[2013] FWC 347 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jennifer Fisher
v
ANZ Banking Group Limited
(U2012/13108)
COMMISSIONER RIORDAN |
SYDNEY, 6 MARCH 2013 |
s.394 Application for Unfair Dismissal Remedy.
[1] This decision relates to an application lodged on 11 September 2012 by Ms Fisher pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to an alleged unfair termination of her employment by ANZ Banking Group Limited (ANZ).
[2] At the hearing on 4 December 2012 in Griffith, Ms Fisher was represented by Mr A Slevin, of Counsel, and Ms K Byrnes from Turner Freeman Lawyers. ANZ were represented by Mr P Wheelahan, of counsel, and Ms T Finn from Ashurst Lawyers. On behalf of Ms Fisher sworn evidence was given by herself, Ms Webster (her mother), Ms Russell, Ms Dal Broi, Ms Snaidero (who are employees or former employees of ANZ at Griffith Branch) and Ms McNiven who is an Advocate and Organiser with the NSW/ACT Branch of the Finance Sector Union. On behalf of ANZ sworn evidence was given by Ms Jardine (District Manager, New South Wales, South West), Ms Curran (Griffith Branch Manager), Ms Meredith and Ms Murray (employees of ANZ at Griffith Branch).
[3] Final written submissions were tabled on 29 November 2012 and closing submissions were heard on 18 December 2012 in Sydney. A supplementary affidavit from Ms Curran and a statement from Ms Fisher were tendered on 12 February 2013.
Background
[4] The majority of the facts in this case are uncontested. Ms Fisher worked exclusively for ANZ for 32 years between January 1974 and August 2012, with a six year uninterrupted break to start and raise her family. During her employment she worked in various roles within the Bank and had never previously received a warning or counselling in relation to her performance or conduct. Her last role was that of a part time teller at the Griffith Branch. Ms Fisher has lived in Griffith or the surrounding community for the majority of her life.
[5] On 30 June 2011, Ms Fisher received training in relation to the Prohibited and Restricted Activities Policy. This policy prevents employees from undertaking transactions on the bank accounts of family members and friends.
[6] Between August 2011 and September 2012 Ms Fisher breached this policy on five occasions (1 September 2011, 2 December 2011, 29 March 2012, 21 June 2012 and 2 August 2012) by serving her mother at the Griffith Branch. ANZ discovered the last transaction on 10 August 2012 and undertook an investigation which uncovered the other transactions.
[7] There is no suggestion that Ms Fisher participated in any fraudulent activity. There is no suggestion of personal gain. Her alleged serious and wilful misconduct was restricted to cashing a cheque on her mother’s account on five occasions.
[8] Ms Fisher was presented with a letter on 27 August 2012, which said the following;
“Dear Jennie
Invitation to a meeting regarding your behaviour
As discussed with you today, ANZ has reason to believe that you may have breached our Code of Conduct and Ethics and Prohibited and Restricted Activities policy by cashing a cheque on a family member’s account.
ANZ considers these allegations to be serious. If substantiated, this behaviour would be considered to be a breach of our policy, procedures and values, and may result in the bank taking formal disciplinary action. Disciplinary action could range from a warning up to termination of your employment.
I would like to meet with you to discuss the allegations. During the meeting I will be seeking to gain a full explanation of the situation from you. You will be given every opportunity to appropriately respond to the allegations.
I propose that we meet on Thursday 30th August at Griffith branch, 11.00am. Catherine Jardine, District Manager will also be in attendance, along with Xina Weremchuk, Senior Employee Relations Advisor, dialling in via telephone. You may bring a support person to the meeting.
I would like to take this opportunity to remind you of the Employee Assistance Program (EAP). This is a confidential counselling service provided by Davidson Trahaire Corpsych who can be contacted on 1300 360 364.
Please contact me directly if you have any questions about the meeting.
Yours sincerely
Michelle Curran
Branch Manager” 1
(My emphasis)
[9] The disciplinary meeting took place on 30 August 2012. This meeting was attended by Ms Fisher, Ms Jardine and Ms Curran. Ms McNiven from the Finance Sector Union and Ms Weremchuk, from ANZ Human Resources Department, attended by telephone. Both Ms Jardine and Ms Curran were inexperienced in relation to the disciplinary process.
