John Patrick Bracken v OFX (OzForex Limited)
[2023] FWC 590
•10 MARCH 2023
| [2023] FWC 590 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Patrick Bracken
v
OFX (OzForex Limited)
(U2021/4619)
| COMMISSIONER P RYAN | SYDNEY, 10 MARCH 2023 |
Application for an unfair dismissal remedy
Introduction and Background
On 28 May 2021, Mr John Bracken (Bracken/Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with OFX (OzForex Limited) (OFX/Respondent).
The Applicant was dismissed for failing to follow 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 Applicant failed to follow its policies and procedures.
On 14 April 2022, I issued a decision[1] dismissing the application. My reasons for dismissing the application were set out in a separate confidential decision (Confidential Reasons) issued to the parties on the same day.
In the Confidential Reasons, I found:
· That Applicant 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 Applicant comply with those policies and procedures was lawful and reasonable;
· That Examples 1, 3, 4, 5, 6 and 7 identify a failure by the Applicant to comply with the Respondent’s policies and procedures, including the AML/CTF Program and the OFX Code of conduct;
· The Applicant’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 Applicant’s contract of employment – which deals with misconduct – was open to it based on the risk the Applicant’s conduct posed to its business, operations, affairs or reputation.[2]
Mr Bracken subsequently lodged an appeal against the Merits Decision and Confidential Reasons.
On 9 June 2022, a Full Bench of the Commission issued a decision[3] granting Mr Bracken permission to appeal.
On 12 September 2022, the Full Bench of the Commission handed down its decision[4] on the merits of the appeal. In the Appeal Decision, the Full Bench concluded:
[8] …we consider that the Commissioner’s decision to dismiss Mr Bracken’s application should be quashed. We further consider that the more convenient course is to remit Mr Bracken’s application to the Commissioner for re-determination rather than to re-determine it ourselves. Mr Bracken’s case involved a significant degree of factual complexity, with the hearing before the Commissioner running for some five days. We consider that the Commissioner, having heard all of the evidence as it unfolded, is in the best position to finalise the matter in an efficient fashion.
[9] The remittal is on a strictly limited basis. Mr Bracken’s unfair dismissal application will be re-determined on the basis of the findings of fact contained in the Commissioner’s reasons except for the erroneous finding in paragraph [110] (and the consequential references to that finding in paragraphs [131]-[135]). Neither party will be entitled to adduce any further evidence, but the parties may make such further submissions as the Commissioner may choose to allow.[5]
The erroneous finding in paragraph [110] of the Confidential Reasons related to Example 6.
The Full Bench then made the following orders:
[10] We order as follows:
(1) The appeal is upheld.
(2) The decision of Commissioner P Ryan of 14 April 2022 ([2022] FWC 879) is quashed.
(3) The application in matter U2021/4619 is remitted to Commissioner P Ryan for re-determination in accordance with the above reasons for decision.
Upon the matter being remitted to my chambers, I held a case management and directions hearing with the parties during which I determined to allow the parties the opportunity to make further oral submissions in relation to the redetermination of the matter.
The matter was set down for hearing on 28 October 2022.
I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2) (a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr D Stewart.
Noting the background to the matter and limited scope of the remittal, this decision is to be read in conjunction with the Merits Decision, the Confidential Reasons, the Permission Decision and the Appeal Decision.
Confidentiality Orders
As stated in the Merits Decision[6], a confidentiality order was issued in this matter, as I was satisfied that the processes and procedures implemented by the Respondent as part of its AML/CTF Program could be compromised if they were widely known. This necessitated the reasons for the Merits Decision being published in a separate confidential decision.
During the hearing of the matter on remittal, I raised the issue of whether any further decision should be subject to a confidentiality order. After hearing from the parties, I reserved my decision on this point and advised the parties that I would determine that depending upon the extent to which any further decision traverses the details of the Respondent’s AML/CTF Program.[7]
As stated above, and as will be seen in the reasons that follow, this decision is to be read in conjunction with the Merits Decision and Confidential Reasons. Accordingly, I do not consider it necessary to make any confidentiality order in relation to this decision.
