[2015] FWC 2087


Fair Work Act 2009

s.394—Unfair dismissal

George Mihalopoulos
Westpac Banking Corporation T/A Westpac Retail and Business Banking


SYDNEY, 15 MAY 2015

Application for relief from unfair dismissal.

[1] Mr George Mihalopoulos (the applicant) applied on 8 October 2014 for an unfair dismissal remedy in relation to the termination of his employment by Westpac Banking Corporation (the respondent) on 22 September 2014.

[2] On the day of his dismissal the applicant was provided with a hand delivered letter, signed by Mr Troy Fedder, the respondent’s Regional General Manager for the Illawarra and South Coast. The letter included the following:

The hearing

[3] Mr Mihalopoulos’ application was referred to me for determination. Arbitration hearings were conducted in Sydney on 29 and 30 January and 18 March 2015. The applicant was represented by Mr Ian Neil SC, and the respondent by Mr M Seck, of counsel.

[4] Witness statements were tendered from;

[5] All witnesses were cross-examined, with the exception of Ms Hinder, Ms Shepherd and Ms Jess. In addition, Mr James Dickinson (a colleague and friend of the applicant) gave oral evidence, under a summons sought by the applicant. Mr John Dryden, the Regional General Manager, Commercial Banking, Southern Sydney, also gave oral evidence.

The evidence

[6] The applicant was born on 29 November 1978. He commenced working for the respondent two years after completing his HSC, in 1998. He started as a teller and worked his way up over the course of 16 years through various positions with Westpac in Sydney and Wollongong. He was promoted to the Bank Manager’s position at the Wollongong Branch in September 2012 (after having previously worked for some time as Branch Manager at the Corrimal Branch).

[7] Until the events that led to his dismissal the applicant had had a largely blemish free history with the respondent. In about 2003 he was suspended for a short period when the respondent investigated a transaction in which he was involved. However he was subsequently cleared of any wrongdoing. 1

[8] During his cross-examination, Mr Fedder said that he had formed a favourable assessment of the applicant as a banker up until the events that led to his dismissal. 2 Nor had he had any reason to be concerned about his adherence to the respondent’s code of conduct and policies.3

[9] The applicant’s letter of offer for the Wollongong Bank Manager’s role indicated that the position was classified as an ‘increased risk role’ and was subject to the completion of satisfactory criminal and various other background checks. His contract of employment included the following:

[10] The contract also contained a requirement to continue to observe and comply with Westpac’s procedures and policies including but not limited to the code of conduct and the conflict of interest policy. The contract indicated that these policies would be available on the intranet and that employees should familiarise themselves with all updated versions of applicable procedures and policies. During his cross-examination, the applicant denied being aware of the conflict of interest policy and said that he had not complied with the direction to familiarise himself with all updated versions of applicable procedures and policies. 4

[11] The applicant’s contract of employment included a specific section on conflict of interest. It stated:

[12] The applicant denied that this meant that ‘whilst you may not necessarily have a conflict of interest, if it might be perceived by a third party to be a conflict, that is sufficient to you to avoid or disclose.’ 5

[13] The applicant agreed that he had received on-line training in managing conflicts of interest. 6

[14] The applicant’s contract employment indicated that the respondent could terminate the applicant’s employment in writing without notice if he were to:

[15] In the position description for Bank Manager in Retail & Regional Banking the scope of the role included:

[16] However the applicant denied that he was, in effect, ‘the public face of Westpac within the local community’. He said that ‘it would not have been readily known by even senior people of the community that I’m the bank manager of Westpac Wollongong.’ He said that he did not attend any significant community events on behalf of the respondent, or spearhead any interaction with the community. He said this was because he had not been given the opportunity to do so by Westpac. 7

[17] The applicant said he had never dealt with the media, local or community groups on the respondent’s behalf. 8

[18] The applicant became involved in a romantic relationship with one of the employees at the Wollongong Branch - Ms A. Ms A reported directly to the applicant. The relationship started in February 2014. The applicant and Ms A moved in together in March 2014 and lived together until the relationship ended.