[10] Ms Fisher was dismissed at the conclusion of this meeting. A formal letter of dismissal was provided to Ms Fisher on 31 August 2012 in the following terms;
“Dear Jennie,
Termination of employment with notice
I refer to our meeting on 30 August 2012, which was also attended by Catherine Jardine, District Manager, Xina Weremchuk, Senior Employee Relations Advisor and your support person Jeni McNiven from the Finance Sector Union.
In accordance with the Global Performance Improvement & Unacceptable Behaviour Policy, I am writing to notify you that, following an investigation of your behaviour, I confirm the decision to terminate your employment effective 30 August 2012.
The reason for this decision has been discussed with you in our meeting, and you have had an opportunity to respond. ANZ has found that the following behaviour by you constitutes unacceptable behaviour;
You engaged in the above behaviour even following your receipt of explicit instructions further to the policy cautioning against servicing the accounts of relatives or friends at a meeting that you and your team attended and acknowledged understanding of on 30 June 2011.
It is considered that this behaviour is in breach of the Code of Conduct & Ethics, the Prohibited and Restricted Activities policy and our Values.
In arriving at my decision, I have taken into account your response, which was:
In terms of mitigating factors. I have also considered your length of service and employment history. However, we consider that your unacceptable behaviour has irrevocably destroyed the trust and confidence fundamental to your employment relationship with ANZ.
All monies owing to you will be calculated as at 30 August 2012 and will be deposited into your nominated bank account. Details will be forwarded to your home address. This final payment will include five weeks’ pay in lieu of notice. You are also reminded to return any ANZ property to me as soon as possible.
ANZ wishes to extend to you the services of our Employee Assistance programme (EAP). If you require this service, please contact Davidson Trahaire Corpsych on 1300 360 364.
Yours sincerely
Michelle Curran
Branch Manager” 2
(my emphasis)
Evidence
[11] In summary, Ms Fisher claims that;
• she was not provided with the requisite procedural fairness
• she was not the only teller who served family or friends in breach of the policy
• there were mitigating circumstances in relation to their transactions including on one occasion when the Branch Manager had authorised the breach of the policy
• the termination of her employment was harsh, unjust and unreasonable; and
• the appropriate remedy should be reinstatement.
[12] In summary, ANZ has submitted that;
• Ms Fisher knowingly and deliberately breached ANZ’s policy on serving family members.
• such behaviour is defined as serious misconduct
• Ms Fisher has not acted honestly or with integrity throughout this process; and
• if the Commission found that the dismissal was harsh, unjust or unreasonable that reinstatement would not be an appropriate remedy
Statutory Provision
[13] In considering whether a dismissal is harsh, unjust or unreasonable, Fair Work Commission (FWC) must take into account the provisions of s.387 of the Act;
“Section 387 Criteria for considering harshness etc.
(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 in any discussion relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.” 3
Matters to be Considered
[14] I have taken into account all of the submissions and evidence of the parties and I have set out my conclusions and findings below.
Section 387(a) - Valid Reason
[15] In essence ANZ submitted that Ms Fisher’s blatant and repeated breach of the policy constituted serious misconduct and a valid reason to terminate her employment. Ms Fisher does not contest that the conduct occurred but submits that there were mitigating circumstances.
[16] In Qantas Airways Ltd v Cornwall 4, the Full Court of the Federal Court said;
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.” 5
[17] In Edwards v Giudice 6, in a different legislative framework, Moore J made the following observation in relation to the operation of s.170CG(3) of the Workplace Relation Act;
“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.
The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.” 7
(My emphasis)
In Byrne v Australian Airlines 8, the High Court endorsed the decision of Doussa J in Lane v Arrowcrest Group Pty Ltd (1990);9
“Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weight against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.” 10
(My emphasis)
Whilst this case is predominantly relied upon as support for an employer to rely on facts after the termination of employment, it also highlights the requirement for an employer to make an appropriate level of enquiry in relation to the facts of a case before an employee is terminated.
[18] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne sets the parameters for these types of determinations;
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...
Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...” 11
[19] The Full Bench of the AIRC in Australia Meat Holdings Pty Ltd cited this decision in definitive terms;
“The above extract is authority for the proposition that a termination of employment may be:
[20] There is no doubt that the conduct relating to the cashing of cheques alleged by ANZ occurred - that was an agreed fact between the parties. Breach of any employer's policy can be a valid reason for the termination of an employee's employment. On-going breaches simply increase the validity of the reason, although, summary dismissal, or immediate termination with notice but without prior warning, has historically been reserved for serious incidents of misconduct such as fraud, assault or life threatening breaches of safety. I find that there was a valid reason for the termination of Ms Fisher's employment in that she knowingly breached an ANZ policy on five occasions in relation to cashing her mother’s cheques. However, for reasons which I have outlined later in this decision, I am not satisfied that there was a valid reason for the termination of Ms Fisher's employment based upon any dishonesty in relation to her allegation that Ms Curran condoned her conduct.
