In circumstances where you suspect, have undertaken an investigation and come to the decision an employee is guilty of misconduct, most employers would presume they are entitled, as a matter of law to immediately terminate the employment relationship. But, as the case of Bartlett vs. Australian and New Zealand Banking Group (ANZ) (2016) demonstrates, this may not always be the case. Procedural fairness, as required by the Fair Work Act must still be afforded, and internal policy and contractual provisions adhered to.

The Bartlett Decision

In this recent case, the employee (Bartlett) was accused of sending confidential information of the bank to media, by doctoring another employee’s email then anonymously posting a copy of that email to a journalist at the Australian Financial Review. Bartlett denied he was the guilty party. In conducting its investigation and ultimately proceeding to terminate, ANZ interviewed a number of staff and engaged a handwriting expert to undertake an analysis of the signature appearing on the document so sent.

The relevant employment contract contained a provision whereby the employment of Bartlett could be terminated for ‘serious misconduct’, wording that mirrors that as contained in the Act.

At first instance, the Court upheld the termination as valid and by ANZ’s contractual rights.

Appeal Decision

The employee appealed. In the appeal decision, the NSW Court of Appeal examined the circumstances surrounding the termination, and ultimately overturned the prior decision. In delivering Judgement, the appeal court was somewhat critical of ANZ’s actions, noting the very serious consequences for the appellant.

Here, the Court relied on the lack of procedural fairness afforded to Bartlett and noted he had not been provided with a copy of the handwriting expert report despite the request, and that ANZ had not followed its own internal policy as to such investigations. Importantly, by specific reference in the employment agreement, the Court found the plaintiff was entitled to same as a matter of contractual construction.

Finally, the report held the ‘investigation’ undertaken by ANZ was insufficient, in that, among other things, they did not interview the appropriate staff in forming the conclusion Bartlett was the rogue, and, thus, had insufficient ‘evidence’ upon which to found their findings.

Key Takeaways

There are four main takeaways from this case:

  1. Just because an employee may be unable to bring a claim for unfair dismissal (for example, because they earn more than the threshold amount), does not mean they will not have a claim at all – the contractual rights need to be considered.
  2. An opinion is not enough – a thorough investigation must take place before dismissal if claims are denied.
  3. Employees should be given adequate opportunity to respond to any such allegations, and that opportunity recorded.
  4. Before you do anything, check your employment records and policy documents. They will set out your contractual obligations.

If you have any questions, get in contact with our employment lawyers today on 1300 544 755.

Emma Jervis

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