[2019] FWC 8050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonalyn Snell
v
Bendigo and Adelaide Bank Limited
(U2019/4952)

COMMISSIONER GREGORY

MELBOURNE, 18 DECEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] Ms Jonalyn Snell was first employed by Bendigo & Adelaide Bank Ltd (the Bank) on 31 August 2015 as a Customer Relationship Officer and was later promoted to the position of Senior Customer Service Officer. However, she was dismissed from her employment with immediate effect on 11 April 2019 as a result of conduct considered to constitute “internal fraud” under the Bank’s Financial Crimes Policy. She subsequently lodged an unfair dismissal application and this decision deals with that application.

[2] Mr G. Lake of Counsel appeared on behalf of Ms Snell. Mr A. Pollock of Counsel appeared on behalf of the Bank. Both were given permission to appear under s.596(2)(a) of the Fair Work Act 2009 (Cth) (the Act) as the matter involved a degree of complexity and their involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[3] Section 385 of theActprovides that a person has been unfairly dismissed if the Fair Work Commission (the Commission) is satisfied “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.” 1

[4] The Commission is therefore now required to determine whether Ms Snell’s dismissal was “harsh, unjust or unreasonable” taking into account the matters set out in s.387.

The Applicant’s Evidence and Submissions

Ms Jonalyn Snell

[5] Ms Snell has worked in the banking industry for more than 15 years. In August 2015 she commenced employment with the Bendigo & Adelaide Bank Ltd in the role of Customer Relationship Officer at the Cheltenham branch. The appointment was for a fixed term of 12 months. In February 2016 she was relocated to the Beaumaris branch, and shortly after offered a permanent position. In April 2018 she transferred to the Dingley branch as a Senior Customer Service Officer. The Branch was closer to her home and better suited her work and family arrangements. In February 2019 she moved to a part-time position, involving four days each week. She was not subject to any disciplinary action in the time she was employed and considers that she generally performed her role to an exemplary standard.

[6] In February 2019 a new customer spoke to Ms Snell about opening two new business accounts. The customer returned a week later and confirmed this arrangement. Ms Snell provided her with an application form to complete and sign as part of the standard procedure for opening business accounts. The application form was then reviewed, before being sent online to the Accounts Opening Team to be acted on. Ms Snell then received confirmation that the application form had been accepted and she telephoned the customer to confirm this.

[7] A few days later the customer contacted Ms Snell again and asked why she could only access one business account online. Ms Snell then reviewed the application form and realised she had not included details of the second account and, as a result, it had not been opened. She immediately contacted the Bank’s iSupport team and asked whether she could amend and resubmit the first application form without requiring the customer to attend the Branch again. She did so because she had not experienced this situation before and wanted to confirm what was appropriate in the circumstances before taking further action. She accepted that with every new account it was necessary to submit a new application form signed by the customer, but in this case the customer had already signed one application form, and Ms Snell wanted clarification about how to deal with the issue concerning the second account. There was also nothing in the iCentral information that provided any guidance.

[8] Ms Snell could not recall who she spoke to at iSupport but does recall being told words to the effect of “…you can submit it but there are no guarantees that it will be accepted. See how you go?” 2 On the basis of this suggestion she added the second account details to the first application form and then resubmitted it, but at no time did she forge or substitute the customer’s signature. However, the Account Opening Team subsequently rejected the amended application form and Ms Snell was told she would need to have the customer complete and sign a new application form in order for the second account to be opened. She subsequently arranged for this to occur.

[9] In March 2019 the Dingley branch was audited by Mr Grant O’Donnell, the Regional Compliance Manager, and on 10 April 2019 Ms Snell was asked to attend a meeting at the Branch with Mr O’Donnell and Ms Mili Thurgood, People Operations Manager, who is based at the Bank’s Head Office. She was then told that she would be required to attend a formal meeting on the following day at Head Office and was asked to hand over her keys and name tag. No further elaboration was provided about the purpose of the meeting, other than that it related to a business account, and Ms Snell was unaware at this stage about what was involved. She was also given a letter by Ms Thurgood entitled Notification of a formal meeting 3. She was then directed to collect her belongings and leave the premises immediately and was walked out of the Branch by Ms Thurgood in front of the staff and customers who were present at the time. Ms Snell stated that: “…This whole incident was highly distressing, unnecessary and humiliating for me.4”

[10] When she subsequently read the letter given to her by Ms Thurgood it indicated that Mr Victor Meagher, a Senior Internal Investigator, Financial Crimes with the Bank, would also be attending the meeting on the next day, and this added to her confusion and anxiety about what was involved. The letter indicated that the purpose of the meeting was to: “…Discuss the potential production of a false document (account opening and substitution of pages including customer signature page) 5.” However, Ms Snell had no idea at this point about the precise nature of what was involved.

[11] Mr Meagher opened the meeting on the following day and indicated that it was to be recorded. He had a copy of the first application form and asked Ms Snell whether she was up to date with the online compliance training modules. He concluded his questioning after about forty minutes, during which time Ms Snell emphasised that she had no intention at any time of breaching the Bank’s policies or engaging in fraudulent behaviour. She also denied any suggestion that she was deliberately evasive during the interview, however, she was very upset and emotional at the time, and this caused her to be confused and uncertain about what was being put to her. She was then asked to leave the meeting and during this time received a phone call from Mr Meagher asking whether he could have a copy of the second application form. She was then asked to rejoin the meeting.

[12] She was then told by Ms Thurgood that opening the second business account in the way that she did was a serious policy breach and her employment was to be terminated with immediate effect. She did not specify which policy had been breached or why this warranted her employment being terminated. She was also told that her name would be immediately registered on the “…unsuitable employee alert database 6” for the next five years. Ms Snell understood that this database is accessible by all authorised deposit taking institutions. She was also to receive four weeks’ salary in lieu of notice and was asked to return all Bank property and uniforms. She was shocked and upset at the time by what she had been told and, as a consequence, was not able to adequately respond. She also considered that she had not been provided with a proper opportunity to respond to the allegations put to her during the meeting and was not told whether an investigation had been conducted into what had occurred. She subsequently received a termination letter from Ms Thurgood dated 12 April 2019. It was delivered to her home by post on 24 April 2019.

[13] The letter stated as follows under the heading:

Your Employment with Bendigo and Adelaide Bank Limited (the Bank):

“I refer to the formal meeting held with you on Thursday 11 April 2019 at the Docklands Office with Victor Meagher, Senior Internal Investigator and myself. The purpose of this meeting was to discuss concerns that the Bank had with relation to the production of a false document that you had completed for a Bank customer. You were given the opportunity to have a support person present with you at this meeting which you choose to do so.

At the abovementioned formal meeting, you were given the opportunity to discuss the falsification of an account opening application for a Bank customer. In this meeting you advised that the customer had requested to open two accounts. In this meeting you freely admitted that despite your knowledge of the current policies and procedures regarding account opening and the fact that you had completed the online training module “Fraud Awareness” (November 2018) which explicitly dealt with the Bank’s requirements in relation to obtaining original documentation, you still proceeded to make a copy of this customer’s Account opening form, including the signature page to submit as a second Application Form. You further confirmed that you received and read the previous communications from our Executive team which again outlined that actions that constitute fraud include forging a customer signature, cutting and pasting a customer signature, and/or substituting a page signed by the customer into another document. “This applies to all staff not just those that are new”. In the previous week you had completed the Operational Excellence & Integrity training conducted in your branch on the 1 April 2019, and signed the attendance form.

In this meeting you acknowledged that acted of your own volition in respect to the production of the false document and that you are not coerced into taking this action. You did however raise that you are not aware of the serious nature or consequences of your actions, despite the fact that this had been explicitly covered in the recent compliance training and numerous communications that you received.

Your knowledge and actions in the production of the falsified application for a Bank customer is considered to be a serious breach of the Bank’s policies, procedures and Code of Conduct, including the Corporate Values.

Following consideration of the issues, the Bank considers this conduct amounts to serious and wilful misconduct justifying summary dismissal. I confirm my previous verbal advice to you that the summary dismissal of your employment with the Bank was effective Thursday 11 April 2019.

