Is it ever ok for employees to break the rules?

By Portner Press on January 22nd, 2020
  1. Termination of Employment
  2. Unfair Dismissal

While one would expect a bank to be within its rights to sack an employee for fraud, a recent decision by the Fair Work Commission (FWC) highlights that not every situation is black and white.

In Jonalyn Snell v Bendigo and Adelaide Bank Limited (2019), an extensively trained teller was summarily dismissed for opening a business bank account without a signature.

However, even though the employee knew she was “pushing the boundaries”, the FWC found that she was given “tacit support and encouragement” from another senior staff member. The senior employee wasn’t disciplined.

The FWC ruled that the teller was unfairly dismissed and ordered her reinstatement.

Employee made a mistake

The teller met with a business customer to open two new accounts, however the form the customer signed only contained details of one account.

The employee became aware of her mistake when the customer called up days later to ask why she couldn’t access the second account.

Instead of getting the customer to come back to the bank to sign a new form, which would cause “unnecessary inconvenience”, she contacted the company’s iSupport team to see if she could amend and resubmit the first form again.

The iSupport team member told her that “technically” the customer would have to sign a new form, however ended the conversation by telling the teller to “see how you go” with amending the existing form.

Fraud is fraud, employer argues

In the hearing, the employer submitted that “not wanting to ‘bother a customer’ with additional paperwork” was not a reason to fake a signature, which amounted to “internal fraud” under the bank’s Financial Crimes Policy.

The teller had “sought to use iSupport to legitimise a course of action that she knew to be in breach of policy”, it argued, submitting that the employee “was not directed to act in a certain way, but instead badgered the iSupport team member in an attempt to gain endorsement for what she was proposing”.

Employee was ‘pushing the boundaries’, but employer also at fault

While FWC Commissioner David Gregory found that the employee knew she “was pushing the boundaries in terms of what was acceptable” he also found the iSupport team member “at fault in eventually giving ground and responding in the way she did”.

“[The employee] clearly felt at this point that she had received endorsement for what she proposed from someone she clearly viewed as a more senior authority within the Bank and was reassured as a consequence in terms of what she proposed,” he said.

In response to the extensive training the employer said it provided the employee, which included Financial Crimes Awareness training, Commissioner Gregory said this did not mean the bank was “absolved from all responsibility when mistakes occur, and that its employees instead bear that responsibility”.

“For example, if submitting the application form in the way that she did was considered to be such a significant matter then it is unclear why it took more than a month for this matter to be brought to her attention, despite the immediate alert provided by the Accounts Opening team,” he said.

“By then the processes in place had worked to ensure that a fresh application form, signed by the customer, had been submitted as required and the second account was now operational.

“All of this had been done by [the employee] in accordance with the various advice she received at different times.”

Commissioner Gregory ordered that the employee be reinstated “on terms and conditions which are not less favourable than those which applied to her previously”.

He did however decline to order reimbursement for lost wages during her unemployment, as she was “not blameless in acting in the way she did”.

 





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