Recorded calls revealed multiple instances of exceeding authorised scope with clients
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application involving a bank relationship manager who was terminated for providing unauthorised financial advice to customers.
The case arose when the worker failed to follow proper procedures during recorded phone calls with retail customers, leading to findings that serious misconduct justified dismissal despite the worker's claimed good intentions.
The worker maintained that her conduct was caused by a lack of training or supervision, and that she was genuinely trying to improve her performance and help the bank succeed.
The employer contested the unfair dismissal claim, arguing the worker engaged in serious compliance breaches that violated banking regulations and internal policies.
The financial institution maintained that the worker deliberately ignored directions from management and provided financial advice beyond her authorised scope, creating regulatory risks.
Compliance breaches identified in recorded calls
The employment relationship involved an executive relationship manager whose role required speaking with retail customers about potentially becoming accredited investors, with strict regulatory requirements governing such interactions.
The position demanded adherence to specific procedures and warnings to protect customers who have fewer legal protections as accredited investors.
Investigation of recorded phone calls revealed multiple instances where the worker failed to provide complete General Advice Warnings to customers, provided personal financial advice beyond her authorisation, and continued providing information after customers indicated disinterest in becoming accredited investors.
Analysis also showed the worker incorrectly identified the nature of her role during customer conversations.
The FWC found the worker's conduct was inconsistent with the bank's Code of Conduct, Investment Service Procedure Instruction Manual, and Accredited Investor Service Desk Instruction Manual.
The worker had received training on these requirements, and her employment contract contained specific directions to comply with conduct codes and procedures.
Management directions deliberately ignored
Evidence revealed the worker deliberately acted in breach of directions given by senior management because she believed their advice was ineffective.
The worker admitted during proceedings that she disobeyed instructions from the Head of Wealth Distribution and ignored directions from the Desk Head not to use information from investment specialist brochures in customer calls.
The worker appeared to misunderstand the extent to which the bank was entitled to determine what she could and could not say in phone calls made on its behalf.
She suggested the bank did not have the right to prevent her from discussing economic issues such as global interest rate movements during customer conversations.
The Commission found this conduct constituted serious misconduct, noting that the worker's deliberate disobedience of lawful and reasonable directions demonstrated a fundamental misunderstanding of compliance obligations in the heavily regulated financial services industry.
Training and supervision arguments rejected
The worker argued her conduct was caused by inadequate training or supervision from the bank, pointing to an email she sent seeking feedback on proposed questions intended to drive wealth referral.
She suggested that broader compliance issues might exist across other relationship managers who conducted non-recorded face-to-face appointments.
The Commission rejected these arguments, finding detailed evidence about training provided to the worker through policies, procedures, and direct instruction from management.
The FWC noted that while additional supervisory response might have been helpful, this did not excuse the worker's conduct or justify her deliberate breaches.
The decision emphasised that even if other employees were also committing misconduct, this would not excuse the worker's behaviour.
The Commission found the worker had received appropriate training and was aware of her obligations but chose to act contrary to established procedures and management directions.
Procedural fairness requirements satisfied
The disciplinary process involved multiple stages, including initial suspension with pay pending investigation, a formal allegations letter, show cause proceedings, and a final termination decision.
The worker was provided opportunities to respond at each stage and attended meetings with management and HR representatives.
The worker received an allegations letter on 21 October 2024 and provided a written response on 28 October 2024.
She then received a show cause letter on 5 November 2024 and responded on 6 November 2024, with termination occurring on 8 November 2024 after consideration of her responses.
The Commission found the worker was properly notified of dismissal reasons before the decision was made, given adequate opportunities to respond to allegations, and offered support person assistance during proceedings.
The bank's size and HR expertise supported proper procedural implementation throughout the disciplinary process.
Valid reason established for misconduct dismissal
The Commission determined that the worker's breaches of conduct codes, policy violations, and deliberate disobedience of management directions constituted valid reasons for dismissal.
The misconduct was particularly serious given the stringent regulatory obligations imposed on financial institutions and their employees.
The tribunal noted that banking and financial services operate in heavily regulated environments for sound public policy reasons, making compliance obligations paramount.
The worker's apparent loss of perspective about the importance of regulatory compliance created unacceptable risks for the institution.
The Commission found the employer could have summarily dismissed the worker, given the nature of her conduct, but instead provided four weeks' pay in lieu of notice.
This consideration weighed in favour of finding the dismissal was not harsh, demonstrating the bank's measured approach despite serious misconduct.
Lack of remorse compounds misconduct findings
The Commission noted the worker's continued denial of wrongdoing and attempts to blame her conduct on other people and processes within the bank.
The FWC found this lack of remorse weighed against any finding that dismissal was harsh, as acknowledgment of misconduct might have supported more lenient treatment.
The decision emphasised that while the worker appeared intelligent and capable, with genuine passion for her role and desire to help the bank succeed, these positive attributes could not overcome the serious nature of her compliance breaches and deliberate disobedience of management directions.
The Commission concluded that no factors weighed in favour of finding the dismissal harsh, unjust, or unreasonable, with valid misconduct reasons established and proper procedural fairness provided throughout the disciplinary process.