However, the Bank has taken into account your personal circumstances, and has determined that your dismissal should be on notice. Payment will be made in lieu of your entitlements to four (4) weeks of notice, such that your employment will end immediately.

I take this opportunity to remind you of your ongoing contractual and common law obligations not to use or disclose any confidential information you have accessed or obtained during your employment with the Bank.

I wish you well with your future endeavours.” 7

[14] Ms Snell has suffered significant financial loss as a consequence of her employment being terminated and has been unable to find other employment since that time. She has also experienced what she describes as significant emotional and mental distress as a consequence and considers that she was humiliated in front of her colleagues by the way she was treated on her last day at the Branch. She has also suffered significant reputational damage and loss of future employment prospects, particularly as her name is now listed on the unsuitable employment alert database.

[15] She agreed in cross-examination that it is important for a customer to personally sign the application form when opening an account and to thereby commit to the Declaration contained on the form. She also indicated that she was familiar with the Bank’s Financial Crimes Policy, although she was not necessarily aware of all of the detail involved.

[16] Ms Snell also acknowledged that she understood what the correct process was in regard to opening a customer account, and when she discovered the second account had not been opened her immediate reaction was that the customer would need to come in and sign a new application. She also agreed that she was told on three occasions by the iSupport team member that she spoke to that she could not amend the application form in the way she proposed, but denied that she kept pressing to get the outcome that she wanted.

[17] She also denied she had not indicated in the interview that she had altered a signed customer document and photocopied it because she knew this was a breach of policy. She had instead tried to recall exactly what occurred, but this was difficult because she was upset and confused at the time, including about which application was being referred to. She also denied that she was pressing iSupport in order to get confirmation that she could act in a fraudulent way, and indicated instead that she was seeking clarification from the relevant authority, who she regularly contacted when she needed clarification about what was required.

The Applicant’s Submissions

[18] Ms Snell submits that her dismissal was harsh and unjust on several grounds. It was harsh due to the economic and personal consequences resulting from her dismissal. This situation was compounded by the fact that her prospects of securing suitable alternative employment have been significantly diminished due to her name being placed on the unsuitable employee alert database. The outcome was also disproportionate, and a warning or the provision of coaching, or possibly even a demotion, would have been a more appropriate response. The conduct was also not sufficient to constitute serious misconduct, warranting summary dismissal, as it was neither wilful nor deliberate.

[19] It was also unjust because she was not afforded procedural fairness. The Bank had not carried out a proper investigation into what occurred or provided clear details about the allegations made about her. She was also denied an adequate opportunity to respond, given that she was not told about what the allegations involved prior to the meeting on 11 April 2019. There was also no valid reason for her dismissal in the sense that it was sound, defensible or well founded, and it could not be justified based on an objective analysis of the relevant facts.

[20] She makes reference to the following sequence of events in this context. She first became aware that there was a problem when the customer enquired as to why she could not open the second account. At this point Ms Snell checked the application form that had been submitted and noted that she had failed to include the details of the second account. She then consulted iCentral for advice about what to do, but there was nothing in that information that made clear what was required in such circumstances.

[21] She then contacted iSupport and her line of questioning during that telephone conversation makes clear that she was endeavouring to ascertain whether it was possible to avoid having the customer come in and complete a new form. The team member then confirmed with the Account Opening Team that the customer would be required to sign another application form, however, after a further discussion she then provided another option for Ms Snell to consider. The members of the iSupport team are authorised to provide guidance to the Bank’s employees, and whether or not it was appropriate for the team member to make the suggestion that she did the Bank should not be allowed to rely on that “kind of entrapment” as the basis for its decision to terminate Ms Snell.

[22] It was instead entirely appropriate for Ms Snell to rely on the advice she received from iSupport, and she has consistently stated that she would not have submitted the second application form if it had not been suggested by iSupport that she might try and do so. She had photocopied the original application form, crossed out the original account details, and then added in the details of the second account before submitting the form. At no stage did she seek to hide the fact that this was what occurred.

[23] Ms Snell was informed by the Accounts Opening team on 6 March 2019 that the application had been rejected. She continues to submit that at no time was there any intention on her part to breach the Bank’s policies and procedures, and that is an essential requirement if her conduct is to be considered to involve serious misconduct. She had instead relied on the Bank’s procedures, and followed those procedures, but was led astray as a consequence.

[24] Ms Snell also submits that the process involved in carrying out her dismissal was harsh. She was informed about the meeting that was to take place on the next day in a manner that was needlessly humiliating and distressing. There was also a complete lack of information or prior warning about the matters going to be discussed. This was against the Bank’s own policy. In the interview on the next day Ms Snell had no idea that it had anything to do with the particular account concerning the customer until ten minutes after the interview had commenced. She was also in tears and highly emotional throughout the meeting, as the recording makes clear. The Bank then decided what action was to be taken immediately, despite the fact that over a month had passed between the circumstances being brought to the attention of the Financial Crimes team and the meeting taking place. This situation was compounded by the fact that the final decision maker was not actually present in the meeting and was not aware of the details about the phone call to the iSupport team member.

[25] Her submissions also make reference to the decisions in Hemmingson v Note Printing Australia Limited 8 and O’Brian v MSS Security Pty Ltd. 9It is submitted that they stand for the proposition that a one-off error of judgement, or an act of carelessness, is not sufficient to constitute a valid reason for dismissal, even in circumstances involving zero tolerance.

[26] In addition, there had never been any issues raised in regard to her capacity or conduct during the time she was employed, and she was never told that submitting an incorrect or invalid application form could result in disciplinary action, or her employment being terminated. She also acted in accordance with the direction she received from the iSupport team, and if the Bank had genuine concerns about her conduct it would not have waited for a month after discovering the issue to deal with it. As indicated, she acknowledged that the circumstances might have provided a valid reason for her to have been given a warning, but they did not warrant anything more significant.

[27] She was also not informed of the reason for her dismissal until the final meeting on 11 April 2019 by which time the decision to dismiss her had already been made despite her not being aware that this was the case. She had also not been provided with copies of the policy documents and the Code of Conduct, which she had allegedly breached, and which purported to provide the grounds for her dismissal. She was accordingly denied a proper opportunity to respond, and was instead simply told about what was involved, and then informed that it had been decided that her employment was to be terminated.

[28] Ms Snell submits that she should instead have been provided with sufficient opportunity to respond by the Bank being transparent and informing her in advance about what was to be is discussed at the meeting on 11 April 2019, including by providing her with details about the allegations, including the relevant policy documents and the Code of Conduct.

[29] She also submits that the Commission should have regard to the impact of the dismissal on her personal and economic situation, and the fact that she had up to the time of her dismissal a successful and unblemished employment record. The consequences for her have also been magnified by the Bank placing her name on the unsuitable employee alert database which has dramatically impacted on her ability to obtain further employment.

[30] Ms Snell continues to submit in terms of remedy that reinstatement is an appropriate response, and a sufficient level of trust and confidence can be restored. However, if the Commission determines that reinstatement is not appropriate then an amount of compensation should be ordered by way of remedy. Ms Snell had been employed for a period of three and a half years and expected to continue in her employment for the foreseeable future. She was earning approximately $45,500 at the time she was terminated and an order for the maximum amount of compensation should be made.

[31] She continues to submit that she has been active in seeking other employment and was likely to have remained in her role, if not for her unfair dismissal, for a period of more than ten years, given that she enjoyed the work and the working arrangements suited her family life.

The Respondent’s Submissions and Evidence

Mr Victor Meagher

[32] Mr Meagher is a Senior Internal Investigator in the Financial Crimes Team at the Bank and has been employed since February 2018. He indicated that the Bank has increased its focus on employee fraud and document manipulation since the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. It takes a strict approach to fraud or document manipulation and generally in circumstances involving the deliberate or knowing substitution of a customer signing page, or the forgery of a customer signature, the employee is dismissed unless their actions are found to be inadvertent.

[33] The Bank regularly communicates details to its employees about its policies relating to fraud and document manipulation and, by way of example, in November 2017 an email was sent to all retail and distribution employees advising them that compliance with the Bank’s policies and procedures is mandatory, and that they will be dismissed for failing to comply. This included a statement indicating that “…[n]ot wanting to ‘bother a customer’ with additional paperwork is not a reason to fake a signature or cut corners in other ways...” 10 This had been reinforced by the Bank’s Financial Crimes policy, and by online training modules, including the fraud awareness training module which Ms Snell confirmed she completed in November 2018. Employees also have access to the internal helpline, iSupport, which can be utilised if they need assistance or clarification about their obligations in regard to a particular policy or procedure.

