[2019] FWC 5479
The attached document replaces the document previously issued with the above code on 19 September 2019.
Amended name of respondent in title and paragraph [1], replacing ‘Commonwealth Bank’ with ‘Commonwealth Securities Limited’ as the respondent.
Associate to Deputy President Sams
Dated 23 September 2019
| [2019] FWC 5479 [Note: An appeal pursuant to s.604 (C2019/6209) was lodged against this decision - refer to Full Bench decision dated 26 November 2019 [2019] FWCFB 7944 for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Candice Dias
v
Commonwealth Securities Limited
(U2018/12352)
DEPUTY PRESIDENT SAMS |
SYDNEY, 19 SEPTEMBER 2019 |
Application for reinstatement as a remedy for alleged unfair dismissal – long-serving Bank employee - allegations of misconduct and various breaches of the Bank’s policies and procedures – warning and training for alleged contact with an unauthorised third party in respect to a client’s account – breaches of customer confidentiality and privacy – warning disputed – applicant’s refusal to attend training on three occasions – grievance lodged in respect to warning – refusal to attend meeting with manager – grievance dealt with according to Bank’s procedure – applicant sent confidential customer details to her personal email and claims to have had approval to do so – refusal to delete confidential material from personal email – thorough investigation by the Bank – applicant refuses to accept warning or acknowledge any wrongdoing – applicant claims she always followed policies and procedures – documentary evidence relied on not relevant or ‘doctored’ – applicant’s explanation not plausible or rational – direction to attend training independent of grievance process – failure to follow lawful and reasonable directions of employer – applicant ignored closure of her grievance and escalates her issues to the Bank’s Chief Executive Officer contrary to grievance process – conflicting evidence – applicant a witness of little credit – various breaches of policies and procedures considered cumulatively – valid reason for dismissal – misconduct established – no issues of procedural unfairness – mitigating factors considered, but do not outweigh seriousness of misconduct – applicant a legal, financial and reputational risk to the Bank – no acknowledgement of any wrongdoing – no apology, no contrition, no remorse – dismissal not ‘harsh, unjust or unreasonable’ – reinstatement impractical in any event – little confidence that applicant would act any differently in the future – application dismissed.
[1] Ms Candice Dias had been employed by Commonwealth Securities Limited (the ‘respondent’) (operated by the Commonwealth Bank of Australia (the ‘Bank’ or the ‘Group’)) for more than 13 years. In her most recent role of Account Manager, Corporate Financial Services she worked in a Team based at Chatswood, New South Wales. Her employment was covered by the Commonwealth Bank Group Enterprise Agreement 2016 (the ‘Agreement’) and she was paid an annual salary of $73,100.00 at the relevant time. Ms Dias was dismissed for misconduct ‘being her persistent failure to follow reasonable directions of her employer, breaches of the Privacy Act 1988 (Cth) and failure to follow the respondent’s policies, framework and procedures’. The details of the allegations were set out in a letter terminating her employment on 13 November 2018, and the Bank provided her with four weeks’ pay in lieu of notice. This letter reads as follows:
‘I refer to the allegations of misconduct letter provided to you on 28 September 2018 and our meeting on 12 November 2018, at which the following people were present:
• Yourself;
• Sahar Radfar – Workplace Relations; and
• Myself.
You were invited to bring a support person to the meeting but you chose not to.
During the meeting, you were advised that the Group had concluded its investigation into allegations set out in my letter dated 28 September 2018.
You were invited to respond to the allegations in writing and also make any further representations to the Bank as to why disciplinary action should not be taken against you, in the event the allegations were found to be substantiated.
As discussed, I have carefully considered your verbal and written responses dated 2 and 4 October 2018.
Refusal to follow direction
Candice, I have serious concerns about your persistent refusal to follow directions.
You were directed to attend training on three separate occasions (on 16, 17 and 22 August 2018). Irrespective of whether you thought the training was warranted or not, the request to attend was a reasonable management directive. Further, the training was not limited to the formal written warning issued on 31 July 2018. The purpose of the session was to cover:
• How to navigate the Bank’s product’s (sic) & process Library iSource;
• The Bank’s Term Deposit Policy & Procedure; and
• How bank account authorities work.
You then failed to follow my direction to meet about your refusal to attend the training. Your email response to my calendar invite on 24 August 2018 confirmed that you would not meet with me. You advised that you wanted to discuss a separate issue relating to the events that led to the formal warning dated 31 July 2018 in writing first. I advised you that the purpose of the meeting was to discuss your failure to attend workplace training, however I was also able to discuss your concerns about your prior warning and your performance review during that meeting [as] you wished to do so.
On 26 August 2018 you again confirmed you would not meet with me and wanted all correspondence/discussions to be in writing. You did not advise me that you were unwell in your email on 26 August 2018, but advised that due to the short notice of the meeting, you will not be attending and will await correspondence/discussions in writing only.
The meeting request was a reasonable management directive, and you were provided with reasonable notice to attend the meeting. At no point did you request additional time to allow for you to have a support person present during the meeting.
Further, you failed to follow a reasonable direction given by Ian Manwaring to confirm you deleted the email you sent to your personal email account. That email contained customer information. Your response to Ian’s request was that you felt you were authorised by management to take the matter external and the customer needs to be informed that the matter will be taken external if not resolved internally. I’m disappointed with your response to this request.
Candice, I am concerned with your persistent failure to follow direction. Your conduct raises serious privacy concerns for the Group and an unacceptable level of risk.
Emailing client information to your personal email account
Candice, you were advised that you could seek independent advice in relation to the concerns you raised that were the subject of the Workplace Grievance Review. At no point were you given authorisation to email the documents to your personal email address. In your conversation with Anne Knight, it was confirmed that should you wish to seek legal advice, the Group could arrange for your legal representative to have access to the documents on site. This further confirms that you had no authority to email customer information to your personal email address for the purposes of an external review.
I have also been provided with your response to Ian’s request to delete the email. As discussed, you were never authorised to send customer information to your personal email address.
Conduct in escalating your grievance
Candice, this is a continuation of your failure to follow direction. You were directed by Ian to contact him before attending work at Darling Park office. You failed to follow that direction.
You were previously advised that the internal review process had been exhausted. My concern is with your conduct whilst you were on the premises and not that you sought to escalate your concerns to the CEO (which you are entitled to do).
Outcome
Candice, during our meeting you were advised that your conduct continues to expose the Group to an unacceptable level of risk as you are not willing to acknowledge your errors, and undertake appropriate training to ensure that you understand Group policies and procedures.
Further your conduct demonstrates that you continue to disregard:
1. direction from management; and
2. the Group’s policies, framework and procedures.
Given your pattern of behaviour and your failure to change to ensure you comply with Group processes and procedures, it has been found that your conduct has been unacceptable and in breach of:
1. Our Commitments
…
2. .Acceptable Use of Group Technology Policy
1.3 Unacceptable Use
• Send Group information (including client sensitive information) without authorisation
As discussed with you during our meeting, as a consequence of your conduct, I have decided to terminate your employment with Commonwealth Securities Limited effective immediately. You will be paid 4 weeks’ salary in lieu of notice.
You will receive a separate letter regarding any final salary payment and your superannuation entitlements.
As discussed with you, we will also arrange for your personal items to be couriered to your address.’
[2] The ‘Show Cause’ letter of 28 September 2018 at page 3 set out the 5 allegations as follows:
‘1. You refused to follow reasonable management directives from your Manager once Removed (MoR) to attend workplace training to ensure that you could source, navigate and understand policies and processes for the Group’s basic products and services. Specifically you have declined to attend the training on all of the following dates:
• 16 August 2018;
• 17 August 2018; and
• 22 August 2018.
2. On 24 August 2018 you refused to attend a meeting invitation from your Manager twice Removed (myself) to discuss the above conduct.
3. On or about 4 September 2018 at 2:16PM you emailed a document containing confidential information relating to Group customers to your personal email address (email address provided) without authority. The document contained the following information:
• Individuals’ names who are beneficiaries of a Trust client
• Name and CID of one client (a Trust); and
• Trust Client address
4. On 18 September 2018 you filed to follow your MoR’s reasonable management directive to contact him before attending work at Darling Park office in the Sydney CBD.
5. You have unilaterally gone outside of the Group’s Workplace Grievance Review (WGR) process by attempting to escalate a grievance outside of the Group’s standard process and in circumstances where you were advised that the matter had been finalised.’
[3] Relative to the reasons for dismissal, Ms Dias received a final written warning for misconduct on 30 July 2018 in respect to the following allegations found substantiated by the Bank:
‘It is alleged that on 16 July 2018 you provided customer information to an unauthorised party, specifically the customer’s brother, resulting in a customer complaint’.
[4] I note the names, contact details and financial information of all the named customers of the Bank were subject to a confidentiality order and will be so treated in this decision. References to the confidential names will be identified as follows:
• the customer of the Bank whose information was sent to an unauthorised party - the Client;
• the brother of the Client who was contacted regarding the Client’s account - the Brother;
• the wife of the Client who made a complaint to the Dee Why Branch of the Bank - the Wife;
• the Trust Fund of the family of the Client - the Family Trust;
• the Superannuation Fund related to the family of the Client - the Family Super Account;
• the Group of Companies related to the family of the Client - the Family Group of Companies;
[5] On 30 November 2018, Ms Dias (hereafter the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (Cth) (the ‘Act’) in which she seeks orders from the Fair Work Commission (the ‘Commission’) as follows:
‘1) Positive reference letter as this unfair dismissal has tarnished my career and reputation as a banker (since Dec 2000) for the last 18 years.
2) Re-instate my job and employer to stop discriminating, harassing and threatening with termination in the future by making up false allegations.
3) Compensation as per below:
a) Maternity leave application entitled for 3 months which was to commence on 14/12/2018
(HRD 579123)
b) Annual leave, Long service leave, sick leave due to unfair termination of employment. (entitlements missed out)
c) Superannuation (entitlements missed out)
d) Bonus last financial year which was unfair
e) Bonus this financial year (entitlements missed out)
f) Stress, anxiety and hardship
g) Discrimination and unfairly treatment & harsh dismissal. I had to face for the last 5 months, after I told the managers when I was pregnant.’
[6] The applicant has pressed for the primary remedy of reinstatement, despite offers of settlement from the Bank, up to and including the last day of hearing, in excess of the maximum compensation available for an unfair dismissal under s 392 of the Act.
[7] The matter was the subject of a Commission Conciliator conference on 25 January 2019. However, as there was no resolution of the application, it was referred to me on 4 February 2019 for hearing. In accordance with my usual practice, I listed the matter for a further in person conference on 26 February 2019. This conference also proved unsuccessful and directions were confirmed (later amended), and dates set for the hearing which subsequently became four days (29 March 2019, 15 and 16 April 2019, and 17 May 2019).
[8] At the hearing, the applicant represented herself, and Mr M Seck of Counsel with Ms M Azzi (Lawyer, Ashurst) appeared for the Bank. Permission had been granted on 6 March 2019 for the respondent to be represented by a lawyer, pursuant to the considerations arising under s 596 of the Act. Various applications for Notices to Produce and Notices for Persons to Attend before the Commission and confidentiality orders were dealt with prior to the first hearing date on 29 March 2019.
[9] The following persons provided statement and oral evidence in the proceedings:
• Ian Manwaring, Executive Manager, Sydney North region, and Manager Once Removed (MoR) of the applicant;
• Anne Knight, Head of Litigation;
• Temira Morgan (nee Grandi), Legal Counsel (formerly Workplace Relations Manager);
• Zlate ‘Zac’ Kuzmanoski, General Manager, Corporate Financial Services NSW/ACT and Manager Twice Removed (M2R) of the applicant;
• Anne-Marie Paterson, Executive Manager – People Resolutions; and
• Candice Dias, Account Manager and the applicant in these proceedings.
[10] Mr Manwaring has been employed by the Bank for almost 40 years. For the last 20 years he has held various roles in the Chatswood office. He has worked in his present role for eight years. Mr Manwaring described the applicant’s role as an Account Manager. The role requires a close team involvement to support the ongoing needs of a portfolio of corporate banking clients across a range of the Group’s products, including delivering customer satisfaction and service. Mr Manwaring attached to his statement the applicant’s interim performance reviews for 1 July 2016 to 31 December 2016, her annual review of 1 July 2016 to 30 June 2017 and her interim review of 1 July 2017 to 31 December 2017. In this latest review, the applicant’s line manager, Mr Nicholas Low, marked her ‘risk’ as ‘not met’ as ‘risk requirements had not been followed diligently’. Mr Low reported:
‘Risk requirements have not been followed diligently. A number of Key Risk Issues have been identified including altering documents, breaching delegations and privacy issues. In addition, assurance results and data integrity across the portfolio needs to lift for the C04 team as a whole and a 60 day + expired facility was evidence on the portfolio .The Risk Modifier has not been met. New RE support and an open, proactive and honest approach to Risk Management is required to lift this metric. Additionally, the C04 team as a whole will need a focused effort on Assurance, Hindsight & KYC outcomes to support an increase in this rating particularly with a NTB focus on the portfolio going forward.
[11] In November 2017, Mr Manwaring and Mr Low met the applicant about four incidents of concern to management. He recalled that the applicant did not accept that she had engaged in any wrongdoing.
[12] Mr Manwaring said that as a result of the applicant requesting a review of her 1 July 2017 – 31 December 2017 interim review, he met her on two occasions in February 2018 and 12 March 2018. He agreed to change the values rating from ‘inconsistently demonstrated’ to ‘well demonstrated’ and amend some of the comments in the review.
[13] Mr Manwaring set out four incidents of the applicant’s poor performance from her 1 July 2017 to 30 June 2018 review:
‘a) Challenges in following GLS & Asset Finance Processes, which related to the Applicant not following a simple procedure explained to her by Business Learning Services. Attached to this statement and marked “IM-8” is a copy of an email from Mr Jonathon Roel to Mr Low setting out the procedure that the Applicant did not follow.
b) Breach of broker privacy, which related to the Applicant sending an email to a client (when it should have been sent to the broker or the appropriate contact within the CBA Broker, Agency and Specialist team), which included private correspondence between the Bank and the broker, such as the broker’s % brokerage. Attached to this statement and marked “IM-9” is a copy of the email the Applicant sent.
c) Breaches of control delegations, which related to the Applicant assigning bank accounts that were overdrawn and required approval to herself and then approving them when she did not have authority to approve the overdrafts.
d) Modification of customer documentation, which related to her “whiting out” the words “Customer Copy” in the customer’s legal documentation to pass it off as the Bank’s copy.’
[14] Despite a rating of ‘Achieved expectations’ it was recorded that:
‘The Applicant’s poor performance had an impact on the rest of the team members and put a strain on Mr Low having to manage the Applicant. The Applicant’s conduct has had a negative impact on team morale.’
[15] On 17 July 2018, Mr Low reported to him that a complaint had been received about information provided by the applicant to an unauthorised party in respect to the Family Super Fund. This constituted a data breach requiring a RiskInSite report to the Bank’s Internal Risk Management Team. Information was sought from the applicant and a meeting was held with her that day in which she explained:
‘I called the phone number on the Commsee [Family Super Fund] and was told there was no one there by that name.
The only other person on my contact list for the relationship group is [the Brother] hence I contacted [the Brother] in regards to the [Family Super Fund] and [the Brother] asked me to email him the details’.
She relied on an email to her colleagues on 10 August 2017, which indicated she had spoken to the Client and that he would like to continue with the instruction to roll over the term deposit monthly, with discretionary rates.
[16] Mr Manwaring said that when he investigated the matter he looked at the customer account databases for the said account. It listed the correct phone number of the Client, not the number of the unauthorised signatory (the Brother). The only listed authorised signatories for the Family Super Fund were the Client and his wife. Another cheque account linked to the Family Super Fund did not list the Brother either.
[17] It was Mr Manwaring’s evidence that the Bank’s process for account contact is always limited to those who are authorised. This is to ensure confidential and sensitive client information is not disclosed to third parties, Mr Manwaring was concerned that this incident breached the Bank’s policies, including the ‘Our Commitments’ policy which provides:
‘a) Uphold the guiding framework of our vision and values;
b) Maintain confidentiality; and
c) Understand and fulfil all aspects of your role.’
[18] Around 19-20 July 2018, in a regular meeting between Mr Manwaring and Mr Kuzmanoski, Mr Manwaring mentioned the data breach and the applicant’s poor performance. Mr Kuzmanoski told him that he should obtain advice from the WRT. He was advised that if the conduct warranted a disciplinary process, such a process should be commenced.
[19] On 26 July 2018, the applicant was invited to a meeting with a support person to discuss a breach of the Bank’s policies. Mr Manwaring and the applicant’s Team Leader, Mr Craig Young, met the applicant the next day and advised of the allegations of her having provided customer information to an unauthorised party. After listening to her response, it was decided to issue her with a formal warning; see: [3] above.
[20] Mr Manwaring took notes of the meeting and attached them to his statement. Shortly after having sent the applicant the formal warning, he asked her to sign an ‘employee acknowledgement’. This was never done. On three occasions in August 2018, the applicant queried the warning. Mr Manwaring explained the reasons for the warning on 14 August 2018.
[21] On 15 August 2018, Mr Manwaring emailed the applicant directing her to attend training. The email reads:
‘Candice,
Thank you for your further email here.
My concern here is ensure that you are able to source, navigate & understand our policies and processes for the Bank’s basic products & services, which is a fundamental expectation & accountability to perform in your role as an account manager.
I have also asked below and have not yet received your reply as to whether or not you are conversant with the Term Deposit instructions and understand that when providing information about a Term Deposit or taking instructions on a Term Deposit that this is always to & from parties in accordance with the Term Deposit Lodgement authority.
The links that I have provided below do in fact allow you to navigate to the opening & maintenance procedures for Superannuation Fund Term Deposit accounts.
