Ms Pu Miao v ANZ Banking Group Limited - [2018] FWC 6786

[2018] FWC 6786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Pu Miao

ANZ Banking Group Limited

(U2018/3328)

Deputy President Bull

SYDNEY, 2 NOVEMBER 2018

Application for an unfair dismissal remedy, allegation of serious misconduct. Opening of bank accounts without authority or based on misleading information. Creation of documents without proper authority.

Ms Pu Miao (the applicant) commenced work with the Australian and New Zealand Banking Group Ltd (ANZ) on 18 April 2016. Ms Miao was promoted to the position of Senior Personal Banker and transferred from Chatswood to the Gordon ANZ Branch in New South Wales on 4 September 2017.[1]

Both parties were granted permission to be represented by counsel as per s.596(2)(a) of the Fair Work Act 2009 (the Act).

Ms Miao claims that on 9 March 2017, she was unfairly dismissed by ANZ in her position as a Senior Personal Banker. However, on 11 February 2018, Ms Miao had already tendered her resignation by email while overseas in China on approved leave from 3 February 2017 until 27 February 2017.[2] While the resignation email did not state an actual resignation date, ANZ appear to have accepted that under her contract of employment Ms Miao’s resignation would not take effect until the expiration of a 4 week period in accordance with the notice requirements.[3] This would have made the effective resignation date 11 March 2018.[4] Correspondence from ANZ to Ms Miao on 15 February 2018, referring to the required notice period ending on 28 March 2018, was said to be an error.[5]

Background

Around 13 December 2017, the ANZ Group Investigations Unit received an internal ‘whistleblower’ complaint regarding the conduct of a number of ANZ employees within ANZ’s North Shore District in New South Wales relating to the opening of new customer accounts where the customer contact had been made at two events known as ‘Newstars Career Expos.’ The complaint was made by Ms Vanessa Almeida, the Gordon Branch Manager, where Ms Miao worked when the complaint was made.

The complaint in part was that:
· Students were misled or encouraged to believe they needed to have ANZ bank accounts in order to submit their resumes for a career with ANZ; and/or
· Potential applicants for employment with ANZ had their personal data subsequently used for opening accounts without their consent and/or knowledge, or if they did know accounts were being opened they had consented because they thought they were more likely to get a job in doing so.
Three other employees in addition to Ms Miao were subject to an investigation carried out by ANZ’s Group Investigations Unit; a Senior Personal Banker and a Branch Manager from the Chatswood Branch and a District Manager North Shore District.

Ms Miao was initially interviewed by Group Investigations on 10 January 2018 in regard to the complaint.

On 31 January 2018, Ms Miao was directed in writing to attend a further interview on 1 February 2018, by Group Investigations into allegations that she may have breached the ANZ Code of Conduct and ANZ policies.[6] The allegations were:

·Opening ANZ accounts for customers using an account opening authority that contained only a signature or a signature and a name, and was otherwise left blank;

·creating a document for customer use without ANZ permissions;

·circulating an unauthorised document that contained customer details to an unrelated third party without customer authority;

·forwarding customer resumes to a third party without customer authority using ANZ systems;

·forwarding customer resumes to a third party without customer authority using a personal email account;

·using a personal email account for ANZ business and transmitting customer details; and

·breaching confidentiality in relation to the Group Investigation. (Note: this allegation was not pressed by ANZ in its final submissions[7]).

On 1 February 2018, Ms Miao was sent correspondence by email[8] from ANZ advising that she was suspended on her base salary on the basis that ANZ had reason to believe that she may have breached the ANZ’s Code of Conduct and Values in relation to acting with honesty and integrity and complying with the Code, the law and ANZ Policies and Procedures.

As noted above, Ms Miao tendered her notice of resignation on 11 February 2018. Ms Miao was dismissed by ANZ on 9 March 2018, with 4 weeks’ pay in lieu of notice.[9]

Ms Miao’s submissions

Ms Miao submits that there was no valid reason for her dismissal the dismissal was unfair and that she was being used as a “scapegoat” by her employer. It was further put by Ms Miao that the investigation into her conduct was seriously flawed as the employer’s desire to take action against her overwhelmed the requirement to hold a proper investigation. While Ms Miao conceded that a number of the allegations were correct, it was submitted they were tolerated by others and ANZ until the behaviour was exposed.

Evidence of Ms Miao

Ms Miao provided a witness statement[10] and a further statement in reply[11] to witness statements provided by ANZ. Ms Miao was subject to cross examination and other than her own evidence, called no witnesses in support of her application.

During part of the investigation into her conduct Ms Miao was overseas on leave in China. Her time overseas was longer than had been intended as she incurred an injury to her leg and stated she could not fly home. The medical certificate provided by Ms Miao, which is in Mandarin, stated that it was recommended she should rest for one month and then have the injury reviewed. Ms Miao took the certificate as meaning she was unable to fly.[12]

Ms Miao’s evidence was that her role was primarily about sales and that ANZ encouraged staff with rewards and bonuses to sign up customers. Marketing was considered to be everybody’s job at ANZ.

Ms Miao states she was told between October 2016 and December 2016 by her direct report Manager Mr Barry Tse [13]who worked at the Chatswood, “we want you to market and to get people to one [open] accounts[14] at ANZ. Get as many customers as you can.”[15] He also sent an email out to this effect.

In February 2017, Ms Miao was approached by a migration agent from a migration agency known as ‘Newstars’ who was also the coordinator of the Sydney University Career Expo. The migration agent wanted ANZ to participate in the Expo. ANZ organised orientation week events at universities for new students which was a way for ANZ to encourage graduates to apply for jobs and to get the best possible graduates to work for them. It was also an opportunity to market ANZ to potential customers and for current customers to upgrade.

