s.394 - Unfair dismissal

Application for relief from unfair dismissal - valid reason related to conduct - no lack of procedural fairness - dismissal not unfair - application dismissed.

• [1] HSBC Bank Australia Limited (HSBC) is a global banking and financial services business. Fang Liu commenced full-time employment with HSBC on around 14 March 2022 as a Premier Relationship Manager. Ms Liu was promoted to the position of Executive Relationship Manager (ERM) on 1 March 2024. Ms Liu's role as an ERM involved speaking with HSBC's retail customers about potentially becoming an accredited investor. Accredited investors have fewer legal protections than retail customers. Ms Liu was dismissed on 8 November 2024 for alleged misconduct concerning recorded phone calls made by Ms Liu to HSBC retail customers in August and September 2024. Ms Liu's alleged misconduct concerned providing information and advice to HSBC customers that was beyond the scope of what Ms Liu was legally permitted to provide. Ms Liu was paid four weeks in lieu of notice for termination. Ms Liu filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 26 November 2024. This decision concerns whether Ms Liu was unfairly dismissed and, if necessary, whether a remedy should be ordered.

• [2] There was a lengthy delay between the filing of Ms Liu's unfair dismissal application on 26 November 2024 and the hearing of her application on 14 and 15 August 2025. The delay arose because no steps were taken by the Commission in relation to Ms Liu's application from 13 December 2024 until 2 June 2025 because the parties had seemingly reached agreement during a staff conciliation conference on 13 December 2024. However, Ms Liu informed the Commission on 2 June 2025 that the settlement had fallen apart and requested that her application proceed to be heard. HSBC accepted there was not a binding agreement between the parties.

• [3] Ms Liu's unfair dismissal application was heard in Sydney on 14 and 15 August 2025. I granted permission for HSBC to be represented by lawyers at the hearing because I was satisfied that granting permission would enable the matter to be dealt with more efficiently. This was not opposed by Ms Liu. A schedule of the evidence relied on by the parties is attached at the end of this decision. All witnesses were cross-examined on their evidence during the hearing on 14 August 2025. I have considered all the evidence. I have also considered all the written submissions, and the oral closing submissions made by the parties on 15 August 2025.

• [4] For reasons that follow, I have found that Ms Liu was not unfairly dismissed by HSBC. Despite that, I consider it is appropriate to record the following about Ms Liu in an early part of the decision.

• [5] It was clear from Ms Liu's evidence and advocacy that she is a very intelligent and capable person.

• [6] I do not think that Ms Liu deliberately intended to commit misconduct in her role as an ERM. I also do not think Ms Liu intended to cause any harm to HSBC's customers. Ms Liu was clearly passionate about her ERM role and was enthusiastic about broadening her skills and helping HSBC to be successful. Ms Liu appears to have genuinely felt she could improve her performance as an ERM by modifying the General Advice Warning she gave to customers and by using HSBC's investment specialist brochures to add content to her calls.[1]

• [7] Unfortunately, at some point Ms Liu appears to have lost some perspective about the uttermost importance of compliance in an industry that is, for sound reasons, heavily regulated.

• [8] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within 21 days of the dismissal taking effect;

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC); and

(d) whether the dismissal was a case of genuine redundancy.

• [9] Ms Liu's unfair dismissal application was filed on 26 November 2024, which was within 21 days of her employment ending on 8 November 2024.

Was Ms Liu a person protected from unfair dismissal?

• [10] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

• [11] HSBC had around 1,850 employees when Ms Liu was dismissed on 8 November 2024. That means HSBC was not a small business employer at the time of Ms Liu's dismissal, and that the minimum employment for Ms Liu was six months. Ms Liu had completed that period of employment with HSBC when she was dismissed.

• [12] HSBC accepts Ms Liu's employment was covered by the Banking, Finance and Insurance Award 2020. Ms Liu's earnings were also below the high-income threshold.

• [13] I find Ms Liu was a person protected from unfair dismissal when her employment ended on 8 November 2024.

• [14] The SBFDC is not relevant because HSBC was not a small business employer when Ms Liu was dismissed.