Accordingly I am arranging a training timeslot for you tomorrow at 3.30 pm, with Craig & myself, to ensure your understanding of:
• How we navigate the Bank’s Product & Process Library & iSource;
• The Bank’s Term Deposit Policy & Procedure; and
• How bank account authorities work.
I would appreciate if you could come prepared to confirm your understanding and to ask any questions that you may have. Please bring your laptop so we can navigate through Product & Process Library & iSource’.
[22] The applicant ‘declined’ to attend the training. It was rescheduled for 17 August 2018. She again ‘declined’ to attend.
[23] Mr Manwaring and Mr Low met the applicant on 13 August 2018 to discuss her performance which was rated ‘not meeting expectations’ and ‘inconsistently demonstrated’ (values). On 21 August 2018, Mr Manwaring emailed the applicant as follows:
‘Candice,
Thank you for your email.
We have on two occasions held detailed discussions with you on how client information was incorrectly provided by you to a third party. As you are aware this resulted in a complaint being made to the Bank.
For further clarity, around how the breach occurred, I have detailed below:
• Term Deposit Investment details for [the Family Super Fund] were sent by email by yourself to [the Brother] on 16 July 2018. Refer attached.
• [The Brother] is not an authorised signatory or an authorised party to receive information on this Term Deposit as per the Term Deposit New Account Lodgement Authority dated 5 March 2010 filed on the CommSee profile.
• [The Wife] complained at the Commonwealth Bank’s Dee Why branch as to why her family superannuation fund investment details were provided to her brother-in-law [the Brother].
• A Riskinsite was raised on 18 July 2018 to record this break down in bank procedure.
The directive by management to attend a training session to ensure your understanding of the Bank’s Term Deposit policy & procedures in particular Term Deposit Lodgement Authorities, is not considered unreasonable.
I have for a third time now rescheduled this training to 10 am Thursday 23rd August and would appreciate your attendance.
The session will cover:
• How we navigate the Bank’s Produce & Process Library & iSource;
• The Bank’s Term Deposit Policy & Procedure; and
• How bank account authorities work.
I would appreciate if you could come prepared to confirm your understanding and to ask any questions that you may have. Please bring your laptop so we can navigate through Product & Process Library & iSource’.
[24] The applicant declined to attend a third training session on 23 August 2018. It was the applicant’s position that she had referred the specific incident and the warning to HR Workplace Relations Team (‘WRT’) and would not attend any training until her complaint had been resolved. Mr Manwaring referred all his communications with the applicant to Ms Temira Morgan in the WRT.
[25] Mr Manwaring said that late on 17 September 2018, the applicant came to him and said she would need to work in the Darling Park office because she was trying to arrange a meeting with someone about the warning. Mr Manwaring told her to let him or Mr Young know what she was doing. On 18 September 2018, Mr Kuzmanoski’s Executive Assistant phoned Mr Manwaring to say that the applicant had turned up at the Darling Park office and asked whether he knew about this. He said ‘no, she was going to let me know if she was coming in for the day’.
[26] Mr Manwaring said that around 27 August 2018, he was advised that Mr Kuzmanoski had made a decision to remove the 16 July 2018 incident from the applicant’s performance review ending on 30 June 2018.
[27] On 5 September 2018, Mr Manwaring was notified by Ms Talia Smith, Analyst, that the applicant had sent client information to her personal email address, including client names and account numbers in relation to the incident on 16 July 2018 and the subsequent warning she received. A data breach report was sent to the Bank’s Compliance Team, and on 17 September 2018, he directed the applicant to delete the email from her personal email address.
[28] Mr Manwaring and Mr Young met the applicant that day to discuss the data breach. Mr Manwaring deposed to the following conversation:
‘Me: Client information is not to be sent to a personal email address. A Risk-in-site report has been established. This matter will need to be assessed further including whether or not the matter needs to be reported, as client sensitive information was included and we need to consider whether to inform the client.
Applicant: I only sent it to my phone and only I can see it. What else am I to do as I need to discuss my warning externally. I am getting nowhere from escalation internally and HR advised me I can go external.
Me: You need to seek the Bank’s consent to any material being taken external. Have you sent the information to any third party or has any third party seen the information?
Applicant: No
Me: Please provide written confirmation that you have deleted the email from your personal email account and that the information has not been on-forwarded to a third party.’
[29] On 11 October 2018, Ms Smith determined that the data breach was not notifiable. She wrote:
‘Hi Ian and Temira,
Please find attached the final Breach Incident Notification Tool.
I have assessed the data breach as not notifiable on the basis that we will receive written confirmation from Candice that she has deleted the email from her server.
Individual beneficiary names and an account number of the superannuation fund is sensitive information. A mitigant is her intent to have only sent this information for keeping records. However, we will need to reassess notification if we cannot obtain written confirmation.
Please let me know when this can be obtained and if you foresee any problems.’
[30] On 31 October 2018, the applicant explained her position as follows:
‘Hi Ian,
At [the] meeting with M2R Zac on 3rd September 2018 in regards to [the 31 July 2018] baseless warning, I was advised verbally to take the matter external by workplace grievance person Anne-Marie Paterson (recommended by HR) on 3rd Sep 2018 in the presence of M2R Zac at this meeting. At that time I had pointed out to M2R Zac and Anne-Marie Paterson that I cannot take the matter external as the baseless warning [of 31 July 2018] states this in the maintain confidentiality clause below:
Maintain confidentiality
To treat our customer’s and CBA’s information in confidence, respecting CBA and our stakeholders’ trust. You will not use this information for inappropriate purposes or personal gain, or allow unauthorised access to it.
You will only engage with regulators or the media, or make public statements about CBA, if required and authorised.
I was advised by Anne-Marie Paterson as per attached email on that day not to worry about the above clause as she would give me in writing on Monday 03/09/2018 that I can choose to seek independent legal advice or any external options available to me. I contacted her manager Anne Knight 04/09/18 who also confirmed in writing as attached to take the matter external as advised by Anne-Marie Paterson. In total I was authorised on 3 occasions verbally and in writing 2 times to take the matter external so I emailed the logged workplace grievance paperwork as authorised to myself to consider my options in dealing with the workplace grievance issue of the baseless warning 31July2018 which remains unresolved till date. As authorised by management to take this matter external the customer needs to be informed that the matter will be taken external if not resolved internally.’
Mr Manwaring expressed disappointment with this response and escalated the matter to Mr Kuzmanoski on 6 November 2018.
[31] Mr Manwaring described why reinstatement of the applicant would be inappropriate:
‘61. Based on my interactions with the Applicant, I could not justify the Applicant returning to a customer facing role because it exposes the Bank to an unacceptable level of risk.
62. I also do not consider that the Applicant could be trusted to perform work that required any exercise of judgment or commercial acumen.
63. I no longer have any trust or confidence in the Applicant being able to follow simple Bank policies and procedures or being able to recognise and alert her line manager of any issues that require resolution rather than making erroneous assumptions.
64. Returning the Applicant to another role would also be inappropriate because the Applicant has not accepted any responsibility or accountability for the errors and breaches of procedures and policies that she has engaged in and therefore I could not be confident that she would be willing or able to follow procedures accurately.
65. It is not possible for us to know all possible data breaches or breaches of policy and procedure that the Applicant may have engaged in and I cannot be sure that she would not conduct herself in a similar manner in the future given her lack of insight into the error and lack of acknowledgment of any wrongdoing on her behalf.
66. The Applicant has also demonstrated a significant lack of knowledge of Bank procedure in the responses she has provided in an attempt to justify her errors and has completely failed to engage with us when we have sought to have her understand the proper procedure that should be followed.
67. The Applicant’s conduct in challenging management and not respecting due process within the organisation as well as refusing to attend meetings with the General Manager and refusing to attend meetings with the General Manager and refusing to attend training identified by her Manager once Removed are not acceptable and do not align with the Bank’s values.
68. The Applicant’s poor performance had an impact on the rest of the team members and put a strain on Mr Low having to manage the Applicant. The Applicant’s conduct has had a negative impact on team morale.’
[32] At the relevant time, Ms Knight was Acting General Manager, Dispute Resolution and Employment Relations/Legal. Ms Paterson reported to her. Ms Knight received a phone call from the applicant on 28 August 2018 about her grievance. She had said:
‘9. On 28 August 2018, I received a telephone call from Ms Dias. She explained that she was ringing in relation to her Workplace Grievance. She said “I have received a baseless warning and am now being pushed to complete training”.
10. I recall that Ms Dias also specifically stated “my manager has lied to me and upper management about the circumstances of the warning that I received and I want this further investigated”.’
[33] As she was unaware of the applicant’s grievance, she told her she would make inquiries and get back to her. The applicant emailed later that day advising she was attending a meeting with Ms Paterson and Mr Kuzmanoski.
[34] Ms Knight was briefed by Ms Paterson on 4 September 2018 and was told that the applicant did not understand who was authorised to receive client information, and that she repeatedly refused to attend training to correct her misunderstanding of her obligations. Ms Knight reviewed all of the information and concluded that there was a proper basis for the warning, and in accordance with the Bank process, no further action would be taken. This was confirmed to the applicant in an email to her that day. Ms Knight also advised she could seek independent legal advice, but that was a matter for her.
[35] Ms Knight received a call from the applicant the next day. She was agitated, emotional and not happy with the earlier response. She said:
‘So CBA is a place where a person cannot stand up and complain. I feel like I have been bullied’.
Ms Knight responded by saying that if this was the case, she could make a formal complaint in respect to who it is she claims has bullied her. She further advised she could seek independent legal advice and relevant documents would be provided to her lawyer, by arrangement.
[36] Ms Knight was made aware on 27 September 2018 that the applicant had made a number of complaints to the Bank’s CEO, Mr Matt Comyn.
[37] Ms Temira Morgan has been with the Bank for five years and in her current role as Legal Counsel since November 2018. During the relevant period, she was a Workplace Relations Manager. Her role was to provide advice about processes, procedures, policies, contracts and risks across the Bank, including advice to managers on employee matters. Around 23 July 2018, Ms Morgan had been advised by Mr Manwaring of the applicant’s potential breach of customer privacy, and her other performance issues over the last 12 months, which had been handled with informally. That day, she sent Mr Manwaring an email of ‘talking points’ for a formal discussion with the applicant which took place on 27 July 2018. After that meeting, Mr Manwaring advised her he had decided to issue with applicant with a formal warning letter and sought her assistance in its drafting.
[38] On 3 August 2018, Mr Manwaring confirmed to her that the warning had been issued. The applicant had not wished to sign the warning and said she did not wish to discuss the case in person and would prefer any discussion to be in writing.
[39] Ms Morgan said Mr Manwaring informed her on 15 and 16 August 2018 that the applicant had repeatedly sought a written explanation for the warning, and refused to attend training. Mr Manwaring sought her help in replying to her.
[40] On 22 August 2018, Mr Manwaring advised her and Mr Kuzmanoski that the applicant had cancelled another training session. She advised Mr Kuzmanoski to schedule a meeting to discuss her failure to follow reasonable directions. The meeting was scheduled for 27 August 2018 and rescheduled after the applicant called in sick that day.
[41] On 28 August 2018, Ms Paterson advised her that the applicant had lodged a formal grievance in respect to the first written warning. Mr Kuzmanoski delayed the second formal meeting with the applicant. The grievance review was finalised on 4 September 2018 and she and Mr Kuzmanoski agreed a further meeting should be rescheduled to discuss outstanding concerns with the applicant’s behaviour. On 13 September 2018, the applicant was invited to a formal meeting on 19 September 2018.
[42] On 18 September 2018 Ms Morgan received a call from Mr Simon Hinks (Business Unit Human Resources Partner) to advise that the applicant had shown up at the Darling Park office unbeknownst to the Bank, and was requesting to meet with the CEO, Mr Matt Comyn to discuss her first warning. When the applicant was told Mr Comyn was out of the office, she would not leave the office until someone spoke to her. She had a brief discussion with Mr Adam Bennett (Business and Private Banking Group Executive). Mr Hinks asked Ms Morgan to meet with the applicant, and she and Ms Sahar Radfar did so later that day. She recalled the applicant said she:
• believed that the First Written Warning was ‘baseless’;
• had not breached policy;
• had not been listened to; and
• had been advised that she could seek external guidance on her case, but had received a data breach as a result of sending emails externally.
[43] Ms Morgan said the meeting lasted approximately two hours. At one point, Ms Radfar had to leave and was replaced by Mr Hinks. On a number of occasions the applicant raised her voice in the meeting. Ms Morgan said she told the applicant she could take documents externally for advice, but must redact any confidential customer and/or company information.
[44] On 25 September 2018 Mr Kuzmanoski invited the applicant to a formal meeting to discuss the allegation in relation to her conduct. The same day the applicant emailed her seeking information about the Bank’s misconduct policy. The meeting was held on 2 October 2018. The applicant declined to bring a support person. During the meeting, Mr Kuzmanoski had told the applicant the meeting was to provide her with an appropriate opportunity to respond to serious allegations and the Bank was considering terminating her employment. He advised her to respond in writing by 4 October 2018. After the meeting the applicant emailed her and Mr Kuzmanoski requesting further documentation in order to respond. When Ms Morgan was appointed Legal Counsel, she had no further involvement in the matter.
[45] Mr Kuzmanoski commenced employment with the Bank in 2009 and has been in his current role since March 2017. His role includes leading a ~200-person front line banking team in the middle market which sits between the Institutional and Business Bank. He oversees seven Managers who run specific centres, including Mr Manwaring in the Chatswood centre. Account managers have portfolios of between 15-50 customers who are supported by the Relationship Executive.
[46] Mr Kuzmanoski said he was advised by Mr Manwaring on 18 August 2018 that the applicant had twice refused to attend training. He recommended he try again. When the applicant refused again, he considered this as being disrespectful to the applicant’s manager which warranted his involvement. This led to him organising a meeting with her for 27 August 2018, which was rescheduled to 3 September 2018 when she called in sick. He had concluded that the applicant’s repeated failure to attend training demonstrated an unwillingness to acknowledge any responsibility, or address concerns with her performance. He was concerned that she would make other errors and he could not trust her to follow procedures, or to respect reasonable management directions. He was concerned as to her business acumen in being able to make sound judgments, based on what is right and wrong in dealing with customers. As to the meeting on 3 September 2018, he deposed to the following exchange:
‘Ms Dias: I’ve done nothing wrong because the account authority was not clear. I rang the number in the account authority and asked for “[incorrect pronunciation of the Client’s name]” and the person said “no [name of the Client] here”. I then checked the team excel spreadsheet which has customer contacts for particular sales groups and rang the contact person for the sales group, so I followed the process.
Me: The account name is pronounced “[name of the Client]” not “[incorrect pronunciation of the Client’s name]”. There are contact points for the whole sales group, which is a number of accounts by related persons or companies, but when you are speaking to someone about a particular account (here a term deposit), you can only speak to persons who are authorised for that particular account. You cannot make assumptions, if you are not sure, you need to check with Ian what the correct process to follow is.
Ms Dias: What can Ian do if it’s not clear?
Me: That’s not your problem, your job is to elevate issues to your manager.
20. She then pulled out a Trust Deed and the following exchange took place:
Ms Dias: Because the brother-in-law that I contacted was a beneficiary of the Trust, it was appropriate to contact him.
Me: Only persons authorised on the account can be contacted. It is not a proper procedure to contact a beneficiary of a Trust and it appears to be a Trust that is not related to the entity that held the term deposit in any event.
21. After this, Ms Dias and I had the following exchange:
Ms Dias: I am concerned that this issue has been mentioned on my performance review when it occurred after the performance period. The incident was 16 July 2018 when the performance review period ends on 30 June 2018 and it has impacted my values rating.
Me: We can removed the comment referring to the incident on 16 July 2018, but your values rating remains the same due to other issues that are identified in the performance review.’
[47] An email to the applicant later that day confirmed that the warning would stand, the comment in her performance review would be removed, and her grievance was resolved with no further action to be taken.
[48] On 5 September 2018, Mr Kuzmanoski was informed that the applicant had forwarded client sensitive information to her personal email address.
[49] On 16 September 2018, the applicant emailed Mr Mark Couter, Executive General Manager, Business and Corporate Banking complaining about the warning and stated he would reopen her case. The next day, he confirmed what the applicant had been told and that he would not be reopening her case.
[50] Mr Kuzmanoski recalled the incident when the applicant turned up to see the CEO at the Darling Park office on 18 September 2018. He understood she was emotional, crying and had raised her voice when she had met Ms Morgan and Mr Hinks. Mr Kuzmanoski phoned her at 6:30pm and encouraged her to go home and the Bank would pay for a taxi.
[51] Mr Kuzmanoski arranged to meet with the applicant on 27 September 2018 to discuss concerns with her conduct. She was unwell on 27 September 2018 and requested a copy of the Bank’s misconduct policy and full details of the allegations in writing. The meeting was rescheduled for 2 October 2018. Mr Kuzmanoski recorded the following conversation:
‘Applicant: The warning is baseless, I have not refused reasonable management direction because it was not group training it was individual training. I wasn’t sure if I could attend the meeting with you, so I didn’t respond to your calendar invite. Anne Marie Paterson and Anne Knight said I could get external advice about my warning, so I had to send the client details to myself to help me prepare. This is discrimination and unfair.
Mr Kuzmanoski: Yes, the training is related to the warning, it is a reasonable management directive to attend this training. Just because HR have told you that you can seek external advice about the warning, this does not authorise you to send client information to your personal email account. This just shows your lack of knowledge of privacy requirements.’
[52] On 4 October 2018 the applicant emailed a response to the allegations. Mr Kuzmanoski said he carefully considered the applicant’s responses and discussed the matter with Mr Couter and Mr Manwaring. He formed the view that if providing information of an account to an unauthorised person was not a sufficient basis to dismiss the applicant, it did warrant a formal warning. He formed the view that Mr Manwaring’s direction for her to attend training directly related to her core responsibilities was reasonable. He also considered her claim of illness on 27 August 2018 as a refusal to attend the meeting, because she had emailed him the day before and did not mention anything about feeling unwell.