[19] According to the applicant, Ms A ‘may have received one bonus or so during that time of our relationship.’ He said that he did not have any direct involvement in the formulation of the amount of the bonus which was based on her financial performance. 9 He also said he was not involved in recommending bonuses for employees.10 He was however involved in conducting performance appraisals, including for Ms A.11 He also had a role in recommending employees for potential promotion.12

[20] According to Ms Jess:

[21] The applicant’s direct supervisor, Mr Troy Fedder, had a conversation with the applicant in around March 2014. According to Mr Fedder, the applicant said to him:

[22] Mr Fedder responded:

[23] According to the applicant’s oral evidence, he based his understanding that Ms A had been offered a position at CUA on what Ms A had told him. 15

[24] According to Mr Fedder, the applicant and he had a number of conversations in respect of Ms A moving into a different role. For example he says that the applicant said to him:

[25] Mr Fedder responded:

[26] In his statement, Mr Fedder said that Ms A was one of the top performing bankers in the region based on her performance results at the time. He commented that ‘when a senior manager such as Mr Mihalopoulos provided a recommendation in respect of the staff member, it carried weight. Given this, I thought it was appropriate to try and retain [Ms A] in the business.’ 18

[27] Mr Fedder added:

[28] Mr Fedder asked her what she was looking for in order to stay. She responded:

[29] During his cross-examination, Mr Fedder agreed that - based on her sales performance - Ms A was one of the top performing bankers in his region, and that the possibility that the respondent might lose her to another financial institution was a possibility that he would be concerned about. 20 He would have expected the applicant to advise him if another organisation was offering her more money.21 He agreed that the applicant’s recommendation accorded with Ms A’s objective performance results.22

[30] On 23 May 2014, the applicant sent Mr Fedder an email regarding Ms A. This was concerned with providing her with further development opportunities. It included the following:

[31] The email included asking to arrange a mobile phone for [Ms A] and finalising as soon as possible her letter of offer. 23

[32] During his examination-in-chief, the applicant agreed that he ‘positively advocated for promotional opportunities for Ms A’. 24

[33] Mr Fedder said in his written statement:

[34] According to Mr Fedder, approximately one month after his discussions with the applicant about promoting Ms A to the role of Personal Banker - Specialist, he became aware of rumours amongst Westpac staff in the region concerning a romantic relationship between the applicant and Ms A. After hearing rumours to the effect that the applicant was spending a disproportionate amount of time with Ms A from a number sources he decided to speak to the applicant. Mr Fedder asked whether the applicant was in relationship with Ms A. The applicant denied this and, according to Mr Fedder, said that he was disappointed that there were rumours circulating about the region about this matter.  26

[35] According to the applicant, Mr Fedder had an informal meeting with him in May 2014, where he raised the issue about whether or not he was involved in a relationship with anyone at the bank. His recollection was that Mr Fedder said words to the effect of:

[36] The applicant said that he responded with words to the effect of:

[37] The applicant said that he also said words to the effect of:

[38] According to the applicant, Mr Fedder went on to say words to the effect of:

[39] In his written statement, Mr Fedder denied saying this to the applicant. 27 The applicant during his oral evidence was adamant about his recollection of the discussion.28 Mr Fedder was equally adamant that he had not said these words.29

[40] The applicant’s evidence is that he said words to the effect of:

[41] During his examination-in-chief, the applicant was asked by his counsel why he had denied that he was in a relationship with Ms A. He responded:

[42] In his written statement, Mr Fedder said:

[43] During his cross-examination, the applicant agreed that the effect of his lying to Mr Fedder about his relationship with Ms A denied Mr Fedder the opportunity to put in place measures to avoid or minimise a conflict of interest. 33

[44] According to Mr Fedder, he continued to hear rumours about the applicant and Ms A; however based on his discussion with the applicant he believed the rumours were unfounded. He told his leadership team at a Bank Manager meeting that they should be discouraging rumours and gossip. 34

[45] Ms Hinder said in her written statement:

[46] Ms Jess, in her written statement, gave very similar evidence:

[47] In around July 2014, an HFM role became available at the Westpac Nowra Branch. Mr Fedder decided that the role provided a good opportunity to move Ms A to Nowra. He was partly influenced in this by the persistent rumours amongst staff about the relationship between the applicant and Ms A. 37 Ms A’s base salary increased to $80,000.38

