasonable or unjust, given the seriousness of the misconduct established on the evidence: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 467.

(11) However, as explained in Denise McKay v Department of Family & Community Services (2018) 278 IR 136; [2018] NSWSC 44 in relation to the GSE Act at [102]: "Parliament regards misconduct pursuant to s 69 as more serious than unsatisfactory performance pursuant to s 68". Mr Fernandez's employment was terminated for the less serious reason.

[62]

The cases which the parties ultimately pressed addressed the proper construction of s 68 of the GSE Act and r 36 of the GSE Rules.
The well-known principles of statutory construction which must be adhered to have been repeatedly explained. The task of construction begins and ends with the statutory text, which must be considered in its context "if, and in so far as, it assists in fixing the meaning of the statutory text": Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22], quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] referred to in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [37]. The discernment of the statutory purpose is integral to making a choice between a range of potential meanings is: SZTAL at [39]. And the internal operation of a statute must be construed in a way which best achieves a harmonious result: Eaton at [78].
The purpose of the GSE Act can be gleaned from its objects, relevantly specified in s 4(c), which include "to provide transparent governance and employment arrangements for the Public Service, including providing for the employer functions and responsibilities of heads of Public Service agencies".
Section 43(1) specifies that a Public Service non-executive employee such as Mr Fernandez may be engaged on an ongoing, temporary or casual basis. Mr Fernandez was originally employed by the Department of Corrective Services. He was then employed by the ODPP under two contracts of temporary employment pursuant to s 43(1)(b). Section 43(3) provides only for temporary employment that "is employment for a temporary purpose".
The GSE Rules permit temporary employment for periods of up to 12 months and, in certain cases, for longer periods: rr 21 and 22. Rule 10 prescribes that the maximum period of temporary employment in the same Public Service agency is four years within any continuous period of five years. A further period of up to four years is permitted on a comparative assessment, after external advertising: r 10(1A). Even such a further period may be extended for a further 12 months: r 10(2). Exceptions to the Rule are also permitted: r 10(3).
It follows that, under the GSE Act, temporary employees employed for a temporary purpose need not be employed for one year or less and in fact may be employed for extended periods under such a contract, or series of contracts.
Both ss 47 and 68 regulate termination of employment. Section 47(1) deals with the termination of ongoing employment while s 47(2) deals with termination of employment that is not ongoing as follows:

[72]

The requirements of the agency's performance management system referred to in r 36(1)(a) are addressed in r 35(1), which identifies its "core requirements" as including "to guide and review employee performance" and "to improve employee performance".
We acknowledge a possible ambiguity arising from the interaction between ss 47 and 68. Section 47(1)(c) makes express reference to termination of ongoing employees for unsatisfactory performance as determined pursuant to s 68; while s 47(2) permits termination of non-ongoing employees (including temporary employees) at any time, without limiting the reasons for such termination.
It might be argued that s 68 and r 36 do not apply to temporary employees, given that s 47(2) permits the termination of non-ongoing employees at any time, while s 47(1)(c) requires compliance with s 68 if the employment of ongoing employees is to be terminated for unsatisfactory performance.
Such a construction, however, was not advanced by the parties in this appeal.
Her Honour found at [131] that Mr Fernandez was a temporary employee. She noted at [132] that s 47(2) permitted agency heads with an express power to dismiss a temporary employee at any time by instrument in writing, although r 14 requires that employee to be given notice of the proposed termination and a reasonable opportunity to make submissions in relation to it. While her Honour did not refer to s 68 in this context, she concluded at [134] that because Mr Fernandez's employment was terminated for unsatisfactory performance, r 36 also had to be complied with.
Her Honour also concluded that because Mr Fernandez was a temporary employee the ODPP's exercise of the s 47(2) dismissal power was valid: the decision below at [139]. Had he been an ongoing employee he could not have been validly terminated for poor performance under s 47(2), it would have been necessary to terminate him under s 47(1)(c).
We address the evident tension between her Honour's finding that r 36 applied and her reliance on s 47(2) as an alternative statutory basis for the dismissal at [112 ]-[113 ] and [142 ]-[149 ] below.
Furthermore, as we have noted at [31 ], although the ODPP suggested that her Honour may not have considered s 68 to be applicable "in light of Mr Fernandez status as a temporary employee", it ultimately accepted that the effect of her Honour's decision was that the ODPP was required to comply with s 68. This was because her Honour found that any termination of Mr Fernandez's employment for unsatisfactory performance required compliance with r 36 which, as noted above, regulates the circumstances in which an agency may take action under s 68(2): the decision below at [134].
In the course of the hearing on this appeal, the ODPP's counsel confirmed that the ODPP did not seek to disturb the effect of her Honour's decision on this issue of statutory interpretation. The ODPP was also given leave - which was never utilised − to file a notice of contention on the appeal.
In these circumstances, it is not appropriate to reconsider this question in these proceedings. We thus proceed on the same basis as her Honour, namely, that s 68 and r 36 apply to temporary employees.
Section 47(2) is not concerned with the reasons for which non-ongoing employment may be terminated. It expressly confers a power of removal before a period of temporary employment expires, by the giving of written notice, which an employer would otherwise not have: Director-General of Education v Suttling (1987) 162 CLR 427; [1987] HCA 3 at 443-444.
Section 68 and r 36, on the other hand, are expressly directed to terminations of employment on the ground of unsatisfactory performance without distinction between ongoing and temporary employees.
It follows that, if non-ongoing employment is to be terminated for unsatisfactory performance, the question whether an employee must first be given an opportunity to resign arises.
The ODPP argued that s 68(2)(a) did not specify what such an opportunity entails, contending that a decision to terminate a temporary contract for unsatisfactory performance on the date that the contract expires does not easily fit with the observations in Azzi v State of New South Wales [2024] NSWCA 169 at [6]. In Azzi, Leeming JA at [6] said:

[74]

The phrase "an opportunity to resign" is not defined. But it is not a term of art, and its ordinary meaning is clear. Whether or not the required opportunity was given by the employer will be a question of fact to be determined on the evidence, in the event of any dispute in a particular case.
The observations in Azzi relied upon by the ODPP were made in the context of s 69(4)(b), which also refers to giving the employee an opportunity to resign in the case of a finding of misconduct.
In any event, contrary to the ODPP's submission, we see no conceptual difficulty in giving a temporary employee an opportunity to bring the employment relationship to an end by the employee's own act of resignation at some point during the currency of the temporary employment, instead of giving effect to a termination by the employer's unilateral act of dismissal on the ground of unsatisfactory performance.
The ODPP also argued that s 68(2)(a) did not make the provision of an opportunity to resign a mandatory requirement. In support of this submission the ODPP relied on the words "may ... take" and "without limitation" in the chapeau.
We reject this submission.
Section 68(2)(a) clearly imposes a mandatory requirement on an employer to provide an employee with an opportunity to resign prior to taking action to terminate their employment for unsatisfactory performance. While the chapeau to s 68(2) suggests that the actions identified at s 68(2)(a)-(d) are not exhaustive, where the relevant proposed action is to terminate the employment of an employee then the qualification of giving them a prior opportunity to resign is engaged. In this sense, once the employer elects to terminate employment for unsatisfactory performance, the opportunity to resign pursuant to s 68(2)(a) operates as "a statutorily enshrined right to resign".[2]
In addition, where the GSE Act provides for the sanction of termination of employment without giving the employee an opportunity to resign it does so expressly: see s 69(4)(a) in the context of a finding of misconduct (compared to s 69(4)(b)). The omission of this form of sanction for the less serious determination of unsatisfactory performance is a powerful indication against the ODPP's construction.
It is clear that the GSE Act recognises that there is a potential benefit to the employee that may flow from a resignation, and which may be contrasted with the ignominy of an overt dismissal for cause. It does so by explicitly providing for employment to be terminated for misconduct with and, alternatively, without giving the employee an opportunity to resign, and by ensuring that such an opportunity is given before any termination for less serious performance reasons.
The benefit of the opportunity to resign conferred by s 68(2)(a) would be rendered nugatory if the employer was equally permitted to take action by terminating the employment without this constraint. Such a construction would undermine the statutory purpose of affording employees with procedural protections for less performance issues that fall short of misconduct.