Section 387(b) - Notification of reason
[21] Ms Fisher was notified that she may have breached the ANZ Code of Conduct and Ethics and the Prohibited and Restricted Activities Policy by cashing a cheque on her mother’s account. However, during the disciplinary meeting it became clear that this allegation included the allegation that Ms Fisher had actually cashed a cheque on five occasions, that Ms Fisher was actually a third party signatory to her mother’s account and also, and more significantly since this was relied upon as one of the grounds for termination of Ms Fisher's employment, that Ms Fisher had falsely accused Ms Curran of having authorised her to conduct one of the transactions on her mother’s account.
[22] The testimony of Ms Jardine was that the phrase “cashing a cheque” really means cashing multiple cheques. Her explanation that the phrase really defines the whole behaviour of Ms Fisher, including the five transactions and the fact that she was a signatory on her mother’s bank account, is unconvincing.
[23] The High Court of Australia has dealt with such issues of interpretation by concluding that words must be given their ordinary meaning. I would interpret “cashing a cheque” to mean cashing a single cheque.
[24] ANZ knew of the five transactions prior to issuing the letter on 27 August 2012 and was obligated to provide Ms Fisher with this information. The phrasing of the allegation provided to Ms Fisher was open to both constructions. The phrasing should have been clearer so that Ms Fisher understood that she was responding to an allegation concerning five transactions. Her response may have been different had she understood that fact. Five transactions is an allegation of a course of conduct.
[25] I have concluded and find that Ms Fisher was appropriately notified of one actual allegation concerning a particular transaction but not the extended cheque related allegations.
[26] I am satisfied and find that by raising the other issues during the disciplinary meeting, Ms Fisher was denied procedural fairness. I am also satisfied and find that this was a breach of the ANZ Disciplinary Policy.
Section 387(c) - Opportunity to respond
[27] Ms Fisher’s representative, Ms McNiven requested that all of the allegations be provided to Ms Fisher in writing but her request was refused. 12 I have concluded and find that this was a breach of the ANZ Disciplinary Policy and that Ms Fisher was not given an adequate opportunity to prepare a response to the extended accusations. I have concluded that the proposition that there was no reason to put all of the allegations in writing13 is wrong but in any event was unreasonable in the circumstances.
[28] In addition, in relation to the allegations as a whole, I have concluded and find that the opportunity to respond provided by ANZ was inadequate. Ms Fisher received a letter on 27 August 2012 appointing a meeting on 30 August 2012. Her opportunity for obtaining advice and preparing a response was more limited than it needed to be, particularly given the serious consequences likely to arise from the meeting on 30 August 2012. If the consequences of a disciplinary meeting are likely to be termination of employment it is more important than in all other circumstances to maximise, within reason, the period available for preparation of a response. In this case, the finding of dishonesty in relation to the conflict between Ms Fisher’s evidence and that of Ms Curran, was of particular significance in ANZ's conclusions and as such a proper and thorough investigation would have been appropriate.
[29] The conclusion of dishonesty was never separately put to Ms Fisher. She was never given the opportunity to respond to the accusation. Her dishonesty was determined during a short break in the disciplinary meeting on 30 August 2012. This was the same meeting during which a conclusion was drawn on this issue and in which Ms Curran was both a participant and adjudicator.
Section 387(d) - Support person
[30] ANZ allowed Ms Fisher to have a representative from the Finance Sector Union (FSU) present at the disciplinary interview.
Section 387(e) - Warnings of unsatisfactory performance
[31] Ms Fisher has not previously been warned for any unsatisfactory performance or conduct.
Section 387(f) - Size of the Enterprise
[32] This is not relevant.
Section 387(g) - Human Resource Management Specialists
This is not relevant.
Section 387(h) - Other factors
[33] Having considered the evidence of the witnesses, I have concluded and find that the disciplinary meeting on 30 August 2012 was conducted in a manner where by ANZ tried to trick or “catch” Ms Fisher with inconsistent answers. I am satisfied that was an attempt at entrapment. I have concluded and find that this type of conduct is inappropriate and a breach of the principles of procedural fairness.
[34] Ms Fisher had 32 years employment with ANZ. That employment was without prior blemish.