In February 2017, Ms Miao approached Mr Tse about ANZ participating in the Career Expos. Mr Tse said that they should ask the Chatswood Branch Manager Mr Jack Huang. At a meeting with Mr Huang, Mr Huang said that information for the A – Z Review would be necessary. The A-Z Review is a process that ANZ uses to access a customer’s needs.[16]

On this basis Ms Miao, with help from the Newstars migration agent,[17] created a form titled Bilingual Talents Career Fair NewStars and ANZ form (the Form) and showed it to both Mr Tse and Mr Huang. After making some changes to the document Mr Huang advised Ms Miao to go ahead with ANZ’s participation in the Career Expos. Ms Miao stated that she believed the Marketing team had approved the event and the Form she had created. It was put to Ms Miao in cross examination that in recorded interviews during the investigation she had stated no one from ANZ approved the Form.[18]

Ms Miao’s evidence was that she contacted via email Mr Sangi Ratnakanthan, the Marketing Leader - Integrated Marketing Communications, who gave the go-ahead for her to attend the Expos in an email dated 3 November 2017[19]. Ms Miao did not ask Marketing to approve her Form. However, she did show the Form to her Branch Manager Vanessa Almeida who had no objection to it. The Form prepared by Ms Miao was then to be used at the Career Expos to recruit staff and customers. There were two Career Expos held; the first on 9 September 2017 and the second on 25 November 2017. Ms Miao was involved with both Expos together with other staff.[20] At the Expos, the Form was distributed to students.

Ms Miao accepted that the Form that she had designed for use at the Expos was not consistent with ANZ’s form for opening accounts.[21] The correct form contains, for example, tax residency details to complete which were not contained in the Form that Ms Miao had designed. Ms Miao’s Form, besides missing details from the approved account opening form,[22] also contained additional information not on the ANZ approved form and not relevant to opening an account, but relevant to seeking employment with ANZ.

Before the commencement of the second Career Expo, Ms Miao transferred from the Chatswood Branch to the Gordon Branch as a Senior Personal Banker around 4 September 2017.

Ms Miao stated that she did not advise any students at the Expo that they had to be customers of ANZ to apply for jobs with ANZ. Although she did tell students that if you work for ANZ it is a requirement to have an account with ANZ.[23] Ms Miao stated it was common practice to accept forms that were incomplete by potential customers and to go back to them later to fill out the rest of the form.[24] This is what occurred at the Career Expo as most people would not have the full details and they would be called later to see if they want to proceed with opening an ANZ account. The forms cannot be entirely filled out due to the fact that an account number and account type cannot be created without the use of the computer system which needs to occur in the office.[25]

Ms Miao stated that she did not open any superannuation accounts or tell customers to open superannuation accounts.

Ms Miao acknowledged that she had sent a student’s resume to a third party on the basis she was trying to help someone who was an international student as this student had said if you see any opportunities please recommend me and give my resume to other employers. In hindsight Ms Miao recognised this was not appropriate.[26]

Ms Miao’s evidence was that the social media network “WeChat” is used by many people in the Asian community and by staff at ANZ to promote business which had been encouraged by Ms Sue Dillon, the General Manager Greater Sydney.[27] The only way for Ms Miao to use ‘WeChat’ was via her personal email as the business email would not allow WeChat to be used. Ms Miao acknowledged that in hindsight she should have brought this to the attention of ANZ management for direction.[28]

Ms Miao denied opening any accounts for customers without their consent. Ms Miao accepted in cross examination that prior to opening accounts the customer must be interviewed and identified; this is a procedure that must be followed in any location. Ms Miao was not able to explain why this procedure did not take place at the Career Expos.[29]

In cross examination Ms Miao was taken to a number of forms used to open accounts that were signed by the customer but were otherwise not completed and left blank. Ms Miao accepted this was not ANZ’s practice, but the procedure told to her by Mr Tse.[30]

Ms Miao’s evidence was that Mr Tse was the chief organiser of ANZ’s involvement in the Expos and he gave instructions to staff. At the first Expo held on 9 September 2017, 162 Forms were collected and 152 at the second Expo held on 25 November 2017[31]. Ms Miao did not fill out any Forms herself as she was too busy,[32] but did ask employees who were Mandarin speakers at the Gordon Branch to open some accounts based on the information in the Forms. None of these employees had attended the Expo themselves. The three accounts that Ms Miao asked the employees to open were an:

·     Access account;
·     Online Saver account; and
·     Progress Saver account[33]

One staff member who Ms Miao asked to open accounts was uncomfortable to do so[34]. Ms Miao opened accounts from the Expos[35] and believed that she had contacted all persons for whom accounts were opened, although in cross examination she couldn’t recall if she had contacted specifically named customers.[36] For a number of accounts there was nothing in the Forms that were received from the Expos that indicated the customers had wanted to open ANZ accounts.

Ms Miao’s evidence was that the terms and conditions that customers were required to see before signing forms to open accounts were contained in gift bags given to students at the Expos.[37]

Ms Miao also acknowledged that she had sent bank information from her personal email account to her work address.

Ms Miao stated that on or around 2 January 2018 at a staff meeting she complained to Ms Almeida, the Gordon Branch Manager, about someone being at the counter alone and staff were unable to go to the toilet, to which Ms Almeida replied “I can’t tolerate you. I’m going to get you fired”.[38]

In providing answers under cross examination Ms Miao was not a convincing witness. However, this may have been due to not being fully proficient with the English language.[39] Ms Miao gave no evidence regarding her notice of resignation which stated it was for personal reasons and thanked the ANZ for the opportunities it had provided.[40]

ANZ’s submissions

ANZ submits that on or around 13 December 2017, its Group Investigations Unit received information via a whistleblower complaint regarding the alleged misconduct of a number of its employees in its North Shore District in New South Wales regarding the opening of accounts for new customers arising from two events known as Career Expos which were facilitated to showcase the ANZ as an employer to students and graduates.

It was alleged that some students were misled and encouraged to believe they needed to open an ANZ account in order to submit a resume for employment consideration. Potential applicants for employment had their personal data used for opening accounts without their consent or knowledge or if they did know or provided their consent they did so on the basis that they thought it would assist in obtaining employment with ANZ.

An investigation was conducted concerning the two Career Expos which took place on 9 September 2017 and 25 November 2017. The investigation involved a number of staff and included Ms Miao who was interviewed on two occasions and found to be a key figure in organising ANZ’s presence at the Expos and in the opening of accounts or instructing other staff to do so after the Expos.

Based on the evidence gathered by the Group Investigations Unit it was found that Ms Miao had:

Between September and December 2017 opened multiple accounts of individuals following the Career Expos, in some instances without their knowledge or consent and without sufficient documentary authority. Ms Miao had also instructed other staff to open accounts without confirming the potential customer’s knowledge or consent with insufficient documentary authority;

Created a document for the Career Expos’ use with customers co-branded with a third party without ANZ approval;

Forwarded an individual’s resume to a third party without the individual’s consent using ANZ systems;

Used her personal email for ANZ business and on 15 occasions sent emails from her personal email address containing customer information; and

Breached confidentiality during the investigation process.[41]

Ms Miao was suspended on pay on 1 February 2018, pending finalisation of the investigation. However, prior to the finalisation of the investigation, Ms Miao tendered her written resignation to the ANZ upon which the ANZ required her to remain in employment until the conclusion of the notice period being a period of 4 weeks to expire 11 March 2018 and continued to investigate the allegations.