[76]

Mr Fernandez was first employed as a solicitor under his second temporary contract, which was for a fixed period from 13 February 2023 to 30 June 2023.
The second contract was initially extended to 30 June 2024; and was later extended to 19 July 2024 so that the consideration of Mr Fernandez's termination for unsatisfactory performance could be completed. It is common ground that Mr Fernandez was not given the opportunity to resign.
In 2023 Mr Fernandez reported to Ms Chater, a managing solicitor, who was responsible for undertaking Mr Fernandez's annual performance review as provided for by the Guidelines. She managed numerous employees including Mr Fernandez from August 2022 until March 2024.
Ms Chater gave evidence that it was Mr Fernandez who had sought to pursue his performance development with her in September 2023, at a time when such reviews did not ordinarily occur. By then, Ms Chater had considerable concerns about Mr Fernandez's performance and his lack of improvement, but did not meet with him until December 2023. At that time he had made an application for parental leave the following year.
Ms Chater then prepared a draft report outlining her concerns, and discussed it with Mr Fernandez at the December performance meeting. She stated that he appeared surprised, as he considered his earlier mistakes to be part of normal learning. Ms Chater, however, considered some mistakes to be serious, involving breaches of the applicable Code of Conduct, and believed that Mr Fernandez did not appreciate their gravity. She considered that he lacked insight into his own capabilities and experience, noting that one of his stated goals was inclusion on the trial development list - a list typically reserved for level 3 or highly experienced level 2 solicitors - while he was still an inexperienced solicitor.
On 14 December 2023, Mr Fernandez was provided with two documents identifying areas requiring improvement, noting breaches of the Code of Conduct that had been reported to the Solicitor's Executive, and highlighting issues with compliance with ODPP guidelines and the need for him to seek timely guidance. Mr Fernandez replied on 20 December 2023 stating that he was taken aback by some of Ms Chater's comments.
Unbeknown to Mr Fernandez, Ms Chater also wrote to the Executive, recommending that his employment be terminated or not extended after it expired in June 2024. However, Mr Fernandez accepted that he was aware that his employment had been at risk since the December performance meeting.
Notwithstanding her concerns, Ms Chater continued to give Mr Fernandez responsible work, including instructing in upcoming trials, and did not involve Human Resources in a performance improvement process, although the Guidelines made provision for that involvement.
There was no suggestion that the Guidelines were applied to Mr Fernandez after December 2023. Ms Chater commenced leave until February 2024 and then ceased being his manager in March. Mr Fernandez then went on parental leave in April 2024 which Ms Chater had approved.
The result was that Ms Chater was unable to comment substantially on Mr Fernandez's work after December 2023. No evidence was called from those who later managed him, to shed light on his performance in 2024.
During Ms Chater's leave in early 2024, Mr Fernandez received the benefit of a pay increment which could be withheld for poor performance. On Ms Chater's evidence that payment was the result of a mistake. But it was not one that was sought to be corrected or communicated to Mr Fernandez, who understandably believed that it reflected satisfaction with how he was working to address his earlier problems.
On 13 March 2024, Ms Chater provided Mr Fernandez with updated comments on his September 2023 Practice and File Review documents, to which he again responded. However, she did not meet to discuss his responses and nor did his new manager.
The ODPP's Human Resources Director, Mr Richardson, was asked to consider Mr Fernandez's position in January 2024. His consideration of the 2023 documents led him to recommend to Mr Hyland, Solicitor for Public Prosecutions, two alternatives: termination for unsatisfactory performance under s 68 and r 36, or termination under s 47(2). He considered s 68 to be preferable, because it afforded greater procedural fairness. Termination for misconduct was not pursued, although he considered some of the performance issues to be sufficiently serious.
In March 2024, Mr Richardson recommended that Mr Fernandez's employment be brought to an end at the conclusion of his parental leave on 14 June. That recommendation was accepted by Mr Hyland.