• [15] Ms Liu was dismissed for alleged misconduct. Ms Liu's dismissal was not a case of genuine redundancy.

• [16] Given my findings above in relation to the initial matters, I am required to consider the merits of Ms Liu's unfair dismissal application.

• [17] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

• [18] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[2]

Was there a valid reason for dismissal related to Ms Liu's capacity or conduct?

• [19] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[3] and should not be "capricious, fanciful, spiteful or prejudiced."[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]

• [20] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[6] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[7]

• [21] I find the evidence establishes on the balance of probabilities that:

• • Ms Liu failed to give a complete General Advice Warning[8] to several HSBC customers during recorded calls in August and September 2024.[9]

• • Ms Liu provided personal financial advice to several HSBC customers during recorded calls in August and September 2024.[10]

• • Ms Liu continued to provide information to several HSBC customers during recorded calls in August and September 2024 after they had indicated they were not interested in becoming an accredited investor.[11]

• • Ms Liu incorrectly identified the nature of her role to a HSBC customer during one call.[12]

• [22] The conduct identified above was inconsistent with clauses 1.3, 2.5, and 4.1 of HSBC's Code of Conduct. Ms Liu had been trained in the Code of Conduct and Ms Liu's employment contract for the ERM position contained a direction to comply with the Code of Conduct. I also accept Ms Liu's conduct was inconsistent with the processes contained in HSBC's Investment Service Procedure Instruction Manual (PIM) and Accredited Investor Service Desk Instruction Manual (DIM).

• [23] Ms Liu also admitted during cross-examination that she deliberately acted in breach of directions given to her by Tomas Klein (Head of Wealth Distribution) because she thought his advice "was not effective" and acted in breach of a direction from Jacky Liu (Desk Head, Markets) not to use information from HSBC's investment specialist brochure in her calls. Ms Liu also suggested that HSBC did not have the right to prevent her talking about economic issues such as global interest rate movements in her calls with customers. Ms Liu committed misconduct when she disobeyed directions from Mr Klein and Mr Liu and appears to have misunderstood the extent to which HSBC was entitled to determine what she could and could not say in phone calls made on its behalf.

• [24] I reject Ms Liu's argument that the conduct identified above was caused by a lack of training or supervision from HSBC. Mr Klein's statement provides detailed evidence about the training provided to Ms Liu.[13] The relevant policies and procedures were attached to Mr Klein's statement. Mr Klein's evidence about training provided to Ms Liu was not significantly undermined during cross-examination. I accept Mr Klein's evidence.

• [25] Ms Liu highlighted an email that she sent to Ms Hoggett on 19 June 2025 which sought feedback from Ms Hoggett on proposed questions that were intended to "drive wealth referral."[14] There is no evidence that Ms Hoggett responded to the email, although there may have been a phone call between Ms Liu and Ms Hoggett. I consider it may have been helpful for Ms Hoggett to respond to Ms Liu's email and to reiterate the importance of compliance obligations and that these are more important than driving wealth referral. However, Ms Hoggett's lack of response does not excuse Ms Liu's conduct. Ms Liu did also not indicate in the email to Ms Hoggett that she intended to start modifying the General Advice Warning and that she intended to start referring to investment information from HSBC's investment specialist brochures in her calls.

• [26] Ms Liu highlighted that other ERMs were predominantly conducting non-recorded face-to-face appointments as opposed to recorded phone calls.[15] Ms Liu suggested it was likely that broader compliance issues across the ERMs would have been identified if the face-to-face conversations were recorded. However, even if that suggestion is correct, it would likely establish that other ERMs have also committed misconduct. It would not be an excuse for Ms Liu's conduct.

• [27] I have listened to the three phone calls that Ms Liu referred to during closing submissions.[16] Ms Liu's performance and conduct on those calls appears professional and appropriate. However, there is no suggestion that Ms Liu never performed well in her roles with HSBC, nor that she never complied with policies and procedures. It appears that happened in most cases. However, there are also several instances of non-compliance from Ms Liu, and the non-compliance was undoubtedly serious given the onerous statutory obligations imposed on HSBC.