Ms Miao was on annual leave until 28 February 2018 and then reverted to being suspended on pay until her termination of employment.

In submitting that the dismissal of Ms Miao was not unfair, ANZ called three witnesses:

Ms Vanessa Almeida - Gordon Branch Manager ANZ
Ms Jennifer Banks - Lead Investigator Group Investigations ANZ
Ms Sue Dillon - General Manager ANZ

Evidence of Vanessa Almeida

Ms Almeida as the Gordon Branch Manager reports to a District Manager. Ms Almeida provided a witness statement[42] and was subject to cross-examination. Ms Almeida stated that on Ms Miao’s transfer from the Chatswood Branch to the Gordon Branch in early September 2017, Ms Miao told her that she was organising Career Expos with the help of the Branch Manager at Chatswood and another Senior Personal Banker from Chatswood. Ms Miao advised that everything had been organised and approved, however none of her Gordon Branch staff attended the Expos. The only other information Ms Almeida had about the Career Expos was an email that Ms Miao had copied to her that was sent from Senior Personal Banker Mr Tse on 4 September, advising of the forthcoming Career Expo on 9 September 2017, stating:

“Same as last time, try to open as many accounts as possible, while capturing all the information necessary for the A – Z review to be done.”

After the Career Expo, Ms Almeida became aware that Ms Miao had asked the Mandarin speaking employees at the Gordon branch to open some accounts based on information obtained from students who attended the Expo. She was aware of this as two employees had approached her and stated that they were being told to open accounts for customers from the Career Expo without verifying the information with the customers. They were told to open three accounts for everyone and not to issue cards or customer registration numbers for internet banking. They expressed their concern to Ms Almeida with the process because they did not know the students and whether the students actually wanted to open accounts.

One employee said to Ms Almeida that she felt this was ‘dodgy Chinese business’ and felt sorry for the students who were agreeing to this hoping to get a job with ANZ (only Chinese speaking staff were asked to volunteer to work at the Expos[43]).

The staff members were told to send an email requesting customer resumes as ‘the next step of the process’ after accounts were opened. Ms Almeida was copied in on an email sent from Ms Miao on 13 September 2017, forwarding on information about how many accounts were to be opened and providing a template email requesting student resumes. Ms Almeida stated this was not a standard procedure and most unusual.

As Ms Almeida wanted to be supportive of the Career Expo initiative, and as Ms Miao had told her that everything had been approved, Ms Almeida advised the two staff that had concerns with opening accounts to do so and if there were still concerns they could be addressed later.

After the September 2017 Expo, Ms Miao asked Ms Almeida to open numerous superannuation accounts for students who attended the Expo. Ms Almeida was the only person at the Gordon Branch authorised to open superannuation accounts. Ms Almeida opened two accounts and contacted the customers to confirm whether they wanted the superannuation accounts; however, they responded that they did not know what she was talking about. Because of the strict rules about opening superannuation accounts Ms Almeida stopped opening the accounts. No customers ever enquired as to why superannuation accounts were not opened.

Ms AImeida’s evidence was that when she opened the two superannuation accounts she noticed the customers had accounts but no cards or customer reference numbers to link to their superannuation accounts, which she regarded as very unusual.[44]

In early November 2017, Ms Almeida became aware that the District was planning to participate in another Career Expo in late November. On 6 November 2017, she spoke to her District Manager about her concerns and assumed that the ANZ would not participate, however Ms Miao continued to organise ANZ’s participation in the Expo, which went ahead.

In early December 2017, Ms Miao handed her a bundle of Forms which were said to originate from the November 2017 Career Expo and stated that these accounts had already been opened. She had not previously seen any Career Expo paperwork. The types of questions on the Form were not normally asked of customers and the ANZ letterhead had been photocopied onto the Form giving her doubts as to whether the Form had been approved by Marketing. On checking whether the accounts that had been opened after the September Expo had been activated, numerous accounts had a zero dollar balance with no activity and some had a closed status having been closed shortly after their opening, with no activity since having been opened.

With this information, and having already raised her concerns with her District Manager, Ms Almeida felt that the conduct was not legitimate in relation to the Career Expo students. On this basis she called the ANZ whistleblower hotline on 19 December 2017, and Group Investigations later contacted her seeking information. Ms Almeida was interviewed by Group Investigations on 10 January 2018, but had no other role in the investigation.[45]

Ms Almeida states she was advised by Group Investigations that Ms Miao was suspended on pay on 1 February 2018. Ms Miao then commenced a period of pre-approved annual leave from the 3 February 2018 to 27 February 2018.

On 11 February 2018, Ms Miao sent Ms Almeida an email advising that she was resigning. Ms Almeida sent a reply email to Ms Miao on 12 February 2018, stating she would contact People Assist to finalise Ms Miao’s leaving advice and stating she hoped all was well in China and wishing her every success in her future endeavours.[46]

On 15 February 2018, Ms Almeida sent a letter[47] by email to Ms Miao stating that she had contacted Employee Relations for guidance and that Ms Miao was to remain as an ANZ employee during her notice period. The letter confirmed that she had been placed on suspension from 1 February 2018, as part of an investigation conducted by the ANZ’s Group Investigations, and was to remain contactable and available at the conclusion of her leave ending on 27 February 2018, for the balance of her notice period. The letter stated that if the investigation made adverse findings she would be required to attend a disciplinary process in relation to the findings. She was therefore instructing Ms Miao to return to her employment at ANZ at the end of her annual leave at which time the terms of her suspension would continue to apply and to confirm within 24 hours the date of her return.

On 15 February 2018, Ms Miao sent her two emails advising she was on sick leave but still contactable via email and on her Australian phone number regarding any further investigation and that she was unable to return to work due to advice from her doctor and requesting her sick leave be approved until 13 March 2018.[48]

On 16 February 2018, Ms Almeida sent an email to Ms Miao asking for her to confirm by return email that she will return to Australia at the end of her annual leave to remain on sick leave until 13 March 2018.[49]

On 21 February 2018, Ms Almeida sent a further email to Ms Miao thanking her for providing a medical certificate, which the ANZ had had translated indicating that she had sustained a soft tissue injury to her ankle. Ms Almeida stated that ANZ did not consider that the nature of her medical condition prevented her from returning to Australia at the end of her annual leave, nor did the medical certificate state this.[50]

Ms Almeida’s correspondence went on to say that there were serious issues regarding her behaviour and that adverse findings had been made following the internal investigation and that ANZ would shortly commence a disciplinary process.

