1
Fair Work Act 2009
s.394—Unfair dismissal
Pasqualina Repici
v
Bank of Sydney Ltd T/A Bank of Sydney
(U2014/15399)
COMMISSIONER CRIBB MELBOURNE, 8 JULY 2015
Application for relief from unfair dismissal.
[1] Ms Pasqualina Repici (the Applicant) has made an application for an unfair dismissal
remedy in relation to the termination of her employment by the Bank of Sydney Ltd T/A
Bank of Sydney (the Respondent, the Bank).
[2] At the hearing, Ms Repici gave evidence. On behalf of the Bank, Ms E Caramalis-
Theodoropoulos, Personal Banker; Mr T Kelidis, Branch Manager; Ms D Gatti, Head of
Retail Banking and Ms S Mayson, Head of Human Resources, gave evidence.
[3] The witness evidence was heard on Monday 2 March 2015. Written Closing
Submissions were filed by Ms Repici on 23 March 2015 and by the Bank on 24 April 2015.
Closing Submissions in Reply were provided by Ms Repici on 27 April 2015.
1. Background
[4] It is useful, in this matter, to set out the relevant background, which is as follows:
7 May 2012 - Ms Repici commenced employment with the Bank as a Customer
Service Representative (CSR) at the Oakleigh Branch.1
When Ms Repici commenced, she read the Branch Operation Procedures Manual
(BOPM) and was trained in various aspects of it.2
Ms Repici also received compliance training (in the weeks before her dismissal)
during which it was advised that employees would be dismissed if there were any
serious breaches of procedures.3
1 Transcript PN 85 and Submissions of the Respondent, dated 24 April 2015, at page 1
2 Ibid PN 88 - 90
3 Ibid PN 91 - 94 and Submissions of the Respondent, dated 24 April 2015, at page 1
[2015] FWC 4571[Note: Appeals pursuant to s.604 (C2015/4952 was
lodged against this decision - refer to Full Bench decision dated 13 August
2015 [[2015] FWC 5511], 16 October 2015 [[2015] FWC 6712] and
20 November 2015 [[2015] FWCFB 7939]] respectively for results of
appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7639.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6712.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC5511.htm
[2015] FWC 4571
2
November 2014 over several days, Ms Repici threw into the Security Document
Destruction Bin (the Bin) about 25 Bank documents. These documents ranged from
returned mail customer account statements, certified ID’s, electronic transaction
dispute forms with statutory declarations and change of details forms.4
18 November 2014 - Ms Caramalis-Theodoropoulos located the documents in the
Bin when she had opened the Bin to look for a document she thought she may have
inadvertently placed in there.
18 November 2014 - Ms Caramalis-Theodoropoulos took the documents to Mr
Kelidis (Branch Manager). Mr Kelidis identified Ms Repici’s handwriting on the
documents.
5.20pm on 18 November 2014 - Mr Kelidis met with Ms Repici and advised her that
her documents had been found in the Bin and asked for an explanation. Ms Repici
identified the documents but said that not all of them were hers.
18 November 2014 - after the meeting with Ms Repici, Mr Kelidis telephoned Ms
Dian Gatti, Head of Retail Banking, to discuss the matter. Mr Kelidis followed up
the conversation with an e-mail.
19 November 2014 - Ms Gatti discussed the incident with Ms Sue Mayson, Head of
Human Resources.
19 November 2014 - Mr Kelidis met with Ms Repici again to discuss the matter
further.
19 November 2014 - Ms Repici telephoned Ms Mayson. Ms Mayson spoke to Mr
Kelidis after she had received the telephone call from Ms Repici.
19 November 2014 - Ms Mayson and Ms Gatti had a further conversation about the
incident.
19 November 2014 - Ms Gatti and Mr Kelidis met again with Ms Repici and, during
this meeting, Ms Gatti terminated Ms Repici’s employment.
2. Legislative requirements
[5] Section 387 of the Act sets out the requirements for determining whether or not the
dismissal was harsh, unjust or unreasonable. It is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
4 Ibid PN 137 - 139 and 184 - 201
[2015] FWC 4571
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(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[6] I will deal with each of the requirements in turn.
(a) Section 387(a) - valid reason
[7] The reasons for Ms Repici’s dismissal were confirmed by letter dated 19 November
2014. The letter stated that Ms Repici was dismissed following the discovery that she had
thrown more than 25 Bank documents into the security bin for disposal and destruction. It
was also stated that it is illegal to destroy such Bank records and that it is a serious breach of
procedures. Concern was also expressed that this breach occurred so soon after the recent
training in banking compliance requirements.5
[8] As set out in paragraph 4 above, during the meeting between Ms Repici and Mr
Kelidis, immediately after the documents were discovered, Ms Repici acknowledged that they
were her documents. Therefore, there is no dispute about whether or not Ms Repici was
responsible for placing the documents in the Bin. It was also not disputed that the documents
should not have been placed in the Bin. Given that it was common ground that Ms Repici had
placed the documents in question in the Bin, the question to be determined is whether Ms
Repici’s actions in doing so, provided a valid reason for her dismissal.
