1
Fair Work Act 2009
s.394—Unfair dismissal
Kylie Smith
v
Bank of Queensland Ltd
(U2020/7223)
DEPUTY PRESIDENT ASBURY BRISBANE, 4 JANUARY 2021
Application for an unfair dismissal remedy.
Background
[1] Mrs Kylie Smith (the Applicant) applies under s.394 of the Fair Work Act 2009 (the
Act) for an unfair dismissal remedy in respect of her dismissal by Bank of Queensland Ltd
(the Respondent/BOQ). The Applicant was employed by the Respondent for a total of some
11.5 years in two periods from November 2005 to January 2009 and February 2012 to May
2020. The Applicant was dismissed on 8 May 2020. At the time of her dismissal, the
Applicant held the position of Branch Manager, Nambour. The dismissal was as a result of
the Applicant mistakenly transferring an amount of $37,500.00 being the final draw down
from an owner/builder construction loan account held by a BOQ customer, to an account with
the Commonwealth Bank of Australia (CBA) operated by a person who had fraudulently
intercepted the emails of the BOQ customer.
[2] It is not in dispute that the Applicant authorised the transfer in error as a result of the
conduct of a fraudster and that the Applicant did not behave in a manner that was dishonest
and nor did she benefit in any way from the erroneous transaction. It is also not in dispute that
only $7,500 of the amount was recovered by the Respondent.
[3] The Respondent dismissed the Applicant following an investigation which concluded
that the Applicant had: breached significant bank policies; failed to identify a risk to the
customer and to follow steps to protect the Bank from risk which resulted in a loss of some
$30,000.00. It was also determined that the Applicant had demonstrated a pattern of
behaviour and conduct that did not align to the inherent requirements of the Applicant’s role
and that the Bank had lost trust and confidence in the Applicant.
[4] The Applicant contends the dismissal was unfair given she was not trained in a lending
capacity, the transaction was an innocent mistake, and the circumstances did not warrant a
loss in trust and confidence to satisfy a valid reason for dismissal by the Respondent. The
Applicant also contends that a number of mitigating factors were not taken into account in the
decision to dismiss her, including: the increase in foot traffic into the Nambour Branch as a
result of the COVID-19 Pandemic; the fact that she was due to go on leave and was under
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DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 4
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pressure to finalist the loan; and her 8 years of unblemished service at the time of her
dismissal, including a positive performance review shortly before her dismissal.
[5] Section 396 of the Act requires that four specified matters must be decided before the
merits of the application may be considered. There was no contest between the parties
regarding these matters, and I find that:
(a) the application was made within the period required by s.394(2);
(b) the Applicant was a person protected from unfair dismissal;
(c) the Respondent was not a “small business employer” as defined in s.23 of the FW
Act; and
(d) the dismissal was not a case of genuine redundancy.
[6] As provided in s.397 of the Act, I decided to conduct a hearing on the basis that there
were disputed issues of fact and I considered this to be the most appropriate means to resolve
them. The hearing was held in Brisbane on 29 September 2020. At the hearing, the
Applicant was represented by Mr M White of Counsel who was instructed by Ms Bell of
Butler McDermott Lawyers, and the Respondent was represented by Mr J Wells of King &
Wood Mallesons. Permission was granted pursuant to s. 596 of the Act for both parties to be
represented on the basis that the matter involve some complexity and I was satisfied that it
would be more efficiently dealt with if the parties were represented and no issues of fairness
arose.
[7] The Applicant gave evidence on her own behalf at the hearing. Evidence for the
Respondent was given by:
Ms Amy Sun, Senior Financial Claims Officer, Financial Crimes Operations; and
Mr Brett Holland, Area Manager.
EVIDENCE
[8] The Applicant was employed by the Respondent as Branch Manager at its Nambour
Branch. As previously noted, the Applicant had two periods of employment with the
Respondent with her most recent period commencing on 14 February 2012, on a full-time
basis. At the time of dismissal, the Applicant’s annual income was $84,246.58 exclusive of
superannuation and performance bonuses.
[9] The evidence in relation to the fraudulent transaction can be summarised as follows.
In 2018, a builder (the customer) took out a construction loan with the Respondent, which
involved the customer drawing down periodic sums to pay for the work as it progressed. At
the time of the fraudulent transaction, there was a single drawdown remaining in the loan, to
the sum of $37,500. The Applicant stated that on 30 January 2020, Ms Karen Hartley,
Lending Performance Manager for the Respondent, instructed the Applicant to finalise a
“final progress payment” for the customer’s home loan file. The home loan file was written
by Ms Sonia Shead.
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[10] The Applicant had not previously worked with an owner builder construction loan and
stated that she informed Ms Hartley of this and sought her assistance as she did not know how
to finalise the progress payment as required. Ms Hartley attended the Nambour Branch in
March 2020, to assist the Applicant with the transaction. Ms Hartley explained that the
Applicant was required to obtain approval from the Respondent’s Retail Credit department.
Ms Hartley drafted an email on the Applicant’s computer, addressed to Retail Credit and
seeking approval for a final progress draw of $37,500.00 to be released. This email was sent
under the Applicant’s electronic signature.
[11] On 4 March 2020, Mr Robert Pozzebon, Retail Credit Officer, responded to the
Applicant’s correspondence, seeking further information and a property valuation. The
Applicant said this correspondence confused her and she felt the transaction was outside her
capabilities and the tasks she had been trained to perform. On 6 March 2020, the Applicant
sent reply correspondence to Mr Pozzebon, seeking clarification of what was required of her.
[12] On 20 March, the Applicant asked Mr Matt Needham, Lending Manager for the
Respondent, to order a construction stage valuation as she did not know how to undertake this
task. Mr Needham ordered the valuation as requested which was received and the valuer
telephoned the Applicant to discuss the valuation and noted the costs to complete the
outstanding works would be $37,500.00.
[13] On 23 March, the Applicant emailed the valuation to Mr Pozzebon for approval, and
Mr Pozzebon replied that day, approving the release of the final progress payment in the sum
of $37,500.00 to the customer. On 24 March, the Applicant forwarded Mr Pozzebon’s email
of 23 March to Ms Hartley. Between 25 and 27 March, Ms Hartley attended the Nambour
Branch during which time the Applicant asked her whether she should now move on to the
funding stage. Ms Hartley directed that she should.
[14] The Applicant telephoned the customer to advise that the final progress payment had
been approved and asking him to send through an email with a tax invoice for payment. She
did not receive an email from the customer and followed up with an email again requesting
the tax invoice. The customer replied by email on 1 April 2020, at 6.35 am stating: “Hi Susie,
I thought I sent it to Alex last week. Not sure where it went”. The following appears at the
foot of the email: “Sent from Mail for Windows 10.” The attached invoice sets out details of a
Bank of Queensland Account. The Applicant emailed the customer at 9.14 am on 1 April
2020, confirming receipt of the invoice and advising that the team member he had originally
sent it to was on annual leave.
[15] On receipt of the tax invoice, the Applicant located the progress payment request form
from the customer’s lending file. The Applicant stated that she checked the signature on the
Bank’s “Records Manager” program which determined that it was a match and proceeded
with completion of the form. The Applicant stated that she received another email a few
minutes later, advising of a change of bank account. That email was sent at 11.05 am and was
in the following terms:
“Hi Susie
Please i need you to hold on with payment for tax invoice if not yet made as i have just checked with
account and have just been advised that we are missing on some payments and we are trying to trace.
So we are moving all pending invoice payments to our business savings account until situation is
resolved.
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Please confirm receipt.”
[16] The email did not contain a reference to it being sent from Mail for Windows 10. It is
common ground that this email was the first fraudulent email received by the Applicant. The
Applicant responded to the first fraudulent email at 12.18 pm on 1 April stating that she had
completed the paperwork but had not lodged it and seeking confirmation as to whether the
customer wanted her to fund the final payment to a different account or “not at all at this
stage.” At 4.11 pm the Applicant received a further email – the second fraudulent email –
stating: “Hi Susie, Kindly proceed with payment to my business savings account” and setting
out details of a CBA account said to be in the customer’s name. The email concluded with:
“Please forward payment remittance as soon as payment is processed so i can look out for it.”
The second fraudulent email also did not include a footer stating that it had been sent from
Mail for Windows 10.
[17] The Applicant responded to the second fraudulent email at 9.10 am on 2 April 2020
stating that the tax invoice would need to be amended to reflect the change to the account and
requesting that it be amended and emailed to her. At 9.23 am the Applicant received a third
fraudulent email stating that a copy of the tax invoice was attached and concluding: “kindly let
me know when payment has been processed.” Again, this email did not include a footer
stating that it had been sent from Mail for Windows 10. The email also attached a fraudulent
tax invoice which was in identical terms to the original and authentic invoice sent on 1 April
2020, except that the reference to the BOQ account had been removed and replaced with a
reference to a CBA account. The name of the CBA was incorrectly spelled on the invoice as
“CommonWealth”.
[18] The Applicant amended the “progress payment request form” in accordance with what
she thought were the customer’s instructions. The Applicant stated that on 1 April 2020, she
logged into the Respondent’s “Support Point” site and read through the procedure for
progress payment authority. The procedure stated that the progress payment authority form
needs to be signed by an “Authoriser” who holds a Delegated Approval Authority (DAA) and
must have a different person as “Preparer” of the form. As the only employee at the
Nambour Branch holding a DAA, the Applicant proceeded to sign the form as Authoriser and
asked her colleague, Ms Leanne Condren, Customer Relationship Specialist, to sign the form
as Preparer.
[19] Under cross-examination at the hearing, the Applicant maintained that as the only
DAA holder, she had no option but to sign the progress payment authority form in that
capacity, and that she had “talked Leanne [Condren] through the form and asked her to sign
it”. In response to a question as to why the same person could not be preparer and authoriser,
the Applicant stated that “in hindsight, you're checking your own work”. The Applicant also
had the following exchange with Mr Wells for the Respondent:
“So, if Leanne had no role on the transaction and wasn't really a preparer, she was sort of a stunt
preparer, doesn't that deprive the process of the two pairs of eyes that it's meant to have?---We talked
through it, but, yes, I mean in normal circumstances, the lender would complete that form. I didn't have
that luxury. I would always sign as the authoriser, but I didn't have a lender.
You could have signed a preparer and had someone else authorise it, it didn't have to be a branch-based
authorisation, did it?---It's not something I'd ever done before and, again, I've learned that after the fact
that we can send those forms to other branches.
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But, clearly, the solution wasn't to have a preparer that knew nothing about it, was it?---Done it before.
Well - - -?---And, in fact, on this file.
To replicate an error isn't to make it right, is it?---I didn't know it was wrong.
Does it not feel counterintuitive that someone who knows nothing about it is one of the two pairs of
eyes?---Well, we worked closely together for six years, but, yes, I see what you're saying, I definitely
should have not asked her to sign the form.”1
[20] While conceding that Ms Condren did not prepare the form the Applicant maintained
that Ms Condren signed it as preparer. The Applicant said that the first time she sent the form
she forgot to ask Ms Condren to sign it and it was sent back to the Applicant to get it signed.
Ms Condren signed the form and the Applicant resubmitted it.
[21] Further, the Applicant’s evidence was that there was no requirement, pursuant to the
Respondent’s procedure for progress payment authority located on “Support Point”, to
telephone the client. At the hearing, the Applicant said that while she was aware of the
requirement that “if receiving request via letter, email or fax then…positively identify a
customer over the phone”, when she performed a Support Point search on that day, it returned
a different result that did not require a call to be made. She said that “If Support Point said to
call him [the customer], I would have called him”.2 In this regard, the Applicant said that she
searched for and read the procedure for progress payment authorities and did not read other
general procedures.
[22] While accepting that the specific procedure for progress payment authorities did not
exclude other procedures relating to positively identifying the customer, the Applicant
maintained that she did not do this because the specific procedure did not require that she do
so. In response to the proposition that what she needed assistance with was the identification
of the customer, the Applicant said that she had no idea that she was not talking to the
customer and she needed help to complete the progress payment form. In response to the
proposition that she was in a hurry because she was going on leave, the Applicant said she
was surrounded by “crazy circumstances” and did the best she could.
[23] In response to the proposition that she would be required to verify a customer’s
identity if the customer had cash on deposit and sent an email asking for it to be transferred to
another bank, the Applicant said that emails are not accepted for that kind of transaction. The
Applicant also said that some lending transactions are different because the customer has
already been identified and that progress payments are the only type of transactions the bank
does via email with a tax invoice.3 The Applicant agreed that she did not positively identify
the customer by telephone on this occasion but had previously contacted the relevant
customer by telephone many times. The Applicant maintained however, that she had never
done that for a progress draw in the past, and had done three transactions of this kind
previously where she had received a tax invoice from the builder and emailed the customer to
seek approval to move forward with the payment and then completed the form and sent it off.4
In response to the proposition that this was not Bank policy, the Applicant said that this is
what she had been shown.5 The Applicant conceded that there are many ways she could
receive an email that was not from a genuine customer but said that it had never happened
before in her fourteen years with the Bank.6
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[24] The Applicant was also cross-examined regarding the statement in the first fraudulent
email that the customer was “missing on some payments” and had the following exchange
with Mr Wells for the Respondent:
“Didn't that send some alarm bells that if he's saying, ‘I don’t want money into that account now, I want it
to go to a foreign, competitor bank account because we’re missing on some payments’, isn't that a bit of
a red flag?---Nil. Nothing at the time.
