Candice Dias v Commonwealth Securities Limited

[2019] FWCFB 8744

[2019] FWC 5479

The attached document replaces the document previously issued with the above code on 19 September 2019.

Amended name of respondent in title and paragraph [1], replacing ‘Commonwealth Bank’ with ‘Commonwealth Securities Limited’ as the respondent.

Associate to Deputy President Sams

Dated 23 September 2019

[2019] FWC 5479 [Note: An appeal pursuant to s.604 (C2019/6209) was lodged against this decision - refer to Full Bench decision dated 26 November 2019 [2019] FWCFB 7944 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Candice Dias

v

Commonwealth Securities Limited

(U2018/12352)

Deputy President Sams SYDNEY, 19 SEPTEMBER 2019

Application for reinstatement as a remedy for alleged unfair dismissal – long-serving Bank employee - allegations of misconduct and various breaches of the Bank’s policies and procedures – warning and training for alleged contact with an unauthorised third party in respect to a client’s account – breaches of customer confidentiality and privacy – warning disputed – applicant’s refusal to attend training on three occasions – grievance lodged in respect to warning – refusal to attend meeting with manager – grievance dealt with according to Bank’s procedure – applicant sent confidential customer details to her personal email and claims to have had approval to do so – refusal to delete confidential material from personal email – thorough investigation by the Bank – applicant refuses to accept warning or acknowledge any wrongdoing – applicant claims she always followed policies and procedures – documentary evidence relied on not relevant or ‘doctored’ – applicant’s explanation not plausible or rational – direction to attend training independent of grievance process – failure to follow lawful and reasonable directions of employer – applicant ignored closure of her grievance and escalates her issues to the Bank’s Chief Executive Officer contrary to grievance process – conflicting evidence – applicant a witness of little credit – various breaches of policies and procedures considered cumulatively – valid reason for dismissal – misconduct established – no issues of procedural unfairness – mitigating factors considered, but do not outweigh seriousness of misconduct – applicant a legal, financial and reputational risk to the Bank – no acknowledgement of any wrongdoing – no apology, no contrition, no remorse – dismissal not ‘harsh, unjust or unreasonable’ – reinstatement impractical in any event – little confidence that applicant would act any differently in the future – application dismissed.

1. Ms Candice Dias had been employed by Commonwealth Securities Limited (the ‘respondent’) (operated by the Commonwealth Bank of Australia (the ‘Bank’ or the ‘Group’)) for more than 13 years. In her most recent role of Account Manager, Corporate Financial Services she worked in a Team based at Chatswood, New South Wales. Her employment was covered by the Commonwealth Bank Group Enterprise Agreement 2016 (the ‘Agreement’) and she was paid an annual salary of $73,100.00 at the relevant time. Ms Dias was dismissed for misconduct ‘being her persistent failure to follow reasonable directions of her employer, breaches of the Privacy Act 1988 (Cth) and failure to follow the respondent’s policies, framework and procedures’. The details of the allegations were set out in a letter terminating her employment on 13 November 2018, and the Bank provided her with four weeks’ pay in lieu of notice. This letter reads as follows:

‘I refer to the allegations of misconduct letter provided to you on 28 September 2018 and our meeting on 12 November 2018, at which the following people were present:

·        Yourself;

·        Sahar Radfar – Workplace Relations; and

·        Myself.

You were invited to bring a support person to the meeting but you chose not to.

During the meeting, you were advised that the Group had concluded its investigation into allegations set out in my letter dated 28 September 2018.

You were invited to respond to the allegations in writing and also make any further representations to the Bank as to why disciplinary action should not be taken against you, in the event the allegations were found to be substantiated.

As discussed, I have carefully considered your verbal and written responses dated 2 and 4 October 2018.

Refusal to follow direction

Candice, I have serious concerns about your persistent refusal to follow directions.

You were directed to attend training on three separate occasions (on 16, 17 and 22 August 2018). Irrespective of whether you thought the training was warranted or not, the request to attend was a reasonable management directive. Further, the training was not limited to the formal written warning issued on 31 July 2018. The purpose of the session was to cover:

·        How to navigate the Bank’s product’s (sic) & process Library iSource;

·        The Bank’s Term Deposit Policy & Procedure; and

·        How bank account authorities work.

You then failed to follow my direction to meet about your refusal to attend the training. Your email response to my calendar invite on 24 August 2018 confirmed that you would not meet with me. You advised that you wanted to discuss a separate issue relating to the events that led to the formal warning dated 31 July 2018 in writing first. I advised you that the purpose of the meeting was to discuss your failure to attend workplace training, however I was also able to discuss your concerns about your prior warning and your performance review during that meeting [as] you wished to do so.

On 26 August 2018 you again confirmed you would not meet with me and wanted all correspondence/discussions to be in writing. You did not advise me that you were unwell in your email on 26 August 2018, but advised that due to the short notice of the meeting, you will not be attending and will await correspondence/discussions in writing only.

The meeting request was a reasonable management directive, and you were provided with reasonable notice to attend the meeting. At no point did you request additional time to allow for you to have a support person present during the meeting.

Further, you failed to follow a reasonable direction given by Ian Manwaring to confirm you deleted the email you sent to your personal email account. That email contained customer information. Your response to Ian’s request was that you felt you were authorised by management to take the matter external and the customer needs to be informed that the matter will be taken external if not resolved internally. I’m disappointed with your response to this request.

Candice, I am concerned with your persistent failure to follow direction. Your conduct raises serious privacy concerns for the Group and an unacceptable level of risk.

Emailing client information to your personal email account

Candice, you were advised that you could seek independent advice in relation to the concerns you raised that were the subject of the Workplace Grievance Review. At no point were you given authorisation to email the documents to your personal email address. In your conversation with Anne Knight, it was confirmed that should you wish to seek legal advice, the Group could arrange for your legal representative to have access to the documents on site. This further confirms that you had no authority to email customer information to your personal email address for the purposes of an external review.

I have also been provided with your response to Ian’s request to delete the email. As discussed, you were never authorised to send customer information to your personal email address.

Conduct in escalating your grievance

Candice, this is a continuation of your failure to follow direction. You were directed by Ian to contact him before attending work at Darling Park office. You failed to follow that direction.

You were previously advised that the internal review process had been exhausted. My concern is with your conduct whilst you were on the premises and not that you sought to escalate your concerns to the CEO (which you are entitled to do).

Outcome

Candice, during our meeting you were advised that your conduct continues to expose the Group to an unacceptable level of risk as you are not willing to acknowledge your errors, and undertake appropriate training to ensure that you understand Group policies and procedures.

Further your conduct demonstrates that you continue to disregard:

1.       direction from management; and

2.       the Group’s policies, framework and procedures.

Given your pattern of behaviour and your failure to change to ensure you comply with Group processes and procedures, it has been found that your conduct has been unacceptable and in breach of:

1.       Our Commitments

…

2.       .Acceptable Use of Group Technology Policy

1.3      Unacceptable Use

·        Send Group information (including client sensitive information) without authorisation

As discussed with you during our meeting, as a consequence of your conduct, I have decided to terminate your employment with Commonwealth Securities Limited effective immediately. You will be paid 4 weeks’ salary in lieu of notice.

You will receive a separate letter regarding any final salary payment and your superannuation entitlements.

As discussed with you, we will also arrange for your personal items to be couriered to your address.’

1. The ‘Show Cause’ letter of 28 September 2018 at page 3 set out the 5 allegations as follows:

‘1.You refused to follow reasonable management directives from your Manager once Removed (MoR) to attend workplace training to ensure that you could source, navigate and understand policies and processes for the Group’s basic products and services. Specifically you have declined to attend the training on all of the following dates:

·        16 August 2018;

·        17 August 2018; and

·        22 August 2018.

2.On 24 August 2018 you refused to attend a meeting invitation from your Manager twice Removed (myself) to discuss the above conduct.

3.On or about 4 September 2018 at 2:16PM you emailed a document containing confidential information relating to Group customers to your personal email address (email address provided) without authority. The document contained the following information:

·        Individuals’ names who are beneficiaries of a Trust client

·        Name and CID of one client (a Trust); and

·        Trust Client address

4.On 18 September 2018 you filed to follow your MoR’s reasonable management directive to contact him before attending work at Darling Park office in the Sydney CBD.

5.You have unilaterally gone outside of the Group’s Workplace Grievance Review (WGR) process by attempting to escalate a grievance outside of the Group’s standard process and in circumstances where you were advised that the matter had been finalised.’

1. Relative to the reasons for dismissal, Ms Dias received a final written warning for misconduct on 30 July 2018 in respect to the following allegations found substantiated by the Bank:

‘It is alleged that on 16 July 2018 you provided customer information to an unauthorised party, specifically the customer’s brother, resulting in a customer complaint’.

1. I note the names, contact details and financial information of all the named customers of the Bank were subject to a confidentiality order and will be so treated in this decision. References to the confidential names will be identified as follows:

   ·the customer of the Bank whose information was sent to an unauthorised party - the Client;

   ·the brother of the Client who was contacted regarding the Client’s account - the Brother;

   ·the wife of the Client who made a complaint to the Dee Why Branch of the Bank - the Wife;

   ·the Trust Fund of the family of the Client - the Family Trust;

   ·the Superannuation Fund related to the family of the Client - the Family Super Account;

   ·the Group of Companies related to the family of the Client - the Family Group of Companies;

1. On 30 November 2018, Ms Dias (hereafter the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (Cth) (the ‘Act’) in which she seeks orders from the Fair Work Commission (the ‘Commission’) as follows:

‘1) Positive reference letter as this unfair dismissal has tarnished my career and reputation as a banker (since Dec 2000) for the last 18 years.