[53] Mr Kuzmanoski rejected the applicant’s explanation for sending customer information to her personal email; rather, as it demonstrated a lack of awareness of the Bank’s privacy procedures. He also did not accept she had management approval to attend the Darling Park office on 18 September 2018. She had failed to follow Mr Manwaring’s direction to inform him, if she intended to do so. Mr Kuzmanoski concluded that as this conduct demonstrated no insight into her conduct or the proper processes to follow, and her refusal to attend meetings or training, showed a lack of respect for Management and had breached the Bank’s policies. He was concerned that her lack of insight into proper processes would likely see her make further errors in the future. This posed a risk to the business. In the context of the recent Financial Services Royal Commission, the Bank must be vigilant to ensure customer service and privacy and be more alert to risks. Mr Kuzmanoski was also influenced by a recent report by the Australian Prudential Regulation Authority (‘APRA’) which stressed the need to balance the needs of stakeholders with community expectations. He came to the view that the applicant’s dismissal was justified.
[54] On 8 October 2018, Mr Kuzmanoski offered the applicant paid leave until a General Protections application she had lodged was listed for conciliation before the Commission. On 7 November 2018, Mr Kuzmanoski sent an email request for the applicant to attend a meeting on 12 November 2018 to discuss her refusal to delete the email sent to her personal email address. The applicant challenged the basis of this allegation. On 11 November 2018, she sought to record the meeting, as she could not bring a support person. This was denied. Mr Kuzmanoski described the meeting on 12 November 2018 with Ms Radfar in attendance. It lasted for approximately half an hour. After the applicant explained her response to the five allegations, Mr Kuzmanoski said her responses and information had all been considered, and a decision had been made to terminate her employment. Mr Kuzmanoski said the applicant then opened up her laptop and it looked like she began sending emails to herself. He told her this was inappropriate, she should stop and return all Bank property.
[55] Mr Kuzmanoski did not believe the applicant’s reinstatement would be appropriate. The applicant’s managers had informed him that her poor performance was letting the Team down, and others felt she was not pulling her weight. He believed the employment relationship had been broken and he considered her failure to accept any responsibility for her conduct, to be very worrying. Finally Mr Kuzmanoski said:
‘76. I personally do not trust Ms Dias, I do not believe she has the commercial acumen or judgment needed to operate effectively within the structures of the Bank.
77. I also think her refusal to attend meetings with management, her refusal to attend training targeted at assisting her to perform soundly and her responses to the allegations demonstrate that she has absolutely no insight into her wrongdoing and does not acknowledge any wrongdoing on her part. It also demonstrates a complete failure to understand simple Bank policies and procedures respecting customer privacy.
78. I cannot be confident Ms Dias will respect reasonable management directives in the future or follow proper Bank procedures. This exposes the Bank to an unacceptable level of risk, and it would therefore be wholly inappropriate to reinstate her.
79. In my view, Ms Dias’ conduct demonstrates that she does not share the values of the Bank and therefore it would be inappropriate to reinstate her to any position at the Bank.’
[56] Prior to joining the Bank in January 2017, Ms Paterson was a practicing solicitor working in employment law. Her role at the Bank is to manage escalated workplace grievances nationally and internationally for the Group. After describing the Workplace Grievance Review Process (‘WGR Process’), Ms Paterson said she has an overview role when the grievance reaches Stage 3.
[57] Ms Paterson became aware of the applicant’s grievance in August 2018, but determined at the time that it was appropriate to escalate the matter to Mr Kuzmanoski, and that he should determine the outcome. This is why she informed the applicant on 27 August 2018:
‘I do not propose to look further into your concerns given your M2R is willing to review the issues raised, being the course of action I would have undertaken as the EM People Resolutions.’
The applicant was unhappy with this response. Later that day, she had a phone conversation with the applicant in which she was ‘quite emotional’. She informed her that as Mr Kuzmanoski was her M2R, there would be no further appeal against his decision. She emailed this to her the next day and explained she was welcome to bring a support person to any meeting with Mr Kuzmanoski, but it was not the Group’s process for HR to attend in that capacity.
[58] After the applicant advised her that she did not feel safe meeting Mr Kuzmanoski alone, Ms Paterson offered to attend as an independent party, but not as a support person for anyone. It was agreed with Mr Kuzmanoski that the applicant should be given a full opportunity to say whatever she needed to say to explain her position.
[59] Ms Paterson attended the meeting on 3 September 2018. The applicant denied breaching any of the Bank’s policies or client privacy. She claimed she had authorisation to speak to the Client’s brother. The applicant had a large number of documents with her. Ms Paterson believed the documents supported her position, that the applicant had no authorisation to speak to the person she did and other documents were not relevant to the transaction.
[60] At this point, Ms Paterson believed the applicant had no written authority to contact the customer’s relative, and she was not prepared to acknowledge or accept any accountability for her actions. Ms Paterson said the applicant became visibly worked up; her voice got louder and she proceeded to change topics, while insisting she had done nothing wrong. After about an hour, Ms Paterson said that she had not provided any evidence that she had received authority for her actions and as it appeared she had breached the Bank policy, there was no reason to withdraw the warning. Mr Kuzmanoski agreed.
[61] After Ms Paterson raised the issue of the breach occurring in the post-performance review period (‘PFR’), Mr Kuzmanoski agreed to remove any reference to it in the current review period. Ms Paterson then said words to the effect of:
‘I can see that part of the issue is that you are not taking accountability. From our discussion today, it is clear to me you didn’t have the authority that the policy required. I wonder if things would have turned out differently if you acknowledged the issue and apologised. Taking accountability for a mistake is one of the things that factors into the response we take, and you might not have received a warning at all if you had acknowledged the position.
…
I agree with Zac’s decision and we won’t be taking any further action about your grievance. If you are not satisfied, you can get independent legal advice about what further options you might have about the warning. That is your prerogative. But I am satisfied you have had a full opportunity to put forward your version of events, and you had nothing to support the actions you undertook to contact a person not authorised on the account.’
[62] Ms Paterson confirmed these outcomes in an email to the applicant later that day. Despite the matter being concluded, the applicant emailed Ms Knight who agreed to review the outcome in order to give the applicant an extra level of assurance her concerns had been fairly considered. After Ms Paterson briefed Ms Knight, the applicant was informed by her that there was a proper basis for the warning and in accordance with the WGR process, no further action would be taken. Despite her formal involvement ending, Ms Paterson continued to be copied into emails about the applicant’s communications with others about her ongoing complaints. She was aware the applicant had lodged a General Protections application with the Commission.
[63] The applicant commenced employment with the Bank in August 2004. She holds a degree in economics and a Diploma in Financial Planning. She has worked in various corporate and commercial teams in the Bank, and undertakes approximately 30 hours’ training each year to maintain her banking accreditation. At the time of her dismissal, the applicant worked in the CO4 Team which was responsible for managing the accounts of 20+ groups of companies. Mr Low joined the Team as Relationship Executive on 4 December 2017. The applicant claimed she had a meeting in mid-February 2018 with Mr Manwaring and Mr Low in regards to her Interim Review (1 July 2017 – 31 December 2017) and four ‘false’ allegations Mr Low had made against her. The applicant said Mr Manwaring instructed Mr Low to change her value rating from ‘inconsistently’ to ‘well demonstrated’. Mr Low responded by questioning the applicant being eligible for a share in the annual bonus for the CO4 Team at the end of the financial year.
[64] The applicant said that on 16 July 2018, she contacted the phone number on the Family Super Fund file, as it appeared the standing instructions on the account had not been complied with. She said she looked through all the documents associated with the account. As there was no authority document, she called the number on the CommSee Family Super Fund page. The person who answered told her that there was no one there by the name she had rung. She then contacted the authorised contact in CommSee for the Family Group of Companies due to the inconsistencies in the CommSee. She sent an email to this person as requested by him.
[65] The applicant said she attended the ‘1st mechanical pre-decided’ meeting with Mr Manwaring and Mr Young on 27 July 2018. Mr Manwaring advised of a complaint from a customer about her contacting an unauthorised person on the account. Mr Manwaring said the Bank was looking at a potential breach by her, on the balance of probabilities. She had questioned this when there were no documents in CommSee as to the authorised person and she ‘went off’ other documents in the system related to the account. Further, it was not clear if the complainant was who she said she was. Mr Manwaring then said ‘I will be giving you a warning’. The applicant challenged the warning and said she had complied with the process when the documents are inconsistent with CommSee. She asked for an explanation, or for evidence to substantiate this warning. When Mr Manwaring said he put the matter in ‘RiskInSite’, the applicant requested a copy. He said he would let her know.
[66] The applicant received the warning letter on 31 July 2018. She claimed Mr Manwaring said the warning was finalised and her Short Term Incentive (‘STI’) for the previous year would be reduced. The applicant asked how the incident was misconduct and why it was put in last year’s performance review (‘PFR’), when the incident occurred in the current year. She asked how she had acted unprofessionally. She recalled Mr Manwaring saying the matter was closed and he would be sending her for training. If she tried to discuss the matter after this, it would be considered ‘unprofessional’ and her services would be terminated. The applicant said she then sought a postponement of the training, as she would be contacting HR to dispute the warning. She requested a written explanation for the warning and why it was considered what she did, was wrong. Mr Manwaring replied ‘OK’.
[67] On the same day as she attended a meeting about her annual performance review (13 August 2018), the applicant lodged two operational risk incidents alleging breaches by Mr Low. At the meeting, the applicant challenged the ‘baseless’ warning being put into her last year’s performance and why her values had changed from ‘well demonstrated’; see: [12] above. The applicant raised five incidents of Mr Low’s alleged breaches and asked whether they would be included in his PFR. Mr Manwaring replied that Mr Low’s performance was a matter for him to discuss with Mr Low.
[68] The applicant said she followed the Workplace Grievance process and contacted HR on 17 August 2018, because she ‘realised Mr Manwaring was being unfair to me’. She believed she needed evidence and a written explanation as to why it was said she had made an error. On 21 August 2018, she received a written explanation from Mr Manwaring that ‘[the Brother] is not an authorised signatory or authorised party to receive information on this Term Deposit as per the Term Deposit New Account Lodgement Authority dated 5 March 2010 filed on the CommSee profile.’
[69] On 24 August 2018, the applicant completed a workplace grievance issue statement with her evidence to enable HR to proceed with an impartial review. The same day, Mr Kuzmanoski invited her to attend a meeting on 27 August 2018 discuss training. He also agreed to discuss the warning and the annual PFR. The applicant expected Ms Paterson to attend the meeting, but as Ms Paterson did not work on Fridays, she was not made aware of the meeting until the morning of 27 August 2018 and could not attend. In any event, the applicant called in sick on 27 August 2018. However, she did speak to Ms Paterson that day.
[70] On 28 August 2018, Ms Paterson advised the applicant to meet with Mr Kuzmanoski, as he was her M2R. Later that day she phoned Ms Knight (Ms Paterson’s supervisor) and said:
‘I explained to Anne Knight “I was ringing in relation to my workplace grievance ref: HRD-539094 I have been given a baseless warning and the documents in the system are incorrect but I have been accused of giving information to a third party. I wanted a neutral party to investigate the matter. The incident occurred 16 July after 30 June 2018 and yet it has been put in my previous [year’s] PFR ([1 July] 2017 to 30 [June 2018].) I had difficulty in even obtaining the relevant Risk InSite document in regards to the incident.”
Anne Knight said to me “I am not familiar with the grievance but would find out further details and come back to me after she understood more.”’
[71] The applicant said she went to the ‘1st staged and pre decided meeting’ on 3 September 2018 with Mr Kuzmanoski and Ms Paterson to prove that the Brother was the authorised person for the Family Group of Companies and there were inconsistencies in documents in the bank system (CommSee). She told Mr Kuzmanoski and Ms Paterson that where there are no authority documents, the policy is to contact the authorised contact person of the Company. Ms Paterson told her if there was no authority document, she should have asked her Manager. The applicant showed Ms Paterson a document she said Mr Manwaring claimed was an authority document. Mr Kuzmanoski and Ms Paterson disagreed. Mr Kuzmanoski confirmed the warning would remain, but the comments would be removed from the previous year’s PFR. However, the values rating would remain the same. The applicant protested that the only reason her PFR went down was because of the ‘baseless warning’. Ms Paterson said if she was unhappy with Mr Kuzmanoski’s decision, she ‘can take this matter externally’. Ms Paterson assured her not to worry about the confidentiality clause and she would send her an email to confirm that ‘you can take the matter external to seek independent legal advice’. The applicant said there was no discussion about training or future dates for training. On 4 August 2018, Ms Knight confirmed the outcomes of her grievance.
[72] The applicant said she had always attended weekly group training and had even travelled in her own time to a two day training course in the Hunter Valley in September 2018.
[73] On 16 September 2018, the applicant escalated her grievance to the Executive General Manager, Mr Mark Couter, as she believed it was inappropriate for Mr Kuzmanoski to deal with her matter and in any event, she had not received confirmation of what Mr Kuzmanoski had agreed to regarding her PFR. Mr Couter declined to intervene as the Bank was comfortable with the outcome. Her case would not be reviewed.
[74] On 17 September 2018, the applicant was advised she was to receive a data breach for the grievance request she sent to herself, after gaining authorisation to do so. The applicant claimed she told Mr Manwaring she would be working from the Darling Park office the next day to arrange a meeting in regards to the unfair data breach. Mr Manwaring gave his ‘OK’ for her to do so.
[75] On 18 September 2018, at around 9:30am, she attempted to contact the CEO, but was told he was overseas. She was put on to the Executive Team member, Mr Bennett, who she told of her grievances. She later told Mr Young that Mr Manwaring had approved her working from the Darling Park office that day.
[76] While working on Level 9 in the Darling Park office that day, Ms Morgan came up to her, introduced herself and requested she come to the meeting room. Ms Radfar was there, and halfway through the meeting, Mr Hinks arrived. She told them why she wanted to meet the CEO. Ms Morgan advised her by email of arrangements she could take up if she wanted to take her matter externally:
‘Option 1: The Group will allow you to bring your support person on-site 1 hour prior to the meeting to provide you with the opportunity to brief your support person, and show any documents/material you wish to rely on. If you select this option please let me know and [I] can support in providing access to the building.
Option 2: All documents/material will need to be redacted, this will include any customer information and/or Group sensitive information. Once this has been redacted, the Group will allow you to take the documents off-site. These documents should not be sent via email.’
[77] That day Mr Kuzmanoski phoned her to schedule a meeting the next day to discuss concerns with her conduct. She asked ‘what concerns’ he was referring to. He said they will be discussed tomorrow and that she could bring a support person. She said this was not enough notice.
[78] On 27 September 2018, she requested a copy of the Bank’s misconduct policy and the allegations in writing. Ms Morgan replied there was no misconduct policy, but she detailed the process. Ms Morgan could not say when the meeting would be rescheduled. On 28 September 2018, she was requested to attend a meeting on 2 October 2018, but as the intervening period was a long weekend, she could not arrange a support person.
[79] The applicant said that in the second ‘staged and pre-decided’ meeting on 2 October 2018 with Mr Kuzmanoski and Ms Morgan, Mr Kuzmanoski said that the allegations were serious and he would allow her to provide a verbal response. He gave her until 4 October 2018 to respond in writing. He added that he was considering terminating her employment if the allegations were substantiated.
[80] The applicant replied that there were inconsistencies in the documents, and in accordance with procedure, she contacted the Brother, who is the authorised contact for the Family Group of Companies. Mr Kuzmanoski then asked Ms Morgan to read out the termination options, including maintaining privacy and confidentiality. She claimed the following conversation occurred in the meeting on 2 October 2018:
‘M2R Zac Kuzmanoski said “Temira could you please read out Candice’s Termination Options.” Ms Temira Grandi pulled out some printed A4 size documents from a folder/file and read from it for 5 minutes about maintaining privacy, confidentiality and my Obligations after my services are terminated.
M2R Zac Kuzmanoski read out a printed note of conclusion to terminate my services which to my recall stated “I was not following directions of management and group’s policies, procedures, Commitments etc….”
Then M2R Zac Kuzmanoski said “I have 2 options either you resign and we can talk about money or if you go for unfair dismissal you could only get a max of 6 months pay” (Doc ZK16)
I said “I am not prepared to resign. I need my job.”’
[81] The applicant responded to the five allegations as follows:
‘1) All 3 trainings were related to the baseless warning misconduct of 31 July 2018. These were given to me on Thursday 16 August 2018, Friday 17 August 2018 and Wednesday 22 August 2018 one after another even after I told Ian Manwaring to postpone the meeting/trainings in regards to the 31/07/2018 baseless warning as I have contacted HR and need an explanation in writing in regards to the baseless warning to pursue my case with HR as he has been unfair to me by putting the 16 July 2018 incident in last year’s performance review and I did not have the option to discuss this after the training or my services will be terminated as the matter is finalised by him after the training has been completed. Ian Manwaring gave me the 1st explanation on the 21 August 2018 in regards to the 31/07/2018.
2) I have never refused any meeting/trainings I only had to postpone the meeting as I was waiting for HR to attend the meeting as a neutral party. Workplace Grievance Anne-Marie Paterson re-scheduled the meeting to the 03/09/2018 to suit the date and time she could attend the meeting. 2nd reason being I was not well from the 27/08/2018 till the 29/08/2018.
3) I had pointed out to the Maintain Confidentiality clause in the 31 [July 2018] warning letter in the meeting of 03/09/2018. Yourself, Anne-Marie Paterson and Anne Knight gave me authorisation to take my workplace grievance matter external verbally [and] in writing. All requests are sent to workplace grievance (HR) via email only.
4) I got verbal approval from Ian Manwaring on Monday 17 September at 6 PM when I was leaving work to work the next entire day from Darling Park Office. I had no other conversation with Ian Manwaring.
