| [2019] FWC 1950 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Longke Tang
v
National Australia Bank Limited
(U2018/11410)
COMMISSIONER CAMBRIDGE |
SYDNEY, 29 MARCH 2019 |
Unfair dismissal - misconduct involving dishonesty and flawed performance - factual findings of employer verified - dismissal not harsh, unjust or unreasonable - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 6 November 2018, and it was made by Longke Tang (the applicant). The respondent employer is the National Australia Bank Limited (the employer or NAB).
[2] The application indicated that the date that the applicant’s dismissal took effect was 22 October 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 8 February 2019. On 1 February 2019, the application was the subject of a Directions proceeding during which the Commission refused the employer’s request for permission to be granted for it to be represented by lawyers.
[4] At the Hearing, the applicant represented herself, and she provided evidence as the only witness called in support of her unfair dismissal claim. The employer was represented by its Senior Consultant, Employee Relations, Ms J Swan. Ms Swan called three witnesses who provided evidence on behalf of NAB. Each of the witnesses called by the employer were cross-examined by the applicant.
[5] At the conclusion of the Hearing on 8 February, the applicant was granted a further opportunity to provide closing submissions in writing, which were subsequently filed and served on 15 February 2019.
[6] The applicant had worked for NAB for about 2 years and 10 months. The applicant was initially engaged as a Banking Advisor, and in October 2017, she was promoted to the position of a Mobile Banker. The applicant was based at the NAB Branch Office located in the Sydney suburb of Rhodes.
[7] NAB is one of the four major retail banks operating in Australia. NAB has more than 700 Branches across Australia, and it employs more than 34,000 employees.
[8] The role of the applicant as a NAB Mobile Banker primarily involved the processing of home loan applications made by customers or potential customers of NAB. In addition, she provided these customers with assistance and access to the range of financial services that are provided by NAB.
[9] Prior to the events leading to her dismissal, the work of the applicant was without recorded complaint regarding her performance or conduct.
[10] The applicant’s role as a NAB Mobile Banker included her regular contact with individuals or companies that are referred to as approved NAB “Introducers”. An Introducer is paid a commission by NAB for referring new loan customers to NAB. NAB maintains an inventory of approved Introducers who are typically individuals or businesses such as real estate agents, accounting firms, builders, et cetera, who refer their customers or clients to NAB. As a standard business practice, NAB regularly conducts reviews of the individual Introducers that it has approved.
[11] In June 2018, NAB’s Broker Network Assurance team was conducting a standard review of an approved Introducer named, AU Gold Realty Pty Ltd, (AU Gold) a business that was operating as a real estate agency in George Street, Sydney. The review of AU Gold discovered inter alia, a particular home loan that had been provided to a customer (customer Z), for which AU Gold was the recorded Introducer, and which had been established with the use of fraudulent documents including a false contract of sale, and false payslips to support the loan application (the fraudulent loan). The review also revealed that the applicant was the NAB Mobile Banker who had assisted customer Z with establishing what was discovered to be the fraudulent loan.
[12] The Broker Network Assurance review identified a number of loans where AU Gold was the Introducer and which included certain irregularities which suggested that the documentation used to establish the particular loan appeared to contain false or misleading information. Consequently, NAB commenced an investigation into the circumstances of a number of loans for which AU Gold was the Introducer.
[13] At an early stage of this investigation, 8 June 2018, the applicant was involved in a meeting with one of her immediate superiors, a Lending Consultant, Ms Tanna. Ms Tanna had provided professional coaching to the applicant, and she had worked closely with the applicant during her training and professional development as a Mobile Banker. Ms Tanna had been asked by a Senior Analyst in the Broker Network Assurance team to meet with the applicant and informally obtain further information about the applicant’s involvement in assisting with the establishment of what had been discovered to be the fraudulent loan, and her relationship with customer Z and AU Gold.
