Anthony Robert Ramage Challenge Bank Limited
[1995] IRCA 424
•30 Aug 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT- claim of UNLAWFUL TERMINATION - whether Applicant has available an ADEQUATE ALTERNATIVE REMEDY in respect of the termination under Western Australian State legislation - whether PROCEDURAL FAIRNESS - whether VALID REASON for termination.
INDUSTRIAL RELATIONS ACT 1988 (Commonwealth) Ss 170DB, 170DC, 170DD, 170DE, 170DF, 170DG, 170EA, 170EB, 170EE
INDUSTRIAL RELATIONS ACT 1979 (WESTERN AUSTRALIA) Ss 23A, 29
Liddell v Lembke (1994) 127 ALR 342
Wylie v Carbide International Pty Ltd (1994, Industrial Relations Court of Australia, unreported)
Ward v Williams (1955) 92 CLR 496
Paul Ashbee v James Loughrans & Sons Pty Ltd IRCA unreported No. 196 of 1994 (13 December 1994)
ANTHONY ROBERT RAMAGE -v- CHALLENGE BANK LIMITED -
WI 95/1207 of 1995
BEFORE: BOON JR
PLACE: PERTH
DATE: 30 AUGUST 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1207 of 1995
BETWEEN: ANTHONY ROBERT RAMAGE
- Applicant
AND: CHALLENGE BANK LIMITED
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 30 AUGUST 1995
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1207 of 1995
BETWEEN: ANTHONY ROBERT RAMAGE
- Applicant
AND: CHALLENGE BANK LIMITED
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 30 AUGUST 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988. The Applicant seeks reinstatement and compensation in relation to the alleged unlawful termination of his employment by the Respondent on 17 February 1995.
Before the hearing of the substantive application commenced the Respondent made an application on Notice of Motion that the Court decline to consider or determine the Applicant's application. It was alleged that there was available to the Applicant an adequate alternative remedy in respect of the alleged termination within the meaning of Section 170EB of the Industrial Relations Act. That application was dismissed. More will be said about the application on Notice of Motion later.
The Applicant alleges that the termination of his employment contravened the provisions of the Industrial Relations Act in a number of ways. Firstly, it is said that the Respondent breached the provisions of Section 170DC of the Act in that the applicant was not given an opportunity to respond to allegations made against his conduct. Secondly, the Applicant says that the Respondent contravened the provisions of Section 170DE of the Act in that there was no valid reason relating to the Applicant's conduct for the termination, and that in any event the termination was harsh, unjust or unreasonable.
The Respondent says that the Applicant was afforded procedural fairness and states that there was a valid reason for the termination.
THE QUESTION OF THE ADEQUATE ALTERNATIVE REMEDY
The Respondent submitted that pursuant to the authority of Liddell v Lembke (1994) 127 ALR 342, this Court is required to determine:
Whether the remedies in Section 23A of the Industrial Relations Act 1979 (Western Australia) ("the State Act") are an adequate alternative to the remedies in Section 170EE of the Industrial Relations Act 1988 (Commonwealth) ("the Commonwealth Act"); and
Whether the existing "machinery" of the State Act satisfies the requirements of the Termination of Employment Convention ("the Convention").
It was the Respondent's submission that both those questions should be answered before the Court could proceed to hear this application. The Respondent submitted that Section 170EB of the Commonwealth Act, upon its proper construction, does not require the alternative remedy (as opposed to the "machinery") to satisfy the Convention. In any event, and in the alternative to the above, the Respondent submitted that the remedies available under the State Act satisfy the Convention. The Respondent further submitted that the meaning of "adequate" as referred to in Liddell v Lembke and which is taken from the decision of Keely J in Wylie v Carbide International Pty Ltd (1994, Industrial Relations Court of Australia, unreported) does not mean that the alternative remedy must "mirror" the Commonwealth Act.
The Respondent stated that the majority decision in Liddell v Lembke was to the effect that an alternative remedy will not be adequate when:
the alternative remedy imposes a short time limit for the bringing of an application to seek the remedy and the Applicant would have to seek leave to file his or her application out of time under the alternative remedy;
the criteria for the granting of the alternative remedy are narrower than the criteria set out in the Commonwealth Act.
