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[2018] FWC 5931
respondent. The Fair Work Commission dismissed Ryan Licastro's unfair dismissal application. The Commission concluded the employer had a valid reason related to the applicant's capacity or conduct for...
Mr Licastro, a senior personal injury solicitor employed from March 2017, was warned in writing on 28 November 2017 about deficiencies in file management, client communication and procedural knowledge. After a further meeting on 12 December 2017 the employer formed the view the problems persisted and dismissed him. The Fair Work Commission found the employer had a valid reason related to capacity/conduct for dismissal, the applicant had been notified and warned, and although he was not given a separate extended chance to respond at the dismissal meeting, that failure did not render the dismissal unfair in context. The unfair dismissal application was dismissed.
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Ryan Licastro was employed as a senior personal injury solicitor by Patrick Robinson & Co from 20 March 2017 on a salary of $130,000 plus superannuation ([9]). During his employment the principal, Mr Patrick Robinson, became concerned about Mr Licastro's performance and approach to client management. Specific instances relied on by the employer included alleged failures in file management and client communication (clients identified in the judgment as P, U, D, F, AA, O), missed procedural time limits, and gaps in knowledge of certain common law procedural steps ([17]–[21], [28]).
A robust meeting occurred on 14 November 2017, and a written warning was issued on 28 November 2017 expressly setting out multiple detailed concerns and advising that continued deficiencies could jeopardise employment ([20], [21], [49]). A further meeting between the parties occurred on 12 December 2017. During that meeting Mr Robinson says he formed the view to dismiss Mr Licastro because the applicant had not accepted that changes were required, and because certain remarks by the applicant about a client's matter were the "final straw" ([25], [36], [41]). The employer dismissed Mr Licastro; the Commission later accepted that the employment ended on 19 December 2017 in an earlier jurisdictional decision ([1]).
Mr Licastro lodged an unfair dismissal application in the Fair Work Commission. Commissioner Wilson conducted a hearing and decided the matter on the merits. The Commission found the employer had a valid reason related to the applicant's capacity or conduct for dismissal, that the applicant had been notified of those reasons (the warning and the dismissal meeting), and that although the applicant was not afforded a separate extended opportunity to respond because the dismissal decision was formed during the meeting, the prior warning and the circumstances meant that a later response would not have materially altered the outcome. The Commission dismissed the unfair dismissal application ([4], [43], [44], [46], [54]–[56]).
The decision was made by applying the statutory criteria in s.387 of the Fair Work Act 2009, which requires the Commission to account for specified matters when considering whether a dismissal was harsh, unjust or unreasonable ([29]). The key elements that drove the decision are:
Valid reason related to capacity or conduct (s.387(a)): The Commission accepted the employer's evidence (preferring it where conflicts existed) that multiple concrete examples of deficient work product, poor client contact, and procedural errors existed and that these problems put clients and the firm at risk (see the file notes and the 28 November warning which itemised deficiencies and quantified potential financial exposures) ([33], [34], [36], [42], [43]). The Full Bench authorities summarised and supported the approach that a valid reason is one that is sound, defensible and well-founded; it need not be 'serious misconduct' ([31]).
Notification of reasons (s.387(b)): The Commission found the applicant had been notified through the employer's oral explanations and the written warning and that the employer's Form F3 response fairly reflected those reasons ([21], [34], [44]).
Opportunity to respond (s.387(c)): The Commission noted the requirement that employees should have an opportunity to respond, but also observed that the employer formed the view to dismiss during the same meeting and that a prior warning had already been provided. The Commissioner concluded that, given the warning and the pattern of conduct, an extra opportunity at that juncture would not likely have produced a different result ([45], [46], [54]).
Warning where performance unsatisfactory (s.387(e)): The written warning of 28 November 2017 was held to be explicit about the deficiencies and the consequences, such that any reasonable employee would have understood their position was precarious ([21], [49]).
Other statutory considerations (support person, enterprise size, HR expertise) were neutral or did not materially favour the applicant. Notably, the Commission observed there was no request for a support person and no unreasonable refusal on that basis ([47], [48]), and although the firm was small the Commission found no evidence this impacted the procedure followed ([50], [51]).