[14] During the meeting on 8 June 2018 with Ms Tanna, the applicant provided responses to questions about aspects of the fraudulent loan that were very concerning to Ms Tanna. The applicant was not clear about how she had met customer Z, nor was she clear about exactly how customer Z had been referred to her by AU Gold as the nominated Introducer.
[15] At one point during the meeting, Ms Tanna telephoned customer Z on a speakerphone and she commenced by asking him about his customer experience with NAB. Ms Tanna then asked customer Z about aspects of the loan that had been established for his property purchase. Customer Z provided blatantly false information about the purported property purchase which had been the basis for the provision of the fraudulent loan. Ms Tanna also asked the customer if he was happy with the Introducer program, and he responded that he had no knowledge of what Ms Tanna was talking about. At this point, the applicant interrupted the telephone conversation; she identified herself to customer Z, and she suggested to customer Z that he did remember seeing Ms Meiying Song (a.k.a. Rain Song), from AU Gold. Customer Z then said that he did remember Ms Song but he had forgotten the Introducer’s name.
[16] The focus of the investigation that NAB commenced as a result of the Broker Network Assurance team review of the approved Introducer, AU Gold, was directed at irregularities associated with loans that had involved AU Gold as the Introducer, and particularly concerning the fraudulent loan. Consequently, the investigation was initially directed towards AU Gold and customer Z. However, as a result of the responses and conduct of the applicant during the meeting with Ms Tanna on 8 June 2018, the conduct of the applicant became the subject of further investigation by the Serious Crime Investigations team at NAB.
[17] On 15 August 2018, the applicant was asked to attend a meeting on the following day with Ms Massey from the Serious Crime Investigations team. The applicant was advised that the purpose of the meeting was to discuss her lending practices, and that she was invited to bring a support person with her.
[18] On 16 August 2018, the applicant participated in a meeting with inter alia, Ms Massey which involved an audio recorded investigation interview that inquired into a number of allegations regarding irregularities in the conduct and lending practices of the applicant. The applicant was accompanied by her support person during this meeting. The applicant provided various responses during this meeting, and subsequently Ms Massey prepared a report dated 13 September 2018, which set out various factual findings that she had made in respect to particular conduct of the applicant. This report was referred to, inter alia, the Manager of Mobile Banking at NAB, Mr Searle.
[19] On 19 September 2018, Mr Searle sent an email communication to the applicant inviting her to attend a meeting on the following day, 20 September 2018. The purpose of this meeting was to advise the applicant of the outcome of the investigation that had been completed and documented in the report of Ms Massey. The applicant was invited to bring a support person to the meeting.
[20] On 20 September 2018, the applicant attended the scheduled meeting with Mr Searle and she did not bring a support person with her. Mr Searle provided the applicant with a show cause letter dated 20 September 2018, and which included seven allegations of misconduct or substandard or unacceptable lending practices. During the meeting, Mr Searle briefly explained the various allegations that were included in the show cause letter. The show cause letter requested that the applicant respond to the allegations by providing some written communication by no later than 24 September 2018.
[21] On the following day, 21 September 2018, the applicant sent a text message to her immediate manager advising that she was sick and unable to attend work. Subsequently, the applicant provided medical certificates covering the period 22 September to 5 October 2018. The applicant had previously advised the employer that she was pregnant, and she further advised that she was experiencing considerable stress and anxiety associated with the requirement to provide a written response to the show cause letter.
[22] In due course the applicant was provided with an extended period before which she was required to provide a written response to the show cause letter. On 11 October 2018, the applicant provided a written response dated 10 October 2018, to the show cause letter. In summary, the written response provided by the applicant addressed the seven identified allegations, and in each instance she sought to provide explanation or justification for the particular conduct under examination. Most significantly, the applicant rejected any allegation of impropriety or misconduct associated with her business and personal relationships with AU Gold. In her response, the applicant also reiterated the considerable pressure, stress and anxiety that she had experienced as a result of the investigation process. Further, she indicated that if she had done anything incorrectly she was prepared to undergo further training or other remedial activity.
