Re Australian Bank Employees Union v Westpac Banking Corporation [1988] FCA 239 (14 July 1988)

FEDERAL COURT OF AUSTRALIA

Re: THE AUSTRALIAN BANK EMPLOYEES UNION
And: WESTPAC BANKING CORPORATION
No. V1 of 1988
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J(1).

CATCHWORDS

Industrial Law - awards - breaches - whether conduct amounts to "serious and wilful" misconduct - whether termination of employment is "harsh, unjust and unreasonable" - penalties

Conciliation and Arbitration Act 1904 s. 119

Bank Officials' (Federal) (1963) Award - clauses 38A(a), 38A(d), 38A(f)

Bank officials' (Long Service Leave) Award 1965 - clause 8(2)

Gregory v Philip Morris Limited (unreported - delivered 14 April, 1988)

North v Television Corp. Ltd. (1976) 11 ALR 599

HEARING

MELBOURNE
14:7:1988

Solicitors for the Applicant: Maurice Blackburn & Co.

Counsel for the Applicant: Mr. R. Hinkley

Solicitors for the Respondent: Arthur Robinson & Hedderwicks

Counsel for the Respondent: Mr. Hampson Q.C., Mr. L. Kaufman and Mr. P. Keane

ORDER

The respondent, Westpac Banking Corporation, pay a penalty of $600 for its breach on 6 October, 1986 of clause 38A(a) of the Bank Officials' (Federal) (1963) Award.

The respondent, Westpac Banking Corporation, pay a penalty of $500 for its breach on 6 October, 1986 of clause 38A(d) of the Bank Officials' (Federal) (1963) Award.

The respondent, Westpac Banking Corporation, pay a penalty of $100 for its breach on 6 October, 1986 of sub-clause 8(2) of the Bank Officials' (Long Service Leave) Award 1965.

Each of the penalties imposed by the above orders be paid to the applicant, Australian Bank Employees Union.

Paragraphs 1 and 4 of the application be dismissed.

Liberty be reserved to the applicant to apply in respect of paragraph 6 of the application.

(Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules)

DECISION

This is an application under s. 119 of the Conciliation and Arbitration Act 1904 ("the Act") by the Australian Bank Employees Union ("the Union") for the court to impose penalties upon Westpac Banking Corporation ("the respondent") in respect of alleged breaches of clauses 30, 38A(a), 38A(d) and 38A(f) of the Bank Officials' (Federal) (1963) Award ("the Bank Officials' Award") and an alleged breach of the Bank Officials' (Long Service Leave) Award 1965 ("the Long Service Leave Award").

Facts not in dispute

2. A statement of agreed facts was tendered in evidence in the proceedings. The following matters, which include quotations from the agreed facts, were not in dispute:

1. At all material times the Union was an organization of employees registered pursuant to the Act and was a party bound by both the Bank Officials' Award and the Long Service Leave Award;
2. At all material times the respondent was a party to both the Bank Officials' Award and the Long Service Leave Award;
3. At all material times Mr. Gordon Nuttall was a member of the Union;
4. Mr. Nuttall commenced employment with the respondent on 18 June 1974 and the respondent terminated his employment on 6 October 1986. At all material times he was employed by the respondent on duties that were subject to the provisions of both the Bank Officials' Award and the Long Service Leave Award.

5. Mr. Nuttall was employed under and pursuant to a service agreement, annexed to the statement of agreed facts, which agreement included the following clauses:

"1. The officer hereby agrees to serve the
Bank in any situation which ... any
Authorised Officer of the Bank shall order
or appoint in any place where the Bank has
established ... a branch or agency ... from
time to time and the officer shall
diligently perform all duties and tasks
which may devolve upon him or which any
Authorised Officer may entrust to him or
request him to perform.

....

4. The officer shall at all times while
employed by the Bank well and truly obey
perform and fulfil all and every the rules
and regulations which may from time to time
be laid down by the said Board of Directors
the Managing Director or the General
Manager for the guidance of the Officers of
the Bank and shall in like manner obey all
such further orders, rules and regulations
as may from time to time be made by the
said Board of Directors the Managing
Director or the General Manager.

5. The officer shall not at any time
during his service with the Bank or after
the termination thereof reveal or make
known either directly or indirectly to any
person or persons whomsoever or to any
Company or Corporation any of the matters
affairs or concerns of the Bank which have
already or which may at any time hereafter
come to his knowledge or any of the
transactions of the Bank with any of its
customers or the state of the account or
the extent of the liabilities of any person
or persons with or to the Bank except in
the course and in the performance of his
duties as an officer of the Bank or under
compulsion or obligation of law or ....

9. This Agreement shall be terminated as
well by death of the officer as by any of
the following events:-

....

(c) The dismissal of the officer for
misconduct dishonesty wilful
insubordination or the wilful breach
by the officer of any of the
conditions of this Agreement. Such
dismissal may be with or without any
period of notice as the Bank sees
fit."

6. The respondent was incorporated in the State of New South Wales by Act of Parliament. At all times material to these proceedings it was registered in the State of Queensland as a foreign company.
7. The only notice of termination which the respondent caused to be given to Mr. Nuttall (other than the document referred to in the next paragraph of these reasons) was a letter, dated 6 October 1986, which read as follows:-

"Dear Mr. Nuttall,

The Bank hereby gives you notice of the
termination of your employment effective
close of business Monday, 6 October, 1986.

Yours faithfully,

(Signature)
A. J. Colgan
State Manager, Southern"

8. The reasons given to Mr. Nuttall for his dismissal by the respondent were contained in the following letter from the respondent, dated 30 October, 1986:

"Dear Mr. Nuttall,

You are no doubt aware that the A.B.E.U.
has been claiming consistently in its
Publications that you were unaware of the
reasons for your dismissal.

The Bank is of the view that you were well
aware of the reasons for your dismissal,
nevertheless, we now confirm that you were
dismissed for encouraging Mrs. Fitzgerald
and Mr. Holley to withhold information and
thereby frustrating a major inquiry, as
well as making unauthorised inquiries of
the affairs of certain customers.

Yours sincerely,

(Signature)
A. J. Colgan,
State Manager, Southern"

9. At no time after the termination of his employment on 6 October, 1986 did Mr. Nuttall attempt to take up the matter of his dismissal with his immediate supervisor.
10. The matter of whether or not Mr. Nuttall was harshly, unjustly or unreasonably dismissed by Westpac was referred to the Australian Conciliation and Arbitration Commission ("the Commission") by the Union. The matter came before Mr. Deputy President Isaac on 10, 15 and 16 October, 1986. The Union was represented successively by Mr. L. M. Hingly, Mr. M. Moore, and Mr. D. C. Langmead. The respondent was represented by Mr. I. E. Douglas Q.C. and Mr. L. Kaufman. The respondent did not submit the matter and refused to participate in any conciliation in the Commission regarding the matter.
11. The transcript of proceedings (before Mr. Deputy President Isaac) on 10, 15 and 16 October, 1986 is a true and correct record of the proceedings in the Australian Conciliation and Arbitration Commission on those days.
12. Mr. Colgan, acting for and on behalf of the respondent, on the morning of 26 September 1986 suspended Mr. Nuttall from the performance of his normal duties and gave him a document, which read as follows:-

"Misconduct

In respect to the following:-

1. The officer has abused his position and
authority in relation to less senior staff.

2. The officer encouraged/directed other
staff to lie.

3. The officer made enquiries of a
customer's account and transactions without
authority and outside the normal course of
his duties.