[48] Mr Paul Lang, the Branch Manager at Nowra, gave evidence that he interviewed Ms A for the Nowra role. The interview took place at the Wollongong Branch at Ms A’s request. 39 After the interview, the applicant approached him and told him that Ms A had been offered a role with CUA paying $90,000. According to Mr Lang, the applicant said to him:

[49] The applicant denied he had said the first sentence 41, though he agreed that he had probably said Ms A would be successful.42

[50] Mr Lang’s evidence is that he was not convinced that Ms A ‘had the right skill set for the HFM role.’ He was also concerned by the applicant’s behaviour. He felt the applicant ‘appeared to be negotiating on her behalf’.’ 43

[51] Mr Lang’s evidence is that he passed on his concerns, with regard both to Ms A’s suitability for the role and the applicant’s advocacy on her behalf, to Mr Fedder. Mr Fedder however told him that the HFM role at Nowra provided a good opportunity to move Ms A to a different branch due to the rumours in the region circulating about the applicant and Ms A. 44

[52] During his cross-examination, Mr Fedder agreed that while Mr Lang had concerns about Ms A’s appointment at the Nowra branch as an HFM, Mr Fedder was satisfied that the appointment was entirely appropriate. 45

[53] Mr Lang’s evidence is that shortly after Ms A commenced her secondment at the Nowra branch, the applicant told him he wanted to attend the branch to speak to the Personal Banker at Nowra. Mr Lang said:

[54] According to the applicant. He spent about an hour and a half with the Personal Banker in Nowra. 47 However he agreed that he spent most of the day at Nowra, mainly with Ms A.48 He denied he was spending personal time with her. He said he was ‘helping her out’ as a member of ‘a close team’.49 When asked why she could not have asked Mr Lang, her own Branch manager, for assistance, the applicant replied that Mr Lang was not available.

[55] In around late July 2014, a work-related event was organised by the home finance team to take place in Adelaide. By this time Ms A had moved to the Nowra Branch. According to Mr Fedder, it was appropriate for Ms A to attend the event in Adelaide. A number of Bank Managers who had responsibility for home finance member development also attended.

[56] According to Mr Fedder, the applicant contacted him two working days before the event and asked if he could also attend. He said that they had a conversation to the following effect:

[57] During his examination-in-chief the applicant agreed that he had made such a statement. 52 When asked by his counsel why, he responded:

[58] According to Mr Fedder, the applicant and Ms A appeared to spend a lot of time with each other in Adelaide and he was concerned that they may indeed be in a relationship. However he did not have time to speak to the applicant at the event about it. The applicant commenced a period of planned annual leave shortly after the event for a period of three weeks, commencing on 5 August 2014. Mr Fedder decided that he would speak to the applicant about the matter when he returned to work from annual leave (on 25 August 2014).

[59] Mr Fedder took annual leave from 18 August to 22 August 2014. The applicant rang Mr Fedder on Wednesday 20 August 2014 but was not able to get hold of him and left a message asking if he could see him when he returned from leave the following Monday. According to the applicant, he had called Mr Fedder to tell him about the relationship with [Ms A] and that it had now ended. 54 According to the applicant, the relationship had (at that point) ended amicably.55 However on the Thursday and Friday before the meeting with Mr Fedder occurred, in the applicant’s words ‘events took place that were quite serious and I disclosed those events to Mr Fedder, as well.56

[60] When asked to describe these events, the applicant said:

[61] During his cross-examination, the applicant agreed that there were allegations of damage to a dining room table and internal walls. 58

[62] The applicant described Mr Fedder’s response to these disclosures:

[63] Mr Fedder’s evidence is that he met with the applicant at 9:30 am on Monday 25 August 2014. At that meeting they had a conversation to the following effect:

[64] It appears that that when the applicant subsequently visited the branch he told some of the staff about the difficulties he had been having. For example, Ms Hinder (who had known the applicant for around four to five years) said in her statement that:

[65] Ms Jess’ evidence is that:

[66] During his cross-examination, the applicant agreed that he also spoke to another staff member, Mr Mark Franklin (who was the Home Finance Manager at the Wollongong Branch) and told him ‘the whole story about [his] relationship with Ms A’ including that they had broken up and that he was facing potential criminal charges. This discussion took place outside of work, and was in response to an offer from Mr Franklin (whom he had known for some time) to be someone with whom he could confide.  63

[67] The applicant was asked by his counsel when was the next occasion after the meeting on 25 August 2014 that he discussed the matter with Mr Fedder.

