[2019] FWC 26
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

David Walter
v
Australia and New Zealand Banking Group Limited T/A ANZ
(U2018/4904)

COMMISSIONER CRIBB

MELBOURNE, 7 JANUARY 2019

Application for an unfair dismissal remedy.

[1] Mr David Walter (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Australia and New Zealand Banking Group Limited T/A ANZ (the Respondent, ANZ, the Bank). The application was made under section 394 of the Fair Work Act 2009 (the Act) on 10 May 2018.

[2] There was a conciliation conference held on 7 June 2018 but the matter was not settled. A hearing took place on 4 October 2018. Mr Walter gave evidence and for the Respondent, Mr James MacFarlan, Practice Manager, My Advice; Mr Darrel Caulfield, Head of Advice and Proposition for the Remote Advice Centre (RAC) and Ms Bianca Friedman, Senior Employee Relations Adviser, gave evidence. Mr Walter was represented by Mr A Cousner, Finance Sector Union (FSU) and the ANZ by Mr M Minucci, of Counsel.

[3] Written Closing Submissions were provided on behalf of the Applicant on 29 October 2018 and on behalf of the Respondent on 14 November 2018. Reply Submissions on behalf of the Applicant were filed on 21 November 2018.

[4] A confidentiality order 1 was issued by the Commission on 21 September 2018, pursuant to which, a naming protocol for the Transcript2 and accordingly, this decision, was developed.

Background

[5] It is useful in this matter to set out a brief chronology of events.

  4 March 2013 - Mr Walter commenced employment as a Financial Planner Associate in the My Advice team covering the Wimmera and South West Victoria region.

  October/November 2016 - Mr Walter was reviewed by the Advice Assurance Team which issued its report on 7 November 2016. Mr Walter failed the audit. The issues identified in the audit report included providing advice without a Statement of Advice (SOA) or other appropriate documentation; recording insufficient evidence on the customer file to justify the advice given; inadequate record-keeping; key documents missing from the file and lack of attention to detail. 3

  7 November 2016 - Mr Walter was sent a letter which set out the contents of the audit report and which placed him on an Adviser Improvement Plan (AIP). 4

  2 December 2016 - Mr Walter was sent a letter setting out four allegations in relation to his conduct.

  7 December 2016 - a meeting was held with Mr Walter to discuss the allegations.

  16 December 2016 - Mr Walter was given a written warning on the basis that the allegations had been substantiated and that they amounted to a breach of the ANZ Financial Planning Professional Standards and Advice Instruction Manual (AIM) and the ANZ Code of Conduct and Ethics.

  February 2017 - Mr MacFarlan completed a review of a random sample of Mr Walter’s files and also undertook a Practice Manager review of Mr Walter’s files.

  April 2017 - a further internal review of Mr Walter’s files was conducted by the Advice Assurance Team. Mr Walter passed the internal review. Mr MacFarlan wrote to Mr Walter, on 24 April 2017, advising of the number of remedial actions required and also that he had been placed on an AIP.

  11 May 2017 - Mr Walter was presented with a Living#OurDNA award.

  September 2017 - Mr Caulfield conducted a skip line review in relation to Mr Walter. Mr Caulfield met with Mr Walter on 28 September 2017 to discuss the review findings.

  23 February 2018 - the Bank suspended Mr Walter’s practising certificate and commenced an investigation.

  17 April 2018 - Mr MacFarlan sent Mr Walter a letter setting out the ANZ’s concerns.

  19 April 2018 - there was a meeting with Mr Walter to discuss the allegations and to hear Mr Walter’s response. The meeting was attended by Mr Caulfield, Mr MacFarlan, Ms Friedman, Mr Walter and an FSU representative.

  19 April 2018 - Mr Walter was dismissed at the end of the meeting and was provided with a letter of termination.

  24 April 2018 - a more detailed letter of termination was sent to Mr Walter.

Legislative framework

[6] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable. It provides 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.”

[7] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

[8] The reasons for Mr Walter’s dismissal were set out in the long form termination letter, dated 24 April 2018, to Mr Walter from the ANZ. 5 The letter set out ten instances of substantiated unacceptable behaviour (misconduct) by Mr Walter which contravened ANZ’s Financial Planning Professional Standards and Advice Instruction Manual (AIM), ANZ’s Code of Conduct and inconsistent with ANZ’s Values and ANZ’s Use of Systems, Equipment and Information Policy and the ANZ’s Information Security Standard. I will deal with each of the instances in turn.

[9] At the commencement of the hearing, it was indicated by Mr Cousner that the main grounds of Mr Walter’s application were that his dismissal was procedurally unfair and that the dismissal was disproportionate to the conduct. Therefore, in terms of the facts regarding the various incidents, there was no real dispute between the parties about what happened. 6 Accordingly, the allegations will be dealt with in brief.

[10] However, the Commission is required, in cases where the reason for dismissal relates to the conduct of the employee, determine for itself, on the basis of the evidence before it, whether the alleged conduct took place and what it involved. Therefore, in dealing with the requirements of s.387(a) of the Act - was there a valid reason for the dismissal - the Commission will, in the first instance, address each of the allegations and make findings of fact in relation to the allegations. The Commission will then address each of the other subsections of s.387 of the Act in turn.

Allegation 1

[11] This allegation concerned the provision of advice by Mr Walter to Client A in June 2017. It was alleged that Client A advised Mr Walter, on 9 June 2017, to proceed with an insurance application. The insurance application was (mistakenly) only submitted on 26 September 2017 (three months late) when it should have been submitted within two days as required by the AIM. 7

[12] It was Mr Walter’s evidence that:

  He received instructions from Client A, on 9 June 2017, to implement the insurance application. 8

  He submitted the application as soon as he had finished the meeting with Mr Caulfield but was unsure of the date. Mr Walter agreed that it was about three months later than when it should have been submitted. 9

  Overlooking the insurance application was human error. This was because the client’s main focus was on the transition to retirement strategy. 10

  He agreed that that was not careful or diligent on his behalf and that, at the meeting on 19 April 2017, he accepted that he should have taken greater care. 11

  He agreed that, if client did not have insurance in place between June 2017 and September 2017, it could have created some real risks for the client that may have meant that the client was in a situation without insurance cover. 12

  He agreed that that would have been his fault. 13

  He agreed that the AIM, at step 5 (Implement advice), stated that the best practice was for forms to be submitted within 48 hours. 14

Allegation 2

[13] It was alleged by the Bank that, in relation to Client A, the second allegation concerned consolidation of the client’s superannuation funds and the commencement of a transition to retirement pension. It was stated that Mr Walter did not have the required completed Investor Profile Questionnaire (IPQ) on file at the time and that he implemented advice for the client on the basis of a “Defensive” risk profile when the client’s risk profile was “Balanced”. 15

[14] Mr Walter gave evidence, both written and oral, that:

  At the time he implemented the retirement advice for the client (15 June 2017), there was not a signed IPQ on the file. 16

  He had completed an investor profile with the client over the phone on 19 May 2017. 17

  The AIM (Step 1) required that there be a signed IPQ on file or a diary note confirming the agreed client profile. 18 There was a diary note confirming that it had been done but he had misplaced it.19

  During his supervisor framework audit in September 2017, Mr Caulfield had queried where this client’s IPQ form was. Mr Walter recalled that at that point, he discovered that the document was missing. 20

  He then sent the client a new IPQ form in September 2017 which was not returned by the client until February 2018. 21

  He had originally acknowledged it in the meeting with Mr Caulfield in around September 2017 and then again during the meeting on 19 April 2018. 22

  The only reason he discovered that was because it was raised with him by Mr Caulfield. 23

  During the conversation with the client on 19 May 2017, Client A’s IPQ returned a balanced result. When he had discussed the implications of this with the client, the client had clearly indicated that she wanted a more conservative investment option and Defensive was the agreed outcome. 24

  He had acted in accordance with a defensive risk profile in implementing his advice to the client. The SOA and subsequent application, which was prepared after the telephone conversation, had used the defensive profile as had been discussed with the client. 25

  The diary note, following the telephone conversation, noted a balanced profile which was inaccurate and an error. 26

  When the client returned the IPQ in February 2018, the outcome again was balanced. 27

  He was unable to change the diary note and could not recall whether he had provided another diary note that updated the client’s risk profile. 28

  During the meeting on 19 April 2017 he had said that was an oversight because he could not find the document. 29

  He agreed that that was inconsistent with him acting carefully and diligently. 30

  He agreed that if one acted in a way which was different to what was recorded in the documents, that would expose the Bank to potential risk. 31

Allegation 3

[15] This allegation concerned the failure to implement the statements of advice to Clients B, C, D and E between August and October 2017 by not switching the clients’ money from one investment to another on the specified dates. The delays in switching resulted in the clients incurring investment losses of $17,153.53.

[16] In his oral and written evidence, Mr Walter said the following:

  He had advised these clients to make switches of funds and the clients agreed that the funds should be switched on a particular date. 32

  In November 2017, he discovered, as part of a checklist review of his files, that the planned switches for these clients had not been implemented. Mr Walter found that he had not received notification from OnePath that the customers’ funds had been withdrawn and were ready to be switched. Mr Walter had raised an incident report and completed the switches. 33

  He believed that there were systemic problems with access to OnePath and he had reported his concerns about the OnePath system to the One Path BDM, Mr MacFarlan and other members of his team on several occasions from February 2017. 34

  He had demonstrated the errors he was receiving to Mr MacFarlan in February 2018 and expressed his concern that no action had been taken to fix the problems over the past 12 months. 35

  With respect to Client G, it was not discovered until 1 December 2017 (6 weeks after the client had confirmed that she had returned the forms) that the client had not returned the necessary paperwork. This had delayed the switching. 36

  It was his responsibility to implement that advice and to ensure that the investments were switched on the appropriate dates. 37

  The delays in switching the investments ranged from 2 months to 3 months. 38

  He confirmed that the customers were disadvantaged by the amount of $17,153.53. Mr Walter confirmed that the Bank had to make up the shortfall but disagreed that it was a significant amount of money for either the clients or for the Bank. 39

  That he was responsible for part of the failure to switch the investments which resulted in a financial loss and an exposure to the Bank. 40

  The fact that the situation was identified and remediated was good for the Bank’s reputation. 41

  A financial planner who failed to implement advice in an appropriate time period which directly resulted in disadvantages to clients, would reflect poorly on the Bank. 42

  He confirmed that the AIM provided that planners have to ensure the timing of implementation is appropriate to each situation. Mr Walter agreed that the delay in relation to these clients was not time appropriate implementation of the advice which was a breach of the AIM. 43

  He acknowledged that this was a partial example of him not showing appropriate care and diligence. 44

Allegation 4

[17] It was alleged that, in relation to Clients Mr F and Mrs F, Mr Walter had implemented an investment even though he had not obtained a signed Fact Find, IPQ and ATP form from Client Mrs F, a signed ATP form from Client Mr F and presented Client Mrs F with a SOA. It was alleged that the latter had occurred because client Mrs F had not attended any meetings with Mr Walter or spoken to Mr Walter. 45

[18] Mr Walter gave oral and written evidence that:

  He believed that he did not have to provide a separate IPQ for the husband and for the wife if their advice profile was the same. 46 Client Mr F had provided information on their joint income and assets.47

  When taken to step 1 of the AIM, he stood corrected that the AIM did require a separate IPQ to be completed for each client and that it didn’t say that he could complete one IPQ for a husband and wife. 48

  He did not complete an IPQ for Client Mrs F as the SOA had been addressed to both Client Mr F and Client Mrs F. Mr Walter agreed that that was a breach of the AIM. 49

  He was required (by step 1 of the AIM) to complete a Fact Find form for each client. Client Mrs F did not sign the Fact Find form which was a breach of the AIM. 50

  He agreed that step 4 of the AIM required that he provide a statement of advice to each client. Mr Walter confirmed that he did not provide Client Mrs F with a statement of advice which was inconsistent with the AIM. 51

  Client Mrs F’s approval was documented but he could not locate the authority to proceed. Mr Walter stated that there was a diary note. It was agreed that it wasn’t on the system at the Bank and stated that he had misplaced it.  52

  Mr Walter agreed that there was no evidence to suggest that he had obtained the ATP form and that, if one did not have a signed ATP form on file, one could not implement advice in relation to that person. 53

  He agreed that he had implemented advice for Client Mrs F without having a signed ATP form on file which was a breach of the AIM. 54

  He met Client Mrs F when she and Client Mr F had dropped their applications in on 10 August 2017. This included signed ATP’s. Client Mr F and Client Mrs F had the opportunity to ask any follow-up questions at that time but they did not. 55

Allegation 5

[19] It was alleged that, on four occasions between 14 August 2017 and 22 December 2017, with respect to three clients, (G, H and I), Mr Walter had provided advice and influenced the clients’ decisions whilst maintaining that he had provided “Nil Advice” to these clients. The Bank alleged that Mr Walter had taken this approach to avoid having to complete the full advice process. 56

[20] Mr Walter’s evidence was that:

  He confirmed that if he provided advice that would have an impact on a customer or if there was a possibility that a customer would be influenced by what he said, it was not a nil advice situation and he would be required to provide advice in the usual way. 57

  If he did not do that, it would be a breach of the AIM. 58

  With Client G, it was a nil advice situation. 59

  The diary note he made recorded that full advice was offered but declined as Client G was only interested in implementation of a 2 year fixed term annuity. The diary note stated that limited advice was also offered but that the client preferred implementation only advice. 60

  In a nil advice situation, he was required to prepare a diary note. Mr Walter was not sure if he had done that as he did not have that information with him. 61

  The advice in relation to Client G concerned implementing an investment in an annuity for $100,000. 62

  He denied having discussions with Client G about how those funds were to be invested. 63

  He denied talking to Client G about investing the funds with a better interest rate. 64

  He did not complete a full investor profile process with Client G because he did not provide the client with advice. 65

  He did not discuss with Client G about whether or not to invest the funds in a particular account. Mr Walter said that this was because Client G asked for implementation only advice. 66

  In terms of Client H, he confirmed a diary note he had prepared on 17 October 2017 which stated that the client was seeking a higher interest rate in a capital guaranteed environment than what was being offered by bank term deposits. 67

  The diary note also stated that full advice was offered but declined as the client wanted transaction assistance only to invest funds in a two-year Challenger annuity. It was further stated that full advice was offered but declined and that the client wanted implementation only advice for the annuity only. 68

  He denied discussing interest rates and what was being offered by the Bank in a capital guaranteed environment with Client H. 69

  He knew that Client H was seeking a higher interest rate, without having a discussion with the client, because Client H told him that he was seeking a higher interest rate. Mr Walter stated that there was no discussion and no possibility that he would have been able to influence Client H’s decision. This was because he had offered to provide advice to Client H on a number of occasions. 70

  With regard to the notes on Client I which suggested that the client was looking to invest the estate distribution into a particular account, were made by the referral partner and not by him. 71

  In terms of his diary note, it stated that full advice was offered but declined because the executors had researched Challenger annuities and wanted implementation assistance only for a two-year Challenger annuity. It was noted that the decision regarding the Challenger annuity was made by executors so nil advice confirmed. 72

  He did not recall having a discussion with Client I which resulted in his diary note stating “Invest funds currently in bank account at higher interest rate”. Mr Walter stated that dealing with the estate was a different case. 73

Allegation 6

[21] This allegation related to switching funds from Client K’s investment to another in accordance with recommendations made in a SOA, prior to obtaining the client’s signed ATP form. 74

[22] Mr Walter confirmed that he had provided an SOA to Client K which included switching funds from one investment to another. It was agreed that he was verbally advised by the client, over the phone, to implement that advice. This had been done without waiting for a signed ATP from the client. Mr Walter confirmed that this was a breach of the AIM. 75

[23] In his written response to the allegations, Mr Walter stated that he did not create a diary note of the client’s verbal authority to proceed with the advice. 76 During the hearing, Mr Walter said that he did not have information about whether or not he had written a diary note with him.77

[24] If there was no diary note explaining the absence of a signed ATP, that was said to not be diligent or careful of him. Mr Walter agreed that it was not diligent of him not to have obtained a signed ATP. 78

Allegation 7

[25] It was alleged that, for Client L, Mr Walter had mistakenly implemented an investment in the Vanguard Balanced Index instead of the Vanguard International Share Index. 79

[26] Mr Walter explained that he had missed that particular allocation on the application form and so had invested those funds in the wrong vehicle. It was agreed that this was inconsistent with the AIM and not diligent or careful and that he had a responsibility to be diligent and to do the right thing with the client’s money. 80

Allegation 8

[27] This allegation concerned providing a SOA, in relation to life insurance cover, to Client M without having spoken to the client directly. 81

[28] It was explained by Mr Walter that he had received an initial request from the Agribusiness Manager in Horsham (Brett) regarding life insurance for Client M. Mr Walters had provided two life insurance options to Brett who spoke to the client who indicated the option he wanted to go with. Mr Walter confirmed that he had emailed a quote, SOA and implementation of the advice documentation to Client M’s wife. Mr Walter confirmed that he had provided the advice on 17 January 2018. Mr Walter explained that he was going to meet with the client in February or March, taking into account the client’s holiday. It was agreed that he did not meet with the client or speak to the client on the phone before providing the advice. 82 This was said to be because, by the time the meeting was to take place, his practising license had been suspended.83

[29] Mr Walter stated that the reason to speak to a client or meet with the client face-to-face was to test the accuracy of the information provided by the client before providing them with advice. 84 It was agreed that not meeting Client M before providing the advice was inconsistent with the AIM and not diligent, careful, appropriate or good enough.85

Allegation 9

[30] This allegation concerned Mr Walter emailing a client’s accountant with an un-encrypted version of a SOA. 86

[31] It was Mr Walter’s evidence that he had initially sent for client’s accountant an encrypted copy of the client’s SOA. When the accountant advised Mr Walter that he could not open the document, he had sent an unencrypted version.

[32] Mr Walter also stated that he was not sure whether the SOA should have been encrypted. Mr Walter expressed the view that the need to encrypt a client’s document, if it was emailed to a third party, depended on who the third party was. It was agreed that it would have been prudent and diligent to have encrypted the document as it was client sensitive information. 87

[33] Mr Walter did not accept that, in failing to encrypt the SOA, he had exposed the client to the potential of inadvertent disclosure of the information. This was because of the recipient of the email (the client’s accountant). 88

Allegation 10

[34] It was alleged by the Bank that, when Client O approached Mr Walter, in around February 2018, in providing advice to the client, Mr Walter had relied on a SOA that had been prepared for the client in August 2017, rather than preparing an updated SOA. 89

[35] Mr Walter gave oral and written evidence that:

  When he met with the client on 20 February 2018, as a result of changes in the client’s premiums, the advice he gave differed from his original advice. 90

  He then submitted the client’s application. 91

  He was concerned that the advice might be sufficiently different to warrant a new SOA. Mr Walter called Professional Standards for guidance. 92

  An updated SOA was provided to the client on 23 February 2018 as per Professional Standards’ recommendation.

  He agreed that one can only rely on a SOA for 30 days, if it was relevant. Mr Walter stated that an SOA can retain its relevance for longer than that. 93

  He agreed that step 5 of the AIM stated that one could only rely on a SOA for 30 days. 94

  When the client came back to him in February 2018 (6 months or so after the sunset clause had lapsed), he needed to provide the client with the new SOA if the advice was significantly different. Mr Walter stated that the AIM required him to confirm that the advice was still appropriate. 95

  A diary note was required about whether the advice remain true and correct outside of the sunset clause. Mr Walter did not know whether he had written a diary note. 96

  He did not provide the client with a new SOA and agreed that, in not doing so, he was in breach of the AIM and was not diligent or careful on his part. 97

Submissions

Applicant

[36] It was submitted on behalf of Mr Walter that there was no valid reason for the Applicant’s dismissal. This was on the basis that Mr Walter did not accept that he had done anything intentionally or deliberately wrong or deceitful and he did not accept the wrongdoing alleged by the Bank. 98

[37] Mr Cousner argued that the admissions made by Mr Walter, during cross-examination at the hearing, did not alter the fact that, at the relevant time, there was a contest about the validity of the allegations. 99

[38] Further, it was submitted that the alleged breaches of the AIM where contested at the time by Mr Walter. Mr Walter’s written responses 100 were said to have been rejected by the Respondent as was Mr Walter’s explanation about the lack of administrative support. Given this situation, Mr Cousner contended that there could not be a valid reason for the dismissal because the Respondent relied on a breach of the Code of Conduct which was contingent on a breach of the other relevant policies.101

[39] The Applicant also argued that a disagreement between Mr Walter and the Bank about the best application of the relevant policies was insufficient to support Mr Walter’s dismissal. 102

[40] Finally, the Applicant contended that the Respondent’s reliance on Mr Walter’s failure to act with integrity could not be established on the facts. Mr Cousner stated that this was never put properly to Mr Walter and that there was no evidence to establish a lack of integrity on Mr Walter’s part. It was argued that a disagreement between an employee and their manager about the application of professional principles does not support a finding of a lack of integrity. 103

ANZ

[41] Mr Minucci submitted, on behalf of ANZ, that there was a valid reason for Mr Walter’s dismissal. This was on the basis that Mr Walter’s conduct contravened a number of ANZ’s policies, occurred over an extended period of time and was conduct about which Mr Walter had been previously warned. It was stated that Mr Walter’s conduct had occurred in circumstances where Mr Walter was given various opportunities to remedy his behaviour but had failed to do so. 104

[42] The Respondent contended that the misconduct was serious in that it resulted in some customers losing money and it potentially compromised ANZ’s Australian Financial Services Licenses (AFSL). 105 It was argued that Mr Walter’s conduct was not trivial but a substantial failure to comply with ANZ’s policies and procedures. Just because Mr Walter believed that he did not do anything deliberately wrong or deceitful was said to not mean that Mr Walter’s conduct could be excused. It was stated that Mr Walter’s lack of appreciation for the seriousness of his conduct illustrated the difficulties faced by ANZ during Mr Walter’s employment. The Respondent indicated that Mr Walter was entirely careless at best or had a complete disregard for the Bank’s policies and procedures at worst.106

[43] In addition, it was stated that Mr Walter was aware of the framework within which he was required to operate as a financial planner. 107

[44] Further, it was submitted that any assessment of the severity of Mr Walter’s conduct must occur by reference to the framework within which financial advisers provided advice to ANZ’s clients. 108 The Respondent stated that the environment was highly controlled and regulated and that ANZ was ultimately responsible to ASIC for the conduct of its financial planners.109

[45] It was explained that the ANZ has been issued with an Australian Financial Services Licence (AFSL) by ASIC and the Bank must comply with ASIC’s requirements to hold and maintain that licence. The Respondent stated that any failure by financial planners to comply with ANZ’s policies regarding the provision of financial advice, may compromise ANZ’s ability to carry on a financial planning business. It was said by the Bank that ANZ’s policies are designed to ensure that customers are protected and that that was the reason why employees must comply with ANZ’s policies and procedures. 110

[46] The primary policy document for financial planners was stated to be the AIM. Other relevant policy documents included ANZ’s Code of Conduct, ANZ’s Values and ANZ’s Use of Systems, Equipment and Information Policy and Information Security Standards. 111

[47] It was argued that Mr Walter did not take issue with any of this evidence during the course of the hearing. The Respondent contended that the Commission should also keep in mind that Mr Walter had acknowledged that the Code of Conduct required him to carry out his duties carefully and diligently; to ensure that he did not make unnecessary errors; pay appropriate attention to detail; ensure that all of the document was completed in accordance with ANZ’s policies and procedures and ensure that he did not make the same mistakes continuously. It was argued that Mr Walter’s conduct must be considered in this context. 112

Considerations and conclusions

[48] The reasons for Mr Walter’s dismissal were substantiation of 10 allegations regarding unacceptable behaviour by Mr Walter. The long form termination letter, dated 24 April 2018, also stated that Mr Walter’s repeated misconduct had destroyed the trust and confidence which was said to be fundamental to the employment relationship between Mr Walter and the ANZ.

[49] Before determining whether there was a valid reason for Mr Walter’s dismissal, it is first necessary to make findings of fact as to whether or not the alleged conduct occurred. I shall deal with each of the allegations in turn.

Allegation 1

[50] It was Mr Walter’s evidence that he had submitted Client A’s insurance application as soon as he had finished the review meeting with Mr Caulfield in September 2017. Mr Walter had agreed that this was approximately 3 months later than it should have been submitted – which was within 48 hours of receiving approval to implement the advice from the client. It was said by Mr Walter to have been human error on his part.

[51] Therefore, I find that Mr Walter submitted Client A’s insurance application on or about 26/28 September 2017 when it should have been submitted on or around 9 June 2017. Client A’s application was submitted approximately 3 months late.

Allegation 2

[52] This allegation was in two parts. With respect to the first part, Mr Walter’s evidence was that he had implemented advice for Client A without a signed IPQ form on file. Mr Walter said that he had completed an investor profile over the phone with the client on 19 May 2017. When he discovered that the document was missing, he had sent Client A a new IPQ form which was returned by the client in February 2018. It was also stated by Mr Walter that he had written a diary note confirming the agreed client profile.

[53] It was not disputed by Mr Walter that he had implemented advice for Client A, on 15 June 2017, without a signed IPQ form on file. Mr Walter’s explanation was that he had completed an investment profile with the client over the phone on 19 May 2017 but that the document was missing. Mr Walter’s evidence was that he had then sent the client a new IPQ form in September 2017 which was returned by the client in February 2018. Therefore, with respect to the first part of this allegation, I find that, at the time Mr Walter implemented advice for Client A, there was no signed IPQ form on file. I also find that Mr Walter sent Client A an IPQ form in September 2017 which was returned by the client in February 2018. It may well have been that Mr Walter completed an investment profile with the client over the phone in May 2017. However, from a policy and process perspective (AIM), there was no signed IPQ form for this client on the file at the time Mr Walter implemented the advice.

[54] The second part of this allegation was that Mr Walter had implemented advice for Client A on the basis of a defensive risk profile when the client’s risk profile was balanced. It was also alleged that Mr Walter’s diary note, on 25 May 2017 and the IPQ form received from the client in February 2018, described the client’s risk profile as balanced.

[55] Mr Walter’s evidence was that, as a result of a telephone conversation with the client, he had acted in accordance with a defensive risk profile. Mr Walter also said that the diary note, which he made after the telephone conversation with the client and which noted a balanced profile, was inaccurate.

[56] It was common ground that Mr Walter had implemented advice for Client A on the basis of a defensive risk profile. The issue of concern for the ANZ was that, in doing so, Mr Walter had implemented advice on a risk profile that was contrary to what Mr Walter had formally recorded in a diary note. It may well have been that the outcome of the telephone conversation with Client A was that the client’s risk profile was defensive. However, in terms of the formal documentation in ANZ’s system, this showed that Mr Walter had diarised a balanced risk profile for the client. Mr Walter had not attempted to correct the client’s formal record of a balanced risk profile and change it to a defensive risk profile.

[57] Therefore, I find that Mr Walter implemented advice from Client A on a basis which was contrary to the risk profile which Mr Walter had recorded in ANZ’s computerised records system.

Allegation 3

[58] This allegation concerned the delay in switching four clients’ funds from one investment to another as recommended in Mr Walter’s SOA’s to each of the clients (Clients B, C, D and E). The delays ranged from two months to about three and a half months and the clients incurred investment losses of $17,153.53. The Bank was required to make up this loss.

[59] Mr Walter did not deny that these delays occurred and that it was his responsibility to have switched the investments on the dates specified in the SOA’s. Mr Walter took partial responsibility for the delay on the basis that there were systemic problems with the OnePath system as he had not received notice that the customers’ funds were ready for switching. In addition, despite checking, Client E had not returned the signed application form which caused a delay.

[60] It was agreed by Mr Walter that there was a delay in switching these clients’ funds into other investments. Mr Walter believed that he was not fully responsible for the delays because of problems with the OnePath system that he had been raising since February 2017. With respect to Client E, part of the delay was said to lie with the client as the signed form had not been returned despite the client saying that it had been. Taking all of this into account, I find as a matter of fact that Mr Walter did not switch these clients’ funds at the necessary time. As a result of the delays, the clients incurred investment losses of $17,153.53 and that it was necessary for the Bank to make up this loss.

Allegation 4

[61] This allegation concerned Mr Walter implementing an investment for Clients that Mr F and Mrs F without having obtained all of the required sign forms for both Client Mr F and Client Mrs F.

[62] It was acknowledged by Mr Walter that he did not have a separate signed IPQ for Client Mrs F before he had implemented an investment. This was because Mr Walter believed that he did not have to have a separate signed IPQ if the advice profile of both a husband and wife was the same. Mr Walter’s evidence was that he had documented Client Mrs F’s approval to proceed but had misplaced the signed ATP form.

[63] I find that, at the time an investment was implemented for Client Mr F and Client Mrs F, there were no signed ATP forms for either client nor an SOA or IPQ for Client Mrs F, on the file, at that time.

Allegation 5

[64] Allegation 5 concerned the allegation that Mr Walter had provided advice and influenced clients’ decisions in relation to three clients (G, H and I), whilst maintaining that he had not provided advice to these clients.

[65] Mr Walter denied having provided advice to these three clients and stated that they were nil advice situations. The Bank referred the Commission to the iKnow referral entries, together with extracts of parts of Mr Walter’s diary notes, in relation to each of the clients.

[66] Having also considered the entirety of the diary notes made by Mr Walter for each of these clients, I have not been persuaded that Mr Walter provided advice to these clients. It appears from the diary notes that each of the clients was offered to be provided with full advice and that each of the clients declined. The clients had requested implementation only assistance with respect to a particular annuity with a two-year term.

[67] The discussions with each of these clients occurred between August 2017 and December 2017. These allegations were put to Mr Walter in April 2018. There is no evidence before the Commission that there is any basis for the Commission not to find that the contemporaneous diary notes were accurate and truthful records of the conversations with each of these clients. Therefore, I am satisfied on the material before me that Mr Walter did not provide advice to these clients and so therefore was not required to provide the clients with SOA’s.

Allegation 6

[68] Mr Walter agreed that he had switched funds for Client K without having a signed ATP form from the client. Therefore, I find that Mr Walter switched client K’s funds in the absence of the signed ATP form from the client.

Allegation 7

[69] It was acknowledged by Mr Walter that he had made an error in relation to Client L’s asset allocation. Therefore, I find that Mr Walter mistakenly allocated the client’s assets to the wrong Index.

Allegation 8

[70] During his evidence, Mr Walter confirmed that he had provided a quote, SOA and ATP form to Client M without having met or spoken to the client. Therefore, I find that Mr Walter did not meet was speak to Client M prior to providing Client M with a quote, SOA and documentation to implement.

Allegation 9

[71] On the basis of Mr Walter’s evidence, I find that Mr Walter emailed a client’s accountant attaching an unencrypted SOA.

Allegation 10

[72] Mr Walter gave evidence that he gave advice to Client O without having provided an updated SOA. I find, therefore, that Mr Walter provided advice to this client without first having prepared and provided Client Oh with an updated SOA.

Was there a valid reason for the dismissal?

[73] Putting all of the above findings of fact together, it has been found that:

  Mr Walter submitted Client A’s insurance application on or about 26/28 September 2017 when it should have been submitted on or around 9 June 2017 (approximately 3 months late).

  There was no signed IPQ form for Client A on the file at the time Mr Walter implemented the advice.

  Mr Walter implemented advice from Client A on a basis which was contrary to the risk profile which Mr Walter had recorded in ANZ’s computerised records system for that client.

  Mr Walter did not switch Clients B, C, D and E’s funds at the necessary time. As a result of the delays, the clients incurred investment losses of $17,153.53 and that it was necessary for the Bank to make up this loss.

  At the time an investment was implemented for Client Mr F and Client Mrs F, there were no signed ATP forms for either client nor an SOA or IPQ for Client Mrs F, on the file.

  Mr Walter did not provide advice to Clients G, H and I and so therefore was not required to provide the clients with SOA’s.

  Mr Walter switched client K’s funds in the absence of the signed ATP form from the client.

  Mr Walter mistakenly allocated the Client L’s assets to the wrong Index.

  Mr Walter did not meet was speak to Client M prior to providing Client M with a quote, SOA and documentation to implement.

  Mr Walter emailed a client’s accountant attaching an unencrypted SOA.

  Mr Walter provided advice to Client O without first having prepared and provided Client O with an updated SOA.

[74] Taking all of the findings into account and having weighed up all of the evidence, I find that there was a valid reason for Mr Walter’s dismissal. On the basis of the findings of fact made, Mr Walter consistently either did not have the required paperwork on file prior to actioning advice for a client or did not take an action for a client at the necessary time or made a mistake in actioning the advice. The result of Mr Walter’s delay in switching the funds of four clients was the necessity for the Bank to make up the investment losses of these clients - ($17,153.53).

[75] These actions or inactions by Mr Walter were contrary to the requirements of ANZ’s AIM and ANZ’s Code of Conduct and occurred within the highly controlled and regulated financial planning environment. It is noted that Mr Walter’s lack of attention to detail and seeming inability to follow the proper processes occurred over a 12 month period prior to his dismissal and that Mr Walter had been given a written warning in December 2016.

[76] On the other hand, it is accepted that Mr Walter’s failures to adhere to the AIM and ANZ’s Code of Conduct and Values were not intentional or deliberate. It is also noted that Mr Walter had challenged the validity of the allegations during the meeting on 19 April 2018 and had consistently maintained that he had done nothing wrong. However, I respectfully disagree with the latter contention as the findings of fact reveal a consistent non-compliance with the required processes for financial planners in dealing with clients.

[77] Therefore, I find that there was a valid reason for Mr Walter’s dismissal.

Section 387(b) – notified of the reason

[78] It was common ground that Mr Walter was provided with a brief letter of termination on 19 April 2018. A more detailed termination letter, dated 24 April 2018, was sent to Mr Walter. This letter set out the reasons for Mr Walter’s dismissal together with Mr Walter’s responses and mitigating factors.

Section 387(c) – opportunity to respond

[79] With respect to what occurred during the meeting on 19 April 2018, a brief summary of the evidence is provided as follows:

[80] It was Mr Walter’s evidence that:

  The meeting went for approximately five and a half hours and at the beginning of the meeting, he was advised that the purpose of the meeting was for Mr Walter to provide responses to the allegations and to discuss the allegations made against him. 113

  He confirmed that he had some notes with him and that he gave some responses to the questions based on his notes. Mr Walter confirmed that Mr MacFarlan engaged with him and asked him some clarifying questions and that he had provided responses to each of the allegations during the course of the meeting. 114

  He agreed that he was able to take breaks during the meeting and that he had requested a couple of breaks to discuss matters with his representative which were granted. 115 Mr Walter said that he was not denied a break until the end.116

  He confirmed that the meeting adjourned at approximately 4.00 p.m. and resumed at approximately 4:50 p.m. When the meeting resumed, Mr MacFarlan had informed him of the findings regarding the allegations and that, in light of the findings, he had formed the view that his employment should be terminated. 117

  His representative had asked whether or not Mr Walter could resign but he did not recall Ms Friedman’s response. His representative had then suggested a mutual separation but Ms Friedman rejected that proposal. It was recalled that he was then provided with a short form termination letter. 118

  When he said during the meeting that he had a client first, second and third mentality, that meant that the customer comes first. Mr Walter disputed that he had meant that the customer comes first even if ANZ’s policy is not complied with.

[81] Mr MacFarlan gave evidence that:

  He believed that he met with Mr Caulfield and Ms Friedman on the morning of 19 April 2018, prior to the meeting. 119

  They did not discuss how they anticipated the meeting going. It was explained that they discussed how the meeting was supposed to run, its form and structure. 120

  He thought that they had decided before the meeting what roles each of them would play. The usual policy was said to be that the line manager conducted the meeting and asked the questions with ER as a support from an ER policy and process perspective. Mr MacFarlan confirmed that Ms Friedman also took notes. 121

  He had asked questions of Mr Walter during the meeting some of which has been prepared by Ms Friedman ahead of the meeting and some he had asked off the back of Mr Walter’s responses. 122

  He confirmed that Ms Friedman had prepared the template Meeting Outline and Notes of disciplinary process, ahead of the meeting. 123

  Part of his role was to ask questions from the script (opening questions) which he then followed up with questions resulting from Mr Walter’s response. 124

  It was a lengthy meeting (about five hours). 125

  At the beginning of the meeting, Mr Walter offered to provide a written response. Ms Friedman indicated that they wanted to explore Mr Walter’s responses and not be limited to Mr Walter’s written response. 126

  He was not aware of an ANZ policy which precluded the provision of a written response. 127

  The meeting broke at 4.00 p.m. and reconvened around 4:45 p.m. 128

  During the break, he spent most of the time with Mr Caulfield and Ms Friedman and the allegations and Mr Walter’s responses. Ms Friedman had contacted her manager and a short form termination letter was prepared which Mr Caulfield had printed. During the break, he had also gone to another floor to get some food (about five minutes). 129

  There was debate and consideration of Mr Walter’s responses during the remaining 40 minutes of the break; whether the allegations were or weren’t upheld and the appropriate outcome. 130

  There was a consensus view based on all of the allegations, including the policies breached, except for part of one being substantiated. 131

  He believed that Allegations 1, 2 and 3 were an offending of the Code of Conduct requirement to act ethically and professionally, taking care and diligence and acting with integrity. 132

  The letter of 17 April 2018 was the first time that it was put to Mr Walter, in that format and formally, that the allegations may offend the Code of Conduct. Prior to then, since October 2017, both he and Mr Caulfield had said to Mr Walter that he needed to ensure that he acted in a timely and professional manner and to be diligent with his files. 133

  Alternatives to termination were not discussed as he had formed the view that Mr Walter complied when the pressure was on but would then go back to his old ways of taking short cuts and not doing things the right way. 134

[82] Mr Caulfield provided a witness statement 135 but was not required for cross-examination. Mr Caulfield’s evidence was that:

  He attended the meeting on 19 April 2018 and his role was to support Mr MacFarlan and to respond to any technical questions. 136

  At the beginning of the meeting, Mr MacFarlan explained that the purpose of the meeting was to get Mr Walter’s response to the allegations set out in the letter of 17 April 2018. 137

  Mr MacFarlan had addressed each allegation in turn and Mr Walter read out his response to each of the allegations. Mr MacFarlan, Ms Friedman and himself then asked further questions about the allegations. 138

  He could confirm that Ms Friedman’s notes of the meeting were an accurate record of what was said. 139

  In relation to the allegations, Mr Walter had ultimately acknowledged that he had made errors and that greater care and diligence could have been taken. 140

  The prevalence of the errors was concerning because Mr Walter had been given a formal warning for similar issues together with extensive informal feedback through ongoing monitoring, reviews and audits. It was Mr Caulfield’s view that Mr Walter appeared not to appreciate the seriousness of the issues. 141

  Mr Walter had denied doing the wrong thing particularly in relation to allegation 5 (nil advice). 142

  It was concerning that Mr Walter seemed to think that self-reporting certain breaches excused his conduct in failing to comply with the AIM. Also of concern was said to be Mr Walter’s statement that he had a client first, second and third mentality and said that this sometimes means acting in a manner which was inconsistent with ANZ’s policies and procedures. In addition, Mr Walter had said that he did not have his previous warning front of mind. 143

  During the break, they formally considered Mr Walter’s responses and information provided by working through each allegation and making a determination about whether the allegation could be substantiated. 144

  As a result of the detailed investigation that had been conducted, they were already very familiar with the relevant customer files. 145

  There was nothing that Mr Walter had raised that warranted any further investigation. 146

  All of the allegations were found to be substantiated except for one of the sub- allegations in allegation 5. 147

  They then considered the appropriate disciplinary outcome and agreed that it was termination of Mr Walter’s employment. 148

  The ER Manager was then telephoned to discuss the findings and recommended disciplinary outcome – which was agreed. 149

  They then prepared a short form termination letter for Mr Walter which was based on ANZ’s template. Mr Caulfield had printed the letter which Mr MacFarlan had signed during the break. 150

  When the meeting reconvened, they went through each of the allegations and explained the findings to Mr Walter and informed Mr Walter of the decision to terminate his employment. 151

  Mr Walter’s support person requested some time to have a discussion with Mr Walter. When they returned, the support person asked if Mr Walter could resign. Ms Friedman had explained that this was not possible. 152

[83] Ms Friedman gave evidence that:

  Prior to the meeting, she had prepared a meeting outline document which she had provided to Mr MacFarlan before the meeting. Ms Friedman stated that she had used that meeting outline to record her notes during the meeting. 153

  She did not believe that Mr MacFarlan had made any amendments to the document. 154

  The document was a template document but amendments could be made for a particular case. 155

  At the beginning of the meeting, Mr Walter had a written response to the allegations which he offered to provide to the Bank. Ms Friedman recalled that she had responded that it was not necessary to submit a written response and said that she wanted to hear from him in relation to the allegations. 156

  The reason she would not take the written document was that the meeting invitation was clear that they wanted to meet with Mr Walter in person and to discuss the matter and were seeking to hear and explore Mr Walter’s explanations – rather than just having a written document and not being able to engage in a discussion. 157

  She was not sure whether it would have been better to have taken a copy because Mr Walter read out the document in any case after each of the allegations were put to him and then there was a conversation. 158

  She had typed up the notes whilst listening to Mr Walter’s responses and they were notes of the second part of the meeting. Ms Friedman explained that part of the notes were drafted during the adjournment which helped to consolidate their thinking about the responses and whether they were in breach of the various policies. It also meant that Mr MacFarlan could use the notes to deliver their findings. 159

  During the adjournment, there was a discussion about whether or not to substantiate the allegations. 160

  Everyone was on the same page in relation to all of the allegations. 161

  There was a discussion about how each of the allegations (except for one) was substantiated and Mr MacFarlan was able to make findings. 162

  In addition, they found that three of the allegations were not found to be a breach of integrity. 163

  During the adjournment, there was also discussion about the appropriate disciplinary action to take. Ms Friedman thought that she would have initiated it after they had gone through the findings. 164

  They discussed the additional factors e.g. repeated conduct (prior warning), tenure, personal circumstances, mitigating circumstances but did not believe that they provided a reasonable explanation for Mr Walter’s repeated compliance and policy breaches. 165

  They were all concerned about Mr Walter’s response that he hadn’t kept the warning of December 2016 front of mind and that he had a client first, second and third mentality. Ms Friedman stated that this meant acting contrary to procedures. 166

  Mr Walter keeping the warning front of mind concerned whether Mr Walter was considering it when he performed his duties – to ensure that he was compliant. 167

  That Mr Walter had not kept the December 2016 warning front of mind lead to an inability to trust that Mr Walter would follow the policies and procedures and also Mr Walter’s personal integrity (the nil advice allegation). 168

  With respect to the nil advice allegation, it was said that Mr Walter was choosing to use the nil advice process to take a shortcut which was not the right thing to do and so related to his integrity. 169

  Integrity was one of ANZ’s values. The other values that Mr Walter was found to have also breached were accountability and excellence. Ms Friedman stated that, for 3 of the allegations, Mr Walter had not breached the value of integrity. 170

  Mr MacFarlan had delivered the findings to Mr Walter in a very methodical way. 171

  The decision was made to shorten the termination letter and not refer to the specific policies and values that were breached for each allegation. Mr Walter was verbally advised of the policies and values’ breaches when Mr MacFarlan conveyed the findings. 172

  The purpose of the meeting was to receive Mr Walter’s responses to the allegations.

  If Mr Walter had additional input into the facts, that would have been considered. 173

  The meeting went for five and a half hours with a break at 4.00 p.m. for 45 minutes (a long meeting). After the break, they had delivered their findings to Mr Walter. 174

  There were a few breaks (about 10 minutes) before the adjournment so they had already begun to consider what was discussed. Ms Friedman stated that the considerations were not just at the end of the meeting. 175

  The adjournment of 45 minutes was of average length. Ms Friedman felt that the break was enough time to properly consider the 10 allegations. It was said that, if she had felt that it wasn’t, they would not have proceeded. 176

  When Mr Walter’s representative had asked whether she thought that they should reconvene, she had insisted that the meeting conclude on that day. This was because they had already had preliminary conversations about some of the responses given and so would be able to work their way through the findings until the close of business. Ms Friedman thought that it was in Mr Walter’s interests to do so as that would give Mr Walter closure that day rather than prolonging the process. 177

  The 45 minute adjournment was enough to give due consideration to Mr Walter’s responses as Mr Walter had made many admissions to the errors. 178

  She had produced the short form termination letter which was signed by Mr MacFarlan. Ms Friedman stated that it was a template document and so she would have kept a copy handy if it was possible that there would be a dismissal. It was said that she would have provided it to the business. 179

  She would have had a copy with her but could not recall specifically how she had accessed it on that day. 180

  At the end of the adjournment, once they had gone through all of the findings, it was printed by Mr MacFarlan. 181

  They didn’t break as such during the adjournment except for using the facilities. It was recalled that they had worked through the findings whilst eating. 182

  At the end of the adjournment, she had called her manager as required if termination was being proposed by the business as the likely outcome. 183

  After the adjournment, Mr Walter’s representative had asked if there was a possibility of resignation prior to being provided with a letter of termination. Ms Friedman confirmed that the offer had been rejected as it was not ANZ policy to accept resignations in misconduct situations. 184

  During the adjournment, there was a discussion about the impact of the termination of Mr Walter, especially in view of his personal circumstances. Ms Friedman recalled that Mr Walter had discussed that he was seeing a psychologist for depression; that his partner had recently undergone IVF and the timing of the new baby. 185

Submissions

Applicant

[84] It was submitted that the Respondent failed to provide an opportunity to respond to the reasons for the termination prior to the decision for termination having been made. 186 The Applicant submitted that no proper consideration was given to the responses made by the Applicant when he met with the Respondent. Rather, that the outcome of that meeting was predetermined and that in effect, it was little more than a “box ticking exercise”.187 It was stated that Ms Friedman and Mr Caulfield admitted to bringing a copy of a termination letter to that meeting.188

[85] During the meeting on 19 April 2018, it was contended that Mr Caulfield stated that they had worked through each allegation and the information available to them and Mr Walter’s response and had then made a determination as to which of the allegations could be substantiated. Mr Caulfield was also said to have stated that a detailed investigation was conducted and that nothing that Mr Walter had raised warranted any further investigation. 189

[86] The Applicant stated that he did not accept that he had done anything intentionally or deliberately wrong or deceitful. 190

[87] It was contended by the Applicant that he was given insufficient opportunity to respond to the 10 allegations of breaches of various and lengthy policies with only 48 hours’ notice. This was said to have been in the context that the Respondent had undertaken a long investigation commencing around February 2018. 191

[88] Further, it was the Applicant’s belief that the decision to terminate his employment was made prior to the five-hour meeting on 19 April 2018 and not during the 45 minute break following. This was on the basis that 45 minutes would have been insufficient time to consider all of the responses and discussions on that day. 192 It was also submitted that the Applicant was denied the ability to rebut and refute the allegations as the Respondent refused to accept his written responses during the meeting on 19 April 2018.193

[89] The Applicant submitted that the outcome of the meeting with Mr Caulfield, Mr MacFarlan and Ms Friedman, on 19 April 2018, was predetermined and so the opportunity to respond to the allegations did not, could not and would not, have had any meaningful impact. 194

[90] In addition, it was stated that the Applicant, through his representative, was refused the opportunity to adjourn the meeting to another day. The Applicant submitted that the Bank had already made the decision to terminate and was merely formalising/communicating that decision. 195 It was contended that a proper course for an employer, acting responsibly, would have been to take an appropriate period of time to consider Mr Walter’s responses and therefore make a decision after 19 April 2018.196

[91] Finally, the Applicant argued that, for these reasons, the decision to dismiss the Applicant was predetermined and that no opportunity to respond to the reasons for termination was provided. 197

ANZ

[92] The Bank strongly rejected the proposition that Mr Walter was denied an opportunity to respond to the reasons for his dismissal. It was contended that it could not be suggested that the reasons, in relation to which Mr Walter was required to be given an opportunity to respond, had changed or included unstated reasons for dismissal. 198

[93] The Respondent stated that the reasons for dismissal were the findings with respect to each of the allegations set out in the allegation letter. It was recounted that, on or around 17 April 2018, Mr Walter received this letter and was invited to a meeting on 19 April 2018 to discuss the contents of the letter. The Respondent stated that the meeting went for about five and a half hours and that Mr Walter was advised at the beginning of the meeting, the purpose of the meeting. Mr Walter’s evidence, that, at the meeting, he had worked through each of the allegations and provided his responses, was highlighted. 199

[94] It was said by the Respondent that, during the meeting, Mr Walter had provided some responses from notes Mr Walter had with him and that Mr MacFarlan had asked clarifying questions and had engaged with Mr Walter about his answers. The Respondent stated that Mr Walter had said, during the course of cross-examination, that he was able to provide responses to each of the allegations in the letter of allegations. It was indicated that Mr Walter had never said that he did not understand the allegations nor did Mr Walter ask for further time to consider the allegations. 200

[95] The Applicant’s submissions that Mr Walter’s dismissal was predetermined and that ANZ did not genuinely consider Mr Walter’s responses, was rejected by the Bank. It was stated that, during the meeting on 19 April 2018, there was debating consideration about whether the allegations were substantiated. Further, there was said to have been a discussion between Mr MacFarlan, Mr Caulfield and Ms Friedman with consensus that each of the allegations was substantiated and that Mr Walter should be dismissed. It was stated that the proposition that the dismissal was predetermined and that there was no genuine consideration of Mr Walter’s responses was said to have not been put to Mr MacFarlan, Mr Caulfield and Ms Friedman during cross-examination. 201

[96] It was submitted that there was no evidence that would allow the Commission to conclude that a firm decision had been made to dismiss Mr Walter prior to the conclusion of the meeting. The Respondent argued that, if a firm decision had already been made, there would have been no reason to hold a meeting for five and a half hours. 202

[97] With respect to the Applicant’s submission that no decision could have been made by ANZ in 45 minutes, it was argued that it was never put to Mr MacFarlan, Mr Caulfield or Ms Friedman, that they should have spent longer than 45 minutes considering Mr Walter’s responses. 203

Considerations and conclusions

[98] It was contended by the Applicant that the meeting on 19 April 2018 was a “tick the box” exercise as the outcome of the meeting was predetermined. This was on the basis that the 45 minute break would have been insufficient time for ANZ to consider all of the responses and discussions. It was argued that, therefore, there was no proper consideration of Mr Walter’s responses.

[99] In addition, the Applicant submitted that 48 hours’ notice of a meeting to respond to 10 allegations had not provided Mr Walter with a sufficient opportunity to respond to the allegations. This was said to be particularly so in light of the Bank’s long investigation.

[100] As well, it was stated that ANZ had refused to accept Mr Walter’s written responses to the allegations. This had resulted in Mr Walter being denied the ability to rebut and refute the allegations.

[101] Further, the Applicant argued that he was refused the opportunity to adjourn the meeting to another day. This was described as another indication that the decision had already been made and that the meeting was merely formalising that decision.

[102] On the other hand, the Respondent disagreed strongly that Mr Walter was denied an opportunity to respond to the reasons for his dismissal. It was stated that the meeting on 19 April 2018 went for about five and a half hours and that Mr Walter was advised at the beginning of the meeting that the purpose of the meeting was for him to respond to the allegations. ANZ explained that Mr MacFarlan had gone through each of the allegations and Mr Walter had provided responses from his notes, to which Mr MacFarlan and the other Bank representatives had responded with clarifying questions.

[103] The Bank rejected the contention that the dismissal was predetermined and that ANZ did not genuinely consider Mr Walter’s responses. It was stated that there had been consideration of whether the allegations were substantiated and discussion between Mr MacFarlan, Ms Friedman and Mr Caulfield about Mr Walter’s responses. The Respondent indicated that consensus was reached that each of the allegations had been substantiated and that Mr Walter should be dismissed.

[104] I have carefully considered the evidence of all of the participants in the meeting (except for Mr Walter’s union representative, who did not give evidence). There appeared to be consensus that Mr Walter was taken through each of the allegations and that he read out his response from a prepared document. It also seems that there was questioning of Mr Walter and discussion with him to clarify his responses. It was a lengthy meeting, even given the number of allegations that were discussed.

[105] I have not been persuaded that the decision had been made to dismiss Mr Walter prior to the meeting on 19 April 2018. It seems that the meeting followed a pattern that each allegation was dealt with in turn with each allegation being explained to Mr Walter, followed by Mr Walter reading his response, followed by discussion between Mr Walter and Mr MacFarlan, together with Ms Friedman and Mr Caulfield. The discussions were generated by follow-up questions to Mr Walter’s responses. Therefore, it is accepted that ANZ genuinely listened to Mr Walter’s responses to the allegations.

[106] With respect to the Applicant’s submission that his responses to the allegations could not have been properly and genuinely considered by ANZ during a 45 minute break, this submission is understood. Prima facie, it would not seem possible for Mr Walter’s responses and discussion regarding 10 allegations, to have been genuinely considered within the space of 45 minutes. However, Mr MacFarlan’s evidence is accepted that there had been a lengthy investigation by the Bank and so the Bank was fully conversant with the relevant clients’ files. In addition, it is probable that Ms Friedman was able to do some of the ground work for deciding about the allegations during the course of the meeting. That ANZ did not accept Mr Walter’s explanations does not necessarily mean that there was not genuine consideration of Mr Walter’s explanations. On the evidence before me, I am unable to conclude that there was not proper consideration of Mr Walter’s responses by ANZ.

[107] In terms of the Applicant’s argument that the Bank, in not accepting Mr Walter’s written submissions at the beginning of the meeting, denied Mr Walter the ability to rebut and refute the allegations, the Commission has not been persuaded that this was the result. It appears that Mr Walter was able to read the document to the Respondent during the meeting as he responded to each of the allegations. Therefore, in effect, it can be said that the Bank had “read” the written submissions by virtue of the fact that Mr Walter read them to Mr MacFarlan, Ms Friedman and Mr Caulfield, when he responded to each of the allegations. It is acknowledged, however, that the Respondent did not actually have a paper copy of Mr Walter’s written submissions. However, Ms Friedman took notes electronically of Mr Walter’s responses over the course of the meeting.

[108] It is understood that ANZ’s motivation in not accepting Mr Walter’s written response was not to provide a barrier to a discussion with Mr Walter about his responses. However, given that Mr Walter had then read out his written responses and there was still a discussion about his responses, the Bank could have accepted Mr Walter’s written response while still allowing for active discussion about each of the allegations. However, in the context of this matter, the non-acceptance by ANZ of Mr Walter’s written response is not considered to render the dismissal process procedurally unfair.

[109] The Applicant contended that, as a result of only being given 48 hours’ notice of the meeting on 19 April 2018, he was prejudiced by being given insufficient time to prepare his responses. Mr Walter provided his written response document as part of his evidence. Having read Mr Walter’s written response, I have not been persuaded that Mr Walter was prejudiced by the amount of notice of the meeting he received. The written response was comprehensive and, in addition to that, Mr Walter was able to provide additional information and discuss his responses over the course of a five and a half hour meeting.

[110] In terms of Ms Friedman’s evidence that she would have had a copy of the short form termination template letter with her on 19 April 2018, the evidence is that, at the end of the break, after consensus had been reached about the appropriate remedy, the short form termination template letter was then printed off and signed by Mr MacFarlan. I have not been persuaded that Ms Friedman’s likely possession of the short form template termination letter was a result of ANZ having already made the decision to dismiss Mr Walter. The evidence before the Commission is that Mr MacFarlan, Mr Caulfield and Ms Friedman discussed the appropriate disciplinary outcome at the end of the break. This was after having considered Mr Walter’s responses to each of the allegations in deciding whether each of the allegations had been made out.

[111] Therefore, the Commission has not been persuaded that Mr Walter was not provided with a genuine opportunity to respond to the reasons for his dismissal.

Section 387(d) – opportunity to have a support person

[112] Mr Walter had a FSU representative with him at the meeting on 19 April 2018.

Section 387(e) - unsatisfactory performance?

[113] This subsection is not relevant in this matter because Mr Walter’s dismissal did not relate to unsatisfactory performance.

Sections 387(f) and (g) – size of undertaking and absence of dedicated human resources

[114] It was submitted by the Applicant that the ANZ was a very large employer with significant dedicated human resources. It was submitted that, therefore, the Bank should be held to the highest standard possible and that any breach, however minor, of the unfair dismissal requirements of the Act, should not be tolerated by the Commission.

[115] The Respondent is a large employer with significant dedicated human resources. Ms Friedman, Senior Employee Relations Adviser was involved in the April 2018 process.

Section 387(h) – any other matters considered relevant

Applicant

[116] It was submitted, on behalf of the Applicant, that there were matters which the Commission should take into account. The first was that Mr Walter suffers from depression which has had an effect on Mr Walter’s employment prospects as well as the effect the termination had on Mr Walter personally. 204

[117] Secondly, the dismissal deprived Mr Walter of a further period of parental leave. 205

[118] It was also argued by the Applicant that the Commission should consider the consequences of Mr Walter’s dismissal in light of the Australian Banking Association’s (ABA) background check protocol. This was said to have the effect of making employment for Mr Walter, in the sector as a financial planner, very difficult for up to the next five years. 206

[119] Finally, the Applicant contended that the termination was harsh given the severity of the allegations. 207

[120] It was Mr Walter’s evidence that he had made complaints about the lack of the administration support and the unreasonableness of the targets since he first raised it in February 2016. Mr Walter’s evidence was that he made further requests in March and April 2016 for additional administrative support but these requests were ignored and the issues relating to targets were said to have never been dealt with. 208

[121] Mr Walter recounted that the administrative support issue was eventually addressed in May 2016 as a result of branch management complaining about the lack of support. It was stated that the administrative support continued until about October 2016 after which it was discontinued. After that, it was recounted that Brooke commenced with the financial planning team in a support capacity and provided significant support until May 2017 when Brooke ceased working with the team. Mr Walters said that this administrative support allowed him to focus on his clients, particularly as there was significant travel involved in his role. 209

[122] It was stated by Mr Walter that the amount of administration work was too onerous in light of the expected performance targets and the performance targets were increasing disproportionately to the market. 210

[123] Mr Walter denied that he did not accept that the administrative tasks were an important part of ensuring compliance with the law. It was said that nobody liked doing them but that they had to be done. Mr Walter acknowledged that he had not done the administrative tasks in relation to the 10 allegations but was unsure if he had received the same level of administrative support as the other planners in his team. 211

[124] It was confirmed by Mr Walter that in about early 2018, Mr MacFarlan had approached him and told him that there were to be less incident reports. He agreed that Mr MacFarlan was not warning him in a formal sense but as an appropriate manager saying that he needed to take some care and be careful and that he needed to do the right thing. 212

ANZ

[125] With respect to the Applicant’s submission that the outcome of the dismissal was disproportionate to the gravity of the misconduct, the Commission was referred to the observations of a Full Bench in Parmalat Food Products Pty Ltd v Wililo (Parmalat). 213 The Full Bench’s observations, to the effect that, if there was a valid reason due to serious misconduct and it had been procedurally fair, it would only be harsh if there were significant mitigating factors, were highlighted.214

[126] The Bank stated that Mr Walter did not deny the conduct that led to his dismissal. It was argued that this was not isolated behaviour but part of a pattern of behaviour. This behaviour was described as demonstrating a continual disregard for the AIM, the Code of Conduct and Ethics and other policies. As well, it was stated that, in some cases, Mr Walter’s behaviour had resulted in customers losing significant amounts of money – a serious issue for the Bank. 215

[127] With respect to the contention that Mr Walter have been placed on a “list”, it was stated that completion of the Australian Banking Association’s reference check form regarding any information relating to Mr Walter’s past performance, could not be completed without Mr Walter’s written consent. 216

[128] Further, it was said that Mr Walter had attached the ABA’s Banking Industry Conduct Background Check Protocol to his witness statement. The Respondent explained that this protocol was distinct from the ABA reference checking protocol and did not apply in the circumstances of Mr Walter’s case. 217

[129] In terms of the Applicant’s submissions in relation to depression, the Respondent indicated that this was a matter of weight for the Commission, given the absence of any medical evidence. 218

[130] Finally, it was stated that it was never put to Mr MacFarlan or Mr Caulfield, during cross-examination, that Mr Walter’s time on the road had any effect on his ability to perform his work. Therefore, it was not possible for the Commission to find that Mr Walter’s time on the road impacted on Mr Walter’s ability to comply with ANZ’s policies and procedures. 219

Considerations and conclusions

[131] The Applicant has argued that the lack of administrative support is a relevant matter which the Commission should take account of. It would seem that there is administrative work required when dealing with clients in accordance with the AIM processes. Whilst acknowledging that compliance with the required financial planner processes (the AIM) involved a great deal of paper work, I have not been persuaded that this was a major contributing factor to Mr Walter’s inability to comply with the required administrative processes. On the basis of Mr Walter’s evidence, it may be that Mr Walter’s commitment to giving his clients priority may have had a greater impact than any lack of administrative support.

[132] With respect to the issue of Mr Walter’s depression, unfortunately, the Commission does not have before it any supporting medical evidence in relation to this matter. Therefore, the Commission is unable to give it a great deal of weight.

[133] In terms of the contention that the Bank had damaged Mr Walter’s future employment prospects by placing his name on an ABA background check protocol list, on the basis of the evidence of Ms Friedman, I have not been persuaded that Mr Walter’s future employment prospects have been damaged by ANZ in that regard.

[134] Finally, the Applicant’s contention that the amount of time that Mr Walter spent on the road had an adverse impact on his ability to undertake all of the administrative work in compliance with ANZ’s policies and procedures, was not put to any of the Respondent’s witnesses during cross examination. Therefore, applying the rule in Browne v Dunn 220, I am unable to take account of this matter.

Was the dismissal harsh, unjust or unreasonable?

[135] In all of the circumstances of this matter and, having taken account of, and balanced, the matters set out in s.387 of the Act, I determine that Mr Walter’s dismissal was not harsh, unjust or unreasonable.

[136] Specifically, I do not find that Mr Walter’s dismissal was harsh in the sense that the dismissal was disproportionate to the severity of the allegations. The conduct that formed the reason for Mr Walter’s dismissal reflected a pattern of behaviour that demonstrated a lack of attention to administrative detail and seeming inability to follow the Bank’s proper financial planning processes. These incidents were not one-off occurrences and were highly similar to the reasons Mr Walters was given a written warning in December 2016.

[137] In addition, Mr Walter’s conduct contravened ANZ’s AIM and the Code of Conduct and Values. It is noted, however, that it was accepted that Mr Walter’s failures to adhere to the AIM and ANZ’s Code of Conduct and Values were not intentional or deliberate. It has been also found that the dismissal process was procedurally fair.

[138] Accordingly, Mr Walter’s application is dismissed. An order 221 to this effect will be issued separately.

al of the Fair Work Commission with member's signature

Appearances:

A Cousner of the Finance Sector Union of Australia for the Applicant

M Minucci of Counsel for the Respondent

Hearing details:

2018.

Melbourne:

October 4.

Final written submissions:

Applicant, 29 October 2018

Respondent, 14 November 2018

Applicant, 21 November 2018

Printed by authority of the Commonwealth Government Printer

<PR703578>

 1   PR700707

 2   Email from the Respondent’s representative, dated 8 October 2018

 3   Exhibit R2 at paragraphs 28 – 29 and Attachment JRM4

 4   Ibid

 5   Exhibit R3 at Attachment DAC13

 6   Transcript PN 11 – 19 and 31

 7   Exhibit R3 at Attachments DAC10 and DAC13, Exhibit R1 at paragraph 23 and Respondent’s Closing Submissions, dated14 November2018, at paragraphs 17 – 18

 8   Transcript PN 244

 9   Ibid PN 247 – 249

 10   Exhibit A2 at Attachment DW6

 11   Transcript PN 250 – 251

 12   Ibid PN 252 – 253

 13   Ibid PN 254

 14   Ibid PN 240 – 243

 15   Exhibit R3 at Attachments DAC10 and DAC 13, Exhibit R1 at paragraph 25 and Respondent’s Closing Submissions,dated14 November 2018, at paragraphs 21-25

 16   Transcript PN 273 – 274 and 280

 17   Exhibit A2 at Attachment DW6

 18   Transcript PN 258 – 262 and 270

 19   Ibid PN 275

 20   Exhibit A2 at Attachment DW6

 21   Ibid and Transcript PN 278 – 279

 22   Transcript PN 276 – 277

 23   Ibid PN 281

 24   Exhibit A2 at Attachment DW6

 25   Ibid and Transcript PN 287 – 280

 26   Ibid and Transcript PN 291 and 295 – 296

 27   Exhibit A2 at Attachment DW6

 28   Transcript PN 297 – 298

 29   Ibid PN 292

 30   Ibid PN 293

 31   Ibid PN 299

 32   Ibid PN 300 – 306

 33   Exhibit A2 at Attachment DW6

 34   Ibid

 35   Ibid

 36   Ibid

 37   Transcript PN 307 – 308

 38   Ibid PN 309 – 320

 39   Ibid PN 321 – 327

 40   Ibid PN 328 – 329

 41   Ibid PN 330

 42   Ibid PN 332

 43   Ibid PN 334 – 336

 44   Ibid PN 337

 45   Exhibit R3 at Attachment DAC13 and Respondent’s Closing Submissions, dated14 November 2018, at paragraphs 40 – 43

 46   Transcript PN 368 – 370

 47   Exhibit A2 at Attachment DW6

 48   Transcript PN 343 – 346

 49   Ibid PN 347 – 348 and Exhibit A2 at Attachment DW6

 50   Ibid PN 377 – 381

 51   Ibid PN 382 – 386

 52   Ibid PN 390 – 392 and Exhibit A2 at Attachment DW6

 53   Ibid PN 394 – 396

 54   Ibid PN 397 – 398

 55   Exhibit A2 at Attachment DW6

 56   Exhibit R3 at Attachments DAC10 and 13 and Closing Submissions of the Respondent, dated 14 November 2018, at paragraphs 45 – 55

 57   Transcript PN 415 – 416

 58   Ibid PN 417

 59   Ibid PN 418, 421 and 440

 60   Exhibit A2 at Attachment DW6

 61   Transcript PN 419 and 422

 62   Ibid PN 423 – 424

 63   Ibid PN 426

 64   Ibid PN 427 – 428

 65   Ibid PN 429 – 430

 66   Ibid PN 431

 67   Ibid PN 434

 68   Exhibit A2 at Attachment DW6

 69   Transcript PN 435 – 436

 70   Ibid PN 438 – 439

 71   Ibid PN 441

 72   Exhibit A2 at Attachment DW6

 73   Transcript PN 442

 74   Exhibit R3 at Attachments DAC10 and 13 and Closing Submissions of the Respondent, dated 14 November 2018, at paragraphs 57 – 59

 75   Exhibit A2 at Attachment DW6 and Transcript PN 449 – 456

 76   Ibid at Attachment DW6

 77   Ibid

 78   Transcript PN 456 – 460

 79   Exhibit R3 at Attachments DAC10 and 13 and Closing Submissions of the Respondent, dated 14 November 2018, at paragraphs 60 – 61

 80   Exhibit A2 at Attachment DW6 and Transcript PN 463 – 470

 81   Exhibit R3 at Attachments DAC10 and 13 and Closing Submissions of the Respondent, dated 14 November 2018, at paragraphs 62 – 65

 82   Transcript PN 472 – 480 and 492

 83   Exhibit A2 at Attachment DW6

 84   Transcript PN 482 – 491

 85   Ibid PN 481 and 493 – 495

 86   Exhibit R3 at Attachments DAC10 at 13 and Closing Submissions of the Respondent, dated 14 November 2018, at paragraph 66 – 71

 87   Transcript PN 505 – 511 and 516

 88   Ibid PN 514

 89   Exhibit R3 at Attachments DAC10 and 13 and Closing Submissions of the Respondent, dated 14 November 2018, at paragraph 73 – 76

 90   Exhibit A2 at Attachment DW6

 91   Ibid

 92   Ibid

 93   Transcript PN 522 – 523

 94   Ibid PN 524 – 528

 95   Ibid PN 530 – 534

 96   Ibid PN 535 – 536

 97   Ibid PN 537 – 539

 98   Applicant’s Closing Submissions, dated 29 October 2018, at paragraph 5 and Exhibit A2 at paragraph 94

 99   Applicant’s Closing Submissions, dated 29 October 2018, at paragraph 7

 100   Exhibit A2 at Attachment DW6

 101   Ibid at paragraphs 7 – 8

 102   Ibid at paragraph 9

 103   Ibid at paragraph 10

 104   Exhibit R1 at paragraphs 51 – 53 and Respondent’s Closing Submissions, dated 14 November 2018, at paragraph 80

 105   Exhibit R1 at paragraph 52

 106   Ibid at paragraph 52 and Respondent’s Closing Submissions, dated 14 November 2018, at paragraph 83

 107   Respondent’s Closing Submissions, dated 14 November 2018, at paragraph 81 and Exhibit R2 at paragraph 26

 108   Closing Submissions of the Respondent, dated 14 November 2018, at paragraph 4

 109   Ibid at paragraph 5

 110   Ibid at paragraph 6

 111   Ibid at paragraph 7

 112   Ibid at paragraphs 8 – 9

 113   Transcript PN 586 – 589

 114   Ibid PN 590 – 593

 115   Ibid PN 594 – 595

 116   Ibid PN 596

 117   Ibid PN 598 – 602

 118   Ibid PN 602 – 606

 119   Ibid PN 843

 120   Ibid PN 845

 121   Ibid PN 848 – 851

 122   Ibid PN 855 – 858

 123   Ibid PN 859 – 863 and Exhibit R4 at Attachment BF1

 124   Ibid PN 863 – 868

 125   Ibid PN 871 – 873

 126   Ibid PN 876 – 878 and 883 – 884

 127   Ibid PN 893 – 900

 128   Ibid PN 902 – 93

 129   Ibid PN 904 – 923 and 1107 – 1109

 130   Ibid PN 923 – 927

 131   Ibid PN 929 – 932 and 937 – 940

 132   Ibid PN 995 – 1010

 133   Ibid PN 1012 – 1018 and 1022 – 1050

 134   Ibid PN 1098 – 1101

 135   Exhibit R3

 136   Ibid at paragraphs 57 – 58

 137   Ibid at paragraph 59

 138   Ibid at paragraph 60

 139   Ibid and at Attachment DAC11

 140   Ibid at paragraph 62

 141   Ibid

 142   Ibid at paragraph 63

 143   Ibid at paragraph 64

 144   Ibid at paragraph 65

 145   Ibid

 146   Ibid

 147   Ibid

 148   Ibid at paragraph 66

 149   Ibid at paragraph 67

 150   Ibid at paragraph 68

 151   Ibid at paragraph 69

 152   Ibid

 153   Transcript PN 1217 – 1219 and 1222 and Exhibit R4 at paragraph 15 and Attachment BF1

 154   Ibid PN 1223

 155   Ibid PN 129 – 1221

 156   Ibid PN 1226 and Exhibit R4 at paragraph 17

 157   Ibid PN 1227 and ibid at paragraph 17

 158   Ibid PN 1228 and ibid

 159   Ibid PN 1234 – 1253 and ibid at paragraph 21 and Attachment BF2

 160   Ibid PN 1254 and ibid at paragraph 22

 161   Ibid PN 1255 – 1260

 162   Ibid PN 1261 – 1262 and Exhibit R4 at paragraph 22

 163   Ibid PN 1267 and ibid at paragraph 22

 164   Ibid PN 1263 – 1264 and ibid at paragraph 23

 165   Ibid PN 1264 – 1267 and ibid at paragraph 23

 166   Ibid PN 1265, 1268 and 1277 and ibid at paragraph 20

 167   Ibid PN 1278

 168   Ibid PN 1268 – 1271

 169   Ibid PN 1272

 170   Ibid PN 1296 – 1302

 171   Ibid PN 1303 – 1304

 172   Ibid PN 1305 – 1316

 173   Ibid PN 1317 – 1328

 174   Ibid PN 1329 – 1337

 175   Ibid PN 1338 – 1339

 176   Ibid PN 1341 – 1342

 177   Ibid PN 1343 – 1347

 178   Ibid PN 1348

 179   Ibid PN 1349 – 1354

 180   Ibid PN 1355

 181   Ibid PN 1356

 182   Ibid PN 1357 – 1358

 183   Ibid PN 1359 – 1367 and Exhibit R4 at paragraph 24

 184   Ibid PN 1370 – 1372 and ibid at paragraph 25

 185   Ibid PN 1375 – 1379 and ibid at paragraph 23

 186   Applicant’s Closing Submissions, dated 29 October 2018, at paragraphs 14 and 16

 187   Ibid at paragraph 17 and Applicant’s Closing Submissions in Reply, dated 21 November 2018, at paragraph 4

 188   Ibid at paragraph 18 and ibid at paragraph 5

 189   Applicant’s Closing Submissions, dated 29 October 2018, at paragraph 19

 190   Ibid at paragraph 20

 191   Ibid at paragraph 21

 192   Ibid at paragraph 22 and Applicant’s Closing Submissions in Reply, dated 21 November 2018, at paragraphs 6, 8 and 11

 193   Applicant’s Closing Submissions, dated 29 October 2018, at paragraph 23

 194   Ibid at paragraph 23 and Applicant’s Closing Submissions in Reply, dated 21 November 2018, at paragraph 12

 195   Applicant’s Closing Submissions, dated 29 October 2018, at paragraph 25

 196   Ibid at paragraph 26

 197   Ibid at paragraph 27 and Applicant’s Closing Submissions in Reply, dated 21 November 2018, at paragraphs 14 – 15

 198   Closing Submissions of the Respondent, dated 14 November 2018, at paragraphs 85 – 87

 199   Ibid at paragraphs 88 – 91

 200   Ibid at paragraph 91

 201   Ibid at paragraphs 93 – 94

 202   Ibid at paragraph 95

 203   Ibid at paragraph 96

 204   Applicant’s Closing Submissions, dated 29 October 2018, at paragraphs 30 – 31

 205   Ibid at paragraph 32

 206   Exhibit A1 at paragraphs 21 – 22 and 24 and Exhibit A2 at paragraphs 113 – 119

 207   Ibid at paragraph 22

 208   Exhibit A2 at paragraphs 13 – 18

 209   Ibid at paragraphs 17 – 28

 210   Ibid at paragraph 15

 211   Transcript PN 546 – 549

 212   Ibid PN 550 – 552

 213   [2011] FWAFB 1166

 214   Exhibit R1 at paragraph 58 – 59

 215   Ibid at paragraph 60

 216   Ibid at paragraph 61 and Respondent’s Closing Submissions, dated 14 November 2018, at paragraph 101

 217   Exhibit R1 at paragraph 62

 218   Respondent’s Closing Submissions, dated 14 November 2018, at paragraph 102

 219   Ibid at paragraph 100

 220   (1893) 6 R 67

 221   PR703641