[34] On 6 March 2019 Ms Alexandra Whalen, Specialist Accounts Lead, who works in the Consumer Processing Team sent an email to the Financial Crimes internal mailbox attaching two account opening applications received from the Dingley Village Branch. The second application, which had been received on 6 March 2019, appeared to be the same as the earlier application, and included the same customer signature. However, the product information had been crossed out and new information added. On reviewing the documentation, it appeared the second application was a photocopy of the previous one, as the handwriting was the same. The only difference was on page three where the product code and account type had been manually crossed out and new details written in. Both applications were identified as having been signed by Ms Snell. Mr Meagher subsequently formed the view that a serious breach of policy had occurred, as all forms signed by a customer are required to contain their original signature.

[35] It was therefore decided to meet with Ms Snell and an interview was arranged for 11 April 2019. Ms Thurgood also attended and Ms Snell’s husband was present as her support person. Ms Snell confirmed during the course of this discussion that she had prepared the application and in the course of doing so had asked iSupport for clarification about whether she could amend the original application by writing down the second ledger in the account information and then resubmitting it, rather than preparing a new application form. However, she did not explain why she made this enquiry when she knew what the Bank’s policy was. When asked why this occurred Ms Snell said: “I’m not sure, 11” and later added that: “I don’t even know why that was submitted.12” She also explained that a separate account application had been signed by the customer and submitted after the second application was rejected.

[36] There were several aspects of the interview that Mr Meagher found troubling. He considered that Ms Snell was at times misleading and evasive, and initially denied knowing anything about the second application, but later admitted that she had prepared and submitted it. It was also difficult to reconcile her admission that at the time she called iSupport she knew that the Bank’s policy required her to complete a new application form and have the customer sign it. She was also told by iSupport that she was going to have to get another application signed but proceeded to lodge the second application in any case.

[37] Mr Meagher accordingly concluded that Ms Snell had prepared the second application in March, knowing she was in breach of the Bank’s policy, and had called iSupport in an effort to “try it on” and have them approve her contravention of the policy. The meeting then adjourned, and Ms Cakebread was contacted by telephone to discuss Ms Snell’s responses. Mr Meagher told her that Ms Snell had submitted all three applications; that she was aware of the Bank’s policy and what was required; but had still attempted to have someone else approve a process she knew to be wrong. It was accordingly agreed that the only possible outcome was for her employment to be terminated, effective immediately, on grounds of serious and wilful misconduct. The meeting with Ms Snell then reconvened and she was informed of this decision. Mr Meagher indicated, in conclusion, that he did not believe the Bank could allow an employee to continue working in a position where they were dealing with customers when it was known that person was at risk of breaching Bank policies.

[38] Ms Snell also did not make clear in the interview that she had been told by iSupport that she could submit the amended application form, but there were no guarantees it would be accepted. She had instead indicated that she had been told not to lodge the application and would instead need to get another application form signed. She had also not denied that she was aware of what documents were being referred to. He also took issue with the claim that Ms Snell was told she would be placed on the unsuitable employee alert data base. This was inaccurate and she was instead informed my Ms Thurgood that if the Bank was contacted in the future by a prospective employer, who subscribed to the ABA protocol, then the Bank would be required to disclose that the reason why her employment had been terminated was because of serious misconduct. Ms Snell also was given every opportunity to explain what had occurred, and why she had lodged the second application, knowing what the Bank’s policy was.

[39] Mr Meagher also indicated in cross-examination that while he agreed that the interview was stressful for Ms Snell, he did not believe it was an intimidating environment. However, he acknowledged that she was visibly upset and emotional for most of the time. He also acknowledged that he asked on several occasions about whether she could recall the training provided in the module dealing with fraud awareness, and she had said she could not recall this training, despite it only having been carried out six months previously.

[40] He also acknowledged in cross-examination that Ms Snell did not attempt to deny what had occurred and accepted that on the second occasion she had crossed out the first account and added the name of the second account to a photocopy of the original application form. She had also said she considered iCentral to be her authority and knew that she needed to get a new form signed when the customer had not signed the second application form. He was therefore unsure about why she had then decided to contact iSupport. However, he believed that she was attempting to have someone else approve a process that she knew was not right. He also agreed that what was being alleged in respect of the second application form was that Ms Snell had committed internal fraud by submitting that application.

[41] She had not forged a customer’s signature, but the act of photocopying the form involved page substitution, and he believed she had acted intentionally in doing this. He also understood that she had completed around ninety-nine different training courses in the time she had been employed by the Bank and acknowledged that she could not be expected to recall all of the detail contained in each of those training sessions. He also considered that she was given every opportunity in the interview to provide an explanation about what had occurred. However, he also acknowledged that there was no reason why she could not have been given more detail on the previous day about the matters to be discussed in the interview.

Ms Mili Thurgood

[42] Ms Thurgood is now employed by the Bank as Manager, Community Central, but before that was in the role of People Operations Manager where she was responsible for providing HR support to 37 branches in the Melbourne metropolitan region, including the Dingley Village branch where Ms Snell worked.

[43] She was often involved in investigations in that role where employees were alleged to have manipulated documents, as it was standard procedure for a representative from the People & Culture team to participate. She was contacted on 8 April 2019 by Mr Meagher about the matter involving Ms Snell and it was agreed that it was necessary to interview her. It was also decided that she would go to the Branch on 10 April and inform Ms Snell about the investigation and to provide her with 24 hours’ notice of the interview to take place on the following day.

[44] Ms Thurgood went to the Branch with the Risk and Compliance Manager, Mr Grant O’Donnell, and met with Ms Snell in the Manager’s office. She was told that the Bank wished to have a formal meeting with her regarding account opening documents, and the potential production of a false document. She was advised that the meeting would be conducted in accordance with the Bank’s disciplinary policy and she could have a support person present. She was also told she was to be stood down in the meantime as part of the standard practice adopted while investigations into alleged misconduct are carried out. She was also given a letter entitled Notification of Formal Meeting, which confirmed that the meeting to be held on the following day was to discuss the potential production of a false document. Ms Snell then asked whether she had done anything wrong and was her job at risk. Ms Thurgood indicated in response that the purpose of the interview was to enable her to respond to the concerns raised, and it was likely that at the conclusion of the meeting a decision about an appropriate outcome would be made.

[45] Ms Thurgood’s recollection of the discussions with Ms Snell in the interview on the following day essentially confirmed the evidence provided by Mr Meagher. It appeared that Ms Snell had submitted the amended application on 6 March 2019, despite knowing that this was a direct breach of policy and did so after iSupport had told her it was not appropriate to lodge the amended application. She also did not believe her claim that she did not understand how the amended application had come to be sent from her email account. She accordingly considered that her conduct was in direct breach of the direction in the Financial Crimes Policy not to manipulate information. As a Senior Customer Service Officer she should have been aware that lodging the amended application was a clear breach of that policy, and in those circumstances she considered that the Bank had no option but to terminate Ms Snell’s employment. She was informed of this when the meeting reconvened. Ms Snell indicated in response that she did not agree with this decision and had never intended to do the wrong thing, or to do act in a fraudulent way. She was instead trying to do the right thing by the customer.

[46] Ms Thurgood also confirmed that at no time during the course of the interview did Ms Snell indicate that iSupport had suggested to her that she could submit the amended application, but there were no guarantees it would be accepted. She had indicated instead that iSupport had told her that she could not submit the amended application form, and she would be required to prepare a new one and have it signed by the customer. She also disagreed with the suggestion by Ms Snell that she did not get a chance to inspect the amended application when it was shown to her during the course of the interview. She was shown the document and gave no indication that she was unclear about what she was being shown, or what the document was, and she did not ask to inspect the document. She also disagreed with the suggestion that Ms Snell was not provided with a meaningful reasonable opportunity to respond to the allegations. She was instead given several opportunities to provide an explanation. She was also asked prior to the interview concluding whether there was anything further that she wanted to add and she responded by indicating that she was not a criminal and had not falsified documents, and always had the best interests of the customer in mind.

