Going to work in Local Business Banking
243 On 30 June 2006, after the settlement with Mr Patterson, Ms Dye met with Mr Blomfield and read some statements to him from notes she had made for that purpose. This seems a curious, and not at all spontaneous, approach to take but it appears to have been part of Ms Dye's technique of mapping things out in advance. Amongst the statements she read to him were: "I look up to you. I hope one day to work for you. Whether or not you value my contribution, I hope that you will accept any continued efforts to support your business. It's the work I enjoy the most."
244 This happened only a fortnight after the events at Le Chifley on 15 June 2006. It is another indication that Ms Dye's attitude to Mr Blomfield was not at all as she attempted to portray in her evidence. Mr Blomfield said he found Ms Dye's conduct strange. However, he accepted her statements at face value. At this stage, Ms Dye's direct request for a job with and close to Mr Blomfield had not achieved its objective. She was secure again in her job with Mr Patterson, if that had ever been in doubt (which I do not accept). Nevertheless, Ms Dye did appear to make a point to Mr Blomfield of reminding him of her continued interest in working for him.
245 Mr Selvarajah was promoted on 28 July 2006 from CommSec to a position in LBB as General Manager - Mid Eastern Australia (level 4). In this position, Mr Selvarajah was responsible for LBB activities in NSW and the ACT and again reported directly to Mr Blomfield as he had done at CommSec. Mr Selvarajah's evidence was that on about three occasions in the period from August to October 2006 Ms Dye lobbied him for a job.
246 On a number of occasions during September and October 2006 Ms Dye contacted Mr Blomfield to discuss with him whether she should apply for various jobs within the bank. Those contacts would have had the effect of indicating to him that she was available and were perhaps designed to keep that in his mind. For example, on 8 September 2006, Ms Dye sent Mr Blomfield an email which said:
Hi Michael - I was disappointed to hear that you've already chosen your marketing support! As always, happy to help if your team needs extra hands in the future.
247 These approaches appear to have had no particular significance for Mr Blomfield, although no doubt Mr Selvarajah's later indication to him that he was contemplating Ms Dye as his business analyst would have fitted with what he already knew.
248 Ms Dye appears to have also begun looking further afield. About, or shortly before, 17 October 2006 she applied for a job with Macquarie Bank. She attended a first interview some time in the week commencing 22 October 2006. In a chance conversation with Mr Blomfield on 25 October 2006 she mentioned her application to Macquarie Bank to Mr Blomfield. Their evidence about the conversation differed, although Mr Blomfield accepted that he probably, at least in principle, expressed his regret at losing staff to a competitor. Ms Dye may have taken his remark as indicating more direct support than that, but I accept Mr Blomfield's evidence that this was not his intention and had no particular bearing on what happened shortly thereafter.
249 In late October 2006, Mr Selvarajah discussed with Mr Blomfield his need for assistance and obtained Mr Blomfield's approval to engage a business analyst for LBB Mid-East reporting to him (Mr Selvarajah). According to Mr Selvarajah, who knew Ms Dye was very interested in a position in LBB, she was his third choice, but soon the first two were ruled out for other reasons. He suggested Ms Dye to Mr Blomfield. Mr Blomfield's evidence was that he put aside his reservations and agreed. Ms Dye nominated, as referees, Ms Bayer-Rosmarin and Mr Patterson as her last two managers. Ms Dye was offered and accepted the position. Ms Dye started work in LBB on Monday 6 November 2006. Later that day, Mr Blomfield's personal assistant, Ms Bayada, sent Ms Dye an email to which were attached some organisation charts. Amongst other things they showed, as at 31 October 2006, the vacant position of business analyst reporting to Mr Selvarajah to which Ms Dye had been appointed and in which position she had commenced that day. The position, like Mr Selvarajah's executive assistant, was shown to report directly to him. The organisation charts also show that as at 31 October 2006 five positions of general manager, including Ms James, Mr Selvarajah and Mr Tanner, and three positions of executive managers, reported to Mr Blomfield. The positions occupied by Mr Selvarajah, Ms James and Mr Tanner were based in Sydney. The organisation charts also showed those persons who reported, directly or indirectly, to Ms James and Mr Tanner. Ms Dye was not one of them; her position reported to Mr Selvarajah.
250 Ms Dye had obviously told a colleague that she had a new role. In an email exchange on 9 November 2006, Ms Dye told this colleague: "I've been hired by Michael Blomfield as the Executive Analyst to his three GMs in Local Business Banking. Lots of fun!!" This communication is replete with errors. It misstates the position to which Ms Dye was appointed. It misstates who engaged her. It misrepresents the responsibilities of the position, not to mention being inaccurate about the organisational structure of LBB. Ms Dye was appointed to assist Mr Selvarajah. In that position her services were made available for some specific tasks to Ms James and Mr Tanner. That did not change either her basic role or her reporting line. She was a business analyst who reported to Mr Selvarajah. It is impossible to resist the conclusion that Ms Dye was attempting to "big-note" herself. Regrettably, that is a characteristic which emerges from many of her communications and also from the evidence that she gave in the present proceedings where she was at pains to overstate and exaggerate the level of her contribution in various areas and the importance of the work which she performed. The tendency was to manifest itself in a conflict shortly after Ms Dye took up her new role.