[35] The termination of employment of Ms Fisher was likely to have serious financial and social consequences for her. Given the nature of the reasons for the termination of employment she was unlikely to be able to locate employment in the same sector. Given her age, her rural location and the circumstances of her dismissal, finding further employment was likely to be difficult.
[36] The conduct relied upon for the termination of Ms Fisher’s employment did not involve any aspect of dishonesty. She did not try to hide her conduct. There was no personal gain involved.
[37] Ms Jardine admitted that the allegation made by Ms Fisher about Ms Curran was part of the reason that Ms Fisher was dismissed. 14 I have already found that this allegation was not investigated in a manner that was appropriate or in accordance with ANZ Policy. Ms Curran was the signatory to Ms Fisher's letter of termination. Ms Curran says in the letter of termination "... you falsely alleged that I gave you authority to service your relatives’ accounts on one occasion." There was a clear factual contest between Ms Fisher and Ms Curran. Ms Curran was part of the team that investigated and resolved that issue, which involved an issue of credit, and then determined an outcome. That cannot be, in any circumstance, an independent review and investigation. Had such an investigation been conducted, then Ms Jardine would have discovered the flexible approach adopted by staff in relation to the serving of family and friends. This should have been a factor in determining the appropriate disciplinary action.
[38] Unfortunately Ms Curran was unable to recall a number of important incidents throughout the process. I am in no doubt that Ms Fisher introduced Ms Curran to her mother whilst standing at the teller. Ms Curran cannot fully recall this event. Ms Curran denied its occurrence during the disciplinary hearing on August 30, then did not deny the interaction in her affidavit or under cross examination.
[39] Ms Curran was also hazy in her recollection of events at the disciplinary hearing, the training session on 30 June 2011 and her one on one discussions with Ms Meredith and Ms Murray in relation to the taking of breaks.
[40] I accept Ms Fisher’s evidence regarding the condonation of her conduct by Ms Curran.
[41] I have given consideration to the community in which this particular ANZ branch operates. I have concluded that the application and implementation of policies of the kind breached by Ms Fisher are, on balance, likely to be more difficult to implement in such locations.
[42] I have concluded, for reasons already outlined, that ANZ did not follow its own “Performance Improvement and Unacceptable Behaviour Policy” 15 when dealing with Ms Fisher". It did not, in all respects, provide procedural fairness. Of particular interest are the following extracts of the Policy;
“1. Statement of Policy
This policy is the foundation of all performance improvement, behaviour and disciplinary related matters arising at ANZ globally and replaces all previous policies dealing with performance improvement and misconduct globally (including ANZ’s Employee Misconduct Policy and Performance Improvement Policy).
Of particular relevance to this policy are the Integrity (“do what is right”), Accountability (“own your actions”) and Respect (“value every voice”). It is important to follow a process which ensures fair, consistent and defensible outcomes are achieved. A defensible outcome is one which affords both substantive and procedural fairness to the employee.
(My emphasis)
Procedural fairness requires a fair and proper procedure be followed when making a decision. The rules of procedural fairness require that an employee be informed of allegations being made, be given an opportunity to respond to all allegations in a manner appropriate to the circumstances and have their response fully considered. There must also be an absence of bias, evidence to support a decision and an inquiry into matters in dispute.
Substantive fairness requires that there be a valid reason justifying the decision.
5. Unacceptable behaviour
The purpose of this section of the policy is to provide guidance for employees and managers about how an employee’s failure (or alleged failure) to meet expected standards of behaviour (including misconduct, breach of the Code of Conduct and Ethics or other ANZ policy, or breach of risk and compliance standards) should be managed.
5.1 Guiding principles
5.2 Unacceptable Behaviour
Unacceptable behaviour is behaviour that is inconsistent with the principles and standards expressed in the ANZ policies. Unacceptable behaviour includes misconduct, breaches of the ANZ Code of Conduct and Ethics and breaches of risk and compliance standards.
6. Consequences
The types of consequences ANZ may apply to an employee for failing to meet expected standards of performance, behaviour and compliance include:
6.1 Determining the appropriate consequence
Although consequences should generally be consistent for the same type of Unacceptable Behaviour, there is no ‘one size fits all’ approach to deciding an appropriate consequence. Each case will require consideration of “all of the circumstances”. For instance, if the standard of behaviour was not clearly explained to the employee or there is a culture in the particular workplace to behave in a way that does not meet the expected standards, a less severe consequence may be appropriate.
