the question is, does the Applicant's conduct amount to serious misconduct that gives rise to a valid reason for her dismissal? The answer is yes."

[89] WSMRC submits that Ms Al Bankani made her decision to delete the data from the on-call mobile knowing that:

(a) WSMRC runs a humanitarian support program funded by the Australian Government, and provides services under a contract with SSI;

(b) WSMRC operates the Specialist Intensive Services in order to provide a higher level of support to Tier 3 clients;

(c) WSMRC services refugees who are classified by the government as having high or complex needs including clients experiencing severe trauma, domestic violence, poverty, homelessness and physical and mental health concerns;

(d) unlike the Tier 1 or Tier 2 clients that WSMRC assists, the Tier 3 clients are on an interventionist program, this means that, in effect, WSMRC acts on their behalf rather than assisting them to make independent enquiries;

(e) consequently, the case work and client records that are made with respect to Tier 3 clients are at a higher threshold than ordinary case work records (more alike in importance to a medical record than to an ordinary business record);

(f) by virtue of these complex and high needs clients WSMRC assists under the Specialised Intensive Services, Ms Al Bankani's role was distinguished from that of an ordinary community service case worker; and

(g) the on-call mobile is distinguished from an ordinary work telephone provided to employees and has a specific and significant purpose in respect of Tier 3 clients.

[90] WSMRC's submissions can be summarised as follows:

(a) Ms Al Bankani is a well-qualified and experienced case worker who was aware of the WSMRC Procedure Manual and, in addition, knew or ought to have known of the very real importance of maintaining Tier 3 client records and not deleting data off the on-call mobile;

(b) as the only Tier 3 case worker for WSMRC and as the case worker in the role when the SIS contract was established, Ms Al Bankani was aware or ought to have been aware of the necessity to keep Tier 3 client records (pursuant to clause 20 of the contract) as "all client records are the property of the Department";

(c) on 5 June 2019, Ms Al Bankani confirmed that she had read and understood the WSMRC Procedure Manual, which includes, at clause 12, the appropriate use of information technology. It was not otherwise harsh, unjust or unreasonable for WSMRC to enforce the WSMRC Procedure Manual or the protection of Tier 3 data and, in doing so, the SIS contract;

(d) it was part of Ms Al Bankani's role for her to issue invoices under the SIS contract. This role, WSMRC said, required an in-depth knowledge of how the SIS contract worked, including in respect of services rendered and charged for;

(e) a copy of the contract was stored in a 'shared' folder on Office 365 within WSMRC's computer system and Ms Al Bankani had access to this shared folder;

(f) the Commission would not be persuaded that Ms Al Bankani could have run the Specialised Intensive Services program without a detailed understanding of the SIS contract;

(g) WSMRC has an employment portal called 'Employment Hero' where policy and procedure documents are kept and available to all employees, including Ms Al Bankani. Employees undergo training on the WSMRC Procedure Manual at the time they commence in a role;

(h) on 5 June 2019, Ms Al Bankani confirmed that she had read and understood the WSMRC Procedure Manual which included at clause 12, the appropriate use of information technology;

(i) the WSMRC Procedure Manual prohibits the deletion of data without authorisation. By application of the definitions within the WSMRC Procedure Manual the data on the mobile phone issued to Ms Al Bankani is part of WSMRC's "IT System" and the "modification or removal of data or equipment ... without specific authorisation" is one form of "use damaging the integrity of the MRC or other IT systems";

(j) Ms Al Bankani also breached the following provision in the WSMRC Procedure Manual:

"Use in violation of WSMRC's Contracts. All use of IT Systems must be consistent with the MRC's contractual obligations, including limitations defined in software and other licensing agreements".

