John Patrick Bracken v OFX (OzForex Limited) - [2023] FWCFB 174

[2023] FWCFB 174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

John Patrick Bracken
v

OFX (OzForex Limited)

(C2023/1801)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT MASSON
COMMISSIONER BISSETT

BRISBANE, 22 SEPTEMBER 2023

Appeal against decision [2023] FWC 590 of Commissioner P Ryan at Sydney on 10 March 2023 in matter number U2021/4619.

Mr John Bracken (Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision of Commissioner P Ryan issued on 10 March 2023 (second Decision).[1] In the second Decision, the Commissioner found that the Appellant was not unfairly dismissed from his employment with OFX (OzForex Limited) (Respondent).

The appeal was listed for hearing of permission to appeal and the merits of the appeal on 7 June 2023. Directions were issued to the parties on 17 April 2023. The Appellant subsequently filed his submissions on 12 May 2023 and the Respondent on 2 June 2023. The Respondent was granted permission pursuant to s.596 of the FW Act to be represented by a lawyer.

Background

The application of the Appellant for a remedy for unfair dismissal had initially been decided by the Commissioner on 14 April 2022. In that decision,[2] the Commissioner found the Appellant had not been unfairly dismissed with the reasons for decision published confidentially on the same day (together, the first Decision).

The Appellant was dismissed from his employment for failing to comply with the Respondent’s policies and procedures as part of its anti-money laundering and counter-terrorism financing program (AML/CTF Program). The Respondent relied on seven ‘examples’ where the Appellant had failed to follow its policies and procedures.

In the first Decision, the Commissioner found:

“• That the [Appellant] was aware of, and understood the importance of, the Respondent’s policies and procedures and that he had attended or completed regular training;

· The Respondent’s requirement that the [Appellant] comply with those policies and procedures was lawful and reasonable;

· That Examples 1, 3, 4, 5, 6 and 7 identify a failure by the [Appellant] to comply with the Respondent’s policies and procedures, including the AML/CTF Program and the OFX Code of conduct;

· The [Appellant’s] conduct was wilful or deliberate behaviour inconsistent with a continuation of his contract of employment; and

· The Respondent’s reliance on clause 8.2(a) of the [Appellant’s] contract of employment – which deals with misconduct – was open to it based on the risk the [Appellant’s] conduct posed to its business, operations, affairs or reputation.”[3]

Having found a valid reason for dismissal and after consideration of the other factors in s.387 of the FW Act, the Commissioner determined the dismissal not to be harsh, unjust or unreasonable and dismissed the application.[4]

The Appellant appealed the first Decision. A differently constituted Full Bench granted permission to appeal[5] and, on determination of the appeal,[6] concluded:

“[7] It does not appear to us that the Commissioner considered…

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.

Continue reading John Patrick Bracken v OFX (OzForex Limited)

Details

AGLC: John Patrick Bracken v OFX (OzForex Limited) [2023] FWCFB 174
Case: [2023] FWCFB 174
Decision Date: 22 SEPTEMBER 2023

CaseChat Overview and Summary

In the case of John Patrick Bracken v OFX (OzForex Limited), the applicant, Mr. Bracken, appealed a decision by the Commissioner of the Fair Work Commission (FWC) that his dismissal was not unfair. The dismissal was due to Mr. Bracken's failure to comply with the Respondent’s anti-money laundering and counter-terrorism financing policies. The Commissioner initially found that there was a valid reason for the dismissal and that the dismissal was not harsh, unjust, or unreasonable. Mr. Bracken subsequently appealed this decision to a differently constituted Full Bench of the FWC, which allowed the appeal and remitted the matter back to the Commissioner for reconsideration.

The legal issues before the Court included whether the dismissal was justified and whether the process leading to the dismissal was fair. Specifically, Mr. Bracken argued that the dismissal was disproportionate to his actions, which he claimed were not serious enough to warrant summary dismissal. He also contended that the dismissal had a significant impact on his personal circumstances and that there were procedurally unfair actions taken by the employer. The Respondent argued that the findings related to specific examples of non-compliance with policies provided a firm basis for the dismissal and that the dismissal was procedurally fair.

In the rehearing, the Commissioner considered the additional submissions from both parties. He noted that Mr. Bracken’s arguments were largely aimed at challenging findings from the initial decision, which remained undisturbed on appeal. The Commissioner concluded that the findings related to specific examples of non-compliance provided a valid reason for dismissal. He found that the dismissal was procedurally fair and did not constitute an unfair treatment. The Commissioner ultimately upheld the finding that the dismissal was not unfair.

The final orders of the Court were that the appeal was dismissed, and the original decision of the Commissioner was affirmed. The Commissioner’s decision that Mr. Bracken was not unfairly dismissed was upheld, and the matter was concluded with no further relief granted to Mr. Bracken.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application of the Appellant for a remedy for unfair dismissal had initially been decided by the Commissioner on 14 April 2022. In that decision,[2] the Commissioner found the Appellant had not been unfairly dismissed with the reasons for decision published confidentially on the same day (together, the first Decision). The Appellant was dismissed from his employment for failing to comply with the Respondent’s policies and procedures as part of its anti-money laundering and counter-terrorism financing program (AML/CTF Program). The Respondent relied on seven ‘examples’ where the Appellant had failed to follow its policies and procedures. In the first Decision, the Commissioner found: Having found a valid reason for dismissal and after consideration of the other factors in s.387 of the FW Act, the Commissioner determined the dismissal not to be harsh, unjust or unreasonable and dismissed the application.[4] The Appellant appealed the first Decision. A differently constituted Full Bench granted permission to appeal[5] and, on determination of the appeal,[6] concluded: The matter was remitted to Commissioner P Ryan to hear and determine in accordance with the decision of the Full Bench. In rehearing the application the Commissioner provided the parties with an opportunity to make further oral submissions in relation to the re-determination of the matter. The Appellant and Respondent both took advantage of the opportunity provided. In the second Decision, the Commissioner provided a summary of the history of the matter. He then summarised the further submissions of the parties. The Commissioner noted that the Appellant’s submissions on how the matter should be re-determined were “intertwined with submissions seeking to challenge” findings in the first Decision which remained undisturbed on appeal.[7] In respect of the re-determination, the Appellant argued that the ‘punishment did not fit the crime’ and that an employer should be cautious in invoking summary dismissal. As he was not immediately suspended, the Appellant argued his conduct could not constitute serious misconduct justifying dismissal.[8] The Appellant submitted that “misconduct must involve something more than mere negligence, error of judgment or an innocent mistake”.[9] The Appellant also argued that there were “procedurally unfair actions”, and that the dismissal had a significant impact on his personal circumstances.[10] The Respondent argued that, given the decision of the Full Bench, the correct approach to the re-determination was to strike out paragraphs [110], [131]-135] and the reference to Example 6 in paragraph [140] of the confidential reasons and then reconsider the matter on the balance of the remaining findings. The Respondent submitted that the findings at [136]-[139] of the confidential reasons as they related to Examples 1, 3, 4, 5 and 7 provided a firm foundation to find a valid reason for dismissal and that the dismissal was procedurally fair.

Ratio Decidendi

Legal Principle Established

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