7. Termination
If termination is deemed to be the appropriate consequence, the following guiding principles are relevant.
The termination should not come as a surprise to the employee.
Where the reason for termination is failure to meet expected standards of behaviour, the employee’s Unacceptable Behaviour should have been managed in line with the Unacceptable Behaviour process.”
(My emphasis)
[43] Whilst a lack of procedural fairness on its own is not enough to convert an otherwise valid termination of employment into a harsh, unjust or unreasonable termination of employment, it is still a factor to be taken into account overall.
[44] I am not satisfied, although Ms Fisher attended training in relation to the relevant policy, that it or the consequences of its breach were properly explained. Ms Fisher attended a training session on 30 June 2011 where the Prohibited Activities Policy was discussed. It was one of seven issues on the Agenda. Ms Curran could not recall if the meeting was held before or after the opening hours of the Bank 16. The minutes of the meeting17 (although they are only notes and not proper minutes) provide nothing more than headings. I am not aware if the staff were advised that a breach of the policy would lead to their dismissal. I am aware that it was a lengthy agenda to work through in just thirty minutes, either prior to or at the conclusion of, the busiest day in the financial calendar. Based on the size and importance of this Policy, a full training session should have been dedicated to its explanation.
[45] I am prepared to accept that after examining the Mytel records of the Bank 18, Ms Fisher undertook the five transactions when the Bank was either extremely busy or she was the only teller serving at the time. Ms Fisher only conducted these transactions on behalf of her mother who is not a young woman. Ms Fisher also had some concern for ageing customers who stood in line and waited. This is understandable. These are mitigating circumstances.
[46] The policy has a restrictive element which does not necessarily fit an attractive corporate image for ANZ in a small branch in a regional town in NSW. There is an obvious public interest in ensuring that there is no conflict of interest in the operation of accounts. However, I would think that the court of public opinion would not judge ANZ kindly if it was known that a long serving employee was sacked for serving her 80 year old mother who was recuperating from a bout of pneumonia and who was running late for a doctor’s appointment. I have concluded that these are mitigating circumstances.
[47] There is a conflict between the rationale of having a non service of family and friends policy whilst at the same time encouraging staff to recruit family and friends as customers. 19 This is particularly so in a small town. There is a process which allows employees to speed up the transaction process by writing on the cheque “known to staff.” Once again, such a process would appear to be in conflict with the strict wording and intent of the Policy.
[48] ANZ raised an issue in relation to a bullying and harassment claim against Ms Fisher and another employee in 2011. A copy of the final report was tendered as evidence. 20 It is interesting to note that Ms Jardine conducted the investigation and determined:
“The conduct demonstrated by the Respondent does not constitute breach of Policy and accordingly, there are no grounds for disciplinary action to be taken.” 21
[49] Ms Fisher was completely exonerated in relation to this accusation yet Ms Jardine believes it is another reason why Ms Fisher should not be reinstated. 22 This rationale is fundamentally flawed. I have not taken into account the previous investigation. I have concluded and find that the conduct, the subject of the investigation, is irrelevant to the matters before me for decision.
[50] ANZ submitted that Ms Fisher had made derogatory comments about Ms Curran to another member of the staff. Whilst this activity should not be encouraged or condoned it is hardly a sackable offence. Such comments are part of the Australian culture and have many variations. If every Australian worker who made derogatory comments about their boss was sacked then the unemployment rate would be exponentially higher than it is today. This was not a matter relied upon for the termination of Ms Fisher's employment and I considered it to be irrelevant to the matters before me for determination.
[51] I have taken into account the fact that Ms Fisher’s recollection was inconsistent with other witnesses. However, these inconsistencies were in relation to issues of a minor nature that did not have an affect on the fundamental issues involved in this case.
[52] I have concluded that the ANZ Bank at Griffith was not functioning appropriately from an operational point of view. It had recently failed an internal audit process 23 which would have been very embarrassing for all concerned. When it started checking the teller’s vouchers on a daily basis, as was required, Ms Fisher’s transaction was discovered. If the Branch had been functioning properly in September 2011, then the first transaction would have been discovered and the appropriate disciplinary process followed. ANZ failed to discover and act on this transaction due to an operating error and, to some extent, as a result of a failure by management to supervise.
[53] Dismissal for serious and wilful misconduct is not a new phenomenon although, historically, it has more regularly been utilised for serious offences such as theft, assault, policy breaches involving dishonesty or serious safety breaches.