(k) WSMRC has an On-Call Procedure that is said to describe "the process and standards for on-call services in the ... Specialised & Intensive Services at WSMRC";

(l) WSMRC said the Commission would not accept Ms Al Bankani's evidence that she was unaware of the On-Call Procedure in the circumstances where she was the sole Tier 3 caseworker (and as such the sole caseworker expressly employed to deal with clients for whom the on-call mobile was used); and

(m) Ms Al Bankani was not in any way deprived or otherwise hindered in providing her responses to WSMRC, nor was she subjected to any other procedural unfairness.

Consideration - Section 387

[91] Section 387 of the FW Act requires me to take into account the following matters in determining whether Ms Al Bankani's dismissal was harsh, unjust or unreasonable:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[92] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.

[93] Ms Al Bankani was dismissed for an alleged breach of WSMRC's published policy. In Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26] ("Hilder") the Full Bench summarised the well-established principles for determining such matters:

"The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable."

[94] In Hilder the Full Bench found at [29]:

"However, the Deputy President's consideration of whether there was a valid reason was affected by error of a more consequential nature, in that he did not address the material issues identified in the principles identified above but rather determined the issue by reference to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as to the occurrence of the conduct which was the reason for Sydney Trains' dismissal of Mr Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder conceded that he was aware of the Policy and its significance. The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains' operations and Mr Hilder's work duties."

[95] The Full Bench noted that the Deputy President at first instance also made an alternate finding that Mr Hilder's dismissal was harsh on the premise that there was a valid reason for dismissal (at [38]), upheld the original alternate finding that the dismissal was harsh (at [41]) and dismissed the appeal (at [42]).

[96] WSMRC decided to summarily dismiss Ms Al Bankani and not issue her with a warning. Mr Dabboussy thought that Ms Al Bankani "didn't seem to understand the gravity of [her conduct]" and that he had no option except to summarily dismiss Ms Al Bankani.

[97] Ms Al Bankani admits that she deleted all of the information and data on the on-call phone prior to handing it over to a co-worker.

[98] There are at least three different ways that WSMRC could have formulated its allegation of misconduct/valid reason for dismissal:

(a) that Ms Al Bankani actually deleted client records (even though WSMRC cannot prove it);

(b) that Ms Al Bankani engaged in conduct that could have deleted client records, either intentionally or inadvertently, when she deleted all of the content of the on-call phone; or

(c) that Ms Al Bankani breached WSMRC's IT policy by deleting WSMRC's computer records, regardless of whether those records included any client records.

[99] WSMRC relies on the second formulation - that the removal of all data on the on-call phone was misconduct because it could have deleted client records - which is no surprise given WSMRC cannot prove that Ms Al Bankani actually did delete client records.

[100] Deleting or erasing the contents of a device issued by an employer without authorisation is a valid reason for dismissal.

[101] There is at least a possibility that there were client records on the on-call phone. The whole purpose of the on-call phone was to provide after-hours emergency contact through a publicised dedicated phone. Although the likelihood that client records were on the phone is low (see below) I must accept the possibility that at least some clients had called the on-call phone.

[102] The potential damage this conduct could cause is reasonably obvious: the employer is deprived of the opportunity to inspect the device, it may compromise WSMRC's record keeping systems and potentially its contractual obligations to retain records.

[103] In this context such conduct is not a "trivial misdemeanour" that does not reach the mark of being a sound, defensible, well-founded, and therefore valid reason for dismissal.

[104] I am also prepared to accept that on some occasions such conduct could be sufficiently serious that it warrants summary dismissal.

Was the Applicant notified of the valid reason?

[105] Section 387(b) requires me to take into account whether Ms Al Bankani "was notified of that reason." Sections 387(b) and (c) direct the FWC's inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.

[106] In context, the inquiry to be made under s.387(b) is whether the employee was "notified" of that reason before the employer made the decision to terminate. The reference to "that reason" is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being "notified" is a reference to explicitly putting the reasons to the employee in plain and clear terms.

[107] The allegation put to Ms Al Bankani by letter on 10 January 2022 was:

"1. It is alleged, that on or immediately before the 15 December 2021, you deleted all primary correspondence from and to clients, from a work provided device. The device was a mobile phone, an apple iPhone with the phone number [redacted].