The Respondent submitted that the majority decision in Liddell v Lembke left open the possibility that an alternative remedy may be adequate where there was a short time limit for the bringing of an application.
The Respondent submitted that proof of the matters set out in Section 29 (3)(a) and (b) of the State Act should lead the Western Australian Industrial Relations Commission to extend the time for the referral of a claim for harsh, oppressive or unfair dismissal when an application comes before it. Section 29 subsections (3) and (4) read as follows:
"(3)The Commission may, on the application of the employee, extend the time within which a referral may be made by an employee under subsection (1)(b)(i) if the Commission is satisfied that -
(a)the dismissal is, at the time of the application under this subsection, the subject of an application under Section 170EA of the Commonwealth Act; and
(b)the extension of time is necessary to ensure a remedy in respect of the dismissal is available under this Act.
(4)The Commission may make an order under subsection (3) although an application for the making of the order was not made until after the expiration of 28 days after the day on which the relevant employment was terminated."
The Respondent relied on the authority of Ward v Williams (1955) 92 CLR 496. On the basis of that case, the Respondent submitted that the existence of the short time limit in the State Act should not be regarded as a bar to the court finding that the State Act provides an adequate alternative remedy.
The Respondent submitted that "the comments of Wilcox CJ and Keely J in Liddell v Lembke that the court must look at the circumstances under which the alternative remedy could be available or rights the remedy is intended to vindicate, should not be followed". The Respondent submitted that the correct approach is to compare the orders available under Section 23A of the State Act to the orders available under Section 170EE of the Commonwealth Act. Section 23A of the State Act refers to "a claim of harsh, oppressive or unfair dismissal".
In the alternative, the Respondent submitted that the court should determine whether the criteria for remedy under the State Act are capable of having as wide an application as the criteria under the Commonwealth Act. Further, in the alternative, the Respondent submitted that the criteria for granting a remedy under the State Act are as wide as the criteria set out under the Commonwealth Act. There is no equivalent in the Western Australian legislation to Section 170DC of the Commonwealth Act. The Respondent submitted that the right to procedural fairness under the Commonwealth Act is the right to be treated fairly according to the decision in Liddell v Lembke, so that a breach of that right will be "unfair" as that expression is used in the State Act.
In the alternative, the Respondent submitted that the Court must look at the particular remedy sought in the Applicant's application and determine whether, for those particular remedies, there exists an adequate alternative under the State Act. In this respect, the Respondent submitted that:
The Court should determine whether there exists an adequate alternative in the State Act to the orders sought in the Applicant's application under the Commonwealth Act.
Alternatively, the Court should determine whether the criteria for remedy under the State Act are capable of having as wide an application as the criteria under the Commonwealth Act in respect to the particular remedy sought by the Applicant.
On either of the above tests that the State Act satisfies the requirement of adequate alternative remedy.
Alternatively, the criteria for the granting of the particular remedy sought by the Applicant are under the State Act as wide as the criteria under the Commonwealth Act.
Counsel for the Applicant submitted that this court must follow the decision in Liddell v Lembke. That decision is one of the Full Court of this court and I found that I was bound to follow it in this case.
It was submitted by Counsel for the Applicant that there are three reasons why the State Act is not an adequate alternative remedy to the provisions of the Commonwealth Act. Those reasons are as follows:
The Applicant's employment was terminated on 17 February 1995. There is an absolute 28 day time limit in the State Act which can only be extended under Section 29 subsection (3). It was submitted that this was virtually the same situation as that in Liddell v Lembke. It was submitted that in enacting Section 29 subsection (3) the State Parliament was not giving people an absolute remedy in the State jurisdiction.
The State Act makes no provision for unlawful dismissals but instead refers to dismissals which are "harsh, oppressive or unfair". Counsel for the Applicant used Section 170DB of the Commonwealth Act as an example. That Section provides a legally enforceable entitlement to notice or payment in lieu of notice. The State Act contains no equivalent of Section 170DB. A person who has been employed for a period of time and is therefore entitled to a defined period of notice under Section 170DB subsection (2) would have a remedy under the Commonwealth Act but not under the State Act.