Taken together, these factual findings and statutory applications produced the conclusion that the dismissal was not harsh, unjust or unreasonable and that the unfair dismissal claim should be dismissed ([55], [56]).
Before this decision the governing law on unfair dismissal procedures and substance in Australia was firmly established by decisions of Full Benches and other authorities. The Commission drew on the Full Bench summary (Titan Plant Hire at [31]) to apply established textual tests for "valid reason" and the role of warnings and procedural fairness.
This decision applies established principles rather than creating new law. It reaffirms:
After the decision, practitioners can view it as an affirmation that the Commission will assess the totality of warnings, specific deficiencies, and the realistic effect of any further procedural opportunity when judging fairness. The judgment emphasises practical context: the employer's expectations and the working relationship dynamics matter in assessing what procedural fairness requires ([33], [39]).
Paragraph [29]: The judge recites s.387, the statutory checklist.
Plain-English: The Commission must take into account a specific list of fairness factors when deciding whether dismissal was unfair.
Paragraph [33] (quoting Gibson v Bosmac and explaining "valid reason"):
Plain-English: To be valid, the employer's reason must be sensible and defensible; the assessment is practical and context-driven, not a hyper-technical legal inquiry.
Paragraphs [21] and [49] (the written warning):
Plain-English: The employer sent a detailed written warning listing multiple files and specific mistakes and clearly told the employee his job would be at risk if things did not improve.
Paragraph [41]:
Plain-English: The employer did not go into the 12 December meeting intending to fire the employee, but formed that decision during the meeting when the employee would not accept or correct the problems raised.
Paragraph [54]:
Plain-English: Although the employee wasn't given an additional chance to respond after the employer decided to dismiss, the earlier warning and the circumstances made it unlikely that any extra response would have changed the employer's mind.
Paragraph [55]–[56]:
Plain-English: Considering all factors, the dismissal was not unfair, so the employee's claim is dismissed.
This decision is directly relevant when the following features are present:
This decision is less persuasive where an employer lacks documentation of specific deficiencies, where no warning was given, or where the dismissal is precipitous without any prior communication of problems.
This decision itself is a single-member decision of the Fair Work Commission (Commissioner Wilson) and sits alongside other Commission and Full Bench authorities cited within it. The judgment principally applies established Full Bench authority (e.g. Titan Plant Hire, Sharp v BCS) rather than overruling or departing from those authorities ([31]). It reinforces the Commission's approach to weighing written warnings, the substantive evidence of poor performance, and the realistic effect of a further opportunity to respond.
As of the date of the judgment, the decision repeats established practice rather than innovating. Subsequent decisions would treat it as a persuasive application of s.387 criteria where similar factual matrices arise, i.e., documented deficiencies, warning, and dismissal following a meeting where the employer reasonably concluded that the employee would not reform. Users should check later Commission or Full Bench decisions for any refining or differing views on the weight to be given to a post-decision opportunity to respond.
The precise boundaries of when the lack of a separate post-decision opportunity to respond will render a dismissal unfair remain fact-sensitive. This decision indicates that when the employer previously warned the employee comprehensively and the problems are ongoing, the absence of a later response opportunity may be excused, but it does not set a bright-line rule ([45], [54]). Determining how much time or what form of opportunity is required in different factual matrices remains open.
The role of firm culture and managerial expectations in assessing the clarity of warnings and procedural fairness was influential here (the Commission noted the firm's strong leadership and expectation of compliance). How courts weigh cultural evidence against procedural strictness could vary in other facts ([39]).
The decision accepted employer evidence over the employee's in a number of contested factual matters. The potential for documentary corroboration (e.g., contemporaneous client communications, file timestamps) to alter credibility findings means that where more documentary evidence exists in favour of the employee, outcomes might differ. The judgment does not exhaustively define the evidentiary threshold required for credibility resolution in such disputes.
The decision discusses permission for legal representation under s.596(2)(b) and quotes CEPU v UGL Resources about the need to show inability to represent oneself effectively. The exact standard for 'striking impression' remains somewhat subjective; further Full Bench guidance could clarify how consistently that test should be applied ([7], [8]).
