FEDERAL COURT OF AUSTRALIA

Yousif v Commonwealth Bank of Australia (No 2) [2009] FCA 656

CONTRACTS – breach of employment contract – failure to appoint applicant to role within respondent – whether express agreement existed to appoint applicant – whether breach of policy incorporated into employment contract – whether breach of implied term of good faith, trust and confidence – whether implied term of good faith, trust and confidence recognised by Australian law

CONTRACTS – breach of employment contract – alleged flaws in investigation into failure to appoint applicant to role – whether breach of policy incorporated into employment contract – whether breach of implied term of good faith, trust and confidence

PRIVACY – breach of Privacy Act 1988 (Cth) – access to personal information of applicant by another employee of respondent – whether declaration or injunction should be granted – whether respondent has taken all reasonable steps necessary

Privacy Act 1988 (Cth) ss 16A, 98, Sch 3

Aldersea v Public Transport Corporation (2001) 3 VR 499 cited

Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 cited

Gogay v Hertfordshire County Council [2000] IRLR 783 cited

Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20 applied

McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375; [2007] FCA 1903 cited

Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 176 IR 82 cited

Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198 questioned

Thomson v Orica Australia Pty Ltd (2002) 116 IR 186; [2002] FCA 939 cited

Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114; [2005] FCA 1678 cited

LINDA YOUSIF v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

VID 394 of 2008

NORTH J

19 JUNE 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         Subject to paragraph 3 hereof the applicant is to pay the respondent’s costs of the application. 

3.         Leave is reserved to any party to apply in writing by 24 June 2009 to vary the order for costs contained in paragraph 2 hereof. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The applicant, Linda Yousif, was employed by the respondent, the Commonwealth Bank of Australia (the Bank), as a mobile lender in the Western Victoria / Tasmania Region (the Western Region). 

2                          Differences arose between Ms Yousif and her managers in the Western Region throughout 2007.  As a result Ms Yousif wished to transfer as a mobile lender to the Personal Relationship Banking (PRB) division of the Bank in January 2008.  The Bank did not appoint Ms Yousif to the PRB role.  Ms Yousif was dissatisfied with this refusal and objected to the Bank about the decision.  As a result the Bank in February and March 2008 conducted an investigation into the circumstances of the failure to appoint Ms Yousif to the PRB role.  The investigation recommended that no further action be taken in relation to Ms Yousif’s application to transfer to PRB. 

3                          Ms Yousif says that the circumstances surrounding the failed transfer to PRB, and the subsequent investigation, caused a breakdown in the relationship between her and the Bank which ultimately led to the Bank terminating her employment in December 2008.

THE CLAIMS MADE BY MS YOUSIF

4                          In this application Ms Yousif claims damages for breaches of contract arising from the Bank’s failure to appoint her to the PRB position, and arising from flaws in the handling of the subsequent investigation. 

5                          In relation to the failure to appoint Ms Yousif to the PRB position, she claims that the Bank acted in breach of:

            (a)        an express agreement to appoint Ms Yousif to the PRB position.

            (b)        the Bank’s Appointment to Roles Policy which was incorporated into her                                  contract of employment.

            (c)        an implied term of good faith, trust and confidence in Ms Yousif’s contract of                 employment. 

6                          In relation to the alleged flaws in the investigation, Ms Yousif claims that the Bank acted in breach of:

            (a)        the Bank’s Fair Treatment Review Policy (FTR) which was                                           incorporated into Ms Yousif’s contract of employment.

            (b)        an implied term of good faith, trust and confidence in Ms Yousif’s contract of                 employment. 

7                          Further, Ms Yousif claims a declaration and / or injunction for an alleged breach by the Bank of the Privacy Act 1988 (Cth).  

THE STAFF AT THE BANK

8                          Ms Yousif’s immediate manager in the Western Region was Mr Cameron McKinnon, Sales Manager Mobile Lending.  Mr McKinnon reported to Mr Ian Gwynne, Regional Sales Manager, Mobile Banking, Western Region.  Mr Gwynne reported to Mr Richard Porter, Regional General Manager, Retail Services and Sales, Western Region. 

9                          Like the Western Region, PRB was another of the three divisions of the retail banking business of the Bank in Victoria.  Mr Julian Lenehan, was the Executive Manager PRB and reported to Mr Damon Monopoli, General Manager PRB. 

10                        As heads of their respective divisions within Victoria, Mr Porter and Mr Monopoli were at the same management level.  They both reported to Mr Grahame Carney, Executive General Manager, Branch and Relationship Banking.

11                        When Ms Yousif complained to the Bank about the failure to be appointed to the PRB position, Ms Kerrie Blundell conducted the investigation of the circumstances.  She was an Executive Manager, People Support in the Retail Banking Services Division of the Bank. 

THE EVIDENCE ADVANCED AT THE TRIAL

12                        The trial of the application was conducted on affidavit.  Ms Yousif relied on affidavits sworn by herself on 30 May 2008, 7 August 2008, 11 October 2008 and 3 November 2008, and an affidavit sworn by Dr Michael O’Gorman on 3 November 2008.  Dr O’Gorman was Ms Yousif’s General Practitioner who was treating her for stress.  The Bank relied on affidavits sworn by each of its employees referred to in [8] - [11].  All deponents other than Dr O’Gorman were cross-examined on their affidavits.  The Bank did not require Dr O’Gorman for cross examination.

THE FAILURE TO APPOINT MS YOUSIF TO THE PRB POSITION

Introduction

13                        The work of a mobile lender was to generate home loans by seeking out contacts with clients.  The contacts could be through external sources such as mortgage brokers, solicitors, accountants, or estate agents, or could be through the branches of the Bank, that is to say, sources internal to the Bank.  Mobile lenders worked from home.  The hours were flexible but they were expected to work after normal working hours if necessary to meet the needs of clients.  They were renumerated by a fixed salary plus bonus payments calculated as a percentage of the loans generated by them.  Trailing commissions were also paid for up to five years after the loans were made so long as the mobile lender remained an employee of the Bank.  The administrative work connected with the loan transactions negotiated by mobile lenders was done by assistants provided by the Bank to the mobile lenders.

The initial deterioration in the relationship

14                        The controversy between Ms Yousif and the Bank which precipitated the deterioration in the relationship concerned the provision of administrative assistance by the Bank to Ms Yousif.  Ms Yousif was appointed to the position of mobile lender in January 2006.  During most of 2006, Ms Yousif shared an administrative assistant with two other mobile lenders.  In January 2007, the Bank allocated Richard White to work as an administrative assistant to Ms Yousif.  As her figures increased, in August 2007, she asked Mr McKinnon to allocate another administrative assistant to her.  He refused, saying that she should pass on some of her clients to other mobile lenders. 

15                        Mr McKinnon’s evidence was that he was constrained in providing further administrative assistance because he had only five assistants between 14 mobile lenders in his team.  He said that he tried to persuade Ms Yousif to reduce the administrative burden by targeting a smaller number of larger amount loans rather than the very large number of smaller loans which she was attracting at the time.

16                        Ms Yousif was dissatisfied with Mr McKinnon’s answer and on 18 August 2007, she applied for a position as a mobile lender in the Eastern Region, which was the third division of the Bank in Victoria.  She was told by a mobile lender in the Eastern Region that if she worked in that region she would be entitled to two administrative assistants. 

17                        On 20 August 2007, she rang Mr Porter to ask him for a release from the Western Region.  She said that Mr Porter told her that he would do anything to keep her happy.  He arranged a meeting with Ms Yousif, Mr McKinnon, and Mr Gwynne, to find out her reason for wanting to leave.  At the meeting Mr McKinnon and Mr Gwynne promised to provide her with extra support.  As a result she withdrew her application for the position in the Eastern Region. 

18                        About a month later the Bank allocated Ms Tess Keller to provide administrative assistance to Ms Yousif in addition to Mr White.  Mr McKinnon explained in evidence that this solution became possible because Ms Keller, who had been a mobile lender, was not attracting much work and was therefore asked to work as an assistant to Ms Yousif. 

Performance and Behaviour

19                        In the December 2007 quarter Ms Yousif was the highest performer in the Western Region and the second highest in Victoria.  The following table shows Ms Yousif’s performance by reference to the sales made compared to the targets nominated by the Bank, and by reference to the bonus payments made to Ms Yousif.

20                        All of the employees of the Bank who gave evidence acknowledged that the figures achieved by Ms Yousif were outstanding. 

21                        However, the managers who worked closely with Ms Yousif, namely Mr McKinnon, Mr Gwynne and Mr Porter all observed that as Ms Yousif was working harder and harder to achieve ever higher sales she was getting more intense, stressed, and tired.  At the same time the Bank was receiving complaints from some customers about inadequate service by Ms Yousif, and also complaints from other Bank employees about impatient and rude treatment from Ms Yousif in her dealings with them.  Ten complaints between March and November 2007 were documented.  Significantly, a number of the internal Bank complaints arose in circumstances where Ms Yousif accused other Bank staff of “stealing” her transactions. 

22                        The Bank used the Roy Morgan research organisation to conduct customer experience surveys which involved interviews with customers to ascertain their satisfaction with their interaction with particular staff members of the Bank.  The results of this research were tabulated as one element in a league ladder of all mobile lenders.  In the ladder dated December 2007 Ms Yousif is ranked number two in the Western Region by reference to the sales made.  At the same time she achieved a 12.5% score in the customer experience surveys.  This means that she scored nine or ten out of ten in only 12.5% of cases.  The result compares very unfavourably with almost all of the other mobile lenders in the region.  Hers was the lowest customer experience result of the 42 Victorian mobile lenders against whom the survey results were recorded. 

23                        Mr McKinnon said that he raised the complaints with Ms Yousif at the time they arose as on the spot coaching rather than in formal disciplinary meetings. 

24                        Mr McKinnon, Mr Gwynne, and Mr Porter found Ms Yousif progressively harder to manage as the latter part of 2007 progressed.  She resisted any management decision which stood in the way of her increasing her sales.  There were incidents where this was done rudely and aggressively.  Some of the particular incidents are referred to in the following sections of these reasons. 

25                        Ms Yousif’s affidavit sworn on 3 November 2008 responded to the allegations concerning customer and staff complaints as follows:

I strongly deny that there were any behavioural issues or concerns for my health in the second half of 2007.  There were no discussions between me and anyone above my line of management about my health or behavioural issues.  Richard Porter did not discuss my health at Derby Day 2007.  I was very happy to be generating the business and earning the bonuses in late 2007.

Ms Yousif provided no detailed response to the ten documented incidents or to the survey results.  Her general response was that she had not been told about the complaints or given sufficient detail about the survey results.  In any event, Ms Yousif said the Bank had paid her bonuses without any suggestion that her conduct disqualified her from receiving them. 

The Premium Financial Services issue

26                        Mr Andrew Matthews joined the Bank and at the same time joined Mr McKinnon’s mobile lender team in August 2007.  He had a contact in Brisbane with Premium Financial Services (PFS), a company which was a potential source of loan referrals to the Bank.  Using this contact, Mr McKinnon went to Brisbane and signed a retail referral agreement with PFS.  Work sourced from PFS was then referred to Mr Matthews.  Mr McKinnon said that Mr Matthews came to him in December 2007 and said that he was having difficulty, given his limited experience as a mobile lender, in coping with the volume of work from PFS.

