Burnie v Tasmanian Country Club Casino Proprietary Limited [2016] FWC 1374 (3 March 2016) [2016] FWC 1374 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Lucia Burnie v Tasmanian Country Club Casino Proprietary Limited T/A Country Club Tasmania (U2015/15322) DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2016 Application for relief from unfair dismissal. [1] Ms Lucia Burnie alleged that the termination of her employment by the Tasmanian Country Club Casino Proprietary Limited on 18 September 2015 was unfair. [2] The Country Club objected to Ms Burnie’s application on three grounds: 1. It had not dismissed Ms Burnie; 2. Ms Burnie had made a complaint to the Tasmanian Anti-Discrimination Commissioner in relation to her dismissal prior to making her unfair dismissal claim; and 3. The Country Club had immunity from unfair dismissal laws due to the operation of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the AML/CTF Act) and the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No 1) (the AML/CTF Rules). Did the Country Club dismiss Ms Burnie on 18 September 2015? [3] Ms Burnie was employed as a casual cashier. In May 2015, the Country Club became aware that Ms Burnie’s husband was facing criminal charges and due to the nature of those charges the Country Club decided that Ms Burnie could not continue in her position as a cashier. It relied upon its obligations under the AML/CTF Act and the AML/CTF Rules to remove Ms Burnie from her position. Ms Burnie was provided with alternative work until 18 September 2015, albeit at a lower rate of pay. At this time the Country Club determined that it could no longer provide Ms Burnie with this temporary position and she was advised that she could take up a position in housekeeping albeit at a lower rate of pay. Ms Burnie refused this offer and considered that her employment had come to an end. Ms Burnie was provided with a letter on 18 September 2015 which stated that “a decision has been made that you will not be rostered at Country Club Tasmania for a period up to three months. Should your personal circumstances resolve during this time and you would like the Country Club to reassess please contact me on…….” [4] Ms Burnie worked as a casual employee for over four years. Prior to her removal from the cashier’s position she worked an average of 37 hours week. After May 2015, she was working 20 hours per week. The decision made on 18 September 2015 to not offer Ms Burnie work for three months was a decision to dismiss Ms Burnie from her employment. That the Country Club was willing to offer her employment in the future did not change what happened in September 2015. It was no longer prepared to offer Ms Burnie work as a casual cashier. Ms Burnie had accepted a different position on a temporary basis. When that position was no longer available, she was not willing to accept a housekeeper position. Ms Burnie was not required to accept a lower paid and different position. [5] I asked the Country Club if, but for the AML/CTF Act and the AML/CTF Rules, a decision to remove her from her position would constitute a dismissal. The Country Club said it would not because she was offered an alternative position. The Country Club acknowledged that the alternative position should have been at the same rate of pay. [6] The unfair dismissal protections for casual employees under the Fair Work Act 2009 would be meaningless if an employer could remove a casual employee from his or her position and then say well he or she is still an employee albeit there is no work for the employee unless the employee accepts a lower paid and substantially different position. While I accept that the Country Club proposed reviewing that situation in December 2015, Ms Burnie was entitled to treat the decision of the Country Club as the termination of her employment. This situation had been on-going from May 2015. She had co-operated with the Country Club for four months and accepted a position that reduced her income however, given that the Country Club had advised her that this would continue for another three months, she could not be expected to continue to accept an alternative position. Did Ms Burnie make a complaint in relation to the dismissal such that section 732 precluded Ms Burnie from making an unfair dismissal application? [7] It is not disputed that Ms Burnie made a complaint to the Tasmanian Anti-Discrimination Commissioner prior to making this application. [8] Ms Burnie, in her complaint, referred to changes to her employment conditions. Ms Burnie made reference to the meeting with the Country Club representatives on 18 September 2015 which she described as “an exit interview”. Ms Burnie referred to her suspension. There is no reference in the complaint to the Tasmanian Anti-Discrimination Commissioner to the termination of her employment. Ms Burnie’s complaint addressed what occurred prior to 18 September 2015. On 4 November 2015, the Tasmanian Anti-Discrimination Commissioner determined that part of Ms Burnie’s complaint disclosed possible breaches of the Anti-Discrimination Act 1998 . Nowhere in that decision is there any reference made to the termination of Ms Burnie’s employment. [9] The