Finally, while this decision emphasises practical common-sense application of s.387, balancing procedural fairness against business realities, the interplay between small firm constraints and procedural expectations remains a continuing area where further authoritative applications could refine the law (see the discussion at [50]–[51]).
Note: This deep dive extracts and explains the Commission's reasoning in Ryan Licastro v Patrick Robinson & Co [2018] FWC 5931, relying on the judgment's paragraphs cited above. It does not provide legal advice. Before acting on or relying on this material, get a qualified Australian lawyer to check it.
The application was rejected and you then issued a County Court Originating Motion against company (C). A County Court Originating Motion was not issued against Company (A) within the 30 day period
Subsequent to the defendant solicitors drawing our attention to the irregularities in your application a further serious injury application has been lodged against Company (C).
An application has been lodged with the Court to amend the names of the defendants in respect to the County Court Originating Motion application issued against Company (C).
There may be a successful resolution of the issues that have arisen from the irregularities in the naming of the defendants as detailed above. However this will depend on the response of the defendant's legal practitioners and the Victorian Work Cover Authority.
In our discussions, I expressed my concern about your lack of knowledge of certain essential steps in the Common Law process. This must improve.
I spoke with you about your lack of communication with clients where you expected your support staff to deal with enquiries made by clients, despite the fact that some clients were ringing on numerous occasions asking to speak to you as their solicitor without receiving your response.
This is a formal warning that the quality of your work has not been of the required professional standard. Your productivity must improve.
Please immediately review all files under your care and control to ensure that all necessary steps are being taken to protect and progress our clients claims for compensation and/or damages.
[22] After receiving the warning Mr Licastro's evidence is that he continued to work on his assigned files and believed that he was doing so appropriately.
[23] There was then a further conversation between the two on 12 December 2017. Mr Licastro gave his evidence that he had not met with Mr Robinson about professional matters between the two meeting of 14 November 2017 and 12 December 2017.[16] Mr Robinson's evidence is that the 12 December meeting was precipitated by him learning some other matters associated with the files being managed by Mr Licastro which concerned him greatly.[17]
[24] In particular Mr Robinson said that the matters which had changed between the November warning and 12 December 2017 which caused the need for the conversation on 12 December were the diary notes he saw about the client M calling to speak with Mr Licastro but with those calls not being answered, as well as the issue associated with the client F Mr Robinson had not been aware of either of those matters when he wrote the warning letter on 28 November 2017.[18]
[25] Mr Robinson's evidence is also that when he went to see Mr Licastro on 12 December 2017 he did not at that time at least intend to dismiss him. At the start of the meeting it had been his intention to discuss the matters associated with clients F and M, but had not made up his mind to terminate Mr Licastro.[19] It was Mr Robinson's evidence that he formed the view there should be a dismissal after discussion of these matters in the first part of meeting on 12 December as well as the comments which Mr Licastro had made to him about the client F, including that in relation to client F his was a "a shit case and he's a criminal".[20] Mr Robinson became convinced from comments such as these that Mr Licastro was "an extreme danger" to his company and that he "was an unguided missile".[21]
[26] Mr Robinson also put forward that Mr Licastro's conduct had left his firm severely exposed financially with one matter, client D, now with his professional indemnity insurer and another, client F, potentially to be referred as well. His professional indemnity insurance arrangements included a $10,000 excess payment in each case.
[29] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[30] Determination of whether Mr Licastro's dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.
[31] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way:[29]
"[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:
• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[30]
• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[31]
• it is not necessary to demonstrate "serious misconduct" or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[32]
• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[33] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee's conduct).[34]" (original references)
[32] I will deal with each of the criteria within s.387 in turn.
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)
[33] Determination of a valid reason involves an examination of whether the reason given is "sound, defensible or well founded", within the overall context of the employment relationship:
"At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ''be applied in a practical, commonsense way to ensure that'' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC."[35]
[34] The reasons set out in the Form F3 Employer Response Form in these proceedings summarise Mr Robinson's decision to dismiss Mr Licastro as involving three considerations as follows:
"1. The Applicant's knowledge of injury law was very limited. His work was not of the competent professional standard which resulted in a number of clients leaving this business.