27                        Ms Yousif said that when Mr Matthews started as a mobile lender he asked her advice about how to become successful as a mobile lender.  She felt that he treated her as a mentor.  He told her that PFS had a potential to refer loans worth $250 million to the Bank.  She said that he told her that because of the size and quality of the business from PFS he needed someone of her service capacity, experience and accuracy to assist him.  Ms Yousif said that in December 2007 Mr Matthews told her that he wanted her to do the work and would share the bonus produced from that work on a 50/50 basis.  He said that he told Mr McKinnon this and told Ms Yousif to speak to Mr McKinnon about it. 

28                        Ms Yousif said that on 20 December 2007 she made an appointment to see Mr McKinnon on that day.  However, when she arrived Mr McKinnon said that he did not have time to discuss the issue because he was going to the work Christmas party.  Ms Yousif said that later that day at the Christmas party on a boat at Docklands Mr McKinnon told her and Mr Matthews that the work was to be shared between three mobile lenders, namely, herself, Mr Matthews and Mr Sal Dema.  Ms Yousif said that Mr Matthews replied that he did not want to work with Mr Dema because Mr Dema had not provided him with any support.

29                        Mr McKinnon had a different recollection of the events of 20 December 2007.  He said there was no meeting arranged with Ms Yousif before the Christmas party.  He spoke to Mr Matthews in the morning and told him that he could take on as many files as he could handle, and the rest would be split between Ms Yousif and Mr Dema.  Mr McKinnon denied the discussion at the Christmas party and the terms recalled by Ms Yousif.  Rather, he said that during the cruise he heard some loud and foul language from Ms Yousif.  He went over and she burst out crying.  He said he took her to one side and asked her what was wrong.  She had found out about Mr McKinnon’s decision to split the PFS work between the three mobile lenders, although Mr McKinnon had not told her.  She “continued ranting saying that the [PFS] work was her work”. 

30                        On the following day, 21 December 2007, Mr McKinnon arranged a meeting with Ms Yousif and Mr Matthews to discuss the distribution of PFS work.  Mr Gwynne joined by teleconference.  Mr McKinnon said that Mr Gwynne supported the decision that Mr Matthews would do what he could, Ms Yousif would then do what she could, and Mr Dema would do the balance.  Mr McKinnon said that Ms Yousif appeared very dissatisfied with this outcome. 

31                        Ms Yousif, on the other hand, said that Mr Gwynne’s decision was that she could deal with as many of the PFS referrals as she could, and that she could distribute the balance to any mobile lenders of her choice.  She said that she accepted this as a fair outcome.

32                        Mr Gwynne’s recollection of the meeting of 21 December 2007 accorded essentially with that of Mr McKinnon. 

33                        On 24 December 2007 Ms Yousif left a message for Mr Porter to call her.  In cross examination she said that the reason for the approach to Mr Porter was that Mr McKinnon and Mr Gwynne had different views about the distribution of the PFS work and she was concerned that Mr McKinnon would approach Mr Porter to override Mr Gwynne’s decision.  She said in cross examination that she feared that Mr Porter would favour Mr McKinnon because they were friends.  I do not accept that there was a difference in views between Mr McKinnon and Mr Gwynne on the distribution of the PFS work.  Rather, I find that Ms Yousif approached Mr Porter in order to persuade him to change the decision made by Mr McKinnon and agreed to by Mr Gwynne. 

34                        Mr Porter rang Ms Yousif back and they had a conversation about the distribution of the PFS work.  Ms Yousif explained to Mr Porter why she felt she deserved the work.  Ms Yousif gave evidence that Mr Porter told her she was greedy and selfish and Ms Yousif felt that he was angry with her.  Mr Porter’s affidavit, upon which he was not cross examined on this aspect, deposed that Ms Yousif was dismissive and disrespectful of Mr McKinnon and Mr Gwynne.  Mr Porter told Ms Yousif that he supported the decision of Mr McKinnon and Mr Gwynne.  It is clear that the conversation was confrontational and accompanied by a fair level of hostility on both sides. 

35                        On one aspect, namely the issue of Ms Yousif’s behaviour, there was a total contradiction in the evidence of Mr Porter and Ms Yousif.  Mr Porter said that he raised with Ms Yousif her aggressive and disrespectful behaviour towards Mr McKinnon and Mr Gwynne, and her conduct at the Christmas party.  He also told her that her customer service was extremely poor and that this was very concerning.  Ms Yousif said in cross examination that nothing like this was said and that “it’s all made up”.  The circumstances in which the conversation occurred make it more likely than not that Mr Porter did raise behavioural issues in the conversation.  This view is confirmed by the way in which Ms Yousif handled cross examination on the issue.  Her repeated denials that there was any reference to issues which were critical of her performance were made without consideration and gave the impression that she had determined not to engage on the issue but rather to make no concessions on the question at all.  The denials were not convincing.  Her suggestion that Mr Porter’s version was “all made up” was an extreme and exaggerated response which appeared designed to bolster her own denials.

36                        On the afternoon of 24 December 2007 Ms Yousif signed an agreement with Mr Matthews in the following terms:

It is hereby agreed that Andrew Matthews will commit to Linda Yousif and the Brisbane contract will remain completely with these two parties.

Andrew and Linda are willing to shift the region to Eastern Region if Western/Vic Tas region management does not support this decision.

37                        At about the same time she arranged a meeting with Mark Wilson, the Manager of the Eastern Region, to canvas the prospect of transfer into that region.  Mr Wilson postponed the meeting so he could speak to Mr Gwynne first.  

38                        Ms Yousif gave evidence that she took these steps after the phone call with Mr Porter because she concluded that he would not support her doing all the PFS work.     

Ms Yousif’s application for the position in PRB

39                        In her October affidavit Ms Yousif said that in early January 2008 she saw an advertisement for a mobile lender position in PRB.  The position reported to Mr Lenehan who reported to Mr Monopoli.  Mr Lenehan called her for an interview.  The interview was at his office in Bourke Street.  He said that he would be happy to offer her the position, and would arrange a meeting with Mr Monopoli.  The promised meeting occurred on the following day with both Mr Lenehan and Mr Monopoli.  It was held at Mr Monopoli’s office in Camberwell.  At the end of the meeting Ms Yousif was offered and accepted the position.  Mr Lenehan said that he would contact Western Region to arrange a starting date and this would take about three to four weeks.

40                        In cross examination Ms Yousif repeated that she had only attended two meetings, that is to say, one with Mr Lenehan, and the next on the following day with Mr Lenehan and Mr Monopoli.  She said that the meeting with Mr Monopoli occurred in January 2008 after she had applied for the position, and not in December as he asserted.  She said that an offer was made at the second meeting and it was “absolutely unconditional, absolutely”.  The following exchange occurred in cross examination:

Mr Monopoli said that it would create political issues if you were to transfer to Mr Lenehan’s team as Mr Porter and Mr Gwynne would not want to lose a good performer? --- That’s correct.

And he recommended that you speak to Mr Porter and Mr Gwynne about the issues that you had with them and try and resolve them? --- No. He ask me that there – he told me that it was create big politic issues because “both area they wanted you and because he’s sitting on number one in the region.”  However, they offer me the role at the end of the interview. 

You say Monopoli offered you a job? --- They did, both Julian and Monopoli.  They offer me the job at the end of the interview and then ---

41                        In his affidavit sworn on 27 October 2008, Mr Monopoli said that he was asked by Mr Lenehan to attend a meeting in December 2007 to explore whether PRB would be prepared to take Ms Yousif.  Mr Matthews also attended the meeting.  When Ms Yousif explained that she was having difficulties with Mr McKinnon and Mr Gwynne, Mr Monopoli said she should try to resolve them.  No offer was made to Ms Yousif and none was accepted.  The meeting ended on the basis that Ms Yousif would not be joining PRB.

42                        In cross examination Mr Monopoli reiterated that he had only one meeting with Ms Yousif.  He said that he wanted to take Ms Yousif but that he had made no offer to her.  The meeting finished on the basis that Ms Yousif would try and work things out in the Western Region.  Mr Monopoli’s evidence is not entirely clear on whether the meeting occurred before or after the position in PRB was advertised.  It is more likely that he intended to convey that the meeting occurred after the PRB position became vacant but before it was advertised. 

43                        In his affidavit sworn 30 October 2008 Mr Lenehan said that he was contacted by Ms Yousif in December 2007 because she was interested in working in his team.  Mr Lenehan met with Ms Yousif.  She said that Mr McKinnon did not support her, that she wanted support staff, and that she wanted Mr Matthews to come with her.  Mr Lenehan said that any decision would have to be made by Mr Monopoli.  He arranged a meeting with Mr Monopoli and Ms Yousif which was held on the next day.  Mr Matthews also attended the meeting.  Mr Monopoli and Mr Lenehan were interested in taking Ms Yousif on.  But no offer was made.  There was no position on offer for a mobile lender in PRB at the time. 

44                        On about 7 January 2008 a position was advertised on the Bank’s intranet.  Ms Yousif applied.  Mr Lenehan then arranged to meet Mr Gwynne to see if Ms Yousif was suitable.  Mr Gwynne did not mention any problems with Ms Yousif, and as a result Mr Lenehan interviewed Ms Yousif.  Mr Lenehan described the next event in his affidavit as follows:

I rang Linda and said that I would be offering her a job on the same terms and conditions, but that I needed to speak to Ian again first.

45                        Mr Lenehan then met with Mr Gwynne who then told him that there were a number of behavioural issues with Ms Yousif.  Mr Lenehan was annoyed that he had not been told this at the first meeting with Mr Gwynne.  Mr Lenehan then reported the situation to Mr Monopoli to see if Mr Monopoli had spoken with Mr Porter.  Thereafter he left the matter with Mr Monopoli and had no further contact in relation to it.

46                        Mr Lenehan was interviewed by Ms Blundell in the course of her investigation.  Her notes recorded:

He made an offer – while his memory is a little hazy, he believes it was unconditional / without qualification.  The offer was verbally accepted.  The qualification (ie first speak to your current management about issues there) may have occurred after the offer. 

47                        In cross examination Mr Lenehan agreed that this note reflected his recollection of the events.  Mr Lenehan also said in cross examination that the three to four week period before Ms Yousif could start the new position was to allow a letter of offer to be prepared.  The offer was not confirmed until put in writing and, as best Mr Lenehan could recall, this requirement would have been discussed with Ms Yousif.  Later in cross examination Mr Lenehan again explained what he told Ms Yousif in the final phone call as follows:

I told her that I’d be offering her the job and then I’d just speak to Ian again first to make sure before the paperwork gets – start that [sic - started].

Was there an express agreement to appoint Ms Yousif to the PRB position?

48                        Whether an express agreement to appoint Ms Yousif to the PRB position was concluded depends on the resolution of two alternative factual issues.  The first is whether, as Ms Yousif said, Mr Monopoli offered the position and she accepted it at the meeting with Mr Monopoli and Mr Lenehan. 

