[2019] FWC 2202
FAIR WORK COMMISSION

DECISION



Fair Work Act 2009

s.394—Unfair dismissal

Saurabh Malhotra
v
Commonwealth Bank of Australia
(U2018/9840)


COMMISSIONER BISSETT

MELBOURNE, 11 APRIL 2019

Application for an unfair dismissal remedy.

[1] Mr Saurabh Malhotra (Applicant) was employed by the Commonwealth Bank of Australia (Respondent) as a Senior Home Lending Specialist. He commenced employment on 23 November 2009. On 4 September 2018 the Applicant’s employment was terminated following an investigation into his conduct. The Applicant has now made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Prior to the hearing I granted permission to the Respondent to be represented by a lawyer or paid agent, being satisfied that the requirements of s.596(2)(a) were met.

[3] Prior to the hearing, having heard from the parties, I determined that the matters should be dealt with by way of hearing.

Background

[4] The background to this matter are summarised in the submissions of the Respondent. I have generally adopted that background below although have included additional matters from the Applicant’s submissions.

[5] The Applicant worked at the Brunswick Branch of the Commonwealth Bank (Brunswick Branch).

[6] The Applicant was assisting a customer 1 and the customer’s husband in relation to the settlement of the re-financing of a home loan. The transaction associated with this involved the establishment of an offset account. An offset account operates to reduce the value of the loan amount for the purposes of calculating interest owed.

[7] On 9 July 2018 the Applicant met with the customer but was unable to locate the hard copy of the customer’s loan documentation.

[8] On 11 July 2018 the Applicant “pre-emptively” 2 opened a “smart access” account in the name of the customer without the consent of the customer to “save on time during [his] appointment with the Client.”3 He did not alter the smart access account to an offset account.

[9] The Respondent’s account opening procedures for a new account requires the consent of the customer and must not be originated over the telephone. 4

[10] On 11 July 2018 the Applicant made an entry into the customer’s “CommSee” 5 profile indicating that the customer had attended the Brunswick Branch “to set up another offset account.” He made the entry “about the interaction that [he] anticipate[d] would occur…to save on time” and because he thought he might not have time to do so after the meeting as the meeting was close to closing time.6 The customer, however, did not attend the Branch on that day.

[11] On 12 July 2018 the Applicant provided the customer with information about possible fraudulent activity on her offset account. 7

[12] On 12 July 2018 the customer attended the Brunswick Branch where the Applicant apparently instructed her to transfer $560,000 from her offset account to the smart access account. The customer signed a “New Account Opening Form” to “formalise the opening of the offset [sic] account.” 8

[13] On 13 July 2018 the customer called the Respondent 9 and said that the Applicant indicated that there had been fraudulent activity on her account and transferred $560,000 from her offset account to the smart access account.

[14] Further, on 13 July 2018 the Applicant advised the customer that she could transfer the money back into her offset account on Monday 16 July 2018. 10

[15] On 13 July 2018 the Applicant’s sales target was calculated for the purpose of determining his bonus.

[16] The Applicant’s mother lived in India and had been ill since June 2018. On 13 July 2018 the Applicant returned to India to be with his mother who died on 15 July 2018.

[17] The Applicant returned to Australia on 12 August 2018 and returned to work on 13 August 2018.

The allegations and investigation report

[18] On 17 August 2018 the Applicant attended a meeting with the Group Fraud Management Services (or Group Investigations or GI) of the Respondent. The meeting was attended by the Applicant along with a support person (Mr Nathan Connell), Mr Richard Moran and Mr Philip Vivelis (Investigator) of the Respondent. Allegations were put to the Applicant at that meeting.

[19] Following that meeting the allegations were put to the Applicant in a letter dated 22 August 2018. 11 The letter said:

During the meeting [of 17 August 2018] you were advised that the Group was investigating the following allegations against you:

1. On 11 July 2018, you opened smart access account ending 4680 held in the name of [customer] without her consent.

2. On 11 July 2018, you created a false interaction on the CommSee customer profile of [customer].

3. Between 11 July 2018 and 13 July 2018, you provided [customer] with dishonest information relating to her Group held accounts, specifically relating to fraudulent concerns on her accounts.

4. In July 2018, you failed to lodge a data breach incident report regarding documents you misplaced relating to [customer’s husband] and [customer].

5. On 12 July 2018, you instructed [customer] to transfer $560,000.00 from her offset account ending 2677 to her smart access account ending 4680. This was in an attempt to manipulate your sales targets and gain recognition for a higher Home Loan funding amount.

6. On 17 August 2018, you were dishonest during your interview with GI.

[20] The letter of allegations advised the Applicant that if the allegations were substantiated it could constitute a breach of:

  The “Our Commitments” Policy;

  I source: How to open an account; and

  The Notifiable Data Breach Scheme.

[21] The letter of allegations detailed the contact the Applicant had with the customer by phone and in person on 11, 12 and 13 April 2018. The letter also set out the response of the Applicant given on 17 August 2018 and the outcome of further investigations by the Respondent.

[22] The Applicant was invited to provide a written response to the allegations by 27 August 2018.

[23] A report of the investigation into the allegations against the Applicant was provided to Mr David Castle, Acting General Manager of Retail Sales and Service of the Respondent on 30 August 2018. 12

[24] The report found that:

  Allegations 1, 2, 3,5 and 6 were substantiated.

  Allegation 4 was not able to be substantiated.

[25] The report also noted mitigating circumstances in relation to the illness of the Applicant’s mother at the time of the matters under investigation.

Dismissal

[26] On 3 September 2018 the Applicant was asked to attend a meeting the next day with Ms Sheree Ralston, Area Manager, Inner Metropolitan Melbourne Region of the Respondent. The Applicant was advised he could bring a support person to the meeting (which he did).

[27] Ms Ralston informed the Applicant at that meeting that his employment had been terminated. He was provided with a letter of termination.  13

[28] The termination letter 14 set out the allegations and advised that allegations 1, 2, 3, 5 and 6 were substantiated.

[29] The letter said in part that:

Of most concern was your conduct in being dishonest to a Group customer when you advised her there was fraudulent activity on her account in an attempt to get her to move her money into another account, when there was no fraudulent activity. As a result of your actions, the customer suffered a financial loss when the money was moved out of her offset account. Further, your actions resulted in a customer complaint and exposed the Group to financial loss in having to compensate Customer A. In addition to the financial loss to the Group this conduct placed the Group’s brand and reputation at risk.

We consider your dishonest behaviour to not only the Group, but a Group customer, to be extremely serious. As you can appreciate, integrity and honesty are of the utmost importance in the banking industry and actions contrary to these values will not be tolerated.

[30] The letter found that the Applicant’s conduct was in breach of:

  The “Our Commitments” Policy;

  I source: How to open an account; and

  The Notifiable Data Breach Scheme.

[31] The Applicant was advised that he was being dismissed immediately but would be paid four weeks’ salary in lieu of notice.

Harsh, unjust or unreasonable

[32] As is necessary and pursuant to the FW Act I am satisfied that the Applicant was dismissed, that his dismissal was not a genuine redundancy and that the Respondent is not a small business such that the Small Business Fair Dismissal Code has no application. I am also satisfied that the application was made within time.

[33] In deciding if the Applicant was unfairly dismissed it is necessary therefore to determine if his dismissal was harsh, unjust or unreasonable.

[34] Section 387 of the FW Act states as follows:

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.

[35] In determining if the dismissal was harsh, unjust or unreasonable it is necessary that I take into account each of the criteria set out in s.387 of the FW Act. This requires a consideration of each of the matters as it relevantly applies in the circumstances.

Section 387(a) -a valid reason for dismissal related to capacity or conduct

[36] A reason for dismissal will form a valid reason if it is “sound, defensible or well founded.” 15 Where the reason for dismissal involves misconduct it is necessary to determine, on the basis of the evidence before the Commission, if that misconduct occurred.16

[37] It is therefore necessary that I consider the evidence before me in relation to each of the allegations. In reaching my conclusion the standard of proof required is the balance of probabilities. 17

Allegation 1

[38] Allegation 1 is that on 11 July 2018 the Applicant opened a smart access account in the name of [the customer] without her consent.

[39] In his written response to the allegations 18 the Applicant said that:

  He opened the account before meeting with the customer which was scheduled for 11 July 2018. It was opened “to be ready if needed because of a possible breach of information”;

  The customer did not attend the Branch on 11 July 2018;

  The intent in opening the account was to “provide customer a quick pathway to secure the funds in case there is a breach…I was merely looking out to help” the customer;

  Opening the account was “an oversite” [sic].

[40] The Applicant agreed that he had uploaded the customer’s documents to CommSee by 23 June 2018 and that on 9 July 2018 he knew he could access those electronic documents. 19

[41] The Applicant agreed that he opened the account prior to the customer coming into the bank. 20 . He said that, when he spoke to the customer on 11 July 2108 he told her that “[t]here might be fraudulent concerns”21 on her account and that “a new account needed to be opened.”22 The Applicant agreed that the customer did not come into the bank on 11 July 2018 but rather attended the following day on 12 July 2018 when she signed the necessary paperwork for the new account.

[42] I am therefore satisfied, on the basis of the response provided by the Applicant to the allegations, and his evidence in proceedings that he did open the smart access account without the consent of the customer.

[43] It is relevant that, in opening the smart access account, the Applicant did not take the necessary action to change it to an offset account – a process that was simple and would take little time.

Allegation 2

[44] Allegation 2 is that the Applicant created a false entry into the customer’s CommSee profile on 11 July 2018.

[45] The Applicant agreed that he created the entry in CommSee before the customer was to attend the bank (but ultimately did not attend) at 4.00 p.m. on 11 July 2018 23 although it is to be noted that the evidence of Mr Vivelis is that the customer told him she never said she would attend the bank on 11 July 2018.

[46] The Applicant says he pre-emptively created the entry as the appointment was late in the day and he did not think he would have time to make the entry after the customer left such an appointment. This excuse would appear to be contrary to evidence of the Applicant that he did occasionally work back after closing time such that there was no reason he could not have made the entry after the customer had left (had she attended) and the evidence of Ms Ralston that she observed the Applicant working after closing time. The brevity of the entry, 24 which could have taken very little time to complete, belies the reason given by the Applicant.

[47] Whatever the reason for doing so I am satisfied that the Applicant did create a false entry into the customer’s CommSee profile.

Allegation 3

[48] Allegation 3 is that the Applicant provided dishonest information to the customer in relation to fraudulent activity on her account.

[49] The Applicant gave consistent evidence that he told the customer that there “may be fraudulent concerns” (emphasis added) on her account. 25 When the customer asked him what these concerns may be he told her that he “needed to look into it” but did not tell the customer that he had misplaced documents relevant to her loan and accounts.26

[50] When asked whether he could elaborate to the customer what the concerns were the Applicant said that the “statement just came out just to buy some time.” 27

[51] I am satisfied that the Applicant told the customer that there may be fraudulent concerns on her account because he knew he had misplaced the hardcopy of her mortgage and associated documents and he needed time to find those documents.

[52] The evidence before me does not support a finding that there was any concern about fraudulent activity on the customer’s account. Further, the evidence supports a finding that the Applicant knew exactly what the problem was (he had lost the paperwork) but did not disclose this to the customer (or his manager), rather he let the customer believe there may be fraudulent activity on her account. He did so in circumstances where he knew the customer was “an anxious person.” 28

[53] I am therefore satisfied that the conduct in allegation 3 occurred.

Allegation 4

[54] This did not form a reason for dismissal and so does not need to be further considered.

Allegation 5

[55] Allegation 5 is that the Applicant instructed the customer to transfer $560,000 from her offset account into the (recently opened) smart access account in order to manipulate his sales targets and gain recognition for a higher home loan funding amount.

[56] The Applicant agreed that he did propose to the customer on 12 July 2018 that she transfer a substantial amount of money in her offset account to the newly created smart access account and the customer did so on that day.

[57] From 1 July 2018 there were changes to the bonus process and procedures for lenders of the Respondent. Ms Ralston gave evidence that lender KPIs had previously been tied to the total amount of funding across the loans written. The 1 July 2018 changes had the effect that the funds in an offset account worked to reduce the amount of funding written (the value of the loan) and hence how much was counted towards the lender’s KPIs. The calculation of the funding that would count towards a lender’s KPIs was calculated 14 days after the loan was funded with a further check 90 days later. The Applicant did not give contrary evidence as to the effect of the changes although there is some dispute as to when the changes took effect.

[58] Ms Ralston’s evidence is that the Applicant received information about the changes in June 2018 and that he also contacted a Ms Kirsty Grierson (Manager, Lender Coaching) about the impact of the changes. Ms Grierson sent an email dated 9 July 2018 to the Applicant which attached a document titled “Lending Performance Changes FY19.” In relation to the timing of the changes it said that “Lenders will be remunerated for home loan balances less any amount in an offset product 14 days after the funding date.”

[59] The Applicant says that the reference to “14 days” is a reference to 14 business days. He says that from the time the loan was funded (28 June 2018) until the date the customer transferred the money to the access account is 10 business days (sic) and he advised her to transfer the money back to her offset account on 13 July 2018 which was 11 business days later. He said the process would therefore not affect his sales target. 29

[60] The Respondent says that 12 July 2018 was the 14th day after the loan was funded and was the date on which any reduction of the funded amount against the offset account would be undertaken. The Respondent also stated that 13 July 2018 was the 15th day after the loan was funded so the return of $560,000 to the customer’s offset account on that date would not affect the Applicant’s bonus.

[61] I do not accept the Applicant’s assertion that the reference to “14 days” is a reference to 14 business days. The evidence before the Commission does not support such a conclusion. All of the correspondence in relation to changes to KPIs talks of 14 days.

[62] Fourteen days after the loan was funded was 12 July 2018. This is the date the “value” of the loan would be determined for the purpose of the Applicant’s KPIs. By arranging for the customer to transfer $560,000 out of the offset account and into a smart access account (which the Applicant says he forgot to change into an offset account) the value of the loan for the purposes of the Applicant’s KPIs was inflated by $560,000.

[63] I have considered the apparent coincidence of timing in conjunction with the failure of the Applicant to advise his manager of the missing documents (which he says precipitated his actions and interactions with the customer) or make a report to the relevant fraud group of the Respondent. 30 I have also taken into account that it appears that the Applicant made only one call to the customer on 13 July 2018 when he advised her she could transfer her funds back to her offset account and that this was at 4.49 pm,31 virtually at the end of the working day. I do not consider that the Applicant’s evidence that he told the customer at this time that if she had any concerns about her account she should contact the Respondent mitigates his actions.

[64] The Applicant provided an alternative explanation that the changes to the KPIs only affected loans written after 1 July 2018. The evidence before me, including that of Ms Ralston, does not support such a conclusion and I do not understand that it was put by the Applicant prior to the hearing of his application. I therefore reject this proposition.

[65] When I consider the totality of the events and evidence I am satisfied, on the balance of probabilities, that the Applicant did attempt to manipulate his sales targets to gain recognition of a higher funded amount. He did this by advising the customer that she should transfer $560,000 into a smart access account that he had failed to designate as an offset account and then advising the customer to transfer the money back to her off set account.

Allegation 6

[66] Allegation 6 is that the Applicant was dishonest in his interview with GI in relation to the manipulation of the loan funded amount.

[67] The Respondent says that if I find allegation 5 to be substantiated I must find allegation 6 substantiated.

[68] The Applicant says that he was honest in his interview with GI and disclosed honestly everything to them. He says that none of the mistakes he made could be taken to show he acted dishonestly.

[69] I am satisfied that the Applicant was less than frank in the answers he gave to Mr Vivelis. His assertion that he had not sought to manipulate his loans figure is disingenuous and misleading. I do not however consider that I need to make a finding that the Applicant was dishonest. It is not necessary for my decision.

Conclusion as to a valid reason

[70] Given my findings above I am satisfied that there is a valid reason for the dismissal of the Applicant.

Section 387(b) - whether the person was advised of that reason for dismissal

[71] The Applicant returned to work following the death of his mother on 13 August 2018. Ms Ralston’s evidence is that he was still clearly upset from his loss. For this reason he was not contacted until 16 August 2018 and advised that he was required to attend an interview with Mr Vivelis of GI the next day. Ms Ralston said that, when asked by the Applicant, she advised that the interview was in relation to a customer complaint.

[72] On the basis of the evidence of Mr Vivelis I am satisfied that the Applicant was advised of the reasons for his dismissal prior to the decision to dismiss him being made.

[73] This is apparent as Mr Vivelis, whilst the investigating officer, was not the decision-maker in relation to the decision to dismiss the Applicant.

[74] On the basis of the evidence I am satisfied that Mr Vivelis discussed each of the allegations with the Applicant at the meeting on 17 August 2018.

[75] Further, the Applicant was provided with the allegations which formed the basis of the reason for his dismissal in writing on 22 August 2018. 32

Section 387(c) - whether the person was given an opportunity to respond

[76] I am satisfied that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made.

[77] The Applicant attended a meeting on 17 August 2018 where the allegations were put to him and was given an opportunity to respond to the allegations. The Applicant was provided with the allegations in writing on 22 August 2018 and invited to put any response to those allegations in writing by 27 August 2018. The Applicant took up that invitation and provided his response to Mr Vivelis on 27 August 2018.

[78] I note that the letter of allegations advised the Applicant that he was also invited to “make any further representations…as to why disciplinary action should not be taken against [him], in the event the allegations be found to be substantiated.” Whilst clearly the letter sought such information from the Applicant and while, on the basis of the allegations the Applicant could not have misunderstood the seriousness of them, it is not apparent from the letter that a possible outcome of the investigation was the dismissal of the Applicant. It is apparent however that the Applicant did not respond on the question of disciplinary action.

[79] Following receipt of the response by the Applicant Mr Vivelis completed his investigation report which he then provided to Mr Castle, Ms Ralston and two others. The investigation report is lengthy and made up of:

  a covering email in which the allegations and findings were summarised;

  a letter to Mr Castle including the investigation report of nine pages in length;

  the letter of allegations to the Applicant of 22 August 2018 of seven pages in length;

  the Applicant’s response to the letter of allegations of five pages in length; and

  copies of relevant policies of the Respondent of over 60 pages in length.

[80] It is apparent that the decision-maker in deciding on the future of the Applicant’s employment was Mr Castle. Mr Castle however did not act until he received a recommendation from Ms Ralston.

[81] The Applicant was not given the opportunity to put any representations to Mr Castle before he made the decision to dismiss the Applicant.

[82] Ms Ralston said that she considered the report and sought further information in relation to allegations 4 and 5. On receipt of additional information she was satisfied that the allegations could be substantiated. Following consultation with Ms Ali McNicol and later, Ms Kayla Tucker of Workplace Relations Ms Ralston determined to recommend to Mr Castle that the Applicant be dismissed.

[83] The Applicant, in questioning Ms Ralston, implied that Ms Ralston should have re-investigated the matters and have made findings herself with respect to the allegations. This is not necessary. The Respondent has an investigations unit, it undertook an investigation and provided a report to Mr Castle and Ms Ralston. On some matters Ms Ralston sought and received further information. Ultimately she concluded that she was satisfied with the findings of the report.

[84] Ms Ralston gave evidence that she was aware of the Applicant’s mother’s illness. It is not apparent on the basis of the evidence before me that she considered this a mitigating factor when considering the conduct of the Applicant on 11 to 13 July 2018 or in deciding what recommendation to make to Mr Castle although she did take it into account in scheduling the meeting with Mr Vivelis on 16 August 2018 and ensuring the presence of employee support at the time of various discussions with the Applicant. It is not apparent that the death of the Applicant’s mother was a matter discussed with Workplace Relations. 33 The failure to properly consider this as a mitigating factor is a deficiency in the approach of Ms Ralston but, given the seriousness of the allegations, I do not consider it a reason for finding other than as I have.

[85] Mr Castle gave evidence that he read all of the material provided in the investigation report including the response of the Applicant. He considered the information in the context of the “consequence management framework.” 34 His evidence is that he made the decision to dismiss the Applicant because he was dishonest, because that dishonesty caused financial loss to the customer and it caused a loss of belief within the Respondent.35

[86] Mr Castle agreed that he received the recommendation from Ms Ralston at 12.42 p.m. and that he approved the recommendation two minutes later at 12.44 p.m. He clarified however that he had discussed the matter with Ms Ralston and Ms Tucker prior to the email being drafted by Ms Tucker, sent by Ms Ralston and forwarded to him for his subsequent approval.

[87] I note that the Applicant did not dispute Mr Vivelis’ depiction of the response he provided to the allegations.

[88] Whilst I accept that the Applicant was not given an opportunity to plead his case with Mr Castle I am, none the less, satisfied that he was given a reasonable opportunity to respond to the reason for dismissal prior to the decision being made.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person to assist at any discussions relating to dismissal

[89] When advised of the meeting of 17 August 2018 the Applicant asked Ms Ralston to attend the meeting with Mr Vivelis as his support person. Ms Ralston (properly) refused as she was aware she would be part of the decision-making in relation to the outcomes of any investigation.

[90] Ms Ralston arranged for another employee of the Respondent to accompany the Applicant. I would note that the Applicant was given substantial notice of the meeting such that he could have arranged an alternative support person if he wished.

[91] The Applicant also had a support person with him in the dismissal meeting.

[92] I am satisfied that the Applicant was not denied access to a support person.

Section 387(e) - warned of unsatisfactory performance

[93] The Applicant’s employment was not terminated for reasons associated with performance but rather conduct. This is therefore not a relevant consideration.

Sections 387(f) & (g) - the size of the employer’s business and access to human resource management specialist or expertise

[94] The Respondent is a large business. It has well developed policies and procedures. On the evidence before me I am satisfied that the Respondent undertook an appropriate investigation, that the investigator reached his conclusions based on the information available to him and the Applicant had a reasonable opportunity to put his case.

[95] The decision-maker (Mr Castle) and Ms Ralston were sufficiently removed from the investigation that their decision-making was soundly based.

Section 387(h) - other matters

[96] Prior to this incident the Applicant had an excellent record with the Respondent. He was clearly good at his job and had been recognised as such.

[97] I have taken into account that the Applicant’s mother was ill in India around this time. The Applicant emphasised the importance of his mother’s guidance and support to him and I accept that he was distraught at her death. Whilst I acknowledge that the Applicant’s mother had been ill since June 2018 the incidents in question occurred prior to him being advised that his mother was so ill that he should return to India as soon as possible. The evidence is that he was advised of this late on Friday, 13 July 2018. It was at this time that he found the missing loan documents and advised his manager that they had been lost for some time (at least from 9 July 2018). It was also at this time that he advised the customer to transfer the $560,000 out of the smart access account and back into the offset account.

[98] I have considered the Applicant’s evidence that the customer was an anxious person. 36 In these circumstances it is difficult to understand why he approached the customer as he did between 11 and 13 July 2018 after he lost the documents and why he did not, when he discovered the documents were missing on 9 July 2018, approach his manager to determine the best course of action. Given the Applicant’s assessment of the customer his approach to the issue was inexplicable.

[99] I accept that the cost to the Respondent of the Applicant’s actions was in the order of $2,904.00 which, whilst not acceptable, adds little weight to its case.

[100] I accept that Applicant may be affected in seeking employment in some financial institutions because of the implementation of a protocol of reporting misconduct by the Australian Banking Association (ABA). I do note that not all financial institutions are signatory to the protocol. Whilst the basis for being reported under the protocol is not a matter for the Commission I have considered the potential effect on the Applicant of such reporting.

Conclusion as to harsh, unjust or unreasonable

[101] Whilst the financial sector has been in the spotlight of late I do not consider that this had any negative bearing on the approach of the Respondent to the matters with respect to the conduct of the Applicant. The Applicant held a position of trust. Whilst I accept that he may have been distracted by his mother’s illness this is no excuse for his conduct as I have found it to have occurred.

[102] I do not consider the illness of the Applicant’s mother or his past good performance mitigate the seriousness of his conduct in this instance. The Applicant made a serious error of judgement on 9 July 2018 when he discovered the missing loan documents in not reporting it to his manager. This was then compounded by his actions and comments to the customer on 11, 12 and 13 July 2018 which then resulted in inflated sales figures. Whilst I do not know that he set out to manipulate his sales figures on 9 July 2018 this is where he landed. There were a number of things he could have done to ensure manipulation of his sales figures did not occur, including marking the smart access account as an offset account or reporting the error, but he did not.

[103] For the reasons given I am satisfied that the decision to dismiss the Applicant was not harsh, unjust or unreasonable in all of the circumstances.

Conclusion

[104] I am satisfied that the Applicant was not unfairly dismissed. His application for unfair dismissal is therefore dismissed. An order 37 to this effect will be issued with this decision.

Seal of the Fair Work Commission with member's signtaure.

COMMISSIONER

Appearances:

S. Malhotra on his own behalf.

D. Fleeton for the Respondent.

Hearing details:

2019.

Melbourne:

January14.

February 5, 21.

Final written submissions:

Applicant: 21 February 2019.

Printed by authority of the Commonwealth Government Printer

<PR706499>

 1   For privacy reasons the customer is not named in the decision.

 2   Exhibit A1, paragraph 17.

 3   Ibid.

 4   See exhibit R5 attachment SR-3.

 5   A database containing file notes and activities in relation to a customer’s dealings with the Respondent.

 6   Exhibit A1, paragraphs 19-20.

 7   Exhibit A1, paragraph 22.

 8   Exhibit A1, paragraph 26.

 9   Exhibit R8 – transcript of customer call to the Respondent page 4.

 10   Exhibit A1, paragraph 29.

 11   Exhibit A1, attachment SM-2.

 12   Exhibit R7, attachment PV-8.

 13   Exhibit R5, attachment SR-12.

 14   Exhibit A1, attachment SM-4.

 15   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p. 373.

 16   Edwards v Justice Giudice [1999] FCA 1836 at paras 6–7.

 17   Briginshaw v Briginshaw (1938) 60 CLR 336.

 18   Exhibit A1, attachment SM-3.

 19   Transcript PN 195-PN197.

 20   Transcript PN551.

 21   Transcript PN442.

 22   Transcript PN443.

 23   Exhibit A1, paragraph 19-21.

 24   Exhibit A1,paragraph 19.

 25   Transcript PN368, PN378, PN442.

 26   Transcript PN397-PN399.

 27   Transcript PN404.

 28   Transcript PN547.

 29   Exhibit A1, attachment SM-3 “allegation 5”.

 30   Transcript PN822.

 31   Exhibit R7, attachment PV-3.

 32   Exhibit R7, attachment PV-6.

 33   See exhibit R5, attachment SR-7.

 34   Transcript PN1744-PN1745, PN1747 and PN1749.

 35   Transcript PN1744 and PN1759.

 36   See, for example, transcript PN546 and PN801.

 37   PR706859.