Sanguinede v National Australia Bank Limited

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANGUINEDE v NATIONAL AUSTRALIA BANK LIMITED

[2019] FCCA 2729

Catchwords:

INDUSTRIAL LAW – Adverse action – termination of employment – whether the applicant was dismissed for a prohibited reason – onus of the respondent discharged – application dismissed.

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Anor [2012] 290 ALR 647

Applicant:

PATRICIA SANGUINEDE

Respondent:

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)

File Number:

PEG 353 of 2017

Judgment of:

Judge Vasta

Hearing dates:

2 and 3 September 2019

Date of Last Submission:

3 September 2019

Delivered at:

Perth

Delivered on:

3 September 2019

REPRESENTATION

The Applicant appearing on her own behalf

Counsel for the Respondent:

Mr J.F. Raftos

Solicitors for the Respondent:

King & Wood Mallesons

ORDERS

That the Applications filed 29 June 2017 are dismissed.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 353 of 2017

PATRICIA SANGUINEDE

Applicant

And

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 29 June 2017, the Applicant, Patricia Sanguinede, filed an originating application in this Court alleging that she had been the victim of adverse action, in that she was dismissed from her employment because she exercised workplace rights. In that application, she particularised the workplace rights that she had exercised.
The Respondent company, National Australia Bank Limited (“NAB”), employed the Applicant as a customer advisor in the relief section in November 2014. That position was a part‑time position as the Applicant would, if regular workers were on leave, be deployed to fill in for them.
In 2015 the Applicant began working at the Palmyra branch of the NAB for 36 hours a week. In that position, she ended up becoming a customer advisor level 2. Though there is some argument about this matter, which I will speak of later, the Applicant contends that she had to do three jobs in that position; that is, one of being the teller, one of being the head teller and one of selling products, such as insurance.
She was at the Palmyra branch until approximately November 2016. She says that she was demoted and transferred to the Riverton branch of the NAB. She said that she continued to exercise her workplace rights and make complaints about the situation which led to a meeting with her union representative and representatives of the bank.
She said that just before that meeting she was informed of allegations of misconduct and was asked to respond to those allegations. She said that she did not have sufficient time to make that proper response; however, there was a written response given.
The meeting did occur where the Applicant did put her complaints to NAB management and NAB management then outlined to her the allegations against her. What then occurred was that, on 12 January 2017, she was given a letter which detailed some eight instances of misconduct, sufficient that the NAB then gave her what was called a “red gate” and the letter explaining that red gate was, in effect, a letter putting her on a final warning.
The Retail Customer Executive for the area in which the Applicant worked spoke to the Applicant about the contents of the letter and went through the letter with her. Both the Retail Customer Executive and the Applicant then signed the letter on 12 January.
On 18 January 2017, the Applicant was approached by the Retail Customer Executive with two further allegations that were alleged to have occurred one day after the signing of that letter, that being 13 January. The Applicant was informed of those allegations. She spoke to her union representative. Her union representative put in a response to those allegations on 19 January. On 25 January 2017, the decision was made by the Retail Customer Executive to terminate the employment of the Applicant.
The application filed in this Court on 29 June 2017 alleges three aspects of the employment of the Applicant that led to her dismissal.
The first incident revolved around the Applicant’s application for annual leave. The background to this is that the Applicant had taken annual leave in the years 2015 and 2016 during the July/August period. In September 2016, the then manager of the Palmyra branch, Ms Natasha Trebely, sent an email to staff telling them that, for forward planning, she wished to know when persons were planning to take leave in the 2017 year.
Whilst the email asked the staff to respond by email by a certain time, Ms Trebely, whom I should add is a part-time manager and only visits the Palmyra branch once a week, popped into the Palmyra branch and spoke to the Applicant. She, according to the Applicant, asked her when she wanted leave. The Applicant said that she wanted leave during the July and August period in 2017. The Applicant said that she told Ms Trebely that she preferred to take leave in that time as she wanted to visit her family in Europe and that was when most people in Europe were on holiday.
She said that Ms Trebely informed her that she would not be able to take leave during that period and that the Applicant’s family could work around the Applicant’s holidays by coming to Australia to see the Applicant instead, and that the Applicant could take time off in either February, May or June. The Applicant said that she explained that these periods of time did not suit her because of family obligations and that she did not want to have a negative balance of annual leave. She said that the assistant manager told her there and then that she should accept the proposal. She said that she felt under pressure and accepted the proposal but she cried and felt humiliated because of this.
She said that she sent an email to the Retail Customer Executive, Mr Stancombe, and Mr Stancombe replied by simply saying that he supported the decision made by the branch managers. The Applicant sought assistance from the Financial Sector Union in relation to this and another letter was sent by the union, on behalf of the Applicant, about taking leave at this time and the decision remained the same.
With regard to that aspect, both Ms Trebely and Mr Stancombe gave evidence before me. Ms Trebely explained that there was a need to be fair about the times that people were given for leave and that when she approached the Applicant on 20 September 2016 and asked her, she already knew that someone else has asked for the July/August period.