[23] Mr Searle considered the contents of the applicant’s written response to the show cause letter. Following this further consideration, on 19 October 2018, Mr Searle telephoned the applicant and requested that she attend a meeting on 22 October 2018. The applicant was advised that the purpose of this meeting was to inform her of the disciplinary outcome in relation to the allegations that had been outlined in the show cause letter, and the applicant was invited to bring a support person to the meeting.
[24] On 22 October 2018, the applicant attended the meeting as requested by Mr Searle, and she was accompanied by a support person from the Finance Sector Union. At the meeting held on 22 October, Mr Searle advised the applicant that he had considered her responses to the allegations set out in the show cause letter, and he had determined that her conduct amounted to misconduct that warranted the termination of her employment. The applicant was provided with a letter dated 22 October 2018, which confirmed the termination of her employment on the basis of particular findings in respect of each of the seven allegations that had been set out in the show cause letter.
[25] Upon termination, the applicant was paid four weeks remuneration in lieu of notice, together with any accrued entitlements. The notice payment was subsequently found to have been deficient as the applicant was entitled to six weeks’ notice upon termination of employment. Consequently, a further two weeks remuneration was paid to the applicant.
[26] The applicant represented herself, and she made verbal submissions which elaborated upon documentary material that had been filed. The written material provided by the applicant included a combination of evidentiary assertions and submission material. The applicant’s documentary material, which comprised a combination of evidence and submissions, was marked as Exhibits 1 and 2, and in addition, the applicant provided written closing submissions dated 15 February 2019.
[27] The submissions made by the applicant traversed the detail of the particular allegations that were identified in the show cause letter. The submissions broadly repeated much of what was contained in the applicant’s written response to the show cause letter, and generally contested that the applicant’s actions were inappropriate or improper in any way. Further, the submissions indicated that if the applicant had acted contrary to any correct policy, practice or procedure, that she did so innocently, and she would be open to undertaking any remedial training or other corrective measures.
[28] The applicant also submitted that she had not been provided with a significant level of training by NAB, and that the training that was provided was not always up-to-date. Further, the applicant submitted that NAB’s policies and procedures were inconsistent and involved miscommunication. The applicant said that she had always followed NAB’s policies and procedures in respect to the Introducer program. Further, the applicant asserted that the fraudulent loan had been through a verification process, and that NAB was trying to blame her for the fraudulent loan rather than expose the mistakes made by the verification team.
[29] Further, the applicant said that she was a scapegoat because she was a pregnant woman, and NAB needed someone to blame for the Royal Commission. The applicant said that she had done what NAB had told her to do, and she had followed policies and procedures. The applicant said that she conducted herself in the same way as other staff that had not been terminated. The applicant said that she had been discriminated against by NAB because she was a pregnant woman, and Asian.
[30] The applicant asserted that NAB had wilfully ignored her welfare during her pregnancy, and she had suffered much stress and anxiety as a result of the unfair treatment from NAB. The applicant said that if she was a pregnant woman who was Western then NAB would not do this to her. The applicant said that her reputation had been damaged by NAB and she was seeking appropriate relief and compensation against the company.
[31] The employer was represented by its Senior Consultant, Employee Relations, Ms Swan, who relied upon written submissions that had been filed on behalf of NAB.
[32] The submissions made by NAB provided a summary of the conduct of the applicant as was found by the employer, in respect of each of the allegations that were set out in the show cause letter. NAB submitted that the conduct that it had identified on the part of the applicant clearly breached a number of its established policies and procedures. Further, NAB asserted that the explanations that the applicant had provided for particular aspects of her conduct illustrated that she did not appreciate the seriousness of her conduct, nor did she take personal responsibility and accountability for her actions.