2. Further, that this destruction of primary client information was undertaken without

[108] This formulation of the allegation is different to the reason for dismissal that WSMRC relied on in these proceedings.

[109] I am nonetheless satisfied that the allegations that were put to Ms Al Bankani gave her sufficient opportunity to present a case in response.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[110] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.

[111] Ms Al Bankani was given a proper opportunity to respond to the allegations against her. I have some concerns about what WSMRC did and did not do once they received Ms Al Bankani's response, and the somewhat flimsy basis for disregarding Ms Al Bankani's responses, but I am content to find that for the purposes of s.387(c) Ms Al Bankani was given an opportunity to respond to the stated reasons for her dismissal.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[112] Ms Al Bankani was allowed to have a support person present in the meeting on 14 January 2022.

[113] The dismissal did not relate to alleged unsatisfactory performance, the fact that Ms Al Bankani was not warned about unsatisfactory performance (s.387(e)) does not affect the fairness of the dismissal.

The size of the enterprise and access to HR resources

[114] Neither party submitted that the size of WSMRC's enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of WSMRC's enterprise had no such impact.

[115] In this matter the absence of dedicated human resource management specialists or expertise in WSMRC's enterprise did not significantly impact on the procedures followed by WSMRC in dismissing Ms Al Bankani. WSMRC was advised through the process by its lawyers.

[116] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[117] For the following reasons I am satisfied that the dismissal was harsh, unjust and unreasonable:

(a) Ms Al Bankani breached the literal terms of the WSMRC Policy Manual, however the terms of the policy are long, complex, legalistic and did not fairly and clearly put Ms Al Bankani on notice of WSMRC's requirements;

(b) There is very little evidence of WSMRC ensuring that its employees read and actually understood the WSMRC Procedure Manual;

(c) WSMRC's procedures regarding mobile phones and IT were haphazard;

(d) Ms Al Bankani's explanation for why she said there were no Tier 3 client records on the on-call phone was rational and plausible;

(e) the consequences of Ms Al Bankani's conduct were not serious in the circumstances because there was a very low risk or likelihood that the on-call phone contained client records; and

(f) WSMRC had access to materials that most probably would have proved (or disproved) Ms Al Bankani's explanation but did not investigate those materials.

[118] I shall now expand on each of these findings.

The company policy is legalistic, obtuse and unsuited to the particular workforce

[119] Ms Al Bankani should not have erased the records from her on-call phone. Ms Al Bankani breached the terms of the WSMRC Procedure Manual when she deleted the contents of the on-call phone. In this regard there was a valid reason for the WSMRC to dismiss her.

[120] The reference in the WSMRC Procedure Manual to deleting data or information held on mobile phones is far from clear or obvious. I accept that a broad literal reading of the words used in the WSMRC Procedure Manual capture information or data stored on a mobile phone. However, if deleting information on a mobile phone was regarded by WSMRC as serious misconduct, its stated policies should have unambiguously spelt out the requirements for retaining and preserving information held on mobile phones and the very serious consequences for not complying with those requirements.

[121] Clause 12 of the WSMRC Procedure Manual - "Appropriate Use of Information Technology" - is approximately 2500 words long. The opening paragraphs are:

"Information technology ("IT"), the vast and growing array of computing and electronic data communications facilities and services, is used daily to create, access, examine, store, and distribute material in multiple media and formats. Information technology plays an integral part in the fulfilment of WSMRC's research, education, clinical, administrative, and other roles. Users of WSMRC's IT resources have a responsibility not to abuse those resources. This IT Appropriate Use Policy provides guidelines for the appropriate use of WSMRC's IT resources as well as for the centre's access to information about and oversight of these resources.

Most IT use parallels familiar activity in other media and formats, making existing centre's policies important in determining what use is appropriate.

This Policy addresses circumstances that are particular to the IT arena and is intended to augment but not to supersede other relevant WSMRC's policies."