It was only on 2 April 2024, the day on which Mr Fernandez commenced approved leave until June, that Mr Hyland informed him of the following matters. First, he was told that his manager had advised that his performance was unsatisfactory. Mr Hyland's reference to Mr Fernandez's manager must be understood as referring to Ms Chater, not his then manager, who appears not to have been consulted.
Second, he was informed that previous attempts to address these issues had proven unsuccessful.
Finally, Mr Hyland indicated that the issues had been discussed on several occasions and documented in the recent performance review. Mr Hyland further stated that Mr Fernandez's employment should be terminated for unsatisfactory performance, as permitted (so it was alleged) by s 47(2) of the GSE Act, and that his temporary employment would not be extended beyond its expiry on 30 June 2024.
The reference to s 47(2) is difficult to understand, because it does not deal with termination for unsatisfactory performance. For the reasons which we explain below at [142 ]-[149 ], the ODPP's reliance on s 47(2) as an alternative basis for the dismissal led her Honour into error.
Mr Hyland invited Mr Fernandez to provide a written statement about the action he proposed to take by 14 May 2024, despite noting that Mr Fernandez was away on parental leave until 14 June 2024.
Nevertheless, in his May 2024 response Mr Fernandez again expressed surprise and requested a further 12-month temporary contract extension. He identified the ODPP's failure to apply the Guidelines, explaining that the decision failed to consider his March 2024 performance review documents and the progress he had made to meet the goals set by Ms Chater, which had been reflected in the pay increment he received. He further asserted that the performance issues identified in December had arisen following the birth of his child and that, despite seeking assistance to meet his goals, he had received no response from his managers to his requests for follow-up. He also referred to encouraging feedback he had received since December from other employees whom he identified.
On 13 June 2024, Mr Richardson provided Mr Hyland with two options: proceed with his earlier recommendation to terminate Mr Fernandez's employment or extend his contract for six months to allow him an opportunity to demonstrate his suitability for the role. Mr Richardson advised that termination without extension was the preferable course, and Mr Hyland, acting on that advice, decided to terminate Mr Fernandez's employment.
This evidence established that no consideration was given to whether Mr Fernandez's performance had improved in 2024, or to his achievement of the goals set by Ms Chater in December 2023, despite the failure to pursue the improvement process required by the Guidelines. It is not apparent why Mr Fernandez's new managers in 2024 were not involved in applying the Guidelines or consulted about whether his employment was still unsatisfactory or, as he claimed, had improved.
On 21 June 2024, despite Ms Chater no longer being his manager, Mr Fernandez was notified that she had responded to his March 2023 comments. Understandably he then refused to acknowledge that he had at least one formal face-to-face discussion about his updated performance goals and that the appropriate reviews had been completed. Plainly, they had not.
On 25 June 2024, Mr Fernandez was offered and accepted an extension of his contract to 19 July 2024 so that his May 2024 response could be considered.
On 8 July 2024, the ODPP informed him that his employment would be terminated on 19 July due to unsatisfactory performance.
Mr Richardson's evidence was that no consideration had been given to whether the matters raised by Ms Chater with Mr Fernandez in December 2023 had been addressed. No contact was made with any of those whom Mr Fernandez had identified in his response. Nor were further steps taken to deal with Mr Fernandez's performance under the Guidelines.
Mr Hyland made his decision to terminate Mr Fernandez's employment in June 2024 and advised Mr Fernandez that he would terminate his employment for unsatisfactory performance on the expiry of his temporary employment contract on 19 July 2024.
Why that course was pursued, given that his employment came to an end on that date in any event, was not explained. On the evidence, this did not accord with the requirements of the GSE Act and the GSE Rules which the ODPP was bound to follow.