One of the matters at issue in this case was whether the Applicant was given a sufficient opportunity to defend himself against allegations as required by Section 170DC of the Commonwealth Act. There is no equivalent provision in the State Act. Under the Commonwealth Act the denial of procedural fairness in dismissing the Applicant gives him a remedy irrespective of whether the termination overall may be characterised as being harsh, unjust or unreasonable. Under the State Act procedural unfairness in the termination may entitle the Applicant to a remedy only if the termination as a whole can be seen to be harsh, oppressive or unfair.
In summary, it was argued on behalf of the Applicant that the State Act contains no equivalent of Sections 170DB, 170DC, 170DD, 170DF or 170DG of the Commonwealth Act. It is only if the dismissal as a whole can be seen to be "harsh, oppressive or unfair" that the Applicant has a remedy under the State Act. It remains to be seen how those words will be interpreted by the State courts. It was further submitted that the State Act falls short of the requirements of the Termination of Employment Convention on which the Commonwealth Act is based.
At the conclusion of the hearing of the Notice of Motion, I indicated to the parties that I accepted the arguments of the Counsel for the Applicant and ruled that the State Act does not provide an adequate alternative remedy to the provisions of the Commonwealth Act. As the question has recently been heard before a Judge of this Court, I do not propose to go further into the matter.
THE SUBSTANTIVE APPLICATION
Background
The Applicant, Anthony Ramage, is aged 29 years. He was employed by the Respondent, Challenge Bank Limited, between 5 October 1992 and 17 February 1995. His most recent position with the Respondent was that of Credit Analyst. He holds a Bachelor of Business degree and worked as an accountant prior to working with the Respondent. His position as Credit Analyst included responsibility for assessing credit applications, applications for finance, conducting title searches and arranging valuations of properties. In that position he reported to Bernard Knight, who in turn reported to Michael Price. They were the managers in the section in which Mr Ramage worked. Mr Ramage's job was to provide the managers with information on which they could make decisions. Mr Knight had responsibility for staff loans. Mr Ramage's job included the preparation of applications for finance. He had authority to approve applications for finance up to certain monetary limits, after which he would have to put the applications to Mr Knight.
If a staff member wanted to make an application for a housing loan, he or she would put in an application for finance. Mr Ramage's section would then check the applicant's assets and liabilities, calculate the maximum required income, forward the application to the Human Resources section of the bank, and they would value the applicant's securities. Mr Ramage would organise a valuation to be conducted. When arranging a valuation for staff members, Mr Ramage would fill out a form and send it to Challenge Valuation Services along with a title search. Challenge Valuation Services would then conduct the valuation. Challenge Valuation Services is a separate entity from Challenge Bank Limited. In the course of his work, Mr Ramage dealt with Challenge Valuation Services on a regular basis.
Since April 1993, Mr Ramage had been looking for a property to purchase in the North Perth or Leederville area. He had approximately $50,000 as a deposit and had worked out that he could afford to borrow $100,000. His parents were going to provide him with some extra finance if necessary. He had planned to borrow money from the Challenge Bank to buy a property as staff members received a discount on their housing loan and a waiver of certain fees. In the normal course of events, according to Mr Ramage's evidence, he would process his own application for finance as if it were a normal staff application and would himself do the normal leg work such as obtaining title searches and ordering a valuation. He would do the calculations required and submit the application to Mr Knight for approval.
On 14 January 1995 he saw a property at 34a Bourke Street, North Perth advertised in the newspaper. He went by himself on that day to view the property. When he arrived there he met a real estate agent whom he had previously seen at other houses that he had looked at. The real estate agent was Adrian Churack. The property was advertised at an asking price of $189,000. It was a rear strata block with access via a right of way. Mr Ramage inspected the property and discussed with Mr Churack the other properties he had listed. Mr Ramage left and looked over other properties and later discussed the Bourke Street property with his parents.