4. The officer directed other staff to
make unauthorised enquiries for him for his
own personal reasons and, by withholding
information from them, denied them the
opportunity to make a judgment as to
whether or not they should supply to him
the information they obtained.

5. The officer initially failed to supply
information pertinent to the enquiry being
conducted by his employers which he was
involved in and was fully aware of.

6. The officer, by his actions, has placed
at risk considerable business of the Bank.

7. The officer, by his actions, has placed
the integrity of the Bank in question.

8. The officer, by his actions, has caused
the Bank to incur considerable expense in
the conduct of the enquiries."

13. As to the document headed "Misconduct", Mr. Nuttall's solicitors wrote, on 26 September 1986, a letter to the respondent which read as follows:

"The Chief Manager,
Westpac Banking Corporation,
260 Queen Street,
Brisbane. Qld. 4000

Dear Sir,

Re: Gordon Nuttall

We refer to previous correspondence herein
and note that on the morning of the 26th
September, 1986 Mr. Allyn Colgan advised
our client that he was suspended and handed
him a sheet of paper headed "Misconduct"
which was unsigned and set out on blank
sheet of paper rather than any official
bank stationery. A copy of the
aforementioned document is enclosed.

We have asked our client to prepare a
detailed reply to the charges such as they
are drafted but in the interim we will deal
with each one seriatim and make our
comments.

As a general comment, each of the charges
suffers grossly from lack of particulars
and vagueness and we would suggest that you
might wish to consult your legal adviser
and obtain his assistance in putting them
into a form capable of a proper response so
we believe that this will assist all
parties.

We now deal with the charges.

Charge 1

As with all the charges it fails to
particularise how our client was to
(sic) supposed to have abused his position
or authority. We would appreciate your
indicating what facts you rely upon to make
such an allegation. ... We would ask you
to see your solicitor to have this charge
put in proper form.

Charge 2

This charge is totally outrageous and
displays a complete lack of familiarity
with the evidence at least as it has been
provided to our client. ...

Charge 3

Please provide particulars of what
authority our client was required to have
to make the enquiries which he admits to
making. We would like you to specifically
point to instructions given to banking
staff in this regard and give us references
in either your Personnel or Methods Manuals
to such requirements. Your solicitor may
be able to assist you with this.

Charge 4

Again, we cannot provide an answer until
this charge is properly particularised. In
particular, we would like to know how the
charge is framed as amounts to misconduct.
Further, we would like the same particulars
as requested in respect of charge 3
setting out the source of the banks
requirements in this regard. ...

Charge 5

Kindly provide us with particulars of the
information "pertinent to the enquiry being
conducted" which was not supplied. ...

Charge 6

Kindly provide full and proper particulars
of this most remarkable allegation. We
must say that we fail to see how on this
totally inter-staff and intra-Bank matter
the Bank's business could be put at risk.
The allegation as it stands fails to
provide any nexus between the risk and our
client's actions.

Charge 7

Again, we would like you to particularise
how our client has placed the integrity of
the Bank in question. Could you also
advise what is meant by the expression
"integrity of the Bank".

Charge 8

Unfortunately, we are once again mystified
by this allegation. Kindly particularise
how our client has caused the Bank to incur
expense and particularise the action or
actions relied upon. It is to be noted
that the investigation was started as a
result of a customer complaint concerning a
breach of confidentiality. Our client did
not breach his declaration of
confidentiality and it was not his actions
which precipitated the enquiry. It would
be ludicrous to suggest, if that suggestion
is being made, that by seeking to protect
his interests he has somehow committed an
act of misconduct. Surely your attitude
could not be so draconian as to suggest
this.

Finally, we would appreciate your advice as
to whether these are the only grounds upon
which you seek to rely in relation to the
suspension of our client. If there are any
further grounds in relation to the
suspension or any proposed dismissal kindly
provide them immediately and in a proper
particularlised form.

Yours faithfully,
Callaghan & Reidy"

3. The respondent neither replied to nor acknowledged receipt of that letter at any time before its letter of 6 October 1986, set out in paragraph 7. above, informing him of "the termination of (his) employment effective close of business, Monday 6th October 1986". On 9 October, 1986 solicitors acting for the respondent replied to Mr. Nuttall's solicitors in the following terms:

"Dear Sirs

Re: Gordon Nuttall

We refer to your letter of 26th September,
1986 addressed to the Chief Manager of
Westpac Banking Corporation and received by
the Bank on 29th September 1986. We reply
to that letter on the Bank's behalf.

It was not appropriate to reply to your
letter under reference until a decision had
been made by the Bank's Board, however your
letter was included in the papers that were
sent to the Bank's administration so the
points you made were taken into account.
That decision has been made and conveyed to
Mr Nuttall. His employment with the Bank
has been terminated effective close of
business, Monday 6th October 1986.

With respect to the reasons for dismissal
we do not think it is appropriate that we
should go into any great detail at this
time because as you know the matter is
before the Industrial Commission tomorrow.
Mr. Nuttall of course is quite aware of all
the issues and has completed statements to
the Bank in this regard.

Yours faithfully,

(Signature)"

The onus of proof

4. The Union was represented by Mr. Hinkley, of counsel, and the respondent by Mr. Hampson, of Queen's counsel, with Mr. Les Kaufman and Mr. P. Keane, of counsel. The respondent accepted that, as Mr. Nuttall had been dismissed for misconduct, it bore the onus of proving, on the balance of probabilities, his misconduct (see North v Television Corporation Ltd. (1976) 11 ALR 599). As these proceedings are not criminal in nature (Gapes v Commercial Bank of Australia Ltd. [1979] FCA 62; (1979) 27 ALR 87), the applicant Union must satisfy the court on all other issues on the civil onus of proof, but taking into account the "seriousness of (any) allegation made" and "the gravity of the consequences flowing from a particular finding", as explained by Dixon J. in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362.

5. Mr. Hampson said in his final address that it was very important to consider the question of credibility and it is convenient to do that at this stage.

The credibility of the officer dismissed.

6. I accept Mr. Nuttall as a witness of truth. He was subjected to a cross-examination that was conducted skilfully, vigorously and in rapid-fire fashion by Mr. Hampson Q.C. Having studied Mr. Nuttall's demeanour at the time and having carefully checked my recollection of his evidence against the transcript, Mr. Nuttall undoubtedly survived that lengthy cross-examination without loss of credibility. Some of his answers were not correct but I am satisfied that they were answers which he would not have given if he had taken time to reflect on the precise meaning of what was being put to him in cross-examination. Despite those answers I have no hesitation in accepting him as a truthful witness, who did not seek to mislead the court in his evidence. He volunteered, during cross-examination, that "in hindsight what I did was very foolish and was unwise and I regret that". I reject the suggestion, made by Mr. Hampson in cross-examination, that Mr. Nuttall had lied to the court and had lied to the respondent in his written statement, dated 21 September, 1986.

