Callychurn v Australia and New Zealand Banking Group
[2016] FWC 526
•3 February 2016
[2016] FWC 526
DECISION
Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Meenakshi Callychurn v Australia and New Zealand Banking Group T/A ANZ (U2015/7113) COMMISSIONER WILSON MELBOURNE, 3 FEBRUARY 2016 Application for relief from unfair dismissal. INTRODUCTION [1] Ms Callychurn was first employed by the Australia and New Zealand Banking Group
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Ltd (the ANZ) in 2009 as a Credit Assessment Officer, later becoming a permanent full time employee of the ANZ in April 2010. On 2 April 2015, her employment was terminated by the
ANZ for reasons of its belief that she was no longer able to perform the inherent requirements
of her role, and because it had lost trust and confidence in her to be open and transparent.
[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four
initial matters to be considered before considering the merits of the application. Neither party
put forward that any of these initial matters required such consideration. In relation to the
elements within s.396, I find that Ms Callychurn’s application was lodged with the Fair Work
Commission within the 21 day period for making such applications; that at the time she was
dismissed she was a person protected from unfair dismissal; and that questions of consistency
with the Small Business Fair Dismissal Code or genuine redundancy do not arise.
[3] For the reasons set out below, I find that Ms Callychurn’s dismissal was not harsh,
unjust or unreasonable, and that her application must be dismissed.
BACKGROUND
[4] Ms Callychurn was dismissed by the ANZ on 2 April 2015, and provided with a
termination letter which stated;
“In accordance with the Global Performance Improvement and Unacceptable Behaviour
Policy, I am writing to confirm that, following an investigation of your recent
behaviour, ANZ has made a decision to terminate your employment effective today.
The reasons for this decision have been discussed with you in our meeting, and you
have had an opportunity to respond. A further letter, confirming the detail of the
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matters discussed with you today will shortly be forwarded to your home address.”
[2016] FWC 526
[5] She was later given more detailed reasons for her dismissal, with it being advised;
“Both of the following reasons give ANZ cause to terminate your employment, as both
are serious, and both warrant termination. These reasons are:
1) You are unable to perform the inherent requirements of your role as a Credit
Assessment Officer, in light of ASIC's recent decision to ban you from engaging in
'credit activities' for five years; and/or
2) ANZ no longer has trust and confidence in you to be forthright and honest in your
communication with us, following your failure:
a. to seek approval and declare your outside business interest, namely you
being the sole director of Unique Mortgage Services Pty Ltd (UMS) and the
sole key person and fit and proper person under UMS' credit licence; and
b. to be forthright during the disciplinary meeting on 31 March and 2 April
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2015.”
EVENTS LEADING TO DISMISSAL
[6] The broad chronology to the matters in contest between the parties is as follows.
[7] On 20 March 2015, Nitin Jain, a Team Manager within the ANZ’s Broker/Mobile
Credit Assessment Team, was sent an email by colleague, Ben Frawley, a Business
Development Manager with the ANZ, which contained a media article about a Victorian
broker losing their credit licence. The media article identified the relevant broker as being
Meenakshi Callychurn, resident of a particular Melbourne suburb. Mr Jain knew a person of
that name to be employed within his team and that she lived in the indicated suburb. He
sought advice about the media article and subsequently met with Ms Callychurn, the person
employed within his team, on 24 March 2015. He showed her the relevant media article and
she agreed that the person named within the media article was her. Prior to this discussion, Ms
Callychurn had been on personal leave that day, and there was an exchange between the two
by text and phone, with Mr Jain suggesting to Ms Callychurn that she attend a team lunch and
skip level meeting. He did not tell Ms Callychurn that he intended to ask her about the media
article.
[8] The media article itself was in the following terms;
“ASIC has banned a Victorian finance broker from engaging in credit activities for five
years and cancelled the Australian credit licence of the loan writer's company.
Ms Meenakshi Devi Callychurn of [suburb], Victoria, is the sole director of Unique
Mortgage Services Pty ltd (UMS) and the sole key person and fit and proper person
under UMS' credit licence. UMS was formerly owned and operated by Mr Rudy
Frugtniet, who was permanently banned from engaging in credit activities by ASIC in
July 2014.
[2016] FWC 526
ASIC's decision to ban Ms Callychurn was based on concerns including that Ms
Callychurn submitted two Annual Compliance Certificates for UMS to ASIC with
false or misleading responses; allowed Mr Frugtniet to continue to exercise control
over UMS; was not engaged in operating the business and attending to duties
associated with the UMS credit licence; did not understand her responsibilities in
relation to the UMS credit licence; and showed a lack of preparedness to engage with
ASIC.
ASIC found that Ms Callychurn failed to actively engage in the operations of the
business and failed to meet the standards expected of the roles of sole director, key
person and fit and proper person. This made her unfit to engage in credit activities.
As result of ASIC's findings in relation to Ms Callychurn, ASIC also cancelled UMS'
credit licence. In the circumstances, ASIC had reason to believe that UMS was likely
to contravene the credit legislation. Further, the banning of Ms Callychurn means that
there is no one to carry on the business and to ensure UMS can meet its obligations
under the National Credit Act.
“ASIC expects those engaging in credit activities to have the requisite competence and
knowledge and to act with integrity.
“Those who fail in this regard will be removed from the industry," ASIC deputy
chairman Peter Kell said.
Ms Callychurn has the right to appeal to the Administrative Appeals Tribunal for a
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review of ASIC's decision.”
[9] The ASIC media release that led to the above media article is annexed to the ANZ’s
Employer Response Form and is in substantially similar terms.
[10] Early on 27 March 2015, Ms Callychurn communicated with Mr Jain about the media
article and its implications, with her writing the following in an email;
“Hi Nitin
I refer to my text of yesterday morning and it would be best documented if I put in
writing the following matters:
I have been advised that the solicitors are in receipt of the decision referred to in the
article and have discussed with me in brief the substantive matters, which they advise
me will be reviewed before the AAT.
In the meantime I can reiterate the following matters so as to curb any fears and or
otherwise allay any concerns by advising of following:
1. The matters referenced were in relation to the ex-director of the company.
2. I have not been accredited by any financial institution.
3. I have not been a loan writer at any stage.
4. I have not dealt with any applications in relation to any financial institutions
hitherto or at any time in respect of ANZ let alone any financial institution.
[2016] FWC 526
5. I have not instructed or advised any clients in any capacity at any time.
6. I have not had a conflict of interest for the aforementioned reasons.
I also confirm that an application to stay the orders has been lodged at the AAT.
In the circumstances I have been advised by the solicitor that I should limit myself to
matters that strictly relate only to me, pending the application for review being
undertaken so as not compromise the pending litigation.
Kind Regards
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Meenakshi Callychurn”
[11] An investigation letter was later sent by the ANZ to Ms Callychurn later on 27 March,
and reissued with a correction on 30 March 2015, requiring that she attend a meeting with the
ANZ on 31 March 2015. The letter particularised the allegations about which the ANZ
required a response. The letter was from Mr Jain and communicated the following, so far as is
relevant;
“Dear Meenakshi
Invitation to a meeting regarding your behaviour
Further to our discussions, ANZ would like to meet to discuss:
(1) Your ability to perform the inherent requirements of your role as a Credit
Assessment Officer, in light ASIC's recent decision to ban you from engaging in
'credit activities' for five years; and
(2) Your failure to seek approval from ANZ for an outside business interest which has
the potential to be in conflict with your employment, namely you being the sole
director of Unique Mortgage Services Pty Ltd (UMS) and the sole key person and fit
and proper person under UMS' credit licence - contrary to Principle 4 of the Code of
Conduct and Ethics which requires you to seek such approval; and, Principle 2 which
requires you to be honest and forthright in your communications with ANZ.
ANZ considers these allegations to be serious. If substantiated this behaviour would be
considered to be a breach of our policy, procedures and values that may result in the
bank taking formal disciplinary action. Disciplinary action could range from a warning
up to termination of employment.
I would like to meet with you to discuss the allegations. During the meeting I will be
seeking to gain a full explanation of the situation from you. You will be given an
opportunity to appropriately respond to the allegations. ANZ expects you to come
fully equipped to speak to the allegations, and to supply us with a copy of ASIC's
written decision.
I propose that we meet on Tuesday 31 March 2015 at 1pm at [address] (meeting you at
the Concierge desk). Louisa Jeschke from Employee Relations Australia will also be
in attendance. You may bring a support person to the meeting. Up until our meeting on
Tuesday 31 March 2015, you are suspended on full pay and you are not to have access
[2016] FWC 526to work premises or systems. Please note that your suspension does not form part of
the disciplinary process and in no way should your suspension be seen as indicative of
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our final decision about the allegations.” (original emphasis) [12] The correction made by the ANZ on 30 March to its initial notification on 27 March
2015 was to amend an earlier reference to a contravention of Principle 7 of the ANZ’s Code
of Conduct and Ethics, when it should be Principle 4, as shown in the above.
[13] On 30 March 2015, Mr Jain rang Ms Callychurn and informed her that she had been
successful in securing an ongoing position in the restructure process.
[14] A first disciplinary meeting was held on 31 March 2015, with only Ms Callychurn, Mr
Jain and Louise Jeschke, Senior Employee Relations Advisor, in attendance. Ms Callychurn’s
evidence is that at the start of the meeting she requested that her solicitor attend by phone as a
support person. She says that she was denied that possibility by Ms Jeschke, which allegation
in turn is denied by Mr Jain and Ms Jeschke. For the reasons referred to below, I find that
there was no request by Ms Callychurn for attendance of a solicitor.
[15] Once underway, the meeting discussed the media article and the ASIC Banning Order,
with Ms Callychurn agreeing it related to her.
[16] A further meeting was held with Ms Callychurn on 2 April 2015 in which Ms
Callychurn’s employment was terminated. AfterOn10 April 2015 the ANZ detailed in writing
its reasons for her dismissal.
LEGISLATION
[17] The legislative provisions which are relevant to this matter are set out in s.387 of the
Fair Work Act 2009 (the Act), which is as follows;
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(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
[2016] FWC 526
(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.
THE HEARING AND EVIDENCE
[18] The hearing in this matter took evidence from three witnesses. Ms Callychurn was the
only witness who gave evidence on her behalf. Mr Nitin Jain and Ms Louisa Jeschke gave
evidence on behalf of ANZ. Mr Jain was, at the relevant time, a Team Manager in the ANZ’s
Broker Mobile Credit Team, and Ms Callychurn’s direct supervisor. Ms Jeschke is a Senior
Employee Relations Advisor, who assisted in the investigation of the ANZ’s concerns about
Ms Callychurn.