[122] The terminology in clause 12 is legalistic, complex and more commonly found in a commercial or government contract than in a document used by workers in a migrant assistance agency. Clause 12 might make sense to copyright lawyers and some IT specialists, but probably no one else.

[123] If a single breach of the policy was regarded by WSMRC as serious and wilful misconduct, then the requirements should have been made obvious to staff through regular and clear messaging. WSMRC relies on a sub-clause on page 64 of 72 of the WSMRC Procedure Manual. Ms Al Bankani last signed a document that said she had "read and understood" the policy in 2019.

[124] English is not Ms Al Bankani's first language. She required an interpreter when giving her evidence in the proceedings. Ms Al Bankani was able to answer most questions directly but sought assistance from the interpreter when either the question or her answer was more complex.

[125] Despite Ms Al Bankani signing a document in 2019 that said that she had "read and understood" the WSMRC Procedure Manual, I have serious reservations about whether Ms Al Bankani would have understood and remembered all of the terms of clause 12 of the WSMRC Procedure Manual. I mean no disrespect to Ms Al Bankani in this regard - my concern arises from the wording of the Manual and the connection between the document and WSMRC's operation.

[126] There is very little evidence of WSMRC ensuring that its employees actually read and understand the WSMRC Procedure Manual (cf Queensland Rail v Wake (2006) 156 IR 393, cited heavily in B, C and D v Australian Postal Corporation T/A Australia Post (2013) 238 IR 1, [2013] FWCFB 6191). I note in this regard that Ms Perera and Ms Macri said they were not aware of any specific policy regarding the use of mobile phones.

[127] WSMRC relied on the fact that clause 12 of the WSMRC Procedure Manual says:

"All use of IT Systems must be consistent with the MRC's contractual Obligations and the fact that the SIS contract was accessible within the Respondent's computer system."

[128] Neither Ms Al Bankani nor her supervisor Ms McCausland have read the contract and WSMRC's reliance on this provision linking the policy to the SIS Contract is unsound.

WSMRC's procedures regarding mobile phones and IT were haphazard

[129] The written policy had no connection at all with the WSMRC's everyday practices regarding phones. WSMRC's procedures, as opposed to its published policy, regarding mobile phones and IT were haphazard:

(a) WSMRC did not differentiate between data that might be a Tier 3 client record and other data except for storing Tier 3 client records in a separate section of the client database;

(b) there is no evidence of WSMRC taking any steps to preserve or protect data that might be stored on a mobile phone. Mr Dabboussy acknowledged that the WSMRC did not require staff to back up the data on their phones;

(c) in fact Ms Macri said she was told by an external IT consultant to consistently delete data from her phone to free up space to allow the phone to work more efficiently. WSMRC's submission that Ms Macri was "authorised" to delete data by an external IT consultant and therefore did not breach the WSMRC Procedure Manual is nonsense;

(d) similarly Ms Kanaan, Ms Al Bankani's former supervisor, said when staff returned phones to her that she always cleansed them of data by restoring the telephone to its factory settings. Ms Kanaan said this was "routine and not controversial"; and

(e) Ms Kanaan said there was no formal procedure for when a client exited the Tier 3 program. Ms Al Bankani said she was told by Ms Kanaan that when a client exited from Tier-3 she should block the number and delete the messages.

[130] If the preservation of records stored on mobile phones was so vitally important to the WSMRC then I would have expected WSMRC to put proper systems in place to ensure that these important records were actually preserved. For example WSMRC could have required employees to back up data from their phones to other devices, and the back-up files could have been saved to a central server for safekeeping. This is an obvious and simple measure and would have protected WSMRC's data and records from both deliberate and accidental loss.

Ms Al Bankani's explanation was rational and plausible

[131] Ms Al Bankani gave an explanation for why she said there was no client information on the on-call phone: she said that Tier 3 clients never rang the on-call phone because they rang her on her work phone instead.