[68] The next occasion when the applicant discussed the matter with Mr Fedder was after he had breached the interim AVO (on 1 September 2014): 65

[69] Mr Fedder’s evidence is that around this time he had a conversation with Mr Franklin, to the following effect:

[70] Mr Franklin also told him:

[71] Mr Fedder said in his statement:

[72] Mr Fedder’s evidence is that he was concerned that the applicant did not appear to regard his breach of the AVO as a serious matter. 69 It was upon learning about the breach of the AVO that Mr Fedder decided that he needed to speak to HR.70 Based on advice from the respondent’s human resources specialists, Mr Fedder decided to investigate the matter further and to suspend the applicant on full pay.

[73] A meeting was organised for 9 September 2014 to provide the applicant with a letter of allegation.

[74] According to Mr Fedder’s written statement, he contacted a detective at Wollongong police station on 9 September 2014 about the AVO. The detective confirmed that the applicant had breached the AVO. Mr Fedder’s statement also said the detective had told him:

[75] Mr Fedder said during cross-examination that at the time the decision was taken to dismiss the applicant he did not believe that he had been charged with this offence. The only criminal charge that he had taken into account was the breach of the AVO. 72

[76] The applicant gave evidence that on the Friday prior to this meeting a colleague and friend of his, Mr James Dickinson, contacted him and encouraged him to resign from Westpac. 73 Mr Dickinson gave evidence that this was in response to a request to him from Mr Fedder and Mr Dryden to talk to the applicant and tell him that it would be in his best interests to ‘step down’.

[77] Mr Dickinson agreed during his cross-examination that it was never expressed to him that the respondent had reached a concluded view as to the allegations. 75

[78] Mr Fedder met with the applicant on 9 September 2014. Mr Dickinson attended as the applicant’s support person. Mr Dryden was also in attendance. At the meeting, the applicant was provided with an allegation letter. The letter stated that if the allegations were found to be proven, they could lead to disciplinary action being taken against him, including termination of his employment. According to Mr Fedder, the applicant raised a few points during the meeting. The applicant was also given the opportunity to provide a written response to the allegations. He did so in a detailed letter later that day. 76

[79] Mr Fedder’s evidence is that the respondent considered the applicant’s response but decided that it was untenable for him to remain as a Bank Manager and that his employment should be terminated. On 22 September 2014, Mr Fedder met again with the applicant, together with Mr Dryden. Mr Dickinson was also present as the applicant’s support person. His evidence is that:

[80] During a break, while Mr Fedder was out of the room, Mr Dryden advised the applicant that it would be in his best interests to resign. 77 Mr Dickinson was also present at the time. Mr Dryden’s evidence is that he was not involved in the decision making process to terminate the applicant’s employment.78

[81] The applicant was provided with four weeks’ payment in lieu of notice. 79

[82] The applicant was charged with two breaches of the AVO, malicious damage and break and enter. He received the court attendance notices in relation to the malicious damage and break and enter after he ceased employment with the respondent. The break and enter charge was subsequently dropped. The applicant pleaded guilty to the malicious damage charge and the Local Court, on 5 November 2014, issued a good behaviour bond under Section 10 of the Crimes (Sentencing Procedure Act) 2009, without proceeding to a conviction. The applicant also pleaded guilty to the first breach of the AVO, and another ‘Section 10 bond’ was issued on 22 January 2015, again with no conviction recorded. According to the applicant, the breach related to three phone calls. The second breach was not pursued. The interim AVO was removed. 80

[83] The applicant agreed during cross-examination that Ms A co-operated with him in providing statements in relation to his criminal proceedings. 81


[84] In considering whether the dismissal of the applicant by the respondent was harsh, unjust or unreasonable, I must take into account:

[85] I will consider each of these factors in turn (with the exception of (e) and (g) which have no relevance to the facts of this case, as the applicant was not dismissed for unsatisfactory performance, and the respondent had access to specialist human resource management expertise).