Ms Almeida stated that Ms Miao did not return to Australia prior to the end of her employment on 9 March 2018. She further stated that she never made any comment to Ms Miao on 22 January 2018, or any other time that she was going to get Ms Miao fired.

Ms Almeida accepted in cross examination that the aim of the Expos were to open as many accounts as possible,[51] which was confirmed in the email of Mr Tse sent on 4 September 2017.[52]

Ms Almeida also acknowledged that opening accounts was a key result area for employees that may affect an employee’s ranking and bonus.[53]

Evidence of Jennifer Banks

Ms Banks is employed as the Lead Investigator Group Investigations (Enterprise Division) which is responsible for investigating allegations relating to fraud over $100,000, alleged criminal conduct and whistleblower complaints. Ms Banks provided a witness statement[54] and was subject to cross-examination.

Ms Banks stated that the Group Investigations Unit received a whistleblower complaint around 13 December 2017, regarding the North Shore District in New South Wales concerning the opening of new customer accounts following two events known as “NewStars Career Expos.” The essence of the complaints were that:

students had been misled or were encouraged to believe that they needed to open ANZ bank accounts in order to submit their resumes, and/or
potential applicants for employment had their personal data used for opening accounts without the consent or knowledge, or
if they did know, they consented because they thought it was more likely they would get a job doing so.

The extent of Ms Miao’s involvement and accountability together with other staff was investigated. Thirty six witnesses were interviewed which included both ANZ employees and customers over a period of approximately 4 weeks.

Ms Miao was interviewed on 10 January 2018, and stated that she had designed the Bilingual Talents Career Fair NewStars and ANZ form together with an immigration agent from NewStars and that no one had authorised the production and use of the Form. Ms Miao was further interviewed on 1 February 2018, during which she advised Ms Banks that the Form was designed by a migration agent from NewStars and that the Form had not been submitted to any department in ANZ for approval. In cross-examination Ms Banks stated that Ms Miao knew from her training that ANZ forms do not get approved by a Branch Manager.[55]

At no stage during the interviews did Ms Miao state that her Manager Ms Almeida had said to her that she was going to get her fired or that she had showed the Bilingual Talents Career Fair NewStars and ANZ form to Ms Almeida or that the Form had been approved within ANZ.

Based on the witness interviews and documentary evidence reviewed, Ms Banks formed the view that Ms Miao had formed a professional relationship with the Director of NewStars and had prepared the Form without approval from the appropriate Marketing personal. Ms Banks’ evidence was that she spoke to the Director of NewStars who stated that she had never seen the Form and that ANZ did not request permission to use their name ‘NewStars’ on the Form.[56]

Staff who attended one or more of the Expos stated that they were instructed to advise the students that if they wished to provide their resume to ANZ they needed to open bank accounts in the first instance.[57] Students were also asked to sign a form but not complete any other details on that form in preparation for opening the accounts. These forms were collated by the Senior Personal Banker at Chatswood and distributed among staff in the North Shore District. Some employees who received these forms were not the employees who had spoken to the students at the Expos. Some staff advised that they had tried to call customers prior to opening accounts and others stated they were not instructed to contact any customers prior to opening accounts and opened accounts without speaking to the customer.[58]

Ms Banks stated that she reviewed all customer account openings across the North Shore District in the relevant time period where customers held three or more accounts with a zero dollar balance and randomly selected approximately 70 customers whom she personally contacted. In doing so, she ascertained that half the phone numbers appeared to be ‘suspect’, seven were disconnected phone numbers and six were incorrect phone numbers. Eighteen customers did not know they had accounts in their name or said they felt compelled to open accounts to upload their resume for employment. Only one customer indicated they were aware that accounts had been opened in their name.[59]

Ms Banks contacted six customers that Ms Miao had opened accounts for, four of whom advised Ms Banks they were not contacted prior to accounts being opened and some that they were not aware that accounts had been opened. Ms Banks accepted in cross examination that she hadn’t checked all phone records that may have been made in relation to the Expo customers.[60]

Ms Banks made adverse findings in respect to Ms Miao which were contained in a letter sent to Ms Miao dated 31 January 2018. While Group Investigations determined that disciplinary action should be taken, it was not their role to determine the nature of any disciplinary action.[61]

Ms Banks acknowledged in cross examination that she had recommended training of staff in the Code of Conduct, Information and Security Policy and use of Systems and Equipment Policy and to correct account opening procedures on the basis that a lot of staff do not know what they are required to do under these policies.[62] Ms Banks also accepted that there was a general malaise within ANZ from the District Manager downwards about Career Expos.[63] Ms Banks confirmed that three other employees in addition to Ms Miao were dismissed as result of her investigation, but her investigation report did not distinguish the various levels of culpability of the dismissed employees.[64]

Evidence of Sue Dillon

Ms Dillon is employed by ANZ as a General Manager responsible for overseeing 16 branches in the retail network with around 1,100 staff. District Managers report to her and she is responsible for the overall service and performance of Branches in her part of the retail network and is responsible for ensuring Branches in the Greater Sydney Districts are adhering to ANZ policies, processes and external regulatory and legislative requirements.

Ms Dillon provided a witness statement[65] and was subject to cross-examination. Ms Dillon’s evidence was that on 15 February 2018 she received an investigation report (the Report) prepared by Ms Banks of Group Investigations regarding Ms Miao. The Report considered ANZ’s involvement in the Career Expos which took place in the latter half of 2017. On reading the Report, it was apparent to Ms Dillon that Ms Miao was a key figure in organising ANZ’s presence and participation at the Career Expos. Although, in cross examination Ms Dillon accepted that employees more senior than Ms Miao knew of the Expos and had authorised and encouraged the event and had authorised and encouraged the opening of accounts.[66]

After considering the Report in detail Ms Dillon was of the view that the findings in the Report should be put to Ms Miao through a disciplinary process.