[78]

Section 68(1) provides for the GSE Rules "to deal with procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness)". Those requirements are specified in Part 7 Performance Management of the GSE Rules. Rule 35 specifies the "core requirements of a performance management system".
As we have noted above, the ODPP did have in place a performance management system, namely the Guidelines, for the purposes of r 36 of the GSE Rules and s 68 of the GSE Act.
It was common ground that the performance management system envisaged in the GSE Act and the GSE Rules applied to temporary employees. The Guidelines themselves expressly provide that they apply to all staff without distinguishing between temporary and ongoing employees. Mr Richardson accepted this: the decision below at [136].
The Guidelines required all staff to have a current performance and development plan in place. Mr Fernandez's plan was first devised in December 2023, at which time his goals were set. The plan was revisited in June 2024, shortly before the termination of his employment.
The Guidelines also provided for goal planning in October to November, a mid-year check in April to May and an annual review in October to November. This process was intended to identify goals and development needs to assist staff to meet the expectations and accountability of their roles. The mid-year check was to be conducted by a face-to-face meeting and the annual review was to involve a self-assessment and formal rating by the staff member's manager.
In the case of a solicitor, the Guidelines also envisaged that a Solicitor File Review and Practice Review would be undertaken. They required the use of the "SuccessFactors" software system, in which instruction and training was available to staff, to guide and record the outcomes of actions from performance and development planning and reviews undertaken with their managers.
The Guidelines were also intended to assist in addressing performance issues by providing direction and structure. If the outcome of an annual review was that overall performance was not of the required standard and if appropriate corrective action was not successful, a formal process to manage identified unsatisfactory performance using the "Performance Improvement Guidelines" with the assistance of Human Resources was envisaged.
However, as noted above it was common ground that no such "Performance Improvement Guidelines" existed.
The evidence also established that contrary to the requirements of the GSE Act, GSE Rules and the Guidelines, the determination that Mr Fernandez's performance was unsatisfactory and that his employment should be terminated was not arrived at in accordance with the Guidelines. As explained by Mr Richardson in cross-examination, the Guidelines were not applied because Mr Fernandez was a temporary employee and the application of the Guidelines to temporary employees was generally "less formal": the decision below at [136]. This approach, however, was not permitted by the GSE Act, the GSE Rules or the Guidelines.
In addition, there was no performance improvement process pursued with the assistance of human resources, as contemplated by the Guidelines, before the termination of Mr Fernandez's employment.

[79]

Despite the ODPP's failure to comply with the GSE Act, GSE Rules, and the Guidelines, notwithstanding the Commission's obligation to have regard to the regulatory context in which Mr Fernandez was employed, her Honour concluded that the termination of his employment was not harsh, unreasonable or unjust.
Her Honour reached this conclusion despite finding that Mr Fernandez's employment had been terminated without any real attempt to assess his performance in 2024. He had been given no meaningful opportunity to demonstrate improvement, nor was he expressly warned in December 2023 about the possibility of termination. Further, although he was a junior solicitor with an expectation of performance development, the ODPP's performance management system had not been followed "to the letter". As a result, Mr Fernandez was left uncertain about his future for over six months.
These findings reflected the evidence of Mr Richardson and Ms Chater. Their evidence established that, while Ms Chater's view that Mr Fernandez's performance in 2023 was unsatisfactory was considered over a six-month period in 2024 following her notification to the Executive in December 2023, the Guidelines were not followed. The Guidelines required, amongst other things, real consideration of whether his performance had improved in 2024.
Mr Richardson's evidence in cross-examination established that he had not checked compliance with the Guidelines before recommending dismissal. He acknowledged that Mr Fernandez had only completed one formal practice review, despite the Guidelines requiring two, and that no formal process to manage unsatisfactory performance had been implemented. Mr Richardson did not consider the Guidelines to be relevant to Mr Fernandez, because temporary employees were often employed for less than a year, so processes were fast-tracked and dealt with less formally, concentrating instead on assistance and mentoring. He further accepted that no consideration had been given to Mr Fernandez's performance in 2024 and Mr Fernandez had not been given an opportunity to resign.
We consider that her Honour's acceptance of the ODPP's case that Mr Fernandez had not established that his dismissal had been harsh, unfair and unjust was attended by error. The error lies in her Honour's misapplication of the GSE Act, which was a reflection of the ODPP's misconceived reliance on s 47(2) to give effect to the termination in a manner that circumvented the requirements of s 68.