[132] Ms Al Bankani's explanation was entirely plausible in that she was dealing with high-needs Tier 3 clients and the on-call arrangement was specifically in place to deal with urgent and serious matters. Ms Al Bankani was supposed to turn off her phone at 5:00pm on what appears to be the assumption that Tier 3 clients will know that they must ring a different phone number after 5:00pm to reach the same person. Ms Al Bankani did not turn off her work phone because, she said, she was worried about her clients.

[133] Ms Al Bankani was the only caseworker working with Tier 3 clients. It makes sense that WSMRC maintained a designated after-hours number for emergency situations, but it does not make sense that WSMRC insisted, or even assumed, that Ms Al Bankani would make her normal work phone unavailable after 5:00pm when it knew that Ms Al Bankani was the only one dealing with Tier 3 clients during office hours and was the only one dealing with Tier 3 clients outside of office hours.

[134] It also seems quite unlikely that clients would have made the distinction between two different mobile phone contact numbers for the same case worker.

[135] Ms Al Bankani's explanation is also consistent with the evidence from her former supervisor, Ms Kanaan, who said that when she had the on-call phone every third week over a period of six months, she received one phone call and one text message, and that the one phone call was not actually urgent and she asked the client to call back the next day.

[136] Basically Mr Dabboussy did not believe Ms Al Bankani's explanation when he decided to dismiss her, and instead assumed that because the policy stated that employees were to only use the on-call phone after 5:00pm then that was what happened.

[137] The only basis upon which WSMRC said that there could have been client records on the phone is the policy. The evidence supporting that case must be tested against Ms Al Bankani's evidence about whether there could have been client records on the phone.

[138] WSMRC provided no compelling evidence that Ms Al Bankani had contact with any Tier 3 clients using the on-call phone.

[139] Ms Al Bankani was cross-examined on the importance of keeping records of client interactions and she readily agreed that all contacts must be noted in the client database. WSMRC has not ever alleged that Ms Al Bankani failed to record dealings with Tier 3 clients in the CDS. Nor has WSMRC ever alleged that Ms Al Bankani failed to record interactions with Tier 3 clients in her activity reports sent to SIS.

[140] Mr Dabboussy said WSMRC cannot "prove the negative", which I understood to be a reference to the difficulties faced by WSMRC in trying to provide evidence of something that no longer exists. However WSMRC did not properly investigate Ms Al Bankani's response prior to deciding to dismiss her or search available records that could have either proved or disproved her response.

[141] WSMRC has had access to at least the following/information since suspending Ms Al Bankani in January 2022:

(a) Ms Al Bankani's normal work phone: WSMRC does not appear to have inspected Ms Al Bankani's work phone at all. An inspection of the work phone would quickly verify Ms Al Bankani's claim that Tier 3 clients contacted her after hours on her work phone rather than the on-call phone;

(b) WSMRC's client database: The evidence was that all client contact was recorded in the CDS database. WSMRC could have reviewed these entries to identify whether they show any client contact through the on-call phone and/or client contact that was not recorded on Ms Al Bankani's work phone; and

(c) SIS claim documents: prepared by Ms Al Bankani and sent to SIS for payment. These records may have indicated dates and times when Tier 3 clients made after-hours calls (to either the on-call phone or the work phone).

[142] There is no evidence that these records were examined at all.

[143] There was evidence from Mr Dabboussy of examining another phone on another occasion "when we've had to track down certain incidents that have taken place and we're trying to be precise about that information for record keeping." If WSMRC did investigate Ms Al Bankani's claim after the dismissal it has not led evidence to disprove what Ms Al Bankani said.

[144] After she was dismissed Ms Al Bankani obtained phone records from Telstra via an Order for Production issued by the Commission. Ms Al Bankani's analysis of the phone records (see [41] above) satisfactorily explains almost every call, MMS and SMS. Ms Al Bankani provided in evidence the raw data from which the analysis was made and her analysis was not challenged in any way by WSMRC. WSMRC could have also, for example, cross-referenced the raw data against its own client database records.