[47] Ms Thurgood also indicated in cross-examination that she believed that page substitution had occurred because a copy of a previous application had been used to lodge a new application. She also considered that Ms Snell was aware of what steps should have been taken, and had sought confirmation of this, but had then intentionally decided not to follow those steps. She also indicated that no investigation had been made in regard to the iSupport phone call made by Ms Snell because at the time of the interview she was not aware that calls to iSupport were recorded. She also disagreed with the suggestion that Ms Snell was placed in a difficult position when being asked to recall details of a new business account opening which had occurred more than a month ago. She had instead confirmed in the early part of the interview that she recalled both the customer and the circumstances involved. The only occasion on which she had indicated that she could not recall something concerned the submission of the second form. She had indicated that it had been lodged with iSupport when it actually been sent to the Account Opening Team. Ms Thurgood otherwise believed that Ms Snell was able to recollect what had occurred and understood what was being referred to. She also believed that a fair process had been gone through and Ms Snell was able to respond to the matters put to her. She came to the conclusion that her conduct involved serious misconduct because Ms Snell made the decision to attempt to submit an application that had not been signed by the customer, in circumstances where she was aware of the applicable policy, and had obtained confirmation about the nature of that policy. She continued to believe that the matter involved serious misconduct, despite now being aware of the telephone conversation between Ms Snell and the iSupport team member.

Ms Joanne Cakebread

[48] Ms Cakebread is employed by the Bank as Senior Manager, Employee Relations and has been with the Bank since October 1999. She was appointed to her current position in March 2017. She provided confirmation of Ms Snell’s employment record in her evidence and indicated that prior to the investigation, which led to her dismissal, she was not subject to any formal disciplinary or performance management issues during the time she was employed.

[49] Ms Cakebread referred to the various policies and procedures which the Bank has in place to regulate the conduct of its employees in regard to regulatory and compliance matters. These include a Code of Conduct, Financial Crimes Policy, Operational Risk Policy and Framework, Customer and Account Management Manual, and Disciplinary Policy. Copies of each were attached to her witness statement. She also provided details of Ms Snell’s participation in various training courses that covered the Bank’s policies and procedures, as well as details of other communications provided on a regular basis to employees.

[50] Ms Cakebread confirmed that it is a mandatory requirement that every new account opening form be signed by the customer. Where there is an error in the form it cannot be amended without the customer having authorised the amendment by way of signing again or initialling the change. These requirements are stipulated in the Customer and Accounts Management Manual which has been in place since July 2017. The substitution of a customer signature page into a new form is also in breach of the Bank’s Financial Crimes Policy, which expressly prohibits manipulating information in that way, and makes clear that in such cases the Bank would consider all available disciplinary options, including dismissal. It is also a breach of both the Bank’s Code of Conduct, which requires that employees to act with integrity, and the Financial Crimes Policy.

[51] Ms Cakebread confirmed that she was contacted by Ms Thurgood and Mr Meagher during the break in the interview with Ms Snell. Ms Thurgood told her that Ms Snell had acknowledged that she submitted the photocopied and hand edited second application form on 6 March 2019. Ms Snell had also disclosed that the customer had subsequently signed a new account opening form for the second business account. Ms Cakebread told Ms Thurgood that she needed to contact the Branch to a obtain a copy of that form so it could be reviewed and a decision then made about how it fitted into the chronology of events. It was necessary to clarify whether Ms Snell had a copy of the second account opening form, signed by the customer, at the time she submitted the photocopy of the original account opening form, and had simply submitted the wrong document by mistake. However, Ms Cakebread also indicated that in her view if the subsequent investigations did not change the position that Ms Snell had deliberately submitted a falsified form then it was appropriate for her employment to be terminated. This would represent an outcome that was consistent with the Bank’s policy, and other employees had been terminated in similar circumstances on grounds of serious and wilful misconduct.

[52] Ms Cakebread subsequently became aware after Ms Snell had been terminated that there was a recording of the telephone call, she made to iSupport on 4 March 2019. She also listened to the record of interview with Ms Snell in preparation for the Commission’s conciliation conference. Ms Snell made reference in that interview to speaking with iSupport prior to submitting the second application form. She had also referred in her witness statement to the iSupport team member providing “a direction” to submit the photocopied document. She had therefore reviewed the transcript of the telephone call Ms Snell made to iSupport, and a copy was attached to her witness statement. The content of the conversation is as follows:

“Thank you for calling I-Support, this is Michelle how may I help you?

Oh, I hi there Michelle, this is Jonalyn calling from the Bendigo Bank in Dingley, how are you?

Good thank you, how are you?

Yeah, well thank you

Talk about the bad phone line - it was OK in the end so the call continued

Now, I'm just wondering, I've just had an account opened for a sole trader last week.... l forgot to put another ledger on there

Ooooh....

I forgot to put another ledger on the form, so, she was supposed to open a business easy saver but I got stuck in just putting in the business basic account

Yep, basically youd [sic] have to send through an application again and send through another request because we can't just add on another one now

Ohhhh, are you sure?

Yeah because it is Specialised that look after it, umm so we cant...

Would you mind querying it with somebody - is that OK because it was literally only opened last Thursday

And it wasn't on the form at all?

No, nope - yeah, she came in today and said I haven't got that saving account and I'm thinking Oh, I forgot to put that other ledger in.

I want to speak to them (SAO) and ask

Yeah, please

Well the only thing is though that if I do speak to them they may ask you to fill out another application form

Because technical [sic] the customer has signed for this one account to be opened

And you want to add a second

If you could query if I could use the same form

Well, I'm thinking I would give that option a go first because I think in the end SAO will say no, you need another application form signed whereas they won't look if there is already one ledger and you need a second one

OK, well im [sic] going to try and query it with what we could do first- is that OK

It's up to you - if you want me to

Yes please, yeah

I've had previous ones this is before BPM Because [sic] these take a week to get opened and they are like, well it's not our fault so why should we do anything, but if you like have you got the customer number there?

Yeah, I do - its xxxxxxx and it was literally, you'll see it was opened on the 28th

What product code is it that you're after?

DME - business easy saver

Hold on if that's OK and I'll just suss it out

Yeah, fingers crossed

Hold

Yes, you have to send it through again

Another one! Although it was only opened last week?

Yeah, so

Does she have to sign?

Well technically yes but you could try and see how you go with the existing one

What do you mean?

As in send through - oh, I can't exactly say hahahah

Oh, the rework OK sure I can do that

Yeah so basically a whole new application is what I need to say

Send through another request to have another account opened and then its [sic] up to you which application you send through whether that be a brand new one as it should be because the customer is signing for it or whether you want to amend the current one

Oh, OK and I'll just leave a note there so say um yeah that the ledger was forgotten

Yeah, yep - see how you go that way

I shall do that

Call ends” 13

[53] After reviewing the transcript Ms Cakebread decided that it was appropriate to speak to the iSupport team member who took the call, and she was subsequently provided with a verbal warning based on her conduct during the call. She was also told that if she again spoke with another employee who indicated that they planned to do something contrary to the Bank’s policy then she should strongly reiterate to that person what the correct policy approach was and, if appropriate, escalate her concerns to a more senior team member.

[54] She also indicated in cross-examination that Ms Snell had photocopied a form that was previously signed by a customer and had then altered the form and resubmitted it. She believed that this constituted page substitution because she had taken an entire document, photocopied it, and then altered it so as to substitute that document for another. She had also breached both the Code of Conduct and the Bank’s policies and procedures. She was also aware of what the correct approach was but had chosen not to comply with those requirements.

[55] She did acknowledge that it was also appropriate for an employee to call iSupport if they had consulted iCentral but were still unsure about what to do. She also confirmed that she had provided a verbal warning to the team member in iSupport who had spoken to Ms Snell. She did not accept that this involved a double standard as Ms Snell had been advised by iSupport in the first instance about what the correct process was but had not accepted that advice. Her position had not changed after listening to the iSupport telephone conversation as it confirmed that Ms Snell had repeatedly pressed until she got the response she was looking for. There were also a number of specific training courses that Ms Snell had participated in that were relevant. This included the Financial Crimes Awareness training, the Conduct Risk Awareness training and the Operational Excellence and Integrity training. The Code of Conduct was also relevant.

