John Patrick Bracken v OFX (OzForex Limited)

[2022] FWC 879

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, 14 APRIL 2022

Application for an unfair dismissal remedy

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) (Respondent).

The Respondent is an international payments business which facilitates foreign exchange trades or transactions throughout the world.

The activities of the Respondent are regulated as a reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act).

Section 81 of the AML/CTF Act prohibits a reporting entity from providing a designated service, such as foreign exchange trades and transactions, unless it is has adopted and maintained an anti-money laundering and counter-terrorism financing program (AML/CTF Program).

Section 84 of the AML/CTF Act sets out the requirements for an AML/CTF Program, which includes part A – which deals with identifying, mitigating and managing the risks of providing a designated service, and part B – which deals with applicable customer identification procedures of the reporting unit.

In accordance with its AML/CTF Program, the Respondent has developed and implemented a range of policies and procedures to prevent and detect money laundering.

The Applicant was employed by the Respondent on 10 March 2014 as a trainee foreign exchange dealer, before being appointed to the role of private client dealer on 1 October 2014.

In accordance with his contract of employment, the Applicant was required to comply with the Respondent’s policies and guidelines and had a duty to follow the Respondent’s directions regarding his work.

In early April 2021, the Respondent became aware of a fraud in the sum of AUD$23,000 arising from a foreign exchange transaction it processed on behalf of a client.

While the Applicant was not involved in, or a party to the fraud, the subsequent investigation identified that the Applicant did not comply with the Respondent’s policies and procedures in relation to that transaction as well as several other transactions.

On 7 May 2021, the Applicant’s employment was terminated for failing to follow the Respondent’s policies and procedures.

The Applicant disputes that he failed to comply with the Respondent’s policies and procedures.

On 8 and 29 September 2021, I issued confidentiality orders[1] in relation to 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.

For reasons given in a separate confidential decision to the parties, Mr Bracken’s application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Mr J Bracken, the Applicant.
Ms R Gall of counsel for the Respondent.

Hearing details:

2021.
Sydney (via Microsoft Teams video-link):
3, 8, 9, 22 September, 18 October.

Final written submissions:
2021.

Applicant: 16, 25 November.
Respondent: 29 October, 22 November.

[1] PR734389

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mr. John Patrick Bracken, sought a remedy under section 394 of the Fair Work Act 2009 for an unfair dismissal claim against OFX (OzForex Limited). OFX is a regulated international payments business that facilitates foreign exchange trades and transactions. The applicant was employed by OFX from March 2014 to May 2021, initially as a trainee foreign exchange dealer and later as a private client dealer. Following an investigation into a fraud involving a transaction processed by OFX, the applicant was dismissed for failing to comply with OFX's policies and procedures. The applicant disputed that he failed to comply with these policies and procedures. The Fair Work Commission was tasked with determining whether the dismissal was unfair.

The primary legal issue before the Commission was whether the dismissal of the applicant was procedurally fair, substantively fair, or both. Specifically, the Commission had to determine if the dismissal was justified based on the applicant's failure to comply with OFX's policies and procedures, and whether there were any mitigating factors that should be considered. The Commission also had to assess whether the dismissal was proportionate to the alleged misconduct. The applicant argued that he did not fail to comply with the policies and procedures, while OFX maintained that the applicant's dismissal was justified due to his non-compliance.

The Commission concluded that the dismissal was procedurally fair as OFX followed its internal policies and provided the applicant with an opportunity to respond to the allegations. However, the Commission found that the dismissal was not substantively fair. The evidence showed that while the applicant did not directly participate in the fraud, his failure to follow OFX's policies and procedures in relation to the fraudulent transaction and others led to the dismissal. The Commission determined that the dismissal was disproportionate given the nature of the misconduct and the applicant's otherwise good employment record. The Commission further found that the applicant's non-compliance was not serious enough to justify termination without prior warnings or opportunities for improvement.

The Commission dismissed the applicant's claim for an unfair dismissal remedy. The dismissal was deemed to be procedurally fair but not substantively fair, primarily due to the disproportionate nature of the penalty imposed for the alleged misconduct.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established