Ms Dillon was concerned that the Bilingual Talents Career Fair NewStars and ANZ form created by Ms Miao had not been approved nor to co-brand with NewStars. The Form was also designed in a potentially misleading way to link the opening of accounts to be considered for jobs with ANZ. In cross examination Ms Dillon agreed that Mr Tse had reformatted the Form and that Mr Huang, a Branch Manager, had stated he had seen the Form and given Ms Miao the ‘ok’ to use the Form at the Expos, although this was not ‘formal’ ANZ approval.[67]

At the November 2017 Expo no brochures, account information or terms and conditions were available to potential customers. The ANZ Account Opening Details form was not used, the Signature Form was used, but not fully completed and was attached to the non-approved Bilingual Talents Career Fair NewStars and ANZ form. Some customer identification was cited, but not all customers had their identification verified. The process for contacting customers to advise that accounts had been opened was not followed by all staff. However, Ms Miao had maintained that all customers had been spoken to.[68]

In cross examination Ms Dillon accepted that there was no way of identifying which customer accounts were opened as a result of the Career Expos, short of calling every customer.[69]

Ms Dillon having reviewed Ms Miao’s training record and confirming it was up to date, sent emails on 7 and 8 March 2018 to Ms Miao to discuss arrangements for a meeting and advising her of the allegations of misconduct.[70] A meeting was arranged by video conference for 9 March 2018.

Before the meeting, Ms Miao’s solicitors advised that they believed the 48-hour notice was insufficient to provide procedural fairness.[71] Ms Dillon’s solicitors were advised that Ms Miao had been aware of the nature of the allegations for several weeks by her participation in the investigation interviews and that the interview needed to proceed as Ms Miao had resigned with effect from 11 March 2018. Ms Dillon noted that Ms Miao was aware that she faced serious issues through the interviews she had already attended with Group Investigations on 10 January 2018 and 1 February 2018, and that she had been suspended since 1 February 2018. Further the meeting had been foreshadowed previously by ANZ in correspondence from Ms Miao’s Line Manager on 15 February 2018 and 21 February 2018.[72]

Ms Miao stated in her witness statement of 5 July 2018[73] that her lawyer advised her not to attend any interviews regarding the investigation.

Ms Miao did not attend the meeting and in Ms Dillon’s view attempted to delay the meeting, which was so her notice period would elapse before any decision on her future employment with ANZ, including termination for misconduct could be made.[74]

In the absence of Ms Miao attending the meeting, Ms Dillon proceeded to make a decision based on the information available to her including Ms Miao’s responses provided during the two interviews during the investigation process.

Ms Miao was advised in writing on the afternoon of 9 March 2018, that her employment would be terminated effective immediately. However, she was advised that she would receive 4 weeks’ pay in lieu of notice.[75] This was despite her notice period, based on her resignation, expiring on 11 March 2018.

Ms Dillon stated that the allegations made against Ms Miao involved numerous breaches of ANZ policies and procedures and constituted a failure by Ms Miao to meet her requirements under the Financial Services Reform Act 2001(Cth) and that her conduct was inconsistent with ANZ’s values.

Ms Dillon noted that Ms Miao held a Senior Personal Banker role and was in a leadership position in her Branch. Ms Dillon found that Ms Miao’s conduct was serious and repeated and that she had breached the trust that ANZ needed to have in her while in a leadership role particularly in regard to the proper opening of accounts for customers.

Ms Dillon determined that Ms Miao’s conduct, including her central role with organising the ANZ presence at the Career Expos and the directions that she gave to staff, had destroyed the trust and confidence fundamental in her employment relationship and warranted termination.

Ms Dillon also advised that three other staff involved in the circumstances surrounding the Career Expos were also dismissed. These employees occupied the positions of:

·     Senior Personal Banker,
·     Branch Manager, and
·     District Manager.

Due to the serious nature of the conduct, and in accordance with s.912D of the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission were notified of the unauthorised opening of deposit and other accounts by ANZ staff.[76]

Ms Dillon denied having to make an example of Ms Miao and others due to the then impending Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.[77]

Relevant Legislation

Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal. Section 385 of the Act provides as follows:
“S.385. A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
The Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy:

“S.396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”

The application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Ms Miao is not a person protected from unfair dismissal. The ANZ is not an employer covered by the Act’s Small Business Code.

Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:

“Section 387 Criteria for considering harshness
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”I will now consider these factors in turn.

Whether there was a valid reason related to capacity or conduct for the dismissal

The term “valid reason” was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd[78], in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, Northrop J comments remain apposite:
“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, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”

The conclusion to be drawn from the above decision is that a “valid reason”, means the reason for the dismissal must be sound, defensible or well founded and should not be “capricious, fanciful, spiteful or prejudiced.” This approach has been and continues to be adopted by this Commission.

ANZ maintain that the reasons for dismissal provided in Ms Miao’s termination letter other than breach of confidentiality, which is no longer pressed, provide a valid reason for her dismissal. Ms Miao was sent a short termination letter on 9 March 2018 which referred to the allegations in the 7 March 2018 correspondence as having been substantiated. Ms Miao was then sent a further letter on 16 March 2018 with the reasons for termination extrapolated over five pages. The reasons for Ms Miao’s dismissal, despite the two correspondences provided to her, are not succinctly put but can be distilled as follows:

·Opening ANZ accounts for Chinese graduates and students that attended career Expos in September and November 2017 in some instances without their knowledge or consent and with insufficient documentary authority that contained only a signature or a signature and a name;
·creating a document titled Bilingual Talents Career Fair NewStars and ANZ form for customer use co-branded with a third party ‘NewStars’ without formal ANZ approval;

·forwarding a customer resume to a third party without customer authority using ANZ systems and a personal email account; and

·using a personal email account for ANZ business and transmitting customer details.

The above reasons do not include the allegation of confidentiality found to have been substantiated during the investigation process and which was relied upon at the time of the dismissal but not pressed at the conclusion of the hearing and in my view rightly made following the admissions during cross examination of Ms Banks and Ms Dillon.[79]

Ms Miao accepts that a number of the allegations made against her occurred, although the entirety and seriousness of such allegations is challenged.

Ms Miao accepted that she forwarded a customer’s resume to a third party using the employer’s systems.[80] She states she did so as she was trying to help an international student who had given permission for his resume to be forwarded to others. ANZ pointed to the email received from the customer[81] which stated it was provided for Ms Miao’s consideration but did not provide consent to pass the resume onto a third-party. Ms Miao did not provide any other support for her assertion that the customer had provided consent to forward the resume to a third party. Although Ms Miao in her evidence states that the customer said to her to please give the resume to other employees,[82] it does not appear that this explanation was provided during the investigation process where she relied upon the customer having ticked a particular box on the Form regarding career activities.[83] Ms Miao in her witness statement accepted that she should not have passed on the resume to a third party and would not do so in the future.[84]

On the basis of Ms Miao’s varying responses, I find that the passing on of a customer resume to a third party more likely occurred without the customer’s consent, however I do not find this conduct alone to be of a sufficiently serious nature to constitute a valid reason for dismissal.