[9] It was acknowledged by Ms Repici that she had breached the Bank’s procedures.
However, she argued that she had made a mistake and that, given her good employment
history, she should have been given a final warning. Ms Repici stated that she did not believe
that the punishment fitted the crime.6
5Respondent’s document list at page 4
6 Closing Submissions of the Applicant, dated 23 March 2015, at page 1
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[10] On the other hand, the Bank submitted that there was a valid reason for Ms Repici’s
dismissal based on her conduct, which was admitted.7 The Bank had concluded that the
reasons provided by Ms Repici for disposing of more than 25 documents, were not acceptable
or justifiable explanations. Ms Repici’s actions were stated to be a serious breach of the
Bank’s procedures and the Bank could no longer trust Ms Repici to carry out her duties as a
CSR.8
[11] Further, it was contended that this was not the conduct expected of an employee who
had received training on the BOPM and specific compliance training in the weeks before her
dismissal. The Bank submitted that Ms Repici’s actions, in disposing of confidential
customer information, instead of filing it in the customers’ (paper) files, were negligent.9
[12] In making the decision to dismiss Ms Repici, it was stated that the Bank took into
account the nature and number of original documents found; that Ms Repici’s reasons for her
actions did not excuse them and that, if the documents had been lost, the Bank would have
been exposed to breaching its legal obligations and its obligations to customers.10
[13] I have considered all of the material before me and I find that there was a valid reason
for Ms Repici’s dismissal. As indicated earlier, it was uncontested that Ms Repici had put a
number of documents into the security destruction Bin instead of filing them in the customers’
files. In her evidence, Ms Repici acknowledged that throwing the documents out was a
serious breach of Bank procedures. Further, Ms Repici confirmed that, during the compliance
training she had received in the weeks prior to her dismissal, it was made clear that any
serious breach of Bank procedures would result in dismissal.11
[14] It appears from the evidence that a majority of the information contained in the
documents had been entered into the computer system. However, certain information e.g.
photo ID, was not entered into the system but was kept routinely in the customer’s file. The
evidence also showed that the Bank seemed to have a more manual/paper-based system which
resulted in a reliance on customer (paper) files. So, for the Bank to not have the original
documentation, could result in undesirable ramifications for both the customer and the Bank.
For example, if a customer queried their instructions to the Bank, and the Bank was unable to
produce the original customer documentation, this would undermine the relationship of trust
between the customer and the Bank and also the Bank’s safeguards when a customer raised a
query.
[15] Therefore, I find that there was a valid reason for the dismissal of the Applicant.
(b) Section 387(b) - notified of the reason
[16] In a letter, dated 19 November 2014 to Ms Repici, the Bank confirmed that Ms Repici
had been told that her actions in throwing out the Bank documents, constituted a serious
breach of procedures. The letter also stated that Ms Repici’s actions, so soon after completion
7 Closing Submissions of the Respondent, dated 24 April 2015, at page 2
8 Ibid at page 2
9 Ibid at pages 2 - 3
10 Ibid at page 3
11 Transcript PN 91 - 97
[2015] FWC 4571
5
of compliance training, was of concern to the Bank.12 Further, during the second meeting on
19 November 2014, it appears from the evidence that Ms Gatti explained the seriousness of
Ms Repici’s actions, the potential impact on customers and the Bank and that the Bank
needed to be able to trust the honesty and integrity of its staff. Based on all of these things,
Ms Gatti had told Ms Repici that the Bank had made the decision to terminate her
employment.
[17] Therefore, I am satisfied that Ms Repici was notified of the reasons for her dismissal.
(c) Section 387 (c) - opportunity to respond
[18] It was argued by the Bank that Ms Repici was given the opportunity to respond to the
allegations - in the meetings on 18 November 2014 and 19 November 2014.
[19] During the meeting on 18 November 2014, it appears from the evidence that Ms
Repici was shown the pile of documents and that she went through some of them. It was also
common ground that Ms Repici said that not all of the documents were hers. It was Mr
Kelidis’ evidence that upwards of 80% of the documents were Ms Repici’s. The evidence
also was that neither Ms Gatti nor Ms Mayson ever requested to see, or saw, the documents
that Ms Repici had put in the Bin. As well, it was uncontested that Ms Repici was very upset
during the meetings on 18 November 2014 and 19 November 2014.
