Candice Dias v Commonwealth Securities Limited [2019] FWC 5479

Candice Dias v Commonwealth Securities Limited [2019] FWC 5479 | Case summary | Zoe

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[63] The applicant commenced employment with the Bank in August 2004. She holds a degree in economics and a Diploma in Financial Planning. She has worked in various corporate and commercial teams in the Bank, and undertakes approximately 30 hours' training each year to maintain her banking accreditation. At the time of her dismissal, the applicant worked in the CO4 Team which was responsible for managing the accounts of 20+ groups of companies. Mr Low joined the Team as Relationship Executive on 4 December 2017. The applicant claimed she had a meeting in mid-February 2018 with Mr Manwaring and Mr Low in regards to her Interim Review (1 July 2017 - 31 December 2017) and four 'false' allegations Mr Low had made against her. The applicant said Mr Manwaring instructed Mr Low to change her value rating from 'inconsistently' to 'well demonstrated'. Mr Low responded by questioning the applicant being eligible for a share in the annual bonus for the CO4 Team at the end of the financial year.

[64] The applicant said that on 16 July 2018, she contacted the phone number on the Family Super Fund file, as it appeared the standing instructions on the account had not been complied with. She said she looked through all the documents associated with the account. As there was no authority document, she called the number on the CommSee Family Super Fund page. The person who answered told her that there was no one there by the name she had rung. She then contacted the authorised contact in CommSee for the Family Group of Companies due to the inconsistencies in the CommSee. She sent an email to this person as requested by him.

[65] The applicant said she attended the '1st mechanical pre-decided' meeting with Mr Manwaring and Mr Young on 27 July 2018. Mr Manwaring advised of a complaint from a customer about her contacting an unauthorised person on the account. Mr Manwaring said the Bank was looking at a potential breach by her, on the balance of probabilities. She had questioned this when there were no documents in CommSee as to the authorised person and she 'went off' other documents in the system related to the account. Further, it was not clear if the complainant was who she said she was. Mr Manwaring then said 'I will be giving you a warning'. The applicant challenged the warning and said she had complied with the process when the documents are inconsistent with CommSee. She asked for an explanation, or for evidence to substantiate this warning. When Mr Manwaring said he put the matter in 'RiskInSite', the applicant requested a copy. He said he would let her know.

[66] The applicant received the warning letter on 31 July 2018. She claimed Mr Manwaring said the warning was finalised and her Short Term Incentive ('STI') for the previous year would be reduced. The applicant asked how the incident was misconduct and why it was put in last year's performance review ('PFR'), when the incident occurred in the current year. She asked how she had acted unprofessionally. She recalled Mr Manwaring saying the matter was closed and he would be sending her for training. If she tried to discuss the matter after this, it would be considered 'unprofessional' and her services would be terminated. The applicant said she then sought a postponement of the training, as she would be contacting HR to dispute the warning. She requested a written explanation for the warning and why it was considered what she did, was wrong. Mr Manwaring replied 'OK'.

[67] On the same day as she attended a meeting about her annual performance review (13 August 2018), the applicant lodged two operational risk incidents alleging breaches by Mr Low. At the meeting, the applicant challenged the 'baseless' warning being put into her last year's performance and why her values had changed from 'well demonstrated'; see: [12] above. The applicant raised five incidents of Mr Low's alleged breaches and asked whether they would be included in his PFR. Mr Manwaring replied that Mr Low's performance was a matter for him to discuss with Mr Low.

[68] The applicant said she followed the Workplace Grievance process and contacted HR on 17 August 2018, because she 'realised Mr Manwaring was being unfair to me'. She believed she needed evidence and a written explanation as to why it was said she had made an error. On 21 August 2018, she received a written explanation from Mr Manwaring that '[the Brother] is not an authorised signatory or authorised party to receive information on this Term Deposit as per the Term Deposit New Account Lodgement Authority dated 5 March 2010 filed on the CommSee profile.'

[69] On 24 August 2018, the applicant completed a workplace grievance issue statement with her evidence to enable HR to proceed with an impartial review. The same day, Mr Kuzmanoski invited her to attend a meeting on 27 August 2018 discuss training. He also agreed to discuss the warning and the annual PFR. The applicant expected Ms Paterson to attend the meeting, but as Ms Paterson did not work on Fridays, she was not made aware of the meeting until the morning of 27 August 2018 and could not attend. In any event, the applicant called in sick on 27 August 2018. However, she did speak to Ms Paterson that day.

[70] On 28 August 2018, Ms Paterson advised the applicant to meet with Mr Kuzmanoski, as he was her M2R. Later that day she phoned Ms Knight (Ms Paterson's supervisor) and said:

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[71] The applicant said she went to the '1st staged and pre decided meeting' on 3 September 2018 with Mr Kuzmanoski and Ms Paterson to prove that the Brother was the authorised person for the Family Group of Companies and there were inconsistencies in documents in the bank system (CommSee). She told Mr Kuzmanoski and Ms Paterson that where there are no authority documents, the policy is to contact the authorised contact person of the Company. Ms Paterson told her if there was no authority document, she should have asked her Manager. The applicant showed Ms Paterson a document she said Mr Manwaring claimed was an authority document. Mr Kuzmanoski and Ms Paterson disagreed. Mr Kuzmanoski confirmed the warning would remain, but the comments would be removed from the previous year's PFR. However, the values rating would remain the same. The applicant protested that the only reason her PFR went down was because of the 'baseless warning'. Ms Paterson said if she was unhappy with Mr Kuzmanoski's decision, she 'can take this matter externally'. Ms Paterson assured her not to worry about the confidentiality clause and she would send her an email to confirm that 'you can take the matter external to seek independent legal advice'. The applicant said there was no discussion about training or future dates for training. On 4 August 2018, Ms Knight confirmed the outcomes of her grievance.

[72] The applicant said she had always attended weekly group training and had even travelled in her own time to a two day training course in the Hunter Valley in September 2018.

[73] On 16 September 2018, the applicant escalated her grievance to the Executive General Manager, Mr Mark Couter, as she believed it was inappropriate for Mr Kuzmanoski to deal with her matter and in any event, she had not received confirmation of what Mr Kuzmanoski had agreed to regarding her PFR. Mr Couter declined to intervene as the Bank was comfortable with the outcome. Her case would not be reviewed.

[74] On 17 September 2018, the applicant was advised she was to receive a data breach for the grievance request she sent to herself, after gaining authorisation to do so. The applicant claimed she told Mr Manwaring she would be working from the Darling Park office the next day to arrange a meeting in regards to the unfair data breach. Mr Manwaring gave his 'OK' for her to do so.

[75] On 18 September 2018, at around 9:30am, she attempted to contact the CEO, but was told he was overseas. She was put on to the Executive Team member, Mr Bennett, who she told of her grievances. She later told Mr Young that Mr Manwaring had approved her working from the Darling Park office that day.

[76] While working on Level 9 in the Darling Park office that day, Ms Morgan came up to her, introduced herself and requested she come to the meeting room. Ms Radfar was there, and halfway through the meeting, Mr Hinks arrived. She told them why she wanted to meet the CEO. Ms Morgan advised her by email of arrangements she could take up if she wanted to take her matter externally:

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[82] Later that day and the next, the applicant sought Ms Morgan's notes and her termination options. The applicant claimed Mr Low made further breaches of policy on 15 October 2018. On 5 October 2018, the applicant filed a General Protections application which was listed for conciliation on 22 October 2018 (the matter did not resolve). The applicant submitted a maternity leave request on 4 November 2018 to commence on 14 December 2018.

[83] The applicant accepted that Mr Manwaring had requested she remove her workplace grievance from her personal email. On Wednesday 7 November 2018, the applicant was invited to a meeting scheduled for 12 November 2018 with Mr Kuzmanoski and Ms Radfar, to discuss the outcome of the allegations and a new allegation concerning Mr Manwaring's request that she delete her grievance from her personal email. She claimed to have authorisation to do so when taking her matter externally and no third party had seen it.