She said that in the interest of fairness it was time for that person to have the July/August period instead of the Applicant who had had it for the past two years and that is why she said what she said to the Applicant.
She denies the Applicant had made any application at this stage; it was simply that that was what was verbally told to her. The email trail is instructive. On 21 September the Applicant sent a note by email to Mr Stancombe saying:
Hi, Jim. I am sending you a message tonight because of a distressing incident which happened at Palmyra branch today. Natasha Trebely, the manager, came over and spoke about holiday and the fact that I had to book them now for next year. She gave me three options for the whole year. One month block in February, then three weeks in June or two weeks in May, and she also did show me a plan of where everyone was booked already, so it was the leftover. She did speak to me on that private matter at my counter as I was balancing.
I told her I had to think about it because I always take July or August, as mentioned during my employment interview. My family is in Europe and it takes me two full days to travel over to see them. I want to stress; we never spoke about my circumstances around those holiday previously with Natasha. I mentioned then that I wanted to see my family during July or August because most people in Europe are in holiday at that period but did not want to speak any further because everyone could listen.
She then said that she gives me enough notice so my family can work around my holiday. She also mentioned that my family could come over to see me, or that I could see them on the weekend. I felt pressured. Kerryn said, 'You should accept', so I said yes. I also cried and felt humiliated. What Natasha does not know, but Kerryn knows, is that my dad has a bladder cancer and emphysema which I can support with a medical certificate. We might have to arrange to look after him with two of my brothers. Despite this, as far as I know, everyone is supposed to give requirements but I have never given her anything or discussed why I wanted these holidays.
I also thought the privacy and ethic behaviour were extremely important at NAB. In my view, Natasha did not demonstrate this as a leader and I am very concerned about working with her as a manager. Kind regards, Patricia.
Mr Stancombe replied the next day, 22 September:
Hi, Patricia. Thanks for sharing your thoughts and concerns with me. I am sorry to hear about your father. Personally, I am committed to improved annual leave planning in FY17. This includes the need for fairness and flexibility from all of us. As an example, our branch managers have had to plan their own annual leave taking into consideration one another. This has meant that over periods, such as Christmas and school holidays, I have had to ask branch managers to be flexible; meaning, the same people can't always have the same leave to ensure it is aligned to supporting business needs and that it is fair on all. Natasha and Sam both have my full support. I encourage you to discuss this further with them. Regards, Jim.
On the 23 September, the next day, Ms Sanguinede wrote:
Hi, Jim. Thank you for your message. Kind regards.
Despite this, Ms Sanguinede still put in an application through the computer system for Ms Trebely to authorise, asking for a period in July/August 2017 as annual leave. Ms Trebely denied that application.
On 20 October the Finance Sector Union wrote to Mr Stancombe:
Dear, Jim. We are writing on behalf of Patricia Sanguinede and her request for annual leave. Patricia has requested annual leave of four weeks over the month of August 2017. She requires this time as she is returning overseas to care for her father, who has been diagnosed with cancer and emphysema, so she can provide her brother a break from carer’s responsibilities. We understand the leave has been declined due to another colleague already having this leave. We are requesting on compassionate grounds that the bank look at granting this leave in this instance. Patricia has provided ample notice and would be grateful if the bank would honour this request due to the required nature of the leave.
On 29 October, some nine days after the union letter, Mr Stancombe wrote back saying:
Hi, Kathy. Thanks very much for your letter and for taking the time to meet with Patricia. We have had an open and transparent process for planning annual leave for the year ahead. Consideration has been given to the timing of requests from team members, relief planning and fairness across the market. I remain supportive of the decision we have made regarding Patricia's leave in August 2017.
The Applicant argues that this was a significant matter and that it must have annoyed the Respondent by escalating the matter to Mr Stancombe and then also involving the union. In this trial she has, in cross‑examination, put to both Ms Trebely and Mr Stancombe that she is entitled to have carer’s leave for 10 days a year and that this leave can accrue. She said that this application should have been granted as far as carer’s leave was concerned if it was not going to be granted as annual leave.
The problem with that submission is that the Applicant didn’t ever make an application for carer’s leave, nor even for some form of compassionate or special leave. It was an application for annual leave. Notwithstanding that it would be quite unusual to ask for carer’s leave for a period at least 10 months in the future, the fact is that there was no denial of any application other than annual leave. Nevertheless, the point is still the same; that, from the Applicant’s point of view, this must have been somewhat of an annoyance for the Respondent.
Whilst this was a significant matter for Ms Sanguinede, and no one doubts her bona fides that she really wanted this leave, the matter, according to both Ms Trebely and Mr Stancombe, was not a particularly significant matter in their mind because the juggling of annual leave and persons being upset at decisions that are made are simply part and parcel of the job and it does not occupy their minds to any great extent.
The second incident that the Applicant spoke about in her pleadings was the issue of her bonus. The Applicant said that she was paid a bonus in the 2015 financial year. But she says that, in November 2016, she complained or inquired as to why she had not received her bonus for the financial year of 2016. It should be noted that the financial years for the bank end at 30 September each year rather than 30 June each year.