5) I went to meet the CEO as I was feeling discriminated since I became pregnant. No one was listening to me.’
[82] Later that day and the next, the applicant sought Ms Morgan’s notes and her termination options. The applicant claimed Mr Low made further breaches of policy on 15 October 2018. On 5 October 2018, the applicant filed a General Protections application which was listed for conciliation on 22 October 2018 (the matter did not resolve). The applicant submitted a maternity leave request on 4 November 2018 to commence on 14 December 2018.
[83] The applicant accepted that Mr Manwaring had requested she remove her workplace grievance from her personal email. On Wednesday 7 November 2018, the applicant was invited to a meeting scheduled for 12 November 2018 with Mr Kuzmanoski and Ms Radfar, to discuss the outcome of the allegations and a new allegation concerning Mr Manwaring’s request that she delete her grievance from her personal email. She claimed to have authorisation to do so when taking her matter externally and no third party had seen it.
[84] On 11 November 2018, the applicant emailed Mr Kuzmanoski to request the meeting be recorded. She also objected to Ms Radfar being a support person, because she was involved in the matter. Both requests were refused. She responded to the five allegations as before; see: [2] above. When Mr Kuzmanoski asked about the General Protections conciliation, Ms Radfar said that the case was closed (the applicant referred to an email from the Chambers of Senior Deputy President Hamberger indicating that the conciliation had been unsuccessful and she could take her case to the Federal Circuit Court or the Federal Court of Australia).
[85] Mr Kuzmanoski then said ‘I have decided to terminate your employment effective immediately’. After the applicant asked for an explanation as to the five allegations of misconduct when she had done nothing wrong, Mr Kuzmanoski replied ‘it will be in your dismissal letter tomorrow’.
[86] The applicant claimed that at the end of the meeting, when she was gathering her personal notes and evidence, Ms Radfar tried to snatch the documents, but she managed to get them in her bag. Mr Kuzmanoski told Ms Radfar to call security; he had said ‘give me your laptop and phone’. The applicant pleaded for time to wrap up what she was working on, but she handed Mr Kuzmanoski her phone, laptop and swipe cards and security escorted her from the building.
[87] In a reply statement, Mr Manwaring:
(a) denied the comments attributed to him in the meeting with the applicant and Mr Low in mid-February 2018. The purpose of the meeting was to discuss the contents of the applicant’s PFR, which had ‘values’ as ‘inconsistently demonstrated’;
(b) said that in the November 2017 meeting, he had asked the applicant to think about whether she was happy in her role and whether another role might be more suitable for her;
(c) denied discussing bonuses or ratings in either of the above meetings. Bonuses are assessed on an individual, not a portfolio basis. Decisions about bonuses are not made in PFR discussions;
(d) said the purpose of the 27 July 2018 meeting with the applicant was to discuss issues relating to the applicant’s contact with the Brother and seek her response;
(e) denied the words attributed to him in the 31 July 2018 meeting. As at 31 July 2018, he had not considered the STI payments to staff and did so in the next month in a recommendation to Mr Kuzmanoski, Mr Couter and Mr Bennett;
(f) said the purpose of 31 July 2018 meeting was to give the applicant a warning in relation to her conduct and not to terminate her employment. In any event, he had no authority to do so and was not involved in the matter after it was referred to Mr Kuzmanoski on 5 November 2018;
(g) said that in the meeting with the applicant and Mr Low on 13 August 2018, neither he, nor Mr Low said words attributed to them by the applicant; and
(h) set out the exchange he had with the applicant on 17 September 2018 about working at the CBD office, as follows:
‘Me: “Do you already have an appointment at DP 1?”
Ms Dias: “No, it’s too late to organise.”
Me: “When are you going to organise it?”
Ms Dias: “I will do it first thing in the morning”
Me: “Before you come in?”
Ms Dias: “Yes.”
Me: “If you can arrange the meeting, you need to let me or Craig know before you head in, because I need to check with those in DP1 that there is a workstation for you. Please let me or Craig know in the morning before you head in if you want to work out of the city.”
At no time, did the applicant mention she was going to see the CEO.
[88] Mr Manwaring commented on a number of documents the applicant included in her bundle she described ‘as her evidence’ (the numbering changed during the proceedings):
(1) Document 21(a) – Screenshot report of a meeting on 13 June 2016 between Mr Trevor Williams from the Bank and the Brother. Mr Manwaring called this a ‘call report which is entered into an online system’. He described its creation and purpose as follows:
‘b. When a person enters a call report into the online system, and a customer or entity name is entered, the system generates a list of other entities that have a connection to that entity. This is what is shown in the “Clients/Account” box in attachment 21(a). The person should then select the specific entity which the call report relates to.
c. Entities can be “linked” for a number of circumstances. For example, where directors in a company are “linked” to a profile in the system, the individual profiles of the directors become “linked” to the company’s profile. By way of another example, where one company has a joint borrowing arrangement with another company, those entities become “linked” in the system.
d. The fact that persons or entities appear as “linked” does not mean that those persons or entities have the authority to act on behalf of the other “linked” persons or entities.’
(2) Document 21(b) - Computer generated list of imaged documents relating to a customer profile. He said:
‘This appears to be a computer-generated list of imaged documents relating to a customer profile. The list appears when a person clicks a “Documents” link on the customer’s profile. The “Documents” link is shown in Annexure IM-14 of my Previous Statement, on the top right hand corner of the box with the heading “Customer Information”.’
(3) Document 21(c) - List of customers. Mr Manwaring was unaware of this document prior to reviewing the applicant’s statement. He searched for the document on the shared G drive in the CO4 portfolio folder and noted the last date the document was edited was 19 January 2017.
(4) Document 21(f) – One page extract from Trust Deed for the Family Trust. Mr Manwaring said ‘As to attachment 21(f), the left hand side of the [document] appears to contain a list of beneficiaries and the right hand side of the document appears to contain a list of client names, which are “linked”. As stated at paragraph 7 above, entities can be “linked” for a number of reasons. This does not appear to be [an] authority document in respect to any of the “linked” entities. Annexed and marked “IM-4” is a full copy of the document containing the list of trustees listed in document 21(f), which I have accessed via the “Documents” link shown in IM-14 of my Previous Statement and as described in paragraph 9 of this statement above.”
[89] Mr Kuzmanoski responded to the applicant’s statement as follows:
(1) He denied the words attributed to him in the meeting of 2 October 2018, concerning termination options and unfair dismissal. His only words were ‘We are happy to have a ‘without prejudice’ discussion with you.’
(2) He attached a copy of his speaking notes for the meeting with the applicant on 12 November 2018. Not all of the bullet points were covered, but the general matters were discussed. In respect to the end of the meeting, he made multiple requests to the applicant to hand over her phone, laptop and security pass. Initially, she did not respond. He observed her using both her phone and laptop, but he could not see what she was doing, as he was sitting opposite her. He did not see Ms Radfar attempting to snatch documents from the applicant or engage in any physical behaviour with her.
[90] In cross examination, Mr Manwaring confirmed Mr Low joined the Team on 4 December 2017. Mr Manwaring agreed that both interim and full year performance reviews included weightings attributed to various KPIs. He confirmed that if a person comes across a risk issue, they must report it, and a failure to do so would be a breach. A report would be evaluated to determine, if it is reportable.
[91] Mr Manwaring agreed that a Customer Verification Team had been established to assist the front line with great accuracy in knowing the customer. Mr Manwaring was not aware (until the day before) of any contact list or distinctions between new and old customers. If the person was unsure about the correct customer to contact, it should be referred to their manager. Ultimately, the contact person is the person for the legal entity on the Bank’s CommSee profile for superannuation funds.
[92] Mr Manwaring denied that in the meeting on 31 July 2018, he had answered the applicant’s query ‘Why is this a misconduct?’ by stating ‘it’s because you’ve acted unprofessionally’. He agreed she had mentioned the effect this warning would have on her STIs, but did not mention anything about it having occurred in the year before. Mr Manwaring could not recall if she had asked any questions in the meeting. He agreed she wanted to contact HR on this issue, because the PFR was put in the previous year.
[93] Mr Manwaring was asked about the Bank’s Workplace Grievance Review. It is available to all employees and has a process attached to it.
[94] Mr Manwaring explained that in respect to how bonuses are calculated, each staff member within a corporate portfolio has a different set of KPIs, and bonuses are set at an individual level. Ms Dias queried that the Team performed at 107%, but she was denied the bonus. Mr Seck objected on the basis that the bonus issue is not relevant to the issues in these proceedings.
[95] Mr Manwaring was asked about the applicant’s last performance review in 2017/18. He agreed that in the first half of the year, four allegations were raised with her. He had agreed to change her ‘values’ to ‘well demonstrated’. The warning letter came after the review period (31 July 2018). He acknowledged that she was entitled to take the warning letter as a grievance to HR. He denied saying that it would be ‘unprofessional’ to take the warning letter to HR after training. He agreed that the fact the applicant was directed to training did not prevent her from pursuing a grievance with HR.
[96] The applicant said the first time she received the allegation in writing was on 21 August 2018 which was after the training dates of 16 and 17 August 2018. On 18 September 2018, she went to the Darling Park office. Mr Manwaring said that the day before, he had approached the applicant in the foyer, because she was in a distressed state and he offered her a taxi home. The applicant was upset at having a data breach recorded for something she believed she had approval for on 3 September 2018 (taking her complaint externally). Mr Manwaring insisted that she had not been given approval to go to the Darling Park office the next day. He only said if she intended to do so, he was to be advised, in order to make appropriate staffing arrangements. He was unsure why she needed to go to the Darling Park office. In fact, there had been three conversations that day; the first to deliver her short term variable remuneration and REM statement, the second to discuss the data breach, and the third at around 6:00pm when she advised she was leaving.
[97] The applicant asked Mr Manwaring about his statement which stated:
‘The applicant's poor performance has impacted the rest of the team members and put a strain on Mr [Low] to manage the applicant. The applicant's conduct has had a negative impact on the team morale.’
She asked how this was consistent with her role in a Team which performed at 107%. Mr Manwaring explained this was a revenue performance measure on the portfolio. He said that targets can still be achieved, if not all members of the portfolio team have contributed. He agreed that Mr Low had only been in the Team for six months. Mr Manwaring did not believe the applicant was denied access to anything. He accepted it would be unfair if the impact of an event in the earlier review period, was put in the current period.
[98] Ms Dias pressed Mr Manwaring about the failure to provide an explanation of the warning, other than what she received on 21 August 2018; by that time her grievance was with HR. Mr Manwaring said there were a number of other documents and during the meeting of 31 July 2018, the allegations against her were explained. She was afforded training on the issues on 16 and 17 August 2018, but declined to attend. There were two meetings before 14 August 2018 which dealt with her providing personal investment information to unauthorised third parties.
[99] Mr Manwaring denied that Mr Low was upset (when he came on board on 4 December 2017) that the applicant was included in the Team results.
[100] In re-examination, Mr Manwaring was taken to the complete document the applicant had taken him to before – “Business Customer On-boarding (BCO: Digitising organisation on-boarding for Domestic Proprietary Companies” - which referenced two pages only (pages 13 and 14). Mr Manwaring explained that the document indicates it only applies in South Australia, Western Australia and the Northern Territory. Nevertheless, Mr Manwaring said the reference to a contact person (for a self-managed super fund) at page two is the authorised representative of the organisation. It could be a director, shareholder or a person authorised by the parties to act on their behalf. Mr Manwaring further explained that the document related to a pilot for a new digitised on-boarding experience for domestic proprietary companies which commenced on 15 November 2018. He said there is no policy for NSW on the PPL (‘Policy and Process Library’) and this is a default policy for NSW, which had been trialled for over 12 months.
[101] Ms Dias objected to this document being tendered on the basis it was not the same document from which her two extracted pages came from and which applied in NSW. It is a similar document, but she could not produce it. Although Mr Manwaring said this was the only document he could locate from which the two pages could be extracted, the full document was tendered subject to a further search for any corresponding document applicable to NSW.
[102] Ms Knight confirmed she had only ever spoken to the applicant on the phone on 28 August 2018, by email on 4 September 2018 and in another phone call on 5 September 2018. Ms Knight was Ms Paterson’s Manager at the time. The both sit in the Bank’s Legal Services Division.
[103] Ms Knight agreed that the issue of training was raised in their first phone call as Ms Knight understood that there had been a direction to attend training. Ms Knight understood that all the material she received from Ms Paterson related to the applicant’s workplace grievance. Ms Knight understood the applicant was intending to seek independent legal advice, but that was a matter for her. She did not need approval to do so. She did not mention in her email anything to do with further documentation.
[104] In any event, despite taking documents allegedly after receiving approval to do so for her external advice, she never sought any independent legal advice. So, despite claiming she needed the documents to give to an independent legal adviser; she had no intention of doing so. She had come up with this false explanation to suggest she had approval to take personal customer information, which she obviously had not and would never have obtained.
[105] Ms Morgan agreed she first met the applicant on 18 September 2018. Ms Morgan had been requested to meet with her after having met Mr Bennett earlier in the day about her concerns with the warning letter. Mr Simon Hinks also attended.
[106] Ms Morgan clarified an email she sent to Mr Manwaring on 27 August 2018, which in part suggested the applicant should not be penalised (loss of bonus) twice (being in one review year and not in two review periods).
[107] Ms Morgan agreed she attended the 2 October 2018 meeting with Mr Kuzmanoski as his ‘support person’. Ms Morgan said there was an attempt to have a ‘without prejudice’ conversation about termination options, but this did not progress. Ms Morgan agreed the applicant requested a copy of the document she had been reading from. It was not provided because it got no further than a few minutes of discussion about ‘without prejudice’. Ms Morgan later provided her with an outline of the process which was to be followed in a misconduct case. This process is consistent across the organisation. Ms Morgan confirmed the applicant raised her voice in the meeting on 18 September 2018 and that Mr Hinks made a hand gesture to the applicant for her to lower her voice.
[108] Mr Kuzmanoski made clear that the meeting he had with the applicant on 3 September 2018 was to discuss her refusal to attend directed training on 16, 17 and 22 August 2018. Mr Kuzmanoski could not recall if Mr Manwaring had advised him that the applicant had declined to attend training, because she wanted HR’s involvement in her grievance. He recalled the applicant’s emails on the 24 and 26 August 2018, where she kept telling him she wanted to discuss things in writing, not in person, and that she kept asserting the matter was still under investigation.
[109] Mr Kuzmanoski said the applicant wanted to also discuss the bonus issue, and although irrelevant, he agreed to do so. Mr Kuzmanoski agreed he had authority to change or amend comments on a performance review. He confirmed the applicant did not need approval to seek external legal advice. However, no approval was ever given; nor would it ever be given for her to take personal customer information externally.
[110] Mr Kuzmanoski agreed that on 20 September 2018, the applicant was invited to attend another meeting on 2 October 2018. Again, matters other than her refusal to attend training were discussed, including her review and the bonus. The applicant consistently raised the issue that the training was not ‘group training’.
[111] Mr Kuzmanoski confirmed that after multiple attempts to meet with her, and after initially refusing to meet, they eventually did so on 3 September 2018.
[112] Mr Kuzmanoski said the five allegations were put to the applicant on 20 September 2018 and the process was explained. The applicant then chose to invent her own process. Mr Kuzmanoski could not recall if he had asked Ms Morgan to read out her termination options in the meeting of 2 October 2018. He did say termination was an option he was considering and that the applicant had until 4 October 2018 to defend her position. Mr Kuzmanoski agreed he had prepared a note of the order in which the meeting would be conducted. He denied saying anything about six months’ compensation for an unfair dismissal claim.
[113] Mr Kuzmanoski accepted that the applicant did not work in a branch. However, there is a level of overlap in respect to the Bank’s policies and procedures. He agreed she could work from other offices, but what she does daily is a matter for discussion with her Manager.
[114] Mr Kuzmanoski was taken to the trial policy in South Australia, Western Australia and the Northern Territory, introduced on 15 November 2018 after she was dismissed. Mr Kuzmanoski stressed that ‘Banking 101’ tells you that you need an account authority to talk to someone about an account, and if you cannot find where that authority is, you talk to your manager. You do not call someone whose name appears on a spreadsheet. Mr Kuzmanoski did not look at any trial policy applying in other states. The applicant never produced an account authority identifying the authorised contact person for the Family Super Fund. The beneficiary of a trust deed or a director does not constitute someone who is authorised; neither does a name on an Excel spreadsheet.
[115] Mr Kuzmanoski was asked about the five alleged breaches of policy by Mr Low reported by the applicant on the one day, 13 August 2018, which may have impacted on his bonus. Mr Kuzmanoski said he receives information all the time about ‘odd mistakes’ and he did recall Mr Manwaring having mentioned historical breaches by Mr Low over time, but these would have been addressed appropriately. Mr Kuzmanoski said the applicant should not have been inquiring about other Team members’ bonuses, which itself was another breach of privacy, and the person she asked would not have known anyway. He denied people are treated differently.
[116] The applicant questioned Ms Morgan’s right to be a support person for Ms Knight when she was involved in her case. Mr Kuzmanoski said that in any event, the support person was merely to take notes, and did not contribute to the discussion.
[117] Mr Kuzmanoski said that on each occasion a meeting was convened, the applicant was given more than 24 hours’ notice. He obtained this advice from the HR and WR teams. The applicant then sought to make a point about whether the notice was 24 business hours or just 24 hours.
[118] Mr Kuzmanoski was asked about the outcomes of each of the three meetings he had with the applicant – 3 September 2018, 2 October 2018 and 12 November 2018. In respect to the 3 September 2018 meeting, he agreed to remove the criticical commentary in the applicant’s annual PFR. The applicant claimed it was not removed. Mr Kuzmanoski said this was ‘absolutely false’. The document was unlocked, adjusted and amended. Mr Kuzmanoski explained the effect of this decision. Notwithstanding, he believed that as the applicant had put the Bank at risk, her risk rating did not go backwards. As to ‘values’, Mr Kuzmanoski referred to a discussion he had with her in March 2018, in which he openly questioned her values and she became quite emotional.