2. The Applicant refused to take clients calls and to deal with issues that they had with WorkCover in respect to their statutory entitlements.
3. The Applicants unilaterally decided to ignore mandatory statutory time limits thereby putting this business at risk of being sued for his professional negligence."[36]
[35] Those matters are in different form to the matters are set out in the 12 December 2017 file note kept by Mr Robinson, however they somewhat reasonably summarise the matters upon which Mr Robinson obviously relied when it came to dismiss Mr Licastro.
[36] It may be taken both from the file note as well as the above summary that the matters set out in the summary were the ones that concerned Mr Robinson when he walked into the room with Mr Licastro on 12 December 2017 and which he sought to agitate with Mr Licastro. It may also be taken from what was said by both witnesses about the meeting that when Mr Robinson saw that there was no acceptance on the part of Mr Licastro that he needed to change and work to the way the firm or Mr Robinson expected him to work that the decision was made to dismiss him. The comments about the client F were undoubtedly the final straw. From those comments Mr Robinson discerned a complete misalignment of values and expectations as well as formation of the view, expressed in his oral evidence, about the risks of continuation of Mr Licastro's employment.
[37] Mr Licastro strongly contests the recollection put forward by Mr Robinson about the discussion they had on the file associated with client F and in particular that he referred to the case as being "shitty".
[38] To the extent there is conflict between the evidence of Mr Robinson and Mr Licastro, I prefer that of Mr Robinson's.
[39] I have no doubt from viewing the totality of this file in the evidence given in the matter and the way the parties have engaged with each other that Mr Robinson robustly and potentially even vociferously stated to Mr Licastro his expectations of him as a lawyer, by no later than the warning conversation the two had on 14 November 2017, if not actually earlier. I doubt very much that there could have been much in the way of ambiguity about Mr Robinson's displeasure at that time or what a warning might mean and especially if the content of the warnings were unheeded. I do not doubt that by late November that Mr Robinson's expectations about how the firm expected Mr Licastro to operate with clients, by meeting them face-to-face, by taking their calls and by seeking his views about important decisions relating to the conduct of the file, were absolutely crystal clear. The product of all of the material before the Commission leads to such a conclusion and does not lead in a different direction such as might give rise to the perspective that Mr Licastro simply was not told or was not managed on these things. In short this was a firm whose motto may well have been "it's my way or the highway".
(b) whether the person was notified of that reason
[44] I am satisfied that Mr Licastro was notified of the reasons held by Patrick Robinson and Co for his dismissal. I am satisfied that the summary included within the Employer Response Form is broadly consistent with what may be regarded as a summary of the matters discussed with Mr Licastro in the dismissal meeting on 12 December 2017.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[45] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.[37]
[46] In this matter while I have found that there was a valid reason for Mr Licastro's dismissal, the evidence would not lead to a finding that Mr Licastro was given an opportunity to respond to the reasons held for his dismissal. This is because Mr Licastro's dismissal took place shortly after Mr Robinson formed the view that it was necessary and within the same meeting in which he formed that view.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[47] Mr Licastro argued in his cross-examination of Mr Robinson that procedural fairness included "to afford someone a support person with any sort of meeting with their employer".[38] Such proposition though is not the meaning of s.387(d), with the Act's Explanatory Memorandum making it plain that the consideration is for those times when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. There is no positive obligation on an employer an employee the opportunity to have a support person present.[39]
[48] There was no refusal by Patrick Robinson and Co for Mr Licastro to have a support person in any discussions that were had about the future of his employment, with none being asked for. Accordingly, this factor is a neutral consideration in my decision.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[49] The evidence shows that Mr Licastro was provided with a warning about his future employment on 28 November 2017. That correspondence plainly sets out to Mr Licastro that changes are required to his performance and what those changes were. I have no doubt that any person receiving the letter in question would have understood at that point, if not before, that there future employment was in jeopardy and that without significant and sustained change to their work performance, they would be dismissed.