[84] On 11 November 2018, the applicant emailed Mr Kuzmanoski to request the meeting be recorded. She also objected to Ms Radfar being a support person, because she was involved in the matter. Both requests were refused. She responded to the five allegations as before; see: [2] above. When Mr Kuzmanoski asked about the General Protections conciliation, Ms Radfar said that the case was closed (the applicant referred to an email from the Chambers of Senior Deputy President Hamberger indicating that the conciliation had been unsuccessful and she could take her case to the Federal Circuit Court or the Federal Court of Australia).

[85] Mr Kuzmanoski then said 'I have decided to terminate your employment effective immediately'. After the applicant asked for an explanation as to the five allegations of misconduct when she had done nothing wrong, Mr Kuzmanoski replied 'it will be in your dismissal letter tomorrow'.

[86] The applicant claimed that at the end of the meeting, when she was gathering her personal notes and evidence, Ms Radfar tried to snatch the documents, but she managed to get them in her bag. Mr Kuzmanoski told Ms Radfar to call security; he had said 'give me your laptop and phone'. The applicant pleaded for time to wrap up what she was working on, but she handed Mr Kuzmanoski her phone, laptop and swipe cards and security escorted her from the building.

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[90] In cross examination, Mr Manwaring confirmed Mr Low joined the Team on 4 December 2017. Mr Manwaring agreed that both interim and full year performance reviews included weightings attributed to various KPIs. He confirmed that if a person comes across a risk issue, they must report it, and a failure to do so would be a breach. A report would be evaluated to determine, if it is reportable.

[91] Mr Manwaring agreed that a Customer Verification Team had been established to assist the front line with great accuracy in knowing the customer. Mr Manwaring was not aware (until the day before) of any contact list or distinctions between new and old customers. If the person was unsure about the correct customer to contact, it should be referred to their manager. Ultimately, the contact person is the person for the legal entity on the Bank's CommSee profile for superannuation funds.

[92] Mr Manwaring denied that in the meeting on 31 July 2018, he had answered the applicant's query 'Why is this a misconduct?' by stating 'it's because you've acted unprofessionally'. He agreed she had mentioned the effect this warning would have on her STIs, but did not mention anything about it having occurred in the year before. Mr Manwaring could not recall if she had asked any questions in the meeting. He agreed she wanted to contact HR on this issue, because the PFR was put in the previous year.

[93] Mr Manwaring was asked about the Bank's Workplace Grievance Review. It is available to all employees and has a process attached to it.

[94] Mr Manwaring explained that in respect to how bonuses are calculated, each staff member within a corporate portfolio has a different set of KPIs, and bonuses are set at an individual level. Ms Dias queried that the Team performed at 107%, but she was denied the bonus. Mr Seck objected on the basis that the bonus issue is not relevant to the issues in these proceedings.

[95] Mr Manwaring was asked about the applicant's last performance review in 2017/18. He agreed that in the first half of the year, four allegations were raised with her. He had agreed to change her 'values' to 'well demonstrated'. The warning letter came after the review period (31 July 2018). He acknowledged that she was entitled to take the warning letter as a grievance to HR. He denied saying that it would be 'unprofessional' to take the warning letter to HR after training. He agreed that the fact the applicant was directed to training did not prevent her from pursuing a grievance with HR.

[96] The applicant said the first time she received the allegation in writing was on 21 August 2018 which was after the training dates of 16 and 17 August 2018. On 18 September 2018, she went to the Darling Park office. Mr Manwaring said that the day before, he had approached the applicant in the foyer, because she was in a distressed state and he offered her a taxi home. The applicant was upset at having a data breach recorded for something she believed she had approval for on 3 September 2018 (taking her complaint externally). Mr Manwaring insisted that she had not been given approval to go to the Darling Park office the next day. He only said if she intended to do so, he was to be advised, in order to make appropriate staffing arrangements. He was unsure why she needed to go to the Darling Park office. In fact, there had been three conversations that day; the first to deliver her short term variable remuneration and REM statement, the second to discuss the data breach, and the third at around 6:00pm when she advised she was leaving.

[97] The applicant asked Mr Manwaring about his statement which stated:

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[98] Ms Dias pressed Mr Manwaring about the failure to provide an explanation of the warning, other than what she received on 21 August 2018; by that time her grievance was with HR. Mr Manwaring said there were a number of other documents and during the meeting of 31 July 2018, the allegations against her were explained. She was afforded training on the issues on 16 and 17 August 2018, but declined to attend. There were two meetings before 14 August 2018 which dealt with her providing personal investment information to unauthorised third parties.

[99] Mr Manwaring denied that Mr Low was upset (when he came on board on 4 December 2017) that the applicant was included in the Team results.

[100] In re-examination, Mr Manwaring was taken to the complete document the applicant had taken him to before - "Business Customer On-boarding (BCO: Digitising organisation on-boarding for Domestic Proprietary Companies" - which referenced two pages only (pages 13 and 14). Mr Manwaring explained that the document indicates it only applies in South Australia, Western Australia and the Northern Territory. Nevertheless, Mr Manwaring said the reference to a contact person (for a self-managed super fund) at page two is the authorised representative of the organisation. It could be a director, shareholder or a person authorised by the parties to act on their behalf. Mr Manwaring further explained that the document related to a pilot for a new digitised on-boarding experience for domestic proprietary companies which commenced on 15 November 2018. He said there is no policy for NSW on the PPL ('Policy and Process Library') and this is a default policy for NSW, which had been trialled for over 12 months.

[101] Ms Dias objected to this document being tendered on the basis it was not the same document from which her two extracted pages came from and which applied in NSW. It is a similar document, but she could not produce it. Although Mr Manwaring said this was the only document he could locate from which the two pages could be extracted, the full document was tendered subject to a further search for any corresponding document applicable to NSW.

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[108] Mr Kuzmanoski made clear that the meeting he had with the applicant on 3 September 2018 was to discuss her refusal to attend directed training on 16, 17 and 22 August 2018. Mr Kuzmanoski could not recall if Mr Manwaring had advised him that the applicant had declined to attend training, because she wanted HR's involvement in her grievance. He recalled the applicant's emails on the 24 and 26 August 2018, where she kept telling him she wanted to discuss things in writing, not in person, and that she kept asserting the matter was still under investigation.

[109] Mr Kuzmanoski said the applicant wanted to also discuss the bonus issue, and although irrelevant, he agreed to do so. Mr Kuzmanoski agreed he had authority to change or amend comments on a performance review. He confirmed the applicant did not need approval to seek external legal advice. However, no approval was ever given; nor would it ever be given for her to take personal customer information externally.

[110] Mr Kuzmanoski agreed that on 20 September 2018, the applicant was invited to attend another meeting on 2 October 2018. Again, matters other than her refusal to attend training were discussed, including her review and the bonus. The applicant consistently raised the issue that the training was not 'group training'.

[111] Mr Kuzmanoski confirmed that after multiple attempts to meet with her, and after initially refusing to meet, they eventually did so on 3 September 2018.

[112] Mr Kuzmanoski said the five allegations were put to the applicant on 20 September 2018 and the process was explained. The applicant then chose to invent her own process. Mr Kuzmanoski could not recall if he had asked Ms Morgan to read out her termination options in the meeting of 2 October 2018. He did say termination was an option he was considering and that the applicant had until 4 October 2018 to defend her position. Mr Kuzmanoski agreed he had prepared a note of the order in which the meeting would be conducted. He denied saying anything about six months' compensation for an unfair dismissal claim.

[113] Mr Kuzmanoski accepted that the applicant did not work in a branch. However, there is a level of overlap in respect to the Bank's policies and procedures. He agreed she could work from other offices, but what she does daily is a matter for discussion with her Manager.

[114] Mr Kuzmanoski was taken to the trial policy in South Australia, Western Australia and the Northern Territory, introduced on 15 November 2018 after she was dismissed. Mr Kuzmanoski stressed that 'Banking 101' tells you that you need an account authority to talk to someone about an account, and if you cannot find where that authority is, you talk to your manager. You do not call someone whose name appears on a spreadsheet. Mr Kuzmanoski did not look at any trial policy applying in other states. The applicant never produced an account authority identifying the authorised contact person for the Family Super Fund. The beneficiary of a trust deed or a director does not constitute someone who is authorised; neither does a name on an Excel spreadsheet.

