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Celebrity searching justifies dismissal

25 February 2021
Employees of financial and similar institutions who search for accounts of third parties without approval or legitimate reasons for doing so run the risk of being disciplined, up to and including termination of employment (Dinov v Australia and New Zealand Banking Group Ltd T/A ANZ Bank [2021] FWC 745).

Facts

The Applicant was a part-time personal banker who had been employed with the Respondent (the Bank) since July 2017. Her employment was terminated by payment in lieu of notice on 23 October 2020. 

The reasons for the dismissal included misusing the Bank's software to access the profiles of customers, family members, and a colleague, without approval or a legitimate business purpose on numerous occasions. The Applicant denied the allegations and claimed she did not know any of the people whose accounts were accessed, and had no reason to access the accounts of persons who were not known to her.

In evidence, the Applicant denied having conducted the searches although acknowledged her account had been used to do so. With respect to one name, that of a celebrity, the Applicant denied having any knowledge of the person.  The Applicant asserted it was possible that other employees at the branch had used her account by obtaining her password that she kept in her drawer, notwithstanding the password needed to be changed every 60 days. 

The Bank had a Prohibited Activities Policy which stated that employees must not use the Bank's systems to view accounts of their relatives or friends. It also prohibited the use of its systems for accessing the accounts of other employees of the Bank without a genuine business requirement to do so or permission from the accountholder, where appropriate. 

The Bank did not accept the explanation provided by the Applicant as being plausible or logical, and asserted that it was the Applicant that conducted the non-work related profile searches, as opposed to some unknown person. 

Decision

The Fair Work Commission (the Commission) found that the Applicant's explanations were implausible, and on the balance of probabilities found that the alleged misconduct was undertaken by the Applicant. The Commission further found the misconduct was a serious breach of the Bank's policies and provided a valid reason for the termination. 

The Commission noted that it was unlikely the Applicant would find employment in the banking industry for a period of at least five years. This was due to the Bank being required (under the Australian Bankers Association Better Banking Program) to reveal details of the Applicant's dismissal to the Applicant's prospective employers, who were major banks.  This was a requirement given the reasons for the Applicant's dismissal. However, these considerations were counter-balanced by the Applicant continuing to refute the reasons for her dismissal and not demonstrating any contrition.

The Commission found the Applicant's continued employment would undermine the values of the employer and the trust placed in it by its customers, and dismissed the application.

Conclusion

This case underlines for employers the value in having comprehensive policies which regulate employee behaviour that is specific to the industry. 

If you require further information or have any queries in relation to this legal update, please contact Mark Curran or Matthew Smith. 

Further Reading