251 In 2006, Ms Maiden was a communications adviser who reported to Ms Jill Valentine. Within the bank she had three "clients" who were also heads of business units. One was Mr Blomfield as head of LBB. At this time Ms Maiden was a level 2 employee. In early November 2006, Ms Maiden was in the process of working on a communications plan for Mr Blomfield. The communications plan was essentially concerned with communications with the staff of LBB. Many business decisions were still being taken and implemented and there were a number of business decisions which needed to be completed before the plan could be finalised. On 10 November 2006, in her first working week in LBB, Ms Dye requested a copy of the LBB communications plan which had not then been finalised. Ms Maiden sent Ms Dye advice that the plan was not finished. Ms Dye asked for a meeting. The meeting occurred on 16 November 2006. At this time Ms Dye was doing some work for Ms James concerning a telephony system project. A communication plan for that module of change was part of the broader change taking place in LBB. During the meeting, Ms Maiden attempted to explain to Ms Dye the reasons why the overall communications plan, which she was developing with Mr Blomfield, was not yet complete. Ms Maiden's evidence, which I accept, was that Ms Dye began to shout at her, emphasising her own responsibilities and indicating that she would not permit Ms Maiden to obstruct her. When Ms Maiden asked Ms Dye to explain what her role was in that respect Ms Dye said: "I am Michael's right hand woman. My job is to catch the ball when he drops it", and went on to instruct Ms Maiden that she (Ms Maiden) was thereafter to deal exclusively to deal with her (Ms Dye).
252 Ms Maiden was upset. The next day she spoke to her manager, Ms Valentine, who informed her that she had already received a complaint from Ms Dye about Ms Maiden. In an email to Ms Valentine on 17 November 2006 Ms Dye in fact asserted that she had "engaged" Ms Maiden to develop the communications strategy for the LBB Training/Comms/Culture program. This appears to be a serious mis-statement of the position and of Ms Dye's and Ms Maiden's respective roles. Nevertheless, Ms Maiden attempted to assist co-operatively and the following week was in a position to send Ms Dye a draft plan. In early December 2006, Ms Dye proposed another meeting. Ms Maiden took the view that the matters on which they were each working were not identical, she had reservations about a further face-to-face meeting with Ms Dye and she informed her that she wished to focus on her own discussions with Mr Blomfield for the time being. Ms Dye again complained to Ms Valentine, suggesting that Ms Maiden's obligation was to assist her (Ms Dye) with the development of the plan. Looking at matters now from an external perspective, this seems to have been all quite misplaced and manipulative. Ms Valentine, for her part, did not seem to think it appropriate either. She sent copies of some of the communications to Mr Blomfield and spoke with him about it. Mr Blomfield confirmed that Ms Maiden should pursue the work which she was doing for him. In Mr Blomfield's evidence, he said that Ms Dye was acting outside her own role and he described the tone of her email communications as "very high-handed and quite rude".
253 At the time Ms Dye came to work in LBB, Ms Maiden had been working in co-operation with Mr Blomfield and for other "clients" for some months. Whether in an attempt to assert herself in relation to the work she was asked to do by Ms James or whether in some misguided attempt to assert herself as close to Mr Blomfield, Ms Dye, I conclude, acted towards Ms Maiden in a very assertive fashion. Ms Maiden said she had "alarm bells going off". At this stage, Ms Dye had been working in LBB for 11 days. Her conduct appears to have been a power play of some sort. It was viewed by those involved as inappropriate. It was ultimately ineffective. Ms Maiden's evidence provides an example of the fact that when she went to work in LBB Ms Dye almost immediately commenced to alienate those with whom she worked by her attitude, her manner, misrepresentation of the factual position and her apparent misunderstanding of the significance and reality of her own position.
254 These are all matters which should ordinarily be assessed and managed within the appropriate organisational setting, rather than in legal proceedings. I am not concerned to analyse the issue further, although I accept the evidence given by Mr Blomfield and Ms Maiden in clear preference to the evidence given by Ms Dye. What these matters demonstrate is that there was a lively perception, for which there is adequate objective support, that Ms Dye's personal style was not universally appreciated and was often counterproductive. There is certainly adequate material to support the criticism that Ms Dye not infrequently misrepresented her own responsibilities and the facts.
255 Apart from her difficulties with Ms Maiden which appear to have been caused, so far as I can tell from the evidence given in the proceedings, by Ms Dye's misplaced view of her own role, Ms Dye, it would appear, had difficulty also in her relations with other staff in LBB, particularly the two women who reported directly to Mr Blomfield. Mr Blomfield had a high opinion of these two young women. Ms Bayada, his personal assistant, had been his executive assistant at CommSec. Mr Blomfield described her as friendly, positive and bright. He said she was a delight to work with and there was never a complaint about her by anyone to his knowledge. Ms Cobie Bevan, his marketing support, he said was permanently upbeat and infectiously positive and he did not ever receive a complaint about her. However, Ms Dye's response to them was apparently quite different. She felt that they were cold towards her and that they treated her badly.
