//
[1988] FCA 381
General information, not legal advice.
Federal Court of Australia
1988-07-01
Keely J
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INDUSTRIAL LAW ~ awards - breaches - whether conduct amounts to "serious and wilful" misconduct - whether termination of
employment is "harsh, unjust and unreasonable" - penalties P P
Bank Officials' (Federal) (1963) Award - - clauses 38A(a),
Bank officials' (Long Service Leave) Award 1965 - clause 8(2)
Gregory v Philip Morris Limited (unreported - delivered 14
THE AUSTRALIAN BANK EMPLOYEES UNION v WESTPAC BANKING
38A(a) of the Bank Officials' (Federal) (1963) Award.
38A(d) of the Bank Officials' (Federal) (1963) Award.
sub-clause 8(2) of the Bank Officials' (Long Service Leave)
4, Each of the penalties imposed by the above orders be
paid to the applicant, Australian Bank Employees Union. --
(Note: Settlement and entry of orders is dealt with in Order
THE AUSTRALIAN BANK EMPLOYEES UNION v WESTPAC BANKING
Page No. Facts not in dispute 2-10 The onus of proof 10
The credibility of the officer dismissed 11-13 The credibility of the other two officers 14-15 The credibility of the Managing Director 15-22 The Investigation Report 22~25
a The respondent's attitude to Sir Joh 28-30 Sir Joh's pressure for strong action 30-31
did not leak the information 31-32 The influence of Sir Joh on the dismissal 32-38 Other reasons for the dismissal 38-41
Respondent 14 JULY, 1988 KEELY J. REASONS FOR JUDGMENT
Conciliation and Arbitration Act 1904 ("the Act") by the
Australian Bank Employees Union ("the Union") for the court to impose penalties upon Westpac Banking Corporation ("the respondent") in respect of alleged breaches of clauses 30, 38A(a), 38A(d) and 38A(£) of the Bank Officials' (Federal) (1963) Award ("the Bank Officials' Award") and an alleged breach of the Bank Officials' (Long Service Leave) Award 1965
A statement of agreed facts was tendered in evidence in the proceedings. The following matters, which include
quotations from the agreed facts, were not in dispute:
At all material times the Union was an organization of employees registered pursuant to the Act and was a party bound by both the Bank Officials' Award and the Long Service
At all material times the respondent was a party to
both the Bank Officials' Award and the Long Service Leave
At all material times Mr. Gordon Nuttall was a member
Mr. Nuttall commenced employment with the respondent on 18 June 1974 and the respondent terminated his employment on 6 October 1986. At all material times he was employed by the respondent on duties that were subject to the provisions
of both the Bank Officials' Award and the Long Service Leave
Mr. Nuttall was employed under and pursuant to a service agreement, annexed to the statement of agreed facts,
Bank in any situation which ... any Authorised Officer of the Bank shall order
established ... a branch or agency ... from time to time and the officer' shall diligently perform all duties and tasks which may devolve upon him or which any Authorised Officer may entrust to him or request him to perform.
the Managing Director or the General Manager for the guidance of the Officers of the Bank and shall in like manner obey all such further orders, rules and regulations as may from time to time be made by the said Board of Directors the Managing Director or the General Manager.
(c) The dismissal of the officer for misconduct dishonesty wilful insubordination or the wilful breach by the officer of any of the conditions of this Agreement. Such
dismissal may be with or without any period of notice as the Bank sees
fit." 6. The respondent was incorporated in the State of New South Wales by Act of Parliament. At all times material to
these proceedings it was registered in the State of
letter, dated 6 October 1986, which read as follows:-
"Dear Mr. Nuttall, The Bank hereby gives you notice of the
termination of your employment effective Close of business Monday, 6 October, 1986.
{Signature ] A. J. Colgan : State Manager, Southern"
You are no doubt aware that the A.B.E.U. has been claiming consistently in its Publications that you were unaware of the reasons for your dismissal. .
The Bank is of the view that you were well aware of the reasons for your dismissal,
State Manager, Southern" 9. At no time after the termination of his employment on 6 October, 1986 did Mr. Nuttall attempt to take up the matter
Conciliation and Arbitration Commission on those days.
respondent, on the morning of 26 September 1986 suspended Mr.
Nuttall from the performance of his normal duties and gave
The officer encouraged/directed other staff to lie.
The officer made enquiries of a customer's account and transactions without authority and outside the normal course of his duties.
The officer directed other staff to make unauthorised enquiries for him for his own personal reasons and, by withholding information from them, denied them the opportunity to make a judgment as to whether or not they should supply to him the information they obtained.
The officer initially failed to supply information pertinent to the enquiry being conducted by his employers which he was unvolved in and was fully aware of.
The officer, by his actions, has placed at risk considerable business of the Bank.
The officer, by his actions, has placed the integrity of the Bank in question.
The officer, by his actions, has caused the Bank to incur considerable expense in the conduct of the enquiries."
As to the document headed "Misconduct", Mr. Nuttall's
solicitors wrote, on 26 September 1986, a letter to the
We refer to previous correspondence herein and note that on the morning of the 26th September, 1986 Mr. Allyn Colgan advised our client that he was suspended and handed him a sheet of paper headed "Misconduct" which was unsigned and set out on blank sheet of paper rather than any official bank stationery. A copy of the aforementioned document is enclosed.
We have asked our client to prepare a detailed reply to the charges such as they are drafted but in the interim we will deal with each one seriatim and make our
AS a general comment, each of the charges suffers grossly from lack of particulars and vagueness and we would suggest that you might wish to consult your legal adviser and obtain his assistance in putting them into a form capable of a proper response so we believe that this will assist all
As with all the charges it fails to particularise how our client was to {sic] supposed to have abused his position or authority. We would appreciate your indicating what facts you rely upon to make such an allegation. ... We would ask you to see your solicitor to have this charge
This charge is totally outrageous and displays a complete lack of familiarity with the evidence at least as 1t has been provided to our client. ...
Please provide particulars of what authority our client was required to have to make the enquiries which he admits to making. We would like you to specifically point to instructions given to banking staff in this regard and give us references in either your Personnel or Methods Manuals to such requirements. Your solicitor may be able to assist you with this.
Again, we cannot provide an answer until this charge is properly particularised. In particular, we would like to know how the charge is framed as amounts to misconduct. Further, we would like the same particulars as requested in respect of charge 3 setting out the source of the banks requirements in this regard. ...
information "pertinent to the enquiry being conducted" which was not supplied. ...