The Applicant said that she wanted to see her end‑of‑year scorecard of results to determine why she had been given the status of “expectations not met” for her bonus.
She pleaded that she was not provided with this. She also pleaded that she complained and inquired as to why she did not receive the bonus with Ms Trebely and she made a request to receive further training in the head teller position that she was required to perform. She also complained that she was working three roles at the same time: that of teller, head teller and salesperson. She said that she also inquired with the FSU about not receiving her bonus.
The Respondent certainly admits that the Applicant did make the complaint; however, have gone through and shown that they did, in fact, give the Applicant her the scorecard and this was given to her by the other job sharing manager there.
There is an email on Thursday, 1 December 2016 to the Applicant which reads as follows:
Hi, Patricia. To follow on from your end‑of‑year performance review. As you have requested, below is your end‑of‑year scorecard performance tracker results. This will show what areas you met expectations and areas you didn't meet. Overall your end score was 1.6, rating a not met category, as we discussed previously. I know you are eager to see this information and with you being off sick all of last week and today I thought I would forward this to you so you can take some time to review your below performance tracker and then I am happy to discuss anything further with you over the phone or at Riverton branch with Lisa. Please advise if you wish for this to happen and we will arrange a time suitable to us all. I hope this removes your doubts around your end‑of‑year result and helps clarify what areas of performance led to this result.
And attached to the email was the scorecard. Notwithstanding that, the Applicant took issue with the rating and took issue at this trial with both Ms Trebely and with Mr Stancombe that she actually had been doing a good job and that she did deserve the bonus.
Whilst this Court is not to judge the merit of whether she did deserve the bonus or not, it does seem, when one looks at all of the material, that whether it was that she was to get her bonus was a matter of judgment for the staff of the Respondent.
In the end, the criteria upon which she was judged were quite transparent criteria upon which every employee seems, at her level, seems to be able to be judged. It was assessed in the end, by Mr Stancombe, that she had not met those expectations and because of that, was not eligible, under the enterprise agreement, to be given her bonus.
Again, whether this was a correct decision or not, there is no doubt that Ms Sanguinede was not happy with the decision and she was vocal about it.
What has also emerged from the evidence is that, whilst she was at Palmyra, there were some concerns about the competencies that the Applicant had whether she had actually received sufficient training to allow her to properly do the duties asked of her as a customer advisor level 2.
With that in mind, it was decided, mainly through Mr Stancombe, that her current posting at Palmyra was not ideal because she only had a branch manager there at the premises for, one would think, one and a half days a week and was not given sufficient mentoring and training, as well as supervision. It was decided that the Applicant would be transferred to the Riverton branch. At that branch, the branch manager, Lisa Donnelly, was a full time branch manager and would be there five days a week.
The Applicant saw this as a demotion. She says that it was a demotion because she had three jobs; that being, the teller, the head teller and the salesperson. She says that this was a demotion because once she got to Riverton, she did not, at any time, do any selling of insurance policies and so therefore she saw this as a demotion.
Whilst it does not technically meet the definition of demotion in that she has not lost her status and she has had no pay diminution, one might see that if this was what had actually happened, it could constitute a demotion. When asked by the Applicant in cross-examination as to why she did not do any selling of insurance, Ms Donnelly said that she did not know and that she, Ms Donnelly, did not know that the Applicant had not sold any insurance policies during her time.
Ms Donnelly did note, however, that upon the Applicant being transferred to Riverton, the Applicant was there only for a short time before she went on sick leave for quite some time and then returned after sick leave. Ms Donnelly left the branch at the end of 2016 to go to another branch in Victoria. This meant that between the time that the Applicant arrived in November of 2016 and the last day of December 2016, there had only been 16 working days that the Applicant and Ms Donnelly had been together in the branch.
The third aspect of the matters that the Applicant complains of is that she had a lack of training and unpaid overtime. She was of the view that the reason for the transfer to Riverton was so that she could commence training to sell unsecured lending products. However, she said that she was not given any training to do that and that she ended up performing both the head teller job and the teller job and that this was quite taxing. She also said that she was completing overtime and not being paid for that overtime.
The Respondent has replied by pointing out that, as far as they were concerned, the Applicant did no overtime and that the only times that she was asked to stay back was if there was a problem in reconciling the banking for that day. If there was a problem in reconciling and that was due to an error by the Applicant, the Respondent says that the Applicant was obliged to stay until the error was found and rectified. The Respondent, through Ms Donnelly, only points to one other time that she was asked to stay back to which she initially declined to stay back but ended up staying back in any event.
As for the lack of training, the Respondent says that there may have been a lack of training once she got to Riverton, but that was through no fault of the Respondent. The Respondent notes that there was an invitation given to the Applicant to have training each week. It was a recurring invitation that was first sent on 1 December but there was no reply or response to that recurring invitation. The invitation would, on the evidence, stay within the Applicant’s Outlook diary unless it was deleted.