[19] Ms Callychurn’s evidence was clear and cogent, but ultimately very circumspect, as
well as using it as a means to point to the actions of others, to explain or justify her own, or to
lay blame on the ANZ’s actions. For example, evidence about Mr Frugntiet, her
representative in these proceedings, was used to explain why she even became a director of
UMS; in effect, it was her need to help him that led to her becoming a UMS director. Her
evidence was also used to argue faults on the part of others; such as the contention that Mr
Jain had not been open with her about the real reason for his request for her to attend the
workplace on 24 March 2015; or that Ms Jeschke’s notes of the disciplinary meetings were
not accurate and too brief; or that she had to request, after the dismissal, written reasons for
her dismissal.
[20] The evidence of both Mr Jain and Ms Jeschke suffers from their inability to recall
certain things that went on in the meeting of 31 March 2015. The extent of their problem with
recollection of matters differs.
[21] For example, Mr Jain could not recall if Ms Jeschke prepared her notes of the
disciplinary meetings on a laptop, or took them by hand, and was unsure about some of the
matters put to him about what was said and done in the meetings; however on other matters,
his evidence was precise and not disturbed through cross-examination. In particular, his
evidence was firmly against the Applicant on the question of whether she said at the start of
the meeting on 31 March 2015 that she wanted her solicitor to attend by telephone for the
purposes of being her support person. He also held a different view to Ms Callychurn about
whether Ms Jeschke referred repeatedly in the disciplinary meeting to a document she was
said to have with her regarding the definition of credit activities. Ultimately I am prepared to
accept Mr Jain’s evidence, and attribute the matters he had difficulty in recalling to the
normal variance of memory over the 7 to 8 month period between the time of the events in
late March and early April 2015 and the hearing in December 2015.
[22] Ms Jeschke had difficulty in recalling a greater range of matters about what was said
or done in the two disciplinary meetings on 31 March and 2 April 2015, and what happened in
discussions surrounding the meeting and the consequential decision to dismiss Ms
Callychurn. Not all of her difficulty in this regard can be attributed merely to the passage of
[2016] FWC 526time. A greater recall of matters from April could reasonably have been expected from a
person experienced in employee relations and staff investigations and having worked as a
solicitor for some years.
[23] Ms Callychurn argues that Mr Jain held a conflict of interest at the time that he
investigated her conduct, with the conflict arising because both had earlier been told that their
jobs were now contestable for reason of the ANZ deciding to offshore up to 40% of the
positions in the relevant department. Staff, including both Ms Callychurn and Mr Jain, needed
to apply for continuation of their employment. The conflict is argued as being one of Mr Jain
having the opportunity of diminishing the employment prospects of Ms Callychurn while
boosting his own prospects of continuing employment.
[24] However, on 30 March 2015, Ms Callychurn was informed by Mr Jain that her
application for ongoing employment was successful. He had been aware of that situation “at
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some time prior” to informing Ms Callychurn. If there was a conflict on the part of Mr Jain, and such argument by the Applicant has not been made out, then that conflict ceased on 30
March 2015 with Mr Jain’s communication to Ms Callychurn that she had been successful in
winning an ongoing position.
[25] That date is before either of the disciplinary meetings on 31 March and 2 April 2015
and before the ANZ’s decision to dismiss her was communicated to Ms Callychurn. For the
avoidance of doubt, there is no evidence that if there was a conflict of interest on the part of
Mr Jain prior to 30 March 2015 that it was not disclosed to or known by his managers. There
is also no evidence that Mr Jain’s employment status influenced in any way his decision-
making or his advice to his managers and others.
[26] I prefer Mr Jain’s evidence to that of Ms Callychurn to the extent that there are
differences between the evidence of the two. Mr Jain’s evidence on the critical matters of
what was put to Ms Callychurn in the disciplinary meetings; what she said about those
matters; and whether she sought her solicitor to attend and whether Ms Jeschke relied in the
meetings upon a document to illustrate the meaning of credit activities was clear and not
diminished by cross-examination. When he could not remember something, he said as much,
and did not endeavour to put forward a faulty recollection.
[27] Ms Callychurn’s oral evidence included two matters she saw as critical that were not
dealt with in her written statement – the allegation that she had asked for and been refused
permission for attendance of her solicitor by telephone as her support person in the
disciplinary meeting on 31 March 2015; and that Ms Jeschke had, in the same meeting, relied
upon a document to pointedly illustrate the definition of “credit activities”. I consider, in the
overall context of these matters and the impression I formed of the witnesses as they gave
their evidence, the former to be improbable. I am unable to resolve the latter question, and
ultimately consider it unnecessary to do so.
[28] On the question of whether she sought and was refused permission to have her
solicitor attend by phone as her support person, I note that Ms Callychurn’s written witness
statement is detailed, running to 48 paragraphs. It supplements a less detailed, but nonetheless
informative originating application, the Form F2. Neither refer to the contention now
advanced about the desire to have a support person in attendance. Interestingly, the
Applicant’s Outline of Submissions makes reference to a support person in relation to the
[2016] FWC 526meeting held on 2 April 2015, but in a very different context to what is now contended as a
request that was made and denied;
“18. It is contended that the meeting that was re-convened for the 2nd April 2015 by the
Respondent, other issues were raised which hitherto had not been raised in the
allegations being ANZ’s lack of trust and confidence in the Applicant due to the
applicant failing to disclose her outside business interests and failure to be forthcoming
during the 31st March 2015, both matters of which the Applicant was completely
unaware of before or been brought to her attention, so that the Applicant could have
responded and by raising other matters during this meeting the Applicant was denied
procedural fairness.
19. The Applicant requested that all of these matters comprising the allegation be put
in writing as she did not have support person but her request was refused which it is
contended did not provide the Applicant an adequate opportunity to prepare a response
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to the extended accusations and was unreasonable in the circumstances.”
[29] In proper context, such is a complaint that new allegations had been put, and that Ms
Callychurn wished to seek advice on them in order to prepare a response. It is not a complaint
that she was impeded because a decision had been made to deny her either a support person or
representation in the meeting. Had it been the case that at the start of the meeting on 31 March
2015 that Ms Callychurn had asked for the attendance of her solicitor and been refused, then it
would be reasonable to expect, with an articulate person such as Ms Callychurn, that in
recollecting new allegations put to her on 2 April and being denied an opportunity to respond
in writing when she asked to do so, that she would also have recorded in the witness statement
that she had earlier asked for the attendance of a solicitor and had been refused.
[30] Short of having a complete transcript or video-recording of the meeting held on 31
March 2015 it is not possible on the evidence given by the witnesses to resolve the contention
that Ms Callychurn puts forward that Ms Jeschke had with her and repeatedly referred to a
document that described credit activities. The evidence between the witnesses is unresolved
on the matter. In any event, the possibility that such a document was used does not advance
either party’s case. The contention put forward by Ms Callychurn that there was such a
document might relate to the weight I accord to her evidence or that of Mr Jain or Ms Jeschke,
but it is unlikely, on its own, to resolve the questions that need to be determined in this matter.
In any event, for the reasons described above, I do not prefer Ms Callychurn’s evidence
regarding the question of the attendance of a support person, and it is therefore possible, or
even likely, that Ms Callychurn’s contention about the document relied upon by Ms Jeschke
is in the same category as the matter of the support person.
[31] Further, in relation to matters of credit, Mr Jain’s evidence relies upon, and is
consistent with, the documentary evidence provided by ANZ on the matters in overall dispute.
His overall evidence is not diminished by the matters of memory to which I have referred. I
consider those matters to be fairly the impact of the passage of time.
[32] In relation to Ms Jeschke’s evidence, I accept as accurate the notes she took of the two
disciplinary meetings held on 31 March and 2 April 2015. I also accept her evidence
regarding the ANZ’s processes for consideration of the dismissal of an employee, and that it
was Mr Jain who made the decision to dismiss Ms Callychurn after he consulted with his
managers. The matters within her written witness statement are either not contentious or are
[2016] FWC 526generally consistent with other evidence given, whether by Mr Jain, or within documents. I
accept her evidence on these matters with the qualifications to which I have referred.
CONSIDERATION
[33] Ms Callychurn advances several lines of arguments that her dismissal was, in all the
circumstances, harsh, unjust or unreasonable, namely;
The ASIC ban was as a result of inadvertent or inconsequential conduct and was not
sufficient to cause problems for the ANZ. This argument was coupled with the
submission that there was no or insufficient conflict between the directorships held
by Ms Callychurn and the work she was called upon to perform for the ANZ;
She was denied procedural fairness by not being allowed a support person in
attendance at the meeting of 31 March 2015, with the nominated support person
being her solicitor who would attend by telephone;
She was denied procedural fairness because the ANZ decision-maker did not have
her responses before him when he made his decision to dismiss Ms Callychurn.
[34] Other matters upon which Ms Callychurn relies include the contention that the ANZ
misrepresented to her why she should come into work on 24 March 2015, which is the
occasion on which Mr Jain asked her about the media article and whether it referred to her;
whether she was given adequate notice of the allegations that were to be discussed with the
ANZ in the meeting on 31 March 2015; and whether the investigation conducted by the ANZ
that lead to her dismissal was impartial, or conflicted.
[35] An outsourcing arrangement led to the existing positions in Ms Callychurn’s team
being advertised and filled, with Ms Callychurn being advised on 30 March 2015 that she had
9
been successful. Ms Callychurn claims that had the ANZ done its due diligence before making this offer, it would have found a problem with making an offer to Ms Callychurn;
“5. It is contended as evident from the facts of the respondent Nitin Jain Team Leader
th
received an email on the 20 March 2015, not produced, other than the Respondent’s Annexure 2, referring to the requisite personnel, including Human Resources failed to
make reasonable inquiries, which would have brought existing facts to its knowledge
before the dismissal, there being no fraud or dishonesty that had contributed to the
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Respondents state of ignorance.” (footnote omitted) [36] For its part the ANZ relies upon several matters for Ms Callychurn’s dismissal;
The ASIC banning order is a very serious one, disclosing Ms Callychurn as not
being a fit and proper person to engage in any credit activities;
The fact of the banning order brought to the ANZ’s attention information about Ms
Callychurn it did not previously know, including that she had been under
investigation by ASIC, and perhaps more significantly, that she was a director of a
company and that she had failed to disclose that directorship to the ANZ;
[2016] FWC 526
That in the course of its investigation of Ms Callychurn she had not been completely
forthright with the bank about the circumstances of either the directorship or the
banning order and in fact that she held another directorship which she did not
disclose to the ANZ even when under investigation, the result of which was that the
bank lost trust and confidence in her continuation as an employee.