256 I am satisfied that Ms Dye felt that, unlike Ms Bayada and Ms Bevan, she was not receiving the attention that she felt she deserved or that she desired from Mr Blomfield, although there was no particular reason why she should have received such attention. Mr Blomfield's evidence was that he had no particular interest in the work being specifically done by Ms Dye except that it was part of the overall effort being made in the business which he was running. After Ms Dye commenced in LBB on 6 November 2006 there were not many occasions when Mr Blomfield had occasion to see her. He travelled interstate about two days a week and spent most of his time in meetings. He had no reason to interact with her for his own work. She did not sit directly outside his office. He could not see her while going in and out of his office or while she was sitting at her desk. When he went to the lift lobby he did not go past her desk. When he went to make himself a cup of tea it was his practice to walk on both sides of the floor to be seen by his staff generally. There were about 140 people on the floor of the building where they both worked of whom one-half to two-thirds reported directly or indirectly to him. Mr Blomfield said that, although he never intentionally ignored her, interaction with Ms Dye was rare. Ms Dye obviously did not share Mr Blomfield's view that there was no reason for him to give her particular attention.
257 On 22 November 2006, Ms Dye made a large number of phone calls to her mother. They commenced at 6.43 am and continued throughout the day until 9.39 pm. Most were very short. Late in the day, less than three weeks after joining LBB, Ms Dye left a voicemail message for Mr Blomfield. The essence of her message was that she was "resigning" as she did not fit in. Mr Blomfield had gone to Brisbane to attend a conference dinner. He received the voicemail leaving the airport, travelling in a car with others. He sent a text message in response saying that he could ring but would not be able to do so until late and asked if that was alright. Ms Dye texted back that it was. Mr Blomfield rang her at about 11.30 pm Brisbane time. He had forgotten about the time difference. It was, accordingly, after midnight in Sydney. Ms Dye told him that she had "issues with some of the other girls in the office". She alleged that Mr Blomfield was ignoring her. Mr Blomfield attempted to impress on Ms Dye that her concerns were without substance and that she should speak with Mr Selvarajah, to whom she reported.
258 Mr Blomfield's telephone records show that he rang Ms Dye at 12.19 am (Sydney time) and that they spoke for 10 minutes. Ms Dye's telephone records show that immediately after the telephone call with Mr Blomfield terminated she rang her mother. Ms Dye had a further 17 minute conversation with her mother at 2.09 am and rang her again at 3.05 am. Commencing at 8.01 am on 23 November 2006 Ms Dye rang her mother seven times within 25 minutes. She rang her consistently throughout the day. I infer from this pattern of communication with her mother that Ms Dye was concerned or anxious about something, but there is a further aspect which is convenient to mention now. Mrs Dye said in her evidence that she was in Ms Dye's apartment in Sydney when Mr Blomfield made a late night telephone call to her on 22 November 2006. She was quite specific about that. She was confronted with the fact that telephone records show that there were numerous calls to her phone late that night and in the early morning. That would only be necessary if Mrs Dye was not in Sydney at all. Mrs Dye was forced to concede that she could not have been in Sydney that evening.
259 Mr Blomfield returned to Sydney on a 6.00 am flight from Brisbane on 23 November 2006. When he arrived at the office he asked Ms Dye to come and see him and enquired about her phone call. She told him again that she did not fit in and had problems with Ms Bayada and Ms Bevan. Mr Blomfield attempted to impress on her that she should deal with these matters through Mr Selvarajah.
260 I accept Mr Blomfield's evidence that he was annoyed and exasperated by these events, that he felt that Ms Dye was not entitled to separate or special treatment from him and that he had no interest in pursuing her in any sense.
261 Ms Dye's evidence in chief about Mr Blomfield's late night telephone call to her was very unsatisfactory. She did not mention the prelude to the telephone call or disclose honestly the reason why it was made. The telephone call from Mr Blomfield to her was portrayed as a gratuitous intrusion upon Ms Dye's privacy indicating some form of unwanted pursuit of her by Mr Blomfield. Stripped of its context and endowed with this characteristic, the evidence Ms Dye gave in chief was misleading to the point of falsehood. It was not until cross-examination that the true picture first emerged. The evidence in chief should not have given the false impression which it did, nor been led in that fashion.
262 In late November 2006, Mr Blomfield was told that Ms Dye had moved to another desk on a different part of the floor. Mr Blomfield said he was stunned by this conduct, that it was petulant and unnecessary. Mr Selvarajah had gone on personal leave the day before but Mr Blomfield rang him and directed him that Ms Dye was to move back to the position allocated to her. One aspect of this unauthorised move was that it would require either a change of telephone number or relocation of the phone number at the expense of Mr Blomfield's division. Mr Selvarajah confirmed in his evidence that immediately after he heard of this occurrence he directed Ms Dye to return to her place.
263 Ms Dye's dissatisfaction with the lack of attention given to her did not diminish. On 1 December 2006, she made an ostentatious gesture of turning away from Mr Blomfield when they passed at work. This incident is so trivial it deserves no further attention. I would not mention it at all except that it is part of a continuum of events arising from the same circumstances.