[20] Taking all of the evidence into account, I am not satisfied that Ms Repici was given a
genuine opportunity to respond. She was unable to go through all of the documents to
establish exactly which ones she was responsible for. At the time of her dismissal, it does not
appear that Mr Kelidis knew exactly which ones were Ms Repici’s ie. the specific number of
documents that Ms Repici had thrown in the Bin. Given that the repercussions of Ms Repici
throwing out the documents was the termination of her employment, this lack of precision is
unacceptable. It seems to portray an approach that, given that Ms Repici had admitted at the
beginning that she had thrown out the documents, it was simply then a matter of deciding
whether or not she should be dismissed. Further, the decision maker (Ms Gatti) did not view
any of the documents and relied on the list provided by Mr Kelidis.
[21] Given the lack of precision as to exactly which documents in the bundle were Ms
Repici’s responsibility and therefore the ones that she had thrown out; that Ms Repici did not
have a proper opportunity to go through all of the bundle to establish, for herself, that all of
the documents were hers; the fact that these documents formed the basis of the decision to
terminate Ms Repici’s employment and that the decision maker did not view any of the
documents in question, it cannot be said that the Bank acted in a procedurally fair manner in
this regard.
[22] In addition, on the basis of the evidence of Mr Kelidis and Ms Gatti, there appears to
have been assumptions made about what Ms Repici meant when she provided her explanation
for why she threw out the documents, rather than an exploration of what Ms Repici meant or
further explanation being sought from her in relation to her reasons for throwing out the
documents. Both Mr Kelidis and Ms Gatti “filled in the gaps” themselves in Ms Repici’s
explanation rather than asking Ms Repici to clarify what she meant. It was common ground
that Ms Repici was very upset during the meetings on 18 November 2014 and 19 November
12Respondent’s document list at page 4
[2015] FWC 4571
6
2014. Given that this was the situation, more care would seem to be warranted in establishing
the reasons why Ms Repici had thrown the documents in the secure Bin.
[23] It is clear that Ms Repici’s actions were a serious breach of Bank procedures.
However, as the ultimate penalty for this is the termination of employment, this necessitates
that the Bank should take more care, rather than less, in terms of the process followed.
However, less care seems to have been the pathway taken in this case. Therefore, I cannot be
satisfied that procedural fairness was accorded to Ms Repici.
(d) Section 387(d) - support person
[24] The Bank’s submissions are technically correct, in that it was not under an obligation
to offer Ms Repici a support person. Section 387(d) refers to whether the employer refused a
request for a support person. However, given that Ms Repici was upset from the first meeting
onwards, when she was told about the documents having been found in the Bin, best practice
Human Resources would seem to require Ms Repici being asked if she wanted to have a
support person with her, particularly at the meetings on 19 November 2014 but, arguably, also
at the meeting on 18 November 2014. In addition, the Bank seems to have formed the view
early that this was a serious breach of procedures and dismissal was an option available to it.
Putting both aspects together, it is disappointing that it was not suggested to Ms Repici that
she might have a support person with her.
(e) Section 387(e) - unsatisfactory performance and warnings
[25] This subsection is not applicable in this matter.
(f) Sections 387(f) and (g) - size of the employer and dedicated HR expertise
[26] The Bank is a large employer and has dedicated HR expertise.
