Published 31 August 2016
The New South Wales Court of Appeal overturned a 2014 ruling and ordered ANZ to pay $110,000 in damages to an employee who was summarily dismissed after alleged serious misconduct.
In 2012, Mr Bartlett was summarily dismissed from his position as State Director of ANZ’s Institutional Property Group due to alleged serious misconduct. ANZ believed Mr Bartlett had altered a confidential internal email and then forwarded this email to a journalist.
In the initial hearing the Court rejected Mr Bartlett’s claims and ruled that the summary dismissal was justified (Bartlett v Australia and New Zealand Banking Group Limited  NSWSC 1662).
In appeal, the Bench believed that as per the employment contract, ANZ’s ability to dismiss Mr Bartlett was contingent on whether the misconduct had occurred rather than whether ANZ believed it had occurred.
ANZ’s investigation into the incident was limited to the 10 employees that had received the email and one other employee. The Appeal Bench believed this was unwarranted as a large number of people could have gained access to the email.
ANZ relied on a handwriting report to ‘prove’ Mr Bartlett had sent the email to the journalist. ANZ did not provide Mr Bartlett with a copy of the report and as a result, he was unable to respond to the report. This was in breach with the Bank’s Performance Policy. The Performance Policy required an employee “to have a reasonable opportunity to respond” to allegations made against them and any evidence used to support these allegations. The Bench recognised this breach and believed the actions of ANZ were unfair.
Further, the Bench found ANZ had not sufficiently established that Mr Bartlett was the author of the writing on the envelope addressed to the journalist because evidence was given that there were “fundamental and consistent” differences between the handwriting on the envelope and Mr Bartlett’s handwriting.
As such, the Bench ruled ANZ was not entitled to dismiss Mr Bartlett without notice because it was not proved on the balance of probabilities that his handwriting was on the envelop and that he had committed the misconduct.
The Bench ruled if ANZ had not summarily dismissed Mr Bartlett, they would have terminated his employment immediately and provided him four months’ pay. This was based on ANZ’s belief that Mr Bartlett was guilty of sending the email.
The Bench ordered ANZ to pay Mr Bartlett $110,000 plus interest in damages. The Bench also ordered ANZ to pay Mr Bartlett the costs of the original proceeding and half the costs of the appeal.