264 One of the initiatives which was taken after Mr Norris arrived was called the Business Banking Growth Strategy ("BBGS"). This project was under the supervision of Mr Rowan Munchenberg. In her early work in LBB, Ms Dye had occasion to interact with people who, in one way or another, were involved in some of the BBGS activities. Mr Blomfield had asked Mr Selvarajah to be his representative on a working group ("BBGS working group"). Mr Selvarajah asked Ms Dye to act in his place as the LBB representative on the BBGS working group. The function of the representative, on the evidence in the proceedings, was that of co-ordinating the assembly and dissemination of material. The LBB representative was "a mail box" for the purpose of the BBGS working group. On 6 December 2006, Ms Dye appears to have first participated in the BBGS working group by telephone, although it may have been by accident as Ms Dye apparently thought she was joining a different teleconference. The next day, Mr Munchenberg thanked her for her participation and asked whether she would be the LBB representative. She replied referring to a diary note sent to her by Mr Selvarajah and saying that she would need to confirm this with him. That was Mr Selvarajah's intention and Ms Dye continued to perform this function for a relatively short period.
265 A great deal was made in Ms Dye's case of this role which she was asked by Mr Selvarajah to perform. She attempted to elevate it into a very important function with national responsibilities. Ms Dye attempted to portray her participation as a contribution to the overall strategic direction of the bank. She suggested, in effect, that this task represented a substantive position or role. I am satisfied that this was all an exaggeration. Furthermore, as events unfolded, it became apparent that Ms Dye's actual contribution to the BBGS working group was short and ultimately of little ongoing value or relevance. Some such matters will be referred to in due course. However, 6 December 2006, one month after Ms Dye commenced in LBB, appears to mark the beginning of any contribution in this area, such as it was.
266 Mr Blomfield's plans for LBB involved the launch of a new business plan on 5 February 2007. One of the people engaged to work on the development of aspects of the business plan was Ms James. Ms James was to oversee the establishment of a new national call centre. When Ms James was engaged it was necessary for her to build a team and hire staff. In the initial period she hired about 100 people. In November 2006, after Ms Dye had commenced to work in LBB, Ms James spoke to Mr Blomfield about some aspects of the communications and training development which was then taking place. Those matters also concerned work which was being done in part by Ms Maiden. Mr Blomfield told Ms James that Ms Dye might have some spare capacity and she should speak to Mr Selvarajah about whether her services could be made available. Ms James did so. The work which Ms Dye did in this connection was relevantly short lived as will become apparent.
267 Ms James confirmed that it was a very busy time in LBB and there was pressure to work towards a deadline. However she said the atmosphere was very collaborative and she found it exciting. She remembered an occasion in late November 2006 when Ms Maiden complained to her about the way that Ms Dye was speaking to her. She recalled that Ms Maiden said that Ms Dye's tone and manner were abrupt and Ms Maiden did not want to keep working with her. Ms Maiden's evidence and Mr Blomfield's evidence each confirm that Mr Blomfield, for his part, was quite happy with the contribution Ms Maiden was making at the time and he did not share any view which Ms Dye might have held that Ms Maiden should direct her efforts through Ms Dye. On Ms James' evidence not much progress before 8 December 2006 was made by Ms Dye on the task which she had been asked to carry out for Ms James. Ms Dye did not come to work on 8 December 2006. She did not come to work on 11 or 12 December 2006. She did not contact Ms James about the work she was doing for her. Ms James decided that she would not continue to have Ms Dye doing work for her and spoke to Mr Selvarajah to that effect. She explained in her evidence that she felt Ms Dye's behaviour was equivalent to abandoning her work and did not want her in her team. Thereafter she did that work herself. Part of the difficulty in Ms Dye making progress with this task appeared to Ms James to have been related to Ms Dye's problems interacting with other people. In January 2006, Ms James gave Ms Dye another task which was a stand-alone task which could be dealt with at her desk without the necessity to interact with people. On Ms James' evidence Ms Dye did that job well.
268 Ms James gave her evidence in a straightforward and open manner. She seemed to me to give her evidence in all respects honestly based on her recollection. She did not demonstrate any apparent predisposition against Ms Dye and was prepared to give her credit where she thought credit was due. It was suggested in her cross examination that she gave false evidence. I reject this suggestion without hesitation. It is one of a number of suggestions made to anybody who criticised Ms Dye. I found them uniformly to be without substance.
269 In the initial period of her employment in LBB, Ms Dye was asked by Mr Selvarajah to involve herself in a spreadsheet exercise concerned with resegmentation (which involved reallocation of some clients to particular bankers or to a national call centre), prepare a sales campaign calendar for which he would supply the content and to analyse the "run off" of the "loan book" and seek to ascertain why it was happening. This was a reference to the tendency of clients not to renew their financial arrangements with the bank. Ms Dye was also asked to work out a budget for the Mid-East area. Mr Selvarajah confirmed that in mid to late November 2006 Ms James asked if Ms Dye could assist with an aspect of Ms James' work and Mr Selvarajah agreed. Mr Selvarajah began before long to receive complaints about Ms Dye's work and her attitude. She was regarded as rude and bossy by some of the other staff. There were occasions when she attempted to take control of small projects in which she seemed to have a particular, personal interest, such as awards events. At the same time, Ms Dye was showing petulance arising from her apparent perception that Mr Blomfield was not giving her enough attention. Mr Selvarajah said in his evidence that he was becoming concerned about these issues and trying to formulate in his mind how to manage things when a more direct issue arose on 7 December 2006.