[80]

We are satisfied that Ground 4 has been made out.
We also find that Ground 3 succeeds to the extent that it extends to her Honour's refusal to find any unfairness arising from the ODPP's failure to accord Mr Fernandez the procedural fairness he was entitled to receive, including as the result of the failure to provide him with feedback and support, in accordance with the Guidelines.
As noted above, we otherwise consider that there was no error in her Honour declining to give decisive weight to the absence of an explicit warning in December 2023 that Mr Fernandez's employment was at risk. Her Honour appropriately took this into account. It was open to her Honour to characterise the absence of an explicit warning about his employment as a matter that, of itself, did not render the dismissal unreasonable. Mr Fernandez knew well enough that the continuation of his employment was at risk, in the context of evidence that he understood that his employment was in jeopardy following the December performance meeting.
However, we consider that it was not open to her Honour to conclude that the termination of employment was a valid exercise of power under s 47(2), and was not harsh, unreasonable or unjust for the purposes of s 84 of the IR Act. These conclusions were not available in circumstances where it was otherwise accepted that the ODPP had failed to comply with the obligations imposed by s 68(2), r 36 and the Guidelines, including by failing to give Mr Fernandez an opportunity to resign before his employment was terminated for unsatisfactory performance.
The dismissal was either validly executed under the GSE Act or it was not. Having effectively found that the termination for unsatisfactory performance engaged the operation of s 68 and r 36, the only conclusion open to her Honour was that those provisions operated to prohibit the ODPP from dismissing Mr Fernandez for unsatisfactory performance. Contrary to the ODPP's approach to the dismissal, s 47(2) could not operate as an alternative statutory basis on which to terminate the employment of a temporary employee in a manner that was otherwise prohibited by s 68 and r 36. Such a construction leads to a disharmonious result, rendering nugatory the statutory guarantee of procedural fairness provided to non-ongoing employees by s 68 and r 36.
The GSE Act and GSE Rules required that, before taking any action to terminate employment for unsatisfactory performance, the determination that Mr Fernandez's performance was unsatisfactory had to be reached "in accordance with the agency's performance management system". In addition, advice of "the basis on which it is unsatisfactory" had to be given to Mr Fernandez and he also had to be given an opportunity to resign.
Rule 36(1) expressly prohibited the employer from taking any action under s 68(2), including terminating employment for unsatisfactory performance, unless the determination of unsatisfactory performance was made in accordance with the Guidelines.
It was common ground that this statutory condition was not satisfied: the decision below at [134]-[136], [139]. Mr Fernandez's employment was terminated in June 2024 for his unsatisfactory performance in 2023. The evidence established that this occurred despite Mr Fernandez not having received the support intended by the Guidelines in either 2023 or 2024. It was also implemented without consideration of whether his performance had improved, or whether the goals set by Ms Chater in December 2023 had been pursued or achieved.
In addition, s 68(2)(a) qualified the power to terminate employment for unsatisfactory conduct by requiring the employer to give Mr Fernandez an opportunity to resign. This provision did not authorise the ODPP to terminate Mr Fernandez's employment without first giving him this opportunity.
The legal effect of the ODPP's failure to comply with these statutory requirements was not argued before the Full Bench. On one view, this statutory regime may have made Mr Fernandez's termination ineffective: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435; [1946] ALR 390 at 472 and 478.[3] It is, however, not necessary for us to determine this question. No party suggested that the termination was anything other than effective to end Mr Fernandez's employment. The fact remains that the employment relationship was terminated for unsatisfactory performance, the timing of which coincided with the expiration of his extended temporary contract on 19 July 2024.