Country Club acknowledged that “her claim for discrimination had been careful to stop short of referring to the alleged termination of employment.” However it submitted that this “claim relies on essentially the same allegation.” Further it submitted that “the remedy sought by Ms Burnie in the discrimination claim clearly reflects that the substance of the discrimination claim relates to the alleged dismissal.” [10] Ms Burnie seeks compensation for her anti-discrimination claim however it is not clear from the material filed in that complaint that she is seeking compensation for loss of earnings after 18 September 2015. [11] An employee is entitled to seek a remedy for discrimination that occurs prior to termination under anti-discrimination legislation and further seek a remedy for unfair dismissal with the under the Fair Work Act 2009 . The Commission is not able to provide a remedy to an employee for any loss suffered because of any discrimination that occurs prior to the termination of employment. It is only if the employee makes a complaint in relation to the dismissal prior to making the unfair dismissal claim that section 732 acts to make the unfair dismissal application invalid. [12] I am not satisfied that Ms Burnie’s complaint to the Tasmanian Anti-Discrimination Commissioner is a complaint in relation to the dismissal and therefore Ms Burnie is not precluded from making a claim for unfair dismissal. Does the AML/CTF Act and the AML/CTF Rules mean that Ms Burnie cannot bring an unfair dismissal claim against the Country Club? [13] The AML/CTF Act at section 235 provides that: “Protection from liability (1) An action, suit or proceeding (whether criminal or civil) does not lie against: (a) a person (the first person ); or (b) an officer, employee or agent of the first person acting in the course of his or her office, employment or agency; in relation to anything done, or omitted to be done, in good faith by the first person, officer, employee or agent: (c) in carrying out an applicable customer identification procedure under this Act; or (d) in fulfilment, or purported fulfilment, of a requirement under this Act not to commence to provide a designated service, or not to continue to provide a designated service; or (e) in compliance, or in purported compliance, with any other requirement under: (i) this Act; or (ii) the regulations; or (iii) the AML/CTF Rules. (2) Subsection (1) does not apply to the following proceedings: (a) criminal proceedings for an offence against this Act or the regulations; (b) section 175 proceedings for a contravention of a civil penalty provision; (c) proceedings under the Proceeds of Crime Act 2002 that relate to this Act.” [14] The AML/CTF Rules provide at Part 8.3 for the establishment of a due diligence program. The due diligence program must provide for screening of prospective employees; rescreening when the employee is transferred or promoted and may be in a position to facilitate the commission of a money-laundering or financing of terrorism offence in connection with the provision of a designated service by the reporting entity; establish and maintain a system for the reporting entity to manage any employee who fails, without reasonable excuse, to comply with any system, control or procedure established in accordance with Part A or Part B. [15] The Country Club was audited by Austrac in March 2015 and was advised of the requirement that it have in a place an employee due diligence program which complied with the rules. It put in place a program to risk manage and or mitigate the risk associated with any employee who is subject to stress or other forms of vulnerability. [16] The Country Club’s due diligence program requires employees to hold a Special Employee Licence issued by the Tasmanian Gaming Commission. Ms Burnie holds such a licence. The Country Club accepts that this is an adequate form of initial employee due diligence. It notes that the Tasmanian Gaming Commission keeps licensed employees under on-going probity review. The Country Club had not reported its concerns about Ms Burnie to the Gaming Commission and Ms Burnie advised that her licence had been renewed. The Country Club advised, at the hearing, that it had paid for the costs of the renewal. [17] Ms Burnie advised that she had not made any disclosure about the matter raised by the Country Club to the Gaming Commission when she applied for the renewal of her licence but she had previously spoken to an inspector from the Gaming Commission and explained her situation and he did not consider there to be an issue with her being on the cash desk. [18] The due diligence program provides that: “should any discernible indicators of an employee’s financial stress or duress become apparent they will be considered by the Human Resources department. In that process ML/TF risks must be considered and if a risk is identified, it must be discussed with senior management or the AML/CTF Compliance Officer before it is considered to be managed or mitigated.” [19] The Country Club submitted that it was required to have regard to its employees and associates of those employees, and adopt a conservative risk averse position in relation to employees who are subject to stress and other forms of vulnerability. It submitted that employees in a state of vulnerability may unable to potentially identify risks. [20] Due to her husband’s conduct, Ms Burnie’s direct managers assessed that Ms Burnie was in a vulnerable state, given the amount of personal stress and pressure she was under. They then gave consideration to her ability to meet the inherent requirements of her role as a gaming cashier. Ms Jackie Hutchinson, the General Manager, formed the view that there was a real and potential risk to the business should Ms Burnie continue in her role as a gaming cashier and determined to temporarily move her away from that position. [21] There is no suggestion that Ms Burnie has failed, without reasonable excuse, to comply with any system, control or procedure established in accordance with Part A or Part B of the AML/CTF Rules. There is no evidence that Ms Burnie was under financial stress or duress at the time the decision was taken to remove her from her position. There was no evidence that Ms Burnie had at any time failed to perform her duties in accordance with the Country Club’s procedures. [22] Ms Burnie was, as a result of her husband’s conduct, separating from her husband albeit living under the same roof. Ms Burnie was considered by the Country Club to be under her husband’s influence and hence a risk. [23] There was no evidence that Ms Burnie’s husband was charged or being investigated for any money laundering offences or for financing terrorism. [24] The Country Club made no submissions as to why the AML/CTF Act and AML/CTF Rules required it to terminate Ms Burnie’s employment. This is not surprising as it contended it had not dismissed Ms Burnie, merely transferred her to another position, which she rejected. It is not sufficient for the Country Club to submit that the AML/CTF Act and AML/CTF Rules requires it to have regard to its employees and associates of those employees and to have a conservative or risk-averse position in relation to employees who are subject to stress or other forms of vulnerability. The Country Club did not point to any case law to support its submissions. It is incumbent on the Country Club to establish how its decision to dismiss Ms Burnie was done in good faith, in compliance with or purported compliance with the AML/CTF Act, the Regulations or the AML/CTF Rules. [25] An unfair dismissal application is an action, suit or proceeding. 1 I have found that the Country Club dismissed Ms Burnie. It is that conduct that must be considered when determining whether the AML/CTF Act provides the Country Club with immunity. [26] The shield provided in s. 235 is broad. There must be a finding that the Country Club dismissed Ms Burnie in good faith, in compliance with or purported compliance with any other requirement under the AML/CTF Act, the Regulations or the AML/CTF Rules. The only provision relied upon by the Country Club was Part 8.3 of the AML/CTF Rules. [27] The Country Club was not entitled to rely upon an employee due diligence program that was wider than required by the AML/CTF Act and AML/CTF Rules. [28] There was no submission put to me that there was a requirement under the AML/CTF Act, the Regulations or AML/CTF Rules to dismiss Ms Burnie because of her husband’s conduct, because she was assessed as being under financial stress or duress or because she was under stress. [29] Accordingly, I find that the Country Club did not have immunity from the unfair dismissal provisions of the Fair Work Act 2009 . Other matters [30] The Country Club, in its submissions, also relied upon its obligations under the Gaming Control Act 1993 . It stated that Ms Burnie’s circumstances had not come to the attention of the Tasmanian Gaming Commission. I have set out above what was put to me by Ms Burnie about her licence. It submitted that even if the Tasmanian Gaming Commission had not acted on her licence it was not relieved of its legal need to consider her suitability as a gaming or associated money-handling employee. [31] It was not put that the Gaming Control Act 1993 provided the Country Club with any immunity in relation to the dismissal of Ms Burnie. [32] The Country Club relied on its genuine attempts to provide Ms Burnie with alternative work. It further relied upon that fact that it was prepared to offer Ms Burnie work in her old position once its concerns about her were alleviated. I do not doubt the genuineness of the Country Club. However that is not relevant to my consideration unless I had to determine the dismissal was done in compliance with or purported compliance with the AML/CTF Act, the Regulations and AML/CTF Rules. Only then would it be necessary to determine if this was done in good faith. Conclusion [33] The Country Club’s objections to Ms Burnie’s application are accordingly dismissed. This application will be referred to conciliation. DEPUTY PRESIDENT Appearances : L. Burnie on her own behalf. M. Cornell for the Respondent. Hearing details: 2016. Melbourne and Launceston, by video link: 25 February. 1 [2014] FWC 7833 Wooley v Glenjac Pty Ltd at [16] Printed by authority of the Commonwealth Government Printer <Price code C, PR577602>