[33] The submissions made by NAB identified particular concern regarding the applicant’s relationship with the Introducer, AU Gold. Specifically, NAB asserted that it had undertaken an investigation where it successively contacted seven of its customers whose loans had been submitted and supported by the applicant, and included AU Gold as an Introducer. However, of the seven customers contacted, six of those indicated that they had no knowledge of AU Gold or its agent, Ms Meiying Song. Consequently, according to the submissions made by NAB, AU Gold received $24,130.00 in commissions for referring those six customers in circumstances where, on the customer’s advice, it had not introduced the customers, and was therefore not entitled to receive the commissions.
[34] The submissions made by NAB further supported the particular findings that it had made in respect of the various other allegations of misconduct found against the applicant. The submissions of NAB also dealt with the provisions of s. 387 of the Act. NAB submitted that there was valid reason for the dismissal of the applicant. NAB submitted that the applicant had committed a number of breaches of established procedures and codes of conduct which separately, and cumulatively, provided valid reason for her dismissal. Further, NAB submitted that the responses that the applicant had provided placed her honesty in doubt, and established valid reason for her dismissal from employment.
[35] NAB further submitted that it was not in dispute that the applicant had been notified of the reason for her dismissal during the meeting with Mr Searle held on 22 October 2018, and that this was confirmed in the termination letter of the same date. Further, NAB submitted that the applicant was given an opportunity to respond to the allegations during the meeting on 16 August 2018, with Ms Massey, and additionally, she had provided a written response on 11 October 2018. Therefore NAB submitted that the applicant clearly had, and took, the opportunity to respond to the allegations which ultimately formed the basis for her dismissal.
[36] NAB also submitted that there was no refusal to allow the applicant to have a support person present during any discussions relating to the dismissal. NAB acknowledged that it was a large employer and submitted that the procedures that it had adopted were appropriate.
[37] In respect to there being any other matters that may be considered relevant, NAB submitted that although one could be sympathetic with the applicant’s particular circumstances as she had recently given birth, any other factors could not outweigh the valid reason for the dismissal, and as such the dismissal should not result in any finding of harshness.
[38] In summary, NAB submitted that there was a valid reason for the dismissal of the applicant, and it had followed due process involving an investigation and proper findings such that the dismissal of the applicant was not harsh, unjust or unreasonable. The submissions made by NAB urged that the application for unfair dismissal remedy be dismissed.
[39] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are identified as:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[40] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[41] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are stipulated as:
“(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
(h) any other matters that the FWC considers relevant.”
[42] In this case the applicant was dismissed for misconduct. The employer’s findings of misconduct involved various actions that the applicant had undertaken as a Mobile Banker in connection with home loans that she had helped to establish for customers of NAB. The most serious and notable aspect of the applicant’s conduct for which she was dismissed involved activities associated with the Introducer program. Essentially, the applicant was alleged to have completed documentation that provided a particular Introducer, AU Gold, with commission payments in respect to home loans where the particular customers had not had any contact with AU Gold. The applicant’s responses to the allegations were curious if not bold.
[43] The first allegation made against the applicant involved what was described as the manipulation of an Introducer consent form. The Introducer consent form comprises three pages in total. Page 1 of the form provides space to insert the name of the customer and the details of the name of the Introducer. On page 3 of the form there is provision for the customer to sign and date the document. In the particular instance under examination, the applicant admitted that she had altered the handwritten details of the name of the Introducer appearing on page 1 of the Introducer consent form from; “AU Gold Realty Pty Ltd” to; “Tomorrow Finance (AU Gold Realty Pty Ltd)”. Further, the applicant also admitted that she had made this alteration on page 1 of the Introducer consent form without having the customer re-sign and date the form at page 3.
[44] In defence of her alteration on page 1 of the Introducer consent form without having the customer re-sign and date the document on page 3, the applicant asserted that she had never been told to ask the customer to re-sign the form. This defence that was advanced by the applicant was curious for at least two reasons. Firstly, one might logically consider that a Mobile Banker who was regularly dealing with documents that have significant financial and legal implications, would understand that any alterations to such documents, no matter how apparently minor or inconsequential, would require at very least, the initialling of the relevant signatory.