Kindly provide full and proper particulars of this most remarkable allegation. We must say that we fail to see how on this totally inter-staff and intra-Bank matter the Bank's business could be put at risk. The allegation as it stands fails to provide any nexus between the risk and our client's actions.
Again, we would like you to particularise how our client has placed the integrity of the Bank in question. Could you also advise what is meant by the expression "integrity of the Bank".
Unfortunately, we are once again mystified by this allegation. Kindly particularise how our client has caused the Bank to incur expense and particularise the action or
actions relied upon. It is to be noted that the investigation was started as a result of a customer complaint concerning a breach of confidentiality. Our client did not breach his declaration of confidentiality and it was not his actions which precipitated the enquiry. It would be ludicrous to suggest, 1f that suggestion is being made, that by seeking to protect his interests he has somehow committed an
act of misconduct. Surely your attitude could not be so draconian as to suggest this.
which you seek to rely in relation to the .- suspension of our client. If there are any further grounds in relation to the suspension or any proposed dismissal kindly provide them immediately and in a proper particularlised form.
The respondent neither replied to nor acknowledged receipt of that letter at any time before 1ts letter of 6 October 1986, set out 1n paragraph 7. above, informing him of "the termination of [his] employment effective close of business, Monday 6th October 1986". On 9 October, 1986 solicitors acting for the respondent replied to Mr. Nuttall's
We refer to your letter of 26th September, 1986 addressed to the Chief Manager of Westpac Banking Corporation and received by the Bank on 29th September 1986. We reply to that letter on the Bank's behalf.
It was not appropriate to reply to your letter under reference until a decision had
been made by the Bank's Board, however your letter was included in the papers that were sent to the Bank's administration so the points you made were taken into account. That decision has been made and conveyed to Mr Nuttall. His employment with the Bank has been terminated effective close of business, Monday 6th October 1986.
With respect to the reasons for dismissal we do not think it is appropriate that we should go into any great detail at this time because as you know the matter is before the Industrial Commission tomorrow. Mr. Nuttall of course is quite aware of all the issues and has completed statements to the Bank in this regard. _
The Union was represented by Mr. Hinkley, of counsel, and the respondent by Mr. Hampson, of Queen's counsel, with
Mr. Les Kaufman and Mr. P. Keane, of counsel. The respondent accepted that, as Mr. Nuttall had been dismissed for misconduct, it bore the onus of préving, on the balance of
probabilities, his misconduct (see North v Television
Corporation Ltd. (1976) I1 ALR 599). As these proceedings
are not criminal in nature (Gapes v Commercial Bank of
Australia Ltd. (1979) 27 ALR 87), the applicant Union must satisfy the court on all other issues on the civil onus of proof, but taking into account the "Seriousness of [any] allegation made" and "the gravity of the consequences flowing from a particular finding", as explained by Dixon J. in
Mr. Hampson said in his final address that 1t was very important to consider the question of credibility and it is
I accept Mr. Nuttall as a witness of truth. He was subjected to a cross-examination that was conducted skilfully, vigorously and in rapid-fire fashion by Mr. Hampson Q.C. Having studied Mr. Nuttall's demeanour at the time and having carefully checked my recollection of his evidence against the transcript, Mr. Nuttall undoubtedly survived that lengthy cross-examination without loss of credibility. Some of his answers were not correct but I am satisfied that they were answers which he would not have given if he had taken time to reflect on the precise meaning of what was being put to him in cross - examination. Despite those answers I have no hesitation in accepting him as a truthful witness, who did not seek to mislead the court in his evidence. He volunteered, during cross-examination, that "in hindsight what I did was very foolish and was unwise and I regret that". I reject the suggestion, made by Mr. Hampson in cross-examination, that Mr. Nuttall had lied to the court
and had lied to the respondent in his written statement,
(a) he made enquiries of two other officers of the respondent, Mr. Holley and Mrs. Fitzgerald, as to whether a payment of approximately $400,000 had been received for any
of the accounts connected with the (then) Premier of
(c) he did not reveal to any person outside the Bank any
(d) at all material times he believed that inquiries by a bank officer to satisfy his curiosity, including the enquiries made by him, were not a breach of confidentiality. He gave evidence, which was not challenged in
cross-examination, that when he commenced work as a bank
officer he signed the service agreement and was told by the Branch Accountant "you must remember ... you're not to talk
about customers' accounts outside the bank at all with
(e) as Branch accountant he instructed new bank staff 3 or 4 times during one year and he emphasised to them that there
was an obligation to refrain from "divulging customers'
(£) it was common practice at a number of branches, including Brisbane and two other named cities, for inquiries about customers' accounts to be made by officers of the
respondent which were not made in the course of their duties;
(g) at all material times he believed that the respondent's confidentiality rule in the Declaration of Secrecy and Methods Manual was that its officers were not_to _ reveal any information relating toa customers' business to
(h) at all material times he believed that its officers could talk to other officers of the bank about such matters but not in an hotel nor out in the street where their
(2) he would not have jeopardised his career within the
bank and if he had known it was wrong he would not have done
As to the latter, it may be noted that Reports, entitled "Personnel appraisal" and "Performance appraisal" in various years, were tendered 1n evidence. They included one, in July
1986, which suggested that Mr. Nuttall had good prospects of
Mr. Holley was called as a witness by the respondent. He gave evidence in a manner that did not give confidence that his evidence could be accepted as being correct. On two specific matters I reject his evidence and accept that of Mr. Nuttall. The first is Mr. Holley's statement that Mr. Nuttall, when he made the telephone inquiry of Mr. Holley as to the deposit of $400,000, said that he wanted to trace a solicitor's cheque and that that was the reason for his inquiry into the account. The second 18S Mr. Holley's statement that Mr. Nuttall said to him "I want a copy of the [bank] statement". It may be added that Mr. Holley agreed, in cross-examination, that Mr. Nuttall had not suggested to
him that he should tell lies if the bank manager asked
Another witness called by the respondent was Mrs. Fitzgerald, who had been the other bank officer concerned in September 1986. She agreed, in cross-examination, that she did not believe that Mr. Nuttall had asked her to tell lies or to refuse to answer questions. Mrs. Fitzgerald was obviously a very nervous witness and I accept her evidence that at an interview with the respondent's investigators she
Both Mr. Holley and Mrs. Pitzgerald made untruthful
statements to the respondent's investigators; I accept Mr.