[119] Further discussions with Mr Manwaring and Mr Low affirmed the view as to where the applicant sat on the ‘value’ scale. The rating ended up at 15% of her potential which was at the top end of the range for the period January – June 2018. It was an entirely fair process. Mr Kuzmanoski noted that he, Mr Manwaring and Mr Low all agreed that the warning was substantiated, no matter what she said about it. Mr Kuzmanoski emphasised that a performance review has three components: values, KPIs and risk management. These applied to the whole team resulting in a 107% rating and it is not about revenue or profit. Bonuses were paid a few weeks after 1 September 2018. The applicant did not get the top range in the three areas. The ratings were a result of her performance throughout the year, and were not all linked to the incident on 31 July 2018. He said removing one item, did not impact the other items in the rating.
[120] It was Mr Kuzmanoski’s evidence that the Bank’s grievance policy was implemented fairly and flexibly. The applicant refused to attend multiple meetings, even where dates had been changed at her request. Her evidence was that she would only respond in writing.
[121] As to the meeting on 2 October 2018, Mr Kuzmanoski had made notes before the meeting and had written, on advice, ‘Unfair dismissal. Maximum 6 months claim.’ Mr Kuzmanoski stressed that at this point, there was no decision about the applicant’s dismissal. He had consulted with HR/WR about potential paths the matter might go down. He declined to provide her with his notes, as they were his. Mr Kuzmanoski acknowledged he raised the issue of a ‘without prejudice’ discussion, but it did not happen as the applicant ruled it out. Mr Kuzmanoski said that he had still wanted to sort out the applicant’s issues, and there was no predetermined outcome. In any event, the applicant responded in writing on 4 October 2018.
[122] The dismissal meeting was on 12 November 2018. Mr Kuzmanoski also had speaking notes for this meeting prepared by Ms Radfar a few days before. He had considered all of the applicant’s responses and her complete failure to acknowledge any wrongdoing and advised her of her dismissal - confirmed in writing the next day.
[123] Mr Kuzmanoski said that how the applicant behaved or conducted herself three years or ten years ago has no bearing on how she had been conducting herself in 2017/18. Mr Kuzmanoski was referring to her dragging the culture of the Team down, not necessarily the financial performance. He was aware of this from his own experience and from others he had worked with over the last 12 months. He said that just because the Team rating was 107% does not mean the Team could not have done more. There were at least six to seven data points where the applicant did not follow management directives. He believed she lacked insight, acumen and judgment and had put the Bank at risk. He had lost complete confidence in her to understand the basic banking principles of privacy and technological use. A small example of her withdrawing herself from the Team culture was her withdrawal from the Social Club; although in isolation, this was not a big deal.
[124] When he said he thought the applicant was sending emails to herself in the dismissal meeting, he agreed it was an assumption. Nevertheless, it was consistent with what she had done before and he did not trust her. He asked for the laptop and mobile phone and when she refused, she asked Ms Radfar to call security.
[125] Ms Paterson confirmed that she had received the applicant’s workplace grievance by email, and the first time they met was on 3 September 2018. She recalled the applicant had provided numerous documents and there was a robust discussion. She agreed Mr Kuzmanoski was the decision maker in respect to the warning and the PFR bonus. He had agreed to remove the comments in the half yearly review. Ms Paterson recalled that she had said that if the applicant was unhappy with Mr Kuzmanoski’s decision, she had the prerogative of seeking independent legal advice. Soon after the meeting, she sent the applicant an email confirming the outcomes.
[126] Ms Paterson said the support person for an employee, or the manager, fulfils the same role - support for the person throughout the meeting. They are not a representative or advocate for the person, so there is no conflict if they have knowledge of the matter. Ms Paterson agreed there is flexibility in respect to organising meetings, including there is no minimum notice period for a meeting. Ms Paterson agreed she had asked Mr Kuzmanoski on 3 September 2018 to reconsider comments made in the PFR for the year before. It was up to Mr Kuzmanoski to agree and implement this and she understood he had. She did not follow up to see if it had been done. However, the substance of the grievance had concluded with an in-principle agreement.
[127] The applicant was asked about her document ‘21C’, being a list of entity names which appeared to be redacted. She claimed she had redacted the company names for the purposes of these proceedings. It was one of the documents she used to identify the contact for the Family Super Fund.
[128] The applicant confirmed her letter of appointment dated 7 October 2016, and that she had worked as part of the corporate financial services team within the business and private banking business of the Commonwealth Bank. The letterhead of her contract refers to ‘CommSec’ and at the foot of the document it refers to the Commonwealth Bank of Australia Commonwealth Securities Limited ABN 60067254399. She agreed that CommSec is a business within the Commonwealth Bank Group. The applicant agreed her role:
‘focuses on developing new business opportunities with existing clients and increasing the portfolio with new clients identified from a variety of sources. The account manager is passionate about customer service and focused on achieving our goal of being number one in client satisfaction.’
[129] The applicant was then taken to, and explained some of her responsibilities in her role, such as ‘on-boarding’ new customers. This is a process to obtain sufficient information from the customer in order to service that customer. However, her role is to get sufficient information about the contact person and profile this according to an ASIC search. The rest is done by a team in New Zealand. Once the customer is on-boarded by the New Zealand team, she looks at what is linked to that account through the contact person. A contact list was set up because of difficulties with related entities. All new customers were on-boarded properly, but the system for existing customers was imperfect so the Excel spreadsheet was created.
[130] The applicant understood that a ‘group of companies’ were those companies linked on a CO4 list. She described the terms ‘data integrity’ and ‘portfolio hygiene and risk management’. She agreed that her role required a degree of common-sense based on experience, and not every situation can be dealt with in written documents. She did not accept that there are things which are just ‘Banking 101’, as she believed everything must have a written policy or procedure. She agreed the Bank had a large and sophisticated suite of risk and compliance obligations which staff must be aware of, and comply with.
[131] The applicant accepted that she was well aware of the Bank’s ‘Our Commitment Policy’, which involves a two-step process at firstly looking at laws, regulations and policies, and secondly applying the Bank’s vision and values. However, the applicant believed that ‘everything has policies and procedures’, and she had followed them 100% in this case. It was the applicant’s evidence that in refusing to follow directions, she was complying with the Workplace Grievance Policy (‘WGP’), particularly in respect to confidentiality. She did not look to a policy in this instance and went by what HR and the legal team allegedly told her. Attempting to speak to the CEO was also covered by the WGP. In any event, she claimed she did not refuse a direction; she just postponed it, as she was following the WGP.
[132] In a step by step cross examination, the applicant claimed she had:
(a) always followed reasonable management directions;
(b) always undertaken training;
(c) not transmitted confidential customer information, or used it for inappropriate purposes;
(d) been aware of the appropriate use of information technology;
(e) been aware that a failure to meet the Bank’s principles or commitment could have serious consequences resulting in disciplinary action, including dismissal;
(f) familiarised herself with the Bank’s policies and procedures;
(g) abided by the Bank’s compliance requirements; and
(h) understood she would undergo six monthly and yearly performance reviews and had done so since 2016.
[133] Mr Seck took the applicant to a number of her recent performance reviews and comments made by managers suggesting areas of improvement; one from Mr Lochrin in 2016 required her to focus more on the customer, rather than process and documentation, and not executing basic tasks. She said this was Mr Lochrin’s view and she did not agree with it. At the time she was aspiring to obtain a CAA credit rating, for which she had undertaken all the training.
[134] The applicant also rejected the issues raised by Mr Low in her 2017/18 interim review, because he did not come on board until 4 December 2017 and he could not make an appropriate assessment of her performance. This resulted in a meeting with Mr Manwaring where her ‘values’ rating was changed to ‘well demonstrated’. The applicant questioned Mr Manwaring’s copy of this review which did not have the words ‘Changes have not been submitted’. The applicant refused to accept Mr Low had identified risks in her performance, because they had not been substantiated. She denied Mr Lochrin and Mr Low were discussing the same matters, although both had said she needed to get the basics right. She rejected Mr Low’s unsubstantiated view where he identified:
‘Breakdown of risk requirements identified across documentation, delegations and poverty privacy issues. In addition, assurance results and data integrity across portfolio needs to lift for the CO4 team as a whole.’
Mr Low had also said ‘The key area of improvement is in risk management.’ She disagreed with this comment and said it was his opinion. He had given her no evidence to demonstrate what he was talking about.
[135] In the final 2017/18 review, Mr Low identified four specific risk issues which the applicant also disagreed with because they were the same unsubstantiated issues he identified in the interim review (the annual review now included the 31 July 2018 warning). She did not accept the following comment:
‘Candice will need to demonstrate strategic execution 20 per cent. Candice will need to demonstrate going forward a marked improvement in owning and learning from her errors, being accountable, her personal development across basic functions and being accountable for the required development of all aspects of her role.’
[136] The applicant was closely questioned as to the basis for the warning on 31 July 2018. She said she has attempting to find out why the Family Super Fund was not rolled over, pursuant to a standing instruction. She understood the structure of the superannuation trust included a trustee who manages the trust for, and on behalf of nominated beneficiaries. The trust can hold a range of assets including a term deposit. She had looked through all the documents (21a) and as there was no authority document, she called the phone number on CommSee (the database containing customer information). She called the Brother based on the standing instructions of a year ago (10 August 2017) when she had spoken to the Brother. An email at that time from Mr Lochrin advised that the Brother was the Client’s brother. It was the Brother she called in 2017. She claimed she did so because Mr Lochrin told her to. She denied knowing the Brother was not the correct contact person. Relationships in a company did not matter to her, and she simply did what she was told to do.
[137] The applicant said when Mr Lochrin wrote an email he took responsibility for what he was saying, even though she knew she had contacted the correct person a year earlier. She told Mr Kuzmanoski and Ms Paterson on 3 September 2018:
‘As per the CO4 contact list, [the Brother] is the authorised contact person for the [Family Group of Companies]’.
She first denied this was her belief at the time as it was just what was on the contact list. She then accepted it was her belief. She then said:
‘The bank processes when documents are inconsistent in CommSee for existing customers and there [are] no authority documents, we are to contact the authorised person of the company.’
The applicant said she rang the number in CommSee and asked for the Brother. She did this because she had spoken to him a year earlier, it was on the standing instructions and Mr Lochrin had told her so in 2017. Her explanation was:
‘Please refer to the email between me and MOR Ian in regards to the warning which is clearly baseless and the explanation given, in regards to 1) [the Family Super Fund], customer [the Brother] who is a related party to the account, as per documents in the CommSee profile.’
[138] The applicant claimed she had given the same explanation to the CEO and Mr Manwaring on 27 July 2018. She told Mr Kuzmanoski on 2 September 2018:
‘As per documents in the system, [the Brother]’s name appears on most of the documents and interactions linked to the profile. [The Brother] is the contact person for all the [Family] Group of Companies.
The email explanations show I already know how to navigate the bank's products of the process library.
I also sourced the correct authority document … which is used to identify authorities on the account.’
[139] The applicant said the ‘correct authority document’ referred to was blank. The A153 document is an authority for a non-personal account. The applicant was shown a signed authority for the Family Super Fund dated 5 March 2010. It identified the Director and the Director’s mailing address. Two signatories appear under Declaration, Authorities and Acknowledgements. The two signatories are not the same as the Brother the applicant called. The documents disclose two products; a transaction account and a term deposit, which are held by the Family Super Fund. The authorised signatories are those of the Client and his wife.
[140] The applicant claimed that the documents are not exactly the same. She agreed that all the account numbers, addresses, phone numbers, Directors and signatories correspond (‘look similar’). She agreed that the A153 document was available on CommSee, but she was only made aware of this when Mr Manwaring responded to her later. The applicant said she relied on other documents on 16 July 2018 to those included in her evidence, being every document that existed in the system. She explained the only ones in her evidence were those she considered relevant.
[141] It was the applicant’s evidence that she had redacted the company names from the CO4 contact list, but not other more personal information, such as addresses and mobile phone numbers. What was cut off from the name Brother’s name was the company name (Bare call). She agreed there was nothing in the full document or the CO4 contact list, which identified any link between the Family Super Fund and the Brother. She now claimed someone told her of the connection, but this was not included in her evidence because she did not think it was relevant. However, she could not recall the name of the person who told her, but it was the person who was performing her role prior to her. When asked what policy and procedure she relied on, she answered the superannuation fund policy. This is not a policy. She then said she relied on other policies, such as Our Commitments and Values and Confidentiality and the PPL. As she was no longer employed, she could not show Mr Seck any other policy she had relied on.
[142] At this point in the cross examination, I asked the applicant if she deliberately redacted the company names from the CO4 list, because had she not, it completely undermined her case. She claimed she did so for confidentiality reasons. However, she had left out other more personal details, such as addresses and mobile numbers.
[143] The applicant was taken to another document in her evidence bundle which was a one page list of beneficiaries of a superannuation trust. Mr Manwaring provided a complete copy of the trust deed. She denied relying on this document for identifying the Brother as the authorised contact person and said it was a document in CommSee. She told Ms Knight that the Brother was not a third party, but rather an entity. She denied this inferred that a beneficiary to a trust deed is a related party. She was merely pointing out how he is linked on the system. In answer to questions from me as to why she included this one page in her evidence when the full trust deed does not say the Brother is a contact person for anything, she claimed he is the contact person for the Family Group of Companies and all of the other documents were inconsistent. In any event, the applicant agreed her extract did not even relate to the correct Family Super Fund. It was a completely different trust. She denied this document made very clear that no one, let alone the Brother, was an authorised contact person for the Family Super Fund, because it related to different people, a different trustee and a different trust. She denied being deliberately and falsely selective. This was inconsistent with what she told Ms Knight that:
‘The only trust document attached profile [of the Client] indicates [the Brother] is not a third party but a related party, a related entity of the account.’
[144] The applicant was questioned about a call report 12 years ago which she claimed supported her view that the Brother was the authorised contact for the Family Group of Companies (being linked companies). This was the first contact with the Bank. The applicant could not direct my attention to any document which described the Brother as the authorised contact for any group of companies. She said this was why the Bank was relying on a New Zealand team to fix the problem in the system.
[145] The applicant did not agree there was a complaint to the Dee Why Branch because she had never seen it. This meant there could be no RiskInSite report, as there was no evidence of a complaint. She agreed she had no evidence of the complaint being fabricated. She had wanted the complainant to come and give evidence, but this had been opposed by the Bank.
[146] The applicant was shown the policy for Self-Managed Super Funds. She could not say if the Fund in question was such a fund. However, the documents were inconsistent. She was taken to the policy point which says:
‘Each signatory authorised operators or roles in verifying officers to the customer's account will need to be identified and verified in accordance with KYC procedure.’ (KYC is ‘Know your Customer’)
[147] The applicant was asked about Exhibit C, being the customer on-boarding procedure for new customers. She did not accept that this procedure did not apply to the Family Super Fund, because they were not new customers. This will tell you the authorised contact person for the organisation (not the group). She could not say whether it applied to a group, because it was a new document. Her document 23 says:
‘A Contact Person for the organisation will need to be on-boarded to a full Individual standard’.
She now claimed she did not need to look for the contact person, because she knew who it was. She refused to answer questions on this despite it being her own document.
[148] The applicant was taken again to her email exchange in August 2017 which referenced the standing instruction from the Client. She agreed she made a note on CommSee about the discussion at the time which read ‘monthly with discretionary rates without contacting the client.’ She claimed Mr Lochrin told her the Brother is the usual contact person for the Family Group of Companies. She agreed Mr Lochrin’s email does not say the Brother is the contact person, but rather the Client. However, this understanding arose from the CO4 contact list. When asked which written policy or procedure supports the CO4 list being used to contact the Brother, she claimed it was an existing manual which she could not produce. She denied deliberately editing the CO4 list to give the misleading impression that the Brother was the contact person for some other company or group of companies. She also denied using an extract from a document which did not relate to the relevant trust deed to give the misleading impression that the Brother was the contact person for the Family Super Fund. She now remembered the name of her predecessor who told her that the CO4 list identified the Brother as the authorised person for the Family Group of Companies of which the Family Super Fund was one. She did not consider this was a relevant matter to put in her evidence, as the practice of using the CO4, was well known across the business finance service sector.
[149] Mr Seck directed further questions to the applicant about the warning of 31 July 2018. She agreed she refused to sign the warning because she told Mr Manwaring she was taking the matter to HR. She claimed she did not understand the warning because she had done nothing wrong and had not seen any complaint from a customer and the warning had been put in the wrong review year which affected her bonus. She believed Mr Low ‘made up’ the allegation. She did not accept Mr Manwaring had provided her with the procedure, as the only document he provided was for ‘branch procedures’, which were not applicable to her. It was also a policy for term deposits, not superannuation funds. She said she could not answer questions about policies which did not apply to her. The applicant denied contacting a third party, contrary to policy, because the Brother was the authorised contact person for a related entity.
[150] The applicant insisted she looked at everything in CommSee before she called the Brother. She denied the Brother’s details did not match the CommSee information, because he was a corporate client, and not a retail customer. She claimed she frequently spoke to the Brother and would recognise his voice as the correct person. Nowhere in her evidence does she mention regular contact with the Brother.
[151] The applicant declined to go to directed training because Mr Manwaring made it clear that if she tried to raise a matter that he considered closed, it would be considered ‘unprofessional’ and he would terminate her services. Also there had to be flexibility with training requests, according to the WGP. There was nothing in writing to confirm that Mr Manwaring said anything like this. She also believed that the matter was with HR, and she would not attend training about the same matter HR was reviewing. The applicant denied that the training was not the subject of the WPG. Although she only identified 4 matters in her grievance form, dated 24 August 2018, everything related to the 31 July 2018 warning.
