| [2018] FWC 1969 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karine Lecaude
v
Westpac Banking Corporation T/A Westpac
(U2017/10519)
COMMISSIONER WILLIAMS |
PERTH, 11 APRIL 2018 |
Termination of employment.
[1] This decision concerns an application made by Ms Karine Lecaude (the Applicant or Ms Lecaude) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The Respondent is the Westpac Banking Corporation T/A Westpac (the Respondent or Westpac).
[2] Ms Lecaude was dismissed from her employment on 18 September 2017. The reasons for her dismissal was that in August 2017 she sent two emails to Mr Di Carlo, the State Manager Trade and Invoice Finance, regarding a colleague who had applied for a role in Mr Di Carlo’s team. Westpac considered these emails contained factually incorrect information about her colleague and the investigation by HR of a historic grievance she had raised, and that sending the emails breached Ms Lecaude’s confidentiality obligations in respect of that investigation of this grievance. Westpac also found Ms Lecaude sent the emails with the intention of harming her colleague’s job application prospects.
[3] At the hearing of this matter Ms Lecaude gave evidence and the following witnesses gave evidence for Westpac:
1. Ms Natasha Coutinho (Ms Coutinho), Senior Manager International Service and Exports
2. Mr Leslie Bleasdale (Mr Bleasdale), Executive Manager Trade and Payments Operations
3. Ms Terry Smith (Ms Smith), HR Consultant
Ms Lecaude
[4] Ms Lecaude commenced employment with Westpac in 2007. She worked in a small team of between three and five people. The managers of that team were based in the eastern states.
[5] When Ms Lecaude joined Westpac she made herself familiar with its policies including the Code of Conduct (the Code) and was also trained on these on a regular basis. The training on the Code is referred to as “Doing the Right Thing”. Ms Lecaude was last trained on the Code in April 2017 and she accepts the importance of Westpac’s core values as they are set out in the Code. 1
[6] Ms Lecaude was also familiar with Westpac’s Grievance Process and that a core principle underpinning the use of the Grievance Policy is the notion that grievances are confidential. 2
[7] Relevant parts of the Westpac Code 3 include:
“6. We work as a team
We treat each other with respect and kindness, promoting an environment that enables everyone in the team to reach their full potential.
…
We do not tolerate bullying, harassment, unlawful discrimination or any other offensive conduct.
Examples of how we work as a team are:
…
• Supporting and not undermining each other;
• Collaborating with our colleagues to do what is right for a customer’s no matter where we work in the Westpac group;...”
[8] Relevant parts of the Westpac Grievance Process 4:
“Principles for Handling Grievances
When a grievance has been raised, we aim to:
Maintain confidentiality as far as possible – only the people directly involved in the course of investigating the grievance will access any information about the grievance. The person the grievance was raised about will also be given information as appropriate.
…
Confidentiality and communication
….
It is important that you maintain confidentiality about the grievance and those involved in order to avoid gossip and the possibility of defamation claims. You should not talk to other employees, customers, contractor’s or other persons about your grievance. You can, of course, talk to your nominated support person if this is necessary, however confidentiality requirements will equally apply to the support person.
Review of a grievance outcome
Having a grievance outcome reviewed
If you are not satisfied with the outcome or the way you’re a grievance was handled, you can escalated for review.
Who will my grievance be escalated to?
We will determine who will review your grievance depending on who has handled it so far. In most cases this will be a senior manager in your business unit who is authorised to deal with the matter. If you are still not satisfied, you can escalate it to your Divisions General Manager, HR. You can escalate your grievance by talking to your Peoples Leaders manager. You can also ask the HR Service Centre to assist you in this process.
…
Westpac Group Employee Ombudsman
If you’re not satisfied with the General Manager HR review, you can escalate your grievance to the Westpac Group Employee Ombudsman.”
[9] One of the members of her team was Mr Grisdale who joined Westpac in 2008.
[10] For the first year he observed how Ms Lecaude worked so that he could learn the job.
[11] Ms Lecaude’s evidence was that Mr Grisdale left Westpac in 2011 but returned in 2012. Her evidence was that a few months after his return he began to challenge her and she felt uncomfortable with his behaviour.
[12] Her evidence was he would pick on her or ignore her and was jealous of the high profile customers she had in her portfolio.
[13] Ms Lecaude said that she experienced constant bullying and harassment between 2013 and 2016 from Mr Grisdale and had many telephone conversations and email communications with her managers about his conduct.
[14] On 29 July 2016 she lodged a formal complaint with Westpac’s HR department about Mr Grisdale’s behaviour.
[15] Her managers asked if she would participate in a mediation process with Mr Grisdale and she agreed to this.
[16] After the mediation process Ms Lecaude felt nothing seemed to have changed and communicated this to her managers. Her evidence was that consequently on 1 November 2016, the HR department then started an investigation into her complaint.
[17] An investigation was conducted and Ms Lecaude was interviewed by Ms Smith at length and asked to provide documents. 5
[18] A meeting with HR took place on 9 December 2016. Before this, she was told this meeting was to receive the outcome of her complaint. 6 The meeting was attended by her People Manager, Mr Ousley and Ms Smith from HR.
[19] Ms Smith provided her with a letter dated 9 December 2016 and summarised its contents. 7 Ms Lecaude said Ms Smith told her that she may be surprised to learn that other people had left the bank because of her. She asked who they were. Two persons were named and there was some discussion about this. Ms Lecaude disputed this was the case.
[20] She felt the meeting seemed to turn and it was suggested that in some way she was to blame and there was criticism of her.
[21] Her evidence was that Ms Smith said that her behaviour provoked Mr Grisdale to behave in the way he did. She asked Ms Smith if she was justifying his behaviour. Her evidence was that Ms Smith said that both Ms Lecaude and Mr Grisdale were both equally to blame.
[22] Ms Smith left the meeting and Ms Lecaude continued her discussion with Mr Ousley. She asked what would happen if Mr Grisdale continued to bully and harass her and Mr Ousley said that he would be under observation and if she reported further instances then they would take action against Mr Grisdale.
[23] The letter dated 9 December 2016 is headed “Private & Confidential”. The letter details eight specific allegations Ms Lecaude made against Mr Grisdale and the outcomes of the investigation were:
Allegation 1.1 was substantiated
Allegation 1.2 was unable to be substantiated
Allegation 2.1 was substantiated
Allegation 2.2 was unable to be substantiated
Allegation 2.3 I. was unable to be substantiated
Allegation 2.3 II. was substantiated
Allegation 2.3 III. was substantiated
Allegation 3 was unable to be substantiated
[24] I note that Allegation 3, which was not substantiated, alleged Mr Grisdale had made culturally insensitive and racist comments about Russia, Ms Lecaude’s country of birth. The letter concludes as follows:
“Other Matters
Notwithstanding the findings in relation to the specific allegations you made, the investigation has raised some concerns about unprofessional behaviours by both Mr Grisdale and yourself. I am deeply concerned about these behaviours and the impact of this on you and the broader team. As such, I will be working with you to ensure that we take the appropriate actions to address the ongoing unprofessional behaviours between you and Mr Grisdale. I will discuss this with you separately.
Please also be reminded that the investigation and the outcomes are confidential and should not be disclosed to any person unless you are seeking advice or support from your support person, a lawyer, union representative or counsellor.” (Underlining added).
[25] As can be seen above, half of the allegations Ms Lecaude had made were substantiated and a half were unable to be substantiated.
[26] As can be seen above, in December 2016, the investigations by Westpac had raised concerns about the unprofessional behaviour of both Mr Grisdale and Ms Lecaude.
[27] The letter in two places stressed that it was confidential.
[28] Under cross-examination Ms Lecaude readily agreed that it was conveyed to her during the investigation that the investigation was confidential and she wasn’t to discuss the matter with other people and in fact in her initial letter of complaint she asked for the investigation of her grievance to be private. 8
[29] Ms Lecaude also agreed that, in relation to the 9 December 2016 letter of outcomes, it reminded her that the investigations and its outcomes were confidential. 9
[30] Under cross-examination, Ms Lecaude’s evidence was that she understood at the time she emailed Mr Di Carlo that this letter was confidential. 10
[31] Her explanation for communicating the confidential information to Mr Di Carlo was that at that moment she couldn’t sleep and wrote her emails in complete shock. 11
[32] Ms Lecaude was aware that if she was unhappy with the outcome of this particular grievance that there was a review process and a further appeal against the review process if necessary. 12
[33] At no time after receiving the 9 December 2016 letter did Ms Lecaude escalate her complaint as she was entitled to under Westpac’s Grievance Process. 13
[34] Ms Lecaude under cross-examination, however, argued that the 9 December 2016 letter was in fact an interim letter and that the investigation of her grievance was not closed. But she conceded that Ms Coutinho told her in March 2017 that the investigation was over and if she was unhappy she must take it up with HR. 14
[35] In February 2017, Ms Lecaude had a follow-up conversation with Mr Ousley and at that time she reported that Mr Grisdale had calmed down and was polite.
[36] On 6 May 2017, however, she says Mr Grisdale confronted her and bullied her and again she reported this to her managers. She also says that around that time Mr Grisdale started to ignore her.
[37] Between 23 May 2017 and 6 June 2017 she was on leave.
[38] On 6 June 2017 her then manager Ms Coutinho had a conversation with her regarding her role as Project Leader for the transfer of the team she was a member of to another building. Ms Coutinho told her she had received a complaint from a manager alleging she had an intimidating manner of communication. Ms Coutinho told Ms Lecaude she had decided to remove her as Project Leader and had appointed Mr Grisdale to the role.
[39] Later that month Ms Lecaude made a further complaint about Mr Grisdale’s behaviour to Ms Coutinho.
[40] In July 2017, Mr Grisdale she says made a mistake with one of her customers and she spoke to him about that and he started to be argumentative, rude and raised his voice.
[41] In late July 2017, Mr Grisdale told her that he had applied for a new position. This was the vacancy in a department managed by Mr Di Carlo.
[42] Ms Lecaude’s evidence in chief was that, while this position was not directly above her, it would have meant that if Mr Grisdale was appointed he would be in a position to give her work to do and, in that sense, be superior to her. Her evidence was that Mr Grisdale would then also be involved in giving feedback to her managers for her annual review. 15 The evidence of other witnesses contradicts this evidence by Ms Lecaude.
[43] Even on her own evidence if Mr Grisdale got the job he would no longer be working directly with her.
[44] Ms Lecaude’s evidence was that the thought of Mr Grisdale getting that job alarmed her and so she sent an email to Mr Di Carlo. 16
[45] The emails Ms Lecaude sent to Mr Di Carlo and his response were in sequence as follows:
“From: Lecaude, Karine
Sent: Tuesday, 8 August 2017 4:47 PM
To: DiCarlo, Robert (Westpac)
Subject: Private and Confidential
Importance: High
Dear Rob,
Please consider this message is private and confidential.
My name is Karine Lecaude and I work as international service consultant.
It came to my attention that one of our team members Harry Grisdale has applied for a position of Rahul Shah who recently resigned.
I am not sure if you are aware but there is an open case with HR against Harry for his abusive behaviour towards me. For a few years I tried to manage the problem myself however he did not stop so last year I had to lodge a formal complaint to HR. Allegations were proved and Harry is on probation for behaviour. My managers asked me not to proceed with the Complaint in order for Harry to keep his job.
I am sure no one of the IBMs would support Harry’s application for the job.
I am feeling very strongly about racist, harassing and abusive people and I believe no one should tolerate or suffer from them.
If you wish to contact me please do not hesitate.
Kind regards
Karine Lecaude”
----------
“From: DiCarlo, Robert (Westpac)
Sent: Tuesday, 8 August 2017 5: 38 PM
To: Lecaude, Karine
Subject: RE: Private and Confidential
Hi Karine,
Thank you for your email, unfortunately I am not in a position to disclose any details on candidates for the vacant IBM role.
I am concerned about the content of your email and would suggest you discuss further with your people leaders and HR support.
Please note, I do have an obligation here to forward your email to Natasha for the record.
Best Regards
Rob”
----------
“From: Lecaude, Karine
Sent: Wednesday 9 August 2017 9:06 AM
To: DiCarlo, Robert (Westpac)
Subject: RE: Private and Confidential
Hi Rob,
Tanks you for your time to read my messages and your response. (sic)
Harry told me himself that he has applied for this role.
If you have to advise Natasha this is your decision. Natasha is our manager and she is fully aware of the formal Complaint lodged against Harry. Please note that the Complaint was substantiated and Harry was supposed to go through the anger management program. I agreed not to proceed with the complaint only for his family.
This may be a serious issue if any of Managers have supported his application for promotion and even worse if Harry gets the job.
Kind regards
Karine Lecaude”
[46] Her evidence in chief was that she had no malicious intent when she sent the emails to Mr Di Carlo. She “...was extremely distressed about the prospects of the person who had bullied me for such a long time. I was seeking to protect myself.”
[47] On 11 August 2017 Ms Coutinho spoke to her regarding the emails and told her that she had crossed the line. Ms Lecaude apologised to her and sent an email to that effect.
[48] On 30 August 2017 she emailed HR enquiring about the progress of her 29 July 2016 complaint about Mr Grisdale and she received an email response from Ms Smith that the complaint had been closed.
[49] Her evidence was that on 6 September 2017, she was given a show cause letter. 17 That letter referred to the emails she had sent to Mr Di Carlo. The letter also detailed the history of the concerns from July 2016 that she had raised about Mr Grisdale’s behaviour, the investigations into these and the findings that were communicated to her on 9 December 2016.
[50] The show cause letter stated that Westpac was concerned that her emails to Mr Di Carlo contained factually incorrect information about Mr Grisdale and the investigation. These in summary were as follows:
• She stated the case against Mr Grisdale was open when in fact it was closed on 9 December 2016.
• She stated that Mr Grisdale was on probation when in fact she had been notified that any outcomes relating to Mr Grisdale would not be discussed with her and in any event he is not on probation.
• She inferred that Mr Grisdale was racist, harassing and abusive when no such allegations against him have been substantiated.
• She stated that the allegations against Mr Grisdale were substantiated without acknowledging that the majority were not substantiated.
• She stated that Mr Grisdale was to undergo an anger management program when in fact she had been notified that any outcomes relating to Mr Grisdale would not be discussed with her and in any event Mr Grisdale has not been required to undergo an anger management program.
• She stated she was asked not to progress her complaints to which she agreed, when in fact her complaint was progressed and formally investigated by Westpac.
[51] Ms Lecaude explained that on 11 September 2017 she responded to Westpac with a letter from her solicitors which she confirms to be true and correct.
[52] That letter from her lawyers says that Ms Lecaude regrets sending the emails but mistakenly believed she was obliged to send the emails because:
• Ms Lecaude believed her complaint against Mr Grisdale remained open and unresolved.
• Ms Lecaude understood an employee could not apply for a new position whilst being the subject of a complaint being dealt with by HR as such an application required the support of the relevant manager.
• Ms Lecaude understood that if contrary to Westpac’s policy this it been overlooked during the application process she had a duty to report it. This was a misunderstanding of training provided called “Doing the Right Thing in Westpac”.
[53] The letter made no reference to any fear that Ms Lecaude would be placed in a subordinate position and subjected to further bullying by Mr Grisdale. 18
[54] The letter then traversed the history of her relationship with Mr Grisdale, the investigations of her complaint and the subsequent meetings about this.
[55] The letter also stated that she was upset and emotive when she sent the emails but her motivation was her belief that her complaint remained open and that she had an obligation to mention this. That she felt she had to report the matter directly to Mr Di Carlo and could not report the matter to her managers as she felt unsupported in her complaints about Mr Grisdale.
[56] The letter closed with examples of what a committed and hard-working employee Ms Lecaude had been for Westpac.
[57] Under cross-examination about her explanation that she had a duty to report to Mr Di Carlo the fact she had made a complaint about Mr Grisdale, Ms Lecaude agreed that she knew Westpac has a Whistleblower Policy which she could have accessed but she did not do this. 19
[58] Ms Lecaude was subsequently terminated on 18 September 2017 and this was confirmed in a letter dated the next day.
[59] Mr Grisdale was not successful in his application to the vacant position on Mr Di Carlo’s team.
Ms Coutinho
[60] Ms Coutinho’s evidence was that she has been employed in her current role for four years. She reports directly to Mr Bleasdale.
[61] At the time of Ms Lecaude’s dismissal Ms Lecaude was one of three International Enquiries Officers one of which was also Mr Grisdale.
[62] On 4 April 2017 Ms Lecaude undertook the “Doing The Right Thing” training which amongst other things dealt with Westpac’s Code and the Internal Grievance Process.
[63] She has known Ms Lecaude and Mr Grisdale since she joined Westpac in 2010. It was apparent initially that their relationship was positive and trouble-free. She agrees that over time it seemed that their relationship deteriorated and there were a number of occasions when Ms Lecaude complained to either herself or Mr Ousley who reports to Ms Coutinho.
[64] Ms Lecaude made a number of complaints throughout 2016 about Mr Grisdale’s behaviour. There were numerous discussions with her about this.
[65] It was clear to her they no longer got on well. Her impression was that they were both very strong personalities and this may have been part of the reason for the conflict. She found it difficult to manage their relationship and was unable to get to the bottom of what was wrong between them.
[66] Ms Coutinho’s evidence was she was not able to apportion blame as each of them would often have a very different view of the same incident.
[67] Following the formal complaints made by Ms Lecaude in mid-2016 mediation was undertaken. This was not successful and she was advised by the mediator that Ms Lecaude did not go through the entire mediation process and was the one to call it off.
[68] In parallel with this, the formal investigation into Ms Lecaude’s complaint was being undertaken by HR. Ms Coutinho had no formal role to play in relation to that investigation or its outcome.
[69] She was not involved in the meeting where the outcome of the investigation was communicated to Ms Lecaude in early December 2016. At that time Ms Lecaude was reporting directly to Mr Ousley.
[70] She is aware that on 9 December 2016, Mr Grisdale was given a formal written warning by Mr Ousley which was one of the outcomes of the investigation into Ms Lecaude’s complaint against him.
[71] In March 2017 in discussion with Ms Lecaude, Ms Lecaude mentioned that she had informed Mr Grisdale that the investigation was ongoing. In response to this statement, Ms Coutinho says that she told Ms Lecaude that this was not correct and that the investigation had been concluded with the outcome being given in December 2016. She also told Ms Lecaude that if she was not happy with the outcome she had to pursue that with HR.
[72] From that point onwards things progressed fairly normally from Ms Coutinho’s point of view until she became aware of the messages sent by Ms Lecaude to Mr Di Carlo in August 2017.
[73] Having become aware of what occurred, it was decided that there would be an informal discussion about this with Ms Lecaude and a teleconference was arranged with Ms Lecaude, Ms Coutinho and Mr Bleasdale on 11 August 2017. Ms Coutinho took detailed notes on her laptop during the discussion and expanded on those after the meeting ended. She had Mr Bleasdale review those notes and her evidence was she is satisfied they captured all that was discussed.
[74] The notes of this meeting were provided in the Respondent’s materials. 20
[75] I note in Mr Bleasdale’s evidence he also says he believes these notes are an accurate record of what was said during the meeting. I accept the evidence of Ms Coutinho and Mr Bleasdale that these notes accurately record what was said during this meeting.
[76] In this meeting with Ms Lecaude, Ms Coutinho explained that they had been alerted by Mr Di Carlo to the emails she had sent to him and these had been forwarded to HR who are reviewing the emails.
[77] It was explained to her that HR were investigating because, as Mr Bleasdale explained, the emails she sent were viewed as reprehensible and it was not up to her to pass any comments or aspersions about Mr Grisdale on to Mr Di Carlo. The discussions continued at length with Ms Lecaude explaining why she had sent the emails and her views about all related matters.
[78] She was told again that the email is being reviewed and once a decision is taken they will discuss the outcome with her.
[79] Extracts of the notes of the meeting capture Ms Lecaude’s explanation for her actions including as follows:
“…My concerns is that behavioural issues towards me were quite severe. I made a goodwill gesture. I was asked because of his family and mortgage etc. not to ·proceed with the compliant. To help him to keep the job which I did. I left everything behind and actually we started communicating quite well. But then from my point of view, for a person who has got behavioural issues, aggressive behaviour, anger management issues to apply for a management role and to actually become a direct IBM working with our team. You know I was actually very upset if there are any Managers that supported his application and gave him the reference. Because Harry is, I didn’t mention this in my letter to Rob but he is the weakest link in the team. He can’t read I/cs, makes mistakes in every transaction, ok. He makes mistakes in every single transaction and for the job its ok. But when he applies for a promotion to have behavioural issues and competence issues and if there are any managers that can support his application, then that is a real issue. Because Rahul was an IBM who came to us and we worked as a team. And Harry in this role is an issue for the team.”
[80] I note that there is no evidence that confirms Ms Lecaude’s statement above that she was asked by Westpac not to proceed with the complaint against Mr Grisdale. In fact self-evidently she did proceed with the complaint. Her complaint was investigated and outcomes were decided as detailed in Westpac’s letter to her dated 9 December 2016 and Mr Grisdale received a formal warning. I do not accept what Ms Lecaude said about this was correct.
[81] Following this discussion with Ms Lecaude a meeting was arranged with her on 6 September 2017 which was attended by Ms Coutinho, Ms Lecaude, Mr Bleasdale and Mr Bond. At that meeting she was provided what was in effect a show cause letter of the same date. The letter was explained to her in summary and she was asked whether she wanted to put her views in response which she did.
[82] Ms Coutinho’s evidence in chief was that Ms Lecaude response was that:
• Ms Lecaude did not accept she had breached confidentiality or acted unethically or improperly in emailing Mr Di Carlo as she did.
• Ms Lecaude repeatedly referred to Westpac’s Whistleblower Policy and seemed to believe she had a duty to convey the information to Mr Di Carlo.
• Ms Lecaude said that Mr Di Carlo in her view needed to know that he was potentially hiring somebody who was not the appropriate candidate or words to this effect.
• Ms Lecaude said she was justified in doing this because she had no confidence in the company’s management and that we had not acted in her best interests.
• Ms Lecaude repeatedly said that the investigation into Mr Grisdale’s behaviour was not closed.
[83] The response to the show cause letter was received from Ms Lecaude’s lawyer on 11 September 2017.
[84] Having reviewed that letter, and considering all the facts, Ms Coutinho’s view was that Ms Lecaude’s misconduct was serious and that her employment should be terminated. Ms Coutinho’s view was also that Ms Lecaude had not been entirely open in her explanations as to why she sent the emails to Mr Di Carlo. She believed that Ms Lecaude had acted vindictively against Mr Grisdale. Her impression was that everything Ms Lecaude had said about her intention to act in the best interests of the company was said to mask a real motivation which was to get back at Mr Grisdale. She did not believe that Ms Lecaude was well-intentioned. She also did not believe that Ms Lecaude genuinely understood that the investigation was ongoing. She did not believe that Ms Lecaude was genuinely remorseful about what she had said about Mr Grisdale in the emails.
[85] Ms Coutinho’s evidence in chief was that, to this day, she does not think that Ms Lecaude has ever expressed appreciation of the wrongfulness of what she did. Her experience with Ms Lecaude is that she will not let go of things that have happened in the past, tends to hold grudges against individuals and never admits or acknowledges when she is wrong.
[86] Ms Lecaude was invited to a meeting on 15 September 2017 which Ms Lecaude attended alone without her lawyers. Mr Bleasdale spoke and explained to Ms Lecaude the outcome of Westpac’s considerations and that her employment was to be terminated. Ms Lecaude was asked whether or not she would prefer instead to resign as part of a mutual separation on specified terms but she did not take up this invitation.
[87] With respect to the role that Mr Grisdale had applied for, the evidence of Ms Coutinho was that this would not have involved him being Ms Lecaude superior and he would not have been involved in any performance review relating to Ms Lecaude. I accept this evidence over any contrary evidence on Ms Lecaude.
Mr Bleasdale
[88] The evidence of Mr Bleasedale was that he has been employed in his current role since he began at Westpac in 2010. Ms Coutinho reports to him.
[89] Mr Bleasdale does not have direct operational dealings with Ms Lecaude. However he had become aware from Ms Coutinho that there was some degree of conflict between Ms Lecaude and Mr Grisdale.
[90] Mr Bleasdale says he had been told by Ms Lecaude and members of the sales team that Ms Lecaude often came across to others as quite forceful and she was not known to taking directions well.
[91] He was aware that mediation had been attempted between Ms Lecaude and Mr Grisdale and that towards the end of 2006, Ms Smith from HR in Perth was appointed to investigate allegations that Ms Lecaude had made against Mr Grisdale.
[92] In August 2017, he was made aware of the emails that Ms Lecaude had sent to Mr Di Carlo. His evidence was that when he first read them he was quite shocked and felt that they bordered on being libellous towards Mr Grisdale. Being aware of the conflict between Ms Lecaude and Mr Grisdale, his first thoughts on reading the email was that Ms Lecaude was attempting to get back at Mr Grisdale.
[93] Having decided there should be a disciplinary procedure initiated, a discussion was held between him, Ms Lecaude and Ms Coutinho on 11 August 2017 and notes were taken of this by both him and Ms Coutinho. His evidence is he is confident that the final notes accurately reflect the discussion. 21
[94] After this discussion, having heard Ms Lecaude’s reasons for sending the emails to Mr Di Carlo, Mr Bleasdale’s impression of her was not particularly good. He felt that she had acted vindictively and in breach of confidentiality in an attempt to disadvantage Mr Grisdale. During the discussions, Ms Lecaude had focused heavily on her past conflicts with Mr Grisdale and was scathing of his abilities. She kept repeating the idea that she had been wronged and that she did not consider it fair that the possibility existed that Mr Grisdale could somehow now be on a more senior role. Nothing that Ms Lecaude had said in the meeting from his perspective justified her conduct and he also did not believe she had expressed herself honestly in her emails to Mr Di Carlo.
[95] His evidence was that at the meeting on 6 September 2017, Ms Lecaude was given the opportunity of commenting on the possible termination of her employment. In response she said she felt that she was acting in the interests of the company and that she was a whistleblower. Ms Lecaude repeatedly insisted that in her view the investigation into Mr Grisdale’s alleged conduct was not over, although Mr Bleasdale struggled to understand why this was in any way relevant to her conduct.
[96] Following this meeting, a letter was received from Ms Lecaude’s lawyers on 11 September 2017. Mr Bleasdale read the letter. Having done so he remained of the view that Ms Lecaude had acted vindictively with the intention of disadvantaging Mr Grisdale in relation to his job application.
[97] Mr Bleasdale later met with Ms Coutinho and the responsible Case Manager, Ms Aimee Quintel, and they discussed the letter from Ms Lecaude’s lawyers and the way forward and they were of the view that Westpac should proceed with the termination of Ms Lecaude’s employment. He took on board the considerations of Ms Lecaude’s age and the fact that she had been with Westpac for a long time but did not feel those matters outweighed the severity of Ms Lecaude’s conduct or supported a conclusion that dismissal with notice was not appropriate.
[98] His evidence was that he believed that Ms Lecaude’s conduct was reprehensible and completely at odds with core Westpac principles.
[99] At the final meeting on 15 September 2017, when Ms Lecaude was advised she would be terminated, she was offered the option of resigning in order to allow her to leave without the burden of having been dismissed for misconduct. She was given overnight to consider that option but she chose not to resign and her termination notice then stood.
[100] Under cross-examination, Mr Bleasdale agreed that if Mr Grisdale had have been successful in being appointed to the position of IBM, Ms Lecaude could be receiving some work and instructions from him. 22 However as to Ms Lecaude trying to protect herself from being potentially junior to Mr Grisdale, Mr Bleasdale did not agree this was the case because she wouldn’t be reporting to Mr Grisdale if he had of been successful in obtaining that role. The role he was seeking was a management position outside of Ms Lecaude’s particular unit. He would not be senior to her and she would not report to him.23 I accept this evidence in full.
[101] I note the evidence is that on a number of occasions Ms Lecaude has expressed her concern that if Mr Grisdale was appointed to the IBM position he would be her manager. I accept the evidence of Mr Bleasdale and Ms Coutinho that this was not a correct characterisation of the situation. I find that if Mr Grisdale had been successfully appointed to the IBM position he would not be Ms Lecaude’s manager, she would not report to him and he would not be involved in performance reviews of her.
[102] The position Mr Grisdale was applying for was previously occupied by Mr Rahul Shah, which Ms Lecaude was aware of, and he had never been her manager as the IBM. 24
[103] Considering all the evidence I find that at the time she sent her emails to Mr Di Carlo, Ms Lecaude had no reason to believe that whoever occupied the IBM position would be her manager.
[104] Mr Bleasdale confirmed under cross-examination that his impression from the discussion with Ms Lecaude on 11 August 2017 was that she didn’t want Mr Grisdale to progress. 25
Ms Smith
[105] Ms Smith commenced employment with Westpac in April 2015.
[106] In 2016, Ms Smith was tasked with conducting an investigation into the formal grievance that was raised by Ms Lecaude about Mr Grisdale. She conducted interviews with Ms Lecaude, Mr Grisdale and another of their colleagues. When she met with Ms Lecaude it was a lengthy interview, approximately one and a quarter hours, and she asked Ms Lecaude to send her certain documents.
[107] Ms Smith’s experience of the investigation was that both Mr Grisdale and Ms Lecaude came across very forcefully and had firm views about what had happened and who was to blame. Ms Lecaude also had a lot to say about her role and how she perceived Mr Grisdale in his role.
[108] Ms Smith’s view of Mr Grisdale is that he was a strong character and at times quite fiery. On occasions during her interviews she had to calm him down. He came across as being very frustrated and offended by the allegations particularly in relation to him being a racist.
[109] Ms Smith’s view of Ms Lecaude was that she was opinionated and dogmatic and presented as a person who is not prepared to admit any faults. She had an air of superiority about her and repeated constantly how she felt she was the strongest performer in the team and was at times extremely critical of Mr Grisdale’s ability. In the face of this, it was at times difficult to bring Mr Lecaude back to the substance of her grievance and the facts relevant to it.
[110] The outcome meeting was held on 9 December 2016 and Ms Smith was present for just over the first hour but it apparently took two and a half hours. Ms Smith talked through her findings and tried to explain to Ms Lecaude what she had done and how she had reached her conclusions. Ms Lecaude was not at all accepting of the findings and was very defensive.
[111] Ms Smith’s evidence was that during the meeting Ms Lecaude continued to maintain that Mr Grisdale had behaved improperly and she repeatedly said the only outcome she would have been prepared to accept was the termination of his employment. It was made clear to her Westpac did not consider that termination was warranted.
[112] Ms Lecaude rejected the option of further mediation with Mr Grisdale.
[113] During that meeting, Ms Lecaude kept reiterating her view that she was the strongest performer in the team whereas Mr Grisdale she said was a poor performer. She persisted with this commentary in spite of being repeatedly told that his performance was not the issue.
[114] Under cross-examination Ms Smith denied that when she left the meeting she told Ms Lecaude that she would get back to her about some of the issues. 26 Ms Smith’s evidence was that she said words to Ms Lecaude to the effect that the investigation was finished and closed and there was not any ongoing element to the investigation or complaint.27
[115] In a subsequent meeting with Mr Grisdale, Ms Smith says that he was ultimately accepting of the fact that there had been occasions where he had been not able to control his frustrations and when he had acted unprofessionally towards Ms Lecaude. He was unhappy with the fact that he received a formal warning but did say he would be prepared to engage in a mediation process in order to repair his relationship with Ms Lecaude.
[116] After Ms Smith left the meeting it continued with Ms Lecaude and Mr Ousley for approximately one more hour.
[117] Following this, Ms Smith’s evidence is she had nothing more to do with these issues until she received an email from Ms Lecaude about nine months later dated 30 August 2017. This email 28 from Ms Lecaude requested HR provide her with a final report that she says she was told at the 9 December 2016 meeting would be forwarded to her. Ms Smith replied the same day stating that the matter was closed on the 9 December 2016 and Ms Lecaude was not advised she would be given a final investigation report as that report is confidential and was not given to either party. Ms Lecaude replied by email disputing this and Ms Smith replied repeating what had occurred and confirming that it was her view that the matter was closed nine months ago.
[118] Ms Smith’s evidence was that at the time of responding to Ms Lecaude’s emails she was aware that Ms Lecaude had emailed Mr Di Carlo and made various statements about Mr Grisdale.
[119] Ms Smith’s evidence was that her immediate reaction to Ms Lecaude’s email to her was that Ms Lecaude was now trying to cover herself by saying she thought the investigation had not been closed out.
[120] Having considered all of the witnesses’ evidence in this case there are a number of observations and findings that can be made.
[121] At the hearing, Ms Lecaude presented as a confident and very assertive witness, however, there are reasons to doubt some of her evidence. The evidence she gave at hearing explaining why she sent the two emails to Mr Di Carlo was different from what she first explained in the meeting with Ms Coutinho and Mr Bleasdale on 11 August 2017, which itself was different from her verbal response to the show cause letter on 6 September 2017, which was also different from her lawyer’s correspondence in reply to the show cause letter sent a month later on 11 September 2017.
[122] The notes of the discussion Ms Lecaude had with Ms Coutinho and Mr Bleasdale on 11 August 2017 disclose the following as the reasons Ms Lecaude originally gave for sending the emails to Mr Di Carlo:
• She was concerned because the case against Mr Grisdale in HR was still open.
• Mr Grisdale’s behavioural issues towards her were quite severe.
• She was upset that there may be managers supporting Mr Grisdale’s application for the IBM position.
• Mr Grisdale is the weakest link in the team and makes mistakes in every transaction.
• The real issue was for any manager to have supported his application when Mr Grisdale has behavioural and competence issues.
• She was concerned that the IBM role was directly connected with her team. He could become her manager.
• She thinks it is immoral to promote somebody with behavioural issues.
• She thought it was her duty.
[123] I note the concerns Mr Grisdale would become her manager seemed to have been in regards to her view of his lack of competence rather than a potential that he could behave badly towards her in future.
[124] I note that she did not mention the Whistleblower Policy.
[125] On 6 September 2017 during the meeting when Ms Lecaude was provided with an opportunity to respond to the show cause letter which had been summarised and provided to her, she explained her reasons for sending the emails to Mr Di Carlo were:
• She referred to Westpac’s Whistleblower Policy and believed she had a duty to convey the information to Mr Di Carlo.
• She said that Mr Di Carlo needed to know he was potentially hiring somebody who was not the appropriate candidate.
• She said she was justified in doing this because she had no confidence in the company’s management and that they had not acted in her best interests.
• She said that the investigation into Mr Grisdale’s behaviour was not closed.
[126] I note she did not raise a concern that Mr Grisdale would become her manager nor that he would be in a position where he could behave badly towards her in future.
[127] I note she did not raise concerns a manager may have supported his application.
[128] The letter from her lawyer dated 11 September 2017 explained her reasons for sending the emails to Mr Di Carlo were:
• She believed her complaint against Mr Grisdale remained open and unresolved.
• She understood an employee could not apply for a new position whilst being the subject of a complaint being dealt with by HR as such an application required the support of the relevant manager.
• She understood that if contrary to Westpac’s policy this it been overlooked during the application process she had a duty to report it. This was a misunderstanding of training provided called “Doing the Right Thing in Westpac”.
[129] I note she did not raise a concern that Mr Grisdale would become her manager nor that he would be in a position where he could behave badly towards her in future.
[130] At the hearing of this matter, in her witness statement and under cross-examination, Ms Lecaude explained her reasons for sending the emails to Mr Di Carlo were:
• Mr Grisdale would be in a superior position to her and would have opportunity to treat her badly. 29
• She assumed some of the managers gave him a reference to go for this promotion and she had a duty to blow the whistle. 30
[131] I note at the hearing she did not rely on her belief that the HR investigation into her complaint remained open.
[132] I note at the hearing she did not rely on concerns about Mr Grisdale’s abilities or performance.
[133] It is readily apparent that on different occasions since concerns were first raised with her in August 2017 about her sending the two emails to Mr Di Carlo Ms Lecaude has given a varying mix of explanations for her actions.
[134] Much of the witness evidence in this matter is not in conflict. However, to the extent that the evidence of Ms Lecaude conflicts with that of the other witnesses, I prefer the evidence of Ms Coutinho, Mr Bleasdale and Ms Smith over Ms Lecaude.
[135] While Ms Lecaude was giving her evidence at the hearing her enmity towards Mr Grisdale was openly displayed. Her criticism of him extended well beyond legitimate complaint about the way he had behaved towards her in the past. Ms Lecaude was repeatedly critical of his ability and performance and expressed her personal opinions about this in a disparaging manner.
[136] With respect to the content of the two emails Ms Lecaude sent to Mr Di Carlo I make the following findings.
[137] In regard to Ms Lecaude’s first email:
• It was not true that there was an “...open case with HR against Harry...”.
• It was not true that “…Harry is on probation for behaviour.”
• It was not true that “My Managers asked me not to proceed with the Complaint in order for Harry to keep his job.”
• It had not been substantiated that Mr Grisdale was “...racist...”.
[138] In regard to Ms Lecaude’s second email:
• It was not true that “...the Complaint was substantiated...” .
• It was not true that “...Harry was supposed to go through the anger management program.”
• It was not true that “I agreed to not proceed with the complaint...”.
[139] I find that there was no reasonable basis for Ms Lecaude to believe that there was an open case with HR against Mr Grisdale.
[140] I also find Ms Lecaude knew that some of the particularised allegations she had made against Mr Grisdale had not been substantiated.
[141] I find that the two emails Ms Lecaude sent to Mr Di Carlo misrepresented what had occurred with respect to her complaint and the content of the emails was likely to damage Mr Grisdale’s interests.
[142] For the Applicant it is submitted that the emails ought not to have been sent. It was wrong. The Applicant spoke to her manager Ms Coutinho on 11 August 2017 and agreed that she had crossed the line. She apologised and sent an email of apology.
[143] It is submitted on behalf of the Applicant the emails were sent when she was stressed and concerned that should Mr Grisdale get the position that he would have some ascendency over her and be directing her work. There is some substance to this as Mr Bleasdale confirmed that some work would be coming from the sales team to her.
[144] The Respondent considered the emails vindictive, on the basis that the emails were trying to prevent Mr Grisdale from gaining a position.
[145] This however, the Applicant submits, was a very narrow view as it had no regard whatsoever to the long history of bullying and harassment to which the Applicant had been exposed to. It was a protective move by the Applicant as she had already seen Mr Grisdale’s behaviour as a colleague and believed it would be much worse if he had ascendency over her and able to direct her work albeit just some work.
[146] The Applicant should be given the benefit of the doubt for her belief that there was still an open case against Mr Grisdale at HR.
[147] The emails breached confidentiality and contained inaccurate information. They were internal emails. They were sent against a background of awful misconduct by Mr Grisdale towards the Applicant. They were not sent in a vacuum but in surrounding circumstances which brought the Applicant to her wits end. She believed that management would not protect her and she took what action she thought would be appropriate to protect herself from him.
[148] The Applicant contends that there was no valid reason for her dismissal and that the Respondent falls at the first hurdle of section 387(a) of the Act. The emails constitute a reason, but its validity is destroyed by a fulsome consideration of the overall circumstances leading up to the conduct complained of. In not considering the surrounding circumstances and the history between the Applicant and Mr Grisdale the reason relied upon was not sound and defensible as it is required to be to resist an unfair dismissal application.
[149] The Respondent failed the Applicant in its duty to protect her and provide a safe place to work as the law requires. She was bullied by Mr Grisdale who seemed to approach his workplace responsibilities in a cavalier manner. Not only did he breach confidentiality in the email of 13 September 2016 he boasted that his managers had dismissed the complaints.
[150] Furthermore in the face of the Applicant’s formal grievance lodged with HR on 29 July 2016, Mr Grisdale continued his bullying conduct unabated. This is supported by the finding against him regarding his behaviour in October 2016.
[151] If the Commission were to find that there was a valid reason, it is entitled to take all of the surrounding circumstances into account under section 387(h) of the Act and find that the dismissal was harsh in all the circumstances particularly having regard to the lead up to the conduct.
[152] Finally given that Mr Grisdale breached confidentiality and received a written warning, the same penalty ought to have been afforded the Applicant particularly given the circumstances which we have described in these submissions.
[153] The Applicant seeks reinstatement, lost wages from the date of dismissal until reinstatement and an order for continuity of service.
[154] In relation to Ms Lecaude’s communications with Mr Di Carlo on 8 and 9 August 2017, the following important aspects of Ms Lecaude’s evidence bear emphasis:
(a) Ms Lecaude was familiar with the Respondent’s key policies, including the Code.
(b) Ms Lecaude had been trained in relation to the Code and acknowledged the importance of the Respondent’s core values as set out in the Code.
(c) Ms Lecaude was also familiar with the Respondent’s Grievance Policy and the core principle of confidentiality which underpinned the use of that policy.
(d) When initiating her grievance against Mr Grisdale, Ms Lecaude’s intention was to engage the Respondent’s HR department in a factual investigation into Mr Grisdale’s conduct with a view to them making a finding about Mr Grisdale’s conduct.
(e) In relation to that investigation and quite apart from her awareness of the Respondent’s Grievance Policy per se, Ms Lecaude was told that the investigation was confidential. In point of fact, Ms Lecaude had requested that the subject matter of the investigation remain “private”.
(f) Following the conduct of the investigation, Ms Lecaude was again reminded of her confidentiality obligations at the close-out meeting held on 9 December 2016. Ms Lecaude also acknowledges being reminded of that requirement in the Respondent’s close-out letter dated 9 December 2016.
(g) Although Ms Lecaude was at all relevant times aware of her right to review the outcome of the grievance process that she had initiated, Ms Lecaude took no steps to initiate such a process.
(h) Quite apart from the absence of any formal review against the outcome of her grievance, Ms Lecaude also took no steps to either follow up or make any enquiries regarding the progress of any further investigation (or related conduct) following the close-out meeting of 9 December 2016.
(i) Regardless of what Ms Lecaude said regarding the continuation of the investigation beyond 9 December 2016, Ms Lecaude conceded that in March 2017 Ms Coutinho informed her that the investigation was at an end and that if she was unhappy with the outcome she was to take the matter up with HR, something she never did.
[155] It is submitted that this evidence demonstrates quite clearly that Ms Lecaude knowingly breached confidentiality. It also demonstrates that Ms Lecaude is not to be believed where she asserts that, at the time of the communication to Mr Di Carlo, she genuinely believed that the investigation was open.
[156] Even accepting that Ms Lecaude may have laboured under this impression following the outcome meeting of 9 December 2016 any apparent uncertainty would have been cleared up following her conversation with Ms Coutinho in March 2017.
[157] This evidence also serves to demonstrate the factual inaccuracy of Ms Lecaude’s email dated 8 August 2017, in which she informed Mr Di Carlo that there was “an open case with HR against Harry for his abusive behaviour towards me”. The long and the short of the matter is that Ms Lecaude was all but compelled to falsely assert that she believed the investigation remained open because that was the only way she could legitimise the fact that she had referred to an ongoing investigation during the course of her correspondence with Mr Di Carlo.
[158] In relation to the actual communication with Mr Di Carlo, it is submitted that Ms Lecaude’s own evidence clearly points to the fact that Ms Lecaude was aware that the following further elements of her communication with Mr Di Carlo were not accurate:
(a) In view of the content of the outcome letter, Ms Lecaude could not fairly have believed that the relevant “allegations were proved”.
(b) At no point did Ms Lecaude’s managers ask her “not to proceed with the complaint in order for Harry to keep his job”.
(c) Ms Lecaude, who was aware that Mr Grisdale had been exonerated in relation to the allegation of “racism”, intended to convey that Mr Grisdale was in fact a racist and she did so on the basis that she disagreed with Ms Smith’s outcome.
(d) Ms Lecaude’s suggestion, in the second communication to Mr Di Carlo, that the complaint was substantiated was obviously to Ms Lecaude’s knowledge not accurate. So too the allegation that Mr Grisdale had been required to undertake anger management counselling.
[159] On the strength of these facts, it is difficult to comprehend on what factual basis Ms Lecaude continues to assert that there was an absence of a valid reason. Ms Lecaude also plainly breached confidentiality and communicated misleading and incorrect facts about Mr Grisdale. Ms Lecaude also unnecessarily commented on Ms Grisdale’s competence and, to exacerbate matters, persisted in her character assassination in spite of the fact that Mr Di Carlo had sent a clear message that she was to pursue her concerns through other avenues.
[160] The remaining issue is whether or not, in all the circumstances, the dismissal was nevertheless too harsh. In this particular regard, the critical question centres upon whether or not there are significant mitigating circumstances which properly serve to explain, or at least partially justify, Ms Lecaude’s conduct.
[161] It is submitted that there was no basis upon which Ms Lecaude could assert that she acted out of some allegiance to duty to the Respondent, or that her conduct was justified on account of the fact that she genuinely held the view that the investigation into Mr Grisdale’s conduct was still open.
[162] Rather, what the evidence reveals is that Ms Lecaude’s explanation for her conduct was manifestly lacking in credibility and that the overall probabilities point towards Ms Lecaude having acted out of a vindictive streak and in an attempt to disadvantage Mr Grisdale’s pursuit of a promotional opportunity.
[163] The Respondent submits that, on a conspectus of all the evidence, the aggravating facts and circumstances far outweigh any mitigation which may be associated with Lecaude’s age and length of service.
[164] Westpac accordingly persists in its submission that the application ought to be dismissed.
[165] Section 387 of the Act sets out the criteria the Commission must take into account in deciding whether a dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[166] In August 2017, Ms Lecaude sent two emails to Mr Di Carlo of Westpac regarding Mr Grisdale, a fellow employee, who worked in the same team as Ms Lecaude.
[167] Mr Di Carlo was the decision-maker considering Mr Grisdale’s application for a job in a different part of Westpac from where Ms Lecaude and Mr Grisdale worked.
[168] Both of the emails Ms Lecaude sent misrepresented what had occurred following a complaint she made about Mr Grisdale which had been investigated by Wesptac. A number of the statements made by Ms Lecaude in each of her emails were untrue.
[169] What Ms Lecaude wrote in her emails would have been likely to damage Mr Grisdale’s prospects of succeeding in his application for the new job.
[170] Ms Lecaude has given a number of reasons, which have changed over time, as to why she sent the emails.
[171] Considering these explanations it is firstly clear, as I have found above, that there was no reasonable basis for Ms Lecaude to believe that there was an open case with HR against Mr Grisdale. Even if Ms Lecaude truly believed this was the situation that was not an explanation, let alone a justification, for sending the emails to Mr Di Carlo.
[172] Secondly Ms Lecaude was under no duty to report any of what she included in the emails she sent to Mr Di Carlo, and so, I do not accept that she was acting as a whistleblower. I do not accept that Ms Lecaude was acting with the bests interests of Westpac in mind when she sent the emails.
[173] There was also no basis for Ms Lecaude to believe that if Mr Grisdale was successful in gaining the IBM job he would be in a position to exercise power over her such that she would be at risk of further bad behaviour by him. Even if Ms Lecaude truly believed this was the situation that would not justify her actions and obviously could not justify her misrepresenting the facts in the way she did in both emails.
[174] I do not accept that sending the emails was an ill-considered action caused by her being stressed or upset. This is because the first email was sent by Ms Lecaude late on a Tuesday afternoon and Mr Di Carlo replied that afternoon expressing concern about the content of her email, suggesting she discuss this with HR and advising her he had forwarded her email to Ms Coutinho. The next day, with full knowledge of the concerns Mr Di Carlo had expressed the previous day about her first email, Ms Lecaude at 9:06 a.m. sent a second email which included additional untrue statements about the complaint she had made against Mr Grisdale and its outcome. Ms Lecaude had the time and opportunity to reflect on the inappropriateness of her first email but she did not and made further misrepresentations. Objectively there was no obvious reason in any event for her to be stressed or upset.
[175] None of the reasons Ms Lecaude has given for sending the two emails amounts to mitigating circumstances which excuse her sending the particular emails she did.
[176] Self-evidently, Ms Lecaude intended to damage Mr Grisdale’s prospects of succeeding in his application for the vacant IBM role. Sending the particular emails in all the circumstances was a valid reason for Ms Lecaude’s dismissal.
[177] Further, Ms Lecaude knew information she had included in her emails to Mr Di Carlo, to the extent that it was true, was confidential. She was aware that the Grievance Process required confidentiality. The outcomes letter dated 9 December 2016 expressly said this and expressly reminded her of her obligations to keep its details confidential.
[178] Ms Lecaude breached confidentiality by sending each email and this was a breach Westpac’s Code.
[179] Ms Lecaude’s breach of the Code was also a valid reason for her dismissal.
[180] Ms Lecaude was notified of the reasons Westpac was considering dismissing her when it provided her with the show cause letter.
[181] Ms Lecaude did have an opportunity to respond to the reasons why Westpac was considering dismissing her. She responded to those reasons verbally at the meeting, after the contents of the letter had been summarised to her. She also responded via her lawyer’s written response some days later.
[182] There was no unreasonable refusal by Westpac to allow her to have a support person present at any discussions.
[183] The dismissal was not due to her work performance and so warnings for unsatisfactory performance were not relevant.
[184] Westpac is a large employer which has human resource management specialist and expertise and the procedure followed leading up to Ms Lecaude’s dismissal properly reflected this.
[185] Ms Lecaude has worked with Westpac since 2007.
[186] There is no suggestion that Ms Lecaude has prior similar instances of misconduct during her period of employment.
[187] Ms Lecaude has worked in senior roles for a number of years and was fully aware of Westpac’s requirements and policies. She is an employee who was quite capable of, and in fact did, raise concerns with her managers, when she felt that was necessary about matters that affected her and Westpac had properly investigated and reasonably responded to her grievance against Mr Grisdale.
[188] In all the circumstances I am satisfied that the dismissal of Ms Lecaude was neither harsh, unjust nor unreasonable.
[189] Ms Lecaude was not unfairly dismissed.
[190] Consequently this application will be dismissed and an Order [PR601867] to that effect will issue in conjunction with this decision.
COMMISSIONER
Appearances:
P Mullally of Workclaims Australia for the Applicant.
R Wade of Ashurst Australia for the Respondent.
Hearing details:
2018.
Perth:
January 8.
Final written submissions:
Applicant, 1 February 2018.
Respondent, 24 January 2018.
Printed by authority of the Commonwealth Government Printer
<PR601755>
1 Transcript at PN45 to PN49.
2 Ibid., at PN52 to PN55.
3 Exhibit R1 at pages 105 to 107.
4 Ibid., pages 108 to 122.
5 Transcript at PN119 to PN126.
6 Exhibit A1at paragraph 33.
7 Exhibit R1 at pages 43 to 46.
8 Transcript at PN135.
9 Ibid., at PN162.
10 Ibid., at PN240 to PN243.
11 Ibid., at PN236.
12 Ibid., at PN170.
13 Ibid., at PN181.
14 Ibid., at PN171 to PN181.
15 Exhibit A1at paragraph 55.
16 Ibid., at paragraph 56.
17 Exhibit A2 at pages 47 to 49.
18 Transcript at PN208 to PN212.
19 Ibid., at PN201 to PN205.
20 Exhibit R1 at pages 63 to 67.
21 Ibid.
22 Transcript at PN547 to PN548.
23 Ibid., at PN566 to PN575.
24 Exhibit R1 at page 63.
25 Transcript at PN576.
26 Ibid., at PN660 to PN661.
27 Ibid., at PN662 to PN663 and PN670 to PN674.
28 Exhibit R1 at pages 68 to 69.
29 Transcript at PN196.
30 Ibid., at PN198.