We consider that her Honour's findings as to Mr Fernandez's unsatisfactory performance and lack of insight were open on the evidence. However, on her Honour's unchallenged findings on the construction of the GSE Act, s 68(2) must be regarded as conferring valuable and beneficial statutory rights that Parliament has afforded to temporary employees, as much as to ongoing employees. These rights are conferred without qualification, irrespective of the degree to which an employee's performance was unsatisfactory without constituting misconduct. They apply to both the seriously deficient and mildly underperforming employee alike.
Reading her Honour's reasons in the required way, as a whole and without an eye attuned to error, we are nevertheless satisfied that her Honour's reasons establish that she erred in concluding that Mr Fernandez had not established that his termination had been harsh, unreasonable and unjust.
The ODPP's failure to comply with the procedural requirements imposed by the legislative scheme and the Guidelines was more than an unfortunate oversight.
It could not be justly overlooked that Mr Fernandez was in the first year of his employment as a solicitor. At a time when the statutory scheme intended that he receive the training and support contemplated by the Guidelines which the ODPP was required to adopt and apply, notwithstanding that he was a temporary employee. He was denied this support for over six months, before his employment was terminated for unsatisfactory performance.
It is not irrelevant that solicitors are required to maintain their practicing certificate in accordance with the requirements of s 45 of the Legal Profession Uniform Law (NSW). Rule 13(m) of the Legal Profession Uniform General Rules 2015 requires consideration of whether a person is a fit and proper person to hold an Australian practising certificate, which includes a consideration of whether he or she can satisfactorily carry out the inherent requirements of such practice.
It follows that termination for unsatisfactory performance of the work of a solicitor in the employ of the ODPP, as for other temporary employees who have the benefit of the statutory guarantee of procedural fairness, ought not to be a conclusion lightly arrived at. That is reflected in the Guidelines, which contemplate that they will receive particular guidance and support, which Mr Fernandez was not given.
The salient question is: how can a dismissal in circumstances where an employee has been denied these valuable and beneficial statutory entitlements nevertheless not be unjust or unreasonable for the purpose of s 84 of the IR Act?
It has been recognised that an examination of whether a statutory power to dismiss under the GSE Act has been validly exercised would "bear upon the consideration of whether the dismissal was unjust, at very least": McGinn v Secretary, Family and Community Services (2017) 268 IR 345; [2017] NSWIRComm 1039 at [7], upheld in McGinn v Department of Family and Community Services [2017] NSWIRComm 1066.
It is difficult to conceive of circumstances in which a dismissal that is prohibited by the GSE Act and GSE Rules because the prescribed procedural fairness requirements were not observed, could be regarded as not unfair for the purpose of s 84 of the IR Act. That is because the Commission could not effectively sanction an act done in breach of procedural fairness requirements imposed − and which was thereby also expressly prohibited − by the Parliament.
The statutory requirement in this case was to provide Mr Fernandez with an opportunity to improve, or at least to reassess his performance at some point after he had been informed of his deficiencies, serious as they may have been. This is an orthodox and reasonable procedural requirement in the context of managing unsatisfactory performance, which the GSE Act and GSE Rules required the ODPP to pursue.
Notwithstanding her Honour's conclusions about Mr Fernandez's seriously unsatisfactory performance in 2023 and the lack of insight into his failures, we are not satisfied that this was sufficient to justify the ODPP's contravention of the GSE Act and GSE Rules and the Guidelines.
Furthermore, we cannot see any justification for failing to give Mr Fernandez an opportunity to resign as required under s 68(2)(a) of the GSE Act. We reject the reasons for this failure proffered by the ODPP both before her Honour and on appeal, namely, that his temporary contract was in any event bound to end within a short time. An opportunity to resign - as an alternative to termination for unsatisfactory performance − remained a potentially valuable entitlement in this context.
In all of those circumstances it must be concluded that Mr Fernandez has established that her Honour erred. We hold that Ground 4 of his appeal has been made out, as well as Ground 3 to a qualified extent. The result is that his appeal must be upheld.
His other grounds of appeal can be more shortly dealt with.