[115] Mr Kuzmanoski was asked about the five alleged breaches of policy by Mr Low reported by the applicant on the one day, 13 August 2018, which may have impacted on his bonus. Mr Kuzmanoski said he receives information all the time about 'odd mistakes' and he did recall Mr Manwaring having mentioned historical breaches by Mr Low over time, but these would have been addressed appropriately. Mr Kuzmanoski said the applicant should not have been inquiring about other Team members' bonuses, which itself was another breach of privacy, and the person she asked would not have known anyway. He denied people are treated differently.

[116] The applicant questioned Ms Morgan's right to be a support person for Ms Knight when she was involved in her case. Mr Kuzmanoski said that in any event, the support person was merely to take notes, and did not contribute to the discussion.

[117] Mr Kuzmanoski said that on each occasion a meeting was convened, the applicant was given more than 24 hours' notice. He obtained this advice from the HR and WR teams. The applicant then sought to make a point about whether the notice was 24 business hours or just 24 hours.

[118] Mr Kuzmanoski was asked about the outcomes of each of the three meetings he had with the applicant - 3 September 2018, 2 October 2018 and 12 November 2018. In respect to the 3 September 2018 meeting, he agreed to remove the criticical commentary in the applicant's annual PFR. The applicant claimed it was not removed. Mr Kuzmanoski said this was 'absolutely false'. The document was unlocked, adjusted and amended. Mr Kuzmanoski explained the effect of this decision. Notwithstanding, he believed that as the applicant had put the Bank at risk, her risk rating did not go backwards. As to 'values', Mr Kuzmanoski referred to a discussion he had with her in March 2018, in which he openly questioned her values and she became quite emotional.

[119] Further discussions with Mr Manwaring and Mr Low affirmed the view as to where the applicant sat on the 'value' scale. The rating ended up at 15% of her potential which was at the top end of the range for the period January - June 2018. It was an entirely fair process. Mr Kuzmanoski noted that he, Mr Manwaring and Mr Low all agreed that the warning was substantiated, no matter what she said about it. Mr Kuzmanoski emphasised that a performance review has three components: values, KPIs and risk management. These applied to the whole team resulting in a 107% rating and it is not about revenue or profit. Bonuses were paid a few weeks after 1 September 2018. The applicant did not get the top range in the three areas. The ratings were a result of her performance throughout the year, and were not all linked to the incident on 31 July 2018. He said removing one item, did not impact the other items in the rating.

[120] It was Mr Kuzmanoski's evidence that the Bank's grievance policy was implemented fairly and flexibly. The applicant refused to attend multiple meetings, even where dates had been changed at her request. Her evidence was that she would only respond in writing.

[121] As to the meeting on 2 October 2018, Mr Kuzmanoski had made notes before the meeting and had written, on advice, 'Unfair dismissal. Maximum 6 months claim.' Mr Kuzmanoski stressed that at this point, there was no decision about the applicant's dismissal. He had consulted with HR/WR about potential paths the matter might go down. He declined to provide her with his notes, as they were his. Mr Kuzmanoski acknowledged he raised the issue of a 'without prejudice' discussion, but it did not happen as the applicant ruled it out. Mr Kuzmanoski said that he had still wanted to sort out the applicant's issues, and there was no predetermined outcome. In any event, the applicant responded in writing on 4 October 2018.

[122] The dismissal meeting was on 12 November 2018. Mr Kuzmanoski also had speaking notes for this meeting prepared by Ms Radfar a few days before. He had considered all of the applicant's responses and her complete failure to acknowledge any wrongdoing and advised her of her dismissal - confirmed in writing the next day.

[123] Mr Kuzmanoski said that how the applicant behaved or conducted herself three years or ten years ago has no bearing on how she had been conducting herself in 2017/18. Mr Kuzmanoski was referring to her dragging the culture of the Team down, not necessarily the financial performance. He was aware of this from his own experience and from others he had worked with over the last 12 months. He said that just because the Team rating was 107% does not mean the Team could not have done more. There were at least six to seven data points where the applicant did not follow management directives. He believed she lacked insight, acumen and judgment and had put the Bank at risk. He had lost complete confidence in her to understand the basic banking principles of privacy and technological use. A small example of her withdrawing herself from the Team culture was her withdrawal from the Social Club; although in isolation, this was not a big deal.

[124] When he said he thought the applicant was sending emails to herself in the dismissal meeting, he agreed it was an assumption. Nevertheless, it was consistent with what she had done before and he did not trust her. He asked for the laptop and mobile phone and when she refused, she asked Ms Radfar to call security.

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[129] The applicant was then taken to, and explained some of her responsibilities in her role, such as 'on-boarding' new customers. This is a process to obtain sufficient information from the customer in order to service that customer. However, her role is to get sufficient information about the contact person and profile this according to an ASIC search. The rest is done by a team in New Zealand. Once the customer is on-boarded by the New Zealand team, she looks at what is linked to that account through the contact person. A contact list was set up because of difficulties with related entities. All new customers were on-boarded properly, but the system for existing customers was imperfect so the Excel spreadsheet was created.

[130] The applicant understood that a 'group of companies' were those companies linked on a CO4 list. She described the terms 'data integrity' and 'portfolio hygiene and risk management'. She agreed that her role required a degree of common-sense based on experience, and not every situation can be dealt with in written documents. She did not accept that there are things which are just 'Banking 101', as she believed everything must have a written policy or procedure. She agreed the Bank had a large and sophisticated suite of risk and compliance obligations which staff must be aware of, and comply with.

[131] The applicant accepted that she was well aware of the Bank's 'Our Commitment Policy', which involves a two-step process at firstly looking at laws, regulations and policies, and secondly applying the Bank's vision and values. However, the applicant believed that 'everything has policies and procedures', and she had followed them 100% in this case. It was the applicant's evidence that in refusing to follow directions, she was complying with the Workplace Grievance Policy ('WGP'), particularly in respect to confidentiality. She did not look to a policy in this instance and went by what HR and the legal team allegedly told her. Attempting to speak to the CEO was also covered by the WGP. In any event, she claimed she did not refuse a direction; she just postponed it, as she was following the WGP.

[132] In a step by step cross examination, the applicant claimed she had:

(a) always followed reasonable management directions;

(b) always undertaken training;

(c) not transmitted confidential customer information, or used it for inappropriate purposes;

(d) been aware of the appropriate use of information technology;

(e) been aware that a failure to meet the Bank's principles or commitment could have serious consequences resulting in disciplinary action, including dismissal;

(f) familiarised herself with the Bank's policies and procedures;

(g) abided by the Bank's compliance requirements; and

(h) understood she would undergo six monthly and yearly performance reviews and had done so since 2016.

[133] Mr Seck took the applicant to a number of her recent performance reviews and comments made by managers suggesting areas of improvement; one from Mr Lochrin in 2016 required her to focus more on the customer, rather than process and documentation, and not executing basic tasks. She said this was Mr Lochrin's view and she did not agree with it. At the time she was aspiring to obtain a CAA credit rating, for which she had undertaken all the training.

[134] The applicant also rejected the issues raised by Mr Low in her 2017/18 interim review, because he did not come on board until 4 December 2017 and he could not make an appropriate assessment of her performance. This resulted in a meeting with Mr Manwaring where her 'values' rating was changed to 'well demonstrated'. The applicant questioned Mr Manwaring's copy of this review which did not have the words 'Changes have not been submitted'. The applicant refused to accept Mr Low had identified risks in her performance, because they had not been substantiated. She denied Mr Lochrin and Mr Low were discussing the same matters, although both had said she needed to get the basics right. She rejected Mr Low's unsubstantiated view where he identified:

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[139] The applicant said the 'correct authority document' referred to was blank. The A153 document is an authority for a non-personal account. The applicant was shown a signed authority for the Family Super Fund dated 5 March 2010. It identified the Director and the Director's mailing address. Two signatories appear under Declaration, Authorities and Acknowledgements. The two signatories are not the same as the Brother the applicant called. The documents disclose two products; a transaction account and a term deposit, which are held by the Family Super Fund. The authorised signatories are those of the Client and his wife.