Nuttall's evidence in cross-examination, denying that he asked either Mr. Holley or Mrs. Fitzgerald to tell nobody in
the bank (including the respondent's investigators) about his
The evidence of Mr. Nuttall, a truthful witness who did not seek to mislead the court, contrasted sharply with that of Mr. Fowler, the Managing Director of the respondent and 1ts principal witness. At the time of the dismissal Mr. Powler was its Chief General Manager, Retail Finance Services and had "administrative" responsibility for Queensland and "overall executive responsibility" as to personnel, including the authority to make the decision to dismiss Mr. Nuttall; he was responsible for "the day to day operations of the
Having considered his demeanour in the witness - box and having carefully checked my recollection of his evidence against the transcript, I have reluctantly come to the firm conclusion that Mr. Fowler gave a number of untruthful answers, which were intended to mislead the court; I say
reluctantly because it is a conclusion rarely expressed by me
as to any witness. Further, in a significant number of
instances, he did not give frank answers to the questions
Specifically, I reject as untrue each of his statements in evidence, that, in deciding to summarily dismiss Mr. Nuttall, (a) he disregarded the fact that the "aggrieved" customer was the Premier; (b) he did not "take into account any expression of opinion attributed to the Premier about his concern about the leak ... in any way whatsoever"; (c) he disregarded the observation, made to him in the Investigation Report (dated 26 September 1986. ~ referred to later in these reasons) that "the loss of his {the Premier's] accounts would have substantial impact on Kingaroy branch ..." and (d) he did "not think" that he was influenced by the further statement in that Report that "[t]he consequences could flow further for the Premier 15s
As to his evidence on the question whether bank officers discussed amongst themselves (except in the course of business) any information relating to customers' accounts, I accept Mr. Nuttall's evidence where there is any inconsistency. I reject as untrue Mr. Fowler's statement that, in 40 years in the bank, he had never "had a conversation with a fellow bank officer in relation to a
customer's affairs other than 1n the course of business".
Answers by Mr. Fowler that were not frank included two answers during cross-examination, in which Mr. Fowler
volunteered that he was speaking "frankly". They were:-
(Mr. Hinkley) "At the time you did dismiss him, you were conscious that there had been this expose in the press prior to the night of the 18th when the Leader of the Opposition spoke, that there had been this expose about the $400,000 Mr Bond and Mr Bjelke-Petersen? ---To the best of my recollection I was not particularly interested in it frankly, but if it was there, I presumably knew about it."
(Mr. Fowler then read, at Mr. Hinkley's request, a passage from the Investigation Report which referred to the media
reporting the Opposition Leader's claim that the Premier had
been paid $400,000 and said that the "defamation settlement _
(Mr. Hinkley) "Does that refresh your Memory as to whether or not at the time you decided to dismiss Mr Nuttall you were aware that prior to the statement by the Leader of the Opposition on the 18th there had been wide media coverage of this connection between the Premier, Mr Bond and
$400,000. Does that refresh your memory about that?---wWell, the fact that there has been wide media coverage was a matter of fact presumably. If I was aware of it, then so be it, but I was not particularly interested frankly. '
really." I am satisfied that Mr. Fowler, in using and repeating the word "frankly" (to which emphasis has been added in the quotation), was seeking to mislead the court. It may be noted that, during the cross - -examination after the luncheon
adjournment, Mr. Fowler volunteered "I did not disregard the
In considering Mr. Fowler's evidence I have made allowance for the fact that at times 1t seemed that his quite unsatisfactory answers might be partly due to a difficulty that he had with the meaning of words; for example his evidence that it "1s a lie" for a bank officer to refuse to give information during an inquiry conducted by the respondent. It may be that his curious understanding of the meaning of the word "lie" led Mr. Fowler to state, in evidence which I reject as being wrong and completely without foundation, that Mr. Nuttall had lied, that he had admitted that he had lied and that he had encouraged Mr. Holley and Mrs. Fitzgerald to lie. Mr. Fowler's evidence on that aspect
"His Honour: Mr. Fowler, on that last Matter, to the best of your recollection 1s there any basis for saying that you considered that Mr Nuttall ... had told lies ... other than the statement that he said "no comment" when asked some questions in the interview. ... you are saying, as I understand 1t, not only that he told a lie, but he admitted he told lies. I want to find out what you base that on?--~I will have to - you asked what my impression was, that was the impression that I had. If I can refer to it 1n the documents, I would do so, but that is the impression that I had. He certainly encouraged other people to lie.
Could I just get it - you had the impression that he had lied himself?---Yes.
And that he had encouraged the other two to lie---Correct - to be untruthful."
Although some of Mr. Fowler's evidence may be explained on the basis of his apparent difficulty with the meaning of words, there are other statements, including those cited earlier, which cannot be so explained and which I have concluded were untruthful statements. As to the evidence just quoted, it should be said at once that I am quite satisfied on the evidence that Mr. Nuttall had not lied to the investigating officers and had not encouraged the other two officers to be untruthful. On the evidence it was quite wrong for Mr. Fowler to state that Mr. Nuttall had "admitted he told lies"; there was no foundation whatever for that
Mr. Fowler's evidence as to his reasons for the dismissal was not convincing. Instead of referring to a number of passages from his evidence, with the need to put each passage in context, the following, regrettably lengthy, passage is cited as one illustration of Mr. Fowler's evidence; it relates to, the reasons given by him for his decision to dismiss Mr. Nuttall. Mr. Fowler was asked in cross-examination whether the reasons given by the respondent
"La. were the reasons why Westpac terminated Mr. Nuttall's employment? ---They were some of the reasons.
I see. I see. So there were some other reasons, were there, why Mr Nuttall's
employment was terminated?-~-They were the Main reasons, your Honour.
--. My question is, Mr Fowler: were there other reasons why Mr Nuttall's employment was terminated?---I think, your Honour the actions leading up to our decision to dismiss Mr Nuttall ~ - -
Your Honour, I do ask the witness to answer that question yes or no.
HIS HONOUR: I understand that. Mr Fowler, counsel is asking you: were there other reasons than those which I have just read from the document labelled N? That question ought to be able to be answered either yes or no. You may wish to then qualify iat in some way, if you wish to. You may say so?---Yes, your Honour. I think that there were other reasons and I would like to refer to the document.
