Hussein v Westpac Banking Corporation - [1995] IRCA 132

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1228 of 1994

BETWEEN:

ISMET HUSSEIN
Applicant

AND

WESTPAC BANKING CORPORATION
Respondent

REASONS FOR JUDGMENT

30 March 1995 Judicial Registrar Staindl

Introduction

On 8 June 1994 Ismet Hussein (“the applicant”) pleaded guilty to a charge of obtaining property by deception. The Broadmeadows Magistrates’ Court convicted him and sentenced him to a term of imprisonment of 3 months, such term to be suspended for a period of one year. He was also convicted of possessing an unregistered firearm (a “slug gun”) and of failing to store firearms and ammunition as required and was fined a total of $500.00 on these charges. These two firearms charges were of less importance in this case compared to the first charge. The charge of obtaining property by deception related to the applicant’s allegedly fraudulent use of an ANZ bank card. This had no direct connection with his employer.

As a result of the applicant’s conviction Westpac Banking Corporation (“the respondent”) commenced an investigation into the applicant’s behaviour. It warned him that one of the possible outcomes was the termination of his employment. In fact, the applicant’s employment was terminated on 21 July 1994 although whether or not it was a termination at the initiative of the employer is vigorously contested. The applicant then applied to this Court, alleging that the termination of his employment contravened the Industrial Relations Act 1988. The hearing of this matter lasted six days during which time the applicant appeared for himself and Mr Bleeby QC and Mr G. Smith appeared for the respondent.

Resignation Or Termination At The Initiative Of The Employer

The first issue to decide is whether or not this Court has jurisdiction, i.e., whether the applicant resigned or had his employment terminated by the respondent. A determination of this issue entails reference to the facts. The evidence demonstrates the following chronology in relation to this matter:-

8 June 1994

Hearing at Broadmeadows Magistrates’ Court.

28 June 1994

Interview between the applicant and Mr Scilini (a union representative) on the one hand and Mr Trevor McMahon (Westpac’s Manger, Loss Prevention and Control) and Mr Michael Butler (a senior investigator with Westpac) on the other hand.

11 July 1994

Meeting between the applicant and Mr Alan Harrison (Regional Manager) and Mr Wes Smith (Manager Personnel) at which the applicant was handed a letter detailing the allegations against him.

18 July 1994

Further meeting between the applicant and Mr Harrison and Mr Smith to enable the applicant to present a reply to the allegations.

21 July 1994

Meeting between the applicant and Mr Scilini and Mr Harrison and Mr Smith at which the applicant signed a hand written letter of resignation.

(a)8 June 1994: Hearing At Broadmeadows Magistrates Court

The applicant had been charged on summons with 25 counts of obtaining property by deception, 1 count of making a false document and 1 count of using a false document. These charges all concerned the operation of accounts in the name…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 132
Decision Date: 30 Mar 1995

CaseChat Overview and Summary

The Industrial Relations Court of Australia, Victoria District Registry, heard the case of Ismet Hussein v Westpac Banking Corporation, case number VI 1228 of 1994. Hussein, an employee of Westpac, was convicted of obtaining property by deception and possessing an unregistered firearm. Westpac terminated Hussein's employment following the conviction. Hussein argued that the termination contravened the Industrial Relations Act 1988. The court had to determine if the termination was valid and if it was harsh, unjust, or unreasonable.

The court first examined whether the termination was initiated by the employer or if Hussein had resigned. It concluded that the termination was at the employer's initiative, classifying it as a constructive dismissal. The court then assessed if there was a valid reason for termination, considering whether Hussein's criminal conduct had a relevant connection to his employment. The court found that Hussein's position as a migrant service officer required trust and honesty, and his criminal conduct breached these expectations.

Finally, the court evaluated if the termination was harsh, unjust, or unreasonable. It considered Hussein's long tenure and age, as well as the seriousness of his criminal offence. The court concluded that the termination was not harsh, unjust, or unreasonable, considering the importance of trust in Hussein's role.

The court dismissed Hussein's application, finding the termination of his employment by Westpac to be justified and not harsh, unjust, or unreasonable.

Orders