EX-TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Dinov
v
Australia and New Zealand Banking Group Ltd T/A ANZ Bank
(U2020/14169)

Application for an unfair dismissal remedy – misconduct in accessing customer profiles without a proper business purpose - no unfairness - application dismissed.

[1] This matter was heard before me on 1 and 5 February 2021. Following the hearing on 5 February 2021, I adjourned to later deliver my decision on transcript. As advised at the time, a published decision would issue; this is now the published version of the decision, edited for style and clarity. 1

[2] Ms Joanne Dinov has made an application alleging she was unfairly dismissed by her employer, ANZ, and seeks compensation as a remedy.

[3] The employer opposed the application and advised, pursuant to its Form F3 Employer Response, that the employer’s correct name is Australia and New Zealand Banking Group Limited. At the Commission’s invitation, Ms Dinov applied to amend the name of the employer in her application which was not opposed.

[4] Pursuant to s.586 of the Fair Work Act 2009, the application has been amended to the extent that the true legal employer of the applicant, Ms Dinov, is correctly identified as the Australia and New Zealand Banking Group Ltd.

[5] Ms Dinov represented herself, and pursuant to leave having been granted by the Commission, reasons for which were provided in the decision of the Commission on 27 January 2021, 2 ANZ were legally represented.

[6] Ms Dinov was employed as a personal banker on a part-time basis, working 25 hours per week at the respondent’s Balmain Branch, New South Wales.

[7] Ms Dinov has been employed with ANZ since July 2017 and was terminated on 23 October 2020, when she received a written notice advising of her termination of employment which stated that following an investigation into her behaviour, a decision had been made to terminate her employment immediately.

[8] Ms Dinov’s final termination payment included payment in lieu of notice and any outstanding leave entitlements.

[9] Subsequently, on 28 October 2020, a further written notice of termination providing more extensive reasons for the dismissal was provided to Ms Dinov.

[10] The reasons for Ms Dinov’s dismissal were said to relate to unacceptable behaviour that consisted of:

•  misusing the ANZ software system referred to as iKnow, in accessing the profile of a customer and family member with the initials DD without approval or a legitimate business purpose on 24 October 2019;

•  between 11 October 2019 and 16 June 2020 using the iKnow system to search and access the profile of 16 individuals, some of whom were ANZ customers, without a proper business purpose or approval on a total of 132 occasions;

•  misusing iKnow by accessing the profile of an ANZ customer and a family member with the initials SD on two occasions without approval or a legitimate business purpose on 24 October 2019 and 10 January 2020;

•  between 28 April 2020 misusing iKnow by searching the profile of a colleague without approval or a legitimate business purpose.

[11] In Ms Dinov’s application she denies the allegations claiming that she did not know any of the people whose accounts were said to have been improperly accessed by using the iKnow system, and had no reason to access or attempt to access the accounts of persons who were not known to her.

[12] Ms Dinov stated that prior to going on annual leave on 11 July 2020, she had had issues with an acting branch manager to the extent that she had had time off work. On returning to work on 27 July, a few days later, on 30 July she received correspondence from the acting branch manager outlining the allegations that led to an investigation and eventually her dismissal.

[13] Correspondence of 30 July 2020 does not appear to have been tendered and it would appear that Ms Dinov is referring to correspondence of 11 August 2020 signed by an ANZ senior investigator.

[14] Ms Dinov also submitted that due to her dismissal she would find it difficult to obtain employment elsewhere in the banking industry as ANZ have deemed her misconduct as being covered by the Australian Bankers Association Conduct Background Check Protocol requiring the reasons for her dismissal to be disclosed should a prospective banking employer, who was covered by the protocol, make a relevant inquiry.

[15] Ms Dinov provided brief written submissions and a witness statement in the form of a statutory declaration to support her application. No witnesses were called on her behalf. Ms Dinov was subject to cross-examination.

[16] Ms Dinov also filed an incomplete statutory declaration said to have been completed by her brother, Mr Dean Dinov. The statutory declaration filed on 11 January in the Commission was undated and unsigned. The template statutory declaration purportedly completed by Mr Dean Dinov stated he did not hold any bank accounts with ANZ.

[17] On 28 January 2021, ANZ advised Ms Dinov that her brother was required for cross-examination. The following day Ms Dinov advised that her brother would require more than two business days’ notice to attend the hearing, which was to commence on 1 February 2021.

[18] At the conclusion of the hearing on 1 February 2020, the matter was relisted for 5 February, to enable Ms Dinov to have her brother attend and attest to his unsigned statutory declaration.

[19] Today, Mr Dinov was not in attendance and Ms Dinov stated that her brother was unable to attend. No reason was provided. I therefore place no weight on the unsigned template statutory declaration.

[20] In any event, as discussed further, Ms Dinov has conceded today that on the supplementary evidence of Mr Parkinson that accounts in the name of her brother were indeed held by ANZ.

[21] Ms Dinov’s statutory declaration stated that she had issues with reporting to the acting branch manager, Mr George Vrahnos. He had raised his voice at her and spoken in an unpleasant tone. Whilst on annual leave in July 2020, Mr Vrahnos telephoned Ms Dinov advising that staff members in the Balmain branch were being offered voluntary redundancy and urged her to apply to which she replied she was not interested. When Ms Dinov returned from annual leave Mr Vrahnos handed her correspondence on 30 July 2020 which accused her of looking at her father and brother’s profiles. However, in Ms Dinov’s initial evidence she stated that her father and brother did not bank or hold accounts with ANZ.

[22] Ms Dinov stated that she had raised with a senior colleague, Ms Gail Zimmerer, on a few occasions in the last 18 months about her work desk being tampered with and she had noticed that items were out of place. Ms Zimmerer expressed no interest and stated that personal drawers can be accessed for customer information when staff are away. Ms Dinov stated that customer information was not kept in staff drawers as filing cabinets existed for this purpose.

[23] Ms Dinov, in her oral evidence, stated that the address for the account of her brother, Mr Dean Dinov in Darlington, New South Wales, provided by ANZ was not an address that her brother had ever lived at, and that his residential address was that as stated in the unsigned and undated statutory declaration purportedly completed by her brother. It was revealed in submissions today by Ms Dinov that the address was that of her parents and an address that she had previously lived at.

[24] Ms Dinov agreed in cross-examination that under ANZ policy she was unable to access customer accounts including those of her family or friends without an appropriate business reason. When taken to spreadsheets that indicated that her account had been used to conduct numerous searches under names that included her surname and other Slavic surnames Ms Dinov denied having conducted the searches, although she agreed that her account had been used to do so. In respect of one name, that of a New South Wales celebrity, Ms Dinov denied having any knowledge of that person.

[25] Ms Dinov asserted that it was possible that other employees at the branch had used her account by obtaining her password that she kept in a written form in her drawer. Although the password needed to be changed every 60 days in accordance with ANZ requirements, and in her evidence stated she had changed it more frequently due to IT difficulties she had experienced.

[26] While acknowledging that the evidence produced by ANZ indicated that her account had been used to access numerous names unrelated to any business banking inquiry she was required to undertake, Ms Dinov maintained in her oral evidence, consistent with her previous responses to ANZ, that she did not make the inquiries and had no knowledge of why the searches were made or by whom, other than it was possible her password had been accessed for this purpose. And, finally, that there was no benefit to herself in undertaking the name searches.

[27] During the hearing, Ms Dinov also made the serious allegation that the reported accounts of her brother, Mr Dean Dinov, may have been created recently by ANZ to defend their allegations.

[28] As this allegation had not previously been made, ANZ were granted leave to provide any evidence to the contrary. Evidence on behalf of ANZ was provided by Ms Juliana Blockley, the Talent and Culture Consultant, Employee Relations, and Mr Matthew Parkinson, Acting District Manager Inner West Retail Distribution.

[29] Both witnesses provided witness statements regarding events leading up to Ms Dinov’s dismissal and their evidence was not seriously challenged by the cross-examination of Ms Dinov.

Valid Reason

[30] In dealing with unfair dismissals the Commission is required to take into account a number of factors, the first being whether there was a valid reason for the dismissal relating to the employee’s conduct.

[31] ANZ have submitted that Ms Dinov was dismissed for deliberately and repeatedly accessing confidential information about her family members, her colleagues and other bank customers in direct contravention of ANZ’s policies and procedures. The resulting actions of Ms Dinov constituted, in their view, serious misconduct.

[32] The ANZ customer database known as iKnow allows ANZ employees to search for account holders, transaction histories, and other customer data. It is said to be the primary software database used by ANZ employees with customer facing roles and it is the first port of call for any customer transactions.

[33] The information that ANZ holds in relation to its customers includes a customer’s date of birth, their address, contact and financial information, and transaction histories. It is submitted that where this information is misused or accessed for improper purposes it can potentially cause serious harm to a customer. ANZ submits that it has a responsibility that this information is protected.

[34] ANZ’s Prohibited Activities Policy states that employees must not use ANZ’s systems such as iKnow to view accounts of their relatives or friends and prohibits the use of its systems for accessing the accounts of other ANZ employees without a genuine business requirement to do so or permission from the account holder, where appropriate, is given.

[35] There is no real dispute in this application that via iKnow confidential information in breach of ANZ’s policies and procedures was either accessed or attempted to be accessed on numerous occasions using Ms Dinov’s password as varied from time to time.

[36] By using iKnow an employee can search for a customer name and where the search generates a result then an employee can access the customer profile and their account information.

[37] In denying these allegations, Ms Dinov, during the investigation process and subsequently, provided the following possible explanation for the accessing of confidential information outside ANZ’s policies using her account password by suggesting that somebody must have:

•  tampered with her work drawer,

•  accessed her iKnow login password that she had written down and placed in her work drawer,

•  logged onto a computer using her password,

•  conducted the searches which included those related to her brother and her father using her password.

[38] A supplementary witness statement of Mr Matthew Parkinson was filed in respect of the submissions of Ms Dinov that she could not have searched for any accounts in the name of her brother as she knew he did not hold any accounts consistent with his unsigned statutory declaration, and her allegation that accounts in her brother’s name may have been created by ANZ to assist in the decision to terminate her employment.

[39] Mr Parkinson states that shortly after becoming aware of the unsigned statutory declaration of Mr Dinov attesting to not having any ANZ bank accounts he conducted a search of ANZ’s iKnow system under the name Dino Dinov. This search and a further search on 2 February 2021 revealed two separate profiles under the name of Dino Dinov. Both profiles had matching birth dates suggesting the two profiles were for the same individual.

[40] The first profile showed that there were two active savings accounts and recorded an email address and mobile telephone number. The second profile showed that there were no active accounts, however, the mobile telephone was the same as that listed in the active profile.

[41] In relation to the active profile, ANZ records indicated the profile was opened in 2014 with the active accounts being opened in 2015. Mr Parkinson attached two signature cards signed under the name of Dino Dinov.

[42] Mr Parkinson’s supplementary witness statement refers to an email Ms Dinov sent via her ANZ work email account to her brother in October 2019. The email attached a draft affidavit which contained an email address, mobile telephone number, and birth date identical to records held by ANZ for the active and inactive profiles of Mr Dino Dinov.

[43] Given that the email address, mobile telephone number and date of birth listed in Mr Dino Dinov’s draft affidavit are the same as those contained in ANZ banking records I am satisfied, as submitted by ANZ, that Ms Dinov’s brother does hold bank accounts with ANZ and these accounts were opened in 2015, well before Ms Dinov commenced employment with ANZ in July 2017.

[44] This, as stated earlier, was conceded by Ms Dinov when asked by the Commission during her closing submissions. It must go without saying that any suggestion by Ms Dinov that accounts in her brother’s name were created to support ANZ in its termination of employment is completely without substance.

[45] ANZ have not accepted the explanation provided by Ms Dinov as being either plausible or logical and have concluded that it was Ms Dinov that conducted the non-work related profile searches and not some unknown person using her password by accessing her work drawer.

[46] ANZ pointed to the implausibility of Ms Dinov’s explanation in a number of ways:

•  There is no plausible explanation as to why another person would wish to use iKnow to conduct searches for Ms Dinov’s father or brother.

•  Ms Dinov was unable to identify who would have accessed her login details or might have had the motivation to do so.

•  ANZ records indicate that no single employee was present at the Balmain branch on every date the names were searched for, while the only person present on each occasion a search was performed was Ms Dinov herself.

•  Ms Dinov’s password having to be changed at least every 60 days, an unknown person would have had to have accessed her work drawer on a number of occasions to obtain her new password.

•  Ms Dinov routinely took her drawer key home every night and the only persons with access to the spare keys were Ms Zimmerer and the branch manager.

•  The persons searched had addresses between 39 and 277 kilometres away from the Balmain branch including outside New South Wales making it unlikely that these individuals had ever attended the Balmain branch and were seen by Ms Dinov in her capacity as a personal banker.

[47] The Commission is also asked to note by ANZ that on occasions the searching of names using Ms Dinov’s credentials occurred within a short period of time between Ms Dinov having made legitimate work-related searches, making it even less probable that an unknown person had performed the searches using Ms Dinov’s password in the intervening periods.

[48] Having heard the evidence of Ms Dinov, I have arrived at the same conclusion as that of her employer, that her explanations are implausible and that on the balance of probabilities the misconduct alleged was indeed undertaken by Ms Dinov.

[49] I do not accept that Ms Dinov’s dismissal was related to any other workplace issue that may have existed at the time.

[50] The misconduct was a serious breach of ANZ’s policies and provided a valid reason for her termination.

S.387(b) Notification of the reason for termination of employment

[51] In considering other aspects under s.387 of the Act, the Commission is required to take into consideration whether the applicant was notified of the reasons for her dismissal. There is no suggestion by Ms Dinov that she was not made aware of the reasons for her dismissal. An investigation was undertaken prior to which Ms Dinov received the allegations of misconduct in correspondence dated 11 August 2020, titled Invitation to Attend an Investigation Interview, following which Ms Dinov was invited to attend meetings to discuss the allegations.

[52] Further, on 21 October 2020 Ms Dinov was again advised in writing of the allegations leading to her dismissal in correspondence titled Meeting Invitation Regarding Your Behaviour, Post Investigation.

S.387(c) Opportunity to Respond

[53] A fact finding investigation was initially conducted by a senior investigator from ANZ’s Group Integrity Team. Meetings were conducted on 13 August 2020 and 4 September 2020 with Ms Dinov.

[54] A meeting on 22 October 2020 was conducted by Mr Parkinson with Ms Blockley in attendance by telephone where it was put to Ms Dinov each of the profiles she was alleged to have searched or accessed. The meeting was adjourned as Ms Dinov needed to leave due to parenting responsibilities and reconvened the following day, 23 October 2020.

[55] At this meeting, Ms Dinov was provided with an opportunity to respond to the allegations of misconduct. The meeting lasted for around two hours. Ms Dinov denied the allegations while asserting that someone could have accessed her login details and conducted the searches.

S.387(d) Support person

[56] At all meetings Ms Dinov was provided with an opportunity to have a support person.

S.387(e) Previous warnings for unsatisfactory performance

[57] Ms Dinov’s dismissal was not related to unsatisfactory performance, but rather misconduct contrary to the ANZ policies. The misconduct was only identified following Mr Parkinson’s concerns during his visits to the Balmain branch that Ms Dinov, while working regularly at her desk, did not often physically attend to serve customers. On examining some of the weekly reports for the Balmain branch he observed the number of the customers Ms Dinov served each week was much lower than other personal bankers employed at the branch.

[58] In early July 2020, Mr Parkinson spoke to a senior investigator in the ANZ Group Integrity team advising that Ms Dinov’s productivity appeared to be low and that there were indicators that something was not right. The senior investigator suggested that extracting Ms Dinov’s iKnow logs would show what she was working on.

[59] The logs showed that Ms Dinov had conducted specific searches of the first and last name of individuals who appeared to be family members because they had the same surname as well as generic searches for the name, Dinov. The logs also showed a number of different individuals with a Slavic name had been searched on a number occasions. Additionally, a current and former employee had been searched by Ms Dinov. It was only as a result of these searches under Ms Dinov’s credentials that the misconduct was uncovered.

S.387(f) and (g) Size of the enterprise and impact on dismissal procedures and human resource expertise

[60] ANZ is a large employer with access to dedicated human resources management expertise, and it has followed what is to be expected in conducting an investigation of employee misconduct.

S.387(h) Other Matters

[61] The Commission is required to have regard for any other matter it considers relevant. Ms Dinov was a part-time employee having commenced her employment in July 2017, which is neither a lengthy nor short period of service.

[62] I note Ms Dinov’s final termination payment included payment in lieu of notice, and that she remains without employment.

[63] I accept as put by Ms Dinov that due to the reasons for her dismissal requiring ANZ to reveal details to prospective employers who are major banks under the Australian Bankers Association Better Banking Program, that she is unlikely to find employment in the banking industry for at least a period of five years.

[64] Against this I must consider that Ms Dinov continues to refute the reasons for her dismissal and therefore has not demonstrated any contrition other than offering, in my view, unconvincing explanations.

[65] The ANZ Bank, in respect of its customers, is entrusted with highly sensitive and personal information that is sourced from customers opening accounts which may include applying for loans. Staff must not access information without a proper and legitimate business purpose. The evidence has demonstrated that Ms Dinov’s searching of customer accounts did not meet this threshold.

[66] Ms Dinov’s continued employment would undermine the values of the employer and the trust placed in it by its customers.

[67] I am unable to find mitigating factors or circumstances that indicate that Ms Dinov was unfairly dismissed. On this basis Ms Dinov has not made out her case.

[68] The application for an unfair dismissal remedy is dismissed.

[69] The matter is otherwise adjourned.

DEPUTY PRESIDENT

Appearances:

J Dinov on her own behalf

M Minucci of Counsel and A Prpich Solicitor for the respondent

Hearing details:

2021

1 and 5 February

Printed by authority of the Commonwealth Government Printer

<PR726913>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   [2021] FWC 360