[140] The applicant claimed that the documents are not exactly the same. She agreed that all the account numbers, addresses, phone numbers, Directors and signatories correspond ('look similar'). She agreed that the A153 document was available on CommSee, but she was only made aware of this when Mr Manwaring responded to her later. The applicant said she relied on other documents on 16 July 2018 to those included in her evidence, being every document that existed in the system. She explained the only ones in her evidence were those she considered relevant.

[141] It was the applicant's evidence that she had redacted the company names from the CO4 contact list, but not other more personal information, such as addresses and mobile phone numbers. What was cut off from the name Brother's name was the company name (Bare call). She agreed there was nothing in the full document or the CO4 contact list, which identified any link between the Family Super Fund and the Brother. She now claimed someone told her of the connection, but this was not included in her evidence because she did not think it was relevant. However, she could not recall the name of the person who told her, but it was the person who was performing her role prior to her. When asked what policy and procedure she relied on, she answered the superannuation fund policy. This is not a policy. She then said she relied on other policies, such as Our Commitments and Values and Confidentiality and the PPL. As she was no longer employed, she could not show Mr Seck any other policy she had relied on.

[142] At this point in the cross examination, I asked the applicant if she deliberately redacted the company names from the CO4 list, because had she not, it completely undermined her case. She claimed she did so for confidentiality reasons. However, she had left out other more personal details, such as addresses and mobile numbers.

[143] The applicant was taken to another document in her evidence bundle which was a one page list of beneficiaries of a superannuation trust. Mr Manwaring provided a complete copy of the trust deed. She denied relying on this document for identifying the Brother as the authorised contact person and said it was a document in CommSee. She told Ms Knight that the Brother was not a third party, but rather an entity. She denied this inferred that a beneficiary to a trust deed is a related party. She was merely pointing out how he is linked on the system. In answer to questions from me as to why she included this one page in her evidence when the full trust deed does not say the Brother is a contact person for anything, she claimed he is the contact person for the Family Group of Companies and all of the other documents were inconsistent. In any event, the applicant agreed her extract did not even relate to the correct Family Super Fund. It was a completely different trust. She denied this document made very clear that no one, let alone the Brother, was an authorised contact person for the Family Super Fund, because it related to different people, a different trustee and a different trust. She denied being deliberately and falsely selective. This was inconsistent with what she told Ms Knight that:

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[148] The applicant was taken again to her email exchange in August 2017 which referenced the standing instruction from the Client. She agreed she made a note on CommSee about the discussion at the time which read 'monthly with discretionary rates without contacting the client.' She claimed Mr Lochrin told her the Brother is the usual contact person for the Family Group of Companies. She agreed Mr Lochrin's email does not say the Brother is the contact person, but rather the Client. However, this understanding arose from the CO4 contact list. When asked which written policy or procedure supports the CO4 list being used to contact the Brother, she claimed it was an existing manual which she could not produce. She denied deliberately editing the CO4 list to give the misleading impression that the Brother was the contact person for some other company or group of companies. She also denied using an extract from a document which did not relate to the relevant trust deed to give the misleading impression that the Brother was the contact person for the Family Super Fund. She now remembered the name of her predecessor who told her that the CO4 list identified the Brother as the authorised person for the Family Group of Companies of which the Family Super Fund was one. She did not consider this was a relevant matter to put in her evidence, as the practice of using the CO4, was well known across the business finance service sector.

[149] Mr Seck directed further questions to the applicant about the warning of 31 July 2018. She agreed she refused to sign the warning because she told Mr Manwaring she was taking the matter to HR. She claimed she did not understand the warning because she had done nothing wrong and had not seen any complaint from a customer and the warning had been put in the wrong review year which affected her bonus. She believed Mr Low 'made up' the allegation. She did not accept Mr Manwaring had provided her with the procedure, as the only document he provided was for 'branch procedures', which were not applicable to her. It was also a policy for term deposits, not superannuation funds. She said she could not answer questions about policies which did not apply to her. The applicant denied contacting a third party, contrary to policy, because the Brother was the authorised contact person for a related entity.

[150] The applicant insisted she looked at everything in CommSee before she called the Brother. She denied the Brother's details did not match the CommSee information, because he was a corporate client, and not a retail customer. She claimed she frequently spoke to the Brother and would recognise his voice as the correct person. Nowhere in her evidence does she mention regular contact with the Brother.

[151] The applicant declined to go to directed training because Mr Manwaring made it clear that if she tried to raise a matter that he considered closed, it would be considered 'unprofessional' and he would terminate her services. Also there had to be flexibility with training requests, according to the WGP. There was nothing in writing to confirm that Mr Manwaring said anything like this. She also believed that the matter was with HR, and she would not attend training about the same matter HR was reviewing. The applicant denied that the training was not the subject of the WPG. Although she only identified 4 matters in her grievance form, dated 24 August 2018, everything related to the 31 July 2018 warning.

[152] The applicant agreed Mr Kuzmanoski had been seeking a meeting with her to discuss a number of issues; one of which was her refusal to attend training. She refused to accept that the training and the warning were not the same thing. The applicant was asked what right she had to insist on HR being present. She did not accept the requests to go to training were directions; they were invitations (which she presumably could refuse).

[153] The applicant was queried that if she was sick on 27-29 August 2018, why she was contacting people during this time, in particular Ms Paterson. She claimed she only spoke to Ms Paterson on 27 August 2018, but when pressed, she agreed she had contacted Ms Knight on 28 August 2018. She claimed she was not so sick as to be unable to talk. The applicant believed that according to the WPG policy, HR was required to attend any meetings. The meeting did occur on 3 September 2018. At this meeting, she presented all the documents she could see on the system to support her assertion that the Brother was the authorised contact person for the Family Super Fund. These documents were in her evidence annexed as documents 21(a)-(f). She claimed she also gave them document 23 (the extract from the new customer on-boarding document). Mr Seck put the reason she did not show document 23 was because it did not exist at the time. The applicant denied this.

[154] The applicant was then asked about sending documents to her personal email. She claimed that the extracts in question were not documents; they were snapshots. They included documents in her document 21. She claimed that when Ms Paterson and Ms Knight gave her approval to take her grievance external, and although her grievance included documents with confidential client details, she had done nothing wrong, because she had received approval. When pointed out that there was no express authorisation for her to send personal and private customer details to her personal email, she claimed they were not personal and private details and in any event, she had approval to take her grievance external, which included the snapshots she had originally included in her grievance. She was the one who in fact raised the confidentiality issues.

[155] The applicant agreed she went to CBD office on the 18 August 2018, to speak to the Bank's CEO, Matt Comyn. She did not mention to Mr Manwaring the night before, why she was going to the Darling Park office.

[156] The applicant agreed that she did not delete her personal email after being directed to by Mr Manwaring because she needed all the documents she had for further meetings with Mr Kuzmanoski, and if necessary, the Federal Court. However, she already had the documents. She believed she was entitled to keep the email to use for the two purposes above.

[157] The applicant denied raising her voice in the meeting with Ms Morgan on 18 September 2018. The applicant agreed that the day after she was required to respond to the 'show cause' letter (4 October 2018), she lodged a General Protections application with the Commission, alleging pregnancy discrimination.

[158] Finally, the applicant continued to assert that she followed correct procedures and had done nothing wrong. There was no misconduct, and she had been treated unfairly. If she was returned to the Bank she was prepared to overlook that the Bank had made a mistake in dismissing her. She maintained the customer complaint leading to the 31 July 2018 warning 'never happened'.