The Respondent’s Submissions

[56] The Bank submits at the outset that Ms Snell photocopied an account opening form that had previously been signed by a customer, falsified entries on that form, and then submitted the form to the Account Opening Team. This conduct amounted to “internal fraud” within the meaning of the Bank’s Financial Crimes Policy, in circumstances where the Bank expects the higher standards of honesty and integrity from its employees. In its submission Ms Snell’s unfair dismissal application must accordingly fail. Her actions in deliberately altering and then submitting a previously signed customer form constituted a valid reason for dismissal as this amounted to serious misconduct. This conduct was further amplified by her failure to engage honestly with the subsequent investigation process. There were also no procedural defects in the Bank’s disciplinary process. Ms Snell was notified of the reason for her dismissal, given an opportunity to respond, and was not unreasonably refuse a support person during the interview. She had also failed to substantiate any “other relevant matters” that could be considered sufficient to sustain a finding that the dismissal was otherwise unfair.

[57] It continues to submit that the authorities make clear that the Commission’s function in dealing with an unfair dismissal application is not to stand in the shoes of the employer and decide whether the decision that had been made was the decision that would have been made by the Commission. Its role was instead to assess whether, on the basis of the available evidence, the facts existed at the time to justify the dismissal. It continues to submit that the decision made by the Bank at the time was open to it based on the facts available, and it was not in any respect harsh, unjust or unreasonable.

[58] Ms Snell’s contract of employment required her to comply with the Bank’s policies. The Financial Crimes Policy expressly prohibits internal fraud, which is defined to include the intentional manipulation of the Bank’s information, or that of its customers. It also makes clear that engaging in such conduct might result in disciplinary action, including dismissal. Ms Snell was aware of this policy. She had also recently undertaken the Operational Excellence & Integrity training covering compliance with its policies. All employees had also been sent an email on 8 November 2017 expressly warning against forging documents, even where the intention was to avoid further inconveniencing a customer.

[59] The Bank accepts that Ms Snell was not motivated by personal gain, but her conduct still amounted to internal fraud under the definition set out in the Financial Crimes Policy. She was or should have been aware of her obligations under that policy and her conduct cannot be explained on the basis of being a simple error. She had instead taken a conscious decision to falsify and then submit an altered document. The fact she did so in order to avoid further inconvenience to the customer is irrelevant. She had been expressly trained to not falsify documents and her conduct in doing so amounted to serious misconduct.

[60] Her conduct was amplified by her evasive responses during the interview on 11 April 2019. She appeared to suggest that upon receiving advice from iSupport that she was required to submit a freshly signed application she contacted the customer and left instructions for a fresh application to be signed and lodged. This was not correct. She was told during the iSupport call that a new application form was required to be signed, and yet she still submitted the falsified form. She only then sought to obtain a newly signed application following the rejection by the Accounts Opening team of the falsified form. She had accordingly attempted to downplay her actions, on the basis of her understanding that they amounted to a breach of the Bank’s policies.

[61] It was not appropriate for her to endeavour to avoid the consequences of her misconduct by alleging that she acted under the direction of iSupport in submitting the falsified application, or because the customer was ultimately happy with the service received. She was not directed by iSupport to submit a falsified application and the transcript of her conversation with the team member reflects that. Her intention in making the call was instead to gain authority for a course of action which she knew to be in breach of the Bank’s policy. The reaction of the customer is also irrelevant. The Bank’s policy makes abundantly clear that avoiding inconvenience to a customer never justifies falsifying documents. Her behaviour instead amounted to dishonesty in an industry where honesty and trust are fundamental.

[62] The Bank also rejects any suggestion that the process was procedurally unfair. Ms Snell was notified of the allegations in plain and clear terms, both in writing on 10 April 2019 and during the interview on the following day. No decision to dismiss her had been made at the time the interview took place. She was then provided with a proper opportunity to respond and reviewed the relevant documents during the course of the interview. She was also given 24 hours’ notice of the interview taking place.

[63] The Bank had also acted promptly to investigate the misconduct upon discovering evidence of it, and there is nothing to suggest that it condoned her conduct in any way. In any case even if the Bank had not complied with all of the procedural requirements that did not of itself render the dismissal harsh, unjust or unreasonable. Ms Snell had also not identified anything that she might have raised but did not do so because of the alleged failure to provide appropriate procedural fairness. The serious nature of her conduct also weighed heavily against any finding of unfairness.

[64] It submits, in conclusion, that if the Commission finds her dismissal was unfair reinstatement is inappropriate given that the misconduct went to the heart of the Bank’s trust and confidence in Ms Snell. Any amount of compensation should also be significantly reduced to reflect the serious nature of her conduct, and the absence of any evidence concerning her efforts to obtain other alternative employment.

[65] The Bank also made particular reference in its closing submissions to the following factual findings. In regard to valid reason it referred to five matters.

[66] Firstly, the altering of an Account Opening form in the way that occurred was a serious breach of policy as that document amounts to the contract between the Bank and its customer and provides the basis to enable the transactions that follow. The breach also occurred in circumstances where strict adherence to policy is required, given the nature of the industry. It also rejects any suggestion that the conduct did not involve cutting and pasting of a signature block. It submits instead that amending a previously used form to delete one type of account and then use that extinguished form to open a fresh account is no different in substance from substituting a signature page onto a fresh form with the new account details filled in. The fact that the customer actually wanted the new account open was irrelevant, and the Bank had no way of knowing independently from its own records whether or not this was the case. This occurred in circumstances where the Bank had made its expectations around compliance very clear to all employees, including Ms Snell, and this is evident from the various policies and training provided at different times. These made absolutely clear that any alteration of customer documents would amount to an internal fraud and went beyond mere technical requirements.

[67] It continues to submit that Ms Snell understood what the requirements were based on her experience and training and understood at the time of making the iSupport phone call what was required of her. This is confirmed by the fact that when she spoke to the customer about why the second account had not been opened, she told her she would need to come in and sign a fresh form. The fact that this might be inconvenient for the customer was no excuse

[68] It next makes reference to the iSupport telephone conversation and submits that Ms Snell’s approach could be equated to that of someone who knows what the answer is before the conversation has begun, but is then involved in repeated attempts to “browbeat” the other person into supporting a proposed course of action. It could be contrasted with the actions of someone making an enquiry on the basis of a genuine lack of understanding about what the appropriate requirements are. Her intention was to draw in the iSupport team member in order to provide legitimacy for what was otherwise a conscious and intentional breach of policy. It also submits in terms of proportionality that the actions of both employees were not comparable, and the iSupport team member had not directed Ms Snell to do anything, but had instead left it with her on the basis of “see how you go.”

[69] It next relies on the evidence which it submits demonstrates that Ms Snell was less than completely open and honest with the investigation. She made no reference in the interview to having submitted the second application that was photocopied and altered. She also stated that she did not know where that application came from and why it was submitted. This was not due to any confusion on her part as the transcript of the interview makes clear that she understood what was being discussed. She was also a relatively senior employee with a significant amount of experience.

[70] In regard to the process that was followed the Bank acknowledges that it was not “absolute rolled gold.” Ms Snell was advised about the substance of the allegations in advance but was not provided with the particular customer identification as this would have been contrary to Bank policy. It refers to the decision in Christopher Strauss v Patrick Projects Pty Ltd 14 in this context and submits that it is not just any failing in procedural fairness that undermines a decision. It must instead be something that is material and actually has the potential to have an impact before it could be considered to invalidate the decision. In its submission none of the possible procedural fairness shortcomings outweighed the fact that the Bank had a valid reason to dismiss Ms Snell.

Consideration

[71] This matter involves what can be described as an unfortunate set of circumstances. On the one hand it appears that Ms Snell was primarily motivated by a desire to avoid any unnecessary inconvenience for the customer involved. There is nothing to suggest that she was in any way motivated by personal gain or intended to act to the detriment of the Bank. However, it is put in response that she has acted in breach of policy and procedure in circumstances where the Bank has emphasised the importance of adhering to these requirements, regardless of any inconvenience to the customer.

