FEDERAL COURT OF AUSTRALIA
Barker v Commonwealth Bank of Australia [2012] FCA 942
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | COMMONWEALTH BANK OF AUSTRALIA Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. Judgment be entered for the applicant against the respondent in the sum of $317,500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SOUTH AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | SAD 187 of 2010 |
BETWEEN: | STEPHEN JOHN BARKER Applicant
|
AND: | COMMONWEALTH BANK OF AUSTRALIA Respondent
|
JUDGE: | BESANKO J |
DATE: | 3 September 2012 |
PLACE: | ADELAIDE |
REASONS FOR JUDGMENT
Introduction
1 Mr Stephen John Barker is the applicant in this proceeding. He claims damages against the Commonwealth Bank of Australia (“the Bank”) which is the respondent. He relies upon two causes of action. First, he contends that the Bank acted in breach of a contract of employment between the Bank and himself and that he is entitled to damages at common law as a result. Secondly, he contends that in about July or August 2006, the Bank, through one of its employees, contravened ss 52(1) and 53B of the then Trade Practices Act 1974 (Cth) (“Trade Practices Act”) and that he suffered loss or damage as a result. He claims damages for that contravention under s 82 of the Trade Practices Act, and these damages are of a nature similar to those claimed for breach of contract.
2 Mr Barker’s contract case is put in alternative ways. His primary case is that his contract of employment with the Bank included, as terms of the contract, policies issued by the Bank from time to time and an implied term of mutual trust and confidence. The policies related to what may be broadly described as human resources matters and, on Mr Barker’s case, placed a number of obligations on the Bank. His case is that the Bank acted in breach of its own policies and in breach of the implied term of mutual trust and confidence. He contended that in early 2009 he, or his position, was selected for redundancy contrary to a policy of the Bank. He further contends that the Bank did not comply with its own policy with respect to the redeployment of a person in his position and that he thereby lost the opportunity to be redeployed to another position within the Bank.
3 Mr Barker’s alternative case in contract is that under his written contract of employment with the Bank the latter was bound to give him four weeks’ written notice of the termination of the contract, or four weeks’ pay in lieu of notice. His case is that the Bank did not do that and that the Bank’s failure to give him four weeks’ written notice of termination meant that he lost the opportunity to be redeployed to a position within the Bank during that period.
4 Mr Barker’s Trade Practices Act case is that Mr De Luca, who was an executive of the Bank, made a representation to him in July or August 2006 that his role would not change as a result of the employment by the Bank of a general manager for the region of South Australia and the Northern Territory. His case is that, as a result of that representation, he did not pursue an opportunity to obtain employment with the National Australia Bank (“NAB”). He contends that the representation was a representation as to a future matter and that Mr De Luca did not have reasonable grounds for making the representation.
5 Mr Barker makes a substantial claim for damages. Since leaving the Bank in April 2009, he has not obtained full-time employment with any other organisation. He has performed some consultancy work for which he has received fees. He claims past economic loss of $110,000 plus an amount for pre-judgment interest, future economic loss of $1,160,000, general damages of $200,000 and aggravated damages of $100,000.
The Evidence Called at the Trial
6 The parties exchanged written statements of the evidence to be given by the witnesses they intended to call at trial. Those statements were then tendered at trial as the witness’s evidence-in-chief. In some cases I allowed the witness to give some brief evidence-in-chief in addition to his or her statement. In addition to the evidence of witnesses called at trial, both parties tendered a number of documents. A number of key facts were established by documents or evidence which was not in dispute.
Mr Barker’s Witnesses
7 Mr Barker gave his evidence-in-chief by way of two written statements and brief oral evidence. His first written statement was a very lengthy document. He was subject to a long and vigorous cross-examination by counsel for the Bank. Much of his evidence may be accepted because it was either not contested, or related to matters which were, in any event, established by the documents. However, his evidence in some areas was unsatisfactory. He confidently asserted as facts a number of matters where his basis for doing so was either non-existent or, at best, tenuous. Examples are set out in the course of these reasons. Furthermore, I thought he exaggerated the nature of the personal relationship between Mr Formichella and Mrs Allen, and that he tried to minimise his part in the rumours which were circulating within the Bank as to the nature of that relationship. Finally, there were areas where I considered the evidence of another witness more reliable than the evidence of Mr Barker. These matters are referred to below.
8 Mr Anthony Majstrenko is a manager with the CPS Credit Union. He was employed by the Bank in July 1997, and while at the Bank he worked as a credit manager in institutional banking and as a relationship executive in Mr Barker’s team. His employment with the Bank ended on 4 November 2009. He is a good friend of Mr Barker. His credit was challenged by the Bank on the basis of an act alleged to have occurred shortly before his departure from the Bank. He denied the allegation and it is not otherwise established by the evidence. I place no weight on the allegation. Nevertheless, for other reasons, I did not find him to be an impressive witness. I find it difficult to accept that he could not recall any expression of disappointment within his team about Mrs Albanese’s selection to participate in a leadership programme. I find it difficult to accept that he could not be more definite as to whether there were discussions about Mr Formichella favouring Mrs Albanese and his statement that he never contributed to those discussions. I reject his evidence that Mr Formichella was deliberately touching Mrs Albanese’s hand at the client Christmas function in December 2008. I prefer the evidence of Mr Formichella and Mrs Albanese on that topic.
9 Mr Dale Champion is a consultant and proprietor and he operates a business called “Agrify”. He was employed by the Bank between mid 2004 and March 2010 in the Agribusiness team. He was an honest and straightforward witness.
10 Mrs Denise Ann Kenmore is employed as an executive assistant at the South Australian Department of Health. She was employed by the Bank as Mr Formichella’s personal assistant from January 2007 to March 2008. She left in acrimonious circumstances in terms of her relationship with Mr Formichella. She lodged a complaint against him. Her evidence was primarily directed to her observations of the relationship between Mr Formichella on the one hand, and Mrs Allen and Mrs Albanese on the other. She tended to argue with the cross-examiner. I have considered her evidence in the context of the evidence as a whole and there is a good deal which I do not accept.
11 Mr Barker tendered a written statement of Mr Peter Crump. Mr Crump is a Fellow of the Institute of Actuaries of Australia. The Bank did not require Mr Crump for cross-examination.
12 Mr Barker tendered two statements and two affidavits of Ms Julie Katherine Adlem. Ms Adlem is a solicitor employed by Pace Lawyers, who are the solicitors for Mr Barker. The Bank did not require Ms Adlem for cross-examination.
The Bank’s Witnesses
13 Ms Victoria Sciamanna is an employee of the Bank and has been since November 1985. She gave evidence about the Bank’s policies with respect to matters involving human resources. She was an honest and straightforward witness.
14 Ms Jade Baines is employed by the Bank and, between March 2007 and September 2009, she worked as a recruitment consultant for the Corporate and Financial Services Business unit (“CFS”) within the Bank. Ms Baines was married in October 2011. Her maiden name was Farrell. Ms Baines was an honest and straightforward witness.
15 Mrs Kylie Allen is employed by the Bank as an executive manager. She commenced her employment with the Bank in about December 2006. She was cross-examined at some length by counsel for Mr Barker. Her credit was challenged by Mr Barker. He submitted that I should not accept her evidence that she had no knowledge of Mr Barker’s redundancy prior to 2 March 2009. I have carefully considered her cross-examination with respect to that topic and I accept her evidence on the topic. Mr Barker submitted that Mrs Allen was wrong when she said she had not commenced work on the segmentation exercise before 19 December 2008. Although she may have been mistaken about that, I am not disposed to draw any inference adverse to her credit for that reason. Generally speaking, I accept Mrs Allen’s evidence.
16 Mrs Antonia Albanese is employed by the Bank as the Strategy and Business Performance manager for CFS for South Australia and the Northern Territory. She commenced her employment with the Bank in January 2007. She was an impressive witness and I accept her evidence.
17 Mr Joe Formichella is employed by the Bank as general manager for CFS in South Australia and the Northern Territory. He commenced his employment with the Bank in about August 2006. He was cross-examined at length by counsel for Mr Barker. Mr Barker submitted that I should not accept Mr Formichella as a witness of truth. He relied on a number of matters in support of that contention. I find that, in some areas, Mr Formichella’s evidence must be approached with caution.
18 Mr Formichella was defensive in some areas and that may be explained by the following facts. Mr Formichella is married. It will become apparent when I discuss the evidence and make my findings that it would have been quite reasonable for Mr Formichella to assume that Mr Barker was alleging that his relationships with Mrs Allen and, to a lesser extent, his relationship with Mrs Albanese, were highly inappropriate relationships. I say that however blandly the allegation might have been finally formulated by Mr Barker in his closing submissions.
19 Nevertheless, I have carefully scrutinised Mr Formichella’s evidence for the following reasons. First, he said that Mr Davis of Human Resources was responsible for the decision that Mr Barker clear out his desk on 2 March 2009 and not return to work at the Bank, rather than continue to work during the redeployment period. He said that that decision was made as a result of a direction from Human Resources. By contrast, Mr Davis of Human Resources said that the decision was made by the business, that is to say, Mr Formichella. The likelihood is that there was a discussion between them and the course taken was agreed. Secondly, Mr Formichella initially said that he first considered whether to appoint an executive manager to lead the team at Mawson Lakes in March or April 2011. It is apparent from his email to Mr De Luca dated 3 February 2009 that at or about that time he was considering, at least as an option, the appointment of an executive manager to lead the team at Mawson Lakes. At the same time, I do not accept Mr Barker’s contention that Mr Formichella refrained from appointing an executive manager to lead the team at Mawson Lakes until the first half of 2011 because of Mr Barker’s claim. I accept Mr Formichella’s evidence that he would not defer such a decision for that reason if the decision was necessary in the interests of the business.
20 Mr Barker challenged Mr Formichella’s understanding of the segmentation exercise as to whether it was “about staff” and the time at which redundancies were first considered as likely to result from the exercise. Mr Formichella’s recollection of the details of the segmentation exercise, particularly in the early months, was not particularly good. However, I think that fact affects his reliability on that topic, rather than his credibility.
21 On the other hand, I reject the criticisms of Mr Formichella’s evidence dealing with Mrs Allen’s knowledge of the proposed restructure and the succession planning slide-show document.
22 Subject to these qualifications, I accept Mr Formichella’s evidence.
23 Mr Neville Wiles is an employee of the Bank, who from August 2008 to January 2011 was managing the “Top Tier” team in CFS, Adelaide. He was a straightforward and honest witness.
24 Mr Kym Stegmeyer is employed by the Bank as a relationship executive in the CFS team for South Australia and the Northern Territory. He has been employed by the Bank for many years. He was a straightforward and honest witness.
25 Mr Glen Davis is employed by the Bank in a position known as Executive Manager – Strategic Human Resources. He has held that role for just over five years. Mr Davis was nervous in giving his evidence. Subject to my comments about Mr Davis in the context of Mr Formichella’s evidence, I accept his evidence.
26 Ms Helen Breccia was employed by the Bank between mid-2005 and September 2011. Between mid-2005 and February 2010, Ms Breccia was manager of a section within the Bank known as Career Support. She was a straightforward and honest witness.
27 Mr Robert De Luca is an employee of the Bank having commenced his employment with the Bank in August 2000. He was the executive general manager of CFS from mid-2006 until September 2010. He was cross-examined at length and at times he became impatient with the cross-examiner.
28 At one point in his evidence, Mr De Luca offered as an explanation as to why he had not drawn Mr Barker’s attention to various positions within the Bank; the fact that Mr Barker was not “mobile”. By this, he was referring to his understanding that Mr Barker was unwilling to move interstate, and he referred to the fact that Mr Barker had told him this in April 2008. Mr Barker’s submission was that that evidence of Mr De Luca was evidence of malice. I do not agree. It might be evidence of Mr De Luca being argumentative, but to my mind it is not evidence of malice. Mr De Luca operated at a high level within the Bank and his recollection of particular events was not as good as those more directly involved in those events. Nevertheless, he was an honest witness and I accept his evidence.
Other Matters
29 Two other matters should be noted. First, there was evidence in this case which was very general and only marginally relevant to the issues in the case. Two examples will suffice. Mr Barker said that for a time after she joined the Bank, Mrs Allen only ever spoke to him about business matters, and Mr Formichella said that Mr Barker did not assist him in settling in at the Bank. It is difficult, if not impossible, for me to make findings on the basis of very general evidence of what are largely personal perceptions. As it happens, it is not necessary for me to make findings on a number of these issues.
30 Secondly, Mr Barker contended that I should draw adverse inferences against the Bank because of conduct by the Bank in connection with the proceeding. First, he identified a number of persons who, he submitted, the Bank could have called as witnesses but did not. He submitted that an inference of the type identified in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) should be drawn against the Bank. I reject this submission. No doubt there were other persons who could have given evidence in relation to various topics which were the subject of evidence. However, in most cases Mr Barker did not sufficiently identify the precise inference he contended should be drawn and to which the absence of a particular witness was relevant. To the extent that he did, the particular matter was a matter I was able to decide without reliance on the approach discussed in Jones v Dunkel. Secondly, Mr Barker criticised what he said was the delay and reluctance of the Bank to produce documents in the course of the period leading up to the trial. Again, it was not made clear what inference in relation to what matter Mr Barker was asking me to draw. The same may be said of Mr Barker’s third submission which was that an adverse inference should be drawn from the fact (assuming for the sake of argument that it is the fact) that a number of documents were not produced by the Bank. I am able to and will decide this case by reference to the evidence before me.
31 I will set out the facts in chronological order as far as I am able. Where there is a dispute I will identify the dispute and the way in which I resolve it.
The Facts
Background
32 Mr Barker was born on 18 February 1964 and he completed year 11 at high school. In November 1981 he commenced employment with the Bank. He started in a variety of junior positions before being elevated to the position of teller. He then performed various roles which he described as trading bank examiner and savings bank examiner. He received high level performance reviews.
33 In July 1989, Mr Barker was promoted to the position of loans officer at the Findon branch of the Bank. At that time there were four levels within the assistant manager band and Mr Barker was employed at a level known as “AMA”. The other three levels were “AMB”, “AMC” and “AMD”. In 1991, Mr Barker was promoted to the “AMB” level. His role was to assist the branch manager and he was part of the management team. In 1992, he was promoted to the “AMC” level and he continued to receive high level performance reviews. At about this time he was selected to take part in the Bank’s management development programmes. In 1993, he was promoted to the “AMD” level and he became an assistant relationship manager at the Hindmarsh Business Banking Centre of the Bank. He was required to report to a relationship manager who was responsible for managing “a portfolio of client relationships”.
34 In 1995, Mr Barker was promoted to the level of manager. At that time, there were three levels within the manager band and they were “MA”, “MB” and “MC”. Mr Barker was promoted to the “MA” level.
35 In 1996, Mr Barker became a relationship manager at the Hindmarsh Business Banking Centre. He was assisted by an assistant relationship manager. He continued to receive high performance reviews. He completed various courses to assist him in furthering his career as far as possible.
36 At the beginning of 1999, Mr Barker took up a position as relationship manager at the Riverland Business Banking Centre of the Bank and he moved directly from the “MA” level to the “MC” level. Mr Barker said that he continued to receive outstanding performance reviews. He managed approximately 70 per cent of the total business in asset terms and he managed the largest customers of the Bank in the Riverland region.
37 In 2001 or 2002, Mr Barker was transferred to the Adelaide Business Banking Centre of the Bank. He continued to hold the position of relationship manager and he remained at the “MC” level. He managed a large portfolio of corporate customers located in both the central business district of Adelaide and in regional areas in South Australia. He was rated exceptional in his annual performance review. During 2002 and 2003, Mr Barker continued to receive good performance reviews and those reviews contained a mixture of “Meets Expectations” or “Exceeds Expectations”.
38 In November 2003, the executive manager for Corporate Banking, Adelaide, resigned. That was a level 3 position. The Bank had introduced a new management structure during the period between 2001 and 2002. Mr Barker had reported to the executive manager who had resigned. He applied for the position and in June 2004 he was successful in obtaining the position.
Mr Barker’s contract in 2004
39 In his new role as executive manager Mr Barker held a level 3 position and he reported to a general manager who held a level 4 position. In mid-2004, Mr Geoff Lock was the general manager for South Australia as well as Queensland, Western Australia and the Northern Territory.
40 Mr Barker’s new role involved what he described as a team of 24 colleagues including 12 people who reported directly to him. The revenue base was $27 million with approximately 800 customers in the business.
41 When he became an executive manager in mid-2004, Mr Barker was provided with the following documents:
1. Letter from the Bank to him dated 19 July 2004;
2. Written Employment Agreement consisting of 18 clauses;
3. Booklet entitled “Mandatory Equity Participation”; and
4. Document entitled “Notes on Remuneration – Level 3 to 7 Executive Booklet”.
42 The letter dated 19 July 2004 contained a statement that Mr Barker’s employment would be “under the Bank’s Executive employment conditions and remuneration arrangements”. Mr Barker executed the written employment agreement on 6 August 2004 and the Bank executed it on 10 August 2004.
43 The written employment agreement provided in clause 1 that where (as in this case) Mr Barker was employed by the Bank immediately preceding the date of the agreement, he and the Bank agreed to vary terms and conditions of employment to those set out therein. The agreement provided in clause 3 that it came into effect on and from 1 July 2004. The agreement provided in clause 4 that Mr Barker shall be employed as an executive of the Bank and shall serve at any location where the Bank or one of its related bodies operate. The agreement provided in clause 5(i) that Mr Barker shall observe and be subject to the provisions of the Bank’s instructions except as varied in the agreement. The balance of clause 5 dealt with intellectual property rights.
44 Clause 6 of the written employment agreement was in the following terms:
This agreement may be terminated –
• by agreement in writing between the parties at any time; or
• except in circumstances of misconduct, by four weeks’ written notice by either party to the other party. The Bank may make a payment of an amount equivalent to four weeks’ pay in lieu of notice.
In either circumstance, reason for termination shall not be required.
45 The agreement then provided for payment of benefits on termination. Clause 8 was in the following terms, relevantly:
This clause applies only where the employee was already employed by the Bank immediately preceding the date of this agreement. In the case where the position occupied by the employee becomes redundant and the Bank is unable to place the employee in an alternative position with the Bank or one of its related bodies, in keeping with the employee’s skills and experience, the compensation payment for the employee will be calculated on the basis of – …
46 The balance of the agreement dealt with the topics of age of retirement, officer’s superannuation fund, leave and variation of the agreement.
47 The Notes on Remuneration – Level 3 to 7 Executive Booklet contained a statement as follows:
Statement of Professional Practice
All executives are required as a condition of employment to observe the “Statement of Professional Practice”. For ease of reference, the statement is shown in Appendix C. The employment contract additionally has specific clauses covering ownership of intellectual property.
Appendix C was a document entitled “Commonwealth Bank of Australia. Statement of Professional Practice”. This document contained the following statement:
You should know, adhere to, and actively support the Bank’s EEO policies and programs, regardless of your personal views.
48 There is a position above general manager known as executive general manager. The person holding this position was Mr Barker’s manager one removed.
49 Mr Barker does not have a copy of his performance review for 2004. However, he gave evidence and I accept that his performance rating for that year was “Meets Expectations”.
The Period between August 2004 and August 2006
50 From approximately March 2005, Mr Barker was reporting to a new general manager for Victoria, South Australia, Tasmania, Western Australia and the Northern Territory (Mr Tim Chilvers). He said that his position was expanded “significantly”. The size of his team was expanded from 24 to 50 members and another executive manager (Mr Damien Wright), who was responsible for Business Banking, Adelaide, was reporting to him. Corporate and Business Banking (the name at the time of what was to become CFS) was an amalgamation of Corporate Banking and Business Banking and these were differentiated by the size of the client having regard to debt and revenue. Mr Barker’s evidence as to the number of portfolios under his control was not entirely clear. At one point, he said it was 13 portfolios, at another point he said it was 9 or 10 portfolios. A portfolio may consist of up to 50 clients. He said that the norm in 2005 and 2006 was between 8 and 10 portfolios and that 6 portfolios would be at the “low end”.
51 Mr Barker said that he assumed full responsibility for the central business district in Adelaide. There was an executive manager for Country SA (Mr Jeff Kimber), and Mr Barker was in effect head of Corporate and Business Services, Adelaide. He was responsible for a commercial revenue base of approximately $46 million generated from approximately 2000 customers.
52 Mr Barker’s ambition was to progress to the level of general manager.
53 In either late 2005 or early 2006, approval was given to create a new position in the Bank’s business in Adelaide. Although the position would be a level 3 position, it was proposed that the holder of the position would be an area manager who would report to Mr Barker. He said that the idea behind the creation of the position was that it would “free up more time” for him “to undertake higher level GM type responsibilities”.