[45] Secondly, the applicant’s assertion that she had not been told to ask the customer to re-sign the Introducer consent form on page 3 was unambiguously dispelled by evidence of a series of emails that were sent to the applicant from NAB’s verification staff which relevantly advised her that; “…new form needs to be completed and signed AND dated by customers” 1 and “In this case you will need a brand new introducer form signed by customer, …”2
[46] Consequently, in respect to the first allegation, the evidence has unequivocally established that the applicant was given clear directives from the verification team to have the altered Introducer consent form re-signed and re-dated by the relevant customer. Despite these clear, reasonable and understandable directives, the applicant simply attached the altered page 1 of the form to the page 3 of the form that had previously been signed by the customer. The actions of the applicant meant that the resultant Introducer consent form was fraudulently constructed.
[47] The second allegation made against the applicant involved the most serious aspect of misconduct. The employer found that the applicant had listed AU Gold as an Introducer for five home loan customers when, having contacted those customers, each had no knowledge of the Introducer program per se, nor did they have any knowledge of AU Gold, or Ms Meiying Song, or Rain Song. NAB found that these actions of the applicant resulted in approximately $24,130.00 of commissions being unduly paid to AU Gold.
[48] The applicant rejected the allegation that she had falsely included AU Gold as an Introducer in any of the home loans that she had processed. The applicant said that all of her customers, who had proceeded with their home loans, have always agreed with the information, and were aware about the details regarding the Introducer being AU Gold. The applicant bluntly rejected the allegation that the customers had no knowledge of the introducer, AU Gold.
[49] Unfortunately for the applicant, when NAB contacted and spoke with five of the customers with home loans that were facilitated by the applicant and which had involved Introducer commissions being paid to AU Gold, each customer said that they had no knowledge of, or contact with, AU Gold. The applicant suggested that these customers may have forgotten or not known about the name AU Gold, or they may have been confused about the name of Ms Meiying Song who was sometimes referred to as Rain Song.
[50] The proposition that the five NAB customers with home loans facilitated by the applicant and which involved Introducer commissions being paid to AU Gold, would all have been confused or forgotten about the involvement of an Introducer is somewhat incredulous. Further, each of the five NAB customers offered alternative pathways by which they came to NAB such as; walking into the Rhodes Branch; website contact via Nab.com.au; having a previous loan with NAB, or being referred by a real estate agent named Mary 3. Other than possibly in the case of the real estate agent named Mary, there was no basis for any Introducer commissions to be associated with the loans that the applicant had facilitated for these customers.
[51] The employer had sound basis to conclude that in at least five instances the applicant had falsely included AU Gold as an Introducer. Logically, NAB attempted to investigate the relationship between the applicant and AU Gold. The applicant provided some very curious evidence in response to questions that sought to explore details of the nature and extent of the relationship that she had with AU Gold and Ms Meiying (Rain) Song.
[52] During the audio recorded investigation interview with Ms Massey on 16 August 2018, the applicant was asked about her husband’s occupation which she identified as being “regarding financial stuff.” 4 However, rather surprisingly, the applicant could not recall the name of her husband’s employer. Further, during the investigation interview the applicant initially said “No” in answer to a question as to whether she had any other forms of income or employment. However, later during the investigation interview the applicant reluctantly revealed that she had two investment properties, and her husband had “…probably three properties or four.”5
[53] The applicant also provided curiously evasive answers when she was asked by Ms Massey about details of her relationship with AU Gold. The applicant said that her relationship with AU Gold was established through a mutual friend who introduced her to AU Gold. However, the applicant was unable to name the mutual friend or provide any other information about how she established her relationship with AU Gold.