[68]

[159] Mr Seck opened the Bank's case by submitting this was not a matter of serious misconduct; however, when all of the key allegations against the applicant are considered cumulatively, her overall conduct was such as to justify her dismissal (with four weeks' notice) for valid reason. These allegations are clearly set out in the 'show cause' letter and the letter terminating the applicant's employment; see: [1] and [2] above. Mr Seck stressed that there were no issues of procedural unfairness.

[160] Mr Seck put that the applicant demonstrated a lack of appreciation and understanding of the nature of her wrongdoing, the seriousness of her conduct in exposing the Bank to the risk of her disclosure of sensitive confidential client information; and failed to adhere to basic bank procedures ('Banking 101'). She then refused to address her deficiencies by declining to attend corrective training. All of this disclosed a deep and troubling lack of insight into her conduct, and an overall lack of contrition.

[161] Mr Seck submitted that the applicant had demonstrated in her evidence a lack of candour and truthfulness and sought to re-characterise her evidence to recklessly create misleading impressions. The applicant was unable to 'let go' of the justified warning of 31 July 2018 and she became the author of her own undoing, by doggedly pressing unmeritorious matters and defying reasonable management directions.

[162] Mr Seck dealt with what underpinned the applicant's conduct, being the contact she made on 16 July 2018 with the Brother who was not the authorised contact person for the Family Super Fund; a corporate, not individual entity. Mr Seck detailed the documents in Mr Manwaring's evidence which demonstrated the correct client who should have been contacted as the authorised contact person for the corporate entity.

[163] Mr Seck submitted it was very clear from the two signatories to a number of related documents who were the authorised persons. It was not the Brother. The applicant said that she relied on other documents, primarily the documents on the CommSee system. However, she gave two inconsistent justifications for contacting the Brother; firstly, because he was the authorised contact person for the Family Group of Companies, or secondly, as there was insufficient information, it was proper and correct for her to contact the Brother.

[164] Mr Seck said the applicant claimed she always followed written policies and procedures, and if it is not written down, you cannot do it. She then changed her story to claim there was an understanding that everyone knew about, and her predecessor told her to follow, being the CO4 Contact list. There was no evidence to support either of these propositions.

[165] Mr Seck observed that reliance on Document 23 does not assist the applicant. The account in question was a retail product being a term deposit, so Branch procedures applied. The documents produced by Mr Manwaring disclose procedures for renewing term deposits and she only had to reference them to know what to do in verifying the customer over the phone. What you cannot do is call third parties without written authority. These procedures were all put directly to the applicant, were on the system and she should have followed them. Even if there was some ambiguity, this was what the training was concerned to address.

[166] There was then the document which is a one page extract from another document; that is, the 'Business Customer on-boarding' policy, being a trial conducted in SA, WA and NT. The applicant's reliance on this document suffers from a number of problems, namely:

(a) it relates to new customers; the Brother and the Client were not new customers;

(b) the document applied from 15 November 2018 as a pilot - long after the 16 July 2018 incident; and

(c) 'on-boarding' suggests a new account, which this account was not.

[70]

[167] Mr Seck then referred to the applicant's document 21(c) - the CO4 Contact list. He observed that it was 'curiously' incomplete in that relevant information in the left hand column of the document had been blacked or redacted. The complete document produced by the Bank showed the Brother as a director of another completely different company to the Family Group of Companies, or anything to do with the Client. This was designed to create a deliberately false impression of the Brother's relationship to the Client's Super Fund.

[168] Another document the applicant relied on was one single page list of beneficiaries to a separate superannuation fund, which included the Brother. In fact, the complete document revealed the superannuation fund has nothing to do with the Family Super Fund. Even if it were, it was a preposterous proposition that any beneficiary to a superannuation fund is also the authorised contact person. This was a deliberate attempt to conceal, or deceive the reader of the single page document to somehow show a connection to the Family Super Fund, where no such connection existed.

[169] Mr Seck said another document relied upon by the applicant went back to 2006 and does no more than refer to the Brother asking advice on the purchase of property. It has nothing to do with him being an authorised contact person for anything.

[170] What was instructive, Mr Seck said, was that 12 months before the incident, the applicant actually knew the Client was the authorised representative of the Family Super Fund and she acted consistently at the time with this information given to her by Mr Lochrin.

[171] Mr Seck concluded that it was clear there was no policy which authorised the actions taken by the applicant; rather, the policy is to the contrary. It is possible from this to conclude that the applicant:

(a) was aware of this and actively sought to conceal and deceive the Bank and the Commission that the Brother was the authorised contact person; and/or

(b) stubbornly refused to accept what is clear from all the documents, and still fails to understand the basic fundamentals of banking; and/or

(c) is clearly a legal, financial and reputational risk to the Bank, or at the least, someone who is not willing to follow correct procedure and which may lead to personal contact details being revealed to third parties.

[172] These were why she was given a warning and directed to attend training; which in retrospect might be said to be too light a penalty for what had occurred. The true situation has now been brought to light by the evidence and more serious action was necessary, and entirely justified.

[173] Mr Seck rejected the applicant's link of the warning to her refusal to attend training. Training is not punitive, but corrective, in order to manage and mitigate risk. The Bank could have suspended her, or transferred her to a non-risk position; but these actions would have been more serious. Moreover, the training was a reasonable direction of management. She refused three times, yet in her own grievance she does not even mention the training direction.

[174] Mr Seck submitted the applicant then refused to attend meetings with Mr Kuzmanoski. One excuse was that HR was not able to be present. Then she claimed to be sick, but while on sick leave was contacting Ms Paterson and Ms Knight to advance her grievance.

[175] Mr Seck rejected the applicant's claim that she was authorised to send her grievance, including confidential client information, to her personal email address. All of the evidence, including Ms Knight and Ms Paterson's evidence, was that no such approval was given. The evidence disclosed that she was told she was entitled to seek independent external legal advice if she was unhappy with the Bank's handling of her grievance. The applicant's other dishonest conduct would indicate she would not be believed about her assertion.

[176] As to attending the Darling Park office, it was very clear she needed to inform Mr Manwaring if she intended to work from Darling Park. The applicant's claim that she had such approval would not be believed, particularly as she had failed to inform Mr Manwaring she would be seeking to meet the Bank's CEO, Mr Matt Comyn, on the day she intended to work there. This attempt was also in breach of the WGR process which had been closed out by Mr Kuzmanoski. She then behaved unprofessionally in a meeting with Ms Morgan.

[177] Lastly, the applicant refused a direction from Mr Manwaring to delete the confidential email material from her personal email address. Her claim of having permission from Senior Deputy President Hamberger to use the material in potential court proceedings was ludicrous. The information was the property of the Bank and the Bank was entitled to maintain its integrity.

[178] Mr Seck traced each of the other subsections in s 387 of the Act and said that none of these matters would support a conclusion that the applicant's dismissal was unfair. He noted that the applicant declined to have a support person at any of the meetings with Management.

[179] In turning to issues of harshness, Mr Seck said there was no evidence that the applicant's pregnancy at the time had anything to do with her dismissal. In the end, the applicant's pattern of insubordination and unwillingness to acknowledge any wrongdoing and wilfully defying directions to attend training, meant she became incapable of being managed and the inevitable result became necessary.

[180] The Commission would also take into account the applicant's less than impressive performance appraisals in the previous two years. She refused to acknowledge any shortcomings and refused to acknowledge the comments in PRs. All of these matters strongly tell against the practicality of reinstatement, even if the Commission found some element of unfairness. In any event, given her dogged insubordination and risk to the Bank, it would be unlikely she would have lasted very long in employment after her return from maternity leave.

[181] Finally, Mr Seck submitted that the applicant's grievance had been addressed in that the comments in her last PFR were removed and the issue became a non-issue. She did not receive the full bonus because of other identified issues with her performance.

[71]

[182] The applicant firstly questioned the correct identity of the respondent. Mr Seck corrected her query by putting that CommSec was the employer, but ultimately that is irrelevant.

