Andrew Young v Westpac Banking Corporation [2024] FWC 2990

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Young v Westpac Banking Corporation (U2024/11196) DEPUTY PRESIDENT MASSON MELBOURNE, 29 OCTOBER 2024 Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed. Introduction [1] This decision concerns an application made by Mr Andrew Young (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant, who was employed by Westpac Banking Corporation (the Respondent), alleges he was dismissed on 30 August 2024. The unfair dismissal application was lodged by the Applicant on 21 September 2024. [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 30 August 2024, the period of 21 days ended at midnight on 20 September 2024. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act. [3] The application for an extension of time to file the unfair dismissal application was set down for determinative conference on 28 October 2024 in advance of which the parties filed material in accordance with directions issued. At the determinative conference held on 28 October 2024, the Applicant appeared and gave evidence while the Respondent was represented by Ms Georgie Richardson, who called Shannon O’Doherty (Regional General Manager, Melbourne CBD & Inner Metro for Westpac) to give evidence. Background and evidence [4] The Applicant commenced employment with the Respondent on a permanent part-time basis on 13 September 2021 in the role of Customer Service Advisor.1 More recently the Applicant was offered and accepted a role of Personal Banking Advisor2 on a permanent part- [2024] FWC 2990 DECISION -- 1 of 11 -- [2024] FWC 2990 2 time basis on a base salary of $61,000 per annum and hours of work initially averaging 26 hours per week. He commenced in this role on 20 March 2023. [5] The Applicant states that he made a complaint about a fellow employee to the Acting Regional General Manager on or about 1 August 2024 for what the Applicant perceived to be a breach of the Australian Banking Code of Practice Chapter 13. During cross-examination, the Applicant conceded that the Acting General Manager with whom he raised the complaint may not have been an ‘eligible recipient’ for the purpose of receiving a complaint under the Whistleblower policy and that he was not aware of the definition of ‘eligible recipient.’ In any case, the CEO was subsequently notified of the complaint on or about 3 September 2024, thus formalising the complaint notification requirement under the relevant policy. [6] Mr O’Doherty states that on 7 August 2024, he was alerted by Westpac’s Risk team that Mr Young had inappropriately accessed a customer’s banking profile on three separate occasions. This led him to refer the alert to Westpac’s specialist investigations team which commenced an investigation into the Applicant’s conduct.3 Mr O’Doherty further states that he called the Applicant on 14 August 2024 to inform him of a confidential matter that he needed to discuss with him. A meeting was then scheduled for 15 August 20244 to which the Applicant was advised he was able to be accompanied by a support person. During the meeting on 15 August 2024, the Applicant was notified by Mr O’Doherty of the investigation into his alleged breaches of Westpac’s Group Code of Conduct, Privacy Policy, Technology Code of Use and Conflict of Interest Policy.5 [7] A letter was subsequently provided to the Applicant on 15 August 20246 (the 15 August Letter) which set out the following allegations; “Allegation 1 It is alleged that on three (3) occasions on 2 August 2024 (at 2:56pm, 4:38pm, and 4:41pm, respectively), you used Westpac Banking system, SOL, to view the banking profile of Westpac Group customer Mr IP* without: (a) a legitimate business purpose; or (b) consent from the customer. Allegation 2 It is alleged that at 4:48pm on 2 August 2024, you used Westpac Banking system, SASI, to view the banking profile of Westpac Group customer Mr IP* and change his internet banking password without: (a) a legitimate business purpose; or (b) consent from the customer. Allegation 3 -- 2 of 11 -- [2024] FWC 2990 3 It was alleged that you were dishonest in your verbal responses provided to Mr Dhingra during your meeting on 6 August 2024 when you stated that Mr IP* had called you and requested that you change his banking password.” [8] The 15 August Letter also warned the Applicant that the matter was serious and that if the alleged conduct were proven it could lead to his dismissal. The Applicant was stood down on Special Paid Leave during the investigation and was also invited to respond in writing by the close of business on 16 August 2024. The Applicant requested and was allowed an additional period to respond to the allegations and subsequently provided a written response to the allegations on 23 August 2024.7 [9] Mr O’Doherty states that on 28 August 2024, along with Westpac’s State GM Westpac & BoM, Vic/Tas, he was notified by email by Westpac’s Workplace Resolutions team that the allegations against the Applicant had been substantiated and that the recommendation was that the Applicant’s employment be terminated.8 He subsequently called and text messaged9 the Applicant on 29 August 2024, invited him to a meeting on 30 August 2024 to discuss the outcome of the investigation and advised him that he could bring a support person with him.10 At the meeting held on 30 August 2024, Mr O’Doherty advised the Applicant that the allegations had been substantiated, that given the investigation findings and the prior formal warning issued to him on 27 February 2024 for similar conduct, the decision to terminate his employment with immediate effect had been taken.11 A letter12 confirming the Applicant’s termination of employment dated that same day was also provided to him. [10] When questioned on the reasons for his dismissal, the Applicant agreed that his conduct was in breach of the relevant policies but that no financial loss or reputational harm had been caused by the conduct. He accepted however that the requirement for confidentiality, privacy and protection of customer records was critical. He also agreed that he had been formally warned previously for similar misconduct. He argued that while his conduct breached certain policies, the ‘punishment did not fit the crime.’ That is, the consequence of his dismissal was harsh in the circumstances of his employment record and that no reputational harm or financial loss arose from the misconduct. [11] The Applicant states that following notification of his dismissal, he informed the Respondent’s CEO, Mr Peter King, by email on 3 September 2024 of his intention to lodge an unfair dismissal application and also notified Mr King of his earlier whistleblower notification. When questioned on this email, the Applicant replied that he thought he was required to notify his employer of his intention to file an unfair dismissal application prior to doing so. He also agreed that he was aware of the statutory 21-day filing requirement for unfair dismissal applications. As regards notification of the whistleblower complaint to the CEO, he says he raised this because his initial complaint on 1 August 2024 had not been acted upon. He confirmed that he was subsequently contacted by email on 18 September 202413 by Kushlani Sitsabesan (Executive Manager, Group Investigations) regarding his whistleblower complaint. The Applicant says he then assisted the Respondent’s Whistleblower Investigations team while the Respondent escalated the Banking Code of Practice breach he had complained about.14 This occurred through subsequent telephone conversations between the Applicant and Kushlani Sitsabesan regarding the Applicant’s notified concerns. -- 3 of 11 -- [2024] FWC 2990 4 [12] After notifying Mr King of his intention to lodge an unfair dismissal application, the Applicant states that the stress of preparing the application and the prospect of unemployment contributed to a ‘severe depressive episode (characteristic of Bipolar Disorder Type 2)’. He further states that this manifested in an inability to manage time which led to him being unable to submit his unfair dismissal application within the 21-day time period. The Applicant says he sought urgent medical treatment from a General Practitioner (GP) for his condition and received a referral15 from his GP to see a psychiatrist, but the appointment with the psychiatrist was not until 10 October 2024.16 He confirmed during cross-examination that he attended and obtained a referral from his GP on 3 October 2024. The undated referral letter from the GP relevantly stated as follows; “…… He had seen misconduct in his W/place (Westpac) but he was dismissed 2w later. This has gone to Fair Work Commission. He says that it affected him in a way that his mood is low and gets panic attacks too. Your kind prompt assessment and management would be much appreciated. ……………….. Current Medication He might use a lorazepam in Panic attacks. …………….” [13] When questioned on his medical condition the Applicant responded that he has been diagnosed with bipolar disorder and that he had seen the psychiatrist to whom he was referred on 3 October 2024 on several previous occasions. He further explained that his condition was such that following his dismissal he was largely bedridden and unable to conduct normal daily living activities. He did however accept that he had sent the email to the CEO on 3 September 2024 and had engaged with the Respondent over his whistleblower notification on and after 18 September 2024. He also accepted that the medical referral letter of 3 October 2024 made no mention of bipolar disorder and that he had ‘pushed himself’ to undertake some daily activities in the wake of his dismissal Should an extension of time be granted? [14] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.17 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors -- 4 of 11 -- [2024] FWC 2990 5 which, although individually of no particular significance, when taken together can be considered exceptional.18 [15] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so. [16] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [17] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application. Reason for the delay [18] As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 September 2024. The delay is the period commencing immediately after that time until 21 September 2024, although circumstances arising prior to that day may be relevant to the reason for the delay.19 [19] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.20 An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.21 [20] In explaining the delay in filing his unfair dismissal application, the Applicant largely relies on the impact of the dismissal on his mental health. He described the impact as contributing to a ‘severe depressive episode (characteristic of Bipolar Disorder Type 2)’ that rendered him unable to complete and lodge his application within the 21-day time period. The -- 5 of 11 -- [2024] FWC 2990 6 only medical information before me is that of an undated referral by the Applicant’s GP to Professor Saroja Krishnaswamy for review and management of what the GP describes as the Applicant’s ‘mood disorder’. [21] I have no reason to doubt the Applicant’s evidence that he has an ongoing mental health condition which he says has been the subject of previous consultations with his psychiatrist. It is necessary for the Commission to have regard to such medical conditions when assessing the reasons for delay in filing an unfair dismissal (or general protections) application. Such consideration, as observed by a Full bench in Weir v Hydro-Chem Pty Ltd22 (Weir), needs however to be informed by relevant medical evidence. The Full Bench in Weir said the following when considering the relevance and adequacy of medical evidence before a single member of the Commission at first instance when considering whether to grant an extension of time in a general protections application; “[33] Noting the test for public interest, it is not immediately apparent to us how the matters submitted by the appellant raise any issue of wider relevance beyond his immediate interests. Any applicant who comes before the Commission claiming that a medical condition has contributed to a delay in bringing an application within a statutory time limit is entitled to expect that reason will be considered by the Commission. [34] It does not correlate that because one Commonwealth Department has in place procedures for how a medical care plan operates, it obviates the functions of the Commission, or puts the Commission at odds with the Department of Human Services. As we understand it, Mr Weir held long-term medical certificates for the purposes of eligibility to the care plan. One of those certificates covered Mr Weir for the care plan up until 31 July 2016. At the same time in early July 2016, Mr Weir obtained from Dr Bisshop a medical clearance declaring him fit for work. The medical certificates Mr Weir obtained from Dr Bisshop serve distinct purposes. Mr Weir’s argument cannot be accepted when it was he who obtained the medical clearance declaring him fit for work. [35] It matters not that a further medical certificate for the care plan was issued, and on Mr Weir’s submissions was back-dated covering the period between the dismissal and the application being lodged. The evidence before the Commission is that following the dismissal on 28 July 2016, Mr Weir did not attend a medical practitioner until 25 August 2016. There is no evidence that Mr Weir was incapacitated to the extent that he could not complete the application and lodge it. [36] Individuals suffering with Adjustment Disorder with depressed and anxious moods will have varying degrees of capacity to undertake daily tasks, work obligations, family commitments and the like. We reject Mr Weir’s submission that adherence to the statutory time limit is unrealistic for each person who suffers from the condition. Each case will turn on its own facts and the medical information available for consideration. [37] Mr Weir is correct that the Commission must have regard for the medical opinion of a person’s practitioner. It is not correct, however, to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition it renders the person incapable of completing and lodging an application under the FW Act in the required time. It is a relevant consideration to be taken into account by the member of the -- 6 of 11 -- [2024] FWC 2990 7 Commission hearing the application for an extension of time together with all the other available information before the member. [38] We do not have any difficulty with the Deputy President’s determination that there was insufficient medical evidence provided by Mr Weir to support his claim that he was incapacitated such that he could not file the application in time. Mr Weir’s submission that he did not have another GP that he could visit at the time of Dr Lister’s own illness is not sound, given he had earlier seen Dr Bisshop at the same medical practice. There was no evidence before the Deputy President that Mr Weir was unable to attend on Dr Bisshop or any other doctor within the practice.” [22] It is apparent from reading the Full Bench’s reasoning above that Weir was not a case where there was an absence of medical evidence. Rather, the ‘insufficient’ medical evidence did not support a finding that the applicant in that case was incapacitated such that he could not file his application on time. In the present matter before me, it is not a case of there being medical evidence that falls short of demonstrating incapacity. Rather, there is simply no supporting medical evidence beyond the GP referral letter that, in the three-week period following his dismissal, the Applicant was incapacitated such that he was unable to file his application within the 21-day period. Moreover, the Applicant’s claim that he was unable to engage in the process of filing an unfair dismissal application because of his health condition is undermined by his communication with the CEO on 3 September 2024 when he foreshadowed he would be making an unfair dismissal application, as well as by his engagement with the Respondent over his whistleblower complaint on and from 18 September 2024. [23] The Applicant also submits that his raising of the whistleblower complaint with the CEO also acted as a barrier to the filing of his unfair dismissal claim. That submission was not articulated clearly and in any case is misconceived. The whistleblower notification did not hinder or prevent the Applicant from filing his unfair dismissal application. The filing of an unfair dismissal application was in fact what the Applicant notified the CEO on 3 September 2024 he would be doing. The two matters, that of the Applicant’s unfair dismissal application and the whistleblower complaint are subject to two separate and unrelated processes. The latter is dealt with under the Respondent’s internal policies and processes while the former is dealt with by the Commission according to the Act. While the Applicant may suspect that his dismissal was motivated, at least in part, by his having raised a whistleblower concern, the fact that there may be an ongoing internal investigation of that concern by the Respondent in no way impeded the Applicant’s ability to file an unfair dismissal application. [24] The Applicant has failed to advance an acceptable explanation for any part of the delay in filing his application for an unfair dismissal remedy. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [25] It was not in dispute, and I find that the Applicant became aware of his dismissal on the same day that it took effect on 30 August 2024 and therefore had the benefit of the full period -- 7 of 11 -- [2024] FWC 2990 8 of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances. Action taken to dispute the dismissal [26] The Applicant says he notified the Respondent’s CEO of his intention to pursue an unfair dismissal application following his dismissal as well as continuing to assist the Respondent in respect of a whistleblower complaint he had made prior to his dismissal. Neither of these actions constitute action taken to dispute the dismissal in my view. I regard this factor as a neutral consideration. Prejudice to the employer [27] The application was filed one day outside of the 21-day period. I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration. Merits of the application [28] The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group23 it said: “If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” [29] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”24 for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning. [30] The Applicant submits that his dismissal was unfair having regard to several matters. These matters include the unnecessary hardship caused by the dismissal, the threat made that his conduct would be referred to the Australian Bankers Association (ABA) as part of the major banks’ voluntary misconduct reporting regime, that his conduct of accessing and amending a customer’s records while a breach of the bank’s policies was for a legitimate business reason, that he was not given an opportunity to respond to his proposed dismissal and that he was not given adequate training in relation to the breach of policy. He further claims that the investigation into his conduct was incomplete, the investigator failed to verify some of the Applicant’s evidence and that the evidence relied on by the Respondent was not factual and included a false allegation against him. Finally, he submits that the dismissal was harsh having regard to his good employment record and the gravity of his misconduct, which he submits was of a low magnitude. -- 8 of 11 -- [2024] FWC 2990 9 [31] The Respondent for its part contends that the dismissal was based on a ‘valid reason’, that it undertook an extensive and comprehensive misconduct investigation, it met with the Applicant on 15 & 30 August 2024 as part of the investigation/disciplinary process and lawfully terminated the Applicant with immediate effect on 30 August 2024, making a payment in lieu of notice in accordance with clause 42.1 of the Westpac Group Enterprise Agreement 2023. [32] The Applicant in advancing his argument that his dismissal was unfair does not dispute that he breached the Respondent’s policies or that he had received an earlier formal warning for similar conduct. It is self-evident that the maintenance of the confidentiality and security of customer records is a fundamental cornerstone on which banks are able to operate with the confidence and support of regulators and customers and ought to be considered non-negotiable from the perspective of all employees. The Applicant accepts the importance of the confidentiality and privacy of customer information as well as acknowledging that he had been previously warned regarding similar policy breaches. These concessions, along with the disciplinary process undertaken by the Respondent, lead me to conclude on the limited material before me that the Applicant’s case is not strong. In these circumstances I consider the merits of the case tell against a finding of exceptional circumstances. Fairness as between the person and other persons in a similar position [33] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. [34] The Applicant raised various unfair dismissal cases that had previously been dealt with by the Commission in which extensions of time had been granted in circumstances where the delay in filing an application had been attributable to mental health issues that had affected those applicants. I readily accept that an individual’s medical condition whether that be a mental health condition or other illness or injury is a matter that should be weighed in extension of time applications. However, as earlier stated, probative medical evidence going to the nature of the illness or injury and how that impacted on the capacity of an individual to file an unfair dismissal application is generally required. As also stated above, the Applicant has not led any evidence to support his claim that he was incapacitated to such an extent that he was unable to file his unfair dismissal application at an earlier time. In these circumstances, I attribute neutral weight to this factor. Conclusion [35] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. [36] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision. -- 9 of 11 -- [2024] FWC 2990 10 DEPUTY PRESIDENT Appearances: A Young, Applicant. G Richardson for the Respondent. Hearing details: 2024. Melbourne: October 28. Printed by authority of the Commonwealth Government Printer <PR780684> 1 Exhibit R1, Witness Statement of Shannon O’Doherty, Annexure SO-1, Offer of Employment dated 8 September 2021. 2 Exhibit R1, Annexure SO-2, Offer of Change in Role, dated 17 March 2024. 3 Exhibit R1, at [7]. 4 Exhibit R1, Annexure SO-3, Calendar Invite. 5 Exhibit R1, at [8]-[9]. 6 Exhibit R1, Annexure SO-4, Letter to Applicant dated 15 August 2024, titled ‘Workplace Investigation’. 7 Exhibit R1, at [10]. 8 Exhibit R1, at [11]. 9 Exhibit R1, Annexure SO-5, Text message to Applicant dated 29 August 2024. 10 Exhibit R1, at [12]. 11 Exhibit R1, at [13]. 12 Exhibit R1, Annexure SO-6, Letter of termination, dated 30 August 2024. 13 Exhibit A2, Email from Kushlani Sitsabesan to Applicant, dated 18 September 2024. 14 Exhibit A1, at [8]-[9]. 15 Exhibit A2, GP referral of Applicant to psychiatrist. 16 Exhibit A1, at [10]-[12]. 17 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 18 Ibid. 19 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 20 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 21 Ibid at [40]. -- 10 of 11 -- [2024] FWC 2990 11 22 [2017] FWCFB 758. 23 Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C. 24 Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14]. -- 11 of 11 --