[152] The applicant agreed Mr Kuzmanoski had been seeking a meeting with her to discuss a number of issues; one of which was her refusal to attend training. She refused to accept that the training and the warning were not the same thing. The applicant was asked what right she had to insist on HR being present. She did not accept the requests to go to training were directions; they were invitations (which she presumably could refuse).
[153] The applicant was queried that if she was sick on 27-29 August 2018, why she was contacting people during this time, in particular Ms Paterson. She claimed she only spoke to Ms Paterson on 27 August 2018, but when pressed, she agreed she had contacted Ms Knight on 28 August 2018. She claimed she was not so sick as to be unable to talk. The applicant believed that according to the WPG policy, HR was required to attend any meetings. The meeting did occur on 3 September 2018. At this meeting, she presented all the documents she could see on the system to support her assertion that the Brother was the authorised contact person for the Family Super Fund. These documents were in her evidence annexed as documents 21(a)-(f). She claimed she also gave them document 23 (the extract from the new customer on-boarding document). Mr Seck put the reason she did not show document 23 was because it did not exist at the time. The applicant denied this.
[154] The applicant was then asked about sending documents to her personal email. She claimed that the extracts in question were not documents; they were snapshots. They included documents in her document 21. She claimed that when Ms Paterson and Ms Knight gave her approval to take her grievance external, and although her grievance included documents with confidential client details, she had done nothing wrong, because she had received approval. When pointed out that there was no express authorisation for her to send personal and private customer details to her personal email, she claimed they were not personal and private details and in any event, she had approval to take her grievance external, which included the snapshots she had originally included in her grievance. She was the one who in fact raised the confidentiality issues.
[155] The applicant agreed she went to CBD office on the 18 August 2018, to speak to the Bank’s CEO, Matt Comyn. She did not mention to Mr Manwaring the night before, why she was going to the Darling Park office.
[156] The applicant agreed that she did not delete her personal email after being directed to by Mr Manwaring because she needed all the documents she had for further meetings with Mr Kuzmanoski, and if necessary, the Federal Court. However, she already had the documents. She believed she was entitled to keep the email to use for the two purposes above.
[157] The applicant denied raising her voice in the meeting with Ms Morgan on 18 September 2018. The applicant agreed that the day after she was required to respond to the ‘show cause’ letter (4 October 2018), she lodged a General Protections application with the Commission, alleging pregnancy discrimination.
[158] Finally, the applicant continued to assert that she followed correct procedures and had done nothing wrong. There was no misconduct, and she had been treated unfairly. If she was returned to the Bank she was prepared to overlook that the Bank had made a mistake in dismissing her. She maintained the customer complaint leading to the 31 July 2018 warning ‘never happened’.
SUBMISSIONS
For the Bank
[159] Mr Seck opened the Bank’s case by submitting this was not a matter of serious misconduct; however, when all of the key allegations against the applicant are considered cumulatively, her overall conduct was such as to justify her dismissal (with four weeks’ notice) for valid reason. These allegations are clearly set out in the ‘show cause’ letter and the letter terminating the applicant’s employment; see: [1] and [2] above. Mr Seck stressed that there were no issues of procedural unfairness.
[160] Mr Seck put that the applicant demonstrated a lack of appreciation and understanding of the nature of her wrongdoing, the seriousness of her conduct in exposing the Bank to the risk of her disclosure of sensitive confidential client information; and failed to adhere to basic bank procedures (‘Banking 101’). She then refused to address her deficiencies by declining to attend corrective training. All of this disclosed a deep and troubling lack of insight into her conduct, and an overall lack of contrition.
[161] Mr Seck submitted that the applicant had demonstrated in her evidence a lack of candour and truthfulness and sought to re-characterise her evidence to recklessly create misleading impressions. The applicant was unable to ‘let go’ of the justified warning of 31 July 2018 and she became the author of her own undoing, by doggedly pressing unmeritorious matters and defying reasonable management directions.
[162] Mr Seck dealt with what underpinned the applicant’s conduct, being the contact she made on 16 July 2018 with the Brother who was not the authorised contact person for the Family Super Fund; a corporate, not individual entity. Mr Seck detailed the documents in Mr Manwaring’s evidence which demonstrated the correct client who should have been contacted as the authorised contact person for the corporate entity.
[163] Mr Seck submitted it was very clear from the two signatories to a number of related documents who were the authorised persons. It was not the Brother. The applicant said that she relied on other documents, primarily the documents on the CommSee system. However, she gave two inconsistent justifications for contacting the Brother; firstly, because he was the authorised contact person for the Family Group of Companies, or secondly, as there was insufficient information, it was proper and correct for her to contact the Brother.
[164] Mr Seck said the applicant claimed she always followed written policies and procedures, and if it is not written down, you cannot do it. She then changed her story to claim there was an understanding that everyone knew about, and her predecessor told her to follow, being the CO4 Contact list. There was no evidence to support either of these propositions.
[165] Mr Seck observed that reliance on Document 23 does not assist the applicant. The account in question was a retail product being a term deposit, so Branch procedures applied. The documents produced by Mr Manwaring disclose procedures for renewing term deposits and she only had to reference them to know what to do in verifying the customer over the phone. What you cannot do is call third parties without written authority. These procedures were all put directly to the applicant, were on the system and she should have followed them. Even if there was some ambiguity, this was what the training was concerned to address.
[166] There was then the document which is a one page extract from another document; that is, the ‘Business Customer on-boarding’ policy, being a trial conducted in SA, WA and NT. The applicant’s reliance on this document suffers from a number of problems, namely:
(a) it relates to new customers; the Brother and the Client were not new customers;
(b) the document applied from 15 November 2018 as a pilot – long after the 16 July 2018 incident; and
(c) ‘on-boarding’ suggests a new account, which this account was not.
Further, Mr Seck noted the document refers to the customer being a director or proprietor of a company. There is nothing to suggest it applies to a group of companies. In other words, the selective one page document did not, and could not have applied to the applicant and what she did on 16 July 2018. Mr Seck said that even if the document did apply, the applicant did not follow the correct procedure outlined in it. In any event, there was no evidence that the Brother was the authorised person on behalf of the Family Super Fund or the Family Group of Companies.
[167] Mr Seck then referred to the applicant’s document 21(c) – the CO4 Contact list. He observed that it was ‘curiously’ incomplete in that relevant information in the left hand column of the document had been blacked or redacted. The complete document produced by the Bank showed the Brother as a director of another completely different company to the Family Group of Companies, or anything to do with the Client. This was designed to create a deliberately false impression of the Brother’s relationship to the Client’s Super Fund.
[168] Another document the applicant relied on was one single page list of beneficiaries to a separate superannuation fund, which included the Brother. In fact, the complete document revealed the superannuation fund has nothing to do with the Family Super Fund. Even if it were, it was a preposterous proposition that any beneficiary to a superannuation fund is also the authorised contact person. This was a deliberate attempt to conceal, or deceive the reader of the single page document to somehow show a connection to the Family Super Fund, where no such connection existed.
[169] Mr Seck said another document relied upon by the applicant went back to 2006 and does no more than refer to the Brother asking advice on the purchase of property. It has nothing to do with him being an authorised contact person for anything.
[170] What was instructive, Mr Seck said, was that 12 months before the incident, the applicant actually knew the Client was the authorised representative of the Family Super Fund and she acted consistently at the time with this information given to her by Mr Lochrin.
[171] Mr Seck concluded that it was clear there was no policy which authorised the actions taken by the applicant; rather, the policy is to the contrary. It is possible from this to conclude that the applicant:
(a) was aware of this and actively sought to conceal and deceive the Bank and the Commission that the Brother was the authorised contact person; and/or
(b) stubbornly refused to accept what is clear from all the documents, and still fails to understand the basic fundamentals of banking; and/or
(c) is clearly a legal, financial and reputational risk to the Bank, or at the least, someone who is not willing to follow correct procedure and which may lead to personal contact details being revealed to third parties.
[172] These were why she was given a warning and directed to attend training; which in retrospect might be said to be too light a penalty for what had occurred. The true situation has now been brought to light by the evidence and more serious action was necessary, and entirely justified.
[173] Mr Seck rejected the applicant’s link of the warning to her refusal to attend training. Training is not punitive, but corrective, in order to manage and mitigate risk. The Bank could have suspended her, or transferred her to a non-risk position; but these actions would have been more serious. Moreover, the training was a reasonable direction of management. She refused three times, yet in her own grievance she does not even mention the training direction.
[174] Mr Seck submitted the applicant then refused to attend meetings with Mr Kuzmanoski. One excuse was that HR was not able to be present. Then she claimed to be sick, but while on sick leave was contacting Ms Paterson and Ms Knight to advance her grievance.
[175] Mr Seck rejected the applicant’s claim that she was authorised to send her grievance, including confidential client information, to her personal email address. All of the evidence, including Ms Knight and Ms Paterson’s evidence, was that no such approval was given. The evidence disclosed that she was told she was entitled to seek independent external legal advice if she was unhappy with the Bank’s handling of her grievance. The applicant’s other dishonest conduct would indicate she would not be believed about her assertion.
[176] As to attending the Darling Park office, it was very clear she needed to inform Mr Manwaring if she intended to work from Darling Park. The applicant’s claim that she had such approval would not be believed, particularly as she had failed to inform Mr Manwaring she would be seeking to meet the Bank’s CEO, Mr Matt Comyn, on the day she intended to work there. This attempt was also in breach of the WGR process which had been closed out by Mr Kuzmanoski. She then behaved unprofessionally in a meeting with Ms Morgan.
[177] Lastly, the applicant refused a direction from Mr Manwaring to delete the confidential email material from her personal email address. Her claim of having permission from Senior Deputy President Hamberger to use the material in potential court proceedings was ludicrous. The information was the property of the Bank and the Bank was entitled to maintain its integrity.
[178] Mr Seck traced each of the other subsections in s 387 of the Act and said that none of these matters would support a conclusion that the applicant’s dismissal was unfair. He noted that the applicant declined to have a support person at any of the meetings with Management.
[179] In turning to issues of harshness, Mr Seck said there was no evidence that the applicant’s pregnancy at the time had anything to do with her dismissal. In the end, the applicant’s pattern of insubordination and unwillingness to acknowledge any wrongdoing and wilfully defying directions to attend training, meant she became incapable of being managed and the inevitable result became necessary.
[180] The Commission would also take into account the applicant’s less than impressive performance appraisals in the previous two years. She refused to acknowledge any shortcomings and refused to acknowledge the comments in PRs. All of these matters strongly tell against the practicality of reinstatement, even if the Commission found some element of unfairness. In any event, given her dogged insubordination and risk to the Bank, it would be unlikely she would have lasted very long in employment after her return from maternity leave.
[181] Finally, Mr Seck submitted that the applicant’s grievance had been addressed in that the comments in her last PFR were removed and the issue became a non-issue. She did not receive the full bonus because of other identified issues with her performance.
[182] The applicant firstly questioned the correct identity of the respondent. Mr Seck corrected her query by putting that CommSec was the employer, but ultimately that is irrelevant.
[183] The applicant insisted that the 31 July 2018 warning was baseless and unfair and her conduct was not misconduct. She had relied on the Bank-held documents which she believed demonstrated the Brother was the contact person for the Family Group of Companies. She had to undertake a manual process of putting together various documents, including the CO4 Contact List and other documents where his name appears, including where his name appeared on a beneficiary list to a super fund. She had relied on the PPL for business and private banking. She believed there were inconsistencies in the documents and was accused of breaching a policy which did not exist at the time (the customer on-boarding trial). The applicant also relied on her earlier contacts with the Brother in 2006.
[184] The applicant complained that the Bank’s investigation produced no evidence of the customer’s original complaint, and had opposed her calling the customer as a witness. The applicant said the baseless warning was designed by Mr Low so he could gain financially from her share of the Team’s bonus; a proposition which was further supported by the Bank not providing details of his bonus payments.
[185] As to the training, the applicant submitted Mr Manwaring had told her that if she raised her grievance after it was closed, it would be considered unprofessional and she would be dismissed. She had not refused to attend training; she only sought to postpone it so HR could attend the meetings to discuss her grievance. She had also been denied a reasonable opportunity to arrange for a support person, yet Mr Kuzmanoski had his own.
[186] The applicant insisted she had provided her explanation for the 16 July 2018 incident and the Bank now insisted she failed to comply with Branch procedures when she was not employed in a Branch. She emphasised she had always attended training and gone out of her way to do so. The Bank was required to offer her flexibility in dealing with her grievance, but this had been denied. The applicant accepted that despite her evidence about seeking external legal advice, she never did so, because she was given a breach notice for sending client information to her personal email address. The applicant claimed Mr Kuzmanoski agreed with Ms Paterson on 3 September 2018 that she could take her grievance external and she had wanted this assurance in writing.
[187] The applicant put that when she went to see Mr Comyn, she had felt ‘trapped, threatened and framed’, because Mr Kuzmanoski had promised to remove the warning from her 2017/18 performance review, and she was never given any evidence that this had been implemented. She should have received an amended PFR. This means her grievance was never closed and certainly not by the date of her dismissal. She needed her grievance for her General Protections application.
[188] The applicant claimed Mr Manwaring had given his approval for her to work from the Darling Park office the day before she did so. Further, Ms Morgan had only said she had spoken loudly; not aggressively.
[189] The applicant submitted the meeting on 12 November 2018 was predetermined. She was told of her termination options, including resignation, and six months’ compensation if she filed for unfair dismissal. She told Mr Kuzmanoski she had been discriminated against on the grounds of her pregnancy. He was not interested in anything she had wanted to say. It was a ‘mechanical’ process, as was the 2 October 2018 meeting. Mr Kuzmanoski had a support person, Ms Radfar, and she was only given 24 hours’ notice of the meeting, which is not set out in any Bank policy. Ms Radfar was disruptive and snatched at her bag. The applicant claimed Mr Kuzmanoski’s notes of the meeting were ‘made up’. He did not investigate her grievance, treated her unfairly and failed to follow due process or the Bank’s policies. The allegations were fabricated and the outcome predetermined.
[190] The applicant insisted she wanted to see all of her Team’s bonuses and an explanation for how they were calculated, particularly given Mr Low had at least four breaches during the period. He had distributed the bonuses to himself and the other Team members, depriving her of her bonus for a baseless warning in the wrong review period. The Team recorded 107% in profit in the period for which she was entitled to $28,000. The applicant claimed she had 15 years of unblemished service with the Bank; had always engaged professionally with colleagues and customers. She has ‘heaps of appreciation emails’.
[191] The applicant put that the only reason she redacted the company names from the CO4 Contact List was for privacy reasons. The Bank’s Branch procedures did not apply to corporate financial services and that the PPL should be followed, not the Branch procedures. She said the superannuation trust document IM36 was in the PPL.
[192] The applicant explained that she was sick between 27-29 August 2018, but was still able to contact and talk to HR. In any event, the Bank does not even have a misconduct policy. Her dismissal was harsh, unjust and unreasonable as it was based on false allegations, a failed investigation and a predetermined outcome. Her explanations were not considered, let alone taken into account, and she was dismissed, without any thought for her personal circumstances, particularly being 20 weeks’ pregnant. She sought reinstatement, lost remuneration from 12 November 2018, restored continuity and all disciplinary letters removed from her file.
[193] Mr Seck briefly submitted that:
(a) the warning comments were removed from her 2017/18 PFR, but the bonus calculation was based on other issues.
(b) The NSW document 33 actually applied from 5 April 2019, long after the 16 July 2018 incident.
(c) In terms of a compensation remedy, the applicant had applied for, and took parental leave and would not have been working for a substantial period, so there was no accrued loss for this time.
CONSIDERATION
Statutory provisions and relevant authorities
[194] Before determining the merits of an unfair dismissal application, s 396 of the Act requires the Commission to determine a number of preliminary matters; namely:
(a) whether the applicant’s unfair dismissal application was made within the period specified in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
[195] Accordingly, I make the following findings:
(a) the application was made within the 21 day statutory time period set out in s 394(2);
(b) the applicant was a person protected from unfair dismissal in that:
(i) she most certainly completed the minimum employment period, set out in ss 382 and 383 of the Act;
(ii) her remuneration was below the high income threshold (s 382(b)(iii)); and
(iii) she was employed under the terms and conditions of the Commonwealth Bank Group Enterprise Agreement 2016;
(c) her dismissal was not a case of genuine redundancy (s 385(d)); and
(d) her dismissal was not a case involving the Small Business Fair Dismissal Code as the Bank employs approximately fifty thousand employees.
[196] Section 385 of the Act defines an unfair dismissal based on four criteria which must be satisfied if the person, seeking a remedy for unfair dismissal, is to succeed. The section reads:
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
[197] The applicant was dismissed by the Bank for misconduct on 13 November 2018, and ss (c) and (d) of s 385 do not apply; leaving only the question of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ and consequentially, an unfair dismissal. This leads to s 387 which requires the Commission to take into account the following matters:
(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.
[198] I shall come back to these matters in due course. However, I add at this juncture that the meaning of the expression ‘harsh, unjust or unreasonable’ in the context of a dismissal, was explained in the oft-quoted extract from Byrne and Frew v Australian Airlines (1995) 185 CLR 410 (‘Byrne and Frew’) of McHugh and Gummow JJ, as follows:
‘128. Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. 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.’
The allegations
[199] In [2] above I set out the allegations against the applicant from the ‘Show Cause’ letter which ultimately led to her dismissal for misconduct.
[200] Although not described as serious misconduct, it is at least useful that the definition of serious misconduct in the Act’s Regulations has some resonance in this case. Regulation 1.07 sets out a non-exhaustive definition as follows:
‘(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.’ (my emphasis)
[201] In cases of dismissal for misconduct, the onus rests on the employer to prove, to the Commission’s satisfaction, that the misconduct had in fact occurred. While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities); see: Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Briginshaw, at page 362, Dixon J said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
[202] Further, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:
‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted)
[203] That the Commission, for itself, must be satisfied that the misconduct occurred is well-established by the authorities of this Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd (2000) Print S4213, a Full Bench of the Australian Industrial Relations Commission (‘AIRC’, as the Commission was then styled) said at [24], [26], [28] and [29]:
‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
...