2) Re-instate my job and employer to stop discriminating, harassing and threatening with termination in the future by making up false allegations.

3) Compensation as per below:

a) Maternity leave application entitled for 3 months which was to commence on 14/12/2018
(HRD 579123)
b) Annual leave, Long service leave, sick leave due to unfair termination of employment. (entitlements missed out)
c) Superannuation (entitlements missed out)
d) Bonus last financial year which was unfair 
e) Bonus this financial year (entitlements missed out)
f) Stress, anxiety and hardship
g) Discrimination and unfairly treatment & harsh dismissal.  I had to face for the last 5 months, after I told the managers when I was pregnant.’

1. The applicant has pressed for the primary remedy of reinstatement, despite offers of settlement from the Bank, up to and including the last day of hearing, in excess of the maximum compensation available for an unfair dismissal under s 392 of the Act.

1. The matter was the subject of a Commission Conciliator conference on 25 January 2019. However, as there was no resolution of the application, it was referred to me on 4 February 2019 for hearing. In accordance with my usual practice, I listed the matter for a further in person conference on 26 February 2019. This conference also proved unsuccessful and directions were confirmed (later amended), and dates set for the hearing which subsequently became four days (29 March 2019, 15 and 16 April 2019, and 17 May 2019).

1. At the hearing, the applicant represented herself, and Mr M Seck of Counsel with Ms M Azzi (Lawyer, Ashurst) appeared for the Bank. Permission had been granted on 6 March 2019 for the respondent to be represented by a lawyer, pursuant to the considerations arising under s 596 of the Act. Various applications for Notices to Produce and Notices for Persons to Attend before the Commission and confidentiality orders were dealt with prior to the first hearing date on 29 March 2019.

THE EVIDENCE

1. The following persons provided statement and oral evidence in the proceedings:

   ·Ian Manwaring, Executive Manager, Sydney North region, and Manager Once Removed (MoR) of the applicant;

   ·Anne Knight, Head of Litigation;

   ·Temira Morgan (nee Grandi), Legal Counsel (formerly Workplace Relations Manager);

   ·Zlate ‘Zac’ Kuzmanoski, General Manager, Corporate Financial Services NSW/ACT and Manager Twice Removed (M2R) of the applicant;

   ·Anne-Marie Paterson, Executive Manager – People Resolutions; and

   ·Candice Dias, Account Manager and the applicant in these proceedings.

Mr Ian Manwaring

1. Mr Manwaring has been employed by the Bank for almost 40 years. For the last 20 years he has held various roles in the Chatswood office. He has worked in his present role for eight years. Mr Manwaring described the applicant’s role as an Account Manager. The role requires a close team involvement to support the ongoing needs of a portfolio of corporate banking clients across a range of the Group’s products, including delivering customer satisfaction and service. Mr Manwaring attached to his statement the applicant’s interim performance reviews for 1 July 2016 to 31 December 2016, her annual review of 1 July 2016 to 30 June 2017 and her interim review of 1 July 2017 to 31 December 2017. In this latest review, the applicant’s line manager, Mr Nicholas Low, marked her ‘risk’ as ‘not met’ as ‘risk requirements had not been followed diligently’. Mr Low reported:

‘Risk requirements have not been followed diligently. A number of Key Risk Issues have been identified including altering documents, breaching delegations and privacy issues. In addition, assurance results and data integrity across the portfolio needs to lift for the C04 team as a whole and a 60 day + expired facility was evidence on the portfolio .The Risk Modifier has not been met. New RE support and an open, proactive and honest approach to Risk Management is required to lift this metric. Additionally, the C04 team as a whole will need a focused effort on Assurance, Hindsight & KYC outcomes to support an increase in this rating particularly with a NTB focus on the portfolio going forward.

1. In November 2017, Mr Manwaring and Mr Low met the applicant about four incidents of concern to management. He recalled that the applicant did not accept that she had engaged in any wrongdoing.

1. Mr Manwaring said that as a result of the applicant requesting a review of her 1 July 2017 – 31 December 2017 interim review, he met her on two occasions in February 2018 and 12 March 2018. He agreed to change the values rating from ‘inconsistently demonstrated’ to ‘well demonstrated’ and amend some of the comments in the review.

1. Mr Manwaring set out four incidents of the applicant’s poor performance from her 1 July 2017 to 30 June 2018 review:

‘a)Challenges in following GLS & Asset Finance Processes, which related to the Applicant not following a simple procedure explained to her by Business Learning Services. Attached to this statement and marked “IM-8” is a copy of an email from Mr Jonathon Roel to Mr Low setting out the procedure that the Applicant did not follow.

b)Breach of broker privacy, which related to the Applicant sending an email to a client (when it should have been sent to the broker or the appropriate contact within the CBA Broker, Agency and Specialist team), which included private correspondence between the Bank and the broker, such as the broker’s % brokerage. Attached to this statement and marked “IM-9” is a copy of the email the Applicant sent.

c)Breaches of control delegations, which related to the Applicant assigning bank accounts that were overdrawn and required approval to herself and then approving them when she did not have authority to approve the overdrafts.

d)Modification of customer documentation, which related to her “whiting out” the words “Customer Copy” in the customer’s legal documentation to pass it off as the Bank’s copy.’

1. Despite a rating of ‘Achieved expectations’ it was recorded that:

‘The Applicant’s poor performance had an impact on the rest of the team members and put a strain on Mr Low having to manage the Applicant. The Applicant’s conduct has had a negative impact on team morale.’

1. On 17 July 2018, Mr Low reported to him that a complaint had been received about information provided by the applicant to an unauthorised party in respect to the Family Super Fund. This constituted a data breach requiring a RiskInSite report to the Bank’s Internal Risk Management Team. Information was sought from the applicant and a meeting was held with her that day in which she explained:

‘I called the phone number on the Commsee [Family Super Fund] and was told there was no one there by that name.

The only other person on my contact list for the relationship group is [the Brother] hence I contacted [the Brother] in regards to the [Family Super Fund] and [the Brother] asked me to email him the details’.

She relied on an email to her colleagues on 10 August 2017, which indicated she had spoken to the Client and that he would like to continue with the instruction to roll over the term deposit monthly, with discretionary rates.

1. Mr Manwaring said that when he investigated the matter he looked at the customer account databases for the said account. It listed the correct phone number of the Client, not the number of the unauthorised signatory (the Brother). The only listed authorised signatories for the Family Super Fund were the Client and his wife. Another cheque account linked to the Family Super Fund did not list the Brother either.

1. It was Mr Manwaring’s evidence that the Bank’s process for account contact is always limited to those who are authorised. This is to ensure confidential and sensitive client information is not disclosed to third parties, Mr Manwaring was concerned that this incident breached the Bank’s policies, including the ‘Our Commitments’ policy which provides:

‘a)         Uphold the guiding framework of our vision and values;

b)        Maintain confidentiality; and
c)        Understand and fulfil all aspects of your role.’

1. Around 19-20 July 2018, in a regular meeting between Mr Manwaring and Mr Kuzmanoski, Mr Manwaring mentioned the data breach and the applicant’s poor performance. Mr Kuzmanoski told him that he should obtain advice from the WRT. He was advised that if the conduct warranted a disciplinary process, such a process should be commenced.

1. On 26 July 2018, the applicant was invited to a meeting with a support person to discuss a breach of the Bank’s policies. Mr Manwaring and the applicant’s Team Leader, Mr Craig Young, met the applicant the next day and advised of the allegations of her having provided customer information to an unauthorised party. After listening to her response, it was decided to issue her with a formal warning; see: [3] above.

1. Mr Manwaring took notes of the meeting and attached them to his statement. Shortly after having sent the applicant the formal warning, he asked her to sign an ‘employee acknowledgement’. This was never done. On three occasions in August 2018, the applicant queried the warning. Mr Manwaring explained the reasons for the warning on 14 August 2018.

1. On 15 August 2018, Mr Manwaring emailed the applicant directing her to attend training. The email reads:

‘Candice,

Thank you for your further email here.

My concern here is ensure that you are able to source, navigate & understand our policies and processes for the Bank’s basic products & services, which is a fundamental expectation & accountability to perform in your role as an account manager.

I have also asked below and have not yet received your reply as to whether or not you are conversant with the Term Deposit instructions and understand that when providing information about a Term Deposit or taking instructions on a Term Deposit that this is always to & from parties in accordance with the Term Deposit Lodgement authority.

The links that I have provided below do in fact allow you to navigate to the opening & maintenance procedures for Superannuation Fund Term Deposit accounts.

Accordingly I am arranging a training timeslot for you tomorrow at 3.30 pm, with Craig & myself, to ensure your understanding of:

·        How we navigate the Bank’s Product & Process Library & iSource;

·        The Bank’s Term Deposit Policy & Procedure; and

·        How bank account authorities work.

I would appreciate if you could come prepared to confirm your understanding and to ask any questions that you may have. Please bring your laptop so we can navigate through Product & Process Library & iSource’.

1. The applicant ‘declined’ to attend the training. It was rescheduled for 17 August 2018. She again ‘declined’ to attend.

1. Mr Manwaring and Mr Low met the applicant on 13 August 2018 to discuss her performance which was rated ‘not meeting expectations’ and ‘inconsistently demonstrated’ (values). On 21 August 2018, Mr Manwaring emailed the applicant as follows:

‘Candice,

Thank you for your email.

We have on two occasions held detailed discussions with you on how client information was incorrectly provided by you to a third party. As you are aware this resulted in a complaint being made to the Bank.

For further clarity, around how the breach occurred, I have detailed below:

·        Term Deposit Investment details for [the Family Super Fund] were sent by email by yourself to [the Brother] on 16 July 2018. Refer attached.