49                        On this issue I accept Mr Monopoli’s evidence that no offer was made.  I find that the meeting occurred in December 2007 before the PRB position was advertised.  Although the position was vacant, no decision had been made to fill it at that time.  Further, Ms Yousif accepted that Mr Monopoli told her at the meeting that her appointment to the position would create political issues between Mr Monopoli on the one hand, and Mr Porter and Mr Gwynne on the other.  It is unlikely that Mr Monopoli would have made an offer in those circumstances.  I accept Mr Monopoli’s evidence on this aspect and find that the meeting ended with him saying that Ms Yousif should try and sort out those issues.  Mr Monopoli was an impressive witness.  He readily accepted that Ms Yousif’s figures were outstanding and was keen to recruit her for PRB.  But he also came across as an astute and strategic manager who was aware of and sensitive to the potential to create conflict between departmental managers in the Bank.  His evidence that no offer was made at the meeting with him was corroborated by Mr Lenehan.

50                        The second basis upon which it could be concluded that an express agreement to appoint Ms Yousif to the PRB position was made is that Mr Lenehan made an offer to her in the phone call made after the position was advertised.  This was not, however, the case put by Ms Yousif.   

51                        In his oral evidence it was clear that Mr Lenehan did not regard the appointment of Ms Yousif as finalised at the time of his phone call to her.  The offer was subject to him speaking to Mr Gwynne.  It was also subject to a formal written offer being prepared and a contract signed.  The requirement that he speak to Mr Gwynne was a consistent factor recorded in his affidavit and also in the notes of Ms Blundell.  Mr Lenehan had worked for the Bank for 36 years.  He knew from Ms Yousif that there were issues with her managers and he had been at the meeting when Mr Monopoli said that she should try to sort out those issues before any transfer to PRB.  Ms Blundell’s note records that Mr Lenehan’s recollection as to whether the offer was subject to speaking to Ms Yousif’s managers was a little hazy.  The note resulted from a phone conversation and is her distillation of his comment.  Both these circumstances render the evidence potentially less reliable than the oral evidence given to the Court.  After careful consideration, I am satisfied from his evidence in Court that Mr Lenehan recalled telling Ms Yousif that the appointment was subject to him speaking to Ms Yousif’s managers, and also to a formal offer being processed in accordance with the Bank’s procedures. 

52                        I do not accept Ms Yousif’s evidence that she was appointed to the PRB position.  She was determined to leave the Western Region and was not prepared to let anything stand in her way.  When Mr Lenehan told her of the conditions under which she would be appointed, she interpreted the matter as settled.  Her understanding was clouded by her overwhelming desire to shift to PRB.  Her recollection of the events reflected what she wanted to hear rather than what was said. 

53                        I find on the balance of probabilities that there was no concluded agreement by the Bank to appoint Ms Yousif to the PRB position at the time of Mr Lenehan’s phone call.  He foreshadowed that an offer would be made after speaking with Mr Gwynne.  The offer would be in writing and an agreement would be made when a formal contract was signed.  None of these events happened.  Instead Mr Carney became actively involved. 

The events leading up to Mr Carney’s decision not to fill the PRB vacancy

54                        Following Mr Lenehan’s report to Mr Monopoli of his, Mr Lenehan’s, second meeting with Mr Gwynne, Mr Monopoli rang Mr Porter and told him of the application by Ms Yousif for the PRB position.  Mr Monopoli said that Mr Porter told him that whenever Ms Yousif did not get her own way she tried to transfer out of the region.  He told Mr Monopoli that he was trying to work through a number of issues with Ms Yousif.  Mr Monopoli told Mr Porter that he would not look to hire Ms Yousif until Mr Porter had a week to work through her concerns and then he would revisit the situation.

55                        Mr Porter then phoned Mr Carney and said that Mr McKinnon, Mr Gwynne, and he, Mr Porter, had concerns about Ms Yousif’s behavioural issues and that she may be seeking to relocate to avoid the issues.  He made this approach to Mr Carney for guidance.  Mr Carney said that Mr Porter should try and work it out in the next week.  Mr Carney said he would speak to Mr Monopoli about the issue.

56                        On 21 January 2008, Mr Porter rang Ms Yousif to find out why she wanted to move to PRB.  His evidence was that he raised the behavioural issues and assured Ms Yousif that he would assist her to work through them.  He also reminded her of the comfortable existence she had in Mr McKinnon’s team.  He said that the PRB clients were more sophisticated and that she would not have the same number of branch referrals if she went to PRB.  Mr Porter said that the conversation was amicable. 

57                        Ms Yousif’s recollection of the conversation was different.  She said that she told Mr Porter that he had not supported her having the PFS work and therefore she had no choice but to apply to Mr Lenehan.  She said that Mr Porter began shouting and sounded angry.  He said that she would not be as well treated in PRB as she was in the Western Region.  She replied that Mr Monopoli was very supportive of her business interests.  She said that Mr Porter replied that she was only interested in work.  She said that Mr Porter said he was angry because Ms Yousif had not stayed on at the Christmas party arranged by Mr McKinnon.  She said that she had observed that Mr McKinnon is a close friend of Mr Porter. 

58                        In cross examination Mr Porter rejected the suggestion that he was angry in the conversation on 21 January 2008.  He accepted that the tenor of the conversation was that Ms Yousif had it good where she was and she needed to think about what she was letting herself in for.

59                        On the following morning, 22 January 2008, Ms Yousif sent an email to Mr Porter saying that she had decided to work in another area of the Bank.  She said that the issues raised from August 2007 had not been addressed, and she asked Mr Porter to consider her request to move.

60                        Later that day Mr Porter forwarded Ms Yousif’s email to Mr Carney together with an email from him which was in the following terms:

Grahame I thought I’d share this with you.  This is the mobile banker we’ve talked about and whom I had a lengthy discussion yesterday (where I thought I had made some progress).  I’ve discussed with Damon (he mentioned you’re talking today), and Grahame I’m of the opinion we need to call this particular lady on her threat to resign.  The business must be prepared to make that potential sacrifice.

There are no underlying management issues and I am more than comfortable with the amount of support/assistance she has been provided in the past.  In fact we have been (if anything) too soft.  This is a power game for Linda, and whilst there is someone in the background ‘wooing’ her, it is making it extremely difficult to retrieve the position whilst also maintaining a firm stance around the behaviours.

In confidence, I’m concerned about Linda’s emotional state at the moment and her irrational behaviour is extremely worrying.  She is extremely aggressive with customers and staff, totally focussed on the sale, with little regard for service.  When management attempt to address issues she reverts to bullying tactics and threats.

61                        In response to the email from Ms Yousif, Mr Porter rang and spoke to her on 23 January 2008.  It is common ground that Mr Porter outlined the implications of Ms Yousif leaving the Western Region.  He said that the level of bonuses would not be as high, that 90 per cent of her work came from the branches, and that she could not take the referral sources or her administrative assistants with her to PRB.  Mr Porter said that he told Ms Yousif that he thought that she was not suited to dealing with the more sophisticated clients in PRB.  Ms Yousif denied that Mr Porter said this.  It was also common ground that Ms Yousif repeated that she had not received sufficient support from management.

62                        Ms Yousif said that Mr Porter was angry and shouting at her.  He denied this.  Mr Porter said that the conversation occurred whilst he was driving home and the conversation ended just as he arrived at his home.  When he arrived at his driveway he said to Ms Yousif that if she was aware of all the implications of leaving, she was free to do so, and that he was speaking to Mr Carney the following day.  Ms Yousif denied that Mr Porter agreed that she could move to PRB.

63                        The central recollection of Ms Yousif of this conversation was that Mr Porter finally asked whether she had changed her mind about leaving the Western Region.  She said no.  He then said “if you are going to leave my region, I want you to circle today’s date in your calendar and your career will finish here”.  Ms Yousif said that Mr Porter told her he was meeting with Mr Carney on the following day and that he, Mr Porter, would destroy her career with the Bank. 

64                        Mr Porter had a different recollection.  In the context of outlining the disadvantages of moving from the Western Region he said to Ms Yousif “just be mindful or be careful you don’t destroy everything you’ve created and everything you’ve built up in the business”.

65                        Ms Yousif’s evidence that Mr Porter said that he would end her career with the Bank is an important element in her case.  If established it provides a possible reason for the Bank’s failure to appoint her to the PRB position.  In my view Ms Yousif has come to believe this version of the conversation with Mr Porter out of her determination to show that she was wronged by the Bank.  From the account of the content of the conversations on 21 and 23 January 2008 about which both Mr Porter and Ms Yousif agreed, it was clear that the exchange was necessarily confronting to Ms Yousif.  The message he delivered was one she did not want to hear.  Mr Porter was giving Ms Yousif a reality check on the wisdom of pressing for a transfer.  Both from the reasons he gave for taking this course, and from the way he explained his reasons in the witness box, I find that he acted in this regard professionally as a manager who saw a responsibility to both Ms Yousif and his employer to ensure that the considerations relevant to the transfer were openly exposed for deliberation.  At the same time he did not disguise his desire to persuade Ms Yousif to stay in the region because her sales record had been outstanding.  It is probable that the conversation was more robust than Mr Porter told the Court.  It is also probable that it was not as robust as Ms Yousif recounted.  What Ms Yousif heard was a threat to her.  The suggestion that she should not change jobs because she would be disadvantaging herself was a threatening message.  I find that she translated the opinions expressed by Mr Porter which questioned the rationale for her wishing to transfer into a threat by Mr Porter to ensure that the transfer would not be granted and her career with the Bank would be ended.  I accept Mr Porter’s evidence that he told Ms Yousif that she should take care not to destroy what she had built up.  I do not accept Ms Yousif’s evidence that he said that he would destroy her career with the Bank or that she should circle the date on her calendar to mark the end of her career with the Bank.

66                        Another central element in Ms Yousif’s case was the allegation that Mr Porter was so angry with her for trying to leave his region and that this formed the basis for his determination to end her career with the Bank.  It was suggested that Mr Porter’s remuneration was linked to the sales made by the mobile lenders and that Mr Porter did not agree to Ms Yousif’s transfer because her departure would have had the effect of reducing his income.  In response in cross examination Mr Porter explained the position thus:    

And I don’t need to know the details, but your own remuneration would be dependent upon, in some ways, how those below you are performing, would you agree with that?‑‑‑I’d find that a really long bow to draw.  I mean, quite frankly, if you put it in perspective, Linda would – is likely to write about $140 million worth of home loans for me.  My target as a region was about $6.2 billion, and that represents 20 per cent of my total KPI, so as a home loan, I think it’s about 20 to 30 per cent of my total KPI level, and Linda would have been, like, 150 million anticipated over about a $6.2 billion target.  So yes, there would have been a - somewhat of a link there, but it would have been very, very minimal.

I accept Mr Porter’s explanation.

67                        Ms Yousif also argued that evidence of Mr Porter’s determination to end her career could be found in his email to Mr Carney of 22 January 2008 where he stated they should “call this particular lady on her threat to resign”.  In context however, this sentence simply stated that the Bank should not give into the demands of Ms Yousif where she threatened to resign if they were not met.