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal
[50] As set out above, Patrick Robinson and Co is a small business, albeit not within the definition of the term within the Act. Notwithstanding its size, there is no evidence before the Commission that such impacted on the procedures it followed in effecting the dismissal of Mr Licastro.
[51] Demonstrably, Mr Robinson had sufficient knowledge of proper employment practice to advise Mr Licastro of his concerns about his work performance and warn him of the consequences of a failure to address those matters. In such context it would appear unlikely that the size of the enterprise impacted upon the procedures Mr Robinson followed in effecting Mr Licastro's dismissal. In some respects the dismissal was a product of the things Mr Robinson heard, or perhaps did not hear, in the course of the meeting on 12 December 2017 and it is probable that the enterprise's small size had no particular impact on what was essentially a spur of the moment reaction.
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[52] Similarly, there is no evidence that the absence of dedicated human resource management specialists or expertise in Patrick Robinson and Co enterprise likely impacted on the procedures that followed in effecting Mr Licastro's dismissal.
(h) any other matters that the FWC considers relevant
[53] The Commission does not consider there are any other matters requiring to be dealt with in this decision.
[54] After considering each of the criteria within s.387, the only matter which falls in potential favour of Mr Licastro is the fact that he was not afforded an opportunity to respond to the reasons held by the Respondent for his dismissal. However, I consider that the failure by Mr Robinson to afford Mr Licastro that opportunity is explained by the overall circumstance in which the two found themselves. In particular a warning had been issued by the Respondent to Mr Licastro in late November following a meeting with him about two weeks prior to that and, in the course of the meeting on 12 December 2017 Mr Robinson was simply not satisfied that there had been any change on Mr Licastro's part or that there would be any meaningful change within a reasonable period. I consider in overall effect that even had Mr Licastro been given an opportunity to respond to the reasons for dismissal held by Mr Robinson that his response would not have been especially meaningful or likely to give rise to any matters that would reasonably persuade Mr Robinson that dismissal should not occur.
[55] As a result, I am unable to find that Mr Licastro was unfairly dismissed.
[56] As a result, Mr Licastro's application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.
[3] Exhibit R1, Witness Statement of Patrick Robinson, pg. 1.
[4] Exhibit A1, Witness Statement of Ryan Licastro, pg. 4.
[12] Exhibit R1, pg. 2; Transcript, PN484.
[21] Transcript, PN539, PN 602 - PN604.
[28] Exhibit R2, Bundle of Documents, attachment 4.
[29] Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.
[30] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[31] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]- [7].
[32] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].
[33] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].
[34] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]- [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]- [23].
[35] Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.
[36] Form F3 Employer Response Form, item 3.1.
[37] Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].
[39] Explanatory Memorandum to the Fair Work Bill 2008, [1542].
Printed by authority of the Commonwealth Government Printer
Ryan Licastro
Patrick Robinson and Co T/A Patrick Robinson and Co [2018] FWC 5931
[5] On 24 August 2018 Patrick Robinson, the Principal of his firm, advised the Commission that he sought to be legally represented in order for there to be a dispassionate presentation on behalf of the Respondent to the Commission. Mr Robinson also disclosed a concern on his part that it may be difficult for him to appropriately proceed without legal representation. That application was objected to by the Applicant, Mr Licastro who is professionally a lawyer, but would be unrepresented in these proceedings.
[6] The Respondent's application is taken to be a request for permission to be granted pursuant to s.596(2)(b) of the Act, which goes to the unfairness that would arise because the Respondent is unable to represent itself effectively. The Applicant objected to permission for legal representation to be granted, particularly for the reason that it would not enable the matter to be dealt with more efficiently and that it would not be unfair to the Respondent to be required to represent itself since its principal Mr Robinson is himself a solicitor.