270 On Thursday 7 December 2006, LBB Mid-East had a Christmas function. Ms Dye attended dressed in a way some might find alluring, but some witnesses thought provocative and inappropriate. Amongst other things, she showed above her close fitting pants a white fur G-string, presumably in keeping with the theme of the evening, which was "white". I propose to say little about that. I am not concerned with Ms Dye's dress sense or her taste. However, it is clear enough that Ms Dye felt no particular embarrassment about dressing in this way. Later she exchanged emails with other people making jokes about it. Her attire on this occasion is in keeping with other evidence which suggested that she has a very robust approach to both sexually suggestive and explicit matters. At one point in 2006, she freely discussed a sexual liaison with Mr Patterson in rather crude terms and in 2007 told him also that she had shortly before been with other women to see a live sex show. In my view, her sensibilities about such matters are not likely to be easily offended and certainly not by casual or unintended behaviour or remarks.
271 During the evening, Ms Dye felt, apparently, that again she received insufficient attention from Mr Blomfield, both personally and when he gave credit to various people for work done during the previous months. Ms Dye was not included in his comments. At that stage she had been at LBB less than five weeks.
272 At 11.10 pm, some hours after the function began and shortly before it finished, she sent Mr Blomfield a text message which, all agree, said: "My respect for you is at an all time low". Mr Blomfield showed it to Mr Selvarajah and, on his evidence, told him that as Ms Dye reported to him, he should deal with it. A short time later Ms Dye was seen sitting on a footpath. Some witnesses said she was crying, some said she was obviously affected by alcohol.
273 The text message was a foolish act. It appears to have been the result of Ms Dye's desire for attention from Mr Blomfield and the fact that he did not respond in kind. To send a text message of that kind to a work superior invited some attention. That was inevitable. Ms Dye seemed, at least initially, to appreciate that was so. The following day (Friday 8 December 2006) Ms Dye did not come to work. She rang Mr Selvarajah. They had a conversation on the telephone. She immediately asked if she still had a job, in light of the text message, obviously appreciating that Mr Selvarajah would know about it. He told her she did. During their conversation, Mr Selvarajah told Ms Dye that sending such a text message was inappropriate. She complained to him that she was being excluded. Mr Selvarajah told her she needed to seriously consider whether she wanted to remain in LBB and she agreed to spend the weekend thinking about that question. She asked for, and was given, the rest of the day off.
274 Subsequently, Ms Dye attempted to contend, both during her employment with CommSec and later, that the text message to Mr Blomfield was a purely personal one, that Mr Blomfield had breached a confidence by showing it to Mr Selvarajah and that it was not a matter which Mr Selvarajah was entitled to take into account, or in any way respond to, so far as her employment was concerned. I reject that idea. It is quite apparent from Ms Dye's own account that she fully appreciated at the time that what she had done was professionally unacceptable.
275 On Monday 11 December 2006, Ms Dye again did not go to work, nor did she the following day. This is another practical example of Ms Dye's reaction to workplace issues which involve a possible threat to the security of her position. On Tuesday 12 December 2006, Ms Dye and Mr Selvarajah had a meeting. Ms Dye wished to meet him outside the office. They met early that afternoon at the Bavarian Bier Café. Ms Dye told Mr Selvarajah that she wished to remain in LBB. There was a discussion about where her work efforts should be concentrated. To this point they had been directed, in part at least, towards some projects at a national level (particularly assisting Ms James and Mr Tanner) which were outside the particular activities of LBB Mid-East. Ms Dye asked to be relieved of the work she was doing for Mr Tanner and Ms James. Mr Selvarajah agreed to facilitate that. As it happened, that appeared to coincide with Ms James' own view that she was no longer interested in Ms Dye working on the matters which had been allocated to her in November 2006.
276 On 13 December 2006, Mr Selvarajah prepared and forwarded to Mr Furlong in HR a file note of his two conversations with Ms Dye. They read as follows:
[Friday 8 December 2006]
1. Outlined to Viv that her behaviour on Thursday evening with respect to sending SMS messages to various members of senior mgt at LBB was inappropriate.
2. Told her to seriously consider if she wanted to be a part of LBB as she was not displaying the values that we have agreed as a business.
3. Told her that she was doing good work, but her behaviour was detracting from this work.
4. She relayed her concern of being excluded from the team. I responded by stating that there was no singling out of her in this this [sic] treatment and that there as no intent to exclude her.
5. She agreed to spend the weekend thinking about where she wanted to work and going forward.
[Tuesday 12 December 2006]
1. Met with Vivienne and she relayed that she wanted to remain in LBB and working for me supporting the Mid-East division.
2. She agreed that she would amend her behaviour and that she would focus on supporting Mid-East.
3. She requested some time to spend at the various LBB centres in Mid-East to better learn what each of our teams did and I agreed.
4. She also requested that she discontinue the projects that she was currently doing for Bernard Tanner and Karen James and I agreed that I would facilitate this.
5. I reiterated to her that if she continued her previous behaviour, then I would terminate her employment in LBB.
277 Two matters might be noted immediately. First, the first entry in the file note for 8 December 2006 contains an error. It is acknowledged that there was only one text message and it was sent to Mr Blomfield. Secondly, any suggestion by Mr Selvarajah that he would terminate Ms Dye's employment in LBB was subject to very strict limitations. He certainly had no authority to unilaterally terminate her employment in LBB or elsewhere. Nor did he have any authority to require her to be transferred. Either action would require much more formality than Mr Selvarajah seemed to appreciate at the time, but little significance need now be attached to that. It is clear enough that Mr Selvarajah was concerned to indicate to Ms Dye in substance (even if in procedurally incorrect terms) that a continuation of her behaviour would not be accepted. In fact, as later events demonstrated, Mr Selvarajah pursued the matter in due course with complete fidelity to the bank's procedural requirements for dealing with unsatisfactory performance.