[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.
...
[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.
[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.’ (my emphasis)
[204] Even accepting that a finding of misconduct was open to the Bank, such a finding must not be confused with the statutory language. The statute still requires the Commission to find that there was a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA, as the Commission was then styled) held at [16]:
‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’
Witness evidence
[205] Unfortunately, and despite her obsessive determination, I found the applicant to be a particularly uncooperative and unhelpful witness. She would only answer questions in such a way to reflect her dogged mantra in this case that she had done nothing wrong, she needed no training, because she had not made any error in disclosing confidential Client information to the Brother, and she had a legitimate, unresolved grievance for the warning of 31 July 2018.
[206] Self-evident questions or propositions were answered by long winded, and mostly irrelevant speeches from the applicant. From an examination of the transcript in almost two days of cross examination, one can identify few examples of questions which the applicant answered directly. The applicant’s reluctance to accept, or even concede, that which was otherwise self-evident was a particularly troubling and, at times, frustrating feature of her evidence. On numerous occasions, I had to direct the applicant to answer the question she was asked, and not one she was not asked.
[207] Regrettably, for the most part, the applicant’s evidence was deliberately misleading or manipulated to avoid telling the truth. At other times she was caught out by her own contradictions, implausible explanations or pure invention. At other points, her cross examination was laborious, excruciating and at times, embarrassing. Overall, her evidence was entirely unsatisfactory and gave me little confidence she was a witness of truth. She was a witness who was prepared to manipulate or invent almost anything to demonstrate she had done nothing wrong and she had meticulously followed the Bank’s policies and procedures. When this proved evidentially problematic, she then claimed other persons, who were not witnesses in the case or called by her, Mr Linden and her predecessor, had directed her what to do (use the CO4 list to established authorised contacts, for example) and she just followed their directions. Curiously, of course, when Mr Manwaring directed her to training three times, she refused. More about that refusal shortly.
[208] There were other examples of the applicant seeking to bolster her case midway through her cross examination with alleged explanations raised for the first time. For example, when she was questioned about the applicability of the CO4 Contact List as establishing the Brother as the authorised contact person, she claimed that her predecessor, who she couldn’t even name, had told her to use the list for that purpose. She later remembered his name. She said that she did not include this in her evidence because it was irrelevant. One might have thought that someone telling her about the purpose of the CO4 contact list was crucially relevant to her argument that she had relied on that list to prove she had done nothing wrong. The more likely explanation is this was an invention of the applicant made on the run, when she knew it could not be tested and the truth was closing in on her.
[209] In my view, the applicant has so well-rehearsed her evidence and is so overwhelmingly focused and preoccupied with proving her case, that she has lost all sense of being able to distinguish fiction from reality. Worst of all, the applicant’s documentary evidence was deliberately selective and ‘doctored’ by omission in order to mislead the Bank’s investigation and the Commission into accepting that she had a number of source documents which proved that the Brother was the authorised person for the Family Super Fund. It followed that she had not breached the Bank’s policies and procedures in respect to confidentiality of customer information. The lengths the applicant went to included selectively extracting single pages of documents which did not even relate to the Family Super Fund. I will come back to the document evidence shortly.
[210] On the other hand, the Bank’s witnesses gave clear and consistent evidence. They had been careful and cautious in ensuring the correct procedures were undertaken in dealing with a difficult and uncooperative employee. It follows that where the applicant’s evidence conflicts with the Bank’s witnesses, it is their evidence I prefer.
The ‘mistake’ of 16 July 2018
[211] There is a sense of irony, bordering on pathos, that the applicant was not dismissed for the ‘mistake’ she allegedly made in contacting the Brother on 16 July 2018, on the basis of her belief that he was the authorised contact person for the Family Group of Companies. This was the applicant’s ‘fall back’ position when she could not locate a specific authorisation for the Family Super Fund on the Bank’s system. In my view, the applicant’s belief about the Brother’s authority was entirely misplaced. As was frequently mentioned in the evidence, but failed to be understood by the applicant, ‘Banking 101’ (the universally understood principle of banking) is that the only person to be contacted by a bank employee in respect to a customer’s private and confidential account information, is the authorised contact person for that account; not a person assumed to be the contact person because of their name being linked, or mentioned in other documents in connection to associated entities or a group of entities. This is what Mr Kuzmanoski described as ‘Banking 101’ and it is also a simple matter of logic and common sense. In the event a Bank employee is unable to locate the authorisation form, or is unsure of the authorised contact person, the matter is to be escalated to the employee’s manager. This latter step did not take place and the applicant gathered together a bundle of documents, some entirely irrelevant, others created post the event, to justify her assumption the Brother was the authorised contact person.
[212] There can be no other description than this was a mistake, at best an error of judgment, perhaps not deliberate at the time. In any event, as I said at the outset the applicant was not dismissed for this mistake, and indeed if she had accepted her error, she may still have been employed by the Bank. There is no mention of this error in the five allegations for which she was dismissed. However, there is no doubt that the applicant’s behaviour and misconduct subsequent to the 16 July incident, was all as a consequence of this simple error of judgment. It was the primary focus of the applicant’s evidence. This was to demonstrate that if she was right about having not made the mistake, everything the Bank did which flowed from it, was unfair and unjustified; not least of all her ultimate dismissal.
[213] For this reason, it is necessary before dealing with the five allegations for which she was dismissed, to spend some time on considering the applicant’s insistence that she had done nothing wrong by contacting the Brother and she had not been in breach of any of the Bank’s policies and procedures.
[214] The applicant relied, inter alia, on a number of one page extracts she said she found on CommSee to support her claim that the Brother was the authorised contact person for the Family Super Fund. Caution should always be exercised when accepting into evidence single pages extracted from multi-page documents. It is always preferable to require the tender of the complete document. This note of caution was no better demonstrated in this case when the applicant included in her evidence entirely unrelated, irrelevant and ‘doctored’ one page extracts, selectively included to support her case. On close examination and in the course of oral evidence, these extracts were exposed as false and misleading and in my opinion, were deliberately known to be so.
[215] The first and most glaring was the CO4 Contacts List tendered as the applicant’s document 21(c). This list identified 44 names, email addresses and mobile numbers of various persons identified as Finance Managers, CFOs, Directors, MDs of Accounts. One name identified was the Brother, Director, and included his email and mobile number. Presumably, this is where the applicant located the Brother’s mobile number.
[216] However, in Mr Manwaring’s reply statement he attached the complete document which disclosed that a list of the companies, being the client identification associated with the names only in document 21(c), had been deliberately redacted from the left hand side of the list. This revelation demonstrated that the client company associated with the Brother had no connection with the Family Super Fund. Moreover, the company name was unrecognisable as having any link to the Family Super Fund.
[217] In cross examination, the applicant sought to explain this redaction as her wanting to ensure client confidentiality. This is totally irreconcilable with the fact that the document she provided had nothing else redacted, and included the email and phone numbers of all 44 clients. In any view, the only conclusion one can draw from this is when the applicant realised the Brother was in the CO4 list, not only did not establish the Brother was the contact person for the Family Super Fund, but could not have possibly resulted in a conclusion that he was associated at all with the Family Group of Companies. In my view, the applicant’s explanation was made up and is fanciful, wishful thinking. I am satisfied the applicant deliberately redacted 21(c) to mislead the Bank’s investigation and this Commission.
[218] The second, perhaps even more bizarre and alarming reliance was on page 12 of a trust deed document which appeared to be a list of the 13 beneficiaries to a trust or superannuation fund. Page 12 commences at beneficiary (5) and identified the Brother as beneficiary (12). Nothing in the document identified from where it was extracted. Helpfully and instructively, Mr Manwaring provided the complete document. This disclosed the document was a family trust deed executed in July 1981 and which was entirely unrelated to the Family Super Fund. Again, I consider the applicant’s selective extract from a totally unrelated document to the Family Super Fund was intended to mislead the Bank and the Commission.
[219] In the next document (23) was a single page extract headed ‘Superannuation Fund’ and dealt with what is to apply in respect to the Bank’s handling of Self-Managed Super Funds. The applicant highlighted dot point five which reads ‘A contact person for the organisation will need to be on boarded to a full Individual Standard’. Before coming to the complete documents, it is difficult to see how this extract is relevant to the applicant’s case. Firstly, ‘on boarding’ refers to new customers; the Brother was not a new customer. Secondly, the reference to ‘organisation’ cannot be a reference to a Group of Companies, and thirdly, a contact person is defined elsewhere in the same document as the ‘authorised representative of the organisation’.
[220] It is plainly apparent that this page is page 13 of a 23 page document produced in evidence at Exhibit C headed ‘Organisation Customer On-Boarding SA/WA/NT only’. I say ‘plainly apparent’ because the photocopy of Document 23 is identical even down to the shaded wording in various sections. Of more significance, however, is that the document was to establish a pilot in those two states and territory from 18 November 2018. Plainly, the document was not even in force when the applicant had made the error on 16 July 2018 (four months earlier) and would not have been relevant to her, in any event, as it was a pilot which did not even apply in NSW.
[221] It is not entirely clear how the applicant came upon this document, although presumably she had trawled for anything to support her case, not matter how remotely removed from relevance, before her dismissal on 13 November 2018. What is abundantly obvious, however, is that this was a blatant attempt to selectively and improperly use a document which was utterly irrelevant to her case. There were other documents which the applicant either conveniently misconstrued, or had ignored in the system.
[222] In an email trail involving Mr Lochrin in August 2017, expressly told the applicant that the Brother was the Client’s brother and to contact the client about a term deposit rollover. Nothing could be clearer.
[223] Mr Manwaring also included in his evidence extracts from the customer account data base for the client and found it had the correct number for the client, and did not list the Brother as the contact. Further cross-referencing to an account opened in 2010 and an A153 authority for non-personal accounts disclosed a clear cross referencing to the Client and his wife as being the authorised contacts and signatories to the accounts. Nowhere is the Brother mentioned.
[224] There was much controversy about whether the Branch procedures applied to the applicant in her role in private banking. The Bank’s branch procedures no more than reflect the notions of ‘Banking 101’ described by Mr Kuzmanoski and which the applicant would have been well-aware applied to her. In any event, I accept that a term deposit is a retail product for which the usual and well-understood Branch policies and rules apply as to contacting authorised persons to an account. It is also strange that the applicant knew there was a standing instruction to roll over the term deposit. It begs the question, why was it then necessary to contact anyone at all about rolling over the term deposit? Other explanations were provided for her mistake. Notwithstanding, she insisted she followed every Bank policy and procedure to the letter, she claimed her predecessor and Mr Lochrin both told her that the Brother was the contact person and she just followed their directions. I referred to this earlier at [148] above. Rather curiously, she notes in an email of 16 August 2017 that she had contacted the Client, not the Brother in respect to this account. In other words, there is evidence of her knowing 12 months earlier who the correct client was, but then on 16 July 2018, she contacts someone who is not.
[225] Lastly, and even more ridiculously implausible, the applicant claimed that the original complaint about her contact with a third party was not only fabricated, but fabricated by Mr Low, to discredit her. She had demanded to see the complaint and even sought to call the complainant to give evidence. It cannot seriously be suggested that one of the Bank’s managers would fabricate a customer complaint; the Bank would then perpetuate the fabrication and conspire to dismiss her. Apart from the utter improbability of such a theory, it ignores the fact that the applicant was not even dismissed for this mistake, but for her subsequent conduct; which I must say is entirely consistent with her capacity to reconstruct implausible explanations and recreate history to avoid acknowledging any personal culpability or responsibility.
[226] Finally, I agree with Mr Seck that although the 16 July 2018 mistake, viewed in isolation, would not have justified dismissal, the Bank could have imposed a harsher sanction than a warning and refresher training. The applicant would have been well advised to have ‘cut her losses’ and move on. That said, given what was revealed in the proceedings to which I have just referred, had the Bank been conscious of the level of deception and ‘doctoring’ of documents at the time, the applicant might well have been dismissed for these reasons, without even getting to the five allegations in the ‘show cause’ letter, to which I now turn.
The Allegations
[227] It is within this unfortunate context that I deal now with each of the five allegations against the applicant and for which, cumulatively, she was dismissed. Findings on these allegations will become pertinent to any finding under s 387(a) of the Act as to whether there was a valid reason/s for the applicant’s dismissal.
Allegation 1
‘1. You refused to follow reasonable management directives from your Manager once Removed (MoR) to attend workplace training to ensure that you could source, navigate and understand policies and processes for the Group’s basic products and services. Specifically you have declined to attend the training on all of the following dates:
• 16 August 2018;
• 17 August 2018; and
• 22 August 2018.’
[228] In King v Catholic Education Office Diocese of Parramatta t/a Catholic Education Diocese of Parramatta [2014] FWCFB 2194 a Full Bench of the Commission said at [26]:
‘[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.” (endnote omitted)
[229] It would appear to be common ground that Mr Manwaring’s directions to the applicant to attend training were lawful directions. Indeed, the applicant pointed out she attended regular training sessions organised by the Bank. One of the applicant’s defences was not that she refused to attend training; rather, she had only sought to postpone it. I will come back to her reasons for doing so shortly; suffice to observe that this defence is difficult to reconcile with her dogged insistence that she had done nothing wrong on 16 July 2018. It must follow that if she believed this to be so, why would she claim to have only postponed training which, in her mind, she did not need?
[230] It seems to me that the applicant’s arguments as to why she did not need training essentially amount to her view that, in the circumstances, it was not reasonable for her to attend the training. In Briggs v AWH Pty Ltd [2013] FWCFB 3316, the Full Bench of the Commission considered the second leg of the relevant test as to the reasonableness of an employer’s direction. At [8] the Full Bench said:
‘[8] The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:
“But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.” (endnote omitted)
[231] The applicant submitted that because she had lodged a WPG with HR on 24 August 2018, relating to the warning for which she was directed to attend training, the training could not take place until her grievance was resolved. I note that contrary to her own evidence, the applicant does not mention the directed training at all in her original grievance lodged on 24 August 2018, having already refused to attend training three times.
[232] There is no policy or procedure which supports this argument; notwithstanding the applicant claims she always complied with the Bank’s policies and procedures. Let me make this absolutely clear. The WPG process does not prevent or stall a direction being issued to an employee to attend training. It is irrelevant that she believed her grievance had not been ‘closed out’. She was told in clear and unequivocal terms that the grievance process was complete and no further inquiry would be undertaken by HR. The fact was she would simply not accept that her grievance had been determined, according to the express terms of the Policy (hence her attempted escalation to the CEO).
[233] In my view, the applicant’s notification of a grievance and her continued refusal to accept the Bank had dealt with, and closed her grievance was designed to frustrate the process and avoid the directions to attend the training.
[234] Next, the applicant claimed that Mr Manwaring told her that if she raised her grievance (having been closed), it would be considered unprofessional and she would be dismissed. Mr Manwaring strongly denied making these comments. There is no corroborative evidence of the applicant’s assertion. Given the utter implausibility of Mr Manwaring, or anyone else in management making such a comment, and the applicant’s post disposition to creating false evidence, I reject her assertion as little more than pure invention.
[235] Lastly, the applicant claimed that in any event, she did not refuse a direction because it was an ‘invitation’ to attend training, not a direction. Presumably, given the ordinary meaning of ‘invitation’, one can either accept or decline, which she did. This is nonsense. In my opinion, given the Bank’s sensitivity to the applicant’s circumstances and her character, Mr Manwaring was using a less harsh term than ‘direction’ by carefully describing it as an ‘invitation’. The applicant knew exactly what she was required to do and wilfully refused to do so.
[236] Sadly, if only the applicant had attended the directed training, she might still be employed by the Bank. In the end, she was the architect of her own fate. It would have been a simple matter for her to have maintained her opinion that 31 July 2018 warning was unfair and unjustified, swallowed her pride, attend the training and consider it a bit of ‘top up’ training. Had she done so, the case would never have arisen.
[237] I am satisfied that the applicant’s failure to attend directed training on 16, 17 and 22 August 2018 was a deliberate refusal to comply with a lawful and reasonable direction of the employer. It constituted a breach of her employment contract and the Bank’s policies and procedures. It amounted to misconduct.
Allegation 2
‘On 24 August 2018 you refused to attend a meeting invitation from your Manager twice Removed [Mr Kuzmanoski] to discuss the above conduct.’
[238] While not as serious as the other allegations, and ultimately the applicant attended a meeting with Mr Kuzmanoski and Ms Paterson on 3 September 2018, there is a reasonable basis to conclude, given the history of the matter, that the applicant had called in sick on the day of the scheduled meeting to avoid attending. Firstly, she initially said she declined to attend because HR was not able to be present. Secondly, the doctor’s certificate of 27 August 2018 does not say anything other than ‘suffers from an illness and will be unfit to attend work’. Thirdly, while claiming to be sick, the applicant was phoning and emailing other Managers (Ms Paterson and Ms Knight) from home about her grievance.
[239] I make no finding on this allegation.
Allegation 3
‘On or about 4 September 2018 at 2:16PM you emailed a document containing confidential information relating to Group customers to your personal email address [email address provided] without authority. The document contained the following information:
• Individuals’ names who are beneficiaries of a Trust client;
• Name and CID of one client (a Trust); and
• Trust Client address’
[240] The applicant claimed she had approval from Ms Paterson and Ms Knight to email her grievance to her personal email address. There is no dispute that the grievance included information, such as the names of the beneficiaries of a trust fund, and personal and confidential client information. The applicant had sought to do so to order to take up the suggestion that if she was unhappy with the grievance outcome she could take it up external (to a lawyer). A few observations may be made about this claim.
[241] Firstly, both Ms Knight and Ms Paterson strongly denied giving her approval to send confidential customer information to her email address.