[54] I do not regard the policy breach by Ms Fisher as falling within the scope of serious and wilful misconduct. Ms Fisher was also denied the requisite levels of procedural fairness in accordance with the Act and the various policies of ANZ.
[55] I have concluded and find that the dismissal of Ms Fisher was harsh, unjust and unreasonable because it was harsh in its social and financial consequences for Ms Fisher and because it was an unreasonable outcome given the breach of policy involved and the number of factors which I have outlined in my consideration of the criteria to which my attention is directed by the Act.
Remedy
[56] There are two remedies available once a dismissal has been determined to be harsh unjust or unreasonable, ie, reinstatement or the payment of compensation.
Section 390 When FWA may order remedy for unfair dismissal;
“390(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).”
[57] When considering the appropriate remedy, I am obliged to consider the Objects of the Act;
“Section 381 Object of this Part
381(1)(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”
[58] If an employment relationship has deteriorated to such a point that it cannot reasonably be re-established then reinstatement may not be an option.
[59] ANZ submitted that it no longer had any trust in Ms Fisher or her willingness to follow instructions 24 into the future. In my view, this is an unreasonable conclusion based on the evidence. Ms Fisher has promised not to breach the policy again. Ms Jardine accepted that Ms Fisher was genuine in her commitment .25
[60] Ms Fisher had been a model employee for more than three decades apart from the five transactions on her mother’s bank account. This was the only reason provided for the loss of trust said to be felt by Ms Curran. 26
[61] In Australian Meat Holdings Pty Ltd, 27 the Full Bench of the AIRC made the following observations;
“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.
In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Court said:
“... we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the court were to adopt to a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits.” 28
[62] These observations remain relevant to the question of whether reinstatement is the appropriate remedy.
[63] Further, Bromberg J in Quinn v Overland 29 dealt with the appropriateness of reinstatement in the following terms;
“...Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential.” 30
[64] Ms Fisher has apologised. She can be put on notice that a further breach of the policy would lead to her dismissal. Ms Fisher is entitled to a fair go. She has been a loyal and a dedicated employee of ANZ with 32 years of exemplary service. She made a mistake for which she has apologized profusely and promised never to repeat. I have concluded and find that it is possible for Ms Fisher and Ms Curran to re-establish an appropriate working relationship.
[65] It is worth noting that as of 18 March 2013, Ms Curran is moving to a new role and will no longer be the Branch Manager or a direct report for Ms Fisher. Whilst this has not been a determinative factor in my decision to reinstate Ms Fisher, the change in circumstances will certainly make the transition back to employment far easier for all concerned.
[66] Ms Fisher's employment prospects outside of ANZ, based on her age, her restricted and narrow experience and long term residential location mean that her alternate employment prospects would be limited.
[67] For all the reasons for decision which I provided when determining whether the termination of Ms Fisher's employment was harsh unjust or unreasonable, the contemplation of the future relationship of the parties and in the interests of restoring Ms Fisher to the position she would have been in had she not been harshly, unjustly or unreasonably terminated in her employment, I am satisfied that reinstatement is appropriate in all the circumstances of this case. However, nothing in this decision prevents ANZ from issuing Ms Fisher with a final warning.
[68] Pursuant to section 391 of the Act, I have decided to order the reinstatement of Ms Fisher to the position which she occupied immediately before her dismissal, with continuity of employment and payment of all lost salary.
[69] An Order will be issued to that effect.
COMMISSIONER
1 Exhibit ANZ 6 - MC6
2 Exhibit ANZ 6 - MC10
3 Fair Work Act 2009
4 [1998] FCA 865
5 [2012] FWA 8982 at para 44
6 [1999] FCA 1836
7 [1999] FCA 1836 at para 6 - 7
8 (1995) 185 CLR 410
9 (1990) 27 FCR 427
10 (1995) 185 CLR at 467
11 (1995) 185 CLR 410 at 465 - 468
12 Transcript - PN1051
13 Transcript - PN816
14 Transcript - PN772
15 Exhibit JF 8
16 Transcript - PN937
17 MC4
18 Exhibit MFI 2
19 Exhibit JF 8 - PN15
20 Exhibit ANZ 5
21 Exhibit ANZ 5, pg 7
22 Transcript - PN800
23 PN822
24 Transcript - PN745
25 Exhibit JF 6
26 Transcript - PN916-917
27 Print P9625 - 24 March 1998
28 IBID 14-15
29 [2010] FCA 799
30 Downe at 462
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