278 After sending his email to Mr Furlong, Mr Selvarajah sent an email to Ms Dye. He informed her that he had spoken already with Ms James to the effect that Ms Dye would hand over the work she had been doing for Ms James to someone else. He told her he would speak to Mr Tanner "to let him know that you are working on Mid-East stuff going forward". He asked for an update on some of the other work she was doing. The next day, 14 December 2006, Mr Selvarajah advised Mr Blomfield that Ms Dye was "knuckling down" and complimented some work she had just done on a matter which remained within her responsibilities. However, Mr Selvarajah's satisfaction with Ms Dye's contribution was short lived. During January 2007, Ms Dye's style of communication again created concern for Mr Selvarajah and Mr Blomfield. These matters came to a head in a meeting between Mr Selvarajah and Ms Dye on 1 February 2007. The matters he discussed with her concerned particular email communications during the previous month, which included a period when Mr Selvarajah had been absent on leave.
279 Before dealing with those matters, there is another exchange which deserves to be mentioned. Mr Selvarajah went on leave on 11 January 2007. Shortly before he did so he circulated an email to a number of people advising of some personnel changes. Ms Dye was one of the persons to whom the information was sent. The following morning, 12 January 2007, Ms Dye forwarded this email to Mr Tanner and complained to him that she was not invited to team events, that she was the last person to hear about major personnel changes, that she was feeling uncertain and upset. Ms Dye's complaints that she was not invited to team events and was the last to hear about major personnel changes appear to have had no foundation in fact. Mr Tanner forwarded Ms Dye's email to Mr Blomfield and Mr Selvarajah (who was by then on leave) saying:
"Oh dear! I will deal with this, along the lines of get over it or get out. Arnie enjoy the break."
280 A short time later Mr Blomfield replied to Mr Tanner saying: "Get her out."
281 In his evidence, Mr Blomfield described this response as the result of exasperation and great annoyance on his part. From his perspective Ms Dye had come into his business, upset the staff around her and support staff whose co-operation was necessary to achieve the timetable he had set for a relaunch of the business, done little but complain and seek attention and he was at the limit of his patience with her. It was suggested as part of Ms Dye's case that events thereafter, including the ultimate declaration that Ms Dye's position was redundant, merely reflected and gave effect to Mr Blomfield's determination to get rid of her at all costs. I reject this contention. I accept Mr Blomfield's explanation that his response was the result of frustration and annoyance on his part but nothing else. Mr Blomfield, also, did not have the power to simply bring Ms Dye's employment to an end. Neither, I am satisfied, did he set out to do so in any clandestine or illegitimate manner. In fact, as events shortly afterwards demonstrate, all these concerns about Ms Dye's performance faded from immediate attention when she went, the following month, on an extended period of absence.
282 On 24 January 2007, Ms Dye engaged in another email exchange in which she was critical of the work being done by other people. As part of the exchange, which her comments generated, she made a barely concealed suggestion that one particular proposed advertising campaign was intended to disguise or cover up earlier poor judgments. This email exchange concerned people outside LBB and was circulated outside LBB. It provoked criticism of LBB, and its collaboration with those areas of the bank from whom it was seeking support. Evidently this was drawn to Ms Dye's attention and she attempted to apologise, suggesting that she was merely intending "to stimulate healthy debate" and that Mr Blomfield "has told us all that we're far too polite in this organisation and that he wants to see this change". Mr Blomfield was dismayed by this exchange. Mr Selvarajah became concerned also.
283 On 30 January 2007, Ms Dye wrote a complaining email about the title which one of Mr Blomfield's staff had been given ("business analyst", like Ms Dye) suggesting that the title of that position was inappropriate. She asserted to Ms Bayada: "Analyst job titles are not given to administrative roles. As an analyst, I obviously feel very strongly about this". This seems to have been some form of misplaced elitism. Ms Bayada responded that there was "far too much angst over something like this".
284 When Mr Selvarajah returned from leave at about this time he sought advice from Mr Carroll about how he should manage the situation from an HR point of view. He provided Mr Carroll with a copy of his earlier file notes. Mr Carroll responded with some specific suggestions for him in the following terms:
Hello Arnie,
Those notes are quite clear and those discussions should have left Vivienne in no doubt as to what your expectations are.
In todays discussions I suggest you simply refer back to the December meeting/phone call, state your current observations (with examples) and ask Vivienne for her response. Was she unclear of your expectations? Did she not understand? And, if she did understand then - Why hasn't she improved her behaviours? Does Vivienne need more assistance/guidance to improve? How can we (Arnie) assist her to improve?
After discussing the issues, noting her responses and asking for input on suitable options you should document what happened. It is best if Vivienne is provided with a copy of your note of the discussion and she returns a signed copy to you. You could then let Vivienne know that she must improve and you will allow her another fortnight to display that improvement. If no improvement the [sic] refer to the link below, and scroll down to the heading If performance does not Meet Expectations
http://commnet.cba/peopleconnect/career/performancemanagement/continuous_improvement/managers.aspx
Please let me know if [you] require any further involvement/advice from me.