·        [The Brother] is not an authorised signatory or an authorised party to receive information on this Term Deposit as per the Term Deposit New Account Lodgement Authority dated 5 March 2010 filed on the CommSee profile.

·        [The Wife] complained at the Commonwealth Bank’s Dee Why branch as to why her family superannuation fund investment details were provided to her brother-in-law [the Brother].

·        A Riskinsite was raised on 18 July 2018 to record this break down in bank procedure.

The directive by management to attend a training session to ensure your understanding of the Bank’s Term Deposit policy & procedures in particular Term Deposit Lodgement Authorities, is not considered unreasonable.

I have for a third time now rescheduled this training to 10 am Thursday 23rd August and would appreciate your attendance.

The session will cover:

·        How we navigate the Bank’s Produce & Process Library & iSource;

·        The Bank’s Term Deposit Policy & Procedure; and

·        How bank account authorities work.

I would appreciate if you could come prepared to confirm your understanding and to ask any questions that you may have. Please bring your laptop so we can navigate through Product & Process Library & iSource’.

1. The applicant declined to attend a third training session on 23 August 2018. It was the applicant’s position that she had referred the specific incident and the warning to HR Workplace Relations Team (‘WRT’) and would not attend any training until her complaint had been resolved. Mr Manwaring referred all his communications with the applicant to Ms Temira Morgan in the WRT.

1. Mr Manwaring said that late on 17 September 2018, the applicant came to him and said she would need to work in the Darling Park office because she was trying to arrange a meeting with someone about the warning. Mr Manwaring told her to let him or Mr Young know what she was doing. On 18 September 2018, Mr Kuzmanoski’s Executive Assistant phoned Mr Manwaring to say that the applicant had turned up at the Darling Park office and asked whether he knew about this. He said ‘no, she was going to let me know if she was coming in for the day’.

1. Mr Manwaring said that around 27 August 2018, he was advised that Mr Kuzmanoski had made a decision to remove the 16 July 2018 incident from the applicant’s performance review ending on 30 June 2018.

1. On 5 September 2018, Mr Manwaring was notified by Ms Talia Smith, Analyst, that the applicant had sent client information to her personal email address, including client names and account numbers in relation to the incident on 16 July 2018 and the subsequent warning she received. A data breach report was sent to the Bank’s Compliance Team, and on 17 September 2018, he directed the applicant to delete the email from her personal email address.

1. Mr Manwaring and Mr Young met the applicant that day to discuss the data breach. Mr Manwaring deposed to the following conversation:

‘Me:Client information is not to be sent to a personal email address. A Risk-in-site report has been established. This matter will need to be assessed further including whether or not the matter needs to be reported, as client sensitive information was included and we need to consider whether to inform the client.

Applicant:I only sent it to my phone and only I can see it. What else am I to do as I need to discuss my warning externally. I am getting nowhere from escalation internally and HR advised me I can go external.

Me:You need to seek the Bank’s consent to any material being taken external. Have you sent the information to any third party or has any third party seen the information?

Applicant:                   No

Me:Please provide written confirmation that you have deleted the email from your personal email account and that the information has not been on-forwarded to a third party.’

1. On 11 October 2018, Ms Smith determined that the data breach was not notifiable. She wrote:

‘Hi Ian and Temira,

Please find attached the final Breach Incident Notification Tool.

I have assessed the data breach as not notifiable on the basis that we will receive written confirmation from Candice that she has deleted the email from her server.

Individual beneficiary names and an account number of the superannuation fund is sensitive information. A mitigant is her intent to have only sent this information for keeping records. However, we will need to reassess notification if we cannot obtain written confirmation.

Please let me know when this can be obtained and if you foresee any problems.’

1. On 31 October 2018, the applicant explained her position as follows:

‘Hi Ian,

At [the] meeting with M2R Zac on 3rd September 2018 in regards to [the 31 July 2018] baseless warning, I was advised verbally to take the matter external by workplace grievance person Anne-Marie Paterson (recommended by HR) on 3rd Sep 2018 in the presence of M2R Zac at this meeting. At that time I had pointed out to M2R Zac and Anne-Marie Paterson that I cannot take the matter external as the baseless warning [of 31 July 2018] states this in the maintain confidentiality clause below:

Maintain confidentiality

To treat our customer’s and CBA’s information in confidence, respecting CBA and our stakeholders’ trust. You will not use this information for inappropriate purposes or personal gain, or allow unauthorised access to it.

You will only engage with regulators or the media, or make public statements about CBA, if required and authorised.

I was advised by Anne-Marie Paterson as per attached email on that day not to worry about the above clause as she would give me in writing on Monday 03/09/2018 that I can choose to seek independent legal advice or any external options available to me. I contacted her manager Anne Knight 04/09/18 who also confirmed in writing as attached to take the matter external as advised by Anne-Marie Paterson. In total I was authorised on 3 occasions verbally and in writing 2 times to take the matter external so I emailed the logged workplace grievance paperwork as authorised to myself to consider my options in dealing with the workplace grievance issue of the baseless warning 31July2018 which remains unresolved till date. As authorised by management to take this matter external the customer needs to be informed that the matter will be taken external if not resolved internally.’

Mr Manwaring expressed disappointment with this response and escalated the matter to Mr Kuzmanoski on 6 November 2018.

1. Mr Manwaring described why reinstatement of the applicant would be inappropriate:

‘61. Based on my interactions with the Applicant, I could not justify the Applicant returning to a customer facing role because it exposes the Bank to an unacceptable level of risk.

62. I also do not consider that the Applicant could be trusted to perform work that required any exercise of judgment or commercial acumen.

63. I no longer have any trust or confidence in the Applicant being able to follow simple Bank policies and procedures or being able to recognise and alert her line manager of any issues that require resolution rather than making erroneous assumptions.

64. Returning the Applicant to another role would also be inappropriate because the Applicant has not accepted any responsibility or accountability for the errors and breaches of procedures and policies that she has engaged in and therefore I could not be confident that she would be willing or able to follow procedures accurately.

65. It is not possible for us to know all possible data breaches or breaches of policy and procedure that the Applicant may have engaged in and I cannot be sure that she would not conduct herself in a similar manner in the future given her lack of insight into the error and lack of acknowledgment of any wrongdoing on her behalf.

66. The Applicant has also demonstrated a significant lack of knowledge of Bank procedure in the responses she has provided in an attempt to justify her errors and has completely failed to engage with us when we have sought to have her understand the proper procedure that should be followed.

67. The Applicant’s conduct in challenging management and not respecting due process within the organisation as well as refusing to attend meetings with the General Manager and refusing to attend meetings with the General Manager and refusing to attend training identified by her Manager once Removed are not acceptable and do not align with the Bank’s values.

68. The Applicant’s poor performance had an impact on the rest of the team members and put a strain on Mr Low having to manage the Applicant. The Applicant’s conduct has had a negative impact on team morale.’

Ms Anne Knight

1. At the relevant time, Ms Knight was Acting General Manager, Dispute Resolution and Employment Relations/Legal. Ms Paterson reported to her. Ms Knight received a phone call from the applicant on 28 August 2018 about her grievance. She had said:

‘9. On 28 August 2018, I received a telephone call from Ms Dias. She explained that she was ringing in relation to her Workplace Grievance. She said “I have received a baseless warning and am now being pushed to complete training”.

10. I recall that Ms Dias also specifically stated “my manager has lied to me and upper management about the circumstances of the warning that I received and I want this further investigated”.’

1. As she was unaware of the applicant’s grievance, she told her she would make inquiries and get back to her. The applicant emailed later that day advising she was attending a meeting with Ms Paterson and Mr Kuzmanoski.

1. Ms Knight was briefed by Ms Paterson on 4 September 2018 and was told that the applicant did not understand who was authorised to receive client information, and that she repeatedly refused to attend training to correct her misunderstanding of her obligations. Ms Knight reviewed all of the information and concluded that there was a proper basis for the warning, and in accordance with the Bank process, no further action would be taken. This was confirmed to the applicant in an email to her that day. Ms Knight also advised she could seek independent legal advice, but that was a matter for her.

1. Ms Knight received a call from the applicant the next day. She was agitated, emotional and not happy with the earlier response. She said:

‘So CBA is a place where a person cannot stand up and complain. I feel like I have been bullied’.

Ms Knight responded by saying that if this was the case, she could make a formal complaint in respect to who it is she claims has bullied her. She further advised she could seek independent legal advice and relevant documents would be provided to her lawyer, by arrangement.

1. Ms Knight was made aware on 27 September 2018 that the applicant had made a number of complaints to the Bank’s CEO, Mr Matt Comyn.

Ms Temira Morgan

1. Ms Temira Morgan has been with the Bank for five years and in her current role as Legal Counsel since November 2018. During the relevant period, she was a Workplace Relations Manager. Her role was to provide advice about processes, procedures, policies, contracts and risks across the Bank, including advice to managers on employee matters. Around 23 July 2018, Ms Morgan had been advised by Mr Manwaring of the applicant’s potential breach of customer privacy, and her other performance issues over the last 12 months, which had been handled with informally. That day, she sent Mr Manwaring an email of ‘talking points’ for a formal discussion with the applicant which took place on 27 July 2018. After that meeting, Mr Manwaring advised her he had decided to issue with applicant with a formal warning letter and sought her assistance in its drafting.

1. On 3 August 2018, Mr Manwaring confirmed to her that the warning had been issued. The applicant had not wished to sign the warning and said she did not wish to discuss the case in person and would prefer any discussion to be in writing.

1. Ms Morgan said Mr Manwaring informed her on 15 and 16 August 2018 that the applicant had repeatedly sought a written explanation for the warning, and refused to attend training. Mr Manwaring sought her help in replying to her.