Mr Ramage was interested in purchasing the property and he arranged to meet Mr Churack there on the following Tuesday. Mr Ramage arrived with a friend, Mr Morris, and wanted to take a video to send to his parents in Geraldton for their approval. According to Mr Ramage, his friend Mr Morris advised him that he should offer to purchase the property for $160,000. Mr Morris felt that he should start at a low price and negotiate upwards. Mr Ramage took the video but had no discussion with Mr Churack on that day in relation to the price he was willing to pay. Mr Churack advised Mr Ramage that he thought the vendors would settle at between $175,000 and $180,000.
On the following day Mr Ramage arranged a title search of the Bourke Street property by using the Challenge Bank's resources. He had filled out an application for finance form himself but as things turned out he never proceeded with that application. From conducting the title search he found that the vendors of the Bourke Street property had a mortgage with the Challenge Bank. He realised that there must already be a valuation on the property in existence. He looked at the Bank's computer system and found the vendors' home loan number. From the computer screen he could see how much the house had been valued at. He obtained the vendors' file by personally going into the bank's filing room. That filing room itself is left open and all staff have access to it. Mr Ramage found the file and looked at the valuation report. He did not take a copy of it. The valuation report had been prepared by Challenge Valuations. Mr Ramage's evidence was that he only looked at the valuation report on the vendors' file and did not look at anything else on the file. He said that he only wanted to have a look at the report to see if the valuer had made any adverse comments about the property of which the estate agent was not aware. Mr Ramage's evidence was that he believed that the valuation report was the property of the bank. He said that the bank's customers do not get a copy of the valuation and it is prepared for the bank at the bank's cost.
Mr Ramage's evidence was also that he did not have any particular regard to the amount stated in the valuation report as being the value of the house. He had been looking at properties for some time and he was aware of the value of houses in the North Perth area. He also spoke to someone at Challenge Valuations who provided him with a listing of sales evidence in the North Perth area. On the basis of this evidence and his own inspection of the house he came to his own conclusion about the value of the property.
Mr Ramage inspected the Bourke Street property again on Saturday, 21 January 1995 at a "home open" day. He went with his friend, Sandro Mosole. After Mr Ramage and Mr Mosole had inspected the property they approached Mr Churack and had a conversation with him. According to Mr Ramage, he asked Mr Churack if he was interested in writing up an offer. Mr Churack replied that that was what he was there for. Mr Churack asked what price he wanted to offer and Mr Ramage said $167,000 and that the offer would be subject to finance. Mr Churack's reaction was that the vendors were more likely to accept a cash offer of that amount. Mr Ramage replied that he couldn't offer cash because he needed the backing of his parents. Mr Churack wrote out the offer form. According to Mr Ramage, they discussed the values of properties in the area. They discussed what the land was worth. Mr Ramage's evidence was that Mr Churack was already aware that he worked for the Challenge Bank but at no stage did he tell Mr Churack that he was aware of what the property had been valued at by the bank.
Mr Mosole gave evidence that he was with Mr Ramage at all times at the property on 21 January 1995. He said that there was some discussion about the value of the property and Mr Ramage had said "I don't think the house is worth more than that", meaning the $167,000 he was offering to pay. Mr Mosole's evidence was that there was no mention of the Challenge Bank and that there was definitely no mention of the valuation by the bank. His impression was that the agent was not surprised at the low offer.
Mr Churack, the real estate agent, was called to give evidence on behalf of the Respondent. Mr Churack's evidence was that on the day in question Mr Ramage said that he wanted to make an offer of $167,000, and Mr Churack had been taken aback at the low offer. Mr Churack's evidence was that Mr Ramage made a comment that he knew the valuation put on the property by the Challenge Bank. Mr Churack said that it was his practice to list properties competitively and he felt that to submit an offer that far away from the asking price was ridiculous.
At first Mr Churack said that he believed he first became aware that Mr Ramage worked for the Challenge Bank on that day. During cross examination, however, he acknowledged that he may have known that Mr Ramage worked there some time before that day.