[242] Secondly, all of the email evidence makes it absolutely clear that neither Ms Paterson, Ms Knight, or anyone else for that matter, gave her such authorisation; the emails say no more than she can take her grievance external, and later, if she engages a lawyer, arrangements could be made for the lawyer to view documents, subject to redaction of confidential client information. Apart from claiming authorisation she now says an email from the Chambers of Senior Deputy President Hamberger authorised her to do so. It did no such thing. The email read:
‘Dear Ms Dias,
If you believe any aspect of your general protections dispute not involving dismissal remains unresolved, your option is to file an application in the Federal Court or the Federal Circuit Court to pursue that. There is no timeframe within which you must do so, provided, as stated, you are not claiming that the dispute involves your dismissal.’
[243] This was another example of the applicant refusing to comply with a lawful and reasonable direction of her employer.
[244] Thirdly, the applicant further claims that in the meeting with Mr Kuzmanoski and Ms Paterson on 3 September 2018, the approval to do so was also discussed. There is no corroborative evidence of what the applicant claimed.
[245] Fourthly, she did not engage a lawyer in any event, so the reason she did so never materialised.
[246] Fifthly, the applicant refused to comply with a number of Mr Manwaring’s directions to delete the email and the attachments from her personal email.
[247] In my opinion, in the face of unequivocal email evidence that no such approval was given by any Manager, and with the applicant’s own knowledge after 13 years with the Bank, that confidential information is not to be sent to personal emails or provided to third parties, the applicant’s insistence that she had such authorisation is patently absurd. Further, to attempt to convince the Commission of this assertion is either dishonest, or very wishful thinking.
[248] I am satisfied that allegation three has been made out. The applicant’s deliberate conduct of emailing confidential emails to her personal email address was in breach of her contract of employment and the Bank’s Policies and Procedures. It constituted misconduct.
Allegation 4
‘On 18 September 2018 you failed to follow your MoR’s reasonable management directive to contact him before attending work at [the] Darling Park office in the Sydney CBD.’
[249] The applicant claimed Mr Manwaring gave her permission to work from the Darling Park office in the evening of 17 September 2018. There was a verbal interaction between them at the time. However, Mr Manwaring’s evidence was that she had asked him about working from the Darling Park office and he had said if she decided to do so, she was to advise him of when. He explained that he would need to advise Darling Park and make arrangements due to her absence from Chatswood.
[250] In my view, the applicant had every interaction to go to Darling Park in an attempt to escalate her grievance to the CEO, Mr Matt Comyn – a reason she conveniently forgot to tell Mr Manwaring. Had he known, ‘alarm bells’ might have rung. In any event, the next day, she did attend Darling Park, without Mr Manwaring being contacted about her intention. It was only when concerned staff in Mr Comyn’s office rang to seek some explanation that Mr Manwaring was made aware she had attended, without his knowledge and contrary to express directive.
[251] In my opinion, Mr Manwaring’s evidence in respect to this matter is to be preferred. His account makes sense and is believable. I reject the applicant’s claim that Mr Manwaring approved her attendance at Darling Park on 18 September 2018. Her conduct was a further example of failing to follow a lawful and reasonable direction. Her conduct was in breach of her contract of employment and the Bank’s policies and procedures. It constituted misconduct.
Allegation 5
‘You have unilaterally gone outside of the Group’s Workplace Grievance Review (WGR) process by attempting to escalate a grievance outside of the Group’s standard process and in circumstances where you were advised that the matter had been finalised.’
[252] For one who was so insistent on following the Bank’s policies and procedures, it would seem the applicant selectively chose to do so, only when it suited her. This allegation demonstrates if it had not already, that she would ignore the Bank’s policies if it suited her case.
[253] The WPG Review process expressly states that the final point of a grievance review is with the M2R, in this case Mr Kuzmanoski. Mr Kuzmanoski had reviewed her grievance, discussed it with HR and came to the conclusion that the actions taken had been warranted. That should have been the end of the matter; save perhaps for the applicant’s right to take it external (which, in any event, she did not do). The applicant was not going to accept her grievance being concluded – she was going to take it to the top – to the CEO, no less. Apart from being contrary to the WGR process, it was entirely inappropriate for the applicant to attempt to confront the CEO, without warning and demand his interaction. Of course, he was not even in the country – a fact the applicant might have bothered to check before she sought to breach the policy. I also accept that when Ms Morgan sought to intervene on the day, the applicant acted unprofessionally and raised her voice.
[254] I am satisfied this allegation has been made out. By seeking to involve the CEO, the applicant was in breach of the WGR process and therefore in breach of the Bank’s policies and procedures, this conduct was most certainly inappropriate and unacceptable.
Was the applicant’s dismissal ‘harsh, unjust or unreasonable’?
[255] I earlier set out at [197] the matters the Commission is required to take into account under s 387 of the Act when determining this question. I commence with ‘valid’ reason.
[256] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then-Australian Industrial Relations Commission (AIRC) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:
‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v [Peterson] Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.’
[257] In B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number of employees of Australia Post’s IT policies, in respect to the sending, receiving and sharing of pornographic material. The majority said at [34]-[35]:
‘[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.’
s 387(a) - Whether there was a valid reason for the dismissal related to the person's capacity or conduct
[258] The answer to this question necessarily requires consideration of the competing and conflicting evidence between the applicant and all of the respondent’s witnesses. It will be immediately apparent that the applicant’s version of numerous incidents said to involve a number of managers and other employees, is difficult to reconcile with the evidence of those persons the applicant had named. Accordingly, findings of witness credit must be made by the Commission to resolve this evidentiary conflict.
[259] In determining a case of the scope of this matter, involving numerous claims and counterclaims, it is unnecessary for the Commission to make findings on every conflict of evidence. The evidence must be considered as a whole. In Parker v Garry Crick’s (Nambour) Pty Ltd as The Trustee for Crick Unit trust T/A Cricks Volkswagen [2018] FWCFB 279, a senior Full Bench of the Commission, with the President presiding, said at [132]:
‘[132] As we have mentioned, the Commissioner considered the evidence as a whole, including the corroborative effect of that evidence and how that evidence internally relates to itself. The Appellant has not established an arguable case of error in the way in which the Commissioner approached her task.’
[260] It may be safely accepted, as I apprehend the Bank does, that each of the five allegations on their own would not have resulted in a conclusion that the applicant’s conduct was such as to justify dismissal. The position here, however, is that a number of incidents of misconduct demonstrated a pattern of conduct which, when viewed cumulatively and objectively, can only lead to one inevitable conclusion. Put another way, the applicant’s pattern of behaviour disclosed an intention by her not to be bound by her contract of employment with the Bank. Her failure to accept, or even recognise, that her behaviour was unacceptable, contrary to the Bank’s policies and procedures and inconsistent with a duty of trust and confidence in the employment relationship, only serves to exacerbate the seriousness which the Bank, quite rightly in my opinion, viewed her conduct, and strongly supports a finding that there were valid reasons for the applicant’s dismissal. I find accordingly.
[261] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, in unfair dismissal cases, I cite four authorities on the subject. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at para [73]:
‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’
[262] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:
‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’
[263] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:
‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’
[264] It goes without saying that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition or personal and family circumstances. In Bostik Australia Pty Ltd v Gorgevski (No 1) [1992] FCA 271; 36 FCR 20, the Federal Court of Australia Industrial Division said at [37]:
‘Harsh, unjust and unreasonable
37. These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.’ [my emphasis]
s 387(b) - Whether the person was notified of that reason
[265] The applicant was notified of the five allegations, ultimately the basis of the grounds for dismissal, in the ‘show cause’ letter of 28 September 2018; see [2] above. This is a neutral factor in this case.
s 387(c) - Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[266] The applicant responded to the allegations in a meeting with Mr Kuzmanoski and Ms Paterson on 2 October 2018. She was given a further opportunity to respond in writing on 4 October 2018. She attended another meeting with Mr Kuzmanoski and Ms Radfar on 12 November 2018 and invited to respond to the decision to terminate her employment. She received a confirmatory letter the next day.
[267] In my view, the applicant was given more than a reasonable opportunity to respond to the allegations which she was aware of some six weeks before her dismissal. Despite the applicant’s prevarication and delaying tactics to attending meetings, there can be no reason to doubt that she knew exactly what was being alleged and had been provided with numerous opportunities to respond. I note that the trigger for the applicant’s later misconduct, being the warning she received on 16 July 2018, was four months before her dismissal and there is an abundance of email exchanges between the management, HR and the applicant in which she maintains she had done nothing wrong and demands to see the initial customer complaint and for explanations of the allegations in writing.
[268] It is not clear to me why the applicant would have needed the formal customer complaint. The fact was there was a complaint made to the Dee Why Branch; it was specific, it was logged and investigated. The applicant does not dispute the basis of the complaint. If there is some assertion that the complaint was not made, or it was fabricated by Mr Low, there was not a skerrick of evidence to this effect. It is nonsense to suggest that the complaint was anything but a genuine complaint from a customer about the applicant’s contact with an unauthorised person to the customer’s account. This factor tells against a finding of unfairness.
s 387(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
[269] The applicant complained that she did not have a reasonable opportunity to organise a support person for the meeting with Mr Manwaring and Mr Kuzmanoski. She was particularly critical of being required to arrange for a support person over a weekend. It must be firstly observed that at all meetings, the applicant was invited to bring a support person. Not once did she do so. She believed 24 business hours was insufficient time. I disagree. The applicant would have had cause for complaint if she was called to meetings with a few hours’ notice.
[270] It is irrelevant whether the notice given of meeting covers a weekend. Surely, if the applicant had a work colleague or friend she would be able to contact them after business hours; and in any event, a support person need not be a work colleague. It could be a friend or family member, where ready contact could be made. The applicant provided no evidence that she had attempted to contact anyone to act as her support person. I also note that for the four days of hearing the applicant had her husband in court as a support person. There is no apparent reason why he could not undertake that role during meetings with management.
[271] The applicant also criticised Mr Kuzmanoski for having Ms Paterson and Ms Radfar as his support persons in the meetings on 2 October 2018 and 12 November 2018 respectively, as they were both involved in her grievance. Putting aside that the grievance had been closed in accordance with the WGR process, Management will ordinarily have a lead person (Mr Kuzmanoski) with one or more other Management persons, as a witness, notetaker, or a manager/s with direct knowledge of the matter to be discussed. In any event, the reference to support person in the policy is ordinarily defined as a support person for the employee. It does not usually infer a support person for Management. If I have one criticism in respect to the investigation process, albeit insignificant, I would recommend in future that the Bank not refer to other persons attending on behalf of management as support person/s. Their roles are not the same as a support person for an employee.
[272] The applicant insisted that the Bank’s policy requiring flexibility with organising meetings was not applied in her case. As I said earlier at least 24 hours’ notice is a reasonable period for a disciplinary meeting and, of course, in any event, it was much longer in this case. Flexibility does not mean the employee can veto when a meeting is convened or insist on unreasonable conditions beforehand.
[273] I am satisfied that this factor tells against a finding of unfairness.
s 387(e) - If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal
[274] As this was a case going to misconduct and not unsatisfactory performance (although it has all the features of the latter as well), this is not a relevant factor in this case.
ss 387(f) and (g) - 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 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
[275] The Bank is a very large employer of some fifty thousand employees. It is trite that in managing such a large and disparate workforce, that the Bank has a detailed and comprehensive suite of policies and procedures relating to banking practices, dealing with customers, investigations, disciplinary procedures and ensuring customer confidentiality and privacy et al. This includes specially dedicated HR and IR Teams to deal with the panoply of employee-related issues. In this case, I am satisfied the Bank was meticulous in carefully applying its policies and procedures in respect to handling complaints, disciplining an employee and handling grievances in an open, transparent and fair way.
[276] If anything, given the applicant’s rather unusual conduct and difficult behaviours and her consistent and persistent inquiries of managers, including senior managers, the Bank actually bent its own policies and procedures in order to go out of its way to demonstrate the applicant was treated appropriately, fairly and compassionately at all times. This factor tells against a finding of unfairness.
s 387(h) - Any other matters
[277] There are a number of other matters I have taken into account in respect to my determination of this matter. Some fall against the applicant and others fall in favour.
[278] Firstly, the applicant cannot assert that her performance prior to 16 July 2018 was exemplary and beyond reproach. In both the 2016/17 and 2017/18 periods when Mr Lochrin and Mr Low were her direct managers, they both record in her PRs that she needed to improve in the execution of basic tasks. Mr Low was plainly dissatisfied with her performance and identified a key area of improvement was in risk management. Unsurprisingly, the applicant responded by stating her reviews were incorrect. She would accept no criticism and not even accept suggestions for improvement. Again, unsurprisingly, her review documents record her own self assessments as ‘exceptional’, and ‘exceeding expectations’.
[279] Secondly, simultaneously with the investigation of the applicant’s breach of policy and procedure, she then sought to ‘muddy the waters’ and deflect attention from her behaviour to that of Mr Low. She raised a number of his alleged breaches for reasons which are baffling, not to mention unsubstantiated and irrelevant. This was not a case about Mr Low and in any event, Mr Manwaring was well and truly on top of all the Team’s performance. I draw one conclusion that the applicant’s only reason for raising these matters rather than concentrating on her own failings, had more to do with spite and contempt for Mr Low’s criticisms of her in her performance reviews and her dismissiveness of him for only being in the Team for six months for which he would be receiving a higher bonus than her.
[280] Thirdly, the Bank spent a considerable effort to encourage, coax and ultimately direct the applicant to attend training for the purpose of reviewing the Bank’s policies and procedures. This was not disciplinary action, least of all was it a threat to her future employment. Rather than embracing, or at least begrudgingly accepting that the Bank did not want to terminate her employment, she set out on a course for which the only result was always going to be dismissal.
How so often does the script unfold that what brings one down, is not the initial conduct (the 16 July 2018 incident), but rather it is the cover-up or the elaborate web of implausible explanations and excuses, which does so. This is a classic example of that scenario.
[281] As a last resort, the applicant claimed she had been discriminated against on the grounds of her pregnancy. To suggest the Bank, with thousands of female employees, would discriminate against her for this reason is ludicrous. Moreover, there was not a jot of evidence to support this claim, not even evidence which the applicant might have concocted. I note that this was the claim in her General Protections application, which I understand she has not sought to pursue in the Courts. In my view, this was a last ditch attempt to deflect the reality of her misconduct for which the Bank’s process had properly and objectively dealt with.
[282] I also accept the applicant had acted improperly in the meeting of 12 November 2018 by initially refusing to hand the Bank’s property over to Mr Kuzmanoski. It is reasonable to assume she was hastily transferring information to her personal email before she left the premises. Finally, I have taken into account the applicant was paid four weeks’ notice at the time of her dismissal.
[283] On the other hand, I have taken into account the applicant’s 13 year period of service, her family circumstances and poor prospects of alternative employment in the banking sector. I have earnestly grappled with the issue of whether these factors of ‘harshness’ outweigh the seriousness of the allegations of misconduct, when viewed collectively, and in the context of other ongoing performance issues over two years. Regrettably, I am satisfied that they do not. On one view, an employee’s long period of service will actually tell against a finding of ‘harshness’, where it might ordinarily be expected the employee would be very familiar with the Bank’s policies and procedures and where the employee has been properly trained. In short, a long serving employee would be expected to know better.
[284] Even if these ‘harshness’ elements tipped the balance in favour of an unfairness finding, the applicant seeks a remedy nothing short of full reinstatement. Reinstatement, in my view, would be inappropriate in circumstances where she refuses to accept any responsibility at all for the incident of 16 July 2018, her belligerent and unacceptable behaviour and her obvious animus towards her supervisor, Mr Low. There was not a skerrick of remorse - no regret for her actions - no apology - no contrition.
[285] A recent Full Bench decision of the Commission in Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 granted permission to appeal on two public interest grounds; one being:
‘(1) the appeal raises a significant issue of general application concerning the relevance to the evaluation of the appropriateness of reinstatement of a failure on the part of an unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in circumstances where there has been found to be a valid reason for dismissal based on the applicant’s misconduct’.
[286] Later in the decision, the Full Bench said at [28]-[29]:
‘[28] Mr Hatwell’s first ground of appeal concerns the Deputy President’s conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in respect of the misconduct which the Full Bench found constituted a valid reason for his dismissal was a matter which weighed determinatively against a finding that reinstatement was appropriate. It cannot in our view be reasonably contended that this was not a material consideration. In circumstances where Mr Hatwell had been found to engage in misconduct constituting a valid reason for his dismissal, but that there were mitigating factors which rendered the dismissal harsh, a critical issue was necessarily whether there were grounds for confidence that Mr Hatwell would, if reinstated, not engage in the same or similar conduct again having regard to the continuing presence of Mr Flens and other employees of the maintenance contractor at the Longford site. The role of an apology or an acknowledgment of wrongdoing in that context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v Jodie Goodall as follows:
“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”
[29] The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’
[287] Given my findings on the evidence, I could not be at all confident that the applicant would not act in a similar way, in like circumstances, or adopt a similarly mistaken approach to her role and responsibilities under the Bank’s policies and procedures. In short, it is my belief that she poses a serious legal, financial and reputational risk to the Bank, particularly given the sensitivity of the banking industry to its customers’ privacy and service delivery in the aftermath of the Hayne Financial Services Royal Commission. Her belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied the employer’s trust and confidence in her to comply with the Bank’s policies and procedures has been permanently destroyed.
[288] Finally, s 381 of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(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.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
[289] For the above reasons, I find that the applicant’s dismissal on 13 November 2018, was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. Her dismissal was not unfair. Accordingly, her application for an unfair dismissal remedy is dismissed. I so order. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both the applicant and the Commonwealth Bank.
DEPUTY PRESIDENT
Appearances:
The applicant appeared for herself.
Mr M Seck, of Counsel, and Ms M Azzi, Lawyer, Ashurst, for the respondent
Hearing details:
2019.
Sydney:
29 March, 15 April, 16 April, 17 May.
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