54 At about this time, Mr Ralph Norris was appointed as the new chief executive officer of the Bank.
55 In about the middle of 2006, Mr De Luca was appointed as executive general manager of CFS.
The employment of Mr Formichella
56 The Bank had what was referred to in the evidence as a difficult financial performance in the period of July to December 2005, after which it was looking to improve its performance significantly. It decided to introduce new strategies.
57 In approximately July 2006, Mr De Luca decided to appoint a new State-based general manager in Adelaide. Such a person would be a level 4 employee and he or she would be Mr Barker’s direct manager. Mr De Luca selected Mr Joe Formichella for the position. The position was not advertised and Mr Barker was not given the opportunity to apply for it. One effect of the appointment was that Mr Barker would now report to a general manager based in South Australia rather than a general manager who was based interstate.
58 Mr Barker said that Mr De Luca had, some years earlier, worked for Mr Formichella at NAB. That is incorrect and the basis upon which Mr Barker made that assertion is unclear. Of itself, one error of this nature may not be particularly significant, but it is one of a number of instances where Mr Barker was prepared to assert matters without carefully ensuring that he had a proper basis to do so. Mr Formichella had worked on the same floor at NAB as Mr De Luca. At no stage had Mr De Luca worked for Mr Formichella.
59 Mr Barker said that in July or August 2006 he and Mr De Luca had a telephone conversation about Mr Formichella’s appointment. During the conversation, Mr De Luca informed him that Mr Formichella had been appointed general manager of CFS in South Australia. Mr Barker was told that he would report to Mr Formichella. He said that Mr De Luca appeared nervous during the conversation. Mr Barker asked Mr De Luca what would happen to his role and he was told by Mr De Luca that his role and that of Mr Kimber would remain unchanged.
60 Mr Barker said that he was very disappointed by the decision to appoint Mr Formichella, as he had aspirations to that role. Nevertheless, he remained positive about his future with the Bank.
61 Mr Barker said that at about this time he was approached by a recruitment agent, Mr Steve Hull of Robert Walters Recruitment. Mr Hull asked him if he was interested in a comparable role at NAB, being a role as regional executive at the executive manager level for NAB’s central business district office for corporate banking. The role was a similar one to the role which Mr Barker occupied after the appointment of Mr Formichella, but prior to the appointment of Mrs Kylie Allen. Mr Barker said that he considered he would have had an excellent chance of securing the position as he was one of only a few people if not the only person in Adelaide managing a corporate banking team of approximately 50 people. The remuneration was similar, but the bonus potential was not as great. He said that as he had been assured by Mr De Luca that his role would not change, he decided not to pursue the opportunity with NAB.
62 Mr Barker did not call Mr Hull and the only evidence in relation to this opportunity to secure employment at NAB was that given by Mr Barker, as summarized above.
63 Mr De Luca gave his version of events leading up to his appointment of Mr Formichella and his telephone conversation with Mr Barker. He said that during his time as executive general manager of CFS (that is, mid-2006 to September 2010) he was based in Sydney, New South Wales. He was responsible for the overall management of the Bank’s CFS business throughout Australia. During his time as executive general manager of CFS, the section or unit employed approximately 1,000 employees. He was responsible for the overall strategic and operational management of CFS. He met regularly with each State’s general managers and the heads of other Bank Business Units.
64 Mr De Luca said that CFS provided banking services to clients with a turnover of upwards of $5 million to $10 million. CFS had approximately 20,000 clients in Australia.
65 Mr De Luca was appointed to his role as part of a plan by the Bank to improve the business banking area within the Bank. In mid-2006 the Bank was the last of the four major banks in terms of customer satisfaction and market share growth. Mr De Luca introduced changes in relation to culture, capability and structure.
66 Mr De Luca described the structure of CFS in mid-2006. Mr Tim Chilvers was responsible for the CFS units in Victoria, Tasmania, South Australia and Western Australia. Mr Chilvers was based in Victoria. Executive managers in the various States reported to him. Mr Barker was the executive manager for the South Australian metropolitan area.
67 Mr De Luca decided (with the approval of his line manager) to change the structure. He decided that Mr Chilvers would be responsible for Victoria and Tasmania and that he would appoint Mr Formichella to the position of manager for South Australia and the Northern Territory. He knew Mr Formichella because he had previously worked with him at NAB and he had a high regard for him. He approached Mr Formichella who agreed to accept the position. Mr Formichella was “head-hunted” and the position he secured was not advertised. Mr De Luca received advice from his line manager and the Human Resources Department of the Bank that he could proceed in that way. Mr Formichella commenced his employment with the Bank approximately two months after Mr De Luca had commenced as executive general manager of CFS. Mr De Luca spoke to a couple of people about potential candidates for the position and he said that Mr Barker was not considered appropriate for the position.
68 Mr De Luca contacted Mr Barker by telephone to advise him of his decision to appoint Mr Formichella. He said that he was not nervous and he did not anticipate that Mr Barker would be disappointed by the news. He told Mr Barker that his role would not change. He agreed in cross-examination he said something like “your position will remain unchanged”.
69 I accept Mr De Luca’s evidence as to the events leading up to his telephone conversation with Mr Barker. It will be seen from the above that there is very little difference between Mr Barker’s version of his telephone conversation with Mr De Luca and that of Mr De Luca. It does not really matter to the issues in this case whether Mr De Luca sounded nervous, but I would accept Mr De Luca’s evidence that he was not nervous. I found him to be generally more reliable than Mr Barker.
70 What in fact happened after Mr Formichella’s appointment was that the proposal to appoint a new area manager who would report to Mr Barker did not proceed. Rather, Mr Formichella decided to employ Mrs Allen to lead the team that, under the previous proposal, was to be led by the new area manager, and to have her (that is, Mrs Allen) report directly to him rather than to Mr Barker.
71 That had the consequence, according to Mr Barker, that what Mr De Luca said to him was misleading or deceptive, or liable to mislead or deceive, because although the nature of his role or position did not change or the nature of the responsibilities he discharged on a day-to-day basis did not change, there was a lessening of his responsibility and the “span” or degree of his control and the size of his team changed. Mr Barker agreed in cross-examination that he would not have complained about Mr De Luca’s statement had not his position been made redundant and his contract of employment terminated in March or April 2009.
72 Mr De Luca said that Mr Barker’s role as an executive manager who reported to a general manager did not change in the period between his telephone conversation with Mr Barker in July or August 2006 and Mr Barker’s redundancy in March 2009. Mr De Luca accepted that Mr Barker’s “span” of control and the size of his team was reduced between the point at which Mr Formichella commenced employment with the Bank and Mr Barker’s redundancy.
The employment of Mrs Allen
73 In August 2006, Mr Formichella commenced his employment with the Bank as general manager for CFS in South Australia and the Northern Territory.
74 Prior to his employment by the Bank, Mr Formichella had been employed by NAB in various roles for approximately 19 years. Immediately prior to August 2006, he had been employed by BankWest for about 15 months in the position of director of business development.
75 Prior to joining the Bank, Mr Formichella was aware that Mr Barker was managing the South Australian operation of CFS under the supervision of a general manager located in Victoria.
76 Mr Formichella said that in August 2006, there were 12 to 13 portfolios within CFS and a separate business banking team of about seven portfolios reporting to another executive manager. The business banking team was removed from the CFS Business unit during a restructure which took place in early 2008.
77 Shortly after he commenced his employment with the Bank, Mr Formichella noted a number of what he considered to be cultural problems within the CFS Business unit. First, a large number of employees complained to him about the existing work environment. Those complaints included complaints about the systems employees were required to use and the insufficiency of training and direction from managers. Mr Formichella said that he could not remember any positive comment. Secondly, Mr Formichella observed that Mr Barker had frequent contact with some of his staff members, but less frequent contact with others. His most frequent contact was with his better performing relationship executives and analysts. Thirdly, Mr Formichella was involved in or overheard numerous conversations among staff members where negative comments were made about the Bank, and other staff members, including Mr Barker. Fourthly, there were difficulties associated with a new credit management system which had been introduced and which was called ComSee Commercial Lending (CCL). Mr Formichella said that when he joined the Bank there were a number of new expectations and training initiatives which had been, or were being, introduced at the Bank. They were not, according to Mr Formichella, supported by Mr Barker. The CCL system was not being used when Mr Formichella joined CFS and many of the staff had not undertaken the required training. Mr Formichella said that a number of staff complained about using the CCL system and about new initiatives and expectations generally. Fifthly, Mr Formichella received reports that, on a number of occasions, Mr Barker and a group of other staff members would go to the Lion Hotel on Melbourne Street, North Adelaide, on a Friday night to have drinks, and that Mr Barker would often put his Bank credit card on the bar and pay for drinks for both staff and clients.
78 I accept Mr Formichella’s evidence as to the above matters. The significant point is not whether the culture was or was not poor which in a sense is a subjective matter, but that Mr Formichella perceived that there were significant cultural problems which needed to be addressed.
79 Mr Formichella said that Mr Barker did not assist him in settling into his new role or the CFS team.
80 After he had settled in, Mr Formichella formed the view that the team of relationship executives being managed by Mr Barker was too large. Ordinarily, an executive manager managed a team of between six and ten portfolios. Mr Barker was managing a team of between 12 or 13 portfolios. Mr Formichella also formed the view that CFS South Australia and the Northern Territory was writing new business which was well below the average for other similar business units in CFS. In October 2006, Mr Formichella decided that an additional executive manager who would report to him should be employed so as to ensure that all portfolios were adequately managed. In effect, CFS would be split into two teams. Mr Formichella spoke to Mr De Luca, who approved of Mr Formichella’s decision to employ an additional executive manager although, as Mr De Luca said, and I accept, the decision was one for Mr Formichella. Mr De Luca did not know Mrs Allen.
81 Mr Formichella said that he created the position which was filled by Mrs Allen in October 2006. Mr Barker submitted that I should reject that evidence. He contends that there was evidence of a long “lead in” time in relation to the creation of positions within the Bank. In addition, he referred to the detailed requirements of the policy documents dealing with the Design of Role and Appointment to Roles. I do not accept Mr Barker’s submission and I accept Mr Formichella’s evidence on this point. However, it is clear enough that on occasions the Bank departed from its own policies.
82 Mr Formichella set about taking steps to fill the position. He did not consider that any of the relationship executives were suitable for the role and he spoke to a couple of people outside the Bank, one of whom was Mrs Allen.
83 Mr Formichella had known Mrs Allen for several years. She had worked for him at NAB. Over a number of years he assisted Mrs Allen in her professional development while at NAB. His relationship with Mrs Allen was one of co-worker, mentor and friend. He also mentored five other staff members whilst working at NAB.
84 Mr Formichella considered that Mrs Allen was an extremely able manager who would assist in the cultural change needed at the Bank. He said that at NAB Mrs Allen had a strong track record of performance against revenue plans and customer satisfaction surveys. She had risk management experience at senior levels and had successfully led and mentored a team of over 40 retail banking staff for NAB’s premium Adelaide office.
85 Mrs Allen commenced her employment with the Bank in December 2006. Mrs Allen had been employed by NAB as a senior relationship manager in business banking at a level which was equivalent to level 2 at the Bank. Mr Barker had thought an area manager was to be appointed and he had interviewed a candidate for the position. Mr Barker said he had approval from his previous manager to appoint the candidate. Mr Formichella rejected this candidate.
86 There was another change at about this time in that Mr Wright, the other executive manager, was to report to Mr Formichella rather than Mr Barker.
87 The effect of these changes was that, by the end of 2006, Mr Barker was one of three level 3 executive managers, all of whom reported to Mr Formichella. As I have said, prior to that Mr Wright, albeit an executive manager holding a level 3 position, reported to Mr Barker and the proposal concerning the new area manager was that he or she would (albeit holding a level 3 position) report to Mr Barker. The business for which Mr Barker was ultimately responsible was now one third the size it had previously been.
88 Mr Formichella left it to Mr Barker to decide which portfolios would be allocated to Mrs Allen and which portfolios he retained. There was a dispute between the parties about whether Mr Barker split the portfolios evenly. He admitted that he allocated the relatively more junior relationship managers to the “other” team, which was the team he initially thought would be led by the proposed new area manager. Mr Formichella went further, claiming that not only did Mr Barker allocate to his team the more experienced and better-performing relationship executives and analysts, but that he also moved better-performing analysts away from an existing relationship executive, moving them to a relationship executive within his team. Furthermore, he retained the clients who, generally speaking, earnt the greatest revenue for the Bank. That meant that it was more difficult for Mrs Allen to generate revenue.
89 In general terms, I accept Mr Formichella’s evidence, although it is not possible for me to make precise findings as to the difference in the quality of the two teams. That matter was the subject of evidence at a very general level.
90 Mr Formichella was of the view that it would have required less effort on the part of Mr Barker’s team to meet its key financial performance indicators compared to Mrs Allen’s team and at a general level I accept that that view was justified.
The relationship between Mr Formichella and Mrs Allen
91 Mr Barker’s case is that Mr Formichella favoured Mrs Allen throughout the period that both he (that is, Mr Barker) and Mrs Allen were employed by the Bank. To establish this favouritism he called evidence of incidents which suggested a degree of closeness between Mr Formichella and Mrs Allen which, he said, went beyond a proper professional relationship and of acts of favouritism. On Mr Barker’s case the favouritism was relevant to Mr Formichella’s decision in approximately February 2009 to make Mr Barker’s position redundant rather than that of Mrs Allen.
92 Some of the acts of alleged favouritism involved both Mrs Allen and Mrs Albanese and so this section and the section involving Mrs Albanese ([137]-[164] below) overlap. The two sections should be read together.
93 There were a number of witnesses who gave evidence about these alleged incidents and acts of favouritism. The principal witness from Mr Barker’s side was probably Mrs Denise Kenmore.
94 I will set out a brief summary of the evidence of each of the main witnesses and then state my findings.
95 Mr Barker said that he observed the relationship between Mr Formichella and Mrs Allen during the first six months of Mrs Allen’s employment. The relationship was of concern to him. He said that he observed one to two hour meetings behind closed doors between Mr Formichella and Mrs Allen “most days”. He said that he did not have such meetings with Mr Formichella, and that in his experience at the Bank, such meetings were most unusual. Mr Barker said that Mrs Allen only ever spoke to him about business matters.
96 Mr Barker said that he also noticed after he had a meeting with Mr Formichella, there was, on almost every occasion, a meeting between Mr Formichella and Mrs Allen. He rarely had informal meetings with Mr Formichella and, after a time, he formed the view that Mr Formichella was favouring Mrs Allen, and that he was on the outer. Mr Barker went so far as to suggest that Mr Formichella would not make a decision without first speaking to Mrs Allen.
97 Mrs Kenmore said that in the early stages of her employment all went well, and after three months she was offered a permanent position. Mr Formichella told her that he needed someone to help with staff morale. She got on well with Mr Barker. Mrs Kenmore said that Mr Formichella and Mrs Allen would meet every day in a small meeting room off an open plan office and that the door would be closed. The meetings were at least an hour and could occur twice a day for a period of up to two hours. It was said that every meeting between Mr Barker and Mr Formichella would be followed by a meeting between Mr Formichella and Mrs Allen.
98 Mrs Kenmore gave evidence of various incidents which suggested to her that Mr Formichella and Mrs Allen were very close. She gave evidence of an event at a Signature dinner at the Wine Centre in November 2007. This was a networking dinner involving executives of the Bank and premium clients. Mrs Kenmore was talking to Mr Formichella’s wife, and Mrs Allen and Mrs Albanese, after initially proceeding towards her, changed direction when they saw Mr Formichella’s wife. Furthermore, Mrs Kenmore said that Mrs Allen and Mrs Albanese did not speak to Mrs Formichella during the dinner.
99 Mrs Kenmore said that at another time she noticed papers in the Bank’s offices showing Mr Formichella had increased Mrs Albanese’s bonus for the financial year ended 30 June 2007 at the expense of other team members. She said that Mrs Allen never brought in any business, whereas Mr Barker was active and did bring in new business.
100 Mrs Kenmore gave evidence to the effect that Mr Formichella had cancelled a meeting so that he could take Mrs Allen and Mrs Albanese out to lunch.
101 Mrs Kenmore said that Mr Formichella would always praise Mrs Allen, but would not praise Mr Barker. She gave evidence of a conversation she had with another Bank employee in about December 2007 when the employee related an incident to her which suggested a close personal relationship between Mr Formichella and Mrs Allen. She said that the Bank employee who was working out a period of notice left that day.
102 Mrs Kenmore also said that at various stages during her employment with the Bank Mr Formichella delegated access to his email account to Mrs Allen. She gave evidence of other events allegedly showing a closeness between Mrs Allen and Mr Formichella such as the latter’s enthusiasm to be in a photograph with Mrs Allen and an occasion when Mrs Allen bought a tie for Mr Formichella. She also said that they both “disappeared” from the office on at least two Friday afternoons. She also said that Mr Formichella and Mrs Allen did not support Mr Barker’s idea to entertain clients at the Adelaide Cup in 2008.
103 Mrs Kenmore said that in the early stages Mr Formichella and Mrs Allen spoke about Mr Barker in front of her and it was in a derogatory way “about his work, about his private life, and in general”.
104 It seems that Mr Formichella conducted a review of Mrs Kenmore’s performance on 31 January 2008. She left her employment with the Bank on the following day, that is, 1 February 2008. She told Mr Formichella that she would see him in court and she lodged a complaint against him in which she alleged that he had bullied her. At first instance, the complaint was dismissed. Mrs Kenmore pursued the matter and eventually the complaint was resolved.
105 Mrs Kenmore was subject to a vigorous cross-examination. It was put to her that she may have seen a delegation to Mrs Allen of Mr Formichella’s calendar but not his emails. She denied that. Mrs Kenmore agreed that there were rumours in the workplace that Mr Formichella and Mrs Allen were unusually close. She agreed that Mrs Formichella gave Mrs Allen a card and Christmas present in 2007. She agreed that Mr Barker told her that Mr Formichella and Mrs Allen did not like him and, I find, he told her that he thought they were having an affair.
106 Mrs Kenmore agreed that her statement that Mrs Allen did not bring any business into the Bank was based on her observations of what managers ordinarily do, rather than on any precise knowledge of the fact. She also agreed that it was an exaggeration to say Mr Formichella never praised Mr Barker; the more appropriate description was that he rarely did so.
107 I turn now to the evidence of Mrs Allen. She said that she and Mr Formichella had worked together at NAB and that he was her mentor at NAB over an extended period of time. She regarded him as her mentor and friend. Mr Formichella recruited Mrs Allen to the position at the Bank. He approached her in October 2006 and he wanted her to start before Christmas 2006. She was keen to move, but was concerned about losing a significant incentive bonus which she would do if she left NAB before the end of the calendar year. Mr Formichella, on behalf of the Bank, offered her a short term incentive bonus of a minimum of not less than $25,000 for the 2006/2007 performance year.
108 Mrs Allen said that she met Mr Barker in December 2006. The CFS portfolios for South Australia and the Northern Territory when she started were divided into two teams, one to be managed by Mr Barker and the other by her. Mrs Allen’s understanding was that prior to that there had been one team under Mr Barker and that he had been responsible for dividing the teams.
109 Mrs Allen’s opinion was that Mr Barker’s team was more senior and better performing than hers and he had “better performing portfolios, containing desirable clients”.
110 When Mrs Allen commenced her employment with the Bank, she and Mr Barker did not interact very much. She formed the view that Mr Barker was not happy with her appointment as an executive manager. Her lack of interaction with Mr Barker meant that in the first few months of her employment she often met with Mr Formichella to discuss issues relating to the operation of her team. The issues she discussed with Mr Formichella included issues of staff management, management of client credit and the manner in which she proposed to operate her team. Some issues could not be discussed in an open plan office, but could only be discussed in the privacy of a separate room.
111 Mrs Allen denied the suggestion that she avoided speaking to Mrs Formichella at the Signature dinner in November 2007. She said that she could not recall leaving the client Christmas function in 2008 with Mr Formichella and Mrs Albanese, and she could not recall them touching each other’s hands in the manner described by Mr Majstrenko in his statement and subsequently in his evidence (see [149] below).
112 Mrs Allen said she was given access to Mr Formichella’s emails by Mr Formichella when he went on leave in late 2008 and early 2009.
113 Mrs Allen denied a number of matters deposed to by Mrs Kenmore. She denied that Mr Formichella spoke to her after every meeting he had with Mr Barker. She denied ever buying Mr Formichella a tie during her employment by the Bank. She denied ever leaving work early on a Friday afternoon to go somewhere with Mr Formichella. Mrs Allen said that she had brought significant business to the Bank and she gave two clients as examples. Mrs Allen said that Mr Formichella praised Mr Barker far more frequently in leadership team meetings “when compared with how often he praised my efforts”.