[37] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account the legislative factors set out earlier.
(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)
[38] When Mr Jain found out about the banning order through the media article, he asked
Ms Callychurn to attend a meeting with him on 24 March 2015, which was a day that she was
on personal leave. He did not, prior to her agreeing to come into work, tell her what his
purpose was for asking her to come in. While it may have been preferable for him to wait for
Ms Callychurn to return to work, I do not consider Mr Jain’s action in not telling her about
the purpose of the meeting to be a reason to find that her dismissal was procedurally unfair.
[39] When Ms Callychurn came under investigation by the ANZ, it wrote to her, initially
on 27 March 2015, seeking that she attend a meeting for the purposes of addressing its
concerns about her capacity to perform the inherent requirements of her role as well as its
alleged conflict of interest, but also that she supply the ANZ with a copy of ASIC’s written
decision. Ms Callychurn ultimately provided the ANZ with a copy of the order made by
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ASIC, but declined to provide further details for the reason that her solicitor had apparently 12
advised her not to do so. Ms Callychurn’s position about this situation was apparently that she was concerned that any admissions that may be made to the ANZ in the course of its
investigation may then find their way back either to ASIC or to the Administrative Appeals
Tribunal in which she had initiated an appeal against the ASIC banning order. The evidence
given by Ms Callychurn in the hearing of this matter has not taken the situation substantially
further. While applications on the part of the Respondent for an order for the production of
documents relevant firstly to the AAT proceedings and secondly to the original ASIC
determination have not yet been ultimately pressed by the Respondent, noting the preservation
of their rights to further press an application in respect of the original ASIC determination in
the event that remedy for an unfair dismissal is required to be considered by this Commission,
neither has Ms Callychurn either volunteered those documents to the Commission or indeed
given evidence of any significance on the subject.
[40] Ms Jeschke endeavoured to find out the precise nature of the ASIC ban;
“I conducted a number of online searches in order to locate the reasons for ASIC Ban,
however I was unsuccessful. I also contacted ASIC in the hope of being able to obtain
additional information; however, I was unable to obtain a copy of the reasons for the
13
decision and was referred back to the media release which was on their website.”
[41] The evidence of Mr Jain is that he sought from Ms Callychurn that she “supply a copy
14
of the ASIC decision” . His correspondence to her, initially on 27 March 2015, inviting her
15
to a meeting, specifically sought she “supply us with a copy of ASIC's written decision”.
[2016] FWC 526
[42] In the meeting on 31 March 2015, Ms Callychurn declined to comply with this
request, recollecting the following in her statement;
“25. At the meeting, I was asked whether I had brought the ASIC decision to which I
responded in the negative, and advised that this was based on legal advice for the
reasons noted in paragraph 21 above. I also provided a copy of the Notice of Appeal
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and a copy of the listing of the matter.”
[43] The reference in the above passage to paragraph 21 appears, in context, to be a
reference to paragraph 23, which states;
“23. On Tuesday 31st March 2015, I spoke to my solicitor prior to attending the
meeting, and she advised me that I should be upfront and honest about the second
allegation, however when it comes to the first allegation, since it is a matter under
review, I should limit matters discussed only to me, and not third parties, so as not to
compromise pending litigation. She also advised that she did not want anything placed
on my file permanently that could be prejudicial to me in the future in case ASIC’s
decision is reversed. However if same is placed on my file, it will be there for a certain
period of time and can prejudice any future applications I make with the bank. She also
advised that if during the meeting, clarification was required from my employer, she
17
was happy for me to call her or have them call her during the meeting.”
[44] On 1 April 2015, Ms Callychurn provided the ASIC order to Mr Jain, who in turn
18
provided it to Ms Jeschke. Ms Callychurn’s covering email implies that what she provided was the ASIC decision by saying;
“In response to the decision by ASIC concerning me that was requested, I attach same
and confirm the matter is before the Tribunal including the application to stay the
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operative decision which I confirm will be determined as a matter of urgency.”
[45] However, what was provided by her to the ANZ on 1 April was the Order of ASIC,
not its deliberative reasons for decision.
[46] Ms Callychurn’s written Outline of Submissions in these proceedings introduces
uncertainty about what she had been asked to provide by the ANZ. In particular, she draws a
distinction between the ASIC “statement of reasons”, its “decision”, and the “actual order”;
“6. It is contended that the procedures adopted in carrying out the termination of the
applicant was harsh, unjust or unreasonable given that it was evident given the level at
which such an administrative decision is made by the Australian Securities and
Investments Commission, it being clear that the respondent’s own inquiries was able to
obtain a media release and not any statement of reasons which is consistent with the
offer made by the applicant to produce the decision, which as it so happens is the
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actual order which it forwarded on the 31st March to Ntin Jain (sic).” (footnote omitted)
[47] This distinction is carried further in her closing submissions, wherein Ms Callychurn
endeavours to re-characterise this as simply that the ANZ did not ask for the right document;
[2016] FWC 526
“12. No request was made in writing or verbally for the reasons behind the decision of
ASIC, rather the decision of ASIC which was the order was what was requested. The
Applicant provided same on the 1 April 2015, although the Respondent in its response
to Applicant’s unfair dismissal application dated 4th May 2015 refers to no knowledge
of same, so that there is no certainty that Mr Morrison was made aware of same as it is
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Mr Jain contention that he relied on Mr Morrison to approve the dismissal.”
[48] Such parsing of what, in all, is a fairly simple request on the part of the ANZ to Ms
22
Callychurn, to “supply us with a copy of ASIC's written decision” leads to the conclusion only that Ms Callychurn intended to not provide ASIC’s deliberative reasons for decision to
the ANZ.
[49] This situation left the ANZ at the time with only two substantial considerations on the
subject matter of the banning order. The first of these considerations was the content of the
ASIC Order which states the following;
“AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
IN THE MATTER OF MEENAKSHI DEVI CALLYCHURN
SECTIONS 80 AND 81 OF THE
NATIONAL CONSUMER CREDIT PROTECTION ACT 2009
To: Meenakshi Devi Callychurn
ORDER UNDER SECTIONS 80 AND 81 OF THE
NATIONAL CONSUMER CREDIT PROTECTION ACT 2009
TAKE NOTICE that under paragraph 80 and section 81 of the National Consumer
Credit Protection Act 2009 the Australian Securities and Investments Commission
prohibits MEENAKSHI DEVI CALLYCHURN from engaging in any credit activities
for a period of five (5) years.
Dated this 27th day of February 2015.
Signed:
Gai Di Bartolomeo
Delegate of the Australian Securities and
23
Investments Commission”
[50] The second consideration available to the ANZ at that point shortly before it made the
decision to dismiss Ms Callychurn are the somewhat guarded responses given by her in
relation to the allegations. These comprise her response to the question of what led to the
banning order which includes that set out in her email to Mr Jain on 27 March 2015, in which
24
she said that “the matters referenced were in relation to the ex-director of the company”. In addition is the email to Mr Jain on 1 April 2015 which largely restates her earlier position that
the banning order could be the subject of variation or stay order by the AAT and that the
nondisclosure of her interest in the business was not, objectively, a conflict of interest; and the
matters discussed by Ms Callychurn in the two meetings on 31 March 2015 and 2 April 2015.
[2016] FWC 526[51] Ms Callychurn’s responses on the subject of the matters that led to the banning order
essentially took the ANZ only back to the Order itself and the matters stated within it which
included what the ban was; the sections under which it was made; and the period that it
applied for. In effect, the ANZ had no real information before it about the circumstances that
had led to the ban; what matters ASIC took into account or disregarded; or what ASIC
thought of Ms Callychurn’s responses to them, if any. While Ms Callychurn declined to
provide particulars to the ANZ about the circumstances of the banning order, the risk she ran
in choosing to do so was that she denied the ANZ any possibility of knowing of the conduct
that had led to the ban and thereby denying the ANZ of any ability of objectively weighing
the significance for it. Having taken that approach with her employer, she can hardly
reasonably complain when the ANZ took the darkest possible view of the situation.
[52] Ms Callychurn’s desire at the time to not provide particulars to the ANZ about the
subject matter of the banning order appears to be one of ensuring that the AAT proceedings
were not disturbed. While that might explain why in March and April 2015 Ms Callychurn
did not bring forward detailed information on the subject, it does not reasonably explain why
a cogent explanation of the subject matter of the banning order has not been brought before
the Commission. Reasonably, if Ms Callychurn’s argument that the banning order was the
product of matters pertaining to a former director of the company is accurate, and the banning
order does not relate to matters of substance connected with Ms Callychurn’s own conduct,
then that evidence could have been brought forward. It could only have assisted Ms
Callychurn if it had. It would have enabled her to persuade the Commission to form the view
that the decision-making on the part of the ANZ was an overreaction and that there was no
valid reason held by the ANZ for her termination of employment in April 2015.
[53] It is more likely than not that Ms Callychurn chose not to disclose either to the ANZ or
to the Commission the ASIC statement of reasons for its banning order because such
disclosure would not have helped her case at either point in time.
[54] On the subject of the reasons as to why the banning order was issued and its
significance for the matters in question in these proceedings, the Commission is left with the
same dilemma faced by the ANZ in April 2015.
[55] That is, I have available to me Ms Callychurn’s limited contemporaneous responses to
the ANZ, as well as her evidence in these proceedings, also very limited, on the subject of
how and why the banning order came about; and I then have the content of the banning Order
itself.
[56] The banning order prohibits Ms Callychurn from engaging in any credit activities for a
period of five years from the date of the order being 27 February, with the Order itself being
made under sections 80 and 81 of the National Consumer Credit Protection Act 2009 (Cth)
(the NCCP Act). Section 80 sets out the circumstances in which ASIC may make a banning
order and the tests and processes it must follow in consideration of such an order, and
secondly the matters set out within s.81, being as follows;
81 What is a banning order?
(1) A banning order is a written order that prohibits a person from engaging in any
credit activities or specified credit activities in specified circumstances or capacities.
[2016] FWC 526
(2) The order may prohibit the person against whom it is made from engaging in a
credit activity:
(a) permanently; or
(b) for a specified period.
(3) A banning order may include a provision allowing the person against whom it was
made, subject to any specified conditions:
(a) to do specified acts; or
(b) to do specified acts in specified circumstances;
that the order would otherwise prohibit them from doing.
