Federal Court of Australia
Wong v National Australia Bank Limited [2021] FCA 671
ORDERS
Applicant | ||
AND: | NATIONAL AUSTRALIA BANK LIMITED First Respondent CATHERINE MACLEOD Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SNADEN J:
1 The first respondent (hereafter, “NAB”) is a large and well-known Australian bank. Between 13 July 2015 and 11 May 2017, it employed the applicant, Ms Wong, in the role of “Manager[,] Internet Banking”. At the time of her dismissal, Ms Wong reported to Mr Darran Arnott, NAB’s “Head of Digital Platforms and Delivery”, who, in turn, reported to the second respondent, Ms MacLeod, who (at relevant times) served as NAB’s “General Manager, Digital”.
2 By her originating application dated 14 August 2017, Ms Wong alleges that:
(1) NAB unlawfully subjected her to various instances of “adverse action” and, thereby, contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”);
(2) Ms MacLeod was involved in those contraventions and, by application of s 550 of the FW Act, also committed each of them; and
(3) NAB and Ms MacLeod defamed her by means of an email that was sent to various NAB personnel on 21 March 2017 concerning (amongst other things) Ms Wong’s employment.
3 Ms Wong moves the court for declaratory relief, statutory compensation, damages and the imposition of pecuniary penalties.
4 Insofar as concerns Ms Wong’s statutory causes of action, three instances of adverse action are alleged. The first concerns her removal from the role of “Manager[,] Internet Banking”; the second concerns the sending of an internal NAB communication through which that removal was communicated amongst certain of the bank’s employees; and the third concerns the termination of her employment. Ms Wong alleges that each of those events occurred because, or partially because, she had made various complaints or inquiries about various matters (the full particulars of which are explored in detail below).
5 NAB and Ms MacLeod deny that Ms Wong was unlawfully subjected to any form of adverse action. They contend (by way of brief summary) that:
(1) Ms Wong was removed from her position because of concerns that her superiors had formed about her conduct and capacity (the details of which, again, are explored in detail below);
(2) the communication that advertised Ms Wong’s removal from her role was an unremarkable and inevitable consequence of that decision; and
(3) Ms Wong’s dismissal was effected because of her apparent unwillingness to acknowledge or address genuinely-held criticisms of her work.
6 The respondents maintain that none of their conduct was actuated in any way by any complaints that Ms Wong had made over the course of (and about) her employment.
7 Insofar as concerns Ms Wong’s tortious cause of action, it is alleged that the internal NAB communication by which her removal from the role of “Manager[,] Internet Banking” was announced suggested to its recipients that Ms Wong had engaged in misconduct or was otherwise incompetent, in each case at a level sufficient to warrant her immediate removal.
8 The respondents maintain that no such imputations were conveyed by that communication; and that, even if they were, it was made on an occasion of qualified privilege and is, therefore, not actionable.
9 For the reasons that follow, Ms Wong was not subjected to any unlawful adverse action and was not defamed. Her application must (and will), therefore, be dismissed.
Part 2: Background and evidence
10 Ms Wong’s originating application was filed in August 2017. It was allocated to my docket upon my appointment to this court in April 2019 and proceeded to trial in December 2019. By agreement (which the court ratified by order), the trial was confined to questions of liability only; and the question of what, if any remedies (including in the nature of damages and statutory compensation) ought to be granted was reserved for such separate and later consideration as might be required.
11 The trial ran across seven days. After the evidence was received, the parties filed comprehensive written submissions, upon which they elaborated orally at a further hearing that took place on 17 April 2020.
12 The court received written and oral testimony from ten witnesses. In addition to herself, Ms Wong led evidence from:
(1) James Matthew Bligh, formerly NAB’s “Senior Manager, Commercial Feasibility” and a colleague of Ms Wong’s;
(2) Mr Anirban Sarkar, whom NAB formerly engaged as a “contractor” in the role of “Digital Product Owner”, which reported to Ms Wong when she was NAB’s “Manager[,] Internet Banking”;
(3) Mr Alan Holmes, another former NAB employee who once reported to Ms Wong, then in his role as “Product Owner” within NAB’s “Internet Banking” team;
(4) Ms Joyce Jie, a former NAB employee who worked as a “Delivery Analyst” in NAB’s “Digital Technology” team and, in that role, worked regularly with Ms Wong;
(5) Mr Johnathan Zhuang, another former NAB employee who fulfilled the role of “Business Analysis Lead – Mobile” and who also liaised regularly with Ms Wong in that role; and
(6) Mr Paul Mocnay, who also once worked for NAB in the role of “Team Lead, Internet Banking Business Quality Team” and, in that role, reported to Ms Wong.
13 In addition to Ms MacLeod, the respondents led evidence from two witnesses, namely:
(1) Mr Todd Anthony Copeland, who at the relevant times:
(a) prior to June 2016, was NAB’s “General Manager – Digital”; and
(b) after May 2016 (when Ms MacLeod stepped into that position), was NAB’s “Executive General Manager – Digital, Customer Products & Services (Acting)”,
and who, in those roles, had occasion to observe Ms Wong and to discuss her performance with her more immediate superiors; and
(2) Mr Darran Arnott, who at the relevant times:
(a) occupied the role of NAB’s “Head of Digital Platforms and Delivery”;
(b) was Ms Wong’s immediate supervisor; and
(c) reported to NAB’s “General Manager – Digital” (Mr Copeland prior to June 2016 and, from November of that year, Ms MacLeod).
14 At the direction of one of the three previous docket judges, all witnesses gave evidence by affidavit (or, in Ms Wong’s and Mr Bligh’s case, two affidavits) and all were cross-examined. Various objections to their written testimony were raised and ruled upon during the course of the trial and needn’t here be summarised. Subject to those rulings, all 12 of the affidavits upon which the parties relied were read.
2.2 NAB’s structure and personnel
15 At the times presently material, NAB’s digital banking functions were split principally amongst two internal departments: the Digital Business department (hereafter, “Digital Business”) and the Digital Technology department (hereafter, “Digital Technology”). To complicate matters, a third group—known as the Enterprise Project and Change team (hereafter, “EP&C”)—provided project management support in relation to the various works that NAB undertook from time-to-time in connection with the provision of its digital banking services.
16 Those services comprised seven discrete digital services or “platforms”. Only three are of relevance presently: namely, what are (or were) known as the “mobile” platform, the “internet banking” platform and the “NAB Connect” platform.
17 Each of the Digital Business and Digital Technology teams had different areas of responsibility across each of NAB’s various digital banking platforms. Digital Business was responsible for their overall management: it oversaw endeavours such as strategic planning, the prioritising of initiatives, and the monitoring of usage and customer feedback. Digital Technology was responsible for technical delivery on each platform: it oversaw endeavours such as software creation.
18 As NAB’s “Manager[,] Internet Banking”, Ms Wong resided within Digital Business. Her remit was, as might be expected, NAB’s internet banking platform: the internet-accessible service through which NAB customers could attend to their various, day-to-day banking needs. Her equivalents in the “mobile” and “NAB Connect” platforms were (respectively) Ms Renima Malhotra and Mr Adam Dinneen. Ms Wong, Ms Malhotra and Mr Dinneen all reported to Mr Arnott (NAB’s “Head of Digital Platforms and Delivery”). Mr Arnott reported to Ms MacLeod, who, from November 2016, assumed the “General Manager, Digital” role that had previously been held by Mr Copeland.
19 Within Digital Technology, each of NAB’s digital banking platforms—including internet banking, mobile and NAB Connect—had allocated to it a “Delivery Manager”. The Delivery Manager for the internet banking platform was, until November 2016, Ms Jocelyn Hon. Ms Hon reported to Mr Nick Walker, who, for all intents and purposes, was Mr Arnott’s equivalent within Digital Technology.
20 Within EP&C, a project manager was allocated to each of NAB’s various digital banking platforms. Prior to November 2016, the project manager assigned to the internet banking platform was Mr Damian O’Rourke. Mr O’Rourke reported to Mr Senad Dzaferovic, who held the position of Digital Portfolio Manager.
2.3 The “MAP” and “NPP” projects
21 At the times relevant to this matter, NAB was embarked upon two projects related to its digital banking platforms.
22 The “Mobile Acceleration Program” (hereafter, the “MAP”) was a project designed to make improvements to NAB’s “mobile” banking platform. The “New Payments Platform” (hereafter, the “NPP”) was a project designed to facilitate same-day, inter-bank funds transfers. Those projects assumed a measure of importance for NAB throughout 2016 and 2017.
23 The NPP impacted directly upon NAB’s internet banking platform. The internet banking team—that is to say, the parts of each of Digital Business and Digital Technology that were aligned with that platform—was charged with incorporating into the internet banking service (or assisting with such incorporation) the relevant technological and process changes that were to be introduced under the NPP.
24 At least in (and from) the second half of 2016, the NPP was managed within EP&C by Mr Abaran Deep, who was assigned the role of “New Payments Platform, Digital Project Manager”.
2.4 The “agile” work environment
25 NAB’s digital banking platforms—or, at any event, the Digital Business within which Ms Wong worked—operated within what is apparently known as an “agile” working environment. The so-called “agile” methodology is a relatively modern system of work- or project-management. It governs the manner in which work is organised and delivered. By her written closing submissions, Ms Wong made the following observations about it (references omitted):
The Agile working methodology encourage[d] a free flow of information that was premised on team members raising issues with their manager, pointing to areas of difficulty, roadblocks and red flags. It is critical in Agile that roadblocks are called out to be addressed in very quick fashion and those roadblocks are the[n] addressed immediately. This was particularly the case in a project of the NPP’s importance and size.
26 The “agile” methodology, if I have understood it correctly, emphasises collaboration between (and amongst) autonomous or semi-autonomous teams, often (and perhaps always) comprised of cross-functional (or cross-departmental) expertise. It is a system that prioritises adaptive planning—in other words, the alteration of plans, where necessary, over the life of a particular project—as well as flexibility in the face of changing expectations or circumstances.
27 The “agile” methodology appears, at least within NAB (and probably more broadly), to have spawned a bewildering array of alternative terminology. Work projects, for example, are divided into identifiable parcels of work, known for some reason as “epics” (or, perhaps in some cases, “stories”). The staff members that comprise the team of workers responsible for delivering an “epic” are known as a “scrum”. The leader of a “scrum” is known as the “scrum master”. Each “epic” is divided into two-week “sprint” periods, during which the work in question is further divided and attended to. Some “epics” are sufficiently epic that they comprise discrete “sub-epics”. The progress of a “scrum” charged with completing an “epic” or “sub-epic” (or “story”) is recorded on a “burn up chart”. In the course of a “scrum” undertaking a “sprint” within an “epic” or “sub-epic”, an unforeseen issue or circumstance might arise that inhibits the completion of the work. They are known as “roadblocks”. “Roadblocks”, no doubt amongst other things, are the subject of discussion at “stand ups”, which are regular, short and informal meetings conducted amongst “scrum” members.
28 As will be seen, the “agile” working method serves as relevant context in this matter.
29 There are three periods or points in time that are of central significance to the present matter.
30 The first spans the period from January 2016 to 21 March 2017. Ms Wong contends that, during that period, she made a number of complaints related to her employment; some written, others verbal. The alleged complaints related to various aspects of Ms Wong’s work; and, more specifically, to difficulties that arose in connection with it and in connection, even more specifically, with the MAP and NPP projects upon which she worked.
31 Over the same period, the respondents (or, in NAB’s case, its senior managers) also formed, or claimed to have formed, some views about Ms Wong: both about her capabilities and her conduct, and about their impacts upon the performance of her work and the completion of the MAP and the NPP. Those views were the subject of occasional discussion, both with and externally to Ms Wong. Again, attention will shortly return to the specifics of those views and the particulars of those discussions.
32 The second relevant point in time is Tuesday, 21 March 2017. It was on that day that Ms Wong was removed from her position as “Manager[,] Internet Banking”. That removal was communicated to Ms Wong at a meeting that she attended on that day with Ms MacLeod and Mr Adrian Sbrugnera (one of NAB’s “HR Partner[s]”). It was announced to the broader NAB community (or elements of it) by means of an email sent that afternoon. That email (hereafter, the “21 March 2017 Announcement”), headed “Important Announcement: Internet Banking team”, assumes central significance in this matter and it is appropriate to replicate the body of its text in full (emphasis and errors original):
Hi Team,
We are sending this email to communicate some important changes to the Internet Banking delivery team.
Our Internet Banking platform continues to be strategically important to both Digital and the broader organisation. Most importantly, millions of our valued customers rely on Internet Banking as their front door into the bank, and we are committed to investing heavily in the platform to uplift the customer experience and underlying system performance and resilience.
We are also keen to accelerate building towards our target architectural end-state. This means moving the platform onto our API/Service Engines backbone and, over the longer term, working closely with the NAB Connect team to realise opportunities to bring the platforms closer together. By doing so, we will create a better and more consistent experience for our customers.
The Internet Banking platform is also facing some immediate challenges, with a surge in project demand from across the organisation, as well as the need to successfully land critical in-flight work across NPP, AML/CRS and the Visa Cards program.
To ensure we are best set up for success, we have decided to make a number of changes to the team, as follows:
Effective immediately:
• Adam Dinneen will assume the role of Platform Owner for Internet Banking, replacing Sene-Li Wong. In addition to ensuring the successful delivery of in-flight work, Adam will also be tasked with working closely with the NAB Connect team to identify and execute on opportunities to bring the platforms closer together. We would like to thank Sene-Li for the significant contribution she has made to both the platform and Digital, and we are working through next steps with her.
• Greer Lucas will temporarily assume the role of Capability Lead for Internet Banking. Greer will be performing this role whilst we begin recruiting for a permanent capability lead in the coming weeks.
Effective April 12:
• Grainne Diver and Rami Abouchedid will be performing our first cross platform role swap as we look to encourage better ways of knowledge sharing and collaboration between Internet Banking and NAB Connect.
• Natalia Pedan will temporarily assume the role of Platform Engineer for Internet Banking, working closely with our delivery leads to streamline end to end delivery whilst taking us a step closer towards target state with each release.
As many of you may be aware we are actively looking for a permanent delivery manager to join the team with active recruitment under way. In the interim Bobby Singh will continue to provide support across both the Internet Banking and NAB Connect platforms, continuing to refine our scaled delivery model.
We appreciate that any team changes can be unsettling, however it is important to reinforce that these changes are being made with the intent to heighten the leadership and focus on the Internet Banking platform, and we are committed to supporting those of you impacted by the above changes.
If you have any questions or concerns, please reach out to your people leader or a member of the Digital or Digital Technology leadership team.
Thanks, Catherine & David
Catherine MacLeod | GM Digital David Killen | GM Digital Technology
33 The 21 March 2017 Announcement was sent to 423 recipients. Their composition is the subject of analysis below.
34 Also on 21 March 2017, Ms MacLeod sent an email to Ms Wong, in which she summarised the content of their meeting earlier that day. That email (hereafter, the “21 March Meeting Summary”) read as follows:
Hi Sene Li,
Thank you for meeting with myself and Adrian Sbrugnera from our human resources department today. I asked Adrian to attend our meeting given the importance of our discussion and so he could support our conversation.
This email outlines what we discussed during our meeting.
I referred to the notes I had made to ensure I communicated all of the information I had for you as it is critical you are made aware of it and understand.
I covered 3 issues:
(1) Significant concerns about the underperformance on the internet Banking platform for which you are accountable in your role;
• Consistent feedback from stakeholders within and outside of Digital that the platform is incredibly challenging to deal with.
• Clear lack of leadership, direction and coherence across the team.
• Ongoing loss of key people within the team (key examples include UX & Design resources, and digital technology staff)
• Lack of transparency and clear articulation of risks and issues within the platform.
(2) The most critical and visible program of work on the platform, NPP, has suffered from a significant cost blow out, putting one of the bank's major strategic priorities at risk and potentially causing significant impacts for customers;
• Despite the NPP Program running for more than 12 months, the underperformance and cost increase has only been called out in recent weeks.
• There is a significant amount of NPP work occurring across Digital, however the Internet Banking platform is a clear anomaly in terms of performance for NPP.
• You have demonstrated a distinct lack of accountability for the NPP issues, and have not been able to clearly articulate and justify many aspects of the work effort and NPP plan (e.g. costs increasing from $3.2m to $5.2m and then $7.2m over a matter of weeks without clear and concise justification)
• The NPP Program has highlighted that the IB platform is very difficult to deal with in comparison to other areas of Digital.
(3) Despite previously raising and addressing a number of behavioural issues with you in FY16, we have ongoing concerns about your behaviour not aligning to NAB's values;
• Concerns have continued to be raised by members of the Digital leadership team, your peers and other members of the Digital team and organisation.
• The themes in this feedback relate to aggressive and combative behaviour, and lack of willingness to accept ideas and feedback from others, which has led to feedback that others are hesitant to approach yourself and the IB team.
In light of my concerns regarding your performance and behaviours and the impact it has had both on the performance of the IB Platform / NPP and on other employees, effectively immediately you will no longer be responsible for the Internet Banking platform and Adam Dinneen will now take this responsibility. Given this, I am now conducting a review of your employment. This may include your employment with NAB being terminated, consistent with Clause 15 of your employment contract. However, prior to making a final decision I want to provide you the opportunity to reflect on what I have said and to come back to me by close of business on Friday 24th March 2017 with your thoughts.
I will then take the time to consider this, along with all of the other information I have and make a final decision. I would like you to please focus on this matter and to spend time reflecting on what I have said to you today and come back to me with your view.
As such, you are not required to be at work and effective immediately you will be on paid leave. We would ask you to put an out of office message on your phone and email to inform people that you are on leave and that any queries should be directed to Darran Arnott.
Later today this will be announced to the team. Should employees ask what you will be doing, they will be advised that we are presently discussing this change with you and working through next steps. Should you be contacted by employees I would ask that you please advise them of the same.
Please note that this conversation is considered to be confidential and must not be discussed with any other NAB employee without first seeking approval from Adrian or myself to do so. You are of course able to discuss this with any external support person you have such as family or friends.
I would encourage you to continue to use the Employee Assistance Program (EAP) for support. Please reach out to myself or Adrian Sbrugnera ([telephone number redacted]) if you have any questions
Regards
Catherine
Catherine MacLeod
General Manager, Digital
35 The third period relevant to the present matter spans between 21 March 2017 and 11 May 2017. It was on that latter date that Ms Wong’s employment with NAB was terminated. Over the course of that period, Ms Wong sent and received a number of emails to and from NAB senior management, the particulars of which it is convenient now to trace.
36 On Friday, 24 March 2017, Ms Wong responded to the 21 March Meeting Summary. Again, it is convenient to set out in full the terms of that correspondence:
Hi Catherine,
I refer to the meeting on 21st March 2017 (Meeting) with you and Adrian Sbrugnera.
I attach a copy of the discussion note of the meeting (Meeting of 21st March 2017).
I am disturbed, disappointed, distressed, humiliated and harassed by the way the meeting was conducted and the conduct thereafter by way of notice to all the staff. I felt intimidated as I was told not to take notes by Adrian and was not able to understand the serious allegations raised as when I asked for examples it was not addressed by you, save for the examples you gave in broad terms, with regards to the UX resource crying and the NPP estimation changes in a short period of time.
I am totally shocked by the way the meeting was conducted and the fact that I was asked to leave immediately after the meeting.
In relation to your email of the 21st March 2017 it makes serious allegations but does not allow me a fair opportunity to respond justly as the allegations are too broad.
The allegations made are serious, damaging and least to say, has serious consequences. When I asked for examples, to understand what exactly the nature of the allegation was, I was told by Adrian that you will write to me and as he puts it, ''As General Manager, Catherine would have done her due diligence and she will send the notes that she has recorded to you in an email."
I have read your email which raises 3 sets of serious allegations. The allegations made are serious as they affect my reputation, capability, integrity and work ethics.
Here are some of my serious concerns:
a) My concerns are besides the various serious allegations made that you have failed to address each allegation raised in a clear and precise term as to exactly what you are dissatisfied with.
b) The way the meeting was conducted.
c) The way I was asked to leave.
d) The way and the contents of the email that was sent out to all staff.
e) The conduct of the meeting and your email that followed devastated my hope of explaining my position and deprived me of justice as I felt bullied and intimidated and have not been given the opportunity to respond or ask questions about the serious allegations against me in light of the allegations being so broad.
f) The conduct in this matter clearly is harassment, intimidation and bullying,
It is not sufficient and it is not proper to make broad statements such as, "Consistent feedback from stakeholders within and outside of Digital that the platform is incredibly challenging to deal with."
You have an obligation to advise me what each of the allegation is, in clear and precise terms, so that I have the opportunity to respond to each allegation. You also have an obligation to hear me without bias. There is a further obligation on you to investigate fully and justly.
It has become evident to me from the meeting and from your email that you could not present clear and precise terms of each and any allegation you were making in broad terms as you may not have investigated all issues thoroughly as you could not provide me with examples including the two examples mentioned above which were in broad terms.
Kindly advise, in relation to each allegation made in your email, who, when, in what context, and/or circumstances and in whose presence the allegations were made and/or details of each allegation on clear and precise terms, as you have failed to provide these details in the meeting and in your email, including the two examples mentioned above.
I await your clear detailed accounts of each allegation to which I will respond.
I request you provide me this information, so that all relevant issues can be considered and investigated thoroughly, in an attempt to ascertain any underlying cause of the problem(s). I request a fair opportunity to respond to your serious allegations.
I have serious concerns with the conduct of this matter, as the matters in hand involve a number of my colleagues including Digital LT members including but not limited to:
• Todd Copeland -Acting EGM Digital
• Catherine Macleod - GM Digital
• Darran Arnott- Head of Digital Platforms and Delivery_
• Nick Walker- Head of Technology (Digital)
• Bridget Burton (Parental Leave) and Brendan Donoghue - Head of Digital Design & UX (acting for Bridget Burton)
• Abaran Deep - NPP Digital Project Manager (external consultant from PCI Group)
As I have identified you as one of the parties involved with the matters of concern, alongside the others listed above, I request that the allegations against me be heard and investigated by an independent person, who is not biased, ie., you.
Accordingly, as this is a serious matter and as there are strong allegations against me, and in the interest of justice I request:
a) An independent person be appointed to consider this matter, and
b) A proper and thorough investigation be conducted, and
c) so that there is transparency, and
d) NAB's interest is always protected.
I request that all correspondence and communication in this matter be in writing, so that there is no misunderstanding and there is clarity.
I also note that in your email you stated that I could reach out to you or Adrian if I had any questions. It is with deep regret, that I note that the statement made by you is not in good faith. As you are one of the parties that I tried to approach with various issues and you have failed to grant me a meeting despite asking me to book a two hour meeting via your PA which you later cancelled. Your PA said that you will get back to me when you are ready.
The only meeting you have arranged successfully is the meeting of 21st March 2017. For this reason alone, it is clear that this matter should be considered by a non-biased person.
In the interest of fairness and in order that this matter is investigated thoroughly without bias and so that the matter is on record I will extend a copy of this email and its attachments to the CEO, Mr Andrew Thorburn as there are a lot of people involved in this matter and has serious consequences for NAB.
I reserve my rights in this matter.
Regards,
Sene-Li Wong
Customer Product and Services
National Australia Bank
37 Later that day, Ms Wong sent the following email to NAB’s chief executive officer, Mr Andrew Thorburn:
Dear Andrew,
Re: Matters of Concern
I have serious concerns about various serious allegations made against me.
Attached please find:
a) E-mail from Catherine Macleod (General Manager Digital) dated 21st March 2017,
b) Notes of meeting on 21st March 2017 and
c) My written response to Catherine Macleod 24th March 2017.
I trust that in the interest of the ethics held by NAB and potential risks that this matter be investigated thoroughly and justly. I have concerns in the way the matter is conducted, as is self-explanatory from my response dated 24 March 2017.
As these matters affect a lot of staff, NAB, the bank's reputation, the risk it may be subject to, it is important that I bring it to your notice for any action you think proper and fit, in the best interest of the bank.
As an employee of NAB I have a duty to raise the serious concerns that can impact the bank in a negative way and the serious consequences flowing from these. It is important a thorough investigation is carried out by an independent party so that NAB is not subject to potential risk.
Please feel free to contact me should you require any further information. Kindly acknowledge receipt of my email to the following address: [redacted]
Regards, Sene-Li Wong
38 Perhaps unsurprisingly (I say with due respect to everybody), Mr Thorburn or somebody on his behalf referred Ms Wong’s email to someone a little lower in the NAB hierarchy. On Tuesday, 28 March 2017, Ms Jenny Matthews, NAB’s “Manager, Workplace Relations”, responded to Ms Wong’s email and offered to meet with her to discuss her (Ms Wong’s) concerns.
39 Over the course of the following weeks, Ms Wong took a period of leave. On 24 April 2017, Ms Matthews contacted Ms Wong again, repeating her offer to meet and discuss Ms Wong’s concerns. Ms Wong responded to that email the following day as follows:
Hi Jenny,
Thank you for your emails on 28 March 2017 and 24 April 2017.
I note that you are the Manager of the Workplace Relations team with NAB and are managing my email to Andrew Thorburn.
I further note that you propose we catch up when I get back from my holidays.
I am happy to catch up with you. It will be better to have a fruitful meeting and transparency once I have a response from NAB.
For the purposes of clarity and completeness, I refer to the following, respectively:
a) Catherine's email dated 21 March 2017, and
b) My response to Catherine and copy to Andrew Thorburn dated 24 March 2017, and
c) Your emails dated 28 March 2017 and 24 April 2017.
To-date NAB has not responded to my email of 24 March 2017.
I refer you to, and kindly note:
I. the meeting on 21 March 2017 between Catherine, Adrian and me, and
ii. Catherine's email dated 21 March 2017, and
iii. Catherine's email to NAB staff on 21 March 2017 notifying NAB staff that I am removed from my position effective immediately, and
iv. I was asked to leave NAB's premises by Catherine ASAP on 21 March 2017, and
v. I have been asked to take paid leave from NAB until Catherine makes her decision, and
vi. My position was removed immediately by Catherine and handed to another person without any handover process.
I also refer to my email on 24 March 2017 to Catherine asking details of the various serious allegations made against me.
To-date, NAB has not responded to my request in my email dated 24 March 2017. I await the response so that I can then respond to the matters as necessary.
I would appreciate if you would advise me:
a) Who is responsible to respond to my email of 24 March 2017, and
b) What is your role in this matter (are you the one who will be responding to my email of 24 March 2017?)
To go forward, it would be only reasonable that I get a response to my email of 24 March 2017 from NAB with details of the various serious allegations made against me. It would also be appropriate for NAB to give me reasonable time to respond to its reply.
Kindly advise the purpose of our meeting. I believe it would be most appropriate if we have the meeting after I have had the response from NAB as to the various serious allegations that have been made by NAB against me and I have the opportunity to respond to it.
Further, for purposes of certainty and clarity, I request all communication be in writing so that there is no misunderstanding as to what the parties are saying.
Regards,
Sene-Li
40 On Wednesday, 3 May 2017, Ms MacLeod wrote to Ms Wong. That email also assumes some significance in this matter and should, again, be replicated in full (errors original):
Dear Sene-Li,
I refer to your email of 24 March 2017. Please note that I had not responded prior given it was my understanding you were on sick leave and annual leave for the period 27 March 2017 to 26 April 2017 and I had not been provided any update in respect to your return from leave until recently.
Regarding your request for specific details about the "serious allegations" raised about you, I would like to clarify that these were not presented to you as "serious allegations". What I discussed with you in our meeting on 21 March 2017, which I detailed in my follow up email to you on the same day, was in relation to feedback received from multiple employees about your general behaviours which were impacting the performance of the Internet Banking platform (including critically, NPP), for which you are accountable.
This feedback was consistent with prior feedback received which was addressed with you throughout 2016. This was reflected in both your Mid Year and End of Year performance ratings of "D" and "C" respectively.
I am concerned your response in your letter of 24 March 2017 has focussed on obtaining specific details of feedback received, rather than to actually consider why multiple employees would provide such feedback.
Of further concern is your failure to acknowledge your accountability for the underperformance of the IB Platform. As per my feedback, in addition to the negative feedback from employees, there has been a sharp degradation in your performance from a platform delivery perspective, including clear lack of leadership and direction for the team, and a lack of ability to clearly articulate and resolve key risks and issues on the platform.
I believe I made it clear to you in our meeting that the underperformance of the IB Platform, given its criticality, could not continue, which was why I made the decision to remove it from your accountability. In addition, I asked you to reflect on the feedback and provide me with your views of it.
Notwithstanding my comments above, I acknowledge your request for specific examples in respect to feedback received and provide the following for your review.
(1) Significant behavioural concerns have been raised by a number of members of the Digital Technology team, including multiple Delivery Managers, who have cycled through the Internet Banking team over the last six months. Despite the turnover in people, there have been consistent concerns raised about your behaviours and a divisive "us vs them" attitude that you have created between the Digital Business and Digital Technology teams. One employee has stated that you are the most difficult person they have dealt with during their extensive career at the bank.
(2) Numerous members of the Digital UX & Design team have raised concerns with the Digital Leadership Team about your behaviours, which they have described as dismissive, combative and, at times, aggressive. This has prompted one employee to break down in tears when describing their difficulties in working with you, which cannot be tolerated.
(3) A number Digital Leadership Team members have cited ongoing difficulties in working with you since similar feedback was provided throughout the 2016 performance year. Specific feedback has been escalated to me from Nick Walker, Brendan Donoghue and Piers Balmer. This feedback has related to specific interactions with you, and they have also highlighted a degree of fear in approaching you regarding standard workplace matters because of the behaviours you have exhibited.
(4) In relation to NPP delivery, both the broader NPP Program Team and the Digital Program Manager have specifically highlighted the difficulties they have encountered working with you (lack of schedule & cost transparency, lack of willingness to work in a transparent and collaborative manner with the Program team) relative to the other Digital teams they have worked with throughout the NPP Program.
Given the period of time which has passed since I met with you on 21 March 2017, it is appropriate for this matter to be concluded. You are welcome to provide me with any further information for me to consider in respect to this matter. Please provide this to me by close of business on Friday 5th May. Following a review of all relevant information, a final decision in respect to your ongoing employment will be made and communicated to you.
Regards
Catherine
Catherine MacLeod
General Manager, Digital
41 In response, Ms Wong sent an email later that day to Ms Matthews, to which she copied Ms MacLeod, Mr Sbrugnera and Mr Thorburn. That email read as follows (errors original):
Hi Jenny,
I refer to our previous correspondence in this matter.
I have received the email below from Catherine Macleod today and note that you were not included in the email.
I am very concerned, disturbed, puzzled and surprised by Catherine Macleod's email and its contents. Again, they are broad allegations made against me without any details.
Can you please explain, what's happening, as I understood it, you were dealing with this matter as an independent person. Further I refer to your email dated 27 April 2017, where you said that you "will follow up in relation to the response you have requested and will come back to you."
I request your urgent response.
I am yet awaiting the details of the allegations made by NAB against me:
(a) On 21 March 2017 (refer to Catherine Macleod’s email dated 21 March 2017) and
(b) On 3 May 2017 (refer to Catherine Macleod's email dated 3 May 2017).
Please advise when I will be provided with details of the various allegations by NAB so that I can respond accordingly.
I have concerns in the way this matter is being handled and I have therefore copied Andrew Thorburn on this email.
I reserve my rights in this matter.
Regards,
Sene-Li
42 The following morning, Ms Matthews responded to Ms Wong by email and again proposed that they meet in order to “…have a discussion about your concerns and how we can progress with them”. Ms Wong sent email correspondence in reply, to which Mr Thorburn was copied. That email was lengthy. It contained the following extracts (errors original):
Hi Jenny,
I received your email this morning and note with concern your response in relation to:
a) It does not reflect the true position.
b) You have not responded to me in relation to my request as to the purpose of our meeting.
c) I did not seek a response from Catherine Macleod.
d) It is clear from my email of 24 March 2017 that I requested that this matter be handled by an independent person who is not biased.
e) Your proposal to have a meeting to discuss my concerns is premature in light of the fact, as you suggested that I have Catherine's response and so we can proceed with the issues in the matter which were clearly raised in my email of 24 March 2017…It seems clear to me from the emails received to-date that there has not been an independent review of my dispute.
f) Further, I will not comment on the matters raised in NAB's email (Catherine Macleod's email) of 3 May 2017 as it does not raise details of the allegations…
g) Last but not least, NAB has failed to address my concerns in that the allegations made by NAB have not been justified by NAB.
…
You stated in your email of 4 May 2017 that “we discuss your concerns and how we can resolve them."
This statement is very vague and is not reflected in any of your emails. Kindly refer me to your email which states this.
Your first email on 28 March 2017 asked if I had time to chat tomorrow.
Your second email on 31 March 2017 asked if we can catch up.
Your third email on 24 April 2017 said “catch up some time this week."
Your fourth email on 27 April 2017 stated:
1) You understand I have raised concerns about bullying and that I have requested an independent person to be involved to conduct a review of my concerns, and
2) "My role would be as part of that review," and
3) "I will follow up in relation to the response you have requested and will come back to you."
Further you did not respond to me as to the purpose of our meeting, despite my request for the purpose of our meeting.
You failed to respond to me, despite your promise in point (3) above.
I then received an email from Catherine Macleod dated 3 May 2017 and now on 4 May 2017 you are writing to me to "discuss your concerns and how we can resolve them.”
You have refused, failed, neglected to provide me with the details of the allegations (or justifications) made by NAB on:
a) 21 March 2017 (email from Catherine Macleod) and
b) 3 May 2017 (email from Catherine Macleod)
I refer you to my email on 25 April 2017, where I wrote, besides asking what your role is:
“I am happy to catch up with you. It will be better to have a fruitful meeting and transparency once l have a response from NAB.”
Also in the email I asked, “Kindly advise the purpose of our meeting. I believe it would be most appropriate if we have the meeting after I have had the response from NAB as to the opportunity to respond to it.”
In the last paragraph of my email I said,
"Further, for purposes of certainty and clarity, I request all communication to be in writing so that there is no misunderstanding as to what the parties are saying.
To go forward, it would be only reasonable that I get a response to my email of 24 March 2017 from NAB with details of the various allegations made against me…
I refer to your email today (dated 4 May 2017), stating, “Now that you have Catherine's response, I propose that we have a discussion about your concerns and how we can progress.
Such a proposal lacks proper judgement and has total failure of consideration of the matter on your part. You have failed to provide proper details of the allegations…
I have never asked for Catherine's response. I have, as a matter of fact, requested NAB for an independent person to investigate…
As requested in my email yesterday, it would be obligatory for NAB to provide details of allegation(s) made by NAB against me on:
a) 21 March 2017 (email from Catherine Macleod) and
b) 3 May 2017 (email from Catherine Macleod)
I note that NAB has failed, refused and neglected in complying with the law, to provide details of each allegation it has made against me…
I also note that you still refuse to provide details or justification for the allegations as requested repeatedly in my correspondence.
The allegations by NAB against me are broad allegations. The failure to provide details of the allegations to me make it difficult for me to respond to each allegation as they are broad.
Once NAB provides a response to my reasonable repeated request and details the allegations, I will then be able to respond.
After that I can have an open and transparent discussion with NAB.
…
I require NAB to provide to me:
1) Details of the wide allegations in Catherine Macleod’s email of 21 March 2017 and 3 May 2017, or
2) Withdraw all the allegations.
I reserve my rights in this matter.
Regards,
Sene-Li
43 Ms Wong sent further, lengthy correspondence on Monday, 8 May 2017, again copied to Mr Thorburn. It is unnecessary to replicate the text of that email. It suffices to record that it:
(1) set out a number of concerns that Ms Wong had about her 21 March 2017 meeting with Ms MacLeod and the emails that she and Ms MacLeod had traded subsequently;
(2) stated Ms Wong’s belief that NAB’s management of her had been unfair and that her future at NAB had already been pre-determined; and
(3) concluded in the following terms:
In order to go forward and to finalise the process:
a) Please provide details of all allegations as requested in prior correspondence and in this correspondence. For purposes of clarity, I reiterate that I request you provide details of the various allegations raised by Catherine and further, in relation to matters raised by you (Jenny).
b) I am happy to have a meeting once I have received the details (as requested in (a) above). Once I receive this, I will provide my written response within a reasonable time.
c) In view of my concerns raised above, I request that an independent external investigator be appointed (to be agreed by both NAB and I) so that there is no issue of conflict of interest, partiality, bias, and any vested interest in the outcome and for a true and thorough investigation be done in the interest of both NAB and I and done in good faith.
d) Please provide full disclosure of all documents in support of your allegations.
I reserve my rights in this matter.
44 On Tuesday, 9 May 2017, Ms Matthews responded to Ms Wong’s email. She copied Ms MacLeod to her response. By way of summary of that correspondence, Ms Matthews stated that:
(1) Ms Wong’s meeting with Ms MacLeod on 21 March 2017 was appropriate, and was intended to provide Ms Wong with feedback for her consideration;
(2) the feedback provided to Ms Wong about her performance and behaviour had been sufficient;
(3) Ms MacLeod’s decision to remove Ms Wong from her role as “Manager[,] Internet Banking” was reasonable in light of the significant difficulties associated with NPP and of the consistent feedback that NAB had received over an extended period of time about Ms Wong’s behaviour; and
(4) NAB would not accede to Ms Wong’s request for the appointment of an “external investigator”.
45 That afternoon, Ms Wong replied to Ms Matthews’s email (and copied her reply to Ms MacLeod and Mr Thorburn). Her email read as follows:
Hi Jenny,
I refer to your correspondence of 9 May 2017 (attached) with total surprise and refer to all correspondence in this matter.
I reiterate my concerns as raised in previous correspondence and also, in particular as detailed in my email of 8 May 2017 below.
You have failed and refused to respond to my numerous concerns and requests for details on each allegation.
I reiterate that I require the details of the allegations made by Catherine and yourself as outlined in my email of 8 May 2017 so that I can provide the response in writing.
I await the detailed allegations requested as soon as possible.
I reserve my rights.
Regards,
Sene-Li
46 By letter dated 11 May 2017 (a copy of which was emailed to Ms Wong on that day), NAB terminated Ms Wong’s employment. The terms of that letter need not be explored.
Part 3: The Adverse action case
47 Ms Wong’s adverse action case is conceptually simple. She maintains that, over the course of 2016 and early 2017, she raised with NAB (through the agency of various of its managers) an array of concerns, grievances and inquiries related to various aspects of her work (and, in particular to problems associated with the MAP and the NPP, and with the competence of various staff assigned to perform work connected with those projects). She alleges that NAB’s decision to remove her from her role and to send the 21 March 2017 Announcement was, in each case, actuated or partly actuated by reason of her having raised some or all of those concerns, grievances and inquiries.
48 Additionally, Ms Wong maintains that she raised a series of further concerns, grievances and inquiries after being removed from her role as “Manager[,] Internet Banking”. She alleges that NAB’s decision to terminate her employment was actuated or partly actuated by reason of her having raised some or all of those concerns, grievances or inquiries, and/or by reason of her having raised some or all of the grievances and inquiries that pre-dated her removal.
49 Ms Wong credits Ms MacLeod and Mr Arnott with having decided (on behalf of NAB) to remove her from her role, to send the 21 March 2017 Announcement and to terminate her employment. Each of those decisions visited upon her, she says, consequences sufficient to constitute “adverse action” within the meaning attributed to that phrase by s 342 of the FW Act. Those decisions having been actuated (so Ms Wong submits) by reason of her having raised her concerns, grievances or inquiries, the resultant adverse action was, she contends, imposed upon her in contravention of s 340(1) of the FW Act. Ms Wong contends that Ms MacLeod was relevantly “involved in” NAB’s contraventions of that section (such that she is deemed to have committed them herself).
50 Part 3-1 of the FW Act is entitled “general protections”. Amongst other things, it provides for a suite of protections designed to safeguard the exercise of “workplace rights”. One of those protections is provided for by s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
51 Section 342(1) of the FW Act defines “adverse action”. Relevantly, an employer subjects an employee to adverse action if the employer:
(1) dismisses the employee;
(2) injures the employee in his or her employment;
(3) alters the position of the employee to the employee’s prejudice; or
(4) discriminates between the employee and other employees of the employer,
(FW Act, s 342(1), item 1).
52 Section 341(1) of the FW Act identifies the circumstances in which a person might be understood to possess a “workplace right”. It relevantly provides (and provided) as follows:
341 Meaning of workplace right
…
(1) A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
…
(ii) if the person is an employee—in relation to his or her employment.
53 Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Pt 3-1 of the FW Act proscribes. In order to be actionable under Pt 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
54 Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of Pt 3-1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
55 Section 539(1) of the FW Act is entitled “applications for orders in relation to contraventions of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as “civil remedy provision[s]”. Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this court to hear applications for relief relating to contraventions of that section. The court has the power to grant relief in the nature of declarations, compensation and penalties (amongst other things).
56 The court’s jurisdiction to entertain an action alleging a contravention of Pt 3-1 of the FW Act that relates to the termination of an employee’s employment is constrained by subdiv A of div 8 of that part. The court’s jurisdiction to hear the present application, however, is not a matter of any controversy.
57 Section 550 of the FW Act concerns accessorial liability. It establishes that a person is taken to have contravened a civil remedy provision if he or she is “involved in” another person’s contravention. A person is “involved in” another’s contravention of a civil remedy provision if (amongst other possibilities) he or she “…has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to…” the other person’s contravention.
58 Section 793 of the FW Act is entitled “liability of bodies corporate”. It relevantly provides (and provided) as follows:
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
59 In order to make out her case, Ms Wong needs to demonstrate that NAB, via the agency of its human officers, subjected her to “adverse action” and did so because (or for reasons that included that) she had exercised a “workplace right” or “workplace rights”. Insofar as concerns the latter, substantial assistance is afforded by the statutory presumption for which s 361 of the FW Act provides.
60 In most general protections matters, the conduct to which an applicant employee (or former employee) was subjected and its qualification as “adverse action” are not in issue. Typically, that conduct and its character are apparent from the pleadings. Particularly is that so in cases involving the termination of a former employee’s employment, as this one does.
61 Presently, the respondents accept that the applicant was subjected to “adverse action” insofar as she was removed from her position as “Manager[,] Internet Banking” on 21 March 2017 and, on 11 May 2017, was dismissed. Whether or not the sending of the 21 March 2017 Announcement qualifies as adverse action remains live.
62 For the purposes of s 342 of the FW Act (above, [51]), an employer:
(1) “injures [an] employee in his or her employment” if it subjects him or her to legally compensable injury; and
(2) “alters the position of [an] employee to the employee’s prejudice” if, by its conduct, it visits any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question–
Patrick Stevedores Operations (No 2) v Maritime Union of Australia (1998) 195 CLR 1, 18 [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
63 An alteration to the position of an employee will be relevantly prejudicial if it visits adverse consequences that are real and substantial, rather than merely possible or hypothetical: Qantas Airways Ltd v Australian Licensed Aircraft Engineers’ Association (2012) 202 FCR 244, 250 [32] (Gray, North and Besanko JJ); CFMEU v Piblara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [48] (Katzmann J).
3.3.2 Employment-related complaints or inquiries
64 Amongst other means, an employee possesses a workplace right if he or she is able to make a complaint or inquiry in relation to his or her employment: FW Act, s 341(1)(c)(ii).
65 In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (hereafter, “PIA”), 252-253 [134]-[139] (Snaden J), I made the following relevant observations on those scores:
In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the FW Act refers, it must pertain, as a matter of substance, to its maker’s employment. That being so, it is necessary to consider whether either or both of the [complaints that were made in that case] were of that nature: that is, were they complaints or inquiries that pertained to Mr King’s employment?
That requires analysis at two levels: first, did each of the [relevant complaints] qualify as a “complaint or inquiry”; and, second, did each arise “in relation to [Mr King’s] employment”?
The Macquarie Dictionary relevantly defines “complaint” and “inquiry” respectively as follows:
complaint
...
1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.
2. a cause of grief, discontent, lamentation, etc.
…
inquiry
…
2. the act of inquiring, or seeking information by questioning; interrogation.
3. a question; query.
– phr 4. make inquiry (or inquiries), to request information: to make inquiries at the office.
A “complaint”, then, is a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable: see, in that vein, Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346…this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at 353-354 [29]) that:
…in the context of s 341(1)(c)(ii) of the [FW] Act:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii)…
I respectfully adopt her Honour’s reasoning. I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal: see Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159, 163 [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton’s J implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, The Environmental Group Ltd v Bowd [2019] FCA 951, [144] (Steward J)...
Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to…employment” depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (Dodds-Streeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.
That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).
66 Although I dissented in the outcome in that case, those observations were not obviously controversial. The majority (Rangiah and Charlesworth JJ) did not address the conceptual boundaries of “complaints” or “inquiries”; their Honours instead focused upon the primary issue in that case, namely whether the complaints that had been made were complaints that the former employee was “able to make”.
67 In The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352 (hereafter, “Bowd”), Steward J questioned whether the “potential implications” test might be appropriate for senior management employees, whose conduct as such might be thought always to have at least potential employment ramifications. His Honour observed (at 392 [126]):
…in the case of a CEO, the complaint must be one directed at or concerned with that person’s employment in a substantive way. In that respect, observing the required nexus may be direct or indirect, may not greatly assist. It must, as a matter of substance, be about that CEO’s employment.
3.3.3 The exercise of workplace rights
68 Not all complaints or inquiries that an employee makes in connection with his or her employment are complaints or inquiries made in the exercise of a workplace right or rights. Section 340(1) of the FW Act, insofar as it applies presently, prohibits adverse action that is occasioned on account of a person having exercised a workplace right: FW Act, s 340(1)(a)(ii). Section 341(1) identifies the circumstances in which a person has such a right. It is only in circumstances where a person exercises a right that he or she possesses that the protection afforded by s 340(1)(a)(ii) is enlivened. For present purposes, a person has—and, therefore, can exercise—a right to complain or inquire in relation to their employment if that complaint or inquiry is one that they are “able to make”: FW Act, s 341(1)(c)(ii).
69 Employees are not possessed of an ability to complain or inquire in relation to their employment merely because they possess a capacity to communicate a grievance or interrogatory. In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346, (hereafter, “Shea”; Dodds-Streeton J), this court made the following relevant observations (at 440 [625]):
…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
70 Her Honour’s observations have been the subject of recent full court endorsement: PIA, 229 [12] (Rangiah and Charlesworth JJ), 257-258 [164] (Snaden J); Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 (hereafter, “Whelan”), 55-56 [28] (Greenwood, Logan and Derrington JJ).
71 Whelan concerned a claim by a former employee who alleged that he had been the victim of adverse action because of complaints or inquiries that he had made about his contractual bonus entitlements. There was no suggestion, in that case, that the employee was authorised to make those complaints pursuant to any right or entitlement conferred upon him to that end. Although purporting to endorse and apply what Dodds-Streeton J said in Shea, the learned trial judge held that those complaints nonetheless were complaints that the employee was “able to make” because they were complaints about entitlements that his employment contract conferred upon him. The full court endorsed that reasoning on appeal. Thus, the gamut of employment-related complaints that might qualify as complaints that an employee was “able to make” for the purposes of s 341(1)(c)(ii) was expanded to include not merely those that were made in the exercise of rights or entitlements conferred to that end, but also those whose subject matter concerned other rights or entitlements (or, at the very least, other rights or entitlements that found expression within a contract of employment).
72 In PIA, a former employee claimed to have been dismissed (and, thereby, to have been subjected to adverse action) because he had made two complaints: one that his employer had proposed to dismiss him in contravention of a term of his employment contract; the other that the employer had misled him into accepting employment in the first place. At first instance, both complaints were held to be complaints of the kind to which s 341(1)(c)(ii) of the FW Act referred. On appeal, the majority reached the same view. The following observations of the majority (at 232-233 [26]-[27]) assume some significance:
An employee is “able to complain” to his or her employer within s 341(1)(c)(ii) of the FW Act concerning the employer’s alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is “able to complain” to the employer or to a relevant authority of their employer’s alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority. As Dodds-Streeton J held in Shea at [29], the complaint must be made genuinely, in good faith and for a proper purpose.
The variety of circumstances arising in employment law cases is notoriously wide. Nothing we have said is intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint. Nor is it intended to foreclose argument about any limitation as to whom a complaint may be made for the purposes of s 341(1)(c)(ii) of the FW Act.
73 In Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 (hereafter, “Cummins”), 413-419 [45]-[67] (Bromberg J in obiter, with whom Mortimer J agreed; Anastassiou J contra at 462-467 [281]-[291]) described the reasoning in (amongst others) PIA, Whelan and Shea as “plainly wrong” (or, perhaps more accurately, indicated that he would have described it thus had it been necessary in that case to do so). His Honour expressed the view that any employment-related complaint, whether or not made as an exercise of some right or entitlement, would suffice to excite the application of s 341(1)(c)(ii) of the FW Act.
74 Thus there is, it is fair to say, scope for some confusion about the conceptual limits of s 341(1)(c)(ii) of the FW Act. Shea makes clear that the section does not cover complaints at large. That reasoning enjoys full court endorsement. It is apparent, from Whelan and the majority’s observations in PIA, that the section contemplates complaints or inquiries about the trespass, or threatened trespass, of rights or entitlements conferred contractually or by statute (for example, the right to have bonuses calculated in a particular way, the right to payment on dismissal for the balance of a fixed-term contract or the right not to be misled into accepting employment). That is so because, as the majority in PIA explained, the law that confers those rights—whether it be the general law or statute law—also (and in each case) confers a related right or entitlement to complain about their trespass or threatened trespass. Although, in that case, I expressed the contrary view that “[t]here is nothing inherent in an ability to vindicate rights under the law that confers a related ability to complain about their trespass beforehand”, there is no binding full court authority to that effect. I am bound to apply the law as the majority in PIA stated it.
75 For the sake of completeness, s 341(1)(c)(ii) also contemplates complaints or inquiries about subjects other than the actual or threatened contravention of contractual or statutory rights; but only if their maker is endowed with a right or entitlement to make them, howsoever that right or entitlement might be conferred.
76 In order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, the employee must first demonstrate that it was made in the exercise of some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with justification or otherwise) that he or she has something to complain or inquire about. What must be shown is some right or entitlement to make the complaint or inquiry: some conveyed ability that distinguishes the making of a complaint or inquiry that qualifies as the exercise of a workplace right (on the one hand) from the making of a complaint or inquiry that (on the other) does not so qualify. In Maric v Ericsson Australia Pty Ltd [2020] FCA 452, Steward J held (at [55]):
For a person to be “able” to make an inquiry, that capacity must be anchored in a legal entitlement of some kind, whether it be statute, contract law, the common law of Australia, or some other instrument or thing that confers legal rights, in the sense described by Rangiah and Charlesworth JJ. in [PIA].
77 His Honour was there referring to an employee’s ability to “make an inquiry” but the entitlement to which he referred applies in the same way to an ability to make a complaint.
3.3.4 Proof of proscribed purpose
78 The reason or reasons actuating conduct that visits “adverse action” are matters of fact that must be proved. An applicant who alleges that he or she was subjected to adverse action for a reason or reasons that Pt 3-1 of the FW Act proscribes is afforded substantial assistance in that regard by s 361. As has been explained, that section creates a rebuttable presumption in an applicant’s favour. If a respondent is alleged to have engaged in conduct for a reason that Pt 3-1 of the FW Act proscribes (and, thereby, to have contravened that part), it is presumed to have acted for that reason unless or until it establishes otherwise.
79 In order to rebut the presumption to which s 361 of the FW Act gives effect, a respondent must typically lead evidence to show that the proscribed reason or circumstance that is alleged did not factor in any substantial or operative way as a reason for the conduct that the applicant seeks to impugn: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612 (Gibbs J), 619 (Mason J, with whom Stephen and Jacobs JJ agreed). It falls to the court to determine “the actual reason of the decision-maker, in his or her own mind”: CFMEU v Endeavour Coal (2015) 231 FCR 150, 161 [32] (Jessup J, with whom Perram J agreed at 169 [77], Bromberg J dissenting).
80 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (hereafter, “Barclay”), the High Court had occasion to consider how an employer might rebut the presumption that s 361 of the FW Act creates. French CJ and Crennan J observed (at 517 [44]-[45]) (references omitted):
…The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…
81 Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ).
82 Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
83 In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly—that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism—that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?
3.3.5 Corporate decision-making
84 Where a decision that visits adverse action is made by (or on behalf of) a body corporate, the court must consider by whose conduct the body corporate should be thought to have acted and in whose mind or minds its reasons for doing so should be thought to reside. Bodies corporate, by their nature, act only via the agency of their human officers. They have no conscience or mind within which a reason or reasons for acting might form. In some cases, corporate conduct is the product of collective decision-making—for example, decisions made at the level of a company’s board of directors or some other committee of management, formal or otherwise. In others, corporate conduct arises from decisions of single officers exercising powers that are theirs alone to exercise. In the former case, the states of mind of the individual decision-makers can accumulate to form the state of mind of the body corporate on behalf of which those individuals act. In order that the court might interrogate the body corporate’s reasons for engaging in particular conduct, attention must focus upon why those who resolved that it should conduct itself in that way were moved so to resolve. In the case of decisions made by lone corporate officers, the state of mind of the body corporate will be the state of mind of its agent. Its reasons for acting will be the reasons of the individual that made the decision on its behalf. As much is made clear enough, in the context of the FW Act, by s 793(2).
85 Complications can arise in circumstances involving decisions made on behalf of a body corporate by an officer or group of officers with input from others. There are authorities in this court that hold that a body corporate’s reasons for conducting itself in a given way might reside or partly reside in the mind or minds of individuals other than those who decided to effect that conduct. In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 (hereafter, “RMIT”; Gray J), for example, the court determined that a university’s reasons for dismissing an academic employee resided not merely in the minds of those who made the decision to dismiss but also in the minds of those who authored a memorandum that recommended that course. The memorandum was said to be “an essential part of the process” that led to the university’s decision to dismiss; and, thus, the reasons that animated its authors were held also to be the university’s reasons for dismissing the employee.
86 RMIT was consistent with the earlier reasoning of the full Federal Court in Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251 (hereafter, “Kodak”; Lee, Madgwick and Gyles JJ). That case also involved the dismissal of an employee, Mr Elliot. The employer had there undertaken an assessment process to determine which of its employees it should dismiss as part of a redundancy program. Those assessments were made by two supervisors and resulted in employees receiving a ranking. Mr Elliot was ranked toward the bottom of his cohort and the employer’s general manager, relying upon the rankings that had been produced, decided that his employment should be terminated. The court determined that the employer’s reasons for dismissing Mr Elliott resided not simply in the mind of its general manager but also in the minds of the two supervisors, who, it was noted (at 172 [37]), had made “an indispensable contribution to the rankings”.
87 Kodak has been the subject of more recent consideration in this court: CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (Katzmann J); CFMEU v Clermont Coal Pty Ltd (2015) 253 IR 166 (hereafter, “Clermont Coal”; Reeves J). More recently, in Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 (hereafter, “Australian Red Cross”; Greenwood, Besanko and Rangiah JJ), a full court of this court, after referring to Kodak and Clermont Coal, accepted (at 348 [91]) that:
…a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a prescribed purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so.
88 Respectfully, I confess some difficulty reconciling RMIT, Kodak and Australian Red Cross with Barclay and, in particular, the more recent decision of the High Court in CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 (hereafter, “BHP Coal”). There, the court considered the dismissal of an employee who had taken part in a union-sponsored protest. In the course of doing so, the employee had displayed a union-supplied sign that vilified as “scabs” other BHP Coal employees who had opted not to participate in the protest (or in related industrial action). His employment was terminated. He alleged (amongst other things) that, by displaying the sign, he was participating in lawful industrial activity and that BHP Coal should be understood to have terminated his employment on account of his having done so, contrary to s 347 of the FW Act.
89 In BHP Coal, there could be no doubt that the union-backed protest was an essential or indispensable part of the process that led to the employee’s dismissal. Had there been no protest, there would not have been any sign or any decision to dismiss. That circumstance bore upon BHP Coal’s decision to dismiss the employee in much the same way as the supervisors’ assessments of Mr Elliot and his co-workers bore upon the decision of the general manager in Kodak.
90 Indeed, that was the very argument advanced on behalf of the employee by his union. The High Court rejected it, just as it had rejected Mr Barclay’s equivalent point two years earlier. It was enough that the employee’s participation in industrial activity at the time that he engaged in the conduct for which he was later dismissed did not factor in the mind of BHP’s decision-maker, notwithstanding the obvious (or essential or indispensable) connection between that activity and that conduct.
91 True it is that BHP Coal—like Barclay before it—did not concern the anatomy of corporate decision-making. At issue in BHP Coal was whether it was necessary to wholly dissociate adverse action from a reason or circumstance proscribed under Pt 3-1 of the FW Act, not whether the influence of others might cross beyond some threshold sufficient to constitute their reasons as the reasons (or some of the reasons) for which a body corporate should be taken to have acted. Nonetheless, BHP Coal and Barclay are instructive: they illustrate the distinction to be drawn between a person’s reasons for doing something and the contextual influences that might bear in some way upon those reasons. In a case such as the present, although the latter might inform the court’s assessment of the former, it is the former that remains the central issue to be determined.
92 Earlier decisions of this court reinforce that reasoning. In AWU v John Holland (2001) 103 IR 205 (hereafter, “John Holland”; Goldberg J), the court was called upon to consider a builder’s decision to dismiss one of the applicant’s members. A rival construction union had learned of his employment and, by way of protest against it, had embarked upon a campaign of industrial action against the builder. It demanded that the builder dismiss the employee. It was obvious enough that that demand was made because the employee was a member of the applicant union. The builder yielded to that demand and the employee (via the agency of his union) contended that it had done so because of his union membership. That contention was rejected: the court accepted that the builder had done what it had done out of concern to minimise disruption to its business. The fact that the employee’s membership of the applicant union—although plainly significant in a contextual sense—did not factor in the putative mind of his employer as a reason for his dismissal. Equivalent reasoning was employed more than two decades earlier in Wood v City of Melbourne Corporation (1979) 26 ALR 430 (hereafter, “City of Melbourne”; Smithers J).
93 Again, neither of John Holland or City of Melbourne grapples squarely with the boundaries of corporate decision-making. Both, however, illustrate that the reasons of those who significantly or indispensably influence (or, as Reeves J put it in Clermont Coal, 198 [121]: have “a material effect on”) such decisions ought not to qualify, merely by reason of that influence, as reasons that animate resultant corporate conduct.
94 That reasoning is consistent with the language employed by s 793(2) of the FW Act. That section serves to deem (in defined circumstances) the existence of a corporate state of mind “in relation to particular conduct”. It does so by paying regard to the state or states of mind of the human agents by whom “the conduct was engaged in”. Insofar as concerns a course or instance of conduct engaged in by or on behalf of a body corporate, the question that arises under s 793(2) is not “Who influenced (or indispensably or significantly influenced), contributed to or had a material effect on the decision to embark upon that conduct?”; it is, rather and more simply, “Who decided that that conduct should be embarked upon?” It is in the mind or minds of the latter that the state of mind of the body corporate on behalf of which they act is to be found.
95 The question as to which of its human agents’ minds the conscience of a body corporate might reside within in particular circumstances (or in connection with particular corporate conduct) is one of fact. In some cases, the evidence will disclose a degree of cooperation amongst officers, by reason of which it might be said that the course or courses of corporate action upon which they collaborate or jointly embark should be thought to have been decided upon collectively by them. In others, individual corporate officers might contribute to or be involved in the making of a decision—even though they do not themselves make it—through the provision of information, assistance, advice or encouragement, or through their inducement of the outcome to which it relates. For my own part, I am unable to see how an individual officer might qualify as a maker of any given corporate decision unless he or she can be thought to have exercised some authority or executive power to effect it, be that actual or ostensible, formal or otherwise.
96 That reasoning aligns with the law of attribution more generally: Meridian Global Funds Management Asia Limited v Securities Commission [1995] 3 All ER 918, 927-928; Gregg v The Queen [2020] NSWCCA 245, [490] (Bathurst CJ, with whom Hoeben CJ at CL and Leeming JA agreed); ACCC v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1, 189-190 [811]-[812] (Goldberg J). It is also consistent, at least at a general level, with the modern caution against the notion of aggregated corporate knowledge: as to which, see Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421, 438 [67] (Allsop CJ), 450-451 [118] (Edelman J, with whom Besanko J relevantly agreed).
97 I am, however, in no position to ignore Kodak and the other cases that have applied equivalent reasoning. On the contrary, I am bound to apply it. In Clermont Coal, Reeves J, after referring to Kodak, made the following observations (at 198 [121]):
…where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak…
98 Despite the reservations recorded above, I adopt his Honour’s observations. Fortunately, for reasons that will later become apparent, they do not materially impact upon my determination of the matters presently in issue.
99 Section 550 of the FW Act establishes a form of accessorial liability whereby those who are “involved in” the conduct in which others engage in contravention of civil remedy provisions (including s 340(1) of the FW Act) are taken also to have committed those same contraventions. In this case, Ms Wong submits that Ms MacLeod was knowingly concerned in or party to NAB’s contraventions of s 340(1) of the FW Act.
100 In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176]-[179] White J summarised what must be shown in order to implicate a person as an accessory to another person’s statutory contravention:
Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …
Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].
As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.
Those observations were quoted with apparent approval in Fair Work Ombudsman v Hu (2019) 289 IR 240, 245-246 [15] (Flick and Reeves JJ).
101 The statutory presumption for which s 361 of the FW Act provides does not apply in relation to an allegation that a person has been “involved in” the contravention of a civil remedy provision contained within Pt 3-1 of the FW Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, [59] (Greenwood, Flick and Rangiah JJ). Thus, in order to implicate her as an accessory to any contravention by NAB of s 340(1) of the FW Act, Ms Wong must establish that Ms MacLeod knew that at least one of the reasons for which NAB relevantly acted was that Ms Wong had made any or more of the complaints or inquiries upon which she relies.
3.4 Was Ms Wong subjected to adverse action?
102 There is no dispute that each of the three occurrences that Ms Wong seeks to characterise as adverse action did, in fact, transpire: that is to say that she was removed from her position of “Manager[,] Internet Banking” on 21 March 2017, the 21 March 2017 Announcement was sent and her employment with NAB was terminated on 11 May 2017. The respondents accept that the first and third of those three events constituted adverse action for the purposes of Pt 3-1 of the FW Act.
103 The only issue in dispute, then (on this score), is whether NAB subjected Ms Wong to adverse action when it sent the 21 March 2017 Announcement. For the reasons that follow, I accept that it did.
104 Employing the terms that feature in the statutory definition of “adverse action”, Ms Wong contends that, by sending the 21 March 2017 Announcement, NAB injured her in her employment and altered her position to her prejudice. As to the former—the infliction of injury—Ms Wong says that the sending of the 21 March 2017 Announcement qualifies because it defamed her. By reason of that defamation, she says, she suffered a legally compensable injury. As to the latter—prejudicial alteration—Ms Wong says that the 21 March 2017 Announcement conveyed to those who received it that Ms Wong was “about to be abruptly terminated”, and caused at least some of its recipients to form the view that she “had done something seriously wrong”.
105 For the reasons addressed in Part 4 below, NAB did not defame Ms Wong by sending the 21 March 2017 Announcement. Her submission that its sending visited upon her an injury sufficient to constitute it as an event of adverse action must fail.
106 There was, however, evidence before the court to the effect that some of those who received the 21 March 2017 Announcement had, in fact, formed negative conclusions about Ms Wong because of it. Although it is difficult to see how their doing so might have caused Ms Wong any compensable loss, I nonetheless incline to the view that that diminution in the esteem in which she was held by some of her former colleagues suffices as a prejudicial alteration to her position as a NAB employee.
107 I accept, then, that all three of the incidents about which Ms Wong complains qualified as adverse action for the purposes of Pt 3-1 of the FW Act.
3.5 Did Ms Wong possess and exercise workplace rights?
108 Ms Wong alleged—and led evidence with a view to proving—that, between January 2016 and May 2017, she made 19 discrete complaints and two inquiries related to her employment. By the making of each, she contends that she should be understood to have exercised a workplace right (within the meaning attributed to that phrase by the FW Act).
109 Those 21 discrete complaints and inquiries (as alleged) condense into two categories: those made prior to 21 March 2017 and those made thereafter. The significance of that date will be apparent: it was the date upon which Ms Wong was removed from her role as “Manager[,] Internet Banking” and upon which the 21 March 2017 Announcement was sent. Those events constitute two of the three instances of adverse action to which Ms Wong claims to have been subjected. The third, of course, occurred when she was dismissed from her employment on 11 May 2017.
110 It is convenient to work backwards. Ms Wong maintains that her dismissal on 11 May 2017 was effected because (or for reasons that included that) she had made each of (and every combination of) the 21 discrete complaints and inquiries referred to above (and particularised below).
111 She cannot (and does not) say the same with respect to the other two instances of adverse action that she advances (namely, her removal from the role of “Manager[,] Internet Banking” and NAB’s sending of the 21 March 2017 Announcement). Obviously enough, neither of those realities can be thought to have been actuated by any of the complaints or inquiries that Ms Wong made after they transpired. Instead, she contends that each of them was effected because (or for reasons that included that) she had made each of (and every combination of) the complaints or inquiries that she had made prior to their occurring. 14 such complaints and one such inquiry are relied upon to that end (the details of which are set out below).
3.5.1 The complaints and inquiries that are relied upon
112 It is convenient now to identify each of the 21 discrete complaints and inquiries that Ms Wong says that she made (and upon her making of which she relies).
3.5.1.1 January 2016—concerns about Ms Malhotra (the “First Complaint”)
113 In January 2016, Ms Wong had occasion to discuss with Mr Arnott some concerns that had formed in her mind about the progress of the MAP. Specifically, she had grown concerned that the project would not be delivered by September 2016 (as was apparently intended) and that “…one of the primary reasons for [that] potential delay was that the scope of works for the program was continually changing”. Ms Wong had, by January 2016, formed the view that Ms Malhotra (who, it might be remembered, had responsibility within the Digital Business for NAB’s “Mobile” banking platform) “…was having a lot of difficulties managing the Mobile platform in relation to the MAP”.
114 Ms Wong gave evidence that, during a discussion with Mr Arnott in January 2016, she recounted her belief that “…due to the lack of experience and leadership shown by Malhotra, [Ms Wong] did not think that the program would be delivered by September 2016 and that either [she] or Arnott needed to become further involved in the project”.
115 Mr Arnott’s evidence was broadly consistent with Ms Wong’s. He accepted that, from time-to-time from early 2016 and in the course of regular “business as usual” discussions that he and Ms Wong had, Ms Wong had raised with him her concerns about the MAP, and about Ms Malhotra’s leadership skills and experience (he disagreed with Ms Wong’s assessment of Ms Malhotra but, for present purposes, nothing turns on that).
3.5.1.2 February 2016—complaint about Ms Burton (the “Second Complaint”)
116 In approximately February 2016, Ms Wong and Mr Arnott attended a presentation given by Ms Bridget Burton, from the Digital Business’s “User Experience and Design” team. Perhaps amongst other things, Ms Burton’s presentation addressed what Ms Wong described as “NAB’s plans in relation to the Internet Banking and Mobile platforms”. Those plans (such as they might have been) had apparently not been the subject of prior discussion with Ms Wong or Mr Arnott. After hearing what Ms Burton had said of them, Ms Wong formed the view that the Internet Banking platform “…was not going to be able to deliver the ideas expressed…”
117 Ms Burton’s presentation inspired some discussion as between Ms Wong and Mr Arnott. During a conversation that they had at NAB’s offices in approximately February of 2016, Ms Wong told Mr Arnott of her concern.
118 Although unable to recall their discussions in as much detail, Mr Arnott did not dispute that he and Ms Wong had, in or around February of 2016, had the discussion to which Ms Wong testified.
3.5.1.3 March 2016—project manager request (the “First Inquiry”)
119 On Thursday, 31 March 2016, Ms Wong sent an email to Mr Walker (who, it might be recalled, was Mr Arnott’s equivalent in NAB’s Digital Technology group). It is convenient to set out the terms of that email in full (errors original):
Hi Nick,
As you know in IB we have quite a few programs going and we only have one delivery resource which is Damien. I have found that Joycelyn is also doing a lot of reporting and financial management herself. Damien is also hamstrung with reporting and the like. I know that this is currently work that we need to get done as the DDC is currently forming and norming. So there are still some overlaps which I am hoping to streamline for the IB team at the very least.
I have been chatting with Senad to see if I can get a person from ep&c but he told me the current re-org might make it quite difficult.
Senad understands the need but unfortunately due to the circumstances mentioned above, he asked if it is possible for Tech to provide the resource headcount. This headcount will be fully 100% recoverable and will be a contract / MOTS position for the next 12 months.
Just need your ok for this to progress. I think it is worthwhile getting this person in for the sanity of your DM and my PM in this space. I have sent a CV to Joycelyn to consider.
Sene-Li Wong
Manager Internet Banking
Digital& Direct Banking
National Australia Bank
120 The nature of Ms Wong’s 31 March 2016 email is apparent enough. By it, she sought to secure an additional “delivery resource” within the Digital Technology team; a resource that could be deployed toward the execution of work related to her internet banking platform.
3.5.1.4 26 July 2016—request for additional resource (the “Third Complaint”)
121 On 26 July 2016, Ms Wong sent another email, this time to Mr Dinneen and Mr Walker, regarding the engagement of additional personnel. By that email, Ms Wong requested that NAB recruit a program manager to assist with the management, within the internet banking platform, of the demands of the MAP and NPP projects. She expressed some frustration related to the fact that a particular potential candidate for that role had not been hired.
3.5.1.5 September 2016—concerns about the NPP (the “Fourth Complaint”)
122 In or around September 2016, Ms Wong had occasion to discuss with Mr Arnott some concerns that she had about the NPP. Specifically, she told Mr Arnott that:
(1) she was concerned about the Digital Technology team’s ability to deliver the requirements of the NPP;
(2) she was concerned that the work required for the purposes of the NPP had not been scoped with sufficient particularity;
(3) she felt that that lack of particularity made performance of work associated with the NPP problematic; and
(4) she wanted Mr Arnott’s support to address her concerns.
123 Again, Mr Arnott’s evidence about that interaction did not materially deviate from Ms Wong’s, save that he described it as “an entirely unremarkable BAU [business as usual] interaction” which he did not have occasion to escalate to Ms MacLeod or Mr Copeland.
3.5.1.6 September 2016—NPP baseline report (the “Fifth Complaint”)
124 On 14 September 2016, Ms Wong circulated to various colleagues, including Mr Arnott, a report (and, later that day, a revised version of that report) that she had prepared into the NPP, which she entitled “NPP Baseline September 2016: Internet Banking Desktop Whole of Life”. By that document (hereafter, the “Baseline Report”), Ms Wong sought to outline some risks and problems that she had come to associate with the NPP, particularly insofar as it impacted upon her internet banking remit. In particular, it recorded Ms Wong’s view that:
(1) the NPP was not proceeding as it should and was unlikely to be completed within existing budgetary estimates;
(2) NAB could not have anything more than low confidence in the existing estimate of what amounts of labour would be required to complete the project;
(3) the scopes of work to be completed in connection with the NPP were frequently amended; and
(4) the project would not complete on time.
125 After creating the Baseline Report, Ms Wong attended a meeting with Mr Arnott, Mr Walker and Mr Dzaferovic to discuss its content. That meeting took place in mid-September 2016.
3.5.1.7 later in 2016—complaints about Ms Hon (the “Sixth Complaint”)
126 By her own admission, Ms Wong’s relationship with Ms Hon (who, it might be recalled, was the Delivery Manager with responsibility within the Digital Technology team for the internet banking platform) deteriorated over the course of September, October and November of 2016. According to Ms Wong, Ms Hon’s delivery team was the source of considerable difficulty for the internet banking platform. It was, so Ms Wong explained, comprised of very junior employees, whose composition changed from time-to-time without Ms Wong being informed. That, so Ms Wong recounted, gave rise to confusion on the Digital Business side of the platform as to which Digital Technology staff they were to work with. It also resulted, so she contended, in works being attended to less quickly than they ought to have been. Ms Wong discussed her concerns with Ms Hon, who appeared not to take kindly to the implicit (if not explicit) criticism.
127 Between September and November 2016, Ms Wong had occasion to discuss her concerns about Ms Hon with Mr Arnott. She told him that she believed that the delivery management capability of the internet banking group (for which Ms Hon had responsibility) was inadequate and that Ms Hon’s unwillingness to address or discuss her concerns was a source of stress for her (Ms Wong) and her team.
128 Again, Mr Arnott’s evidence was broadly consistent with Ms Wong’s. He acknowledged that Ms Wong had raised with him her concerns about Ms Hon and the capabilities of her team. During subsequent discussions that he had with Ms Hon’s manager, Mr Walker, Mr Arnott was told that there was a degree of animosity between Ms Hon and Ms Wong, and that Ms Hon had reported concerns of her own about Ms Wong (and, in particular, about Ms Wong’s aggressive and domineering conduct toward her). That circumstance (namely, the fact that Mr Arnott was told what he was told, rather than whether or not it was true) will assume some significance later in these reasons.
3.5.1.8 October 2016—project manager request (the “Seventh Complaint”)
129 On 10 October 2016, Ms Wong escalated her earlier requests for the addition of a program manager within the internet banking platform. On that day, she sent a lengthy email to Mr Copeland (to which Mr Arnott was copied), in which she attempted to make the case that she had, to that point, been unsuccessful in prosecuting. Ms Wong recommended that Mr Chris Taifalos—a former colleague with whom she had worked when employed at a different bank—be offered the role. She explained why she felt that he would be well-suited to the position.
130 Although perhaps not as quickly as she might have preferred, Mr Taifalos was eventually recruited to the position of “Business Portfolio Manager – Internet Banking”.
3.5.1.9 November 2016—written complaint about Hon (the “Eighth Complaint”)
131 On Friday, 11 November 2016, Ms Wong sent an email to Mr Arnott concerning her relationship with Ms Hon. In that email, Ms Wong noted (amongst other things) that she could no longer communicate with Ms Hon “…without her jumping to conclusions”. She complained of having to “[walk on] eggshells” around Ms Hon and that, because of the deterioration in their relationship, she (Ms Wong) was “running the [NPP] project blind” and had to resort to others to understand its progression.
3.5.1.10 November 2016 to January 2017—personnel complaints (the “Ninth Complaint”)
132 Not long after Ms Wong’s 11 November 2016 email, Mr Grant Sutton replaced Ms Hon as the Digital Technology team’s “Delivery Manager” for the internet banking platform. He did not remain in that role for long. After approximately six weeks, another individual, Mr Bobby Singh, took over.
133 Those changes in personnel prompted Ms Wong to express to Mr Arnott some concerns about the Digital Technology group’s capacity to deliver on the various parcels of work that were to be actioned within the internet banking platform (whether as part of the MAP, NPP or otherwise). Specifically, over the course of November 2016 to January 2017, Ms Wong told Mr Arnott that she was concerned that there had been multiple changes to internet banking-facing roles in the Digital Technology team and that there had been no “handover” when Mr Singh took over from Mr Sutton.
134 Again, Mr Arnott’s evidence did not materially deviate from the narrative that Ms Wong outlined. He accepted that Ms Wong had, over that period in late 2016 and early 2017, told him that she was worried about the personnel changes and how they might impact delivery of works within the internet banking platform. Although it scarcely matters (for reasons to which I shall later come), Mr Arnott did not share those concerns; but there is no dispute that they were communicated to him.
3.5.1.11 January and February 2017—NPP cost blowout (the “Tenth Complaint”)
135 Over the course of several conversations in January and February 2017, Ms Wong had occasion to express to Mr Arnott concerns that she had about unforeseen increases in costs associated with the internet banking components of the NPP. She attributed the overall blowout to:
(1) the expense of engaging Mr Singh (who, unlike Mr Sutton and Ms Hon before him, was engaged as a contractor) and another employee who reported to Mr Singh, Mr James Simonetta; and
(2) Mr Singh’s decision to slow the output of his team and, thereby, push out the delivery schedule for (and cost of) works associated with the NPP.
136 In the course of her discussions with Mr Arnott, Ms Wong complained that Mr Singh had altered the NPP delivery schedule without her input.
137 Again, Mr Arnott’s evidence did not materially deviate from Ms Wong’s. He accepted that Ms Wong raised with him the concerns to which she testified, albeit he did not share the concerns that she voiced (his views being a topic to which attention will later turn).
3.5.1.12 February 2017—the “opportunities” presentation (the “Eleventh Complaint”)
138 In January and early February 2017, Ms Wong—together with others—created a “PowerPoint” presentation entitled “NAB IB Outcome Focus – Opportunities”. That document sought to identify improvements that could be made to various aspects of the functioning of the internet banking platform. In doing so, it identified a number of shortcomings by which its authors believed the platform was then plagued (the particulars of which it is not necessary to recite).
3.5.1.13 March 2017—workload complaint (the “Twelfth Complaint”)
139 In the early hours of Thursday, 2 March 2017, Ms Wong sent an email to Mr Arnott complaining about her workload and the difficulties that she was experiencing “keep[ing her] head above water”. In that email, she attributed her difficulties to “the weakness in the Delivery capability”, and to the volume and skills of those who reported to her. She complained that “there is just not enough resources to go around to meet our obligations” and reiterated earlier requests for “more [staff] to support us in the short term”.
3.5.1.14 March 2017—further cost fallout (the “Thirteenth Complaint”)
140 On 1 March 2017, Mr Taifalos sent an email to Mr Singh and Mr Simonetta regarding the NPP. Ms Wong was copied to it. By that email, Mr Taifalos expressed concern that there were “…far less points delivered than committed for NPP”. In short, Mr Taifalos sought to extract from the Digital Technology representatives (Mr Singh and Mr Simonetta) an explanation as to why their team’s output on the NPP did not match expectations.
141 On 2 March 2017, Ms Wong forwarded Mr Taifalos’s email to Mr Arnott and Mr Bligh. It is convenient to recount in full the terms of her email (errors original):
Hi Darran,
Just keeping you in the loop re the problems that we are facing in IB delivery. Attached is Chris' email below for reference.
Chris and I have been working in the NPP details over the past couple of weeks and each time we review the details we keep uncovering gaps.
As you are aware, I have raised the same concerns about the Delivery Lead capability with Joycelyn, then Grant and now Bobby, and they have shared the same concerns, but to-date none of the concerns have been addressed even after assurances by Nick that the DMs have full authority in removing underperforming DLs. The DLs in question happen to manage 2 of IB platform's largest initiatives. To add to my concerns, IB delivery management overheads have grown more than 200% from 2016.
In addition, we have been losing resources in the Dev area. I have noticed that in the past 3 weeks, 2 devs have left and 1 is on his way out. I was not given any notice and the first I hear of someone leaving is when I see farewell cards circulating around the teams. To-date I haven't yet been given any formal notification by Bobby nor any of the Delivery Leads. I have only been informed by a couple of my POs who have advised me that there is a high likelihood of more leaving.
We are now 2 devs down and in a couple weeks, it will be 3. I haven't seen any re-hiring requests come through. There seems to be no forward load view of resources. I had to ask Bobby who then told me he didn't know and he had to confirm with the Capability Lead as to when SOW resources are rolling off. I had to ask this to avoid the unfortunate outcomes of last week when I had to sign off SOW extensions at very late notice.
I will be speaking to Bobby about this tomorrow to see how we can address the shortfall in capacity at a time when we have massive risks in meeting our obligations.
@James, I am not sure if Chris has had a chance to speak to you. He was a little annoyed today as we had to spend a number of hours locked away today to sort out the actual problem by mining Jira ourselves. This is after he spent a considerable amount of time with Bobby and James over the past couple of weeks on NPP to ensure that the points and delivery velocity commitments to NPP are met. He might come and speak to you about this tomorrow.
Sene-Li Wong
Manager Internet Banking
Customer Product and Services
National Australia Bank
3.5.1.15 16 March 2017—cost and workload complaints (the “Fourteenth Complaint”)
142 On 16 March 2017, Ms Wong sent an email to Mr Arnott. Again, it is convenient to set out the terms of that email in full (errors original):
Hi Darran,
I want to keep you across some of the noise that has been happening within the Delivery team in IB.
1. Empty backlogs and the teams do not have enough work
As discussed with you, there has been issues with scope changes in both AML/CRS and NPP. As a result, we have a lot of stories written and ready to build but because scope has been removed, the stories have to be discarded and new ones to be written. This issue is compounded by the fact that requirements/UX/SD are delivered late which means that the stories cannot be completed/estimated according to plan.
Action: I have now placed 2 senior team members as POs dedicated to 4 scrums (2 scrums each) to ensure that there is business leadership and to minimise the noise that there is no backlog of work. To-date the POs and BAs have been actively working to ensure that Maintenance, and other lower priority projects are also ready so that in the case of project scrums running out of work, we can play these stories.
2. Cost Pressures
As you are aware there are significant cost pressures on IB. We are still having the same sort of issues with Delivery being that some of the Delivery Leads are really junior and my platform has to support a delivery management overhead cost of approx. $[redacted] per day for both Bobby and James Simonetta and 4 x Delivery Leads at a cost of $[redacted] per day making it a total of approx. $[redacted] per day. There have been promises of changes in Delivery Management for a while since I raised this from June last year. The last update was Nick mentioning in the Platform Owners stand up that this will be fixed by him in 2 weeks. It is now week 3 and soon to be week 4. Given our cost pressures, there seems to be no visibility of when this cost will be reduced. I would recommend these DM/DL roles be permanent roles and filled by resources who have experience in managing scrums.
Action: Darran to have a chat with Nick to find out the actual dates as to when this will be worked out.
Happy to discuss further at our catch up on Friday.
Sene-Li Wong
Manager Internet Banking
Customer Product and Services
National Australia Bank
143 Mr Arnott responded to that email later that evening. Amongst other things, Mr Arnott observed in his response that, insofar as concerned the first of the two issues that Ms Wong raised in her correspondence, it was “…not completely clear why this is such a problem for [internet banking] but not a problem for every other platform”.
3.5.1.16 24 March 2017—the removal (the “Fifteenth Complaint”)
144 On 21 March 2017, Ms Wong was removed from her role as “Manager[,] Internet Banking”, a reality to which, it is fair to say, she did not take kindly. On 24 March 2017, she sent an email to Ms MacLeod outlining some concerns about the way that she felt that she had been treated (above, [36]).
3.5.1.17 24 March 2017—escalation to Mr Thorburn (the “Sixteenth Complaint”)
145 Also on Friday, 24 March 2017, Ms Wong escalated her concerns to NAB’s chief executive officer, Mr Thorburn. By an email sent to him on that date (and perhaps also by registered mail, although nothing turns on that), Ms Wong outlined to Mr Thorburn some “serious concerns” regarding the manner in which she had been treated (above, [37]).
3.5.1.18 24 March to 11 May 2017
146 Over the course of the following seven weeks, Ms Wong exchanged a number of emails with Ms Matthews, Ms MacLeod and Mr Thorburn. Of particular relevance are:
(1) her email to Ms Matthews of 25 April 2017 (above, [39]—hereafter, the “Second Inquiry”);
(2) her email to Ms MacLeod of 3 May 2017 (above, [41]—hereafter, the “Seventeenth Complaint”);
(3) her email to Ms Matthews of 4 May 2017 (above, [42]—hereafter, the “Eighteenth Complaint”); and
(4) her email to Ms Matthews of Monday, 8 May 2017 (above, [43]—hereafter, the “Nineteenth Complaint”).
147 Factually, there is nothing about the conduct by which Ms Wong claims to have made the suite of complaints and inquiries upon which she relies that is materially disputed. The respondents accept, factually (and subject to minor qualifications that don’t warrant repeating), that she made each of the oral or written representations that are said to constitute those complaints or inquiries.
148 The parties do not, however, agree upon the characterisations that should attach to each of those communications. Ms Wong, of course, maintains that each is properly understood to have agitated a complaint or inquiry related to her employment that, in each case, she was able to make; and that, by making each of those representations, she should be understood to have exercised a workplace right for the purposes of s 340(1)(a)(ii) of the FW Act.
149 The first respondent accepts that some of Ms Wong’s accepted representations agitated complaints or inquiries the making of which amounted to her exercising a workplace right for the purposes of s 340(1)(a)(ii) of the FW Act. In that category are:
(1) the Seventh Complaint;
(2) the Eighth Complaint;
(3) the Twelfth Complaint;
(4) the Thirteenth Complaint;
(5) the Fourteenth Complaint;
(6) the Fifteenth Complaint;
(7) the Sixteenth Complaint;
(8) the Second Inquiry;
(9) the Seventeenth Complaint;
(10) the Eighteenth Complaint; and
(11) the Nineteenth Complaint,
In the absence of dispute, it must be accepted that, by making each of those complaints or inquiries (hereafter, the “Accepted Complaints or Inquiries”), Ms Wong exercised (in each case) a workplace right for the purposes of s 340(1)(a)(ii) of the FW Act.
150 The first respondent denies that any of the remaining nine complaints and one inquiry upon which Ms Wong relies (hereafter, the “Contested Complaints or Inquiries”) can properly be understood to have involved, by her making of them, the exercise of workplace rights. The analysis that follows in the remainder of this section (3.5) is directed to whether or not they did.
3.5.3 Did Ms Wong’s concerns qualify as complaints or inquiries?
151 The respondents submit that none of the Contested Complaints or Inquiries, viewed in their proper context, involved Ms Wong’s communicating what should properly be characterised as a complaint or inquiry. Instead, they say, all of those communications were unremarkable, business-as-usual exchanges that did not rise to the standard contemplated by the statutory definition of “workplace right”.
152 It is necessary to consider the subject matters inherent in the Contested Complaints or Inquiries. All of them involved Ms Wong’s communicating to her colleagues the existence of problems or difficulties associated with the work that she was charged with performing (or, in the case of the First Inquiry, the need to secure additional resourcing support to accommodate work requirements). Pointing to that reality, the respondents contend that the communications in question were precisely the kind in which a manager in Ms Wong’s position was expected, within an “agile” working environment, to engage. On that score, the respondents submitted:
125. …[T]he Agile working environment encourages a free flow of information that is premised on team members raising issues, pointing to areas of difficulty, roadblocks and red flags.
126. Calling matters out and raising red flags is indeed part of that free flow of information both upwards and downwards and is an ordinary incident of employment or, to use Mr Arnott’s term, “business as usual”.
127. The evidence is overwhelming in this respect. It is absolutely business as usual for there to be communications between managers about pressing operational issues, problems, roadblocks, resourcing, costs, delays and the like. When cross-examined, Mr Arnott said that raising issues is business as usual because “that is what we do”. Ms Wong’s evidence does not contend otherwise.
128. There was considerable evidence that Mr Copeland, Ms MacLeod, Mr Arnott and others were increasingly concerned about escalating costs, delays and other problems with the Internet Banking component of the NPP project. Copeland gave evidence that he sought regular reports from his managers and there was an escalation in the frequency of briefings Ms MacLeod received from Mr Arnott and Walker in late 2016 and early 2017. It is entirely unsurprising then that in that environment Ms Wong’s communications to her manager about those matters was also frequent and responsive to the concerns being expressed from above.
129. When cross-examined, each of Mr Arnott, Ms MacLeod and Mr Copeland agreed that the sorts of issues raised by Ms Wong are the very type of matters she would be expected to raise with her manager. The fact that there was an expectation she would communicate such matters to management only goes to emphasise these communications as being in the ordinary course of organisational management and governance.
153 Respectfully, all of those contentions may be accepted but they are not dispositive of the issue presently in focus. It may be accepted that not every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a “complaint”, as that term is properly understood. Were it otherwise, any form of reporting that involves the conveying of objectively unwelcome news would suffice to qualify: see, in that regard, Bowd, 391 [122]-[123] (Steward J). A complaint (distinguished momentarily from an inquiry) requires some expression of grievance by its maker, or some other subjective characterisation of the state of affairs to which it alludes as unsatisfactory, undesirable or unacceptable, as well as some communicated expectation (whether express or implicit) that something ought to be done to address it (be that by the person to whom the communication is directed or otherwise). It is that subjective characterisation that gives a communication the plaintive undertones that must be present in order to qualify it as a complaint.
154 Here, those plaintive traces are present in most (although not all) of the Contested Complaints or Inquiries (excepting the First Inquiry, to which I shall shortly return). Even accepting that, within the context of an “agile” working environment, Ms Wong was encouraged or expected to raise problems or concerns as she saw them, I do not (subject to two exceptions) accept that the means by which she did so lacked the plaintive or lamenting undertones that distinguish complaints from other communications. On the contrary, most of the Contested Complaints or Inquiries (again, excepting the First Inquiry) are unambiguously laced with a sense of grievance or fault-finding. They were complaints in the traditional (if not every) sense.
155 The two exceptions are the Fifth Complaint and the Eleventh Complaint (which respectively concerned the Baseline Report and the “Opportunities” presentation). Those communications did not possess the same remonstrative undercurrent. Plainly enough, they identified matters of concern related to the internet banking platform; but they did so by way of report and suggestion rather than protest. They were designed as tools to assist or inform NAB’s management. They were not expressions of grievance or disapproval designed to elicit sympathy or solidarity from those to whom they were communicated.
156 The First Inquiry—being an inquiry, rather than a complaint—is in a different category. By it, Ms Wong sought to secure the assistance of an additional “delivery resource” for the internet banking platform. That, I think very plainly, qualifies as an inquiry in the normal sense of that word. Ms Wong was inquiring of Mr Walker whether it might be possible to increase the internet banking platform headcount within the Digital Technology team for which he was responsible. Again, it might well have been an unremarkable, everyday communication that Ms Wong was expected to prosecute as she considered necessary; but it was an inquiry nonetheless.
157 It follows then that by making each of the following, namely:
(1) the First Complaint;
(2) the Second Complaint;
(3) the Third Complaint;
(4) the Fourth Complaint;
(5) the Sixth Complaint;
(6) the Ninth Complaint; and
(7) the Tenth Complaint,
(hereafter, the “Qualifying Complaints”) Ms Wong must be understood to have been making a complaint (within what is contemplated by the use of that word in s 341(1)(c)(ii) of the FW Act). Additionally, by making the First Inquiry, she must be understood to have been making an inquiry (again, within what is contemplated by the use of that word in s 341(1)(c)(ii) of the FW Act). By making each of the Fifth Complaint and the Eleventh Complaint (collectively, the “Non-Qualifying Complaints”), however, Ms Wong cannot be understood to have been making a complaint in the relevant, FW Act sense.
3.5.4 Were the qualifying complaints or inquiries related to Ms Wong’s employment?
158 In order that they might qualify as the exercise of workplace rights, Ms Wong needs to demonstrate that the First Inquiry and each of the Qualifying Complaints were made in relation to her employment.
159 The respondents did not, in terms, contend that any of those complaints or inquiries were not sufficiently related to Ms Wong’s employment. Although the point wasn’t conceded, it was, I think properly, not contested. The character of the communications is, in each case, readily apparent. The First Inquiry and each of the Qualifying Complaints concerned aspects of Ms Wong’s employment: specifically, the performance, progression or quality of work in respect of which, as NAB’s “Manager[,] Internet Banking”, Ms Wong enjoyed some responsibility (or otherwise had some legitimate professional interest).
160 It follows that Ms Wong made the First Inquiry and each of the Qualifying Complaints in relation to her employment for the purposes of s 341(1)(c)(ii) of the FW Act.
3.5.5 Were they complaints or inquiries that Ms Wong was “able to make”?
161 By her written submissions, Ms Wong made the formal submission that, in order to qualify as the exercise of a workplace right, the making of an employment-related complaint need not be founded upon some right or entitlement conferred upon its maker, whether instrumentally or otherwise. That submission, she properly conceded, is contrary to binding authority (see above, section 3.3.3).
162 Since that submission was made, some support for it has emerged at full court level, albeit in the form of non-binding obiter: Cummins, 413-419 [45]-[67] (Bromberg J, with whom Mortimer J agreed; Anastassiou J contra at 462-467 [281]-[291]).
163 In Sabapathy v Jetstar Airways [2021] FCAFC 25 (hereafter, “Sabapathy”; Logan, Flick and Katzmann JJ), the full court appeared to endorse that reasoning. In that case, the court was called upon to consider (amongst other things) an application under s 39B of the Judiciary Act 1903 (Cth) (hereafter, the “Judiciary Act”) for prerogative relief against a decision of an inferior court to remove various respondents from an action that had been brought against them under Pt 3-1 of the FW Act. Accepting that the order of the court below was a product of jurisdictional error, the full court considered whether that error was material. That inquiry was informed by the pleading that the applicant proposed to prosecute in the court below; and, in particular, by whether it disclosed a reasonable cause or causes of action against the respondents who had been erroneously removed from the action. In considering those causes of action, Logan and Katzmann JJ (with whom Flick J agreed) made the following observations (at [57]):
A broad interpretation of s 341(1)(c) is required consistent with the reasons of Bromberg J (with whom Mortimer J agreed) in South Pacific Pty Limited v Keenan [2020] FCAFC 204 at [45]. In that case, Bromberg J held that the ability of an employee to complain or inquire within the meaning of s 341(1)(c) need not be underpinned by a right or entitlement held by the employee.
164 Whether those observations were amongst the rationes decidendi of that decision is difficult to discern. Part of the substantive case that the applicant there hoped to prosecute if his action under s 39B of the Judiciary Act succeeded was that he had been subjected to adverse action because of complaints that he had made. Whether those complaints were complaints that he was able to make because he possessed some underlying right or entitlement to make them was not explored in the full court’s judgment. But, even assuming (as I think is the safer course) that the full court’s endorsement of the obiter statements that Bromberg J made (and that Mortimer J agreed with) in Cummins does form part of the ratio of the court’s judgment in Sabapathy, it is difficult to reconcile that with the existing principles established by Whelan and PIA. Sabapathy makes no mention of those binding full court decisions and cannot fairly be read as a conclusion that they were plainly wrong.
165 That acknowledged, it remains the case that the making of an employment-related complaint or inquiry will not qualify as the exercise of a workplace right unless it is made in the exercise of some right or entitlement so to complain or inquire: Salama v Sydney Trains [2021] FCA 251, [102] (Burley J).
166 In the present case, there was no suggestion that Ms Wong enjoyed any express right or entitlement to make the First Inquiry or any of the Qualifying Complaints (which is to observe no more than that she did not point to any provision in her employment contract, nor to any other source, instrumental or otherwise, pursuant to which she claimed to be endowed with a right or entitlement to complain or inquire as she did). Instead, Ms Wong highlighted three features of her employment that, she contended, entitled (or perhaps even required) her to make those complaints or inquiries.
167 First, she noted (and it was not controversial) that her remuneration was partly-constituted by bonus entitlements, the quantum of which was related to her performance. She was, so she maintained, “…entitled to raise issues that had the potential to impact on the assessment of her performance (and therefore the calculation of her bonus)”.
168 Second, Ms Wong noted (and, again, it was not controversial) that she was contractually obliged to use her best endeavours to promote and enhance NAB’s interests, business, financial position and reputation. By making the First Inquiry and each of the Qualifying Complaints, she was, so she contended, concerned to ensure that she discharged that obligation.
169 Third, Ms Wong relied upon the fact that she operated within an “agile” working environment, in which she was expected to identify “issues or blockers or problems”. By making the First Inquiry and each of the Qualifying Complaints, she was, she contended, properly to be understood as complying with that obligation.
170 The second and third of those features of Ms Wong’s employment are related. Both highlight obligations under which Ms Wong was said to labour in her role as NAB’s “Manager[,] Internet Banking”. I will come back to them momentarily.
171 The first feature is different. It highlights Ms Wong’s remuneration and posits that, because she was entitled to be paid according to how her performance was assessed, she had a right or entitlement (and, therefore, was relevantly “able”) to make complaints or inquiries about matters that had the potential to affect that performance or its assessment. With respect, one does not follow the other. Unlike those to which the court’s attention was drawn in Whelan and PIA, the circumstances about which Ms Wong sought to inquire or complain were not circumstances that threatened to interfere with anything to which she was entitled. Whereas, for example, Mr Whelan had bonus entitlements to which he was contractually entitled, and Mr King enjoyed contractual and statutory protections that his employer had contravened or threatened to contravene, none of the matters about which Ms Wong complained or inquired were matters of right or entitlement. None of them concerned protections or obligations that she was owed that NAB (or anybody else) was contravening or threatening to contravene.
172 When Ms Wong suggests that she was “entitled to raise issues that had the potential to impact on the assessment of her performance”, one might fairly ask in response: entitled pursuant to what? Where might one find the source of that entitlement? In statute? In the general law of contract (or broadly)? In some other applicable instrument or policy or guideline? The evidence in this case discloses no such source. Although she undoubtedly felt that she had good reason to make the complaints and inquiries that she made, it does not follow that she was relevantly, to use her word, “entitled” to do so.
173 That leads into the other aspects of her employment to which Ms Wong points. She says that she was relevantly “able to make” the complaints and inquiries that she made because they were made in aid of her discharging obligations that arose both contractually and as a matter of expectation. Again, the same question arises: what was the source of her right or entitlement to make them? Again, the evidence doesn’t disclose one. The submissions advanced on Ms Wong’s behalf didn’t either.
174 Instead, Ms Wong submits that it should suffice, for the purposes of establishing a relevant ability to make a complaint or inquiry, that she can demonstrate a connection between the complaints and inquiries that she made (on the one hand) and the obligations under which she laboured (on the other). She acknowledges that there is no support for that proposition in Shea (which, of course, speaks rather more simply of the need to demonstrate a right or entitlement to complain or inquire). She submits that support for the proposition is to be found in the observations of the majority in PIA, particularly in their Honours’ observation that their analysis was not “…intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint”.
175 Respectfully, I do not discern from anything that the majority said in PIA any conceptual deviation from the test propounded by Dodds-Streeton J in Shea. Indeed, their Honours very clearly endorsed that test (at [13]). In order that an employment-related complaint or inquiry might fall within the contemplation of s 341(1)(c)(ii) of the FW Act, its maker must be endowed with some right or entitlement to make it. The potential sources of that right or entitlement are not limited to contracts, awards, statutes or other instruments. But some such source there must be, nonetheless. Absent a relevant right or entitlement, an employment-related complaint or inquiry is made merely as an incident of its maker’s capacity and desire to communicate a grievance or interrogatory. It is not a complaint or inquiry that its maker is relevantly “able to make”.
176 That reasoning reflects the statutory regime that is presently in focus. Section 341 of the FW Act does not create new rights; it merely characterises certain existing rights, such that their possession or exercise might qualify as the possession or exercise of a “workplace right” in respect of which other provisions afford various protections.
177 It follows, then, that neither the First Inquiry nor any of the Qualifying Complaints was a complaint or inquiry that Ms Wong was able to make for the purposes of s 341(1)(c)(ii) of the FW Act. She did not, by making any of them, exercise a workplace right for the purposes of s 340(1)(a)(ii).
178 Each of the Accepted Complaints or Inquiries was a complaint or inquiry that, for the purposes of s 341(1)(c)(ii) of the FW Act, Ms Wong was able to make. By making each, she exercised a workplace right.
179 The same cannot be said of any of the other complaints or inquiries upon which Ms Wong relies. By making each of them, she did not exercise a workplace right.
3.6 Was adverse action taken because of Ms Wong’s complaints and inquiries?
180 Ms Wong alleges that each of the three instances of adverse action to which she was subjected—namely, her removal from the role of “Manager[,] Internet Banking”, the sending of the 21 March 2017 Announcement and the termination of her employment—was actuated or partly actuated by the complaints and inquiries that she made (or any combination of them). I have already concluded that her making of some of those—specifically, the Accepted Complaints or Inquiries—amounted, in each case, to her exercising a workplace right. Her making of the Contested Complaints or Inquiries did not.
181 Lest I be wrong on that score, I intend in the analysis that follows not to distinguish between those two categories of communications. Instead, the analysis in this section fixes upon the extent to which any one or more of the nineteen complaints and two inquiries—which is to say any one or more of the 21 relevant communications—upon which Ms Wong relies should properly be understood to have actuated, or partly actuated, any one or more of the three relevant instances of adverse action (although, strictly, it is only necessary to complete that analysis vis-à-vis the Accepted Complaints or Inquiries).
182 There is no evidence before the court that tends directly to prove that any of the three relevant instances of adverse action was so actuated. Ms Wong does not rely upon direct proof of the fact that she alleges. She relies, instead, upon the statutory presumption for which s 361 of the FW Act provides and upon inferences that she would have the court draw. There is nothing unusual about that: direct proof of purpose or intent in a case such as this is rarely to be found and Ms Wong’s prosecution of the matter was, in that sense, entirely orthodox.
183 Ms MacLeod and Mr Arnott—whom Ms Wong nominates as the human agents through whom NAB resolved to engage in the conduct that it did—each gave evidence that they did not resolve to take any action with respect to Ms Wong because, or for reasons that included that, she had made any of the complaints or inquiries upon which she relies. Additionally, each gave evidence about the reasons for which they did engage in the conduct in which they engaged (the particulars of which are the subject of analysis below). In combination, the respondents contend that that direct evidence—both positive (that is, about what did actuate their conduct) and negative (that is, about what did not)—suffices to rebut the statutory presumption that would otherwise be determinative.
184 As she must if she is to succeed, Ms Wong invites the court to reject that direct evidence. She submits that the positive evidence that Ms MacLeod and Mr Arnott gave—that is, the evidence that they gave as to why they were minded to act as they did vis-à-vis Ms Wong—was given falsely; and that, in fact, neither was relevantly animated by any of the reasons that they positively asserted. She invites the court to find—again, as she must if she is to succeed—that that evidence was not merely wrong but also untruthful. In the face of that falsity, she submits that the court should also not accept their evidence that her complaints and inquiries did not factor in any relevant way into the decisions that were made about her. If the court is minded to accept those propositions (and, thereby, to reject those aspects of the evidence that Ms MacLeod and Mr Arnott gave), it will follow that NAB cannot rebut the statutory presumption for which s 361 of the FW Act provides and Ms Wong will have established that the relevant instances of adverse action were visited upon her in contravention of s 340(1)(a)(ii) of the FW Act.
185 In urging as she does, Ms Wong seeks to attack the factual foundations that were said to support the positive reasons to which Ms MacLeod and Mr Arnott respectively attributed their (and NAB’s) conduct. It is important to understand, conceptually, what Ms Wong advances. Inherent in each of the positive reasons for which Ms MacLeod and Mr Arnott claim to have acted as they did vis-à-vis Ms Wong are opinions that they claim to have formed that were critical of her (Ms Wong’s) performance and behaviour. Ms Wong does not accept those criticisms. She maintains that they did not validly arise and that, because they did not validly arise, the court should find that the evidence that Ms MacLeod and Mr Arnott gave about the reasons that did and did not animate their conduct was untruthful.
186 The vast bulk of the voluminous affidavit and oral evidence that was led at the trial was directed at attacking or defending the criticisms of Ms Wong that were inherent in the reasons for which Ms MacLeod and Mr Arnott said that they acted. Although not wholly irrelevant, whether or not the circumstances warranted the critical views about Ms Wong that Ms MacLeod and Mr Arnott said that they formed (and upon which they claimed to have acted) is not the question upon which the court’s attention must focus. At issue is not whether those views were correctly or fairly formed; at issue is whether they were formed (and acted upon) at all. For the reasons outlined below, I am satisfied that they were.
187 I do not accept that any of the adverse action to which Ms Wong was subjected was visited upon her for a reason or reasons proscribed by s 340(1) of the FW Act. I accept that NAB has established that it did not take any of that adverse action because, or for reasons that included that, Ms Wong had made any of the Accepted Complaints or Inquiries.
188 I have already concluded that none of the Contested Complaints or Inquiries was a complaint or inquiry by the making of which Ms Wong exercised a workplace right. That notwithstanding, it is in the nature of the presumption that s 361 of the FW Act establishes in relation to the Accepted Complaints or Inquiries (and the evidence that was led to rebut it) that the court can also exclude each and all of the Contested Complaints or Inquiries from NAB’s reasons for doing what it did. Even if I am wrong in concluding that the making of the Contested Complaints or Inquiries did not, in each instance, amount to the exercise of a workplace right, NAB has established in any event that it did not subject Ms Wong to adverse action because, or for reasons that included that, she had made any of them.
189 It is convenient to split the analysis below according to the three instances of adverse action to which Ms Wong was subjected. In each case, two questions arise: first, who, within NAB, should be understood to have decided that Ms Wong should be treated in the way that she was; and, second, did that person or those people make that decision relevantly influenced by the fact that Ms Wong had made any one or more of the complaints or inquiries upon which she relies? Under the light of s 361, that second question is perhaps better rephrased: does the evidence rebut the statutory presumption that that person or those people made their decision because of the complaints or inquiries that Ms Wong made?
3.6.2 Removal from the role of “Manager[,] Internet Banking”
190 As has already been canvassed, there is no dispute that Ms Wong was removed from her role as “Manager[,] Internet Banking” following her meeting with Ms MacLeod on 21 March 2017. It is also not disputed that her removal from that role qualified as adverse action for the purposes of Pt 3-1 of the FW Act.
3.6.2.1 Who made the decision to remove Ms Wong?
191 Both of Ms MacLeod and Mr Arnott gave evidence that Ms MacLeod alone made the decision to remove Ms Wong from her role as “Manager[,] Internet Banking”. Both gave unchallenged evidence to the effect that Mr Arnott was intentionally excluded from the decision-making process, apparently because he was thought to be “…too emotionally involved” or “not in a fit and proper state” to participate in it.
192 Ms Wong accepts that Ms MacLeod decided that she should be removed from her role but submits that that is not the end of the inquiry. She contends that the mind of “…the ‘formal decision maker’ is not necessarily the only mind [upon which the court focuses] in assessing whether the reverse onus has been discharged”. To that end, she relies upon the authorities in this court that tend to substantiate that proposition: above, section 3.3.5. She maintains that Mr Arnott’s role in the process that led to her removal was sufficient to constitute (or partly constitute) his state of mind as the state of mind that actuated NAB.
193 There is no doubt that Mr Arnott had a significant role to play in the process that culminated in Ms Wong’s removal from the role of “Manager[,] Internet Banking”. Mr Arnott, of course, was Ms Wong’s immediate supervisor. On any view, he had greater visibility of her work, her conduct, her strengths and her imperfections than did Ms MacLeod. He was, on any view unsurprisingly, Ms MacLeod’s primary (though not sole) source of information concerning Ms Wong. It cannot be doubted that the reasons that actuated Ms MacLeod’s decision—or “formal decision”, as the case may be—to remove Ms Wong from her role were reasons that formed in Ms MacLeod’s mind because of (or partially or largely because of) information or advice that Mr Arnott fed to her. It is also plain beyond doubt that he played a not-insignificant administrative role in the process that culminated in Ms Wong’s removal. By way of example, he assisted with the drafting of the 21 March 2017 Announcement and a script to which Ms MacLeod spoke at her meeting with Ms Wong earlier that day.
194 The question for immediate consideration is whether Mr Arnott’s contribution, such that it was, rose above some threshold level sufficient to constitute him as a decision-maker; or, more precisely, sufficient to incorporate his state of mind (and the reasons that animated him to do what he did) into the reasons for which NAB should be understood to have removed Ms Wong from her role.
195 I have already made some observations about the state of the authorities. It might in some circumstances be possible to infer, from the degree of influence that an officer has over a particular corporate decision, that he or she enjoyed some power or authority, formal or otherwise, to effect what was decided; and that, therefore, the decision was one in which he or she jointly participated. Influence, in that sense, might assume many forms. An officer might, for example, provide information (including in the form of opinions) or advice upon which a superior acts; or might make requests, demands or even threats designed to bring about a particular outcome.
196 In the present case, it is plain that Mr Arnott’s role in the process that ended with Ms Wong’s removal from her position as “Manager[,] Internet Banking” was significant. Nonetheless, I do not accept that he should be understood to have possessed any power or authority, formal or otherwise, to effect that removal such that he should be understood to have decided jointly with Ms MacLeod that it should occur. On the contrary, the unchallenged evidence from both Ms MacLeod and Mr Arnott was that it was in Ms MacLeod alone that that power was vested. The information, advice and assistance that she received from Mr Arnott—though plainly important—was just that. Mr Arnott no more made the decision to remove Ms Wong from her role than did the NAB human resources personnel that assisted Ms MacLeod through the process. Not only was Mr Arnott not endowed with any power to effect the decision, the information, advice and assistance that he gave, though important, was not “essential” or “indispensable” in the sense that the authorities recognise. It was not at a level sufficient to constitute the reasons that animated his conduct as the reasons (or part of the reasons) for which NAB should be understand to have removed Ms Wong from her role.
197 Ms Wong accepts that Ms MacLeod, insofar as she resolved to effect Ms Wong’s removal from the role of “Manager[,] Internet Banking” was not actuated, or partly actuated, by any of the relevant antecedent complaints or inquiries that Ms Wong had made prior to that point in time. That concession accorded with the evidence. Ms MacLeod’s unchallenged testimony was that, when she made her decision to remove Ms Wong from the role, she was not aware that Ms Wong had made any of those complaints or inquiries.
198 That alone is reason enough to conclude that, insofar as concerns the decision to remove Ms Wong from her role, Ms MacLeod was not actuated by any reason or purpose proscribed by Pt 3-1 of the FW Act (and that the statutory presumption for which s 361 of the FW Act provides stands, in this instance, properly rebutted). It is, nonetheless, prudent to trace the reasons that Ms MacLeod gave for making her decision.
199 Those reasons are summarised within the 21 March Meeting Summary (above, [34]). Ms MacLeod’s evidence was that she removed Ms Wong from her role for the three reasons to which that email referred and not for any other reasons. I accept that evidence. As I have already recorded, Ms Wong does not urge the court to reject it.
200 A great deal of evidence was led to substantiate why it was that Ms MacLeod was led to form the views that she summarised in her email to Ms Wong of 21 March 2017. Likewise, much time was spent exploring why it was that those views were wrong. I needn’t attempt any resolution of the competing viewpoints (although, to a large extent, it is addressed below in relation to Mr Arnott’s state of mind). Ms Wong accepts that Ms MacLeod formed and acted upon the views that she says that she formed and acted upon; or, at any event, does not submit that the evidence is such that, insofar as concerns Ms MacLeod, the statutory presumption that s 361 of the FW Act effects stands unrebutted.
201 In combination, the preceding analyses compel a single conclusion: namely, that NAB did not remove Ms Wong from her role as “Manager[,] Internet Banking” because, or for reasons that included that, she had made any of the various complaints or inquiries upon which she relies.
202 I so find.
3.6.2.4 What about Mr Arnott..?
203 Having concluded as I have, it is not necessary to consider whether Mr Arnott did anything for any reason proscribed by s 340(1) of the FW Act. Nonetheless, given the state of the authorities concerning corporate decision-making in this space (above, section 3.3.5), I should entertain the real possibility that Mr Arnott’s contribution to Ms Wong’s removal from her role was sufficient to constitute him as the maker, or joint maker, of that decision, or otherwise to constitute the reasons or purposes that animated his contribution as the reasons or purposes (or part of the reasons or purposes) for which NAB effected that removal. Put more succinctly, I should entertain the possibility that my conclusion that Mr Arnott was not relevantly a decision-maker is wrong.
204 Like Ms MacLeod, Mr Arnott gave direct evidence that he was not actuated to take any action with respect to Ms Wong because (or for reasons that included that) she had made any of the complaints or inquiries upon which she relies. Unlike Ms MacLeod, however, Mr Arnott was aware that Ms Wong had made each of them.
205 Much as Ms MacLeod did, Mr Arnott testified as to the opinions about Ms Wong that he says formed in his mind and drove him to have the discussions that he had with Ms MacLeod (and others) in the lead up to Ms Wong’s removal from the role of “Manager[,] Internet Banking”. Unsurprisingly, those opinions aligned with the reasons to which Ms MacLeod attributed her decision in that regard. In very short summary, Mr Arnott told the court that:
(1) as a result of discussions that he had had with several of her colleagues and with Ms Wong herself—and from his own observations—he considered that Ms Wong had a tendency to act aggressively or in a combative or disrespectful way toward others, and otherwise exhibited an unwillingness to accept feedback or ideas not aligned to her own views; and
(2) Ms Wong’s internet banking platform was a stand-out underperformer insofar as concerned implementation of the NPP—a circumstance that he attributed to an unwillingness on her part to accept accountability for the admittedly many and varied challenges that arose during that project, and to an inability on her part to properly grasp and budget for changes to the scopes of work that it entailed from time-to-time.
206 Again, both sides led a vast volume of evidence tending to show, one way or the other, that the opinions that Mr Arnott said that he formed about Ms Wong were or were not justified. That evidence occupied the bulk of the seven days over which evidence in the trial was adduced. I make no criticism of either side for leading that evidence; but, for the reasons to which I shall shortly advert, it is not necessary that I should recite or consider it at anything more than a headline level. I accept the evidence that Mr Arnott gave about the reasons that did and did not factor in his mind when he had the discussions that he had with Ms MacLeod and otherwise assisted in the ways that he did in the lead up to Ms Wong’s removal. At the very worst, the evidence that was led to establish the veracity of the opinions to which Mr Arnott attributed his conduct (or the want of such veracity, as Ms Wong would have it) rises no higher than to establish that those opinions were formed wrongly or unfairly. It is not capable of establishing—as Ms Wong must if she is to succeed—that those opinions were not formed or acted upon at all and that Mr Arnott’s evidence to the contrary was untruthful.
207 With those observations made, I should say something about the evidence that was led about Ms Wong’s competence and behaviours. It is fair to say that that evidence painted two alternative and very different pictures of Ms Wong. What follows is a comparatively confined (yet regrettably lengthy) summary of the evidence that both sides led.
208 Mr Arnott’s evidence delved back to early 2016—only a matter of months after Ms Wong began her employment with NAB—when he had occasion to provide her with some feedback concerning her “Q1” performance (the NAB’s reporting year runs from October to September—“Q1”, in context, is a reference to October, November and December of 2015). Amongst other things (including a number of objectively positive observations), Mr Arnott counselled Ms Wong about her interactions with colleagues. Specifically, it was noted that she should be mindful not to be overly “critical and judgmental” of others and that she needed to avoid being “overly blunt and honest…where the audience is varied and perhaps sensitive to what they hear”.
209 The following month, Mr Arnott has a discussion with his “User Experience and Design” peer, Ms Burton. Ms Burton told him of “…a very significant behavioural problem with Sene-Li”. Ms Burton complained to him that:
Sene-Li has been really inappropriate, aggressive, combative and disrespectful to me and my team. Sene-Li said she did not think my team was doing its job. Sene-Li tries to dictate what my team needs to do, and I think she is also breeding mistrust within my team. Sene-Li is not willing to listen to my feedback.
210 Mr Arnott had further occasion to consider Ms Wong’s interactions with others in March of 2016. Early that month, he attended a meeting with Ms Wong and Ms Malhotra, during which attention turned to the ways in which the internet banking and “mobile” teams should interact for the purposes of the MAP. Ms Wong had earlier expressed to Mr Arnott some concerns that she said that she had about Ms Malhotra. Mr Arnott told both women that they needed to work together “in a collaborative and respectful way”. Not long after that meeting occurred, Mr Arnott had a discussion with Mr James Vassallo, who was a delivery manager within the Digital Technology team aligned with Ms Malhotra’s “mobile” platform. Mr Vassallo said to Mr Arnott words to the effect of:
Darran, can you please explain what is going on? Sene-Li is talking to our technology delivery team directly and telling us to do things. I thought this was Renima [Malhotra]’s job but she wasn’t even part of the conversations.
211 Mr Vassallo also told Mr Arnott that Ms Wong “…was approaching his team directly and directing them on how they should approach delivery on MAP”, without Ms Malhotra’s knowledge. Mr Arnott’s evidence was that he formed the view, at that point, that Ms Wong “…was taking a directive and forceful ‘command and control’ style of leadership” and was “undermining Ms Malhotra’s authority in her team”. Mr Arnott met with Ms Malhotra, who was visibly upset at Ms Wong’s intrusion into her remit. She told Mr Arnott that she was “very upset” that Ms Wong had been “…directing the team without my involvement, which wasn’t what we agreed to do”.
212 By way of response, Ms Wong explained (in an email that she sent to Mr Arnott on 3 March 2016):
Analogy wise – I am Gordon Ramsay in Kitchen Nightmares – I am not taking over the restaurant, I don’t want to own the lease, the people etc. I just want to make sure we get the right outcomes based on my past experiences in running a restaurant.
213 Mr Arnott met with Ms Wong shortly after receiving that email. He confronted her about the negative feedback that he had received concerning her interactions with colleagues. According to Mr Arnott, Ms Wong did not respond well to that feedback: she shouted at him, accused him of failing to support her as her manager, and left the meeting in tears. Ms Wong denied that she reacted in that way. It is not necessary to attempt to reconcile those differing recollections.
214 Following that interaction, Mr Arnott’s evidence was that he embarked upon a series of discussions with members of “the Digital team” regarding Ms Wong. In his affidavit, Mr Arnott deposed as follows:
At least seven people including Sevad [sic] Dzaferovic (Program Manager, NPP) Johnathan Zhang, Kelly Zarafa (Senior Consultant Change), David Broeren, Brad Moody, Ms Malhotra and Mr Vassallo provided negative feedback about their interactions with Ms Wong. The key themes of this feedback were that Ms Wong:
(a) was aggressive or combative to deal with including that she would talk over the top of others, she would tell people they were 'wrong', and cross-examine people when they challenged her views;
(b) would not listen to others and she would assert her views or opinions on others without seeking to collaborate on a shared outcome or understanding;
(c) Ms Wong would often stand-up and walk out of meetings, saying with words to the effect that 'she needed to take a call or 'attend other meetings', or had 'other pressing work commitments' and this was 'occurring on a regular basis';
(d) would often roll her eyes during meetings or discussions when she disagreed with what other people were saying about her, her team or her views; and
(e) would dominate discussions by frequently talking over the top of others or ignoring their responses.
In the afternoon of 10 March 2016, after receiving the feedback described above, I organised another one-on-one meeting with Ms Wong to discuss my concerns about her behaviours. In that meeting I referenced the meeting from the previous week and provided Ms Wong with the additional feedback I had received from Ms Malhotra, Mr Vassallo, Mr Zhuang, Ms Zarafa, Mr Broeren, Mr Dzaferovic, Mr Moody, and Mr Copeland.
215 In April 2016, Mr Arnott attended a meeting with Ms Wong and Ms Burton, the apparent purpose of which was to address Ms Burton’s concerns about Ms Wong’s behaviour. According to Mr Arnott, “Ms Wong sat in the meeting with her arms crossed, she constantly interjected over Ms Burton while she was talking, and she used language and expressions that I deemed to be dismissive and confrontational”. Ms Wong’s recollection of that meeting was different but, again, it is not necessary to resolve that evidential conflict.
216 Later in April, Mr Arnott and Ms Wong met for the purposes of conducting a mid-year review of her performance (or, at least, one component of that performance review process). Again, Mr Arnott raised with Ms Wong some concerns that he had about her interactions with colleagues.
217 That performance review process involved assessments of Ms Wong’s performance in two principal ways: first, in terms of the extent to which she had met or exceeded the NAB’s expectations of her work; second, in terms of the extent to which she conducted herself consistently with “NAB Values”. The “NAB Values” were a series of behavioural traits that all NAB employees were required (or at least encouraged) to exhibit. The particulars of those traits needn’t be rehearsed: it suffices to note that they included treating people with respect and working collaboratively (rather than to one’s own agendas). For performance review purposes, employees were assigned a rating of “A” to “D” depending upon their adherence to the “NAB Values”.
218 After meeting with Ms Wong in April 2016, Mr Arnott resolved to assign her a rating of “Meet C”, meaning that she was assessed as having “met” NAB’s work expectations and that she “partially demonstrated NAB’s Values”. According to Mr Arnott, he equivocated on whether or not to assign Ms Wong a values rating of “D” but erred toward the better outcome.
219 That assessment was then the subject of calibration at the level of NAB’s “Digital Leadership Team” (that is, the senior managers within NAB’s digital grouping). At a meeting of those leaders, Mr Arnott sought feedback as to whether Ms Wong’s “Values Outcome” (which he had assessed at the “C” level) should be downgraded to a “D”. By the conclusion of that meeting, according to Mr Arnott, “…nearly every member of the Digital Leadership Team described some negative experience or made some adverse comment about the impact Ms Wong’s behaviours were having on them, or their teams”. The discussion about Ms Wong occupied 10 to 15 minutes’ time; well in excess of the time spent discussing any other employee across the Digital group. Ms Wong’s “Values Outcome” was downgraded to a “D” rating, reflecting a perception that she “rarely demonstrated NAB’s Values”. Mr Arnott was advised, apparently in light of Ms Wong’s “poor Values Outcome and her history of aggressive and combative behaviours”, to deliver Ms Wong’s performance review in the company of a “Human Resources Business Partner” (which is to say, a representative of NAB’s human resources team).
220 Toward the end of April 2016, Mr Arnott met with Ms Wong to present her performance rating. During that meeting, they discussed Mr Arnott’s concerns, which Mr Arnott then summarised into written notes that he emailed to Ms Wong. Those notes record his advice to Ms Wong that she needed to be “conscious of [her] style and soft skills when dealing with people from across all layers of the organisation” and noted that he had some concerns “about how [she had] interacted with [him], as [her] people leader, and a number of people across the team that [she] needed to reflect on and adapt to succeed”. He listed some examples of those concerns, which I needn’t here particularise.
221 Later in 2016, Ms Wong had occasion to complain to Mr Arnott about Ms Hon (specifically, that Ms Hon had recently come to refuse to meet with her or discuss with her matters relevant to their work—see above, section 3.5.1.7). That prompted a discussion at the “head of” level, between Mr Arnott (as Ms Wong’s manager) and Mr Walker (as Ms Hon’s manager). Mr Walker told Mr Arnott that Ms Hon was having “significant difficulties” with Ms Wong, was in a “bad state” and was looking to leave the Digital Technology team so that she no longer had to interact with Ms Wong. Mr Walker told Mr Arnott that Ms Hon “doesn’t think she can work with Ms Wong anymore” and “believes Ms Wong is being too aggressive and dominating”. Mr Walker told Mr Arnott that he was worried about Ms Hon’s wellbeing and the stress that her interactions with Ms Wong was causing her. He also told Mr Arnott that he (Mr Walker) had raised a formal complaint with NAB’s human resources department concerning Ms Wong’s treatment of Ms Hon.
222 That discussion prompted Mr Arnott to have a discussion directly with Ms Hon. Ms Hon’s feedback was in the following terms (or in terms approximating the following):
A number of my team members have come to me about Sene-Li and her behaviour towards them. I have received complaints that Sene-Li is aggressive, disrespectful, commanding and will not listen to them. Some of my team members are scared of Sene-Li and her behaviour. I have tried really hard to work with Sene-Li but I’ve had enough and now I’m trying to avoid her and keep her away from my team. She will not listen to me and she is impossible to work with. I don’t know what to do and I want to leave the team.
…
Sene-Li is the most difficult person I’ve dealt with in my 20 years at NAB.
223 Mr Arnott told the court that Ms Hon was emotional during their discussion and that it was clear to him that Ms Hon was “…very distressed by working with Ms Wong”.
224 On or about 14 September 2016, Ms Wong, Mr Arnott and others met to discuss the Baseline Report that Ms Wong had earlier circulated (see above, section 3.5.1.6). In his affidavit, Mr Arnott deposed as follows as to that meeting:
Ms Wong informed the Senior NPP Project Team that the NPP was classified ‘Red’. A classification of "Red" is an internal benchmark, which means 'Not tracking to plan with no clear path to recovery' and 'outside contingency and/or agreed tolerances' and therefore requiring immediate intervention from the Senior NPP Project Team . Ms Wong informed the Senior NPP Project Team that the NPP was approximately $5m over-budget for completion.
Ms Thompson, Mr Dzaferovic, Mr Walters and Mr Walker between them had approximately 80 plus years combined experience in significant and complex project delivery. I recall that the members of the Senior NPP Project Team appeared perplexed by Ms Wong's 'Red' classification. I recall members of the team asking a number of straight-forward questions about the presentation and the estimates and Ms Wong struggled to answer. I recall members of the team saying that they could not comprehend or understand the numbers and financials that Ms Wong was presenting at this meeting. I could not make sense of the numbers that Ms Wong presented to us and to my observation nor could others in the room.
I observed that Ms Wong could not articulate the basis for the numbers she was presenting and could not provide an adequate response to questions which were asked of her. During the meeting she essentially tried to deflect. She could not tell us about the calculations and how she arrived at the figures.
I was concerned that Ms Wong did not have a grasp of the financials or numbers that she was presenting to us and I believe, based on my observation, that this view was shared by the entire Senior NPP Project Team. Everyone was quite shell-shocked. As a group we had no confidence in the numbers that were being presented to us, and we were facing a significant cost-blow out on the platform as a result.
225 I pause momentarily to note some aspects of that evidence (and, indeed, much of the evidence that informs the present analysis). Properly, in my view, none of it was the subject of objection, although plainly some assumed the form of opinion and hearsay. It is to be borne in mind that the significance of that evidence is not that it tends to validate the opinions that Mr Arnott says that he formed about Ms Wong. To the extent that it constitutes hearsay or opinion evidence, it does not and cannot serve that purpose. Rather, it is relevant because it serves to establish whether those opinions were or were not, in fact, formed. The distinction is subtle but important, as will later be seen.
226 Later in September 2016, Mr Arnott met with Ms Wong to discuss the Baseline Report. He gave evidence about their discussion as follows:
…In our discussion[, Ms Wong] could not provide clear and logical justification for the numbers she had presented. Ms Wong could not in my opinion adequately explain the detail behind her project plan, something I believed would be straightforward for somebody in a senior delivery role such as Ms Wong’s. She constantly blamed others, including the technology team. She said estimates were their responsibility and not hers.
Based on my discussion with Ms Wong and the relevant events which preceded it, I considered that she was not performing in her role to a satisfactory level. She did not in my opinion have a sound understanding, control & oversight of one of the major projects under execution in her team. As her manager, I became concerned that perhaps we had overestimated her technical and project competence.
227 On or about 20 September 2016, Mr Arnott attended another meeting of the Digital Leadership Team to discuss employee performance appraisals. As had occurred earlier in the year, discussion at that meeting turned to Ms Wong. Again, it is convenient to replicate Mr Arnott’s affidavit evidence about the discussions that ensued at that meeting:
In the months leading up to the validation meeting, Ms Wong's behaviours were having a significant impact on me. I felt my feedback to Ms Wong was not resulting in improved behaviours and I was finding her very challenging to manage. I commenced my discussion of Ms Wong's performance and explained the personal impact Ms Wong's behaviours were having. I told the meeting that I was at a 'bit of a loss as to what to do with Ms Wong'. I said that Ms Wong was the 'most difficult person that I had ever worked with in my career'. I said I needed input on what to do next with Ms Wong.
Ms Wong's ratings were the subject of a lengthy discussion which involved input from every member of the Leadership Team (other than Mr Bligh). I recall various members of the Leadership Team using words to explain the impact of Ms Wong's behaviours on them, or other employees, at NAB. Members of the Leadership Team used words to the effect that:
(a) as a Leadership Team we had spent a disproportionate amount of time throughout the year talking about the concerns that we had in relation to Ms Wong's behaviours;
(b) Ms Wong was 'extremely difficult to work with';
(c) Ms Wong's behaviours were 'impacting a wide number of our team members';
(d) Ms Wong was the cause of 'significant disruption' for a wide number of teams; and
(e) there was 'something fundamentally wrong with how she continues to behave'.
The discussion about Ms Wong on this occasion took approximately 30 minutes. In my entire 14 years at NAB this was the longest discussion I have been involved in at a Leadership Team meeting about the performance rating of a single employee.
After some discussion about Ms Wong, I recall we landed on a 'D' Values outcome as a Leadership Team. This was a view arrived at by consensus after Ms MacLeod brought the discussion to a close.
228 Ultimately, Ms Wong did not receive a “D” values rating. Mr Arnott and Mr Copeland resolved, instead, to upgrade her to a “C” rating. They did so, according to Mr Arnott, in the hope that some positive feedback might lead to an improvement in her interactions with others and because they felt that it would be too harsh an outcome to deprive her of any entitlement to a bonus (which was an automatic consequence of another “D” rating). During his oral evidence, Mr Arnott repeatedly noted that the decision to upgrade Ms Wong’s rating was hoped to serve as a proverbial carrot, in preference to the “stick” of a “D” rating. He also noted that, in terms of the work that she had delivered over the preceding year, Ms Wong had exceeded NAB’s expectations, having made some “significant achievements on the [internet banking] platform”.
229 Mr Arnott conceded that, between April and September of 2016, he had observed some improvement in Ms Wong’s behaviour and style but he described it as “very inconsistent”. In his affidavit, he stated that Ms Wong’s “…behaviours had dropped away again as the year came to a close, as evidenced by some of the meetings relating to the NPP status for [internet banking] that took place in late September 2016, in which Ms Wong became argumentative, refused to take on board feedback from a number of senior colleagues and became defensive when challenged on the logic behind her plan and financial forecasts”.
230 On 25 October 2016, Mr Arnott received an email from a senior member of the Digital User Experience and Design group, Mr Brendan Donoghue. That email incorporated a note that Mr Donoghue said that he had made concerning an interaction that he had had earlier that day with Ms Wong. The note read as follows (errors and emphasis original):
This afternoon at 4.40 I caught up with Sene-Li in the kitchen on level 9, 700 Bourke street.
Hsiu
I had called to meet Sene-Li to let her know that Hsiu Wong, a senior UX designer (SOW) had finished up that day. During the conversation I shared with Sene-Li the level of care and concern that I had held for Hsiu's wellbeing and the conversations that Hsiu and I had last week and then today. This was all done to give Sene-Li context for this and to help explain the position we were in. I shared how I had felt personally gutted that we had a staff member who was in tears from stress on Wednesday night last week, who had to take 2 days leave on Thursday and Friday, and who then resigned in tears to me today. I explain that I had serious concerns for Hsiu's wellbeing on the Wednesday and had suggested the SAP service to her as well as asking her to put her health first and focus on work second.
Sene-Li's reaction to this information was to tell me that she had seen no evidence of any of this stress from Hsiu. Additionally she was upset that she and her team weren't consulted about this before Hsiu finished up and that it felt like poor leadership to her.
Monday Presentation
Building on the theme of poor leadership and direction Sene-Li moved onto her dissatisfaction with the presentation that I did on Monday in relation to IB and Cards. In the course of our conversation I was accused of not clearing design with stakeholders, not getting her across the direction that we were taking and upsetting her team. Every time I offered up a challenge to her position (ie; that Piers had given direction on content or that her and I had already agreed on the framework for the 'North Star' the conversation shifted quickly onto a new topic.
During this time I attempted to ask how we could work better together and compared how we were regarded by the other teams that spoke on Monday. I said "If you listened to how the other teams spoke about us on Monday .. " At this point I was cut off and accused of upsetting her by suggesting that she wasn't listening… I attempted to explain I was purely trying to use a common turn of phase and wanted to focus on the way that our experience with IB differed with the experience with Sales and Adoption, but was honestly so thrown by the original comment that I don't believe I achieved my outcome.
Producer
Finally Sene-Li informed me that her team was unhappy with James Duggan and that she just needed more designers and no producers. When I asked for specific feedback she wasn't able to provide any.
Overall
I don't think I have felt worse in my time at Nab than right after this chat. I had dealt with an exceptionally difficult staff situation and shared this with a colleague. Instead of getting any support and a chat about how we can work together to ensure a good outcome from the platform I was forced in defending myself on a number of fronts.
The accusation that I had somehow allowed all of this to happen though poor leadership and it didn't seem 'real' was particularly distasteful as it completely dismissed any serious acknowledgement of mental health issues suffered by Hsiu and our responsibility to ensure that we act in all our staff’s best interests.
We are meant to be one Digital team and yet every time I meet with or talk to Sene-Li I am made to feel like I am constantly under attack and having to defend myself and the value of my team.
231 From November onwards, so he told the court, Mr Arnott received “consistent feedback from within and outside of Digital that the [internet banking] team was incredibly challenging to deal with due, specifically, to Ms Wong’s behaviours”. Mr Arnott gave five examples of that feedback. It is not necessary to replicate them, save to note that they broadly corresponded with the concerns that Mr Arnott had already had occasion to consider (namely, that Ms Wong was prone to aggressive interactions with colleagues and did not listen to or respectfully receive points of view that deviated from her own).
232 By early 2017, the NPP had become beset by a number of difficulties, particularly insofar as concerned the internet banking platform that Ms Wong managed. Those difficulties were the subject of numerous discussions and meetings as between Ms Wong, Mr Arnott and other members of NAB’s Digital team and the NPP project team. At their core, the main problems were that work on the delivery of the various “epics” that the NPP involved was progressing more slowly than had been expected, the nature or scope of the works that were to be undertaken was subject to regular change, and the cost estimates associated with the completion of the project were fluid and higher than initially anticipated.
233 Mr Arnott’s evidence was that, throughout the many meetings that were had about the delivery of the NPP, Ms Wong demonstrated a poor grasp of the budgetary direction in which the project was headed and “constantly” blamed others for the problems that it was experiencing, including Ms Hon and her successors (Mr Grant Sutton and Mr Bobby Singh), and the broader NPP team (led, or relevantly led, by Mr Abaran Deep).
234 Mr Arnott gave evidence about a telephone discussion that he had with Mr Copeland on or around 16 January 2017:
At the time I was in a meeting with Ms Wong and others discussing the ongoing NPP costs issue. Ms Wong, Mr Taifolas, Mr Deep and Mr Singh were all in the room. I remember Ms Wong was displaying aggressive and dismissive body language, she was being argumentative and defensive and the meeting was very unpleasant. I was quite upset at the time and Mr Copeland asked me, using words to the effect: 'What is wrong?'. I told Mr Copeland with words to the effect: 'I'm really frustrated, Sene-Li has claimed the costs have blown-out for NPP and this is becoming a nightmare. We are still having so many issues with her and I think the situation is untenable.' Mr Copeland said words to the effect, 'It sounds like we have to do something.'
235 Things came to something of a head in February 2017. At a meeting involving Ms Wong, Mr Arnott and Mr Copeland on 15 February 2017, a presentation was made that estimated that the remaining internet banking-related work associated with the NPP would cost NAB approximately $3.2 million. According to Mr Arnott, Ms Wong endorsed that estimate.
236 At another meeting held the following day, a further estimate was provided in respect of that work, this time for $5.2 million. Given the sudden and significant increase, Mr Arnott decided to interrogate it and, according to him, quickly calculated that the additional work to which the revised estimate related added not to an extra $2 million in costs but, instead, an extra $1 million. That discrepancy prompted him to send an email to Mr Taifalos and Ms Wong on 16 February 2017, in which he observed (amongst other things):
Todd [Copeland] walked into a meeting yesterday thinking the cost for [internet banking] was $3.2m – which was the position you guys presented on Tue – and suddenly it’s $5.2m so we need to make sure it’s as watertight and explainable as possible. I haven’t seen Todd so angry in a long time hence the need for a clear update tomorrow with as little ambiguity as possible.
237 The concerns surrounding the internet banking components of the NPP appear to have prompted Mr Deep to email Mr Arnott on 23 February 2017. Although lengthy, it is important to set out the terms of that email in full (errors original):
Hi Darran,
As discussed there have been a few challenges recently in getting the IB NPP cost reforecast. I’ve summarised the chronology of events in relation to the forecasting activity.
I’ve also outlined a few other observations which, while not directly related to the forecast work, contribute to the view that IB needs to lift its game. In my role I interact with the teams from four digital platforms (including IB). So the observations on IB are informed by performance and interactions relative to the other three platforms.
February Reforecast
1. The plan was to provide Todd with a briefing well ahead of the fortnightly update with the program. Todd’s briefing was scheduled for 15 Feb and lead in activities were planned accordingly (verbal request around 1st Feb; follow-up briefings 6 Feb; session with you and Tony 8 Feb etc.)
2. The estimates for nabC, Mobile and SE were provided between 6 and 8 Feb; IB response came through on 9 Feb – this meant that in the session with you and Tony on 8 Feb we could not view any draft numbers and only discuss the conceptual approach. I scheduled a subsequent meeting with you and Tony for 13 Feb to go through the draft numbers (prior to Todd’s briefing)
3. The IB response provided on 9 Feb showed an increase of 991k relative to the October Baseline figure. It had some errors which I highlighted to Sene-Li – the main one being the inclusion of 470k of Malware costs (which should not be attributed to NPP work). As a result I used a modified version of the 9 Feb figures in the briefing with you and Tony on 13 Feb and with Todd on 15 Feb
4. After the briefing with Todd based on draft numbers I spoke to Sene-Li and Chris about the urgency of getting the numbers confirmed. I then organised a session between the IB and NPP teams for 16 Feb to ensure that the estimates was based on best available requirements and design information. The session did not work out as planned but we were able to pivot towards a more comprehensive session with broader participation across all the teams. In this session the bottom up estimates were reviewed and updated. A good session with positive contributions from all
One of the things that came to light in the estimation session were the October forecasts were significantly low compared to the eventual size of the completed epics – on average the final size of an epic was proving to be about 90% more than the initial t-shirt size estimates.
6. Based on the session outputs a revised forecast was promised for 17 Feb (Friday) lunchtime but did not come through that day. I had planned a briefing for Anna Thompson on the revised forecast on Monday – it was done without the IB numbers. Given the indicators of expected cost increase we started to consider options on what scope elements were essential for Day 1
7. The revised IB figures were re-promised for Monday 20 Feb, but did not come through that day. They eventually came through on Tuesday night after the session you had attended with Sene-Li and Chris. For our session with Anna on Wednesday (22 Feb) I circulated the revised forecast without the IB figures.
8. The revised forecast showed an increase of $1.4 to $4M depending upon the option chosen. In my view the $4M increase defies logic. The increase across other platforms ranges between 400 to 900k. Among the NPP team who are close to the work there is a level of dis-belief that the remaining work is as significant as estimated. However we have to view this in context of point 5 above.
9. Based on your suggestion and in collaboration with Anna’s team we had a session on Wednesday (22 Feb) to review what remaining scope items are essential for NPP Day 1. I have provided the outputs of this session to Sene-Li and her team earlier today (with verbal request to Chris for a turnaround by lunchtime tomorrow). I have been previously advised that it should be relatively quick to provide the revised figures once the scope inclusions / exclusions are known.
10. A side issue, but a unnecessary pain point has been the use in IB of different formats to collect and analyse information. I have provided all platforms with a standard template for cost and scope information. This enables reliable reporting and lower overhead in collating the data. I think the worst is over on this front and we should be able to have a combined picture of scope and costs across all platforms from the same information source by early next week.
IB Reno / Angular updates
• It is important for the deployment of NPP features in IB that the underlying pages are in Angular rather than Classic. As a result we need to provide NPP the assurance that the Angular pages will be in Production as part of 17.3 or earlier. A discussion was held on 13 December where it was confirmed by IB that there were “no hard dependencies between NPP and IB Reno”.
• The above assertion has subsequently been proved incorrect and I am now trying to establish the real position in relation to the gap between what exists / is planned and what is needed by NPP. I don’t believe there is a plan which provides the required level of assurance that the Angular updates will be in place prior to NPP.
• Based on the December meeting (above) the funding for IB Reno work was removed from the Digital Envelope. As I understand it may not be too late to resurrect it and I will be approaching Tony with the information on the activities that need to happen on this front. You were in the meeting where Tony expressed his frustration on not getting a sound position on the IB Reno work.
An underlying cause of the above issues is the number of team changes that have occurred in IB over the course of four months I have worked with the platform team. There have been 4 people in the Product Owner role. The Delivery Lead side has had fewer changes but there is a capability gap when compared with other platforms.
My overall view is that the IB platform’s ability to deliver needs a significant uplift for it to be on par with its peers. There is a significant delivery risk for NPP based on current scope and IB delivery track record. Based on delivery track record alone it would be prudent to review current IB scope. This would have the benefit of preserving budget and depending upon the numbers investing the limited funds elsewhere.
Regards
Abaran Deep
NPP Digital Project Manager
238 At a subsequent meeting to discuss the expected internet banking-related costs of the NPP, a further revised estimate of approximately $7.2 million was given.
239 In February and early March of 2017, Mr Arnott escalated his experiences with Ms Wong to Ms MacLeod. Over a series of discussions, he told Ms MacLeod about the behavioural problems that he and others had encountered or observed (including Ms Wong’s aggressive and dismissive interactions with colleagues and her seeming unwillingness to accept feedback with which she disagreed), and the disproportionate amount of time that he was spending dealing with her and with problems associated with the internet banking platform (including, most recently, problems associated with the NPP). Mr Arnott told Ms MacLeod of his concerns that Ms Wong’s impact on others threatened to sound in “team members taking stress leave or leaving NAB”. He told her that he did not think that he could continue to work with Ms Wong, noting words to the effect that “Ms Wong is the most difficult person I have had to deal with in my life”.
3.6.2.6 The alternative viewpoint
240 As has already been noted, Ms Wong’s evidence (and that of the other witnesses that she called) painted a very different picture. In summary, it tended to suggest that the problems that arose in relation to the NPP cost estimates of February 2017 were not of Ms Wong’s making, and that Ms Wong had been unfairly cast in the role of scapegoat to take the fall for the various difficulties that beset the NPP over the course of its life. The evidence that she led also tended to suggest that, contrary to the opinions to which Mr Arnott testified, Ms Wong’s interactions with her colleagues had earned her widespread praise and she was, in truth, a high-performing and widely-respected employee.
241 By her written submissions, Ms Wong contended that:
(1) the concerns that Mr Arnott claimed to have had about Ms Wong’s behaviour “…were exaggerated and [were] not an actuating reason for removing her from the role of Internet Banking Manager”; and
(2) the concerns that Mr Arnott claimed to have had about Ms Wong’s performance in relation to the NPP “…was not the real reason, and was manufactured as an excuse, to remove Wong from her role as Internet Banking Manager”.
242 Insofar as concerned the first of those contentions, Ms Wong relies on a series of factual propositions that are largely (if not entirely) uncontroversial.
243 First, she notes that no attempt was ever made to discipline her in respect of her conduct towards others. Her contention is easily enough understood: if her behaviour was of such concern to Mr Arnott, why would he not have attempted to address it via some form of counselling or disciplinary action? The evidence established that NAB had in place (and Mr Arnott was familiar with) a policy concerning the management of under-performing or poorly-behaved employees; but it was never deployed to address the concerns that Mr Arnott said that he had about Ms Wong and her interactions with others.
244 Second, Ms Wong notes the timing of her removal. As is plain, it occurred not long after it became clear (as it did in early 2017) that the costs associated with the internet banking components of the NPP would be well above what had initially been estimated. Again, her contention is easy enough to understand: she posits that it was, in fact, upon that issue with the NPP—and not upon the concerns that he claimed to have about Ms Wong’s behaviour—that Mr Arnott was inspired to act.
245 That contention was the subject of some exploration during Mr Arnott’s cross-examination. It is appropriate to record Mr Arnott’s evidence:
Now, you were very upset by this budget blowout – alleged budget blowout, weren’t you, Mr Arnott?---Was I very upset? No. I mean, I – it was a – it was a concern for the whole group of senior people wrapped around NPP and digital for an extended period of time.
Well - - -?---It was – it was a – it was a – it was a big headache for me and a bunch of others over several months. Yes.
Well, you say in your affidavit that you said to Mr Copeland, “I’m really frustrated. Sene-Li has claimed the costs have blown out for NPP, and this is becoming a nightmare. We’re still having so many issues with her, and I think the situation is untenable”?---Yes. Some - - -
I put to you that you were very upset - - -?---In that – in that moment, I - - - - - - Mr Arnott?---In that moment, I absolutely was, and that, for me, was a bit of a – a crescendo point - - -
Yes?--- - - - because I recall very specifically we were – we were in a meeting and it was very late on a given day – it probably was after 6 pm, 6.30 maybe, we were in a meeting room – myself, Bobby Singh, Chris Taifalos, Sene-Li, it was – and Abaran Deep, and it was another one of these meetings around where the numbers were at for NPP, and it was the same pattern as all the meetings we had had before where I was struggling to get sense and good reason from – from Sene-Li about – about where things were at. Todd happened to call me. At that point in time he was two levels above me in a really senior executive general manager role. It was for a completely unrelated matter, but he could sense when I picked up the phone there was something wrong in my voice, and he asked me, “Darren, what’s wrong?” And I said, you know, words along the lines of, “Todd, I just – I’m in another meeting about these NPP numbers. Again, it’s just – we’re struggling, I’m really upset, I’m frustrated”, and, yes, I – I used the words, “This is becoming untenable”.
Was this in front of Sene-Li or you walked away?---No, this was – I took the call outside the room.
Yes?---In private.
And Mr Copeland at some later stage, you say, was very angry about what had gone on?---Well, I mean, at – at the time he was – he was – he was upset that I was upset, I guess, and he said, “Yes, clearly we have to – we have to do something”.
So you reckon – when I say at the time I mean in those days, not just in that phone call, he was independently angry about the cost blowout, wasn’t he?---Yes, I mean I don’t remember the exact time in relation to some of the meetings, but – but it would have been within the general weeks of some of those other discussions about the –the cost challenge, like the 3.2 to the 5.2 was – was relatively closer.
Well, in your email on 16 February to Mr Taifalos, Ms Wong and Mr Singh and you said:
Think about the sponsor’s perspective. Todd walked into a meeting yesterday thinking the IB cost was 3.2 million which was the positon you guys presented on Tuesday and suddenly it’s 5.2 million so we need to make sure it’s as watertight and explainable as possible. I haven’t seen Todd so angry in a long time.
?---Yes, that was a separate event. That was specific to the meeting we had where those numbers were presented. This – the – the call I’m talking about was a separate one.
Yes, I know, but - - -?--- - - - off the back of a separate meeting.
And I said to you Mr Copeland was angry about the cost blowout?---As he – as he should be as a sponsor for, you know, a large initiative where there’s some serious issues.
And you told him that one day it was 3.2 million and the next day it was 5.2 million, and that was wrong because that’s not what Ms Wong had said. Ms Wong had given you different options. She never said to you it was 3.2 mill and then it was 5.2. So you’ve wrongly presented the situation to Mr Copeland, didn’t you?---No, I haven’t wrongly presented anything.
Yes?---It was – was Sene-Li presenting the numbers.
And you reported to – well, Mr Copeland was two managers up - - -?---That’s right.
- - - from you. And you were accountable for the internet banking platform?---Well, ultimately, yes.
Yes?---I mean, amongst other - - -
That’s right?--- - - - accountabilities I had.
And this cost blowout had happened on your watch. Well, you’re the manager. This has happened on the project while you’re the manager?---It happened in a team that I manage, yes.
Yes, but you’re ultimately in charge of that platform?---Yes, absolutely.
Yes. You don’t want to fall into the trap of blaming others the way you’ve done like Sene-Li. I mean, this does – this is you. You’re the one responsible?---I – I agree.
Yes?---I’m responsible and I always take responsibility and accountability for – for things in my space, yes. Hence – hence highlighting there’s a problem. I mean, what I would say is problem, action. Right? So – so, again, this wasn’t one interaction or a week of interaction. There were months of confusion and uncertainty and discussion and inputs and outputs around NPP. Again, I keep stressing it’s not just from me but from a number of senior leaders. In retrospect, I probably allowed it to go on for too long but I – like I said, I reached a crescendo point where a senior leader called me at a particular point in time when I was in the middle of yet another meeting about this very topic that we – we had been discussing and dealing with for for several months. And I – I had the bravery to say, “Hey, enough is enough. We need to do something.”
246 Next, Ms Wong relied upon evidence going to the esteem in which her colleagues (or some of her colleagues) held her. It is not necessary to traverse that evidence (none of which was relevantly controversial). There was a not-insubstantial volume of material that tended to show that Ms Wong was held in high regard by many of her colleagues. Amongst it was an extract taken from “the NAB portal”: a computerised facility through which employees were able to post feedback about their colleagues. That extract made plain that Ms Wong had been the subject of extensive positive feedback. Again, that evidence was put to Mr Arnott and it is appropriate to record what he said about it:
If you could go to – so you were aware, having, of course, made those comments about all this – the feedback in those – in those rows about Ms Wong?---We – yes, they came to me. And – and, again, what I would say is we encouraged people to use this system to call out achievements, to recognise people. So you would expect over a course of someone’s employment they would have quite – quite a few of these. One thing I would add is I know that – and I’m, sort of, remembering this now – thinking about this. I know Sene-Li, sort of, promoted that a lot within her team to do nominations. So – so I’m not surprised that there’s – there’s quite a few for her and the team.
Yes. Well, it’s funny you say that because they’re not in her team?---Sorry? The – the people who - - -
They’re not in her team?---Some of the – yes, well, some of them were from outside the team, as well.
No?---I’m not saying - - -
Not some?---Well, I can see June Lee who was in her team, Damien O’Rourke - - -
Well, when you say her team – Damien O’Rourke was in EP&C?---Well, I say – sorry, working directly with the internet banking platform.
Sorry. Okay. I understand. So you don’t mean, necessarily, in Sene-Li’s – like, digital business team – you mean in the team in the platform?---Yes – well, the – yes – yes.
Because Jennifer Kelly – Ms Wong gives evidence that that’s EP&C – sorry, and June Lee – Ms Wong gives evidence that that was EP&C. Peter Ince reported to Nick Walker so he’s in digital technology. Annie Harrison was in NAB branches?---Yes.
Damien O’Rourke – EP&C?---Yes.
Irene Yeung – digital technology. A Naresh Battula who’s – digital tester. So he, I think, reported to Sene-Li?---Not necessarily reported to Sene-Li. But, yes.
Okay?---But, again, in the same – in the same - - -
Yes?---In the same sort of team. Again, we – we did a lot to break down barriers so they were working as one team.
Seem to have a bit of trouble, Mr Arnott, in acknowledging anything positive about Ms Wong, don’t you?---Well - - -
I mean, these - - -?---Not – not – not – not necessarily. Of course, looking back in hindsight, given the – the whole experience, but – you know, again, and I – and I said this yesterday, from the period of a terrible outcome at the half year point which was you know, early in her employment there was some improvement. Just after that and in the build up to the end of – end of year process – you know, that this – again, this was a system where people could go in and provide quick comments for people to be able to redeem - - -
Yes?--- - - - for an internal reward. So – and look, again, I know Sene-Li pushed this really hard within her team. And I actually know, too, that from time to time she kind of made a bit of a fuss about them being for herself to try and get people to do it. What – so – so – I – I – yes. There’s – there’s positive feedback in here. Again, in a – in a organisation of 33,000 people where Sene-Li actually did, from time to time, deliver some – some good outcomes, I’m not surprised there’s some good feedback.
Did she work with all 33,000, did she, Mr Arnott?---Absolutely not. I never – I never – never said she did.
Yes. I don’t - - -?---What I’m saying is it wouldn’t be unusual for some people to call out good things that people have done. I’m sure – I’m sure murderers take to the stand in cases and they get positive feedback from people. Like, everyone has people who like them and know them and give them positive affirmation.
247 Putting to one side his regrettable reference to “murderers”, Mr Arnott made no attempt to deny that Ms Wong had been the subject of positive feedback, nor did he suggest that any of it wasn’t well-founded. Those realities aligned with the evidence that Mr Mocnay, Mr Zhuang, Ms Jie, Mr Holmes and Mr Sarkar gave. All spoke, to one degree or another, in positive terms about their former working relationship with Ms Wong and their professional observations of her.
248 Ms Wong also suggested that Mr Arnott’s appraisal of her behaviour was inconsistent with the performance review rating that she received in November 2016. As has already been explored (above, [227]-[228]), Ms Wong’s end-of-year assessment incorporated a “Values Rating” of “C”, which was an improvement from the “D” rating that she had received for her mid-year review some six months earlier. Mr Arnott’s explanation for that has also already been explored.
249 From those evidential platforms—that is, the absence of any performance-management or disciplinary process, the timing of the decision to remove Ms Wong from her role, the existence of substantial positive feedback and the improvement in Ms Wong’s formal performance appraisal—Ms Wong urges the court to infer that Mr Arnott, contrary to the evidence that he gave, was not relevantly actuated by any concern regarding her behaviour.
250 As to the other species of concern that Mr Arnott claimed to have developed—namely, concern related to Ms Wong’s management of the NPP process within her internet banking platform—Ms Wong similarly relied upon a series of propositions that arose from the evidence. As will be seen, those (or some of those) were the subject of some controversy (in the sense that conflicting accounts were given).
251 First, Ms Wong contended that the “…evidence clearly established that Wong was, in fact, an excellent performer”. In support of that proposition, Ms Wong cited four matters (which it is convenient to replicate from her written submissions—references excluded):
(a) …Wong increased Internet Banking’s NPS from between plus 19 to 21, to plus 36 to 50 during her employment. This was the highest NPS across the Digital platforms in the NAB and MacLeod conceded in cross-examination that given the relatively small budget allocated to Internet Banking, Wong did a good job... Indeed, Arnott frequently told Wong that she and her team were doing well and that the performance of Wong’s team had improved…;
(b) on 3 February 2016, Copeland, MacLeod and other members of the leadership team surrounded Wong in the NAB kitchen area and gave her what is known as a “hero clap”. This was in recognition of the work that Wong was performing on the NPP project at the time…;
(c) as discussed above, there were many other employees at the NAB (including those that reported to Wong and others in management positions) who regarded Wong as an excellent performer…; and
(d) in October 2016, Wong received a bonus of $21,600 pursuant to the STI Plan…and, as discussed above, was rated a “Exceeds C” in her November 2016 performance review…
252 Whether, in fact, Ms Wong was an excellent performer is not for the court to determine. That said, none of the four factual propositions listed above was controversial. Save for specific instances to which attention will shortly turn, Mr Arnott did not cavil with the proposition that Ms Wong was a high-performing employee. He conceded, for example, that she had made improvements to NAB’s internet banking platform and that she had earned the “exceeds” component of the performance ranking that he (and others) gave her in November 2016.
253 Next, Ms Wong contended that Mr Arnott was wrong to suggest that there had been, in early 2017, an unforeseen blowout in the costs associated with the internet banking components of the NPP. It is necessary to examine the evidence going to this point in some detail. As has already been explored, the costs associated with the internet banking components of the NPP were explored over a series of meetings that took place in early 2017 (above, [232]-[238]). Mr Arnott’s evidence was that, over the course of those meetings, Ms Wong exhibited a poor grasp of what the costs associated with those components were likely to be, which apparently ranged over a relatively short time span between $3.2 million and $7.2 million.
254 Ms Wong contends that that is an unfair characterisation. She told the court that (as her written submissions put it), “…the estimates she was giving were not ‘hard numbers’ as she was still in the process of getting the required detail from the Digital Technology team, and she could therefore only give Arnott a rough estimate of what the anticipated costs of the remaining work would be.” Ms Wong’s evidence was that it was not possible accurately to estimate the costs associated with the NPP work that remained to be completed on her internet banking platform because her colleagues in the Digital Technology team had made significant and regular changes to the scope of that work.
255 Ms Wong denied that the budgetary problems that emerged in early 2017 were unforeseen. Instead, she said, they were the subject of her presentation in September 2016 (above, [224]). She also laid the blame for the fluidity inherent in the costs estimates that were produced squarely at the feet of the Digital Technology team and the NPP project team. It arose, she said, because of changes that were regularly made to the scope of the works that remained to be completed on the project and to the delivery expectations of those in the Digital Technology team who were charged with executing them, neither of which were of her making.
256 Ms Wong maintained that the so-called “cost blow out” that emerged in January and February 2017 was not of her making. Both she and Mr Bligh gave evidence that it was the responsibility of the NPP project team to identify the works to be completed as part of the NPP. Both gave evidence that the scope of works involved in completing the NPP changed regularly (and without their input) over time, and opined that the scopes that were prepared were vague and did not lend themselves to accurate cost estimation.
257 The increase in expected costs that emerged in early 2017 was also driven, so Ms Wong contended, by inadequate resourcing and leadership within, and below-standard execution or delivery from, the Digital Technology team. Ms Wong complained to Mr Arnott about shortcomings that she identified in the Digital Technology team, including in relation to what she perceived to be Ms Hon’s limitations (see above, sections 3.5.1.7 and 3.5.1.9) and the lack of “handover” when Mr Singh took over from Mr Sutton (see above, section 3.5.1.10). Mr Bligh gave equivalent opinion evidence about many of those alleged shortcomings, as did Mr Sarkar.
258 Additionally, Ms Wong attributed the predicted increase in costs associated with the NPP that arose in early 2017 to rising costs of resources within the Digital Technology team (see above, section 3.5.1.11).
259 By way of summary, then, Ms Wong’s contention was that the NPP (or the internet banking component of the NPP) was beset by a range of problems throughout 2016 and 2017, none of which were of her making or within her power to control; and that the expected increases in the costs associated with the project that emerged in early 2017 were attributable to those problems, and did not fairly reflect any failure on her part to manage or grasp the budgetary requirements of the work that remained to be completed.
260 Mr Arnott was cross-examined about all of the circumstances that I have summarily outlined above (that is to say, about all of the matters that led Ms Wong and others to form the opinions that they expressed about the problems that beset the NPP throughout 2016 and 2017 and about what it was that caused them).
261 Mr Arnott accepted that, from as early as September 2016 (when she spoke to Mr Arnott and others about the Baseline Report), Ms Wong had warned of cost increases associated with the internet banking components of the NPP. He explained that the difficulty that he had was in understanding how those increases had been calculated—a difficulty under which he understood that other senior leaders at NAB also laboured.
262 Mr Arnott also accepted that the scope of the works that were to be undertaken as part of the NPP were regularly changed. He explained that changes to scopes of work on a project of the size and complexity of the NPP were to be expected and he accepted that they were not changes for which Ms Wong was responsible. Nonetheless, he maintained that, as the manager of the platform, it remained for Ms Wong to keep abreast of the scopes of work that would affect the internet banking function and of the costs associated with it. During cross-examination, he observed that:
Abaran [Deep, who led the NPP project team] was managing the broader scope of work across all of our teams and the same problems, despite the same level of complexity if not higher complexity on other platforms, did not exist. So it was specific to internet banking. These concerns were specific to internet banking and seemingly not an issue for the other – for the other platforms that Abaran was delivering into.
263 It was put to Mr Arnott that “one possible explanation for that was that the Digital Technology team in the internet banking platform was really struggling” (in other words, that the Digital Technology personnel who were responsible for delivery within the internet banking platform were not performing at the required standard). Mr Arnott did not accept that that was so. He did accept that, at early points in the project, the internet banking components of the work to be delivered had not been properly resourced.
264 Under cross-examination, Mr Arnott was taken to an email that Mr Taifalos circulated on 24 February 2017 to Mr Bligh and Ms Wong. In that email, Mr Taifalos identified what he described as “serious concerns regarding NPP (and possible other Digital) estimates and the way we do things” (emphasis original). It was put to Mr Arnott that the problems that Mr Taifalos identified in that email “…were problems largely the responsibility of the digital technology delivery employees”, to which he responded:
Well, I mean, I can sort of step through it and make an inference if you would like me to. I mean, firstly, bullet point 1 says, “Estimation problems”. Estimation is not exclusive to tech. Estimation comes from people in various roles across the team. “Program governance”, not specific to tech. Everyone in a leadership role has a role to play in governance for any project, including NPP. “Program process problems”, that sounds like a broader program thing, not a specific tech thing. Likewise, the bullet point below. So I don’t understand the inference you’re making…
265 The topic then moved to the fact that the scopes of work to be completed on the project had been the subject of regular change with “…no change to the [internet banking] budget”:
That’s one of the things that Ms Wong was complaining about, wasn’t it?---Yes, but from this – from my recollection, the – again, the NPP program was a multi-hundred million dollar program. They divided up that program into its constituent parts, and those constituent parts have constituent parts. Dollars are dished out to teams, to platforms, to deliver their scope into the program. I actually agree, for a long time the program said, “Hey, we hear there are concerns here but we want to leave the budget that we’ve set for these teams as they are, and we will look at the collective of the program to figure out if at any given point in time we can allocate more dollars to these things or where we need to make trade-offs”. So there’s nothing that’s a revelation in there.
No?---If there’s no change to the IB budget, that’s the program making a decision that they don’t need to adjust the IB budget at that point in time. I know as it turns out, across all of our digital platforms, there were adjustments to the budget because all of them realised to at least a small degree, some change in scope, some change to scope being realised as executed and any number of issues which occurred during the execution of the – the – the project, so the fact that there hasn’t been a change to the IB budget for NPP, it’s kind of insignificant. It’s just that’s the program saying, “Hey. We might hear concerns, but we’re leaving that budget as it is for now, and we will figure it out if we need to, over time.”
Well, it says here the change request, mobile has received $[redacted] in additional funds for change requests, and IB has received nothing?---Well, I – there might be a valid reason for that. I mean, from – from my recollection, the – the total dollars going to mobile were – were greater than what we were spending on internet banking, so that may have been for something quite specific that the program governance group agreed needed to paid for, whereas for the internet - - -
Weren’t you part of that group?---Whereas, for the internet banking team, it might have a case of saying, “No. We’re going to hold the budget where it is, and we will see, over time, how we’re – how we’re tracking.”
Yes?---And in the end, actually, what I would say is that decision that was made by the program was proven to be sound, because the – the foreseen cost blowouts that – that Sene-Li was presenting at that time were never realised, so it was actually the right thing, in hindsight.
266 Mr Arnott was also challenged about his affidavit evidence that Ms Wong had “demonstrated that she wasn’t prepared to take any accountability” for the issues that emerged in relation to the NPP in early 2017:
- - - you talk about a discussion with Mr Wong about taking – Ms Wong about taking accountability for the forecast cost blowout:
It’s not my fault. I’m getting –
this is – Ms Wong says:
I’m getting the estimates from the tech team. The requirements for [the] NPP aren’t clear –
etcetera, and then you say:
I considered this response to be unacceptable from a senior leader, as it demonstrated she wasn’t prepared to take accountability.
But, Mr Arnott, it’s a team effort. I think we said earlier, they needed, for the internet banking platform to work in the NPP, it needed digital tech, EP&C and the digital business all working together. Right. And if one or two areas aren’t up to it, that’s going to make it hard for everyone, isn’t it?---I don’t disagree with that. Yes.
What’s wrong, then, with Ms Wong attributing the fault in the cost blowout to the tech team and the scopes being changed?---What – what was wrong was I was having conversation with Sene-Li saying – all of us. Again, it wasn’t specific to me, all of us, and those names I mentioned before, we were looking at this: “We have concern – it doesn’t make sense. We’ve had this increase of 5.2 to 3.2,” and we can argue about whether that was chain-specific or a whole bunch of other things. Her reaction to that wasn’t, “Damn. I’m disappointed too. I want to work through this. How can we resolve it? What do we need to do? What can I do better?” It was “not my fault – technology’s fault – not my problem. Why are you having a go at me?” It was defensive. It was confrontational. It was the typical Sene-Li reaction and behaviour that I saw. That’s what I’m pointing out. That’s unacceptable, as a senior leader in my team, to say, “Yes. I agreed in my role purpose statement that it is my accountability to be across all the numbers and to be ultimately accountable for delivery on this platform.” It’s unacceptable to – to sit there and point the finger and go, “Not my fault – it’s tech.” Right. And that’s the reaction that I got, so that’s what I’m pointing out.
Because you didn’t like when Ms Wong complained about other departments and them dropping the ball, did you?---I didn’t what? Sorry.
You didn’t like when Ms Wong complained about other departments and accused them of dropping the ball, did you?---No, not in the way she did it, absolutely not. No. That – we had really good open forums and team practices that facilitated open discussion and dialogue together as a group, not pointing fingers behind closed doors.
Well, she’s not pointing a finger behind closed doors. She’s having a conversation with you where you’re unhappy with what’s going on with the budget. You can hardly say she’s having – doing it behind closed doors?---It’s – again, it’s the way it has been delivered, so picture I’m having a one-on-one discussion with Sene-Li, who’s a direct report of mine. I’m talking about this notion of accountability: “You need to take some accountability for these numbers and for where things are at.” There wasn’t even a – an acknowledgement of any wrongdoing on her part, any better approach, any question of okay advice, or whatever it might be. The typical things I would say would come up in a discussion like that with your people ..... it was – it was defensive, accusational: “It’s not my fault. Don’t blame me.” You know, that – that sort of pattern of behaviour.
You - - -?---Again, I can’t repeat it enough: that’s unacceptable for a senior leader in – in – in a – in a place like NAB.
Even when there’s validity to the things that she’s saying?---The – even – it – well, yes, it – even if there’s validity in any concern being expressed, there’s a right or wrong way to have a conversation about that and/or accept part accountability or responsibility for something. Yes.
267 It was put to Mr Arnott—and he agreed—that the internet banking platform was not the only digital platform that experienced cost blowouts related to the NPP. He drew a distinction between the way that those difficulties were handled by the other platforms and the way that Ms Wong handled them:
The fact is the NPP – NAB Connect and NPP also had budget problems, didn’t they?---Well, in – I would say in total, in terms of the NPP work hitting the digital team, yes, there were – there were challenges. It was a large program. Critical dates – we’ve spoken about the importance to the organisation. Yes, there were – there were lots of issues. Again, this is not about “were there issues?” This is about how were the issues handled and articulated. And I can[’]t say it enough, there’s a stark difference in how they were acknowledged, articulated and treated in internet banking versus the rest of the teams, and - - -
Okay. Well - - -?--- - - - our professional judgment was that a lot of that was – was due to the way Sene-Li was operating.
268 Having accepted that he had had a hand in drafting it, Mr Arnott was also cross-examined about the 21 March Meeting Summary that Ms MacLeod sent to Ms Wong after their meeting of that day (at which Ms Wong was informed of her removal from the role of “Manager[,] Internet Banking”—above, [34]). Although lengthy, it is appropriate to replicate the course of that cross-examination:
If we can go to, under the first bold heading, the last bullet point:
Lack of transparency and clear articulation of risks and issues –
I put to you, Mr Arnott, that that is, in fact, not correct, and Ms Wong was regularly articulating to you the risks and issues within the platform in verbal and – conversations and emails, wasn’t she?---Sene-Li may have been highlighting risks and issues that she saw in the platform, but not a transparent and articulate way.
Well, I mean, transparency is where you actually set out in some detail what’s going on and not looking to hide. I mean, is that what you would understand transparency to be?---Yes. I think that’s a fair – yes.
You could hardly accuse Ms Wong of lacking transparency. She made it very clear to you, perhaps in a way you didn’t appreciate, in terms of her style, but she certainly made it very clear to you, on a regular basis, “Mr Arnott, this is a problem. These are the issues. Look. Help.” You agree she was doing that?---Well, I – I – no. I – I think if – if you think about transparency, transparency relates to clarity. Right. And I – I said numerous times yesterday that a number of us struggled to get clarity from – from what Sene-Li presented, despite me and many of the people who shared that view doing their own deep dive and analysis on things that she was presenting, so if - - -
Well, that’s the next point, isn’t it: clear - - -?---If – if – if transparency – well, I – I think they’re – they’re related. Right. So, transparency and clarity, I would say, are somewhat similar in definition.
All right?---You know, anybody could say anything and say, “Well, I’m being transparent.” Doesn’t mean it’s true.
Okay. Well, bullet point 1, under the second bold heading:
Despite the NPP program running for more than 12 months, the underperformance and cost increase has only been called out in recent weeks.
Mr Arnott, Ms Wong called out cost increases, or warned of them, in September 2016?---She did. She did.
I put to you that she did not only call that out in the recent weeks prior to that email?---Well, I think we’re referring specifically to the ones that were in that recent period, which we touched on yesterday, where there was a rapid increase in costs over a period of – of – of days, at one point. This is – this is related to a specific component of reporting the underperformance and – and cost increase, not the – you know, not the whole piece over the preceding 12 months. I mean, it was a very long program that ran over several years. The concern was, we got so far in, and we got to a point where it felt like, to all of us involved at a senior level, that there were things coming up and changing almost on a daily basis, so that’s – that’s what we’re referring to there.
Well, the evidence you give, Mr Arnott, is that things changed over two days, on 15 and 16 February. That’s what you say. That’s your evidence?---Well, that was certainly part of it. Yes.
Well, that’s not changing on a daily basis in a general sense. That’s just a period of two days where there’s some uncertainty about costs, in a project that went for, from what you say, like, over a year and a half. That – do you accept that?---I – I would say it’s very unusual for a number to turn into a number that’s $2 million greater in the space of a day or two. That’s not – that’s not normal.
But I showed you yesterday this internet banking platform options evaluation from February 2017, and again, I say to you that these were not hard and fast, as they call it, bottomed out numbers that Ms Wong was giving you. She was giving you various options, wasn’t she?---There is a document where Sene-Li presented options. Yes. Again, what I would say is the same thing I’ve said numerous times, which is a lot of – a lot of us who consumed those numbers couldn’t make sense of them - - -
Yes?--- - - - and how they were derived.
But you would – you agree that this was a complex project - - -?---Absolutely, yes.
- - - with many moving parts even within the internet banking platform?---Yes.
Scopes were changing?---Scopes always change in projects.
Yes?---And yes, that wasn’t immune to it. Yes.
There was an issue with – this is pointed out in a document I showed you yesterday. There was a bit of an issue with change realisation and change requests?---Yes. There was – there was certainly dispute about what constituted one or the other. Yes.
Yes. That’s right. And there were difficulties in underperformances in the digital technology team that were going on over a period of time?---There were, likewise other teams as well. Yes.
Yes. I understand. And there was a bit of an issue with the resourcing of EP&C with Mr O’Rourke and needing eventually to get Mr Taifalos?---Yes.
Right. Well, Mr Arnott, I put to you that it is quite ridiculous, in those circumstances, to attack Ms Wong for calling out cost increases in January and February 2017 as one of the reasons for removing her from her role?---Well, I – I – I disagree with – with that. I mean, to – to put things simplistically, it – it wouldn’t have been called out to this extent if a number of senior leaders actively involved in that program didn’t see the same thing that both Catherine and I saw. This is not a surprise to anybody. This was – this was a known fact, if you like, across the key people wrapped around this project, so if one of us are wrong, all of us are wrong.
And you had been warned in September 2016 that there were some cost problems in relation to the internet banking platform, by Ms Wong?---Yes, which was a different point in time and doesn’t necessarily relate to what ended up happening in that period of January/February of 2017.
Yes?---Yes. I – I – I agree there were some call outs back then. Yes.
Yes. But it - - -?---Likewise, there were call outs for the program on other platforms too.
But it just seems it’s not true that the cost increase had only been called out in recent weeks. Cost increases had been called out throughout the back half of – the back half of 2016?---With – I mean, I – I – I feel like I’m just repeating it, but again, the – the – the issues in preceding weeks leading up to this were far more significant than whatever previous issues were worked through in relation to the costs and scope, and whatever else, around the NPP. We all felt like, as leaders, there was something fundamentally wrong with how Sene-Li was presenting and articulating the position. We also felt as though – which was probably even a more important point in many ways. Her behaviours around those numbers were inappropriate. That’s what this is all about.
Yes?---It’s not about what happened six months earlier. It’s about what happened in the – you know, in the weeks leading up to this.
And that’s the issue for you. It was her behaviours that was the real problem?---Over the case of her employment, I would say, on balance, if we’re talking about outcomes versus behaviours, this is obviously, based on her – her ratings. The systemic issue with Sene-Li was absolutely her behaviours and the impact she was having on people.
And it didn’t in truth, Mr Arnott, have anything to do with the cost increase, so you say, in January and February 2017, and that was just an excuse that you wanted to put in there to buffer the reasons for terminating or removing Ms Wong from her role as program manager?---Well, I – I can’t talk about the termination, because I wasn’t a part of it, but - - -
Sorry – the removal. Yes?---But I – I disagree with that. I think, in many ways, what happened with the NPP – and again, all of us in key roles around that saw her to be a major issue in what was being presented, not anybody else, but a lot of it was – was centred around her, and that was the educated opinion of a bunch of senior and knowledgeable experienced people with high exposure to that project. In many ways, my view is the NPP issues brought to light in probably a more visible way to more people than otherwise the issues have been exposed around her behaviours.
Well - - -?---I – so, I agree that the – the main thing with respect to – to Sene-Li, and the main reason why I called out to Todd and Catherine that I thought her role was untenable, was because she was having a terrible impact on people, including myself, and her behaviours simply weren’t acceptable. Like I said, there’s no doubt in mind – and I’m sure Catherine would attest to this too – that she would have received a D again for this half year period, and I’m not sure what her performance outcome would have been, but that wouldn’t have been great either. Right. That – that is a fundamental issue.
But what had really happened, in truth, Mr Arnott, is that the cost increase reflected poorly on you because that was ultimately your responsibility, didn’t it?---I – I – I disagree. I think, you know, if I look back at my performance over the years at NAB and the success I had there over a long time, I think one of the key things about how I operate is I’m always prepared to take accountability and responsibility for my teams. The action we I undertook here, which I said, as I said earlier, I think was a brave one, was to say there seems to be, based on all the evidence we have, a specific problem centred around a specific person, and again, I say the proof is in the pudding, because, when Sene-Li was removed from the role and Adam Dinneen came in, the team stabilised very quickly. People were happy, and if you like, I can give specific examples of people’s feedback to me about what happened after that, and the outcomes for NPP were greatly improved. This doomsday scenario that Sene-Li was putting forward never eventuated. Right. So - - -
Well, we’re going to come to that?---So – so, I just – the proof is in the pudding. Right.
But in your own affidavit, you say, at paragraph 17:
I had overall responsibility for delivery costs.
Are you saying that, where there was a blowout in the NPP project, that was not your responsibility?---Well, let – let me – let me say it again. You’ve – you’ve got to look at the hierarchy for an – an organisation and where accountability starts and ends. Does it – does it end with the CEO, the board, shareholders? I mean, I had an overall accountability for a number of platforms in my remit. I had 50 or 60 projects happening at once. I had a big team of people. I had hundreds of people working in the structure underneath me.
Yes?---I had a broader role to play on a digital leadership team. Of course, when there’s an issue within my team with a person or a platform or a project, or whatever it might be, there’s a degree of accountability and responsibility that I have, likewise Catherine in her role, likewise Todd in his role, likewise the CEO, likewise the board. That’s how big companies work. I tried my very best, and I was well rewarded as a leader at NAB for way – for the ways in which I reacted to and handled problems, and I – I thought I handled this particular situation to the best of my ability, and I would never shirk responsibility or accountability for this, and in the end, again, I would argue the action that we undertook and – and the call out that I made to say this is untenable, the call that I made to – to get Adam Dinneen, who was already in a big role, to cover this remit, it all paid off, because it worked, and we recovered, and everyone was happy.
Well, I put to you, Mr Arnott, that in relation to costs increases on the internet banking platform, you didn’t do a good job, and you fell asleep at the wheel, and that’s why costs blew out?---I – well, I – I disagree, and so do a number – number of leaders who assessed what happened at that point in time.
And rather than take responsibility, because you have overall responsibility for delivery cost, you threw Ms Wong under the bus and blamed all of it on her. That’s what you did, isn’t it?---I disagree.
269 Mr Arnott was also cross-examined about NAB’s performance management policy. Consistently with the contention that she advanced, it was put to him—and he acknowledged—that he had not taken any steps to apply that policy to Ms Wong prior to February 2017. There then ensued the following exchange:
Yes. And the reason that [matters came to a head] in February 2017 is because there had become a costs blowout on the project which had embarrassed you. That was what motivated you?---It’s – I can honestly say it is not at all about embarrassment. Again – I’ve said it numerous times – it was about the behaviours, and what we were all seeing around the NPP. That was a – that was a catalyst, if you like, that brought together a year and a half of pain to get to that point. It was a – it was a pivotal moment, in the sense that, like I said, I called out, in very definitive terms, to my two People Leaders, one of whom was an EGM – very senior person – I said, “This is untenable.”
You did?---And that’s – I can’t believe that, you know, I had to say that about a senior manager within – within my team. That’s a – that’s a pretty significant action.
It is, and what had happened was that, throughout 2016, Ms Wong had called out issues and concerns about the NPP project, hadn’t she, yes or no?---She – yes. Yes.
Yes. And she had been complaining to you about problems that were besetting her team on the NPP?---She had raised a number of issues and - - -
Yes?--- - - - concerns and risks and – yes.
And blaming other people in those complaints – it’s always someone else’s fault, yes?---She – she – she often did. Yes.
Yes. Yes. And you didn’t like it, did you?---Well, of – of course as a people leader, I didn’t like it, because it wasn’t acceptable.
270 Mr Arnott denied that he was concerned about, or in any way actuated by, the fact that Ms Wong had made any of the complaints or inquiries that she made. He impressed upon the court that “…the raising of issues [was] not the problem…it’s the behaviours and the – the specific actions we saw around NPP and a whole bunch of other things during her employment.”
3.6.2.7 Ms Wong’s submissions about credit
271 Perhaps unsurprisingly given her (orthodox) reliance upon the statutory presumption established by s 361 of the FW Act and her need to persuade the court that Mr Arnott’s evidence was (or aspects of it were) untruthful, Ms Wong submitted that Mr Arnott was an unimpressive witness, that he “was not a witness of truth” and that “his evidence about his reasons for wanting Wong removed as Internet Banking Manager ought not [to] be accepted”.
272 13 discrete reasons were advanced in support of those contentions. With respect, all of them, both individually and in combination, fall well short of warranting the conclusions that Ms Wong urged upon the court. It is not necessary that I should address each in detail. It suffices to note that the criticisms that Ms Wong raised can conveniently be grouped into five broad categories, namely that:
(1) there were aspects of Mr Arnott’s evidence that were plainly wrong, or that contained obvious errors that he could not explain;
(2) there were otherwise some inconsistencies as between the evidence that Mr Arnott gave and matters that were verified by documents;
(3) the language that Mr Arnott employed was emotive and, on occasions, extreme;
(4) Mr Arnott had a tendency to hold Ms Wong accountable for matters more properly attributed to others; and
(5) Mr Arnott tried improperly (or falsely) to downplay the importance of his role in providing the information upon which Ms MacLeod acted.
273 I do not accept any of the criticisms that Ms Wong levels against Mr Arnott’s evidence (or, at least, that any of them is valid to the point that I should be broadly wary of accepting it). As is pointed out below, I did not form the view of Mr Arnott that Ms Wong urged me to form—indeed, I formed the opposite view.
274 I did so notwithstanding that there were, as there are in most cases, aspects of his evidence that were plainly wrong or inexplicable. None concerned an issue of central importance and, on the occasions that Mr Arnott’s attention was drawn to them, he did not attempt to maintain anything that couldn’t credibly be maintained. For example, he accepted that a document that had been included as an exhibit to his affidavit had been wrongly described and that he could not explain why. He accepted that, although he had at one stage referred to Mr Zhuang as one of the many sources of adverse feedback about Ms Wong, he could not actually recall any discussion directly with him (Mr Zhuang’s evidence was that there had not been any such discussion). Evidential anomalies like that, though regrettable, are not uncommon. Here, they do not warrant rejection of Mr Arnott’s evidence more broadly.
275 Likewise, I do not accept that there was anything about Mr Arnott’s language that should incline the court toward rejection of his evidence. Ms Wong fixed upon Mr Arnott’s reference, during his cross-examination, to what “most sane people” would have done in Ms Wong’s situation and to his reference to the potential availability of positive feedback for “murderers” (above, [246]). Respectfully, those were minor rhetorical flourishes that spilled out during the day-and-a-half that Mr Arnott spent in the witness box, during the course of which he was subjected to the usual and prolonged provocations that adroit cross-examination typically entails. However regrettable they might have been, they do not cause me to doubt the truthfulness of his evidence more broadly.
276 I also do not accept that Mr Arnott tried to downplay anything about the role that he played in the process that led to Ms Wong’s removal from her position as “Manager[,] Internet Banking” or that he reflexively attributed to Ms Wong anything that was plainly unfair. As is elaborated upon in more detail below, my impression of Mr Arnott was that he answered the questions that he was asked as clearly and as truthfully as he could. I did not discern (and do not accept that his evidence or time in the witness box disclosed) any instinctive hostility on his part toward Ms Wong; and certainly nothing of the kind that might warrant some scepticism about the truthfulness of his answers.
277 I do not accept that there is reason to treat Mr Arnott’s evidence with any broad scepticism.
3.6.2.8 How might the evidential conflict be resolved?
278 As has already been stated, it is not necessary for the court to resolve the significant evidential conflict concerning Ms Wong’s capacity or behaviour. It is not necessary—much less is it realistic—for the court to determine whether Ms Wong was, as she maintains, a very high-performing employee who was wrongly pegged to take the fall for problems created by others; nor, as Mr Arnott would suggest, whether she was a needlessly and overly confrontational and difficult employee who was unable to accept valid criticism, and whose grasp on the essential components of her role was properly found wanting. In all respects, the matters in which the evidence on those scores conflict are matters that do not lend themselves to binary analysis.
279 It must be said, then: Ms Wong might have a point. It could well be that the opinions that Mr Arnott formed about her were opinions that others might not have formed. I make no findings on that score—indeed, at the risk of repetition, I cannot sensibly do so given the subjective nature of the issues at hand.
280 What is sufficiently clear is that the opinions that Mr Arnott says that he formed—and that he says animated the discussions that he had with Ms MacLeod (and others) about Ms Wong—were opinions that he genuinely held, rightly, fairly or otherwise. Even assuming that Ms Wong is right about what she says concerning the objective circumstances in which those opinions were formed, the most that might flow from that is that Mr Arnott’s opinions about her were unwarranted or wrong. It is simply not possible to advance as far as Ms Wong needs to and conclude that he, in fact, neither formed nor acted upon them; that is, that the evidence that he gave as to why he was minded to do what he did was untruthful.
281 Mr Arnott was a very impressive witness. At the time of the trial, he was no longer employed by NAB and resided in Canada. Nonetheless, he gave his oral evidence voluntarily and in person. Although it was not squarely put to him that aspects of his evidence were untruthful, he was subjected to nearly a day-and-a-half of very skilful, persistent and, at times, (not inappropriately) aggressive cross-examination, during which the decisions that he had made, the views that he had formed, and the discussions and meetings in which he had participated—in some cases as long as three-and-a-half years earlier—were dissected, challenged and second-guessed in atomic detail. Throughout his time in the witness box, he remained composed and focused upon what was asked of him. He did not attempt to evade difficult questions. He was direct and articulated his positions with uncommon clarity. He was inclined toward concessions where appropriate. He accepted, for example, that Ms Wong was a capable employee who had secured significant improvements to the internet banking platform. He accepted that the NPP had been beset by numerous difficulties not of her making. But on every occasion on which the opinions that he claimed to have formed about Ms Wong back in 2016 and 2017 were challenged—and on every occasion that it was put to him that circumstances undermined those opinions or warranted alternative views—he explained, rationally and with clear conviction, why he did not agree. Again, he might not have been right; but he plainly believed that he was.
282 Ms Wong, it must be said, was also an impressive witness. As is usually the case in matters such as this one, where the statutory presumption looms as largely as it did, her evidence was mostly of secondary significance. She did not—and, of course, could not—give evidence about the state or states of mind of others. Nonetheless, it was abundantly clear from the evidence that she gave that she considered herself to be rightly proud of the work that she performed at NAB. On any view—including Mr Arnott’s—it would appear that she did deliver real and important improvements to NAB’s internet banking platform. Although she, too, was prepared to make appropriate concessions, she did not accept that the critical opinions that Mr Arnott formed of her were validly or fairly formed. She maintained—with a conviction that was at once apparent and steadfast—that she could not fairly be blamed for any of the problems that plagued the NPP. As above, her opinions on that score might well be fair; but that is not the inquiry upon which the court must here embark.
283 The views that Mr Arnott claims to have formed about Ms Wong were not obviously disconnected from the objective circumstances within which he claimed to have formed them. I say so appreciating, at the risk of repetition, that those circumstances were undoubtedly capable of supporting competing views. Similarly, the views that he says that he formed were not, by their nature, inherently unlikely to lead Mr Arnott to act in the manner that he did. Those realities acknowledged, this is not a case in which objective circumstances conspire to render the evidence that Mr Arnott gave—both about the views that he formed and the actions that he took in reliance on them—so improbable that the court should inferentially reject it as deliberate falsity. Ms Wong’s invitation to that end must be declined. The evidence that Mr Arnott gave about the views that he formed about Ms Wong and their influence on his conduct was not exaggerated or untruthful. I accept it.
3.6.2.9 Alternative conclusion
284 Even assuming that the contribution that Mr Arnott made to Ms MacLeod’s decision to remove Ms Wong from her role rose to a point sufficient to constitute him as part author of that decision, or otherwise to constitute the reasons that animated him as the reasons (or part of the reasons) that animated it, there was nothing about his state of mind that offends against s 340 of the FW Act. The evidence is sufficient to discharge the presumption established by s 361 of the FW Act: nothing that Mr Arnott relevantly did was done because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies.
285 Had it been necessary to do so, I would have so found.
3.6.3 The sending of the 21 March 2017 Announcement
286 Much of the analysis above concerning the decision to remove Ms Wong from her position as “Manager[,] Internet Banking” applies also to the sending of the 21 March 2017 Announcement. Ms Wong maintains that the decision to send the email was made jointly by Ms MacLeod and Mr Arnott, and that Mr Arnott’s reasons for sending it (or sending it in the form in which it was sent) included the fact that Ms Wong had made any one or more of the complaints or inquiries upon which she relies.
287 I am drawn to the same conclusions as appear above with respect to Ms Wong’s removal from her position as “Manager[,] Internet Banking”: the decision to send the 21 March 2017 Announcement was Ms MacLeod’s; Ms MacLeod was not actuated by any reason prohibited by s 340 of the FW Act; and, even assuming that Mr Arnott’s involvement in the sending of the 21 March 2017 Announcement was sufficient to constitute him as a decision-maker (or otherwise to constitute his state of mind as part of NAB’s reasons for sending the communication), Mr Arnott was also not animated by any such prohibited reason.
3.6.3.1 Who made the decision to send the email?
288 The evidence and submissions concerning who it was that decided, on behalf of NAB, to send the 21 March 2017 Announcement mirrored the evidence and submissions concerning Ms Wong’s removal from her role as “Manager[,] Internet Banking”. Both Ms MacLeod and Mr Arnott gave evidence that Ms MacLeod alone made the decision to send the 21 March 2017 Announcement. Ms Wong maintains that Mr Arnott’s contribution during the events that culminated in its being sent was sufficient to constitute the reasons that animated his conduct as the reasons (or part of the reasons) for which the communication was published.
289 Again, the court must consider Mr Arnott’s contribution to the process that culminated in the sending of the 21 March 2017 Announcement. The series of discussions that he had with Ms MacLeod (and others) about Ms Wong, and the assistance that he afforded her throughout that process—including by way of drafting the terms in which the 21 March 2017 Announcement was expressed (which Ms MacLeod later approved)—was plainly important. Nonetheless, I accept that the decision to send the email was Ms MacLeod’s alone. Mr Arnott’s contribution to the decision to send it was not any more “essential” or “indispensable” than that of any of the other advisers upon whom Ms MacLeod relied (including the NAB human resources personnel that assisted her). Mr Arnott did not contribute to a point sufficient to qualify him as a joint author of the decision to send the 21 March 2017 Announcement, or otherwise to constitute his state of mind as part of the NAB state of mind that endured when it was sent.
290 As with her removal from her position of “Manager[,] Internet Banking”, Ms Wong accepts that Ms MacLeod did not decide to send the 21 March 2017 Announcement because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies (or, more precisely, any of those that pre-dated the sending of the announcement). Again, that concession accorded with the evidence. Ms MacLeod was not party to, or aware of, any of those complaints or inquiries at the time that the email was sent.
291 Ms MacLeod’s reasons for sending the 21 March 2017 Announcement are plain enough. Having resolved to remove Ms Wong from her position as “Manager[,] Internet Banking” (and having done so for the reasons already outlined—above, section 3.6.2.2), Ms MacLeod saw fit to communicate her decision to those whom it might have affected. There is hardly anything remarkable about that as a course of events, as Ms Wong properly conceded. As Ms Wong herself put it, the decision to send the 21 March 2017 Announcement “…was inextricably linked to the decision to remove [her] from her position”.
292 Ms MacLeod’s reasons for removing Ms Wong from her position have already been outlined (above, section 3.6.2.2). There is nothing about them that tells of any connection between what Ms MacLeod did (on the one hand) and any of the complaints or inquiries upon which Ms Wong relies (on the other). I am satisfied that the evidence illuminating Ms MacLeod’s reasons for sending the 21 March 2017 Announcement suffices to rebut the statutory presumption for which s 361 of the FW Act provides. Ms MacLeod did not send it because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies.
293 Again in combination, the preceding analyses compel a finding that NAB did not send the 21 March 2017 Announcement because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies.
294 Again, I so find.
3.6.3.4 Again…what about Mr Arnott?
295 Even if I am wrong to conclude, as I have, that Mr Arnott did not jointly make the decision to send the 21 March 2017 Announcement (or otherwise that his state of mind at the time that it was sent did not constitute, or partly constitute, the corporate state of mind that animated NAB in sending it), I am nonetheless satisfied that Mr Arnott did not engage in any conduct related to its sending because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies.
296 Again, that conclusion mirrors the analysis that has already been traversed in respect of NAB’s decision to remove Ms Wong from her position of “Manager[,] Internet Banking”. Ms Wong submitted that “…Arnott did not discharge the reverse onus that a substantial operative reason for sending the 21 March 2017 email was not the complaints and inquiries made by Wong in relation to her employment”. In that regard, she repeated the submissions that she advanced to an equivalent end in relation to her removal from the role of “Manager[,] Internet Banking”.
297 For the same reasons, I do not accept that contention. I accept the evidence that Mr Arnott gave that none of the conduct in which he engaged—that is to say, the discussions that he had with Ms MacLeod (and others) about Ms Wong and the assistance that he provided to Ms MacLeod (and others) during the process that culminated in Ms Wong’s removal and in the sending of the 21 March 2017 Announcement—was engaged in for any reason or reasons proscribed by s 340(1) of the FW Act.
298 To the extent that Mr Arnott’s reasons for assisting Ms MacLeod by drafting the 21 March 2017 Announcement are relevant, I accept that he was not, in any way, actuated to that (or any other) end by the fact that Ms Wong had made any of the complaints or inquiries upon which she relies. That being so—and assuming, contrary to my conclusion above, that the reasons for which NAB sent the email are properly informed by Mr Arnott’s state of mind—none of the reasons for which that email was sent were reasons proscribed by s 340(1) of the FW Act.
3.6.3.5 Alternative conclusion
299 Had it been necessary to do so (that is, had I accepted that Mr Arnott’s state of mind vis-à-vis the sending of the 21 March 2017 Announcement was relevant), I would have so found.
3.6.4 The termination of Ms Wong’s employment
300 Again, there is no dispute that NAB terminated Ms Wong’s employment with effect from 11 May 2017, nor that that termination amounted to adverse action for the purposes of Pt 3-1 of the FW Act. As with the other instances of adverse action, attention must turn to who, on behalf of NAB, made the decision to dismiss Ms Wong and whether the evidence suffices to establish that he or she (or they) were not actuated in that regard by her having made any one or more of the complaints or inquiries upon which she relies.
3.6.4.1 Who made the decision to dismiss Ms Wong?
301 Unlike the other two instances of adverse action, Ms Wong attributes unlawful motives to both Ms MacLeod and Mr Arnott. Insofar as concerns Ms MacLeod, it is said that she was minded to terminate Ms Wong’s employment because (or for reasons that included that) Ms Wong made the complaints and inquiries that she made after 21 March 2017 (hereafter, the “Post-Removal Complaints and Inquiries”). Insofar as concerns Mr Arnott, it is said that his “…role in having Wong removed from the Internet Banking Manager role was essential, or material, to the ultimate decision to terminate Wong” and that, for the reasons already addressed, he was relevantly animated to that end by the fact that, or for reasons that included that, Ms Wong had made any one or more of the complaints and inquiries upon which she relies.
302 As with the other instances of adverse action that Ms Wong alleges, NAB’s evidence as to who made the decision to terminate her employment was consistent and straightforward. Both Ms MacLeod and Mr Arnott gave evidence that the decision was Ms MacLeod’s alone. That evidence was not challenged. Instead, Ms Wong relies upon the nature of Ms Arnott’s involvement in the process that culminated in her dismissal: she maintains that his contribution to that end was sufficient to constitute him as a decision-maker, or otherwise to constitute his state of mind as part of the corporate state of mind that NAB possessed when Ms Wong’s employment was terminated.
303 Again, there is no doubting that Mr Arnott’s role in the process that ended with Ms Wong’s dismissal was significant. In her written closing submissions, Ms Wong contended that “…[t]here would have been no need to engage with Wong about her behaviours, and Wong would not have had anything to respond to, if not for Arnott’s critical input”. There can be no doubt that that is so. It does not, however, follow that Mr Arnott’s contribution was such as to elevate him to the rank of decision-maker, or to otherwise require, in the search for NAB’s reasons for dismissing Ms Wong, any interrogation of his state of mind.
304 There is no evidence to suggest that Mr Arnott had any executive power or authority, formal or otherwise, and exercisable jointly with Ms MacLeod or otherwise, to bring an end to Ms Wong’s employment. That he enjoyed some influence—even a great degree of influence—over Ms MacLeod’s decision is not sufficient. Dismissal decisions often involve input from multiple sources, some more significant or powerful than others. It might be that, in some circumstances, an adviser might wield such a degree of influence over a decision-maker that he or she should be understood to have participated in the making of a given decision; but that is not the case here. Here, Ms Wong confuses a desire that she attributes to Mr Arnott to wield the influence that he had toward a particular end (namely, her dismissal) with his having possessed the means to effect that end. There is no evidence that Mr Arnott possessed any such means: he wielded no more influence over Ms MacLeod’s decision to dismiss Ms Wong than Mr Kane’s former employee organisation wielded in City of Melbourne or the AWU’s rival union wielded in John Holland.
305 That is not to say that Mr Arnott’s conduct, assuming that it was animated by some prohibited purpose, would necessarily be immune to challenge under Pt 3-1 of the FW Act. It might well be that, by having had the discussions about Ms Wong that he had and by having provided the assistance that he provided during the process that resulted in her dismissal (and, indeed, in the other instances of adverse action to which she was subjected), Mr Arnott exposed Ms Wong to some relevantly prejudicial alteration to her position as a NAB employee; and, thereby, took adverse action against her directly. Were that so, some interrogation of his state of mind would be necessary. That, though, is not the case that Ms Wong advances.
306 The decision to dismiss Ms Wong was Ms MacLeod’s. In determining the corporate state of mind with which NAB effected that decision, it is not necessary to interrogate the state of Mr Arnott’s conscience.
307 There is no doubt that Ms MacLeod was aware that Ms Wong made each of the Post-Removal Complaints and Inquiries. In her affidavit evidence, she explained that she was not moved to terminate Ms Wong’s employment because of any of them. Her evidence was as follows:
I made the decision to terminate Ms Wong's employment at NAB because Ms Wong did not provide me with any meaningful feedback to the concerns I had put to her and she did not indicate any willingness to engage with me on the substance of my concerns. Without receiving any meaningful feedback from Ms Wong to consider, I lost all trust and confidence that Ms Wong would engage in any kind of a process which might lead her to change her behaviours with the right level of coaching and mentoring. As a result, I felt that Ms Wong was not able to effectively discharge the duties and responsibilities of her employment.
As I had received no indication from Ms Wong that she accepted any accountability for her behaviours or a willingness to change, I was no longer prepared to consider alternative employment options for her at NAB…
As a Leader of Leaders at NAB, I have high behavioural expectations on all team members that work in my divisions and an expectation that team members will not behave in such a way that it would have an adverse impact on the health, safety and wellbeing of others in the business. At the time, I had serious concerns about the impact that her behaviours had on our senior leaders and team members, and I had no confidence that Ms Wong would make any effort to change her behaviours in circumstances where her poor behaviours had continued to impact our people for such a lengthy period of time. I therefore, apprised Mr Copeland of my decision to terminate Ms Wong's employment, which he supported. While Mr Copeland supported the decision, this was simply an administrative process, I was the ultimate decision-maker
Earlier, Ms MacLeod expressly denied that she had made her decision to terminate Ms Wong’s employment for any of the reasons that Ms Wong alleges. Her oral evidence was broadly consistent with what she stated in her affidavit.
308 As she must, Ms Wong contends that those aspects of Ms MacLeod’s evidence ought to be rejected as untruthful. She posits two reasons why the court should incline in that direction.
309 First, she fixes upon evidence that Ms MacLeod gave under cross-examination, namely that she (as Ms Wong put it), “…did not like the fact that Wong wrote those emails”. It is important to understand that evidence. As he was bound to, counsel for Ms Wong cross-examined Ms MacLeod about the Post-Removal Complaints and Inquiries (constituted, as they were, by the emails that Ms Wong sent to Mr Thorburn, Ms MacLeod and Ms Matthews—above, sections 3.5.1.16 to 3.5.1.18). Specifically, in relation to the Nineteenth Complaint, that cross-examination proceeded as follows:
MR FELMAN: So if you turn to page 4 and at the bottom in bold:
…Catherine has made broad statements without providing details.
?---You’re on 548 now?
Yes. Do you remember reading that?---Yes, I do.
…Catherine has not given details of matters raised in the email.
And then she sets it all out. So she’s naming you there - - -?---That’s correct.
- - - Ms Macleod? And then she says on page 7 of that email:
…I’m keen to commit to complete the investigation process as quickly as possible … my job and reputation are at stake.
That’s all understandable, isn’t it?---That’s correct.
And, in your mind, that was the last straw, that email, wasn’t it?---Look, this matter was, you know, in the hands of the workplace relations team at this point. I had endeavoured in my email of 3 May to provide some additional detail - - -
Yes?--- - - - to Ms Wong. And, you know, in my mind, I couldn’t – well - - -
Sorry? I missed that?---The advice coming back from workplace relations was, “We’re not sure, you know, what the path forward is in this matter. We’ve attempted to - - -
What?---Well - - -
This is one of those occasions where I’m letting you finish?---Don’t worry. Ask me another question, Mr Felman?
No, the question was this email was the last straw for you, wasn’t it?---I – I wouldn’t call it “the last straw”. It was a sign that I – I couldn’t see a path forward to, you know, re-engage with Ms Wong.
Because instead of answering the – I will call them allegations, colloquially. Instead of answering the allegations, she was sending back these emails complaining about things?---I wouldn’t call them “complaints”. To me, it felt like in reading this, that – you know, this – this had a very similar flavour to the instances where M[s] Wong – when Mr Arnott had tried to provide feedback to Ms Wong after her D performance rating. It didn’t matter what the detail was, didn’t matter what he put in writing, there was never sufficient detail, there was never sufficient explanation. At the meeting with Ms Wong on 21 March, I – you know, outlined my three areas of concern and asked her to go away and have a think about it and asked her if she could come back and – you know, and have discussion in relation, you know, to what I had talked about. Now, you know, this sort of email correspondence – you know, coming back saying, “I want dates. I want times. I want people. I want records. I want” – you know, I didn’t feel as though Sene-Li had even listened to me on the 21st, that – you know, I was seeking to engage with her, I was asking her to go away and think about the issues. And, indeed, it was a technique I had used with other employees in the past, with some success. I had two instances where I had had a meeting like that with HR. I had sat the person down, I had outlined a range of reasons that hadn’t – you know, as to why there were problems with the relationship or their conduct or the way in which they were working or engaging or, indeed, behaviours in – and in both those instances, those people had gone away, thought about it over the weekend, you know, and come back and then, you know, in the course of, you know, the next week or – or two, we had had a very frank and open discussion and then been able to, you know, make steps and plans for the future. Now, that was something I had set out, you know, and sincerely to try and do in this process and yet I – I thought after receiving, you know, a copy of this email, we were a million miles from that being able to take place, unfortunately.
But you could have, Ms MacLeod, simply provided her with some further details?---Well, I attempted to do that on 3 May.
Yes, but you only gave – from my memory – we can go back to it – the names of three people?---Correct. And they were all at the senior head ofs level. I was conscious that in the past when Sen[i]-Li had been given lists of names of people – and she talked about this the other day – she would go and confront them and want to know the facts and what really happened and “Did you really think that?” And, certainly, as – I’ve got a responsibility as a senior leader - - -
Yes?--- - - - to provide a safe workplace. And I didn’t think it appropriate to put in writing and send to her, you know, all this detail.
But, Ms MacLeod, her job is on the line, and she has been told that she’s behaving poorly. You can see that there are a bunch of people in the NAB who enjoyed working with her?---Correct.
And there are a bunch of people, obviously, from your affidavit who didn’t, and she did not know who was who. So you can see from her perspective that she just wanted to know who the people were so she could answer the allegations about her misbehaviours?---That’s right. I can see that.
Yes. And so they were reasonable requests, were they not?---You know, perhaps if she had been – sending email after email with a list that was just growing and growing in length was not particularly helpful. If Ms Wong had been prepared to meet with Ms Matthews, if she had been prepared to meet with me and have another discussion, this may have ended up very, very differently.
So you didn’t like the fact that she was writing these emails?---No. Certainly discussion and engagement is much, much more preferred than just an email exchange going back and forth.
310 It is apparent that Ms MacLeod’s evidence was not that she “did not like the fact that she [Ms Wong] was writing these emails”; but, rather and more to the point, that the emails that Ms Wong sent reflected what Ms MacLeod perceived to be a lack of willingness on Ms Wong’s part to engage with the feedback that she had received. Ms MacLeod didn’t like Ms Wong’s emails not because they were in the nature of complaints or inquiries but because she felt that they did not engage with the concerns that she (Ms MacLeod) had raised. It is not possible fairly to infer from that exchange that Ms MacLeod’s evidence about the reasons for which she was moved to dismiss Ms Wong was untruthful.
311 Second, Ms Wong fixes upon Ms MacLeod’s concession that she was embarrassed by the fact that Ms Wong had copied NAB’s chief executive officer, Mr Thorburn, into some of her Post-Removal Complaints and Inquiries. Under cross-examination, Ms MacLeod candidly accepted that proposition. It is not difficult to understand why a senior manager in Ms MacLeod’s position might have felt that way about an employee two rungs below her in the corporate hierarchy escalating her grievances all the way to the level of the bank’s chief executive. Regardless, Ms MacLeod’s evidence was that Ms Wong was entitled to take that step if she wished to; and that she (Ms MacLeod) “…had a good working relationship with Mr Thorburn, so it didn’t particularly concern [her]”.
312 Again, it is apparent that Ms Wong’s attempts to engage some assistance at NAB’s highest executive level was not something that relevantly actuated Ms MacLeod. That she felt, as inevitably she would, a degree of embarrassment about Ms Wong’s emails to Mr Thorburn is not reason enough to doubt the evidence that she gave about why she was minded to terminate Ms Wong’s employment. Much less is it reason enough to conclude, as Ms Wong urges, that Ms MacLeod’s evidence on that score was deliberately untruthful.
313 I accept that, when she resolved to terminate Ms Wong’s employment, Ms MacLeod was actuated by the reasons that she identified; and, more importantly, was not actuated by any reason proscribed by s 340(1) of the FW Act.
314 As with the other instances of adverse action, it is not strictly necessary to consider whether Mr Arnott did anything vis-à-vis Ms Wong’s dismissal for any reasons proscribed by s 340(1) of the FW Act. Nonetheless, I will do so, lest my conclusion about his non-involvement in the decision to terminate Ms Wong’s employment be wrong.
315 Ms Wong contends that Mr Arnott, having been instrumental in having her removed from her role as “Manager[,] Internet Banking”—that is to say, by having had the discussions about her that he had with Ms MacLeod (and others) and by assisting Ms MacLeod in the ways that he did during the process that resulted in her removal—was also instrumental to NAB’s decision to terminate her employment. Ms Wong contends that his reasons for engaging in those discussions and for providing that assistance constitute or partly constitute NAB’s reasons for effecting the termination of her employment.
316 I have already concluded (and, had it been necessary to do so, would have found) that, in engaging in the discussions about Ms Wong that he had with Ms MacLeod (and others) and in providing the assistance (to her and others) that he provided during the process that culminated in Ms Wong’s removal from the role of “Manager[,] Internet Banking”, Mr Arnott was not actuated by Ms Wong’s having made any of the complaints or inquiries upon which she relies (see above, sections 3.6.2.4-3.6.2.9). It is not suggested that there was any additional conduct in which Mr Arnott engaged so as to effect (or otherwise contribute to) Ms Wong’s dismissal. My conclusion concerning his state of mind suffices, then, to address what Ms Wong alleges in relation to her dismissal as well: even accounting for the statutory presumption established by s 361 of the FW Act, I am satisfied that Mr Arnott did the things that he did for the reasons that he identified; and that he did not do anything because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies.
317 Again, had it been necessary to do so, I would have so found.
3.6.5 Conclusions as to the reasons behind the adverse action
318 None of the adverse action to which Ms Wong was subjected was taken because, or for reasons that included that, she had made any of the complaints or inquiries upon which she relies. The accepted evidence going to what were—and, more importantly, were not—NAB’s reasons for doing what was done is sufficient to rebut the statutory presumption for which s 361 of the FW Act provides. That is so regardless of whether Mr Arnott’s conduct was sufficient to cast him in the role of decision-maker (or to otherwise require interrogation of his state of mind) in respect of any of the three alleged instances of adverse action.
3.7 Conclusions relating to NAB’s conduct
319 By way of summary of the analyses above, then:
(1) NAB did subject Ms Wong to adverse action in each of the three ways that she alleged—namely, by having removed her from her position as “Manager[,] Internet Banking”, by having sent the 21 March 2017 Announcement and by having terminated her employment (above, section 3.4);
(2) by making each of the Accepted Complaints or Inquiries, Ms Wong exercised a workplace right (within the meaning attributed to that concept by s 341(1) of the FW Act) but there was no such exercise associated with her making of any of the Contested Complaints or Inquiries (above, section 3.5); and
(3) none of the adverse action to which Ms Wong was subjected was effected because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relies (above, section 3.6).
320 It follows that NAB did not contravene s 340(1)(a)(ii) of the FW Act in any of the ways that Ms Wong alleges.
321 By her further amended statement of claim, Ms Wong alleges that Ms MacLeod was liable as an accessory to—or, more accurately, by dint of her having been, for the purposes of s 550 of the FW Act, “involved in”—all three of the contraventions of s 340(1)(a)(ii) that she alleged against NAB.
322 That contention was substantially refined over the course of the trial. As has already been recorded, Ms Wong’s case now is that the proscribed reasons to which she attributes her removal from her position as “Manager[,] Internet Banking” and the sending of the 21 March 2017 Announcement resided solely in the conscience of Mr Arnott. That being put, she could not (and did not attempt to) submit that Ms MacLeod might properly be found to have contravened, as an accessory, s 340(1)(a)(ii) of the FW Act insofar as concerned those two instances of adverse action.
323 Ms Wong maintains, however, that Ms MacLeod was “involved in” what she alleges was NAB’s contravention of that section by means of her dismissal. I have concluded that NAB did not commit any such contravention. It, of course, follows in the absence of its having done so that there was nothing to which Ms MacLeod can properly be thought to have been an accessory (or in which she might relevantly be thought to have been involved).
324 But even had I concluded that NAB contravened s 340(1) of the FW Act by effecting Ms Wong’s dismissal, it would not necessarily have followed that Ms MacLeod was relevantly “involved in” that contravention. In order so to find, it would have been necessary to make a positive finding that Ms MacLeod made her decision to dismiss Ms Wong conscious that she was doing so because Ms Wong had made any one or more of the complaints or inquiries upon which she relies. It would not have been enough simply to find that the evidence was insufficient to rebut the statutory presumption in play as against NAB.
325 Had I been minded to reject as false the evidence that Ms MacLeod gave as to why she resolved to terminate Ms Wong’s employment—and, thereby, to find that the statutory presumption for which s 361 of the FW Act provides remained, in respect of Ms MacLeod, unrebutted—there may have been some basis to go further and positively infer that Ms MacLeod was actuated by an improper purpose. Indeed, it is difficult to conceive of a circumstance in which the court might do the former without first doing the latter. Had I concluded that NAB contravened s 340(1) of the FW Act by terminating Ms Wong’s employment, it may well have been that Ms MacLeod would properly have been considered an accessory to that contravention. For obvious reasons, I needn’t consider that further.
326 Ms MacLeod did not contravene s 340(1)(a)(ii) of the FW Act in any of the ways that Ms Wong alleged.
3.9 Conclusion: no unlawful adverse action
327 All of the FW Act causes of action that Ms Wong prosecutes must (and will) be dismissed.
328 Ms Wong alleges that, by the sending of the 21 March 2017 Announcement, NAB and Ms MacLeod defamed her. By her further amended statement of claim, she puts that contention in two ways. First, she says that that communication, by the ordinary and natural meaning of its words, conveyed certain defamatory imputations. Second, she says that the same imputations were conveyed by innuendo because of certain, identified facts known to those to whom the announcement was published.
329 By her pleading, Ms Wong alleges that the 21 March 2017 Announcement was:
…understood to mean either that [or, alternatively, was understood by many of its recipients, by way of innuendo, that]:
(a) Wong engaged in such serious misconduct that justified the immediate removal of her from her position of “Platform Owner of Internet Banking”; and/or
(b) Wong displayed such serious incompetence in her role as “Platform Owner” of Internet Banking that it justified the immediate removal of her from her position.
330 The respondents deny that the 21 March 2017 Announcement conveyed any defamatory imputations, whether via its ordinary meaning or by way of innuendo. Further, they contend that the communication was made on an occasion of qualified privilege. On both bases, they deny any liability said to attach in tort to their sending of it.
331 It is not in contest that the respondents published the 21 March 2017 Announcement, nor that it was defamatory to the extent that it conveyed either or both of the imputations that Ms Wong alleges that it did. The questions that arise for determination are as follows:
(1) did the ordinary meaning of the words contained within the 21 March 2017 Announcement convey either of the imputations to which Ms Wong adverts;
(2) did the 21 March 2017 Announcement otherwise convey either of those imputations by way of innuendo;
(3) if those questions are both answered in the negative, did the 21 March 2017 Announcement convey (by innuendo or otherwise) any other defamatory imputations not materially dissimilar to those to which Ms Wong adverts; and
(4) if any of those questions is answered in the affirmative, was the 21 March 2017 Announcement published on an occasion of qualified privilege?
332 There was no material dispute as to the legal principles that must inform the court’s answers to the questions posed above. It is unnecessary that I should recite those principles in anything more than a summary manner. Very conveniently, they were comprehensively enumerated in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, [70]-[95] (Wigney J) as follows:
Relevant principles
The principles to be applied in determining whether a publication conveyed defamatory imputations are well settled and were not significantly in issue in this proceeding. The lead authorities and the principles established by them were summarised by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165, and were more recently considered in this Court by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73]; see also Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27]. The basic principles were also recently considered by the High Court in Trkulja v Google LLC (2018) 356 ALR 178 at [30]-[32] in the context of an appeal from the summary dismissal of a defamation action.
It is, for the most part, unnecessary to discuss or even cite all the well-known authorities. The basic principles relevant to this case may be summarised as follows.
The “ordinary reasonable person” and the “natural and ordinary” meaning
First, the applicant, here Mr Rush, bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication in question.
Second, the question of whether the defamatory meanings were in fact conveyed is a question of fact.
Third, the relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person. Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to put itself in the shoes of, or assume the role of, the ordinary reasonable reader. The question is not a question of construction of the words used in the article in the legal sense.
Fourth, in this context the authorities ascribe the ordinary reasonable reader with certain character traits, qualities or characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education. The ordinary reasonable reader is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”. Of course, as the High Court pointed out in Trkulja at [31], ordinary men and women in fact have different temperaments, outlooks, degrees of education and life experience, so the exercise is really one of “attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning”.
Fifth, the meaning that the words would convey to the ordinary reasonable reader is often called “the natural and ordinary meaning” of the words. In some cases, the natural and ordinary meaning of the words may be obvious from the direct or literal meaning of the words themselves. More often than not, however, the question turns on what implications or imputations the ordinary reasonable reader would understand were conveyed by the words.
Sixth, in determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.
Seventh, the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.
Eighth, as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [187]; (2003) 201 ALR 77 at [187]; [2003] HCA 50 at [187] (Callinan J; Gleeson CJ agreeing at [1]; Heydon J agreeing at [219]; see too McHugh J at [26]). Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article: Rivkin at [26] (per McHugh J) and the cases there cited.
Ninth, the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.
Tenth, the natural and ordinary meaning of words may be either the literal meaning, or an implied or inferred or an indirect meaning based on the general knowledge of the ordinary reasonable reader: Jones v Skelton [1963] 1 WLR 1362 at 1370; [1963] 3 All ER 952 at 958F. General knowledge, in this context, includes ““matters of universal notoriety” – that is to say, matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter [2013] EWHC 1435 (QB) at [16] (citing Lord Mansfield CJ in R v Horne [1775- 1802] All ER Rep 390 at 393E). Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507.
Eleventh, the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression.
Twelfth, while a publication may in some cases be reasonably capable of bearing more than one meaning, the tribunal of fact, whether it be a jury or a judge sitting alone, must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173-175: Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [34], [47]-[50]; Hockey at [73].
Thirteenth, in determining the meaning in fact conveyed by the publication, the intention of the publisher is irrelevant: Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288 (per Dixon J); Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; 1 WLR 1526 at [24].
Fourteenth, the manner in which the publication was actually understood is also irrelevant in determining what meaning was conveyed to the ordinary reasonable reader: Hough v London Express Newspaper, Ltd [1940] 2 KB 507 at 515; [1940] 3 All ER 31 at 35; Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 301-302. The question is to be determined on the basis of the natural and ordinary meaning of the publication alone.
Investigation, suspicion and guilt
A mere statement that a person is being investigated by the police or prosecution agencies, or that a person is suspected of committing a crime, does not necessarily impute guilt. It may convey no more than that there are reasonable grounds to suspect that the person is guilty, or that there are reasonable grounds for investigating whether the person is guilty: Lewis v Daily Telegraph Ltd [1964] AC 234 at 267-268 (per Lord Morris of Borth-y-Gest); Chase v News Group Newspapers Ltd [2002] All ER (D) 20 (Dec); EWCA Civ 1772; [2003] EMLR 218; Flood v Times Newspapers Ltd [2012] 2 AC 273 at [8]; 4 All ER 913 at [8]; Sands v South Australia (2015) 122 SASR 195 at [237]-[240]. The question in such a case is which of the possible meanings was in fact conveyed to the ordinary reasonable reader in all the circumstances. Much will depend on the context, the words used and the information conveyed by the publication considered as a whole.
In that context, in Lewis v Daily Telegraph, Lord Devlin said (at 285):
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
Similarly, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (the facts of which, unlike Lewis v Daily Telegraph, somewhat ironically concerned a publication about a fire), Gleeson CJ, McHugh, Gummow and Heydon JJ said (at [12]):
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise.
(Emphasis in original. Footnote omitted.)
There is no reason to suppose that those principles do not equally apply where the relevant publication concerns a complaint which has been made to, or is being investigated by, a person or body other than the police or the prosecution service.
“Bane and antidote”
There may be cases where the relevant publication includes not only defamatory statements (the “bane”), but also contrary statements or conclusions (the “antidote”). The applicable principle in such a case is that if “[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together”: Chalmers v Payne (1835) 2 Cr M & R 156 at 159; (1835) 150 ER 67 at 68; Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [16].
The question whether defamatory meanings conveyed by statements made in a publication have been removed by other statements in the publication – whether the antidote has overcome the bane – is a question of fact which again must be approached from the perspective of the ordinary reasonable reader. In that context, it must also be noted that the “bane and antidote theory reflects the fundamental proposition [that] the “reader is entitled to give some parts of the article more weight than other parts””: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [146], citing Rivkin at [50] (per McHugh J). It follows that contrary statements or conclusions in a publication will not necessary remove or undo the defamatory meanings otherwise conveyed.
“True innuendo” and extrinsic facts
As was noted earlier, Mr Rush contends that, if the alleged imputations did not arise from the natural and ordinary meaning of the words used in the publications, they nevertheless arose in circumstances where the words would have been read in conjunction with certain extrinsic facts. In World Hosts, Mason and Jacobs JJ said (at 641):
When read in conjunction with extrinsic facts, words may, in the law of defamation, have some special or secondary meaning additional to, or different from, their natural and ordinary meaning. This special or secondary meaning is not one which the words, viewed in isolation, are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts.
Cases where the alleged defamatory imputations are alleged to have been conveyed having regard to the existence of extrinsic facts are said to involve a plea of “true innuendo”. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, French CJ, Gummow, Kiefel and Bell JJ described a plea of true innuendo in the following terms (at [51]):
When a true innuendo is pleaded evidence may be given of special facts, known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. The essential requirement of the plea is that the matter is not one within the general knowledge of the hypothetical referees.
(Footnotes omitted.)
As was made clear in Chesterton, an essential requirement of the plea of true innuendo is that the alleged extrinsic or special facts are not within the general knowledge of those to whom the matter was published. The reason for that requirement is, as has already been noted, matters of general knowledge can in any event be considered in determining whether the alleged imputations were conveyed by the natural and ordinary meaning of the words used in the publication. This was explained by Lord Morris of Borth-y-Gest in Jones v Skelton at 1370-1371:
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.
As also noted earlier, matters of general knowledge are usually “matters of universal notoriety” or “matters which any intelligent viewer or reader may be expected to know”: Fox v Boulter at [16]. Evidence is not admissible to prove the general knowledge of the ordinary reasonable reader: Reader’s Digest at 506. Evidence is, however, admissible to prove special or extrinsic facts.
I gratefully adopt his Honour’s recitation of the relevant legal principles.
4.3 The ordinary and natural construction of the 21 March 2017 Announcement
333 The terms of the 21 March 2017 Announcement have already been replicated (above, [32]).
334 Ms Wong accepts—and it is plainly the case (as it is in most cases like this)—that a literal reading of the words of the 21 March 2017 Announcement reveals nothing defamatory. Instead, she maintains that the defamatory imputations to which she adverts were conveyed by implication. As has been outlined, that process of implication is put in two ways: first, that the imputations arose from the language that was employed; second, that they arose as innuendo on the strength of other facts or circumstances known to those who received the email. The reasoning in this section is directed to the first of those propositions.
335 In maintaining her submission, Ms Wong draws attention to four circumstances. First, she recounts the representation contained within the 21 March 2017 Announcement that the internet banking platform “is…facing some immediate challenges” including “the need to successfully land critical in-flight work across [various programs, including the NPP]”. Second, she notes the matter of central importance in the announcement, namely that “To ensure we are best set up for success [and e]ffective immediately…Adam Dinneen will assume the role of Platform Owner for Internet Banking, replacing Sene-Li Wong”. Third, she notes what the announcement says is expected of Mr Dinneen: namely, that he will be tasked with “ensuring the successful delivery of in-flight work” and with “working closely with the NAB Connect team to identify and execute on opportunities to bring the platforms closer together”. Fourth, Ms Wong notes that, although the announcement refers to NAB “working through next steps with her”, it does not identify any role into which she would, or might, be placed.
336 Ms Wong asserts that the 21 March 2017 Announcement implicitly conveyed that she was not able to “successfully land critical in-flight work” or “ensure that [NAB is] best set up for success”. Likewise, she maintains that it implicitly conveyed that she had not “ensur[ed] the successful delivery of in-flight work” or “work[ed] closely with the NAB Connect team to identify and execute on opportunities to bring the platforms closer together”. Those implicit representations, she says, arise naturally from the central observation in the announcement that Mr Dinneen was to replace her, effective immediately. As she put it: those messages conveyed “that the decision [to replace Ms Wong with Mr Dinneen] was sufficiently urgent that it needed to be made despite NAB having not identified a future role for Wong.”
337 From those observations, Ms Wong urges the court to conclude that the 21 March 2017 Announcement conveyed to those who received it that Ms Wong had engaged in misconduct or exhibited incompetence sufficiently serious (in either or both cases) to justify her immediate removal from her role. That implicit suggestion, she says, was not cured by the statement within the announcement that NAB “…would like to thank Sene-Li for the significant contribution she has made to both the platform and Digital [and was] working through next steps with her”.
338 Respectfully, those contentions cannot succeed. The 21 March 2017 Announcement did not implicitly lead the hypothetically ordinary and reasonable recipient to conclude that Ms Wong’s removal from her role was a product of incompetence or misconduct on her part. At its highest, it implied that NAB did not consider that Ms Wong was the best candidate available to it for that role. No doubt Ms Wong might consider that conclusion something of a personal affront, or even a discourteous, unwarranted or derogatory expression of disrespect—particularly in light of her own (and some others’) views about her performance in the role. Conceivably, misconduct or incompetence could explain why that conclusion had been drawn; but so too could many other things (the most obvious being that NAB was of the view that Mr Dinneen’s skills and strengths were more suited to the challenges at play than Ms Wong’s). Removal on account of misconduct and/or incompetence is not the “single natural and ordinary meaning” of the words in question. Indeed, it is only by a process of lurid speculation that one could be led to conclude from the terms of the announcement that Ms Wong was removed from her role for either or both of those reasons.
339 Particularly is that so in light of the laudatory statement contained within the announcement: namely, that NAB “…would like to thank Sene-Li for the significant contribution she has made to both the platform and Digital, and [was] working through next steps with her”. Ms Wong dismissed that statement as a “glib refrain” through which the ordinary, reasonable recipient would readily see. Respectfully, that is not a fair assessment. There is no reason to read it as anything other than a genuine expression of gratitude and an acknowledgement that Ms Wong had made positive contributions to the bank through her work. That being so, the (contextually) public expression of gratitude to Ms Wong for her “significant contribution” does not easily marry with there having been an implicit suggestion that her removal from her role was the product of incompetence or misconduct on her part.
340 The reference to “working through next steps” cannot be ignored either. True it is that the announcement did not identify a new role into which Ms Wong would or might be placed; but, on any view, it implied that that was a matter to which consideration would be or was being given. The “next steps” could, of course, have involved Ms Wong’s departure from NAB; but there is no reason why the ordinary and reasonable recipient would have concluded as much (particularly given the preceding expression of gratitude), much less that he or she would have concluded that it would occur contrary to Ms Wong’s wishes (in other words, that any departure would be involuntary). Again, although not impossible, it is difficult to reconcile that expression of willingness to work with Ms Wong (whether toward her removal from the business or otherwise) with any implicit suggestion that her removal was actuated by incompetence or misconduct on her part. Why, it might rhetorically be asked, would NAB or Ms MacLeod have any such willingness if Ms Wong was thought to be incompetent or guilty of misconduct; if she was incompetent or guilty of misconduct, why not just be done with her?
341 As the respondents put it, the expression of gratitude and willingness to work with Ms Wong beyond the point of her removal “…implies to the reasonable reader that she is still seen as an employee of value [with whom] the bank intends to maintain its employment relationship”. Those realities naturally incline the hypothetically ordinary and reasonable recipient against inferring that her removal was a function of misconduct or incompetence on her part.
342 It follows that the 21 March 2017 Announcement, construed according to the ordinary and natural meaning of its words, did not convey either of the imputations that Ms Wong alleges.
343 Ms Wong next asserts that the 21 March 2017 Announcement conveyed the same defamatory imputations by way of innuendo. Put another way, she contends that the recipients of the announcement were armed with knowledge of particular facts; and that the hypothetically ordinary and reasonable recipient of it would, by reason of that knowledge, impute unto it either or both of the defamatory meanings to which Ms Wong adverted.
344 In her written closing submissions, Ms Wong summarised as follows the extrinsic facts by reason of which she claims that the 21 March 2017 Announcement defamed her by means of innuendo:
The matters upon which Wong relies by way of true innuendo are particularised at Item C of the particulars to paragraph 56A [of her pleading]. They are that:
(a) there were problems with the delivery of the NPP Project; and
(b) NAB had usual practices when announcing restructures involving role transfers. Those practices included identifying the new role into which the employee would be transferred in the email announcing the restructure, and reserving broadcast emails for role transfers involving senior leaders within the business, such General Managers and Executive General Managers.
345 Ms Wong contends that, “[a]rmed with knowledge of those facts, the ordinary reasonable person would understand the 21 March [2017 Announcement] to convey that Wong’s removal was highly unusual, and that she displayed [or engaged in] such serious incompetence or misconduct to justify her immediate removal from her position…”
346 The respondents conceded that the recipients of the 21 March 2017 Announcement (or some of them) had knowledge of the extrinsic facts that were said to underpin the innuendo alleged. At issue, then, is simply whether or not the hypothetically ordinary and reasonable recipient of the 21 March 2017 Announcement would, with knowledge of those facts, construe its words in a way reflective of the defamatory imputations that Ms Wong alleges.
347 I am not persuaded that he or she would.
348 It can be accepted that knowledge of the extrinsic facts that were relied on might have given the ordinary and reasonable recipient reason to conclude that there was something unusual about the circumstances surrounding Ms Wong’s removal. That, in turn, might mean that he or she was more likely to draw interferences consistent with either or both of the alleged defamatory imputations than would otherwise have been the case had no such knowledge been possessed.
349 None of that gets Ms Wong very far, though; and for the same reasons as are stated above in respect of the ordinary and natural meaning of the announcement. The fact that Ms Wong’s removal was unusual is not reason enough to presume that it had something to do with incompetence or misconduct on her part. That might be one possible explanation (and one to which some recipients might have been drawn); but, there is no end of alternative explanations that say nothing of Ms Wong’s conduct or competence. Indeed, the unusual nature of the reorganisation might well incline against concluding that her removal was actuated by incompetence or misconduct. In circumstances where the internet banking platform was known to be facing some challenges, the infusion of new personnel might have been just the tonic to address them.
350 To say that NAB management lacked confidence in Ms Wong to do what was felt had to be done—which possibly was conveyed by the announcement, at least in a relative sense—is one thing; to attribute that want of confidence to misconduct or incompetence on her part is something else entirely. The ordinary and reasonable recipient of the announcement is not somebody who would reflexively incline toward a conclusion that held Ms Wong in such a negative light like that. Even under the light of the accepted extrinsic facts, a conclusion that Ms Wong was removed from her position on account of incompetence and/or misconduct is open only upon engagement in salacious speculation.
351 Again, that is particularly so given the laudatory comments that were included within the 21 March 2017 Announcement. It is unnecessary that I should repeat the observations already made about them (see above, [339]-[341]).
352 It follows that the 21 March 2017 Announcement, construed in the context of the accepted extrinsic facts that Ms Wong highlights, did not, by innuendo, convey either of the imputations that Ms Wong alleges.
353 The respondents sought to make much of the manner in which Ms Wong pleaded the defamatory imputations that she attributed to the 21 March 2017 Announcement. They stressed her apparent reliance on the announcement having associated her with “serious misconduct” and “serious incompetence”. They suggested that the hypothetically ordinary and reasonable recipient of the announcement would have been ever slower to conclude that her removal from the role of “Manager[,] Internet Banking” was actuated by serious incompetence or serious misconduct on her part (as opposed to misconduct or incompetence simpliciter).
354 Ms Wong contends (without conceding the point) that she was permitted to rely on any other imputations not substantially different from or more serious than that which she had pleaded. Reliance was, to that end, placed on Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, 546 (Gaudron and Gummow JJ), 578-583 (Kirby J). She identified the following alternative imputations, namely:
(a) in relation to the Misconduct Imputation:
(i) that Wong engaged in misconduct in the performance of her role as Platform Owner of Internet Banking, such that it was necessary for NAB to immediately remove her from that role; or
(ii) that Wong engaged in misconduct in the performance of her role as Platform Owner of Internet Banking, such that she was not in a position to successfully land critical in-flight work or to best set up NAB for success, and for that reason it was necessary for NAB to immediately remove her from that role; [and]
(b) in relation to the Incompetence Imputation:
(i) that Wong incompetently performed her role as Platform Owner of Internet Banking, such that it was necessary for NAB to immediately remove her from that role; or
(ii) that Wong incompetently performed her role as Platform Owner of Internet Banking, such that she was not in a position to successfully land critical in-flight work or to best set up NAB for success, and for that reason it was necessary for NAB to immediately remove her from that role.
355 The so-called permissible variants to which Ms Wong adverted each maintain that the 21 March 2017 Announcement conveyed that she had engaged in misconduct or was incompetent (albeit not to the same “serious” degree to which her pleading referred). As it is, my analysis above concludes that the single natural and ordinary meaning of the 21 March 2017 Announcement did not, in terms or by innuendo, convey to the ordinary and reasonable recipient that Ms Wong’s removal from her role was the product of any misconduct or incompetence, serious or otherwise. Whether Ms Wong should be permitted to rely on some variation of the imputations that she pleaded is, then, largely academic.
356 The imputations that Ms Wong identified in her further amended statement of claim were, with respect, inelegantly pleaded. She asserted that the 21 March 2017 Announcement conveyed that she had “engaged in such serious [misconduct and incompetence…] that [it] justified [her] immediate removal”. In each case, it is said that the announcement conveyed that the justification for her immediate removal was the “serious [misconduct or incompetence]” referred to. On one view, that could be understood as a suggestion that the announcement implied that she had engaged in serious misconduct or serious incompetence on account of either or both of which her immediate removal was warranted. Alternatively, it could be understood to suggest that she had engaged in misconduct or exhibited incompetence that was sufficiently serious that her immediate removal was warranted. For what it’s worth, I incline to the view that the latter is the better construction, if for no other reason than that the plea incorporates the qualifier “such” prior to identifying its subject (namely, the serious incompetence or misconduct).
357 In all likelihood, the point of distinction between the two is practically imaginary. If the ordinary and reasonable recipient of the announcement were minded to conclude that Ms Wong’s immediate removal was warranted because she was incompetent or had engaged in misconduct, it is difficult (although not impossible) to imagine that he or she wouldn’t also have concluded that that incompetence or misconduct was serious.
358 For obvious reasons, it is not necessary to explore that question any further.
359 Having concluded that the 21 March 2017 Announcement did not defame Ms Wong, it is not strictly necessary to consider whether it was communicated on an occasion of qualified privilege. Nonetheless, as the point was the subject of comprehensive submissions—and lest I be wrong in concluding as I have—I should address it.
360 At common law, a defamatory representation is protected from suit when it is published by a person who has a duty to make (or interest in making) it to recipients who have a corresponding duty to receive (or interest in receiving) it: Atkas v Westpac Banking Corporation Ltd (2010) 241 CLR 79, 87 [14] (French CJ, Gummow and Hayne JJ). That community of interest does not require that the interests of the publisher and the recipient be perfectly aligned: Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 (hereafter, “Papaconstuntinos”), 541 [8] (French CJ, Crennan, Kiefel and Bell JJ). It does, however, require that any defamatory matter contained within a publication be “…relevant to the privileged occasion” or within what is “…reasonably incidental to the legitimate purposes of the occasion”: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, 228 (Dawson, McHugh and Gummow JJ); Papaconstuntinos, 565 [75] (Heydon J). Once an occasion of qualified privilege is found to exist, the privilege protects communications made on that occasion unless they were made maliciously: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
361 Three questions arise in the context of the respondents’ qualified privilege defence, namely:
(1) did NAB and Ms MacLeod have a duty to send (or interest in sending) the 21 March 2017 Announcement that corresponded with its recipients’ duty to receive (or interest in receiving) it;
(2) did the 21 March 2017 Announcement venture beyond the legitimate service of those duties or interests; and
(3) was the 21 March 2017 Announcement actuated by malice?
362 I will address each question in turn.
4.6.1 Reciprocity or community of interest
363 The 21 March 2017 Announcement was emailed to 423 NAB employees. Almost all of them received it because their individual email address was registered to one of the eight distribution lists to which the email was sent. Those distribution lists covered 15 distinct organisational units within the bank (the details of which needn’t here be rehearsed).
364 According to Ms MacLeod, all 15 of those groupings—and all of the recipients within each of them—had occasion to interact with the Digital Business and Digital Technology teams; and, more specifically, to do so in relation to the internet banking platform. Indeed, the vast majority of the recipients were employed in the Digital Business or Digital Technology teams.
365 Ms Wong does not attack those factual foundations. Instead, she says two things: first, that there is reason to doubt that the distribution lists were properly maintained (such that the court might infer that some of the members of those lists who received the announcement did so despite no longer occupying positions within the bank that warranted their receiving it); and, second, that the cohort to which the announcement was sent spanned “a vast swathe of management tiers”, including (for example) “rotating graduates in teams with only remote levels of interaction with Wong’s team”, in respect of whom the necessary community of interest was absent or “tenuous at best”.
366 To make good on her contention concerning the maintenance of NAB’s email distribution lists, Ms Wong relied on evidence given by Mr Bligh about his experiences with group emails at NAB. Mr Bligh’s evidence was as follows:
These groups would not necessarily have been restricted to employees of the NAB working in the Digital Department and the Digital Technology Department at the time of the email. That is because after employees leave particular departments at the NAB, in my experience, they are not necessarily taken off the email recipient group. This has occurred with me on occasions. For example, I had been in the Architecture Department of the NAB for three years and I still received emails relating to the Architecture Department even though I was no longer in that department. This was because I had not been taken off that email group.
367 It is not difficult to appreciate how NAB’s email distribution lists might, from time-to-time, not perfectly match the composition of the groups in respect of which they are established and maintained. Nonetheless, evidence was led going to the identity and job title of each of the 423 NAB employees who received the 21 March 2017 Announcement. No attempt was made to interrogate that list or identify from it individual NAB employees who were not, at the time that they received the announcement, engaged within the organisational unit by reason of their association with which it was thought appropriate that they should receive it.
368 Instead, Ms Wong invites the court to infer merely from the possibility that the relevant distribution lists might not have been up-to-date on 21 March 2017—a possibility underlined by Mr Bligh’s evidence (to the limited extent that it could otherwise be questioned)—that the 21 March 2017 Announcement was sent to people who had no interest in receiving it. I do not consider that to be a sufficient basis upon which to draw any such inference. The court should not (and I do not) assume irregularity, particularly not given that Ms Wong had an opportunity to verify any concerns that she might have had from the list of individual employees to whom the email was sent.
369 Likewise, there is nothing that can relevantly be made of the fact that the 21 March 2017 Announcement was sent to employees of varying seniority. There was no reason for NAB or Ms MacLeod to discriminate, on the basis of rank, between the employees of the 15 discrete organisational units to whose members the announcement was sent. The evidence was clear enough: the members of those units had occasion to interact with (and, thereby, had an interest in knowing about changes to the composition and structure of) the Digital Business and Digital Technology teams, and those responsible for managing the internet banking platform. That some of them would tend to have greater such occasion than others is not to the point.
370 NAB and Ms MacLeod had an interest—in my view, an obvious interest—in sending the 21 March 2017 Announcement to NAB employees who had an interest in understanding or knowing the architectural and personnel changes to which it adverted. Such an interest logically extended to those within NAB whose roles gave them occasion to interact with the parts of the business that were affected by the substance of the announcement. That is what occurred. As Ms MacLeod put it in her written testimony:
I needed to relay the information contained in the Broadcast Announcement quickly and succinctly, to a wide number of team members who were affected directly or indirectly by the Broadcast Announcement, with immediate effect. The reason I needed to do so, was because our team members needed to be made aware of these significant changes in leadership and organisation for the Internet Banking Platform, the strategic direction we were taking moving forward in relation to the Internet Banking Platform and NABConnect, and who they could speak to or communicate with in order for them to effectively undertake their own roles at NAB. As I have explained, this was particularly so in circumstances where the Digital and Digital Technology teams were in a midst of two substantial project undertakings that were critical to NAB's digital business — i.e. the MA and the NPP. In an Agile working environment, it is also strategically important to send announcements to wide numbers of team members to increase knowledge flows and to support collaboration.
371 The 21 March 2017 Announcement concerned important structural and personnel changes that inevitably impacted the internet banking platform and the various teams that administered it. As between NAB and Ms MacLeod (on the one hand) and the 423 NAB employees to whom the 21 March 2017 Announcement was sent (on the other), there was a relevant community of interest sufficient to establish that the announcement was made on an occasion of qualified privilege.
4.6.2 Connection between defamatory imputations and the occasion
372 Ms Wong contends that, insofar as the 21 March 2017 Announcement identified why it was considered necessary to make the changes to which it referred—that is, insofar as it said the things from which the defamatory imputations (as Ms Wong characterised them) arose (see above, [335])—it traversed beyond topics that were relevant or reasonably incidental to the privileged occasion. She contends that any community of interest as between NAB and Ms MacLeod (on the one hand) and the 423 recipients (on the other) was limited to the question of what changes were to be made, not why.
373 I do not accept that contention. The reasons underpinning the structural and personnel changes that were the subject of the 21 March 2017 Announcement were matters about which its recipients had an interest in knowing. They contextualised the changes that were the subject of the announcement and explained what was hoped to be achieved by them. They were, in that sense, sufficiently incidental to the privileged occasion.
374 Indeed, given the significance and scale of the changes that were announced, any absence of explanation for them would (or could) have been odd in itself and might well have led the recipients to form views that were unwarranted or inconsistent with the actual reasons for which the changes were made. It was not in the interests of NAB or Ms MacLeod to permit that to occur; nor was it in the recipients’ interests to be led to improper or incorrect speculation.
375 The 21 March 2017 Announcement did not venture beyond what was relevant to the privileged occasion. Its subject matter was “reasonably incidental to the legitimate purposes of the occasion”.
376 Ms Wong contends, further and in any event, that the 21 March 2017 Announcement was actuated by malice, such that any qualified privilege that might otherwise have attached to it was extinguished. That malice was said to lie in the mind of Mr Arnott, who prepared the terms of the announcement in draft, which Ms MacLeod later approved.
377 There was no suggestion that Ms MacLeod acted maliciously by sending the 21 March 2017 Announcement. Insofar as she (as distinct from NAB) might rely upon the privilege, that reliance cannot be rendered unsustainable by reason of any malice on her part. The analysis that follows, then, relates to the state of mind that actuated NAB.
378 Ms Wong contends two things: first, that NAB’s decision to publish the 21 March 2017 Announcement was partly of Mr Arnott’s making (or was otherwise such that his state of mind at the time should inform the court’s assessment of the corporate state of mind with which the email was sent); and, second, that insofar as he played a role in that regard, Mr Arnott was actuated by malice. Specifically, Ms Wong alleged that Mr Arnott published (or contributed to the publication of) the 21 March 2017 Announcement for reasons extraneous to the privileged occasion, namely because of the complaints or inquiries that Ms Wong made (upon which she relied in the context of her adverse action claims).
379 I have already concluded that Mr Arnott did not make any contribution to the sending of the 21 March 2017 Announcement because, or for reasons that included that, Ms Wong had made any of the complaints or inquiries upon which she relied (above, [298]). That substantially—if not wholly—addresses the contention that is advanced vis-à-vis malice; but some additional observations are appropriate.
380 Although it was not squarely put to Mr Arnott that he was relevantly actuated by malice, he was, properly enough, challenged about his state of mind at the time. Propositions were put to him from which the presence of malice might readily have been inferred. It was suggested, for example—and Mr Arnott denied—that he “had it in for Ms Wong”. When confronted with the proposition that he was not “…interested in helping [Ms Wong] or dealing with [her] complaints,” he responded:
I was absolutely interested…Believe me, the first thing I thought about every day when I got up going into work was Sene-Li. The last thing I thought of when I was going home every day happened to be – to be Sene-Li, so I deeply cared about what was happening.
381 Mr Arnott gave evidence about the emotional toll that his interactions with Ms Wong took on him in the lead up to her removal and, ultimately, her dismissal. It was because of that that he was, so he said, excluded from making any decisions about Ms Wong. That led to the following exchange:
So you drafted the digital email announcement or, at least, a draft of it?---Yes. I absolutely completed a draft of it.
Yes?---Which – which I was asked to do, yes.
Because it’s funny, you were saying how distressed and upset this all made you but you seem to have – you seem very involved in this process and happy to draft scripts and happy to draft emails?---Well, I – I - - -
Did you start feeling a bit better about it all?---I – I had – I – I didn’t feel better at all about what was happening. In fact, I even recall a conversation with my wife on the day where it happened saying, “I feel terrible about all this.” I didn’t – and I even remember saying I – I hope Sene-Li’s okay through the process. So I still felt emotion about it, absolutely. But this was my team and I had to take a role of accountability which we’ve spoken a lot about in making sure that with this happening, things would be managed okay across our teams. Because when somebody in a senior role is – is removed, obviously it has a big impact. So there wouldn’t be a scenario where I could just step away and say, “Well, I can’t be involved.” I have – of course, I have to be involved in the process of communicating to the team. That’s what – that’s what leadership is; right?
382 In their written closing submissions, the respondents made the following observations about that exchange:
This is the best evidence of Mr Arnott’s state of mind when drafting the email. Mr Arnott is revealed as someone who still empathises with, and was concerned about, Ms Wong through the process. Mr Arnott was plainly not actuated by malice in drafting the impugned email.
383 I accept that submission.
384 The above analysis presupposes that Mr Arnott’s state of mind is relevant to divining the corporate state of mind that attended the sending of the 21 March 2017 Announcement. That it is is by no means clear (as to which, see above, section 3.6.3.1). How Ms Wong maintains that NAB should be fixed with any malice residing in the mind of Mr Arnott was not adequately explained. Even assuming that Mr Arnott’s conduct was sufficient to qualify him as a publisher of the announcement, it remains necessary to attribute to NAB his state of mind. Plainly enough, that attribution process could not occur by the statutory means for which s 793(2) of the FW Act provides. How else it might occur was not the subject of submission.
385 Fortunately, nothing further need be said on that score. The 21 March 2017 Announcement was not attended by malice.
4.6.4 Conclusion re qualified privilege
386 Even assuming (contrary to the conclusions that I have stated) that it conveyed defamatory imputations, the 21 March 2017 Announcement was made on an occasion of qualified privilege and is, therefore, not actionable.
4.7 Conclusion: was Ms Wong defamed?
387 No.
388 Ms Wong’s application must (and will) be dismissed.
389 Section 570 of the FW Act applies to limit the court’s capacity to award costs. It is conceivable that the respondents might wish to be heard as to whether circumstances not yet within the contemplation of the court should circumvent those limitations. If either or both of them wish to agitate a claim for costs, they may make an application in the usual way; preferably after liaising with Ms Wong’s representatives as to any related procedural directions that might be appropriate. For now, no order as to costs will be made.
I certify that the preceding three hundred and eighty-nine (389) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:
