Lewis v JP Morgan Chase Bank N.A. (1996894)
[2019] NZHC 1788
•31 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-244
[2019] NZHC 1788
BETWEEN ROBERT WADE LEWIS
Plaintiff
AND
JP MORGAN CHASE BANK N.A. (1996894)
Defendant
Hearing: 29 April 2019 - 2 May 2019 Appearances:
Plaintiff in person
J G Miles QC and S M Lapthorne for the Defendant
Judgment:
31 July 2019
JUDGMENT OF POWELL J
This judgment was delivered by me on 31 July 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
LEWIS v JP MORGAN CHASE BANK N.A. (1996894) [2019] NZHC 1788 [31 July 2019]
[1] The plaintiff, Robert Lewis, seeks a range of redress against the defendant, JP Morgan Chase Bank N.A (“JP Morgan”). This includes damages (including damages to reputation and exemplary damages) in a total sum of some $498,332.00, together with various declarations.
[2] Mr Lewis’ claim has arisen following his departure as the Chief Executive Officer (“CEO”) of JP Morgan in New Zealand on 5 March 2010, a position he had held from August 2008.
[3] Mr Lewis left JP Morgan after issues arising between the two were resolved by a confidential settlement agreement entered into by the parties on 4 March 2010 (“the settlement agreement”). Relevantly to the matters now at issue cls 8 and 9 of the settlement agreement provided:
8.The Bank will position Mr Lewis’ departure from its employment, both internally and externally, as the result of restructuring its operational footprint in New Zealand following the acquisition of ANZ’s sub- custody operations based in Wellington. The Bank will make the following internal announcement within seven days of the Termination Date:
“JPM announced today that Mr Rob Lewis would leave the Bank to seek other external opportunities following the Bank’s decision to move its principal New Zealand office from Auckland to Wellington as a result of the recent acquisition ANZ’s sub-custody operations. The Bank wishes to thank Mr Lewis for serving as its CEO in New Zealand since August 2008 and wishes him well in his future endeavours.”
9.Neither party will make any disparaging comment about the other to any third party. The Bank will inform the members of the Australia and New Zealand Executive and Operating Committees of this obligation.
[4] Immediately prior to and after his departure Mr Lewis unsuccessfully applied for a number of positions at Westpac New Zealand Limited (“Westpac”). After being notified that he had been unsuccessful for the second of those positions Mr Lewis became convinced that the reason he had not been successful was that there had been an issue with his CV caused by JP Morgan misrepresenting his employment history, and in particular his job title.
[5] As a result Mr Lewis has issued the present proceedings in which he has alleged:
(a)JP Morgan breached the terms of a settlement agreement entered into by the parties, as a result of its failure to confirm to Westpac (as a prospective employer) that Mr Lewis was the former CEO of its New Zealand branch;
(b)Mr Lewis suffered injurious falsehood as a result of JP Morgan, acting with malice, failed to confirm to Westpac that he had been the CEO of JP Morgan’s New Zealand branch; and/or
(c)JP Morgan made a negligent misstatement to Westpac on the basis that it owed Mr Lewis a duty of care to ensure that the records of his employment history were accurate.
[6] JP Morgan denies any breach of the settlement agreement. It contends it did not misrepresent Mr Lewis’ employment history to anybody, including Westpac. Instead, JP Morgan contends it did everything it could to ensure that it met its obligations under the settlement agreement and that those involved in the recruitment process at Westpac were well aware that Mr Lewis had been the CEO of JP Morgan in New Zealand. As a result, JP Morgan considers Mr Lewis’ failure to get the positions he sought at Westpac was unrelated to his job title at JP Morgan.
[7]The simplest way to test the parties’ respective contentions is to look at:
(a)why Mr Lewis’ job title at JP Morgan was an issue;
(b)what happened following Mr Lewis’ departure from JP Morgan to establish what, if anything, was said by JP Morgan about his title, and to consider why Mr Lewis was unsuccessful in obtaining employment with Westpac during that period; and
(c)JP Morgan’s response to Mr Lewis’ concerns about how his job title was portrayed after he left JP Morgan.