Regards
Mick C.
285 In this email, and perhaps in his oral advice, Mr Carroll drew Mr Selvarajah's attention to the bank's continuous improvement policy. It is clear from events thereafter that Mr Selvarajah attempted to deal with Ms Dye in accordance with this policy. The policy contained a number of progressive stages. I do not regard it as contractual in nature but it would make no difference if it was because in substance, as will become clear, there was no deviation from its features (or requirements if they be regarded as such).
286 The bank's continuous improvement policy was based upon the premise that performance could be improved even if meeting or exceeding expectations. It included suggestions for encouraging further improvement where performance was meeting or exceeding expectations and included procedures for addressing circumstances where performance was not meeting the expectations of a role, whether in outcomes or behaviours. Where performance did not meet expectations it stated:
The desired outcome is that the team member improves performance so that after a couple of months they meet all expectations in respect of both outcomes and behaviours.
287 The following guidance was given:
Once you have identified that a team member's performance needs to improve in an area, you should raise the matter promptly. Action can be taken at any time through meaningful feedback and coaching, i.e. do not wait for a six monthly review.
288 Managers were advised to meet with the team member and raise the issue, specifically disclose the reasons why an improvement in outcomes or behaviours was needed, provide an opportunity to respond, consider ways to improve performance, monitor progress and keep a note of key decisions. Various techniques were suggested as available including considering an alternative role and coaching. Coaching might itself include various techniques such as directing, guiding and exciting the team member's interest.
289 If, after an appropriate opportunity for performance improvement had been given, a team member still did not meet expectations the policy contemplated a more formal discussion about performance and the consequences of continuing to fail to meet expectations. In that event the following four steps were set out:
Step 1: Set up a meeting …
▪ Arrange a discussion with the team member.
▪ Inform them that the purpose of the meeting is to discuss their ongoing poor performance and possible consequences.
▪ Suggest that the team member may choose to bring a support person to the meeting whose role is that of an observer only.
▪ Keep a note of the arrangements discussed.
Step 2: During the meeting …
▪ Re-state to the team member the expectations of the role with specific reference to the Performance Plan. Clarify your expectations by using specific examples. Provide the team member with an opportunity to respond to the issues that you have raised.
▪ Discuss with the team member a specific opportunity to improve performance and meet expectations. This could relate to a timeframe or a set of tasks. The length of any timeframe set will vary depending on the role and history. (If performance problems are addressed promptly the process should be completed in 1 to 2 months).
▪ Warn the team member that unless they meet expectations within the opportunity provided they may be dismissed.
Step 3: After the meeting …
▪ Immediately write to the team member confirming:
º the reason for the discussion;
º the opportunity and actions that must follow; and
º the warning that continued failure to meet expectations is likely to lead to dismissal.
Step 4: Coaching and monitoring …
▪ Continue coaching and monitoring performance based on the discussion/outcomes from Step 2 above.
290 This (third) stage of the continuous improvement process (i.e. the more formal discussion) was never reached in Ms Dye's case. There are a number of indicators that this is so. First, after the engagement of Mr Carroll's assistance and his advice to Mr Selvarajah it must be assumed that Mr Selvarajah proposed to follow the continuous improvement policy. In any event, the management of Ms Dye's employment in any formal sense was not under the control of Mr Selvarajah or Mr Blomfield, or LBB as a division. It was ultimately under the control of the bank's HR department. Secondly, no point was ever reached where Ms Dye was informed in advance that the purpose of a particular meeting was to discuss possible consequences. Thirdly, it was never suggested that she may choose to bring a support person to a meeting as an observer. Fourthly, Mr Selvarajah did not ever write to Ms Dye warning her that continued failure to meet expectations was likely to (or even might) lead to dismissal from her employment. It follows from the absence of these indicators that, so far as the continuous improvement policy was concerned, Ms Dye was in the stage of the policy where improvement was expected, but her performance was not at that stage regarded as inconsistent with continued employment. These processes were not the same processes as those involved in the periodic (generally annual) performance reviews, which were formally required for consideration of bonus payments, amongst other things. Depending upon the nature of the underperformance identified, and the rapidity with which it was remedied, there seems to have been adequate scope for an employee to retain a "meet expectations" rating for the purpose of bonus payment even if at some point during the preceding 12 months some coaching to lift performance had been necessary and had been undertaken. I mention these matters because there was a good deal of fascination in Ms Dye's case with the idea that she had been "put on CIP", or alternatively "not put on CIP", at various stages by Mr Selvarajah. I regard such an approach as not reflecting the terms or evident purpose of the continuous improvement policy. Perhaps the misunderstanding was shared at one stage by Mr Selvarajah. That is no longer important. What is clear from a comparison between the continuous improvement policy and Mr Selvarajah's actions is that he intended to act in conformity with the continuous improvement policy and he never moved beyond the initial response contemplated by that policy to Ms Dye having been identified as not meeting expectations.
291 Ms Dye and Mr Selvarajah met early on 1 February 2007. After their meeting, Mr Selvarajah made a further file note. It read as follows:
I informed Vivienne (VLD) that this was a performance discussion.