114 Mrs Allen also denied a number of matters deposed to by Mr Barker. She did not agree that at the commencement of her employment Mr Barker made efforts to be friendly and make conversation. She denied that Mr Formichella consulted her with respect to all or most business decisions and she said that in fact he rarely did so. She said that she was not consulted about Mr Formichella’s decision to transfer Mrs Albanese from Mr Barker’s team to her team; she was notified that that was going to happen. Mrs Allen denied sitting at Mr Formichella’s table at the Signature dinner.
115 Mrs Allen agreed that initially her meetings with Mr Formichella were frequent. She agreed that Mrs Kenmore told her that there were rumours she and Mr Formichella were having an affair, but that was the first time she was made aware of such rumours.
116 Mrs Allen said that Mrs Albanese had worked for her as an analyst when she was a relationship executive at NAB. She said that she and Mrs Albanese were close friends. Mrs Albanese was transferred from Mr Barker’s team to her team about 6 or 7 months after she (Mrs Albanese) had started with the Bank.
117 Mrs Allen received a “sign-on” fee of $25,000 and a bonus of $25,000 in her first year (that is, mid 2007). She received $70,000 in the next year (that is mid 2008).
118 Mrs Allen was aware of hostility in the office towards those who had come in from NAB. Mrs Allen described the environment at NAB as far more ambitious, aggressive and high performing than the environment at the Bank when she first joined.
119 I turn now to Mr Formichella’s evidence. Mr Formichella described the meetings he had with Mrs Allen. He said that the CFS Business unit in Adelaide operates in an open plan office. Staff, including Mr Formichella, Mr Barker and Mrs Allen, sit at several large tables. It is not possible to have private conversations in such an area. There are a number of conference rooms where staff can have private conversations. Mr Formichella met regularly with Mrs Allen during the first couple of months of her employment. Their meetings were frequent and in some weeks they may have had daily meetings. Mrs Allen met with Mr Formichella because, according to Mr Formichella, there was no one else that she could speak to. Mr Formichella’s impression was that Mr Barker was not supportive of Mrs Allen.
120 Mr Formichella also had a number of meetings with Mr Barker in one of the conference rooms. He did not meet with Mrs Allen after every meeting he had with Mr Barker. Mr Formichella spoke to Mr Barker about the limits on the use of his bank credit card. At one point, Mr Formichella spoke to Mr Barker and warned him he would be forced to take his card away if he did not comply with the protocols relevant to the use of such cards.
121 Mr Formichella denied that he and Mrs Allen ever spoke about Mr Barker in a spiteful way. Mr Formichella said that he could not recall the “camera incident” ever occurring. Mr Formichella said that Mrs Allen never bought him a tie during his employment with the Bank. Mr Formichella said that he never left work early on a Friday to go somewhere with Mrs Allen, and he said that the inference that he did was “highly offensive”. Mr Formichella denied preparing a document which might be taken to suggest that Mrs Allen would be promoted and Mr Barker would be moved sideways. Mr Formichella said Mrs Allen did bring in new business without his assistance and he gave two examples. With respect to the “Adelaide Cup incident” Mr Formichella said that he did attend the Adelaide Cup and he paid for three tables.
122 Mr Formichella agreed that he had a practice of taking Mrs Allen and Mrs Albanese out to lunch on their respective birthdays. However, he never cancelled a meeting with a client in order to attend one of these lunches. Mr Formichella denied that he always praised Mrs Allen at weekly leadership team meetings and that he never bestowed any accolades on Mr Barker. Mr Formichella said that he had not been in an intimate position with Mrs Allen at a client Christmas function. Mr Formichella said that he did give Mrs Allen access to his emails in January 2008 as both he and Mr Barker were on leave and he wanted to ensure that his emails were dealt with appropriately. On returning from leave, Mr Formichella cancelled Mrs Allen’s access to his emails.
123 The Signature dinner in 2007 was held at the National Wine Centre. Mr Formichella said he did not sit at the same table as Mrs Allen and Mrs Albanese.
124 I turn now to the evidence of Mr Stegmeyer. He commenced his employment with the Bank in 2007 and throughout his employment he has worked as a relationships executive in the CFS team for South Australia and the Northern Territory. His position meant that he was responsible for managing the banking affairs of a portfolio of corporate clients. For the first six weeks of his employment, Mr Stegmeyer worked in the Adelaide office of CFS at 96 King William Street, Adelaide, and thereafter he worked at the office at Mawson Lakes.
125 Mr Barker was Mr Stegmeyer’s direct manager prior to the former’s redundancy in March 2009. Mr Stegmeyer had previously worked for NAB for 22 years in a variety of roles. He thought the atmosphere at the Bank was less formal and less professional than it had been at NAB. He said that in the first six weeks of his employment he saw Mr Barker and a number of relationship executives go out for lunch on a Friday, and then return to the office mid-afternoon apparently intoxicated. He thought that Mr Barker supported him in some ways and not in others.
126 Mr Stegmeyer said that rumours of a sexual relationship between Mr Formichella and Mrs Allen were common. He said that Mr Barker was critical of Mrs Allen’s ability as an executive manager when she was not present.
127 In December 2008, Mr Stegmeyer attended a Christmas function for relationship executives at a restaurant. Mr Barker was present. There was a conversation about a rumour that Mr Formichella and Mrs Albanese had been observed in a compromising position at the client Christmas function, “specifically, that they had been holding hands”.
128 The findings I make about the relationship between Mr Formichella and Mrs Allen are as follows. First, it is necessary to make findings relevant to context. I think Mr Formichella came to the Bank with quite definite views about what a proper professional culture was and was not. He considered that there needed to be considerable improvements to the culture and behaviours within the Bank’s CFS Business unit in Adelaide. He set about recruiting people who had similar views on those matters to his own. He employed Mrs Allen who was a good friend. He had overseen aspects of her professional development. I think that a cultural divide developed between Mr Formichella, Mrs Allen, Mrs Albanese and perhaps others on the one hand, and Mr Barker and his supporters on the other. Mr Formichella and Mrs Allen worked closely together and that led to rumours that they were in a relationship that went beyond a professional relationship.
129 I am not satisfied that there was a physical relationship between Mr Formichella and Mrs Allen. The evidence does not support such a conclusion even if I left the seriousness of such a finding out of account (s 140 of the Evidence Act 1995 (Cth)). They were good friends and they worked closely together. Mr Formichella encouraged Mrs Allen and approved of her behaviours. In the early stages of her employment Mr Formichella met with Mrs Allen in a small meeting room on a regular basis.
130 As to the specific incidents said to show the closeness of the relationship between Mr Formichella and Mrs Allen, I prefer their evidence to that of Mr Barker and Mrs Kenmore.
131 This was an area where Mr Barker’s evidence was not impressive. I thought he fenced with the cross-examiner when asked about his involvement in discussions concerning the relationship between Mr Formichella and Mrs Allen. I do not accept his evidence that almost every meeting he had with Mr Formichella was followed by a meeting between Mr Formichella and Mrs Allen, or that Mr Formichella would not commit to a decision without first speaking to Mrs Allen. Mr Barker had no basis for asserting that Mr Formichella and Mrs Allen interviewed Mrs Albanese before the latter was employed by the Bank. I deal with this topic in greater detail in the section set out below (at [135] and [136]). I find that Mrs Allen and Mrs Albanese did not sit at the same table as Mr Formichella at the Signature dinner. I reject Mr Barker’s evidence to the effect that they did. This is another example of Mr Barker either, at best, jumping to conclusions on the basis that he had seen them at the same table during the evening or, at worst, making statements without any reasonable basis.
132 I found Mrs Kenmore’s evidence in cross-examination about paragraph 10 of her first witness statement quite unsatisfactory. She was, as I have said, argumentative in cross-examination and at times antagonistic. I do not accept that, having regard to her duties at the Signature dinner in November 2007, she is able to say without any qualification that neither Mrs Allen nor Mrs Albanese spoke to Mrs Formichella during the evening. Nor do I accept her evidence that she is able to say that Mr Formichella met with Mrs Allen immediately after every meeting with Mr Barker. She denied that that was an exaggeration but I do not accept her denial. As I have said, she exaggerated when she said that Mr Formichella never gave Mr Barker any accolades or acknowledgements. She accepted that it was not accurate to say that Mrs Allen never brought in any new business and Mr Barker was always “out there”, bringing in new clients. In her opinion, it was more accurate to say Mr Barker was “actively seeking, engaged in clients” whereas Mrs Allen was not. In her written statement, Mrs Kenmore said that Mr Formichella did not attend the Adelaide Cup function in 2008. In her evidence, she said she did not know whether he attended the function.
The employment of Mrs Albanese
133 Mrs Albanese commenced her career in the banking industry in 2000 when she commenced employment with NAB. She worked in a variety of roles at NAB, including as business development manager in what is known as the major client group. She was on maternity leave in 2006.
134 Mr Formichella contacted Mrs Albanese in late 2006 and asked her whether she would be interested in joining CFS for South Australia and the Northern Territory as a relationship executive. Mr Formichella said, and I accept, that he was aware of Mrs Albanese’s reputation. He said that she was the highest writer of new business in the NAB business development team and that she had a good reputation both within NAB and within the Adelaide banking market. Mrs Albanese indicated that she was interested in being interviewed for the role.
135 Mr Formichella said, and I accept, that he raised the possible employment of Mrs Albanese with Mr Barker and he did that because if she was employed by the Bank she would be working in Mr Barker’s team. Mr Barker indicated that he would be happy to meet Mrs Albanese. On a day in January 2007, Mr Formichella and Mr Barker met with Mrs Albanese in a coffee shop on King William Street, Adelaide, for what was akin to an interview. After the meeting, Mr Formichella and Mr Barker had a conversation and Mr Barker indicated that he did not object to the employment of Mrs Albanese. Mrs Albanese was offered a position at the Bank, which she accepted. She began working in Mr Barker’s team as a relationship executive.
136 Although Mrs Albanese and Mrs Allen were friends, the latter had no involvement in Mrs Albanese’s recruitment to the Bank. Mr Barker said that Mr Formichella and Mrs Allen interviewed Mrs Albanese without consulting him. That was not the case and Mr Barker had no reasonable basis for making that assertion. Mr Barker said that Mrs Albanese was offered the position before he had any involvement. Again, that was not the case.
The relationship between Mr Formichella and Mrs Albanese
137 Mr Barker’s case is that Mr Formichella favoured Mrs Albanese as well as Mrs Allen. She, like Mrs Allen, was an ex-employee of NAB and he contends that after Mrs Albanese joined the Bank she, Mr Formichella and Mrs Allen were very close and Mr Formichella favoured both women.
138 Mr Barker’s evidence in support of these contentions was as follows.
139 Mr Barker said that Mrs Albanese commenced her employment with the Bank in January 2007 as a member of his team. He said that Mrs Albanese was paid more than other relationship managers, and this caused discontent among Mr Barker’s team. He noticed that Mr Formichella, Mrs Allen and Mrs Albanese were close.
140 Mr Barker’s team was slightly larger than Mrs Allen’s team. The new Business Banking Centre at Mawson Lakes was yet to be established. It opened in late 2007.
141 On 1 July 2007, Mrs Albanese was transferred from Mr Barker’s team to Mrs Allen’s team. Mr Barker said that he was upset about the way in which this was done, in that the proposed transfer was presented to him as a fait accompli by Mr Formichella and Mrs Allen. He complained privately to Mr Formichella about the way he had gone about it, and Mr Formichella apologised to him.
142 After the transfer of Mrs Albanese, the two teams were about the same size pending the opening of the new Business Banking Centre at Mawson Lakes.
143 Towards the end of the financial year ended 30 June 2007, the question of bonuses to be paid to members of CFS Adelaide was considered. Mr Barker recommended to Mr Formichella that Mrs Albanese receive a bonus of $15,000. In fact, she received a bonus of $20,000 which, when annualised (she had worked for the Bank for 5.26 months), was a figure of $45,627. That was 76 per cent of her bonus potential. Had Mrs Albanese worked for the full year and received $45,627, that would have been the highest bonus in amount paid to the relationship managers and the highest percentage of bonus potential paid to executive managers and relationship managers. By contrast, Mr Barker received $50,000 for the 12-month period which was 34 per cent of his bonus potential. Mrs Allen received a bonus of $55,000 which, when annualised (she had worked for the Bank for 6.87 months), was $96,069. That was 73.9 per cent of her bonus potential. Each of Mr Barker, Mrs Allen and Mrs Albanese had received a “Meets Expectations” performance rating. Four relationship managers had received an “Exceeds Expectations” performance rating. One of the executive managers had an “Exceeds Expectations” performance rating. Mr Barker complained to Mr Formichella about the increase in Mrs Albanese’s bonus.
144 Mr Barker said that Mr Formichella was directing any new business he picked up to Mrs Albanese.
145 Mr Barker said that at the Signature dinner in November 2007 Mr Formichella, Mrs Allen and Mrs Albanese sat at the same table with two or three clients whereas other managers and employees were spread out among the clients. As I have already said, that was not the case.
146 In early 2008, Mrs Albanese was selected to participate in a programme for emerging leaders. The programme was designed to develop managers into executives. Mr Barker said that he was not asked to nominate anyone for the programme from his team. He thought that there were managers who had performed better than Mrs Albanese. He also thought that he deserved the opportunity to participate in the programme.
147 In December 2008, the Bank held a Christmas function for clients on the third floor balcony of its business premises in King William Street, Adelaide. Mr Barker said that Mr Formichella, Mrs Allen and Mrs Albanese were “as normal, not far from each other and all left at the same time”. Furthermore, Mr Barker said that he observed the three of them “spending some time deep in discussion inside the building away from the party”.
148 A week or so after this function, Mr Barker held a lunch for his managers. One of the relationship managers in his team, a Mr Schaedel, “raised a question of observed familiarity between Mr Formichella and Mrs Albanese at the Christmas function”. A short time after the lunch, Mr Barker went on leave. When he returned, Mrs Albanese raised with him the fact that she had heard that one of his team was spreading rumours of an inappropriate incident between her and Mr Formichella at the Christmas function. Mr Barker said that he would speak to Mr Schaedel and he subsequently did.
149 In support of his case as to the “hand touching” incident between Mr Formichella and Mrs Albanese, Mr Barker called Mr Majstrenko. Mr Majstrenko said that he was at a bank function for clients on 3 December 2008. He said that he and others saw Mr Formichella touching Mrs Albanese’s hand as they walked down a glass walkway with Mrs Allen. It was more than an “innocent accidental touch”. Mr Majstrenko identified Mr Schaedel and Mr Perkins as others who witnessed the incident. Neither of them was called as a witness.
150 I have already set out my conclusions with respect to Mr Majstrenko’s evidence (at [8] above).
151 I will address each of the matters identified by Mr Barker and set out my findings. As I have said, I accept Mrs Albanese’s evidence, and, on these matters, the evidence of Mr Formichella. I also accept the evidence of Mr De Luca in so far as it is relevant. The evidence of these witnesses was straightforward whereas I thought Mr Barker’s evidence was not impressive. His evidence about whether he commented to others about the friendly relationship between Mr Formichella and Mrs Allen was not straightforward. Mrs Albanese’s evidence about her conversations with Mr Barker was far more convincing than that of Mr Barker. Furthermore, there were matters where Mr Barker’s lack of recollection was surprising. Two examples are the transfer of clients in and out of Mrs Albanese’s “portfolio” and whether Mr Barker had had conversations with others, such as Mr Majstrenko and Mr Wiles, about the alleged inappropriate hand contact.
152 As to the transferring of clients out of the portfolio assumed by Mrs Albanese, I find that a number of good clients of the Bank were transferred out of that portfolio and into the portfolios of other relationship executives within Mr Barker’s team; in return a number of less attractive clients (from the Bank’s point of view) were transferred into the portfolio of Mrs Albanese. Mrs Albanese raised that matter with Mr Barker, and although she agreed that he was supportive, she, in fact, lost a further client who was transferred from her portfolio to the “Private Bank” area on the instructions of the departing relationship executive. I note that Mr Barker acknowledged that Mrs Albanese had been given a composite portfolio built from clients relocated from a number of portfolios in her performance review for the year ended 30 June 2007.
153 Mrs Albanese complained to Mr Formichella. She told Mr Formichella that a number of larger, more profitable clients had been moved from her portfolio and distributed to the portfolios of other relationship executives in Mr Barker’s team. Furthermore, less profitable clients had been transferred to her portfolio. That was done without any reference to Mr Formichella or Mrs Albanese.
154 Mr Formichella told Mrs Albanese that he could not do anything about it as the clients had already been advised of their new relationship executive. Mr Formichella met with Mr Barker and told him that no more less profitable clients were to be transferred into Mrs Albanese’s portfolio. Mr Barker said he was not aware of the transfers and he told Mr Formichella that he would look into the issue.
155 As to the transfer of Mrs Albanese from Mr Barker’s team to Mrs Allen’s team, it seems that Mrs Albanese was not satisfied with how the matter had been resolved. Her discontent may have been fuelled by the fact that she was excluded by the other relationship executives in Mr Barker’s team. At all events, she complained to Mr Formichella and said she was considering leaving the Bank. Mr Formichella met with Mr Barker again and he told Mr Barker that he was going to transfer Mrs Albanese from his team to Mrs Allen’s team. That occurred in July 2007.
156 As to her relationship with Mr Formichella and Mrs Allen, Mrs Albanese did not deny that they got on well together. They had birthday lunches, but Mrs Albanese denied, and I accept her evidence, that no meetings were cancelled as a result of the fact that they clashed with birthday lunches.
157 As to the payment of bonuses to Mrs Albanese (and Mrs Allen), and, in particular, the bonuses paid for the financial year ended the 30 June 2007, Mr De Luca explained the system. He said that he approved all performance bonuses paid to members of CFS. He could not remember the position regarding the payment of bonuses for South Australia and the Northern Territory for the financial year ended 30 June 2007. However, he gave evidence by reference to his knowledge of the standard practice. With respect to payment of bonuses to team members below executive managers, the latter would make a recommendation to Mr Formichella as to the payment of bonuses. Mr Formichella could amend a recommendation at his discretion. Mr Formichella made recommendations as to the payment of bonuses to executive managers. All recommendations were then put before Mr De Luca.
158 Mr Formichella said that he was required to determine an appropriate bonus payment for Mrs Allen for the 2006/2007 financial year. On 31 October 2006, he had sent her a letter guaranteeing that she would receive a bonus of no less than $25,000 in respect of the 2006/2007 financial year. He decided to award Mrs Allen a bonus of $55,000. He was also required to review Mr Barker’s recommended bonus payment for Mrs Albanese. He decided to award Mrs Albanese a bonus payment of $20,000. In both cases, neither employee had been employed by the Bank for the full financial year. Nevertheless, Mr Formichella awarded their bonus payment on the basis that they had been employed with the Bank for the full financial year. Mr Formichella’s reason for awarding bonuses to Mrs Allen and Mrs Albanese was that they would both have been entitled to shares and/or cash by way of bonuses had they remained with NAB. Mrs Allen would have been awarded a bonus of at least $47,000 combined in cash and shares if she had stayed with NAB until Christmas 2006. In addition, Mrs Allen had improved her team’s behaviours and this was recognised in her performance review for the period 1 January 2007 to 30 June 2007. In the case of Mrs Albanese, she had forfeited about $17,000 worth of shares in electing to commence employment with CBA rather than stay with NAB. In addition, she had performed well as is shown in her performance review for the period 22 January 2007 to 30 June 2007.
159 As to the assertion that Mr Formichella was directing any new business he picked up to Mrs Albanese, between July 2007 and December 2007 Mr Formichella directed one client to Mrs Albanese and that was a client she had previously dealt with at NAB. Mrs Albanese secured this business opportunity and brought a significant amount of business into the Bank. Mr Barker’s evidence that Mr Formichella was “directing the majority of new business opportunities” to Mrs Albanese is incorrect.
160 As to the table seating at the Signature dinner in November 2007, I have already made findings about that matter. Mrs Albanese said, and I accept, that she spoke to Mrs Formichella on several occasions during the evening and that at no time did she and Mrs Allen try and avoid Mrs Formichella in the manner described by Mrs Kenmore.
161 As to Mrs Albanese’s selection to participate in the programme for emerging leaders, Mr Formichella said that the aim of this programme was to develop employees within the CFS Business unit who had potential to progress into leadership roles in the future. Selection for this programme was based on performance and potential for future career progression. He said, and I accept, that Mrs Albanese was a high-performing relationship executive in terms of her financial performance and behaviours. He nominated her for the programme and Mr De Luca accepted his nomination.