(g) Section 387(h) - any other matters
[27] Ms Repici submitted that she has been shocked at the extent to which the staff at the
Oakleigh Branch had gone to “cover their backsides”.13 In addition, the Bank was said to
have taken 27 days to provide her with a Separation Certificate so she was unable to apply for
benefits to live on.14
[28] For the Respondent’s part, the Bank contended that there were a number of matters
that should be taken into account. These were:
Customer Service Representative role
[29] It was stated that the CSR role is very important as it deals directly with customers and
is a custodian of confidential customer details and records. Had the other staff member not
opened the Bin, the documents would have been destroyed. Further, it was argued that the
number of documents attributed to Ms Repici was not a small number (more than 25) and so
13 Closing Submissions of the Applicant, dated 23 March 2015, at page 2
14 Ibid at page 3
[2015] FWC 4571
7
could not be dealt with by a warning. Finally, it was stated that Ms Repici’s actions had
created a significant loss of trust and confidence in her.15
[30] In addition, the Bank stated that, irrespective of whether Ms Repici had deliberately or
inadvertently disposed of the documents in the Bin, the impact on the Bank would have been
the same.16
Reliance on paperwork
[31] The Bank stated that customer records are a safeguard for the Bank of customer
instructions in the event that customers questioned actions taken by the Bank. The need for
the customer’s original documents to be filed was said to be particularly important in relation
to, amongst other things, photo ID. As well, it was submitted that the evidence showed that
there was a great deal of reliance on customer files.17
Exposing the reputation of the Bank
[32] It was contended that, if the documents had not been found, their loss would have
eroded the reputation of the Bank with its customers and their trust.18 Further, the Bank
submitted that, in relation to meeting the Regulator’s guidelines, it was imperative that
customer files contain all of the authorisations made by the customer.19
No excuse for behaviour
[33] The Bank argued that Ms Repici’s excuse that she was busy was not a good enough
excuse for throwing away original customer documents. It was also highlighted that, at no
time prior to the hearing, had Ms Repici mentioned that she was moving desks and that this
had contributed to her disposing of the documents. However, it was stated that this did not
validate Ms Repici’s actions in disposing of 25 plus original documents.20
Applicant’s credibility
[34] It was submitted that Ms Repici’s evidence that there was no loss to the Bank if the
documents had been destroyed and the reasons why, was incorrect, as was Ms Repici’s
contention that she was moving desks at the time. The Bank also questioned Ms Repici’s
evidence in relation to having placed the documents into the Bin on several occasions and
asked why she had not checked what she was throwing out on any of these occasions.21 In
addition, it was stated that Ms Repici was not aware that the documentation in question was
missing.22
15 Closing Submissions of the Respondent, dated 24 April 2015, pages 4 - 5
16 Ibid at page 5
17 Ibid at pages 5 - 6
18 Ibid at page 6
19 Ibid
20 Ibid at pages 6 - 7
21 Ibid at pages 7 - 9
22 Ibid at page 9
[2015] FWC 4571
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[35] For all of the above reasons, the Bank contended that the punishment did fit the crime
as, due to Ms Repici’s misconduct, she had seriously breached the Bank’s procedures.23
Considerations and conclusions
[36] I have considered all of the submissions on this factor and I find that the reliance of
the Bank on paperwork and the effect on the customer and the Bank if it is missing, are
relevant other matters.
[37] Further relevant other matters are whether or not the documents were deliberately put
in the Bin and the credibility of Ms Repici. I will deal with both of these together.
[38] In the Bank’s final written submissions, it was stated that, irrespective of whether or
not Ms Repici had deliberately or inadvertently attempted to dispose of the documents, both
have the same impact on the Bank.24 This was in contrast to what was said by the Bank, at
the beginning of the hearing, where the Bank confirmed that it had formed the view that Ms
Repici had deliberately thrown out the documents to deal with her workload. This view was
developed because it was alleged that Ms Repici told Mr Kelidis that she had thrown the
documents out because of workload.25 The tenor of some of the cross examination of Ms
Repici by the Bank which followed, confirmed that the Bank held this view.
(i) Ms Repici’s evidence
[39] It was Ms Repici’s evidence that, the reasons why she had thrown out the documents,
were:
18 November 2014
She was changing desks with a colleague so was cleaning out that desk and her own
desk at the same time; moving all of her stuff to her desk. She had inadvertently
picked up the wrong stack and thrown it away.26
She was in the process of changing desks between Teller 2 and Teller 4 and was
cleaning out the end drawers and bringing them up to Teller 2.27
She was cleaning out her desk and had a couple of different piles on the desk and
one on her chair. She had grabbed one of the piles on the desk and there was
something for the bin on the top of the pile. Without looking through the pile, she
had thrown the pile out, believing that it was rubbish because that day was really
busy.28 She had not realised that she had done this/that these documents were
missing until she was shown the documents on 18 November 2014.29
23 Ibid
24 Submissions of the Respondent, dated 24 April 2015, at page 5
25 Transcript PN 28 - 29