On the evening of 21 January, Mr Churack met with the vendors of the property and submitted Mr Ramage's offer. The vendors initially rejected the offer outright. Mr Churack then convinced them to counter offer to an amount of $182,000 and they changed the document to read that it was a cash offer. On that evening he told the vendors about the remark Mr Ramage had made to him concerning the Challenge Bank's valuation. Mr Churack telephoned Mr Ramage and advised him of the counter offer. He dropped it in to Mr Ramage at the Challenge Bank.
Mr Churack said that Mr Ramage had made arrangements for his parents to see the property on 3 February but they didn't turn up. Mr Ramage telephoned Mr Churack on his mobile telephone and told him that his parents were running late. Ultimately, Mr Ramage did not buy the property and Mr Churack sold the property to other purchasers for a sum of $170,000. Mr Churack said the property sold in March or April at a time when the market conditions had changed and were not as favourable to vendors as they had been in January of 1995.
As a result of what Mr Churack told the vendor about Mr Ramage having seen the Challenge Bank valuation on the home, the vendor wrote a letter of complaint to the Challenge Bank. The letter of complaint stated that the vendor had been a long time customer of the Challenge Bank and that he had recently made an offer to purchase a new home. He said that in order to finance this purchase he was selling his two existing houses in North Perth, both of which were mortgaged to the Challenge Bank. The letter goes on to say
"Recently a prospective purchaser by the name of Tony Ramige (sic) made what I considered to be an unacceptably low offer for one of the properties. He told my agent that he works for Challenge Bank, and that he was not prepared to increase his offer because he was aware of the Bank's valuation of the property.
I was under the impression that this sort of information would be confidential. I certainly did not expect an employee of the bank to use the valuation, which I paid for, as a bargaining tool when attempting to purchase my house from me.
Needless to say I am very disappointed with what has happened. I will shortly be looking for another mortgage to cover my new home, and unless I receive a satisfactory response, Challenge Bank will not be one of the places I look."
That letter was dated 6 February 1995.
Challenge Bank took the complaint seriously and management sought and obtained a written statement from Mr Churack as to what had happened on 21 January. Mr Churack's reply reads in part as follows:
"At one stage Tony asked me if I would like to write up an offer on the property - to which I replied that that was what I was there for. When asked what amount he wished to submit he replied $167,000. It is my belief that this was an extremely low starting point and, from previous discussions with Tony, far below the range that my vendors would consider. Tony then mentioned, almost as justification for such a low offer, that he was aware of what Challenge had valued the property at. Though I was surprised by this comment I proceeded to write up the offer which was submitted to my vendors that evening."
The written complaint to the Challenge Bank from the vendor was sent two days after Mr Ramage informed Mr Churack that he had purchased another property.
THE TERMINATION OF THE APPLICANT'S EMPLOYMENT
Mr Ramage gave evidence that on 16 February 1995 he was called in to Mr Knight's office at about 10.30 am and was asked to go with him to the office of the bank's Industrial Relations Officer, Ms Sue Nottage. When they arrived there Michael Price was also in the room. Mr Price was the most senior officer present. One of the people in the room then handed Mr Ramage a copy of the letter of complaint with the name and address of the author blanked out. Mr Price said that the complaint was a serious allegation and asked Mr Ramage what he wanted to say. Mr Ramage said that he was completely dumbfounded. He accepted their offer to let him respond at 8.30 am the next day. Mr Ramage then went straight home and considered his position. He wrote out his version of what had happened over the previous few weeks.
The following morning he attended a meeting at which the same people were present. He had photocopied his response in triplicate and gave each person in the room a copy. Mr Price then asked Mr Ramage a number of questions and Mr Ramage answered them. Mr Ramage was asked about the valuation and why he had looked at it and he answered that he wanted to see whether the valuer had made any adverse comments about the property. It was put to Mr Ramage at the meeting that he had used the valuation solely to put an offer on the property but Mr Ramage had denied this. He said that he had had other sources of evidence of the values of properties in that area. Mr Ramage said that he had come up with the $167,000 figure based on what the front property had sold for, what the agent had told him, what he knew of properties in the area on the market, the sales evidence of properties in the area and that the figure was also based on what he could afford. Mr Ramage said in his evidence that the people in the room told him that they had had a written response from Mr Churack but they refused to show him a copy. However, the relevant parts of Mr Churack's statement referred to above were read out to Mr Ramage for his comment.