The Applicant has not acknowledged that she actually was given those invitations and points out that on 1 December and 8 December, which were the first two times that there was to be training, she was on sick leave.
However, again there is no doubt that the Applicant made complaints about not being paid overtime and also not having had sufficient training.
During this time that she was at Riverton, Ms Donnelly deposes that there were aspects of the behaviour of the Applicant that went to serious misconduct. These were that on 28 November, before Ms Donnelly went to go home, she noticed a ring binder on top of cupboards in the banking hall. When she looked through the folder it contained multiple pieces of confidential customer information. The next day she spoke with the Applicant about the fact that she had left that ring binder out there overnight.
Ms Donnelly had also been informed by another person that they had observed the Applicant turning the screen around on her computer so that the customer was able to read something on it. This was a breach of policy with NAB that customers were not to actually be shown what was on the screen, simply because there could be confidential information on it.
Because of being told this, Ms Donnelly paid some attention and observed the Applicant later that day turning her screen around to show a customer what was on the screen. She, Ms Donnelly, then reminded the Applicant that this was a breach of the policy of the bank.
Also on that day the Applicant, according to Ms Donnelly, made an error in her individual cash holding and had to be assisted by Ms Donnelly and another staff member to locate this error. This took quite some time and it would seem it was some 70 minutes after the end of day. The Applicant told Ms Donnelly that she needed to go and that she was ready to go. Ms Donnelly perceived this as a threat to walk out. Whether it was an actual threat or whether it was simply a statement that she needed to go because she had been there for so long, was something that was of concern to Ms Donnelly.
The next day Ms Donnelly noted that another one of her staff members had asked the Applicant for her custodian keys and that that staff member had to follow the Applicant to her locker while she retrieved them from her bag. The policy is that the custodian keys are to be kept on one’s person at all times.
Those “complaints” were all told to the Applicant.
The Applicant, in her affidavit, does not specifically talk about those incidents other than to say that she was getting stressed about staying back so late on 29 November and said that she felt stressed and quite ill. She went to see her doctor and was given medical certificates. There had been a number of other visits then to the doctors about which she kept the Respondent informed. The Applicant ended up being away from work until she returned on 12 December.
During that time, whilst the Applicant was away, Ms Donnelly reported that another staff member had found the Applicant’s safe combinations left in an accessible drawer in the branch. Again, this is a breach of the NAB’s policies and procedures as combinations must be kept confidential and not shared. This staff member was a holder of the opposite set of combinations. This meant that both sets of combinations had to be reset, as no one individual is permitted to have knowledge of both combinations.
It was also during this time that the Applicant was away, that the bank was notified by an Allianz representative that a staff discount code had been used by the Applicant on a number of occasions when she was selling Allianz insurance policies and that this was not applicable.
Because of these matters, Ms Donnelly had to, she says, report those matters to her superiors. There was to be a conducts committee meeting in December and the allegations were going to be brought to the attention of that conducts committee.
When the Applicant returned on 12 December, Ms Donnelly took the Applicant aside and said that she discussed the very serious concerns she had regarding those matters. Ms Donnelly said that she also discussed with the Applicant that she had not completed her continuous education points for October 2016 for her unsecured lending accreditation. She said that she then allowed the Applicant an opportunity to provide her response to those concerns. She then sent an email to the Applicant.
The Applicant said, as far as she was concerned, that whilst she was on leave, her union representative had set up a meeting on 13 December so that her complaints could be discussed.
She said that she returned to work on 12 December knowing that the next day there would be such a meeting. However, Ms Donnelly read out a number of allegations against her and was asking her to respond straight away.
The Applicant said that she asked for time and this was refused and she was told that if she did not answer now, that the matter would be referred further. She said she had no time to recollect her memory and she felt threatened. She did not understand what the further referral meant, but it seemed serious.