[183] The applicant insisted that the 31 July 2018 warning was baseless and unfair and her conduct was not misconduct. She had relied on the Bank-held documents which she believed demonstrated the Brother was the contact person for the Family Group of Companies. She had to undertake a manual process of putting together various documents, including the CO4 Contact List and other documents where his name appears, including where his name appeared on a beneficiary list to a super fund. She had relied on the PPL for business and private banking. She believed there were inconsistencies in the documents and was accused of breaching a policy which did not exist at the time (the customer on-boarding trial). The applicant also relied on her earlier contacts with the Brother in 2006.

[184] The applicant complained that the Bank's investigation produced no evidence of the customer's original complaint, and had opposed her calling the customer as a witness. The applicant said the baseless warning was designed by Mr Low so he could gain financially from her share of the Team's bonus; a proposition which was further supported by the Bank not providing details of his bonus payments.

[185] As to the training, the applicant submitted Mr Manwaring had told her that if she raised her grievance after it was closed, it would be considered unprofessional and she would be dismissed. She had not refused to attend training; she only sought to postpone it so HR could attend the meetings to discuss her grievance. She had also been denied a reasonable opportunity to arrange for a support person, yet Mr Kuzmanoski had his own.

[186] The applicant insisted she had provided her explanation for the 16 July 2018 incident and the Bank now insisted she failed to comply with Branch procedures when she was not employed in a Branch. She emphasised she had always attended training and gone out of her way to do so. The Bank was required to offer her flexibility in dealing with her grievance, but this had been denied. The applicant accepted that despite her evidence about seeking external legal advice, she never did so, because she was given a breach notice for sending client information to her personal email address. The applicant claimed Mr Kuzmanoski agreed with Ms Paterson on 3 September 2018 that she could take her grievance external and she had wanted this assurance in writing.

[187] The applicant put that when she went to see Mr Comyn, she had felt 'trapped, threatened and framed', because Mr Kuzmanoski had promised to remove the warning from her 2017/18 performance review, and she was never given any evidence that this had been implemented. She should have received an amended PFR. This means her grievance was never closed and certainly not by the date of her dismissal. She needed her grievance for her General Protections application.

[188] The applicant claimed Mr Manwaring had given his approval for her to work from the Darling Park office the day before she did so. Further, Ms Morgan had only said she had spoken loudly; not aggressively.

[189] The applicant submitted the meeting on 12 November 2018 was predetermined. She was told of her termination options, including resignation, and six months' compensation if she filed for unfair dismissal. She told Mr Kuzmanoski she had been discriminated against on the grounds of her pregnancy. He was not interested in anything she had wanted to say. It was a 'mechanical' process, as was the 2 October 2018 meeting. Mr Kuzmanoski had a support person, Ms Radfar, and she was only given 24 hours' notice of the meeting, which is not set out in any Bank policy. Ms Radfar was disruptive and snatched at her bag. The applicant claimed Mr Kuzmanoski's notes of the meeting were 'made up'. He did not investigate her grievance, treated her unfairly and failed to follow due process or the Bank's policies. The allegations were fabricated and the outcome predetermined.

[190] The applicant insisted she wanted to see all of her Team's bonuses and an explanation for how they were calculated, particularly given Mr Low had at least four breaches during the period. He had distributed the bonuses to himself and the other Team members, depriving her of her bonus for a baseless warning in the wrong review period. The Team recorded 107% in profit in the period for which she was entitled to $28,000. The applicant claimed she had 15 years of unblemished service with the Bank; had always engaged professionally with colleagues and customers. She has 'heaps of appreciation emails'.

[191] The applicant put that the only reason she redacted the company names from the CO4 Contact List was for privacy reasons. The Bank's Branch procedures did not apply to corporate financial services and that the PPL should be followed, not the Branch procedures. She said the superannuation trust document IM36 was in the PPL.

[192] The applicant explained that she was sick between 27-29 August 2018, but was still able to contact and talk to HR. In any event, the Bank does not even have a misconduct policy. Her dismissal was harsh, unjust and unreasonable as it was based on false allegations, a failed investigation and a predetermined outcome. Her explanations were not considered, let alone taken into account, and she was dismissed, without any thought for her personal circumstances, particularly being 20 weeks' pregnant. She sought reinstatement, lost remuneration from 12 November 2018, restored continuity and all disciplinary letters removed from her file.

[100]

[205] Unfortunately, and despite her obsessive determination, I found the applicant to be a particularly uncooperative and unhelpful witness. She would only answer questions in such a way to reflect her dogged mantra in this case that she had done nothing wrong, she needed no training, because she had not made any error in disclosing confidential Client information to the Brother, and she had a legitimate, unresolved grievance for the warning of 31 July 2018.

[206] Self-evident questions or propositions were answered by long winded, and mostly irrelevant speeches from the applicant. From an examination of the transcript in almost two days of cross examination, one can identify few examples of questions which the applicant answered directly. The applicant's reluctance to accept, or even concede, that which was otherwise self-evident was a particularly troubling and, at times, frustrating feature of her evidence. On numerous occasions, I had to direct the applicant to answer the question she was asked, and not one she was not asked.

[207] Regrettably, for the most part, the applicant's evidence was deliberately misleading or manipulated to avoid telling the truth. At other times she was caught out by her own contradictions, implausible explanations or pure invention. At other points, her cross examination was laborious, excruciating and at times, embarrassing. Overall, her evidence was entirely unsatisfactory and gave me little confidence she was a witness of truth. She was a witness who was prepared to manipulate or invent almost anything to demonstrate she had done nothing wrong and she had meticulously followed the Bank's policies and procedures. When this proved evidentially problematic, she then claimed other persons, who were not witnesses in the case or called by her, Mr Linden and her predecessor, had directed her what to do (use the CO4 list to established authorised contacts, for example) and she just followed their directions. Curiously, of course, when Mr Manwaring directed her to training three times, she refused. More about that refusal shortly.

[208] There were other examples of the applicant seeking to bolster her case midway through her cross examination with alleged explanations raised for the first time. For example, when she was questioned about the applicability of the CO4 Contact List as establishing the Brother as the authorised contact person, she claimed that her predecessor, who she couldn't even name, had told her to use the list for that purpose. She later remembered his name. She said that she did not include this in her evidence because it was irrelevant. One might have thought that someone telling her about the purpose of the CO4 contact list was crucially relevant to her argument that she had relied on that list to prove she had done nothing wrong. The more likely explanation is this was an invention of the applicant made on the run, when she knew it could not be tested and the truth was closing in on her.

[209] In my view, the applicant has so well-rehearsed her evidence and is so overwhelmingly focused and preoccupied with proving her case, that she has lost all sense of being able to distinguish fiction from reality. Worst of all, the applicant's documentary evidence was deliberately selective and 'doctored' by omission in order to mislead the Bank's investigation and the Commission into accepting that she had a number of source documents which proved that the Brother was the authorised person for the Family Super Fund. It followed that she had not breached the Bank's policies and procedures in respect to confidentiality of customer information. The lengths the applicant went to included selectively extracting single pages of documents which did not even relate to the Family Super Fund. I will come back to the document evidence shortly.

[210] On the other hand, the Bank's witnesses gave clear and consistent evidence. They had been careful and cautious in ensuring the correct procedures were undertaken in dealing with a difficult and uncooperative employee. It follows that where the applicant's evidence conflicts with the Bank's witnesses, it is their evidence I prefer.

[101]

[211] There is a sense of irony, bordering on pathos, that the applicant was not dismissed for the 'mistake' she allegedly made in contacting the Brother on 16 July 2018, on the basis of her belief that he was the authorised contact person for the Family Group of Companies. This was the applicant's 'fall back' position when she could not locate a specific authorisation for the Family Super Fund on the Bank's system. In my view, the applicant's belief about the Brother's authority was entirely misplaced. As was frequently mentioned in the evidence, but failed to be understood by the applicant, 'Banking 101' (the universally understood principle of banking) is that the only person to be contacted by a bank employee in respect to a customer's private and confidential account information, is the authorised contact person for that account; not a person assumed to be the contact person because of their name being linked, or mentioned in other documents in connection to associated entities or a group of entities. This is what Mr Kuzmanoski described as 'Banking 101' and it is also a simple matter of logic and common sense. In the event a Bank employee is unable to locate the authorisation form, or is unsure of the authorised contact person, the matter is to be escalated to the employee's manager. This latter step did not take place and the applicant gathered together a bundle of documents, some entirely irrelevant, others created post the event, to justify her assumption the Brother was the authorised contact person.