The meeting concluded after about 75 minutes and the management staff asked Mr Ramage to leave the room for 10 to 15 minutes. Mr Ramage was then invited back into the room. Mr Price said that the bank had no alternative - either it had to sack him or he could resign voluntarily. Mr Ramage asked if he could take his annual leave first before resigning but that was refused. Mr Ramage was given half an hour to consider his position, at the conclusion of which he told the management staff that he would resign. He was asked to complete a resignation form.
WAS THERE A BREACH OF THE PROVISIONS OF SECTION 170DC?
It was argued on behalf of Mr Ramage that the Applicant had not been afforded procedural fairness when the Respondent decided that his employment must be terminated. It was said that at the first meeting with management staff Mr Ramage had no prior knowledge of the complaint and he was handed the letter of complaint with various identifying parts whited out. It was clear, however, from the evidence that there was never any doubt in Mr Ramage's mind who the letter of complaint was from. It was said on behalf of Mr Ramage that the letter of complaint did not allege a breach of confidentiality, which is one of the main reasons given by the Respondent for the termination. It was said that the allegations against Mr Ramage were clearly those in the letter of complaint.
Mr Ramage's written response, which was handed to those present at the second meeting, focussed on the complaint by the Bank customer, his relationship with Mr Churack and a categorical denial that he told Mr Churack that he had seen the bank valuation. It was said on behalf of Mr Ramage that the initial complaint was about Mr Ramage using the valuation document as a bargaining tool in making an unacceptably low offer. By the time the matter came to a hearing in this Court, however, the complaints about Mr Ramage's conduct centred on his actions in obtaining the valuation and breaching client confidentiality. It was said on behalf of Mr Ramage that the main complaint being investigated at the time of the termination was whether Mr Ramage had said to Mr Churack that he was aware of the Challenge Bank valuation of the property. It was submitted that as the bank officers did not contact Mr Mosole to obtain a statement from him, there was no proper investigation of the matters complained of. It was said that Mr Mosole, an independent witness, was a chartered accountant who understands about fiduciary duty, and that there was no reason to prefer the evidence of Mr Churack over that of Mr Mosole and Mr Ramage.
It was submitted that one explanation of Mr Churack's version of what happened on 21 January is that he was unhappy with Mr Ramage's offer, which he considered was too low. Mr Churack had told his vendors that the property was worth between $175,000 and $185,000. The vendors were not pleased with Mr Ramage's offer and they must have asked Mr Churack why the offer was so unacceptably low. Mr Churack may then have replied that "the guy is with the Challenge Bank and he probably knew of the valuation".
I do not accept the version put forward by Counsel for Mr Ramage. Although there was nothing in the demeanour of either Mr Mosole or Mr Ramage which would lead me to dismiss their evidence, I consider that because Mr Ramage had actually looked at the Challenge Bank valuation of the property, on balance it is more likely than not that Mr Churack's recollection of the conversation is the correct version. In arriving at this finding I do not find that Mr Ramage and Mr Mosole were dishonest in giving their evidence. It simply appears to me that Mr Churack's recollection of the conversation is more likely to be correct.
It was clear from the evidence of the bank officers called on behalf of the Respondent that the termination decision was made because of what the bank viewed as a chain of unacceptable behaviour on the part of Mr Ramage. That chain of behaviour began when he used the bank's resources to conduct a title search, looked up the vendors' loan on the computer, went to the file room and located the valuation on the vendors' personal confidential file. It ended when Mr Ramage used the information potentially for his own personal financial gain and communicated that he had seen the client's confidential file to Mr Churack.
