1
Fair Work Act 2009
s.604—Appeal of decision
Bank of Sydney Ltd T/A Bank of Sydney
v
Pasqualina Repici
(C2015/4952)
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE
MELBOURNE, 16 OCTOBER 2015
Appeal against decisions [[2015] FWC 4571], [[2015] FWC 4963] and Order PR569654 of
Commissioner Cribb at Melbourne on 8 July 2015 and 21 July 2015 in matter number
U2014/15399.
[1] On 8 July 2015 and 21 July 2015 Commissioner Cribb issued decisions granting an
unfair dismissal remedy with respect to an application made by Ms.Repici under s.394 of the
Fair Work Act 2009 (‘the Act’). On 29 July 2015 the Bank of Sydney lodged an appeal
against the decision and order.
[2] The Bank of Sydney was directed to file and serve an outline of submissions
addressing the issue of why it is in the public interest to grant permission to appeal, and if the
appeal is on a question of fact, what is the significant error of fact involved in the decision.
The matter was listed for hearing on 29 September 2015.
[3] As the decision was from an unfair dismissal decision, s.400 applied to the appeal.
That section provides:
‘400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.’
[4] Factors that might invoke the public interest have been held to include where a matter
raises issues of importance and general application, where there is a diversity of decisions at
first instance so that guidance from an appellate court is required, or where the decision at
[2015] FWCFB 6712
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 6712
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first instance manifests an injustice, or the result is counterintuitive, or the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters1.
The decision
[5] In her decision Commissioner Cribb made the required findings in relation to each of
the factors in s.387 and found:
[44] Having considered all of the evidence, I accept the Applicant’s contention that, at
the relevant time, she was moving desks and I also accept Ms Repici’s explanation of
how she came to throw the documents into the bin. None of the Respondent’s
witnesses contradicted Ms Repici’s statement that she was changing desks at the time.
Rather, the challenge was that this had not been raised by Ms Repici with the Bank at
any stage prior to the hearing. This is acknowledged but the Commission is required to
determine the matter on the basis of the material before it. I also accept Ms Repici’s
evidence that her throwing out of the documents was inadvertent and not deliberate
and that it was done by mistake. I found Ms Repici to be a credible witness. Therefore,
I find that Ms Repici did not deliberately throw out the documents, rather, it was
inadvertent and by mistake, in the process of changing desks with a colleague. When
Ms Repici’s explanation is placed in this context, I find it to be a reasonable
explanation.
[45] Therefore, the other matters to be taken into account will be the reliance of the
Bank on paperwork and the effect on the customer and the Bank if it is missing and
that Ms Repici’s actions, in throwing out the documents, were inadvertent and a
mistake and not deliberate and that her explanation was reasonable.
Conclusions
[46] In all of the circumstances of this matter, and having taken account of each of the
factors set out in section 387 of the Act, I determine, on fine balance, that Ms Repici’s
dismissal was harsh.
[47] On the one hand, there was a valid reason (a serious breach of procedures) which
would have had a negative impact on the Bank and its customers, if any of those
customers queried an action of the Bank which required access to the original
document, and it was not in the customer’s file. On the other hand, the actions of Ms
Repici were not deliberate (the documents had been put in the Bin inadvertently, by
mistake, in the context of working in a busy Branch and in the process of moving
desks); Ms Repici’s explanation for why the documents were placed in the Bin was
reasonable and Ms Repici was not accorded procedural fairness during the disciplinary
process.
[6] In a second decision on compensation, the Commissioner said:
[1] This decision concerns determination of an amount of compensation, in lieu of
reinstatement, to be ordered by the Fair Work Commission (the Commission),
pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision2
on 8 July 2015 in which the Commission found that Ms Repici had been unfairly
[2015] FWCFB 6712
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dismissed. In that decision, the Commission was unable to finally determine an
amount of compensation as there was insufficient material before the Commission at
that time3.
[2] Accordingly, Ms Repici was directed to provide the Commission and the
Respondent with the amount of other remuneration earned between 20 November
2014 and the date of the decision. Ms Repici was also required to provide
documentary evidence of the efforts she has made to obtain alternative employment.
On 14 July 2015, Ms Repici provided a listing of the jobs applied for through
seek.com.au and also advice in relation to any other amounts earned.
[3] I will now deal with determination of an amount of compensation.
[7] The Commissioner concluded:
Conclusion
[22] Therefore, it is considered appropriate to make an order that the Bank of Sydney
pay $20,630.08 (gross), less taxation as required by law, in compensation to Ms Repici
in lieu of reinstatement, within 21 days of the date of this decision.
[23] An order4 to this effect will be issued separately.