Valid Reason

[86] The primary reasons proffered by the respondent for the applicant’s dismissal can be summarised under four headings:

[87] Employers cannot stop their employees forming romantic relationships. However, in certain circumstances, such relationships have the potential to create conflicts of interest. This is most obviously the case where a manager forms a romantic relationship with a subordinate - especially where the manager directly supervises the subordinate. It is virtually impossible in such circumstances to avoid - at the very least - the perception that the manager will favour the subordinate with whom they are in a romantic relationship when it comes to issues such as performance appraisals, the allocation of work, and promotional opportunities.

[88] The applicant was Ms A’s manager when he commenced his relationship with her. As could be expected given his position, he played a key role in supervising her work, conducting her performance appraisals and recommending her for promotion.

[89] The applicant went to considerable lengths to help Ms A in her professional capacity. There is no doubt that she was a high performing employee, and it is conceivable that he would have taken many of the actions he did - such as helping her get a promotion - even if she had not been his lover. On the other hand, it defies credibility that some of his actions - such as his visit to the Nowra branch - would have occurred if he had not been in a relationship with her. There is little doubt that he spent more time with Ms A than with other members of his branch because of their relationship. Ms Jess said that the applicant - when he came to the Wollongong branch after his meeting with Mr Fedder on 25 August 2014 - apologised to her for not giving her more of his time. Ms Hinder likewise said that she felt that the applicant was apologising to her for not having been available at work. Neither witness was cross examined about this evidence.

[90] Employers have a reasonable expectation that employees will disclose any potential conflicts of interest, so that they can be appropriately managed. The obligation of the applicant with regard to disclosing potential conflicts of interest was referred to in his contract of employment and the respondent’s conflict of interest policy. That policy identified three types of conflict of interest:

[91] Under the policy employees are required to identify actual, potential or apparent conflicts of interest, and declare them to their manager to enable those conflicts to be managed. The policy does not specifically refer to romantic relationships between managers and subordinates; however it does not seek to codify all conflict of interest scenarios. To be blunt it should be obvious to any reasonably intelligent person that for a manager in an organisation such as Westpac to form a romantic relationship with a direct subordinate creates the potential for a conflict of interest. The applicant should have disclosed his relationship with Ms A - at least from the time they moved in together - to Mr Fedder. This would have enable the respondent to put in place appropriate arrangements to manage any potential conflict of interest.

[92] The issue of dishonesty cannot be separated from the conflict of interest. The applicant had a duty to disclose his relationship with Ms A to his manager even before Mr Fedder asked him about it. This failure to disclose was greatly compounded when he lied to Mr Fedder about the relationship. His explanation as to why he lied to Mr Fedder when the latter first asked him about the rumours of a relationship was that he was caught by surprise, in an informal meeting, that he was going through a stressful time, and that he was embarrassed and ashamed. Even if - as the applicant asserts - Mr Fedder sought to downplay the implications of his having a relationship with Ms A, there can be no doubt that Mr Fedder expected to be told the truth. It might be understandable that the applicant at first denied that the rumours were true, given that he was taken by surprise, he had the opportunity to set the record straight after this conversation, when he had had an opportunity to reflect on the matter. Not only did he fail to do so, but he then lied to Mr Fedder about his affair with Ms A a second time when he spoke to him about the Adelaide trip.

[93] I find that the applicant’s failure to disclose his relationship with Ms A, especially when combined with his dishonesty in lying to his manager about the affair on two separate occasions, constitutes a valid reason for the applicant’s dismissal.

[94] I am less convinced that the ‘criminal conduct’ engaged in by the applicant is a valid reason for his dismissal. The applicant’s contract of employment provided that his employment was subject to him maintaining ‘a clear criminal record’.

[95] The conduct - in breaching the interim AVO, and damaging property during his altercation with Ms A after they broke up - was at the lowest end of the scale of criminal conduct. No conviction was recorded by the Magistrate.