MR. HINKLEY: Your Honour, I do not ask the witness what those reasons are? ---Additional reasons.
HIS HONOUR: I think I will ask it, Mr Hinkley. I am sorry to interfere in that way, but I do take the view that although qualifications can be given later on, sometimes it 1s forgotten; sometimes it appears in a different context, so I prefer to have the qualification now.
What were those other reasons? If you wish to state them, you may do so now?---Thank you. May I refer to the document in front of me? [the Investigation Report - referred to later]
Counsel for the applicant is not asking you this question, but I am permitting you, as I believe is fair, as I would do with any witness, to qualify your answer or to explain your answer by doing what you said you wanted to do, that is, that you would like to refer to them. Now, in doing that, I think you should do that without reference to documents, at least initially. If, having done so, you say that you really
need to look at something to make sure you have not misled the court, then I would certainly consider letting you refer to a document then. But I think you should first do 1t without reference to documents. What are the other reasons?---Well, this is very difficult to recall at this stage, because the document is before the court, and I would have thought it would have been reasonably justifiable to refer to it, your Honour, because it was on those bases that I made the decision.
MR. HINKLEY: Your Honour, the witness has said that there were other reasons, so there must be present in his mind some recollection. That should be exhausted
HIS HONOUR: Have you any = present recollection of what those other reasons were?--~Mr Nuttall encouraged people to lie. He used his position in the bank to perhaps influence junior officers. He made enquiries, which we believed were unauthorised, on the customers' affairs. He placed ~ by his actions, he encouraged people to withhold information from a legitimate inquiry that had been put in place to establish the facts. I think that is the basis of the background information. I would then like, your Honour, to refer to my notes.
HIS HONOUR: You may do so?--~ Thank you. Well, from the document on page 13, reporting officers, on which I accepted their view that, Mr Nuttall abused his position in authority in relation to less senior staff. He encouraged and directed other staff to lie. He made enquiries of customers' accounts and transactions without authority and outside the normal course of his duties. He directed other staff to make those unauthorised enquiries for him for his own personal reasons, and by withholding information from then, denied them the opportunity to make a judgment as to whether or not they should supply the information. He initially failed to supply information pertinent to the ainguiry being conducted by his employers, which he was involved in and was
fully aware of. By his actions, he has placed at risk considerable business of the bank, by his actions placed the integrity of the bank in question, and by his actions, his employer had incurred considerable expense in the conduct of the inquiry.
HIS HONOUR: I am not sure what you are saying about what you have just read. I do not want to lead you into saying one thing or the other. I want to know what the truth is?---I am saying, your Honour, that when I made a decision to dismiss Mr Nuttall, those factors were taken by me unto consideration.
When you say they were taken into consideration, do you mean that you accepted the statements set out there in
the passages you have just read as being correct for the purpose of making your decision?-~~-Yes."
It will be noted that in that evidence Mr. Fowler referred to "some of the reasons", "the main reasons", "additional reasons", "other reasons", "background information" and "factors taken by me into consideration". In final address the respondent's counsel contended that the reasons for the dismissal were those given in the letter of 30 October and referred, to some "overlap" between those
reasons and the matters (1) - (8) in the document headed
Mr. Fowler's decision to dismiss Mr. Nuttall was made
after the matter was discussed by the respondent's Board,
which then instructed him to decide the matter as "management". Mr. Fowler said that, before giving that instruction, the Board reached the conclusion that "there was no evidence in relation to the leaking of information from the bank to the ... Leader of the Opposition". Although, on the evidence, Mr. Fowler alone decided to summarily dismiss Mr. Nuttall, he did so after studying a Report ("the Investigation Report"), dated (Thursday) 26 September 1986, on an investigation conducted "following complaints of wour - customers of Kingaroy branch: Sir Joh Byelke-Petersen,
Premier fand] Mr. John Cummins, son-in~law of Premier and
The Investigation Report was tendered by the respondent and not objected to by the applicant's counsel. It was signed by Mr. R. J. Shardlow, State Manager, Northern, by Mr. A. J. Colgan, State Manager, Southern and by Mr. W. A. Simmons, Chief Investigation Manager - none of whom was called as a witness. It consisted of a 14 page memorandum on the unvestigation, together with 15 appendices; one appendix consisted of 9 pages of 'Diary Memoranda relating to discussions and oral reports which had taken place between Friday, 19 September, 1986 and Thursday, 25 September, 1986. In their Report Messrs. Shardlow, Colgan and Simmons stated (p. 13) that they were "satisfied that the actions of ... (Mr. Nuttall amounted] to serious and wilful misconduct" and
that they considered that Mr. Nuttall had engaged in eight
actions, which were in substance the same as the 8 actions alleged in the document headed "Misconduct" ~ the document handed to Mr. Nuttall on 26 September 1986 (when he was suspended from duty), the terms of which have been set out
In cross-examination Mr. Fowler accepted that he studied the Investigation Report and its appendices with great interest, "read them from top to bottom" and "read the
report a number of times" before deciding that he "supported
In final address Mr. Hinkley referred to passages in the diary memoranda, which accompanied the Investigation Report, as showing "great pressure from persons in high political office" and "conversations ... with those persons that take place in an acutely political environment". Mr. Fowler had, in cross~examination volunteered that "(i]t was a highly publicised matter. It was a highly political matter". It is convenient to set qut certain extracts from the diary memoranda, before quoting from the transcript of cross-examination of Mr. Fowler on those matters; that part of the cross - -examination was directed to the question whether Mr. Fowler's decision to dismiss Mr. Nuttall was influenced by the fact that the complaint (that the respondent had "leaked information to the Leader of the Opposition") had
been made by the Honourable Sir Johannes Bjelke-Petersen
("Sir Joh"), who held at that time the commissions of Premier
The record of the respondent's discussions with Sir Joh
The extracts are from the diary memoranda which constitute appendix "O" to the Report; the Report itself also
"Diary Memorandum 22 September, 1986 State Manager, Northern : R.J. Shardlow
Ciasom Pty. Ltd. - Kingaroy Investigation - Leakage of information
Attended at Premier's (Sir Joh Bjelke -Petersen) Office in company with State Manager, Allyn Colgan and Chief Investigations Manager, Warren A. Simmons, to explain the Bank's position regarding suggestion of leakage of information re the transaction of $400,000 through the above account at Kingaroy.
Told him that an internal investigation was being undertaken by Mr. Simmons in conjunction with ourselves and the following information and action had been taken to date - .