(4) A banning order is not a legislative instrument.
[57] An extensive definition of credit activity is provided for within s.6 of the NCCP Act,
with terms used in that section in turn being defined in other sections. Section 80 of the NCCP
Act requires ASIC to only make a banning order after having given the person who is the
subject of its consideration a hearing and an opportunity to make submissions. Section 85
requires ASIC to give a copy of the banning order to a person, which must be accompanied by
a statement of reasons for the order. The section makes no requirement about the privacy or
confidentiality of those reasons.
[58] The point of referring to this legislative context on the part of ASIC is to form the
view, as I do, that a banning order of any kind by ASIC is far from inconsequential.
[59] Contravention of such a ban can lead to significant penalties. A banning order can
only be issued after giving a person an opportunity to be heard. The order can be in respect of
“any credit activities” or “specified credit activities” and can be either a permanent ban or one
for a specified period.
Inherent requirements
[60] I turn to consider whether the effect of the banning order was that Ms Callychurn was
unable to perform the inherent requirements of her role.
[61] In considering whether the ANZ had a valid reason for Ms Callychurn’s dismissal, the
correct inquiry is whether the Respondent reasonably formed the view that she could not
perform the inherent requirements of her job. In particular, the inquiry involves the following
considerations;
Whether a requirement is an inherent requirement should be determined according to
the dictates of common sense and as a matter of objective fact;
A dismissal based on an incapacity to perform the inherent requirements of a
position may not be a valid reason for dismissal if the employee has a capacity to
perform the inherent requirements of their job;
[2016] FWC 526
[62] The starting point for this analysis is to consider whether Ms Callychurn was, at the
time she was dismissed, able to perform those things that were essential to her position. The
Full Bench has held the analysis pertains to the substantive position of the employee rather
than modified or restricted duties or those of a temporary alternative position;
“[21] The Senior Deputy President found that there was no valid reason for the
dismissal of Mr Button on the basis of an inability on the part of Mr Button to perform
the inherent requirements of his job. The Senior Deputy President proceeded on the
basis that Mr Button was able to, and had been, performing the inherent requirements
of the restricted duties in which he had been working since October 2008. This
conclusion involved error.
[22] When an employer relies upon an employee’s incapacity to perform the inherent
requirements of his position or role, it is the substantive position or role of the
employee that must be considered and not some modified, restricted duties or
temporary alternative position that must be considered.
[23] In X v Commonwealth the High Court was concerned with an allegation of
discrimination on the grounds of disability contrary to the Disability Discrimination
Act 1992 (Cth) by a soldier who had been dismissed from the army on account of
being HIV positive. Section 15(4) of that Act contains an exemption from liability if
the person “would be unable to carry out the inherent requirements of the particular
employment”. Gummow and Haynes JJ addressed the notion of “inherent”
requirements:
“[102] The reference to "inherent" requirements invites attention to what are the
characteristic or essential requirements of the employment as opposed to those
requirements that might be described as peripheral. …[T]he requirements that
are to be considered are the requirements of the particular employment, not the
requirements of employment of some identified type or some different
employment modified to meet the needs of a disabled employee or applicant
for work.”
[24] Although the High Court was concerned with the meaning of the expression
“inherent requirements” in a statute, this analysis is equally applicable to a
consideration of what constitutes the “inherent requirements” of a position as a valid
reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:
“[124] The phrase "inherent requirements" has been judicially considered to
mean something that is essential to the position. [See generally X v The
Commonwealth (1999) 200 CLR 177] To determine what are the inherent
requirements of a particular position usually requires an examination of the
tasks performed, because it is the capacity to perform those tasks which is an
inherent requirement of the particular position. [Qantas Airways Ltd v Christie
(1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in
Qantas Airways Ltd v Christie:
"A practical method of determining whether or not a requirement is an
inherent requirement, in the ordinary sense of that expression, is to ask
[2016] FWC 526
whether the position would be essentially the same if that requirement
were dispensed with." [ibid. at 295]”
[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed,
noted that the expression “inherent requirements”, in its natural and ordinary meaning
“directs attention to the essential features or defining characteristics of the position in
question.” Her Honour noted:
“[33] There may be many situations in which the inherent requirements of a
particular position are properly identified as the characteristic tasks or skills
required for the work done in that position. But that is not always so. In the
present case, the position in question is that of captain of B747-400 aircraft
flying on Qantas' international routes, a matter as to which there is no real
dispute between the parties. To identify the inherent requirements of that
position as "the characteristic tasks or skills required in being a pilot", as did
Marshall J in the Full Court, is to overlook its international character.
[34] Moreover, the international character of the position occupied by Mr
Christie cannot be treated as irrelevant simply because it derives from his
contract of employment or from the terms and conditions of the industrial
agreements which have, from time to time, governed his employment with
Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent
requirement is something that is essential to the position. And certainly, an
employer cannot create an inherent requirement for the purposes of s 170DF(2)
by stipulating for something that is not essential or, even, by stipulating for
qualifications or skills which are disproportionately high when related to the
work to be done. But if a requirement is, in truth, essential, it is irrelevant that
it derives from the terms of the employment contract or from the conditions
governing the employment relationship.”
[26] Gaudron J also noted that the fact that a requirement is stipulated in an
employment contract does not, of itself, direct an answer one way or another as to the
25
question whether it is an inherent requirement of the particular position in question.”
(references omitted)
26
[63] Further to this, in the matter of X v The Commonwealth a distinction was drawn between performance of the actual role and what may be possible to be performed. That
matter, before the High Court, involved the dismissal of a soldier from the Australian Defence
Force because he had tested positive to HIV and it was argued that the soldier was unable to
bleed safely in the field without risking the infection of his fellow soldiers. The further
context was that the case involved a consideration of s.15(4) of the Disability Discrimination
Act 1992 (Cth) which required consideration of whether the person “would be unable to carry
out the inherent requirements of the particular employment”;
“[102] The reference to "inherent" requirements invites attention to what are the
characteristic or essential requirements of the employment as opposed to those
requirements that might be described as peripheral. Further, the reference to "inherent"
requirements would deal with at least some, and probably all, cases in which a
discriminatory employer seeks to contrive the result that the disabled are excluded
from a job. But the requirements that are to be considered are the requirements of the
[2016] FWC 526particular employment, not the requirements of employment of some identified type or
some different employment modified to meet the needs of a disabled employee or
applicant for work.
[103] It follows from both the reference to inherent requirements and the reference to
particular employment that, in considering the application of s 15(4)(a), it is necessary
to identify not only the terms and conditions which stipulate what the employee is to
do or be trained for, but also those terms and conditions which identify the
circumstances in which the particular employment will be carried on. Those
circumstances will often include the place or places at which the employment is to be
performed and may also encompass other considerations. For example, it may be
necessary to consider whether the employee is to work with others in some particular
way. It may also be necessary to consider the dangers to which the employee may be
27
exposed and the dangers to which the employee may expose others.”
[64] Although arguably, the reference above is in the specific context of the legislation
requiring consideration in X v The Commonwealth, of whether the person “would be unable to
carry out the inherent requirements of the particular employment” (emphasis added), the
authorities of this Commission resolve that the consideration is with respect to the position
28
held by the employee in question.
[65] In Boag and Son v Button, the Full Bench elaborated on the necessary analysis in the
following way, first making reference to the High Court’s judgment in Qantas Airways Ltd v
29
Christie;
“[28] McHugh J endorsed the proposition that “whether a requirement was an inherent
requirement of a particular employment was a matter which should be determined
according to the dictates of common sense and as a matter of objective fact rather than
as a matter of mere speculation or impression.”
[29] It is well established that a valid reason is one which is “sound, defensible or well
founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform
the inherent requirements of a position will generally provide a valid reason for
dismissal. But this will not invariably be so. For example, the dismissal may be
prohibited by State workers compensation legislation or otherwise unlawful. It is
highly likely, bordering on certain, that there could be no valid reason for the dismissal
in that event. Further, a dismissal based on an incapacity to perform the inherent
requirements of a position may not be valid reason for dismissal if the employee has a
capacity to perform the inherent requirements of their job. Plainly, there can be a valid
reason for the dismissal of an employee where he or she simply does not have the
capacity (or ability) to do their job. But, again, there may be circumstances where such
incapacity does not constitute a valid reason in the relevant sense.
[30] In the present case, it is clear that both Mr Button’s position and his job had
important features that he could not perform because of his lifting restriction. Mr
Button had an incapacity to perform the all of the inherent requirements of his job and,
30
on balance, this constituted a valid reason for his dismissal.” (references omitted) [66] In this matter, the evidence discloses the following;
[2016] FWC 526
Ms Callychurn states that since 2009 she has worked for the ANZ as a Credit
31
Assessment Officer; which Mr Jain describes as being engagement as a 32
contractor. She was absent on maternity leave between April 2011 and April 33
2014.
Ms Callychurn’s contract of employment, dated 1 April 2010, states her position as
Assessment Officer, and classified as Senior Officer, Group 5.3, with her reporting
to the WA Assessment Manager. The same contract includes that;
“At any time following your commencement, ANZ may, at its discretion,
change your position, reporting arrangements, duties and location on giving
you reasonable notice, following consultation with you, and taking into account
your career considerations and personal circumstances. Any such change to
your position, reporting arrangements, duties or location will not constitute a
termination of your employment, and will not entitle you to any benefits under
34
the termination provisions in this employment agreement.”
Mr Jain’s evidence is that Ms Callychurn’s engagement since April 2010 was as a
Credit Assessment Officer in the Broker/Mobile Lending Team, with the position of
Credit Assessment Officer being often described as a Case Management Officer; he
35
sees the role titles as being interchangeable. His evidence about her duties included the following; “As a Credit Assessment Officer, Ms Callychurn was responsible for analysing
and assessing customer home loan credit applications, and making decisions in
relation to those credit applications. Ms Callychurn’s role and key
responsibilities are outlined in the Role Mandate for a Case Management
Officer ...
Ms Callychurn was required to assess home loan credit applications and make
credit decisions within Credit Approval Discretion guidelines, and in
accordance with the ANZ Group Credit Policy, Code of Banking Practice and
ANZ service level agreements. Ms Callychurn was required to undertake credit
36
activities in order to perform her role.”