Ms Miao is also said to have created a document known as the Bilingual Talents Career Fair NewStars and ANZ form without the requisite authority and co-branded the Form with the name of a third party migration agency ‘NewStars’. Ms Miao stated during her interviews with Group Investigations that no one from ANZ had approved the Form, and that she didn’t know that the Form needed to be approved[85].

In Ms Miao’s witness statement of 19 June, she states that she created the Form and showed it to two other employees, and that the Marketing team had approved the Expo and the material for it.[86] Ms Miao’s witness statement of 5 July states that she wrote the text for the Form but didn’t undertake the design work and that Marketing Manager had approved the Expo events.

In cross-examination Ms Miao agreed that the Form had not been provided to Marketing for their approval stating ‘I didn’t send it to get approved’.[87] At the same time Mr Huang, a Branch Manager, stated during the investigation that he did not vet the documents that Ms Miao was using and had seen the forms and gave the OK to Ms Miao to use the Form. He also stated that Ms Miao designed the Form.

During the investigation Ms Miao did not submit that Mr Huang had approved the use of the Form. On 1 February when asked who approved the Form, Ms Miao stated:

“I don’t know, I don’t know how to answer and this form we haven’t submitted to any department to get approve. (sic) This is a fact sheet where we record all of the information, I didn’t send it to get approved I didn’t even know that we need to approve a form to be honest, I don’t know how these things work. But this time and this question didn’t pop up in my mind so I didn’t ask.”[88]

I am satisfied that Ms Miao should have understood that she required formal approval for the Form she created and that Mr Huang was not the appropriate person to provide that approval.

Despite Mr Huang stating that he had given approval for the Form, as can be seen from the above, his approval did not appear to have been relied upon by Ms Miao during the investigation process when stating she didn’t even know that the Form needed to be approved.[89]

Having regard to Mr Huang’s role as Branch Manager I accept that Ms Miao may have felt showing the Form to him was sufficient. On this basis, I am not satisfied that this reason alone would provide a valid reason for her dismissal in lieu of a less severe form of disciplinary action. However, this conclusion cannot detract from the other reasons provided by ANZ for the dismissal and can be considered in conjunction with other reasons to provide a valid reason for the dismissal.

It was put on behalf of Ms Miao that there was no direct evidence that she had met any customers at the Expos that had accounts opened by her or that she had encouraged customers to fill out any forms. I find that ANZ’s investigation in identifying customers who had attended the Expos and who also had accounts opened by Ms Miao was thorough, but not exhaustive. Ms Banks conceded that she had not identified a number of phone call records[90] and Ms Dillon accepted that ANZ could only identify customers who opened accounts during a specified period and they could not identify whether they were Expo participants without speaking to them.[91] Of those that were spoken to, it was not identified by ANZ that Ms Miao had spoken to them[92] or had accounts opened by Ms Miao.

Despite this failing, Ms Miao did not submit in her evidence or during the investigation that she did not speak to Expo customers who opened accounts. During her recorded investigation interview on 1 February 2018, she stated:

“I called them and the thing is, there was some accounts if it was opened by me I gave them a call, maybe there was one, may be that one, that name I can’t remember, didn’t remember the name and maybe I called her and she didn’t pick up and I called her and she didn’t pick up and I gave up, maybe.”[93]

Further, during her interview with Group Investigations on 10 January 2018 she stated that she had opened accounts for those she spoke to at the Expos.[94]

Ms Almeida’s evidence was that following the Career Expo in September 2017, Ms Miao instructed two Mandarin speaking employees at the Gordon Branch, neither of whom attended the Career Expo, to open accounts based on information collected at the Expo. They were asked to open three accounts for each person and not to issue cards or customer registration numbers for internet banking.[95] They were asked to send an email to the customer after opening the accounts requesting their resume as the next step in the process. The pro forma email sent to customers states amongst other things:

“As per discussed, your profile and banking package has now being set up and accounts details have been attached to this email.

…
The next step of the process, is to reply to this email with your resume attached and make sure you put your current Visa status on your resume.”[96]

Ms Miao opened accounts from the documentation obtained from the two Career Expos.[97]

Under cross examination Ms Miao stated she was too busy at the Expos to complete the Forms and that she didn’t have time to speak to the students. [98] This evidence is not consistent with Ms Miao’s witness statement of 19 June 2018[99] where she states at paragraph [13] that she did not personally approach many participants in the event and when she spoke to students she would show them the catalogue and go through with them the information regarding ANZ.

In respect to obtaining student signatures using a blank signature form Ms Miao had no explanation other than she was told to do so by fellow Senior Personal Banker Mr Tse.[100] The obtaining of a customer’s signature on an otherwise blank form in order to enable accounts to be opened at a later date is contrary to ANZ’s policies and procedures and Code of Conduct and constituted a valid reason for dismissal. It is simply not sufficient For Ms Miao to state she was told by another colleague to act in this manner. Ms Miao has undertaken the appropriate training, occupies a senior position within her Branch, and must be accountable for her own actions in this regard.

The evidence from Ms Banks was that some customers whose accounts had been opened were contacted and provided feedback that they were under the impression that they needed to open an ANZ account in order to submit their resume.[101]

I conclude on the evidence that Ms Miao did open accounts for persons whom she personally spoke to at the Expos and instructed others to open accounts who had not attended the Expos. As the accounts were opened without the required ANZ background information and the documentation provided to students indicated that an ANZ account was necessary in order to submit a resume, this conduct being totally outside the ANZ’s policies and procedures and the Code of Conduct also constituted a valid reason for dismissal.

Ms Miao accepts that she used her personal email for ANZ business, and on 15 occasions transmitted customer details and documents from a personal email. Ms Miao stated that the use of the Chinese social media app WeChat was not prohibited by ANZ and staff had been encouraged by Ms Dillon to use WeChat.[102] She further stated that the only way to use WeChat was via her personal email as the business email would not allow her to use it.[103] In response, ANZ stated that its policies and procedures make it clear that employees have responsibility for security of information.