.- We (Shardlow, Colgan and Simmons) would be travelling to Mooloolaba this evening following the interview with the Premier to interview Nuttall and seek to establish whether or not information sought by Nuttall had been "leaked" by him to anyone outside the Bank.
. Nuttall was a Vice President of the Queensland Branch of the Australian Bank
The Premier initially expressed concern that Westpac did not value his business and
Gave every assurance that we valued the family business very highly but on the face of it, we were the vactim of misconduct by one or more employees and would be seeking to redress this situation by every means possible. .
The Premier saw that the amplication of Nuttall (a Union official) had a direct relationship to the A.L.P. and the Leader of the Opposition.
He wanted assurance that the Bank would proceed with the very fullest of an investigation and that criminal proceedings would be pursued if justified.
Gave him that assurance and that we would keep him fully informed of the investigation on a progressive basis.
Asked that he be phoned at 6.00 a.m. tomorrow as to outcome of interview with
"At this point of time, we have nothing to charge Nuttall with but will pursue the matter in full.
The Premier 'phoned to enquire whether any further progress had been achieved.
He again stated he wanted us to pursue to Criminal prosecution 1f there was a case. Assured him we would be pursuing matters to the fullest.
He has spoken to the Police Commissioner (Sir Terence Lewis) that we would be contacting him.
Approximately 5.30 p.m., received 'phone call from the Premier at Cairns as to Progress with Bank's investigation.
Unfortunately, we had been unable to firmly establish that the information was leaked from the Bank but were taking every possible step to unearth the truth.
Approximately 4.45 p.m., Premier (Sir Joh Bjelke-Petersen) telephoned from Biloela to ascertain progress with the investigation.
Mr. Nuttall advised he did not know Mr. Warburton and there was an implication that he had little association with the A.L.P.
5.30 p.m. - telephone discussion with the Premier at Toowoomba on progress with our investigation. Told him we had made little progress with any link to the A.L.P. and leakage of information. ...
Told him in confidence we proposed to suspend Nuttall tomorrow on the grounds of misconduct for a number of reasons (specified to Premier) ....
He was disappointed but questioned that there must be some aspect which could give Bank reason to seek a prosecution. Told him we would have Bank's solicitors have a good look at all the aspects of the investigation and evidence/statements collected and give further opinion.
I am to 'phone him at his son John's property tomorrow afternoon late (Telephone 079 380113)."
(a) The respondent's 3 officers attended at Sir Joh's office on 19 September 1986 "to explain the Bank's position
regarding suggested leakage of information re the transaction
(b) They informed Sir Joh of actions by Mr. Holley and Mr.
Nuttall - and did so before they had spoken to Mr. Nuttall
vice-president of the Queensland Branch of the Union.
(d) They said that the respondent "would pursue fully_the_
matter of employee dismissal for misconduct" and consider
respondent] valued the family business very highly".
(£) They also gave Sir Joh the "assurance" he "wanted", namely, "that criminal proceedings would be pursued if
(g) Between 19 and ,25 September 1986 Sir Joh had telephoned the respondent from Cairns and Biloela and had
another telephone conversation with its officers while he was
(h) On 22 September 1986 Sir Joh "again stated that he wanted us to pursue to criminal prosecution if there was a case" and said that he had told "the Police Commissioner (Sir
Terence Lewis) that we [the Bank] would be contacting him".
{i) The respondent's officers told Mr. Cummins (Sir Joh's son-in-law) that "[uJnfortunately we had been unable to firmly establish that the information was leaked from the
Bank ..." (the use of the word "unfortunately" may be noted).
{(j) Sir Joh found it "difficult to accept" that Mr. Nuttall "did not know Mr. Warburton and [the] implication
that he had little association with the A.L.P." .- -
(k) The respondent's officers told Sir Joh "we had made little progress with any link to the A.L.P." and told him "in confidence we proposed to suspend Nuttall tomorrow on the grounds of misconduct for a number of reasons (specified to the Premier) .... He was disappointed but [suggested] there
must be some aspect which could give Bank reason to seek a
prosecution". The officers then told him "we would have Bank's solicitors have a good look at all the aspects ... and
On the diary memoranda in the appendix there can be no doubt, in my opinion, that the respondent was under heavy pressure from Sir Joh, throughout the week preceding the suspension of Mr. Nuttall on 26 September, to take strong action against Mr. Nuttall, including a criminal prosecution 1f possible. In his final address on behalf of Westpac, Mr.
",.. he, quite wrongly, as it turned out, was quite convinced that the employee who had obtained the ledger sheet, a copy of the ledger sheet, was the one who had leaked the material to the Leader of the Opposition. He had no doubt about it. He was counselling criminal prosecutions and obviously kept himself very closely informed."
"HIS HONOUR: eee Am I right in understanding from what you have just said -.. that there is no longer any suggestion that Mr Nuttall was the leak?
MR HAMPSON: There has been no suggestion of that, with respect, from the time that Mr Fowler investigated the report, ... he then put that right out of*his mind as an influencing factor, any suspicion or allegation that Mr Nuttall was the leak.
HIS HONOUR: ... it 1s one thing to put out of your mind in deciding whether to dismiss someone, the possibility that he is the leak. You may simply say, Well, it [sic] quite possibly is, but as it is not proved, I am not going to take that into account.
Mr Fowler has given evidence that 1s not always consistent on this question. I am asking you, as counsel for the bank: .... And you do understand that I am not talking about something being not proven? I am talking about accepted that he was not the leak.
HIS HONOUR: Not just accepted that it has not been proved that he was the leak.
MR HAMPSON: Yes. HIS HONOUR: It is a distinction that I thank is important. It is a distinction which Mr Fowler had some difficulty with in his evidence." I have set out that passage in some detail. I do not accept that Mr. Fowler (in Mr. Hampson's words) "put right
out of his mind as an influencing factor" any suspicion or
Although it is clear that the respondent, through its counsel in these proceedings, accepted that Mr. Nuttall "was not the leak", I do not believe Mr. Fowler's evidence that he accepted that fact at the time of the dismissal. In his evidence he specifically referred, on a significant number of occasions, to the absence of any evidence that Mr. Nuttall was the leak, and to the respondent's inability to establish, or to prove the Link.