26 Ibid PN 109, 137 and 232 - 236
27 Ibid PN 138
28 Ibid PN 168 - 169, 218 - 219 and 319
29 Ibid PN 171, 174 - 175 and 179
[2015] FWC 4571
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As the Branch has a clean desk policy, Ms Repici believed that she had got them out
of the drawer where her documents are usually filed away. She still had more filing
in her drawer and had not noticed that some filing was missing or realised that there
was a pile of rubbish on her desk that she did not expect to be there.30
She did not throw the documents in the Bin on purpose.31 It was a mistake.32
The documents had been scanned and associated on the system so that there was no
loss to the Bank had they been destroyed. They were just for filing.33
In relation to the additional signatory authority forms, Ms Repici would look it up in
the system and, if the system had been updated, there would generally be no need to
look in the paper file.34 It was stated that, basically, everything is on the system.35 If
Ms Repici was not happy with the signature and the ID that was provided, or the
system had not been updated, she would refer to the paper file. If the ID photograph
was not in the file, she could not check it.36
Statutory declarations were not scanned into the system.37
Ms Repici did not know the date she had put the documents in the Bin but said it
would have been any time leading up to the day they were discovered. It could have
been any time because they use the Bin every day. As she had changed desks with
her colleague, it could have been any time after that.38
Ms Repici had not/did not believe that she had thrown out all of the documents in
one hit. She had been cleaning out her desk over several days (a week) and doing
little bits and pieces (in dribs and drabs).39 She might have taken a bit more than 5 -
6 documents at a time as she still had stuff at the other desk as well.40
She did not necessarily take a lot of documents all at the one time to the Bin. She
believed that the pile was from both desks as she was moving between desks. She
thought some were from her drawer and some from the top.41
If she had taken all of the documents in one large pile to the Bin, they would not
have fitted in the slot all at once. She could not recall ever going to the Bin with big
30 Ibid PN 175 - 181
31 Ibid PN 139, 231 and 334
32 Ibid PN 222
33 Ibid PN 95 and 395
34 Ibid PN 121 - 122
35 Ibid PN 127
36 Ibid PN 124 - 126, 131, 135 and 399 - 402
37 Ibid PN 397 - 398
38 Ibid PN 182 - 185
39 Ibid PN 197 - 201, 283 and 323
40 Ibid PN 204 - 205
41 Ibid PN 314 - 317
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wads of documents such as the ones in question. Rather, it was dribs and drabs
throughout the day and, when she got a chance, she would clear out her desk.42
“Did you by any chance check each document before you put them in the bin? No, I
didn’t.
Okay. Could I just ask you why you didn’t? Why I threw the documents away?
No, why you didn’t check them before you put them all in the bin? Obviously
because I thought it was a rubbish pile.
But if you had checked the document would have realised what they were? Correct.
Do you usually check any documents before you put them in the bin? Yes, I do. I
didn’t knowingly throw the documents away.
So when you go to the bin you usually check before you put them in the bin, is that
what you’re saying? Yes, even if I’ve thrown them in the bin below - because we’ve
got two bins. We’ve got one for rubbish, like I said, and one for - even if I have
thrown it in there, when do get to the security bin I double-check before I chuck them
in there.
So usually you double-check? Yes.
Why didn’t you double-check on this occasion? Because I thought it was a rubbish
pile that I had and I thrown them all in because at my other desk, my scanning
drawer is actually located at the bottom and at teller two where I was it was in the
middle. So grabbing the middle pile, believing that that was the rubbish drawer.
Okay. But if you usually check - you just said that you usually check a document
before you put it into the bin; wouldn’t you also check it before you put it in the ?
Obviously I haven’t. They’ve been found in the middle.
Okay. From you saying that, that you didn’t on that occasion check might you have
accidentally thrown some documents into the bin before, by mistakenly believing it
was rubbish? I don’t believe I have, no.
Why not?---Well, because I generally double-check everything I throw away.”43
She did not believe that she had thrown anything out by accident in the past. It was
possible but highly unlikely.44
It was pointed out that Ms Caramalis had been going through the Bin to look for
something she had thrown in the Bin.45
42 Ibid PN 325 - 332
43 Ibid PN 206 - 216
44 Ibid PN 215, 223 and 230
45 Ibid PN 226 - 227
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She disagreed with Mr Kelidis’ and Ms Gatti’s statements where they said that she
had said that work piled up and she got busy.46 Ms Repici stated that Mr Kelidis was
the only one present at the time and that Ms Gatti was only repeating what she had
been told by Mr Kelidis.47
19 November 2014
During the meeting with Mr Kelidis and Ms Gatti (on the telephone) on 19
November 2014, Ms Repici recalled telling Ms Gatti that she was busy, work had
piled up and she had mistakenly thrown the documents away by accident when she
was clearing her desk. She denied saying that she had thrown them out because she
was busy and wanted to clear her desk.48 It was stated that Mr Kelidis and Ms Gatti
had twisted what she had said and she confirmed that she had said “by accident”.49
She had previously accidentally put something in the Bin and, when back at her
desk, had realised what she had done and so had run to the Bin and grabbed it out.