The “Role Mandate” referred to by Mr Jain identifies numerous accountabilities,
including the exercise of thorough credit worthiness assessments; the effective
communication of all credit decisions; the application of lending/credit policies,
product guidelines and a high level of judgement, in assessing credit worthiness; and
adherence to the group credit policy. The Role Mandate also includes a “role
purpose”, set out in this way;
“To provide a high level of quality output through the exercising of quality
credit decisions, within CAD guidelines, whilst ensuring excellence in
customer service and adherence to Group Credit Policy, Code of Banking
37
Practice and service level agreements.”
[67] Further, the evidence of Mr Jain and Ms Jeschke is that these activities are within the
definition of “credit activities” under the NCCP Act.
[2016] FWC 526
[68] In contrast, Ms Callychurn’s submissions are that the banning order did not mean she
could not perform the inherent requirements of her job. She submits application of a threefold
test would show that the banning order would not take away from the “fundamental tasks that
define a job or category of jobs and that must be carried out in order to get the job done”; the
matters banned were “not all the requirements of [the] job”; and the inherent requirements
38
were “about achieving results rather than the means for achieving a result”. In all; “5. The Applicant did not lose her capacity to perform the job. She remained as capable
of performing the role of Assessment Officer pursuant to her contract of employment
dated 1 April 2010 and subsequently 10 April 2014 under which ANZ operates within
the Financial Services Reform Act 2001.
6. The Applicant’s disqualification from engaging in credit activities did not mean that
she had lost her capacity to meet the inherent requirements of an express term of her
contracts of employment. The employment contract also provided for variations to
conditions of employment purposely contained provisions that continue the
application of the contract, regardless of any changes to the role, duties, location and
reporting arrangements for the position of Assessment Officer in the context of
39
position, and any such change will not constitute a termination of her employment.”
[69] The evidence leaves me satisfied that the position held by Ms Callychurn was that set
out in the combination of her employment contract and Role Mandate for a Case Management
Officer. Ms Callychurn does not contest that the Role Mandate applies to her, but argues that
the mandate must be read in the context of the duties of her substantive position;
“It is the substantive position or role that must be considered so that when referencing
the role mandate of the Applicant, it is not all of the duties that must be completed, so
that any limited features if it could not be performed would not have resulted in the
40
Applicant being able to fulfil the inherent requirements of the job.”
[70] Her submission in this regard cites in its support an unspecified aspect of the Full
41
Bench’s decision in the matter of Boag and Son v Button. The context of Ms Callychurn’s submissions allows the presumption that her reference is to the rule summarised by the Full
Bench to the effect that in cases of an employer’s reliance upon an employee’s incapacity “it
is the substantive position or role of the employee that must be considered and not some
42
modified, restricted duties or temporary alternative position that must be considered”. While plainly that is the case, in this matter, the evidence clearly indicates that the positions held by
Ms Callychurn since 2009 when she started with the ANZ have been as a Credit Assessment
Officer in the Broker/Mobile Lending Team, subject to the Role Mandate for a Case
Management Officer. Mr Jain’s evidence is that Ms Callychurn was required to undertake
credit activities in order to perform her role and that Ms Jeschke advised him the effect of the
banning order was that Ms Callychurn could not undertake any credit activities.
[71] The reference point in a decision that an employee is unable to perform the inherent
requirements of their position is to the substantive position, not a modified position, or one
involving restricted duties or a temporary alternative position. In this regard, Boag and Son v
43
Button follows Qantas Airways Ltd v Christie, in which an appeal was allowed over an expansive interpretation of the rights of a pilot then restricted, by virtue of age, from certain
international flying. In Qantas Airways Ltd v Christie, Gaudron J held the following in
[2016] FWC 526relation to the proposition that a restraint from international flying was a matter of age
discrimination and thereby not an inherent requirement;
“Applying that test, Marshall J held that "Mr Christie [was] not disqualified from being
able to perform the characteristic tasks or skills required in being a pilot, he [was] only
inhibited geographically as to where he [might] perform such tasks". His Honour
added that "[i]t was not necessary for Mr Christie to be able to fly to any part of the
world ... to be a Qantas B747-400 captain" because "[h]e was capable of being rostered
so that his services were utilised in flying to locations where he was not prohibited
from so doing by the laws of other countries". And in his Honour's view, difficulties
which might result from his being rostered in that way were relevant to the question
whether Mr Christie should be reinstated but not to the operation of s 170DF(2) of the
Act.
There may be many situations in which the inherent requirements of a particular
position are properly identified as the characteristic tasks or skills required for the
work done in that position. But that is not always so. In the present case, the position
in question is that of captain of B747-400 aircraft flying on Qantas' international
routes, a matter as to which there is no real dispute between the parties. To identify the
inherent requirements of that position as "the characteristic tasks or skills required in
being a pilot", as did Marshall J in the Full Court, is to overlook its international
character.
Moreover, the international character of the position occupied by Mr Christie cannot
be treated as irrelevant simply because it derives from his contract of employment or
from the terms and conditions of the industrial agreements which have, from time to
time, governed his employment with Qantas. It is correct to say, as did Gray J in the
Full Court, that an inherent requirement is something that is essential to the position.
And certainly, an employer cannot create an inherent requirement for the purposes of s
170DF(2) by stipulating for something that is not essential or, even, by stipulating for
qualifications or skills which are disproportionately high when related to the work to
be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from
the terms of the employment contract or from the conditions governing the
44
employment relationship.” (references omitted) [72] McHugh J noted in the later matter of X v The Commonwealth that Christie stands for
the proposition that the legal capacity to perform the employment tasks is, or can be, an
inherent requirement of employment, and that what is an inherent requirement of a particular
employment will usually depend upon the way in which the employer has arranged its
45
business, and addressed the need for the overall context of the situation to be taken into account; “Unless the employer's undertaking has been organised so as to permit discriminatory
conduct, the terms of the employment contract, the nature of the business and the
manner of its organisation will be determinative of whether a requirement is inherent
in the particular employment. But only those requirements that are essential in a
business sense (including where appropriate public administration) or in a legal sense
can be regarded as inhering in the particular employment. The Commission must give
appropriate recognition to the business judgment of the employer in organising its
undertaking and in regarding this or that requirement as essential to the particular
[2016] FWC 526employment. Thus, in Christie, Qantas had no obligation to restructure the roster and
bidding system which it utilised for allocating flights to its pilots in order to
accommodate Mr Christie. In the end, however, it is for the Commission, and not for
the employer, to determine whether or not a requirement is inherent in a particular
46
employment.”
[73] The existence of the banning order was known to the ANZ at the time it made its
decision to dismiss Ms Callychurn. It identified in its written reasons to her for her dismissal
that it considered the ban meant that she was unable to perform the inherent requirements of
47
her role as a Credit Assessment Officer. Because its knowledge about Ms Callychurn’s conduct at the time was limited to the content of the banning order itself and Ms Callychurn’s
guarded responses, it was reasonably open to the ANZ to form the view it did about Ms
Callychurn’s ability to perform the inherent requirements of her role.
[74] The role mandate for Ms Callychurn identifies numerous accountabilities, including
the exercise of thorough credit worthiness assessments; the effective communication of all
credit decisions; the application of lending/credit policies, product guidelines and a high level
48
of judgement, in assessing credit worthiness; and adherence to the group credit policy. The exercise of those accountabilities were not significantly challenged by Ms Callychurn or the
subject of evidence that would suggest that those other accountabilities within the role
mandate might somehow not fit the legislative definition of “credit activity”. The ANZ was
entitled to accept that a ban on one of its employees from engaging in any credit activities for
a period of five years meant that Ms Callychurn was not able to perform critical aspects of her
role mandate.
[75] On 25 March 2015 Ms Jeschke advised Mr Jain of the following about the potential
impact of the banning order on Ms Callychurn’s employment;
“Ms Jeschke: I’ve looked into this ASIC Ban further. It is actually more serious than I
first thought. Meenakshi cannot undertake any credit activities, which means she can’t
do her job at all. This issue is more serious than a conflict of interest. It could
49
potentially even put ANZ’s credit licence at risk.”
[76] In the meeting on 31 March 2015, Ms Callychurn accepted that “she was unable to
perform her role as a Credit Assessment Officer as she was required to engage in credit
50
activities”, with Ms Callychurn’s own evidence on the subject being that while she agreed she could not perform her duties as a Credit Assessment Officer, she “could perform any
51
other duty that did not involve credit activities” . Ms Callychurn’s closing submissions, consistent with her oral evidence, was; “… that she agreed to not being able to perform her duties was based solely on a
52
document defining credit activities that was put in front of her by Ms Jeschke.”
[77] The reference to the document provided by Ms Jeschke is to the disputed document
referred to earlier, and about which I have made no findings as to whether such a document
was relied upon by Ms Jeschke or not. In any event, whether Ms Callychurn agreed she could
not perform some or all of her duties, the evidence on the subject of the document is
inconclusive.
[2016] FWC 526[78] I am satisfied that at the time it decided to dismiss Ms Callychurn, the effect of the
banning order was such that she could not perform the inherent requirements of her position.
Trust and confidence
[79] The other aspect upon which the ANZ relied for its dismissal of Ms Callychurn is that
it lost trust and confidence in Ms Callychurn to be forthright and honest in her communication
with the ANZ, for two reasons. Firstly, there was a conflict of interest between her
employment with the ANZ and her failure to seek approval and declare an outside business
interest, being the sole director of UMS as well as being the identified sole key person and fit
and proper person under UMS’ credit licence. Secondly it is argued that Ms Callychurn failed
to be forthright during the disciplinary meetings held with the ANZ on 31 March and 2 April
2015.
[80] In relation to the first matter, the evidence includes that there has been no interaction
between UMS and the ANZ in the relevant period, whether with UMS as the corporate entity
or Ms Callychurn as its director. Ms Callychurn also says she never directly dealt with UMS
clients.
[81] Such does not entirely answer the ANZ allegation about her conduct or the framework
within which she worked. Firstly, the ANZ’s Conflict of Interest and Securities Trading
53
Requirements (the Requirements) identified that pursuit of certain employment or business opportunities outside of the ANZ Group had a high risk of creating situations of conflicts and
required that the company’s written consent be obtained before engagement in those
54
activities, in the case of Ms Callychurn. Secondly the ANZ Conflict of Interest Policy (the Policy) reinforced that conflicts of interest were to be avoided and managed. [82] The evidence indicates that Ms Callychurn had undertaken training in relation to the
Requirements and Policy, although there was debate at some level on her part as to the
training’s efficacy, or what she was required to declare in the way of her understanding and
commitment at the conclusion of the training which was undertaken online.
[83] Even so, the combination of the Requirements and the Policy unambiguously created
an obligation on Ms Callychurn to understand what might be a conflict; to understand the
risks of such; and to actively manage the combination of her employment and private life to
ensure that the risks of actual, potential or perceived conflict of interest were minimised.
[84] Not only is the evidence slight about the reasons why ASIC determined that there
should be a banning order in respect of Ms Callychurn, but it is also slight on the subject of
how Ms Callychurn came to be a Director of UMS or what her actual involvement in the
operations of the company may have been at the time or what they continue to be now. Ms
Callychurn submits that her involvement with UMS was the exercise by her of a family trust
arrangement, in which “she undertook the directorship by way of verbal agreement and that
55
she held it in trust”. She submitted further on this point that “no prior approval was required
56
if it was a Directorship in a Family Trust”. This is a submission that her circumstances connect with that part of the Requirements, which allows that “Pre-approval is NOT required
if you are ... assuming a directorship or of position as a trustee of a personal superannuation
57
fund or family trust”.
[2016] FWC 526
[85] Ms Callychurn’s closing submissions also make the following point about the
availability to her of the ANZ’s policy documents;
“The Applicant’s Directorship in 2011 was undertaken whilst on maternity leave and
not at any other time so that it did not specifically arise notwithstanding the training
that she undertook hitherto which was online and on her return in 2014, the company
was not trading so that it did not have any great significance and so her directorship
was not the most important matter on her mind. It must be remembered that all of these
policy documents were only made available after the Applicant had been terminated so
58
that her actions, explanations ought to have been accepted, …” (emphasis added) [86] Instead of what Ms Callychurn seeks to put forward, with the inference that she has
only recently seen them, I am satisfied from the evidence that she received training on the
ANZ’s relevant policies, including the ANZ Code of Conduct and Ethics; the Conflict of
59
Interest and Securities Trading Requirements; and the Conflict of Interest Policy. Ms Callychurn concedes that she received such training, but that at the time, it did not occur to
her that her directorship amounted to a conflict of interest. In her recollection of the meeting
on 31 March 2015, Ms Callychurn states;
“… I advised them that I became a director whilst on maternity leave, and that when I
completed the refresher training in April 2014, it did not trigger in my mind that I
needed to disclose as I firstly could not see a conflict of interest, in that I was not
promoting any other competitor to clients, I was not assessing deals submitted, if any,
by the company of which I am the director of, I was not the loan writer of the company
and that I have not been accredited with any banks. It is to be noted that the company
has not been accredited with any financial institutions and not submitted any financial
applications since on or about June 2014.
28. I also advised that I was mainly ensuring the company runs smoothly and meets all
its compliance and tax obligations, and it was not a very active company which
required my attention on a daily or weekly basis.
29. In fact, ASIC’s allegation is that I was not actively engaged in the running of the
60
business.”
[87] Such response not only raises the defence of having overlooked the question of a
conflict, which is possible, but it also explains in a limited way what the role Ms Callychurn
performed with UMS was. She helped the company run smoothly and meet all its compliance
and tax obligations, with ASIC’s allegation being that she was not actively engaged in the
running of the business. Despite this characterisation on the part of Ms Callychurn, which
gives rise to the view that the company’s trading activities were above there being no activity,
with the company needing some assistance to run smoothly and comply with its obligations,
Ms Callychurn’s closing submissions, by contrast, suggested that UMS was all but dormant –
61
with it being said that upon her return in 2014 from maternity leave UMS was not trading.
[88] I am un-persuaded by Ms Callychurn about what she would seek me to find in relation
to there being no need for prior approval for the UMS Directorship if it was a directorship in a
Family Trust. It may be that she did not need to seek pre-approval for her directorship, if in
fact UMS is properly to be characterised as a family trust, but it does not remove the need to
avoid or disclose actual or potential conflicts of interest that fall within the Policy, the
[2016] FWC 526Requirements and the Code. First, I note that there is no evidence before me about the
formation, shareholding or composition of UMS and there are no documents that would
confirm its status as a family trust. Perhaps it is a family trust; but there is nothing before me
that would corroborate such proposition. Second, the ANZ’s Requirements document
provides the following;
“MANAGING PERSONAL CONFLICTS OF INTEREST
Personal Conflict of Interest can arise from:
a customer seeking finance from you to buy, or selling a property you personally
wish to buy;
lending money, providing financial services or awarding a contract on behalf of
ANZ to person you have a close relationship with (e.g. spouse/partner, including
defacto or same sex partner, parent, sibling, etc.)
entering into a credit contract with a consumer or increasing a consumer's credit
limit, where ANZ has assessed the contract or increase as "unsuitable" for them, so
that you receive an incentive or benefit.
These scenarios are listed as examples and are not exhaustive.
Where you personally have an actual or potential conflict, you must be disclosed to
your line manager, human resources representative or your Business Unit compliance
manager.
OUTSIDE BUSINESS INTERESTS
Pursuing employment or other business opportunities outside the ANZ Group,
including voluntary activity, contracting engagements, business interests (including
shareholding interest in private entities), or directorships (collectively "outside
business interest" or "OBI") has a high risk of creating situations of conflicts. If you
wish to engage in such an arrangement (regardless of whether you believe a conflict
exists or can be managed), you must obtain ANZ's written consent before undertaking
or accepting any OBI engagement (or upon joining ANZ if you are a new employee).
Pre-approval is NOT required if you are:
a committee member of a not-for-profit organisation (e.g. school, church, sporting
club), and are not involved in financial decision making for that organisation (i.e.
you are neither a board member nor on any financial management committee); or
assuming a directorship or of position as a trustee of a personal superannuation fund
or family trust; or,
62
assuming a board position of an ANZ Group company”
[89] While it is the case that pre-approval is not required of the ANZ for an employee who
assumes a role as a director or trustee of a personal superannuation fund or family trust,
[2016] FWC 526
(referred to as the “family trust pre-approval”) it plainly does not absolve an employee of the
need to avoid or disclose actual or potential conflicts of interest. The furthest that the policy
can be said to assist Ms Callychurn is to remove the need for pre-approval, if in fact UMS
falls within the definition of “family trust”. While there is insufficient evidence before me that
would allow such a finding, there was similarly none on the subject before the ANZ when it
made the decision to dismiss Ms Callychurn. It was not a subject upon which Ms Callychurn
relied at the time of the ANZ’s investigation of her conduct. There is no reference to the
subject in Ms Callychurn’s initial written outline of submissions or witness statement filed
prior to the hearing of her application. She did not introduce any documents in the course of
the proceedings that would demonstrate the “family trust” status of UMS or that her
directorship otherwise fitted within the family trust pre-approval upon which she now seeks to
rely. A proper endeavour to rely upon the family trust pre-approval could reasonably be
expected to have included such action by the Applicant. The absence of such actions by Ms
Callychurn leads me to find that more likely than not the family trust pre-approval does not
apply and that her submissions on the subject are merely a late-stage endeavour to reverse
engineer an acceptable explanation for her conduct.
[90] Such evidence as there is on the subject of how Ms Callychurn came to be a Director
63
of UMS shows that she became a director in June 2011 and that she did so because the previous Director of the company, Rudy Frugtniet, who represented Ms Callychurn in these
proceedings, had himself been determined by ASIC as not able to continue in the position of
director. Ms Jeschke’s notes from the meeting of 31 March 2015 record Ms Callychurn as
having said about that situation the following in response to a question from Ms Jeschke;
“Why did he stop as a director? I'm not sure but I do know there was an issue with fit
64
and proper part, and that's why he came me [sic]. He's the father of my children.”
[91] Such commentary significantly understates the circumstances by which Mr Frugtniet
ceased to be a Director, having been permanently banned by ASIC. It also highlights Ms
Callychurn’s likely knowledge of those circumstances and her preparedness to tell ANZ the
extent of her knowledge.
[92] The ASIC media release on the subject of Ms Callychurn’s banning order includes the
following explanation about why the order was necessary;
“Ms Callychurn of [suburb], Victoria, is the sole director of UMS and the sole key
person and fit and proper person under UMS' credit licence. UMS was formerly owned
and operated by Mr Rudy Frugtniet who was permanently banned from engaging in
credit activities by ASIC in July 2014 (refer: 14-163MR).
ASIC's decision to ban Ms Callychurn was based on concerns including that Ms
Callychurn:
Submitted to ASIC two Annual Compliance Certificates for UMS with false or
misleading responses
Allowed Mr Frugtniet to continue to exercise control over UMS
Was not engaged in operating the business and attending to duties associated with
the UMS credit licence
[2016] FWC 526
Did not understand her responsibilities in relation to the UMS credit licence
Showed a lack of preparedness to engage with ASIC
ASIC found that Ms Callychurn failed to actively engage in the operations of the
business and failed to meet the standards expected in the roles of sole director, key
65
person and fit and proper person. This made her unfit to engage in credit activities.”
[93] The combination of these matters leads to a view that it would be lacking credibility to
put forward the proposition that an involvement with UMS might not be reasonably viewed
by the ANZ as being something which was an actual, potential or perceived conflict of
interest. To ASIC at least, UMS was a “finance broker” working in Victoria; it held a “credit
licence”; and it operated a business. The strength of the Requirements and Policy make it
clear that employment or other business associations outside of the ANZ group of a wide
class can give rise to conflicts. The Requirements particularly specify clear and cogent
examples where conflicts may occur, and a perusal of the document and the examples given
would reasonably indicate to any reader that the ANZ wanted, at the least, to be very careful
about any relationships which could, in any way, impact upon the conduct of its business. The
instruction within the Requirements that if “you personally have an actual or potential
conflict, you must [disclose it] to your line manager, human resources representative or your
Business Unit compliance manager” is unambiguous, and consistent with an organisation that
not only wanted to be careful about staff relationships that might impact on its business, but
also that it wanted to know about their existence.
[94] Ms Callychurn presents as a very capable and articulate person and it is unlikely that
she did not appreciate the breadth of the training on the Requirements and Policy, including
when she undertook it most recently in 2014 upon returning from maternity leave. When she
undertook the refresher training in April 2014 she had been a Director of UMS for almost 3
years. It lacks credibility to put forward that when she undertook the training on the subject it
did not occur to her that the directorship she held with UMS might possibly not fall into a
category of disclosure referred to within the Requirement and Policy. There was no endeavour
by her, at that time, to couple her directorship with the family trust pre-approval referred to
earlier.
[95] The ASIC media release also refers to Ms Callychurn holding, prior to the banning
order, the position of being “the sole key person and fit and proper person under UMS’ credit
licence”.