Although it is true that Mr Ramage directed his written response to the letter of complaint by the bank's client, much of what the bank is now complaining about in relation to Mr Ramage's behaviour is set out in Mr Ramage's written response. Further, Mr Ramage was questioned at length by Mr Price at the second meeting and was given an opportunity to respond to the allegations against him. It was put to Mr Ramage that his explanation was not the way the bank had viewed the situation. It was said that the bank's view was that he had used the information in the form of the valuation for his own personal gain. Mr Ramage had admitted using a file that was not under his control and his explanation was that he was using the information on the file to qualify himself for a loan that he may take out. Mr Ramage made it clear to everyone present in the room that he had only used the valuation to look for any adverse comments, and that he had arrived at a value for the house by other means. The bank officers felt that his response was inadequate in that he should have known better. Mr Knight stated that he felt that the applicant's behaviour constituted a breach of trust, a breach of bank policy and a breach of the ethics of banking.
On balance, I am satisfied that Mr Ramage was given a fair opportunity to answer the allegations made against him. He freely admitted the conduct complained of by the bank. Apart from the contents of the conversation Mr Ramage had with Mr Churack, the main discrepancy is between how the bank viewed Mr Ramage's conduct and how Mr Ramage viewed it.
WAS THERE A VALID REASON FOR THE TERMINATION?
It was submitted on behalf of the Respondent that as an accountant employed by the bank, Mr Ramage held a position of responsibility and trust and was a professional. As a banker, he owed the bank a fiduciary duty. As a professional he had a duty not just to do his job well, but to act responsibly. It was submitted that the duty goes further in that he should not have put himself in a position where he might be able to get personal gain from unauthorised information.
The Respondent pointed to an agreement signed by Mr Ramage when he first started employment with the bank, and the bank's manual which was provided to Mr Ramage as part of his induction. Paragraph 2(b) of the employment acknowledgment reads:
"I will not make any unauthorised disclosure or use of any knowledge or information which comes into my possession during my employment or the provision of services thereunder".
Paragraph 3(a) of that acknowledgement reads as follows:
"I acknowledge that it is a further condition of my employment that
a) I will keep absolutely secret and confidential all computer software and related documentation ("materials") provided to me in connection with my employment or which I have access to and all knowledge and information in relation thereto and will not communicate to any unauthorised person any information or knowledge in relation to the materials".
The Challenge Bank's Credit Procedure Manual states at clause CP2.010.000
"Duty of Care
Unauthorised disclosure of the affairs of clients violates laws. Clients have the right to expect the Bank, and its officers and staff, to treat the relationship in the strictest confidence and every effort must be made to avoid a breach of this duty ...."
Clause CP2.090.000 reads as follows:
"Intrabank Information
Access by any Division of the Bank to client information files of any other Division of the Bank will be limited to the information and files pertaining to the bank's lending activities.
Other information, such as information gathered or prepared in connection with special assignments or advisory activities will, for the purpose of privacy and confidentiality, remain privy to the Division which undertakes the assignment or work.
Over-ride of these rules may be authorised by the LSU/Group Credit upon requisition by the relevant Divisions. Such requisition is to be in writing, clearly specifying the information requested and establishing the need for access."
The bank further pointed to a provision relating to insider trading which does not, in my view, apply to this case. I do, however, accept on the evidence that Mr Ramage had notice, both verbally and in writing, that he was not to gain access to client files without authority. He clearly did not have authority in this instance.
Quite apart from the matters set out in the bank's manual and in the employment acknowledgement signed by Mr Ramage, it was the bank's submission that Mr Ramage should not have put himself in a position in which he, as a professional working in the banking industry, gained access to a client's confidential file in circumstances in which he may be able to use the information on that file for his own personal gain.
It was submitted on behalf of Mr Ramage that this incident occurred because the Challenge Bank had been put under a lot of pressure when it received the complaint from one of its customers. It was said that the customer complained not about a breach of confidentiality but that Mr Ramage had put in an unacceptably low offer to purchase the customer's property.
It was stated on behalf of Mr Ramage that he did not argue that what he did was right. In general terms, it was accepted that "you don't look through files you have no business with", but that in this case the only use Mr Ramage made of the file was that he read the valuation. It was said that that is probably wrong but it did not amount to serious misconduct, and that it was a matter of degree.