The consequences of Ms Al Bankani's conduct were not serious

[145] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).

[146] In this matter the seriousness of the misconduct is closely related to the likelihood that the on-call phone actually contained client records. If there was a very high likelihood that there were important client records on the phone then Ms Al Bankani's misconduct was more serious. If there was only a slight chance that the on-call phone contained client records, then the misconduct is not likely to be regarded as serious.

[147] On the evidence described above I find that there was only a slight chance that the on-call phone contained client records.

Is the Commission satisfied that the dismissal of Ms Al Bankani was harsh, unjust or unreasonable?

[148] I find that the dismissal of Ms Al Bankani was harsh, unjust and unreasonable.

[149] Although there was a valid reason for dismissal and WSMRC gave Ms Al Bankani the opportunity to respond to the allegations against her, WSMRC did not properly investigate Ms Al Bankani's response.

[150] Ms Al Bankani breached the literal terms of the WSMRC Procedure Manual. However the policy was too complicated for its context and bore little connection to the procedures initiated and/or tolerated by managers.

[151] WSMRC's decision to summarily dismiss Ms Al Bankani was clearly harsh and unjust. There does not appear to be any sinister motivation for Ms Al Bankani's dismissal - it seems that WSMRC simply made a bad judgment call to dismiss her so swiftly.

[152] Employer policy documents and manuals are generally helpful. As the Full Court of the Federal Court observed in Westpac Banking Corporation v Wittenberg [2016] FCAFC 33; (2016) 256 IR 181 at 196-7, [2016] FCAFC 33 at [76]- [80], [334] and [341]:

"The question of compliance by an employee (and by the employer) with an employer's policies also raises difficult issues in some cases.

At one level, a contractual requirement to comply with an employer's published policies (often expressed as compliance with the policies as they exist from time to time) is simply an agreed record of a basic contractual obligation imposed by implication on an employee - i.e. when performing work under the contract to always comply with the lawful directions of the employer. This requirement is necessary to permit compliance by the employer with obligations to other employees and to third parties because an employer is generally vicariously liable to third parties for the conduct of employees when carrying out their duties and liable to other employees for their safety and well being at work.

Policies of this kind are subject to adjustment. The adjustment is in the discretion of the employer. The employee normally agrees to comply with the instructions in the policy as it is in place at any particular time. There may also be good reason for an employer to make discretionary exceptions to its own policies, from time to time, either generally or in particular cases without formal alteration. These are usually not matters intended to be subject to negotiation; nor are they in practice in most cases.

Policies of this kind are, by their nature, applicable generally to employees. They may apply to thousands of employees. They are broad guides to behaviour, not individually stated for particular employees. In a contract of employment, an employee sometimes promises obedience, but not always - even when a policy is referred to. Sometimes the contract merely records, in a letter of offer: "You will be expected to comply with [the Company's] policies concerning [............] as published or in force from time to time". There may be a real question whether a counterpart signature by an employee on a letter of offer like this raises any particular contractual obligation on the employee, arising from the contract. Any allegation of failing to comply with a policy would be more safely expressed as a failure to follow a lawful instruction (an obligation implied by law into contracts of employment) than as a contractual failure to comply with the policy. However that may be, in my view no contractual obligation is directly or expressly cast upon the employer by an exchange of this kind.

In other cases, an employee may actually agree to comply with an employer's policies as published from time to time. Upon the assumption that an express contractual term is thereby stated, difficult questions then arise about whether, and to what extent, an employer becomes contractually bound to the same policies, given that (usually) it should be concluded that an employer intends to retain complete control over the content of its own policies which are in no sense negotiated with its individual employees."

[153] The case advanced for WSMRC focused on the extensive documentation within which there were snippets of terms and phrases that, according to WSMRC's case, connected the proverbial dots between Ms Al Bankani's conduct in deleting the contents of the on-call phone and the termination of her employment. This approach did not fully engage with the primary question at hand, being whether the dismissal of Ms Al Bankani was unfair.

