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Concerned over allegations a Queensland-based law firm did not pay its employees correctly, a deputy president of the Fair Work Commission referred an unfair dismissal decision to the Ombudsman.
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In dealing with a jurisdictional objection to a former employee’s general protections application for an unfair dismissal, deputy president Nicholas Lake became concerned with allegations that CBC Lawyers’ pay decisions were in breach of the Legal Services Award 2020.
Former employee Renee Passmore alleged the firm failed to provide payslips with information about leave entitlements and forced a “salary sacrifice” onto her in exchange for a spot in the carpark.
Believing Passmore had repudiated her employment in the days after her resignation, CBC Lawyers also asserted it was entitled to deduct four weeks from her wages because she failed to give four weeks’ notice.
Lake clarified this was “not correct” and that the minimum standards for employment under the modern award “cannot be contracted out of”.
Given the substantive matter before him concerned the circumstances of Passmore’s exit from the firm, Lake said it was “sufficient for me to address these concerns by referring the matter” to the Fair Work Ombudsman by forwarding a copy of his decision.
“The respondents may need to be educated by the Ombudsman on the requirements of the Legal Services Award 2020,” Lake said.
Passmore lodged the general protections application last November after she noticed her fortnightly salary had not been paid.
According to Lake’s decision, Passmore felt a “shift” in her relationship with Michael and Sandra Clive – both principals at the firm – in October 2024, including in the negative feedback she received.
Having discussed her concerns with her wife, Passmore emailed a letter of resignation on 1 November. She noted that due to ongoing health issues, it was “unlikely I will be deemed medically fit to return to the workplace” before her notice period ended on 29 November.
Three days later, Passmore went into the office early in the morning to return equipment and clothing. While there, she also wished an accountant good luck and said she would “f--king need it”.
After attending a medical appointment later that day, Passmore emailed the firm a medical certificate. Her next contact with the firm was the following day to inquire about her missing pay.
On 12 November, Mr Clive emailed to claim that by returning the items to the office prior to the appointment, Passmore’s actions “conclusively show that you had no intentions of serving out your notice period” and this constituted “a repudiation of your employment”.
According to Lake’s decision, Passmore said she returned the items because she “expected that it was unlikely she would be found fit to return to work, and because she wanted to ensure she ‘diligently’ complied with the contractual requirement to return … property”.
While a “sound argument”, Lake said that on an objective view of the circumstances, a reasonable person would determine that by handing in the equipment, Passmore no longer intended to perform work.
However, there would have been “no logical reason” for Passmore to provide the firm with a medical certificate if she did not believe herself to still be employed and bound by the employment contract.
“In the circumstances, the applicant providing her medical certificate, and keeping the respondents informed for when she would be fit to return to work, is objectively consistent with her believing herself to be bound by the employment contract,” Lake said.
Lake said the matter could have “been avoided” had either Mr or Mrs Clive “simply called or texted” Passmore to ask why she had returned the property before the end of her notice period.
As the evidence did not establish repudiation, CBC Lawyers was found to have dismissed Passmore during her notice period, and therefore, their jurisdictional objection had to be dismissed. The matter will be set down for further conference on the remaining issues.
The case is Renee Passmore v The Trustee for the CBC Lawyers Unit Trust, Sandra Clive (C2024/8211).
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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