In what could be described as a lesson about ‘how not to conduct an HR investigation’ the Fair Work Commission (FWC) found that the ANZ Bank’s attempts to “trick” or “catch” an employee with inconsistent answers constituted an attempt at “entrapment”[1].
Background
Following 32 years of committed and unblemished service as a regional ANZ bank teller, Ms Fisher was approached in August 2012 to attend a disciplinary meeting to discuss an alleged breach of the Bank’s Code of Conduct and Ethics and Prohibited and Restricted Activities policy.
In the letter, it was particularised as “cashing a cheque on a family member’s account”.
At the meeting it soon became clear that there was more than one allegation of misconduct – i.e. there were actually five occasions of misconduct spanning a number of months and an allegation that the branch manager had condoned the misconduct on at least one occasion.
Ms Fisher’s employment was terminated on the spot. ANZ maintained that Ms Fisher’s conduct had destroyed the trust and confidence fundamental to the employment relationship; the FWC was scathing in their disagreement.
The Investigation
Before the FWC, it quickly became clear that there were a number of procedural defects and mitigating circumstances relevant to the ultimately botched HR investigation.
- The notification of allegations against the employee were manifestly inadequate – the letter received prior to the disciplinary hearing contained only one of the final five allegations of “serious” misconduct.
- Management breached several of ANZ’s own policies including the Disciplinary Policy and the Performance Improvement and Unacceptable Behaviour Policy during the course of the investigation and subsequent dismissal.
- During training the consequences of breaching the Prohibited and Restricted Activities Policy were never properly explained to employees.
- A request to have all of the allegations provided in writing was refused.
- The disciplinary meeting was conducted in a manner where ANZ management tried to catch or trick (entrap) Ms Fisher with inconsistent answers.
- An opportunity to adequately prepare for the meeting was denied (only 3 days notice between the letter requesting a meeting and the meeting itself).
- The manager was unable to adequately deny condoning the breach on at least one occasion, despite relying on this as a reason to terminate Ms Fisher’s employment.
- Failure to consider “ad hoc” processes adopted by other tellers such as writing “known to teller” on transactions.
- Mitigating factors included: no aspects of fraud, dishonesty or concealment to the alleged misconduct; no personal gain.
The Decision
Ms Fisher was denied procedural fairness throughout the HR investigation, both in accordance with the Fair Work Act and ANZ policies.
She was not aware of the number of allegations, or their apparent gravity, until she attended the disciplinary meeting – at which her employment was terminated.
Her opportunity to adequately respond to the allegations was negligible. As a regional bank, “restrictive” policies were going to be less practicable, particularly where employees are encouraged to recruit family and friends as customers.
Of the five occasions the breach did occur, the bank was busy with customers, there was only one teller on duty and elderly customers were subjected to long wait times.
ANZ were ordered to reinstate Ms Fisher to her original position.
The Lesson
Employers must make an appropriate level of inquiry in relation to the facts of alleged misconduct.
The investigative process adopted needs to be fair and all involved need to be afforded procedural fairness. This includes ensuring that the process complies with any policies or procedures the employer has in place.
Any attempt at ‘trickery’ during an investigation including ambushing an employee with allegations will likely be viewed as an unacceptable denial of procedural fairness.
[1] Jennifer Fisher v ANZ Banking Group Limited [2013] FWC 347 (6 March 2013)