[154] Employer policy documents and manuals must be accessible, understandable and reasonable in their terms.

[155] The WSMRC Procedure Manual was accessible to Ms Al Bankani. To the extent that WSMRC relies on the link between the WSMRC Procedure Manual and the SIS Contract, the contract was not reasonably accessible to Ms Al Bankani. Although the evidence was that she could access the contract within WSMRC's computer system, there was no practical reason established for her to do so, and no evidence at all of the employer asking or requiring Ms Al Bankani to familiarise herself with the contract.

[156] As I have explained above, I am very concerned that the terms of the WSMRC Procedure Manual relied on by WSMRC were not readily understandable to Ms Al Bankani.

[157] To the extent that the WSMRC Procedure Manual prohibited the deletion of client records that WSMRC was required to keep, the policy was reasonable. However WSMRC relies on terms in the policy that are significantly broader, and in a wider context those terms were not reasonable.

[158] Employer policy documents and manuals must also by applied fairly and reasonably. For reasons that do not need to be restated in this part of my decision, the WSMRC Procedure Manual was not applied and enforced consistently, reasonably or fairly in Ms Al Bankani's case.

[159] Being satisfied that Ms Al Bankani made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of s.385 of the FW Act, I may order Ms Al Bankani's reinstatement, or the payment of compensation to Ms Al Bankani, subject to the FW Act.

[160] The Commission must perform its functions and exercise its power in a manner that is fair and just and promotes harmonious and co-operative workplace relations (per s.577 of the FW Act) and must take into account the objects of the Act, and equity, good conscience and the merits of the matter. The power to order reinstatement is "a very drastic one" (per Slonim v Fellows [1984] HCA 51; (1984) 154 CLR 505 at 515, [1984] HCA 51, cited in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at 548, [2005] HCA 22 at [28]). As the High Court observed in Blackadder (at 548 [28]), such an order is an intrusion into the personal relationship of employer and employee, and an intrusion that is "deliberate and envisioned by the Act."

[161] As the Full Court in Perkins v Grace Worldwide Australia Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 190, [1997] IRCA 15 observed, the employment relationship is capable of withstanding some friction and doubts.

"Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party."

[162] Neither party made extensive submissions on remedy.

[163] WSMRC's opening oral submissions on remedy were:

"The last point to make is that the applicant seeks reinstatement in this matter. If the applicant is successful and the Fair Work Commission finds that she has been unfairly dismissed, which is denied, we say that reinstatement would not be a practical or appropriate remedy for the reasons that I have taken the Commission to in terms of the gravity of the offence, what we say is a failure to understand the gravity of that offence, and the case against reinstatement for that reason is compelling and an order to that effect should not be made."

[164] WSMRC's closing written submissions were equally brief:

"The Applicant seeks reinstatement in this matter. If the Applicant is successful and the Commission finds that she has been unfairly dismissed (which is denied) reinstatement would not be a practical or appropriate remedy.

We say that given the gravity of the conduct and the Applicant's apparent failure to comprehend the significance of her actions, the case against reinstatement is compelling. An order of reinstatement should not be made."

[165] The dismissal was harsh and unfair - Ms Al Bankani should not have been dismissed. The gravity of the conduct was such that she should not have been dismissed and is a factor in this case that supports an order for reinstatement.

[166] Taking all these matters into account I find that it would be appropriate to order that Ms Al Bankani be reinstated to her former position pursuant to s.391 of the FW Act.

[167] Further, it is appropriate to make an order that maintains the continuity of Ms Al Bankani's employment (per s.391(2)(a)) and to make an order that WSMRC pay to Ms Al Bankani an amount for the remuneration lost by Ms Al Bankani because of the dismissal (per s.391(3)).

[168] In making an order under s.391(3) I am required by s.391(4) to consider:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[169] There is no specific evidence that could allow the above two amounts to be calculated. To finalise the matter I will make some procedural directions to overcome this gap in the evidence.