Many examples could be given. He said "[{t]Jhe Board was told that, as far as we could establish, there had not been any evidence to link a leakage"; that "we could find no evidence [of Mr. Nuttall being the leak]"; that "we could not
link the alleged leakage between the bank and Mr. Warburton
to Mr. Nuttall"; that "we could not prove it [any political motivation]"; and that "no such leak [through Mr. Nuttall] existed, that we could find". Asked by Mr. Hinkley what his view was, at the time he decided to dismiss Mr. Nuttall, as to whether Mr. Nuttall might be the source of the leak he answered: "I came to the conclusion that it was not proven". Later he said that the leak "was not proven ... and he was dismissed for other reasons" and "Mr. Nuttall was not
dismissed for leaking information because that could not. be
proved"; on several other occasions he used the words "not proven". He was asked as to a passage in the Investigation Report which stated that "on ... the evidence now before us
we have inevitably come to the firm conclusion that [the] anformation ... was leaked ultimately to the Leader of the Opposition, ... as a result of the actions of Mr. Nuttall
The passages from the diary memoranda in _ the Investigation Report are the setting in which to consider the evidence of Mr. Fowler under cross~examination as to the influence of Sir Joh on the dismissal. The passages quoted are again lengthy, as a result of giving the context in which
(Mr. Fowler) "It was a very serious problem on 18 September, when = great exposure was given to information which had purportedly come from the bank, or one of its subsidiaries.
MR. HINKLEY: And it was a very serious problem then, because 1t looked as though
Westpac, through one of its employees, had leaked information about the Premier's bank
And part of the problem was that the person whose information it appeared had been leaked from Westpac was the Premier and Treasurer of the State of Queensland?--- Correct.
And the fact that that person was an important and significant public figure exacerbated the seriousness of that problem for Westpac?---I would think that 1s a fair
I am asking you whether or not, in thinking Mr. Nuttall may have released the unformation, you thought whether or not he may have done it for a_= political motive?---I suppose I must have done, yes.
Presumably you felt he may have released it to give some advantage to the opposition campaign in the current election in
Queensland?---I am not au fait with Queensland politics. I was in Perth at the time.
cannot recall what I was thinking on 19 September in relation to this. Presumably
a reasonable man may well have thought that was been [sic] happening.
When you made the decision to dismiss Mr Nuttall did you, take into account any expression of opinion attributed to the Premier about his concern about the leak?---No.
Did not take that into account in any way whatsoever?~--No, mot after I saw the report." Mr. Hinkley returned to the matter of the influence of Sir Joh after the luncheon adjournment - which gave him his
first opportunity to study the Investigation Report and the
"Of course, exhibit 4 [the Investigation Report] does contain the report of a number of conversations held with the Premier by various officers?---Correct.
And you are aware of the sorts of things that the Premier was reported to have sald?-~-Yes.
In those conversations, and you would agree, would you not, that the Premier was concerned at Mr Nuttall's political affiliations with the ALP?---It 1s referred there, yes.
And that he took the view from those conversations as reported to you that that explained how it was that the leak came about because Mr Nuttall had done it for political purposes?---I am only referring to documents that have been put before me. I did not partake in any of the conversations but 1t 1s correct that it was there.
That is the view expressed in_ the documents?---Yes.
And that the Premier was eager for more than even disciplinary action to be taken against Mr Nuttall?---Well, I do not know about what disciplinary action. We had not discovered anything had gone wrong at that stage, I do not think, other than he had made some enquiries.
You know that the report, the documents indicate that the Premier was told in confidence before it was done that Mr Nuttall was going to be suspended the next day. You knew that?~--I cannot recall.
What about the suggestion?---You should remember, if I may say so that the Premier was the aggrieved party. It was on his request that we undertook an investigation and if any other customer had asked us we probably would have kept him informed too.
And he was making a complaint over and over again about Mr Nuttall's conduct, was he not?---Alleged conduct.
MR. HINKLEY: And do you recall in those documents the Premier indicating that he thought more than just disciplinary action should be taken against Mr Nuttall?---I cannot recall specifically but I think it was reasonable to assume that our customer was particularly aggrieved and wanted to make sure that we carried out an appropriate enquiry which we did.
I am asking about whether or not you recall reports of conversations in which the Premier had indicated that that was the appropriate course to take?---If it was in the papers I suppose I recall it, yes.
And that the Premier had said, amongst other things, that he had spoken to the Chief Commissioner of Police at the time about the matter and told the bank officials that that is what he had done. Recall that at all?---I cannot recall specifically. I was not party to the discussions.
Anyway, whatever is in thoge documents you read and you would accept form part of the material that made an impression on your mind about what you had [sic] should do?---He [sic] read it.
It made an .1mpression on your mind all of the materlal?---I have the ability to disregard certain things when I am reading reports. Your Honour.
What was it you disregarded?---I disregarded the fact that in relation to the leaking or alleged leaking of information it could not be established
Did you disregard the fact that the Premier was the person who was making this
complaint against Mr Nuttall?--~It was the basis of our enquiry.
Did you disregard the fact - I see that was the basis of the enquiry?---A customer was aggrieved and it happened to be the Premier.
Did you disregard the fact that it was the Premier, not just happened to be but was the Premier?---Yes, I did disregard it for that matter. I did not disregard the wide publicity that the matter had received."
(Mr. Fowler then read from the Investigation Report, at Mr. Hinkley's request, the following passage: "In the casé of" the Premier, the loss of his accounts would have substantial impact on Kingaroy branch in their own right. The consequences could flow further for the Premier is also
Treasurer of Queensland.") The cross-examination continued:
"You disregarded the observations made there, did you?---Yes.
Did not affect you that the report to you indicated that the possible loss of the Premier's account would have an impact on the Kingaroy branch? Did not affect you?---No.
Did you disregard what is said in the second sentence of the second paragraph on page 14 that the consequences of the affairs could flow further for the Premier 1s also Treasurer of Queensland. Did you disregard that?~--I could not disregard it because I read it, but I disregarded the implication in the sense that I was - that you are perhaps wishing to say that I was unfluenced by these things, no.