[54] It is also relevant to observe that during the Hearing the Commission unsuccessfully attempted to elicit some basic information from the applicant about when and how her association with AU Gold and Ms Meiying Song was established. 6 Further, it is pertinent to recognise that in circumstances where the conduct of the applicant was alleged to have improperly, if not unlawfully, enriched AU Gold with $24,130.00, it would have been logical, plausible and not burdensome, for the applicant to have at least attempted to introduce evidence from someone on behalf of AU Gold in an endeavour to dispel this serious allegation.
[55] Upon examination of the evidence of the other allegations made against the applicant there was sound basis for the conclusions that were established by the employer. The other aspects of the allegations made against the applicant involved misconduct or substandard/inadequate work performance of lesser seriousness than her conduct involving facilitating home loans that falsely included AU Gold as an Introducer. These additional aspects of misconduct and/or inadequate work performance have operated in combination, to elevate the overall seriousness of the misconduct of the applicant.
[56] Consequently, the employer’s finding of serious misconduct arising from its investigation into various aspects of the applicant’s lending practices specifically including her false identification of AU Gold as an Introducer, have been verified. Therefore, there was valid reason for the dismissal of the applicant. The findings of serious misconduct made by the employer, specifically including the finding that the applicant acted dishonestly when she falsely included AU Gold as an Introducer in five identified instances, have established sound, well-founded and defensible reason for the dismissal of the applicant.
[57] The employer provided written notification of the reason for the applicant's dismissal. The notification was provided in the letter of dismissal dated 22 October 2018, provided to the applicant in person during the meeting with Mr Searle on that date.
[58] The employer provided the applicant with appropriate opportunities to respond. In particular, on 11 October 2018, the applicant provided a written response to the show cause letter of 20 September 2018.
[59] There was no evidence that the applicant was refused the assistance of a support person during the various meetings that were held regarding the investigation into the applicant’s involvement in circumstances surrounding the fraudulent loan, customers Z, and the Introducer, AU Gold.
[60] This factor is not relevant to the circumstances in this instance.
[61] The size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant.
[62] This factor is not relevant to the circumstances in this instance.
[63] Consideration has been provided for other relevant matters including the applicant’s personal circumstances including her age, the impact of the dismissal, and her young child. These factors have been balanced against all relevant factors. In particular, further consideration has involved contemplation of the curious and evasive evidence provided to both the employer and the Commission, and which has acted to buttress the valid reason for dismissal. Consequently, other relevant matters have not provided any persuasive basis upon which to render the dismissal of the applicant to have been harsh, or otherwise unfair.
[64] The applicant was dismissed for serious misconduct. The serious misconduct was established upon the employer’s findings regarding her conduct in respect to her lending practices involving in particular, falsely including AU Gold as an Introducer in five instances. These findings were established following a thorough and just investigation into seven specific allegations which had been raised against the applicant. The employer relevantly found that the applicant’s conduct represented serious misconduct.
[65] Upon full Hearing of the applicant’s claim for unfair dismissal remedy, the findings of serious misconduct made by the employer have been confirmed by the Commission. There were no other factors which militated against the primary factual findings which represented the reason for the dismissal of the applicant.
[66] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. The conduct of the applicant represented serious misconduct sufficient to justify summary dismissal. However, NAB somewhat generously, paid the applicant a total of six weeks wages in lieu of notice.
[67] The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.
COMMISSIONER
Appearances:
Ms L Tang appeared unrepresented.
Ms J Swan, Senior Consultant, Employee Relations appeared for the employer.
Hearing details:
2019.
Sydney:
February, 8.
Printed by authority of the Commonwealth Government Printer
<PR706180>
1 Exhibit 4 @ page 119.
2 Exhibit 4 @ page 117.
3 Exhibit 4 @ page 125.
4 Exhibit 4 @ page 64.
5 Exhibit 4 @ page 68.
6 Transcript @ PN282 - PN286.