She said she was coming back from sick leave; she was not at her best when she received an email from management outlining the allegations of which Ms Donnelly had verbally informed her. She forwarded the email to her union representative because she was distressed. She said that she asked for time to answer but it was not allowed. She said that she was trying to understand what the conducts committee was.
She said that on 12 December, after the allegations were given, that Mr Stancombe rang her and told her that he was coming to the meeting the following day and that he asked her how she was feeling. She said that she told him that she was taking medication for stress.
The actual email that was sent on 12 December at 2.30 pm is somewhat instructive:
Hi Patricia
I’ve been advised that I can’t give you a copy of the file note, however I am able to confirm via email the allegations and also the response from you that has been submitted.
Clear desk policy – ring binder with customer information left out in the customer area of the branch on Monday, 28 November.
Privacy – observed twice Tuesday, 29 November, turning screen around to show something to customer, even after being reminded that this was a breach and should not be done.
Keys – custodian set found in Patricia’s bag during business hours and not on her person, Wednesday, 30 November.
Combinations – Patricia’s combination to all safes left in a drawer that a number of staff have access to and found Tuesday, 6 December, requiring combinations to be changed.
CE – October points have not been completed as part of unsecured accreditation.
It has been noted through a review of Allianz reporting that a staff discount code has been used over the last six weeks on a number of occasions when this was not applicable.
Threatened to leave the branch before balancing was finalised (was after finishing times, there was a surplus that was being looked for by both myself and Patricia) Tuesday, 29 November.
Your response as captured is as below.
And this is the Applicant’s response, as noted:
With the GI, Kerryn requested I use that to win the business and she was there shadowing me and training me so she saw me do it. I thought that the back of the TCR was my space and not a public space and that is why I left the folder there. To turning the screens around, it is a bad habit that I picked up from Palmyra and I have seen it happen elsewhere. With the keys, I thought it was okay to leave them in my bag to go to lunch. With the combination left in the drawer, that was my mistake. With CE points, I don’t really know what that is. I didn’t know I was supposed to do anything until I was accredited. With the threatening to leave, I was really tired. I thought the way I was asked to do the balancing was inappropriate. I said I should be gone by now. I did not threaten to leave.
On 13 December, there was the meeting between the Applicant, her union representative, Ms Donnelly and Mr Stancombe. Ms Donnelly noted that the Applicant raised the issues of why she had not received a bonus; that her workload was too heavy because she had been required to take on the role of head teller; and that she was working overtime for which she was not paid.
Ms Donnelly noted that, in response to those issues, she and Mr Stancombe explained that there was no actual role of “head teller” and that the Applicant was simply doing the duties that were required of a customer advisor level 2. It became apparent, Ms Donnelly said, that the Applicant considered that when she was asked to balance “holding one”, she was performing the role of head teller. It was explained to her that this was not a separate role and that this was just a standard part of the role as a customer advisor level 2.
Ms Donnelly and Mr Stancombe told the Applicant that as far as they were concerned, that she had worked very little overtime and that the only circumstances in which she had been required to work overtime were when her cash did not balance at the end of the day and that she had been required to remain until the error had been detected and rectified.
The third thing that Ms Donnelly and Mr Stancombe said that they told the Applicant was that she had only been present at work for a very small number of days since transferring to Riverton because of the sick leave and that she had not responded to coaching meeting invitations from Ms Donnelly during that time. Ms Donnelly said that Ms Cahill, the FSU representative, helped to explain to the Applicant that what she was being asked to do was part of her role as a CA2.
Ms Donnelly gave evidence that after this particular meeting that there were some further conduct breaches that she became aware of. She says that, on the morning of 13 December, she raised with the staff that, as there were only four of them in the branch that day, they needed to be mindful to ensure that there were always two people in the banking hall at any given time in order to ensure staff security. However, later that day whilst one team member was out on their lunch break, Ms Donnelly returned to the banking floor to find that there was only one staff member left on the floor by themselves as the Applicant had left the branch for a quick break. And the Applicant had also left her screen unlocked and unattended in a customer area.
