ANZ in legal battle after sacking former executive over doctored email

Editor’s note, March 2018: This article was published on December 11, 2014 and relates to a court judgment from November 25, 2014, which has now been overruled.

The executive referred to in this case appealed the decision in the NSW Court of Appeal. His appeal was upheld in early 2016 and the original orders made in 2014 were completely set aside, as were the orders made in relation to the payment of ANZ’s costs. The bank was then ordered to pay the executive’s costs from the 2014 proceedings and 50% of the costs of his appeal. Further details are available here.

ANZ has successfully defended a $9 million breach of contract claim after a senior executive sent a doctored email to a journalist.

The NSW Supreme Court found ANZ was within its rights to sack its NSW head of institutional property group, Paul Bartlett, in 2012 for gross misconduct.

Bartlett brought the case against ANZ after he was marched out of ANZ’s headquarters following an internal forensic investigation which identified him as the author of a doctored email that was sent to Matthew Cranston, a journalist at The Australian Financial Review.

ANZ told the court Bartlett had doctored the email from ANZ’s global head of institutional property, Eddie Law, including a new subject line — “ANZ Balance Sheet is Closed for Remainder of Year for Property Deals” and the line “No more new lending. We are closed for business. Do not tell the market or our ­clients”.

The doctored email read:

“FROM: Law, Eddie

SENT: Wednesday, 20 June 2012 1:10 PM

TO: Lawrence, Matthew;

CC:

Subject: Re: ANZ Balance Sheet is Closed for Remainder of Year for Property Deals

The key discussion points from the announcements from Mike Smith and Alex Thursby are as follows:

Focus going forward is on Balance Sheet productivity. No more new lending. We are closed for business. Do not tell the market or our clients.

This means that we will need to prioritise deployment of new capital. In order to do so we may seek to free up capacity by non renewal/ sale of assets.

Selling down existing exposure and prioritisation of future exposure may negatively impact the revenue line, however this has been provided for.

Rgds

Eddie Law

Global Head Commercial Property Group, ANZ

Sydney”

The email was doctored, printed out and then posted to the journalist but the handwritten envelope proved to be the undoing of Bartlett.

ANZ alleged Bartlett doctored the email as he felt aggrieved Law had been promoted over him and because the bank’s tightening of new lending could impact his bonus.

ANZ claimed Bartlett was also concerned after a series of unfavourable performance reviews following an investigation which found Bartlett had made his executive assistance complete online compliance training on his behalf.

The court noted it might be asked why someone as clever as Bartlett would write the envelope by hand rather than, for example, type an address label.

“There was no evidence that [Bartlett] was particularly adept at typing or document preparation. He used the services of an EA. To require someone else to type a label or write the envelope would be to incur a greater risk of detection,” the court found.

Bartlett was ordered to pay ANZ’s costs of the proceedings.

Ben Tallboys, senior associate at law firm Russell Kennedy, told SmartCompany the case was a breach of contract claim so all the court was concerned about was whether ANZ had a contractual right to dismiss the employee. 

“Employers who are on the ball will already have contracts which will allow them to dismiss senior employees where the employer has a reasonable opinion that the employee has done something that is serious misconduct or that could cause disrepute,” he says.

“The case does confirm that those clauses are likely to be upheld unless the employee can prove the employer was acting in bad faith, which will be very difficult.”

But Tallboys says employers still need to comply with the Fair Work Act and have to give minimum periods of notice when dismissing someone unless the serious misconduct actually occurred.

“Employers will need to satisfy the Fair Work Commission in unfair dismissal cases that the misconduct actually occurred,” he says.

ANZ declined to comment and SmartCompany was unable to contact Bartlett.