[81]

Ground 1 alleges a miscarriage of the hearing below because of the ODPP's failure to produce exculpatory emails.
There is no issue that the subject emails were not produced as they ought to have been. As explained by Ms Shields, this failure was the result of errors made in the context of the short time frame in which the many documents Mr Fernandez pursued had to be produced to the Commission.
As we have concluded above, there is no reason to doubt that evidence to which no objection was taken and which, we are satisfied, leaves no proper basis for a finding that the ODPP deliberately suppressed evidence, with the result that the hearing miscarried.
One example of such an exculpatory email addressed at the hearing was part of a chain of emails on which the ODPP relied, which had not been adduced in evidence. This email was relevant to Mr Fernandez's claimed unsatisfactory performance because Ms Chater had directed that he file a certified charge when instead, he had asked the OIC to produce a statement about why another charge was not preferred: the decision below at [142].
As explained for the ODPP, the view that Mr Fernandez's action involved unsatisfactory performance did not turn on the further charge not being filed, which it was accepted did require the OIC's consent. Instead, the performance issue arose because Mr Fernandez documented in a written statement the OIC's reasons for not consenting to the proposed charge. The problem was explained to be that the oral communication of the OIC's reasons was privileged, but that documenting those reasons resulted in the loss of that privilege.
It is difficult to accept this reasoning. There is no apparent reason either at common law or under the Evidence Act 1995 (NSW) for privilege in a communication to a solicitor employed by the ODPP about an OIC's reasons for not pursuing a different charge being lost merely because the communication was in writing.
It is the substance of the communication to which privilege attaches, not its form. It is settled that communications between a solicitor such as Mr Fernandez and a police officer concerning criminal proceedings are confidential and thus privileged: Hamilton v State of New South Wales [2016] NSWSC 1213 at [38]- [40] referred to in Director of Public Prosecutions (NSW) v Stanizzo (2019) 367 ALR 256; [2019] NSWCA 12 at [26].
Despite this, it must be accepted that even if the emails which Mr Fernandez contended the ODPP ought to have tendered at the hearing below had been led, there is no real prospect that a different result would have resulted. This is because of their limited relevance, and because, although they might have cast some aspects of what was concluded to have been unsatisfactory performance on his part in a different light, they would not have altered her Honour's conclusions.
It should be noted that this is but one example of what was found by her Honour to have constituted unsatisfactory performance by Mr Fernandez: the decision below at [142]-[143]. We do not see any error in the way in which her Honour otherwise made these findings.
Instead, as we have explained, the salient error lies in the approach to the effect of the ODPP's failure to comply with the statutory requirements of procedural fairness. Mr Fernandez's unsatisfactory performance ought to have been addressed by the application of the Guidelines.
In the result this Ground must fail.

[85]

The evidence was that two alternatives were put to Mr Hyland to consider. He rejected the option to further extend Mr Fernandez's employment for six months to allow him to demonstrate satisfactory performance. This option was rejected despite the fact that the Guidelines were not followed, and that no consideration was given to whether his performance had improved after Ms Chater had provided him with the performance goals which he claimed he had successfully worked to meet.
Mr Fernandez was not even afforded the opportunity to resign that he was entitled to receive, despite the ODPP extending his contract, in order to consider whether to dismiss him for unsatisfactory performance. Had this not occurred, his employment would have ended earlier, in accordance with its own terms and without any dismissal for unsatisfactory performance.
Notwithstanding her Honour's understandable lack of confidence that Mr Fernandez's performance would have improved in view of his unwillingness to accept some of the well-founded concerns about his performance, we cannot discount entirely the possibility that, had Mr Fernandez's performance in 2024 been examined as it ought to have been, a different view might have been taken about the termination of his employment. After all, it emerged on the appeal that a more benign view might have been taken about one of the performance issues dealt with in relation to Ground 1: see [166 ]-[169 ] above.
Had the consideration which ought to have been given to his performance in 2024 occurred, and had Mr Richardson's concerns about the need to give Mr Fernandez procedural fairness been acted on, his temporary employment contract may have been further extended, perhaps for an additional six months.
Also relevant is that the only direct evidence at the hearing below about Mr Fernandez having searched for, or having obtained, alternative employment, was a single sentence in his witness statement, that he had searched for alternative employment. He was not cross-examined about this. It may thus be inferred that he had not obtained alternative employment at the time he made that statement.
On the appeal Mr Fernandez referred to having "taken leave" to attend the appeal hearing, and his affidavit evidence in support of his motion for leave to adduce fresh evidence disclosed that he has been in full-time employment as a solicitor only since early February 2025. It may thus be accepted that he subsequently obtained alternative employment. Without more details, however, that fact alone would make any consideration of the requirements of s 89(6) essentially impossible, even approaching the requirements in a most general way.
Against these considerations, we weigh the prospect that, even if some consideration was given to whether Mr Fernandez's performance had improved in accordance with the Guidelines, his employment nevertheless would have been allowed to expire in accordance with its terms, or he would have been afforded an opportunity to resign at about the same time. We note that, had the ODPP acted strictly in accordance with the contractual terms in refraining from renewing Mr Fernandez's temporary employment contract, he would not have remained employed by the ODPP for any substantial period.
In all of these circumstances, we consider than an appropriate exercise of our discretion is an order of compensation in the amount of Mr Fernandez's remuneration during a period of ten weeks immediately before being dismissed. Given the available evidence we propose to make no deductions from that order.

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