The NSW Supreme Court has ruled that the ANZ Bank did not need to prove that an executive leaked a confidential internal email to the media before summarily terminating his employment; it only had to have formed the opinion that he had.
Mr Bartlett was the NSW director of the Institutional Property Group for the ANZ. On 20 June 2012 Mr Bartlett was one of ten ANZ employees to receive an email which stated, amongst other things:
“No more new lending. We are closed for business. Do not tell the market or our clients.”
On 3 July 2012 a journalist based in Brisbane who wrote for the Australian Financial Review received a copy of the email in the post. The journalist advised the ANZ.
At the conclusion of an investigation which included a forensic examination of the handwriting on the envelope, the ANZ was of the opinion that Mr Bartlett had leaked the email because:
- He was based in Sydney where the letter was posted;
- He was the only recipient of the email who knew the journalist;
- He lied about being in contact with the Commonwealth Bank about employment opportunities;
- He lied about a previous warning he had received;
- He was reluctant to sign a statutory declaration that he was not the leaker without obtaining legal advice first;
- The handwriting examination report declared that it was highly probable that the writing on the envelope was his.
Mr Bartlett’s contract contained a clause stating:
“ANZ may terminate your employment at any time, without notice, if, in the opinion of ANZ, you engage in serious misconduct.”
Based on the opinion that Mr Bartlett had sent the letter, the ANZ summarily terminated his employment.
Mr Bartlett sued the ANZ for breach of contract alleging that he was not guilty of serious misconduct. He claimed damages of $9 million in respect of lost remuneration and bonuses, calculated on the basis that he would have worked for ANZ for a further ten years. He claimed that the ANZ could only terminate the contract if it could prove that he was actually guilty of serious misconduct, or alternatively, if ANZ could terminate on the basis of its opinion that he was guilty of serious misconduct, such opinion had to be reasonable, correct, formed in good faith and in compliance with various ANZ policies.
The Court rejected Mr Bartlett’s claim and found that the words “in the opinion of” were “not gratuitous”. The relevant fact was whether, in the opinion of the ANZ, Mr Bartlett was guilty of serious misconduct. The Court was satisfied that the ANZ held the opinion that Mr Bartlett sent the email to the journalist and that this amounted to serious misconduct. Accordingly, the ANZ was entitled to terminate Mr Bartlett’s employment without notice.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.