Did not influence you that the report indicated that the Premier being Treasurer could have consequences for the bank in this circumstance?---No, I do not think
As stated earlier, I have rejected as untruthful certain statements, including Mr. Fowler's evidence that, when he decided to dismiss Mr. Nuttall, he did not "take into account any expression of opinion attributed to the Premier about his concern about the leak"; also, his evidence that he disregarded the possible loss of Sir Joh's accounts and possible further consequences, by reason of the Premier being also the Treasurer. On all the evidence, including his_own answers and his lack of frankness, I find that Mr. Fowler's decision to dismiss Mr. Nuttall was significantly influenced by a desire to appease Sir Joh, who, to Mr. Fowler's knowledge, had been suggesting that "there must be some
aspect which could give the Bank reason to seek a [criminal]
I reject as untruthful Mr. Fowler's evidence that he dismissed Mr. Nuttall summarily partly because of his "unauthorised enquiries"; it may be noted that, in his evidence 1n chief, asked as to an enquiry by a bank employee for "the gratification of a curious instinct to know the affairs of somebody else" Mr. Fowler only said that "that would be frowned upon". In any event, if he had been dismissed for that reason, that reason would not have
justified summary dismissal. That conduct was not in breach
of any contractual obligation on Mr. Nuttail, on the evidence and my construction of the documents relating to the contract. The requirement 1n the service agreement was that an officer shall not "reveal or make known" information as to customers accounts or transactions; the agreement did not forbid the making of enquiries, out of curiosity, by a bank officer. Neither that conduct, nor any of the other matters relied upon by the respondent, constituted a failure to serve his employer honestly. If, contrary to my opinion, any of Mr. Nuttall's conduct was a breach of his contractual obligation, then in my opinion it was plainly conduct which fell short of misconduct justifying summary dismissal (see
It 21s possible that Mr. Fowler believed that Mr. Nuttall had encouraged Mrs. Fitzgerald and Mr. Holley to withhold information from the respondent's investigators and dismissed Mr. Nuttall partly for that reason. However, Mr. Fowler's evidence on that matter, considered in the context of his evidence as a whole, was so unsatisfactory that I am not persuaded that the dismissal was partly for that reason. In any event, on all the evidence, I have found that Mr. Nuttall did not encourage either Mrs. Fitzgerald or Mr.
Holley to withhold information from the respondent's
As to the eight matters of alleged "misconduct" (set out earlier) stated by Mr. Fowler to have been "factors"
taken into account by him in dismissing Mr. Nuttall, my
findings on the evidence may be briefly expressed. I reject completely any suggestion that Mr. Nuttall "abused his position and authority in relation to less senior staff" (item 1) or that he "encouraged/directed other staff to lie" (item 2). The matter of Mr. Nuttall making "enquiries of a customer's account" (item 3) has already been dealt with. I find that he did not direct "other staff to make unauthorised enquiries for him for his own personal reasons and, by withholding information from _ them, [deny] them the opportunity to make a judgment as to whether or not they should supply to him the information they obtained" (item 4). I accept his evidence that he only made enquiries; it may be added that there was no evidence that he had any authority to "direct" either of them. Although he "initially failed to supply information pertinent to the enquiry being conducted" (item 5), I accept Mr. Nuttall's evidence as to the circumstances in which that occurred. In my opinion that action was not a breach of any term of his contract and was
not misconduct - - let alone misconduct sufficient to justify
The last three items on the document headed "misconduct" were that Mr. Nuttall "by his actions" had "placed at risk considerable business of the Bank, ... placed the integrity of the Bank in question [and] ... caused the Bank to incur considerable expense in the conduct of the enquiries" (items 6, 7 and 8). Mr. Fowler's evidence shows that it was the resultant publicity surrounding the use of
information by the Leader of the Opposition that was the
cause of (a) any risk to the respondent's business, (b) any questioning of its integrity and (c) the expense involved in the conduct of the inquiries. He gave evidence that a number of customers, who were concerned as a result of the publicity, had enquired as to the confidentiality of their
affairs; there was no evidence of any loss of customer
On the evidence quite plainly none of those three matters resulted from the unauthorized inquiries by Mr.
Nuttall or any other action by him. Any such "result" was from the possibility of a leak of information from the respondent - and the publicity which attended that possible leak. As already pointed out, it has been accepted by the respondent, in 1ts counsel's final address, that Mr. Nuttall "was not the leak". I find that his conduct did not have any of the effects suggested in items 6, 7 and 8 of the alleged
There remain the questions of determining what breaches of awards have been established, whether the court should impose penalties in respect of any or all of those breaches and the amounts of any such penalties. The
respondent's counsel did not address on the question of
The maximum penalty under s. 119 of the Act in respect of one breach is $1,000. It has not been submitted by the respondent that in these proceedings s. 119(1A) of the Act requires the court to treat "two or more breaches ... as constituting a single breach of [a term of an award]". However, in considering the amount of each penalty, in my opinion it is proper to take into account the circumstances as a whole and the interrelation between the breaches under consideration, as well as the total amount of the penalties. There has been no evidence of any prior breaches of any awards by the respondent and that is a matter taken into account in mitigation of penalty. I have also taken into account in mitigation the circumstances surrounding the decision to dismiss Mr. Nuttall, 1ncluding the part played by Sir Joh in the events preceding the dismissal. However, 1t must be understood that the award requirement that a dismissal "shall not be harsh, unjust Or unreasonable" must be obeyed irrespective of any influence directed towards an employer by persons in positions of power.
The application alleges three breaches of clause 38A of the Bank Officials' Award (sub-clauses (a), (d) and (f) - paragraphs 2, 3 and 4 of the application). As to each of those, Mr. Hampson submitted that the sub-clause did not apply to a case of summary dismissal. I reject that general submission, in respect of each of the three alleged breaches,
as a matter of construction of clause 38A as a whole.
As to the alleged breach of clause 38A(a), I find that the termination by the respondent of the employment of Mr. Nuttall was harsh and unjust and unreasonable within the meaning of that sub-clause. I have reached that conclusion on the facts disclosed by the evidence and on the findings
made. In Gregory v Philip Morris Limited (umreported -
delivered 14 April, 1988) Wilcox and Ryan JJ., in dealing
"The application of the paragraph requires consideration of the circumstances of each case, as they exist when the decision is taken to terminate the particular employee."
"The question whether a dismissal is harsh, unjust or unreasonable must be determined un the light of the facts as they appear at the relevant time. We accept that, if the relevant facts are not clear, it is the obligation of an employer bound by a provision such as cl. 6(d)(v1i) to establish
I find that the respondent committed the breach alleged in Paragraph 2 of the application. In all the circumstances, in
my opinion an appropriate penalty for that breach is $600.
Officials' Award 1s that the respondent terminated Mr.