[96] The respondent submitted that the conduct had the potential to cause significant damage to the bank’s reputation in the community. It relied, in part, on the supposed role of the applicant, as a bank manager, in acting as ‘the public face’ of the bank in the local community. I have no doubt that in the past bank managers had a prominent role in many local communities. However, times have changed. Based on the applicant’s evidence, I find that this ‘public face’ role is more a theoretical than a practical proposition - at least insofar as the applicant was concerned. The applicant did not, in fact, act as the ambassador of the bank in the Wollongong community.

[97] There was no significant risk that the applicant’s conduct would have any detrimental effect on the respondent’s reputation. Certainly the evidence is that no such damage occurred.

[98] The final reason proffered by the respondent for the applicant’s dismissal was that he inappropriately disclosed to staff members his romantic relationship with Ms A. The applicant and Mr Fedder agreed on 25 August 2014 that the applicant would take a further week of annual leave. The applicant said he would visit the staff to tell them of this. However he went rather further than this, and when he went to the branch he spoke to some of the staff about his relationship with Ms A, and apologised for his recent conduct.

[99] The respondent submitted that the applicant made these disclosures for purely personal reasons, knowing that they were likely to cause disquiet in the workplace. It submitted that in making these disclosures, the applicant made an already awkward and difficult situation much worse. His actions denied the respondent a proper opportunity to manage the fallout of the situation in an orderly manner.

[100] There is no doubt that the whole affair caused considerable disquiet amongst the staff. However, based on the evidence of the two staff members who worked in the branch at the time (Ms Hinder and Ms Jess), a lot of the disquiet came in the form of sympathy for the applicant, who was someone they had worked with for some years and generally liked and respected. While it might have been better for the applicant not to have discussed the matter with the staff at that point, I find it hard to condemn him for wishing to apologise to them for his recent behaviour. I do not consider that the discussions the applicant had with members of the Wollongong branch on and around 25 August 2014 constituted a valid reason for the applicant’s dismissal.

[101] In summary I find that the applicant’s relationship with Ms A had the potential to create a conflict of interest. His failure to disclose this relationship to his manager, and his subsequent (and repeated) dishonesty when asked about the relationship by that manager - in combination - amounted to a valid reason for his dismissal.

Was the applicant notified of the reason for his dismissal?

[102] The applicant was advised (in the letter from Mr Fedder of 9 September 2014) of the allegations against him that led to his dismissal.

Was the applicant given an opportunity to respond to the reasons for his dismissal?

[103] The applicant was given an opportunity to respond to the allegations. He wrote a detailed letter in response.

Did the respondent unreasonably refuse to allow the applicant to have a support person at any discussions relating to the dismissal?

[104] The applicant was allowed to have a support person (Mr Dickinson) at the meetings on 9 and 22 September 2014.

The degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[105] The procedures the respondent adopted were consistent with it being a very large employer.

Any other matters the Commission considers relevant

[106] The applicant contended that the penalty of dismissal was disproportionate to the gravity of his conduct. He submitted that the gravity of his dishonesty was mitigated by a number of facts. Some of these I have already considered under the discussion of whether the respondent had a valid reason for the applicant’s dismissal, including that the first lie took place in an informal setting, that Mr Fedder allegedly downplayed the significance of his question about the applicant’s relationship with Ms A, and that the applicant’s lie was not premeditated. Other factors put by the applicant as mitigation are that he voluntarily and freely confessed to having lied and has never sought to avoid the fact, that he regrets his dishonesty and would never reoffend, and that the question asked by Mr Fedder did not concern a matter at the core of the respondent’s business or the applicant’s duties as an employee. The applicant further submitted that Mr Fedder did not regard the applicant’s lies with the seriousness that he later attributed to them. Indeed he did not take any active step in relation to the applicant’s employment until the applicant told him that he had breached the AVO.

[107] In arguing that dismissal was disproportionate to his misconduct, the applicant pointed out that he had worked for the respondent for 16 years, largely in senior and responsible positions, and that he had made the whole of his career with the respondent. Until the events leading to his dismissal he had a very good employment record, and was regarded as an effective, loyal and trustworthy employee, devoted to his job.

[108] I have given very careful consideration to these submissions. There is no doubt that the effect of his dismissal has been particularly serious for the applicant - especially as he has spent virtually all his working life with the respondent. However, I do not agree that the factors referred to by the applicant outweigh the seriousness of his misconduct.

