‘Serious’ blunders see lawyer pushed out of prosecutions office

A solicitor was terminated from the Office of the Director of Public Prosecutions for poor performance, including by questioning his superiors.

NSW’s Industrial Relations Commission dismissed an unfair dismissal application brought by Matthew Fernandez against the Office of the Director of Public Prosecutions (ODPP), which terminated him on the basis of “unsatisfactory performance”.

Fernandez claimed it was harsh, unreasonable and unjust and argued the finding of poor performance “had no sound basis in fact”.

However, deputy president Justice Jane Paingakulam said that while there were errors in how the ODPP approached the termination, it was not enough to render it unreasonable in light of submissions made by senior staff about Fernandez’s performance.

“The evidence establishes Fernandez’s inability to recognise when he needed assistance, his repeated unwillingness to seek that assistance from his allocated mentor, and his propensity to question whether directions that he was given were appropriate.

“Taking into account all of the above matters, I find that the termination of Fernandez’s employment was not harsh, unreasonable or unjust,” Justice Paingakulam said in her written decision.

Fernandez started at the ODPP in February 2022 and was a level-one solicitor by the time of his termination in July 2024.

He and his manager had a meeting in December 2023, during which Fernandez was advised his performance was unsatisfactory.

The allegations – also provided to Fernandez in an email – included his resisting advice about correct procedures for expenditures, failing to attend court on time, removing himself from an allocated matter without approval, and failing to take advice from a senior solicitor.

Fernandez also allegedly failed to disclose evidence during a witness conference, relied on undisclosed evidence in a Crown case statement and a charge recommendation, rejected a defence plea offer without the delegated authority, filed material late, and did not include defence on correspondence with the court.

In submissions to the commission, Fernandez – who had become a father in mid-2023 – said the allegations were raised with him for the first time in that meeting and he had been “shocked”.

He said he was then removed from his position as an assisting solicitor and was concerned this would “severely limit my ability to demonstrate improvement in my performance”.

Despite this, Fernandez described a “perceived improvement in performance and positive feedback” after the December meeting, including by dedicating himself to areas of improvement, reviewing internal policy documents, and approaching senior solicitors for advice more frequently.

He contended the termination was unreasonable because he was not given “adequate opportunity” to respond, it was harsh because he should have had a “reasonable expectation of performance development” as a junior employee, and his performance was tainted by the “unfair consideration” of his taking parental leave.

Fernandez’s manager gave evidence she had found issues with his performance throughout 2023, either from her own observations of his conduct or from reports received from other staff.

She said that on each occasion a performance issue was raised, either herself or another senior solicitor raised them with Fernandez. She explained her approach was to explain the problem, reiterate the correct approach, and “make it clear” that it should not happen again.

Responding to Fernandez’s confusion about his job security because he received a raise in January 2024, the manager clarified this was approved by an acting managing solicitor without input from her. She said that if she was consulted, she would have advised against the raise.

Justice Paingakulam found the manager to be an “impressive witness” and accepted her evidence about Fernandez’s conduct.

The deputy president then listed several of the more “serious examples” of unsatisfactory performance, including Fernandez’s lateness to court, which left counsel or solicitor advocates uninstructed and unavailable for preparation tasks.

Justice Paingakulam rejected Fernandez’s explanation the issues – which he accepted occurred – were “mistakes” or misunderstandings due to inexperience because he had demonstrated an “exaggerated” and “unrealistically high view of his ability”.

Fernandez also gave insufficient attention to “less interesting aspects of his role”, was unable to manage his time appropriately, and displayed a lack of judgement, Justice Paingakulam added.

Issue was taken with Fernandez’s evidence at hearing that he needed to consider “valid feedback” because, when challenged on whether he thought he needed to also take on board feedback he considered not to be valid, “he had difficulty responding”.

“That evidence was indicative of his demonstrated propensity to question guidance and instructions he was given,” Justice Paingakulam said.

Justice Paingakulam accepted Fernandez was not given an official warning that his employment was at risk or a “meaningful opportunity” to demonstrate improvement, but neither error rendered the eventual termination of his employment unreasonable.

The case is Fernandez v Office of the Director of Public Prosecutions [2025] NSWIRComm 2 (24 February 2025).