She said that she spoke to the Applicant later that day and told her that this conduct was a breach of NAB policy and that these policies were in place to protect her and the NAB customers. She sent an email to the Applicant that day summarising the discussion.
On 20 December 2016, it was brought to her attention by another staff member that the Applicant had left her custodian keys in the lock of the cash safe. Again, this is a breach of policies and it meant that the person with the opposite custodian set of keys is able to access the cash locked away in dual custody by themselves.
On 21 December 2016, the Applicant was observed by Ms Donnelly retrieving a customer card from a lockable drawer, but not locking the drawer when she had finished the task. She said that she reminded the Applicant again of the necessity of locking drawers to protect customers. She said that she was advised by other staff on 22 and 23 December that they too had to ask the Applicant to lock the same drawer.
On 23 December 2016, it was brought to Ms Donnelly’s attention that the Applicant was not using due care when exiting the branch during non-business hours; that she was walking away when the front roller shutter was still open and this left the branch open to entry by non-staff members. She was told that the team member who brought the issue to the attention of Ms Donnelly was able to quickly rectify the situation, but the risk caused by the conduct was still there.
On 28 December 2016, there was a meeting between Ms Donnelly and the Applicant to discuss the new conduct breaches that I have just detailed. Ms Donnelly said that she asked the Applicant to provide her responses to these allegations by close of business the next day, 29 December 2016. Ms Donnelly provided the allegations to the Applicant in writing via email and asked for her response.
That email also is instructive. It relevantly reads as follows:
Hi Patricia, I wanted to summarise the issues we have discussed since you moved to Riverton last month. Most of these we have already captured a response from you but there have been a few that occurred last week that I need some feedback from you around this point also. The conduct and compliance meeting was unable to discuss your case in December. However, a marked improvement is required on this front to ensure that we do not need to take this matter further.
And then there were a number of issues that were discussed. The response that the Applicant had given had been the same as the other response, however it was added:
With the keys left in DC, I didn’t realise I had left the keys. With regards to leaving the branch, I thought when I left there was a second person in the banking hall. I didn’t check. I can’t remember leaving my screen unlocked.
The other issues were then also particularised. Then Ms Donnelly writes:
Can you please reply to this email by COB Thursday 29 December with your response to the three new allegations above and please let me know if you have any questions on this.
The Applicant answered at 12.09 pm on 29 December:
Hi Lisa, I always now make sure the drawer is closed. When Bianca told me on Friday that she had to report me, I asked her why she did not tell me and show me the open drawer when it was. She had no answer. On Friday I left screen unlocked because we were called in a meeting and my computer was still loading. We were all in the meeting and all came back at the same time as usually so no one could access my computer. The branch were closed too, but I should lock it when I leave. When I left the branch to go to the toilet, I did open the door and bend to go outside.
Before that I did press “close” which closed the door automatically. I cannot remember who told me that I could open or close the door by myself, Jacinta or Susie. But now that Jacinta – I can see people opening and closing the door for other people. I guess I should ask someone to do it for me when I want to go to the toilet. I guess those events come from the fact I used to work in a different branch (closed branch) with different ways and different policy around risk to so I adjust and I already do. For example, the card and PIN are in a safe in Palmyra, Mannington and Armadale. Kind regards, Patricia Sanguinede.
Those matters were discussed by the employee conduct committee. This was done on 9 January 2017. The committee decided to issue the Applicant with a red conduct gate which is the equivalent to a final warning. This was on the basis of the number of breaches committed by the Applicant, the lack of ownership and remorse and the previous warnings she had received.
Mr Stancombe met with the Applicant and went through what the result of the committee meeting was and also gave her a letter that detailed these findings by the committee. I will not read the whole of the letter into the record, but it is annexure JS8 to Mr Stancombe’s affidavit. This paragraph appeared on page 1 of the letter:
This decision has been made having regard to the seriousness of this matter and the previous amber non-reversible compliance gate outcome issued to you in financial year 2016 for failure to complete mandatory compliance training by the due date.
In cross-examination today, Mr Stancombe conceded that the reference to a previous amber non-reversible compliance gate outcome was incorrect. There was a compliance gate outcome which actually was reversible. The Applicant made the appropriate adjustments and the compliance gate colour went back to green.
However, Mr Stancombe said that the seriousness of the matter, when one considered the eight points that the committee found that amounted to serious conduct were sufficient, in and of themselves, to warrant a red gate. He rejected the Applicant’s assertion that, before one can get to a red conduct, one has to go from a green to an amber to a red and, because her amber had gone back to green, she could not have gone to red.
I do not find any evidence that would support such a theory and I accept the evidence of Mr Stancombe in this respect.
In this letter, there were remedial actions that needed to be done by the Applicant and the Applicant had to re-read a number of the documents of the NAB, including their code of conduct, their clear desk policy, their privacy policy and their access items policy. The letter noted that failure to complete these remedial actions by the due date will result in further disciplinary action, including “a review of your employment with NAB”.
She was asked to acknowledge receipt of the letter and to confirm that she had read and understood the contents. The letter was signed by both Mr Stancombe and by Ms Sanguinede on 12 January 2017. The Applicant was well and truly put on notice.
There were then other matters that were brought to the attention of Mr Stancombe by Ms Fiona Tolley-Risk who was relieving branch manager because Ms Donnelly had left. The information was that the Applicant, on 13 January 2017, stepped away from her counter, went back of house and left her cash drawer open. And, later that day, she failed to follow process because she left confidential documents, including a customer’s request for a $50,000 personal loan, on the printer in the main banking chamber which is a customer accessible area.
On 18 January 2017, the acting branch manager and Mr Stancombe met with the Applicant to inform her that those new incidents had come to their attention and to ask for her response. They provided her with a letter that asked for her response to the concerns and for her to give any further information that she would like the NAB to consider. That letter also stated that the NAB considered these matters to be serious and that they could result in disciplinary action, including the termination of her employment. This letter was hand-delivered to her on 18 January.
On 19 January, a letter was received from the Financial Sector Union addressed to Mr Stancombe. It read:
Dear Jim, in reference to your letter dated 18 January 2017 regarding concerns in relation to conduct, we respond on behalf of Patricia Sanguinede as follows. Allegation 1: Patricia cannot recall leaving a cash drawer open when she went out the back. The drawer is shared with another custodian who does have access to the drawer with their own key and could also have left the drawer open. Allegation 2: Patricia does not remember printing the documents for a client to the printer in the banking chamber.
The printer does take a long time to print documents and she remembers checking the printer and then serving another client. She remembers discussing with Jacinta the cover for the TCR for the lunch breaks. Patricia can only assume that she was distracted with another client and organising to cover the TCR and she forgot the documents she had sent to the printer. Concerns were raised previously regarding Patricia’s conduct, which were addressed in a red gate breach issues on 12 January 2017.
On this breach, it required Patricia to complete remedial actions which she completed and signed off on 16 January 2017. The mentioned conduct occurred the day after the red gate had been presented and before she had time to complete the required remedial actions. Patricia recognises she has behaviours and habits that she needs to work on. She is working to correct these but also realises this is not going to happen overnight. She has, since receiving the red gat,e noticed areas in which she has improved and is an advocate for change when she sees something that is not correct.
Since the breach, she has not shown her screen to customers, she keeps her keys on her person at all times, she clears her workspace several times a day and end of day as per the clean desk policy. She has told other staff about these policies so that they would not be in breach of policies such as not locking computer screens when leaving your work station. Patricia works hard and is committed to NAB and this has always been the case. She is new to the branch but is 100 per cent committed to correcting behaviours and habits to work effectively within the team and policy. Yours sincerely, Kathy Cahill, WA Advocate, Financial Sector Union.