It was submitted that this case did not involve a breach of confidentiality. The bank's customers may or may not pay a fee for the bank to obtain the valuation. It was submitted that the valuation belonged to the bank at all times and that it had nothing to do with the customer at all. Mr Ramage wanted to find out if anything was wrong with the property and he used a method which did not cost him anything. He avoided the expense of obtaining his own valuation.
It was submitted that there was no conflict of interest in this case as all Mr Ramage had done was go to the bank to obtain information which he could have obtained at a cost somewhere else. It was submitted that there was no detriment or loss to the bank's customer. The true loss was to the bank as it was embarrassed.
Finally, it was submitted that in acting as he did Mr Ramage was not breaching client confidentiality, but bank confidentiality as the valuation belonged to the bank. Handing it out to a third party may be breaching bank confidentiality even though it is available at a price to anyone. It was submitted that even saying to Mr Churack "I know what the valuation is" is not breaching confidentiality. It was not alleged that Mr Ramage told Mr Churack what the valuation was. It was submitted that reading a file which one had no business with is not a sackable offence.
I do not accept the arguments put forward on behalf of the applicant. Mr Ramage clearly acted improperly when he went to the vendors' confidential file to look at the valuation. Mr Ramage had no business going to that file. He did it purely for his own purposes. The information he gained from the valuation on the client file could have been used by Mr Ramage as a bargaining tool in his dealings on the property. The banking industry is very sensitive and its employees, particularly those in professional positions, have a duty to behave responsibly. I find that there was a valid reason for the termination and that the termination was not harsh, unjust or unreasonable. Accordingly, the application must be dismissed.
At the hearing of this matter certain evidence was led from a Mr Lennon in relation to some matters which occurred some time before the incident complained of which led to the termination. I do not consider that Mr Lennon's evidence was helpful and I have not had any regard to it in arriving at my decision in this matter.
This decision has caused me some difficulty. I am aware that as Mr Ramage has been dismissed from his employment with the Challenge Bank it will be extremely difficult for him to obtain alternative employment either in the banking industry or as an accountant. Although I am satisfied that the termination was for a valid reason, it may be stated in Mr Ramage's favour that in the end his actions did not result in any personal gain to him and the bank's customers suffered no loss. He has acted openly and frankly throughout the bank's investigation of his conduct and readily admitted what he had done. There is no doubt, however, that there was an error of judgment by Mr Ramage in this instance.
As I have found that there was a valid reason for the termination, I am unable to order reinstatement.
I refer to the decision of Ryan JR in the case of Paul Ashbee v James Loughrans & Sons Pty Ltd, IRCA unreported No. 196 of 1994 (13 December 1994) where he said as follows:
".....I therefore dismiss the applicant's application.
Having said that, I am aware of a major employer, a very major employer, who has written policies prohibiting fighting and the like but who considers not reinstatement, which is not justified, but re-employment after a period in the sin bin, say three months. This allows an employer to maintain its reputation and its discipline and its strength and its integrity, but to also show some compassion.
No direction or recommendation can come from this Court, given the dismissal of the action, but given the difficult employment conditions in this state, perhaps the employer can find it in its collective heart to consider offering Paul Ashbee another chance. I say no more than that, but perhaps the respondent's solicitors can refer a copy of the written reasons for this judgment (when they come off the press) to the respondent, that is when the judgment is settled".
In this case, I have regard to the fact that the Respondent is a large organisation with many employees. Mr Ramage has been unemployed for about six months. I cannot make any recommendation which would bind the Challenge Bank, but I do ask its management to consider the mitigating circumstances of this case and consider re-employing Mr Ramage, perhaps in a different position.
I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Appearances:
Counsel for the applicant in
relation to the Notice of Motion: Mr D Schapper
Counsel for the applicant in
relation to the S170EA
application : Mr J Birman
Solicitors for the applicant: Birman & Ride
Counsel for the respondent: Mr A J Smetana
Representative for the respondent: Chamber of Commerce & Industry
of Western Australia
Hearing date: 20 & 21 July 1995
Judgment date: 30 August 1995
0
3
0