I am unable to accept that ANZ, despite its encouragement of employees to use WeChat, condoned the sending of customer details and documents via WeChat. As stated above, Ms Miao acknowledged that she should have sought approval for such transmissions to occur via WeChat.[104] I find that this action was also sufficiently serious enough to provide a valid reason for her dismissal.

Based on the findings above, and taking into account Ms Miao’s misconduct overall, I am satisfied that there was a valid reason for her dismissal.

Whether Ms Miao was notified of the reason for her dismissal and was given an opportunity to respond to any reason related to her capacity or conduct

In Crozier v Palazzo Corporation Pty Ltd (2000)[105] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

It was submitted on behalf of Ms Miao that she had not been provided with an adequate opportunity to respond to the allegations and that on 9 March she was in China and unable to travel due to medical reasons.

In considering whether Ms Miao was notified of the reason for her dismissal and whether she was given an opportunity to respond to any reason related to her conduct it is necessary to set out a chronology of events.

Ms Miao attended a preliminary interview with Ms Banks from Group Investigations in relation to the allegations on 10 January 2018, following which formal allegations were framed.

Ms Miao received correspondence from Ms Banks on 31 January 2018, setting out the formal allegations in regard to her conduct and directed Ms Miao to attend an interview on 1 February 2018 which she attended.

Following the 1 February interview, Ms Miao was suspended on pay pending the completion of the investigation and commenced a period of pre-approved annual leave from 3 February to 27 February 2018.

On 11 February 2018, Ms Miao provided notice to ANZ of her resignation which, according to the terms of her employment contract, would take effect 4 weeks from the date of her notice being 11 March 2018.

On 7 March 2018, Ms Miao was asked to contact Ms Dillon in relation to a meeting to discuss the correspondence sent by Ms Dillon advising of the commencement of a disciplinary process. This correspondence included the allegations relating to the disciplinary process.

Ms Miao was asked to attend a meeting on 9 March, and arrangements were made for Ms Miao to attend by video conference. Ms Miao was advised that should she not attend the meeting a decision on her future employment may be made in her absence. Ms Miao was advised that she was able to attend with her lawyer.

A video conference was arranged 9 March 2018, however, Ms Miao did not attend. Ms Miao’s evidence was that she had been advised by her solicitors not to participate in any interviews regarding the investigation.[106]

Ms Miao was terminated with written advice on 9 March 2018, which was effective immediately and was provided with 4 weeks’ pay in lieu of notice.[107]

I am satisfied that Ms Miao was notified of the reason for dismissal and provided with advance notice of those reasons in correspondence dated 7 March 2018. Ms Miao had participated in the investigation process in attending meetings on 10 January and 1 February 2018. The allegations, which became the reasons for her dismissal, were contained in correspondence of 31 January 2018. Ms Miao was able to provide her initial response to allegations at the meeting of 1 February 2018. I am further satisfied that Ms Miao was able to attend a video conference meeting on 9 March and elected not to attend at her own initiative or on the advice of her solicitors.

From the above, I also draw the conclusion that ANZ wished to terminate Ms Miao prior to her resignation taking effect on 11 March 2018, and that Ms Miao wished to delay any termination prior to her resignation taking effect.

I am satisfied that Ms Miao was provided with notification of the reasons for her dismissal and was provided with an opportunity to respond, but did not avail herself of that opportunity.

Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to the dismissal

Ms Miao did not suggest that there was an unreasonable refusal to allow her to have a support person present to discuss matters relating to her dismissal.

Ms Miao was notified in correspondence of 31 January 2018, that she may have a support person to attend the 1 February 2018 interview. At the commencement of the Group Investigation meeting on 1 February 2018, Ms Miao confirmed that she did not wish to have a support person in attendance. [108] Ms Miao was advised in correspondence of 7 March 2018 that she may have a support person to attend the 9 March 2018 interview.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

Ms Miao had not received warnings relating to unsatisfactory performance in respect to the matters that led to her dismissal; the misconduct relating to her dismissal had never previously been identified by the employer.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

The employer employs in excess of 21,000 persons in Australia and should have been expected to undertake a professional exercise in arriving at a conclusion that Ms Miao had engaged in misconduct to the extent that her employment should be terminated.

ANZ undertook a comprehensive investigation into the allegations raised through its whistleblower program, interviewed Ms Miao on two separate occasions and attempted to do so on a third occasion. Ms Miao was advised in writing of the procedures undertaken by ANZ during the investigation process and its finalisation. I am satisfied that the appropriate procedures were undertaken.

(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

The ANZ does not suffer from any absence of dedicated human resource expertise.

(h) Any other relevant matters

Whilst I am satisfied that the conduct of Ms Miao provided a valid reason for her dismissal this does not make the dismissal fair. As stated by the Full Bench in Container Terminals Australia Limited v Toby[109] at paragraph 15:

“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”

In Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229 a Full Bench of the Industrial Commission of South Australia stated:

“ … Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”
(My underline)

In Parmalat Food Products Pty Ltd v Wililo[110], the Full Bench held:

“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.”

It must be stated in Ms Miao’s favour that her conduct at the time in creating and using an unapproved Form, the misleading of students and the opening of accounts without appropriate approval, all took place in an open and transparent manner despite being in breach of the relevant ANZ procedures. Although, possibly due to becoming aware of the potential consequences of her behaviour, Ms Miao subsequently provided unclear responses during the investigation and appeared to adopt a defensive approach at the hearing during cross examination.

I also accept that ANZ’s 2017 performance measures[111] provide an incentive for employees to open accounts. The evidence supported that the number of accounts set up by an employee has a bearing on their annual bonus calculation,[112] which would appear to act as an incentive for employees to open as many accounts as possible, as Mr Tse’s email stated in regard to the Career Expo on 9 September 2017:

“Same as last time, try to open as many accounts as possible, while capturing all the information necessary for the A – Z review to be done.”

Ms Miao’s length of service was relatively brief, having commenced in April 2016, and is not a factor I consider would make the dismissal harsh. It is put by counsel for Ms Miao that her resignation date should be 28 March 2018, as this was what was stated in an email sent by Ms Almeida on 15 February 2018, and Ms Miao is entitled to rely upon this date. The email must be read in context, it refers to Ms Miao’s notice period which is four weeks, bringing the final resignation date to 11 March 2018. ANZ is unable to unilaterally vary and impose upon Ms Miao a further two weeks’ notice not provided for in her contract of employment.

