I just felt that it was a means by which Ms Gilmore was trying to make things difficult for Mr Male and particularly when she wanted it to be brought to my attention and have no action taken against it, which I didn't do, I did act on what was raised in this email.
136 The memo however, clearly could not fairly be read in this way. Ms Gilmore sought to discuss her concerns with Mr Goodman, without drawing them to Mr Male's attention, in the first instance. She did not suggest that Mr Goodman do nothing about them.
137 By way of contrast, Mr McDowell's concerns from time to time were plainly raised forcefully with Ms Gilmore, as I have noted. The evidence showed, however, that it was not his practice to consider what Ms Gilmore was trying to convey to him at the time about concerns he was raising. Had he been prepared to consider her response to them, either at the time he raised them, or after they had been put in writing on 28 January, what concerned him might have been allayed. That this was so, was clearly demonstrated by concessions made by Mr McDowell in cross examination in these proceedings. On his own evidence, he did not give Ms Gilmore such opportunities at the time, because that was not 'his style' at that time.
138 What also requires consideration is the evidence of Mr McDowell's treatment of Ms Gilmore during her employment, corroborated as it was by the evidence of Mr Pasfield and Mr Choy.
139 On the evidence, that Mr McDowell's behaviour was inappropriate towards a senior member of his staff, such as Ms Gilmore, particularly in relation to her ill health, cannot be doubted. I have already earlier outlined some of that evidence. That Mr McDowell was himself conscious of how inappropriate his conduct may have been, was apparent from the evidence which he proffered in cross examination, by way of explanation of how his conduct might be perceived by others. His impatience and frustration, which he did not accept amounted to anger, was a matter Ms Gilmore dealt with in her own evidence. She explained how this resulted in Mr McDowell having expectations that steps would be taken or outcomes achieved, as he had directed, in circumstances where that was not reasonably possible, given constraints which the respondent was confronted with, which were not matters within Ms Gilmore's control. Mr McDowell, however, was not interested in hearing or considering any explanations about such matters. While that approach was one denied by Mr McDowell, it was consistent with the approach adopted to his letter of 28 January. As he explained, it was not his style to give people an opportunity to explain themselves. In this respect, I have come to the conclusion that Ms Gilmore's evidence as to the treatment she received must be preferred over Mr McDowell's denials, particularly when considered with other evidence called in Ms Gilmore's case, to which I will turn to below.
140 This was the foundation for the submission that this aspect of the claim was brought contrary to the section. As I noted earlier, I am unable to accept the submission. Section 109A of the Act makes clear, that these proceedings may not be brought if they are in truth but unfair dismissal proceedings, concerned with the fairness of the treatment Ms Gilmore received on termination. The proceedings were concerned with the fairness of the parties' contract and the claims made in the summons, by way of variation, to rectify the unfairness alleged. The complaints in this case concern not only unfair notice, but also matters which it was alleged the contract unfairly failed to provide for. Such a claim does not fall within s 109A as the Full Court explained in Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 at 692.
141 No money orders were pressed in relation to this aspect of the claim, rather this and the unfair treatment during the employment were argued to be relevant to the notice claim.
142 A not dissimilar difficulty to that here in question arose for consideration in Westfield Ltd v Helprin (1998) 82 IR 411. Mr Helprin was a senior executive, dismissed in circumstances where his performance had not, in reality, been inadequate and where his required performance criteria were virtually impossible to achieve. There the conclusion reached was that the contract should be varied to require Westfield to fully inform Mr Helprin of any matters of concern which could impact upon his continued employment and to provide him with a period of not less than three months in which to improve his performance, before any action was taken to terminate his employment for reasons associated with such matters.
143 Here, the variation sought to the contract was entirely more elaborate. I am satisfied however, given the senior nature of Ms Gilmore's position, that a simple and just requirement such as that awarded in Helprin, would here also rectify the unfairness demonstrated, with the addition of a requirement that the respondent give fair consideration to any matters raised by way of explanation of such concerns.
144 I have come to this conclusion, given the evidence which demonstrated that there was no real consideration given by the respondent as to what Ms Gilmore had been employed to achieve and whether what was expected of her at particular points, which led to concern and criticism, and the ultimate termination of the employment, was realistic or achievable. There was also quite clearly on the evidence, no consideration given at all to constraints imposed on the respondent and Ms Gilmore, not of Ms Gilmore's creation.
145 In this case, it cannot be overlooked that Ms Gilmore was employed as the respondent's general counsel. This was the first time that the respondent had employed anyone in such a position. Undoubtedly, in that position, Ms Gilmore was obliged to ensure that the respondent was adequately and appropriately represented in litigation before courts and tribunals, given the respondent's instructions and otherwise, to properly and professionally attend to her work. When external legal advisers were engaged, she had to ensure that they were properly instructed, so that the same result could be achieved. As an officer of the court, Ms Gilmore also, however, had ongoing obligations to ensure that court and tribunal processes and procedures were adhered to and that litigation in which the respondent was involved, was conducted in a particular way.
146 Those are obligations which fall upon any legal practitioner, irrespective of whether they are employed direct, or are otherwise retained by a party to legal proceedings. They are obligations which cannot be overridden by an employer, no matter what instruction might be given in a particular case.
147 Not only is there a significant public interest in lawyers such as Mr Gilmore ensuring that these obligations are always met, so that scarce court resources are not wasted, unnecessary costs incurred and the administration of justice is not impeded, but it is also in the interest of employers such as the respondent, that this occur. Not only do they thereby minimise their own costs in the litigation, they also ensure that costs orders are not made against them. They also thereby ensure that the integrity of our legal system is upheld, a matter of ongoing commercial interest to any business such as that conducted by the respondent. It, after all, is a frequent litigator before the courts and tribunals, both as an applicant and a respondent.
148 In Rondel v Worsley [1969] 1 AC 191 at 227, Lord Reid conveniently explained these obligations which fall upon legal practitioners, often described as 'paramount' and now contained in the applicable Solicitor's Rules made pursuant to the Legal Profession Act 2004, in this way: