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Facing an “obvious” power imbalance and with very little support, a pregnant paralegal was terminated by an NSW-based law firm in a method deemed to have been “inappropriate and inconsistent”.
In late January and just under three weeks before her leave began, Fourtree Lawyers brought a pregnant legal secretary and paralegal into a meeting and proposed she resign from her role and take a redundancy because it was downsizing from two offices to one.
Although the paralegal was allowed to have a support person, they could not be a “past or present employee” of Fourtree because the meeting was “confidential” and they could not play an active part.
In contrast, Fourtree was represented by managing director Keith Vierboom, who had founded the firm nine years ago, and Fourtree’s experienced employment lawyer, Mitchell Hickey.
“This created an obvious power imbalance … further exacerbated by Vierboom’s direction that the person attending the meeting … could not be a past or present employee … and would not be permitted to advocate or speak on [the paralegal’s behalf],” Fair Work Commission’s deputy president Judith Wright said.
Wright added it was “misleading and potentially unlawful” to restrain the role of the support person and deprived the paralegal of her right to be represented during discussions with her employer.
After the paralegal filed her application, Fourtree objected on the grounds it believed she had resigned and had not been terminated.
However, Wright said a reasonable person would have understood she did not resign on the day of the meeting “or at any other time”.
The paralegal told the commission that at around 10am on 24 January, she was invited into a meeting with Vierboom and his partner and practice manager, Jane Hogan, and handed a letter.
The letter was titled “Notice of Workplace Change – Potential Redundancy” and set out that Fourtree decided to cancel its Newcastle lease because Vierboom had suffered from a “number of serious health concerns” beginning in April 2023.
The paralegal read the number of administrative staff would be reduced and her position “may become redundant”.
According to its website, Fourtree still operates from the Newcastle and Erina offices and provides services in 15 courtrooms.
She was invited to attend another meeting with Vierboom and Hickey on 29 January. According to the letter, the paralegal’s potential redundancy and other job options would be discussed.
In Vierboom’s evidence, the paralegal was advised a deed had been prepared that provided her resignation would end by employment and she would receive three weeks’ pay.
She was also allegedly given the option of working until 15 February, the date she was supposed to start leave. Given she had not worked at the firm for 12 months, it would not be paid parental leave.
Hickey said the paralegal wanted to accept the offer but asked if she could take the deed home to consider it further.
On what she should tell her colleagues, Vierboom said he did not want staff to know about the redundancy because it could “cause problems in the future” and that the deed was confidential.
In her version of events, the paralegal claimed Vierboom was “very keen to wrap things up” in a deed that signed all her rights away, including all claims to underpayments and annual leave.
She alleged to the commission that she was told to “tell people she resigned” and “just disappear” that day, so she packed up her desk.
Wright said if the paralegal had been represented, “it is possible the outcome of the meeting would have been different”.
Following two text messages sent by Vierboom in the days following, the paralegal advised him she had sought legal advice about the deed, would respond at the end of the week, and directed that he issue all future correspondence to her external lawyer.
However, six days after the meeting, Hickey sent the resignation letter to both the paralegal and her legal representative.
There was no evidence that a discussion about transferring the paralegal to another role was ever held, despite the letter setting this out.
Wright said that given Hickey had prepared the deed by the time of the first meeting, it was clear Vierboom had decided before the meeting occurred that he would propose a resignation.
“In my view, it was inappropriate and inconsistent with the Fourtree Lawyers’ obligations under [the FWC Act] to, in effect, cease the consultation meeting and immediately commence discussions on a ‘without prejudice’ basis, particularly since [the paralegal] did not have the benefit of representation to assist her,” Wright said.
Given the deed required the paralegal to have an opportunity to look into legal advice, Wright said Vierboom “should have expected” that there was a possibility the paralegal would change her mind as a result.
The matter was listed for conference.