1. On 22 August 2018, Mr Manwaring advised her and Mr Kuzmanoski that the applicant had cancelled another training session. She advised Mr Kuzmanoski to schedule a meeting to discuss her failure to follow reasonable directions. The meeting was scheduled for 27 August 2018 and rescheduled after the applicant called in sick that day.

1. On 28 August 2018, Ms Paterson advised her that the applicant had lodged a formal grievance in respect to the first written warning. Mr Kuzmanoski delayed the second formal meeting with the applicant. The grievance review was finalised on 4 September 2018 and she and Mr Kuzmanoski agreed a further meeting should be rescheduled to discuss outstanding concerns with the applicant’s behaviour. On 13 September 2018, the applicant was invited to a formal meeting on 19 September 2018.

1. On 18 September 2018 Ms Morgan received a call from Mr Simon Hinks (Business Unit Human Resources Partner) to advise that the applicant had shown up at the Darling Park office unbeknownst to the Bank, and was requesting to meet with the CEO, Mr Matt Comyn to discuss her first warning. When the applicant was told Mr Comyn was out of the office, she would not leave the office until someone spoke to her. She had a brief discussion with Mr Adam Bennett (Business and Private Banking Group Executive). Mr Hinks asked Ms Morgan to meet with the applicant, and she and Ms Sahar Radfar did so later that day. She recalled the applicant said she:

   ·believed that the First Written Warning was ‘baseless’;

   ·had not breached policy;

   ·had not been listened to; and

   ·had been advised that she could seek external guidance on her case, but had received a data breach as a result of sending emails externally.

1. Ms Morgan said the meeting lasted approximately two hours. At one point, Ms Radfar had to leave and was replaced by Mr Hinks. On a number of occasions the applicant raised her voice in the meeting. Ms Morgan said she told the applicant she could take documents externally for advice, but must redact any confidential customer and/or company information.

1. On 25 September 2018 Mr Kuzmanoski invited the applicant to a formal meeting to discuss the allegation in relation to her conduct. The same day the applicant emailed her seeking information about the Bank’s misconduct policy. The meeting was held on 2 October 2018. The applicant declined to bring a support person. During the meeting, Mr Kuzmanoski had told the applicant the meeting was to provide her with an appropriate opportunity to respond to serious allegations and the Bank was considering terminating her employment. He advised her to respond in writing by 4 October 2018. After the meeting the applicant emailed her and Mr Kuzmanoski requesting further documentation in order to respond. When Ms Morgan was appointed Legal Counsel, she had no further involvement in the matter.

Mr Zac Kuzmanoski

1. Mr Kuzmanoski commenced employment with the Bank in 2009 and has been in his current role since March 2017. His role includes leading a ~200-person front line banking team in the middle market which sits between the Institutional and Business Bank. He oversees seven Managers who run specific centres, including Mr Manwaring in the Chatswood centre. Account managers have portfolios of between 15-50 customers who are supported by the Relationship Executive.

1. Mr Kuzmanoski said he was advised by Mr Manwaring on 18 August 2018 that the applicant had twice refused to attend training. He recommended he try again. When the applicant refused again, he considered this as being disrespectful to the applicant’s manager which warranted his involvement. This led to him organising a meeting with her for 27 August 2018, which was rescheduled to 3 September 2018 when she called in sick. He had concluded that the applicant’s repeated failure to attend training demonstrated an unwillingness to acknowledge any responsibility, or address concerns with her performance. He was concerned that she would make other errors and he could not trust her to follow procedures, or to respect reasonable management directions. He was concerned as to her business acumen in being able to make sound judgments, based on what is right and wrong in dealing with customers. As to the meeting on 3 September 2018, he deposed to the following exchange:

‘Ms Dias:I’ve done nothing wrong because the account authority was not clear. I rang the number in the account authority and asked for “[incorrect pronunciation of the Client’s name]” and the person said “no [name of the Client] here”. I then checked the team excel spreadsheet which has customer contacts for particular sales groups and rang the contact person for the sales group, so I followed the process.

Me:The account name is pronounced “[name of the Client]” not “[incorrect pronunciation of the Client’s name]”. There are contact points for the whole sales group, which is a number of accounts by related persons or companies, but when you are speaking to someone about a particular account (here a term deposit), you can only speak to persons who are authorised for that particular account. You cannot make assumptions, if you are not sure, you need to check with Ian what the correct process to follow is.

Ms Dias:         What can Ian do if it’s not clear?

Me:                 That’s not your problem, your job is to elevate issues to your manager.

20. She then pulled out a Trust Deed and the following exchange took place:

Ms Dias:Because the brother-in-law that I contacted was a beneficiary of the Trust, it was appropriate to contact him.

Me:Only persons authorised on the account can be contacted. It is not a proper procedure to contact a beneficiary of a Trust and it appears to be a Trust that is not related to the entity that held the term deposit in any event.

21. After this, Ms Dias and I had the following exchange:

Ms Dias:I am concerned that this issue has been mentioned on my performance review when it occurred after the performance period. The incident was 16 July 2018 when the performance review period ends on 30 June 2018 and it has impacted my values rating.

Me:We can removed the comment referring to the incident on 16 July 2018, but your values rating remains the same due to other issues that are identified in the performance review.’

1. An email to the applicant later that day confirmed that the warning would stand, the comment in her performance review would be removed, and her grievance was resolved with no further action to be taken.

1. On 5 September 2018, Mr Kuzmanoski was informed that the applicant had forwarded client sensitive information to her personal email address.

1. On 16 September 2018, the applicant emailed Mr Mark Couter, Executive General Manager, Business and Corporate Banking complaining about the warning and stated he would reopen her case. The next day, he confirmed what the applicant had been told and that he would not be reopening her case.

1. Mr Kuzmanoski recalled the incident when the applicant turned up to see the CEO at the Darling Park office on 18 September 2018. He understood she was emotional, crying and had raised her voice when she had met Ms Morgan and Mr Hinks. Mr Kuzmanoski phoned her at 6:30pm and encouraged her to go home and the Bank would pay for a taxi.

1. Mr Kuzmanoski arranged to meet with the applicant on 27 September 2018 to discuss concerns with her conduct. She was unwell on 27 September 2018 and requested a copy of the Bank’s misconduct policy and full details of the allegations in writing. The meeting was rescheduled for 2 October 2018. Mr Kuzmanoski recorded the following conversation:

‘Applicant:The warning is baseless, I have not refused reasonable management direction because it was not group training it was individual training. I wasn’t sure if I could attend the meeting with you, so I didn’t respond to your calendar invite. Anne Marie Paterson and Anne Knight said I could get external advice about my warning, so I had to send the client details to myself to help me prepare. This is discrimination and unfair.

Mr Kuzmanoski:        Yes, the training is related to the warning, it is a reasonable management directive to attend this training. Just because HR have told you that you can seek external advice about the warning, this does not authorise you to send client information to your personal email account. This just shows your lack of knowledge of privacy requirements.’

1. On 4 October 2018 the applicant emailed a response to the allegations. Mr Kuzmanoski said he carefully considered the applicant’s responses and discussed the matter with Mr Couter and Mr Manwaring. He formed the view that if providing information of an account to an unauthorised person was not a sufficient basis to dismiss the applicant, it did warrant a formal warning. He formed the view that Mr Manwaring’s direction for her to attend training directly related to her core responsibilities was reasonable. He also considered her claim of illness on 27 August 2018 as a refusal to attend the meeting, because she had emailed him the day before and did not mention anything about feeling unwell.

1. Mr Kuzmanoski rejected the applicant’s explanation for sending customer information to her personal email; rather, as it demonstrated a lack of awareness of the Bank’s privacy procedures. He also did not accept she had management approval to attend the Darling Park office on 18 September 2018. She had failed to follow Mr Manwaring’s direction to inform him, if she intended to do so. Mr Kuzmanoski concluded that as this conduct demonstrated no insight into her conduct or the proper processes to follow, and her refusal to attend meetings or training, showed a lack of respect for Management and had breached the Bank’s policies. He was concerned that her lack of insight into proper processes would likely see her make further errors in the future. This posed a risk to the business. In the context of the recent Financial Services Royal Commission, the Bank must be vigilant to ensure customer service and privacy and be more alert to risks. Mr Kuzmanoski was also influenced by a recent report by the Australian Prudential Regulation Authority (‘APRA’) which stressed the need to balance the needs of stakeholders with community expectations. He came to the view that the applicant’s dismissal was justified.

1. On 8 October 2018, Mr Kuzmanoski offered the applicant paid leave until a General Protections application she had lodged was listed for conciliation before the Commission. On 7 November 2018, Mr Kuzmanoski sent an email request for the applicant to attend a meeting on 12 November 2018 to discuss her refusal to delete the email sent to her personal email address. The applicant challenged the basis of this allegation. On 11 November 2018, she sought to record the meeting, as she could not bring a support person. This was denied. Mr Kuzmanoski described the meeting on 12 November 2018 with Ms Radfar in attendance. It lasted for approximately half an hour. After the applicant explained her response to the five allegations, Mr Kuzmanoski said her responses and information had all been considered, and a decision had been made to terminate her employment. Mr Kuzmanoski said the applicant then opened up her laptop and it looked like she began sending emails to herself. He told her this was inappropriate, she should stop and return all Bank property.

1. Mr Kuzmanoski did not believe the applicant’s reinstatement would be appropriate. The applicant’s managers had informed him that her poor performance was letting the Team down, and others felt she was not pulling her weight. He believed the employment relationship had been broken and he considered her failure to accept any responsibility for her conduct, to be very worrying. Finally Mr Kuzmanoski said:

‘76. I personally do not trust Ms Dias, I do not believe she has the commercial acumen or judgment needed to operate effectively within the structures of the Bank.