Summary of the Applicant’s Further Submissions
The Applicant’s further submissions as to how the matter should be redetermined were intertwined with submissions seeking to challenge, or explain away, the findings made in the Confidential Reasons which were undisturbed on appeal. In relation to the latter, and despite his submissions in the earlier proceedings that he has not breached the Respondent’s policies and procedures, the Applicant suggested that errors may have been made in relation to the customer identification findings.[8]
In relation to redetermining the matter, the Applicant submitted the ‘punishment did not fit the crime’, that is, the conduct did not justify summary dismissal.[9] In support of this submission, the Applicant cited the decisions of the Commission in John v Star City[10] and Wong v Taitung Australia Pty Ltd[11] and submitted that an employer should be cautious in invoking summary dismissal and that as the Respondent did not immediately suspend him it undermines its contention that his conduct constituted serious misconduct justifying summary dismissal.[12]
The Applicant further submitted that misconduct must involve something more than mere negligence, error of judgment or innocent mistake, referring to the decision of the Commission in Hilder v Sydney Trains[13] and the authorities cited therein.
In relation to procedural fairness, the Applicant submitted there were many ‘procedurally unfair actions’.[14]
The Applicant submitted the dismissal had a significant impact upon his personal circumstances, noting he did not receive notice or payment in lieu of notice and did not receive payment for accrued pro rata long service leave.[15]
Summary of the Respondent’s Further Submissions
The Respondent submitted that the correct approach to the redetermination of the matter was to strike out paragraphs [110], [131]-[135], and the reference to Example 6 in the third dot point in paragraph [140] of the Confidential Reasons and then reconsider the matter on the balance of the findings.[16]
The Respondent submitted that the findings set out in paragraphs [136]-[139] of the Confidential Reasons as they relate to Examples 1, 3, 4, 5, and 7, provide a firm foundation for a valid reason and that the Applicant’s dismissal was procedurally fair.[17]
The Respondent submitted that the significance of the legislative and regulatory regime cannot be overstated and the obligations the Respondent places on its employees are not unreasonable.[18] The Respondent submitted that the Applicant failed to comply with the Respondent’s policies and procedures on a number of occasions[19] and referred to the finding at paragraph [178] of the Confidential Reasons that “the Applicant has remained steadfast in his view that he has not breached the Respondent’s policies and procedures despite clear evidence to the contrary.”[20]
Dismissal and Preliminary Matters
My earlier findings in relation to whether there was a dismissal and the preliminary matters set out under s.396 of the FW Act were not disturbed on appeal.
For completeness and by way of summary, in the earlier proceedings, I found:
· The Applicant was dismissed;
· The application was made within the period required under s.394(2);
· The Applicant was protected from unfair dismissal;
· The Respondent is not a small business employer and therefore, the Small Business Fair Dismissal Code does not apply; and
· The dismissal was not a case of genuine redundancy.[21]
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[22]
I set out my consideration of each below.
s.387(a) – Valid for the dismissal and s.387(h) severity of misconduct
In order for there to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[23] and should not be “capricious, fanciful, spiteful or prejudiced.”[24] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[25]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[26] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[27]
Furthermore, and as a Full Bench of the Commission has said “[a] failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal.”[28]
The factual findings underpinning Examples 1, 3, 4, 5, and 7[29] were not disturbed on appeal.
I am satisfied that each of those examples constituted a breach of the Respondent’s policies and procedures, including the AML/CTF Program and OFX Code of Conduct.
Furthermore, I am satisfied that:
· The Respondent’s requirement that the Applicant comply with those policies and procedures was lawful and reasonable;
· The Applicant was aware of, and understood the importance of, the Respondent’s policies and procedures and that he had attended or completed regular training;
· The Applicant’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 Applicant’s contract of employment – which deals with misconduct – was open to it based on the risk the Applicant’s conduct posed to its business, operations, affairs or reputation.[30]
I do not accept the Applicant’s further submissions that the failure to comply with the Respondent’s policies and procedures were mere errors. As I found in the earlier proceedings:
“…the Applicant has remained steadfast in his view that he has not breached the Respondent’s policies and procedures despite clear evidence to the contrary. The Applicant’s lack of any acknowledgement of misconduct, remorse or contrition weighs against any finding of unfairness.”[31]
Having regard to the matters set out above, I am satisfied that Examples 1, 3, 4, 5 and 7, considered collectively, constituted a valid reason for dismissal and that summary dismissal was not a disproportionate response to the Applicant’s conduct. In arriving at this conclusion, I have had regard to, and adopt, the earlier findings I made at paragraphs [136]-[139] and [178] of the Confidential Reasons.