[72] However, I now turn to consider whether Ms Snell can be said to have been unfairly dismissed in the sense that her dismissal was “harsh, unjust or unreasonable” having particular regard to each of the matters in s.387 that I am required to take into account.

[73] It is noted at the outset that the circumstances in which an employee’s dismissal can be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd 15 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:

“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 16

[74] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 17 also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 18

[75] I turn now to deal with each of the considerations in s.387, and those authorities to the determination of this matter.

(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)

[76] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 19 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 20

[77] In Parmalat Food Products Pty Ltd v Wililo 21 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 22

[78] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 23 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 24

[79] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 25 when it stated:

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 26

[80] These authorities make clear that the existence of a “valid reason” is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[81] The submissions and evidence relied upon by each party in this context have been set out in detail already and are not restated now. In summary, Ms Snell submits that there was no valid reason for her dismissal in the sense that the grounds relied on can be said to be sound, defensible or well-founded based on an objective analysis of the relevant facts. There had been no previous issues concerning her capacity or conduct during the time that she was employed by the Bank, and she was not aware that her conduct could result in disciplinary action, including her employment being terminated. She was also acting in accordance with what she had been told by a member of the iSupport team, and she was entitled to act in accordance with that advice and direction. In addition, if the Financial Crimes team was genuinely concerned about what had occurred it would not have waited for more than a month to raise the matter with her after being first informed about it.

[82] The Bank submits in response that Ms Snell’s actions in copying and altering and then submitting an Account Opening form that had been previously signed by a customer constituted “internal fraud” in terms of its Financial Crimes Policy, and justified her dismissal. It emphasises the importance of the account opening application, signed by the customer, to the Bank’s relationship with the customer. It also expects high standards of honesty and integrity from its employees, particularly at a time when the financial services industry is under enhanced scrutiny as a consequence of the recent Royal Commission.

[83] It also submits that Ms Snell must have been aware that she was acting in breach of the relevant policy and procedure, given the promulgation of those policies and procedures through various training and other online tools. It also submits that her actions demonstrated that she was aware she was acting in breach of policy and procedure. In this context it rejects the submission that her actions can be justified because she was acting on the basis of a direction from the iSupport team member.

[84] I now turn to consider whether the Bank can be said to have had a valid reason to dismiss Ms Snell having regard to the relevant evidence and submissions. The first thing that can be said is that the circumstances that unfolded originated from a mistake made by Ms Snell. When she initially met with the customer, she was told that she wanted to open two new accounts. However, the account opening form that was signed by the customer, and then submitted by Ms Snell, only contained details of one account. Ms Snell was subsequently made aware of this mistake when the customer contacted her sometime later to ask why she could not access the second account.

[85] Ms Snell was unable to find anything in iContact that provided any guidance about what to do in this situation and decided to contact the Bank’s iSupport team. She was in regular contact with the team members when she needed advice and assistance, and they were acknowledged to be a “higher authority” that staff in the Bank could seek advice from, when necessary. The content of this conversation is important and the transcript has been set out in full at an earlier point in this decision. Ms Snell submits that she acted in accordance with the advice received from the iSupport team member in that conversation, and her dismissal in these circumstances represents a form of entrapment. The Bank has a very different view. It submits that Ms Snell sought to use iSupport to legitimise a course of action that she knew to be in breach of policy. It also submits that the content of the conversation makes clear that she was not directed to act in a certain way, but instead badgered the iSupport team member in an attempt to gain endorsement for what she was proposing.

[86] The transcript of the conversation indicates that Ms Snell explained at the outset what had occurred, and the mistake she was looking to rectify. The iSupport team member initially responds by indicating that she will need to submit another application form because a second account could not be added to the original form without the customer again signing the application form. Ms Snell then asks the team member whether she could contact the Accounts Opening team to ask whether she could do what she proposed, particularly as the initial account had only been only opened relatively recently. Ms Snell is then put on hold while the iSupport team member apparently makes contact with the Accounts Opening team.

[87] When the conversation resumes Ms Snell is again told she will need to send in a new application, however, her immediate reaction is again to question this advice, given that the first account was only opened in the previous week. She also asks whether the customer will need to sign the new application form and is told, “Well technically yes but you could try and see how you go with the existing one.” 27 The iSupport team member then indicates that she can’t really say anything further and that the lodging of “…a whole new application is what I need to say28.” However, she continues to add, “Send through another request to have another account opened and then it’s up to you which application you send through whether that be a brand new one as it should be because the customer is signing for it or whether you want to amend the current one29.” Ms Snell then responds by saying that this is what she will do, and that she will also attach a note indicating that she forgot to include the second account. The iSupport team member then concludes by saying, “Yeah, yep – see how you go that way,” and the conversation ends.

[88] A number of things can be said about this conversation. Firstly, it appears that Ms Snell is attempting to get approval for a course of action that would involve the least inconvenience to the customer, as she would not have to come back into the Branch to sign a new application form. It also appears that it might have enabled the account to be opened more quickly, again providing a benefit to the customer. As indicated, she appears to have been motivated by a desire to avoid any additional inconvenience to the customer, and there is no suggestion that she was in any way motivated by personal gain, or by any other ulterior motive. However, that of itself does not necessarily absolve her from responsibility for what occurred.

[89] Secondly, in attempting to avoid any further inconvenience for the customer it is also clear that Ms Snell was endeavouring to push the boundaries in terms of what was required. This is evidenced by the fact that after outlining what the problem was she is immediately told by the iSupport team member that she will need to submit another application, and that it was not appropriate to add further details to the original application form. However, Ms Snell is not prepared to immediately accept this advice and asks the team member to query it with the Accounts Opening team, and presses on more than one occasion for this to be done. The team member finally agrees to do this and there is then a break in the conversation while she apparently makes this enquiry. When the conversation resumes Ms Snell is again told she will need to submit another application, but again questions whether the customer will need to sign this application form when she asks, “Does she have to sign?”

[90] While it is not suggested that Ms Snell was directed by the iSupport team member to take a particular course of action I am satisfied that she can be said to have been aided and abetted from this point by the responses provided by the team member. This is evidenced by the team member’s response to the question “Does she have to sign,” when she replies, “Well technically yes but you could try and see how you go with the existing one.” A short time later the team member states, “Yeah so basically a whole new application is what I need to say,” but she then adds, “Send through another request to have another account opened then its [sic] up to you which application you send through whether that be a brand new one as it should be because the customer is signing for it or whether you want to amend the current one.” Ms Snell then responds by stating, “Oh, OK and I’ll just leave a note there so um yeah that the ledger was forgotten.” The team member then replies, “Yeah, yep – see how you go that way,” before the conversation ends with Ms Snell concluding, “I shall do that.”

[91] As indicated already it is evident that Ms Snell is pushing the team member during the course of this conversation to try and get a particular outcome. However, it is also clear that the iSupport team member had various options to her in response to these entreaties. For example, she could have simply held the line and maintained, as she should have done, that Ms Snell was required to have the customer come into the Branch and sign another application form. However, as the conversation progresses, she is clearly giving tacit support to other suggested possibilities before she concludes, “Yeah, yep – see how you go that way.” It is apparent that both parties are carefully avoiding making any direct statements but saying just enough of what the other wants to hear.

[92] The following conclusions can be drawn from these exchanges. Firstly, I am satisfied that Ms Snell’s intention in making the call to iSupport was to try and obtain endorsement for something she knew was pushing the boundaries in terms of what was acceptable. Secondly, she did press the iSupport team member to support this outcome, despite being told on more than one occasion what she needed to do. However, the iSupport team member was at fault in eventually giving ground and responding in the way she did. Finally, while I am satisfied that Ms Snell was not directed by the iSupport team member, various suggestions were flagged with her during the course of their conversation, and Ms Snell was finally given what might be described as tacit support and encouragement for what she was proposing, when she is told “Yeah, yep – see how you go that way.”

[93] Ms Snell clearly felt at this point that she had received endorsement for what she proposed from someone she clearly viewed as a more senior authority within the Bank and was reassured as a consequence in terms of what she proposed. When the actions of Ms Snell and the iSupport team member are examined and reviewed they can both be said to have been motivated by similar considerations. Ms Snell, on the one hand, was trying to do the best for one of the Bank’s external customers by putting her to as little inconvenience as possible, while the iSupport team member was endeavouring to accommodate one of the Bank’s internal customers in the way that customer wanted.