This time, she had not realised it.50
If she was taking one page to the Bin, she would notice whether or not it was
rubbish. However, if she had grabbed a pile of documents and thrown them in
without looking at them, one would not know what was in them.51
She had admitted to Mr Kelidis, during the first meeting on the day the documents
were discovered, that she had made a mistake by throwing them away.52
She confirmed that she called Ms Mayson, on 19 November 2014, and told her that
she had accidently thrown the documents in the Bin.53
It was confirmed that the Oakleigh Branch was always busy and it was said to have
been constantly short staffed.54
Ms Repici confirmed that, probably twice a week, she would leave work early. She
would ask Mr Kelidis if she could go early and he would ask if she had any work
that still needed doing. She would say one or two files but Mr Kelidis would let her
go home because he knew of her mother’s condition.55
The filing had built up over time and with the change of desk, she took it from one
desk to the other. If she had to take her mother to a medical appointment at 5.00pm,
Mr Kelidis would let her go earlier as time in lieu. She was allowed to leave early as
46 Ibid PN 241 - 242
47 Ibid PN 243 - 247
48 Ibid PN 248 – 250, 420 – 423, 430 - 431, 501 – 503, 600, 602 and 610 - 611
49 Ibid PN 252 - 256 and 334
50 Ibid PN 380 - 384
51 Ibid PN 377 - 378
52 Ibid PN 424 - 425
53 Ibid PN 433 - 435
54 Ibid PN 443 - 450
55 Ibid PN 359 - 466 and 474
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long as she completed her work before the normal start time the next day. If she
could not get it done, it would sit in her drawer and she would get to at some time
during the day.56
(ii) Ms Caramalis-Theodoropoulos’s evidence
[40] Ms Caramalis provided a witness statement57 and also gave oral evidence. It was Ms
Caramalis’ evidence that it seemed to her that Ms Repici had deliberately placed the
documents in the secure Bin.58 Her view was that it was very hard for so many documents to
be thrown out when there are not that many mistakes made on original documentation which
would result in so many documents being thrown away daily. Ms Caramalis thought that
there might be one or two.59
(iii) Mr Kelidis’ evidence
[41] Mr Kelidis gave oral as well as written evidence.60 Mr Kelidis’ evidence was that:
18 November 2014
At the meeting at the end of the day on 18 November 2014, he had asked Ms Repici
if the documents looked familiar and had then asked her why they were in the Bin.
Ms Repici had become quite upset and had said that she had disposed of them in the
Bin.61
When asked why, Ms Repici had become very upset and had blamed it on her being
busy and not being able to cope with her workload and the work piled up and she
wanted to clear her desk/drawers.62
His interpretation of what Ms Repici had said was that the easy way out for Ms
Repici, in terms of dealing with her workload, was to get rid of the files.63
His understanding from this was that Ms Repici had knowingly thrown the
documents in the Bin because Ms Repici did not say that it was a mistake or that it
was not deliberate.64
He did not clarify what Ms Repici had meant.65
56 Ibid PN 480 - 486
57 Exhibit R2
58 Transcript PN 947
59 Ibid PN 957
60 Exhibit R3
61 Ibid at paragraphs 20 - 23 and Transcript PN 1078 - 1081
62 Ibid at paragraphs 23 - 26 and ibid PN 1082 - 1107 and 1125 - 1133
63 Ibid PN 1149
64 Ibid PN 1098, 1134 - 1135, 1148 and 1150
65 Ibid PN 1050
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He was unaware, until the hearing, of Ms Repici’s claim that she and another
colleague were changing desks at the time. Ms Repici had not told him this on either
18 or 19 November 2014.66
Ms Repici left early at times but he was unaware that it was because she had elder
care responsibilities. He would ask Ms Repici if everything was up to date and she
would answer “yes”.67
19 November 2014
At the meeting first thing in the morning, Ms Repici had given the same reasons for
why she had thrown the documents out as the day before. She had not said that she
had thrown them out by mistake.68
During the subsequent meeting that day (with Ms Gatti on the telephone), Ms Repici
was emotional and had said that she had thrown the documents away on purpose/had
knowingly disposed of the documents in the security Bin.69
(iv) Ms Gatti’s evidence
[42] Ms Gatti’s oral and written evidence70 was that, during the meeting on 19 November
2014:
Ms Repici provided an explanation for why she had put the documents in the Bin.