77. I also think her refusal to attend meetings with management, her refusal to attend training targeted at assisting her to perform soundly and her responses to the allegations demonstrate that she has absolutely no insight into her wrongdoing and does not acknowledge any wrongdoing on her part. It also demonstrates a complete failure to understand simple Bank policies and procedures respecting customer privacy.

78. I cannot be confident Ms Dias will respect reasonable management directives in the future or follow proper Bank procedures. This exposes the Bank to an unacceptable level of risk, and it would therefore be wholly inappropriate to reinstate her.

79. In my view, Ms Dias’ conduct demonstrates that she does not share the values of the Bank and therefore it would be inappropriate to reinstate her to any position at the Bank.’

Anne-Marie Paterson

1. Prior to joining the Bank in January 2017, Ms Paterson was a practicing solicitor working in employment law. Her role at the Bank is to manage escalated workplace grievances nationally and internationally for the Group. After describing the Workplace Grievance Review Process (‘WGR Process’), Ms Paterson said she has an overview role when the grievance reaches Stage 3.

1. Ms Paterson became aware of the applicant’s grievance in August 2018, but determined at the time that it was appropriate to escalate the matter to Mr Kuzmanoski, and that he should determine the outcome. This is why she informed the applicant on 27 August 2018:

‘I do not propose to look further into your concerns given your M2R is willing to review the issues raised, being the course of action I would have undertaken as the EM People Resolutions.’

The applicant was unhappy with this response. Later that day, she had a phone conversation with the applicant in which she was ‘quite emotional’. She informed her that as Mr Kuzmanoski was her M2R, there would be no further appeal against his decision. She emailed this to her the next day and explained she was welcome to bring a support person to any meeting with Mr Kuzmanoski, but it was not the Group’s process for HR to attend in that capacity.

1. After the applicant advised her that she did not feel safe meeting Mr Kuzmanoski alone, Ms Paterson offered to attend as an independent party, but not as a support person for anyone. It was agreed with Mr Kuzmanoski that the applicant should be given a full opportunity to say whatever she needed to say to explain her position.

1. Ms Paterson attended the meeting on 3 September 2018. The applicant denied breaching any of the Bank’s policies or client privacy. She claimed she had authorisation to speak to the Client’s brother. The applicant had a large number of documents with her. Ms Paterson believed the documents supported her position, that the applicant had no authorisation to speak to the person she did and other documents were not relevant to the transaction.

1. At this point, Ms Paterson believed the applicant had no written authority to contact the customer’s relative, and she was not prepared to acknowledge or accept any accountability for her actions. Ms Paterson said the applicant became visibly worked up; her voice got louder and she proceeded to change topics, while insisting she had done nothing wrong. After about an hour, Ms Paterson said that she had not provided any evidence that she had received authority for her actions and as it appeared she had breached the Bank policy, there was no reason to withdraw the warning. Mr Kuzmanoski agreed.

1. After Ms Paterson raised the issue of the breach occurring in the post-performance review period (‘PFR’), Mr Kuzmanoski agreed to remove any reference to it in the current review period. Ms Paterson then said words to the effect of:

‘I can see that part of the issue is that you are not taking accountability. From our discussion today, it is clear to me you didn’t have the authority that the policy required. I wonder if things would have turned out differently if you acknowledged the issue and apologised. Taking accountability for a mistake is one of the things that factors into the response we take, and you might not have received a warning at all if you had acknowledged the position.

…

I agree with Zac’s decision and we won’t be taking any further action about your grievance. If you are not satisfied, you can get independent legal advice about what further options you might have about the warning. That is your prerogative. But I am satisfied you have had a full opportunity to put forward your version of events, and you had nothing to support the actions you undertook to contact a person not authorised on the account.’

1. Ms Paterson confirmed these outcomes in an email to the applicant later that day. Despite the matter being concluded, the applicant emailed Ms Knight who agreed to review the outcome in order to give the applicant an extra level of assurance her concerns had been fairly considered. After Ms Paterson briefed Ms Knight, the applicant was informed by her that there was a proper basis for the warning and in accordance with the WGR process, no further action would be taken. Despite her formal involvement ending, Ms Paterson continued to be copied into emails about the applicant’s communications with others about her ongoing complaints. She was aware the applicant had lodged a General Protections application with the Commission.

The applicant

1. The applicant commenced employment with the Bank in August 2004. She holds a degree in economics and a Diploma in Financial Planning. She has worked in various corporate and commercial teams in the Bank, and undertakes approximately 30 hours’ training each year to maintain her banking accreditation. At the time of her dismissal, the applicant worked in the CO4 Team which was responsible for managing the accounts of 20+ groups of companies. Mr Low joined the Team as Relationship Executive on 4 December 2017. The applicant claimed she had a meeting in mid-February 2018 with Mr Manwaring and Mr Low in regards to her Interim Review (1 July 2017 – 31 December 2017) and four ‘false’ allegations Mr Low had made against her. The applicant said Mr Manwaring instructed Mr Low to change her value rating from ‘inconsistently’ to ‘well demonstrated’. Mr Low responded by questioning the applicant being eligible for a share in the annual bonus for the CO4 Team at the end of the financial year.

1. The applicant said that on 16 July 2018, she contacted the phone number on the Family Super Fund file, as it appeared the standing instructions on the account had not been complied with. She said she looked through all the documents associated with the account. As there was no authority document, she called the number on the CommSee Family Super Fund page. The person who answered told her that there was no one there by the name she had rung. She then contacted the authorised contact in CommSee for the Family Group of Companies due to the inconsistencies in the CommSee. She sent an email to this person as requested by him.

1. The applicant said she attended the ‘1^st mechanical pre-decided’ meeting with Mr Manwaring and Mr Young on 27 July 2018. Mr Manwaring advised of a complaint from a customer about her contacting an unauthorised person on the account. Mr Manwaring said the Bank was looking at a potential breach by her, on the balance of probabilities. She had questioned this when there were no documents in CommSee as to the authorised person and she ‘went off’ other documents in the system related to the account. Further, it was not clear if the complainant was who she said she was. Mr Manwaring then said ‘I will be giving you a warning’. The applicant challenged the warning and said she had complied with the process when the documents are inconsistent with CommSee. She asked for an explanation, or for evidence to substantiate this warning. When Mr Manwaring said he put the matter in ‘RiskInSite’, the applicant requested a copy. He said he would let her know.

1. The applicant received the warning letter on 31 July 2018. She claimed Mr Manwaring said the warning was finalised and her Short Term Incentive (‘STI’) for the previous year would be reduced. The applicant asked how the incident was misconduct and why it was put in last year’s performance review (‘PFR’), when the incident occurred in the current year. She asked how she had acted unprofessionally. She recalled Mr Manwaring saying the matter was closed and he would be sending her for training. If she tried to discuss the matter after this, it would be considered ‘unprofessional’ and her services would be terminated. The applicant said she then sought a postponement of the training, as she would be contacting HR to dispute the warning. She requested a written explanation for the warning and why it was considered what she did, was wrong. Mr Manwaring replied ‘OK’.

1. On the same day as she attended a meeting about her annual performance review (13 August 2018), the applicant lodged two operational risk incidents alleging breaches by Mr Low. At the meeting, the applicant challenged the ‘baseless’ warning being put into her last year’s performance and why her values had changed from ‘well demonstrated’; see: [12] above. The applicant raised five incidents of Mr Low’s alleged breaches and asked whether they would be included in his PFR. Mr Manwaring replied that Mr Low’s performance was a matter for him to discuss with Mr Low.

1. The applicant said she followed the Workplace Grievance process and contacted HR on 17 August 2018, because she ‘realised Mr Manwaring was being unfair to me’. She believed she needed evidence and a written explanation as to why it was said she had made an error. On 21 August 2018, she received a written explanation from Mr Manwaring that ‘[the Brother] is not an authorised signatory or authorised party to receive information on this Term Deposit as per the Term Deposit New Account Lodgement Authority dated 5 March 2010 filed on the CommSee profile.’

1. On 24 August 2018, the applicant completed a workplace grievance issue statement with her evidence to enable HR to proceed with an impartial review. The same day, Mr Kuzmanoski invited her to attend a meeting on 27 August 2018 discuss training. He also agreed to discuss the warning and the annual PFR. The applicant expected Ms Paterson to attend the meeting, but as Ms Paterson did not work on Fridays, she was not made aware of the meeting until the morning of 27 August 2018 and could not attend. In any event, the applicant called in sick on 27 August 2018. However, she did speak to Ms Paterson that day.

1. On 28 August 2018, Ms Paterson advised the applicant to meet with Mr Kuzmanoski, as he was her M2R. Later that day she phoned Ms Knight (Ms Paterson’s supervisor) and said:

‘I explained to Anne Knight “I was ringing in relation to my workplace grievance ref: HRD-539094 I have been given a baseless warning and the documents in the system are incorrect but I have been accused of giving information to a third party. I wanted a neutral party to investigate the matter. The incident occurred 16 July after 30 June 2018 and yet it has been put in my previous [year’s] PFR ([1 July] 2017 to 30 [June 2018].) I had difficulty in even obtaining the relevant Risk InSite document in regards to the incident.”

Anne Knight said to me “I am not familiar with the grievance but would find out further details and come back to me after she understood more.”’