Mr Stancombe said that the contents of this letter were considered. However, he discussed the matter with a number of people but ultimately made the decision to terminate the Applicant. He informed her of this on 25 January 2017 and gave her a letter informing her of this. I will not read that letter into the record other than to note that it is JS10 to his affidavit.
The Applicant argues that there still has been no valid reason to actually dismiss her; that there was no proper investigation; that she was not given a real opportunity to respond; and, that there was no one to assist her.
She submits that, when one goes through these disciplinary matters, there was no substance to them. She submits that she had made complaints of actual substance and that these complaints must have been a real annoyance to the Respondent. She submits that this disciplinary proceeding was, in reality, really a ruse to hide the real fact that the Respondent was dismissing her because she made the complaints that she did. She submits in making the complaints that she did, she was within her workplace right.
Under the legislation, because she has been the subject of adverse action, in that she has been dismissed, and she makes the allegation that she was dismissed because of a prohibited reason, it is for the Respondent to convince me, on the balance of probabilities, that they did not dismiss her because of the exercising of a workplace right.
The leading authority in this area is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Anor [2012] 290 ALR 647. In that case, the High Court said that, whilst it is a matter on the balance of probabilities, a respondent can discharge their onus if it is that the decision maker gives direct testimony of the reason that the dismissal or other adverse action was taken and such evidence is accepted by the Court.
In this case, notwithstanding how emotional and genuine Ms Sanguinede feels about this matter, I was struck by the honesty of all of the witnesses, Ms Trebely, Mr Donnelly and, especially, Mr Stancombe. I accept their evidence that the matters that the Applicant complained of were not at all in forefronts of their minds and certainly not in the thinking of Mr Stancombe when he was making this decision.
I accept the evidence of Mr Stancombe that the matters that are contained in the letters are serious examples of misconduct and that it is for that reason and that reason only that the Applicant was dismissed.
There has been much time taken up in this trial by Ms Sanguinede trying to show me that that the decision to terminate the Applicant was unfair or unjust. But, however unfair or unjust, it is still a matter that, unless that unfairness or that unjustness is something that would lead me to feel that the veracity of the Respondent has been undermined such that I could not accept the evidence that the dismissal was not because of a prohibited reason, then it does not matter how unfair or unjust the termination was.
In this case, it seems to me, and I do find, that the Respondent has discharged their onus and convinced me that the reason that they terminated the Applicant was because of the breaches of conduct that amounted to serious misconduct and are contained in the red gate letter of 12 January 2017 which were then compounded by the matters that are referred to in the letter of 18 January.
Having come to that conclusion, there is no need for me to go any further to look at a remedy or any other such aspect because the Applicant has not been successful in the matter.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 27 September 2019

[2019] FCCA 2729

3 September 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation