Callychurn v Australia and New Zealand Banking Group [2016] FWC 526 (3 February 2016) [2016] FWC 526 [Note: An appeal pursuant to s.604 (C2016/406) was lodged against this decision - refer to Full Bench decision dated 19 April 2016 [ [2016] FWCFB 1944 ] for result of appeal.] FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Meenakshi Callychurn v Australia and New Zealand Banking Group T/A ANZ (U2015/7113) COMMISSIONER WILSON MELBOURNE, 3 FEBRUARY 2016 Application for relief from unfair dismissal. INTRODUCTION [1] Ms Callychurn was first employed by the Australia and New Zealand Banking Group Ltd (the ANZ) in 2009 as a Credit Assessment Officer, 1 later becoming a permanent full time employee of the ANZ in April 2010. On 2 April 2015, her employment was terminated by the ANZ for reasons of its belief that she was no longer able to perform the inherent requirements of her role, and because it had lost trust and confidence in her to be open and transparent. [2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 , I find that Ms Callychurn’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise. [3] For the reasons set out below, I find that Ms Callychurn’s dismissal was not harsh, unjust or unreasonable, and that her application must be dismissed. BACKGROUND [4] Ms Callychurn was dismissed by the ANZ on 2 April 2015, and provided with a termination letter which stated; “In accordance with the Global Performance Improvement and Unacceptable Behaviour Policy, I am writing to confirm that, following an investigation of your recent behaviour, ANZ has made a decision to terminate your employment effective today. The reasons for this decision have been discussed with you in our meeting, and you have had an opportunity to respond. A further letter, confirming the detail of the matters discussed with you today will shortly be forwarded to your home address.” 2 [5] She was later given more detailed reasons for her dismissal, with it being advised; “Both of the following reasons give ANZ cause to terminate your employment, as both are serious, and both warrant termination. These reasons are: 1) You are unable to perform the inherent requirements of your role as a Credit Assessment Officer, in light of ASIC's recent decision to ban you from engaging in 'credit activities' for five years; and/or 2) ANZ no longer has trust and confidence in you to be forthright and honest in your communication with us, following your failure: a. to seek approval and declare your outside business interest, namely you being the sole director of Unique Mortgage Services Pty Ltd (UMS) and the sole key person and fit and proper person under UMS' credit licence; and b. to be forthright during the disciplinary meeting on 31 March and 2 April 2015.” 3 EVENTS LEADING TO DISMISSAL [6] The broad chronology to the matters in contest between the parties is as follows. [7] On 20 March 2015, Nitin Jain, a Team Manager within the ANZ’s Broker/Mobile Credit Assessment Team, was sent an email by colleague, Ben Frawley, a Business Development Manager with the ANZ, which contained a media article about a Victorian broker losing their credit licence. The media article identified the relevant broker as being Meenakshi Callychurn, resident of a particular Melbourne suburb. Mr Jain knew a person of that name to be employed within his team and that she lived in the indicated suburb. He sought advice about the media article and subsequently met with Ms Callychurn, the person employed within his team, on 24 March 2015. He showed her the relevant media article and she agreed that the person named within the media article was her. Prior to this discussion, Ms Callychurn had been on personal leave that day, and there was an exchange between the two by text and phone, with Mr Jain suggesting to Ms Callychurn that she attend a team lunch and skip level meeting. He did not tell Ms Callychurn that he intended to ask her about the media article. [8] The media article itself was in the following terms; “ASIC has banned a Victorian finance broker from engaging in credit activities for five years and cancelled the Australian credit licence of the loan writer's company. Ms Meenakshi Devi Callychurn of [suburb], Victoria, is the sole director of Unique Mortgage Services Pty ltd (UMS) and the sole key person and fit and proper person under UMS' credit licence. UMS was formerly owned and operated by Mr Rudy Frugtniet, who was permanently banned from engaging in credit activities by ASIC in July 2014. ASIC's decision to ban Ms Callychurn was based on concerns including that Ms Callychurn submitted two Annual Compliance Certificates for UMS to ASIC with false or misleading responses; allowed Mr Frugtniet to continue to exercise control over UMS; was not engaged in operating the business and attending to duties associated with the UMS credit licence; did not understand her responsibilities in relation to the UMS credit licence; and showed a lack of preparedness to engage with ASIC. ASIC found that Ms Callychurn failed to actively engage in the operations of the business and failed to meet the standards expected of the roles of sole director, key person and fit and proper person. This made her unfit to engage in credit activities. As result of ASIC's findings in relation to Ms Callychurn, ASIC also cancelled UMS' credit licence. In the circumstances, ASIC had reason to believe that UMS was likely to contravene the credit legislation. Further, the banning of Ms Callychurn means that there is no one to carry on the business and to ensure UMS can meet its obligations under the National Credit Act. “ASIC expects those engaging in credit activities to have the requisite competence and knowledge and to act with integrity. “Those who fail in this regard will be removed from the industry," ASIC deputy chairman Peter Kell said. Ms Callychurn has the right to appeal to the Administrative Appeals Tribunal for a review of ASIC's decision.” 4 [9] The ASIC media release that led to the above media article is annexed to the ANZ’s Employer Response Form and is in substantially similar terms. [10] Early on 27 March 2015, Ms Callychurn communicated with Mr Jain about the media article and its implications, with her writing the following in an email; “Hi Nitin I refer to my text of yesterday morning and it would be best documented if I put in writing the following matters: I have been advised that the solicitors are in receipt of the decision referred to in the article and have discussed with me in brief the substantive matters, which they advise me will be reviewed before the AAT. In the meantime I can reiterate the following matters so as to curb any fears and or otherwise allay any concerns by advising of following: 1. The matters referenced were in relation to the ex-director of the company. 2. I have not been accredited by any financial institution. 3. I have not been a loan writer at any stage. 4. I have not dealt with any applications in relation to any financial institutions hitherto or at any time in respect of ANZ let alone any financial institution. 5. I have not instructed or advised any clients in any capacity at any time. 6. I have not had a conflict of interest for the aforementioned reasons. I also confirm that an application to stay the orders has been lodged at the AAT. In the circumstances I have been advised by the solicitor that I should limit myself to matters that strictly relate only to me, pending the application for review being undertaken so as not compromise the pending litigation. Kind Regards Meenakshi Callychurn” 5 [11] An investigation letter was later sent by the ANZ to Ms Callychurn later on 27 March, and reissued with a correction on 30 March 2015, requiring that she attend a meeting with the ANZ on 31 March 2015. The letter particularised the allegations about which the ANZ required a response. The letter was from Mr Jain and communicated the following, so far as is relevant; “Dear Meenakshi Invitation to a meeting regarding your behaviour Further to our discussions, ANZ would like to meet to discuss: (1) Your ability to perform the inherent requirements of your role as a Credit Assessment Officer, in light ASIC's recent decision to ban you from engaging in 'credit activities' for five years; and (2) Your failure to seek approval from ANZ for an outside business interest which has the potential to be in conflict with your employment, namely you being the sole director of Unique Mortgage Services Pty Ltd (UMS) and the sole key person and fit and proper person under UMS' credit licence - contrary to Principle 4 of the Code of Conduct and Ethics which requires you to seek such approval; and, Principle 2 which requires you to be honest and forthright in your communications with ANZ. ANZ considers these allegations to be serious. If substantiated this behaviour would be considered to be a breach of our policy, procedures and values that may result in the bank taking formal disciplinary action. Disciplinary action could range from a warning up to termination of employment. I would like to meet with you to discuss the allegations. During the meeting I will be seeking to gain a full explanation of the situation from you. You will be given an opportunity to appropriately respond to the allegations. ANZ expects you to come fully equipped to speak to the allegations, and to supply us with a copy of ASIC's written decision . I propose that we meet on Tuesday 31 March 2015 at 1pm at [address] (meeting you at the Concierge desk). Louisa Jeschke from Employee Relations Australia will also be in attendance. You may bring a support person to the meeting. Up until our meeting on Tuesday 31 March 2015, you are suspended on full pay and you are not to have access to work premises or systems. Please note that your suspension does not form part of the disciplinary process and in no way should your suspension be seen as indicative of our final decision about the allegations.” 6 (original emphasis) [12] The correction made by the ANZ on 30 March to its initial notification on 27 March 2015 was to amend an earlier reference to a contravention of Principle 7 of the ANZ’s Code of Conduct and Ethics, when it should be Principle 4, as shown in the above. [13] On 30 March 2015, Mr Jain rang Ms Callychurn and informed her that she had been successful in securing an ongoing position in the restructure process. [14] A first disciplinary meeting was held on 31 March 2015, with only Ms Callychurn, Mr Jain and Louise Jeschke, Senior Employee Relations Advisor, in attendance. Ms Callychurn’s evidence is that at the start of the meeting she requested that her solicitor attend by phone as a support person. She says that she was denied that possibility by Ms Jeschke, which allegation in turn is denied by Mr Jain and Ms Jeschke. For the reasons referred to below, I find that there was no request by Ms Callychurn for attendance of a solicitor. [15] Once underway, the meeting discussed the media article and the ASIC Banning Order, with Ms Callychurn agreeing it related to her. [16] A further meeting was held with Ms Callychurn on 2 April 2015 in which Ms Callychurn’s employment was terminated. AfterOn10 April 2015 the ANZ detailed in writing its reasons for her dismissal. LEGISLATION [17] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is 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. THE HEARING AND EVIDENCE [18] The hearing in this matter took evidence from three witnesses. Ms Callychurn was the only witness who gave evidence on her behalf. Mr Nitin Jain and Ms Louisa Jeschke gave evidence on behalf of ANZ. Mr Jain was, at the relevant time, a Team Manager in the ANZ’s Broker Mobile Credit Team, and Ms Callychurn’s direct supervisor. Ms Jeschke is a Senior Employee Relations Advisor, who assisted in the investigation of the ANZ’s concerns about Ms Callychurn. [19] Ms Callychurn’s evidence was clear and cogent, but ultimately very circumspect, as well as using it as a means to point to the actions of others, to explain or justify her own, or to lay blame on the ANZ’s actions. For example, evidence about Mr Frugntiet, her representative in these proceedings, was used to explain why she even became a director of UMS; in effect, it was her need to help him that led to her becoming a UMS director. Her evidence was also used to argue faults on the part of others; such as the contention that Mr Jain had not been open with her about the real reason for his request for her to attend the workplace on 24 March 2015; or that Ms Jeschke’s notes of the disciplinary meetings were not accurate and too brief; or that she had to request, after the dismissal, written reasons for her dismissal. [20] The evidence of both Mr Jain and Ms Jeschke suffers from their inability to recall certain things that went on in the meeting of 31 March 2015. The extent of their problem with recollection of matters differs. [21] For example, Mr Jain could not recall if Ms Jeschke prepared her notes of the disciplinary meetings on a laptop, or took them by hand, and was unsure about some of the matters put to him about what was said and done in the meetings; however on other matters, his evidence was precise and not disturbed through cross-examination. In particular, his evidence was firmly against the Applicant on the question of whether she said at the start of the meeting on 31 March 2015 that she wanted her solicitor to attend by telephone for the purposes of being her support person. He also held a different view to Ms Callychurn about whether Ms Jeschke referred repeatedly in the disciplinary meeting to a document she was said to have with her regarding the definition of credit activities. Ultimately I am prepared to accept Mr Jain’s evidence, and attribute the matters he had difficulty in recalling to the normal variance of memory over the 7 to 8 month period between the time of the events in late March and early April 2015 and the hearing in December 2015. [22] Ms Jeschke had difficulty in recalling a greater range of matters about what was said or done in the two disciplinary meetings on 31 March and 2 April 2015, and what happened in discussions surrounding the meeting and the consequential decision to dismiss Ms Callychurn. Not all of her difficulty in this regard can be attributed merely to the passage of time. A greater recall of matters from April could reasonably have been expected from a person experienced in employee relations and staff investigations and having worked as a solicitor for some years. [23] Ms Callychurn argues that Mr Jain held a conflict of interest at the time that he investigated her conduct, with the conflict arising because both had earlier been told that their jobs were now contestable for reason of the ANZ deciding to offshore up to 40% of the positions in the relevant department. Staff, including both Ms Callychurn and Mr Jain, needed to apply for continuation of their employment. The conflict is argued as being one of Mr Jain having the opportunity of diminishing the employment prospects of Ms Callychurn while boosting his own prospects of continuing employment. [24] However, on 30 March 2015, Ms Callychurn was informed by Mr Jain that her application for ongoing employment was successful. He had been aware of that situation “at some time prior” to informing Ms Callychurn. 7 If there was a conflict on the part of Mr Jain, and such argument by the Applicant has not been made out, then that conflict ceased on 30 March 2015 with Mr Jain’s communication to Ms Callychurn that she had been successful in winning an ongoing position. [25] That date is before either of the disciplinary meetings on 31 March and 2 April 2015 and before the ANZ’s decision to dismiss her was communicated to Ms Callychurn. For the avoidance of doubt, there is no evidence that if there was a conflict of interest on the part of Mr Jain prior to 30 March 2015 that it was not disclosed to or known by his managers. There is also no evidence that Mr Jain’s employment status influenced in any way his decision-making or his advice to his managers and others. [26] I prefer Mr Jain’s evidence to that of Ms Callychurn to the extent that there are differences between the evidence of the two. Mr Jain’s evidence on the critical matters of what was put to Ms Callychurn in the disciplinary meetings; what she said about those matters; and whether she sought her solicitor to attend and whether Ms Jeschke relied in the meetings upon a document to illustrate the meaning of credit activities was clear and not diminished by cross-examination. When he could not remember something, he said as much, and did not endeavour to put forward a faulty recollection. [27] Ms Callychurn’s oral evidence included two matters she saw as critical that were not dealt with in her written statement – the allegation that she had asked for and been refused permission for attendance of her solicitor by telephone as her support person in the disciplinary meeting on 31 March 2015; and that Ms Jeschke had, in the same meeting, relied upon a document to pointedly illustrate the definition of “credit activities”. I consider, in the overall context of these matters and the impression I formed of the witnesses as they gave their evidence, the former to be improbable. I am unable to resolve the latter question, and ultimately consider it unnecessary to do so. [28] On the question of whether she sought and was refused permission to have her solicitor attend by phone as her support person, I note that Ms Callychurn’s written witness statement is detailed, running to 48 paragraphs. It supplements a less detailed, but nonetheless informative originating application, the Form F2. Neither refer to the contention now advanced about the desire to have a support person in attendance. Interestingly, the Applicant’s Outline of Submissions makes reference to a support person in relation to the meeting held on 2 April 2015, but in a very different context to what is now contended as a request that was made and denied; “18. It is contended that the meeting that was re-convened for the 2nd April 2015 by the Respondent, other issues were raised which hitherto had not been raised in the allegations being ANZ’s lack of trust and confidence in the Applicant due to the applicant failing to disclose her outside business interests and failure to be forthcoming during the 31st March 2015, both matters of which the Applicant was completely unaware of before or been brought to her attention, so that the Applicant could have responded and by raising other matters during this meeting the Applicant was denied procedural fairness. 19. The Applicant requested that all of these matters comprising the allegation be put in writing as she did not have support person but her request was refused which it is contended did not provide the Applicant an adequate opportunity to prepare a response to the extended accusations and was unreasonable in the circumstances.” 8 [29] In proper context, such is a complaint that new allegations had been put, and that Ms Callychurn wished to seek advice on them in order to prepare a response. It is not a complaint that she was impeded because a decision had been made to deny her either a support person or representation in the meeting. Had it been the case that at the start of the meeting on 31 March 2015 that Ms Callychurn had asked for the attendance of her solicitor and been refused, then it would be reasonable to expect, with an articulate person such as Ms Callychurn, that in recollecting new allegations put to her on 2 April and being denied an opportunity to respond in writing when she asked to do so, that she would also have recorded in the witness statement that she had earlier asked for the attendance of a solicitor and had been refused. [30] Short of having a complete transcript or video-recording of the meeting held on 31 March 2015 it is not possible on the evidence given by the witnesses to resolve the contention that Ms Callychurn puts forward that Ms Jeschke had with her and repeatedly referred to a document that described credit activities. The evidence between the witnesses is unresolved on the matter. In any event, the possibility that such a document was used does not advance either party’s case. The contention put forward by Ms Callychurn that there was such a document might relate to the weight I accord to her evidence or that of Mr Jain or Ms Jeschke, but it is unlikely, on its own, to resolve the questions that need to be determined in this matter. In any event, for the reasons described above, I do not prefer Ms Callychurn’s evidence regarding the question of the attendance of a support person, and it is therefore possible, or even likely, that Ms Callychurn’s contention about the document relied upon by Ms Jeschke is in the same category as the matter of the support person. [31] Further, in relation to matters of credit, Mr Jain’s evidence relies upon, and is consistent with, the documentary evidence provided by ANZ on the matters in overall dispute. His overall evidence is not diminished by the matters of memory to which I have referred. I consider those matters to be fairly the impact of the passage of time. [32] In relation to Ms Jeschke’s evidence, I accept as accurate the notes she took of the two disciplinary meetings held on 31 March and 2 April 2015. I also accept her evidence regarding the ANZ’s processes for consideration of the dismissal of an employee, and that it was Mr Jain who made the decision to dismiss Ms Callychurn after he consulted with his managers. The matters within her written witness statement are either not contentious or are generally consistent with other evidence given, whether by Mr Jain, or within documents. I accept her evidence on these matters with the qualifications to which I have referred. CONSIDERATION [33] Ms Callychurn advances several lines of arguments that her dismissal was, in all the circumstances, harsh, unjust or unreasonable, namely; The ASIC ban was as a result of inadvertent or inconsequential conduct and was not sufficient to cause problems for the ANZ. This argument was coupled with the submission that there was no or insufficient conflict between the directorships held by Ms Callychurn and the work she was called upon to perform for the ANZ; She was denied procedural fairness by not being allowed a support person in attendance at the meeting of 31 March 2015, with the nominated support person being her solicitor who would attend by telephone; She was denied procedural fairness because the ANZ decision-maker did not have her responses before him when he made his decision to dismiss Ms Callychurn. [34] Other matters upon which Ms Callychurn relies include the contention that the ANZ misrepresented to her why she should come into work on 24 March 2015, which is the occasion on which Mr Jain asked her about the media article and whether it referred to her; whether she was given adequate notice of the allegations that were to be discussed with the ANZ in the meeting on 31 March 2015; and whether the investigation conducted by the ANZ that lead to her dismissal was impartial, or conflicted. [35] An outsourcing arrangement led to the existing positions in Ms Callychurn’s team being advertised and filled, with Ms Callychurn being advised on 30 March 2015 that she had been successful. 9 Ms Callychurn claims that had the ANZ done its due diligence before making this offer, it would have found a problem with making an offer to Ms Callychurn; “5. It is contended as evident from the facts of the respondent Nitin Jain Team Leader received an email on the 20th March 2015, not produced, other than the Respondent’s Annexure 2, referring to the requisite personnel, including Human Resources failed to make reasonable inquiries, which would have brought existing facts to its knowledge before the dismissal, there being no fraud or dishonesty that had contributed to the Respondents state of ignorance.” 10 (footnote omitted) [36] For its part the ANZ relies upon several matters for Ms Callychurn’s dismissal; The ASIC banning order is a very serious one, disclosing Ms Callychurn as not being a fit and proper person to engage in any credit activities; The fact of the banning order brought to the ANZ’s attention information about Ms Callychurn it did not previously know, including that she had been under investigation by ASIC, and perhaps more significantly, that she was a director of a company and that she had failed to disclose that directorship to the ANZ; That in the course of its investigation of Ms Callychurn she had not been completely forthright with the bank about the circumstances of either the directorship or the banning order and in fact that she held another directorship which she did not disclose to the ANZ even when under investigation, the result of which was that the bank lost trust and confidence in her continuation as an employee. [37] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the legislative factors set out earlier. (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) [38] When Mr Jain found out about the banning order through the media article, he asked Ms Callychurn to attend a meeting with him on 24 March 2015, which was a day that she was on personal leave. He did not, prior to her agreeing to come into work, tell her what his purpose was for asking her to come in. While it may have been preferable for him to wait for Ms Callychurn to return to work, I do not consider Mr Jain’s action in not telling her about the purpose of the meeting to be a reason to find that her dismissal was procedurally unfair. [39] When Ms Callychurn came under investigation by the ANZ, it wrote to her, initially on 27 March 2015, seeking that she attend a meeting for the purposes of addressing its concerns about her capacity to perform the inherent requirements of her role as well as its alleged conflict of interest, but also that she supply the ANZ with a copy of ASIC’s written decision. Ms Callychurn ultimately provided the ANZ with a copy of the order made by ASIC, 11 but declined to provide further details for the reason that her solicitor had apparently advised her not to do so. 12 Ms Callychurn’s position about this situation was apparently that she was concerned that any admissions that may be made to the ANZ in the course of its investigation may then find their way back either to ASIC or to the Administrative Appeals Tribunal in which she had initiated an appeal against the ASIC banning order. The evidence given by Ms Callychurn in the hearing of this matter has not taken the situation substantially further. While applications on the part of the Respondent for an order for the production of documents relevant firstly to the AAT proceedings and secondly to the original ASIC determination have not yet been ultimately pressed by the Respondent, noting the preservation of their rights to further press an application in respect of the original ASIC determination in the event that remedy for an unfair dismissal is required to be considered by this Commission, neither has Ms Callychurn either volunteered those documents to the Commission or indeed given evidence of any significance on the subject. [40] Ms Jeschke endeavoured to find out the precise nature of the ASIC ban; “I conducted a number of online searches in order to locate the reasons for ASIC Ban, however I was unsuccessful. I also contacted ASIC in the hope of being able to obtain additional information; however, I was unable to obtain a copy of the reasons for the decision and was referred back to the media release which was on their website.” 13 [41] The evidence of Mr Jain is that he sought from Ms Callychurn that she “supply a copy of the ASIC decision” 14 . His correspondence to her, initially on 27 March 2015, inviting her to a meeting, specifically sought she “supply us with a copy of ASIC's written decision”. 15 [42] In the meeting on 31 March 2015, Ms Callychurn declined to comply with this request, recollecting the following in her statement; “25. At the meeting, I was asked whether I had brought the ASIC decision to which I responded in the negative, and advised that this was based on legal advice for the reasons noted in paragraph 21 above. I also provided a copy of the Notice of Appeal and a copy of the listing of the matter.” 16 [43] The reference in the above passage to paragraph 21 appears, in context, to be a reference to paragraph 23, which states; “23. On Tuesday 31st March 2015, I spoke to my solicitor prior to attending the meeting, and she advised me that I should be upfront and honest about the second allegation, however when it comes to the first allegation, since it is a matter under review, I should limit matters discussed only to me, and not third parties, so as not to compromise pending litigation. She also advised that she did not want anything placed on my file permanently that could be prejudicial to me in the future in case ASIC’s decision is reversed. However if same is placed on my file, it will be there for a certain period of time and can prejudice any future applications I make with the bank. She also advised that if during the meeting, clarification was required from my employer, she was happy for me to call her or have them call her during the meeting.” 17 [44] On 1 April 2015, Ms Callychurn provided the ASIC order to Mr Jain, who in turn provided it to Ms Jeschke. 18 Ms Callychurn’s covering email implies that what she provided was the ASIC decision by saying; “In response to the decision by ASIC concerning me that was requested, I attach same and confirm the matter is before the Tribunal including the application to stay the operative decision which I confirm will be determined as a matter of urgency.” 19 [45] However, what was provided by her to the ANZ on 1 April was the Order of ASIC, not its deliberative reasons for decision. [46] Ms Callychurn’s written Outline of Submissions in these proceedings introduces uncertainty about what she had been asked to provide by the ANZ. In particular, she draws a distinction between the ASIC “statement of reasons”, its “decision”, and the “actual order”; “6. It is contended that the procedures adopted in carrying out the termination of the applicant was harsh, unjust or unreasonable given that it was evident given the level at which such an administrative decision is made by the Australian Securities and Investments Commission, it being clear that the respondent’s own inquiries was able to obtain a media release and not any statement of reasons which is consistent with the offer made by the applicant to produce the decision, which as it so happens is the actual order which it forwarded on the 31st March to Ntin Jain (sic).” 20 (footnote omitted) [47] This distinction is carried further in her closing submissions, wherein Ms Callychurn endeavours to re-characterise this as simply that the ANZ did not ask for the right document; “12. No request was made in writing or verbally for the reasons behind the decision of ASIC, rather the decision of ASIC which was the order was what was requested. The Applicant provided same on the 1 April 2015, although the Respondent in its response to Applicant’s unfair dismissal application dated 4th May 2015 refers to no knowledge of same, so that there is no certainty that Mr Morrison was made aware of same as it is Mr Jain contention that he relied on Mr Morrison to approve the dismissal.” 21 [48] Such parsing of what, in all, is a fairly simple request on the part of the ANZ to Ms Callychurn, to “supply us with a copy of ASIC's written decision” 22 leads to the conclusion only that Ms Callychurn intended to not provide ASIC’s deliberative reasons for decision to the ANZ. [49] This situation left the ANZ at the time with only two substantial considerations on the subject matter of the banning order. The first of these considerations was the content of the ASIC Order which states the following; “AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION IN THE MATTER OF MEENAKSHI DEVI CALLYCHURN SECTIONS 80 AND 81 OF THE NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 To: Meenakshi Devi Callychurn ORDER UNDER SECTIONS 80 AND 81 OF THE NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 TAKE NOTICE that under paragraph 80 and section 81 of the National Consumer Credit Protection Act 2009 the Australian Securities and Investments Commission prohibits MEENAKSHI DEVI CALLYCHURN from engaging in any credit activities for a period of five (5) years. Dated this 27th day of February 2015. Signed: Gai Di Bartolomeo Delegate of the Australian Securities and Investments Commission” 23 [50] The second consideration available to the ANZ at that point shortly before it made the decision to dismiss Ms Callychurn are the somewhat guarded responses given by her in relation to the allegations. These comprise her response to the question of what led to the banning order which includes that set out in her email to Mr Jain on 27 March 2015, in which she said that “the matters referenced were in relation to the ex-director of the company”. 24 In addition is the email to Mr Jain on 1 April 2015 which largely restates her earlier position that the banning order could be the subject of variation or stay order by the AAT and that the nondisclosure of her interest in the business was not, objectively, a conflict of interest; and the matters discussed by Ms Callychurn in the two meetings on 31 March 2015 and 2 April 2015. [51] Ms Callychurn’s responses on the subject of the matters that led to the banning order essentially took the ANZ only back to the Order itself and the matters stated within it which included what the ban was; the sections under which it was made; and the period that it applied for. In effect, the ANZ had no real information before it about the circumstances that had led to the ban; what matters ASIC took into account or disregarded; or what ASIC thought of Ms Callychurn’s responses to them, if any. While Ms Callychurn declined to provide particulars to the ANZ about the circumstances of the banning order, the risk she ran in choosing to do so was that she denied the ANZ any possibility of knowing of the conduct that had led to the ban and thereby denying the ANZ of any ability of objectively weighing the significance for it. Having taken that approach with her employer, she can hardly reasonably complain when the ANZ took the darkest possible view of the situation. [52] Ms Callychurn’s desire at the time to not provide particulars to the ANZ about the subject matter of the banning order appears to be one of ensuring that the AAT proceedings were not disturbed. While that might explain why in March and April 2015 Ms Callychurn did not bring forward detailed information on the subject, it does not reasonably explain why a cogent explanation of the subject matter of the banning order has not been brought before the Commission. Reasonably, if Ms Callychurn’s argument that the banning order was the product of matters pertaining to a former director of the company is accurate, and the banning order does not relate to matters of substance connected with Ms Callychurn’s own conduct, then that evidence could have been brought forward. It could only have assisted Ms Callychurn if it had. It would have enabled her to persuade the Commission to form the view that the decision-making on the part of the ANZ was an overreaction and that there was no valid reason held by the ANZ for her termination of employment in April 2015. [53] It is more likely than not that Ms Callychurn chose not to disclose either to the ANZ or to the Commission the ASIC statement of reasons for its banning order because such disclosure would not have helped her case at either point in time. [54] On the subject of the reasons as to why the banning order was issued and its significance for the matters in question in these proceedings, the Commission is left with the same dilemma faced by the ANZ in April 2015. [55] That is, I have available to me Ms Callychurn’s limited contemporaneous responses to the ANZ, as well as her evidence in these proceedings, also very limited, on the subject of how and why the banning order came about; and I then have the content of the banning Order itself. [56] The banning order prohibits Ms Callychurn from engaging in any credit activities for a period of five years from the date of the order being 27 February, with the Order itself being made under sections 80 and 81 of the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act). Section 80 sets out the circumstances in which ASIC may make a banning order and the tests and processes it must follow in consideration of such an order, and secondly the matters set out within s.81, being as follows; 81 What is a banning order? (1) A banning order is a written order that prohibits a person from engaging in any credit activities or specified credit activities in specified circumstances or capacities. (2) The order may prohibit the person against whom it is made from engaging in a credit activity: (a) permanently; or (b) for a specified period. (3) A banning order may include a provision allowing the person against whom it was made, subject to any specified conditions: (a) to do specified acts; or (b) to do specified acts in specified circumstances; that the order would otherwise prohibit them from doing. (4) A banning order is not a legislative instrument. [57] An extensive definition of credit activity is provided for within s.6 of the NCCP Act, with terms used in that section in turn being defined in other sections. Section 80 of the NCCP Act requires ASIC to only make a banning order after having given the person who is the subject of its consideration a hearing and an opportunity to make submissions. Section 85 requires ASIC to give a copy of the banning order to a person, which must be accompanied by a statement of reasons for the order. The section makes no requirement about the privacy or confidentiality of those reasons. [58] The point of referring to this legislative context on the part of ASIC is to form the view, as I do, that a banning order of any kind by ASIC is far from inconsequential. [59] Contravention of such a ban can lead to significant penalties. A banning order can only be issued after giving a person an opportunity to be heard. The order can be in respect of “any credit activities” or “specified credit activities” and can be either a permanent ban or one for a specified period. Inherent requirements [60] I turn to consider whether the effect of the banning order was that Ms Callychurn was unable to perform the inherent requirements of her role. [61] In considering whether the ANZ had a valid reason for Ms Callychurn’s dismissal, the correct inquiry is whether the Respondent reasonably formed the view that she could not perform the inherent requirements of her job. In particular, the inquiry involves the following considerations; Whether a requirement is an inherent requirement should be determined according to the dictates of common sense and as a matter of objective fact; A dismissal based on an incapacity to perform the inherent requirements of a position may not be a valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job ; [62] The starting point for this analysis is to consider whether Ms Callychurn was, at the time she was dismissed, able to perform those things that were essential to her position. The Full Bench has held the analysis pertains to the substantive position of the employee rather than modified or restricted duties or those of a temporary alternative position; “[21] The Senior Deputy President found that there was no valid reason for the dismissal of Mr Button on the basis of an inability on the part of Mr Button to perform the inherent requirements of his job. The Senior Deputy President proceeded on the basis that Mr Button was able to, and had been, performing the inherent requirements of the restricted duties in which he had been working since October 2008. This conclusion involved error. [22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered. [23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements: “[102] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.” [24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted: “[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [ Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie : "A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with." [ibid. at 295]” [25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.” Her Honour noted: “[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court, is to overlook its international character. [34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.” [26] Gaudron J also noted that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.” 25 (references omitted) [63] Further to this, in the matter of X v The Commonwealth 26 a distinction was drawn between performance of the actual role and what may be possible to be performed. That matter, before the High Court, involved the dismissal of a soldier from the Australian Defence Force because he had tested positive to HIV and it was argued that the soldier was unable to bleed safely in the field without risking the infection of his fellow soldiers. The further context was that the case involved a consideration of s.15(4) of the Disability Discrimination Act 1992 (Cth) which required consideration of whether the person “would be unable to carry out the inherent requirements of the particular employment”; “[102] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to "inherent" requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work. [103] It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a) , it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.” 27 [64] Although arguably, the reference above is in the specific context of the legislation requiring consideration in X v The Commonwealth , of whether the person “would be unable to carry out the inherent requirements of the particular employment” (emphasis added), the authorities of this Commission resolve that the consideration is with respect to the position held by the employee in question. 28 [65] In Boag and Son v Button , the Full Bench elaborated on the necessary analysis in the following way, first making reference to the High Court’s judgment in Qantas Airways Ltd v Christie ; 29 “[28] McHugh J endorsed the proposition that “whether a requirement was an inherent requirement of a particular employment was a matter which should be determined according to the dictates of common sense and as a matter of objective fact rather than as a matter of mere speculation or impression.” [29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense. [30] In the present case, it is clear that both Mr Button’s position and his job had important features that he could not perform because of his lifting restriction. Mr Button had an incapacity to perform the all of the inherent requirements of his job and, on balance, this constituted a valid reason for his dismissal.” 30 (references omitted) [66] In this matter, the evidence discloses the following; Ms Callychurn states that since 2009 she has worked for the ANZ as a Credit Assessment Officer; 31 which Mr Jain describes as being engagement as a contractor. 32 She was absent on maternity leave between April 2011 and April 2014. 33 Ms Callychurn’s contract of employment, dated 1 April 2010, states her position as Assessment Officer, and classified as Senior Officer, Group 5.3, with her reporting to the WA Assessment Manager. The same contract includes that; “At any time following your commencement, ANZ may, at its discretion, change your position, reporting arrangements, duties and location on giving you reasonable notice, following consultation with you, and taking into account your career considerations and personal circumstances. Any such change to your position, reporting arrangements, duties or location will not constitute a termination of your employment, and will not entitle you to any benefits under the termination provisions in this employment agreement.” 34 Mr Jain’s evidence is that Ms Callychurn’s engagement since April 2010 was as a Credit Assessment Officer in the Broker/Mobile Lending Team, with the position of Credit Assessment Officer being often described as a Case Management Officer; he sees the role titles as being interchangeable. 35 His evidence about her duties included the following; “As a Credit Assessment Officer, Ms Callychurn was responsible for analysing and assessing customer home loan credit applications, and making decisions in relation to those credit applications. Ms Callychurn’s role and key responsibilities are outlined in the Role Mandate for a Case Management Officer ... Ms Callychurn was required to assess home loan credit applications and make credit decisions within Credit Approval Discretion guidelines, and in accordance with the ANZ Group Credit Policy, Code of Banking Practice and ANZ service level agreements. Ms Callychurn was required to undertake credit activities in order to perform her role.” 36 The “Role Mandate” referred to by Mr Jain identifies numerous accountabilities, including the exercise of thorough credit worthiness assessments; the effective communication of all credit decisions; the application of lending/credit policies, product guidelines and a high level of judgement, in assessing credit worthiness; and adherence to the group credit policy. The Role Mandate also includes a “role purpose”, set out in this way; “To provide a high level of quality output through the exercising of quality credit decisions, within CAD guidelines, whilst ensuring excellence in customer service and adherence to Group Credit Policy, Code of Banking Practice and service level agreements.” 37 [67] Further, the evidence of Mr Jain and Ms Jeschke is that these activities are within the definition of “credit activities” under the NCCP Act. [68] In contrast, Ms Callychurn’s submissions are that the banning order did not mean she could not perform the inherent requirements of her job. She submits application of a threefold test would show that the banning order would not take away from the “fundamental tasks that define a job or category of jobs and that must be carried out in order to get the job done”; the matters banned were “not all the requirements of [the] job”; and the inherent requirements were “about achieving results rather than the means for achieving a result”. 38 In all; “5. The Applicant did not lose her capacity to perform the job. She remained as capable of performing the role of Assessment Officer pursuant to her contract of employment dated 1 April 2010 and subsequently 10 April 2014 under which ANZ operates within the Financial Services Reform Act 2001 . 6. The Applicant’s disqualification from engaging in credit activities did not mean that she had lost her capacity to meet the inherent requirements of an express term of her contracts of employment. The employment contract also provided for variations to conditions of employment purposely contained provisions that continue the application of the contract, regardless of any changes to the role, duties, location and reporting arrangements for the position of Assessment Officer in the context of position, and any such change will not constitute a termination of her employment.” 39 [69] The evidence leaves me satisfied that the position held by Ms Callychurn was that set out in the combination of her employment contract and Role Mandate for a Case Management Officer. Ms Callychurn does not contest that the Role Mandate applies to her, but argues that the mandate must be read in the context of the duties of her substantive position; “It is the substantive position or role that must be considered so that when referencing the role mandate of the Applicant, it is not all of the duties that must be completed, so that any limited features if it could not be performed would not have resulted in the Applicant being able to fulfil the inherent requirements of the job.” 40 [70] Her submission in this regard cites in its support an unspecified aspect of the Full Bench’s decision in the matter of Boag and Son v Button . 41 The context of Ms Callychurn’s submissions allows the presumption that her reference is to the rule summarised by the Full Bench to the effect that in cases of an employer’s reliance upon an employee’s incapacity “it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered”. 42 While plainly that is the case, in this matter, the evidence clearly indicates that the positions held by Ms Callychurn since 2009 when she started with the ANZ have been as a Credit Assessment Officer in the Broker/Mobile Lending Team, subject to the Role Mandate for a Case Management Officer. Mr Jain’s evidence is that Ms Callychurn was required to undertake credit activities in order to perform her role and that Ms Jeschke advised him the effect of the banning order was that Ms Callychurn could not undertake any credit activities. [71] The reference point in a decision that an employee is unable to perform the inherent requirements of their position is to the substantive position, not a modified position, or one involving restricted duties or a temporary alternative position. In this regard, Boag and Son v Button follows Qantas Airways Ltd v Christie , 43 in which an appeal was allowed over an expansive interpretation of the rights of a pilot then restricted, by virtue of age, from certain international flying. In Qantas Airways Ltd v Christie, Gaudron J held the following in relation to the proposition that a restraint from international flying was a matter of age discrimination and thereby not an inherent requirement; “Applying that test, Marshall J held that "Mr Christie [was] not disqualified from being able to perform the characteristic tasks or skills required in being a pilot, he [was] only inhibited geographically as to where he [might] perform such tasks". His Honour added that "[i]t was not necessary for Mr Christie to be able to fly to any part of the world ... to be a Qantas B747-400 captain" because "[h]e was capable of being rostered so that his services were utilised in flying to locations where he was not prohibited from so doing by the laws of other countries". And in his Honour's view, difficulties which might result from his being rostered in that way were relevant to the question whether Mr Christie should be reinstated but not to the operation of s 170DF(2) of the Act. There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court, is to overlook its international character. Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.” 44 (references omitted) [72] McHugh J noted in the later matter of X v The Commonwealth that Christie stands for the proposition that the legal capacity to perform the employment tasks is, or can be, an inherent requirement of employment, and that what is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business, 45 and addressed the need for the overall context of the situation to be taken into account; “Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie , Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.” 46 [73] The existence of the banning order was known to the ANZ at the time it made its decision to dismiss Ms Callychurn. It identified in its written reasons to her for her dismissal that it considered the ban meant that she was unable to perform the inherent requirements of her role as a Credit Assessment Officer. 47 Because its knowledge about Ms Callychurn’s conduct at the time was limited to the content of the banning order itself and Ms Callychurn’s guarded responses, it was reasonably open to the ANZ to form the view it did about Ms Callychurn’s ability to perform the inherent requirements of her role. [74] The role mandate for Ms Callychurn identifies numerous accountabilities, including the exercise of thorough credit worthiness assessments; the effective communication of all credit decisions; the application of lending/credit policies, product guidelines and a high level of judgement, in assessing credit worthiness; and adherence to the group credit policy. 48 The exercise of those accountabilities were not significantly challenged by Ms Callychurn or the subject of evidence that would suggest that those other accountabilities within the role mandate might somehow not fit the legislative definition of “credit activity”. The ANZ was entitled to accept that a ban on one of its employees from engaging in any credit activities for a period of five years meant that Ms Callychurn was not able to perform critical aspects of her role mandate. [75] On 25 March 2015 Ms Jeschke advised Mr Jain of the following about the potential impact of the banning order on Ms Callychurn’s employment; “Ms Jeschke: I’ve looked into this ASIC Ban further. It is actually more serious than I first thought. Meenakshi cannot undertake any credit activities, which means she can’t do her job at all. This issue is more serious than a conflict of interest. It could potentially even put ANZ’s credit licence at risk.” 49 [76] In the meeting on 31 March 2015, Ms Callychurn accepted that “she was unable to perform her role as a Credit Assessment Officer as she was required to engage in credit activities”, 50 with Ms Callychurn’s own evidence on the subject being that while she agreed she could not perform her duties as a Credit Assessment Officer, she “could perform any other duty that did not involve credit activities” 51 . Ms Callychurn’s closing submissions, consistent with her oral evidence, was; “… that she agreed to not being able to perform her duties was based solely on a document defining credit activities that was put in front of her by Ms Jeschke.” 52 [77] The reference to the document provided by Ms Jeschke is to the disputed document referred to earlier, and about which I have made no findings as to whether such a document was relied upon by Ms Jeschke or not. In any event, whether Ms Callychurn agreed she could not perform some or all of her duties, the evidence on the subject of the document is inconclusive. [78] I am satisfied that at the time it decided to dismiss Ms Callychurn, the effect of the banning order was such that she could not perform the inherent requirements of her position. Trust and confidence [79] The other aspect upon which the ANZ relied for its dismissal of Ms Callychurn is that it lost trust and confidence in Ms Callychurn to be forthright and honest in her communication with the ANZ, for two reasons. Firstly, there was a conflict of interest between her employment with the ANZ and her failure to seek approval and declare an outside business interest, being the sole director of UMS as well as being the identified sole key person and fit and proper person under UMS’ credit licence. Secondly it is argued that Ms Callychurn failed to be forthright during the disciplinary meetings held with the ANZ on 31 March and 2 April 2015. [80] In relation to the first matter, the evidence includes that there has been no interaction between UMS and the ANZ in the relevant period, whether with UMS as the corporate entity or Ms Callychurn as its director. Ms Callychurn also says she never directly dealt with UMS clients. [81] Such does not entirely answer the ANZ allegation about her conduct or the framework within which she worked. Firstly, the ANZ’s Conflict of Interest and Securities Trading Requirements 53 (the Requirements) identified that pursuit of certain employment or business opportunities outside of the ANZ Group had a high risk of creating situations of conflicts and required that the company’s written consent be obtained before engagement in those activities, in the case of Ms Callychurn. Secondly the ANZ Conflict of Interest Policy 54 (the Policy) reinforced that conflicts of interest were to be avoided and managed. [82] The evidence indicates that Ms Callychurn had undertaken training in relation to the Requirements and Policy, although there was debate at some level on her part as to the training’s efficacy, or what she was required to declare in the way of her understanding and commitment at the conclusion of the training which was undertaken online. [83] Even so, the combination of the Requirements and the Policy unambiguously created an obligation on Ms Callychurn to understand what might be a conflict; to understand the risks of such; and to actively manage the combination of her employment and private life to ensure that the risks of actual, potential or perceived conflict of interest were minimised. [84] Not only is the evidence slight about the reasons why ASIC determined that there should be a banning order in respect of Ms Callychurn, but it is also slight on the subject of how Ms Callychurn came to be a Director of UMS or what her actual involvement in the operations of the company may have been at the time or what they continue to be now. Ms Callychurn submits that her involvement with UMS was the exercise by her of a family trust arrangement, in which “she undertook the directorship by way of verbal agreement and that she held it in trust”. 55 She submitted further on this point that “no prior approval was required if it was a Directorship in a Family Trust”. 56 This is a submission that her circumstances connect with that part of the Requirements, which allows that “Pre-approval is NOT required if you are ... assuming a directorship or of position as a trustee of a personal superannuation fund or family trust”. 57 [85] Ms Callychurn’s closing submissions also make the following point about the availability to her of the ANZ’s policy documents; “The Applicant’s Directorship in 2011 was undertaken whilst on maternity leave and not at any other time so that it did not specifically arise notwithstanding the training that she undertook hitherto which was online and on her return in 2014, the company was not trading so that it did not have any great significance and so her directorship was not the most important matter on her mind. It must be remembered that all of these policy documents were only made available after the Applicant had been terminated so that her actions, explanations ought to have been accepted, …” 58 (emphasis added) [86] Instead of what Ms Callychurn seeks to put forward, with the inference that she has only recently seen them, I am satisfied from the evidence that she received training on the ANZ’s relevant policies, including the ANZ Code of Conduct and Ethics; the Conflict of Interest and Securities Trading Requirements; and the Conflict of Interest Policy. 59 Ms Callychurn concedes that she received such training, but that at the time, it did not occur to her that her directorship amounted to a conflict of interest. In her recollection of the meeting on 31 March 2015, Ms Callychurn states; “… I advised them that I became a director whilst on maternity leave, and that when I completed the refresher training in April 2014, it did not trigger in my mind that I needed to disclose as I firstly could not see a conflict of interest, in that I was not promoting any other competitor to clients, I was not assessing deals submitted, if any, by the company of which I am the director of, I was not the loan writer of the company and that I have not been accredited with any banks. It is to be noted that the company has not been accredited with any financial institutions and not submitted any financial applications since on or about June 2014. 28. I also advised that I was mainly ensuring the company runs smoothly and meets all its compliance and tax obligations, and it was not a very active company which required my attention on a daily or weekly basis. 29. In fact, ASIC’s allegation is that I was not actively engaged in the running of the business.” 60 [87] Such response not only raises the defence of having overlooked the question of a conflict, which is possible, but it also explains in a limited way what the role Ms Callychurn performed with UMS was. She helped the company run smoothly and meet all its compliance and tax obligations, with ASIC’s allegation being that she was not actively engaged in the running of the business. Despite this characterisation on the part of Ms Callychurn, which gives rise to the view that the company’s trading activities were above there being no activity, with the company needing some assistance to run smoothly and comply with its obligations, Ms Callychurn’s closing submissions, by contrast, suggested that UMS was all but dormant – with it being said that upon her return in 2014 from maternity leave UMS was not trading. 61 [88] I am un-persuaded by Ms Callychurn about what she would seek me to find in relation to there being no need for prior approval for the UMS Directorship if it was a directorship in a Family Trust. It may be that she did not need to seek pre-approval for her directorship, if in fact UMS is properly to be characterised as a family trust, but it does not remove the need to avoid or disclose actual or potential conflicts of interest that fall within the Policy, the Requirements and the Code. First, I note that there is no evidence before me about the formation, shareholding or composition of UMS and there are no documents that would confirm its status as a family trust. Perhaps it is a family trust; but there is nothing before me that would corroborate such proposition. Second, the ANZ’s Requirements document provides the following; “MANAGING PERSONAL CONFLICTS OF INTEREST Personal Conflict of Interest can arise from: a customer seeking finance from you to buy, or selling a property you personally wish to buy; lending money, providing financial services or awarding a contract on behalf of ANZ to person you have a close relationship with (e.g. spouse/partner, including defacto or same sex partner, parent, sibling, etc.) entering into a credit contract with a consumer or increasing a consumer's credit limit, where ANZ has assessed the contract or increase as "unsuitable" for them, so that you receive an incentive or benefit. These scenarios are listed as examples and are not exhaustive. Where you personally have an actual or potential conflict, you must be disclosed to your line manager, human resources representative or your Business Unit compliance manager. OUTSIDE BUSINESS INTERESTS Pursuing employment or other business opportunities outside the ANZ Group, including voluntary activity, contracting engagements, business interests (including shareholding interest in private entities), or directorships (collectively "outside business interest" or "OBI") has a high risk of creating situations of conflicts. If you wish to engage in such an arrangement (regardless of whether you believe a conflict exists or can be managed), you must obtain ANZ's written consent before undertaking or accepting any OBI engagement (or upon joining ANZ if you are a new employee). Pre-approval is NOT required if you are: a committee member of a not-for-profit organisation (e.g. school, church, sporting club), and are not involved in financial decision making for that organisation (i.e. you are neither a board member nor on any financial management committee); or assuming a directorship or of position as a trustee of a personal superannuation fund or family trust; or, assuming a board position of an ANZ Group company” 62 [89] While it is the case that pre-approval is not required of the ANZ for an employee who assumes a role as a director or trustee of a personal superannuation fund or family trust, (referred to as the “family trust pre-approval”) it plainly does not absolve an employee of the need to avoid or disclose actual or potential conflicts of interest. The furthest that the policy can be said to assist Ms Callychurn is to remove the need for pre-approval, if in fact UMS falls within the definition of “family trust”. While there is insufficient evidence before me that would allow such a finding, there was similarly none on the subject before the ANZ when it made the decision to dismiss Ms Callychurn. It was not a subject upon which Ms Callychurn relied at the time of the ANZ’s investigation of her conduct. There is no reference to the subject in Ms Callychurn’s initial written outline of submissions or witness statement filed prior to the hearing of her application. She did not introduce any documents in the course of the proceedings that would demonstrate the “family trust” status of UMS or that her directorship otherwise fitted within the family trust pre-approval upon which she now seeks to rely. A proper endeavour to rely upon the family trust pre-approval could reasonably be expected to have included such action by the Applicant. The absence of such actions by Ms Callychurn leads me to find that more likely than not the family trust pre-approval does not apply and that her submissions on the subject are merely a late-stage endeavour to reverse engineer an acceptable explanation for her conduct. [90] Such evidence as there is on the subject of how Ms Callychurn came to be a Director of UMS shows that she became a director in June 2011 63 and that she did so because the previous Director of the company, Rudy Frugtniet, who represented Ms Callychurn in these proceedings, had himself been determined by ASIC as not able to continue in the position of director. Ms Jeschke’s notes from the meeting of 31 March 2015 record Ms Callychurn as having said about that situation the following in response to a question from Ms Jeschke; “Why did he stop as a director? I'm not sure but I do know there was an issue with fit and proper part, and that's why he came me [sic]. He's the father of my children.” 64 [91] Such commentary significantly understates the circumstances by which Mr Frugtniet ceased to be a Director, having been permanently banned by ASIC. It also highlights Ms Callychurn’s likely knowledge of those circumstances and her preparedness to tell ANZ the extent of her knowledge. [92] The ASIC media release on the subject of Ms Callychurn’s banning order includes the following explanation about why the order was necessary; “Ms Callychurn of [suburb], Victoria, is the sole director of UMS and the sole key person and fit and proper person under UMS' credit licence. UMS was formerly owned and operated by Mr Rudy Frugtniet who was permanently banned from engaging in credit activities by ASIC in July 2014 (refer: 14-163MR). ASIC's decision to ban Ms Callychurn was based on concerns including that Ms Callychurn: Submitted to ASIC two Annual Compliance Certificates for UMS with false or misleading responses Allowed Mr Frugtniet to continue to exercise control over UMS Was not engaged in operating the business and attending to duties associated with the UMS credit licence Did not understand her responsibilities in relation to the UMS credit licence Showed a lack of preparedness to engage with ASIC ASIC found that Ms Callychurn failed to actively engage in the operations of the business and failed to meet the standards expected in the roles of sole director, key person and fit and proper person. This made her unfit to engage in credit activities.” 65 [93] The combination of these matters leads to a view that it would be lacking credibility to put forward the proposition that an involvement with UMS might not be reasonably viewed by the ANZ as being something which was an actual, potential or perceived conflict of interest. To ASIC at least, UMS was a “finance broker” working in Victoria; it held a “credit licence”; and it operated a business. The strength of the Requirements and Policy make it clear that employment or other business associations outside of the ANZ group of a wide class can give rise to conflicts. The Requirements particularly specify clear and cogent examples where conflicts may occur, and a perusal of the document and the examples given would reasonably indicate to any reader that the ANZ wanted, at the least, to be very careful about any relationships which could, in any way, impact upon the conduct of its business. The instruction within the Requirements that if “you personally have an actual or potential conflict, you must [disclose it] to your line manager, human resources representative or your Business Unit compliance manager” is unambiguous, and consistent with an organisation that not only wanted to be careful about staff relationships that might impact on its business, but also that it wanted to know about their existence. [94] Ms Callychurn presents as a very capable and articulate person and it is unlikely that she did not appreciate the breadth of the training on the Requirements and Policy, including when she undertook it most recently in 2014 upon returning from maternity leave. When she undertook the refresher training in April 2014 she had been a Director of UMS for almost 3 years. It lacks credibility to put forward that when she undertook the training on the subject it did not occur to her that the directorship she held with UMS might possibly not fall into a category of disclosure referred to within the Requirement and Policy. There was no endeavour by her, at that time, to couple her directorship with the family trust pre-approval referred to earlier. [95] The ASIC media release also refers to Ms Callychurn holding, prior to the banning order, the position of being “the sole key person and fit and proper person under UMS’ credit licence”. [96] Ms Callychurn’s evidence on the subject of the investigation that sat behind the ASIC banning order is that she first became aware of the Commission’s concerns in late 2014. The evidence also discloses that ASIC made its decision about the banning order no later than 27 February 2015 when its order was issued. Ms Callychurn’s evidence is also that she collected an envelope with the order from the post office but did not open it at the time. Mr Jain recalls her having said to him on 24 March 2015 that at that time “she was not aware of the ASIC Ban, and that she had not received anything from ASIC, but that she had not checked her post box for some time” and that he advised her she should check her post box. 66 Ms Callychurn’s evidence about when she did open the envelope is inconclusive. [97] The NCCP Act, referred to above, obliges ASIC to provide a hearing to a person against whom it is considering issuing a banning order. There is no evidence that such did not occur. In the absence of any detail from Ms Callychurn about when that hearing was, what form it took, or the submissions that she put to it, it can and should reasonably be inferred that such a hearing took place and that it took place prior to the date on which the order was made. [98] As the matter stands, Ms Callychurn did not disclose any of these situations to the ANZ prior to the company raising the matter of the ASIC media release with her. [99] It lacks credibility on the part of Ms Callychurn to put forward that there was no need to bring to the attention of her employer any of the ASIC’s activity. Any reasonable observer of the situation would take the view that it was extremely serious. She was a Director of a company engaged in credit activities operating under a statutory credit licence and had only become a Director of a company because the former director, Mr Frugtniet, had been permanently banned from being a director or henceforth having any operational connection with the company. [100] Ms Jeschke’s notes of the meeting held on 31 March 2015 records the following explanation about the UMS directorship and involvement; “Why didn't you declare in mid 2011? I was under a lot of pressure. Was I dumb yes. My frame of mind at the time, I had miscarriages after 7 years, just had a son. I wasn't thinking straight was focused 100%. One good day he waltz in and says can you do this, for the kids sake, you get engulfed into this, sounded so minimal. Wasn't like I had to meet clients, write loans, go through accreditation, was put to me, just your name, your just lending your name. It wasn't the intention for me to say on, short period of time, but with his legal battles we could not put him back on. Tried to find someone else. I do intend to resign. It's a court case for me and the company, and it doesn't make sense if new director come in then it turns into 2 cases. Why not seek approval after mat leave? I did not. My involvement was so minimal. Last April. Did you see it in your edge training? Yes. I read it. But I didn't see it as a conflict of interest, because I wasn't writing any loans. Yes I am the director and I didn't disclose it, I should have sought approval. Why? So we identify conflict of interest. What are they? Like submitting a deal as a loan writer.” 67 [101] The same notes further record the following, putting forward that there was no awareness on the part of Ms Callychurn that the directorship required reporting to ANZ; “I forgot and I did not realise. Being accused of knowingly not informing you. Not by a mile. When I did my edge training, it didn't raise my awareness and make me declare it. When you're a director and you know you're a director, all I can say it that honesty it didn't occur to me that I should. Accept fact that I should have declared it. I'd just come back from work, did the edge training, a lot of things happening, have 3 kids, I know what I will make them for dinner, but there was no involvement. I don't feel like the director of the company. I didn't choose not to disclose.” 68 [102] Even though in the hearing of this matter Ms Callychurn endeavoured to question the veracity of the notes taken by Ms Jeschke, the explanation of inadvertence, assistance for Mr Frugtniet and minimal involvement is broadly consistent with that put forward in an email by her to Mr Jain on 1 April 2015; “In relation to the matter of non-disclosure of an interest in a business I reinforce that whilst on maternity leave and in the upbringing of my young children amongst many other factors I inadvertently omitted to seek approval as stipulated in the Code of Conduct.” 69 [103] In context, these explanations are disingenuous. The defence of inadvertence would likely have held weight had at the conclusion of the training in April 2014, on the subject matter of the conflict of interest requirements and policy, or at the very latest at the point at which the ASIC investigation was underway, Ms Callychurn disclosed the UMS directorship to the ANZ. She could have said to the ANZ at that time, in 2014, words to the effect that she had not reported the matter because of an oversight on her part; that she didn’t think there was a conflict, however out of an abundance of caution her employer needed to know both about the directorship and ASIC’s proceedings. However she did not do that, and such sentiments were not expressed by her to the ANZ until its investigation into her conduct. [104] Had the matters been disclosed at either of those earlier times, it might reasonably be the case that ANZ required Ms Callychurn either to divest a directorship or consider alternative disciplinary action to dismissal. However there was no endeavour by Ms Callychurn to identify these matters to the ANZ at any time before Mr Jain asked her about the media article that had been drawn to his attention. Given Ms Callychurn’s obvious intelligence and understanding of the environment within which she worked and her ability to communicate clearly, it lacks credibility for her to say to the ANZ that it did not occur to her, prior to March 2015, that these matters might reasonably be considered by the bank to give rise to a conflict of interest. [105] In context, it appears more likely than not that Ms Callychurn knew the UMS directorship was a conflict of interest within the terms of the ANZ’s policies, and that she knew as much most probably by the time she undertook the refresher training on the subject of conflict of interest in April 2014 and most definitely by the time that the ASIC investigation was underway. It is also more likely than not that Ms Callychurn wanted to keep the knowledge of her directorship from the ANZ for as long as she could. The context of the whole matter, and in particular the significance of the ASIC investigation and what had earlier occurred to Mr Frugtniet, would reasonably lead to the view that if there was a failure of Ms Callychurn to open mail addressed to her from ASIC it was because she feared the worst about what it contained. Ms Callychurn’s evidence is that when Mr Jain had his discussion with her about the media article she confirmed it was about her and that she was still in a state of shock, 70 however, rather than being shock either about what ASIC had ordered or how the ANZ may have viewed the situation, I take this be to shock that her conduct had been discovered by the ANZ. [106] A relevant consideration in this matter is Ms Callychurn’s general demeanour during the course of the ANZ’s investigation of the situation and the events leading to its decision to dismiss her. In the matter of Streeter v Telstra Corporation Ltd (Streeter) the Full Bench, in majority, took into account the need for honesty on the part of the Applicant during the course of an investigation and connected such with the ongoing relationship of trust and confidence; 71 “14 Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or stated that she had “no comment”. She also claimed a lack of memory with respect to certain activities. As Senior Deputy President Hamberger points out, Ms Streeter concedes she lied to Telstra during the investigation. 15 Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to have any effect at her work. However, it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we think Telstra’s questions of Ms Streeter during its investigation were reasonable. Ms Streeter needed to be honest with Telstra about her activities, notwithstanding their inherently personal nature, so that Telstra could determine and take appropriate action to deal with the difficulties.” “23 We are satisfied there was a valid reason for the termination of Ms Streeter’s employment by Telstra related to her conduct, being her dishonesty with Telstra during the investigation it conducted on 28 February 2007 and 14 March 2007 into her activities in the room at Hotel B on 24-25 February 2007. We think it was reasonable for Telstra to conduct the investigation given it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we also think the questions Telstra asked Ms Streeter were reasonable. We think Ms Streeter needed to be honest with Telstra during the investigation, notwithstanding the inherently personal nature of her activities, so that Telstra could determine and take appropriate action to deal with the difficulties. Ms Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed.” [107] In this matter, the ANZ argues that the requisite trust and confidence in Ms Callychurn was lost because she failed to seek approval from ANZ at the time she became a director of UMS and then did not disclose the directorship to ANZ at any time before Mr Jain raised the matter with her on 24 March 2015, and also because she failed to be honest and forthright with the bank during the investigation it conducted. [108] I accept that there was a failure by Ms Callychurn to either seek approval to be a director of UMS or to disclose that appointment to ANZ. On its own, such failures may well be cause for disciplinary action, even in the context of there being no evidence of a material connection between the activities of UMS and the ANZ. The overlay of an ASIC Banning Order and a media release reporting serious adverse findings about Ms Callychurn suggests that consideration of disciplinary action would likely be unavoidable and, I consider, potentially toward the upper end of the scale, for the reason that the complaint would reasonably be that as an employee Ms Callychurn had failed to manage a potential conflict of interest. [109] The ANZ’s policies define a “conflict of interest” to be “where the specific duties or interests of a person or entity in respect of an outcome, are not aligned with that person or entity's obligations or duties to others to achieve a different outcome”. 72 In a practical sense, there is unlikely to be a coalescence between the interests on the one part of the ANZ, her co-workers or the ANZ customers with whom she dealt to have the utmost good faith in the work she performs at the ANZ, and the interests on the other part of Ms Callychurn to not disclose that she was a Director of a company holding an ASIC credit license; that she had only become a Director because the previous director, Mr Frugtniet, had been permanently banned from engaging in credit activities by ASIC; that she herself was, depending upon the time point and what she actually knew, either now herself under investigation by ASIC for her conduct or banned from engaging in credit activities for five years. [110] Plainly, Ms Callychurn’s personal interests in March 2015 were served by not disclosing anything of the situation to anyone at the ANZ. [111] The failure of Ms Callychurn to be candid and truthful with the ANZ in the course of its investigation compounds the situation, and together with her failure to notify or earlier disclose her involvement with UMS, become sufficient reason to find that the ANZ reasonably could no longer have trust and confidence in her as an employee. [112] Ms Callychurn attacks the question of who made the decision to dismiss her, and what they took into account. She argues that Mr Morrison had to approve the dismissal and that there is no evidence of the matters he took into account. Notwithstanding such situation, the evidence before me is that Mr Jain was the person who made the final decision, after discussion of the subject, including by making a recommendation for dismissal with Mr Morrison, and that Mr Morrison approved the decision. 73 I accept and rely upon that evidence. [113] Ms Callychurn submits there was unfairness to her because the ANZ failed to consider alternative arrangements to dismiss during a period in which a stay of the ASIC banning order was sought, or to consider redeployment to duties that would not be inconsistent with the banning order. 74 She argues that ANZ was obligated through the terms of its employment contract to find alternative work for her. She submitted in her closing submissions that; “The employment contract also provided for variations to conditions of employment purposely contained provisions that continue the application of the contract, regardless of any changes to the role, duties, location and reporting arrangements for the position of Assessment Officer in the context of position, and any such change will not constitute a termination of her employment.” 75 [114] While the contract of employment permits a change in position or duties and other matters, the contract is permissive and not obligatory in this regard. I do not find that ANZ was required to give consideration to an alternative role for Ms Callychurn. [115] In summary, I have found that it was reasonable Ms Callychurn likely could no longer perform the inherent requirements of her position and that it was reasonable the ANZ could no longer have trust and confidence in her as an employee. Together, these matters lead me to find that the ANZ had a valid reason for Ms Callychurn’s dismissal. (b) whether the person was notified of that reason [116] I am satisfied that Ms Callychurn was notified of the ANZ’s reason for dismissal. Shortly after she was dismissed in the meeting held on 2 April 2015, Ms Callychurn was provided with a letter from Mr Jain that indicated the following reasoning; “In accordance with the Global Performance Improvement and Unacceptable Behaviour Policy, I am writing to confirm that, following an investigation of your recent behaviour, ANZ has made a decision to terminate your employment effective today. The reasons for this decision have been discussed with you in our meeting, and you have had an opportunity to respond. A further letter, confirming the detail of the matters discussed with you today will shortly be forwarded to your home address.” 76 [117] More detailed written reasons were provided by Mr Jain, initially by regular mail on 10 April 2015, and then by email on 14 April after a request from Ms Callychurn. That letter is lengthy and sets out the following broad reasons for dismissal; “As notified to you in writing on 2 April 2015, the decision was made to terminate your employment. The reasons for this decision were discussed with you in our meeting, and you had an opportunity to respond. Both of the following reasons give ANZ cause to terminate your employment, as both are serious, and both warrant termination. These reasons are: 1) You are unable to perform the inherent requirements of your role as a Credit Assessment Officer, in light of ASIC's recent decision to ban you from engaging in 'credit activities' for five years; and/or 2) ANZ no longer has trust and confidence in you to be forthright and honest in your communication with us, following your failure: a. to seek approval and declare your outside business interest, namely you being the sole director of Unique Mortgage Services Pty Ltd (UMS) and the sole key person and fit and proper person under UMS' credit licence; and b. to be forthright during the disciplinary meeting on 31 March and 2 April 2015. It is considered that this behaviour is in breach of ANZ's Code of Conduct and Ethics, our Values, and your employment contract.” 77 [118] The same letter discusses and weighs certain responses given by Ms Callychurn to the allegations made against her, and provides the following conclusion of reasoning; “ANZ's reasoning for decision You can no longer undertake the inherent requirements of your role as a Credit Assessment Officer for ANZ, given ASIC's recent decision to ban you from engaging in 'credit activities' for five years. You have acknowledged this. Further, ANZ no longer has trust and confidence in you to be forthright and honest in your communication with us. This is because: 1) ANZ considers that when you became a director in mid-2011 you were aware of your obligation under ANZ's policy to seek approval for an outside business interest, but chose not to. You had completed your on-line training course addressing conflict of interest on 8 September 2009 and 23 August 2010; 2) Further, ANZ consider that you elected not to inform ANZ of your outside business interest upon your return from parental leave on 7 April 2014. You even undertook your on-line training course addressing conflict of interest on 15 April 2014, and this did not motivate you to be forthright and honest with ANZ and declare your outside business interest; and 3) During the disciplinary meeting on 31 March and 2 April 2015, you were not open and transparent with ANZ. You refused to provide ASIC's decision so we could understand more about what behaviour led to the ban on 'credit activities', and you refused to speak about the ASIC decision. This is despite ANZ in its correspondence to you on 27 March 2015 stating that "ANZ expects you to come fully equipped to speak to the allegations, and to supply us with a copy of ASIC’s decision".” 78 [119] Accordingly, I find that Ms Callychurn was notified of the reasons ANZ held for her dismissal. (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [120] I find also that Ms Callychurn was given an opportunity to respond to the reasons ANZ held for her dismissal that related to her capacity or conduct. That opportunity was in the meetings held with her by Mr Jain and Ms Jeschke on 31 March 2015 and 2 April 2015. (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 [121] I do not find that there was any unreasonable refusal by ANZ to allow Ms Callychurn to have a support person present to assist any discussions relating to dismissal. I am not satisfied that she asked for a solicitor to be in attendance at any of the meetings the ANZ held with her or was refused the ability to have such person attend. (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal [122] Ms Callychurn’s dismissal did not relate to a matter of unsatisfactory performance. (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 [123] I find no evidence that the ANZ’s size impacted upon the procedures it used to effect Ms Callychurn’s dismissal. (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; [124] The evidence is that the ANZ had available to it dedicated human resource management specialists or expertise and that advice was both given and accepted on the subject of Ms Callychurn’s dismissal. (h) any other matters that the FWC considers relevant [125] I do not find any other matters that are relevant and which require being taken into account. [126] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that irrespective of there being a valid reason for the dismissal of Ms Callychurn, her dismissal was otherwise harsh, unjust or unreasonable. CONCLUSION AND ORDER [127] After consideration of the foregoing issues, I find that Ms Callychurn was not unfairly dismissed within the meaning of the Act. [128] As a result, I must now dismiss her application and an order to that effect will be issued in conjunction with this decision. COMMISSIONER Appearances : Mr R Frugtniet for the Applicant Ms E Holt (of Counsel) instructed by Herbert Smith Freehills for Australia and New Zealand Banking Group T/A ANZ Hearing details: 2015. Melbourne. 7-8 December. Final written submissions: Applicant – 23 December 2015 Respondent – 12 January 2016 1 Exhibit A2, Applicant’s Outline of Submissions, [1]. 2 Exhibit R1, Witness Statement of Nitin Jain (as amended), Attachment NJ-20. 3 Form F2 – Application for Unfair Dismissal Remedy, 23 April 2015, Attachment 2. 4 Exhibit R1 Attachment NJ-10. 5 Ibid Attachment NJ-12. 6 Ibid Attachment NJ-14. 7 Ibid [35]-[37]. 8 Exhibit A2 [18]-[19]. 9 Ibid [4]. 10 Ibid [5]. 11 Exhibit R1 Attachment NJ-18. 12 Ibid Attachments NJ-18, NJ-12. 13 Exhibit R2, Witness Statement of Louisa Jeschke, [9]. 14 Exhibit R1 [32]. 15 Exhibit R1 Attachment NJ-13. 16 Exhibit A1, Witness Statement of Meenakshi Callychurn, [25]. 17 Ibid [23]. 18 Exhibit R2 [24]. 19 Ibid Attachment LJ-7. 20 Exhibit A2 [6]. 21 Applicant’s Closing Submissions, 23 December 2015, [12]. 22 Exhibit R1 NJ-13. 23 Exhibit R2 Attachment LJ-7. 24 Exhibit R1 Attachment NJ-12. 25 J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022 , at [21]–[26]. 26 (1999) 200 CLR 177. 27 Ibid, at [102]-[103], per Gummow and Hayne JJ. 28 see for example; Boag and Son v Button [2010] FWAFB 4022 , at [30]; Sukloska v Serco Sodexo Defence Services [2014] FWC 2855 , at [45] and [59]; Born v Aurizon [2014] FWC 22 , at [87]; Rowe v V/Line [2014 FWC 1437 , at [63]. 29 [1998] HCA 18 , 193 CLR 280. 30 [2010] FWAFB 4022 , at [28]–[30]. 31 Exhibit A1 [2]; Exhibit A2 [1]. 32 Exhibit R1 [7]. 33 Exhibit A1 [3]. 34 Exhibit R1 Attachment NJ-3. 35 Ibid [7]. 36 Ibid [9]-[10]. 37 Ibid Attachment NJ-4. 38 Applicant’s Closing Submissions, 23 December 2015, [4]. 39 Ibid [6]. 40 Ibid [9]. 41 [2010] FWAFB 4022 . 42 Ibid, at [22]. 43 (1998) HCA 18. 44 Ibid [32]-[34]. 45 (1999) 200 CLR 177 , at [35]–[36]. 46 Ibid, at [37]. 47 Exhibit R1 Attachment NJ-21. 48 Ibid Attachment NJ-4. 49 Ibid [27]; Exhibit R2 [8]. 50 Exhibit R1 [40]. 51 Exhibit A1 [44]. 52 Applicant’s Closing Submissions, 23 December 2015, [11]. 53 Exhibit R1 Attachment NJ-7. 54 Ibid Attachment NJ-8. 55 Applicant’s Closing Submissions, 23 December 2015, [15]. 56 Ibid [17]. 57 Exhibit R1 Attachment NJ-7. 58 Applicant’s Closing Submissions, 23 December 2015, [17]. 59 Exhibit R1, [13]-[14]. 60 Exhibit A1 [27]-[29]. 61 Applicant’s Closing Submissions, 23 December 2015, [17]. 62 Exhibit R1 Attachment NJ-7. 63 Ibid Attachment NJ-23. 64 Exhibit R2 Attachment LJ-6, 3. 65 Form F3 - Employer Response Form, 4 May 2015, Annexure 3. 66 Exhibit R1 [25]. 67 Exhibit R2 Attachment LJ-6, 3. 68 Ibid. 69 Exhibit R1 Attachment NJ-18. 70 Exhibit A1 [15]. 71 Streeter v Telstra Corporation Ltd [2008] AIRCFB 15 . 72 Exhibit R1 Attachment NJ-8. 73 Ibid [48]-[52]. 74 Exhibit A1 [32]-[33]. 75 Applicant’s Closing Submissions, 23 December 2015, [6]. 76 Exhibit R2 Attachment LJ-8. 77 Exhibit R1 Attachment NJ-21. 78 Ibid. 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