[7] I had regard not only to the submissions that each party has made about the question of representation, but also to the various submissions, witness statements and documents filed in these proceedings, including in the initial jurisdictional matter and earlier and incomplete proceedings conducted before Commissioner Cribb including having regard to the transcript of the hearing before her. Moreover, I also had regard to the decision of Senior Deputy President Richards in the matter of CEPU v UGL Resources Pty Ltd (Project Aurora) [2012] FWA 2966, in which the Commission discussed the ascertainment of the view as to whether a person is unable to represent themselves effectively (see [10] - [16]), with it being noted both that establishing an objective standard on the subject of the criterion within s.596 (2) (b) would be "particularly elusive" as well as:
(1995) 62 IR 371
(1995) 60 IR 1
(1999) 94 FCR 561
(2000) 98 IR 233
(2004) 137 FCR 266
The Fair Work Commission dismissed Ryan Licastro's unfair dismissal application. The Commission concluded the employer had a valid reason related to the applicant's capacity or conduct for dismissal, and that procedural shortcomings (notably the lack of a further opportunity to respond) did not render the dismissal unfair in all the circumstances. Order dismissing application issued (see [4], [55], [56]).
[27] Mr Licastro denies strongly that he referred to the matter involving the client F as being a "shitty" case[23] and strongly contests the characterisation of his performance put forward by Mr Robinson, saying that, in relation to his methods of contact with clients, he was doing so efficiently, and that in relation to his handling of the files, he was making decisions properly, albeit under some level of high workload which may explain some of the problems which are merged.[24] For example in respect of client D, he had initiated contact with the opposing solicitors, seeking to and obtaining their commitment that the relevant time frame for filing would be put on hold until instructions from the Victorian WorkCover Authority had been obtained which could impact whether the Defendant dropped its objection to the application. Mr Licastro puts forth was used in the offices of his previous employers.[25] Mr Robinson notes in respect of that matter that the opposing solicitor had subsequently reneged on any commitment that may have been given about putting a hold on filing, which meant that the filing in the application was done out of time.[26]
[28] A termination letter confirming Mr Licastro's dismissal was not provided to him by Mr Robinson, although Mr Robinson completed a file note about the conversation which is in comprehensive terms. It is accepted in evidence by Mr Licastro that the file note is in relatively accurate form except for some matters, and especially about it being stated that he had said that the case involving client F was a "shitty" file.[27] Despite the differences between the parties about the accuracy of the file note, I consider the evidence to be such as to allow a finding that the file note is, in its overall condition, a reasonably accurate recollection not only of the matters discussed, but some of the tone in which Mr Robinson and Mr Licastro exchanged their views. The contents of the file note include that the following matters were communicated by Mr Robinson to Mr Licastro as the reasons for the latter's dismissal:
A failure to take the necessary steps to effectively progress client M's file coupled with an inability to receive constructive feedback or direction to enable him to achieve a better resolution for the client;
A failure to obtain the correct taxation material in client F's file, leading to the claim not being accepted by the insurer; and
• A failure to lodge materials in time in client F's file or take the necessary steps to locate the client coupled with an inability to take responsibility for the deficient work on the file or receive direction on how to improve outcomes in future in similar circumstances.[28]
[40] Because Mr Licastro endeavours to downplay the importance of the 14 November 2017 meeting and the subsequent written warning and that his recollections about what then occurred in early December and on 12 December 2017 are similarly muted, his evidence on these matters is simply less plausible than the evidence given by Mr Robinson. A muted, low-concern recollection of what were most likely robust and difficult conversations is, frankly, difficult to draw from the evidence.
[41] Having accepted Mr Robinson's evidence about the tenor of the conversation on 12 December 2017 and the matters discussed within it, it follows that I accept Mr Robinson's proposition that when he went into the meeting he did not at that time have an intention of dismissing Mr Licastro and that he only formed a view about the dismissal when it became clear there was no acceptance of the matters he was discussing with Mr Licastro and that there was in effect a misalignment between their respective expectations.
[42] Given that the warning provided to Mr Licastro on 28 November 2017 had pointedly taken him to the need for him to improve his knowledge of what Mr Robinson regarded as essential steps in the common law process; that he needed to communicate better with clients; and that quality of his work needed to improve to the required professional standard, Mr Robinson was entitled to form the view in the meeting on 12 December 2017 that the matters discussed between them had not been acted upon sufficiently and were unlikely to be acted on in the future.
[43] The evidence overall leads to the conclusion that Patrick Robinson and Co had a valid reason for Mr Licastro's dismissal relating to his capacity or conduct.