John Patrick Bracken v OFX (OzForex Limited)
[2022] FWC 879
| [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
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