• [28] I find Ms Liu acted in breach of HSBC's Code of Conduct, breached other policies and procedures, and failed to comply with lawful and reasonable directions. I am satisfied that there was a valid reason for Ms Liu's dismissal related to her conduct.

• [29] This factor weighs in favour of finding that Ms Liu's dismissal was not harsh, unjust, or unreasonable.

• [30] Proper consideration of s.387(b) requires a finding to be made as to whether Ms Liu "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[17]

• [31] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[18] and in explicit[19] and plain and clear terms.[20]

• [32] Mr Klein and Ms Hoggett met with Ms Liu on 20 September 2024 to advise her that she was being suspended on full pay while an investigation occurred in relation to calls made by Ms Liu in August and September 2024.

• [33] An allegations letter was sent by Mr Klein to Ms Liu on 21 October 2024. Mr Klein and Andrew Devaraj (HR Advisor) met with Ms Liu to discuss the letter on 22 October 2024. Ms Liu provided a written response to the letter on 28 October 2024.

• [34] Mr Klein sent Ms Liu a letter asking her to show cause as to why her employment should not be terminated on 5 November 2024. Mr Klein and Mr Devaraj met with Ms Liu on 5 November 2024 to discuss the show cause letter. Ms Liu provided a response to the show cause letter on 6 November 2024.

• [35] Mr Klein reviewed Ms Liu's response and issued a termination letter on 8 November 2024.

• [36] I am satisfied that Ms Liu was notified of the reason for dismissal before the decision to end her employment was made.

• [37] This factor weighs in favour of finding that Ms Liu's dismissal was not harsh, unjust, or unreasonable.

Was Ms Liu given an opportunity to respond to the valid reason?

• [38] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[21]

• [39] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[22] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[23]

• [40] Ms Liu was provided with an opportunity to respond to the allegations letter sent by Mr Klein on 21 October 2024 and the show cause letter sent by Mr Klein on 5 November 2024. Ms Liu provided responses to both letters. There were also several meetings held with Ms Liu.

• [41] I am satisfied that Ms Liu was given an opportunity to respond to the valid reason for her dismissal before the decision to end her employment was made.

• [42] This factor weighs in favour of finding that Ms Liu's dismissal was not harsh, unjust, or unreasonable.

Did HSBC unreasonably refuse to allow Ms Liu to have a support person present to assist at discussions relating to the dismissal?

• [43] This is no evidence that HSBC refused to allow Ms Liu to have a support person present at any discussions. The allegations letter sent by Mr Klein to Ms Liu on 21 October 2024 advised Ms Liu that she could bring a support person to an interview. I consider this to be a neutral factor.

Was Ms Liu warned about unsatisfactory performance before the dismissal?

• [44] Ms Liu was dismissed for misconduct as opposed to unsatisfactory performance. I consider this to be a neutral factor.

To what degree would the size of HSBC's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [45] HSBC is a very large business. I have not identified any deficiencies with the procedures HSBC followed in relation to Ms Liu's dismissal. I consider this to be a neutral factor.

To what degree would the absence of dedicated human resource management specialists or expertise in HSBC's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [46] HSBC has dedicated human resource specialists and expertise. I have not identified any deficiencies with the procedures HSBC followed in relation to Ms Liu's dismissal. I consider this to be a neutral factor.

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

• [48] I consider it is relevant that Ms Liu was paid four weeks wages in lieu of notice when she was dismissed, as opposed to being summarily dismissed. Given the nature of the conduct engaged in by Ms Liu, I consider HSBC could have summarily dismissed Ms Liu. I find the provision of notice by HSBC weighs in favour of finding the dismissal was not harsh.

• [49] I also consider Ms Liu's lack of remorse for her conduct weighs against finding that Ms Liu's dismissal was harsh. I may have entertained a finding that Ms Liu's dismissal was harsh if she had consistently acknowledged the issues with her conduct. However, Ms Liu continues to deny any wrongdoing and has attempted to blame her conduct on other people and processes within HSBC.