162 As to the alleged inappropriate hand contact at the client Christmas function in 2008, Mrs Albanese said, and I accept, that the incident did not occur. She said that the most that might have happened was that she stumbled – she was wearing high heels – and she grabbed Mr Formichella’s wrist to steady herself.
163 Mr Formichella’s account was similar. He attended the Christmas client function in 2008. He does not recall leaving this function at any stage with Mrs Allen and Mrs Albanese. He never touched Mrs Albanese’s hand in the manner described by Mr Majstrenko. He does recall that at one point during the function he was speaking to a client on the 3rd floor balcony when Mrs Albanese approached to join the conversation. As Mrs Albanese approached, she lost her balance and he recalls that she grabbed onto his wrist for a moment to steady herself. Once she had done that she immediately let go of his wrist.
164 Furthermore, I accept Mrs Albanese’s account of what occurred after this alleged incident. In January 2009, she was told by Mr Stegmeyer that at a meeting of Mr Barker’s team Mr Schaedel had raised a rumour that she and Mr Formichella had behaved inappropriately at the Christmas function. She was aggrieved with Mr Barker for allowing this to happen and she confronted him. Initially, he denied that anything had happened. Then he admitted it had happened, and he said that he would speak to Mr Schaedel and follow up with her on the issue.
Events in 2008 other than the segmentation exercise
165 There were a number of events in 2008 which one or both of the parties said were relevant to the issues in the case. I will now set out my findings in relation to those events. I will deal separately with the segmentation exercise which commenced in 2008 and continued into 2009.
166 Mr De Luca’s involvement with the CFS section in South Australia between late 2006 and late 2008 consisted of his attendance at meetings of the general managers within CFS, including Mr Formichella, and “manager one removed” meetings or discussions with Mr Barker and Mrs Allen respectively.
167 In April 2008, Mr De Luca had a “manager one removed” discussion with Mr Barker. Mr De Luca’s version of that discussion was that Mr Barker raised with him a concern that Mr Formichella was favouring Mrs Allen. Mr De Luca spoke to Mr Formichella about this because he considered that even if it was only a perception, it was a damaging one. He also spoke to colleagues in his leadership team who had teams in Adelaide and they said that they had not heard the view expressed. Mr De Luca spoke to Mr Barker about other matters and in notes of the meeting which Mr De Luca prepared he states that Mr Barker told him that he “would be open to future roles outside of Adelaide, but not for a couple of years due to personal reasons”.
168 Mr Barker’s version of the discussion was that he told Mr De Luca that he considered that Mr Formichella was too aligned with Mrs Allen and that that was disadvantaging him. Mr De Luca said that he had already spoken to Mr Formichella about this and that Mr Barker should speak to him again if it continued. They discussed the new business banking centre at Mawson Lakes. Mr De Luca asked Mr Barker whether he was prepared to move to Sydney. Mr Barker said that he might when his daughter was older and that he might be prepared to do so in two years’ time. Mr Barker told Mr De Luca that he wanted to be a general manager.
169 Subject to one matter, there is nothing of significance to the issues in this case in the differences between the two versions of the conversation. As to the discussion concerning the relationship between Mr Formichella and Mrs Allen and his conduct thereafter, I accept Mr De Luca’s version. He was the more satisfactory witness.
170 Mr Barker said that it was at about this time that he discovered that Mr Formichella had delegated access to his email to Mrs Allen when he was away. Mr Barker said that this was contrary to standard practice and that he considered it a breach of the trust he was entitled to place in Mr Formichella as his manager.
171 In June 2008, a new team within the CFS Business unit for South Australia and the Northern Territory was created. It was called the “Top Tier” team. The creation of the team came about because a number of portfolios were transferred from the Institutional Banking Business unit (a section that dealt with larger corporate clients than those usually managed by CFS) to CFS. Those portfolios contained clients of high value. Mr Neville Wiles, who was a higher performing executive manager working in regional Victoria, was appointed executive manager of the new “Top Tier” team. In 2008, Mr Wiles participated in the Bank’s accelerated development programme which was designed to train high performing managers. Mr De Luca considered that Mr Wiles was an appropriate replacement for Mr Formichella if the latter chose to leave. The position of executive manager of the Top Tier team was not advertised by the Bank.
172 Mr Wiles, whose evidence I accept, said that he been employed by the Bank for approximately 33 years, and that from August 2008, he was employed as an executive manager in CFS Business unit for South Australia and Northern Territory, managing the “Top Tier” team of clients. He worked with Mr Barker from August 2008 to the latter’s redundancy in March 2009. He said that in mid-2008, Mr De Luca asked him to transfer to the CFS Business unit for South Australia and the Northern Territory and told him that a new position was being created in CFS as portfolios were being moved from the Institutional Banking business unit to CFS. Mr De Luca told him that he wanted someone with the experience and capability to manage more complex ex-Institutional Banking clients, to work with Mr Formichella and to work on some strategic matters within CFS.
173 Mr Wiles met with Mr Barker from time to time. Mr Barker was critical of Mr Formichella’s leadership and he was critical of Mr Formichella, including the fact that, according to Mr Barker, he played favourites. He also said that he thought Mr Formichella and Mrs Albanese had an improper relationship. Mr Barker also expressed concern to Mr Wiles that his job was under threat and that he was not liked.
174 Mr Wiles’ team did not grow as had been planned due to the intervention of the Global Financial Crisis.
175 Mr Barker was disappointed with the appointment of Mr Wiles because he had hoped to be selected for the role. Furthermore, a high performing member of his team was transferred to Mr Wiles’ team. On 30 June 2008, he wrote an email to Mr Formichella expressing his disappointment in relation to those matters. Mr Formichella forwarded a copy of the email to Mr Davis.
176 In early 2008, Mr Barker received a “Needs Improvement” score in a Behaviours Key Performance Indicator (“KPI”) called “Collaboration” in his interim performance review for the six-month period ending 31 December 2007.
177 Mr Barker said that his team performed well for the financial year ended 30 June 2008. It exceeded its revenue target by over $900,000. Mr Barker received a bonus of $65,000, and in his performance review Mr Formichella described him as a great ambassador for the Bank.
178 By contrast, Mrs Allen’s team missed a credit risk management KPI described as “Credit & Compliance (CQR)” or the Credit Quality Review KPI. This was a “gate opener” for a bonus. In other words, the understanding was that a person had to meet it in order to qualify for a bonus. Mr Barker’s evidence was that it had been communicated to the various teams that this KPI was critical in terms of consideration for a bonus. Despite this, Mrs Allen received a bonus and an “Exceeds Expectations” performance rating from Mr Formichella.
179 Mr Formichella explained why that had occurred. He said that, theoretically, a “gate opener” was a precondition to obtaining a performance bonus. However, many employees received a performance bonus despite not achieving a gate opener, and Mrs Allen had received a performance bonus. He referred to the fact that Mrs Allen had drafted a process that could be used to monitor and measure credit management related issues with respect to clients and portfolios. In cross-examination, Mr Barker accepted that even though a “gate-opener” for a bonus was not achieved there may be circumstances in which a bonus was nevertheless paid. In fact, he had received a bonus on an occasion where he had not achieved a “gate-opener”. Similarly, he agreed that there might be circumstances where a “gate opener” was not achieved, but a performance rating of “Exceeds Expectation” was given. I do not attach any particular significance to the fact that Mrs Allen was paid a bonus despite not having achieved a “gate-opener”. The granting of bonuses involves an element of discretion. There are guidelines, but they are not inflexible.
180 There was a good deal of cross-examination, particularly of Mr Formichella, which related more generally to the performance reviews of Mr Barker and Mrs Allen. There was an attempt to draw comparisons between the performance reviews and to show that Mrs Allen had been unduly favoured. Although the performance reviews involve objective measures, they also involve measures which require highly subjective assessments. Mr Formichella plainly had definite views as to appropriate behaviours and the culture he wished to foster within the Bank. He was the manager and subject to acting in good faith, which I think he did, he was entitled to take the approach which he considered appropriate. It was for this reason that I did not find any of this evidence of assistance in resolving the issues in this case.
The segmentation exercise
181 Mr De Luca made the decision to undertake what was referred to in the evidence as the segmentation exercise. His purpose was to undertake a “bench marking exercise of bankers’ portfolios and EM spans of control to ensure greater consistency and drive efficiency”. The steps involved in the process involved a CFS leadership team determining the size of a “standard” portfolio. A calculation would then be performed of the number of “standard” portfolios in each CFS region. South Australia and the Northern Territory was one region. Where a portfolio was less than the “standard”, clients were to be moved to another portfolio and the first-mentioned portfolio collapsed. Mr De Luca was the leader of the segmentation exercise. The above is Mr De Luca’s description of the segmentation exercise and is one which I accept.
182 Mr Formichella also described the segmentation process in terms which I accept. The exercise was carried out over the period from late 2008 to early 2009. It was a nationwide restructure involving the CFS teams within the Bank. The aim of the process was to create uniformity across all CFS teams in terms of portfolio size and reporting structure. A steering committee conducted the segmentation process and the members of the committee were Mr De Luca and the general manager for each CFS region. The work of the committee was to determine what constituted a “standard” portfolio in terms of the number and value of clients that it comprised. Following that determination, it was necessary for a mathematical exercise to be carried out to determine how many standard portfolios were present in each State’s CFS team. In the case of South Australia and the Northern Territory, Mr Formichella delegated this task to Mrs Allen as he was going on leave. He understood that she had previously performed a similar exercise while working in the productivity team at NAB. Mrs Allen was not aware of the context of the exercise Mr Formichella asked her to perform, and, in particular, she was not informed that there may be a restructure. She was given no autonomy to analyse the data she produced.
183 Mrs Allen’s understanding of the segmentation process was that it was a process where the Bank segmented its clients into categories such as corporate, commercial or business. She was involved in the process in December 2008 and January 2009. She had been involved in a similar process at NAB. She was involved over a period of approximately two to three weeks. She said that it was “all about” the “amount” of customers that went into a portfolio to make it qualifying.
184 As far as Mr Barker was concerned, he became aware in or about September 2008 that Mrs Allen had been asked to assist in the completion of a review of all of the client portfolios across the business, including his team, Mr Wiles’ team and her own team. This was part of what he described as the “Middle Management Full Time Equivalents efficiency review” which was followed by the process called the “Segmentation Exercise 08/09”. Mr Barker was not involved in either the review or the segmentation exercise.
185 The decision to make Mr Barker redundant was made by Mr De Luca and Mr Formichella and it is to their evidence that I now turn.
186 Mr De Luca described the segmentation exercise as far as South Australia and the Northern Territory were concerned, and the decision to make Mr Barker redundant. He said that a number of portfolios were collapsed and that the majority of these portfolios were in Mr Barker’s team. The Business Banking Centre at Mawson Lakes had grown since it was established in 2008, and it was decided that the team was large enough to be a team in its own right. A decision was made that it no longer report to Mr Barker, but rather it was to report to Mr Formichella. A decision was made that Mr Barker’s team should be collapsed and the remaining portfolios allocated to Mrs Allen’s team and Mr Wiles’ team. The result of this rearrangement was that one of the executive managers in the South Australia and Northern Territory region needed to be made redundant.
187 In February 2009, Mr De Luca and Mr Formichella decided to make Mr Barker redundant. Mr De Luca agreed that, relative to other States or regions, there were not a large number of clients moving from CFS (81 coming in and 117 moving out). Mr De Luca said that in terms of a redundancy, there were five possibilities at the time, being Mr Barker, Mrs Allen, Mr Wiles, Mr Robert Annis-Brown (executive manager for the Northern Territory) and Mr Greg Morris (area manger in the Mawson Lakes team).
188 Mr Annis-Brown was ruled out because of his geographical location. Mr Greg Morris was ruled out because making him redundant would then mean demoting one of the executive managers to the role of area manager. Mr Wiles was ruled out because he was a high performer and was seen as someone who could progress into more senior management.
189 The choice was one between Mr Barker and Mrs Allen. Mr Barker was chosen for two reasons. First, he was chosen because his team was the team most affected by the segmentation exercise. Secondly, he was chosen because Mrs Allen exhibited better behaviours in managing her team than he did. “Behaviours” was a measurement of the way in which an executive manager managed their team and included features such as the ability to collaborate and to hold a team accountable for its errors. Mr De Luca and Mr Formichella considered that Mrs Allen exhibited better behaviours than Mr Barker. Mr De Luca said that financial performance was not a determinative factor because, in that respect, there was little difference between Mrs Allen and Mr Barker. Mr De Luca said that although Mr Barker was a good performer in his role, he and Mr Formichella did not consider him as good a performer as Mrs Allen.
190 Mr De Luca was taken to the respective performance reviews of Mr Barker and Mrs Allen for the period 1 July 2007 to 30 June 2008. He said that the difference was that the rating for “Behaviours” in Mrs Allen’s case was “Exceeds Expectations”, whereas in Mr Barker’s case it was “Meets Expectations”.
191 Mr Formichella described the segmentation exercise and the decision to make Mr Barker redundant in terms which did not differ materially from the description given by Mr De Luca. I summarise his evidence in the following six paragraphs (that is, [192]-[196]) He said that as a result of the segmentation process, it was decided that a number of portfolios currently in CFS were smaller than the standard size. In early February 2009, Mr De Luca and Mr Formichella decided that some clients could move between portfolios to consolidate the total number of portfolios. At the same time, Mr Formichella decided that the Business Banking Centre at Mawson Lakes should be its own team reporting directly to him. The Mawson Lakes team was led by a senior relationship executive, Mr Greg Morris. Mr Morris had previously reported to Mr Barker.
192 As a result of the dissolution of certain portfolios and the removal of the Mawson Lakes team from Mr Barker’s control, Mr Barker’s team was left with a low number of portfolios. Mr De Luca and Mr Formichella decided that these portfolios could be moved into Mrs Allen’s team or Mr Wiles’ team, leaving Mr Barker with no portfolios in his team. As a consequence, in February 2009, it was decided that Mr Barker’s role was redundant.
193 A number of emails passed between Mr Formichella and Mr De Luca in late January and early February 2009. On 29 January 2009, Mr De Luca sent an email to Mr Formichella with a copy to, among others, Mrs Allen. Mr De Luca’s email stated that Mr Formichella was to find attached “a draft summary of the go Forward SA-NT portfolios and FTE position following work between the teams”. The draft summary for South Australia and the Northern Territory showed four teams and an executive manager heading each team.
194 Mr Formichella wrote to Mr De Luca on 3 February 2009. He said, among other things, the following:
South Australia
I do not propose any changes to SA staff numbers as per your table. The makeup of staff and portfolios within the teams will change and I have attached a copy of new corporate structure for your information and for discussion.
The changes to our current structure are summarised as follows:
Top Tier
Gain 2 portfolios from Team 1 plus establish one new portfolio to take clients from existing overloaded Top Tier portfolios.
Team 2
Gain 2 portfolios from Team 1. 2 Pharmacy portfolios have been taken out. 1 existing portfolio has been collapsed with clients to be distributed amongst remaining portfolios.
Mawson Lakes
Gain 1 portfolio from team 1.
Team 1
1 portfolio collapses, remaining 5 portfolios distributed as above.
Support structure to remain unchanged as per your attached summary.
Impacted Staff
Steve Barker (EM)
…
Remaining decision is who to appoint as the EM for Mawson Lakes. At this point in time I am considering retaining Greg Morris as the Snr Manager and having him report directly through to myself until we find the right candidate.
195 Mr Formichella said that once a decision had been made that Mr Barker’s role was to be made redundant then it was necessary to determine which of the executive managers would be made redundant. Mr Annis-Brown was excluded because of his geographical location and the high standard of performance by the Northern Territory team. Mr Morris was excluded because he occupied a junior role as area manager and to appoint an executive manager to the position of area manager would be a demotion. Mr Wiles was excluded because he was a high performer and he managed a separate team. The decision as to who to make redundant came down to a decision between Mr Barker and Mrs Allen. Mr De Luca and Mr Formichella made this decision in mid February 2009. The significant factors favouring Mrs Allen over Mr Barker were as follows. First, the segmentation process had a greater impact on Mr Barker’s team than on Mrs Allen’s team. To make Mr Barker redundant would have less impact on the business in that fewer relationship executives, and by extension their clients, would have a new executive manager. Secondly, Mrs Allen exhibited better behaviours than Mr Barker in that she was consistently ranked as “Meets Expectations” or “Exceeds Expectations” in her performance reviews, whereas, Mr Barker was consistently ranked “Needs Improvement” or “Meets Expectations”. There was not much difference in the financial performance of the respective teams of Mr Barker and Mrs Allen. Thirdly, Mr De Luca and Mr Formichella formed the view that Mrs Allen had greater potential to develop as a manager and in time take on more senior leadership positions. Mr Barker, in their view, would not progress any further within the Bank’s management structure “especially in light of the standard of his behaviours”.
196 Mr De Luca and Mr Formichella decided that Mr Barker would be made redundant because, although he was a good performer, on merit he was not as good a performer as Mrs Allen and did not have the same potential for future advancement.
197 I accept the evidence of Mr De Luca and Mr Formichella as to their respective reasons for deciding that Mr Barker should be made redundant. In other words, I accept the reasons they identified in their evidence were the reasons in their respective minds at the time they decided that Mr Barker should be made redundant.
198 Before leaving this section I note that Mrs Allen said that in March 2009, there were four executive managers in the CFS section for South Australia and the Northern Territory, three of whom operated out of Adelaide and one out of the Northern Territory. She said, and I accept, that she learned that one of the Adelaide positions was made redundant at the same time she learned that Mr Barker was to leave the Bank.
The meeting on 2 March 2009
199 At a meeting at the Bank’s offices on 2 March 2009, Mr Barker was told that his position had been made redundant. Present at the meeting were Mr Barker, Mr Formichella and Mr Davis. Mr Barker was told certain things and given certain documents. There were some differences in the various accounts of the meeting given by the witnesses. However, having regard to the issues in the case, the differences are not of great significance.
200 Mr Barker said that on 2 March 2009 at about 11.00 am, Mr Formichella’s executive assistant (Ms Pashley) contacted him and asked him if he could meet Mr Formichella in the boardroom on level 1 of the Bank’s premises. Mr Barker was met by Mr Formichella and Mr Davis. Mr Andrewartha was in an adjoining office. Mr Andrewartha is an outplacement consultant and chairman of Audrey Page and Associates. That firm was engaged by the Bank to provide a Career Transition Support Program to Mr Barker. The stated purpose of the programme was to facilitate Mr Barker’s transition back into the workforce and into a role which was in line with a career plan.
201 Mr Barker said to Messrs Formichella and Davis that it looked like he needed a lawyer. Mr Davis said that he could get one if he wanted. Mr Formichella and Mr Davis could not recall Mr Barker making that comment. I do not think there is any reason Mr Barker would fabricate his evidence on this point as it does not bear on any of the issues in the case. I accept Mr Barker’s evidence that he made the comment and Mr Davis responded as he indicated.
202 Mr Barker was given the following documents at the meeting:
(1) Letter from the Bank to him dated 2 March 2009;
(2) The Bank’s Retrenchment Assistance Kit dated July 2008 (Version 7);
(3) A PowerPoint presentation entitled “Career Support Presentation”; and
(4) A document entitled “Indicative Retrenchment Figures. The figures in this document were calculated on the assumption of an exit date of 20 March 2009.
203 In its letter, the Bank advised Mr Barker that it had undertaken a review of the CFS business and that Mr Barker was aware of that fact. The Bank referred to the moving of certain portfolios and changes to the structure of CFS which were necessary. The Bank said that, as a result, Mr Barker had not been allocated to a position within the CFS structure. The Bank continued as follows:
The direct impact of this is that your current position Regional Executive is to be made redundant. This will be effective as at COB today.
It is the Bank’s preference to redeploy you to a suitable position within the Bank and we will explore, in consultation with you, appropriate options. At your discretion, I can have Helen Breccia or one of her team from Career Support contact you shortly to outline their services. I would also encourage you to take proactive steps in seeking redeployment, by using your internal network and applying for suitable vacant positions that are advertised.
We will begin the redeployment process from today and will continually review options. If we are unable to identify a suitable position for you and the decision is made to retrench you, you will be paid redundancy entitlements in accordance with your current employment contract.
In the event you are retrenched we will support you through this change by providing career transition support with one of our preferred outplacement providers – Audrey Page.
Should you have any questions in relation to the process please do not hesitate to talk a [sic] representative from the B&PB (CFS) Human Resources team, Glen Davis on 02-8292-4234, Diane Rosser on 02-8292-4236 or Filippo Ragusa on 02-8292-4235.
204 The Retrenchment Assistance Kit dealt with a number of matters. The “List of Attachments” sufficiently identifies the matters:
A. What to do next?
B. The Retrenchment Package Explained and ETP Pre-Payment Statement
C. Career Transition Assistance and Request Form
D. Request for Information
E. Retired Officers Association Information sheet.
205 The Career Support Presentation document identifies Ms Helen Breccia as the manager of career support. It is convenient to set out the terms of the presentation in full:
Overview
• Career Support makes contact shortly following employee notification and conducts phone meeting (or arranges suitable time). Phone meeting covers off redeployment process and candidate preferences.
• Introductory email forwarded to candidate containing links to Redeployment Campaign, Redeployment Policy and Career Planning Services.
• Contact relevant Team Leader/Manager to complete internal reference checks, then upload strong references onto candidate file in Page Up.
• Candidates register on Redeployment Campaign, enabling Career Support to capture skills and monitor job applications.
• Candidates to attend Resume and Interview Skills Workshops.
• Career Support to provide progress reports to BU HR about outcomes of initial contact, feedback from candidates and probability of redeployment outcome.
• Career Support to reverse market candidates to Recruitment Consultants and other BU, contact internal networks.
Career Support
Career Support provides the following services to assist employees:
• Redeployment Services: 1:1 Intensive support
Redeployment campaign
Complete reference checks
Recruitment of Staff for project roles
• Career Planning Services: Strategies to assist you in identifying your next role
Resume Workshops
Interview techniques
206 As I have said, the indicative retrenchment figures were calculated on the assumption of an exit date of 20 March 2009.
207 Mr Barker said that during the meeting Mr Formichella said that the Bank was implementing a new business model and that there were to be many changes. He told Mr Barker that the Bank did not see him as part of the business structure going forward. Mr Formichella said that what he said to Mr Barker was that the latter’s role was not seen as part of the business going forward. Mr Barker’s version is supported by the statement in his solicitor’s letter the following day (see [216] below). On the other hand, it is inconsistent with the Bank’s statement that its preference was to redeploy Mr Barker. I find that even if Mr Barker’s evidence is correct on this point, the comment was made in a context where it was made perfectly clear that the Bank’s preference was to redeploy Mr Barker.
208 Mr Formichella told Mr Barker that the Bank’s decision was not related to Mr Barker’s performance. Mr Davis told Mr Barker to work out the day, clear his desk, hand in his keys and mobile telephone and go. I find that Mr Davis told Mr Barker that he would be on paid leave during the redeployment period. Mr Formichella and Mr Davis told Mr Barker that the Bank’s preference was to redeploy him.
209 Mr Formichella said that Mr Davis told Mr Barker that failing redeployment, Mr Barker’s termination date would be 2 April 2009. In cross-examination, Mr Barker agreed that Mr Davis had said something along those lines, although he could not remember whether the date mentioned was 30 March or 2 April 2009. Mr Barker submitted that I should find that a termination date was not mentioned by Mr Davis or Mr Formichella on 2 March 2009. It was contended that Mr Formichella’s evidence-in-chief, to the effect that Mr Davis mentioned a termination date of 2 April 2009, was qualified by him in cross-examination. I do not think that that is the case. In cross-examination, Mr Formichella was being asked about a different, albeit related, matter, namely whether Mr Barker was given four weeks’ notice. Furthermore, as I have said, Mr Barker accepted that a date was mentioned at the meeting on 2 March 2009 although he could not remember whether it was 30 March or 2 April 2009.
210 There was evidence from Mr Davis that in the course of his discussion about redeployment he said something to Mr Barker along the lines of that the onus was as much on him (that is, Mr Barker) as it was on the Bank. Mr Barker said that he was not able to recall that “specifically”. I find that something along those lines was said. Although Mr Davis’s evidence of the meeting was largely based on his practice, the making of such a statement is consistent with statements in the Bank’s letter handed to Mr Barker at the meeting.
211 Immediately after the meeting, Mr Barker was directed to Mr Andrewartha. Mr Andrewartha handed Mr Barker another letter also dated 2 March 2009 and had a brief discussion with him. Mr Andrewartha told Mr Barker that he had been engaged by the Bank to support him through the redundancy process and into his next career. He said nothing about redeployment.
212 Mr Barker was told that he could keep his vehicle for another two weeks. He handed in his mobile telephone (but retained the SIM card), swipe card to the building and the keys to his filing cabinets. He removed all of his personal effects. He did not return to work the following day. The Bank terminated Mr Barker’s access to its intranet and email facilities.
213 Mr Davis said, and I accept, that it was a not uncommon practice (not common, but also not uncommon) to place an employee on paid leave and to terminate his or her access to the Bank’s intranet and email facilities. That was done to protect the Bank from disparaging comments to clients by employees who had been notified that their role had become redundant. Mr Davis agreed that the Bank’s letter dated 2 March 2009 did not constitute four weeks’ notice of termination within the terms of Mr Barker’s written contract of employment.
The events between the meeting on 2 March 2009 and 9 April 2009
214 The period dealt with in this section of my reasons is the period between the meeting on 2 March 2009 and 9 April 2009. I must first explain the significance of 9 April 2009.
215 On 9 April 2009, the Bank wrote to Mr Barker advising him that his employment “will be terminated by reason of redundancy effective from the close of business today”. He was advised that his retrenchment payments totalled $182,092.16. Somewhat curiously, Mr Barker received his termination payments into his account on 6 April 2009. An email from a Mr Philip Prosper of the Bank dated 7 April 2009 makes it clear that Mr Barker’s retrenchment payments were calculated on the basis that he had received four weeks’ notice of termination of his employment and that he received “one extra week’s notice due to your being over the age of 45”.
216 Mr Barker instructed a solicitor, a Ms Julia Adlem of Adelaide Legal, very shortly after the meeting held on 2 March 2009. She wrote to the Bank on Mr Barker’s behalf by letter dated 3 March 2009. The letter was addressed to Mr Formichella at the Bank. It seems that it was not provided to Mr Davis, Ms Breccia or Mr De Luca. In her letter Ms Adlem claimed that her client had been told that he “was not seen as part of the structure going forward”. Ms Adlem asked for the documents relevant to the selection of her client to lose his position when two executive manager positions remained. Ms Adlem said that she noted the Bank’s preference to redeploy Mr Barker to a suitable position within the Bank. Ms Adlem said that, in the event that her client was not redeployed within the Bank, her client’s entitlements exceeded the indicative retrenchment figures set out in the document given to him.
217 Ms Helen Breccia, manager of Career Support section at the Bank, sent an email to Mr Barker’s bank email address on 5 March 2009. Mr Barker no longer had access to that email address. Ms Breccia said in her email that she had tried to telephone Mr Barker, but had been unable to contact him. She asked Mr Barker to contact her.
218 The Bank was able to contact Mr Barker at his home or personal email address. Ms Pashley sent him an email at his personal email address about the return of the SIM card he had kept. Mr Davis did likewise on 7 March 2009, when he sent Mr Barker an email in the following terms:
Further to our discussion could you please have the mobile and sim card returned to Fiona by early next week. Please feel free to call if you require any additional assistance.
219 On 6 March 2009, Ms Amelia Peters, a solicitor employed by the Bank, wrote an email on the Bank’s behalf to Ms Adlem. She said that Ms Adlem’s letter to Mr Formichella of the Bank had been passed on to her, and that she would provide a formal response shortly. Ms Adlem acknowledged receipt of Ms Peters’ email on 10 March 2009.
220 On 11 March 2009, Ms Adlem wrote to the Bank returning, among other things, various SIM cards. Mr Barker was paid his normal salary on 11 March 2009.
221 On the same date, Ms Peters, wrote to Ms Adlem on behalf of the Bank. Ms Peters said that Mr Barker’s request for documents was refused “because these documents are confidential”. Ms Peters referred to the notice period referred to in clause 8 of the Employment Agreement and then said:
As such, your client is not entitled to ‘reasonable notice’ in the event that he is unable to be redeployed to a suitable position within the Bank.
222 Mr Barker met Mr Andrewartha on 18 March 2009 and from time to time thereafter. He last saw Mr Andrewartha in early 2010. Mr Andrewartha never spoke to Mr Barker about redeployment.
223 On 23 March 2009, or shortly thereafter, Mr Barker received an email from Mr Davis which was in the following terms:
Hi Steve,
As indicated in your signed notification letter, ‘it is the Bank’s preference to redeploy you to a suitable position within the Bank’, however if we are unable to identify a suitable position for you and the decision is made to retrench you, than [sic] your effective exit date will be 30/3/2009. Your final payment will be processed in the next fortnightly payment date post your exit.
In the interim I encourage you to take proactive steps, in consultation with Helen Breccia in the Career Support team and your respective manager, in seeking redeployment opportunities.
Please feel free to raise any issues with either Helen Breccia and/or your manager during the redeployment period.
King [sic] regards,
Glen
224 Mr Davis had tried to send this to Mr Barker’s business email address at the Bank on Friday 20 March 2009. On Monday 23 March 2009, Mr Davis was advised by Mr Formichella’s executive assistant (Ms Pashley) that Mr Barker no longer had access to his email and asked if he wanted it sent to “Legal or his home email”. Mr Davis responded to Ms Pashley’s email by asking her to send his email to Mr Barker at his home email address.
225 A submission was made on Mr Barker’s behalf that he did not receive Mr Davis’s email dated 20 March 2009. That is contrary to Mr Barker’s evidence in his first written statement which evidence I accept. Mr Barker was advised on 23 March 2009, or shortly thereafter, that his effective exit date was 30 March 2009.
226 Mr Barker received his normal salary on 25 March 2009.
227 By letter dated 26 March 2009, Ms Adlem on Mr Barker’s behalf wrote to Ms Peters responding to Ms Peters’ letter dated 11 March 2009. In the letter Ms Adlem claimed that there had been impropriety in the process whereby Mr Barker was selected for redundancy. Ms Adlem said that absent satisfactory resolution of the matter she had instructions to issue proceedings within 14 days.
228 On 26 March 2009, Mr Barker received an email from Ms Breccia at his personal email address. The email was in the following terms:
Hi Steve,
I have been attempting to contact you for some weeks now regarding offering redeployment support.
Unfortunately I have been unable to reach you by phone or your business email address.
I apologise for not speaking to you personally – but hope this will reach you as I wanted to offer you the opportunity to apply for a role that may be of interest and would possibly suit your skill set (not having spoken to you or received your CV I am unable to determine this).
Please find following the PD and tomorrow’s circular – where you will see the reference to the role.
If you are interested in applying for this or any other role in the circular please advise and email me your CV so that I can onforward to the relevant recruiter.
I have also included an email which provides more information about the service I/my team provides.
If you have any questions or I can be of any assistance please contact me.
Acknowledgement of your receipt of this email would be much appreciated.
Regards,
Helen
229 A document entitled “Position Description” for the role of “Executive Manager – Service Excellence” and a Career Circular with an issue date of 27 March 2009 were attached to Ms Breccia’s email.
230 Mr Barker forwarded the email to Ms Adlem and instructed her to respond to Ms Breccia “regarding redeployment”.
231 On 30 March 2009 Ms Adlem, on Mr Barker’s behalf, sent an email to Ms Breccia referring to her email of 26 March 2009 and asking Ms Breccia to contact her. Ms Breccia sent an email to Ms Adlem on 31 March 2009 referring to her (Ms Breccia’s) voicemail and advising her of a time at which she was available. She also sent “this week’s job circular” to Ms Adlem. That was a Career Circular with an issue date of 20 March 2009.
232 Ms Adlem, on behalf of Mr Barker, spoke to Ms Breccia on 31 March 2009. The latter advised Ms Adlem that she had tried to contact Mr Barker on his business mobile telephone number and business email address for several weeks, leaving messages for him on voicemail and email. She said that Mr Barker had not responded. In response, Ms Adlem expressed surprise that Ms Breccia did not seem to be aware that Mr Barker had not had access to his business voicemail or email since 2 March 2009 as the Bank had required him to return his mobile telephone and SIM cards and had terminated access to his business email. Ms Adlem asked questions about the Bank’s redeployment policy and the role of interest referred to in Ms Breccia’s email of 26 March 2009, however, she was not able to elicit any information. Ms Breccia told Ms Adlem that there would be a separate facilitator for redeployment. She said that she was not involved with redeployment or retrenchment processes and she suggested that Ms Adlem refer the query back to the “business unit”. Ms Breccia told Ms Adlem that if Mr Barker was interested in any roles in the “weekly circular” then to let her know.
233 On 2 April 2009, Mr Formichella sent an email to Mr Barker at his home or personal email address attaching a copy of Mr Barker’s performance review to 31 December 2008. On 6 April 2009, Mr Barker sent an email to Ms Adlem where he set out what he considered was wrong with the performance review.
234 As I have said, Mr Barker received an amount for his entitlements ($182,092.16) on 6 April 2009. The usual pay day was a Wednesday and the next fortnightly payment was due on 8 April 2009.
235 I have also already referred to Mr Prosper’s email dated 7 April 2009. On the same date, Ms Peters wrote to Ms Adlem advising her that Mr Barker’s exit date had been extended to 9 April 2009 “to give him every chance to participate in the redeployment process”.
236 I have already referred to the Bank’s letter to Mr Barker dated 9 April 2009. Mr Barker returned his vehicle on that day. He did not receive what is called a Short Term Incentive bonus either when paid out in April 2009 or in September 2009 when bonuses were usually paid.
237 Mr Barker believes that he would have been well-suited to the Service Excellence role referred to in Ms Breccia’s email of 26 March 2009. The first time he became aware of the position was on that date. The role, or the possibility of retraining him for the role, was never discussed with him. Nor was the possibility of Mr Barker becoming the executive manager in charge of the Mawson Lakes team ever discussed with him.
238 The above are my findings concerning the events between 2 March 2009 and 9 April 2009 in so far as they involved contact between Mr Barker or his solicitor on the one hand and the Bank on the other. I turn now to consider the conduct of various Bank employees during this period.
239 Ms Breccia gave evidence of her involvement in the redeployment process with respect to Mr Barker. Between mid-2005 and February 2010, she was employed by the Bank as the manager of the Career Support Section. That section was responsible for assisting employees who had been made redundant to find alternative roles within the Bank. Her duties involved liaising with redundant employees and assisting them in finding an alternative position.
240 Ms Breccia said that she was responsible for Mr Barker’s redeployment process, together with the Human Resources section and Mr Barker’s managers. Her function was to facilitate Mr Barker’s access to job opportunities within the Bank by distributing career circulars and being a line of communication between Mr Barker and recruitment staff. She could not remember Mr Barker’s case. However, she followed a standard procedure.
241 The Human Resources manager in the case of Mr Barker was Mr Glen Davis who was executive manager of strategic human resources. The standard practice was to contact redundant employees through their professional contact details, not their personal contact details. It was Mr Davis’s responsibility to advise Ms Breccia if an employee no longer had access to their professional contact details.
242 Ms Breccia tried to contact Mr Barker by telephone on 5 March 2009 and then later by email. Those attempts were unsuccessful. Her standard practice would have been to attempt to contact Mr Barker over the following days.
243 On 23 March 2009, Mr Davis sent an email to Ms Breccia asking her to contact Mr Barker to ensure that he was aware of a service excellence position that was going to be advertised. That would give Mr Barker the opportunity to apply for the position.
244 On or around 23 March 2009, Mr Davis, in consultation with Mr De Luca or Mr Formichella, decided to extend Mr Barker’s exit date from the Bank and the closing date for applications for the service excellence position advertised at the time in order to allow Mr Barker additional time to seek an alternative role within the Bank.
245 On 24 March 2009, Ms Breccia was given Mr Barker’s personal mobile telephone number and she attempted to contact Mr Barker on that number. Mr Barker did not answer. There were “incoming call restrictions”. It seems that the number was Mr Barker’s telephone number for the mobile telephone provided to him by the Bank.
246 On the same day that Ms Breccia sent an email to Mr Barker informing him of a position as Executive Manager – Service Excellence and attaching a careers circular giving details of the position (that is, 26 March 2009), Ms Breccia received an email from Mr Davis advising, among other things, that the Bank was extending Mr Barker’s “redeployment final date” to 9 April 2009. Also on that day, Ms Breccia received an application for the service excellence position from Mr Ross Bottomley. Mr Bottomley was a Bank employee who had been made redundant in early 2009. Ms Breccia provided Mr Bottomley’s application to Ms Jade Baines so that he could be considered for the position.
247 On 31 March 2009 Ms Breccia tried to contact Ms Adlem by telephone. Ms Adlem did not answer her telephone so Ms Breccia left a message. She sent an email to Ms Adlem attaching the careers circular she had sent to Mr Barker. Later on 31 March 2009 Ms Breccia received a voice mail message from Ms Adlem asking for a copy of the Bank’s redeployment policy. Ms Breccia informed Mr Davis of this request and he in turn sent an email to Ms Breccia asking her if she could confirm that Mr Barker was aware that his exit date had been extended. She could not confirm that because she had not spoken to Mr Barker. At some stage during the afternoon of 31 March 2009 Ms Breccia spoke to Ms Adlem. Ms Breccia did not contradict Ms Adlem’s evidence of that conversation (paragraph [232] above).
248 Ms Breccia did not speak to Mr Barker at any time during the redeployment period. She never received a curriculum vitae or application for a position from him.
249 In cross-examination, Ms Breccia agreed that she had tried to contact Mr Barker at the Bank. Most redundant employees were still at their workplace during the redundancy period. That was the case “in the majority of cases”. On 27 March 2009, Ms Breccia sent an email to Mr Davis in which she attached the results of her check of the recruitment system for outstanding opportunities. The note for Mr Barker read that he had an “Effective Date” (meaning scheduled retrenchment date) of 30 March 2009, and contained comments “Nil contact from Steve to date – HB [Helen Breccia] em [emailed] Service Excellence opportunity to his personal em ad [email address].
250 It seems that, in terms of whether Ms Breccia tried to contact Mr Barker on 5 and 24 March 2009, Ms Breccia was not able to take it any further than to say that her standard practice would have involved her trying to make contact with him.
251 Mr Formichella had no involvement with Mr Barker during the redeployment period. He did have a conversation with Mr Barker’s ex-boss, Mr Peter Mullins, who was then heading up Institutional Banking, about a possible position for Mr Barker. Other than that, he took no steps with a view to seeing if Mr Barker could be redeployed.
252 Mr Davis said that, from his perspective, the process of possible redeployment in Mr Barker’s case was difficult because he, Mr Barker, did not engage in the process. He agreed that the Bank made mistakes in the course of the process. Mr Davis described his involvement as follows. First, immediately after the meeting on 2 March 2009, he provided Mr Barker’s work contact details to the Career Support section of the Bank. Secondly, on 7 March 2009, he sent an email to Mr Barker’s personal email address. Thirdly, he tried to send an email to Mr Barker’s business email address on 20 March 2009. He agreed that this was a mistake. Fourthly, on 23 March 2009, he sent two important emails, one to Ms Brigid Gibson (his manager) and the other to Ms Farrell (now Baines) and Ms Breccia.
The Sales Excellence roles for Brisbane, Adelaide/Perth and Melbourne have been put on hold as the business finalises their segmentation issues, however Corporate NSW/ACT have already commenced their advertising internally.
The roles for Corporate QLD, Corporate Vic/Tas and Corporate SA/NT and WA will commence next week with advertising internally. I am aware that an external candidate has been spoken to, however only in respect to an informal coffee side chat. All of these roles will report directly through to Sinead in CFS Strategy with a dotted line to the respective GMs.
As you are aware the issues we have is that three EMs have been displaced as a result of the recent segmentation exercise in SA, QLD and Vic. In Corp QLD we may have a hopeful win-win as Mark Toon is looking to discuss the role with Patrick Bell (current EM), all going well if Pat accepts we will have the option of moving David Laing-Short (EM displaced) into the role vacated by Pat, hence saving one staff member. However we will also advertise internally conscious of obligations.
In Corp Vic/Tas Ross Bottomly will likely apply for the EM Sales Excellence role in Vic/Tas and Steve Barker may apply for the Sales Excellence role for Corp SA/NT and WA. The feedback is that given what Rob is seeking for these roles it is unlikely that they will be successful based on merit (talent, skills, abilities and experience), however at least we are being clear and transparent and providing the option to apply.
In essence no one will be appointed until we go through the internal process as per the Appointment to Roles Policy and also any decision making is based on policy guidelines, namely that any external candidate must be demonstrably superior.
Please let me know if this is all OK, if not happy to amend/discuss as required.
…
Hi Jade
Can we start the internal advertising for these remaining EM Sales Excellence roles. Do you have a P/D for these roles that you can give Helen.
Helen can you please avail both Ross Bottomley and Steve Barker that these roles are going up on the internal circular next week. I believe that Ross has already applied for the NSW role.
253 Mr Davis’s understanding was that the skills required for the service excellence position were skills in sales coaching, that is, Cohen-Brown type skills set. His understanding was that Mr Michael van Lierop, who ultimately secured the position in Adelaide, had skills in that area.
254 It is necessary to identify the history with respect to the service excellence positions.
255 In early 2009, Mr De Luca decided that in each CFS region a person would be employed to fill what was called a service excellence position. The idea behind that position was that the person who filled the position would develop the skills of the staff of the Bank so that they could provide a better standard of customer service. The person in such a position was to train the staff in accordance with a particular methodology, known as the Cohen-Brown Management Group methodology.
256 Mr De Luca had in mind people who had experience in teaching that methodology. Such experience was not mandatory, but it was his preference. Mr De Luca knew that Mr Barker did not have that experience. From his period of employment at NAB, he knew that Mr Michael van Lierop did have that experience. He was aware that, before being recruited to the Bank, Mr van Lierop had been employed in a role at the Westpac Banking Corporation in which he was required to train employees. He had identified Mr van Lierop as a potential candidate for the position in the region for South Australia and the Northern Territory as early as 4 March 2009. Ms Sinead Taylor, general manager strategy and channel management, was responsible for the appointment.
257 A series of emails which had been “cut and pasted” into one document supports the following findings. Mr De Luca gave the “go-ahead” for the appointment of four positions of executive manager, service excellence on 4 March 2009, with a note in relation to “SA/NT and WA” as follows: “potentially Michael van Lierop”. A decision was made by somebody within the Bank to put the service excellence position or positions on hold from 9 March to 26 March 2009. Ms Baines (referred to below) made inquiries as to whether any of the executive managers in the redeployment pool would be suitable for the position. On 9 March 2009, Mr Formichella responded by saying he did not consider Mr Barker would be appropriate for the service excellence role, and that he and Sinead Taylor had already met with Mr van Lierop who would be an “ideal candidate” for the role.
258 Prior to 9 March 2009, Mr Formichella was contacted by telephone by Ms Taylor and she asked him to meet with her and Mr van Lierop. Mr Formichella was not the final decision-maker in relation to the position. As I have said, that was the responsibility of Ms Taylor.
259 Mr Formichella said, and I accept, that his understanding was that in March 2009, all CFS teams were seeking to recruit a person to fill a service excellence role. The purpose of the role was to train employees to provide the best quality client service and would involve an adjustment to staff behaviours in terms of client service. Mr Formichella’s understanding was that the training was to be in accordance with methodology used by the Cohen Brown Management Group.
260 Mr Formichella was involved in correspondence concerning the service excellence position for South Australia and the Northern Territory. As I have said, on 9 March 2009, he sent an email to Ms Jade Baines saying that he did not consider Mr Barker would be appropriate for the service excellence role. He and Ms Sinead Taylor had already met with Mr van Lierop who he considered would be an ideal candidate for the role.
261 Mr Formichella did not think Mr Barker was suited to the role because he had demonstrated during his employment with CFS that he was not effective in changing staff behaviours. He had not trained his team adequately in relation to the CCL program by the time Mr Formichella first started at the Bank and, in addition, Mr Barker had never been employed in a role where the focus was on training employees in relation to client service. By contrast, Mr van Lierop had worked at three banks in a role similar to the service excellence position, and in all of these jobs he had been responsible for rolling out the Cohen Brown methodology in each organisation.
262 Ms Baines gave evidence concerning the service excellence position. Ms Baines was a recruitment consultant for the CFS Business unit from March 2007 to September 2009. Her duties involved assisting CFS by facilitating the recruitment process. She would arrange for the position to be advertised, collate the applications and assist the decision-maker in the recruitment process.
263 On 4 March 2009, Ms Baines was informed that the Bank would hire an employee in each region of CFS in a position to be called “Service Excellence”. The role of a person in that position was to address customer satisfaction by training employees to improve their customer service skills. Her understanding was that the decision-makers for such positions were Mr De Luca and Ms Sinead Taylor, who was CFS general manager responsible for customer service nationwide. Mr van Lierop was identified as a potential candidate for SA/NT and WA. The positions were to be at the level of executive manager.
264 Ms Baines referred to Mr Formichella’s email dated 9 March 2009. She said that the Human Resources section of the Bank put recruitment for service excellence positions on hold from 9 March to 26 March 2009 to enable managers to consider whether employees made redundant during the CFS restructure were appropriate for the service excellence roles. The service excellence position was advertised by career circular dated 26 March 2009. This was placed on both the Bank’s intranet and the internet. None of the applications for the SA/NT/WA role were appropriate, and on 8 April 2009, Ms Taylor sent an email to Ms Baines asking her how quickly they could get an offer out to Mr van Lierop.
265 At no time did Ms Baines communicate with Mr Barker.
Events after 9 April 2009
266 As I have said, Mr Barker was not paid a STI bonus for the financial year ended 30 June 2009. By letter dated 7 September 2009, he was advised by the Bank that his STI for that year was nil.
267 Mr Barker gave evidence of the efforts he has made to obtain alternate employment and to mitigate the loss he has incurred since leaving the Bank. His evidence was detailed but it is not necessary to set it out in full. A summary of his evidence is as follows.
268 First, between mid-2009 and the time he made his witness statement in late 2011, Mr Barker met with a number of bank managers and executives from most of the major banks operating within South Australia, including ANZ, BankSA, NAB, Macquarie and Elders. These meetings were directed towards discussing Mr Barker’s suitability for any existing or future roles as they arose.
269 Secondly, Mr Barker has spoken with many “non-banking” executives concerning the availability of consulting work with certain clients, including executives from Ernst&Young, Hender Consulting, The Executive Connection and the IPMG Group. Mr Barker’s chances of successfully transferring from the banking to the industry sector seemed to be a point of discussion and concern at many of these meetings. However, Mr Barker has also approached and met with several of his former clients about the possibility of undertaking some consulting work for their companies. In particular, he has made considerable efforts in following up a consulting proposal for commission-based sales work with H&S Vision Group, a former client based in Cairns. Significantly, he has been successful in obtaining some non-ongoing consulting work, with companies JPE, Gasparin Group, Valdarno Pty Ltd and James Becker & Co., the latter continuing at the time Mr Barker completed his witness statement. Further, he has taken steps to join a private consulting practice, Private Client Services Australia Pty Ltd, from which he has received some paid consulting work.
270 Thirdly, Mr Barker has met with at least six banking recruitment companies, including Robert Walters, Morton Phillips and Stillwell Recruitment. He has been asked by some of these recruiters to apply for positions as they arose from time to time. However none of these applications have been successful. In particular, Mr Barker has applied for, but not obtained, several managerial roles with major banks, including, but not limited to, an area manager business role at ANZ and state manager positions at Macquarie, HSBC and NAB.
271 Finally, Mr Barker has been active in applying for “non-banking” positions, advertised through external job advertisement companies, such as Seek. These positions have included a position on the board of the Royal District Nursing Society, a Human Resources Business position and a Regional Managerial role. At this stage he has been unsuccessful in securing a position.
272 The Bank submitted that Mr Barker had not made reasonable efforts to mitigate any loss or damage he may have suffered. In particular, it submitted that Mr Barker has applied only for senior managerial roles, and not any positions more junior to the position he held at the Bank.
273 In my opinion, having regard to the evidence, Mr Barker has made reasonable efforts to obtain alternate employment and to mitigate his loss. He has applied for several positions, both in banking and business more generally, met with various recruiters and has taken significant steps to seek out consulting work.
The Contract Case
Introduction
274 As I said at the beginning of these reasons, Mr Barker’s contract case is put in the alternative. His primary case is that the policies as issued from time to time, became terms of his contract of employment, and that the Bank acted in breach of those policies. This breach is said to have occurred, first, on the basis that his selection for redundancy was contrary to the Bank’s policies. In addition, or in the alternative, it is submitted that the Bank failed to comply with its own policy with respect to the possible redeployment of Mr Barker within the Bank.
275 Mr Barker submitted that the Bank repudiated his contract of employment on 2 March 2009 by purporting to terminate it. He referred to the events of that day and, in particular, the fact that he was asked to clear out his desk by the end of the day, return various items associated with his employment and denied access to the Bank’s intranet and email facilities. This submission was advanced in support of a contention that any steps taken by the Bank after 2 March 2009 were not taken with a view to redeployment, but were negotiations with a view to a new contract of employment. I reject this submission because the Bank’s letter dated 2 March 2009 is to the contrary in that it refers to the Bank’s preference to redeploy Mr Barker and to the possibility of a decision in the future to retrench him. In addition, Mr Davis told Mr Barker at the meeting on 2 March 2009 that it was the Bank’s preference that it redeploy him.
276 Mr Barker pleaded in the alternative that his contract of employment was terminated on 6 April or 9 April 2009. I think the Bank repudiated Mr Barker’s contract of employment on 9 April 2009 when it purported to terminate his contract other than in accordance with its provisions (that is, by giving notice or payment in lieu). Mr Barker accepted the Bank’s repudiation.
277 Mr Barker’s alternative case is that the Bank’s purported termination of his contract of employment without giving him four weeks’ notice of termination meant that he was deprived of the opportunity of being redeployed within the 28-day period of notice.
278 It is convenient at this point to state my conclusions with respect to Mr Barker’s alternative case. If there was a legal obligation on the Bank to consider and take steps directed to the redeployment of Mr Barker then it is a process that is engaged in between redundancy and notice of termination or payment in lieu. In other words, once notice of termination is given, then termination follows. No doubt the notice of termination could be withdrawn, but it conforms with the Redeployment Policy of the Bank and contracts of employment like that of Mr Barker that the redeployment process is engaged in before a notice of termination is given. The significance of this conclusion is that if the Bank’s only breach in this case was the failure to give four weeks’ written notice of termination to Mr Barker, then his only loss is four weeks’ pay.
279 As I have said, I think the Bank did act in breach of Mr Barker’s contract of employment on 9 April 2009, in that it purported to terminate the contract on that day other than in accordance with the provisions of the contract. It had not previously given four weeks’ notice of termination despite Mr Prosper’s assertion in his email of 7 April 2009. The Bank’s letter dated 2 March 2009 was not a notice of termination and what was said at the meeting cannot be a written notice of termination within clause 6 of the written contract of employment.
280 One other matter should be noted at this stage. If Mr Barker’s primary case succeeds and he is entitled to damages for loss of employment, or for the loss of a chance of employment, then I do not think that he can, in addition to such damages, recover four weeks’ pay. It seems to me that to allow such recovery would be inconsistent with the basis upon which damages on the primary case would be awarded.
The Bank’s policies
281 I turn to consider Mr Barker’s contract case based on the argument that policies issued by the Bank from time to time were terms of his contract of employment and were breached by the Bank.
282 The Bank policies which Mr Barker referred to in his pleadings were as follows:
1. “Redundancy, Redeployment, Retrenchment and Outplacement Policy” (“Redeployment Policy”);
2. Statement of Professional Practice incorporating in particular the Bank’s Equal Employment Opportunity policy (Appendix C to the Booklet, page 22) (“EEO Policy”);
3. Policies entitled Fair Treatment Review, Performance Feedback and Review, Performance Management – continuous improvement, and Framework for an Effective Development Plan (“personal management policies”); and
4. Policies entitled Design of role and Appointment to Roles policy (“role creation policies”).
283 The Bank tendered its policies contained in what was called the “HR Reference Manual” and bearing a date of Wednesday 14 July 2004. That document contains a heading of “Scope and Purpose of the Manual”, “Introduction”, and in that section the following statement appears:
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 an employee’s contract of employment.
284 Mr Barker tendered a number of the Bank’s policies. It is common ground that the policies were amended or varied from time to time. The Redeployment Policy tendered by Mr Barker contains a statement that it was last updated on 22 August 2008. It was not suggested by either party that any amendments or variations to the policies between July 2004 and April 2009 were relevant in terms of the issues in this case.
285 Ms Sciamanna gave evidence about the Bank’s policies and where they were kept over the years. I accept her evidence.
286 Ms Sciamanna is employed by the Bank as Manager, Workplace Policy. She began her employment with the Bank in November 1985 and she has worked predominantly in what she described as human resources roles since that time. She is familiar with Human Resources policies, standards and guidelines (“HR Policies”) and how they have been kept or stored over the years. As to the latter topic, a summary of the position is as follows:
1. In November 1985, all of the Bank’s workplace policies were contained in a document called “Circular Instructions”, Volume 1 (“C1-1”). This included all Bank Human Resources policies relating to operational HR matters. A hard copy of C1-1 was available at every Bank office or branch;
2. In 1992 or 1993, C1-1 was replaced by a Personnel Manual. Again, a hard copy was available at every Bank office or branch;
3. In the late 1990s, the Personnel Manual was renamed the “HR Reference Manual”. This Manual was published on a computer site internal to the Bank called the “Computer Based Reference” site (“CBR”);
4. The Bank’s intranet site was established in the early 2000s, and from then until 22 August 2008, the CBR ran alongside (as Ms Sciamanna put it) the Bank’s intranet. The latter site is a website internal to the Bank for use by Bank employees;
5. In May 2008, the Bank decided that the HR Reference Manual should be transferred to the Bank’s intranet site and that was completed on 22 August 2008. The Bank’s HR policies are now on its intranet site.
287 The HR Reference Manual contained the statement set out in [283] above.
288 For a reason not known to Ms Sciamanna, this statement was not included in the HR Policies when the HR Reference Manual was transferred from the CBR site to the Bank’s intranet site on 22 August 2008. It was re-introduced into the HR policies on the intranet on 27 July 2009.
289 Ms Sciamanna said that there was an expectation within the Bank that all employees in managerial positions would become familiar with the HR Reference Manual. She said that since she joined the Bank all employees went through an induction process and that included communication of an expectation that they would abide by “Group policies”.
290 The Bank also has an internet site which is a website which is accessible by members of the public. That site contains a substantial amount of information about the Bank and its operations. The HR policies are not on the internet site. A document tendered by Mr Barker and entitled “Performance Feedback and Review” is not a human resources policy. It is on the Bank’s internet site.
291 A number of witnesses in the case were asked about the policies issued by the Bank and, in particular, whether they were drawn to their attention at the time they commenced their employment with the Bank and whether they considered the policies to be binding. For example, Mrs Allen said that she considered that the clause in her contract requiring her to follow the Bank’s instructions meant that she had to follow the Bank’s policies. Mr Majstrenko said that from time to time he was required to acknowledge having read a particular policy, such as the policy dealing with sexual harassment. He said that he always believed that he had to comply with all policies. Mr Champion said that the Bank had policies, and employees were expected to comply with them and he said that he expected the Bank would comply with its policies in dealing with him. I do not think that this evidence assists me in determining if the Bank’s policies, from time to time, became terms of Mr Barker’s contract of employment.
292 A number of the Bank’s policies were referred to in the course of the evidence. Both parties cross-examined witnesses asking them whether, in relation to a matter of which they complained, they had asked for a review under the Fair Treatment Review Policy. The implication which was suggested when they said they had not was that the complaint was not a serious one. Reference was made to other policies, such as the Appointment to Roles policy, in connection with topics such as the Bank’s non advertising of the positions ultimately filled by Mr Formichella, Mrs Allen and Mrs Albanese. Furthermore, reference was made to an obligation on the Bank to prefer an internal candidate for a position over an external candidate unless the latter is demonstrably superior. However, other than the Redeployment Policy, Mr Barker’s case with respect to the policies he pleaded was unclear. The position with respect to the Redeployment Policy was clear enough in that Mr Barker claimed that the Bank breached the policy in selecting him for redundancy and then in not complying with the redeployment provisions of the policy. However, as to the other policies he pleaded and in terms of his claim for damages, Mr Barker did not identify the particular obligations breached, the acts or omissions constituting the breaches, and, significantly, how those acts or omissions led to the loss and damage he claimed. In terms of his claim for damages it seems to me that Mr Barker’s contract case comes down to compliance or otherwise with the Redeployment Policy, and the legal significance of non-compliance, if it be established. I turn to summarise the provisions of that policy.
293 There is a definition in clause 2.2 of the Redeployment Policy which is entitled “Position Redundancy Policy” to the effect that it arises when work (or a major portion of it) performed in a position is no longer required to be performed, or is to be performed at a new location which requires a change in residence of the employee concerned. A position redundancy may result from, relevantly for present purposes, a reorganisation, a changed business practice, a decision to reduce the number of employees or a general reduction in classification levels or positions.
294 There is no definition of “Redeployment” in the Policy.
295 There is a definition of “Retrenchment” in clause 5.2 of the Policy to the effect that it is the termination of employment as a result of a position redundancy and where an employee is unable to be redeployed.
296 Clause 1 of the Redeployment Policy contains an introduction which is comprised of a statement of context, purpose, scope and principles. In the section dealing with context, the Policy provides that people with the capability and potential to make the greatest contribution to the Group should be retained, and that in the change process (that is, major organisational changes), involuntary job losses should be kept to a minimum. The purpose of the Policy is said to be: “… to have an open, well-communicated and consistently applied process through which all employees affected by redundancy, redeployment and/or retrenchment are treated with fairness and dignity”.
297 Seven principles are said in clause 1.4 to “underpin” the Redeployment Policy. Of present relevance are the following. First, the principles provide that as change proceeds, employees should “where practicable” be given early advice of the likelihood of redundancy, redeployment and possible retrenchment. The notion that employees should be given the earliest “practicable” advice of the likelihood of redundancy, redeployment and/or possible retrenchment also appears in clause 3.1. Secondly, the principles provide that, “as appropriate”, employees should be reassigned and retrained, and natural attrition used to manage reduced employment needs of the Group. Thirdly, the principles provide that decisions regarding redeployment and retrenchment are to be based on merit.
298 Clause 2 of the Redeployment Policy deals with the decision to make a position redundant. I have already referred to the definition of position redundancy as set out in clause 2.2. Clause 2.3 sets out the minimum standards which are said to attend the decision to make a role redundant. Clause 2.4 deals with what are called “Process Accountabilities”. The Policy envisages that a Position Redundancy will follow from a review and then a business reorganisation plan. The “Process Accountabilities” section of the Policy identifies various positions within the Bank and states the responsibilities of persons in those positions in relation to the process. The positions identified and the occupants of those positions in this case are as follows:
1. BU Head (Business Unit Head): Mr De Luca.
2. Manager: Mr Formichella.
3. Manager one Removed (MoR): Mr De Luca.
4. BU HR (Business Unit Human Resources): Mr Davis.
5. Human Resources: Mr Davis’ Unit.
299 Clause 3 of the Redeployment Policy sets out the consultation which should take place as “organisation change” proceeds. Again, one of the principles is that as the organisation change proceeds, employees should be kept informed about the process and that employees should be given the “earliest practicable advice” of the likelihood of redundancy, redeployment or possible retrenchment. Again, there is a process accountability section in relation to consultation and various persons within the Bank are given identified responsibilities. For example, the manager is to meet with employees to explain the “scope, processes and timing” for any redundancies, redeployment and retrenchment affecting his or her team. The manager one removed is to provide “appropriate information” to employees about the scope, processes and timing for redundancies, redeployment and retrenchment.
300 Clause 4 of the Redeployment Policy deals with redeployment. There are three sections in clause 4 and they are entitled “Principles”, “Minimum Standards” and “Process Accountabilities”. The first principle is that, where possible, employees should be “reassigned and retrained”, and natural attrition used to manage reduced employment needs of the Group (that is, the Commonwealth Bank Group). The second principle is that decisions regarding redeployment of employees are to be based on merit. A minimum standard is said to be that employees whose roles are likely to be made redundant should be consulted in relation to their options for redeployment, including, where appropriate, their ability to be retrained for alternative roles. The Process Accountabilities deals with the responsibilities of not only the manager (Mr Formichella), the MoR (Mr De Luca), BU HR (Mr Davis) and “Redeployment Services (Ms Helen Breccia), but also of the employee (Mr Barker). The provisions are important and I set them out as follows:
4.3 . Process Accountabilities
Employee
• forward resume to Recruitment – Career Support to be matched to existing vacancies
• apply for internal vacancies as appropriate
Manager
• seek advice from BU HR and MoR regarding redeployment options and process.
• consult with employees regarding redeployment options.
MoR
• develop a redeployment plan for their area of accountability.
• implement the redeployment plan.
BU HR
• provide advice to managers and MoRs regarding the appropriate processes and conditions for redeployment in the Group, including what is appropriate alternative employment.
• provide information about potential redeployees to the relevant HR contact in other BUs.
Redeployment Services
• track redeployment pool and match skills to vacancies.
• actively market candidates in other departments or BUs.
• maintain redeployment information for all employees in the Group.
301 Clause 5 of the Redeployment Policy deals with retrenchment. It comprises “Principles”, “Definition of Retrenchment” and “Process Accountabilities”. A principle of retrenchment is that decisions regarding retrenchment are to be based on merit and another is that decisions regarding retrenchment are to be at the discretion of the authorised manager, and be in accordance with the organisation change plan. I have already referred to the definition of retrenchment in clause 5.2. In terms of process accountabilities, the positions identified are “Employees” (Mr Barker), “Manager” (Mr Formichella), MoR (Mr De Luca), “BU Head” (Mr De Luca), and Human Resources (Mr Davis). A number of the provisions deal with those cases where it is appropriate for the Bank to seek expressions of interest in retrenchment. Two responsibilities of the manager should be noted. First, the manager is to provide the employee with the opportunity to propose options or suggest alternatives that have not been considered, such as working in a low grade position or other areas of work they might be qualified for or interested in, and all “these options” need to be considered. Secondly, the manager is to advise employees in person and in writing if a retrenchment is to proceed.
302 Clause 6 of the Redeployment Policy deals with “Outplacement”. It is clear that that topic relates to the management of retrenchment and career transition, although the outplacement services might be provided while the employee is still employed by the Bank.
303 Mr Barker puts his case in relation to the Bank’s policies on three grounds. First, he submits that the policies were expressly incorporated into his contract of employment. Secondly, he submits that the policies were incorporated by practice and usage within the Bank. Thirdly, he submits that his contract of employment included an implied term of mutual trust and confidence and that a serious breach of the policies was a breach of that implied term.
Were the policies express terms of the contract?
304 As I understand it, the Bank did not submit that all the terms of Mr Barker’s contract of employment were contained in the written contract of employment. It submitted that the relevant sections of the Bank’s policies and, in particular, its Redeployment Policy were not terms of the contract.
305 There are a number of decisions of this Court which have considered whether the policies of an institution or organisation have become terms of a contract of employment between the institution or organisation and one of its employees.
306 In Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193, the Full Court of this Court considered whether an employee was entitled to payments under a redundancy policy of his employer on the termination of his contract on the ground of redundancy. The employee and the employer had executed a written contract of employment and that contract provided, among other things, that “[y]ou agree to abide by all company policies and practices currently in place, any alterations made to them and any new ones introduced”. That was a statement directed to the employee. At the time the contract was executed, the employer utilised a loose-leaf spiral bound Human Resources Policies and Procedures Manual. In a general sense, most of the manual’s contents related to employee benefits and how they were to be exercised. There were, however, other contents which imposed obligations on employees. After the contract of employment had been executed, the employer inserted a redundancy policy in the manual and that policy provided for certain payments to be made to employees whose services were terminated on the ground of redundancy.
307 The majority of the Court (North and Mansfield JJ; Lindgren J dissenting) upheld the decision of the trial judge to the effect that the employee was entitled to the redundancy payment he claimed. It is not necessary for me to consider the reasons of the majority in any detail. The case is distinguishable from the present case in that there was an express term of the contract of employment referring to the employer’s policies and practices, and in that sense, the case turned on its own facts.
308 In Goldman Sachs J B Were Services Pty Ltd v Nikolich [2007] FCAFC 120 (“Goldman Sachs”) the Full Court of this Court considered whether an employment contract, which consisted of a formal letter of offer, also included a lengthy document entitled “Working With Us” (“WWU”). The employee was given the WWU document when he was first offered employment and this was some days before he signed the formal letter of offer. The WWU document was 119 pages in length and covered many topics. The particular topics in issue in the case before the Court concerned a safe and healthy work environment, harassment and grievance procedures.
309 The Court made it clear that the test to be applied in determining what constituted the contract of employment was an objective one, that is to say, the Court asked whether a reasonable person in the position in the employee would believe that the WWU was part of the contract of employment. In considering that question, context was very relevant (at [29] per Black CJ).
310 Black CJ (at [38]) considered the language used in the WWU and considered whether it was merely aspirational or descriptive on the one hand, or expressed in terms of a contractual obligation on the other.
311 Jessup J considered whether the language was promissory or purely informative (at [291], [292], [298], [329]). His Honour considered that the provision of the WWU at or about the time the contract of employment was entered into was of importance. His Honour also said that the language used must identify the obligation with clarity and that if it is necessary to imply the obligation then the implication must meet the test for the implication of a term.
312 In Yousif v Commonwealth Bank of Australia (No 2) (2009) 185 IR 414, North J considered whether a policy dealing with appointment to roles was incorporated into an employee’s contract of employment. His Honour said (at 433 [93]-[97]):
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.
The BSU Head who had authority under this policy to release Ms Yousif from the Western Region was Mr Ross McEwan.
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.
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.
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.
313 On appeal (Yousif v Commonwealth Bank of Australia (2010) 193 IR 212) the Full Court of this Court upheld the trial judge’s reasoning. The Court said (at 235-236 [93], [94], [95]):
Ms Yousif’s argument involves an erroneous approach, which is inconsistent with the authorities. Riverwood and Goldman Sachs both identify the importance of the context in order to determine the objective intention of the parties: see, for example, Riverwood 177 ALR 193 at 207-210 [77], [81], [89] per North J; 221-222 [146], [150] per Mansfield J and Goldman Sachs [2007] FCAFC 120 at [23] per Black CJ and [283] per Jessup J. Whatever the differences of approach or emphasis in Goldman Sachs, the reasons of all three Justices reflect the principle that whether or not a particular term forms a contractual obligation turns on the intent of the contracting parties, as objectively “conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened”: see Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95; [2002] HCA 8 at 105-106 [25].
The trial judge concluded that the Appointment to Roles Policy was not part of Ms Yousif’s contract, based on a disclaimer of incorporation in the opening section of the manual containing the policy, which provided:
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.
We agree with his Honour that, absent any countervailing factor, this provision clearly indicates that the Appointment to Roles Policy was not to be incorporated into the contract. On its own, this provision manifests an unambiguous intent that the policies contained in the manual are not to have contractual operation. Other than observing the arguably superficial similarity between paragraph 2 of the AWA and the language in Riverwood, Ms Yousif did not point to any facts that might evince a contrary intent. Accordingly, Ms Yousif has not shown that the trial judge erred in relying on the disclaimer to conclude that the Appointment to Roles Policy was not incorporated in the contract between the parties.
314 As I have said previously, Mr Barker’s claim for damages is based on the Redeployment Policy.
315 The Bank’s policies were not referred to in Mr Barker’s written employment agreement. Clause 5(i) placed an obligation on Mr Barker to observe and be subject to the provisions of the “Bank’s instructions” except as varied therein, but I do not think that the “Bank’s instructions” are the Bank’s policies. Clause 8 referred to a case where the Employee becomes redundant “and the Bank is unable to place the Employee in an alternative position with the Bank or one of its related bodies”, but that is not sufficient to pick up the Bank’s Redeployment Policy and make it a term of the contract of employment.
316 At the time Mr Barker was engaged by the Bank as an executive under the written contract of employment, the HR Reference Manual contained a statement to the effect that it did not form part of an employee’s contract of employment. Mr Barker said that he never read that statement. Even if that is so, it seems to me that this case is like Yousif and the statement in the introduction to the policies is decisive against Mr Barker’s case in the absence of any countervailing factor. There are no countervailing factors. To a point, this conclusion is supported by the language of the policies. For example, the Redeployment Policy refers to principles which “underpin” the Policy and uses expressions such as “Where practicable”, “as appropriate” and “appropriate assistance”. At the same time, in the Redeployment Policy there are some statements of obligation which are reasonably precise.
317 I should mention that the EEO Policy stands in a slightly different position because it was referred to in the Statement of Professional Practice which was probably part of Mr Barker’s contract of employment. Nevertheless, for reasons given above, the EEO Policy, and, for that matter, the other policies pleaded by Mr Barker did not become terms of the contract.
318 Before leaving this issue I should add two things. First, I do not think that the omission between 22 August 2008 and 27 July 2009 of the statement in the introduction that the policies do not form part of any contract of employment is of significance. I cannot accept that the policies were not part of the contract of employment in August 2004 but became part of an existing contract by reason of the omission of that statement in August 2008. Secondly, the Bank’s policies changed from time to time. The authorities suggest that that fact does not of itself mean that they could not be terms of Mr Barker’s contract of employment: see, for example, Goldman Sachs at [122] (Marshall J).
Were the policies terms of the contract as a result of practice and usage within the Bank?
319 Mr Barker also submitted, as I understood it, that the Bank’s policies were implied as a matter of fact into his contract of employment. That would only be so if the business efficacy test was satisfied: Willis v Health Communications Network Ltd (2007) 167 IR 425 (“Willis”) at 435 [33] per Tobias JA; Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702 (“Sterling Commerce”). The business efficacy test is not satisfied in this case because Mr Barker’s contract of employment operates reasonably and effectively without the Bank’s policies (Sterling Commerce at [32]-[33] per Gordon J).
320 There is no basis to suggest that the policies were implied as a matter of law, that is to say, as a legal incident of all employment contracts (Willis at 435 [33]). Nor is there any basis to suggest that the Bank’s policies were incorporated into Mr Barker’s contract of employment by a course of dealing (see, for example, Reynolds v Southcorp Wines Pty Ltd and Anor (2002) 122 FCR 301). There was no course of dealing in this case, and, in any event, to hold that there was would be inconsistent with the statement in the introduction to the Bank’s policies (see [283] above).
The implied term of mutual trust and confidence
Introduction
321 Mr Barker submits that there were implied terms in his contract of employment with the Bank that the latter would maintain trust and confidence with him and that it would not do anything likely to destroy or seriously damage that relationship of trust and confidence without proper cause for so doing. Mr Barker submits that these terms were to be implied to give business efficacy to the contract and “arising from the mutual intentions of the parties”.
322 Mr Barker then submits that a serious breach of its own policies amounts to a breach of the implied term.
Was there an implied term of mutual trust and confidence in Mr Barker’s contract of employment?
323 It seems clear enough that in England there is an implied term of trust and confidence in a contract of employment so that an employer must not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Malik v Bank of Credit and Commerce International SA (in liq.) [1998] AC 20 at 33-34 per Lord Nicholls of Birkenhead. Subsequent English cases have involved a working out of the nature and scope of the term and the identification of an exclusion area, that is, an area of the employer and employee relationship where the term does not apply: Johnson v Unisys Ltd [2003] 1 AC 518 (“Johnson v Unisys”); Eastwood v Magnox Electric plc [2005] 1 AC 503; Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] ICR 201; see also: Neil I and Chin D, The Modern Contract of Employment (LawBook Co, 2012) at para 7.30. The exclusion area is that the term does not apply at the point of dismissal (Johnson v Unisys).
324 The position in Australia is not as clear. Four Justices of the High Court (McHugh, Gummow, Hayne and Heydon JJ) assumed that there was such a term in Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 (“Koehler v Cerebos”) at 54-55 [24] (see also Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at 321).
325 The question whether there is an implied term of trust and confidence in a contract of employment was considered by North J and the Full Court in Yousif. North J did not need to decide the point (433-434 [100]-[103]), nor did the Full Court (at 238 [105]).
326 The Court of Appeal in New South Wales in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559, referred to the authorities, but similarly did not need to decide the point (at 567 [32]-[37]).
327 In State of South Australia v McDonald (2009) 104 SASR 344 (“McDonald”), the Full Court of the Supreme Court of South Australia did not need to decide the general point. In other words, it did not have to decide whether there was a general rule that there was an implied term of mutual trust and confidence in contracts of employment. It did decide that in the case before it such an implied term did not form part of Mr McDonald’s contract of employment. That was because in Mr McDonald’s case, statute, regulation or industrial award provided “a variety of means by which employees may be protected from abuses of power by the employer, and provides means of redress to employees who are aggrieved by some conduct of the employer” (at 390-391 [236]-[239]). This is not a case which raises a question as to whether the approach in McDonald should be followed because Mr Barker’s contract of employment is not affected by statute, regulation or industrial award.
328 There are cases where single Judges of this Court have expressed reservations about whether there is an implied term of mutual trust and confidence: McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375; Dye v Commonwealth Securities Ltd [2012] FCA 242. On the other hand, the existence of such a term was accepted by the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (see also Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144) and by Olsson J in Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489 at 514 [99]. Allsop J accepted the existence of such a term in Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 (“Thomson v Orica”) at 223-224 [140]-[143]).
329 If there is an implied term of mutual trust and confidence in contracts of employment, then it is a term implied by law, rather than because of the factual circumstances of a particular case. The term may be excluded by the express terms of the contract or it may be excluded because it would operate inconsistently with the express terms of the contract.
330 In my opinion, I should hold that there is an implied term of mutual trust and confidence in the contract of employment between Mr Barker and the Bank. That would be consistent with the approach taken in England and with the basis assumed by four Justices of the High Court in Koehler v Cerebos. Such a term does not interfere with the parties’ freedom of contract as they are free to exclude the term if they wish. The term only operates where a party does not have reasonable and proper cause for his or her conduct and the conduct is likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Furthermore, in this case I am not deciding whether the term applies at the point of dismissal. On 2 March 2009, Mr Barker was advised that his position had been made redundant. On 9 April 2009, the Bank terminated the employment relationship between it and Mr Barker. As will become clear, the critical question in this case is whether the Bank breached its Redeployment Policy between those two dates, that is to say, before the purported termination on 9 April 2009. Put another way, the term is not being invoked to qualify the Bank’s power of termination upon 4 weeks’ written notice or payment in lieu. It is being invoked at the earlier stage. For these reasons, to hold that a serious breach of the Redeployment Policy amounts to a breach of the implied term is not inconsistent with the Bank’s express power of termination under the written employment contract.
Does a serious breach of the policies amount to a breach of the implied term of mutual trust and confidence
331 In my opinion, to hold that a serious breach of the Redeployment Policy is a breach of the implied term of mutual trust and confidence is not inconsistent with the conclusion that the policy itself is not a term of the contract. That might be so if the policy was expressed in entirely aspirational or descriptive terms, because it would then be difficult to establish a serious breach, but that cannot be said of the Redeployment Policy. It is not a “back door” method of avoiding the effect of the statement in the introduction to the policies because it is only a serious breach that could give rise to a breach of the implied term.
332 The Bank issues the policies and it has the right to amend or vary them. I do not need evidence to infer that it does so to protect its own interests and to make employment at the Bank attractive. There are likely other reasons but these are sufficient for the purposes of the present point. The Bank makes them available to employees and they assist in working out matters that arise or relate to the employment relationship. Each party expects that the policies will be adhered to, subject to the fact that some of the statements are no more than aspirational or descriptive. I think that a serious breach of the Redeployment Policy by the Bank does give rise to a breach of the implied term of mutual trust and confidence (see Thomson v Orica Australia Pty Ltd [2002] 116 IR 186 per Allsop J at 225 [146]).
333 Furthermore, a serious breach of the policies such as to breach the implied term can give rise to a claim for damages: Malik v Bank of Credit and Commerce International SA (In liq) [1998] AC 20; Shaw v State of New South Wales [2012] NSWCA 102.
Was there a serious breach of the policies?
334 The key question is whether the Bank was in breach of its Redeployment Policy prior to 9 April 2009. As I have said, Mr Barker claimed that the selection for redundancy should have been, but was not, based on merit and that, in any event, the Bank did not comply with its own Redeployment Policy.
335 Mr Barker put forward a number of arguments in support of the proposition that the decision to make his role redundant was erroneous.
336 First, he submitted that in truth his position was not redundant. He submitted that in February and March 2009 Mr Formichella had in mind four executive managers and there were four executive manager positions. Mr Barker referred to evidence suggesting that Mr Formichella was looking for an executive manager for Mawson Lakes.
337 Secondly, he submitted that I should not accept Mr Formichella’s reasons for making his position redundant and, in particular, the suggestion that Mr Barker’s team was more affected by the segmentation exercise than Mrs Allen’s. He submitted that his team was “more affected” only because of Mr Formichella’s discretionary decision to remove the Mawson Lakes team from Mr Barker’s control.
338 Thirdly, he submitted that in the case of Mr Formichella’s decision to make him redundant, there was perceived bias and that Mr Formichella had no reasonable justification for his decision. My summary of Mr Barker’s submissions in support of that contention are as follows. He contends that the evidence of the bonus payments made to Mrs Allen and Mrs Albanese establishes that they were favoured. Mr Formichella was the mentor and good friend of Mrs Allen. He contends that there was a widespread perception within CFS in Adelaide of a relationship between Mr Formichella and Mrs Allen which extended beyond a normal professional relationship. Further evidence of favouritism was that Mr Formichella gave no weight to Mr Barker’s history with the Bank and that Mrs Allen and Mrs Albanese joined the Bank in circumstances where the positions they filled were not advertised. He contends there was also “evidence as to familiarity”. Mr Barker was not given the opportunity to apply for the top tier position, contrary to the Appointment of Roles Policy. Mrs Kenmore observed there were no accolades for Mr Barker and only praise for Mrs Allen. Further evidence of Mr Formichella’s favouritism of Mrs Allen was his scoring of her performance and the fact that she was privy to confidential emails from people like Mr De Luca, and the fact that she was given access to Mr Formichella’s email during January 2009.
339 I do not think the decision to make Mr Barker’s position redundant was a serious breach of the Bank’s Redeployment Policy.
340 With respect to the submission that there were in fact four executive manager positions, I have considered Mr Formichella’s evidence on this point very carefully. He said that he was considering the appointment of an executive manager to head the team at Mawson Lakes as an option. I accept that evidence. In March 2009, there was no position known as executive manager for the team at Mawson Lakes and Mr Barker’s submission fails.
341 As to Mr Barker’s submissions more generally, the first point to note is that the Redeployment Policy does not in terms state that redundancy must be determined on merit. It does say that decisions regarding redeployment and retrenchment are to be based on merit. That distinction is understandable having regard to the nature of redundancy. At the same time, redundancy, absent redeployment, leads to retrenchment and there is room for merit in the process of determining redundancies where, for example, there is to be a reduction in the number of similar positions. Having said that, to extend the implied term of mutual trust and confidence to what is in effect the retrenchment decision faces two obstacles. First, it is to go further than the English courts have gone. Secondly, it is to give the implied term an operation which appears to be directly inconsistent with the express power in the contract to terminate on four weeks’ written notice or four weeks’ pay in lieu.
342 I do not need to discuss these obstacles any further because Mr Barker’s case fails at a factual level. On any view, it would only be a serious breach of the policy which could amount to breach. Mr Formichella, Mrs Allen and Mrs Albanese were good friends who shared a common belief as to the appropriate culture in the Bank. I have set out my findings as to the relationship between Mr Formichella and Mrs Allen ([128]-[132]). I find that Mr Formichella’s decision to make Mr Barker’s position redundant was made in good faith in a commercial context and having regard to, among other things, subjective elements such as behaviours. That cannot be a serious breach of the policy.
343 Mr Barker claims that the Bank breached its Redeployment Policy by not giving him advice before 2 March 2009 of the likelihood of redundancy or possible retrenchment. Even if that was established as a matter of fact, which for reasons given below, it is not, Mr Barker never made clear what followed from the alleged breach. There is no evidence of Mr Barker foregoing an opportunity to secure employment with an outside organisation at about this time, and it is not clear that the Bank was bound to engage in the redeployment process before an employee’s position had been made redundant.
344 As to whether the Redeployment Policy was breached as a matter of fact prior to 2 March 2009, the possibility of redundancies resulting from the segmentation exercise was known in 2008, and by February 2009, it was known by the steering committee of the segmentation exercise that there would be redundancies and retrenchments. Mr Barker was identified as a member of “Impacted Staff” in Mr Formichella’s email to Mr De Luca dated 3 February 2009. It is not clear on the evidence precisely when Mr De Luca and Mr Formichella made the decision that Mr Barker would be made redundant.
345 Mr Barker appeared to suggest that by at least February 2009 he had been identified for retrenchment, and that the Bank had no intention of redeploying him. I am not prepared to draw that inference. It is true that the Bank anticipated that not every person would be redeployed but I do not think that one can move from that proposition to the proposition that the Bank never intended to redeploy Mr Barker. I am not prepared to accept that the Bank’s statements on 2 March 2009 (both written and oral) that its preference was to redeploy Mr Barker and the efforts that it did make were a mere sham. Furthermore, I am not satisfied that Mr Barker was not given the earliest practicable advice of his redundancy. Mr Davis said that there were 38 redundancies across the business. He explained the reasons why the redundancies were announced in the way in which they were. There was a reasonable basis for the Bank to proceed in the way in which it did.
346 I take a different view with respect to the period after 2 March 2009.
347 The first time the Bank contacted Mr Barker and raised with him the possibility of an alternative role within the Bank was on 26 March 2009. That was over three weeks after he had been asked to clear out his desk, and less than a week before the exit date proposed by Mr Davis in his email dated 20 March 2009 and not received by Mr Barker before 23 March 2009 (that is, 30 March 2009). That was also in a context where, on 2 March 2009, Mr Barker had been told that if he could not be redeployed then his termination date would be 30 March or 2 April 2009. The failure to contact Mr Barker earlier appears to have been because of a breakdown in communication between two sections or units of the Bank (Human Resources and Career Support) about where Mr Barker could be contacted. Whatever the reason, it is the lack of communication with Mr Barker which is significant. When Mr Barker was contacted on 26 March 2009, the particular position drawn to his attention was one which, in Adelaide at least, he was unlikely to secure. Having regard to the earlier meeting between Ms Taylor, Mr Formichella and Mr van Lierop, and Mr Formichella’s view, it was very unlikely that the Bank was going to give the position to Mr Barker. I am not prepared to say that the Bank’s conduct was a sham, but on any view, Mr Barker was very unlikely to secure the position. As far as the provision of a Career Circular is concerned that falls well short of engaging in any meaningful way in the redeployment process. Furthermore, the fact that Mr Barker’s solicitors were threatening legal action at the same time did not relieve the Bank of its obligations under the Redeployment Policy.
348 I should also note that I do not consider that Mr Davis’s statement at the end of his email to Mr Barker dated 7 March 2009 amounts to the Bank taking a positive step to fulfil its obligations under the Redeployment Policy.
349 In terms of particular matters in the Redeployment Policy, there was no consultation with Mr Barker, the possibility of retraining was not raised or discussed with Mr Barker, advice about redeployment options and process was not sought by Mr Formichella and there was no redeployment plan developed or implemented.
350 On the other hand, Mr Barker himself did very little in terms of taking what the Bank’s letter of 2 March 2009 referred to as, “proactive steps in seeking redeployment”. It is necessary to consider whether his lack of activity affected the Bank’s obligations in some way. In his evidence, he sought to explain his inactivity in various ways. I think all of his explanations came back to a view on his part that the Bank was not genuine in stating that it wished to redeploy him. He referred to Mr Formichella’s statement on 2 March 2009 that he was not seen as part of the business going forward, the fact that he had been asked to leave the Bank on 2 March 2009 and felt that he had been dismissed, and the fact that he considered that the Career Support section would contact him. He said that he did not apply for the service excellence position once he heard from Ms Adlem that on 31 March 2009 Ms Breccia had referred him back to the business, that is to say, to Mr Formichella.
351 In other circumstances, inactivity by an employee might excuse the Bank from taking any steps, or any further steps after a certain point, under its Redeployment Policy. However, I think that the significant circumstances in this case are that Mr Barker, an employee of the Bank for approximately 27 years, was advised that his position was redundant and asked to leave the Bank and return items associated with his employment on the very day he was given such advice. Furthermore, his access to the Bank’s intranet and email facilities were immediately withdrawn. In that context, although it was not incumbent on the Bank to redeploy Mr Barker, it was incumbent on it to take timely and meaningful steps to comply with its own policy. It did not do that. It did not contact Mr Barker because of an internal error. When it did contact him, it was very late in the piece. I accept that by 31 March 2009, it was reasonable for Mr Barker to consider that there were no reasonable prospects of redeployment.
352 The Bank’s almost total inactivity within a reasonable period means that its breach of its Redeployment Policy was a serious breach and that it was in breach of the implied term of mutual trust and confidence.
Did the Bank’s serious breach of its Redeployment Policy cause loss or damage to Mr Barker?
353 Mr Barker submits that I should find on the balance of probabilities that, had the Bank complied with its Redeployment Policy, he would have been redeployed and he claims loss and damage on that basis. Alternatively, he claims damages for the loss of a chance to be redeployed.
354 Mr Barker identified four possible redeployment opportunities. They were as follows:
(1) The service excellence position in Adelaide, South Australia;
(2) Executive manager or area manager of the Business Banking Centre at Mawson Lakes;
(3) Executive manager within the Agribusiness section of the Bank; and
(4) The executive manager positions Australia-wide shown on the printout, which is Exhibit A5.
355 As to the service excellence position in Adelaide, South Australia, I am not satisfied that it was likely Mr Barker would have secured that position even if the Bank had complied with its Redeployment Policy. The Bank was seeking a sales coach and its preference was for a person with experience in the Cohen-Brown methodology. Mr van Lierop had those qualifications and he secured the position. I am satisfied on the evidence that he was a superior candidate.
356 As to the executive manager or area manager of the Business Banking Centre at Mawson Lakes, the facts with respect to the position of area manager can be simply dealt with. First of all, that would have been a significant demotion for Mr Barker. More importantly, the position of area manager was occupied by Mr Morris. As to the position of executive manager it is clear that in February 2009 Mr Formichella was considering the appointment of an executive manager to Mawson Lakes. Ultimately, that did not proceed and Mr Formichella said an executive manager was not appointed to Mawson Lakes until 2011. He denied that he had held off making the appointment because of Mr Barker’s claim against the Bank. As I have said, I have considered his denial very carefully and I accept it. There was no executive manager position at Mawson Lakes during March and April 2009.
357 As to an executive manager’s position in the Agribusiness section of the Bank, it is necessary to consider the evidence of Mr Dale Champion.
358 Mr Champion joined the Bank in mid-2004 and left in March 2010. He now works for a business called Agrify, which he described as “an agriculturally focussed strategy, finance and capital consultancy operation with several partners”. During his employment by the Bank, Mr Champion was part of the Bank’s Agribusiness team. In early 2005, he was state manager for SA and the NT, and in 2007, he became general manager for SA, NT and WA. In the second half of 2008, he was acting executive general manager for the Bank’s Agribusiness operations. On 12 December 2008, it was agreed that a specific focused unit within the broader Agribusiness operations should be devoted to corporate level agricultural opportunities. Mr Champion set the requirements for the Bank’s Agribusiness stream, and he was surprised neither Mr De Luca nor Mr Formichella raised Mr Barker’s availability with him. He said that Mr De Luca was aware of the expansion of the corporate level agricultural stream and the need to identify suitable staff by reason of his participation in meetings in 2008 and 2009. He said that Mr Formichella was also aware of the expansion by reason of his attendance at State leadership meetings. Mr De Luca said that he could not recall his mentoring relationship with Mr Champion involving any discussion of staff recruitment in Agribusiness. Mr Champion agreed in cross-examination that he did not discuss individual recruitment with Mr De Luca.
359 Mr Champion said that based on his knowledge and understanding of Mr Barker’s background, experience and capability he anticipated that he would have been an ideal candidate for the Bank’s “prospective Corporate Agricultural endeavour”. Early in 2009, the Agribusiness section sought and secured employees for the various locations. Mr Champion said the following in his written statement:
12. The decision that we would require staff in the Agribusiness Solutions Unit was made in December 2008.
13. In March or April Brendan White took up the Executive General Manager position that I had been filling in for, and I continued in my General Manager position. From this point the structure and positions had been resolved and we were actively seeking the right people.
14. In about early 2009 Wayne Buchback was appointed in Queensland from within the CBA to the position with the title of Senior Manager or similar, within the Specialised Agribusiness Solutions Unit. In late 2009 Richard Brimblecomb was also appointed in Queensland to a similar position. Both were of EM equivalent level.
15. In about August or September 2009 we hired Michael O’Connell who was external to the Bank to a similar position in Sydney, and also in August or September hired Ewan Laughlin who was external to the Bank to the same level position in Melbourne.
16. We were actively seeking to appoint people from early 2009 to these positions. They were only filled later in 2009 as this is when we were able to identify and attract the right people.
360 Mr Champion corrected some of the dates in those paragraphs in his oral evidence. The date in paragraph 14 was in fact about October 2008 and he was not sure of the date for Mr Brimblecomb.
361 Mr Champion expressed the view that it was highly likely he (Mr Barker) would have been appointed to the position in Melbourne subsequently occupied by Mr Laughlin had he known that he was available at the time. He said that the position filled by Mr Laughlin could have been performed from Adelaide.
362 Mr Champion was taken to exhibit A5 which is a list of all roles that were advertised on the bank’s recruitment system for the period of 1 January 2009 to 30 June 2009. He agreed that none of the roles were for executive management roles in agribusiness.
363 As counsel for the Bank correctly pointed out, Mr Champion’s evidence must be seen in the context that he had not worked with Mr Barker and had limited knowledge of his abilities, and a number of the positions he referred to were not available in March and April 2009.
364 Nevertheless, the evidence of Mr Champion and the positions shown in Exhibit A5 satisfy me that, had the Bank made a timely and genuine effort to comply with its Redeployment Policy, Mr Barker would have been advised of a position or positions for which he may have been considered suitable.
365 As to the positions shown on Exhibit A5, most of the positions were located interstate. The Bank submitted they and the positions in Agribusiness should not be taken into account because Mr Barker was most unlikely to move interstate. The basis for this submission was what Mr Barker told Mr De Luca in April 2008 about moving interstate (see [167] above) and the fact that, after he had left the Bank and was considering a position in Western Australia, he wanted to commute rather than move there permanently. As to the former matter, there is a significant difference between moving interstate from an existing position of employment and moving interstate to retain employment. Mr Barker’s attitude to moving interstate for employment is relevant, but I do not think one can say it meant that there was no prospect that he would be redeployed.
366 The Bank was not obliged to redeploy Mr Barker. The Bank was not obliged to keep Mr Barker on for an indefinite period in order to see if he could be redeployed. Nor was it required to exclude from its decision-making broader commercial considerations. Mr De Luca and Mr Formichella had concerns about Mr Barker’s behaviour. There were a limited number of positions and many of them were interstate. For these reasons, I am not satisfied on the balance of probabilities that had the Bank followed its Redeployment Policy Mr Barker would have been redeployed.
367 At the same time I am not satisfied that Mr Barker’s chances of redeployment were so insubstantial that they should be ignored (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 349 per Mason CJ, Dawson, Toohey and Gaudron JJ).
368 In Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64, Brennan J (as his Honour then was) said (at 103-104):
In T.C. Industrial Plant, the second contract was almost certain to follow on successful performance of the first contract, but the underlying principle does not depend on the certainty of securing a second contract. Certainty is relevant to the value of the opportunity of obtaining a profitable engagement under a second contract, but the benefits to which a plaintiff is entitled under a contract may include an uncertain prospect of obtaining such an engagement provided the prospect is sufficiently substantial to stamp it as a real commercial advantage. The relevant principle is that when performance of a contract by a defendant (including the permitting of the plaintiff to perform his obligations under the contract) would have resulted in the plaintiff’s acquiring a particular commercial advantage but the advantage is lost by reason of the defendant’s breach, the loss of the advantage is compensable and its value is to be taken into account in assessing a plaintiff’s damages. If the advantage in question is a certain opportunity to secure a profitable second contract, the profits of the second contract can be recovered. Such an advantage is worth more than a merely preferential chance of securing such a contract but such a chance, like the chance in Chaplin v Hicks, has a value and the loss of the chance is a proper subject of compensatory damages.
369 It is difficult to assess Mr Barker’s chances of redeployment. Doing the best I can and having regard to the evidence I have identified and the matters in paragraph 368, I assess the chance of redeployment at 25 per cent.
The quantification of the loss or damage
370 Mr Crump was not required for cross-examination. His calculations are set out in Exhibit A16. On the basis of Mr Crump’s calculation I accept that past economic loss is in the order of $110,000 after taking into account the termination payment received by Mr Barker and the consultancy fees he has earned. Future economic loss to age 60 years is $1,484,000, and to age 65 years is $1,833,000. Mr Barker suggests a 30 per cent reduction to take account of residual earning capacity. It is difficult to be precise but events between March 2009 and trial suggest that a figure in the order of 30 per cent is reasonable. If an average of the two figures is taken and then reduced by 30 per cent then the figure reached is in the order of $1,160,000.
371 It is true, as the Bank submitted, that there is no evidence from Mr Barker as to when he intended to retire and that the written contract of employment provided that he could retire after attaining the age of 55 years. Nevertheless, I do not think it unreasonable to proceed on the basis of a retirement age of between 60 years and 65 years. In fact, I would be disposed to adopt the higher age. However, rather than do that I will adopt Mr Barker’s approach because I must also take into account, as counsel for the Bank pointed out, earlier termination of employment under clause 6 of the written employment contract or its equivalent.
372 In my opinion, Mr Barker is entitled to damages for economic loss of $317,500 being 25 per cent of $110,000 plus $1,160,000.
373 In addition to economic loss, Mr Barker seeks to recover what he referred to as general damages for hurt, distress and loss of reputation, and aggravated damages for the manner of his dismissal. As to general damages for hurt and distress, I do not think such damages are recoverable. The Redeployment Policy discloses an intention to benefit both the employer and employee. There is not, as Mr Barker suggests, an unambiguous intention to create the policies in order to give employees “peace of mind”: compare Baltic Shipping Co v Dillon (1993) 176 CLR 344; Quinn v Gray (2009) 184 IR 279 and Wilcox J in Nikolich v Goldman Sach JB Were Services Pty Ltd [2006] FCA 784 at [317]. For example, as counsel for Mr Barker pointed out in closing submissions, in addition to the obvious benefit it confers on employees who find their role has been made redundant, the Redeployment Policy benefits the employer as it ensures a redundancy payment will not have to be paid in circumstances where another suitable position exists.
374 Mr Barker is not entitled to damages for loss of reputation as a result of a breach of the implied term of mutual trust and confidence. On the facts of this case, any injury to Mr Barker’s reputation in the eyes of future employers (of which there is no evidence) must necessarily flow from the fact of the dismissal, rather than the manner in which it was carried out: compare Malik v Bank of Credit and Commerce International SA (in liq.) [1998] AC 20. While the Bank’s conduct in requiring Mr Barker to leave the premises on the day of the meeting was no doubt severe, the Bank was entitled to take such steps. The contract provided a right of termination on four weeks’ notice or four weeks’ pay in lieu. It was not for Mr Barker’s colleagues, clients or the banking industry to know that the Bank had not made such a payment to Mr Barker. As such, and on the basis of the authorities, this is not an appropriate case for an award of damages for loss of reputation to be made: Addis v Gramophone Co Ltd [1909] AC 488 (“Addis v Gramophone”); Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 (see Basten JA at [63]-[65]).
375 Mr Barker is not entitled to aggravated damages. Addis v Gramophone is authority for the proposition that the absence of any element of damage at large will preclude an award of aggravated damages for breach of contract. In any event, and as I have indicated, although the conduct of the Bank in requiring Mr Barker to leave the premises on the day of the meeting was severe, there was no suggestion that this conduct was lacking in bona fides, improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497. Such decisions whilst not common, were by no means uncommon.
The Claim under the Trade Practices Act
376 Mr Barker’s case is that Mr De Luca’s representation to him in July or August 2006 was misleading or deceptive, or likely to mislead or deceive. He claims damages under s 82 of the Trade Practices Act 1974 (Cth) (“Trade Practices Act”).
377 Mr Barker relies on ss 52, 53B and 51A of the Trade Practices Act. At the relevant time, s 53B was in the following terms:
A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.
378 Mr Barker’s case does not fall within the terms of this section. The statement by Mr De Luca was not in relation to employment that was to be, or may be, offered by the Bank to him as the person seeking the employment. Nor, having regard to the terms of Mr Barker’s written employment contract, which simply referred to Mr Barker being employed as an executive of the Bank, can it be said that the appointment of Mr Formichella, and then of Mrs Allen, amounted to a variation of his contract of employment.
379 To fall within the terms of subs 52(1) of the Trade Practices Act, Mr Barker must show that the Bank, in trade or commerce, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive. He claims that Mr De Luca’s representation was with respect to a future matter and that s 51A is relevant. That section was in the following terms:
(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2) For the purposes of the application of subsection 1 in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
(3) Subsection 1 shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, the representation that is misleading in a material particular or conduct that is misleading or likely or liable to mislead.
380 Mr Barker must establish (among other things) that Mr De Luca’s representation was made in “trade or commerce”. The meaning of this phrase was considered by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. Mason CJ, Deane, Dawson and Gaudron JJ noted that s 52 provided that the conduct to which the section referred must be “in” trade or commerce. That was to be contrasted with s 51(1) of the Constitution which refers to “with respect to” trade or commerce. Their Honours went on to say that, as a matter of language, the phrase was capable of a broad construction and a narrow construction. The broad construction would mean that the phrase encompassed “conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character, but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business”. The narrow construction meant that the phrase would include only conduct “which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character” (at 602-603). Their Honours held that the narrow construction was the proper construction. They said (at 603-604):
Indeed, in the context of Part V of the Act with its heading ‘Consumer Protection’, it is plain that section 52 was not intended to extend to all conduct regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side wind, an overlay of Commonwealth law upon every field of legislative control in which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities.
381 In Houghton v Arms (2006) 225 CLR 553, the High Court considered the proper construction of “in trade or commerce” in s 9 of the Fair Trading Act 1999 (Vic). In that case, employees of a corporation made representations to clients of the corporation. The employees did not themselves engage in trade or commerce. The corporation by which they were employed did engage in trade or commerce. The question was whether the employees could be held personally liable for misleading or deceptive conduct or conduct likely to mislead or deceive. The Court held that they could. Their Honours said (at 565 [34]):
Moreover, in his judgment in Concrete Constructions, Toohey J emphasised that, while in most cases, the focus would be on the nature of the business of the party making the representation, section 52 was not so limited; in particular, the section did not, in terms, refer to the trade or commerce of any particular corporation. Accordingly, statements made by a person not himself or herself engaged in trade or commerce may answer the statutory expression if, for example, they are designed to encourage others to invest, or to continue investments, in a particular trading entity.
(Citations omitted.)
382 In this case, Mr De Luca’s conduct is not towards a person with whom the Bank has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Houghton v Arms does not assist Mr Barker because Mr De Luca’s statement was not made to a person who had dealings with the Bank in the course of those activities of the Bank which bear a trading or commercial character.
383 The facts of this case are very different from the facts which I considered in Crossman v Taylor (No 3) [2011] FCA 734 at 249-262 (see also the Full Court in Taylor v Crossman (No 2) (2012) 199 FCR 363 at 32-53).
384 The facts in this case bear some similarities to those in Martin v Tasmania Development and Resources (1999) 163 ALR 79. In that case an employee’s contract of employment was subject to one month’s notice of termination. The employee’s contract was terminated immediately, although the employer purported to give the employee a payment in lieu of notice. One of the issues before Justice Heerey was whether the applicant had a claim under s 52 of the Trade Practices Act on the basis that the employer’s letter of termination was misleading in its assertion as to the reason for the termination. Justice Heerey held that the statement was not made in trade or commerce. He disagreed with the decision of Wilcox J in Patrick v Steel Mains Pty Ltd (1987) 77 ALR 133 and he said (at 98 [77]):
But in any event I would respectfully disagree with Wilcox J. Patrick and the other authorities referred to by his Honour were all before the decision of the High Court in Concrete Constructions. The majority in that case clearly rejected the wider construction of ‘in trade or commerce’, which would extend to virtually any activity of the corporation. It is true that a building company could not earn income unless it had workers who had received instructions from foremen. But that was not enough to bring the alleged representation within the concept of ‘trade or commerce’. Similarly, TDR could not carry out its activities of promoting Tasmanian trade and development (which activities themselves I assume for present purposes to be in trade or commerce) unless it engaged staff. Nevertheless, such engagements and the necessary associated incidental negotiations, however necessary, are not in themselves of a trading or commercial character. They are internal affairs of TDR.
385 I would apply similar reasoning in this case and hold that Mr De Luca’s statement was not made in trade or commerce within s 52 of the Trade Practices Act, and that Mr Barker’s claim under that section must fail.
386 In any event, it seems to me that the representation made by Mr De Luca was of a more limited scope than that asserted by Mr Barker. It went no further than conveying the meaning that Mr Barker would remain as an executive manager in charge of a team. I do not think it conveyed a meaning that Mr Barker would be in charge of a particular number of employees or that another person or persons might not, in the future, be appointed as an executive manager. It did not convey the meaning that there would be no changes in the structure around Mr Barker in the future. In those circumstances, it seems to me that Mr De Luca had reasonable grounds for the representation he made.
387 Furthermore, the evidence of loss or damage is virtually non-existent. I mean by that, that even if, contrary to my earlier findings, the other elements of Mr Barker’s Trade Practices Act case were made out, there is virtually no evidence of what Mr Barker lost by not pursuing the inquiry about employment with NAB. After he left the Bank, Mr Barker made applications for employment with NAB, but failed the psychometric test. There is no evidence as to whether such a test was administered by NAB in 2006. I do not need to examine this question any further because of my earlier conclusion.
Conclusion
388 Mr Barker is entitled to judgment against the Bank in the sum of $317,500. I will hear the parties as to interest and costs.
I certify that the preceding three hundred and eighty-eight (388) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