1. The applicant said she went to the ‘1^st staged and pre decided meeting’ on 3 September 2018 with Mr Kuzmanoski and Ms Paterson to prove that the Brother was the authorised person for the Family Group of Companies and there were inconsistencies in documents in the bank system (CommSee). She told Mr Kuzmanoski and Ms Paterson that where there are no authority documents, the policy is to contact the authorised contact person of the Company. Ms Paterson told her if there was no authority document, she should have asked her Manager. The applicant showed Ms Paterson a document she said Mr Manwaring claimed was an authority document. Mr Kuzmanoski and Ms Paterson disagreed. Mr Kuzmanoski confirmed the warning would remain, but the comments would be removed from the previous year’s PFR. However, the values rating would remain the same. The applicant protested that the only reason her PFR went down was because of the ‘baseless warning’. Ms Paterson said if she was unhappy with Mr Kuzmanoski’s decision, she ‘can take this matter externally’. Ms Paterson assured her not to worry about the confidentiality clause and she would send her an email to confirm that ‘you can take the matter external to seek independent legal advice’. The applicant said there was no discussion about training or future dates for training. On 4 August 2018, Ms Knight confirmed the outcomes of her grievance.

1. The applicant said she had always attended weekly group training and had even travelled in her own time to a two day training course in the Hunter Valley in September 2018.

1. On 16 September 2018, the applicant escalated her grievance to the Executive General Manager, Mr Mark Couter, as she believed it was inappropriate for Mr Kuzmanoski to deal with her matter and in any event, she had not received confirmation of what Mr Kuzmanoski had agreed to regarding her PFR. Mr Couter declined to intervene as the Bank was comfortable with the outcome. Her case would not be reviewed.

1. On 17 September 2018, the applicant was advised she was to receive a data breach for the grievance request she sent to herself, after gaining authorisation to do so. The applicant claimed she told Mr Manwaring she would be working from the Darling Park office the next day to arrange a meeting in regards to the unfair data breach. Mr Manwaring gave his ‘OK’ for her to do so.

1. On 18 September 2018, at around 9:30am, she attempted to contact the CEO, but was told he was overseas. She was put on to the Executive Team member, Mr Bennett, who she told of her grievances. She later told Mr Young that Mr Manwaring had approved her working from the Darling Park office that day.

1. While working on Level 9 in the Darling Park office that day, Ms Morgan came up to her, introduced herself and requested she come to the meeting room. Ms Radfar was there, and halfway through the meeting, Mr Hinks arrived. She told them why she wanted to meet the CEO. Ms Morgan advised her by email of arrangements she could take up if she wanted to take her matter externally:

‘Option 1: The Group will allow you to bring your support person on-site 1 hour prior to the meeting to provide you with the opportunity to brief your support person, and show any documents/material you wish to rely on. If you select this option please let me know and [I] can support in providing access to the building.

Option 2: All documents/material will need to be redacted, this will include any customer information and/or Group sensitive information. Once this has been redacted, the Group will allow you to take the documents off-site. These documents should not be sent via email.’

1. That day Mr Kuzmanoski phoned her to schedule a meeting the next day to discuss concerns with her conduct. She asked ‘what concerns’ he was referring to. He said they will be discussed tomorrow and that she could bring a support person. She said this was not enough notice.

1. On 27 September 2018, she requested a copy of the Bank’s misconduct policy and the allegations in writing. Ms Morgan replied there was no misconduct policy, but she detailed the process. Ms Morgan could not say when the meeting would be rescheduled. On 28 September 2018, she was requested to attend a meeting on 2 October 2018, but as the intervening period was a long weekend, she could not arrange a support person.

1. The applicant said that in the second ‘staged and pre-decided’ meeting on 2 October 2018 with Mr Kuzmanoski and Ms Morgan, Mr Kuzmanoski said that the allegations were serious and he would allow her to provide a verbal response. He gave her until 4 October 2018 to respond in writing. He added that he was considering terminating her employment if the allegations were substantiated.

1. The applicant replied that there were inconsistencies in the documents, and in accordance with procedure, she contacted the Brother, who is the authorised contact for the Family Group of Companies. Mr Kuzmanoski then asked Ms Morgan to read out the termination options, including maintaining privacy and confidentiality. She claimed the following conversation occurred in the meeting on 2 October 2018:

‘M2R Zac Kuzmanoski said “Temira could you please read out Candice’s Termination Options.” Ms Temira Grandi pulled out some printed A4 size documents from a folder/file and read from it for 5 minutes about maintaining privacy, confidentiality and my Obligations after my services are terminated.

M2R Zac Kuzmanoski read out a printed note of conclusion to terminate my services which to my recall stated “I was not following directions of management and group’s policies, procedures, Commitments etc….”

Then M2R Zac Kuzmanoski said “I have 2 options either you resign and we can talk about money or if you go for unfair dismissal you could only get a max of 6 months pay” (Doc ZK16)

I said “I am not prepared to resign. I need my job.”’

1. The applicant responded to the five allegations as follows:

‘1)All 3 trainings were related to the baseless warning misconduct of 31 July 2018. These were given to me on Thursday 16 August 2018, Friday 17 August 2018 and Wednesday 22 August 2018 one after another even after I told Ian Manwaring to postpone the meeting/trainings in regards to the 31/07/2018 baseless warning as I have contacted HR and need an explanation in writing in regards to the baseless warning to pursue my case with HR as he has been unfair to me by putting the 16 July 2018 incident in last year’s performance review and I did not have the option to discuss this after the training or my services will be terminated as the matter is finalised by him after the training has been completed. Ian Manwaring gave me the 1^st explanation on the 21 August 2018 in regards to the 31/07/2018.

2)I have never refused any meeting/trainings I only had to postpone the meeting as I was waiting for HR to attend the meeting as a neutral party. Workplace Grievance Anne-Marie Paterson re-scheduled the meeting to the 03/09/2018 to suit the date and time she could attend the meeting. 2^nd reason being I was not well from the 27/08/2018 till the 29/08/2018.

3)I had pointed out to the Maintain Confidentiality clause in the 31 [July 2018] warning letter in the meeting of 03/09/2018. Yourself, Anne-Marie Paterson and Anne Knight gave me authorisation to take my workplace grievance matter external verbally [and] in writing. All requests are sent to workplace grievance (HR) via email only.

4)I got verbal approval from Ian Manwaring on Monday 17 September at 6 PM when I was leaving work to work the next entire day from Darling Park Office. I had no other conversation with Ian Manwaring.

5)I went to meet the CEO as I was feeling discriminated since I became pregnant. No one was listening to me.’

1. Later that day and the next, the applicant sought Ms Morgan’s notes and her termination options. The applicant claimed Mr Low made further breaches of policy on 15 October 2018. On 5 October 2018, the applicant filed a General Protections application which was listed for conciliation on 22 October 2018 (the matter did not resolve). The applicant submitted a maternity leave request on 4 November 2018 to commence on 14 December 2018.

1. The applicant accepted that Mr Manwaring had requested she remove her workplace grievance from her personal email. On Wednesday 7 November 2018, the applicant was invited to a meeting scheduled for 12 November 2018 with Mr Kuzmanoski and Ms Radfar, to discuss the outcome of the allegations and a new allegation concerning Mr Manwaring’s request that she delete her grievance from her personal email. She claimed to have authorisation to do so when taking her matter externally and no third party had seen it.

1. On 11 November 2018, the applicant emailed Mr Kuzmanoski to request the meeting be recorded. She also objected to Ms Radfar being a support person, because she was involved in the matter. Both requests were refused. She responded to the five allegations as before; see: [2] above. When Mr Kuzmanoski asked about the General Protections conciliation, Ms Radfar said that the case was closed (the applicant referred to an email from the Chambers of Senior Deputy President Hamberger indicating that the conciliation had been unsuccessful and she could take her case to the Federal Circuit Court or the Federal Court of Australia).

1. Mr Kuzmanoski then said ‘I have decided to terminate your employment effective immediately’. After the applicant asked for an explanation as to the five allegations of misconduct when she had done nothing wrong, Mr Kuzmanoski replied ‘it will be in your dismissal letter tomorrow’.

1. The applicant claimed that at the end of the meeting, when she was gathering her personal notes and evidence, Ms Radfar tried to snatch the documents, but she managed to get them in her bag. Mr Kuzmanoski told Ms Radfar to call security; he had said ‘give me your laptop and phone’. The applicant pleaded for time to wrap up what she was working on, but she handed Mr Kuzmanoski her phone, laptop and swipe cards and security escorted her from the building.

Reply statement of Mr Manwaring

1. In a reply statement, Mr Manwaring:

(a)denied the comments attributed to him in the meeting with the applicant and Mr Low in mid-February 2018. The purpose of the meeting was to discuss the contents of the applicant’s PFR, which had ‘values’ as ‘inconsistently demonstrated’;

(b)said that in the November 2017 meeting, he had asked the applicant to think about whether she was happy in her role and whether another role might be more suitable for her;

(c)denied discussing bonuses or ratings in either of the above meetings. Bonuses are assessed on an individual, not a portfolio basis. Decisions about bonuses are not made in PFR discussions;

(d)said the purpose of the 27 July 2018 meeting with the applicant was to discuss issues relating to the applicant’s contact with the Brother and seek her response;

(e)denied the words attributed to him in the 31 July 2018 meeting. As at 31 July 2018, he had not considered the STI payments to staff and did so in the next month in a recommendation to Mr Kuzmanoski, Mr Couter and Mr Bennett;

(f)said the purpose of 31 July 2018 meeting was to give the applicant a warning in relation to her conduct and not to terminate her employment. In any event, he had no authority to do so and was not involved in the matter after it was referred to Mr Kuzmanoski on 5 November 2018;

(g)said that in the meeting with the applicant and Mr Low on 13 August 2018, neither he, nor Mr Low said words attributed to them by the applicant; and

(h)set out the exchange he had with the applicant on 17 September 2018 about working at the CBD office, as follows:

‘Me:                  “Do  you already have an appointment at DP 1?”