• [50] I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[24]

• [51] I have not identified any factors that weigh in favour of finding that Ms Liu's dismissal was harsh, unjust, on unreasonable. I have found there was a valid reason for dismissal and that HSBC provided Ms Liu with procedural fairness in relation to the dismissal.

• [52] I find that Ms Liu's dismissal was not harsh, unjust, or unreasonable and that Ms Liu was not unfairly dismissed.

• [53] I order that Ms Liu's application is dismissed.

Mr L Meagher of counsel with Ms J Mow from DLA Piper representing HSBC.

A1 Witness statement from Elly Tso (former ERM colleague of Ms Liu at HSBC) and attached document.

A2 Evidence from Ms Liu and accompanying documents including:

• - Form F2 unfair dismissal application with letters and emails relating to the termination attached and a chronology of relevant events attached.
• - An outline of argument, document list, and statement of evidence.
• - Various emails and documents relating to Ms Liu's employment with HSBC and her termination.
• - Documents concerning Ms Liu's unsuccessful job application with NAB.
• - A document outlining the relevant reporting hierarchies in HSBC.
• - A HSBC Structured Products policy document.
• - Reply evidence.

A3 Email from Tomas Klein (Head of Wealth Distribution) to ERMs (including Ms Liu) dated 23 September 2024 seeking confirmation of how ERMs have been arranging face-to-face customer meetings since June 2024. The email refers to 650 face-to-face meetings and only 310 outbound calls.

A4 Email from Mr Klein to Ms Liu on 6 September 2024 concerning a wealth session presentation to be conducted by Ms Liu in the following week.

A5 A screenshot of notes made by Kathryn Hoggett (Desk Head - Investments) in an internal HSBC system regarding a call made by Ms Liu in August 2024.

A6 Email from Ms Liu to Ms Hoggett dated 19 June 2024. The email seeks feedback on draft questions prepared by Ms Liu for ERMs to use in conversations with customers.

A7 A screenshot of notes made by Ms Hoggett in an internal HSBC system regarding a call made by Ms Liu in June 2024.

A8 Audio recordings of three phone calls made by Ms Liu to customers on 6 September 2024.

R1 Witness statement from Tomas Klein (Head of Wealth Distribution) and attached documents dated 31 July 2025.

R2 Witness statement from Kathryn Hoggett (Desk Head - Investments) and attached documents dated 1 August 2025.

R3 Witness statement from Jalen Kwok (Head of Breach Reporting, Regulatory Compliance) and attached documents dated 31 July 2025.

R4 Audio recordings of phone calls made by Ms Liu which were played during Ms Liu's cross-examination on 14 August 2025.

[1] This is reflected in Ms Liu's initial response to the issues raised in a meeting on 20 September 2024 with Mr Klein and Ms Hoggett, Exhibit R1, Attachment TK-18, DHB page 783.

[2] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[5] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[6] Edwards v Justice Giudice [1999] FCA 1836, [7].

[7] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[8] Exhibit R1, Attachment TK-11, DHB page 557.

[9] Ms Liu confirmed during cross-examination that she regularly provided a briefer version of the General Advice Warning because she considered the full version was "robotic."

[10] The phone recordings relied upon by HSBC demonstrate Ms Liu provided information about potential movements in interest rates in Australia and the United States of America, Ms Liu referred to guaranteed returns and minimum returns, Ms Liu referred to a structured product as a "conservative investment", Ms Liu stated it was "not a bad time to get into the market", and Ms Liu stated that HSBC had products that "would meet a customer's needs".

[11] This occurred during several calls that were played to Ms Liu during the hearing on 14 August 2025.

[12] Ms Liu was not speaking in English during the relevant part of the call. Ms Liu and HSBC have differing views about the appropriate translation. HSBC stated Ms Liu referred to herself as a "financial planner." Ms Liu said the appropriate translation was "wealth manager." Either of the terms was an incorrect description of Ms Liu's title and role.

[15] Exhibit R2, Attachment KH-4, DHB page 241 to 245.

[17] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[18] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[19] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[21] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[22] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[23] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[24] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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