Submissions
[8] The Bank of Sydney put submissions in support of wide ranging appeal grounds. The
Bank alleged that the Commissioner had failed to consider the payment made to Ms.Repici of
1 months’ pay in lieu of notice despite stating that she would do so (paragraph 66), that the
Commissioner attached significant weight to Ms.Repici’s evidence given for the first time in
proceedings that she was changing desks at the time that documents were lost, gave
insufficient weight to Ms.Repici’s recent attendance at compliance training, erred in finding
that Ms.Repici was unable to go through all the documents to establish which ones she was
responsible for (paragraphs 20-21), gave significant weight to the decision maker not
personally viewing any of the documents in question (paragraphs 19-20), erred by concluding
that Mr.Kelidis did not appear to know the precise number of documents that Ms.Repici had
placed in the bin, erred in considering Ms.Repici’s service to be a neutral factor (paragraphs
57-58), erred in making only a 40 per cent deduction for misconduct, erred in placing weight
on the context of a busy branch (paragraph 47), erred by finding that Ms.Repici was a credible
witness, erred by failing to place significant weight on Ms.Repici’s misrepresentation that all
documents were scanned prior to being destroyed, erred in refusing to allow the Bank to
properly respond to further evidence that she had taken steps to mitigate her loss, and sought
to lead further evidence regarding Ms.Repici’s claim that she moved desks in the period
leading up to her misconduct, and other matters. The Bank also put submissions on the issue
of public interest alleging significant errors of fact, disharmonious legal principles, the
decision raised issues of how the cap in compensation is applied, and other matters.
Consideration
[9] Dealing firstly with the finding that the termination of employment was harsh, unjust
or unreasonable, a number of challenges were made to the findings of fact made by the
[2015] FWCFB 6712
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Commissioner. The Bank challenged findings of fact on Ms.Repici’s claims that she was
changing desks when she destroyed documents, that Mr.Kelidis did not know the number of
documents, that the decision maker did not view the documents, that the branch was busy and
this was relevant, that Ms.Repici was a credible witness, that Ms.Repici misrepresented that
all documents were scanned before being destroyed, and other matters. Was there a
‘significant error’ within s.400 of the Act, or a legal error?
[10] Mr.Kelidis, the Bank Manager of the Oakleigh Branch, was asked about Ms.Repici’s
claim that she was changing desks when she destroyed documents. Mr.Kelidis said:
‘Okay that – because I wasn’t aware of this. It’s the first time I hear this, that claim
now.’5
[11] On appeal the Bank submitted that Commissioner Cribb incorrectly drew the
conclusion that he did not dispute Ms.Repici’s evidence that she was moving desks6.
However, it is clear from the evidence quoted above that Mr.Kelidis did not dispute this
evidence. Instead of disputing or supporting the evidence, he said that ‘I wasn’t aware of this.
It’s the first time I hear this, that claim now’. The evidentiary dispute was that this had not
been raised by Ms.Repici at any stage prior to the hearing, as the Commissioner pointed out in
her decision at paragraph 44 quoted above. Nor was there an issue of procedural fairness. The
Bank did not ask to lead further evidence on the point, and was not refused the opportunity to
lead further evidence on the point.
[12] In relation to the finding that Ms.Repici was a credible witness, the Commissioner
assessed all the evidence and submissions, and accepted Ms.Repici’s evidence on a number of
issues including her explanation of how she came to throw the documents into the bin, that
she was changing desks at the time, and that throwing out documents was by mistake and not
deliberate. The Commissioner said that she was a ‘credible witness’ (paragraph 44).
[13] Ms.Repici gave evidence explaining how she came to throw out documents, including
that she was ‘busy’ and ‘accidentally threw away approx. 20 documents’7. Overall the
Commissioner had regard to the evidence given, and assessed that evidence as she was
required to do. The Commissioner was entitled to accept Ms.Repici’s evidence and find it to
be credible. There was no error.
[14] In relation to the submission that Ms.Repici misrepresented that all documents were
scanned before being destroyed, Ms.Repici gave evidence to that the documents were
scanned8. Mr.Kelidis gave contrary evidence9, as did Ms.Caramalis10. Ms.Garty said that this
was an important issue11. The Commissioner was required to make a finding of fact on the
point, and was entitled to accept the evidence of Ms.Repici in preference to other evidence.
The Commissioner had the opportunity to observe the witnesses giving evidence.
[15] In relation to numbers of documents, Commissioner Cribb found that Mr.Kelidis did
not appear to know ‘exactly’ what number of documents that Ms.Repici threw out (paragraph
20). Mr.Kelidis said that there were ‘about 32 documents’12. He also said that he knew that
they belonged to Ms.Repici because ‘A lot of them had – were signed off by Lina’13. On that
explanation it is possible that some did not belong to Ms.Repici, because some were not
‘signed off by her’. Similarly, Mr.Kelidis said that when he interviewed Ms.Repici:
[2015] FWCFB 6712
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‘No, we didn’t go all – through all of them. I just left them on the desk and she went
through some of them and she identified them.’14
[16] When asked about Ms.Repici’s evidence that some of the documents ‘did not belong
to her’, Mr.Kelidis said that if that was the case he would question the other staff also.
Because Ms.Repici said that this was not necessary, Mr.Kelidis drew the conclusion that all
the documents were hers. He was asked ‘even the ones that she has just told you that did not
belong to her’ and replied ‘Mm-hm’15.