Ms Dias:         “No, it’s too late to organise.”

Me:                 “When are you going to organise it?”

Ms Dias:         “I will do it first thing in the morning”

Me:                 “Before you come in?”

Ms Dias:         “Yes.”

Me:“If you can arrange the meeting, you need to let me or Craig know before you head in, because I need to check with those in DP1 that there is a workstation for you. Please let me or Craig know in the morning before you head in if you want to work out of the city.”

At no time, did the applicant mention she was going to see the CEO.

1. Mr Manwaring commented on a number of documents the applicant included in her bundle she described ‘as her evidence’ (the numbering changed during the proceedings):

(1)Document 21(a) – Screenshot report of a meeting on 13 June 2016 between Mr Trevor Williams from the Bank and the Brother. Mr Manwaring called this a ‘call report which is entered into an online system’. He described its creation and purpose as follows:

‘b.     When a person enters a call report into the online system, and a customer or entity name is entered, the system generates a list of other entities that have a connection to that entity. This is what is shown in the “Clients/Account” box in attachment 21(a). The person should then select the specific entity which the call report relates to.

c.      Entities can be “linked” for a number of circumstances. For example, where directors in a company are “linked” to a profile in the system, the individual profiles of the directors become “linked” to the company’s profile. By way of another example, where one company has a joint borrowing arrangement with another company, those entities become “linked” in the system.

d.     The fact that persons or entities appear as “linked” does not mean that those persons or entities have the authority to act on behalf of the other “linked” persons or entities.’

(2)Document 21(b) - Computer generated list of imaged documents relating to a customer profile. He said:

‘This appears to be a computer-generated list of imaged documents relating to a customer profile. The list appears when a person clicks a “Documents” link on the customer’s profile. The “Documents” link is shown in Annexure IM-14 of my Previous Statement, on the top right hand corner of the box with the heading “Customer Information”.’

(3)Document 21(c) - List of customers. Mr Manwaring was unaware of this document prior to reviewing the applicant’s statement. He searched for the document on the shared G drive in the CO4 portfolio folder and noted the last date the document was edited was 19 January 2017.

(4)Document 21(f) – One page extract from Trust Deed for the Family Trust. Mr Manwaring said ‘As to attachment 21(f), the left hand side of the [document] appears to contain a list of beneficiaries and the right hand side of the document appears to contain a list of client names, which are “linked”. As stated at paragraph 7 above, entities can be “linked” for a number of reasons. This does not appear to be [an] authority document in respect to any of the “linked” entities. Annexed and marked “IM-4” is a full copy of the document containing the list of trustees listed in document 21(f), which I have accessed via the “Documents” link shown in IM-14 of my Previous Statement and as described in paragraph 9 of this statement above.”

Reply statement of Mr Kuzmanoski

1. Mr Kuzmanoski responded to the applicant’s statement as follows:

(1)He denied the words attributed to him in the meeting of 2 October 2018, concerning termination options and unfair dismissal. His only words were ‘We are happy to have a ‘without prejudice’ discussion with you.’

(2)He attached a copy of his speaking notes for the meeting with the applicant on 12 November 2018. Not all of the bullet points were covered, but the general matters were discussed. In respect to the end of the meeting, he made multiple requests to the applicant to hand over her phone, laptop and security pass. Initially, she did not respond. He observed her using both her phone and laptop, but he could not see what she was doing, as he was sitting opposite her. He did not see Ms Radfar attempting to snatch documents from the applicant or engage in any physical behaviour with her.

Mr Manwaring’s oral evidence

1. In cross examination, Mr Manwaring confirmed Mr Low joined the Team on 4 December 2017. Mr Manwaring agreed that both interim and full year performance reviews included weightings attributed to various KPIs. He confirmed that if a person comes across a risk issue, they must report it, and a failure to do so would be a breach. A report would be evaluated to determine, if it is reportable.

1. Mr Manwaring agreed that a Customer Verification Team had been established to assist the front line with great accuracy in knowing the customer. Mr Manwaring was not aware (until the day before) of any contact list or distinctions between new and old customers. If the person was unsure about the correct customer to contact, it should be referred to their manager. Ultimately, the contact person is the person for the legal entity on the Bank’s CommSee profile for superannuation funds.

1. Mr Manwaring denied that in the meeting on 31 July 2018, he had answered the applicant’s query ‘Why is this a misconduct?’ by stating ‘it’s because you’ve acted unprofessionally’. He agreed she had mentioned the effect this warning would have on her STIs, but did not mention anything about it having occurred in the year before. Mr Manwaring could not recall if she had asked any questions in the meeting. He agreed she wanted to contact HR on this issue, because the PFR was put in the previous year.

1. Mr Manwaring was asked about the Bank’s Workplace Grievance Review. It is available to all employees and has a process attached to it.

1. Mr Manwaring explained that in respect to how bonuses are calculated, each staff member within a corporate portfolio has a different set of KPIs, and bonuses are set at an individual level. Ms Dias queried that the Team performed at 107%, but she was denied the bonus. Mr Seck objected on the basis that the bonus issue is not relevant to the issues in these proceedings.

1. Mr Manwaring was asked about the applicant’s last performance review in 2017/18. He agreed that in the first half of the year, four allegations were raised with her. He had agreed to change her ‘values’ to ‘well demonstrated’. The warning letter came after the review period (31 July 2018). He acknowledged that she was entitled to take the warning letter as a grievance to HR. He denied saying that it would be ‘unprofessional’ to take the warning letter to HR after training. He agreed that the fact the applicant was directed to training did not prevent her from pursuing a grievance with HR.

1. The applicant said the first time she received the allegation in writing was on 21 August 2018 which was after the training dates of 16 and 17 August 2018. On 18 September 2018, she went to the Darling Park office. Mr Manwaring said that the day before, he had approached the applicant in the foyer, because she was in a distressed state and he offered her a taxi home. The applicant was upset at having a data breach recorded for something she believed she had approval for on 3 September 2018 (taking her complaint externally). Mr Manwaring insisted that she had not been given approval to go to the Darling Park office the next day. He only said if she intended to do so, he was to be advised, in order to make appropriate staffing arrangements. He was unsure why she needed to go to the Darling Park office. In fact, there had been three conversations that day; the first to deliver her short term variable remuneration and REM statement, the second to discuss the data breach, and the third at around 6:00pm when she advised she was leaving.

1. The applicant asked Mr Manwaring about his statement which stated:

‘The applicant's poor performance has impacted the rest of the team members and put a strain on Mr [Low] to manage the applicant. The applicant's conduct has had a negative impact on the team morale.’

She asked how this was consistent with her role in a Team which performed at 107%. Mr Manwaring explained this was a revenue performance measure on the portfolio. He said that targets can still be achieved, if not all members of the portfolio team have contributed. He agreed that Mr Low had only been in the Team for six months. Mr Manwaring did not believe the applicant was denied access to anything. He accepted it would be unfair if the impact of an event in the earlier review period, was put in the current period.

1. Ms Dias pressed Mr Manwaring about the failure to provide an explanation of the warning, other than what she received on 21 August 2018; by that time her grievance was with HR. Mr Manwaring said there were a number of other documents and during the meeting of 31 July 2018, the allegations against her were explained. She was afforded training on the issues on 16 and 17 August 2018, but declined to attend. There were two meetings before 14 August 2018 which dealt with her providing personal investment information to unauthorised third parties.

1. Mr Manwaring denied that Mr Low was upset (when he came on board on 4 December 2017) that the applicant was included in the Team results.

1. In re-examination, Mr Manwaring was taken to the complete document the applicant had taken him to before – “Business Customer On-boarding (BCO: Digitising organisation on-boarding for Domestic Proprietary Companies” - which referenced two pages only (pages 13 and 14). Mr Manwaring explained that the document indicates it only applies in South Australia, Western Australia and the Northern Territory. Nevertheless, Mr Manwaring said the reference to a contact person (for a self-managed super fund) at page two is the authorised representative of the organisation. It could be a director, shareholder or a person authorised by the parties to act on their behalf. Mr Manwaring further explained that the document related to a pilot for a new digitised on-boarding experience for domestic proprietary companies which commenced on 15 November 2018. He said there is no policy for NSW on the PPL (‘Policy and Process Library’) and this is a default policy for NSW, which had been trialled for over 12 months.

1. In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

1. Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

1. It goes without saying that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition or personal and family circumstances. In Bostik Australia Pty Ltd v Gorgevski (No 1) [1992] FCA 271; 36 FCR 20, the Federal Court of Australia Industrial Division said at [37]:

   ‘Harsh, unjust and unreasonable

   37. These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.’ [my emphasis]

s 387(b) - Whether the person was notified of that reason

1. The applicant was notified of the five allegations, ultimately the basis of the grounds for dismissal, in the ‘show cause’ letter of 28 September 2018; see [2] above. This is a neutral factor in this case.

s 387(c) - Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

1. The applicant responded to the allegations in a meeting with Mr Kuzmanoski and Ms Paterson on 2 October 2018. She was given a further opportunity to respond in writing on 4 October 2018. She attended another meeting with Mr Kuzmanoski and Ms Radfar on 12 November 2018 and invited to respond to the decision to terminate her employment. She received a confirmatory letter the next day.

1. In my view, the applicant was given more than a reasonable opportunity to respond to the allegations which she was aware of some six weeks before her dismissal. Despite the applicant’s prevarication and delaying tactics to attending meetings, there can be no reason to doubt that she knew exactly what was being alleged and had been provided with numerous opportunities to respond. I note that the trigger for the applicant’s later misconduct, being the warning she received on 16 July 2018, was four months before her dismissal and there is an abundance of email exchanges between the management, HR and the applicant in which she maintains she had done nothing wrong and demands to see the initial customer complaint and for explanations of the allegations in writing.

