A pyrrhic victory - no compensation in unfair dismissal case

Yesterday, the Fair Work Commission delivered a decision in Hans v QS Law Pty Ltd that seemed to be going well for the employee until it suddenly didn't.

Mr Hans was employed as a solicitor at QS Law. The day before he was going on two weeks' leave he was presented with a letter terminating his employment. Mr Hans accepted that his dismissal was not unexpected. However, he was not given any reasons for the decision and, accordingly, did not have a chance to respond.

After being dismissed, Mr Hans copied a confidential document. He then took his two weeks' leave and set up business in competition with his former employer. 

At the hearing of Mr Hans' unfair dismissal application, the employer presented a range of reasons for his dismissal. They included: poor performance, forwarding confidential documents  to a competitor and failing to follow a lawful and reasonable direction to base himself at the employer's Cleveland office. 

The Commission held that most of these factors did not warrant dismissal. However, the failure to relocate to the Cleveland office as directed was a valid reason for dismissal. Despite this, the "complete lack of procedural fairness" meant that the dismissal was harsh, unjust and unreasonable.
 
Reinstatement was not appropriate, so the Commission considered the issue of compensation. In relation to that, the Commission took into account two factors outside those specifically identified in the legislation.

1. Mr Hans' conduct in sending confidential information to a competitor while he was employed. The Commission observed,

"Such misconduct can be taken into consideration notwithstanding the misconduct was not the basis of a valid reason for dismissal. The decision to forward confidential information … was inappropriate. While I have found it did not constitute a valid reason to dismiss the Applicant, it nevertheless in my view falls short of the judgement and good faith and fidelity required of an employed solicitor."

2. Mr Hans' conduct in copying a confidential document after  he was dismissed. The Commission accepted that this document contained information that would be useful to Mr Hans' new firm.

In light of these two issues in particular, the Commission decided that -

"In my view all the misconduct detailed above, during and post-employment, is relevant in determining any compensation and I would on that basis reduce the compensation payable to zero".