[96] Ms Callychurn’s evidence on the subject of the investigation that sat behind the ASIC
banning order is that she first became aware of the Commission’s concerns in late 2014. The
evidence also discloses that ASIC made its decision about the banning order no later than 27
February 2015 when its order was issued. Ms Callychurn’s evidence is also that she collected
an envelope with the order from the post office but did not open it at the time. Mr Jain recalls
her having said to him on 24 March 2015 that at that time “she was not aware of the ASIC
Ban, and that she had not received anything from ASIC, but that she had not checked her post
66
box for some time” and that he advised her she should check her post box. Ms Callychurn’s evidence about when she did open the envelope is inconclusive. [2016] FWC 526 [97] The NCCP Act, referred to above, obliges ASIC to provide a hearing to a person
against whom it is considering issuing a banning order. There is no evidence that such did not
occur. In the absence of any detail from Ms Callychurn about when that hearing was, what
form it took, or the submissions that she put to it, it can and should reasonably be inferred that
such a hearing took place and that it took place prior to the date on which the order was made.
[98] As the matter stands, Ms Callychurn did not disclose any of these situations to the
ANZ prior to the company raising the matter of the ASIC media release with her.
[99] It lacks credibility on the part of Ms Callychurn to put forward that there was no need
to bring to the attention of her employer any of the ASIC’s activity. Any reasonable observer
of the situation would take the view that it was extremely serious. She was a Director of a
company engaged in credit activities operating under a statutory credit licence and had only
become a Director of a company because the former director, Mr Frugtniet, had been
permanently banned from being a director or henceforth having any operational connection
with the company.
[100] Ms Jeschke’s notes of the meeting held on 31 March 2015 records the following
explanation about the UMS directorship and involvement;
“Why didn't you declare in mid 2011? I was under a lot of pressure. Was I dumb yes.
My frame of mind at the time, I had miscarriages after 7 years, just had a son. I wasn't
thinking straight was focused 100%.
One good day he waltz in and says can you do this, for the kids sake, you get engulfed
into this, sounded so minimal. Wasn't like I had to meet clients, write loans, go
through accreditation, was put to me, just your name, your just lending your name. It
wasn't the intention for me to say on, short period of time, but with his legal battles we
could not put him back on. Tried to find someone else. I do intend to resign. It's a
court case for me and the company, and it doesn't make sense if new director come in
then it turns into 2 cases.
Why not seek approval after mat leave? I did not. My involvement was so minimal.
Last April. Did you see it in your edge training? Yes. I read it. But I didn't see it as a
conflict of interest, because I wasn't writing any loans. Yes I am the director and I
didn't disclose it, I should have sought approval.
Why? So we identify conflict of interest. What are they? Like submitting a deal as a
67
loan writer.”
[101] The same notes further record the following, putting forward that there was no
awareness on the part of Ms Callychurn that the directorship required reporting to ANZ;
“I forgot and I did not realise. Being accused of knowingly not informing you. Not by a
mile. When I did my edge training, it didn't raise my awareness and make me declare
it.
When you're a director and you know you're a director, all I can say it that honesty it
didn't occur to me that I should. Accept fact that I should have declared it. I'd just
come back from work, did the edge training, a lot of things happening, have 3 kids, I
[2016] FWC 526
know what I will make them for dinner, but there was no involvement. I don't feel like
68
the director of the company. I didn't choose not to disclose.”
[102] Even though in the hearing of this matter Ms Callychurn endeavoured to question the
veracity of the notes taken by Ms Jeschke, the explanation of inadvertence, assistance for Mr
Frugtniet and minimal involvement is broadly consistent with that put forward in an email by
her to Mr Jain on 1 April 2015;
“In relation to the matter of non-disclosure of an interest in a business I reinforce that
whilst on maternity leave and in the upbringing of my young children amongst many
other factors I inadvertently omitted to seek approval as stipulated in the Code of
69
Conduct.”
[103] In context, these explanations are disingenuous. The defence of inadvertence would
likely have held weight had at the conclusion of the training in April 2014, on the subject
matter of the conflict of interest requirements and policy, or at the very latest at the point at
which the ASIC investigation was underway, Ms Callychurn disclosed the UMS directorship
to the ANZ. She could have said to the ANZ at that time, in 2014, words to the effect that she
had not reported the matter because of an oversight on her part; that she didn’t think there was
a conflict, however out of an abundance of caution her employer needed to know both about
the directorship and ASIC’s proceedings. However she did not do that, and such sentiments
were not expressed by her to the ANZ until its investigation into her conduct.
[104] Had the matters been disclosed at either of those earlier times, it might reasonably be
the case that ANZ required Ms Callychurn either to divest a directorship or consider
alternative disciplinary action to dismissal. However there was no endeavour by Ms
Callychurn to identify these matters to the ANZ at any time before Mr Jain asked her about
the media article that had been drawn to his attention. Given Ms Callychurn’s obvious
intelligence and understanding of the environment within which she worked and her ability to
communicate clearly, it lacks credibility for her to say to the ANZ that it did not occur to her,
prior to March 2015, that these matters might reasonably be considered by the bank to give
rise to a conflict of interest.
[105] In context, it appears more likely than not that Ms Callychurn knew the UMS
directorship was a conflict of interest within the terms of the ANZ’s policies, and that she
knew as much most probably by the time she undertook the refresher training on the subject
of conflict of interest in April 2014 and most definitely by the time that the ASIC
investigation was underway. It is also more likely than not that Ms Callychurn wanted to keep
the knowledge of her directorship from the ANZ for as long as she could. The context of the
whole matter, and in particular the significance of the ASIC investigation and what had earlier
occurred to Mr Frugtniet, would reasonably lead to the view that if there was a failure of Ms
Callychurn to open mail addressed to her from ASIC it was because she feared the worst
about what it contained. Ms Callychurn’s evidence is that when Mr Jain had his discussion
with her about the media article she confirmed it was about her and that she was still in a state
70
of shock, however, rather than being shock either about what ASIC had ordered or how the ANZ may have viewed the situation, I take this be to shock that her conduct had been
discovered by the ANZ.
[106] A relevant consideration in this matter is Ms Callychurn’s general demeanour during
the course of the ANZ’s investigation of the situation and the events leading to its decision to
[2016] FWC 526
dismiss her. In the matter of Streeter v Telstra Corporation Ltd (Streeter) the Full Bench, in
majority, took into account the need for honesty on the part of the Applicant during the course
of an investigation and connected such with the ongoing relationship of trust and
71
confidence;
“14 Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had
occurred or stated that she had “no comment”. She also claimed a lack of memory with
respect to certain activities. As Senior Deputy President Hamberger points out, Ms
Streeter concedes she lied to Telstra during the investigation.
15 Ms Streeter’s dishonesty would have been of little relevance to Telstra if her
activities had had no effect at her work and were not likely to have any effect at her
work. However, it appeared her activities had caused difficulties at her work and were
likely to cause difficulties at her work in the future. In the circumstances, we think
Telstra’s questions of Ms Streeter during its investigation were reasonable. Ms Streeter
needed to be honest with Telstra about her activities, notwithstanding their inherently
personal nature, so that Telstra could determine and take appropriate action to deal
with the difficulties.”
“23 We are satisfied there was a valid reason for the termination of Ms Streeter’s employment by Telstra related to her conduct, being her dishonesty with Telstra during
the investigation it conducted on 28 February 2007 and 14 March 2007 into her
activities in the room at Hotel B on 24-25 February 2007. We think it was reasonable
for Telstra to conduct the investigation given it appeared her activities had caused
difficulties at her work and were likely to cause difficulties at her work in the future. In
the circumstances, we also think the questions Telstra asked Ms Streeter were
reasonable. We think Ms Streeter needed to be honest with Telstra during the
investigation, notwithstanding the inherently personal nature of her activities, so that
Telstra could determine and take appropriate action to deal with the difficulties. Ms
Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms
Streeter would be honest with it in the future. The relationship of trust and confidence
between Telstra and Ms Streeter was, thereby, destroyed.”
[107] In this matter, the ANZ argues that the requisite trust and confidence in Ms Callychurn
was lost because she failed to seek approval from ANZ at the time she became a director of
UMS and then did not disclose the directorship to ANZ at any time before Mr Jain raised the
matter with her on 24 March 2015, and also because she failed to be honest and forthright
with the bank during the investigation it conducted.
[108] I accept that there was a failure by Ms Callychurn to either seek approval to be a
director of UMS or to disclose that appointment to ANZ. On its own, such failures may well
be cause for disciplinary action, even in the context of there being no evidence of a material
connection between the activities of UMS and the ANZ. The overlay of an ASIC Banning
Order and a media release reporting serious adverse findings about Ms Callychurn suggests
that consideration of disciplinary action would likely be unavoidable and, I consider,
potentially toward the upper end of the scale, for the reason that the complaint would
reasonably be that as an employee Ms Callychurn had failed to manage a potential conflict of
interest.
[2016] FWC 526[109] The ANZ’s policies define a “conflict of interest” to be “where the specific duties or
interests of a person or entity in respect of an outcome, are not aligned with that person or
72
entity's obligations or duties to others to achieve a different outcome”. In a practical sense, there is unlikely to be a coalescence between the interests on the one part of the ANZ, her co-
workers or the ANZ customers with whom she dealt to have the utmost good faith in the work
she performs at the ANZ, and the interests on the other part of Ms Callychurn to not disclose
that she was a Director of a company holding an ASIC credit license; that she had only
become a Director because the previous director, Mr Frugtniet, had been permanently banned
from engaging in credit activities by ASIC; that she herself was, depending upon the time
point and what she actually knew, either now herself under investigation by ASIC for her
conduct or banned from engaging in credit activities for five years.
[110] Plainly, Ms Callychurn’s personal interests in March 2015 were served by not
disclosing anything of the situation to anyone at the ANZ.
[111] The failure of Ms Callychurn to be candid and truthful with the ANZ in the course of
its investigation compounds the situation, and together with her failure to notify or earlier
disclose her involvement with UMS, become sufficient reason to find that the ANZ
reasonably could no longer have trust and confidence in her as an employee.