Ms Gatti gave a number of different variations of what Ms Repici had said - she was
feeling under pressure and she wanted to clear her desk / she was under pressure,
needed/wanted to clear her desk and that she put the documents in the Bin71/she was
feeling stressed, was under pressure, she just wanted to get them off her desk so she
put them in the Bin72/ she was busy, feeling stressed, had a lot of work on her plate,
didn’t know why she did it, just wanted to clear her desk, she just threw them and
panicked.73
Ms Repici could not explain why she was feeling under pressure but said that she
had put them in the Bin.74
Ms Repici did not mention that she and a colleague were changing desks.75
Ms Repici, several times, said that it was a mistake that she put the documents in the
Bin.76
66 Ibid PN 1137 - 1138
67 Ibid PN 1182 - 1188
68 Ibid PN 1205 - 1209 and Exhibit R3 paragraph 49
69 Ibid PN 1220 - 1227 and ibid at paragraph 59
70 Exhibit R4
71 Transcript PN 1352 – 1362, 1365 – 1367, 1410, 1423 – 1425 and 1477 - 1484
72 Ibid PN 1413 and 1416
73 Exhibit R4 at paragraphs 10 - 11
74 Transcript PN 1367 - 1368
75 Ibid PN 1414 - 1415
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Her impression of Ms Repici’s intentions, in putting the documents in the Bin, was
to take the pressure off by no longer having the documents on her desk so that no
one could tell that she had a backlog.77
Ms Repici did not say that she had accidentally put the documents in the Bin nor that
she did it on purpose.78
(v) Ms Mayson’s evidence
[43] Ms Mayson gave both oral and written evidence79 as follows:
Ms Repici called her on 19 November 2014 and told her that she was going to lose
her job because she threw some things out into the Bin. She said that the things she
had thrown out were not supposed to be thrown out.80
She did not know that it was deliberately done but it was an act that should not have
occurred, particularly as Ms Repici had had five years in banking.81
It was her impression that Ms Repici had thrown out all of the documents at the
same time.82
[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.
76 Ibid PN 1427 - 1430
77 Ibid PN 1438
78 Ibid PN 1477 - 1478 and 1502 - 1504
79 Exhibit R5
80 Ibid at paragraph 4 - 5 and Transcript PN 1555, 1557 and 1559
81 Ibid PN 1570 - 1572
82 Ibid PN 1576
[2015] FWC 4571
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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.
[48] Accordingly, it follows that, pursuant to section 385 of the Act, Ms Repici was
unfairly dismissed.
REMEDY
[49] Section 390 of the Act sets out when the Fair Work Commission may order a person’s
reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) The FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) The FWC is satisfied that reinstatement of the person is inappropriate; and
(b) The FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.”
[50] With respect to the requirements of section 390, I am satisfied that Ms Repici was
protected from unfair dismissal at the time of her dismissal (section 390(1)(a)) and that she
has been unfairly dismissed (section 390(1)(b)). Further, Ms Repici has made an application
under section 394 of the Act (section 390(2)).
[2015] FWC 4571
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[51] Section 390(3) states that the Fair Work Commission must not order the payment of
compensation unless two conditions have been met. The first condition is that the Fair Work
Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).
[52] Reinstatement was not sought by Ms Repici and it was the Bank’s view that
reinstatement would not be appropriate and would be impractical. This was on the basis that
there has been a loss of trust and confidence in Ms Repici. Taking into account all of the
circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Ms
Repici.
Compensation
[53] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in
all of the circumstances of the case, to order compensation. Taking into account all of the
circumstances of this matter, an order for payment of compensation is considered appropriate.
Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all
of the circumstances of the case. These criteria are:
“(2) In determining an amount for the purposes of an order under subsection (1),
the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have
been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal; and
(e) the amount of any remuneration earned by the person from
employment or other work during the period between the dismissal and the
making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the
person during the period between the making of the order for compensation
and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[54] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh
v Bradken Resources Pty Ltd83 (Haigh).). In Haigh, the Full Bench also referred84 to the Full
Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival
Supermarket85 (Sprigg). I respectfully adopt the approach taken in Haigh.
83 [2014] FWCFB 236
84 Ibid at paragraphs 10 - 12
85 (1998) 88 IR 21
[2015] FWC 4571
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Section 392(2)(a) - effect on the viability of the employer’s enterprise
[55] Neither party made submissions in relation to this subsection of the Act.
[56] There is no evidentiary basis before me on which to conclude that an award of
compensation would affect the viability of the employer’s enterprise.
Section 392(2)(b) - Applicant’s length of service
[57] Ms Repici commenced with the Bank on 7 May 2012. Her length of service was
therefore about 2 and a half years.
[58] In relation to the requirements of section 392, this is a neutral factor.
Section 392(2)(c) - remuneration likely to have received
[59] Ms Repici did not make any submissions on this subsection. For the Respondent’s
part, it was stated that it appeared from the Applicant’s submissions, that Ms Repici was not
happy during her employment with the Bank, which was therefore said to raise the question of
how much longer she would have remained in employment.86
[60] There is no evidence before me that Ms Repici was planning on leaving the Bank any
time soon. Ms Repici’s caring responsibilities for her mother may be a contributing factor in
this regard. I agree with the Bank that Ms Repici appears to have not been happy at the
Oakleigh Branch of the Bank. In all of the circumstances of this matter, I have formed the
view that, had Ms Repici not been dismissed, it is likely that her employment would have
continued for a further year.