[109] In my view, the applicant’s misconduct was serious, and should not be downplayed. Moreover, I am not convinced, based in particular on his behaviour in the witness box that the applicant fully appreciates what he has done wrong. He still seems not to understand fully the potential conflict of interest involved in his acting as Ms A’s manager and ‘promoter’ while they were having a romantic relationship and the potential for this to damage the respondent’s business. I found his protestations that he spent no more time with Ms A than he would have for any other employee particularly unconvincing. While he did eventually admit to Mr Fedder what had been going on, this was only after the relationship had come to an end.

[110] It is possible that Mr Fedder would not have moved to dismiss the applicant if the AVO had not been breached. Certainly the evidence suggests that Mr Fedder did not speak to HR until after he was told about the AVO breach. However even if that were true it does not mean that the applicant’s failure to disclose his relationship with Ms A and then his repeated dishonesty were not by themselves enough to justify his dismissal.

[111] It is important to acknowledge that the applicant held a senior position which required a high degree of honesty and personal integrity. His behaviour - in failing to disclose his relationship with Ms A and then (twice) lying about it to his manager - fundamentally undermined the trust and confidence which is at the heart of the employer-employee relationship.


[112] Having considered and weighed up all the relevant factors, I am not satisfied that the applicant’s dismissal was harsh, unjust or unreasonable. The application is dismissed.



I Neil Senior Counsel for the applicant

M Seck Counsel with S Mitchell Solicitor for the respondent

Hearing details:


29, 30 January

18 March


 1   Exhibit M1, paragraph 9

 2   PN2516

 3   PN2520-2521

 4   PN512, 518

 5   PN540

 6   PN954 - 975

 7   PN593-613

 8   PN669-671

 9   Exhibit M1, paragraph 14

 10   PN740

 11   PN1027

 12   PN741

 13   Exhibit W6, paragraphs 10- 17

 14   Exhibit W2, paragraph 33

 15   PN236, PN1119

 16   Home Finance Manager

 17   Exhibit W2, paragraph 35

 18   Exhibit W2, paragraph 36

 19   Exhibit W2, paragraphs 38-41

 20   PN2543-2544

 21   PN2456

 22   PN2635

 23   Exhibit W2, annexure G

 24   PN220

 25   Exhibit W2, paragraphs 43-45

 26   Exhibit W2, paragraphs 46-50

 27   Exhibit W2, paragraph 52

 28   PN178-182, PN1246

 29   PN2685

 30   Exhibit M1, paragraphs 18-26

 31   PN200

 32   Exhibit W2, paragraph 54

 33   PN1254-1257

 34   Exhibit W2, paragraph 57

 35   Exhibit W4, paragraphs 12-13

 36   Exhibit W6, paragraph 13

 37   Exhibit W2, paragraph 60

 38   Exhibit W2, paragraph 61

 39   Exhibit W1, paragraph 13

 40   Exhibit W1, paragraph 14

 41   PN1339

 42   PN1340

 43   Exhibit W1, paragraphs 19-20

 44   Exhibit W1, paragraphs 21, 24

 45   PN2655

 46   Exhibit W1, paragraphs 28-29

 47   PN1355

 48   PN1356-1357

 49   PN1362-1368

 50   PN1371

 51   Exhibit W2, paragraph 65

 52   PN202

 53   PN203

 54   Exhibit M1, paragraphs 27-28

 55   PN285

 56   PN286

 57   PN287

 58   PN386’]

 59   PN288

 60   Exhibit W2, paragraph 71

 61   Exhibit W4, paragraphs 15-16

 62   Exhibit W6, paragraph 20

 63   PN1433 - 1439

 64   PN289-291

 65   PN2742

 66   PN292-294

 67   Exhibit W2, paragraph 77

 68   Exhibit W3, paragraph 4

 69   Exhibit W2, paragraph 84

 70   PN2743, PN2819

 71   Exhibit W2, paragraph 89

 72   PN2835

 73   PN302

 74   PN895

 75   PN1669

 76   Exhibit W2, annexure I

 77   PN1901

 78   PN2001-2004

 79   Exhibit W2, paragraph 105

 80   PN318-328, Exhibit W9

 81   PN1714

 82   Exhibit W2, Annexure B

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562447>