[212] There can be no other description than this was a mistake, at best an error of judgment, perhaps not deliberate at the time. In any event, as I said at the outset the applicant was not dismissed for this mistake, and indeed if she had accepted her error, she may still have been employed by the Bank. There is no mention of this error in the five allegations for which she was dismissed. However, there is no doubt that the applicant's behaviour and misconduct subsequent to the 16 July incident, was all as a consequence of this simple error of judgment. It was the primary focus of the applicant's evidence. This was to demonstrate that if she was right about having not made the mistake, everything the Bank did which flowed from it, was unfair and unjustified; not least of all her ultimate dismissal.

[213] For this reason, it is necessary before dealing with the five allegations for which she was dismissed, to spend some time on considering the applicant's insistence that she had done nothing wrong by contacting the Brother and she had not been in breach of any of the Bank's policies and procedures.

[214] The applicant relied, inter alia, on a number of one page extracts she said she found on CommSee to support her claim that the Brother was the authorised contact person for the Family Super Fund. Caution should always be exercised when accepting into evidence single pages extracted from multi-page documents. It is always preferable to require the tender of the complete document. This note of caution was no better demonstrated in this case when the applicant included in her evidence entirely unrelated, irrelevant and 'doctored' one page extracts, selectively included to support her case. On close examination and in the course of oral evidence, these extracts were exposed as false and misleading and in my opinion, were deliberately known to be so.

[215] The first and most glaring was the CO4 Contacts List tendered as the applicant's document 21(c). This list identified 44 names, email addresses and mobile numbers of various persons identified as Finance Managers, CFOs, Directors, MDs of Accounts. One name identified was the Brother, Director, and included his email and mobile number. Presumably, this is where the applicant located the Brother's mobile number.

[216] However, in Mr Manwaring's reply statement he attached the complete document which disclosed that a list of the companies, being the client identification associated with the names only in document 21(c), had been deliberately redacted from the left hand side of the list. This revelation demonstrated that the client company associated with the Brother had no connection with the Family Super Fund. Moreover, the company name was unrecognisable as having any link to the Family Super Fund.

[217] In cross examination, the applicant sought to explain this redaction as her wanting to ensure client confidentiality. This is totally irreconcilable with the fact that the document she provided had nothing else redacted, and included the email and phone numbers of all 44 clients. In any view, the only conclusion one can draw from this is when the applicant realised the Brother was in the CO4 list, not only did not establish the Brother was the contact person for the Family Super Fund, but could not have possibly resulted in a conclusion that he was associated at all with the Family Group of Companies. In my view, the applicant's explanation was made up and is fanciful, wishful thinking. I am satisfied the applicant deliberately redacted 21(c) to mislead the Bank's investigation and this Commission.

[218] The second, perhaps even more bizarre and alarming reliance was on page 12 of a trust deed document which appeared to be a list of the 13 beneficiaries to a trust or superannuation fund. Page 12 commences at beneficiary (5) and identified the Brother as beneficiary (12). Nothing in the document identified from where it was extracted. Helpfully and instructively, Mr Manwaring provided the complete document. This disclosed the document was a family trust deed executed in July 1981 and which was entirely unrelated to the Family Super Fund. Again, I consider the applicant's selective extract from a totally unrelated document to the Family Super Fund was intended to mislead the Bank and the Commission.

[219] In the next document (23) was a single page extract headed 'Superannuation Fund' and dealt with what is to apply in respect to the Bank's handling of Self-Managed Super Funds. The applicant highlighted dot point five which reads 'A contact person for the organisation will need to be on boarded to a full Individual Standard'. Before coming to the complete documents, it is difficult to see how this extract is relevant to the applicant's case. Firstly, 'on boarding' refers to new customers; the Brother was not a new customer. Secondly, the reference to 'organisation' cannot be a reference to a Group of Companies, and thirdly, a contact person is defined elsewhere in the same document as the 'authorised representative of the organisation'.

[220] It is plainly apparent that this page is page 13 of a 23 page document produced in evidence at Exhibit C headed 'Organisation Customer On-Boarding SA/WA/NT only'. I say 'plainly apparent' because the photocopy of Document 23 is identical even down to the shaded wording in various sections. Of more significance, however, is that the document was to establish a pilot in those two states and territory from 18 November 2018. Plainly, the document was not even in force when the applicant had made the error on 16 July 2018 (four months earlier) and would not have been relevant to her, in any event, as it was a pilot which did not even apply in NSW.

[221] It is not entirely clear how the applicant came upon this document, although presumably she had trawled for anything to support her case, not matter how remotely removed from relevance, before her dismissal on 13 November 2018. What is abundantly obvious, however, is that this was a blatant attempt to selectively and improperly use a document which was utterly irrelevant to her case. There were other documents which the applicant either conveniently misconstrued, or had ignored in the system.

[222] In an email trail involving Mr Lochrin in August 2017, expressly told the applicant that the Brother was the Client's brother and to contact the client about a term deposit rollover. Nothing could be clearer.

[223] Mr Manwaring also included in his evidence extracts from the customer account data base for the client and found it had the correct number for the client, and did not list the Brother as the contact. Further cross-referencing to an account opened in 2010 and an A153 authority for non-personal accounts disclosed a clear cross referencing to the Client and his wife as being the authorised contacts and signatories to the accounts. Nowhere is the Brother mentioned.

[224] There was much controversy about whether the Branch procedures applied to the applicant in her role in private banking. The Bank's branch procedures no more than reflect the notions of 'Banking 101' described by Mr Kuzmanoski and which the applicant would have been well-aware applied to her. In any event, I accept that a term deposit is a retail product for which the usual and well-understood Branch policies and rules apply as to contacting authorised persons to an account. It is also strange that the applicant knew there was a standing instruction to roll over the term deposit. It begs the question, why was it then necessary to contact anyone at all about rolling over the term deposit? Other explanations were provided for her mistake. Notwithstanding, she insisted she followed every Bank policy and procedure to the letter, she claimed her predecessor and Mr Lochrin both told her that the Brother was the contact person and she just followed their directions. I referred to this earlier at [148] above. Rather curiously, she notes in an email of 16 August 2017 that she had contacted the Client, not the Brother in respect to this account. In other words, there is evidence of her knowing 12 months earlier who the correct client was, but then on 16 July 2018, she contacts someone who is not.

[225] Lastly, and even more ridiculously implausible, the applicant claimed that the original complaint about her contact with a third party was not only fabricated, but fabricated by Mr Low, to discredit her. She had demanded to see the complaint and even sought to call the complainant to give evidence. It cannot seriously be suggested that one of the Bank's managers would fabricate a customer complaint; the Bank would then perpetuate the fabrication and conspire to dismiss her. Apart from the utter improbability of such a theory, it ignores the fact that the applicant was not even dismissed for this mistake, but for her subsequent conduct; which I must say is entirely consistent with her capacity to reconstruct implausible explanations and recreate history to avoid acknowledging any personal culpability or responsibility.

[226] Finally, I agree with Mr Seck that although the 16 July 2018 mistake, viewed in isolation, would not have justified dismissal, the Bank could have imposed a harsher sanction than a warning and refresher training. The applicant would have been well advised to have 'cut her losses' and move on. That said, given what was revealed in the proceedings to which I have just referred, had the Bank been conscious of the level of deception and 'doctoring' of documents at the time, the applicant might well have been dismissed for these reasons, without even getting to the five allegations in the 'show cause' letter, to which I now turn.

[111]

[231] The applicant submitted that because she had lodged a WPG with HR on 24 August 2018, relating to the warning for which she was directed to attend training, the training could not take place until her grievance was resolved. I note that contrary to her own evidence, the applicant does not mention the directed training at all in her original grievance lodged on 24 August 2018, having already refused to attend training three times.

