Wong v National Australia Bank Limited

[2021] FCA 671

FEDERAL COURT OF AUSTRALIA

Wong v National Australia Bank Limited [2021] FCA 671  

File number:

VID 903 of 2017

Judgment of:

SNADEN J

Date of judgment:

22 June 2021

Catchwords:

INDUSTRIAL LAW – employment – adverse action – removal of applicant from position in which she was employed – announcement of removal to co-workers – subsequent termination of applicant’s employment – whether the applicant was subjected to adverse action by the respondents in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act) – whether applicant made complaints or inquiries amounting to the exercise of “workplace rights” pursuant to s 341 of the FW Act – whether adverse action was taken because the applicant had exercised workplace rights – operation of statutory presumption in s 361 of the FW Act – identification of the person or people who decided to engage in adverse action – whether corporate state of mind resided (or partly resided) in a person who did not make a relevant decision – whether the second respondent was liable as an accessory to any statutory contravention committed by the first respondent – application dismissed

DEFAMATION – publication of email communication by respondents to various personnel of the first respondent – whether communication conveyed defamatory imputations, namely that the applicant was incompetent or had misconducted herself – ordinary and natural meaning of words in communication – whether communication conveyed defamatory imputations by way of innuendo – whether the communication conveyed any other defamatory imputations not materially dissimilar to the imputations alleged – defence of qualified privilege – whether the respondents had a duty to send (or an interest in sending) the communication – whether the recipients of the published communication had a right to receive (or an interest in receiving) it – whether the communication ventured beyond the legitimate service of those duties or interests – whether the communication was actuated by malice – state of mind of the respondents – communication did not convey defamatory imputations as alleged – the communication did not contain defamatory imputations by way of innuendo – the communication was not actuated by malice – the publication of the communication was made on an occasion of qualified privilege – the applicant was not defamed

Legislation:

Fair Work Act 2009 (Cth) – Pt 3-1 – ss 340, 341, 342, 347, 360, 361, 539, 550, 570 and 793

Judiciary Act 1903 (Cth) – s 39B

Cases cited:

ACCC v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1

Atkas v Westpac Banking Corporation Ltd (2010) 241 CLR 79

Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332

AWU v John Holland (2001) 103 IR 205

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243

CFMEU v Clermont Coal Pty Ltd (2015) 253 IR 166

CFMEU v Endeavour Coal (2015) 231 FCR 150

CFMEU v Piblara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Chakravarti v Advertiser Newspapers (1998) 193 CLR 519

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400

Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fair Work Ombudsman v Hu (2019) 289 IR 240

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

Gregg v The Queen [2020] NSWCCA 245

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Maric v Ericsson Australia Pty Ltd [2020] FCA 452

Meridian Global Funds Management Asia Limited v Securities Commission [1995] 3 All ER 918

National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139

Papaconstuntinos v Holmes à Court (2012) 249 CLR 534

Patrick Stevedores Operations (No 2) v Maritime Union of Australia (1998) 195 CLR 1

PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225

Qantas Airways Ltd v Australian Licensed Aircraft Engineers’ Association (2012) 202 FCR 244

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Sabapathy v Jetstar Airways [2021] FCAFC 25

Salama v Sydney Trains [2021] FCA 251

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352

Wood v City of Melbourne Corporation (1979) 26 ALR 430

Division:

Fair Work Division

Registry:

Victoria

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

389

Date of hearing:

2-10 December 2019 and 17 April 2020

Counsel for the Applicant:

Mr M L Felman with Mr A R M Pollock

Solicitor for the Applicant:

Jholl Lawyers & Consultants

Counsel for the Respondents:

Mr J Forbes with Mr J Hooper

Solicitor for the Respondents:

Minter Ellison

ORDERS

VID 903 of 2017

BETWEEN:

SENE-LI WONG

Applicant

AND:

NATIONAL AUSTRALIA BANK LIMITED

First Respondent

CATHERINE MACLEOD

Second Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	22 JUNE 2021

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.

REASONS FOR JUDGMENT

PART 1:  OVERVIEW	[1]
PART 2:  BACKGROUND AND EVIDENCE	[10]
2.1  The trial	[10]
2.2  NAB’s structure and personnel	[15]
2.3  The “MAP” and “NPP” projects	[21]
2.4  The “agile” work environment	[25]
2.5  The relevant time periods	[29]
PART 3:  THE ADVERSE ACTION CASE	[47]
3.1  Summary	[47]
3.2  The legislative framework	[50]
3.3  Principles to be applied	[59]
3.3.1  Adverse action	[60]
3.3.2  Employment-related complaints or inquiries	[64]
3.3.3  The exercise of workplace rights	[68]
3.3.4  Proof of proscribed purpose	[78]
3.3.5  Corporate decision-making	[84]
3.3.6  Accessorial liability	[99]
3.4  Was Ms Wong subjected to adverse action?	[102]
3.5  Did Ms Wong possess and exercise workplace rights?	[108]
3.5.1  The complaints and inquiries that are relied upon	[112]
3.5.1.1  January 2016—concerns about Ms Malhotra (the “First Complaint”)	[113]
3.5.1.2  February 2016—complaint about Ms Burton (the “Second Complaint”)	[116]
3.5.1.3  March 2016—project manager request (the “First Inquiry”)	[119]
3.5.1.4  26 July 2016—request for additional resource (the “Third Complaint”)	[121]
3.5.1.5  September 2016—concerns about the NPP (the “Fourth Complaint”)	[122]
3.5.1.6  September 2016—NPP baseline report (the “Fifth Complaint”)	[124]
3.5.1.7  later in 2016—complaints about Ms Hon (the “Sixth Complaint”)	[126]
3.5.1.8  October 2016—project manager request (the “Seventh Complaint”)	[129]
3.5.1.9  November 2016—written complaint about Hon (the “Eighth Complaint”)	[131]
3.5.1.10  November 2016 to January 2017—personnel complaints (the “Ninth Complaint”)	[132]
3.5.1.11  January and February 2017—NPP cost blowout (the “Tenth Complaint”)	[135]
3.5.1.12  February 2017—the “opportunities” presentation (the “Eleventh Complaint”)	[138]
3.5.1.13  March 2017—workload complaint (the “Twelfth Complaint”)	[139]
3.5.1.14  March 2017—further cost fallout (the “Thirteenth Complaint”)	[140]
3.5.1.15  16 March 2017—cost and workload complaints (the “Fourteenth Complaint”)	[142]
3.5.1.16  24 March 2017—the removal (the “Fifteenth Complaint”)	[144]
3.5.1.17  24 March 2017—escalation to Mr Thorburn (the “Sixteenth Complaint”)	[145]
3.5.1.18  24 March to 11 May 2017	[146]
3.5.2  The pleadings	[147]
3.5.3  Did Ms Wong’s concerns qualify as complaints or inquiries?	[151]
3.5.4  Were the qualifying complaints or inquiries related to Ms Wong’s employment?	[158]
3.5.5  Were they complaints or inquiries that Ms Wong was “able to make”?	[161]
3.5.6  Conclusions	[178]
3.6  Was adverse action taken because of Ms Wong’s complaints and inquiries?	[180]
3.6.1  Overview	[180]
3.6.2  Removal from the role of “Manager[,] Internet Banking”	[190]
3.6.2.1  Who made the decision to remove Ms Wong?	[191]
3.6.2.2  Ms MacLeod’s reasons	[197]
3.6.2.3  Conclusions	[201]
3.6.2.4  What about Mr Arnott..?	[203]
3.6.2.5  Mr Arnott’s evidence	[208]
3.6.2.6  The alternative viewpoint	[240]
3.6.2.7  Ms Wong’s submissions about credit	[271]
3.6.2.8  How might the evidential conflict be resolved?	[278]
3.6.2.9  Alternative conclusion	[284]
3.6.3  The sending of the 21 March 2017 Announcement	[286]
3.6.3.1  Who made the decision to send the email?	[288]
3.6.3.2  Ms MacLeod’s reasons	[290]
3.6.3.3  Conclusions	[293]
3.6.3.4  Again…what about Mr Arnott?	[295]
3.6.3.5  Alternative conclusion	[299]
3.6.4  The termination of Ms Wong’s employment	[300]
3.6.4.1  Who made the decision to dismiss Ms Wong?	[301]
3.6.4.2  Ms MacLeod’s reasons	[307]
3.6.4.3  Conclusion	[313]
3.6.4.4  Mr Arnott’s reasons	[314]
3.6.5  Conclusions as to the reasons behind the adverse action	[318]
3.7  Conclusions relating to NAB’s conduct	[319]
3.8  Ms MacLeod’s liability	[321]
3.9  Conclusion:  no unlawful adverse action	[327]
PART 4:  THE DEFAMATION CASE	[328]
4.1  Summary	[328]
4.2  Relevant legal principles	[332]
4.3  The ordinary and natural construction of the 21 March 2017 Announcement	[333]
4.4  True innuendo	[343]
4.5  Permissible variants	[353]
4.6  Qualified privilege	[359]
4.6.1  Reciprocity or community of interest	[363]
4.6.2  Connection between defamatory imputations and the occasion	[372]
4.6.3  Malice	[376]
4.6.4  Conclusion re qualified privilege	[386]
4.7  Conclusion:  was Ms Wong defamed?	[387]
PART 5:  NEXT STEPS	[388]

SNADEN J:

PART 1:  OVERVIEW

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

   2.1  The trial

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.

1. 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.

2. 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

3. 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.

4. 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.

5. 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.

6. As will be seen, the “agile” working method serves as relevant context in this matter.

   2.5  The relevant time periods

7. There are three periods or points in time that are of central significance to the present matter.

8. 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.

9. 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.

10. 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
    | GM Digital Technology

    
    David Killen

11. The 21 March 2017 Announcement was sent to 423 recipients.  Their composition is the subject of analysis below.

12. 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

13. 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.

14. 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 21^st March 2017 (Meeting) with you and Adrian Sbrugnera.

    I attach a copy of the discussion note of the meeting (Meeting of 21^st 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 21^st 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 21^st 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

15. 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 21^st March 2017,

    b)        Notes of meeting on 21^st March 2017 and

    c)        My written response to Catherine Macleod 24^th 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

    
    

1. 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.

2. 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

3. 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

4. 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

5. 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

6. 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.

7. 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”.

8. 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

9. 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

   3.1  Summary

10. 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.

11. 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.

12. 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).

    3.2  The legislative framework

13. 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).

1. 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).

2. 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.

3. 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.

4. 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.

5. 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).

6. 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.

7. 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.

8. 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.

   3.3  Principles to be applied

9. 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.

   3.3.1  Adverse action

10. 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.

11. 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.

12. 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).

13. 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

14. 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).

15. 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)).

16. 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”.

17. 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

18. 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).

19. 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.

20. 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).

21. 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).

22. 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.

23. 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.

24. 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.

25. 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.

26. 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].

1. The terms of the 21 March 2017 Announcement have already been replicated (above, [32]).

2. 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.

3. 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.

4. 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.”

5. 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”.

6. 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.

7. 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.

8. 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?

9. 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.

10. 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.

    4.4  True innuendo

11. 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.

12. 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.

13. 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…”

14. 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.

15. I am not persuaded that he or she would.

16. 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.

17. 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.

18. 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.

19. 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]).

20. 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.

    4.5  Permissible variants

21. 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).

22. 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.

23. 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.

24. 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).

25. 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.

26. For obvious reasons, it is not necessary to explore that question any further.

    4.6  Qualified privilege

27. 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.

28. 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).

29. 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?

30. I will address each question in turn.

    4.6.1  Reciprocity or community of interest

31. 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).

32. 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.

33. 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”.

34. 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

6. 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.

7. 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.

8. 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.

9. 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”.

   4.6.3  Malice

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. 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?

16. 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.

17. I accept that submission. 

18. 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.

19. 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

20. 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?

21. No.

    PART 5:  NEXT STEPS

22. Ms Wong’s application must (and will) be dismissed.

23. 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:

Dated:       22 June 2021