[94] It also follows from the conclusion I have come to about the involvement of the iSupport team member that she should also bear a degree of responsibility for what occurred. Two things follow from this. Firstly, the two employees were treated in dramatically different ways, given that Ms Snell was summarily dismissed but the iSupport team member was simply given a verbal warning. While it is accepted that Ms Snell initiated the enquiry, I am not necessarily satisfied that this absolves the team member from responsibility. Secondly, the person that finally made the decision to terminate Ms Snell’s employment was not aware of the precise nature of the involvement of the iSupport team member at the time she made the decision to dismiss Ms Snell. Ms Cakebread only reviewed the transcript of the conversation sometime after Ms Snell was dismissed. Ms Cakebread indicated in her evidence that her decision would not have been any different if she had been aware of the conversation at the time, but without being critical of her it is difficult to understand what else she could say at that point. She also justified the differential treatment of the two employees on the basis that the iSupport team member had been frank and open in her responses about what had occurred and had apologised. However, Ms Snell’s responses were arguably of a similar nature.

[95] The next issue that needs to be considered in terms of “valid reason” is whether Ms Snell was aware, or should have been aware, that what she did was in breach of the Bank’s policy and procedure. The Bank’s submits that she should have been aware, given the training and other information and advice provided to all of its employees. It also emphasises that this was not a minor matter, and the account opening application form signed by the customer underpins the nature of the contract entered into by the Bank and its customer. It also refers, in particular, to the fraud awareness training provided to Ms Snell in a module delivered in November 2018, and to the content of an email circulated to all staff in late 2017, which specifically made reference to the requirement to follow policy and procedure, regardless of whether that resulted in any inconvenience to the customer. It submits that the fact that Ms Snell was motivated by a desire to try and avoid any inconvenience to the customer was irrelevant. The policy was instead clear, and she deliberately embarked on a course of action that was in breach of that policy when she decided to falsify and submit an altered document.

[96] It also refers to the telephone conversation with the iSupport team member and submits that in endeavouring to gain approval for what she was proposing Ms Snell was acknowledging that she was intending to act in breach of the Bank’s policy.

[97] Ms Snell submits in response that she had participated in around ninety-nine training programs during the time she was employed and could not be expected to recall or be across the detail of all that was involved. As indicated already she also rejects the Bank’s submission about why she contacted iSupport and submits that she only did so after she was unable to determine how to proceed after consulting iContact. She submits that she was simply following the appropriate procedure by seeking advice from a higher authority.

[98] The Bank finally relies on Ms Snell’s responses during the interview on 11 April in support of it having a valid reason to terminate her employment. It acknowledges that she was emotional and upset during the course of the interview. However, it also submits that she was evasive at times and less than candid in some of her responses. Ms Snell rejects these submissions and submits instead that she was so upset at the time that she did not have a proper understanding of what was being put to her, and this impacted on the way in which she responded. This was exacerbated by the fact she had not been informed about the precise details of what was to be discussed prior to the interview taking place.

[99] The transcript of the interview makes clear that Ms Snell was given no indication at the outset about the precise nature of the circumstances involved. It begins instead with what might be described as some disarming small talk presumably designed to make her feel more relaxed and at ease. She is then asked to confirm that she has participated in various training modules. At this point she is still not aware about the precise nature of the particular circumstances involved. This line of questioning appears instead to be intended to obtain admissions, and to build the case against her, prior to her being aware of the precise nature of the allegations. She is then finally told about the identity of the particular customer involved. While she is able to recall the customer, and the fact that she omitted to include the details about the second account on the original application form, she is less sure about some of the other detail concerning what then occurred. However, the transcript indicates that she endeavours to recall as much as she can, and appears to answer the questions asked of her in an open and candid way. She also explains why she contacted iSupport, despite acknowledging that she was aware of the relevant policy and procedure. She also indicates on more than one occasion that she was having difficulty recalling some of the detail involved, given the passage of time, and the number of different matters staff in the Branch are required to deal with. It is also clear that she was very upset and emotional during the course of the interview and this undoubtedly contributed to her difficulties in responding.

[100] One matter, in particular, highlights the extent of Ms Snell’s confusion and general state of mind at this time. Her recall of the conversation with the iSupport team member was that she had been told that she would be required to have a new form signed by the customer. However, she omitted to make mention of the discussion about the other possibilities that were canvassed as their conversation progressed. It is not clear why she failed to make mention of this in the interview, because it provided an explanation about why she took the action that she did, but it was presumably because of how upset and confused she was at the time.

[101] I am satisfied that the failure of the Bank to be aware of the precise nature of the conversation with the iSupport team member before taking the action to dismiss Ms Snell is of particular significance in considering whether it had a valid reason to dismiss her, because it explains, in large part, why she took the action that she did. A lack of awareness about the fact that calls to iSupport were recorded was put forward by the Bank as the reason why the transcript of the conversation was not reviewed. However, this explanation significantly undermines the claim that a thorough investigation took place before the decision was made to dismiss Ms Snell. It also suggests the application of a double standard when compared to the strict approach taken towards her conduct, and a sense that the Bank’s shortcomings can be overlooked but those of its employees cannot.

[102] In coming to a decision about whether the Bank had a valid reason to terminate Ms Snell’s employment the authorities make clear that the Commission does not stand in the shoes of the employer. It is instead required to determine whether, on the basis of the available evidence, the circumstances justified the decision to dismiss the employee. I am not satisfied, in conclusion, that those circumstances existed in this case. I have had particular regard to the following matters in coming to this conclusion. Firstly, the dramatically different treatment by the Bank of Ms Snell and the iSupport team member, despite both being responsible for what occurred. Secondly, the nature of the manner in which the interview on 11 April was carried out. Thirdly, the Bank’s failure to be aware of all of the relevant circumstances including, in particular, the precise nature of the telephone conversation between Ms Snell and the iSupport team member on 4 March 2019.

[103] The Bank’s reliance on Ms Snell having been trained in regard to the relevant policies is also noted. As indicated, it is accepted that any organisation needs to ensure that its employees are aware of what is expected of them so that the organisation and its customers are protected, as far as possible, from any potential exposure. This is obviously of particular importance in an organisation operating in the financial services industry. However, while the Bank obviously wants to be seen to be doing everything possible to protect itself, and its customers, it is difficult to comprehend how any of its employees can be expected to absorb and retain the content of the apparently ninety-nine different forms of training that Ms Snell was required to participate in during the period of three and a half years that she was employed. In summary, I am not satisfied that the fact that this training was provided necessarily means that the Bank is absolved from all responsibility when mistakes occur, and that its employees instead bear that responsibility.

[104] Finally, it is difficult to conclude in all the circumstances that the termination of Ms Snell’s employment was a proportionate response. For example, if submitting the application form in the way that she did was considered to be such a significant matter then it is unclear why it took more than a month for this matter to be brought to her attention, despite the immediate alert provided by the Accounts Opening team. By then the processes in place had worked to ensure that a fresh application form, signed by the customer, had been submitted as required and the second account was now operational. All of this had been done by Ms Snell in accordance with the various advice she received at different times.

[105] As indicated, the Bank has sought to portray what occurred as a serious breach of policy that justified Ms Snell’s instant dismissal, despite the fact she had been employed for more than three and a half years and had been promoted during this time. However, I am satisfied that it is also possible to view what occurred in a very different light. Ms Snell clearly made an initial mistake in not including the details of the second account that the customer wanted to have opened on the original application form. She then sought advice through the Bank’s internal support system about what to do, and a suggested approach was developed. However, this was subsequently rejected by the specialised Account Opening team, and so Ms Snell arranged for the customer to come into the Branch again to sign another application form. This occurred, and the application form was again submitted and the account opened. It is difficult to conclude in these circumstances that the Bank had a valid reason to terminate Ms Snell’s employment.

(b) whether the person was notified of that reason.