7. More specifically I accept Mr. Nuttall's evidence that:

(a) he made enquiries of two other officers of the respondent, Mr. Holley and Mrs. Fitzgerald, as to whether a payment of approximately $400,000 had been received for any of the accounts connected with the (then) Premier of Queensland;
(b) he made those enquiries out of curiosity;
(c) he did not reveal to any person outside the Bank any of the information so obtained;
(d) at all material times he believed that inquiries by a bank officer to satisfy his curiosity, including the enquiries made by him, were not a breach of confidentiality. He gave evidence, which was not challenged in cross-examination, that when he commenced work as a bank officer he signed the service agreement and was told by the Branch Accountant "you must remember ... you're not to talk about customers' accounts outside the bank at all with anybody";
(e) as Branch accountant he instructed new bank staff 3 or 4 times during one year and he emphasised to them that there was an obligation to refrain from "divulging customers' information (to persons) outside the bank";
(f) it was common practice at a number of branches, including Brisbane and two other named cities, for inquiries about customers' accounts to be made by officers of the respondent which were not made in the course of their duties;

(g) at all material times he believed that the respondent's confidentiality rule in the Declaration of Secrecy and Methods Manual was that its officers were not to reveal any information relating to customers' business to persons outside the confines of the bank;
(h) at all material times he believed that its officers could talk to other officers of the bank about such matters but not in an hotel nor out in the street where their conversation might be overheard;
(i) he would not have jeopardised his career within the bank and if he had known it was wrong he would not have done it.
As to the latter, it may be noted that Reports, entitled "Personnel appraisal" and "Performance appraisal" in various years, were tendered in evidence. They included one, in July 1986, which suggested that Mr. Nuttall had good prospects of early promotion to Branch Manager.
The credibility of the other two officers

8. Mr. Holley was called as a witness by the respondent. He gave evidence in a manner that did not give confidence that his evidence could be accepted as being correct. On two specific matters I reject his evidence and accept that of Mr. Nuttall. The first is Mr. Holley's statement that Mr. Nuttall, when he made the telephone inquiry of Mr. Holley as to the deposit of $400,000, said that he wanted to trace a solicitor's cheque and that that was the reason for his inquiry into the account. The second is Mr. Holley's statement that Mr. Nuttall said to him "I want a copy of the (bank) statement". It may be added that Mr. Holley agreed, in cross-examination, that Mr. Nuttall had not suggested to him that he should tell lies if the bank manager asked questions.

9. Another witness called by the respondent was Mrs. Fitzgerald, who had been the other bank officer concerned in September 1986. She agreed, in cross-examination, that she did not believe that Mr. Nuttall had asked her to tell lies or to refuse to answer questions. Mrs. Fitzgerald was obviously a very nervous witness and I accept her evidence that at an interview with the respondent's investigators she was "extremely upset and nervous".

10. Both Mr. Holley and Mrs. Fitzgerald made untruthful statements to the respondent's investigators; I accept Mr. Nuttall's evidence in cross-examination, denying that he asked either Mr. Holley or Mrs. Fitzgerald to tell nobody in the bank (including the respondent's investigators) about his enquiry.
The credibility of the Managing Director.

11. The evidence of Mr. Nuttall, a truthful witness who did not seek to mislead the court, contrasted sharply with that of Mr. Fowler, the Managing Director of the respondent and its principal witness. At the time of the dismissal Mr. Fowler was its Chief General Manager, Retail Finance Services and had "administrative" responsibility for Queensland and "overall executive responsibility" as to personnel, including the authority to make the decision to dismiss Mr. Nuttall; he was responsible for "the day to day operations of the Australian retail bank and its staffing".

12. Having considered his demeanour in the witness-box and having carefully checked my recollection of his evidence against the transcript, I have reluctantly come to the firm conclusion that Mr. Fowler gave a number of untruthful answers, which were intended to mislead the court; I say reluctantly because it is a conclusion rarely expressed by me as to any witness. Further, in a significant number of instances, he did not give frank answers to the questions asked.

13. Specifically, I reject as untrue each of his statements in evidence, that, in deciding to summarily dismiss Mr. Nuttall, (a) he disregarded the fact that the "aggrieved" customer was the Premier; (b) he did not "take into account any expression of opinion attributed to the Premier about his concern about the leak ... in any way whatsoever"; (c) he disregarded the observation, made to him in the Investigation Report (dated 26 September 1986 - referred to later in these reasons) that "the loss of his (the Premier's) accounts would have substantial impact on Kingaroy branch ..." and (d) he did "not think" that he was influenced by the further statement in that Report that "(t)he consequences could flow further for the Premier is also Treasurer of Queensland".

14. As to his evidence on the question whether bank officers discussed amongst themselves (except in the course of business) any information relating to customers' accounts, I accept Mr. Nuttall's evidence where there is any inconsistency. I reject as untrue Mr. Fowler's statement that, in 40 years in the bank, he had never "had a conversation with a fellow bank officer in relation to a customer's affairs other than in the course of business".

15. Answers by Mr. Fowler that were not frank included two answers during cross-examination, in which Mr. Fowler volunteered that he was speaking "frankly". They were:-

(Mr. Hinkley) "At the time you did dismiss
him, you were conscious that there had been
this expose in the press prior to the night
of the 18th when the Leader of the
Opposition spoke, that there had been this
expose about the $400,000 Mr Bond and Mr
Bjelke-Petersen? ---To the best of my
recollection I was not particularly
interested in it frankly, but if it was
there, I presumably knew about it."

(Mr. Fowler then read, at Mr. Hinkley's request, a passage from the Investigation Report which referred to the media reporting the Opposition Leader's claim that the Premier had been paid $400,000 and said that the "defamation settlement has been the subject of wide media coverage.")

(Mr. Hinkley) "Does that refresh your
memory as to whether or not at the time you
decided to dismiss Mr Nuttall you were
aware that prior to the statement by the
Leader of the Opposition on the 18th there
had been wide media coverage of this
connection between the Premier, Mr Bond and
$400,000. Does that refresh your memory
about that?---Well, the fact that there has
been wide media coverage was a matter of
fact presumably. If I was aware of it,
then so be it, but I was not particularly
interested frankly.
It does not help you to remember whether or
not you were conscious at the time that
that was in fact the case, that there had
been such wide media coverage?---Not
really."

I am satisfied that Mr. Fowler, in using and repeating the word "frankly" (to which emphasis has been added in the quotation), was seeking to mislead the court. It may be noted that, during the cross-examination after the luncheon adjournment, Mr. Fowler volunteered "I did not disregard the wide publicity that the matter had received".

16. In considering Mr. Fowler's evidence I have made allowance for the fact that at times it seemed that his quite unsatisfactory answers might be partly due to a difficulty that he had with the meaning of words; for example his evidence that it "is a lie" for a bank officer to refuse to give information during an inquiry conducted by the respondent. It may be that his curious understanding of the meaning of the word "lie" led Mr. Fowler to state, in evidence which I reject as being wrong and completely without foundation, that Mr. Nuttall had lied, that he had admitted that he had lied and that he had encouraged Mr. Holley and Mrs. Fitzgerald to lie. Mr. Fowler's evidence on that aspect led to the following attempt at clarification:-

"His Honour: Mr. Fowler, on that last
matter, to the best of your recollection is
there any basis for saying that you
considered that Mr Nuttall ... had told
lies ... other than the statement that he
said "no comment" when asked some questions
in the interview. ... you are saying, as I
understand it, not only that he told a lie,
but he admitted he told lies. I want to
find out what you base that on?---I will
have to - you asked what my impression was,
that was the impression that I had. If I
can refer to it in the documents, I would
do so, but that is the impression that I
had. He certainly encouraged other people
to lie.

Could I just get it - you had the
impression that he had lied himself?---Yes.

To the investigating officers?---Yes.

And that he had encouraged the other two to
lie---Correct - to be untruthful."