68                        Then, Ms Yousif alleged that Mr Porter was favouring another mobile lender with whom he was having an affair.  In her affidavit sworn on 11 October 2008, Ms Yousif deposed to the allegation as she had told Ms Blundell as follows:

82.       Also, I told Kerrie that Richard Porter had been having an affair with one of the other successful Mobile Bankers, Marie Cerchaira, which resulted in favouritism to her in the business.  Marie Cerchaira was in competition with me and Richard Porter was worried that if I took over the third party referral source and increased my client profile by an additional $250 million in loans, then it would be impossible for Marie Cerchaira to reach me on the leaderboard.  I said that the affair was public and was very well known to all the Bank’s staff and some clients of the Bank. …

83.       I advised Kerrie that there were other witnesses and staff as well as clients         who had seen Richard and Marie together at the pub, publicly kissing and, on     another occasion, they had been seen at a romantic lunch on Valentines’ Day.        I advised her that as a result, he was using his position as Regional Manager           to ensure that I did not become too successful, so as to upset Marie, with             whom I was very competitive.  For example, Richard Porter and Cameron      McKinnon had stopped me from taking Premium Financial Services as an          extra referral source, so that I would not overtake Marie Cerchaira as the       most successful Mobile Banker.  I had been told that the referral source was        potentially worth $250 million in loans to the Bank, which ultimately would             have increased my bonus payments by $500,000 per annum on top of what I      was already earning, being $370,000 in salary and bonuses. 

69                        Mr Porter denied these allegations in his affidavit. 

70                        In exchange with the Court during cross examination on 6 November 2008 Ms Yousif explained why, as she saw it, Mr Porter failed to support her:

Your whole case is that you were denied support by management, by Mr McKinnon?‑‑‑That’s right. 

Correct?‑‑‑That’s right.  And Richard Porter.

And Mr Porter?‑‑‑That’s right. 

Did they ever explain to you why they refused to give you extra support?‑‑‑I was close – I thought I was close to Cameron McKinnon.  I believe the reason is because I – since I exceed other – or I took over success of another mobile banker, which is Maria Cerchaira , which is very well-known in Western Vic/Tas region that – with her affair with Richard Porter, and to be ‑ ‑ ‑ 

MR M. McDONALD:   We object to all of this evidence, your Honour.

THE WITNESS:   And to be a close friend with Cameron McKinnon, because they worked together as mobile bankers for years.  I believe that is the reason, because it’s very competitive environment, and I took over her success, because in December, I – my figure went above Marie, and in September quarter, I was just under, I was – and they knew without the Premium Financial Services, I already – I am there.  What will happen if we let this – they ..... the Premium Financial Services, then it would be out of control, because she would be way above this woman, that they don’t want me to be on top of her.

HIS HONOUR:   Why not?‑‑‑Because ‑ ‑ ‑ 

You would not be depriving her of any income.  You would just be earning additional income?‑‑‑Because she wanted to be number 1.  She was very well-known, that she wanted to be number 1 for years.  And there was already enough competition between herself and Lorraine Bundy going enough – I should say competing conflict between her and Lorraine Bundy.  So if they didn’t want to get another – a third person to be way in front of Mary, that they don’t – will have no control over that. 

This is what you think?‑‑‑It’s not – that’s not the only – I’m not the only one think that.

No, don’t worry about others, but you think it.  Did anybody – sorry, did Mr Porter or Mr McKinnon ever say anything to you ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ which indicated that that was the reason?‑‑‑Well, I had – a few times, I had calls from Mr McKinnon, around 8-ish, saying that:  I was just having drink with Marie, and she was also – she was telling me to tell him that – to slow down, it’s not good that she work hard, and she shouldn’t be taking extra clients, she shouldn’t be signing extra agreement, and things like that, so I believe that’s the case.  And I even asked Mr McKinnon a few times:  Why you tell Marie about things that I do in my region?  I don’t think it’s her business to know what I do in my business, or in my job, to get extra business.  I don’t know at any – I don’t know why anything was happening in my area or in the region, was told by Cameron and Richard to Marie, because she knew everything about everyone.  She knew little details about everyone’s business, and what they – how much they’re getting from this, how much they’re getting from that referral source, and she should have not signed that agreement.  She knew everything. 

71                        Mr Porter did not give evidence until the fourth day of hearing which occurred on 10 March 2009.  By this time Ms Yousif was represented by different lawyers.  When her new counsel indicated that cross examination of Mr Porter had concluded, the following exchange occurred with the Court:

HIS HONOUR:   Mr Millar, there were some – there was evidence from your client about Mr Porter which went to his motivations which you haven’t put, and I take it that’s done advisably.  I mean, in the absence of putting it, these were serious allegations of personal reasons why Mr Porter did not – or took the steps that he did – and there’s not been a mention of it in the cross-examination.

MR MILLAR:   Well, no, there hasn’t, sir.  The ‑ ‑ ‑ 

HIS HONOUR:   As long as – I mean, you’re perfectly entitled to do that, and as long as it’s not done by oversight, that’s all.

MR MILLAR:   No.  Well, I didn’t see the need to go into unseemly territory that ultimately might not be of assistance to the court.

HIS HONOUR:   Well, it’s a matter of how you put your case.  Your client made some serious allegations of a personal nature against Mr Porter, and if they’re not pursued, then that is a matter of significance that I will take into account, not only in terms of fact finding, but in terms of what it might say about your client’s approach.

MR MILLAR:   Sir, I’ll need to just take some instructions.  Might I have five minutes to do so?

72                        When the hearing resumed after a break of a few minutes counsel for Ms Yousif put to Mr Porter the allegation that Mr Porter was having an affair with Ms Cerchaira and that he had favoured her in making workplace decisions.  He denied these suggestions and explained:

I have a friendship that goes back quite some time with Maria, which dates back to my time when I was a manager, well, a Cameron McKinnon equivalent, goes back to about 1996/1997.  And I ended up actually appointing Maria on the road, and we’ve had a very, very good relationship ever since.  Nothing more, nothing less than that.

73                        Then it was put to him that his phone records showed that on one occasion he had called Ms Cerchaira’s phone number a large number of times on the one day.  He explained:

I can recall an episode – and I don’t know whether it was related to this or not – but I was in Portland at the time, and I ended up receiving the phone call, a message, that Maria was a little bit distressed about her work, and also about some issues that her husband was facing at the time in his work.  She had – if my memory serves me correctly – had phoned up Ian Gwynne and asked for six months off work.  And I was in Portland at the time, and I was endeavouring to make contact with her, with the messages she left.  Now, I’m on a Vodafone, and I’m on a Vodafone BlackBerry, and was down at Portland, and I can recall that there was, you know, drop outs and the like, but there was nothing more, nothing less.

74                        The evidence does not establish on the balance of probabilities that Mr Porter was having an affair with Ms Cerchaira and that he favoured her in the decisions that he made for that or any other reason.  Ms Yousif relied on rumours of an affair apparently circulating in the workplace.  It seems that the rumours may have arisen from the fact that Mr Porter and Ms Cerchaira have been good friends over a long period.  Ms Yousif built on the workplace rumours an edifice of intimacy between them, leading Mr Porter to act unprofessionally against Ms Yousif’s interest.  Ms Yousif’s reliance upon such a feeble basis for the serious allegation demonstrates her high level of determination to vanquish any opposition to her own success. 

75                        The picture which emerged from the evidence as a whole was that at about this time, at the end of 2007 and early 2008, Ms Yousif was focused on making sales to the point of obsession.  She was lured by the prospect that her annual bonus, which had amounted to around $35,000 a year earlier, could amount to an additional $500,000 if she secured the PFS work for herself.  She judged her own performance almost entirely by the amount she earned.  This was at the cost at times of the quality of service to her clients, and amicable relations with Bank staff with whom she dealt.  It was particularly at the cost of her own health and a balanced outlook.  But most problematically it was the cause of her difficult attitude to management decisions.  She refused to brook any impediment to her goal to secure the PFS work for herself and eventually to earning a bonus of $500,000.  She did not accept that she was over stressed and that her behaviour needed improvement.  She misinterpreted constructive criticism as threats from management.  She refused to listen to the management rationales for decisions taken.  Her response to any negative decision from management was to escalate the issue to the next or higher level of management.  When she received no satisfaction from management she resorted to personal attacks particularly on Mr Porter.  Her evidence was generally highly exaggerated.  It exaggerated her abilities and performance and did not acknowledge any deficiencies.  It exaggerated the negative aspects of her interactions with her managers. 

76                        I prefer to think, but not without some reservations, that this exaggerated view of things reflected the way Ms Yousif actually saw the events.  Generally speaking I do not conclude that Ms Yousif gave purposely false evidence even though, as I have found, some of her versions of events were mistaken.

77                        The picture which emerged on the evidence as a whole was that at about this time in late 2007 / early 2008 the managers, Mr McKinnon, Mr Gwynne, and Mr Porter approached the issues raised by Ms Yousif in a professional, fair minded and moderate way.  Mr McKinnon’s oral evidence in cross examination was brief and it is difficult to get a full picture of his approach from this evidence.  He was, however, the least impressive of the witnesses from the Bank.  His approach to the issues under consideration lacked the degree of seriousness which might have been expected.  On the other hand, he played a small role in the events which were significant.  Mr Gwynne was, in contrast, serious minded about Ms Yousif’s welfare and tried to adopt a sensitive way to manage the issues which arose.  Thus, for much of the period under consideration Ms Yousif trusted him and confided in him.  Mr Porter was singled out by Ms Yousif as the most antagonistic towards her.  Doubtless this arose from his direct manner and his frank, open and quite forceful method of communication.  With Ms Yousif’s exaggerated sensitivity, his approach was prone to be misunderstood by her, as it was.  Nonetheless, the evidence did not establish that he had any personal interest in inhibiting Ms Yousif’s success.  Indeed, he was generous in his acknowledgement of her capacity to make a very high volume of sales.  Rather, he assessed the management issues concerning Ms Yousif’s behaviour and requests to transfer against her value as a sales person and made a series of professional judgments.  These were rational conclusions taken by a skilled manager.  They were not acts of personal vindictiveness as characterised by Ms Yousif.         

78                        Quite apart from the inherent probabilities and my observations of Ms Yousif and Mr Porter in the witness box, the events to be related now give a further and perhaps even stronger reason why Mr Porter is unlikely to have made the threat alleged by Ms Yousif.  The reason is that he had no realistic chance of putting it into effect.  The hierarchical and personal relationship between Mr Porter and Mr Carney meant that Mr Carney would make up his own mind independently of any agenda which Mr Porter may have wished to pursue. 

The decision not to fill the PRB position

79                        Mr Carney has worked in the banking industry for forty years.  He is the Executive General Manager, Branch and Relationship Banking.  His position is near to the highest in the Bank hierarchy.  He reports to Mr Ross McEwan, Group Executive, Retail Banking, who in turn reports to the CEO, Mr Ralph Norris.  Mr Carney is responsible for 1007 of the Bank’s retail branch outlets throughout Australia, and has ultimate responsibility for about 13,000 staff.  He is not only responsible for the efficient operation of these aspects of the Bank’s business but also for strategic planning directed to meeting changes which face the Bank’s functions in the retail area. 

80                        In Victoria, the retail operation at the Bank is divided into three divisions for which Mr Carney is responsible, namely, the Western Region, the Eastern Region and Personal Relationship Banking.  Each region has a Regional General Manager who reports to Mr Carney.  In the case of the Western Region that manager was Mr Porter.  In the case of PRB that manager was Mr Monopoli.  There is a regular monthly meeting between Mr Carney and each of the Regional General Managers.  As Mr Carney is based in Sydney, the meetings with Mr Porter and Mr Monopoli are usually held by teleconference.  The meetings have a usual format although there is no fixed agenda.  They normally address business outcomes, people issues, succession planning, the commercial environment, and the demographics of the area in which the business is conducted and then any other matters raised by the regional manager. 

81                        There was a scheduled monthly meeting with Mr Porter on 24 January 2008.  In the email to Mr Carney of 22 January 2008 Mr Porter had raised the issue of Ms Yousif’s desire to change regions as a matter for mention at the meeting.

82                        Mr Carney said that at the meeting Mr Porter explained that Ms Yousif had applied for a job in PRB.  Mr Porter said that there were behavioural issues that he and Mr Gwynne were working through.  They concerned Ms Yousif’s treatment of other staff, customer complaints and her work habits including a lack of work life balance.  Mr Carney said that Mr Porter told him that it was not appropriate for Ms Yousif to transfer at that time.  Mr Porter recalls telling Mr Carney that he had held several telephone conversations with Ms Yousif and thought that he could not persuade her to stay in the Western Region.  He thought that he also said to Mr Carney that he was sick of Ms Yousif and if she wanted to go she could go. 

83                        Mr Carney’s response as recorded in his affidavit sworn on 27 October 2008 was:

I told Richard that I had decided not to continue with filling the role at PRB at this time and for the foreseeable future.  I didn’t discuss with him the broader strategic issues as they were not relevant to him.

84                        In the same affidavit Mr Carney explained that he then contacted Mr Monopoli and told him:

[T]hat I did not want the PRB position filled, and that there were a couple of other mobile banking positions at Moonee Ponds that are to be treated in the same way.  I told Damon that we needed to address the whole issue of Moonee Ponds and how it fitted into the structure.  Better economies of scale would be achieved if it was consolidated into Bourke Street.  I said that I was not sure that I wanted to continue to run with the same model in PRB.  I said that I was considering linking the mobile bankers into a different network arrangement so he should not fill any positions at Bourke St while I thought through these strategies.  I said that the PRB position was not available to Ms Yousif or anyone else.

85                        Mr Porter’s description in cross examination of the way the issue was dealt with at the meeting with Mr Carney captures something of the relative decision making power between them, as follows:

MR MILLAR: And you get to the point of talking about Ms Yousif.  Presumably you have initiated the discussion?‑‑‑Yes, yes.

Now, he didn’t immediately cut you off by saying, “Look, don’t worry about it, I have decided on a restructure and that position is no longer there.”  He didn’t say anything like that?‑‑‑It wasn’t – I think I recall the conversation probably went for about two minutes.  It was a short conversation.  I said that I had had a couple of phone calls with Linda.  I didn’t think I was going to be able to persuade her to stay.  I can’t recall whether I mentioned the behavioural issues again, but I just remember talking to him about the phone calls and I said, look, I don’t think I can persuade her to stay, and I think I might have said that I had actually had her up to here and that as far as I was concerned, you know, I think, I didn’t have an issue with her going.

…

Probably I spoke for about 30 seconds along those lines and Grahame said something along the lines of, look, I’m not too sure I want to fill that position right now.  He said, “I want to have a chat to Damon.”

…

HIS HONOUR:   Mr Porter, at the end of that conversation with Mr Carney ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ did you know that Mr Carney was unlikely to fill the Monopoli position or were you uncertain whether he would?‑‑‑I was uncertain, your Honour.

You were uncertain?‑‑‑I was uncertain.  It was a very short conversation and I was – I remember I was going to actually challenge him on it, but with Grahame I think I got the – I suppose the mood that I didn’t – he wasn’t going to challenge …

Okay.  Sorry, you were going to challenge him on it.  What were you going to challenge?‑‑‑I was going to press it further, around whether it was, you know, whether it was, you know, at that stage whether she could go on, because I had actually moved on by that stage.  And I was going to sort of say, “Well, look, I think, you know, I have moved on, maybe we have moved on, maybe it’s the right thing.”  But at that particular point in time, I just sort of just let it go, I didn’t want to sort of push the point any further.

Okay.  Well, you didn’t push it further at all, because the conversation only lasted, you say, a couple of minutes?‑‑‑About a couple of minutes, yes.  It went through my mind, and I was going to, but I decided against it. 

It went through your mind to question him on saying that he was not going to – he was thinking about not filling this position.  Is that what he said?‑‑‑No.  No, Grahame basically said to me, “Look, I’m not too sure that I want to fill the position.”

Yes.  That is, the position in Mr Monopoli’s ‑ ‑ ‑?‑‑‑In Mr Monopoli’s.  You see, I’m not too sure, it was a ‑ ‑ ‑ 

And the result would’ve been that she would’ve, what, stayed with you?‑‑‑Yes.

That Ms Yousif would’ve stayed with ‑ ‑ ‑?‑‑‑Yes.  And I wasn’t – you know, look, I had a bit of discomfort around that at that particular point in time.  But I just didn’t even push the position any further.

So you’ve really mentally got to the position of saying, “Okay, well” ‑ ‑ ‑?‑‑‑I’d moved on.

‑ ‑ ‑ “Ms Yousif, you want to go, you go, I’m over you,” and you were really looking to a future where she wasn’t going to be there?‑‑‑Absolutely.

And then all of a sudden he says, “Well, actually, maybe she will be”?‑‑‑And, I tell you, it confronted me at the time, yes.

86                        In cross examination Mr Carney elaborated his reasons for not filling the PRB position.  The business of the Bank falls into three categories, namely, private banking for the top end of town, personal relationship banking which is the middle market, and the retail network which caters for the mass market.  Mobile lenders were primarily involved in the retail network.  There were about 221 mobile lenders serving the retail network.  PRB was about 18 months old in Mr Carney’s business unit.  It had 20 sites throughout Australia.  Those sites had relationship managers who managed a portfolio of about 300 clients each.  There were only 12 mobile lenders in PRB throughout Australia and only two in Mr Monopoli’s region managed by Mr Lenehan.  Mr Carney’s experience was that mobile lenders were not economic in PRB.  They did not pay their way.  More business could be generated through referrals from existing PRB clients.  Consequently, Mr Carney had generally favoured appointing relationship managers in PRB in place of mobile lenders.  This had occurred, for instance, in Townsville and Coffs Harbour in the recent past.  The strategic plan to reduce mobile lenders in PRB was developed before Mr Carney became aware of any issue with Ms Yousif. 

87                        Further, there was a particular reason for Mr Carney to apply this general strategy to the position in Melbourne for which Ms Yousif applied.  The Bank vacated premises in Moonee Ponds which housed, among others, a PRB team.  The PRB team was then relocated to Bourke Street in the Melbourne CBD.  By adding the Moonee Ponds PRB team to the Bourke Street PRB staff, Mr Carney decided that it was unnecessary to fill the Moonee Ponds PRB mobile lender vacancy.  This decision was not made as a result of any personal considerations related to Ms Yousif.  Mr Carney said: 

[I]f someone else had applied for that role in the same basis, the answer would have been the same.  It wasn’t the individual, it was the position.

88                        It was unfortunate for Ms Yousif that the position was advertised when Mr Carney was considering that he would not fill such a vacancy.  This happened because Mr Carney did not realise at the time the position was advertised that the Moonee Ponds position had become vacant.  Although the timing was unfortunate, advertising the position was not an obstacle to the implementation of Mr Carney’s strategy because he was confident that he would be made aware of any proposal to fill such a position before a manager formally approved the appointment.  Indeed, in the course of his deliberations, Mr Carney asked Mr Monopoli and Mr Lenehan whether the position had been formally filled and was told by both that it had not. 

89                        Mr Carney was an impressive witness.  His position in the Bank meant that he was remote from the everyday controversial management issues which arose between Ms Yousif and Mr McKinnon, Mr Gwynne and Mr Porter.  He only learned of those issues after they were well developed.  I accept that his outlook was essentially strategic and his decision was made for those reasons.  Even if Mr Porter threatened to destroy Ms Yousif’s career with the Bank, which I have not accepted, Mr Carney was not part of or influenced by any such plan.  In Court he came across as a professional and experienced high level manager with his own ideas about the issue which arose.  I do not accept that Mr Porter had any influence over Mr Carney in the making of his decision.  Mr Carney made up his own mind on considerations relevant to his position and responsibilities in the Bank.  Those considerations were not part of Mr Porter’s knowledge or concern. 

90                        In summary, I find that Mr Carney decided that the mobile lender position which had been advertised would not be filled.  This decision was strategic.  It implemented Mr Carney’s policy to reduce the use of mobile lenders in PRB and it also reflected his assessment that there was no requirement for a further mobile lender in the CBD following the consolidation of the Moonee Ponds PRB team with the Bourke Street PRB team.

91                        Against the background of these findings, these reasons now address the claims that the Bank acted in breach of a contractual term which incorporated the Appointment to Roles Policy, and / or an implied contractual term of good faith, trust and confidence.

Breach of the Appointment to Roles Policy

92                        The Bank published a Human Resource Reference Manual.  The express purpose of the Manual was to provide guidance to managers and staff on the interpretation and application of the Bank’s human resource policies. 

93                        One such policy was the Appointment to Roles Policy.  In relation to internal candidates for positions, the Appointment to Roles Policy provided that all internal candidates were releaseable from their current role.  It further provided: 

Only the BSU [Business Unit] Head has the authority to deny release of an internal candidate.

94                        The BSU Head who had authority under this policy to release Ms Yousif from the Western Region was Mr Ross McEwan. 

95                        Counsel for Ms Yousif argued that the Appointment to Roles Policy was incorporated into Ms Yousif’s contract of employment and the Bank acted in breach of the incorporated term because Mr Carney, rather than Mr McEwan, denied Ms Yousif release from the Western Region.  Counsel for Ms Yousif argued, in the alternative, that even if the Appointment to Roles Policy was not incorporated into the contract of employment, the act of the Bank in breach of the Appointment to Roles Policy constituted a breach of an implied term of good faith, trust and confidence. 

96                        These arguments should not be accepted.  In the opening section of the Manual, it is stated:

The manual is not in any way incorporated as part of any industrial award or agreement entered into by the Bank, nor does it form any part of any employee’s contract of employment.

97                        In view of this express reference to the status of the policies contained in the Manual, the Appointment to Roles Policy was not incorporated into Ms Yousif’s contract of employment.

98                        Even if the Appointment to Roles Policy was incorporated into her contract of employment, the Bank did not act in breach of it.  No occasion arose to deny Ms Yousif releaseability from the Western Region in relation to the PRB position because Mr Carney had decided that the vacancy in PRB was not to be filled.  Only if Ms Yousif had a position to go to would any question of releaseability arise.  Consequently, there was no breach of the Appointment to Roles Policy.

99                        For the same reason, even if a breach of the Appointment to Roles Policy amounted to breach of an implied term of good faith, trust and confidence, as there was no breach of the policy, there was no breach of any such implied term of the contract of employment.

Breach of implied terms of good faith, trust and confidence

100                      Counsel for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment.  By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer:  Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144;  Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20 (Malik);  Gogay v Hertfordshire County Council [2000] IRLR 783;  Thomson v Orica Australia Pty Ltd (2002) 116 IR 186; [2002] FCA 939;  Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 176 IR 82.  The effect of the conduct must be viewed objectively: Malik [1998] AC 20 at 47B and G per Lord Steyn.

101                      Counsel for Ms Yousif accepted that there was no authority binding on a single judge of the Federal Court which had depended upon the existence of such a term to reach a decision. 

102                      The Bank reserved its position to argue hereafter that the law does not recognise such an implied term.  Senior counsel for the Bank accepted that, in view of the Australian appellate authorities which had recognised, and the English appellate authorities which had both recognised and relied upon the existence of such a term, it was appropriate to assume the existence of such a term for present purposes. 

103                      Counsel for Ms Yousif also contended that there was a term implied by law that the Bank would act in good faith.  An authority cited in support of the implication of such a term was the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198.  However, there is a preponderance of authority against the implication of such a term:  Aldersea v Public Transport Corporation (2001) 3 VR 499;  Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114; [2005] FCA 1678;  McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375; [2007] FCA 1903.

Was there a breach of the implied terms?

104                      At the heart of Ms Yousif’s case was the alleged threat by Mr Porter that he would destroy Ms Yousif’s career with the Bank.  On the day following the alleged threat, Mr Porter met Mr Carney and Mr Carney decided that the PRB position would not be filled.  In order to prove that Mr Porter made the threat alleged Ms Yousif called in aid the voluminous evidence of the events of the latter part of 2007 and early 2008 to establish a pattern of lack of support and hostility by management to her.  In recognition of the way the case has been presented I have analysed much of this evidence in the foregoing sections of these reasons and made certain findings of fact concerning the events.  However, Ms Yousif did not contest that the decision not to fill the PRB vacancy was made by Mr Carney.  Even if one accepts (which I do not) that Mr Porter was determined to end Ms Yousif’s career with the Bank, it is critical to Ms Yousif’s case that she establish that Mr Carney acted together with or at least in accordance with Mr Porter’s aim.  For reasons which I have explained, Ms Yousif did not establish that Mr Carney so acted.   As explained earlier in these reasons, Mr Carney decided not to fill the PRB vacancy for his own strategic and business reasons.  These were reasons outside Mr Porter’s concern or influence.  I do not accept that Mr Carney gave these reasons to disguise a real and different agenda, namely, to cooperate with Mr Porter in destroying Ms Yousif’s career with the Bank. 

105                      Once it is accepted that Mr Carney acted for strategic business reasons unrelated to Ms Yousif personally, there is no basis for the suggestion that, viewed objectively, he acted in a manner likely to destroy or seriously damage the relationship of trust and confidence between the Bank and Ms Yousif, or that his actions lacked good faith.  Ms Yousif’s claim that the Bank acted in breach of any implied terms in her contract of employment in failing to appoint her to the PRB position must fail.      

THE INVESTIGATION UNDERTAKEN BY MS BLUNDELL

106                      It will be recalled that Ms Yousif claims that alleged flaws in the investigation meant that the Bank had acted in breach of the FTR policy which was incorporated into her contract of employment and also acted in breach of an implied term of good faith, trust and confidence.  After setting out the factual background to the investigation these reasons will address the alleged flaws in the process.

The factual background

107                      As previously stated, following Mr Carney’s meeting with Mr Porter on 24 January 2008, Mr Carney rang Mr Monopoli and told him that he had decided not to fill the position and that he would not be filling any mobile lender positions in PRB in the Melbourne CBD.  Mr Carney asked Mr Monopoli to tell Ms Yousif that it had been decided not to fill the PRB position.  Mr Monopoli had Mr Lenehan contact Ms Yousif to tell her of Mr Carney’s decision. 

108                      On 29 January 2008, in response to a request from Ms Yousif, Mr Carney rang her.  She said that she had been given no reason for his decision not to fill the PRB position.  He explained to her that the position was not to be filled as a result of structural changes.  Ms Yousif said that she had been bullied by Mr Porter.  Mr Carney’s evidence was that he said that she should sit down with Mr Gwynne and Mr Porter to work things out maturely.  Ms Yousif’s evidence was that Mr Carney said he would get back to her, but never did.  Mr Carney did contact Mr Porter and told him to follow up with Ms Yousif.

109                      On 7 February 2008 Ms Yousif contacted People Connect which is a call centre operated by the Bank that allows bank employees to raise and discuss human resources issues.  The People Connect record shows that Ms Yousif raised the issue of the failure of Mr Porter to release her from the Western Region and what she described as harassment by Mr Porter in the way it was done.  It appears from that record that People Connect personnel discussed the Bank’s Appointment to Roles Policy.  The record also shows that Ms Yousif said that she wanted the decision reviewed under the FTR process.  She was then told how to access that process.  The record of People Connect then reads:

Given the circumstances I asked if she would like the BUHR [Business Unit Human Resources] to review her case, I advised that they have the ability to liaise with management at all levels to provide Policy advice and recommendations.

Linda confirmed that she would like this support.

110                      In accordance with Ms Yousif’s wishes, the matter was then referred by People Connect to the Human Resources Department.  This referral was a different process than the FTR process. 

111                      On 8 February 2008 Mr Griffiths from the Human Resources Department had a lengthy discussion with Ms Yousif in which he suggested that Ms Yousif meet with Mr Gwynne and the Regional Human Resources Manager.  The record of the discussion continues:

I advised Linda that if she did not find this meeting useful then she still had the opportunity to raise her concerns more formally through the FTR and to seek an out-of-line review.

112                      Ms Blundell also responded to Ms Yousif by phone at this time.  Ms Blundell said that Ms Yousif described the issue as the failure of the regional manager to release her.  Following this conversation Ms Blundell spoke to Mr Carney who said to her that he had spoken to Ms Yousif about the PRB position.  Ms Blundell then checked the Appointment to Roles Policy which dealt with the right of employees to transfer to another role if they were offered the role and satisfied the selection criteria for it.  The policy provided that release from the existing position might be prevented by the head of the business unit.  Further, the manager, and manager one removed, had the right of veto over selection to the new position.

113                      Ms Blundell then rang Ms Yousif and told her that she had initially thought that Ms Yousif was entitled to be released, but then learned from her enquiries that the position was withdrawn due to restructuring.  Ms Yousif responded that it was not fair and that she was being treated unfairly.

114                      Ms Blundell then explained to Ms Yousif that Ms Yousif could invoke the FTR process.  To commence the process it was necessary to complete an application form outlining the issues in contention.  Ms Blundell discussed this requirement for initiating the FTR process with Ms Yousif.  I accept Ms Blundell’s evidence that Ms Yousif was made aware of the way to initiate the FTR process.  I find that Ms Yousif chose not to do so.

115                      Instead, on 20 February 2008 Ms Yousif sent an email to Mr Norris, the CEO of the Bank.  The central allegation made in the email was that Mr Porter had threatened, harassed and bullied her in the conversation on 23 January 2008 by saying that he was meeting with Mr Carney on the next day and would destroy her career with the Bank for trying to leave his region.  The office of the CEO sent the email to the head of the Bank’s Human Resources Department in Sydney.  In turn he forwarded the email to Mr Ross Munn, General Manager Human Resources Retail Banking Services.  Mr Munn appears to have asked Mr Porter for a response.  Mr Munn then referred Ms Yousif’s email to the CEO and Mr Porter’s response to Ms Blundell with instructions to deal with the matter. 

116                      On 28 February 2008 Ms Blundell interviewed Mr Carney.  Mr Munn was also present.  The interview took place in Sydney where all three were based.

117                      Then Ms Blundell prepared notes of possible lines of enquiry to assist her in interviewing the staff based in Melbourne.  On 6 March 2008 she flew to Melbourne and interviewed Mr McKinnon, Mr Gwynne and Mr Lenehan.  Each interview lasted about an hour.  On 7 March 2008 Ms Blundell interviewed Ms Yousif.  This interview lasted about three hours.  Then Ms Blundell interviewed Mr Porter.  On 10 March 2008 Ms Blundell interviewed another mobile lender at the suggestion of Mr Yousif concerning the allegation that Mr Porter was having an affair with Ms Cerchaira.  Ms Blundell agreed with the interviewee not to disclose her identity.  On 11 March 2008 Ms Blundell conducted an interview by phone with Mr Monopoli which lasted about 20 minutes.  On 13 March 2008 Ms Blundell conducted follow up phone calls to Mr Lenehan and Mr Gwynne to clarify some issues.  On 14 March 2008 she made a further follow up call to Mr Gwynne.

118                      Ms Blundell took hand written notes of each interview.  She typed up the contents of the notes and threw away the hand written originals.  The typed version was part of the evidence in the case. 

119                      On 14 March 2008 Ms Blundell prepared a draft report.  She discussed some of the issues and the recommendations in the draft report with Mr Carney.  Then she produced the final report and met with Ms Yousif on 31 March 2008 to explain the outcome. 

120                      Counsel for Ms Yousif contended that the investigation process was flawed in a number of respects.  Each of these contentions will be addressed now. 

Alleged flaws in the investigation process

(a)        Seniority of Ms Blundell

121                      Counsel for Ms Yousif argued that the Bank acted in breach of its FTR policy by appointing Ms Blundell to conduct the review. 

122                      The FTR process is a formal process for the review of decisions, actions or behaviours which a Bank employee considers may have affected them unfairly.  The process is specified in a policy document which nominates the steps to be taken in initiating and conducting the review.  A review may be an in line review which is conducted by the employee’s manager or manager one removed, or an out of line review which is conducted by an executive outside the line of reporting of the employee or the respondent.  It was common ground that FTR policy requires that the person conducting the FTR review must be in a higher role than the respondent.  It was also common ground that Ms Blundell was not in a higher role than Mr Porter about whom the complaint was made nor Mr Carney who made the operative decision. 

123                      The Bank however argued that there was no breach of the FTR policy because the FTR process was not initiated by Ms Yousif.  As explained earlier in these reasons Ms Yousif was advised on several occasions how to initiate the FTR process and she chose not to do so. Instead she chose to email Mr Norris.  Mr Norris responded, through the Human Resources Department, by initiating an investigation into the circumstances surrounding her complaints. The process undertaken was thus a management initiated investigation. Ms Blundell explained the position in an exchange with the Court thus:

I’m interested, Ms Blundell, in what you say in paragraph 22 about the allegations being made against Mr Porter and the way that the fair treatment officer is normally selected.  You were aware by this time that you were, in effect, inquiring into the decisions of a number of people, including Mr Carney.  He was, what, two levels removed from you?‑‑‑That’s right.

And is that normal practice?‑‑‑For a fair – for investigation, yes.  For a fair treatment review, no.

And what were you conducting?‑‑‑I was conducting an investigation, however, I was using processes that were akin to the fair treatment review process.

Did this process ever get to a fair treatment review?‑‑‑No.

I accept the evidence of Ms Blundell and find that Ms Yousif did not initiate the FTR process.  Consequently, the FTR policy did not apply and the Bank was not required under the policy to appoint a person to conduct the review who was in a higher role than Mr Porter or perhaps Mr Carney.

124                      Then it was submitted by counsel for Ms Yousif that Ms Blundell was intimidated by more senior Bank officers by reason of her lack of seniority.  In a number of exchanges during cross examination Ms Blundell forthrightly asserted her independence and demonstrated a clear view of her function.  Two examples are illustrative:

So you knew that in pursuing this investigation as fair treatment review, or applying policy, you were going to become involved in discussions with Mr Carney, and possibly reviewing a decision that he had taken;  you would agree with that?‑‑‑Yes. 

And that didn’t make you at all uncomfortable, the fact that he was two levels in the hierarchy above you, that you were potentially going to have to bring an independent eye to the decisions that he had taken?‑‑‑No.

No.  It didn’t make you uncomfortable because you were confident that you would have the fortitude, as an independent reviewer, to withstand any pressure that he, in a senior role, might bring to bear?‑‑‑Yes.

…

Now, you were certainly, in your position, not in a position to ring Mr Carney and say:  well, you’ve got it wrong, you haven’t told me full story, anything like that?  You were in no real position to do that because he is in such a senior role?‑‑‑No, it’s part of my job to do that.

125                      Ms Blundell’s conduct of the investigation, which will be referred to more fully shortly, demonstrated that she approached her task conscientiously, in an organised and logical way, with thoroughness and without fear or favour.  Her focus was on determining the circumstances of the complaint and she was not deflected by the hierarchical positions of the interviewees.  The impression she made in the witness box confirmed that she pursued the avenues of investigation until she felt she understood the entire picture.  It is noteworthy that no attack was made on Ms Blundell’s qualifications to undertake the investigation.  There would have been no basis for such an attack.  Ms Blundell was well qualified both academically and by experience.  She holds a Commerce Degree and a Science Honours Degree majoring in psychology.  She had been employed by the Bank in various human resources positions since 1995.   The submission that Ms Blundell was intimidated by more senior Bank officers is not borne out by the evidence and is not accepted. 

(b)        Lack of independence

126                      Next, counsel for Ms Yousif contended that, even if Ms Blundell was not conducting an FTR, nonetheless she was obliged to conduct the investigation independently.  It was then argued that she had spoken to Mr Carney about management’s view of what had happened before she began the investigation and, as a result, was in no position to conduct the investigation fairly.

127                      It seems that the reference to contact with Mr Carney is a reference to the occasion on or about 8 February 2008.  The approach to Mr Carney was made after Ms Blundell followed up the People Connect enquiry by phoning Ms Yousif who then detailed the basis of her complaints.  Thus, when Ms Blundell commenced the investigation on Mr Munn’s instructions she had already been in contact with both Ms Yousif and Mr Carney about a fortnight before.  She had been exposed to both sides of the story, not to the management side alone.  In these circumstances the contact with Mr Carney did not compromise her independence in conducting the investigation.   

(c)        Providing the draft report to Mr Carney and changing findings

(i) Bullying and Harassment

128                      The draft report examined the allegation of bullying of Ms Yousif by Mr Porter in the phone call on 23 January 2008.  The draft report stated:

It is likely that the last conversation on 23^rd would have reflected Richard’s frustration – he warned Linda that she was ruining her career (and could look in her calendar to see the day she did this, if she chose to leave the region).

Shortly after that reference the draft report stated:

The nature of these conversations would have been strong, would have made her feel uncomfortable and perhaps insecure about her ability to be successful outside of the region.  But ultimately, Richard was delivering some honest feedback for her consideration.

The section on bullying and harassment ended with the following conclusion:

Each party provided a different interpretation to the same content in the conversation.  Overall as there is insufficient evidence to substantiate the allegation that Richard Porter bullied Linda Yousif.  However, on the balance of probabilities, I believe that the conversations, while unpleasant, did not amount to bullying.

The draft report did not make any recommendation in this section.

129                      The final report condensed the treatment of the issue of bullying and harassment into about half the space which had been taken in the draft report.  The final report was more focused and more tightly constructed.  It concluded with a recommendation, in the following terms:

Grahame Carney to discuss with Richard Porter his style / approach for holding difficult conversations.

The recommendation was more favourable to Ms Yousif than the draft report. 

130                      The final report referred to the conversations in question as follows:

The nature of these conversations would have been strong, may have made her feel uncomfortable and perhaps insecure about her ability to be successful outside of the region. It is likely that Richard’s approach to the discussion on 23^rd January would have reflected his frustration, and at time the interaction may have become intense.  In terms of the content, Richard was delivering some candid feedback for Linda’s consideration; however, he could have chosen alternative ways to deliver his messages.

131                      Counsel for Ms Yousif pointed to the deletion in the final report of the elaboration of the conversation of 23January 2008 which appeared in the draft report as follows:

[H]e warned Linda that she was ruining her career (and could look in her calendar to see the day she did this, if she chose to leave the region). 

132                      The omission of these words reflects the general reduction in the narrative in the final report.  It is not a significant dilution of the force of the draft report.  Indeed the removed words did not reflect Ms Yousif’s version of the conversation.  She alleged that Mr Porter threatened to end her career with the Bank.  That is a much more damning allegation than the version adopted in the draft report, namely, that Mr Porter warned that Ms Yousif was ruining her career. 

133                      On the whole, the changes to this section from the draft report to the final report do not reflect any significant deletion or dilution.  In truth this section of the final report was more favourable to Ms Yousif than the same section in the draft report. 

(ii) Failure of the Bank to appoint Ms Yousif to the PRB role

134                      Both the draft report and the final report dealt with Ms Yousif’s complaint on this issue.  Counsel for Ms Yousif argued that the investigation was flawed because references in the draft report in favour of Ms Yousif were deleted or diluted after Ms Blundell met with Mr Carney to discuss the terms of the draft report. 

135                      The issue was dealt with in the draft report under the heading “Releasability”.  The relevant section is set out below.  The points to which this argument was directed appear in italics:

Summary of the Findings:

I believe that Grahame Carney ultimately made the decision that Linda was not to be appointed to the PRB role, based on a number of factors.

·     Firstly (and primarily) on her suitability for the role, around which there were concerns stemming from her current service levels and behaviours, both of which need improvement.  Service scores / complaints were not satisfactory for her current customers, and the role applied for would involve providing service to the premium end of these customers.

Secondary considerations were

·     General concerns around her mental health.

·     The belief that her interest in the role may not have been genuine; rather that her application reflected a reaction to negative performance feedback and not “getting her way” within her region.

·     Concern that allowing the transfer would was [sic] not in the best interests of the organisation, as it would break the continuity in the management of her service and behaviour problems.

As the Executive General Manager for the Retail Network it is within Grahame’s authority to veto appointments to roles within his business.  In this circumstance, he vetoed appointment into PRB, rather than denying her releasability from the Retail side of his business.  On this basis, there is no issue of releasability in this case.  The core issue lies around her suitability for role.

However, the process that was followed was not ideal because management were trying to avoid breaking the Bank’s ‘Releasability’ policy, not realising that in this case it did not apply.  The concerns I have are:

1.   The decision to veto occurred after the offer was made and accepted.

2.   A decision was taken that Richard would try to talk her out of moving to PRB as a first step.  This led to a number of discussions where Linda felt pressured.

3.   When the above did not work, Richard told her she was releasable, and immediately following that communication the role was withdrawn.  Yet, the full basis of the decision was never communicated to Linda, rather Linda was only told that the role was not being filled on this occasion. While this may have been true (because at the same time as Linda’s application, Grahame initiated a review of the structure of these PRB teams meaning it was decided not to fill the role; no other applicant was appointed), it did not provide the whole story as it did not raise her suitability.

Recommendation

Linda should be told the reason that she was not appointed to the role around her suitability for the role at this stage.  The discussion should include details of what would need to change for her to be considered for a future role.

136                      The summary of the findings and the recommendation was followed by a section in the draft report headed “Details”.  This section recited some of the facts which supported the findings and the recommendation as follows:

Details:

·     Management seem genuinely concerned for Linda and have asked her to slow down, take a break and look after herself.  This has all been interpreted by her as them not wanting to see her succeed.  I believe that the management have genuinely had Linda’s best interests in mind in trying to get her to slow down.

·     Linda applied for the role following negative performance feedback and disagreement with management on business allocation, around which she was overly emotional.  Seeking a transfer was a reaction to this and possibly down to negatively impact management.

·     Richard Porter sought support from Grahame Carney to retain her in his region and work through the issues to ensure that the poor behaviours were managed.  Basically there were a number of motivations from Richard:

o  Stop top performers bullying management

o  Ensure poor behaviours are managed by the organisation

o  Genuinely concern for her Linda’s health

o  She was a top performer in his region (if she wasn’t, he would have let her go)

·     While there is benefit for Richard in retaining a high performer in sales, her CES performance will have a detrimental impact to him and his team.  Linda made an argument that he [was] preventing her from leaving in his self interest.  I am not convinced that it would be in Richard Porter’s best interest to retain her given the significant time commitment to manage someone with behavioural performance issues.  It is however, in the Bank’s best interests to have these issues managed.

·     Richard indicates he discussed the impacts of her moving in an attempt to persuade her to stay.  The conversation focused on how this could impact her negatively in terms of sales and bonus and reinforcing the support she receives in Western.

·     Damon was prepared to take a top sales performer, regardless of behaviours (which he felt he could manage), but agreed to work with his team (Richard and Grahame) and support them on this decision.

·     Ian indicated that he will help her look for a role once she is back and feeling better.

137                      In the final report the matter was dealt with under the heading “Unfairly made un-releasable” as follows:

Findings:

Overall, some of the process surrounding Linda’s application for an alternate role in the Bank could have been better managed; at the same time, this did not impact upon the outcome.

Firstly – management’s attempt to retain Linda in their region.  A number of factors led management to be concerned about her application to transfer to another role; specifically:-

·     Linda’s health

·     her understanding of the impact of her transfer upon her ability to reach the same levels of sales performance (and hence pay)

·     her motivation to genuinely want the new role; as it was also a lending role on the same pay

·     the loss of her to their business as she was a valued top sales performer; and

·     that the transfer would break the continuity in the management of her service and behaviour issues, which would not be in the best interest of the organisation.

Due to these factors, they attempted to persuade her to remain in their team.  In the circumstances, this was a reasonable course of action.  However, it left Linda with impression that she had been made un-releasable for the role.  Richard Porter had indicated in the last conversation on 23 January, he told Linda she was free to go to the new role.

Secondly, at around the same time, Grahame Carney had been reviewing property/leasing matters within Victoria, which led him to consider the structure of the PRB teams.  On this basis, Grahame Carney decided to withdraw the role from offer.  Unfortunately, Julian Lenehan was not aware of Grahame’s plans for restructuring, so had advertised the role in accordance with policy.  The timing of this decision to withdraw the role was unfortunate for Linda and would have been disappointing for her as she had already been offered the role.

Thirdly, if the due diligence for reference checking both internal and external applicants was completed effectively, Linda would not have been offered the role on the basis of her recent behaviour and service performance.  As a separate matter, Grahame has re-iterated to his team his expectations with regard to due diligence for appointment of staff.

Recommendation:

No further action recommended.

138                      A comparison of the two stages of the report reveals that several of the references contained in the draft report which counsel for Ms Yousif alleged were deleted or diluted in the final report were not, in fact, deleted or diluted.  Reference to the fact that Mr Carney made the final decision is common to both versions of the report.  Similarly, the conclusion of Ms Blundell that the decision was made after an offer of the PRB position was communicated to Ms Yousif, and the conclusion of Ms Blundell that the full basis of the decision was not communicated to Ms Yousif appeared in both versions of the report in essentially the same form. 

139                      The critical change between the two stages was the deletion of the conclusion that Mr Carney vetoed the appointment of Ms Yousif to the PRB position, and that management was attempting to avoid breaking the Bank’s releaseability policy.  In place of these conclusions was the conclusion that Mr Carney had determined not to fill the PRB position as part of a review of the structure of PRB and the use of mobile lenders in that division. 

140                      In relation to the critical change two considerations are important.  The first is that there is confusion in the draft report.  It accepted that Mr Carney determined not to fill the position.  That explained why the appointment was not made.  It was confusing for the report then to consider whether Ms Yousif had or had not been told about her suitability for the role.  The issue of suitability did not arise once it was accepted that the position was not to be filled.

141                      Second, the interview notes made by Ms Blundell and the details provided in the draft report gave no basis for the conclusion that Mr Carney vetoed the appointment.  There was thus an inconsistency on the face of the draft report.  The notes of the interview with Mr Carney record that he explained that he had decided to restructure mobile lending in PRB and had determined not to fill the position.  The notes of interview with Ms Yousif, Mr Monopoli, and Mr Porter each say essentially the same thing.  There was clearly more work to be done on the releaseability section of the draft report in order to present a final coherent analysis.  A further obvious example demonstrates the point.  The draft report refers to a number of factors which motivated Mr Carney to determine that no appointment to the position was to be made.  Those factors were set out in the “Details” section.  However, they were recorded as factors which motivated Mr Porter to argue against the transfer.  In none of the material contained in the report or in the interview notes were any of these reasons said to be the reasons which activated Mr Carney. 

142                      In her oral evidence Ms Blundell explained that when she wrote the draft report her thinking was confused particularly on the question of how Ms Yousif was complaining about a releaseability issue when Mr Carney was talking about the position not being available.  At the same time Ms Blundell had formed a view that Ms Yousif would not have been suitable for the PRB role in any event.  It is best to understand her state of thinking from her own words as follows: 

Well, this [draft] report was basically a collection of thoughts and ideas that I had around what had happened on each of the issues that Ms Yousif had raised.  Now, with respect to this releasability section, it was the one that I was quite unclear about because, you know, it was a little complex and there were a number of issues to take into account at once.  And what I’d written here was essentially a scenario that I wanted to, I guess, challenge management with to say, you know, is this what was going on.

…

MR MILLAR:   And your view was management went about the process that they did in order to avoid breaking the bank’s releasability policy.  It's what you also recorded there?‑‑‑It was a scenario that I had wanted to test, whether that was happening or not. 

It was a scenario that you wanted to test?‑‑‑Well, it doesn’t – yes, in one way, it doesn’t make sense, because Grahame Carney had the right to veto the appointments.  I was trying to figure out whether there was a releasability issue, the role of the restructuring, all those things at once, and this was a scenario that I wanted to test.  Were they trying to do something in this case around releasability?

…

HIS HONOUR:   So that assumes that Grahame Carney’s thinking went something like this:  I’ve heard the problem, we need a way out of this, the releasability policy is not a way out of it, I will take an alternative step which will not involve the releasability policy.  Now is that the thinking that you understood Mr Carney to have gone through?‑‑‑No.  Grahame – Mr Carney hadn’t gone through that thinking.  I was coming to the point of view of what Linda may have thought had happened, and so I wanted to test, you know, is this something that has happened, were they concerned about that policy, or not?

…

HIS HONOUR:   Well, if that’s what you’re saying, I’m not sure that I follow the point, because the reason for the non-appointment was there wasn’t a position.  Whether she was suitable or not didn’t arise in the same way as the question whether she had had an offer or not – sorry, whether she was releasable under the bank’s policy did not arise;  isn’t that so?‑‑‑Sorry, can you rephrase that, please?  This is written in quite a confused way, because I was confused about what had happened.  I was trying to pull apart her suitability, which was standing out to me that you couldn’t put Ms Yousif in that role, that was sort of standing out to me. 

But why do you raise the question of suitability at all when the position simply, on the scenario which you’ve accepted, namely Carney’s decision, the position simply wasn’t available?  I mean, suitability didn’t arise then, did it?‑‑‑No.  That’s in fact what happened, it didn’t arise, but I wanted to test that back to management, you know, was that what had happened, the role was removed?  Because it seemed to me that Ms Yousif was raising issues about her not being released, when in fact there wasn’t a role, so I was trying to pick apart – well, was there a role, wasn’t there a role?  Would she have got it anyway?  There were a number of things going around, and I wanted to test some of those.  My thinking here wasn’t particularly clear.  There were a number of points happening.  It was through working through this that I got to a position of:  okay, this is what happened.  The role had been removed.  If it hadn’t have been removed, she wouldn’t have got it anyway.  Grahame has the right to veto whoever goes into his business.  He could have not put her into that role, so why would he make up something around her being – removing the role and restructuring, when he actually had the right to say:  actually, you don’t get that role on suitability.  So I was trying to figure out where people were coming from.

143                      In this state of confusion Ms Blundell discussed the releaseability issue referred to in the draft report with Mr Carney.  Ms Blundell also discussed the recommendations made in her report because in some instances the recommendations required Mr Carney to take action and Ms Blundell was concerned to know whether she could tell Ms Yousif that Mr Carney intended to accept the recommendations.  Neither remember if Mr Carney had the draft report itself.  Ms Blundell asked Mr Carney if his actions were an attempt to get around the releaseability policy.  He restated his position that the job was not available because of the restructure in PRB.  Ms Blundell denied that Mr Carney asked her to change her draft report in this respect.  She said that he merely restated his position.  By this time Ms Blundell’s thinking was clarified and she accepted that Ms Yousif was not appointed because of Mr Carney’s decision to restructure mobile lending in PRB.

144                      I found Ms Blundell to be a convincing witness and I accept that the final report reflects a considered view formed after she undertook a conscientious enquiry.  She had a clear view of her function, namely, to conduct a probing enquiry.  She was not influenced by Mr Carney against her own judgment. 

145                      The submission that the investigation process was flawed is not made out.  It follows that the Bank did not act in breach of contract, whether express or implied, in the manner in which the investigation was conducted. 

BREACHES OF THE PRIVACY ACT AND RELATED CAUSES OF ACTION

146                      In April 2008 Ms Yousif discovered that some of her personal details kept on the Bank’s computer system had been accessed a number of times by Bank staff.  She made a complaint to the Bank.  Group Security investigated the complaints and wrote to Ms Yousif on 12 May 2008 explaining the responses which had been received.  Ms Yousif was not satisfied with this outcome.  Consequently, she sought relief in relation to a number of instances of alleged breaches of her privacy in this application.  Only one is now pursued.  It relates to Mr Andrew Matthews, the mobile lender who was the source of the PFS work which he and Ms Yousif agreed to share in December 2007. 

147                      The letter from Group Security explained the situation thus:

Andrew Matthews

Mr Matthews accessed your CommSee profile on 9/10/2007 at 12:26:22 AM.

Mr Matthews has advised that he had only recently joined the Bank when he was invited to your home to go over some files.  Mr Matthews had lost your address and rather than calling you late at night did a “front page” search where it lists all the possible matches on CommSee by putting in your name in the search criteria.  Mr Matthews could recall the suburb that you lived in but not the street number or name.  Mr Matthews has not seen any particulars of your facilities with the Bank.

Mr Matthews advised that he did attend your home for approximately 2 hours and can describe the inside of your home.

…

Any disciplinary action the Bank takes against either staff member is at the Bank’s discretion and is confidential.

148                      Counsel for Ms Yousif relied on s 16A(2) of the Privacy Act 1988 (Cth) (the Privacy Act) which provides that an organisation must not do an act that breaches a National Privacy Principle.  The National Privacy Principles are found in sch 3 to the Privacy Act.  It is alleged that the Bank acted in breach of National Privacy Principle 2.1 in relation to the access by Mr Matthews.  The Bank admitted that it was bound by the National Privacy Principles set out in sch 3.  Clause 2.1 of sch 3 relevantly provides that an organisation must not disclose personal information about an individual for a purpose other than the primary purpose of collection.  Section 98(1) of the PrivacyAct gives the Federal Court power to grant an injunction restraining a person from engaging in conduct in contravention of the Privacy Act where the person has engaged, is engaging or is proposing to engage in such conduct. 

149                      Counsel for Ms Yousif argued that an injunction should be granted against the Bank under s 98, or that a declaration should be made using the general powers of the Court to do so.  It was also argued that the breach of privacy amounted to a breach of the implied contractual term of good faith, trust and confidence.  This breach provided a further alternative basis for the grant of an injunction or declaration. 

150                      In the written submissions filed on behalf of Ms Yousif the argument was stated as follows:

It is not contended that any actual damage has resulted from this breach.  It is however important to Ms Yousif that there should be a reminder given about the importance of maintaining confidentiality of banking records and the need for vigilance in ensuring proper procedures are adhered to.  Ms Yousif should be given the declaratory relief sought in her application – whether sourced from the Privacy Act or as a further breach of the implied term of trust and confidence.

151                      The Bank did not contest the facts relating to this incident.  But the evidence showed that it took steps to investigate the matter.  The evidence in relation to the other incidents initially raised by Ms Yousif demonstrated that the Bank had a procedure for investigating such incidents and for addressing breaches of privacy when found.  Whilst the access by Mr Matthews should not have occurred, the Bank investigated the incident, it required Mr Matthews to provide an explanation, he provided an explanation, and the Bank passed the explanation on to Ms Yousif.  The circumstances did not involve any fraud or loss to Ms Yousif.  Indeed Mr Matthews’ need for Ms Yousif’s address seems to have related to the mentoring role which Ms Yousif provided to Mr Matthews and which ultimately led Mr Matthews to offer Ms Yousif the agreement to share in the PFS business. 

152                      The remedies of injunction and declaration are discretionary.  The steps taken by the Bank demonstrate that it regarded the incident as important to pursue.  Those actions of the Bank indicate that the circumstances do not call for the intervention of the Court.

CONCLUSION

153                      Ms Yousif has not established that the Bank acted in breach of any terms of her contract of employment whether express or implied.  Further, she has not persuaded the Court to grant any relief in respect of the breach of privacy by Mr Matthews.  Consequently, the application will be dismissed.

154                      Costs would normally follow the event.  An order will be made that the applicant pay the respondent’s costs.  However, as there was no full argument on the question of costs, leave will be reserved to any party to apply in writing by 24 June 2009 to vary the order for costs.

Associate:

Dated:         19 June 2009