[106] Ms Snell was notified of the reason for her dismissal in the discussions after the interview resumed on 11 April 2019. She was also provided with confirmation of this in the termination letter that was subsequently sent to her home address, although it is unclear why this correspondence was only delivered to her home some days after the date of the letter.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[107] Ms Snell takes issue with whether she was given an appropriate opportunity to respond to the reasons for her dismissal. She submits at the outset that she was not provided with sufficient details about what the matter involved when she was asked on 10 April to attend the interview on the following day. She was only informed about the particular details some time after the commencement of the interview and this impacted on her ability to prepare for the interview and to respond. She was also very upset and emotional during the course of the interview and this again impacted on her ability to provide considered responses to what was being put to her.

[108] The Bank acknowledges that it could have done more in terms of what occurred, particularly in regard to putting Ms Snell on notice about the nature of the allegations. It also acknowledges that she was clearly upset and emotional throughout the course of the interview. However, it also submits that Ms Snell was eventually provided with precise details about what was involved, and did not suggest at any time that she could not recall what was involved.

[109] A number of things can be said about what occurred on 10 and 11 April, although not all are necessarily directly relevant to whether Ms Snell was provided with an appropriate opportunity to respond. Ms Thurgood and Mr O’Donnell both attended the Branch on 10 April, and Ms Snell was eventually escorted from the Branch in full view of the customers and staff who were present at the time. This situation could seemingly have been dealt with more discreetly, given that the purpose of Ms Thurgood visiting the Branch was apparently only to arrange for Ms Snell to attend the interview on the following day. It also seems strange that Ms Snell was asked to collect her belongings. The Bank claims that no decision had been made at this time about the likely outcome, but its actions in this context seem to suggest otherwise. In addition, Ms Snell was only given a broad indication about what the discussions on the following day were to be about, and if the Bank was genuine about her being able to provide an informed response then it is difficult to understand why she was not given more detail about what was involved.

[110] It is also clear that Ms Snell was upset and emotional during the course of the interview and this clearly influenced the nature of the responses she provided. However, it is inevitable that an interview of this of this kind is going to be difficult and she appears to have endeavoured to respond as best she could. In addition, at no stage did she seek to have the interview adjourned or ask that further information to be provided before she responded.

(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

[111] There is no evidence of any unreasonable refusal by the Bank to allow Ms Snell to have a support person present in any discussions relating to her dismissal and her partner did attend the interview on 11 April.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[112] This consideration does not appear to be of particular relevance.

(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

(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

[113] It is appropriate to deal with the above matters together. The Bank is clearly a large employer with a sophisticated HR team and can be expected to be aware of the appropriate procedures to follow in dealing with any disciplinary matter, including one involving the termination of an employee.

(h) any other matters that the FWC considers relevant

[114] Ms Snell has made reference in this context to the impact of her termination on her financial situation, and her future earning capacity. She has also indicated that her ability to again work in the industry where she has considerable experience is going to be made much more difficult by virtue of the fact that the Bank is required to provide details about the reasons for her termination if contacted by another financial institution that has also committed to the same code of conduct. This is clearly unfortunate. However, it is perhaps a consequence of working in the financial services industry and the concomitant standards and expectations that are imposed on employees that work in that industry.

Conclusion

[115] I am satisfied, in conclusion, that Ms Snell was unfairly dismissed by the Bank in the sense that her dismissal was harsh, unjust or unreasonable. In coming to this decision I have had particular regard to the conclusions reached in regard to s.387(a) and (c). I now turn to consider what is appropriate by way of remedy.

Remedy

[116] Section 390 of the Fair Work Act 2009 (the Act)provides as follows:

“(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.” 30

[117] Ms Snell wants to be reinstated to her position at the Dingley Park Branch of the Bank. She points to her long experience of working in the industry and her period of more than three and a half years employed by the Bank. She has been promoted during that time and has not had any other discipline or performance with issues raised with her in the time she has been employed. She also submits that the evidence makes clear that she was not motivated by personal gain at any time and never intended to do anything to harm the Bank. Trust and confidence in her should therefore not be an issue. She also points to her level of commitment to the Bank and submits that she is highly regarded by the customers and the other staff at the Branch. None of this appears to be in dispute.

[118] However, the Bank submits in response that her failure to act in accordance with its policies has undermined its trust and confidence in her and therefore reinstatement is not an appropriate option.

[119] Previous decisions of the Tribunal have clearly acknowledged that trust and confidence is a necessary ingredient in any employment relationship, and where trust and confidence is lost reinstatement may be impractical. However, the same authorities have also held that the rationale for the loss of trust and confidence must be sound and rationally based.

[120] In Perkins v Grace Worldwide (Aust) Pty Ltd 31 the Full Court of the Industrial Relations Court of Australia came to the following conclusion:

“Trust and confidence is a necessary ingredient in any employment relationship… So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

…

Each case must be decided on its own merits … In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.

…

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 32

[121] In addition, in the decision in Australian Meat Holdings Pty Ltd v McLaughlin 33 a Full Bench of the Commission found that:

“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessary conclusive.” 34

[122] After reviewing these authorities and the circumstances involved in this matter, I am satisfied that it is appropriate for an Order of reinstatement to be made. While the Bank relies on the breakdown in trust and confidence in opposing reinstatement, and submits that trust and confidence cannot be restored, I am not satisfied that this submission is necessarily soundly based. Firstly, the Bank does not appear to share the same concerns about the member of the iSupport team who was also involved. It is instead prepared to accept that it can continue to have trust and confidence in that person, despite what occurred. It is again difficult to understand why Ms Snell should be treated any differently. Ms Snell also presented as an articulate and intelligent person with a genuine commitment to the Bank and its customers. I am satisfied that the Bank can be confident that there will be no repetition of what occurred, given what she has been through, and she will play it strictly “by the book” in the future.

[123] There was also nothing put to suggest that she will not be welcome back by the staff of the Bank and the customers that she has dealt with in the past.

[124] Section 391(2) of the Act also provides that the Commission may order that the continuity of service be maintained. I consider that such an Order is appropriate in the circumstances of this matter.

[125] Section 391(3) also provides that the Commission can order restoration of lost wages during the period of unemployment. The evidence in the proceedings indicated that Ms Snell has not be able to find other employment since she was dismissed and has accordingly done little to mitigate her loss since that time. However, she also indicated that she wants to continue to work in the financial services industry and I accordingly understand why she has found it difficult to find other similar work, given what has occurred. Despite being summarily dismissed she also received an amount equivalent to four weeks’ salary at the time of her termination. It has also been acknowledged that Ms Snell was obviously not blameless in acting in the way she did. For all of these reasons I decline to make an Order for restoration of lost wages during the period of unemployment.

[126] An Order requiring that Ms Snell be reinstated to her previous position within 14 days, on terms and conditions which are not less favourable than those which applied to her previously, will be issued. 35 As indicated, the Order will also provide for continuity of service.

COMMISSIONER

Appearances:

G Lake of Counsel for the Applicant.

A Pollock of Counsel for the Respondent.

Hearing details:

2019.

Melbourne:

July 30, August 12, 20.

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009 (Cth) s.387.

2 Exhibit JS1 paragraph 24.

3 Ibid attachment JS-1.

4 Ibid paragraph 34.

5 Ibid paragraph 35.

6 Ibid paragraph 42.

7 Exhibit JS1 attachment JS-2.

8 [2017] FWC 3063.

9 [2016] FWC 105.

10 Exhibit BB1 paragraph 11(a).

11 Ibid paragraph 24(m).

12 Ibid.

13 Exhibit BB3 – Annexure JC 16.

14 [2017] FWCFB 2810.

15 (1995) 185 CLR 410.

16 Ibid, 465.

17 [2011] FWAFB 7498.

18 Ibid [20].

19 (1995) 62 IR 371.

20 Ibid [373].

21 [2011] FWAFB 1166.

22 Ibid [24].

23 [2013] FWCFB 6191.

24 Ibid [58].

25 Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

26 Ibid [19].

27 Exhibit BB3- attachment JC 16.

28 Ibid.

29 Ibid.

30 Fair Work Act 2009 (Cth) s.390

31 [1997] IRCA 15 (7 February 1997)

32 Ibid

33 Print Q1625.

34 Ibid page 17.

35 PR715351.

Jonalyn Snell v Bendigo and Adelaide Bank Limited