[8]Mr Lewis’ claims will then be analysed against this factual background.
Procedural Issues
[9] At the outset of the hearing I dealt with an application by Mr Lewis to file a second amended statement of claim. Mr Lewis’ application had come about following an earlier application by JP Morgan challenging the admissibility of significant parts of Mr Lewis’ proposed brief of evidence. Substantially allowing JP Morgan’s application, Muir J noted that in the course of the application:1
On 8 April 2019, [Mr Lewis] therefore filed a document styled “Application to Amend/Correct the Pleadings” (but which is in fact a mixture of application, opinion evidence and submission). In essence, it is an application for leave to amend after setting down. No draft amended statement of claim was filed with the application. It is, however, reasonably clear from the document that he now wishes to support his claim of malice by reference to approximately 30 events which occurred during the course of his employment.
The application was premised on the assumption that I would deal with it at the resumed hearing on 9 April 2019. By Minute dated 8 April, I questioned that assumption and suggested that the more appropriate course may be to set the application down for hearing on the first day of trial.2 I further suggested that if the application was declined, the trial could then proceed, but that, if allowed, consideration would need to be given to the impact this had on the scope of potential evidence. My Minute invited submission on those proposals at the resumed hearing on 9 April 2019. After hearing from the parties, I made directions in respect of that application for the purpose of it being determined on 29 April 2019.
[10] After hearing submissions from Mr Lewis and JP Morgan, I declined leave for Mr Lewis to file the amended pleading. The reason was that most of the amendments proposed were essentially inconsequential particulars which could be dealt with in the evidence as it was presented. The only substantive change was at paragraph 52 of the amended statement of claim, where Mr Lewis sought to add further particulars relating to the reasons he left JP Morgan in 2009. As the cause of action and specifically the actual allegations against JP Morgan remained otherwise unchanged it was apparent that those further particulars were not relevant as to whether JP Morgan deliberately gave out false and/or negligent information after Mr Lewis had left JP Morgan. The presence of such allegations and evidence from Mr Lewis to support those would
1 Lewis v JP Morgan Chase Bank N.A. (1996894) [2019] NZHC 832 at [15]-[16].
2 So as to allow for the filing of a draft proposed amended statement of claim, notice of opposition, affidavits (in support and opposition) and submissions.
however have reasonably required a response from JP Morgan and the adjournment of the present fixture at a point where the parties were otherwise ready to proceed, with witnesses present from overseas, witnesses responding to subpoenas (issued by Mr Lewis) and witnesses from Westpac ready to give evidence.
[11] At the same time, I also dealt with issues arising with regard to one of the witnesses Mr Lewis had subpoenaed to give evidence on his behalf. This witness, Charles Rosa, is a Senior Analyst, Banking and AML/CFT3 Supervision at the Reserve Bank of New Zealand (“Reserve Bank”). As Mr Rosa lives and works in Wellington he had, through his solicitors, filed an affidavit with regard to his dealings with Mr Lewis and JP Morgan and I had made tentative arrangements to have Mr Rosa available for cross-examination by AVL should it be necessary to do so. JP Morgan objected to hearing from Mr Rosa on the basis that, apart from confirming that from the Reserve Bank’s point of view Mr Lewis was the CEO of JP Morgan in New Zealand, a fact not in dispute on the pleadings, Mr Rosa was otherwise unable to assist the Court with any matter at issue. After hearing submissions from Mr Lewis as to the types of questions that he wished to ask Mr Rosa, I agreed with JP Morgan that those proposed questions would not be relevant. In particular, Mr Lewis appeared to wish to question Mr Rosa with regard to Mr Lewis’ reporting lines at JP Morgan, matters clearly outside Mr Rosa’s direct knowledge and were questions more appropriately put to the JP Morgan witnesses. I therefore directed that the arrangements previously arranged for Mr Rosa to give evidence were to be cancelled and that Mr Rosa’s attendance was as a result no longer required.
Why was Mr Lewis’ job title an issue?