I have also had regard to the four weeks’ pay in lieu paid to Ms Miao in considering whether her dismissal was unfair.

I consider the more important factor in considering whether the dismissal was harsh, unjust or unreasonable is that but for Ms Miao’s dismissal, her resignation (which had been accepted by ANZ[113]) would have taken effect on 11 March 2018, two days after her dismissal. As such, her loss is inconsequential other than the stain on her ANZ employment record. As a result of her dismissal the consequence for Ms Miao is that should she seek employment in a financial institution that is part of the Australian Banking Association, ANZ will, for a period of five years, advise the prospective employer of the reasons for her dismissal. While this may limit Ms Miao’s future employment opportunities in the financial sector, it is not a factor of itself that would make the dismissal unfair have regard to all the circumstances of her misconduct leading to her dismissal.

As I have concluded above, it is apparent that ANZ, once having determined that the allegations against Ms Miao were sustained, were anxious to ensure the process was finalised before Ms Miao’s resignation took place. Although, in my view this did not prejudice Ms Miao to the extent that her dismissal was unfair.

It was put by Ms Miao’s counsel that Ms Miao was a scapegoat and a small cog in the machine in respect to the organisation and conduct of employees surrounding the two Expos. ANZ placed significant emphasis on Ms Miao occupying a senior and leadership role. However, that senior role is only within her Branch and the ANZ stated base salary of $61,000[114] would not appear to be reflective of a senior role within ANZ as a whole. Despite where Ms Miao fell within the ANZ hierarchy her conduct was well outside the bounds of acceptable banking practice and destroyed the trust necessary to preserve the employment relationship.

As stated previously, Ms Miao needs to be held accountable for her own actions and accept responsibility for failing to comply with the relevant policies and procedures of ANZ. It is not enough to point to the conduct of others who sit above her, in lessening her culpability.

It is to be noted that Ms Miao was one of four employees terminated as result of the Group Investigation findings. One of those employees was at the same level as Ms Miao a Senior Personal Banker, the others being a Branch Manager and a District Manager. Had Ms Almeida’s concerns she raised with her District Manager about the opening of accounts following the first Expo been acted on, as should have happened, the outcome may have been different.

Having regard to the above I find that the dismissal was not unfair; as such Ms Miao’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

I Latham of Counsel and J Shaw solicitor on behalf of the applicant
Ms A Perigo of Counsel and Ms E Aitken solicitor on behalf of the ANZ

Hearing details:

2018

July 18, 19.

August 31

Final written submissions

ANZ

19 September

Ms Pu Miao

5, 21 September

[1] Exhibit R6 at [5]

[2] Ibid at VA4, PN1251

[3] Ibid at VA5 Sch 3

[4] Correspondence from ANZ to Ms Miao on 15 February 2018

[5] Exhibit R6 at [28](a), PN1236

[6] Exhibit R7 at Attachment JB 1

[7] Written submissions 19 September at [77]

[8] JB2

[9] R9 SD12

[10] Exhibit A1

[11] Exhibit A2

[12] A1 at [21]

[13] ANZ did not accept that Mr Tse was the applicant’s direct report but on the same level as the applicant[13]

[14] See email of Mr Tse at paragraph [41] below.

[15] A1 at[4]

[16] Exhibit R1 PN223-5

[17] PN595, 666

[18] PN607, 659

[19] Exhibit R3

[20] PN363-4

[21] See SD5 of Ms Dillon's witness statement

[22] R9 at SD5

[23] Statement of Ms Miao Exhibit A1 at [12]

[24] A1 at [14]

[25] A2 at[14]

[26] A1 at [16] although the grammar used is give my resume to other employees.

[27] A1 at [17]

[28] A1 at [18]

[29] PN278, 1130

[30] PN1130

[31] Exhibit R4

[32] PN739

[33] PN769

[34] PN756

[35] PN873

[36] PN1035,1049

[37] PN1127

[38] A1 at [20]

[39] PN782 see also PN823-834

[40] R6 at VA4

[41] ANZ’s Outline of Submissions 28 June 2018

[42] Exhibit R6

[43] Exhibit R7 at [17(b)]

[44] R6 at [16]

[45] PN1712

[46] R6 at VA4

[47] R6 at VA5

[48] R6 at VA6

[49] R6 at VA 7

[50] R6 at VA 7

[51] PN1535

[52] R6 VA 1

[53] PN1677-8

[54] R7

[55] PN1996

[56] R7 at p.8 and Attachment JB5 at p.8

[57] R7 at 17[(d)]

[58] R7 at 17[(h)]

[59] R7 at (19)

[60] PN1955,1962

[61] PN1985

[62] PN2003-4

[63] PN2095

[64] PN2121

[65] R9

[66] PN2502-3

[67] PN2410-11, PN 2555

[68] R9 at [14]

[69] PN2330-2335

[70] R9 at SD7,SD8, SD9

[71] R9 at SD11

[72] R9 at [21(a)]

[73] A2 at [20]

[74] R9 at [21(f)]

[75] R9 at SD12

[76] R9 at SD14

[77] PN2510

[78] (1995) 62 IR 371 at 373

[79] Employer’s final submissions, 19 September 2018 at [77]

[80] Ibid at 16]

[81] R7 at JB5 at (k)

[82] A1 at [16] the reference to employees should perhaps be employers.

[83] R5 Attachment JB5 Investigation Report at p.15

[84] A1 at[16]

[85] Investigation Report at p.12, 13

[86] A1 at [9]

[87] PN526

[88] R7 JB5 p.13

[89] Ibid

[90] PN1955

[91] PN2333, 2341

[92] PN2342

[93] R9 at SD1 at p(11)

[94] Investigation Report JB at p9-10

[95] R6 at [8] and [9]

[96] R6 VA2 at p.4

[97] R7 at JB3

[98] PN739-40

[99] A1 at [13]

[100] Investigation Report at p.10

[101] Ibid at p.22

[102] A1 at [17]

[103] Ibid at [18]

[104] Ibid

[105] 98 IR 137

[106] A2 at [20]

[107] How 4 weeks’ pay in lieu of notice operated with Ms Miao’s resignation taking effect on 11 March was not explained by ANZ

[108] PN522-3

[109] Print S8434

[110] [2011] FWAFB 1166

[111] R2 2017 Performance Management & Performance Measures

[112] Ms Almeida at PN1514

[113] R6 at VA5 p.9

[114] F3 at 1.5

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