[170] An order to restore lost pay under s.391(3) is discretionary and the Commission may take into account all of the circumstances of the case, including the conduct of the employee that led to the dismissal (see Humphries v Buslink Vivo Pty Ltd [2015] FWC 6278 citing Kenley v JB Hi Fi, Print S7235 at [36]).

[171] I do consider that Ms Al Bankani's conduct prior to dismissal warrants a reduction in payment for lost remuneration.

[172] However it is appropriate to reduce the amount ordered to take into account the fact that there is almost no evidence of Ms Al Bankani making reasonable attempts to find alternative employment and mitigate her loss.

[173] Ms Al Bankani said in her written evidence:

"On [the day after I was dismissed], I attended the doctor to get a prescription for Valium. I have had to take it to sleep every night since then.

I have dealt with a lot of problems in my life but this problem has really affected me. Mentally, it is too much.

I began seeing a psychologist, Miriam Broadhurst, in February 2022. She is very nice. It has helped me with a lot of things but I have not been able to manage my emotions about this termination.

I am still at a loss as to why I have been terminated after 6 years of hard work given to the WSMRC. While I have been looking for work so far I have not found any. I don't believe the WSMRC has treated me fairly and I am worried about finding a new job."

[174] Ms Al Bankani's evidence was not challenged in any way. Ms Al Bankani's evidence nonetheless falls short of showing that Ms Al Bankani took appropriate steps to mitigate her loss.

[175] I recognise that Ms Al Bankani said that the dismissal affected her mentally. There is evidence of Ms Al Bankani enduring a long history of abhorrent circumstances in Iraq and Australia. In this context it is understandable that Ms Al Bankani was affected by her dismissal.

[176] However there is no medical evidence suggesting that Ms Al Bankani was not fit to work in other employment and no specific evidence of Ms Al Bankani applying for any other jobs.

[177] When making "appropriate" orders under s.391(3) the Commission often considers the efforts of an applicant to mitigate their loss. In a slightly different context the same matter must be considered when considering an order for compensation (per s.392(2)(d)). In my view it is appropriate that the amount payable WSMRC for the remuneration lost by Ms Al Bankani be reduced by 25%.

• [178] In the circumstances I will make an order[1] that within 21 days Ms Al Bankani be reinstated to the position in which she was employed immediately before her dismissal (per s.391(1)), an order that maintains Ms Al Bankani's continuity of employment (per s.391(2)(a)) and also the following directions for the filing of material by the parties in order to facilitate the making of an order to restore lost pay (per s.391(3)):

"Pursuant to subsection 391(3) of the Act, WSMRC is to pay to Ms Al Bankani an amount for the remuneration lost by Ms Al Bankani because of the dismissal, calculated as follows:

a. The amount Ms Al Bankani would have earned for ordinary hours of work between the date of her dismissal and the date she is reinstated;

b. MINUS any monies paid by WSMRC in lieu of notice of termination;

d. MINUS 25% of the amount calculated after each of the above steps.

If the amount payable in accordance with the above order is agreed between the Parties by 17 March 2023, WSMRC must pay the amount agreed to Ms Al Bankani by no later than 28 March 2023 (or by such other date that is agreed between the parties).

If the amount payable in accordance with the above order is not agreed between the Parties by 17 March 2023, each party must file and serve submissions and any supporting evidence by no later than 22 March 2023 in relation to:

a) the amount each party submits to be the correct amount the Commission should order; and

b) the amount of remuneration earned by Ms Al Bankani from employment or other work during the period between the dismissal and the making of the Order for reinstatement; and

c) the amount of any remuneration reasonably likely to be earned by Ms Al Bankani during the period between the making of the Order for reinstatement and the actual reinstatement."

Ms S McCarthy of Counsel instructed by Ms P Forster and Ms M Roberts of Kennedys Lawyers for the Respondent

[1] PR760093.

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