[232] There is no policy or procedure which supports this argument; notwithstanding the applicant claims she always complied with the Bank's policies and procedures. Let me make this absolutely clear. The WPG process does not prevent or stall a direction being issued to an employee to attend training. It is irrelevant that she believed her grievance had not been 'closed out'. She was told in clear and unequivocal terms that the grievance process was complete and no further inquiry would be undertaken by HR. The fact was she would simply not accept that her grievance had been determined, according to the express terms of the Policy (hence her attempted escalation to the CEO).

[233] In my view, the applicant's notification of a grievance and her continued refusal to accept the Bank had dealt with, and closed her grievance was designed to frustrate the process and avoid the directions to attend the training.

[234] Next, the applicant claimed that Mr Manwaring told her that if she raised her grievance (having been closed), it would be considered unprofessional and she would be dismissed. Mr Manwaring strongly denied making these comments. There is no corroborative evidence of the applicant's assertion. Given the utter implausibility of Mr Manwaring, or anyone else in management making such a comment, and the applicant's post disposition to creating false evidence, I reject her assertion as little more than pure invention.

[235] Lastly, the applicant claimed that in any event, she did not refuse a direction because it was an 'invitation' to attend training, not a direction. Presumably, given the ordinary meaning of 'invitation', one can either accept or decline, which she did. This is nonsense. In my opinion, given the Bank's sensitivity to the applicant's circumstances and her character, Mr Manwaring was using a less harsh term than 'direction' by carefully describing it as an 'invitation'. The applicant knew exactly what she was required to do and wilfully refused to do so.

[236] Sadly, if only the applicant had attended the directed training, she might still be employed by the Bank. In the end, she was the architect of her own fate. It would have been a simple matter for her to have maintained her opinion that 31 July 2018 warning was unfair and unjustified, swallowed her pride, attend the training and consider it a bit of 'top up' training. Had she done so, the case would never have arisen.

[237] I am satisfied that the applicant's failure to attend directed training on 16, 17 and 22 August 2018 was a deliberate refusal to comply with a lawful and reasonable direction of the employer. It constituted a breach of her employment contract and the Bank's policies and procedures. It amounted to misconduct.

[150]

[269] The applicant complained that she did not have a reasonable opportunity to organise a support person for the meeting with Mr Manwaring and Mr Kuzmanoski. She was particularly critical of being required to arrange for a support person over a weekend. It must be firstly observed that at all meetings, the applicant was invited to bring a support person. Not once did she do so. She believed 24 business hours was insufficient time. I disagree. The applicant would have had cause for complaint if she was called to meetings with a few hours' notice.

[270] It is irrelevant whether the notice given of meeting covers a weekend. Surely, if the applicant had a work colleague or friend she would be able to contact them after business hours; and in any event, a support person need not be a work colleague. It could be a friend or family member, where ready contact could be made. The applicant provided no evidence that she had attempted to contact anyone to act as her support person. I also note that for the four days of hearing the applicant had her husband in court as a support person. There is no apparent reason why he could not undertake that role during meetings with management.

[271] The applicant also criticised Mr Kuzmanoski for having Ms Paterson and Ms Radfar as his support persons in the meetings on 2 October 2018 and 12 November 2018 respectively, as they were both involved in her grievance. Putting aside that the grievance had been closed in accordance with the WGR process, Management will ordinarily have a lead person (Mr Kuzmanoski) with one or more other Management persons, as a witness, notetaker, or a manager/s with direct knowledge of the matter to be discussed. In any event, the reference to support person in the policy is ordinarily defined as a support person for the employee. It does not usually infer a support person for Management. If I have one criticism in respect to the investigation process, albeit insignificant, I would recommend in future that the Bank not refer to other persons attending on behalf of management as support person/s. Their roles are not the same as a support person for an employee.

[272] The applicant insisted that the Bank's policy requiring flexibility with organising meetings was not applied in her case. As I said earlier at least 24 hours' notice is a reasonable period for a disciplinary meeting and, of course, in any event, it was much longer in this case. Flexibility does not mean the employee can veto when a meeting is convened or insist on unreasonable conditions beforehand.

[273] I am satisfied that this factor tells against a finding of unfairness.

[156]

[277] There are a number of other matters I have taken into account in respect to my determination of this matter. Some fall against the applicant and others fall in favour.

[278] Firstly, the applicant cannot assert that her performance prior to 16 July 2018 was exemplary and beyond reproach. In both the 2016/17 and 2017/18 periods when Mr Lochrin and Mr Low were her direct managers, they both record in her PRs that she needed to improve in the execution of basic tasks. Mr Low was plainly dissatisfied with her performance and identified a key area of improvement was in risk management. Unsurprisingly, the applicant responded by stating her reviews were incorrect. She would accept no criticism and not even accept suggestions for improvement. Again, unsurprisingly, her review documents record her own self assessments as 'exceptional', and 'exceeding expectations'.

[279] Secondly, simultaneously with the investigation of the applicant's breach of policy and procedure, she then sought to 'muddy the waters' and deflect attention from her behaviour to that of Mr Low. She raised a number of his alleged breaches for reasons which are baffling, not to mention unsubstantiated and irrelevant. This was not a case about Mr Low and in any event, Mr Manwaring was well and truly on top of all the Team's performance. I draw one conclusion that the applicant's only reason for raising these matters rather than concentrating on her own failings, had more to do with spite and contempt for Mr Low's criticisms of her in her performance reviews and her dismissiveness of him for only being in the Team for six months for which he would be receiving a higher bonus than her.

[280] Thirdly, the Bank spent a considerable effort to encourage, coax and ultimately direct the applicant to attend training for the purpose of reviewing the Bank's policies and procedures. This was not disciplinary action, least of all was it a threat to her future employment. Rather than embracing, or at least begrudgingly accepting that the Bank did not want to terminate her employment, she set out on a course for which the only result was always going to be dismissal.

[158]

[281] As a last resort, the applicant claimed she had been discriminated against on the grounds of her pregnancy. To suggest the Bank, with thousands of female employees, would discriminate against her for this reason is ludicrous. Moreover, there was not a jot of evidence to support this claim, not even evidence which the applicant might have concocted. I note that this was the claim in her General Protections application, which I understand she has not sought to pursue in the Courts. In my view, this was a last ditch attempt to deflect the reality of her misconduct for which the Bank's process had properly and objectively dealt with.

[282] I also accept the applicant had acted improperly in the meeting of 12 November 2018 by initially refusing to hand the Bank's property over to Mr Kuzmanoski. It is reasonable to assume she was hastily transferring information to her personal email before she left the premises. Finally, I have taken into account the applicant was paid four weeks' notice at the time of her dismissal.

[283] On the other hand, I have taken into account the applicant's 13 year period of service, her family circumstances and poor prospects of alternative employment in the banking sector. I have earnestly grappled with the issue of whether these factors of 'harshness' outweigh the seriousness of the allegations of misconduct, when viewed collectively, and in the context of other ongoing performance issues over two years. Regrettably, I am satisfied that they do not. On one view, an employee's long period of service will actually tell against a finding of 'harshness', where it might ordinarily be expected the employee would be very familiar with the Bank's policies and procedures and where the employee has been properly trained. In short, a long serving employee would be expected to know better.

[284] Even if these 'harshness' elements tipped the balance in favour of an unfairness finding, the applicant seeks a remedy nothing short of full reinstatement. Reinstatement, in my view, would be inappropriate in circumstances where she refuses to accept any responsibility at all for the incident of 16 July 2018, her belligerent and unacceptable behaviour and her obvious animus towards her supervisor, Mr Low. There was not a skerrick of remorse - no regret for her actions - no apology - no contrition.

[285] A recent Full Bench decision of the Commission in Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 granted permission to appeal on two public interest grounds; one being:

At a glance

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Judgment (174 paragraphs)

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Legislation Cited (2)

Cases Cited (11)

Candice Dias v Commonwealth Securities Limited [2019] FWC 5479 (19 September 2019)