But reading it now, the customer says they're missing some payments from their account or to their
account?---There is some background to that, but I'm not sure if you want to hear that or not.
I'm just wondering if you had received an email saying, ‘I'm missing some money from my BOQ
account, can you please deposit this drawdown to another account’?---Well, I've actually read that as in
people he's done work for have not paid him, not that money has gone missing from his BOQ
account. When I've read that, I've read, ‘We're missing on some payments and we are trying to trace’,
so they haven't actually hit the BOQ account. I can’t do anything to help him run his business.”7
[25] On 2 April 2020 the Applicant sent an email to the customer thanking him for his
response and booked in a time to “touch base” on her return from annual leave on 22 April
2020. Also on 2 April, the Applicant sent the signed progress payment request pages to the
Bank’s Drawdowns team. The Applicant commenced annual leave on Monday 6 April 2020
but said that her last day at work was Friday 3 April 2020. The Applicant continued to check
work emails on her mobile phone while on leave. During this time, she received a number of
emails from the customer’s account, but sent by the fraudster, querying why the payment had
not appeared in the CBA account. The first email was received on 3 April at 5.30 am and
asked: “if the payment have gone through”. The next email was received on 6 April at 7.01
am and queried how long it would take for payment to reach the CBA account. The Applicant
contacted the Drawdowns team by email who confirmed the payment was made and attached
confirmation of the payment details and this was confirmed this by email on that date.
[26] On 8 April 2020 at 7.08 am, the Applicant received a further email from the
customer’s account but sent by the fraudster, advising that the funds had not been received
and requesting payment confirmation so that a complaint could be made by the CBA. The
Applicant responded requesting that the customer check the invoice to ensure details were
correct. The fraudster responded again from the customer’s email account, at 8.52 am, stating
that a cross-check had been undertaken and the details were correct, and requesting the
transaction details to enable the payment to be traced. The Applicant sent a further email
requesting that the customer ask the CBA what it needed to conduct the trace and the
fraudster again responded from the customer’s email account requesting a payment or
transaction receipt of transfer containing transaction details, date of transfer and other
information.
[27] The Applicant also sent an email to the Drawdowns team, which responded
confirming that details of the account to which the money was paid matched the invoice
provided and that payment had gone through and had not been rejected. The Applicant said
that on 8 April 2020 she also telephoned Ms Asha Howlett-Arnold, Customer Relationship
Specialist at the Nambour Branch, requesting that she telephone the customer and provide
him with the confirmation details and the details for customer service. The Applicant
forwarded the emails from the Drawdowns team to Ms Howlett-Arnold. The Applicant said
that she did this because she was on annual leave and did not have the client’s contact details.
Under cross-examination it was put to the Applicant that she had received a series of
“frenetic” emails from the fraudster about not getting the money and that the Applicant had
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responded to those emails while on annual leave. In response to a question about why she had
not telephoned the customer at that time, the Applicant said that she was on annual leave and
should not have been working but had been checking her emails to assist her team. The
Applicant also said that she asked Ms Howlett-Arnold to contact the customer.
[28] On 8 April 2020 at 3.51 pm, the BOQ Financial Crimes Operations team received an
email from the CBA advising that the BOQ had deposited funds into a CBA account that was
suspected of being involved in fraudulent activity. This correspondence was brought to Ms
Sun’s attention that same day. A member of Ms Sun’s team contacted CBA that afternoon to
conduct a name check, and the CBA responded indicating that the name on the CBA account
was not a match to the Respondent customer’s name. Ms Sun’s team confirmed by email to
CBA early that evening that they were investigating the progress payment, and that it was
suspected there had been fraudulent activity. On 9 April 2020, Ms Sun’s team telephoned
CBA to make an official fraud report. That afternoon, Ms Sun’s team sent CBA an indemnity
covering their risk when recovering the funds for the BOQ.
[29] On 15 April 2020, Ms Sun attempted to contact the Applicant and left a voice message
requesting the Applicant to call her back urgently. The Applicant returned the call and was
advised there was an investigation underway regarding the progress payment for the client
and asking that the Applicant access her emails to assist with the investigation.
[30] The Applicant stated she contacted her Area Manager, Mr Holland, to advise him of
the call from Ms Sun. Mr Holland asked that the Applicant forward him the email from Ms
Sun but the Applicant stated that she could not locate the email. Mr Holland’s evidence was
that he first became aware of the transaction when Ms Sun contacted him to advise there had
been an incident and that an investigation was ongoing. Mr Holland stated he was not advised
the transaction involved fraud, as the Respondent’s policy is that investigations are conducted
without branch staff and Area Managers necessarily knowing the details.
[31] On 17 April 2020, the Applicant was sent a calendar invite to attend a teleconference
on 20 April 2020. Mr Russell Cornish, Manager Investigations – Fraud Investigations, was
the host and Ms Sun was also scheduled to be on the call. The meeting was titled “Fact
Finding”. The Applicant contacted Mr Holland by telephone on 17 April 2020, and according
to Mr Holland’s evidence, she sounded agitated, causing him to form a view that the
Applicant was worried about the meeting.
[32] The Applicant stated that during the telephone call with Mr Holland, he advised that
the customer’s email had been intercepted by fraud, and the progress payment had been made
to the incorrect account meaning the customer had not received the funds. The Applicant said
that Mr Holland assured her she had nothing to worry about and that the meeting was simply
to help with tracing the money.
[33] Mr Holland agreed in his evidence that he tried to put the Applicant at ease by telling
the Applicant she should not worry about the meeting and should instead focus on explaining
what she knew about the transaction. He denies stating the transaction involved fraud as he
states he was unaware of this at the time and knew very little about what was involved in the
investigation process or fact-finding meeting.
[34] The Applicant stated that while she did not request this, Ms Hartley was appointed as
her support person for the meeting of 20 April. Ms Hartley attended at the Branch with the
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Applicant for the telephone conference meeting, and they did not discuss the matter prior to
the meeting. Mr Cornish led the teleconference and asked the Applicant questions regarding
the events leading up to the funds being transferred. Mr Cornish also asked the Applicant to
provide all emails between herself and the customer, and to provide a statement of events.
The Applicant stated that she was advised the call was recorded.
[35] Following the meeting, the Applicant provided an account in writing of what had
occurred, in her own words. That account is generally consistent with her evidence to the
Commission in these proceedings and includes that:
Generally the task of completing the loan would have been undertaken by the Branch
Lending Specialist but there had not been a person in this role since the resignation
of the lender from the Nambour Branch in October 2019;
Another employee (Ms Goldspink) initially had discussions with the customer about
the final progress payment and reported to the Applicant that he was angry at the
suggestion that the funds may be released in instalments;
The Applicant reached out to the newly appointed part-time lender for the Branch
and asked him to order a valuation for the property as required by the Retail Credit
department;
The Applicant had telephone discussions with the customer between 16 and 20
March in which he expressed dissatisfaction at issues he had with having funds
released from the loan and why he was required to obtain a valuation for the final
payment which he saw as a “hassle” and stated that he had spent the other
drawdowns on landscaping and retaining walls which he thought would increase the
value of the house and enable him to obtain the final payment “with no questions
asked” as he had been informed by the previous lender; and
On 24 March the Applicant was informed that the Retail Credit department approved
the final payment being released and contacted the customer to inform him of this
and requested that he provide a tax invoice for that amount.
[36] The Applicant then outlined the email exchange with the genuine customer on 30
March 2020 in which she requested a copy of the invoice. In relation to preparation of the
progress draw request, the Applicant said in her written account:
“Within the lending file were completed progress payments which I removed, checked the signature
and proceeded to complete the progress draw request. Support Point makes note that this form needs to
be authorised by a DAA holder which is me so I asked Leanne to sign as preparer so I could sign as
authoriser.”
[37] In relation to the first fraudulent email, the Applicant said in her written account:
“I received a 3rd email from [customer] at 11.06 am instructing me to alter the account details for
payment as their BOQ account has payments missing, they are trying to trace them so don’t want any
more funds hitting that account until traces were resolved. This did not appear out of character in
comparing to our previous conversations/correspondence when he expressed his dissatisfaction with
BOQ with how we have conducted this construction loan and withheld the last payment for almost 2
years. I did however respond to [customer’s] email to confirm the new account or no payment at all to
which he responded ‘yes please to my Business Account’. With his written instructions I explained the
tax invoice needs to reflect the change also.”
[38] In conclusion, the Applicant stated in her written account:
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“Please note that the weeks between 23/03/20 – 03/04/20 we were experiencing the peak impact of
Covid-19. During this time at Nambour Branch our customers/transactions spiked to an average of 157
per day with the phones ringing off the hook on top. We were also lacking in staff with 2 team
members not present in branch.
The expectation from my Leader was to contact every home loan customer that settled in the last 2
years with urgency to check in with them and ask if they needed assistance through Covid-19. There
were many tears and fears and every customer I spoke with did actually need assistance with deferring
their mortgage payments which needs to be requested via IT assist plus input to CEP.
It was never my intention to do anything but assist [customer] with his final progress draw. Even
though I am inexperienced in this area of final progress draws I took on the task with the sole purpose
to provide a good outcome for the customer and the Bank. To this day I am stunned that I have been
tangled up in a scam and I would like to profusely apologise for my mistake. Never in my 15 years of
employment have I acted without integrity or made a mistake that resulted in a financial loss to the
Bank.”
[39] In relation to the effect of the COVID-19 pandemic, the Applicant said in her evidence
that the Nambour Branch of the Bank has an older customer base which does not like to do
on-line banking. The Branch had higher than usual foot traffic as customers came in and a
further issue was that they were seeking to withdraw large amounts of cash ranging from
$10,000 to $50,000 because they were panicking. The Applicant also said that the presence
of a QML facility next to the Nambour Branch resulted in people lining up outside the Branch
to be tested for COVID-19 and this placed additional stress on staff members. The Applicant
said that these matters were in her view, unique to the Nambour Branch.
[40] Ms Sun’s evidence was that she was appointed lead investigator to investigate the
progress payment, and that her role was to investigate how and why the funds from the
progress payment, intended for the Respondent’s customer, were transferred to a fraudulent
CBA account, and to determine if the fraud was contributed to by the actions of the
Respondent’s customer, and if not, whether the Applicant contributed to the fraud or loss. She
stated she was not involved in any HR review or disciplinary action.
[41] Ms Sun stated that as part of the investigation, the Respondent’s staff provided her
with emails between the Applicant and the customer in relation to the progress payment. She
annexed these emails (the contents of which are described above) to her witness statement
filed in these proceedings. Ms Sun identified that emails apparently sent by the customer to
the Applicant between 1 April 2020 and 8 April 2020 were all sent by a fraudster presenting
as the Respondent’s customer. In relation to the fraudulent emails, Ms Sun’s report identifies
the matters including:
Characteristics (Grammar, format, layout and wording) are not in line with previous
emails sent by the genuine customer;
The genuine emails from the customer have “Sent from Mail for Windows 10” in the
body of the email while none of the fraudulent emails include this;
Both genuine emails had headers with an X-Authentication which the fraudulent
emails did not have; and
Both genuine emails had a Domain, ISP Mobile Carrier showing Telstra whereas the
two fraudulent emails used other domains.
[42] Ms Sun’s report also identified that despite the email of 1 April claiming account
issues and funds going missing there were no signs in internal reporting systems that such
issues had been reported to BOQ and “Smith with her 15 or so years with BOQ and being
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Manger of a branch made no attempts and failed to call [customer] to assist with rectifying
the situation of the ‘missing funds’”. Ms Sun’s report states that had a call been made or an
attempt to assist the customer with the “missing payment” it would have been established that
there were no missing payments and that the email had been sent by a fraudster. Ms Sun also
made findings that:
The Applicant’s claim that she had not spoken to the customer since 3 April was not
credible and that all correspondence had been via email since 1 April 2020 with no
calls being made by the Applicant to the customer between 1 and 3 April;
The Applicant had failed to complete a new Progress Payment Authority form when
the tax invoice was received from the customer and used a pre-signed form from the
file which indicated that the forms had been signed in advance when the lending file
was established rather than in stages;
The Applicant had failed to obtain a signature or initials from the customer when
amendments were made to the date and payment details of the pre-signed Progress
Payment Authority form and made no attempts to telephone the customer to confirm
the account number, despite his phone number being recorded on the form; and
The Applicant failed to raise questions or telephone the customer regarding the
change in bank details even though all previous progress payments had gone into a
BOQ account.
[43] Ms Sun’s report also stated:
“The ‘Progress Payment Authority – Branch Processing Checklist’ form is meant to be prepared by a
‘Preparer’ and then given along with all relevant documentation to an “Authoriser’. In this case
CONDREN is listed as the ‘Preparer’ and SMITH is the ‘Authoriser’, however it is evident that
CONDREN had no involvement in preparing this form and SMITH had solely prepared the form and
associated paperwork and also neglected to obtain CONDREN’s signature”.
[44] Ms Sun’s recommendations were as follows:
[Customer] is to be reimbursed for the full amount of the Final progress payment of
$37,500 from FCO Cost Centre, Non-Lending loss account initially.
Any recovery of funds from CBA to be credited back to FCO Cost Centre Non-
Lending loss account;
Any difference in the loss of funds incurred by FCO’s Cost Centre as a result of this
case is to be reimbursed by a Cost Centre linked to the Nambour Branch as it was
identified that the Nambour Branch staff had failed to follow procedure which
resulted in the loss.
Area Manager Brett Holland to liaise with People and Culture regarding the
appropriate action to be taken against SMITH for her failure to follow correct policy
and procedure.
An Operational Risk Incident is raised so that the Operational Risk Team can
conduct further review on the actions and/or lack of actions taken by Nambour
Branch.
BOQ staff to be better educated on scam awareness and fraud activity.
[45] Ms Sun conceded under cross-examination that her conclusion that the Applicant had
falsely stated that she had not spoken to the customer since 3 April was based on a
misunderstanding about what the Applicant said.8 Ms Sun also conceded that not all the
matters identified in her formal Report would have been apparent to a receiver of the
[2021] FWC 4
11
fraudulent emails, such as “authentication data” sitting behind the face of the email and said
that this was included in the report as evidence important to the final conclusion that the
emails came from a source different to the customer’s normal email account and therefore
was consistent with fraud. Ms Sun said that some matters such as the language and
punctuation in the emails, and the absence of the signoff “Sent from Mail for Windows 10”
were apparent on the face of the emails.
[46] Under cross-examination, Ms Sun agreed that the first fraudulent email was actually
sent from the customer’s email address, and that there was nothing on the face of the first
fraudulent email to indicate that it was being sent from an address other than the email
address of the customer. In relation to how the fraud works, Ms Sun said:
“So when the email - so the email did actually come from [customer’s] email address, but because it
was intercepted, when it was intercepted, it would have been then, I guess, forwarded to another email
account where the fraudster would have been able to manipulate the email and then, once they're done
with it, they will then, I guess, move it back and then have it sent from the actual, I guess, original email
account. So, essentially, the email did still come from [customer’s] email account.”9
[47] Ms Sun also had the following exchange with Counsel for the Applicant:
“For the recipient of that email, there's nothing to indicate it wasn't sent from his email
account?---Aside from the way it was structured, the actual email, and the lacking of the ‘Sent from
mail for Windows 10’ and also just the layout because normally with [customer's] emails, they're very
short and blunt whereas this one's very, I guess, well set out and quite polite as well, which was not how
[customer] would normally conduct himself.
It's also sent within an existing email chain; is that correct?---Yes.
So that below email there, ‘Hi Suzie, I thought I sent it to Alex last week’, that's a legitimate email from
[customer], isn't it?---Yes.”10
[48] Ms Sun also made concessions under cross-examination that the genuine invoice and
the fraudulent invoice were virtually identical other than the inclusion of the CBA account
number on the fraudulent invoice. Ms Sun agreed that there was nothing on the face of the
second fraudulent invoice alone that would indicate anything out of the ordinary when
compared to the documents the customer had submitted previously aside from the inclusion of
CBA details.11 Further, Ms Sun conceded that a person may send an email from their email
account, but using a different app or device which would change the notation at the bottom,
for example so that it would not state that it was “Sent from Mail for Windows 10”.12
[49] Ms Sun also gave evidence that:
The matters she identified as “going on behind the scenes” of the fraudulent email
would not have been apparent to the Applicant as the recipient;
The Applicant was unknowingly corresponding with a fraudster; and
There was no suggestion that this was anything other than a mistake on the
Applicant’s part.13
[50] Ms Sun conceded with respect to matters identified in her report as indicative of fraud
such as language, punctuation and sign off, that the Applicant may not have had sufficient
source material to enable a comparison on which to base that conclusion.14 In relation to her
recommendation that more training be provided to staff, Ms Sun said that the more staff know
about “this sort of thing” the less fraud can occur. Ms Sun also agreed that the lack of
[2021] FWC 4
12
education of branch staff gave rise to the issue “from a scam perspective”.15 In response to
the proposition that if better education had been provided by BOQ the situation leading to the
Applicant’s dismissal would have been avoided, Ms Sun said that BOQ has invested “quite a
bit” in educating, especially branches, given the increase in scams seen over the past year or
so. Ms Sun was not aware of training that had been conducted with respect to staff at the
Bank’s Nambour Branch. Ms Sun had the following exchange with Counsel for the Applicant
in cross-examination in relation to her recommendation about further training being provided:
“Why did you recommend that further training? In terms of training with regards to spreading the
awareness. So, the more I guess staff know about this sort of thing, the less fraud can occur to
customers.
Did you identify that this was an issue of education that gave rise to the issue, a lack of education of
branch staff? From a scam perspective, yes.
So if there was better education provided by BOQ, this could have been avoided; is that what you're
saying? BOQ have invested quite a bit in educating staff, especially branches as well, given, I guess,
the increase in scams that we have seen over the course of the last year or so.
Can you comment personally on the training that's provided to the staff at the Nambour branch? I
couldn't comment personally, no, sorry.
What other measures does BOQ have in place to recognise fraudulent emails of this type? I don't think
we have - I don't think there's really any way of being able to monitor this sort of activity, yes.
You say this can only be identified in hindsight? Yes. Oh - yes, yes”. 16
[51] Ms Sun also agreed that to a recipient of the fraudulent email of 1 April 2020 it would
not on its face look like it was sent by anyone other than the customer. Further, Ms Sun
agreed that in relation to her conclusions about the language and punctuation of the fraudulent
email, there was not enough source material for the Applicant to have made a comparison and
reached this conclusion. Ms Sun confirmed that on 23 April 2020, CBA credited the
Respondent’s account for the recovered amount of $7,000, with the other $30,500 having
already been disbursed. She stated that CBA did not provide any information as to how those
lost funds were disbursed.
[52] At the conclusion of the investigation, Mr Holland was provided with a copy of Ms
Sun’s report dated 28 April 2020. The report stated that the transaction had involved fraud
and on the basis of matters raised therein, Mr Holland was concerned regarding the way the
fraud occurred. Mr Holland stated the report was not an investigation into the Applicant,
rather it was for the fraud team to identify whether there had been fraud on the customer’s
account and if established, how the fraud had occurred. In Mr Holland’s view, there were a
number of “red flags” which should have alerted the Applicant to the fraud before the
progress payment was made.
[53] Mr Holland’s evidence was that the first point of suspicion related to the fraudster’s
email of 1 April 2020, which was written in an odd, “challenged language”, and in a style that
did not match the other emails sent by the Respondent’s builder customer. The email asked
for payment to a different account referred to as a “business savings account” as “we are
missing on some payments”. Under cross-examination Mr Holland conceded the format and
style alone might not attract suspicion, but stated that in the banking industry, there is an
increased sense of risk and staff are trained accordingly to watch out for fraud. Mr Holland
also agreed that it could be the case that when the Applicant received the fraudulent email, she
[2021] FWC 4
13
did not have much of the customer’s writing style to compare it to.17 Mr Holland was also
shown a quote provided to the Bank by the real customer where in the word “Quote” was
incorrectly spelled as “Qoute” and agreed that it could be a typo or indicate that the real
customer had issues with spelling. In relation to the email from the customer stating money
was “going missing”, Mr Holland maintained that given that the customer was stating this in
relation to a BOQ account, the Applicant should have contacted the customer to find out what
was going on, and the Applicant did not do so.
[54] In relation to the correspondence from the fraudster, responding to the Applicant’s
request for an amended tax invoice with the changed bank details, Mr Holland noted that the
second (and fraudulent invoice) referred to the Commonwealth Bank as “CommonWealth
Bank”, which he said is suspicious.
[55] Mr Holland also conceded that the fraudster’s tax invoice appeared virtually identical
on its face – save for the bank details – to earlier invoices provided by the true customer.18
However he maintained that when the change of bank details was requested, further action on
the part of the Applicant was required and that he would have seen this as a red flag
prompting him to take a further step.19
[56] In this regard, Mr Holland’s evidence was that the Applicant authorising a change in
bank details without verifying the customer’s identify was inconsistent with the Respondent’s
protocol dealing with email requests, as set out in two procedures: “Action a Customer
Request not made in person” and “Positively Identify a customer over the phone”, which are
available to staff via “Support Point” an internal computer database which the Applicant had
consulted before finalising the transfer.
[57] Mr Holland stated that a transaction of $37,500 was a large value transaction, and in
accordance with the procedures, a value transaction is not permitted via email, and the
Applicant should have positively identified the customer over the telephone. His evidence was
that no customer requests received by email should be actioned in the way this transaction
was actioned by the Applicant. Without contacting the customer to verify identity, the
Applicant changed the customer’s details on a “pre-signed” Progress Payment Authority form
from 2018, where the only authority to change the account details was an unverified email.
Mr Holland stated that to change the form signed by the customer had the effect of certifying
that the customer had signed the form with that detail included, when this was not the case.
Further, in doing so, the Applicant breached the Respondent’s “Action a Progressive
Drawdown request” procedure, which was also available via the Bank’s Support Point site.
[58] Mr Holland stated that under the “Action a Progressive Drawdown request”
procedure, the Applicant should have requested the customer come into the branch and
complete a fresh form in relation to the change of account and that authorisation should not
have been taken either by email or by phone. In this regard, Mr Holland said that any time a
customer requests a change to their bank account details, it is BOQ’s policy that the customer
come into a branch to prove their identity and authorise the change. According to Mr Holland,
a customer’s account details should never be changed if authorisation is only provided by
email or telephone. Further, Mr Holland stated that the same form was authorised by the
Applicant in a way that was not intended, on the face of the form. First, it is a form signed by
the customer approving the contents. Second, the Applicant was the “Preparer” of the form
and had changed the payment details herself. The Applicant also signed the form as
“Authoriser” and named someone else, unconnected with the form, as “Preparer” and the
[2021] FWC 4
14
“Preparer” named on the form did not sign the form. The effect of this was that the
Applicant was telling BOQ that she was authorising what had been put in front of her by the
preparer and verified it as being ok, when in fact, the Applicant was verifying her own work.
[59] The form also purported that the Authoriser certified “Customer signatures on
Progress Payment verified”. Mr Holland stated this was not the case as the customer had
provided no signature to authorise the direction in relation to the progress payment being
transferred to a CBA account. As to the Applicant’s evidence that she was the only person at
the branch able to act as Authoriser, Mr Holland conceded this is technically correct, but
stated that the Applicant could have asked another branch manager or himself to authorise the
form. Mr Holland confirmed at the hearing that this means the Applicant should have gone
“outside the branch” to get another Branch Manager or himself as Area Manager to authorise
the form.20 Mr Holland conceded that this step did not appear anywhere in the policy,
however he confirmed his evidence that regardless, the preparer and authoriser of a form
should never be the same person.21
[60] In response to a question from me, Mr Holland agreed that there were two issues with
the Progress Payment Authority Form. Firstly, when the Form was originally signed by the
customer, it contained no details of any account (BOQ or other financial institution) into
which the payments were to be made. The Applicant inserted into the pre-signed form the
details of the customer’s BOQ account in her own handwriting and also changed the date on
the form from 26 June 2018 to 1 April 2020. After receiving the fraudulent email on 1 April
2020 the Applicant then inserted the details of the CBA account into the pre-signed form.
[61] Further as to the process followed by the Applicant and her reference to policies on
Support Point, Mr Holland gave the following evidence under cross-examination:
“If I understand correctly, you type into Support Point what you're looking for and then a relevant policy
should pop up?---Correct.
By reference to what you search for?---Correct.
But it's only going to pop up by reference to what you are searching for, isn't it?---That's correct.
There's no big stack of policies that sits on a desk. Is there a system where branch managers are trained
by reference to each of the policies?---Only when you actually conduct your initial modules. So, as a
CSO, you'd actually be taught on the module, on the policies at the time, et cetera, and, as you've
already stated, Suzie didn't do the lending policies.
So she wouldn't have gone through that process then?---Not the lending policy, no.
As we said before, the policies are found by inputting your specific search terms into Support Point, so
is it fair to say that unless you know there's a particular policy on a matter, you may not know to search
for it; is that fair?---I think it's fair to say that if you're unsure of anything, then you should be searching,
and if you can't get the search - if you can't find the response needed, then you go to someone else, your
immediate manager.”22
[62] Mr Holland also gave evidence that the loan file had been “red flagged” internally
because it had not been fully drawn down within 18 months of construction commencing.23
In relation to the process of putting allegations to the Applicant, on 5 May 2020 Mr Holland
arrived at the Nambour Branch around 3:30pm, unannounced. The Applicant said that Mr
Holland asked her to come and speak with him, and that he handed her a notice to attend a
formal meeting on 6 May 2020. The Applicant was advised she could bring a support person,
[2021] FWC 4
15
however she declined. Mr Holland then advised the Applicant that Ms Hartley would be
appointed as a support person for the meeting; and the Applicant requested that Ms Hartley
not come, given her lack of support on the last occasion. Mr Holland tendered a document
headed “Notice of Formal Meeting” which was handed to the Applicant on 5 May 2020. That
Notice sets out the allegations in detail and informed the Applicant that the matters are
considered serious and that if substantiated, may result in disciplinary action up to and
including termination of the Applicant’s employment.
[63] The allegations set out in the notice included that the Applicant changed the details on
the Progress Payment Authority form in cursive writing and provided instructions to the
Drawdowns team to release the funds. The allegations also included that the Applicant
corresponded with and accepted instructions from a fraudster who claimed that he wanted
payments redirected to a CBA account as he had “account issues involving funds going
missing” despite there being:
No signs of engagement notes in the My Client database suggesting the customer had
submitted a trace for the missing funds;
No signs that indicated issues with the Customer’s bank account; and
Characteristic (grammar, format, font, layout, structure and wording of the email)
identified in emails sent by the fraudster are all out of character and not in line with
emails sent by the customer previously.
[64] The allegations also included that when the Applicant received the email from the
fraudster on 1 April regarding account issues involving funds going missing, she failed to
check this or to contact the customer, despite having “15 or so years of experience with BOQ
and being Manager of a Branch” in circumstances where if such a call had been made, it
would have come to light that the email was sent by a fraudster. Other allegations were:
The Applicant’s failure to complete a new “Progress Payment Authority” form when
the tax invoice was received from the customer;
The Applicant’s use of a pre-signed request form dated 25 June 2018 which suggested
that the lender who established the loan had the customer pre-sign the forms instead of
signing them in stages;
Failure to obtain signature or initials from the customer when changes were made to
the date and payment details pre-signed forms or to attempt to contact the customer by
telephone to confirm the account number despite his contact phone number being
recorded on the form; and
Failure to follow the correct procedure on the “Progress Payment Authority – Branch
Processing Checklist” form which is meant to be prepared by a “Preparer” and then
given with relevant documentation to an “Authoriser” in circumstances where the
Preparer of the form had no involvement and the Applicant failed to obtain her
signature in any event. 24
[65] On 6 May 2020, the Applicant and Mr Holland met at the Business Centre at
Maroochydore. Mr Holland advised the Applicant of the allegations against her and took
written notes of her responses. Mr Holland said that he read the Applicant’s responses back to
her at the end of the meeting, and the Applicant agreed with the accuracy of his record. Mr
Holland advised the Applicant that her responses would be compiled into a report and
submitted to “a board” or “a committee”, which on his evidence meant that they would be
considered by “a group of people”. The Applicant stated that she was not asked to and did not
[2021] FWC 4
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sign Mr Holland’s notes, but confirmed in her evidence that she answered all questions
honestly and to the best of her ability.
[66] Mr Holland also had an “off the record” conversation with the Applicant at the
conclusion of the meeting. Mr Holland stated that he advised the Applicant she should
consider resigning from her employment as his concern was that if she were terminated and
the reasons were disclosed, it would have repercussions from an industry reputational
perspective. His evidence was that he did not pressure her to resign; it was a matter for her.
The Applicant’s evidence was that she chose not to resign. The Applicant was stood down on
full pay following this meeting, in accordance with standard procedure.
[67] In his evidence, Mr Holland referred to the Applicant raising concerns during this
meeting regarding the COVID – 19 outbreak and increased pressure that she was dealing with
at the time of the fraudulent event. However, Mr Holland’s evidence is that the Nambour
Branch was under no more pressure than any other of the Respondent’s branches, and the
COVID – 19 Pandemic did not explain or excuse the Applicant not following the bank’s
procedures.
[68] Mr Holland ’s evidence was that following the meeting of 6 May, he was concerned
about the Applicant’s attitude regarding the fraudulent event, as while she did not dispute
what had happened and was cooperative in the investigation, the Applicant demonstrated little
insight as to what she should have done differently. Mr Holland said that the Applicant did
not take accountability or responsibility for the steps as should have been taken. Mr Holland
also said that it appeared the Applicant thought the fraudulent event was unavoidable in the
circumstances. Mr Holland stated the Applicant did not act with the level of care and rigour
required, and in her role as Branch Manager, he needed to be able to trust how the branch was
being run and he no longer had confidence in her after this process.
[69] In his evidence in chief and under cross-examination, Mr Holland accepted that he was
aware the Applicant was not trained as a lender, and the type of transaction in the current case
was one that would usually be undertaken by a lender. Mr Holland agreed that the Applicant
was performing this role as there was not a lender in the Nambour Branch and that the full-
time lender had left the branch in October 2019.25 Mr Holland also conceded also that most of
the bank’s branches have a full-time lender26 and that the Applicant had raised with him on
many occasions the need for a full-time lender at the Nambour branch.27 The Applicant had
been provided with a part-time lender in January 2020, who split time between the Nambour
and Caloundra branches with the majority of time spent in Caloundra. Further, Mr Holland
agreed that a staff member who was training to be a lender was also absent on annual leave at
the time of the incident and could have undertaken the transaction “with some support” had
she been present at work. However, Mr Holland also said that the issue that resulted in the
Applicant’s dismissal, related to customer verification before authorisation of a significant
payment of money, and this issue could also arise if a customer was directing the bank to
transfer money held on deposit and not just in relation to lending.
[70] Mr Holland said that he was not aware of the training the Applicant had received on
commencement with the Bank, as she was already working as a Branch Manager when he
took on his Area Manager role. In response to the proposition that it was a management role
involving sales leadership, coaching and developing staff, customer service and compliance,
Mr Holland maintained that the Applicant’ duties also included risk management.28 Mr
[2021] FWC 4
17
Holland agreed that there is no requirement for a Branch Manager to conduct lending
activities.
[71] Mr Holland was also cross-examined about training in relation to fraud as follows:
“In your statement, you talk about training your staff to look out for fraud?---Yes.
What training is that specifically?---We have certain online modules, you know, bedded into multiple
different modules, there is awareness of fraud, you know, awareness of the processes to follow, what
policies and procedures to follow if you're unsure, et cetera.
There is training in respect of money laundering and counterterrorism. Is that the training you are
talking about?---Yes.
Any other fraud specific training?---I can't categorically say what they are exactly, no.
I would suggest to you that there's no training of the like that would give rise to this email indicating to
Ms Smith that it was sent by anyone other than [customer], it was sent by fraud?---In the context of
reading an email, yes, I agree.
When you put to Ms Smith that there was training provided by BOQ in respect of fraud, she said that
she'd undertaken it but it was difficult to correlate that with the real world actions of the
fraudster. That's a fair statement, isn't it?---Not for someone - I don't believe it's a fair statement for
someone who's been in banking for a period of time. I would suggest someone who's in a probationary
period, less than six months, I could understand that.
Is it fair to say then you see it more as an experience issue rather than a training issue?---Correct,
combine the two together, yes.29
[72] Mr Holland said in his evidence that he discussed his decision to terminate the
Applicant’s employment with Mr Peter Atkins, Head of Network, and Ms Judith Himstedt,
Employee Relations Manager, both of whom supported the decision on the reasons before
them.
[73] Prior to those discussions, Mr Holland forwarded an email to the Bank’s HR
Department in which he recorded the Applicant’s responses to allegations given at the
meeting on 6 May 2020. The Applicant did not take issue with the contents of the email or
the accuracy of the notes of her responses set out in it. The responses from the Applicant as
set out in that email indicate that the Applicant agreed that her negligence resulted in the BOQ
making a $37,500.00 payment to a CBA account confirmed to be involved in fraudulent
activity but that the Applicant stated that in her normal process of work she would not have
thought that a customer’s email could be hacked and that she had not previously caused a loss
to the Bank. In relation to allegations that she changed the details on progress authority form
and instructed the Drawdowns team to release the payment, the Applicant is recorded as
stating that she believed that she was acting on written instructions of the customer and in his
best interests.
[74] In response to the allegation that she used a pre-signed progress payment form the
Applicant is recorded as having stated that she had never been a lender and was promoted to
Branch Manager from the position of Customer Service Officer. The Applicant is also
recorded as having stated that she has seen previous lenders in her Branch compile pre-signed
progress draw claims and thought this was acceptable. Further the Applicant is recorded as
stating that she has never previously been exposed to fraudulent activity and was “naïve” to
the fact that this kind of activity existed. Mr Holland notes that he asked the Applicant
[2021] FWC 4
18
whether she acknowledged that the Bank provided training in regards to identifying and
preventing fraudulent activity and she agreed that this was provided but “was unable to
correlate that training to the real world actions of a ‘fraudster’”
[75] In relation to the allegation that she had corresponded with and accepted instructions
via email from a fraudster and the characteristics of the emails (grammar, format, font, layout,
structure and wording) were out of line with previous emails from the customer, the Applicant
is recorded as stating that:
The allegation about changes in font is not reasonable as font can change based on
the device being used;
All previous conversations with the customer indicated he was concerned with the
gradual release of funds under the Bank’s control and the instructions of the
fraudster made sense to the Applicant as by having funds deposited to the CBA the
fraudster would self-administer them; and
The Applicant did email the customer in relation to the missing funds offering to
conduct a trace.
[76] In response to the allegation that she made no attempts to check with the customer in
relation to his alleged “account issues involving funds going missing” and there was no
indication in the Bank’s records that the customer had previously raised the issue of missing
funds or issues with his account, the Applicant is recorded as stating that she looked in
support point and there was no reference to calling the customer and she believed his
preferred communication method was via email. The Applicant is also recorded as stating
that the position description for a branch manager does not state that she is required to
conduct lending activities.
[77] The Applicant is also recorded as stating that she provides more discretionary effort
than many other Branch Managers and the process is not acknowledging that fact. Further,
the Applicant is recorded as stating that the Bank has not been supportive and as raising that
the process of finalising the loan with the customer was driven by Mr Holland and Ms Hartley
and she was being pushed to complete the loan before going on annual leave. Mr Holland
acknowledged in the email that this was correct noting that construction of the property had
been going on for two years. In conclusion, Mr Holland’s email states:
“Based on Susie’s responses in the formal meeting I believe that the trust of employer and employee is
now diminished to a point that I do not believe that ongoing employment is appropriate. If there was a
decision for Susie to retain her role, this would need to have quite strict restrictions including removing
her Branch Manager delegation removing her as an authoriser and limiting her ability to act on requests
from customers via non face to face methods. All of which would be very difficult to manage and
would impact the confidence of her staff in her as manager. The decision is further made on the basis
that Susie at no time could identify the lack of additional steps that should have been taken based on her
significant experience and in particular her role as a Branch manager. This issue is not a lending issue,
rather an issue of identifying risk and putting steps in place to protect the bank.”
[78] Mr Holland decided to dismiss the Applicant. On 8 May 2020, Mr Holland telephoned
the Applicant and read her termination letter to her. The Applicant was dismissed with effect
on the same day. The termination letter which was emailed to the Applicant stated:
“Dear Susie
Outcome of Formal Meeting
[2021] FWC 4
19
This letter is to advise you of the outcome of the Notice of Formal Meeting (NOFM) dated 5 May 2020.
In the NOFM, you were advised that BOQ had reason to believe that following your recent actions and
behaviour, you may be in breach of BOQ Policy and procedure.
You were required to attend a Formal Meeting (meeting) to discuss and respond to these issues and that
meeting took place on Wednesday 6 May 2020 at the Sunshine Coast Business Centre Maroochydore at
3pm.
You chose to attend the meeting without a support person.
Allegation
It was alleged in the NOFM that your negligence resulted in BOQ making a $37,500 payment to a
Commonwealth Bank (CBA) account confirmed to be involved in fraudulent activity.
Background
On 8 April 2020, a situation was brought to the attention of BOQ’s Financial Crimes Office (FCO)
when FCO received an email from CBA DF requesting validation for a payment of $37,500 they
received from BOQ on 3 April 2020. It was identified that the funds received by CBA were in relation
to a “Final Stage” progress payment for a Constructions/Builder’s loan, and the intended recipient of the
funds was [customer], a BOQ customer.
A Senior Financial Crimes Officer from FCO investigated this matter and determined that the main
contributing factor that lead to the funds successfully leaving BOQ and going into a fraudulent BOQ
bank account was due to you failing to follow correct procedures.
Response
You stated in the meeting that you agreed with the allegation. However you claimed that you would not
have thought in the normal process of your work that a customer’s email had been hacked.
You stated that after receiving the invoice containing CBA bank details, you changed the details on the
Progress Payment Authority form which lead to the payment being made to the CBA account. You
changed the details on the Progress Payment Authority form in cursive writing. You admitted to
investigators from the FCA that you had:
Changed the date and payment details on the Progress Payment Authority form; and
Provided instructions to the Drawdowns team to release the payment of the Final Progress Payment.
You claim that you did this on the basis that you believed you were acting on written instructions from
the customer and that by altering the Progress Payment Authority, you were acting in the best interest of
the customer.
You claimed that you have never been a lender and were promoted form Customer Service Officer to
Branch Manager. You have seen previous lenders at your branch compile pre-signed progress draw
claims and as such thought this process was acceptable. You did say you had printed out the
‘fraudulent’ invoice and compared it to the invoices held on file and believe they were identical and
therefore not suspicious.
You claimed that you have never been exposed to fraudulent activity previously and you said you were
‘naïve’ to the fact that this type of activity even existed. In response to a query from me as to whether
you acknowledged that BOQ did provide training in regards to identifying and preventing fraudulent
activity, you agreed however you were unable to correlate the training to the real world actions of the
‘fraudster’.
You did not accept that your failure to notice changes in font was a reasonable allegation noting that
font can change based on the device being used.
[2021] FWC 4
20
You also stated that all your previous conversations with the customer indicated that he was concerned
with the gradual release of funds under the banks control based on receipt of invoice for works
completed. You stated that therefore the instructions provided by the ‘fraudster’ made sense to you by
having funds deposited into the CBA account for his self-administration. You claimed you did email the
customer back in regards to his advice that funds were missing and you offered to complete a trace or
assist further but he advised that he would worry about it later. It was pointed out to you that at this
stage you were conversing with the ‘fraudster’ and not the customer and therefore this step was
superfluous.
You stated you did look in Support Point and there was no reference to call the customer in this instance
and as you had solely been dealing with the customer via email, you believe this was his preferred
method of communication.
In response to a question from me about you not taking the extra step of contacting the customer via an
alternative method of communication, noting the change in account details to be paid, you again advised
that you believed the customer wanted to circumvent our process of controlling the funds. However,
when Ms Karen Hartley, Deputy Area Manager Queensland, had a conversation with the customer after
the issue was identified, she advised the customer that we would need to control funding on receipt of
invoices for work completed and the customer agreed.
You agreed you failed to obtain a signature or initials from [customer], our customer, when the
amendments were made to ‘Date’ and ‘Payment Details’ on the pre-filled Progress Authority form and
made no attempt to call the customer or confirm the account number, despite his phone number being
recorded on the form.
In relation to the claim that you did not follow correct procedure on the Progress Payment Authority –
Branch Processing Checklist form, you said you reviewed Support Point which advised that the
Authoriser must be a DA holder. As you are the DA holder for Nambour Branch, you did not believe
you needed to get this checked by anyone else.
You also stated that nowhere in the position description (PD) of Branch Manager does it state that you
have to conduct lending activities. Whilst the PD does not specify that the Branch Manager has to
conduct lending activities, it does clearly state ‘Manage risk within the branch and protect the bank,
colleagues and customers from loss & risk’.
Findings
In relation to the above allegation, after consideration of your explanations provided during the formal
meeting, BOQ does not consider that your response adequately explains or excuses your behaviour for
the following reasons:
You have breached significant Bank policies; and
You failed to identify a risk to a customer; and
You therefore failed to follow steps to protect the bank from the risk; and
As a result of your failure, the bank has lost $37,500.
…
Outcome
As a result of the above findings, BOQ does not accept that your responses throughout the process
sufficiently justify or mitigate the allegations presented to you.
After careful consideration of all options relating to your ongoing employment, BOQ has determined
that you have demonstrated a pattern of behaviour and conduct that does not align to the inherent
requirements of your role.
Further, BOQ finds that the trust the Bank is entitled to have in a Branch Manager to manage risk is
lost. This has subsequently led to a loss in the trust and confidence in you to effectively perform as a
Branch Manager in the Nambour Branch.
[2021] FWC 4
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Therefore, BOQ has made the decision to terminate your employment effective immediately. Your last
day of employment is today, Friday 8 May 2020.
You will receive the following payments:
Your remuneration up to and including your last day of employment;
4 weeks payment in lieu of notice;
Any accrued but untaken annual leave and long service leave.
There is a summary of other matters about which you should be aware (and may be obliged to comply),
following termination of your employment, enclosed with this letter.
I appreciate that this decision may be disappointing and I remind you of your ability to access BOQ’s
confidential Employee Assistance Program (EAP). This is a confidential service provided by Benestar
who can be contacted on [redacted].”
[79] Mr Holland was cross-examined at the hearing regarding whether he took into
consideration the Applicant’s performance history before making the decision to terminate her
employment and conceded that the Applicant had received positive performance reviews. He
confirmed that immediately before the relevant issue arising, he was very satisfied with the
Applicant’s performance as a Branch Manager.30
[80] In his witness statement, Mr Holland raised other issues with the Applicant’s work
performance discovered after her dismissal including not following procedure when opening
accounts, accessing the account details of a family member – the Applicant’s son – and not
completing workplace health and safety tasks in the Bank’s Smart System. Mr Holland agreed
that these issues were not significant enough to have resulted in the Applicant’s dismissal
without warning.31 Mr Holland accepted the following matters put to him in cross-
examination:
1 April was when the incident occurred which coincided with the height of the
COVID-19 Pandemic;
The Bank’s hotline had been inundated with queries and customers had been directed
instead to go to their local branches;
There were four staff present on that day and prior to October last year there had been
six staff working at the Branch;
There is a QLM Pathology testing centre located next door to the branch which had
people lined up for testing;
It was a stressful time in all of the Bank’s locations;
Ms Goldspink who was assisting with the finalisation of the customer’s loan was on
leave at the time and it fell to the Applicant to deal with the final progress payment;
It was a high priority loan for the bank having been on the books for 18 months;
The Applicant was due to go on two weeks’ leave the next day;
While arrangements had been made for the Manager of Coolum to be available to
handle any staff queries in the Applicant’s absence, she had not been informed of this
and no handover was conducted; and
The Applicant would not have known that there was anyone to hand the file over to
when she went on leave.32
[81] Mr Holland also said that he did not know whether Nambour Branch was experiencing
unprecedented foot traffic at that time but accepted that all branches were under pressure and
[2021] FWC 4
22
he did not know whether this was a particular issue for the Nambour Branch. Mr Holland
accepted that it appeared that the incident which led to the Applicant’s dismissal was an
isolated one but in response to the proposition that given the surrounding circumstances, he
could have been offered a level of assurance that it would not happen again, said: “Not
necessarily”.33 Mr Holland did not accept that the Respondent contributed to the incident
including by failing to provide the Applicant with sufficient resources at the Nambour
Branch.
[82] Mr Holland said that he had considered the alternatives to termination of the
Applicant’s employment, including removing her delegation, changing or relocating her to
another branch to work under another branch manager, increased monitoring and supervision,
and further training. Mr Holland did not deem these alternative options appropriate in the
circumstances.34 In relation to his consideration of alternatives, Mr Holland made the
following comment in his email report of the meeting with the Applicant dated 7 May 2020
and sent to the Respondent’s Human Resource Management staff:
“Based on Susie’s responses in the formal meeting I believe that the trust of employer and employee is
now diminished to a point that I do not believe that ongoing employment is appropriate. If there was a
decision for Susie to retain her role this would need to have quite strict restrictions including removing
her Branch manager delegation, removing her as an authoriser and limiting her ability to act on requests
from customers via non face to face methods. All of which would be very difficult to manage and
would also impact on the confidence of her staff in her as a manager. This decision is further made on
the basis that Susie could at no time identify the lack of additional steps that she should have taken
based on her significant experience and in particular her role as Branch manager. This issue is not a
lending issue, rather an issue of identifying risk and putting steps in place to protect the bank.”35
[83] Mr Holland denied that the Applicant’s dismissal had been related to reducing staff
numbers and overheads across the board but agreed that the Nambour Branch now has a part-
time Branch Manager who splits his time between Nambour and Coolum and a part-time
lender who splits his time between Nambour and Caloundra. Mr Holland also rejected the
proposition that the Respondent contributed in any way to the actions of the Applicant which
resulted in her dismissal.
[84] In response to questions from me, Mr Holland accepted that at his meeting with the
Applicant prior to making the decision to terminate her employment, she was apologetic
about what had occurred. He said however his concern was that the Applicant was still
saying: “I don't believe I did anything wrong here, I was acting in the customer's best
interests,” as opposed to identifying that she had not followed the required steps.36 Mr
Holland stated that at the meeting of 6 May 2020, he had required that the Applicant indicate
she understood the process she should have taken and she had not done this. Mr Holland also
said that if the Applicant had indicated understanding of what she had done wrong, he may
have considered an alternative to dismissal.37
[85] Mr Holland was shown the Applicant’s performance review for the half yearly
financial year in 2020 and agreed that she had been rated as having “Superior” work
performance and had either met or exceeded targets. In response to the proposition that the
Applicant’s performance was “superior” in the six months prior to her dismissal, Mr Holland
said that this would require an overall rating of 4 out of a possible 5 and that the Applicant’s
rating was 3.8. Mr Holland agreed that at the time the performance rating was undertaken, he
was very satisfied with the Applicant’s performance as a Branch Manager and that he had
informed her that the passion she brought to her role does not go unnoticed and that he
appreciated her.38 Further, Mr Holland agreed that a full audit of the Nambour Branch was
[2021] FWC 4
23
conducted in November 2018, which looked into all compliance issues and “went through the
Branch with a bit of a fine tooth comb”. Mr Holland also agreed that the Branch received the
highest possible rating for that audit.39
[86] At the hearing the Applicant conceded that there was nothing preventing her from
calling the customer and said that she wished that she had done this and thereby prevented a
loss to the Bank.40 In response to the proposition under cross-examination that she was
essentially saying that no-one was to blame and that being defrauded is just a cost to the bank
of doing business, the Applicant said:
“No, I feel terrible that it cost the business money. I've lost my job over it. It's terrible circumstances and
all I can say is that I've done three of these types of transactions and each time I've conversed with the
customer via email to confirm the instructions to move forward and, in the Support Point policy that I
was looking at the time on how to complete my form, it didn't say to ring the customer.41
[87] The Applicant also said that she wished she had never changed the details on the
progress payment form and that she accepted that there is a risk if she changes details on the
form without getting the customer to sign it.42 As to use of the “pre-signed” Progress
Payment Authority, the Applicant said that she now knows that the form can only be
completed at the time that the customer is signing it, and had the following exchange with Mr
Wells for the Respondent:
“Isn't that just logical, though, that if the customer is signing the form, they are verifying what's
above?---Well, he did give me the instructions to complete the rest of the form as well. He sent me the
tax invoice to complete this transaction.
But isn't that where you have a problem because even if you are prepared to say that you can fill all
these things out in advance and then put in the numbers later, if the customer never signs that form or
countersigns the amendments, you've amended it again with further changes with the fraudster's bank
details?---I have.
Isn't that what doesn't get picked up if the customer doesn't sign the form to verify the contents?---Yes.
In paragraph 21 of your statement, which is at page 44, there's a reference to another email that the
customer sent you advising of the change of the bank account details and enclosing an amended tax
invoice?---Mm-hm.
Do you accept that although your statement says [customer name], it’s actually the fraudster, not the
customer, that has sent that to you?---Yes, I do accept that now, yes, yes.”43
SUBMISSIONS
[88] The Applicant’ case centred on the assertion that the transaction was an honest and
innocent mistake and that her conduct did not justify dismissal. The Applicant submitted that
all of the circumstances must be taken into account, including the following mitigating
factors:44
That the applicant was dealing with the COVID-19 outbreak and was working in
very difficult circumstances whereby many customers were very distressed about
their financial situation;
That the branch was facilitating unprecedented foot traffic due to COVID-19 and the
panic that this caused in the BOQ’s customers;
[2021] FWC 4
24
That the BOQ established a COVID-19 hotline but within three (3) days of its
establishment, it was realized that the hotline could not cope with the very high
levels of inquiry and so customers were directed to their respective branches;
That the applicant has worked for the respondent for 8 years;
That there had only been one previous been issue raised with the applicant’s
performance;
That the applicant was not trained in a lending capacity.
[89] The Applicant submitted that loss of trust and confidence in her ability to perform her
role, as stated by the Respondent, is not sufficient for finding there was a valid reason for the
dismissal. She submitted that there needs to be sufficient evidence and reasoning to support
this loss of trust and confidence,45 and stated the Respondent has not provided sufficient
evidence to support the asserted loss of trust and confidence. The Applicant submitted there
had only previously been one issue raised regarding her performance and that her most recent
performance review had established that she was performing well in her role.
[90] The Applicant sought reinstatement pursuant to s.391 of the Act, or in the alternative,
the maximum compensation at 26 weeks’ pay pursuant to s.392(6)(a) of the Act. The
Applicant also said that she had applied for some 22 positions since her dismissal including
business manager positions at a number of schools, customer service officer positions,
administration positions, food service assistant at a hospital and room and housekeeping
positions in hospitality and at a hospital. The Applicant has not been invited to attend an
interview for any position she has applied for and has not obtained alternative employment.
In oral submissions Mr White for the Applicant emphasised that the dismissal was harsh and
that it was an “over-response” to the gravity of the issue. It was submitted that the Applicant’s
actions were an honest mistake, borne out of the intentional fraudulent act of a third party,
directed at the bank and which the Applicant “fell for”.
[91] It was the Applicant’s submission that while her actions did result in a financial loss to
the bank, she was not complicit in that loss and her conduct was not an intentional act to
cause loss to the bank. It was submitted that any reasonable person would, in light of all the
facts and the Applicant’s eight years of otherwise excellent employment history, forgive her
this error and accept her ability to continue to perform the role with integrity, honesty and
professionalism. It was submitted that the Applicant’s conduct would not preclude her from
continuing to perform the duties in her position and on this basis reinstatement was sought.
[92] Mr White pointed to the Applicant’s evidence that she regretted that she did not
telephone the customer to verify that he wanted the funds transferred to the CBA account and
that the Applicant stated that she would make the telephone call in the same circumstances in
the future. Reference was also made to the Applicant’s evidence of failure on the part of the
Respondent to support her in her role during the COVID-19 Pandemic and to the fact that
there was no dedicated lender employed at the Nambour Branch at the relevant time.
[93] Mr White submitted that the primary issue is in respect of a failure to comply with the
Respondent’s policies and procedures. While it was conceded by the Applicant that all
relevant policies and procedures sit within the “Support Point” facility, the Applicant’s
evidence is that she did conduct a search in respect of the transaction she was undertaking,
and the policies to which she was taken at the hearing were not the policies she uncovered in
her search. The Applicant conceded that having regard to the confirming a customer’s identify
policy and surrounding policies, those did exist.
[2021] FWC 4
25
[94] It was submitted that regarding the policy around progressive drawdown requests, Mr
Holland has conceded it is directed at retail branch lenders and provides for provision of the
documentation to an authoriser for consideration of the process. It was also submitted that the
Applicant’s actions were taken in an extraordinary circumstance not contemplated by the
policy, in that in the absence of a lender, she both prepared the document and had to authorise
it. While Mr Holland’s evidence was that she should have looked outside of the branch to
assist with this process, this was not set out in the policy.
[95] As to Ms Sun’s finding of negligence in her report, it was submitted that this was not
made out and it is not within the scope of what that investigation report was intended to
investigate. Rather this was a matter for Mr Holland. Further, it was submitted that when the
relevant actions were taken, the Applicant was about to go on leave, and did not realise there
was going to be someone filling or assuming her role during that leave. There was no
handover in respect of the Applicant’s work and she had no option but for the relevant matter
to be raised on her return from leave.
[96] It was submitted that while the correspondence from the fraudster may have seemed
ambiguous, the Applicant gave evidence that she had previously spoken with the customer
about the Bank’s control over money and his ability to access the final progress payment and
that his request was consistent with earlier concerns he had expressed about control of funds.
Regarding the progress payment authority forms being held on file, it was submitted that if
this was not an adopted practice, this was at least the only practice the Applicant was familiar
with. Further, the audit in November 2018, which post-dated the preparation of the relevant
forms should have identified, at very least, that the forms were blank in respect of the
particulars that would be filled in, when the progress payments were called upon.
[97] In respect of the questions raised around training, it was submitted on behalf of the
Applicant that this is a lender issue, as the relevant policy referred to indicates the actioning of
a progressive drawdown is to be done by a lender. It was also submitted that in circumstances
where it is a process ordinarily followed by a lender, and not a person in the position of the
Applicant, it was a lack of a dedicated lender to undertake this role that meant the Applicant
was required to perform it in the first place, absent the lending training.
[98] As to the options available to the Respondent, other than dismissal, it was submitted
that the Commission should look beyond any assertion of a loss of trust and confidence, and
determine whether or not a reasonable position was adopted in the first place. It was the
Applicant’s submission that regard should have been had to the nature of the incident when
compared to the Applicant’s previous work history with the Respondent.
[99] It was submitted also that the Commission should also have regard to the implications
of the COVID-19 Pandemic and that its effect on the Respondent’s business had been
downplayed. In particular, the Applicant’s evidence that the Pandemic had particular
implications for the Nambour Branch should be noted and this should be a consideration that
should be taken into account, beyond the issues associated with the Applicant’s otherwise
excellent work history and the circumstances surrounding the fact that she was fulfilling the
role of a lender as well as that of manager.
[100] The Respondent submitted that the Applicant had the necessary resources available to
her to complete the transaction appropriately and apart from directing the funds to the
[2021] FWC 4
26
fraudster and not the customer, the Applicant did complete the process. The Respondent
submitted that the Applicant’s error was a combination of the Applicant not verifying the
customer’s identity when acting on the direction of the fraudster (and in this regard the type of
transaction was immaterial) and not completing forms in accordance with Bank procedures
and the provisions of the forms.
[101] As a result of the investigation and further enquiries, the Respondent considered the
Applicant had missed a number of opportunities, and if handled differently and in accordance
with bank procedure, the fraud would have been uncovered before the funds were transferred.
It submitted the relevant matters were:
(i) The Applicant had been told (in an email from the fraudster) that the account
details were being changed because “we are missing on some payments and we are
trying to trace” and made no further enquiries of the customer, either:
(A) to verify the identity of the person sending the mail in accordance with
bank procedure; or
(B) to determine what had occurred with the “missing payments” from a BOQ
account;
(ii) The Applicant changed the bank details on a previous Progress Payment Authority
(relating to an earlier drawdown), rather than have the customer sign a new Progress
Payment Authority in accordance with bank procedure;
(iii) The Applicant signed the Progress Payment Authority as Authoriser, despite being
the Preparer of the document.
[102] The Respondent submitted the emails from the fraudster were suspicious in language,
punctuation and format. The Respondent also submitted that in deciding to terminate the
Applicant’s employment, it took into account a range of matters including that the Applicant
had not acted in accordance with procedure, the cost to the Respondent was significant, the
Applicant was an experienced employee in the banking industry and should have acted
differently, and the Applicant demonstrated limited cognition that there were steps she could
have taken to avoid the outcome that eventuated. The dismissal was not summary dismissal,
and the Applicant received pay in lieu of notice.
[103] Further to these submissions, the Respondent addressed the matters under s.387 of the
Act in summary as follows:
(a) The Respondent had a valid reason relating to the Applicant’s capacity or conduct
(paragraph (a));
(b) The Applicant was notified of the reason in the letters of 5 and 8 May 2020
(paragraph (b));
(c) The Applicant was given an opportunity to respond, having been given the letter of
5 May 2020 and an opportunity to address its contents during the meeting on 6 May
2020 (paragraph (c));
[2021] FWC 4
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(d) The Applicant was not denied the opportunity to have a support person, as
indicated in the Applicant’s Outline of Argument (paragraph (d));
(e) The Applicant had been warned about compliance with procedure on an earlier
occasion; but the Respondent submits the consequences, and ongoing risk to the
Respondent, would not require prior warnings in the sense used in paragraph (e);
(f) Paragraphs (f) and (g) do not arise, as factors which otherwise might mitigate
against a default in procedure.
[104] The Respondent also submitted that while the Applicant had an acceptable record prior
to the fraudulent event, she did not have an unblemished record and had received a formal
written warning in September 2017 for waiving a $440 equipment finance establishment fee,
outside of her delegated authority.46 Following the Applicant’s dismissal the Respondent also
reviewed the practices at the Nambour Branch and other irregularities in relation to policy and
procedure.
[105] Mr Wells submitted on behalf of the Respondent that this case is about two separate
processes. The first being the fraud investigation, which was designed to establish where the
bank's money had gone and why, and to help demonstrate that the customer and the Applicant
were not involved in the fraud. It was submitted that this process was designed to verify that a
fraudster had in fact seized control of the customer’s email account and had “purloined” that
money. The second process is the Applicant’s disciplinary proceeding.
[106] The Respondent submitted that the two processes are not irrelevant to one another, and
much of the evidence in this matter has related to matters such as font style, language and
other matters which is not pressed by the Respondent as matters that were considered in
taking action in relation to the Applicant. The Respondent submitted that its employees are
not required to perform any detective functions regarding receipt of emails which may be
from a fraudster.
[107] The Respondent noted that the fraudulent email correspondence referred to some
“missing payments” and submitted that while there was no clear consensus between the
witnesses as to what the fraudster was suggesting in this correspondence, this heightened its
importance. As Mr Holland pointed out in his evidence, where a customer states that money
is missing from an account, the first reaction should be to contact the customer and find out
what is going on. While this is not a procedural or a protocol related issue, it is a judgment
that would be expected to have been applied by the Applicant in the circumstances. It is
telling that the Applicant accepted that she did not take any steps to react to that email, other
than enquiring whether the fraudster wanted to proceed via the other account. The Respondent
submitted that Applicant took no steps to ascertain what was at the heart of the missing funds
and did not propose to do so until she had returned from leave in three weeks’ time. If the
Applicant had contacted the genuine customer at that time, the fraud would have been
averted. In failing to make this telephone call, the Applicant’s actions snowballed into the
specific direction from the fraudster to send funds to a Commonwealth Bank account.
[108] The Respondent noted Mr Holland’s evidence that the typographical error on the
fraudulent tax invoice seeking that money be sent to the “CommonWealth” Bank would not,
considered alone, have aroused interest. However, in the context of the account details being
changed, he would have expected that enquiries would be made. The Respondent submitted
[2021] FWC 4
28
that its protocols deal with this very issue, and further, the Applicant has accepted that in an
analogous scenario of a person having cash on deposit and asking for it to be transferred to
another account, she would need to verify the identity of that person by telephone. The
Respondent submitted that the Applicant recognised that verification of identity must be done
by phone in some instances, but sought to carve out lending transactions as some sort of
special species, when the policy did not provide for this carve out.
[109] The Respondent noted that the Applicant accepted a verification telephone call would
have taken no more than one minute and that the telephone numbers are on its system.
Notwithstanding the effect of the COVID-19 Pandemic, a one minute telephone call in
circumstances indistinguishable from a cash transfer, is a very small inconvenience and a
strong verification tool, which would have led to a different outcome. Notwithstanding the
Applicant’s suggestion that there was a practice of pre-populating forms, and that this is fair
and reasonable, it is the first problem. The second problem is the fact that the Applicant
changed the bank details on the form. The Respondent contended that regardless of any
training issues, anyone experienced in banking practices would consider a pre-signed blank
form to be a “red flag” issue.
[110] Further, the Respondent contended that on any sensible view, the pre-signing of forms
is an improper practice, as the purpose of such a practice can only be to falsely declare to the
people who process the form that the customer has confirmed the details set out in the
form. The Respondent submitted this should not be accepted as being a widespread practice,
as on the Applicant’s evidence she had done this three times and someone told her to do it.
As to the Applicant acting as both preparer and authoriser of the payment form, the
Respondent submitted that the form misrepresents that Ms Condren (who was nominated as
the Preparer) played any role in the transaction and the Applicant’s evidence demonstrated
that she knew that the same person could not complete the form in both capacities. As a
result, there was a misrepresentation to the recipient of those documents – the Bank’s head
office – that the customer had in fact approved the changes.
[111] In summary the Applicant’s mistakes in this matter, were first, that there was no
enquiry in relation to the original email which was the first chance for the Applicant to pick
up the issue of potential fraud. The change in bank details was the second chance to pick up
the issue. The third chance was the non-completion of the form before the customer signed it.
The fourth chance was the merger of the preparer and authoriser of the form. Mr Holland’s
evidence in this regard is that if he had been asked to authorise the form he would have picked
up the irregularities of the changes to the bank details. The Respondent noted this as another
key opportunity for the bank to have detected the fraud and noted also that the Bank’s Support
Point site contains the procedure regarding change to bank details, and the relevant procedure
was not followed.
[112] As to any training, the Respondent noted some evidence had been given about training
in relation to lending but maintained that the incident was not a lending issue but one of
verification of a customer’s identity. The Respondent also submitted that the Commission
should not interpret evidence as to the potential for more training or education, as evidence of
a lack of training. Amendment of forms after they are signed is something that should not be
done and this was not a training issue.
[113] The Respondent maintained that there was a valid reason for the Applicant’s
dismissal. The bank has procedures regarding verification of a customer’s identity, and in this
[2021] FWC 4
29
matter the relevant procedures were not followed. It submitted that common sense required
that a call be made to the customer, particularly given the Applicant’s knowledge that in that
analogous transaction she would not have proceeded without verifying the customer by
phone. There was no denial of a support person at any stage of the process.
[114] There was an extensive opportunity to respond to the allegations, as set out in the
material before the Commission. The Applicant was not terminated summarily, so the only
issue of consideration here is whether there was a valid reason for the dismissal. As to Mr
Holland putting to the Applicant at the time that she could consider resigning, the Respondent
submitted that this was not an attempt to force a resignation. In this regard, Mr Holland’s
evidence should be accepted to the effect that he tried to give the Applicant that option, and it
was not intended as a means to deny her the opportunity to have the employer consider its
position and make a decision and stand by it.
[115] The Respondent reiterated that the Applicant was a good worker, however there has
been a clear erosion of Mr Holland’s capacity to trust that the Applicant would make the right
calls in her work, based on the matters raised in these proceedings. Mr Holland’s evidence is
that he took the Applicant’s employment record and history into account but decided that her
inability to accept there was another way of correctly performing her duties outweighed her
work history.
[116] As to any evidence regarding the Applicant’s insight into her mistakes, the
Respondent submitted that the Commission should find it difficult to recognise there was any
insight on the part of the Applicant about what went wrong in this transaction, given there
were at least four if not five triggers, each of which should have resulted in a one minute
phone call that would have avoided the fraud. The Respondent submitted that the Applicant
saying she wished she had made the telephone call and confirmed the customer’s identity, was
not sufficient to demonstrate the relevant level of recognition and accountability.
LEGISLATIVE PROVISIONS CONCERNING UNFAIR DISMISSAL
[117] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or
unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as
follows:
(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
(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
[2021] FWC 4
30
(h) any other matters that the FW Commission considers relevant.
[118] The employer bears the onus of establishing that there was a valid reason for a
dismissal.47 A valid reason for dismissal is one that is “sound, defensible or well founded” and
not “capricious, fanciful, spiteful or prejudiced.”48 The reason for dismissal must also be
defensible or justifiable on an objective analysis of the relevant facts,49 and validity is judged
by reference to the Tribunal’s assessment of the factual circumstances as to what the
employee is capable of doing or has done.50
[119] To determine whether there was a valid reason for a dismissal relating to conduct, the
Commission must determine whether, on the balance of probabilities, the conduct allegedly
engaged in by the employee actually occurred, on the basis of the evidence before the
Commission. The test is not whether the employer believed on reasonable grounds, after
sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid
reason for dismissal, the Commission must assess whether the conduct was of sufficient
gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.51
In finding that there was a valid reason for dismissal, the Commission is not limited to the
reason relied on by the employer.52
[120] The matters in s.387 go to both substantive and procedural fairness and it is necessary
to weigh each of those matters in any given case, and decide whether on balance, a dismissal
is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the
employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the
employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have
been drawn from the material before the employer.53
CONSIDERATION
Was there a valid reason for dismissal of the Applicant?
[121] The Applicant does not dispute that she transferred an amount of $37,500 into the
bank account of a fraudster and that as a result, the Respondent lost an amount of some
$30,000. The gravamen of the Applicant’s case is that her dismissal was not for a valid
reason because it was disproportionate to the gravity of her misconduct and that mitigating
factors were not taken into account or given appropriate weight in the decision taken by Mr
Holland on behalf of the Respondent, to dismiss her.
[122] As Vice President Hatcher observed in Raj Bista v Group Pty Ltd t/a Glad
Commercial Cleaning54 (Bista), merely establishing the factual basis for the reason for
dismissal does not by itself demonstrate that it was a valid reason. It must, as s.387(a) makes
clear, be a valid reason for dismissal - that is, dismissal must be a justifiable response to the
relevant conduct or issue of capacity. Factually-established conduct which might, for
example, justify the issue of a reprimand or a warning may not necessarily justify dismissal.
[123] In Bista, Vice President Hatcher considered cases concerning the question of whether
there was a valid reason for dismissal and distilled a number of principles. In relation to the
[2021] FWC 4
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the decision in Selverchandran v Peteron Plastics Pty Ltd55, often referred to as authority for
the proposition that a valid reason for dismissal is a reason that is sound, defensible and well-
founded, his Honour observed that:
“There is nothing in the reasoning in Selvachandran to suggest that some minor failing or trivial
misdemeanour on the part of the employee could constitute a valid reason for dismissal simply because
it was proven to have occurred. Dismissal on such a basis could not be said to be sound, defensible or
well founded, and to approach the concept of a “valid reason for dismissal” otherwise would not
constitute a practical and commonsense way to ensure that employers and employees are treated
fairly.”56
[124] His Honour cited the decision of the Federal Court Full Court in Edwards v Giudice,57
and stated that the case is clear authority for the proposition that the consideration of whether
there is a valid reason for dismissal requires, where the relevant conduct upon which the
dismissal proceeded is found to have occurred, an assessment of whether the conduct was of
sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-
founded response to the conduct.58
[125] Vice President Hatcher went on to observe that it is well established that a dismissal
for misconduct may be found to be harsh on the basis that the sanction of dismissal is a
disproportionate penalty to the gravity of the misconduct,59 and that the issue of
proportionality is usually considered having regard to all relevant circumstances of the
dismissed employee and his or her conduct. His Honour also noted that there is divergence in
the authorities in relation to whether the gravity of the misconduct is considered separately
from the factors subjective to the particular employee with the former consideration arising
under s. 387(a) and the latter under s. 387(h). His Honour observed that proportionality of
dismissal as discussed by Moore J in Edwards v Giudice60, was not concerned with
proportionality of dismissal in the sense where the gravity of the misconduct is weighed
against a range of other potentially mitigating factors. Rather it was concerned with whether
the conduct in question, considered in isolation, was intrinsically capable of constituting a
valid reason for dismissal if it only involved a minor misdemeanour.
[126] I do not understand that there is a rule that the gravity of the misconduct must be
considered under s. 387(a) devoid of any mitigating factors a dismissed employee may raise.
While the gravity of the conduct must be considered and assessed, in my view, there are some
mitigating factors which may also go directly to the validity of a reason for dismissal by
mitigating the seriousness of the conduct for which a person was dismissed. Examples of
some of these factors may be lack of training or the dismissed employee being placed under
undue pressure by some failure on the part of the employer, which contributed to the conduct
for which the employee was dismissed. Those matters may go to the reasonableness of the
dismissal on the basis that they mitigate the gravity of the employee’s conduct. There are
other mitigating factors which relate to personal circumstances of the dismissed employee and
which may render the dismissal harsh, notwithstanding that the gravity of the employee’s
conduct justifies dismissal. The first category of mitigating factors falls for consideration
under s. 387(a) of the Act and the second category under s. 387(h).
[127] In the present case, there is no doubt that the Applicant engaged in the conduct
alleged. The issue for determination is whether the conduct was of sufficient gravity such as
to justify dismissal. I am also of the view that some of the mitigating factors raised by the
Applicant in the present case, go to the validity of the reason for her dismissal and whether
her conduct is mitigated so that dismissal was not a sound, defensible and well-founded
[2021] FWC 4
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response. Accordingly, I have considered them in relation to whether there was a valid reason
for the Applicant’s dismissal
[128] The reason for the Applicant’s dismissal given by Mr Holland was a pattern of
behaviour and conduct that did not align to the inherent requirement of the Applicant’s role
and that her failings were so significant that he lost trust and confidence in her ability to
perform her role.
[129] I am satisfied that the Applicant did engage in a pattern of behaviour and conduct that
came close to crossing the line between carelessness and negligence. However, I am also of
the view that the Applicant did not cross this line and that her failure to follow procedure was
not wilful. My conclusions in relation to the conduct of the Applicant are as follows. The
Applicant was a Branch Manager and had a lengthy career in which she had been promoted to
that position from the position of Customer Service Officer. The conduct of the Applicant in
relation to the fraudulent transaction was a simple failure to give sufficient attention to
avoiding error and a failure at a number of points to appreciate that there were red flags which
should reasonably have caused the Applicant to stop and check what was occurring before
taking various steps that led to the fraud. The Applicant’s conduct was also a failure to take
proper care in the performance of her duties.
[130] The first fraudulent email, sent at 11.05 am on 1 April 2020, contained several pieces
of information on its face, that should have alerted the Applicant to the need to contact the
customer. First, the email referred to a BOQ account that was “missing on some payments”
and that the customer was trying to trace those payments. As the Manager of the Branch at
which the customer banked, the Applicant should have been put on notice that she needed to
contact the customer to ascertain what the issue with the missing payments involved. I do not
accept that the Applicant’s view that the missing payments related to the customer’s clients
not paying him, was a reasonable view for her to have taken. At best, this was one possible
view and the alternative view that the money was missing from a BOQ account should have
been considered by the Applicant, particularly when the customer mentioned tracing amounts,
which would normally be done by the Bank. This was the first red flag.
[131] The second red flag which should have caused the Applicant to stop and check before
making the transfer, was the Progress Payment Request form itself. The actions the Applicant
took to change the details of the account into which the drawdown funds were to be
transferred, were not authorised by the form. By altering a pre-signed form, it should have
been apparent to the Applicant that the effect of her alterations to the form indicated that the
bank account details she was inserting were set out in the form when the customer signed it,
when this was not the case. The fact that there was a practice of having customers pre-sign
Progress Payment Request forms was not to the point. If the Applicant had simply transferred
funds into the account nominated in the pre-signed form, it would not have been such a
significant matter, notwithstanding that technically the use of pre-signed forms was not a
practice approved by the Bank.
[132] The third red flag should have been the fact that the Applicant had to manipulate the
signing of the Progress Payment Request form by having a colleague who was not the
Preparer of the form sign it in that capacity. The Applicant did this because she knew that the
Authoriser and the Preparer of the form could not be the same person. The Applicant also
knew, or should have known, that by taking these steps she was authorising her own work, in
circumstances where the process she was circumventing was designed to prevent that from
[2021] FWC 4
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happening. Further, the Applicant was authorising her own work when she had altered a pre-
signed form by changing the account into which funds were directed.
[133] I do not accept that the Applicant could not have picked up a telephone and contacted
a more senior colleague to get advice about how she could have complied with the
requirements for preparing and authorising the form, in circumstances where she was the only
person at the Branch who could act as Authoriser. The Applicant had previously contacted
Ms Hartley to seek advice and there is no reason she could not have done so again or
contacted Mr Holland or some other more senior person. The fourth red flag for the
Applicant should have been the series of four emails from the fraudster complaining that the
funds had not reached his CBA account. The Applicant should have contacted the customer
at that point. I do not accept that the fact that Applicant was on leave, was a reasonable basis
for her failure to take this step. Quite simply, if the Applicant could respond to four emails
sent by the fraudster while she was on leave, she could have telephoned the real customer.
[134] The Applicant believed that she was dealing with the real customer and that he was
telling her that the funds had not reached his account. On her own evidence, the Applicant
had told the customer that the funds should be in his account within 48 hours (albeit on
working days) and by 8 April 2020, that period had well and truly expired. The fact that the
Applicant did not have a contact number for the customer could easily have been addressed
by emailing someone at the Bank and asking for the customer’s telephone number or emailing
the customer asking the customer to provide his mobile phone number as she did not have
access to it at that time. Given that the customer is a builder and doubtless advertises his
services on the internet, the Applicant could also simply have conducted a search to obtain a
telephone number on which to contact him.
[135] Notwithstanding these matters, I am also of the view that there were factors which
mitigate the gravity of the Applicant’s conduct so that dismissal was not a sound, defensible
and well-founded response to that conduct. The first of these factors is the lack of training
provided to the Applicant in relation to fraud. Mr Holland’s evidence was that he viewed the
Applicant’s errors as an issue of experience and a failure to correlate training she had been
given to the real-life activities of the fraudster. The Applicant’s uncontested evidence was
that she was not provided with training in relation to fraud of the kind that she encountered on
1 April 2020. The Applicant also said – and I accept her evidence in this regard – that she had
not encountered fraud in all her years of employment at the Bank. Quite simply, the
Applicant had no basis to suspect fraud and no real life experience to apply to the situation
she was faced with. Even if the Applicant was given some training at the time she was
promoted to Branch Manager, that promotion occurred in 2014. As Ms Sun pointed out in her
evidence, email scams of the kind perpetrated on the Applicant have been more prevalent in
recent times.
[136] Second, the matters referred to by the Respondent as the “characteristics” of the
fraudulent emails are not matters that are so obvious that the Applicant should reasonably
have noted them. The difference in the grammar, format, layout and wording of the
fraudulent emails, compared to genuine emails from the actual customer is not so striking as
to raise a reasonable suspicion. In this regard, I note that the real customer’s command of
spelling and grammar was not of a high standard including that one document he sent to the
Bank misspelled the word “QUOTE” as “QOUTE”.
[2021] FWC 4
34
[137] It is also the case that the fraudulent emails were inserted into a chain which included
a genuine email from the actual customer. Further, font and formatting can change depending
on the device on which an email is generated and this can also result in the removal of
references to the email being sent by a particular program or app such as Mail for Windows
10. The genuine quote and the fraudulent quote were also not distinguishable and the fact that
the fraudulent quote contained a typographical error in that “Commonwealth” was spelled as
“CommonWealth” was not a significant departure from the customer’s previous documents.
Finally, the authentication data behind the fraudulent emails identified in Ms Sun’s report
such as headers and domains, is not visible on the face of the email and there is nothing in this
regard that should reasonably have raised the Applicant’s suspicion. As Ms Sun conceded,
they were only apparent in hindsight.
[138] These matters were put to the Applicant in the allegations letter and were not
addressed in the letter advising of the outcome of the investigation. In short, no outcome was
recorded to indicate that this matter was not taken into account in the decision to dismiss the
Applicant. While Mr Holland’s evidence was that he did not rely on these matters in deciding
to dismiss the Applicant, he included them in his notes of the meeting with the Applicant and
responses from the Applicant which he sent to the Respondent’s Human Resources staff. In
my view it is more probable than not that these matters were taken into account in
circumstances where no adverse finding could properly have been made against the Applicant
in relation to them.
[139] Third, the content of the first fraudulent email and the request to transfer the funds to a
CBA account, was consistent with the views of the customer. The evidence established that
the customer had issues with the BOQ loan funds and his access to them. The Applicant’s
evidence was that the funds had not been fully drawn down for an extended period and the
Respondent had issues with the loan because the customer had previously used some of the
funds on items such as landscaping rather than completing the house. The Applicant said that
the customer’s desire to use an account at another bank was consistent with his desire not to
be restricted on the way in which he spent the loan funds.
[140] Fourth, the Applicant was not a trained lender and as such, was not equipped to have
undertaken the transfer. The Sharepoint procedure “Action a Progressive Drawdown
Request” referred to by Mr Holland and appended to his witness statement, is directed to
Retail Branch Lenders and BOQ Business. The Applicant was not employed in either of
these roles. In relation to whether the procedure provides for telephone identification, it is
notable that while the procedure provides for a verbal check with the customer where the
account details for the progress payment have changed, this relates to a change to the account
details of the builder rather than those of the customer. The circumstances the Applicant was
dealing with involved a customer who was an owner builder, and whom the Applicant
genuinely believed had changed his own bank account details by email and had verified this
with an invoice. Further, the Applicant was conducting the transaction by email in the same
way she had conducted other transactions – albeit a limited number of such transactions.
[141] Fifth, the staff levels at the Nambour Branch were lower than usual when the
Applicant made the transfer, and I accept her evidence that this placed her under pressure.
Not only did the Applicant not have a lender in the Branch on the day in question, another
staff member training to be a lender was also absent. Further, the Applicant’s uncontested
evidence was that the Branch was unusually busy as a result of the demographic of its
customers and the effect of the COVID-19 Pandemic. It was also the case that the Applicant
[2021] FWC 4
35
was under some pressure due to the fact that she was going on leave. Mr Holland did not
place any weight on these matters and effectively disregarded them.
[142] Sixth, Mr Holland did not accept that the Respondent contributed to the circumstances
in which the Applicant found herself on 1 April 2020. In my view, Mr Holland’s refusal to
make any concessions in relation to this was unreasonable and it is clear from the evidence
that there were contributing factors brought about by the Respondent, to which Mr Holland
did not have regard. The pre-signed Progress Payment Authority form was not identified in
an audit of the Branch conducted in November 2018. That form was prepared by a previous
lender in circumstances where it should not have been, and its existence contributed to the
errors the Applicant made. The Applicant’s colleague Ms Condren also signed a form as
Preparer when she must have known that she did not prepare the form.
[143] It is also the case that while the emails querying the fact that the funds had not arrived
in the CBA account were sent by a fraudster, there is no evidence that the content of those
emails was incorrect. The CBA did not identify the transfer as fraudulent until 8 April. In
that time, four emails had been sent by the fraudster querying the fact that the funds had not
arrived, and the Applicant had forwarded those emails to other colleagues in the Nambour
Branch because she was on leave at the time. None of those colleagues took any steps to
contact the customer in circumstances where if they had done so, the fraud could still have
potentially been averted. This includes Ms Howlett-Arnold whom the Applicant telephoned
and specifically requested to contact the customer.
[144] Seventh, the Applicant was remorseful and expressed regret for the loss suffered by
the Bank and stated that she wished she had telephoned the customer. The Applicant’s
evidence of remorse was genuine and was not challenged at the hearing. I also note that the
Applicant expressed her remorse in the written response she gave to the allegations. Further,
the Applicant was able to explain the Respondent’s policies and accepted that she had not
complied with those policies. Having been the victim of email fraud for the first time in her
career and with the consequences of that fraud being so significant, there is no reason to
believe that the Applicant would repeat her conduct or that she would not take more care in
future.
[145] Eighth, Ms Sun’s report contained some factual errors. As Ms Sun conceded, her
conclusion that the Applicant’s claim that she had not spoken to the customer since 3 April
2020 was not credible, was wrong and the Applicant made no such claim. Further, Ms Sun’s
conclusion that the Applicant failed to obtain Ms Condren’s signature as preparer of the form
was incorrect and the Applicant did obtain the signature after the form was returned to her by
the Drawdowns team because the signature was missing.
[146] When all of these matters are considered, I do not accept that Mr Holland had a
reasonable basis to conclude that he could not trust the Applicant to properly carry out her
role as Branch Manager. I am also of the view that these matters mitigate the gravity of the
Applicant’s conduct to the extent that dismissal was not a valid, sound and defensible
response to the conduct. The Applicant deserved to be strongly censured for her conduct and
to have been subjected to some or all of the alternative measures to dismissal that Mr Holland
considered. However, although the balance is fine, in all of the circumstances I do not accept
that there was a valid reason for the Applicant’s dismissal.
Was the Applicant notified of the reason for her dismissal?
[2021] FWC 4
36
[147] As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty
Ltd61 procedural fairness requires that an employee be notified of a valid reason for dismissal
before any decision to dismiss is taken, in order to provide an opportunity to respond to the
reason identified. The real reason for the Applicant’s dismissal was Mr Holland’s loss of
confidence in her ability to undertake her role as a result of her conduct. While the Applicant
was notified in detail about the allegations in relation to her conduct, she was not notified that
Mr Holland had lost confidence in her ability to undertake her role as a result of that conduct.
Accordingly, the Applicant was not notified of the reason for her dismissal in a manner that
enabled her to fully respond.
Was the Applicant given an opportunity to respond to the reason for her dismissal?
[148] While the Applicant was given an opportunity to respond to the allegations about her
conduct, the failure to advise the Applicant that there was a loss of trust and confidence in her
to carry out her role as a result of that conduct, meant that she did not have an opportunity to
respond to the reason for her dismissal.
[149] Mr Holland decided that the Applicant had not indicated that she understood what she
could have done to avert the fraud in circumstances where, on his own version of the
discussion, he did not ask the Applicant to answer this question. Further, Mr Holland did not
put the proposition of his lack of trust in the Applicant’s ongoing ability to manage the
Nambour Branch, so that she had an opportunity to respond.
Was there an unreasonable refusal by the Respondent to allow the Applicant to have a
support person
[150] The Applicant did not request a support person and states that she chose to attend the
meeting of 6 May 2020 without a support person. Accordingly, there was no refusal to
provide the Applicant with a support person.
Did the size of the employer’s enterprise impact on the procedures followed in effecting the
dismissal of the Applicant?
[151] The employer is a large business and this is a neutral consideration in the present case.
Did the absence of dedicated human resource management specialists or expertise in the
enterprise impact on the procedures followed in effecting the Applicant’s dismissal?
[152] The employer has dedicated human resource management specialists who were
involved in the decision to dismiss the Applicant and this is also a neutral consideration.
Other relevant matters
[153] The Applicant raised a number of matters which she submits mitigate the conduct she
engaged in. I have considered some of these matters as part of considering whether there was
a valid reason for the Applicant’s dismissal. A further matter which is of significance is the
Applicant’s length of service and her excellent work record. The Applicant’s performance
review immediately prior to her dismissal was overwhelmingly positive. Mr Holland seems
to have had little regard for this in his decision to dismiss the Applicant and to have reached a
[2021] FWC 4
37
conclusion that he had lost trust and confidence in her without considering her employment
record. Mr Holland’s evidence that he had regard to the matter of the Applicant’s employment
record is at odds with the contemporaneous email he sent to HR on 7 May 2020, which makes
no reference to this matter.
[154] I also note that Mr Holland’s evidence about why he rejected alternatives to dismissal
is somewhat at odds with the operational changes that have been implemented in the
Nambour Branch since the Applicant’s dismissal, including that the Manager of another
Branch splits time between Nambour and Coolum and there is also a part-time lender
allocated to the Nambour Branch. In those circumstances, Mr Holland could have increased
monitoring and supervision of the Applicant by virtue of the Coolum Manager undertaking
this task.
[155] In normal circumstances the reasons for the Applicant’s dismissal would have made
it difficult for her to obtain alternative employment. Further the Applicant has lost credits for
accrued entitlements. The adverse impact of dismissal for the Applicant is heightened by the
difficult economic conditions caused by the COVID-19 Pandemic which has further affected
the Applicant’s ability to obtain alternative employment.
CONCLUSION
[156] For these reasons I find that the Applicant’s dismissal was unfair. Having considered
the matters in s. 387, I am satisfied that on balance, the dismissal was harsh, because of its
effect on the Applicant in the context of her good employment record and the length of her
service. While the Applicant did engage in misconduct which was careless, her dismissal was
also unreasonable because Mr Holland’s conclusion that the Applicant could not be trusted to
carry out her role in future, was not soundly based. The parties sought that I first determine
whether the dismissal was unfair and then determine remedy after further submissions.
Accordingly, the matter will be listed for Mention to program proceedings in relation to
remedy.
DEPUTY PRESIDENT
Appearances:
Mr M White of Counsel instructed by Ms Bell of Butler Mc Dermott Lawyers for the
Applicant.
Mr J Wells of King & Wood Mallesons for the Respondent.
Hearing details:
THE SEAL OF THE MISSION IR WORK COM
[2021] FWC 4
38
2020.
Brisbane.
29 September 2020.
Printed by authority of the Commonwealth Government Printer
PR725939
1 Transcript at PN216 – 221.
2 Transcript at PN122 – 123.
3 Transcript at PN50 – 60.
4 Transcript at PN78.
5 Transcript at PN87 – 90.
6 Transcript at PN97.
7 Transcript at PN169 – 171.
8 Transcript at PN389 – 397.
9 Transcript at PN340.
10 Transcript at PN335 – 343.
11 Transcript at PN366 – 372.
12 Transcript at PN375 – 379.
13 Transcript at PN383 – 388.
14 Transcript at PN414 – 419.
15 Transcript PN407 – 408.
16 Transcript at PN407 – 412.
17 Transcript at PN547.
18 Transcript at PN560 – 563.
19 Transcript at PN567 – 569.
20 Transcript at PN629 – 630.
21 Transcript at PN631 – 633.
22 Transcript at PN645 – 650.
23 Transcript at PN482.
24 Exhibit R2 – “BH-5”
25 Transcript at PN472 – 476.
26 Transcript at PN501.
27 Transcript at PN502 – 503.
28 Transcript at PN466 – 467.
29 Transcript at PN574 – 580.
30 Transcript at PN652 – 694.
31 Transcript at PN695 – 717.
32 Transcript PN727 – 750.
33 Transcript PN752 – 753.
34 Transcript at PN723 – 726.
[2021] FWC 4
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35 Exhibit R2 Annexure “BH-6”.
36 Transcript at PN783.
37 Transcript at PN785.
38 Transcript PN656 – 694.
39 Transcript PN685 – 691.
40 Transcript at PN93.
41 Transcript at PN120.
42 Transcript at PN232 – 238.
43 Transcript at PN153 – 158.
44 B, C and D v Australian Postal Corporation T/A Australia Post (2013) 238 IR 1.
45 Mammarella v Department of Parliamentary Services [2019] FWC 6340.
46 Witness Statement of Mr Brett Holland dated 25 August 2020 – annexure BH-7.
47 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201
at 204.
48 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
49 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
50 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
51 Bista v Glad Group Pty Ltd [2016] FWC 3009.
52 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing
MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
53 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines
(1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
54 [2016] FWC 3009
55 (1995) 62 IR 371 at 373.
56 Ibid at [37].
57 (1999) 94 FCR 561
58 Op. cit. at [40].
59 See Byrne v Australian Airlines Ltd [1995] HCA 24, (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
60 (1999) 94 FCR 561
61 (2000) 98 IR 137.