Nuttall's employment without either (i) giving him one month's notice thereof or (ii) giving him payment in lieu of such notice. It 1s clear that the termination was made without giving notice or payment in lieu; the respondent sought to rely upon clause 38A(d)(v), contending that its dismissal of Mr. Nuttall was "for conduct that [justified] instant dismissal". I reject that defence. On the evidence I find that there was no conduct by Mr. Nuttall that justified anstant dismissal. Accordingly, I find that the respondent committed the breach alleged in paragraph 3 of the
application. In my opinion an appropriate penalty for this
It is convenient to deal now with the alleged breach of sub-clause 8(2) of the Long Service Leave Award, namely, that the respondent, when it terminated Mr. Nuttall's employment, failed forthwith to pay to him in full the amount of money to which he was entitled in respect of long service leave under that clause. Again there was no doubt that the respondent had failed to pay to Mr. Nuttall an amount of money in respect of long service leave; the respondent relied upon the provisions of clause 6(2)(b)(1) of the Long Service Leave Award, contending that its termination of Mr. Nuttall's employment had been "for ... serious and wilful misconduct". On the evidence I find that there was no conduct by Mr. Nuttall that constituted "serious and wilful misconduct" and
that the respondent committed the breach alleged in paragraph
5 of the application. Because of the close inter-relationship between this breach and the breach of clause 38A(d), in respect of which a decision has been made to impose a penalty of $500, in my opinion a penalty of $100
An alleged breach of clause 38A(f) of the Bank Officials' Award was that the respondent did "fail to submit to the Australian Conciliation and Arbitration Commission_the . dispute and claim arising out of its termination of its
employment of Gordon Nuttall on the 6th October 1986".
In addition to his general submission as to clause 38A (referred to and reyected earlier), Mr. Hampson submitted that Mr. Nuttall had failed to "take the matter up with his immediate supervisor", as required by sub-clause 38A(£)(1). I reject that submission and uphold Mr. Hinkley's submission that, on the evidence, the dispute was "of such a nature that a direct discussion between the officer ... and his immediate supervisor would {have been] inappropriate" and accordingly
However, I accept Mr. Hampson's submission that, in the circumstances, including the fact of the notification given to the Commission by the Union, the respondent was not
required to "submit" the matter to the Commission. I am not
prepared to accept Mr. Hinkley's submission as to the construction of sub-clause 38A(f£)(iii), and 1n particular the
"Without prejudice to either party, work should continue in accordance with the award while the matters in dispute are being dealt with 1n accordance with this
paragraph." The application alleges that the respondent breached
"... to permit Gordon Nuttall to continue work in accordance with the above Award while the dispute concerning its termination of its employment of Gordon Nuttall off 6th October 1986 was being dealt with by the Australian Conciliation and Arbitration Commission".
Mr. Hinkley's carefully prepared and presented argument has not convinced me that the sub-clause, on its true construction, required the respondent to permit Mr. Nuttall, whom it had dismissed for what it contended was misconduct, to continue work whilst the dispute was being dealt with by the Commission. The clause does not expressly state that an employer is required to do so. If the Commission had intended to require an emloyer to do so, in my
Mr. Hinkley referred me to the two decisions of a Full
Bench of the Commission in the Termination, Change & Redundancy Case (1984) 8 IR 34 and (1984) 9 IR 115.
Assuming, without deciding, that those decisions may be examined as an aid to construction of the clause, in my opinion the earlier decision does not support the present applicant. Further, the supplementary decision, in my opinion, tends against the applicant's argument. It referred to the employers' submission that the draft sub-clause should have inserted in it, after the words "work should continue", the words "as required by the employer". In deciding not to
"Furthermore, we are unable to distinguish any significant difference between the expression "work should continue in accordance with the award" and_ the expression used by the employers, and we are not prepared to provide that where direct action of employees, other than the employee dismissed, occurs the claim should lapse."
Accordingly I find that the respondent did not commit the
alleged breach of clause 38A(f) and that part of the
There remains the allegation (paragraph 1 of the application) that the respondent breached clause 30 of the Bank Officials' Award in that "1t did affect and injure
Gordon Nuttall in his employment and service with the
respondent by reason of a charge and complaint made against
Mr. Hampson submitted, on behalf of the respondent that clause 30 is not at all appropriate to a case of summary dismissal. Mr. Hinkley relied upon the fact that the matters cited in the application (the complaint and the respondent's omissions, including its failure to give Mr. Nuttall "an opportunity to meet 1t") occurred before the dismissal. He submitted that 1t would leave the clause open to abuse if an employer, having breached sub-clause 30(a) by injuring an employee in his employment, could defeat a potential application for a penalty for that breach by dismissing the employee. The matter is not free from doubt and it may be that the parties should seek a clarification of the meaning of clause 30, by a variation of its terms by the Commission.
"This clause shall have no application when an officer's service is terminated in terms of clause 38 - - Termination, Change and Redundancy." Having regard to its terms, and to any finding that the respondent has breached clauses 38A(a) and 38A(d), I have
concluded that a breach of sub-clause 30(a) has not been
Having given consideration to the total amount of the penalties ($1,200) 1n respect of the breaches of the awards, in my opinion they are appropriate penalties in all the circumstances; 1n saying "appropriate" I mean in the light of the maximum penalty that may be imposed for a breach of an award. However, I agree, with respect, with Wilcox and Ryan
JJ. in Gregory's case (supra, at p. 31) that that maximum of
"only $1000 ... is so low as to have little deterrent
Under s. 120 of the Act it is ordered that each of those penalties be paid by the respondent to the Australian Bank Employees Union. The observations by Wilcox and Ryan JJ. in Gregory's case (supra, at p. 31) as to the desirability of avoiding duplication do not apply in this
case where the Union, not Mr. Nuttall, is the applicant.
The court does not have before it the information necessary to enable the making of an order in respect of paragraph 6 of the application; it may be that the parties will reach agreement on that aspect. Liberty to apply in
respect of that paragraph will be reserved to the applicant.
I certify that this and the forty-eight preceding pages are a true copy herein of the Reasons for Judgment of his Honour Mr. Justice Keely delivered on 14 July, 1988.
Solicitors for the Applicant Counsel for the Applicant H
Gregory
Philip Morris Limited
(1976) 11 ALR 599
(1979) 27 ALR 87
(1938) 60 CLR 336
(1984) 8 IR 34
(1984) 9 IR 115