[112] Ms Callychurn attacks the question of who made the decision to dismiss her, and what
they took into account. She argues that Mr Morrison had to approve the dismissal and that
there is no evidence of the matters he took into account. Notwithstanding such situation, the
evidence before me is that Mr Jain was the person who made the final decision, after
discussion of the subject, including by making a recommendation for dismissal with Mr
73
Morrison, and that Mr Morrison approved the decision. I accept and rely upon that evidence. [113] Ms Callychurn submits there was unfairness to her because the ANZ failed to consider
alternative arrangements to dismiss during a period in which a stay of the ASIC banning order
was sought, or to consider redeployment to duties that would not be inconsistent with the
74
banning order. She argues that ANZ was obligated through the terms of its employment contract to find alternative work for her. She submitted in her closing submissions that;
“The employment contract also provided for variations to conditions of employment
purposely contained provisions that continue the application of the contract, regardless
of any changes to the role, duties, location and reporting arrangements for the position
of Assessment Officer in the context of position, and any such change will not
75
constitute a termination of her employment.”
[114] While the contract of employment permits a change in position or duties and other
matters, the contract is permissive and not obligatory in this regard. I do not find that ANZ
was required to give consideration to an alternative role for Ms Callychurn.
[115] In summary, I have found that it was reasonable Ms Callychurn likely could no longer
perform the inherent requirements of her position and that it was reasonable the ANZ could
no longer have trust and confidence in her as an employee. Together, these matters lead me to
find that the ANZ had a valid reason for Ms Callychurn’s dismissal.
(b) whether the person was notified of that reason
[2016] FWC 526
[116] I am satisfied that Ms Callychurn was notified of the ANZ’s reason for dismissal.
Shortly after she was dismissed in the meeting held on 2 April 2015, Ms Callychurn was
provided with a letter from Mr Jain that indicated the following reasoning;
“In accordance with the Global Performance Improvement and Unacceptable Behaviour
Policy, I am writing to confirm that, following an investigation of your recent
behaviour, ANZ has made a decision to terminate your employment effective today.
The reasons for this decision have been discussed with you in our meeting, and you
have had an opportunity to respond. A further letter, confirming the detail of the
76
matters discussed with you today will shortly be forwarded to your home address.”
[117] More detailed written reasons were provided by Mr Jain, initially by regular mail on
10 April 2015, and then by email on 14 April after a request from Ms Callychurn. That letter
is lengthy and sets out the following broad reasons for dismissal;
“As notified to you in writing on 2 April 2015, the decision was made to terminate your
employment. The reasons for this decision were discussed with you in our meeting,
and you had an opportunity to respond.
Both of the following reasons give ANZ cause to terminate your employment, as both
are serious, and both warrant termination. These reasons are:
1) You are unable to perform the inherent requirements of your role as a Credit
Assessment Officer, in light of ASIC's recent decision to ban you from
engaging in 'credit activities' for five years; and/or
2) ANZ no longer has trust and confidence in you to be forthright and honest in
your communication with us, following your failure:
a. to seek approval and declare your outside business interest, namely
you being the sole director of Unique Mortgage Services Pty Ltd
(UMS) and the sole key person and fit and proper person under UMS'
credit licence; and
b. to be forthright during the disciplinary meeting on 31 March and 2
April 2015.
It is considered that this behaviour is in breach of ANZ's Code of Conduct and Ethics,
77
our Values, and your employment contract.”
[118] The same letter discusses and weighs certain responses given by Ms Callychurn to the
allegations made against her, and provides the following conclusion of reasoning;
“ANZ's reasoning for decision
You can no longer undertake the inherent requirements of your role as a Credit
Assessment Officer for ANZ, given ASIC's recent decision to ban you from engaging
in 'credit activities' for five years. You have acknowledged this.
[2016] FWC 526
Further, ANZ no longer has trust and confidence in you to be forthright and honest in
your communication with us. This is because:
1) ANZ considers that when you became a director in mid-2011 you were
aware of your obligation under ANZ's policy to seek approval for an outside
business interest, but chose not to. You had completed your on-line training
course addressing conflict of interest on 8 September 2009 and 23 August
2010;
2) Further, ANZ consider that you elected not to inform ANZ of your outside
business interest upon your return from parental leave on 7 April 2014. You
even undertook your on-line training course addressing conflict of interest on
15 April 2014, and this did not motivate you to be forthright and honest with
ANZ and declare your outside business interest; and
3) During the disciplinary meeting on 31 March and 2 April 2015, you were
not open and transparent with ANZ. You refused to provide ASIC's decision so
we could understand more about what behaviour led to the ban on 'credit
activities', and you refused to speak about the ASIC decision. This is despite
ANZ in its correspondence to you on 27 March 2015 stating that "ANZ expects
you to come fully equipped to speak to the allegations, and to supply us with a
78
copy of ASIC’s decision".”
[119] Accordingly, I find that Ms Callychurn was notified of the reasons ANZ held for her
dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[120] I find also that Ms Callychurn was given an opportunity to respond to the reasons
ANZ held for her dismissal that related to her capacity or conduct. That opportunity was in
the meetings held with her by Mr Jain and Ms Jeschke on 31 March 2015 and 2 April 2015.
(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
[121] I do not find that there was any unreasonable refusal by ANZ to allow Ms Callychurn
to have a support person present to assist any discussions relating to dismissal. I am not
satisfied that she asked for a solicitor to be in attendance at any of the meetings the ANZ held
with her or was refused the ability to have such person attend.
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal
[122] Ms Callychurn’s dismissal did not relate to a matter of unsatisfactory performance.
(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
[2016] FWC 526
[123] I find no evidence that the ANZ’s size impacted upon the procedures it used to effect
Ms Callychurn’s dismissal.
(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;
[124] The evidence is that the ANZ had available to it dedicated human resource
management specialists or expertise and that advice was both given and accepted on the
subject of Ms Callychurn’s dismissal.
(h) any other matters that the FWC considers relevant
[125] I do not find any other matters that are relevant and which require being taken into
account.
[126] Having considered in detail all of the criteria within s.387 of the Act I find that there
are no matters that would cause me to find that irrespective of there being a valid reason for
the dismissal of Ms Callychurn, her dismissal was otherwise harsh, unjust or unreasonable.
CONCLUSION AND ORDER
[127] After consideration of the foregoing issues, I find that Ms Callychurn was not unfairly
dismissed within the meaning of the Act.
[128] As a result, I must now dismiss her application and an order to that effect will be
issued in conjunction with this decision.
COMMISSIONER
| Appearances: |
| Mr R Frugtniet for the Applicant |
| Ms E Holt (of Counsel) instructed by Herbert Smith Freehills for Australia and New Zealand |
| Banking Group T/A ANZ |
| Hearing details: |
| 2015. |
| Melbourne. |
| 7-8 December. [2016] FWC 526 |
| Final written submissions: |
| Applicant – 23 December 2015 |
| Respondent – 12 January 2016 |
| Printed by authority of the Commonwealth Government Printer |
| <Price code G, PR576459> |
| 39 |
Ibid [6].
40
Ibid [9].
41
[2010] FWAFB 4022.
42
Ibid, at [22].
43
(1998) HCA 18.
44
Ibid [32]-[34].
45
(1999) 200 CLR 177, at [35]–[36].
46
Ibid, at [37].
47
Exhibit R1 Attachment NJ-21.
48
Ibid Attachment NJ-4.
49
Ibid [27]; Exhibit R2 [8].
50
Exhibit R1 [40].
51
Exhibit A1 [44].
52
Applicant’s Closing Submissions, 23 December 2015, [11].
53
Exhibit R1 Attachment NJ-7.
54
Ibid Attachment NJ-8.
55
Applicant’s Closing Submissions, 23 December 2015, [15].
56
Ibid [17].
57
Exhibit R1 Attachment NJ-7.
58
Applicant’s Closing Submissions, 23 December 2015, [17].
59
Exhibit R1, [13]-[14].
60
Exhibit A1 [27]-[29].
61
Applicant’s Closing Submissions, 23 December 2015, [17].
62
Exhibit R1 Attachment NJ-7.
63
Ibid Attachment NJ-23.
64
Exhibit R2 Attachment LJ-6, 3.
65
Form F3 - Employer Response Form, 4 May 2015, Annexure 3.
66
Exhibit R1 [25].
67
Exhibit R2 Attachment LJ-6, 3.
68
Ibid.
69
Exhibit R1 Attachment NJ-18.
70
Exhibit A1 [15].
71
Streeter v Telstra Corporation Ltd [2008] AIRCFB 15.
72
Exhibit R1 Attachment NJ-8.
73
Ibid [48]-[52].
74
Exhibit A1 [32]-[33].
75
Applicant’s Closing Submissions, 23 December 2015, [6].
76
Exhibit R2 Attachment LJ-8.
77
Exhibit R1 Attachment NJ-21.
78
Ibid.
1
Exhibit A2, Applicant’s Outline of Submissions, [1].
2
Exhibit R1, Witness Statement of Nitin Jain (as amended), Attachment NJ-20.
3
Form F2 – Application for Unfair Dismissal Remedy, 23 April 2015, Attachment 2.
4
Exhibit R1 Attachment NJ-10.
5
Ibid Attachment NJ-12.
6
Ibid Attachment NJ-14.
7
Ibid [35]-[37].
8
Exhibit A2 [18]-[19].
9
Ibid [4].
10
Ibid [5].
11
Exhibit R1 Attachment NJ-18.
12
Ibid Attachments NJ-18, NJ-12.
13
Exhibit R2, Witness Statement of Louisa Jeschke, [9].
14
Exhibit R1 [32].
15
Exhibit R1 Attachment NJ-13.
16
Exhibit A1, Witness Statement of Meenakshi Callychurn, [25].
17
Ibid [23].
18
Exhibit R2 [24].
19
Ibid Attachment LJ-7.
20
Exhibit A2 [6].
21
Applicant’s Closing Submissions, 23 December 2015, [12].
22
Exhibit R1 NJ-13.
23
Exhibit R2 Attachment LJ-7.
24
Exhibit R1 Attachment NJ-12.
25
J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022, at [21]–[26].
26
(1999) 200 CLR 177.
27
Ibid, at [102]-[103], per Gummow and Hayne JJ.
28
see for example; Boag and Son v Button [2010] FWAFB 4022, at [30]; Sukloska v Serco Sodexo Defence Services [2014]
FWC 2855, at [45] and [59]; Born v Aurizon [2014] FWC 22, at [87]; Rowe v V/Line [2014 FWC 1437, at [63].
29
[1998] HCA 18, 193 CLR 280.
30
[2010] FWAFB 4022, at [28]–[30].
31
Exhibit A1 [2]; Exhibit A2 [1].
32
Exhibit R1 [7].
33
Exhibit A1 [3].
34
Exhibit R1 Attachment NJ-3.
35
Ibid [7].
36
Ibid [9]-[10].
37
Ibid Attachment NJ-4.
38
Applicant’s Closing Submissions, 23 December 2015, [4].
5
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