17. Although some of Mr. Fowler's evidence may be explained on the basis of his apparent difficulty with the meaning of words, there are other statements, including those cited earlier, which cannot be so explained and which I have concluded were untruthful statements. As to the evidence just quoted, it should be said at once that I am quite satisfied on the evidence that Mr. Nuttall had not lied to the investigating officers and had not encouraged the other two officers to be untruthful. On the evidence it was quite wrong for Mr. Fowler to state that Mr. Nuttall had "admitted he told lies"; there was no foundation whatever for that statement.

18. Mr. Fowler's evidence as to his reasons for the dismissal was not convincing. Instead of referring to a number of passages from his evidence, with the need to put each passage in context, the following, regrettably lengthy, passage is cited as one illustration of Mr. Fowler's evidence; it relates to the reasons given by him for his decision to dismiss Mr. Nuttall. Mr. Fowler was asked in cross-examination whether the reasons given by the respondent in its letter of 30 October 1986:

"... were the reasons why Westpac
terminated Mr. Nuttall's employment?
---They were some of the reasons.

I see. I see. So there were some other
reasons, were there, why Mr Nuttall's
employment was terminated?---They were the
main reasons, your Honour.

... My question is, Mr Fowler: were there
other reasons why Mr Nuttall's employment
was terminated?---I think, your Honour the
actions leading up to our decision to
dismiss Mr Nuttall - - -

Your Honour, I do ask the witness to answer
that question yes or no.

HIS HONOUR: I understand that. Mr Fowler,
counsel is asking you: were there other
reasons than those which I have just read
from the document labelled N? That
question ought to be able to be answered
either yes or no. You may wish to then
qualify it in some way, if you wish to.
You may say so?---Yes, your Honour. I
think that there were other reasons and I
would like to refer to the document.

MR. HINKLEY: Your Honour, I do not ask the
witness what those reasons are?
---Additional reasons.

Now, Mr. Fowler - - -

HIS HONOUR: I think I will ask it, Mr
Hinkley. I am sorry to interfere in that
way, but I do take the view that although
qualifications can be given later on,
sometimes it is forgotten; sometimes it
appears in a different context, so I prefer
to have the qualification now.

What were those other reasons? If you wish
to state them, you may do so now?---Thank
you. May I refer to the document in front
of me? (the Investigation Report - referred
to later)

....

Counsel for the applicant is not asking you
this question, but I am permitting you, as
I believe is fair, as I would do with any
witness, to qualify your answer or to
explain your answer by doing what you said
you wanted to do, that is, that you would
like to refer to them. Now, in doing that,
I think you should do that without
reference to documents, at least initially.
If, having done so, you say that you really
need to look at something to make sure you
have not misled the court, then I would
certainly consider letting you refer to a
document then. But I think you should
first do it without reference to documents.
What are the other reasons?---Well, this is
very difficult to recall at this stage,
because the document is before the court,
and I would have thought it would have been
reasonably justifiable to refer to it, your
Honour, because it was on those bases that
I made the decision.

MR. HINKLEY: Your Honour, the witness has
said that there were other reasons, so
there must be present in his mind some
recollection. That should be exhausted
before any attempt - - -

HIS HONOUR: Have you any present
recollection of what those other reasons
were?---Mr Nuttall encouraged people to
lie. He used his position in the bank to
perhaps influence junior officers. He made
enquiries, which we believed were
unauthorised, on the customers' affairs.
He placed - by his actions, he encouraged
people to withhold information from a
legitimate inquiry that had been put in
place to establish the facts. I think that
is the basis of the background information.
I would then like, your Honour, to refer to
my notes.

....

HIS HONOUR: You may do so?--- Thank you.
Well, from the document on page 13,
reporting officers, on which I accepted
their view that Mr Nuttall abused his
position in authority in relation to less
senior staff. He encouraged and directed
other staff to lie. He made enquiries of
customers' accounts and transactions
without authority and outside the normal
course of his duties. He directed other
staff to make those unauthorised enquiries
for him for his own personal reasons, and
by withholding information from them,
denied them the opportunity to make a
judgment as to whether or not they should
supply the information. He initially
failed to supply information pertinent to
the inquiry being conducted by his
employers, which he was involved in and was
fully aware of. By his actions, he has
placed at risk considerable business of the
bank, by his actions placed the integrity
of the bank in question, and by his
actions, his employer had incurred
considerable expense in the conduct of the
inquiry.

HIS HONOUR: I am not sure what you are
saying about what you have just read. I do
not want to lead you into saying one thing
or the other. I want to know what the
truth is?---I am saying, your Honour, that
when I made a decision to dismiss Mr
Nuttall, those factors were taken by me
into consideration.

....

When you say they were taken into
consideration, do you mean that you
accepted the statements set out there in
the passages you have just read as being
correct for the purpose of making your
decision?---Yes."

19. It will be noted that in that evidence Mr. Fowler referred to "some of the reasons", "the main reasons", "additional reasons", "other reasons", "background information" and "factors taken by me into consideration". In final address the respondent's counsel contended that the reasons for the dismissal were those given in the letter of 30 October and referred to some "overlap" between those reasons and the matters (1) - (8) in the document headed "Misconduct" (both of which are set out earlier).

The Investigation Report

20. Mr. Fowler's decision to dismiss Mr. Nuttall was made after the matter was discussed by the respondent's Board, which then instructed him to decide the matter as "management". Mr. Fowler said that, before giving that instruction, the Board reached the conclusion that "there was no evidence in relation to the leaking of information from the bank to the ... Leader of the Opposition". Although, on the evidence, Mr. Fowler alone decided to summarily dismiss Mr. Nuttall, he did so after studying a Report ("the Investigation Report"), dated (Thursday) 26 September 1986, on an investigation conducted "following complaints of our customers of Kingaroy branch: Sir Joh Bjelke-Petersen, Premier (and) Mr. John Cummins, son-in-law of Premier and Secretary of Ciasom Pty. Ltd.".

21. The Investigation Report was tendered by the respondent and not objected to by the applicant's counsel. It was signed by Mr. R. J. Shardlow, State Manager, Northern, by Mr. A. J. Colgan, State Manager, Southern and by Mr. W. A. Simmons, Chief Investigation Manager - none of whom was called as a witness. It consisted of a 14 page memorandum on the investigation, together with 15 appendices; one appendix consisted of 9 pages of Diary Memoranda relating to discussions and oral reports which had taken place between Friday, 19 September, 1986 and Thursday, 25 September, 1986. In their Report Messrs. Shardlow, Colgan and Simmons stated (p. 13) that they were "satisfied that the actions of ... (Mr. Nuttall amounted) to serious and wilful misconduct" and that they considered that Mr. Nuttall had engaged in eight actions, which were in substance the same as the 8 actions alleged in the document headed "Misconduct" - the document handed to Mr. Nuttall on 26 September 1986 (when he was suspended from duty), the terms of which have been set out earlier in paragraph 12.

22. In cross-examination Mr. Fowler accepted that he studied the Investigation Report and its appendices with great interest, "read them from top to bottom" and "read the report a number of times" before deciding that he "supported the recommendations".

23. In final address Mr. Hinkley referred to passages in the diary memoranda, which accompanied the Investigation Report, as showing "great pressure from persons in high political office" and "conversations ... with those persons that take place in an acutely political environment". Mr. Fowler had, in cross-examination volunteered that "(i)t was a highly publicised matter. It was a highly political matter". It is convenient to set out certain extracts from the diary memoranda, before quoting from the transcript of cross-examination of Mr. Fowler on those matters; that part of the cross-examination was directed to the question whether Mr. Fowler's decision to dismiss Mr. Nuttall was influenced by the fact that the complaint (that the respondent had "leaked information to the Leader of the Opposition") had been made by the Honourable Sir Johannes Bjelke-Petersen ("Sir Joh"), who held at that time the commissions of Premier and Treasurer of the State of Queensland.

The record of the respondent's discussions with Sir Joh

24. The extracts are from the diary memoranda which constitute appendix "O" to the Report; the Report itself also referred to matters detailed in that appendix.

"Diary Memorandum 22 September, 1986

State Manager, Northern : R.J. Shardlow

Ciasom Pty. Ltd. - Kingaroy
Investigation - Leakage of information

Friday, 19 September, 1986

Attended at Premier's (Sir Joh Bjelke
-Petersen) Office in company with State
Manager, Allyn Colgan and Chief
Investigations Manager, Warren A. Simmons,
to explain the Bank's position regarding
suggestion of leakage of information re the
transaction of $400,000 through the above
account at Kingaroy.

Told him that an internal investigation was
being undertaken by Mr. Simmons in
conjunction with ourselves and the
following information and action had been
taken to date -

. It has been established that details of
the transaction had been supplied by the
Bank's Manager's Assistant Legal (Mr. R.
Holley) at Kingaroy to the Bank's
Accountant at Adelaide Street, Brisbane
(Mr. G. Nuttall).

. A statement of the account had been
forwarded by Holley to Nuttall.

. Nuttall was unable to be interviewed as
he had left the branch early (after 4
p.m.) and apparently caught the bus home
to Mooloolaba where he lives.

. We (Shardlow, Colgan and Simmons) would
be travelling to Mooloolaba this evening
following the interview with the Premier
to interview Nuttall and seek to
establish whether or not information
sought by Nuttall had been "leaked" by
him to anyone outside the Bank.

. Nuttall was a Vice President of the
Queensland Branch of the Australian Bank
Employees' Union.

. We would keep the Premier informed fully
of what was the outcome of our
investigations.

. Bank would pursue fully the matter of
employee dismissal for misconduct and
leakage of information and take the
matter of criminal prosecution up with
the Commissioner of Police if the
situation demanded - as it appeared it
did.

The Premier initially expressed concern
that Westpac did not value his business and
that of his family.

Gave every assurance that we valued the
family business very highly but on the face
of it, we were the victim of misconduct by
one or more employees and would be seeking
to redress this situation by every means
possible.

....

The Premier saw that the implication of
Nuttall (a Union official) had a direct
relationship to the A.L.P. and the Leader
of the Opposition.

He wanted assurance that the Bank would
proceed with the very fullest of an
investigation and that criminal proceedings
would be pursued if justified.

Gave him that assurance and that we would
keep him fully informed of the
investigation on a progressive basis.
Asked that he be phoned at 6.00 a.m.
tomorrow as to outcome of interview with
Nuttall.

Saturday, 20 September, 1986 at 6.00 a.m.

'Phoned Premier as requested.

Told him -

....

At this point of time, we have nothing
to charge Nuttall with but will pursue
the matter in full.

....

Monday, 22 September, 1986 at 8.00 a.m.

The Premier 'phoned to enquire whether any
further progress had been achieved.

....

He again stated he wanted us to pursue to
criminal prosecution if there was a case.
Assured him we would be pursuing matters to
the fullest.

He has spoken to the Police Commissioner
(Sir Terence Lewis) that we would be
contacting him.

....

Diary Memorandum 23 September, 1986

State Manager, Northern : R.J. Shardlow

....

Approximately 5.30 p.m., received 'phone
call from the Premier at Cairns as to
progress with Bank's investigation.

....

24 September, 1986

....

Unfortunately, we had been unable to firmly
establish that the information was leaked
from the Bank but were taking every
possible step to unearth the truth.

....

24 September, 1986

Approximately 4.45 p.m., Premier (Sir Joh
Bjelke-Petersen) telephoned from Biloela to
ascertain progress with the investigation.
Told him ...

Mr. Nuttall advised he did not know Mr.
Warburton and there was an implication that
he had little association with the A.L.P.

The Premier found this difficult to accept.

....
Diary Memorandum 25 September, 1986

State Manager, Northern : R.J. Shardlow

....
5.30 p.m. - telephone discussion with the
Premier at Toowoomba on progress with our
investigation. Told him we had made little
progress with any link to the A.L.P. and
leakage of information. ...

Told him in confidence we proposed to
suspend Nuttall tomorrow on the grounds of
misconduct for a number of reasons
(specified to Premier) ....

He was disappointed but questioned that
there must be some aspect which could give
Bank reason to seek a prosecution. Told
him we would have Bank's solicitors have a
good look at all the aspects of the
investigation and evidence/statements
collected and give further opinion.

I am to 'phone him at his son John's
property tomorrow afternoon late (Telephone
079 380113)."

The respondent's attitude to Sir Joh

25. Those extracts reveal, amongst other things, that:

(a) The respondent's 3 officers attended at Sir Joh's office on 19 September 1986 "to explain the Bank's position regarding suggested leakage of information re the transaction of $400,000".
(b) They informed Sir Joh of actions by Mr. Holley and Mr. Nuttall - and did so before they had spoken to Mr. Nuttall about the matter.
(c) They informed Sir Joh that Mr. Nuttall was a vice-president of the Queensland Branch of the Union.
(d) They said that the respondent "would pursue fully the matter of employee dismissal for misconduct" and consider "criminal prosecution".
(e) They gave Sir Joh "every assurance that (the respondent) valued the family business very highly".
(f) They also gave Sir Joh the "assurance" he "wanted", namely, "that criminal proceedings would be pursued if justified".
(g) Between 19 and 25 September 1986 Sir Joh had telephoned the respondent from Cairns and Biloela and had another telephone conversation with its officers while he was in Toowoomba.
(h) On 22 September 1986 Sir Joh "again stated that he wanted us to pursue to criminal prosecution if there was a case" and said that he had told "the Police Commissioner (Sir Terence Lewis) that we (the Bank) would be contacting him".
(i) The respondent's officers told Mr. Cummins (Sir Joh's son-in-law) that "(u)nfortunately we had been unable to firmly establish that the information was leaked from the Bank ..." (the use of the word "unfortunately" may be noted).
(j) Sir Joh found it "difficult to accept" that Mr. Nuttall "did not know Mr. Warburton and (the) implication that he had little association with the A.L.P."
(k) The respondent's officers told Sir Joh "we had made little progress with any link to the A.L.P." and told him "in confidence we proposed to suspend Nuttall tomorrow on the grounds of misconduct for a number of reasons (specified to the Premier) .... He was disappointed but (suggested) there must be some aspect which could give Bank reason to seek a prosecution". The officers then told him "we would have Bank's solicitors have a good look at all the aspects ... and give further opinion".

Sir Joh's pressure for strong action

26. On the diary memoranda in the appendix there can be no doubt, in my opinion, that the respondent was under heavy pressure from Sir Joh, throughout the week preceding the suspension of Mr. Nuttall on 26 September, to take strong action against Mr. Nuttall, including a criminal prosecution if possible. In his final address on behalf of Westpac, Mr. Hampson Q.C., referring to Sir Joh, said:

"... he, quite wrongly, as it turned out,
was quite convinced that the employee who
had obtained the ledger sheet, a copy of
the ledger sheet, was the one who had
leaked the material to the Leader of the
Opposition. He had no doubt about it. He
was counselling criminal prosecutions and
obviously kept himself very closely
informed."

The respondent's counsel accepts that Mr. Nuttall did not leak the information

27. The statement by Mr. Hampson that Sir Joh "quite wrongly, as it turned out, was quite convinced ..." led to the following discussion:-

"HIS HONOUR: ... Am I right in
understanding from what you have just said
... that there is no longer any suggestion
that Mr Nuttall was the leak?

MR HAMPSON: There has been no suggestion
of that, with respect, from the time that
Mr Fowler investigated the report, ... he
then put that right out of his mind as an
influencing factor, any suspicion or
allegation that Mr Nuttall was the leak.

HIS HONOUR: ... It is one thing to put out
of your mind in deciding whether to dismiss
someone, the possibility that he is the
leak. You may simply say, Well, it (sic)
quite possibly is, but as it is not proved,
I am not going to take that into account.
...

Mr Fowler has given evidence that is not
always consistent on this question. I am
asking you, as counsel for the bank: ....
And you do understand that I am not talking
about something being not proven? I am
talking about accepted that he was not the
leak.

MR HAMPSON: That is correct.

HIS HONOUR: Not just accepted that it has
not been proved that he was the leak.
MR HAMPSON: Yes.

HIS HONOUR: It is a distinction that I
think is important. It is a distinction
which Mr Fowler had some difficulty with in
his evidence."

28. I have set out that passage in some detail. I do not accept that Mr. Fowler (in Mr. Hampson's words) "put right out of his mind as an influencing factor" any suspicion or allegation that Mr. Nuttall was the leak.

The influence of Sir Joh on the dismissal

29. Although it is clear that the respondent, through its counsel in these proceedings, accepted that Mr. Nuttall "was not the leak", I do not believe Mr. Fowler's evidence that he accepted that fact at the time of the dismissal. In his evidence he specifically referred, on a significant number of occasions, to the absence of any evidence that Mr. Nuttall was the leak, and to the respondent's inability to establish, or to prove the link.

30. Many examples could be given. He said "(t)he Board was told that, as far as we could establish, there had not been any evidence to link a leakage"; that "we could find no evidence (of Mr. Nuttall being the leak)"; that "we could not link the alleged leakage between the bank and Mr. Warburton to Mr. Nuttall"; that "we could not prove it (any political motivation)"; and that "no such leak (through Mr. Nuttall) existed, that we could find". Asked by Mr. Hinkley what his view was, at the time he decided to dismiss Mr. Nuttall, as to whether Mr. Nuttall might be the source of the leak he answered: "I came to the conclusion that it was not proven". Later he said that the leak "was not proven ... and he was dismissed for other reasons" and "Mr. Nuttall was not dismissed for leaking information because that could not be proved"; on several other occasions he used the words "not proven". He was asked as to a passage in the Investigation Report which stated that "on ... the evidence now before us we have inevitably come to the firm conclusion that (the) information ... was leaked ultimately to the Leader of the Opposition, ... as a result of the actions of Mr. Nuttall ...". He said: "They could not prove that this had happened".

31. The passages from the diary memoranda in the Investigation Report are the setting in which to consider the evidence of Mr. Fowler under cross-examination as to the influence of Sir Joh on the dismissal. The passages quoted are again lengthy, as a result of giving the context in which his answers were given.

(Mr. Fowler) "It was a very serious
problem on 18 September, when great
exposure was given to information which had
purportedly come from the bank, or one of
its subsidiaries.

MR. HINKLEY: And it was a very serious
problem then, because it looked as though
Westpac, through one of its employees, had
leaked information about the Premier's bank
account?---Correct.

And part of the problem was that the person
whose information it appeared had been
leaked from Westpac was the Premier and
Treasurer of the State of Queensland?---
Correct.

And the fact that that person was an
important and significant public figure
exacerbated the seriousness of that problem
for Westpac?---I would think that is a fair
assessment, yes.

....

I am asking you whether or not, in thinking
Mr. Nuttall may have released the
information, you thought whether or not he
may have done it for a political
motive?---I suppose I must have done, yes.

Presumably you felt he may have released it
to give some advantage to the opposition
campaign in the current election in
Queensland?---I am not au fait with
Queensland politics. I was in Perth at the
time.

I am asking you what you were thinking?---I
cannot recall what I was thinking on 19
September in relation to this. Presumably
a reasonable man may well have thought that
was been (sic) happening.

....
When you made the decision to dismiss Mr
Nuttall did you take into account any
expression of opinion attributed to the
Premier about his concern about the
leak?---No.

Did not take that into account in any way
whatsoever?---No, not after I saw the
report."

32. Mr. Hinkley returned to the matter of the influence of Sir Joh after the luncheon adjournment - which gave him his first opportunity to study the Investigation Report and the appendices. The following evidence was given:

"Of course, exhibit 4 (the Investigation
Report) does contain the report of a number
of conversations held with the Premier by
various officers?---Correct.

And you read those?---Yes.

And you are aware of the sorts of things
that the Premier was reported to have
said?---Yes.

In those conversations, and you would
agree, would you not, that the Premier was
concerned at Mr Nuttall's political
affiliations with the ALP?---It is referred
there, yes.

And that he took the view from those
conversations as reported to you that that
explained how it was that the leak came
about because Mr Nuttall had done it for
political purposes?---I am only referring
to documents that have been put before me.
I did not partake in any of the
conversations but it is correct that it was
there.

That is the view expressed in the
documents?---Yes.

And that the Premier was eager for more
than even disciplinary action to be taken
against Mr Nuttall?---Well, I do not know
about what disciplinary action. We had not
discovered anything had gone wrong at that
stage, I do not think, other than he had
made some enquiries.

You know that the report, the documents
indicate that the Premier was told in
confidence before it was done that Mr
Nuttall was going to be suspended the next
day. You knew that?---I cannot recall.

What about the suggestion?---You should
remember, if I may say so that the Premier
was the aggrieved party. It was on his
request that we undertook an investigation
and if any other customer had asked us we
probably would have kept him informed too.

....

And he was making a complaint over and over
again about Mr Nuttall's conduct, was he
not?---Alleged conduct.

Are you saying, yes?

MR. HAMPSON: He said, yes, alleged
conduct.

MR. HINKLEY: And do you recall in those
documents the Premier indicating that he
thought more than just disciplinary action
should be taken against Mr Nuttall?---I
cannot recall specifically but I think it
was reasonable to assume that our customer
was particularly aggrieved and wanted to
make sure that we carried out an
appropriate enquiry which we did.

....

I am asking about whether or not you recall
reports of conversations in which the
Premier had indicated that that was the
appropriate course to take?---If it was in
the papers I suppose I recall it, yes.

And that the Premier had said, amongst
other things, that he had spoken to the
Chief Commissioner of Police at the time
about the matter and told the bank
officials that that is what he had done.
Recall that at all?---I cannot recall
specifically. I was not party to the
discussions.

Anyway, whatever is in those documents you
read and you would accept form part of the
material that made an impression on your
mind about what you had (sic) should
do?---He (sic) read it.

It made an impression on your mind all of
the material?---I have the ability to
disregard certain things when I am reading
reports. Your Honour.

What was it you disregarded?---I
disregarded the fact that in relation to
the leaking or alleged leaking of
information it could not be established
that that was done in Westpac.

Did you disregard the fact that the Premier
was the person who was making this
complaint against Mr Nuttall?---It was the
basis of our enquiry.

Did you disregard the fact - I see that was
the basis of the enquiry?---A customer was
aggrieved and it happened to be the
Premier.

Did you disregard the fact that it was the
Premier, not just happened to be but was
the Premier?---Yes, I did disregard it for
that matter. I did not disregard the wide
publicity that the matter had received."

(Mr. Fowler then read from the Investigation Report, at Mr. Hinkley's request, the following passage: "In the case of the Premier, the loss of his accounts would have substantial impact on Kingaroy branch in their own right. The consequences could flow further for the Premier is also Treasurer of Queensland.") The cross-examination continued:

"You disregarded the observations made
there, did you?---Yes.

Did not affect you that the report to you
indicated that the possible loss of the
Premier's account would have an impact on
the Kingaroy branch? Did not affect
you?---No.

....
Did you disregard what is said in the
second sentence of the second paragraph on
page 14 that the consequences of the
affairs could flow further for the Premier
is also Treasurer of Queensland. Did you
disregard that?---I could not disregard it
because I read it, but I disregarded the
implication in the sense that I was - that
you are perhaps wishing to say that I was
influenced by these things, no.

Did not influence you that the report
indicated that the Premier being Treasurer
could have consequences for the bank in
this circumstance?---No, I do not think
so."

33. As stated earlier, I have rejected as untruthful certain statements, including Mr. Fowler's evidence that, when he decided to dismiss Mr. Nuttall, he did not "take into account any expression of opinion attributed to the Premier about his concern about the leak"; also, his evidence that he disregarded the possible loss of Sir Joh's accounts and possible further consequences, by reason of the Premier being also the Treasurer. On all the evidence, including his own answers and his lack of frankness, I find that Mr. Fowler's decision to dismiss Mr. Nuttall was significantly influenced by a desire to appease Sir Joh, who, to Mr. Fowler's knowledge, had been suggesting that "there must be some aspect which could give the Bank reason to seek a (criminal) prosecution".

Other reasons for the dismissal

34. I reject as untruthful Mr. Fowler's evidence that he dismissed Mr. Nuttall summarily partly because of his "unauthorised enquiries"; it may be noted that, in his evidence in chief, asked as to an enquiry by a bank employee for "the gratification of a curious instinct to know the affairs of somebody else" Mr. Fowler only said that "that would be frowned upon". In any event, if he had been dismissed for that reason, that reason would not have justified summary dismissal. That conduct was not in breach of any contractual obligation on Mr. Nuttall, on the evidence and my construction of the documents relating to the contract. The requirement in the service agreement was that an officer shall not "reveal or make known" information as to customers accounts or transactions; the agreement did not forbid the making of enquiries, out of curiosity, by a bank officer. Neither that conduct, nor any of the other matters relied upon by the respondent, constituted a failure to serve his employer honestly. If, contrary to my opinion, any of Mr. Nuttall's conduct was a breach of his contractual obligation, then in my opinion it was plainly conduct which fell short of misconduct justifying summary dismissal (see North v Television Corporation Ltd., supra).

35. It is possible that Mr. Fowler believed that Mr. Nuttall had encouraged Mrs. Fitzgerald and Mr. Holley to withhold information from the respondent's investigators and dismissed Mr. Nuttall partly for that reason. However, Mr. Fowler's evidence on that matter, considered in the context of his evidence as a whole, was so unsatisfactory that I am not persuaded that the dismissal was partly for that reason. In any event, on all the evidence, I have found that Mr. Nuttall did not encourage either Mrs. Fitzgerald or Mr. Holley to withhold information from the respondent's investigators.

36. As to the eight matters of alleged "misconduct" (set out earlier) stated by Mr. Fowler to have been "factors" taken into account by him in dismissing Mr. Nuttall, my findings on the evidence may be briefly expressed. I reject completely any suggestion that Mr. Nuttall "abused his position and authority in relation to less senior staff" (item 1) or that he "encouraged/directed other staff to lie" (item 2). The matter of Mr. Nuttall making "enquiries of a customer's account" (item 3) has already been dealt with. I find that he did not direct "other staff to make unauthorised enquiries for him for his own personal reasons and, by withholding information from them, (deny) them the opportunity to make a judgment as to whether or not they should supply to him the information they obtained" (item 4). I accept his evidence that he only made enquiries; it may be added that there was no evidence that he had any authority to "direct" either of them. Although he "initially failed to supply information pertinent to the enquiry being conducted" (item 5), I accept Mr. Nuttall's evidence as to the circumstances in which that occurred. In my opinion that action was not a breach of any term of his contract and was not misconduct - let alone misconduct sufficient to justify summary dismissal.

37. The last three items on the document headed "misconduct" were that Mr. Nuttall "by his actions" had "placed at risk considerable business of the Bank, ... placed the integrity of the Bank in question (and) ... caused the Bank to incur considerable expense in the conduct of the enquiries" (items 6, 7 and 8). Mr. Fowler's evidence shows that it was the resultant publicity surrounding the use of information by the Leader of the Opposition that was the cause of (a) any risk to the respondent's business, (b) any questioning of its integrity and (c) the expense involved in the conduct of the inquiries. He gave evidence that a number of customers, who were concerned as a result of the publicity, had enquired as to the confidentiality of their affairs; there was no evidence of any loss of customer accounts.

38. On the evidence quite plainly none of those three matters resulted from the unauthorized inquiries by Mr. Nuttall or any other action by him. Any such "result" was from the possibility of a leak of information from the respondent - and the publicity which attended that possible leak. As already pointed out, it has been accepted by the respondent, in its counsel's final address, that Mr. Nuttall "was not the leak". I find that his conduct did not have any of the effects suggested in items 6, 7 and 8 of the alleged "misconduct".

Breaches of awards and penalties

39. There remain the questions of determining what breaches of awards have been established, whether the court should impose penalties in respect of any or all of those breaches and the amounts of any such penalties. The respondent's counsel did not address on the question of penalty.

40. The maximum penalty under s. 119 of the Act in respect of one breach is $1,000. It has not been submitted by the respondent that in these proceedings s. 119(1A) of the Act requires the court to treat "two or more breaches ... as constituting a single breach of (a term of an award)". However, in considering the amount of each penalty, in my opinion it is proper to take into account the circumstances as a whole and the interrelation between the breaches under consideration, as well as the total amount of the penalties. There has been no evidence of any prior breaches of any awards by the respondent and that is a matter taken into account in mitigation of penalty. I have also taken into account in mitigation the circumstances surrounding the decision to dismiss Mr. Nuttall, including the part played by Sir Joh in the events preceding the dismissal. However, it must be understood that the award requirement that a dismissal "shall not be harsh, unjust or unreasonable" must be obeyed irrespective of any influence directed towards an employer by persons in positions of power.

41. The application alleges three breaches of clause 38A of the Bank Officials' Award (sub-clauses (a), (d) and (f) - paragraphs 2, 3 and 4 of the application). As to each of those, Mr. Hampson submitted that the sub-clause did not apply to a case of summary dismissal. I reject that general submission, in respect of each of the three alleged breaches, as a matter of construction of clause 38A as a whole.

42. As to the alleged breach of clause 38A(a), I find that the termination by the respondent of the employment of Mr. Nuttall was harsh and unjust and unreasonable within the meaning of that sub-clause. I have reached that conclusion on the facts disclosed by the evidence and on the findings made. In Gregory v Philip Morris Limited (unreported - delivered 14 April, 1988) Wilcox and Ryan JJ., in dealing with a different award, said:

"The application of the paragraph requires
consideration of the circumstances of each
case, as they exist when the decision is
taken to terminate the particular
employee."

In another passage their Honours said:

"The question whether a dismissal is harsh,
unjust or unreasonable must be determined
in the light of the facts as they appear at
the relevant time. We accept that, if the
relevant facts are not clear, it is the
obligation of an employer bound by a
provision such as cl. 6(d)(vi) to establish
those facts before dismissing an employee
..."

I find that the respondent committed the breach alleged in paragraph 2 of the application. In all the circumstances, in my opinion an appropriate penalty for that breach is $600.

43. The alleged breach of clause 38A(d) of the Bank Officials' Award is that the respondent terminated Mr. Nuttall's employment without either (i) giving him one month's notice thereof or (ii) giving him payment in lieu of such notice. It is clear that the termination was made without giving notice or payment in lieu; the respondent sought to rely upon clause 38A(d)(v), contending that its dismissal of Mr. Nuttall was "for conduct that (justified) instant dismissal". I reject that defence. On the evidence I find that there was no conduct by Mr. Nuttall that justified instant dismissal. Accordingly, I find that the respondent committed the breach alleged in paragraph 3 of the application. In my opinion an appropriate penalty for this breach is $500.

44. It is convenient to deal now with the alleged breach of sub-clause 8(2) of the Long Service Leave Award, namely, that the respondent, when it terminated Mr. Nuttall's employment, failed forthwith to pay to him in full the amount of money to which he was entitled in respect of long service leave under that clause. Again there was no doubt that the respondent had failed to pay to Mr. Nuttall an amount of money in respect of long service leave; the respondent relied upon the provisions of clause 6(2)(b)(i) of the Long Service Leave Award, contending that its termination of Mr. Nuttall's employment had been "for ... serious and wilful misconduct". On the evidence I find that there was no conduct by Mr. Nuttall that constituted "serious and wilful misconduct" and that the respondent committed the breach alleged in paragraph 5 of the application. Because of the close inter-relationship between this breach and the breach of clause 38A(d), in respect of which a decision has been made to impose a penalty of $500, in my opinion a penalty of $100 is appropriate.

45. An alleged breach of clause 38A(f) of the Bank Officials' Award was that the respondent did "fail to submit to the Australian Conciliation and Arbitration Commission the dispute and claim arising out of its termination of its employment of Gordon Nuttall on the 6th October 1986".

46. In addition to his general submission as to clause 38A (referred to and rejected earlier), Mr. Hampson submitted that Mr. Nuttall had failed to "take the matter up with his immediate supervisor", as required by sub-clause 38A(f)(i). I reject that submission and uphold Mr. Hinkley's submission that, on the evidence, the dispute was "of such a nature that a direct discussion between the officer ... and his immediate supervisor would (have been) inappropriate" and accordingly sub-clause 38A(f)(ii) relieved Mr. Nuttall of that obligation.

47. However, I accept Mr. Hampson's submission that, in the circumstances, including the fact of the notification given to the Commission by the Union, the respondent was not required to "submit" the matter to the Commission. I am not prepared to accept Mr. Hinkley's submission as to the construction of sub-clause 38A(f)(iii), and in particular the meaning of the word "submitted".

48. Sub-clause 38A(f)(iv) also raised a question of construction. It reads:

"Without prejudice to either party, work
should continue in accordance with the
award while the matters in dispute are
being dealt with in accordance with this
paragraph."

49. The application alleges that the respondent breached the sub-clause by failing:-

"... to permit Gordon Nuttall to continue
work in accordance with the above Award
while the dispute concerning its
termination of its employment of Gordon
Nuttall on 6th October 1986 was being dealt
with by the Australian Conciliation and
Arbitration Commission".

50. Mr. Hinkley's carefully prepared and presented argument has not convinced me that the sub-clause, on its true construction, required the respondent to permit Mr. Nuttall, whom it had dismissed for what it contended was misconduct, to continue work whilst the dispute was being dealt with by the Commission. The clause does not expressly state that an employer is required to do so. If the Commission had intended to require an emloyer to do so, in my opinion it would have said so in express terms.

51. Mr. Hinkley referred me to the two decisions of a Full Bench of the Commission in the Termination, Change & Redundancy Case (1984) 8 IR 34 and (1984) 9 IR 115. Assuming, without deciding, that those decisions may be examined as an aid to construction of the clause, in my opinion the earlier decision does not support the present applicant. Further, the supplementary decision, in my opinion, tends against the applicant's argument. It referred to the employers' submission that the draft sub-clause should have inserted in it, after the words "work should continue", the words "as required by the employer". In deciding not to insert those words the Full Bench said (at 122):-

"Furthermore, we are unable to distinguish
any significant difference between the
expression "work should continue in
accordance with the award" and the
expression used by the employers, and we
are not prepared to provide that where
direct action of employees, other than the
employee dismissed, occurs the claim should
lapse."

Accordingly I find that the respondent did not commit the alleged breach of clause 38A(f) and that part of the application will be dismissed.

52. There remains the allegation (paragraph 1 of the application) that the respondent breached clause 30 of the Bank Officials' Award in that "it did affect and injure Gordon Nuttall in his employment and service with the respondent by reason of a charge and complaint made against him without ... (alleging various omissions by the respondent)".

53. Mr. Hampson submitted, on behalf of the respondent that clause 30 is not at all appropriate to a case of summary dismissal. Mr. Hinkley relied upon the fact that the matters cited in the application (the complaint and the respondent's omissions, including its failure to give Mr. Nuttall "an opportunity to meet it") occurred before the dismissal. He submitted that it would leave the clause open to abuse if an employer, having breached sub-clause 30(a) by injuring an employee in his employment, could defeat a potential application for a penalty for that breach by dismissing the employee. The matter is not free from doubt and it may be that the parties should seek a clarification of the meaning of clause 30, by a variation of its terms by the Commission. However, sub-clause 30(b) reads as follows:-

"This clause shall have no application when
an officer's service is terminated in terms
of clause 38 - Termination, Change and
Redundancy."

Having regard to its terms, and to any finding that the respondent has breached clauses 38A(a) and 38A(d), I have concluded that a breach of sub-clause 30(a) has not been shown.

54. Having given consideration to the total amount of the penalties ($1,200) in respect of the breaches of the awards, in my opinion they are appropriate penalties in all the circumstances; in saying "appropriate" I mean in the light of the maximum penalty that may be imposed for a breach of an award. However, I agree, with respect, with Wilcox and Ryan JJ. in Gregory's case (supra, at p. 31) that that maximum of "only $1000 ... is so low as to have little deterrent effect".

55. Under s. 120 of the Act it is ordered that each of those penalties be paid by the respondent to the Australian Bank Employees Union. The observations by Wilcox and Ryan JJ. in Gregory's case (supra, at p. 31) as to the desirability of avoiding duplication do not apply in this case where the Union, not Mr. Nuttall, is the applicant.

56. The court does not have before it the information necessary to enable the making of an order in respect of paragraph 6 of the application; it may be that the parties will reach agreement on that aspect. Liberty to apply in respect of that paragraph will be reserved to the applicant.