[61] For the purposes of the calculations, in accordance with the Sprigg principles, it is
determined that the remuneration likely to have been received by Ms Repici would have been
one year.
[62] This results in a provisional amount of $42,979.32 (based on $826.53 per week).87
Section 392(2)(d) - efforts to mitigate loss
[63] In her Closing Submissions, Ms Repici stated that, as at 23 March 2015, she had made
167 job applications but had been unsuccessful in obtaining alternative employment. During
the hearing on 2 March 2015, it was Ms Repici’s evidence that she had made 152 applications
via Seek and WISE Employment, a job agency in Cranbourne. She had met with the agency
four times and explained that she felt that her attempts to get another job were being
hampered because she did not have a statement from the Bank that she had done a good job.
Ms Repici stated that at least 10 prospective employees had contacted her referees.88
[64] It is noted in the Bank’s Closing Submissions that Ms Repici provided no evidence of
her attempt to seek alternative employment.
86 Closing Submissions of the Respondent, dated 24 April 2015, at page 12
87 Exhibit R1 at questions 2a and 2b
88 Transcript PN 504 - 526
[2015] FWC 4571
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[65] Therefore, Ms Repici is directed to provide, to the Commission and to the Respondent,
documentary evidence of the efforts she has made to obtain alternative employment. This
information is to be provided by Friday 24 July 2015.
Section 392(2)(e) - remuneration earned and income reasonably likely to be earned (section
392(2)(f)
[66] The Bank advised, in its Closing Submissions, that, on termination, Ms Repici was
paid one month (4.33 weeks) in lieu of notice.89 This amounts to $3,578.87 which will be
taken into account.
[67] In addition to the payment in lieu of notice by the Bank, there is no evidence before
the Commission in relation to any other remuneration earned between 20 November 2014 and
the date of this decision (8 July 2015). Therefore, Ms Repici is directed to provide, to the
Commission and to the Respondent, evidence of any other remuneration earned between 20
November 2014 and 8 July 2015. This information is to be provided by Friday 24 July 2015.
[68] It should be noted that the Centrelink payments disclosed by Ms Repici during her
evidence90 and in her Closing Submissions91 are not taken into account by the Commission in
determining the amount of remuneration earned.
Section 392(2)(g) - other matters
[69] It was submitted by the Bank that the Applicant is young and has an employment
history with experience gained from a variety of roles in different industries which she could
apply and offer future workplaces.92
Section 392(3)
[70] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s
misconduct contributed to the employer’s decision to dismiss the person, the Commission
must reduce the amount it would otherwise order.
[71] No specific submissions were made by the Bank in relation to this section except that
it was the Bank’s strong view that no compensation should be awarded to Ms Repici. As the
Commission has found that Ms Repici’s actions, in throwing the documents into the Bin, were
a serious breach of procedures, and therefore misconduct, I am required to reduce the amount
the Commission would otherwise order. I therefore propose to reduce the amount by 40%.
Contingencies and taxation
[72] There were no submissions from either party on this issue. As the anticipated period
of employment has not yet passed (19 November 2015), it is proposed to make a deduction of
20% for contingencies.
89 Closing Submissions of the Respondent, dated 24 April 2015, at page 11
90 Transcript PN 520
91 Closing Submissions of the Applicant, dated 23 March 2015
92 Closing Submissions of the Respondent, dated 24 April 2015, at page 12
[2015] FWC 4571
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[73] The impact of taxation has been considered and a gross amount will be settled on.
Section 392(4) - shock or distress
[74] No part of the provisional compensation amount relates to any shock or distress
suffered by Ms Repici.
[75] With respect to section 393 of the Act, there were no submissions that any amount of
compensation should be subject to payment by instalments.
[76] Once the information requested from Ms Repici is to hand, it will then be possible to
finalise determination of the amount of compensation in lieu of reinstatement. A further
decision and order, in regard to compensation, will be issued within two weeks of receipt of
the information.
Appearances:
Ms P Repici on her own behalf
Ms M Khoury from the Respondent
Hearing details:
2015.
Melbourne:
March 2.
Final written submissions:
Applicant, 23 March 2015
Respondent, 24 April 2015
Applicant, 27 April 2015
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Price code C, PR569134
THE FAIR WORK - AUBTRAJ AMMISSIONE AL GALP NOIS THE