ss.387(b)-(g)
While I have had regard to the further submissions of the parties, I adopt my earlier findings in relation to each of the criteria set out in ss.387(b)-(g) of the FW Act.[32]
For completeness and by way of summary, in the earlier proceedings, I found:
· The Applicant was notified of the valid reason (s.387(b));[33]
· The Applicant was given an opportunity to respond (s.387(c));[34]
· The Respondent did not unreasonably refuse to allow the Applicant to have a support person present (s.387(d));[35]
· The dismissal did not relate to unsatisfactory performance (s.387(e));[36]
· That the size of the Respondent’s enterprise was a neutral consideration (s.387(f));[37] and
· That the Respondent did not lack human resource management specialists and expertise was a neutral consideration (s.387(g));[38]
s.387(h) – Other relevant matters
The Applicant submitted the dismissal had a significant impact upon his personal circumstances. The Applicant made similar submissions in the earlier proceedings that the dismissal was harsh because of the impact upon his economic and personal circumstances.[39]
I have given each of these matters careful consideration. However, I am not persuaded that the personal circumstances of the Applicant outweigh his conduct in failing to follow the Respondent’s policies and procedures forming part of its AML/CTF Program, particularly having regard to my finding at paragraph [178] of the Confidential Reasons.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[40]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.
In coming to this decision, I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
Conclusion
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr J Bracken, the Applicant.
Mr D Stewart of counsel for the Respondent.
Hearing details:
2022.
Sydney:
28 October.
[1] John Bracken v OFX (OzForex Limited)[2022] FWC 879 (Merits Decision).
[2] Confidential Reasons at [140].
[3] John Bracken v OzForex Limited[2022] FWCFB 95 (Permission Decision).
[4] John Patrick Bracken v OzForex Limited[2022] FWCFB 172 (Appeal Decision).
[5] Appeal Decision at [8]-[9].
[6] Merits Decision at [13]-[14].
[7] Transcript at PN24-PN25.
[8] Transcript at PN303-PN304.
[9] Transcript at PN47, PN54, PN110-114, PN149 and PN190-202.
[10] [2014] FWC 543.
[11] [2016] FWC 7982.
[12] Transcript at PN212-PN213; PN225-PN226.
[13] [2019] FWC 8412 at [93]-[95].
[14] Transcript at PN81.
[15] Transcript at PN82.
[16] Transcript at PN247, PN251.
[17] Transcript at PN252-260; PN266-267.
[18] Transcript at PN268.
[19] Transcript at PN269.
[20] Ibid.
[21] Confidential Reasons at [38]-[58].
[22] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[23] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[24] Ibid.
[25] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[26] Edwards v Justice Giudice [1999] FCA 1836, [7]; Sydney Trains v Hilder [2020] FWCFB 1373 at [26].
[27] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]; Sydney Trains v Hilder [2020] FWCFB 1373 at [26].
[28] B, C and D v Australian Postal Corporation t/a Australia Post[2013] FWCFB 6191, [36].
[29] Confidential Reasons at [91]-[94], [98]-[106], [111]-[113].
[30] Confidential Reasons at [140].
[31] Confidential Reasons at [178].
[32] Confidential Reasons at [142]-[170].
[33] Confidential Reasons at [142]-[144].
[34] Confidential Reasons at [145]-[163].
[35] Confidential Reasons at [164]-[167].
[36] Confidential Reasons at [168].
[37] Confidential Reasons at [169].
[38] Confidential Reasons at [170].
[39] Confidential Reasons at [175].
[40] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].
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