[17] Finally, the Bank in its final submissions conceded that it was wrong to claim that
Ms.Repici threw out 32 documents. It submitted that16:
‘On 18 November 2014, it is brought to your attention that 32 Bank documents were
found in the Security Document Destruction Bin, in excess of 25 being identified as
having been the responsibility of the Applicant.’ [underlining added]
[18] This appears to be close to a concession that the Bank is unable to exactly state the
number of documents that Ms.Repici threw out. The Bank is only able to identify the
documents as being ‘in excess of 25’, and possibly less than the 32 initially claimed.
[19] Overall the Commissioner assessed the evidence that was given and it was open to her
to come to the conclusions that she did. There is clearly a basis for questioning the precise
extent of knowledge of the Bank about exactly what documents Ms.Repici destroyed.
[20] Similarly, the Commissioner said that the decision maker, Ms.Gatti, did not view any
of the documents and relied on the list provided by Mr.Kelidis (paragraph 20). In her witness
statement Ms.Gatti said that she viewed an email from Mr.Kelidis which contained
information about the documents, but not copies of the actual documents17. The
Commissioner was entitled to make the observations that she did.
[21] There was no significant error of fact in relation to the findings made by the
Commissioner in relation to s.387, and no denial of procedural fairness.
[22] A number of challenges were made to the Commissioner’s order of compensation,
including that the Commissioner failed to deduct the payment made in lieu of notice despite
stating that she would, that length of service was a neutral factor, that deductions for
misconduct should be more than 40 per cent, and that the opportunity to give fresh evidence
was not provided on Ms.Repici’s attempts to mitigate her loss.
[23] In relation to the issue of compensation, there is a clear inconsistency between the
Commissioner’s statement (paragraph 66) that she will take into account the amount of one
month’s notice paid in lieu of notice. She did not take this amount into account. This is an
error.
[24] In relation to the finding that deductions for misconduct should be 40 per cent, the
Commissioner made a decision on the limited submissions put to her, and made an
assessment as she was required to do. A deduction of this kind is discretionary, and we can
find no error in the exercise of discretion.
[2015] FWCFB 6712
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[25] In relation to the finding that length of service was a neutral factor, again, the
Commissioner took account of the limited submissions put to her and made an assessment.
She was entitled to find that it was a neutral factor.
[26] In relation to the opportunity to put fresh evidence on Ms.Repici’s mitigation efforts,
Ms.Repici gave evidence on 2 March about her attempts to find other employment. She had
made 152 applications, and stated the agencies used18. The Bank did not see the paperwork
underlying her claims until paperwork was sent by Ms.Repici on 10 July 201519. The Bank
did not ask for that paperwork to be provided on 2 March although Ms.Repici said it was on
her computer. It could have done so and put submissions at the next hearing. It had the
opportunity to put a case on the issue. During the oral hearing of the appeal the Bank claimed
that they asked in writing to respond to this further evidence20 but there is no record of such a
written request in Commission records, and no such submission is contained in the appeal
book. The Bank makes a number of criticisms on appeal of the paperwork (paragraph 2.6 of
its written submissions). However, the time to put these submissions was during the hearing
before Commissioner Cribb. There is no error.
[27] The Commissioner properly made findings and decisions in relation to the matters in
s.392 of the Act, and except for the issue identified earlier there is no error in those findings
and decisions.
The result of the appeal
[28] The Bank has demonstrated that Commissioner Cribb was in error when she stated
that she would take ‘take into account’ the payment in lieu of notice, and then did not do so.
She issued a decision and order which did not take this into account. In our view it is in the
public interest that permission to appeal be granted in order to enable the parties to put
submissions on whether the appeal should be granted in order to maintain consistency
between Commission decisions and orders, and other matters. We grant permission to appeal
in relation to this issue only.
[29] The notice of listing and directions for this appeal stated that the matter ‘was listed for
hearing concerning the issue of permission to appeal only’. Whether the appeal should be
granted and order that should be made as a result of permission to appeal being granted is
another matter.
[30] Ms.Repici did not appear at the hearing. However, she is entitled to be given the
opportunity to put a case on the effect of the error we have identified on the order of
compensation, if any. We issue directions to give the Bank the opportunity to put a case, and
for her to reply to it.
DEPUTY PRESIDENT
THE FAIR WO Fre 0 NOISSINN THE SE
[2015] FWCFB 6712
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Appearances:
Ms M Khoury of the Bank of Sydney Ltd
Hearing details:
2015
Melbourne and Sydney (by video)
29 September
Printed by authority of the Commonwealth Government Printer
Price code C, PR572403
1 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266.
2 [2015] FWC 4571
3 Ibid at [76]
4 PR569654
5 PN1138
6 Bank of Sydney Submissions on Appeal
7 Eg. Applicant witness statement, ‘I accidentally threw away approx. 20 documents ….’, PN168, 181, 233-236, 298
8 PN95
9 PN1014
10 PN890-891 etc
11 PN1448
12 PN985
13 PN989
14 PN1036
15 PN1037-1044
16 Final Submissions of Respondent, p.9, appeal book p.257
17 Witness statement of Diana Gatti, Head of Retail Banking, paragraph 6
18 PN504-526
19 Appeal book pp.262-268
20 Appeal proceedings, PN102