[12] The reason for the emphasis on Mr Lewis’ role as CEO of JP Morgan in New Zealand was because there was a disjunction between this title and Mr Lewis’ rank within JP Morgan. Mr Lewis’ contract with JP Morgan, signed in July 2008, identified him as a Vice President of Treasury Services, with an initial position of Treasury Services Sales Executive New Zealand. On the other hand, as the Reserve Bank rules require any overseas incorporated registered bank carrying on business in
3 Anti-Money Laundering and Countering Financing of Terrorism.
New Zealand to have a New Zealand domiciled CEO approved by the Reserve Bank,4 Mr Lewis’ appointment as CEO of JP Morgan in New Zealand had been so approved.
[13] That is not to say other titles could not be recorded. As Julia Simpson, who at the relevant time was the head of Human Resources (“HR”) for Australia and New Zealand and who is now the Area-Practice head of HR for Corporate and Investment Bank Infrastructure and Corporate Functions, explained on behalf of JP Morgan:
It is common within [JP Morgan] for individuals to have more than one title – a functional job title and an officer title. A functional job title describes an employee’s actual job responsibilities. An officer title describes where the employee sits in the [JP Morgan] hierarchy.
In Mr. Lewis’ case, his functional title was Sales Team Lead, and his officer title was Vice President. Those are the titles recorded in Profile, HR’s global system of record, to which only certain HR professionals have access. Mr Lewis also held the regulatory title of CEO for the New Zealand Branch.
[14] The title of Vice President of Treasury Services therefore reflected Mr Lewis’ rank within JP Morgan, a worldwide business with offices in more than 60 countries, with more than 250,000 employees worldwide. In contrast, Mr Lewis’ CEO title reflected a regulatory responsibility external to his role at JP Morgan.
[15] The problem was that the JP Morgan’s Profile system, referred to by Ms Simpson, appeared to have only been equipped to record a JP Morgan employee’s internal job titles. As Ms Simpson went on to say:
The Profile system records functional job titles and officer titles; it does not have a field to record regulatory titles. However, the system is an internal system only and it is not accessible to external parties.
The only way to enter a functional job title into the system is to input a job code. There are a set number of globally defined job codes in the Profile system, each of which corresponds to a specific functional job title and officer title. While there are a handful of CEO’s in the global business there is not a generic job title of CEO. Moreover, the only job codes for the CEO title in the system are mapped to Managing Directors.
Profile does not include the title of CEO New Zealand at any officer level. Globally, now and at the time Mr. Lewis was employed, there has been no job code allowing for a functional CEO title for a Vice President.
4 See the Reserve Bank of New Zealand Act 1989, ss 3 and 82(2) and (3).
Because titles are driven by job codes in Profile, it was not possible to simply change Mr. Lewis’ title to CEO, as such a job code did not exist for someone at his level.
[16] It followed that at the time Mr Lewis left JP Morgan there was a risk that Mr Lewis’ role as CEO would not be recorded within the JP Morgan system. To get around this Ms Simpson had offered for Mr Lewis to direct any reference enquiries to her personally and that she would confirm his CEO title. Mr Lewis had rejected this offer because he considered it would look unusual to a prospective employer if it were directed to the head of Human Resources. A similar message was however provided to Mr Lewis from Rebecca Holden, a consultant at Pohlen Kean, Human Resources Consultants providing outplacement support to Mr Lewis pursuant to the settlement agreement, who, after contacting Ms Simpson on 18 March 2010, advised Mr Lewis:
Rob needs to tell any future employer/agency that they should contact our Access HR team at our Australia office which is J P Morgan, Level 32, Grosvenor Place, 225 George Street, Sydney, 2000, NSW, Australia.
What happened after Mr Lewis left JP Morgan?
[17] There is no dispute that, following Mr Lewis’ departure from JP Morgan, an internal email was sent around JP Morgan on 8 March 2010 that followed the wording set out in cl 8 of the settlement agreement (see [3] above).
Application for Area Manager role
[18] In the meantime, Mr Lewis had, prior to his departure from JP Morgan, applied for the first of the positions at Westpac. This was for the position of Area Manager – Bay of Plenty (“the Area Manager role”) in respect of which a resume had been provided by Shelley Thomas, a recruitment consultant acting on behalf of Mr Lewis, to Westpac on 12 February 2010. The resume recorded Mr Lewis was “actively seeking a change in lifestyle, to return to his home base of the Bay of Plenty”.
[19] The interview for the Area Manager role took place at Westpac on 15 March 2010. Part of the interview included a formal presentation on a pre-assigned topic. Mr Lewis made a presentation to Ian Blair, then the General Manager, Business Bank at Westpac; Mary-Jane Richards, then a recruitment consultant at Westpac; and one of the regional managers at Business Banking, Grant Holland. Although
Mr Lewis considered that the presentation had gone well and Mr Blair requested Ms Richards to undertake reference checks following the interview, when Ms Richards reported to Steve Atkinson, the Regional Manager responsible for the new position, she stated:
overall pretty impressive, [Mr Lewis’] presentation was well pulled together and he was engaging – but unfortunately he chose only to make eyecontact with me and with Grant – and totally ignored Ian B… ???? Bad move. He was a bit verbose (presso took 55 mins). Ian has asked me to do some referencing and check a couple of things (1. his CV says something about project managing 85 people – just want to check detail around that, and 2. how he goes about taking the strategic to the front line)…I’ll do them rather than get the agent to, they can put a spin on things. I didn’t speak to Ian as he had to leave at 3pm on the dot – got the feedback back through Grant….be interesting to hear what Ian says to you.
[20] Ms Richards nevertheless contacted Ms Thomas to obtain contact information for potential referees for Mr Lewis.
[21] In anticipation of the reference checks and despite having received advice to contact the Sydney Access HR team, on 18 March 2010 Mr Lewis telephoned Access HR and spoke, not to Ms Simpson or anybody else in the Sydney office, but Bijoy Thomas, an operator at the Access HR call centre in India. Following his discussion with Mr Thomas, Mr Lewis immediately emailed Ms Simpson and Ms Holden in the following terms:
I have spoken to Access HR (a person named Bijoy) as you advised, and there is an issue.
Bijoy advised that Access HR will not confirm that I was the CEO of JPMorgan because it is not in his system. I asked him what the process is to get this updated and he advised that it would need to come from yourself.
Can you please arrange for the Access HR systems to be updated?
It would seriously damage my ability to secure further employment if my CV rightly states that I was the CEO of JPMorgan New Zealand and JPM can not confirm this.
I have already approached 2 potential employers so it is imperative that this be updated immediately.
Can you please advise when this has been done.
[22] Before any steps could be taken by JP Morgan Ms Thomas had responded to Ms Richards’ request for referees contact details by email on 19 March 2010 and noted:
As discussed today, Rob had advised that JP Morgan are adamantly against providing verbal references. However, a call to [00612 …. 1552] will put you thru to someone who can confirm his employment. The title used with JP Morgan is Vice President, New Zealand branch.
I have endeavoured to get hold of Julia Simpson, Head of HR based in Sydney. Her phone number is [0061 2 …. 1333]. However, she hasn’t called me back at time of writing. You may have better success.
[23]Within a couple of hours Ms Richards replied to Ms Thomas and advised:
I got hold of JP Morgan in Sydney and they confirmed they absolutely will not give a reference. Such a shame! But confirms what Rob is saying is true, which is good.
[24] On 26 March Mr Lewis advised Ms Holden that he had had an update from Westpac:
… They will have a decision for me one way or the other by the 9th April. The HR person advised that she needed a couple of weeks to assess the internal applications.
[25] In the event it appears that a further meeting was scheduled between Mr Lewis and Mr Blair for 20 April 2010, although neither Mr Blair nor Mr Lewis could remember if this second meeting took place. In the end, Mr Lewis appears to have been advised around 10 May 2010 that he had not been successful in obtaining the Area Manager role. On this day Ms Holden recorded receiving a phone call from Mr Lewis advising:
Unsuccessful – Rob feels messed around with process (2.5 months).
Discussion – Area Manager role
[26] The contemporary evidence available in relation to the Area Manager role provides absolutely no support for Mr Lewis’ claim that JP Morgan misrepresented Mr Lewis’ role at JP Morgan, and instead it appears clear that no statement by JP Morgan affected Westpac’s decision not to offer Mr Lewis the Area Manager role.
[27] While Mr Lewis’ discussion with Mr Thomas at Access HR in India did confirm the existence of the potential issue that incomplete information could be issued given the nature of JP Morgan’s record system, that risk was however substantially mitigated by the fact that information could only be given out by Access HR with the consent of the employee, and as Mr Lewis had not provided his consent, no information could be given out to a prospective employer like Westpac. It is therefore not surprising that there is no evidence that anyone at Westpac had a similar conversation with anyone at Access HR in India. There are in fact no records to indicate that any third party sought any information from Access HR in India at any point. Likewise, the evidence is clear that the only enquiry made by Westpac to JP Morgan was the telephone call to a Sydney number made by Ms Richards on 19 March 2010 following the email from Ms Thomas. As it happened Ms Simpson confirmed in her evidence that the number given by Ms Thomas to Ms Richards as being Ms Simpson’s number was not in fact hers but appeared to be another number in the Sydney Access HR office. Ms Simpson’s unchallenged evidence was anyone answering that phone would have simply confirmed that references were not given by JP Morgan, a response consistent with Ms Richard’s email report of the results of her enquiry. Given that position there was nothing in Ms Richards response to Ms Thomas to indicate that any issue had arisen with regard to Mr Lewis’ CV. This was confirmed in Ms Richard’s evidence that she was clear there had been absolutely no issue with Mr Lewis’ CV in relation to his application for the Area Manager role, and she would have remembered if there had been.
[28] Ms Richards recollection was backed up by the evidence of both Mr Blair and Mr Atkinson. Although Mr Blair had limited recollection of meeting with Mr Lewis, both he and Mr Atkinson were clear that there had been no disqualifying issue for Mr Lewis. Instead, they both noted the clear preference within Westpac was to promote internal candidates unless an external candidate was markedly superior, and that in relation to the Area Manager role there had been a strong internal candidate who was ultimately successful in obtaining the role.
Application for Senior Manager - Strategy & Innovation and Business Development Manager roles
[29] It is unclear exactly when Mr Lewis applied for a second role at Westpac, that of Senior Manager – Strategy & Innovation (“the Senior Manager role”), in the Bank’s Transactional and Client Services Unit. His application however appears to have been made sometime around mid-2010, with David Taylor, at that time the head of Global Transactional Services at Westpac, being the hiring manager. At around the same time John Forrester, who at that time was the Senior Manager for Transactional Services at Westpac, and who worked for Mr Taylor, was recruiting a Business Development Manager for his team, which became the third role that Mr Lewis was interested in pursuing (“the Business Development Manager role”). Unlike the Area Manager role, it appears that no formal interview process was carried out for either the Service Manager or Business Development Manager roles, although there appears to have been at least one meeting over coffee around June 2010 at which Mr Lewis, Mr Taylor and Mr Forrester were all present.
[30] On 5 July 2010, Mr Lewis attempted to follow up the Senior Manager role with David Taylor but there appears to have been no response from Westpac. Instead, on 17 August 2010, Mr Lewis received an email from the Westpac recruitment team which stated:
Re: Senior Manager Strategy & Innovation, Westpac Institutional Bank, Auckland – AUC08359
Thanks for registering your interest in employment opportunities within Westpac Institutional Bank. After careful consideration, we regret to inform you that given your existing skills and experience we do not foresee any opportunities in our specialist business unit, Westpac Institutional Bank, in the near future.
We recommend that you update your profile as your skills and experience grow to enhance opportunities to be matched to positions as they arise. In addition we recommend that you visit Careers at Westpac on our web site regularly for current vacancies in other areas of Westpac where you skills may be better suited.
Again, thanks for your interest in Westpac Institutional Bank and the time and effort you put into your application.
[31] While the evidence from Westpac that this was simply a standard form letter, Mr Lewis’ evidence was that he was very concerned at the response he received, that
it ignored the fact that he was well qualified for the role, and that the effect of the email meant he was unable to apply for any future roles whatsoever at Westpac. As a result, his evidence was he requested a former banking acquaintance who was by then a recruitment consultant, Caroline Wells, to see if she could look into the reasons for the response received. Mr Lewis’ evidence was that Ms Wells subsequently told him that her enquiries had revealed that the reason he was turned down was an issue with his CV. According to Mr Lewis, Ms Wells’ advice prompted him to write to Martha Gallo, an Executive Vice President at JP Morgan and its General-Auditor, on 30 August 2010, alleging that the settlement agreement had been breached. It is apparent from his email to Ms Gallo that Mr Lewis’ primary concern appears to have been that he had not received the full benefit of the outplacement support provided under the settlement agreement, but with regard to the matters currently at issue he wrote:
There were serious issues with the “reference” provided by JPMorgan. When a prospective employer requested a reference, JPMorgan agreed to confirm that dates that I had worked for JPMorgan, and in what capacity (role). This was acceptable to the prospective employer. The Head of HR provided the number. However the JPMorgan staff (at the provided number) refused to confirm that I had in fact been the CEO in New Zealand. I took this issue up with HR and tried to resolve it, but the damage was already done.
I believe that JPMorgan’s refusal to confirm that I was the CEO amounts to a ‘disparaging comment’ because it implies that I misled the prospective employer and damaged my reputation (integrity, honesty).
[32] In the meantime, no decision had at that point been made for the Business Development Manager role and Mr Lewis followed up by email to Mr Forrester on 7 September 2010. Following receipt of this email, Mr Forrester emailed Mr Taylor and Anna Hodgson, the latter being the recruitment manager for Business Banking and the Institutional Bank at Westpac, and advised:
I think this has dragged on for long enough now.
The key concern I have with Rob is how he would fit within the team.
While I admire his tenacity and his experience base is certainly impressive, the fact he hasn’t been grabbed by either BNZ or ANZ doesn’t allay my concerns in terms of the team fit factor.
Can you please advise him that we won’t be progressing his application any further?
I will discuss next steps with David, but on balance I think we’ll now focus on bedding in the new staff and navigating the end of year processes and then re-evaluate our options come the New Year.
[33] Ms Hodgson responded the next day, 9 September 2010, and confirmed that she would “get in touch with Rob this afternoon and put the role on hold for now”, and although there is no contemporaneous record, it appears that Mr Lewis was advised of the result shortly afterwards.
Discussion – Senior Manager Role and Business Development Manager Role
[34] The contemporary documentation gives absolutely no support for any suggestion that, in relation to the second and third roles that Mr Lewis applied for at Westpac, any statements at all were made by JP Morgan, let alone any that affected the decisions made by Westpac not to employ Mr Lewis.
[35] It is clear that the process in both cases was relatively informal and there is no evidence that any form of reference check was sought prior to the decision being made. The evidence of both Mr Taylor and Mr Forrester was that their primary concerns with Mr Lewis were around how he would fit within their respective teams. Both were clear that Mr Lewis had been the CEO of JP Morgan in New Zealand, with Mr Forrester noting in particular he had worked in the same building as Mr Lewis while he was CEO of JP Morgan in New Zealand. It is also clear that while the email, dated 17 August 2010, rejected Mr Lewis for the Senior Manager role it did not say that Mr Lewis was prevented from applying for other roles within Westpac in the future, nor did he appear to take that view at the time. On the contrary, the email noted that “… we recommend that you visit Careers at Westpac on our web site regularly for current vacancies in other areas of Westpac where your skills may be better suited”. Mr Lewis was also aware that his application for the Business Development Manager role was still under consideration, evident by his email follow up on 7 September 2010.
[36] Likewise, the contemporary documents provide no support for any suggestion that Mr Lewis had Ms Wells undertake investigations on his behalf as to why he had not got either of the first two roles at Westpac, let alone that she obtained a response that indicated there had been a major problem with his CV. Ms Wells, in her evidence, did not recall such a conversation with Mr Lewis, although she accepted that it could
have taken place. The correspondence between Mr Lewis and Ms Wells following his telephone call on 26 August 2010 does not however refer to any concerns arising out of the Westpac email of 17 August 2010. It simply records that contact has been made and Ms Wells asks Mr Lewis to send her his CV following which Mr Lewis did so, noting that all of the banks had his CV registered on their systems. A few days later, on 2 September 2010, Ms Wells advised Mr Lewis that she had:
Just poked [his] CV under the nose of Greg Beehre (heads up the Mid/Corporate Transactional RM team) at Westpac. Doesn’t hurt to have more people looking at you eh. Might get some movement finally!
[37] Mr Lewis did not state that he had been told not to apply for future positions at Westpac but responded by agreeing it was “better to have more people looking at the CV” but hoped that it did not cause “any issues with Westpac HR”.
[38] Even Mr Lewis’ letter to Ms Gallo on 30 August 2010 does not support his contention that he had just been advised by Ms Wells that an issue with his CV had been the reason he had not got a job at Westpac. Mr Lewis does not refer to having come into new information but instead appeared to be referring to the information provided to Ms Richards and Mr Lewis’ conversation with Mr Thomas at Access HR in India in March 2010, which both related to the Area Manager role.
[39] Taken together it is absolutely clear that the relevant officers at Westpac made their decisions with regard to the Senior Manager and Business Development Manager roles for entirely logical reasons, unrelated to any issue arising with Mr Lewis’ CV.
The JP Morgan response to Mr Lewis’ concerns
[40] Following Mr Lewis’ initial email to Ms Simpson on 18 March 2010, Ms Simpson attempted to insert into the personnel records “a request for the reference team to describe Rob Lewis’ role as TS Sales and CEO of New Zealand”. The system did not however allow her to do this and she sought the assistance of her assistant Jo Wong to achieve this. Enquiries revealed that this would be difficult to achieve and as the issue related to external inquiries only, on 31 March 2010 Ms Wong advised Mr Thomas at Access HR in India that:
No change is to be made in the system. The title is for reference only. If you have a reference request for this terminated employee please assign the case to me.
[41] There matters stood until Mr Lewis’ email to Ms Gallo at the end of August 2010. After Mr Lewis’ email to Ms Gallo, Ms Simpson followed up with Ms Wong to find out what had happened with her initial request for the reference team to describe Mr Lewis’ role as TS Sales and CEO of New Zealand. Ms Wong confirmed after making enquiries that no statement of service had been sent out or requested for Mr Lewis.
[42] Throughout September and October 2010 Ms Simpson and Ms Wong undertook further investigations as to whether it was possible for Mr Lewis’ records to show his title of CEO. In the meantime, on 22 October 2010, Mr Lewis was provided with a statement of service on JP Morgan letterhead which provided:
To whom it may concern:
Statement of Service
This is to confirm that Robert Lewis was employed by us as follows:-
Mr. Lewis was appointed the Chief Executive Officer of the Bank Branch from 15 September 2008 to 5 March 2010.
We confirm that Mr Lewis held the position of Vice President, Treasury Services, Sales Manager.
Period of Employment: 1 August 2008 to 5 March 2010.
[43] After investigating various other possible technical solutions to ensure that queries to Access HR would result in the correct information being provided, Ms Simpson issued special instructions on 18 November 2010 which provided that any request would be referred to HR for review before any response was sent out. As a result, Mr Lewis’ records in Profile continue to record his position at JP Morgan without reference to his role as the CEO of JP Morgan New Zealand
Discussion – JP Morgan response
[44] It is clear from Ms Simpson’s evidence that, because of the way the JP Morgan record keeping systems worked, from the time that Mr Lewis left JP Morgan there was
potential for details to be provided to third parties that did not reflect his role as CEO for the JP Morgan New Zealand office. This risk was heightened after Mr Lewis rejected Ms Simpson’s offer to deal with any request for references personally, and Mr Lewis’ own failure to follow the instructions given by Ms Holden with regard to directing queries to the Access HR office in Sydney.
[45] Despite that there is no evidence that anyone, including in particular Westpac, was ever misinformed about Mr Lewis’ role at JP Morgan. This is in part because no specific request other than that by Ms Richards appears to have been made, but more broadly it is clear that Ms Simpson, assisted by Ms Wong, understood Mr Lewis’ concerns and took JP Morgan’s obligations under the settlement agreement seriously. As a result, Ms Simpson and Ms Wong made every effort to ensure that in the event there was a request for a reference Mr Lewis’ role as CEO of JP Morgan in New Zealand would be confirmed. Although no permanent solution had been identified in the immediate aftermath of Mr Lewis’ query on 18 March 2010, or indeed while Mr Lewis’ applications to Westpac were pending, even at that time Ms Wong made it clear that queries regarding Mr Lewis were to be referred back to HR.
[46] There is no doubt that Mr Lewis’ letter to Ms Gallo provided further impetus to identifying a longer-term solution, and this ultimately resulted in both the statement of service which Mr Lewis can utilise on any future employment application, as well as a permanent note in Mr Lewis’ records to refer any requests for a reference to HR. These were ultimately an appropriate and proportionate response, given, as Mr Lewis acknowledged during the hearing, JP Morgan could not have been expected to change its worldwide record system when there was absolutely no obligation in the settlement agreement for it to do so. Although at the hearing Mr Lewis appeared to suggest the statement of service was incorrect in referring to both his CEO title and his internal rank within JP Morgan, any such criticism was clearly misplaced. There was nothing in the settlement agreement that required Mr Lewis to only be referred to by his CEO title and/or to ignore his rank within JP Morgan, and to have done so would itself have been incorrect and misleading.
[47] Taken together I am quite satisfied that absolutely no incorrect information, far less information that was deliberately or negligently incorrect, was provided to any third party.
Analysis of Mr Lewis’ claims
[48] There can be no doubt for the reasons set out above that JP Morgan did not breach the settlement agreement with Mr Lewis, nor was any information provided to any third party including Westpac, that was in any way incorrect. On the contrary, the internal email of 8 March 2010 (see [17] above) fulfilled JP Morgan’s obligations pursuant to cl 8 of the settlement agreement and there is no evidence whatsoever to suggest that JP Morgan subsequently did anything to contradict the position set out in that email.
[49] Likewise, at no point was there any statement made by JP Morgan that could possibly be interpreted as disparaging. There were in fact no statements made by JP Morgan with regard to Mr Lewis’ service. The closest that JP Morgan came to making a statement was in response to Ms Richard’s query on 19 March 2010, but as noted she was told that references would not be given and this simply confirmed the position she had been advised by Mr Lewis. The absence of any statement by JP Morgan means that Mr Lewis’ claims for injurious falsehood and negligent misstatement also fail. For completeness however I note Mr Lewis did not even put a question to Ms Simpson to suggest she had at any time acted with malice towards him in the implementation of the settlement agreement. In any event such a question would have been misplaced when it is clear that Ms Simpson, assisted by Ms Wong, did her very best to ensure to assist Mr Lewis by ensuring that the settlement agreement was honoured and Mr Lewis’ role within JP Morgan was accurately represented.
[50] Given this position, together with the uncontroverted evidence from the Westpac personnel involved with each of the three roles Mr Lewis had applied for, I conclude there can be no doubt that the reasons for Mr Lewis being unsuccessful in his applications for each of the positions were entirely unrelated to the description of his service with JP Morgan.
[51] It follows that all of Mr Lewis’ claims are entirely without foundation and his claims must be dismissed.
Decision
[52]Mr Lewis’ claims are dismissed in their entirety.
[53] JP Morgan is entitled to costs. If these cannot be agreed I will determine the issue following receipt of memoranda from the parties.
[54] As discussed with the parties at the hearing, because the judgment deals with a confidential settlement agreement this judgment is not to be published pending receipt of further submissions from the parties as to whether it is appropriate for the judgment to be published in either its original or a redacted form. The parties are to file memoranda on the issue no later than 9 August 2019.
Powell J
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