1. It is not clear to me why the applicant would have needed the formal customer complaint. The fact was there was a complaint made to the Dee Why Branch; it was specific, it was logged and investigated. The applicant does not dispute the basis of the complaint. If there is some assertion that the complaint was not made, or it was fabricated by Mr Low, there was not a skerrick of evidence to this effect. It is nonsense to suggest that the complaint was anything but a genuine complaint from a customer about the applicant’s contact with an unauthorised person to the customer’s account. This factor tells against a finding of unfairness.

s 387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

1. The applicant complained that she did not have a reasonable opportunity to organise a support person for the meeting with Mr Manwaring and Mr Kuzmanoski. She was particularly critical of being required to arrange for a support person over a weekend. It must be firstly observed that at all meetings, the applicant was invited to bring a support person. Not once did she do so. She believed 24 business hours was insufficient time. I disagree. The applicant would have had cause for complaint if she was called to meetings with a few hours’ notice.

1. It is irrelevant whether the notice given of meeting covers a weekend. Surely, if the applicant had a work colleague or friend she would be able to contact them after business hours; and in any event, a support person need not be a work colleague. It could be a friend or family member, where ready contact could be made. The applicant provided no evidence that she had attempted to contact anyone to act as her support person. I also note that for the four days of hearing the applicant had her husband in court as a support person. There is no apparent reason why he could not undertake that role during meetings with management.

1. The applicant also criticised Mr Kuzmanoski for having Ms Paterson and Ms Radfar as his support persons in the meetings on 2 October 2018 and 12 November 2018 respectively, as they were both involved in her grievance. Putting aside that the grievance had been closed in accordance with the WGR process, Management will ordinarily have a lead person (Mr Kuzmanoski) with one or more other Management persons, as a witness, notetaker, or a manager/s with direct knowledge of the matter to be discussed. In any event, the reference to support person in the policy is ordinarily defined as a support person for the employee. It does not usually infer a support person for Management. If I have one criticism in respect to the investigation process, albeit insignificant, I would recommend in future that the Bank not refer to other persons attending on behalf of management as support person/s. Their roles are not the same as a support person for an employee.

1. The applicant insisted that the Bank’s policy requiring flexibility with organising meetings was not applied in her case. As I said earlier at least 24 hours’ notice is a reasonable period for a disciplinary meeting and, of course, in any event, it was much longer in this case. Flexibility does not mean the employee can veto when a meeting is convened or insist on unreasonable conditions beforehand.

1. I am satisfied that this factor tells against a finding of unfairness.

s 387(e) - If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

1. As this was a case going to misconduct and not unsatisfactory performance (although it has all the features of the latter as well), this is not a relevant factor in this case.

ss 387(f) and (g) - The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

1. The Bank is a very large employer of some fifty thousand employees. It is trite that in managing such a large and disparate workforce, that the Bank has a detailed and comprehensive suite of policies and procedures relating to banking practices, dealing with customers, investigations, disciplinary procedures and ensuring customer confidentiality and privacy et al. This includes specially dedicated HR and IR Teams to deal with the panoply of employee-related issues. In this case, I am satisfied the Bank was meticulous in carefully applying its policies and procedures in respect to handling complaints, disciplining an employee and handling grievances in an open, transparent and fair way.

1. If anything, given the applicant’s rather unusual conduct and difficult behaviours and her consistent and persistent inquiries of managers, including senior managers, the Bank actually bent its own policies and procedures in order to go out of its way to demonstrate the applicant was treated appropriately, fairly and compassionately at all times. This factor tells against a finding of unfairness.

s 387(h) - Any other matters

1. There are a number of other matters I have taken into account in respect to my determination of this matter. Some fall against the applicant and others fall in favour.

1. Firstly, the applicant cannot assert that her performance prior to 16 July 2018 was exemplary and beyond reproach. In both the 2016/17 and 2017/18 periods when Mr Lochrin and Mr Low were her direct managers, they both record in her PRs that she needed to improve in the execution of basic tasks. Mr Low was plainly dissatisfied with her performance and identified a key area of improvement was in risk management. Unsurprisingly, the applicant responded by stating her reviews were incorrect. She would accept no criticism and not even accept suggestions for improvement. Again, unsurprisingly, her review documents record her own self assessments as ‘exceptional’, and ‘exceeding expectations’.

1. Secondly, simultaneously with the investigation of the applicant’s breach of policy and procedure, she then sought to ‘muddy the waters’ and deflect attention from her behaviour to that of Mr Low. She raised a number of his alleged breaches for reasons which are baffling, not to mention unsubstantiated and irrelevant. This was not a case about Mr Low and in any event, Mr Manwaring was well and truly on top of all the Team’s performance. I draw one conclusion that the applicant’s only reason for raising these matters rather than concentrating on her own failings, had more to do with spite and contempt for Mr Low’s criticisms of her in her performance reviews and her dismissiveness of him for only being in the Team for six months for which he would be receiving a higher bonus than her.

1. Thirdly, the Bank spent a considerable effort to encourage, coax and ultimately direct the applicant to attend training for the purpose of reviewing the Bank’s policies and procedures. This was not disciplinary action, least of all was it a threat to her future employment. Rather than embracing, or at least begrudgingly accepting that the Bank did not want to terminate her employment, she set out on a course for which the only result was always going to be dismissal.

How so often does the script unfold that what brings one down, is not the initial conduct (the 16 July 2018 incident), but rather it is the cover-up or the elaborate web of implausible explanations and excuses, which does so. This is a classic example of that scenario.

1. As a last resort, the applicant claimed she had been discriminated against on the grounds of her pregnancy. To suggest the Bank, with thousands of female employees, would discriminate against her for this reason is ludicrous. Moreover, there was not a jot of evidence to support this claim, not even evidence which the applicant might have concocted. I note that this was the claim in her General Protections application, which I understand she has not sought to pursue in the Courts. In my view, this was a last ditch attempt to deflect the reality of her misconduct for which the Bank’s process had properly and objectively dealt with.

1. I also accept the applicant had acted improperly in the meeting of 12 November 2018 by initially refusing to hand the Bank’s property over to Mr Kuzmanoski. It is reasonable to assume she was hastily transferring information to her personal email before she left the premises.  Finally, I have taken into account the applicant was paid four weeks’ notice at the time of her dismissal.

1. On the other hand, I have taken into account the applicant’s 13 year period of service, her family circumstances and poor prospects of alternative employment in the banking sector. I have earnestly grappled with the issue of whether these factors of ‘harshness’ outweigh the seriousness of the allegations of misconduct, when viewed collectively, and in the context of other ongoing performance issues over two years. Regrettably, I am satisfied that they do not. On one view, an employee’s long period of service will actually tell against a finding of ‘harshness’, where it might ordinarily be expected the employee would be very familiar with the Bank’s policies and procedures and where the employee has been properly trained. In short, a long serving employee would be expected to know better.

1. Even if these ‘harshness’ elements tipped the balance in favour of an unfairness finding, the applicant seeks a remedy nothing short of full reinstatement. Reinstatement, in my view, would be inappropriate in circumstances where she refuses to accept any responsibility at all for the incident of 16 July 2018, her belligerent and unacceptable behaviour and her obvious animus towards her supervisor, Mr Low. There was not a skerrick of remorse - no regret for her actions - no apology - no contrition.

1. A recent Full Bench decision of the Commission in Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 granted permission to appeal on two public interest grounds; one being:

‘(1) the appeal raises a significant issue of general application concerning the relevance to the evaluation of the appropriateness of reinstatement of a failure on the part of an unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in circumstances where there has been found to be a valid reason for dismissal based on the applicant’s misconduct’.

1. Later in the decision, the Full Bench said at [28]-[29]:

‘[28]      Mr Hatwell’s first ground of appeal concerns the Deputy President’s conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in respect of the misconduct which the Full Bench found constituted a valid reason for his dismissal was a matter which weighed determinatively against a finding that reinstatement was appropriate. It cannot in our view be reasonably contended that this was not a material consideration. In circumstances where Mr Hatwell had been found to engage in misconduct constituting a valid reason for his dismissal, but that there were mitigating factors which rendered the dismissal harsh, a critical issue was necessarily whether there were grounds for confidence that Mr Hatwell would, if reinstated, not engage in the same or similar conduct again having regard to the continuing presence of Mr Flens and other employees of the maintenance contractor at the Longford site. The role of an apology or an acknowledgment of wrongdoing in that context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v Jodie Goodall as follows:

“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”

[29]     The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’

1. Given my findings on the evidence, I could not be at all confident that the applicant would not act in a similar way, in like circumstances, or adopt a similarly mistaken approach to her role and responsibilities under the Bank’s policies and procedures. In short, it is my belief that she poses a serious legal, financial and reputational risk to the Bank, particularly given the sensitivity of the banking industry to its customers’ privacy and service delivery in the aftermath of the Hayne Financial Services Royal Commission. Her belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied the employer’s trust and confidence in her to comply with the Bank’s policies and procedures has been permanently destroyed.

1. Finally, s 381 of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

1. For the above reasons, I find that the applicant’s dismissal on 13 November 2018, was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. Her dismissal was not unfair. Accordingly, her application for an unfair dismissal remedy is dismissed. I so order. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both the applicant and the Commonwealth Bank.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.
Mr M Seck, of Counsel, and Ms M Azzi, Lawyer, Ashurst, for the respondent

Hearing details:

2019.

Sydney:

29 March, 15 April, 16 April, 17 May.

Printed by authority of the Commonwealth Government Printer

<PR711088>