I reminded her that we had a discussion in December about her behaviour and specifically around the issues contained in the previous file note.
I covered each of the points covered in the previous file note.
VLD confirmed that the discussion took place and that she remembered the content of the discussion.
I then raised the issue of the continued poor behaviour and provided specific examples to her of emails that she had sent to various employees of CBA. I also explained to her the impact that those emails had on the recipients as well as the negative impact on the various other departments.
Explained to VLD that this behaviour was not consistent with LBB's values and had affected the level of cooperation we would receive from our business partners within CBA.
I asked her for her thoughts on what we had been discussing.
VLD explained to me that she was just trying to do her job and she did not see any problems with the emails. She asked if I could point out the specific problems with the emails. I went through some of her phrases used and suggested that if she wanted, I would analyse them and provide her with more detailed feedback.
I reminded her that I had suggested in our meeting in December that she should direct any of these issues to me and I would liaise with these areas if further action was required. She agreed that I had said that but also indicated that I had agreed for her to communicate directly with Dominic Brandon. I agreed that I had said this.
I asked her to think about what she wanted to do going forward and she agreed that she would do that.
I told her that I would be giving her a Needs Improvement rating in her PF&R for the December half given this poor continuing behaviour and that she would be put on a performance management plan.
292 In the afternoon of 1 February 2007, Ms Dye sent Mr Selvarajah an email in the following terms:
Hi Arnie,
Our conversation this morning has very much come as a surprise to me and I'd like to do my best to make a career path in Local Business Banking. I feel passionately about the Commonwealth Bank and I truly believe that, as Ralph Norris has said, our success will come from our ability to turn things around in the small business segment. I feel that I can be a good personality fit in this business unit and that I could be regarded by my fellow colleagues as someone who they can go to for help and guidance, on any issue that I might be able to offer assistance with. In my tasks as intermediary to other business units, I feel I have maintained the strong relationships which I brought with me from my former roles.
I'd very much like to try to make my role work in Local Business Banking and would really appreciate it if you could spare some time to explain to me in more detail, how I can improve. From our conversation this morning, it's become clear to me that I've not understood the appropriate way to communicate with other people at work and I would very much appreciate your ongoing guidance in this regard.
Regards,
Vivienne
293 Mr Selvarajah sent this email to Mr Blomfield and, the next day, to Mr Carroll. Ms Dye's apparent acceptance that her communication with others left something to be desired was, if sincere at the time, short lived. She quickly thereafter adopted the position that there was no legitimate room for criticism of her communications as Mr Selvarajah had suggested. Ms Dye had been provided with copies of three specific emails which Mr Selvarajah felt represented inappropriate communications, either in content or in style. Part of his concern related to the way Ms Dye communicated with other areas in the bank whose collaboration and cooperation was required in achieving objectives for LBB, and part of his concern was how Ms Dye dealt with other LBB staff, including Ms Bayada. I do not propose to attempt any independent analysis of the merits of Ms Dye's position with respect to any of these matters. It is abundantly clear that she was informed of concerns about the way in which she communicated with other people and provided with details and examples. There is little doubt that her style of communication would easily be seen as high-handed and directive. According to the evidence of Mr Blomfield and Mr Selvarajah, any such position on her part was quite misplaced having regard to her level of seniority and her own responsibilities. These are matters which fell for the judgment of Ms Dye's superiors. When they were drawn to Ms Dye's attention she had choices to make concerning whether she would attempt to meet the indications being given to her and the requirement for an alteration in the style of her communication. If she chose to contest such matters, that was a choice which was open to her but it does not lead to any legal consequence or anything of other than historical interest so far as the present proceedings are concerned. Ultimately the question is whether it can be said that Mr Selvarajah or anybody else acted outside the limits of Ms Dye's contract of employment or in a way which gave rise to any legal relief. That did not happen on the evidence in the present case.
294 Ms Dye's choices obviously included contesting the criticism made of her. She sent Mr Carroll her own "file notes" of the discussions on 8 and 12 December 2006. Mr Carroll forwarded them to Mr Selvarajah who characterised them, in part, as "fabrications".
295 On 12 February 2007, Ms Dye sent a formal email to Mr Furlong "to ask for the assistance of LBB Human Resources". She made an attack on Mr Selvarajah. She made a series of other complaints about the way she was treated in LBB.
296 Later that day, Ms Dye sent an email to Mr Blomfield entitled "Request to MOR [manager once removed] for In Line Review". In this email she also attacked Mr Selvarajah. She made a series of statements which merit specific mention. For example, she said:
I consider the 'tone of my emails', which Arnie has stated as being unacceptable, to be a red-herring. To my mind, these emails are examples of fine business acumen, albeit not commonly exhibited by women in business. I believe the content of these emails exposes the negative impact of managerial hoarding of information. I believe that 'Saying the Unsayable' for the benefit of our business, ought to be rewarded and not punished.
297 This was a curious statement to make to the head of the business division. Mr Blomfield did not share this assessment. Ms Dye also said:
Four months ago I was offered a position with Macquarie Bank, and on hearing this, you offered me an alternative position within your business which I accepted in preference.
298 This statement contained multiple falsehoods. Ms Dye had not been offered a position with Macquarie Bank. She had made an application for a position with Macquarie Bank and attended three interviews during a period when she kept her application alive notwithstanding that she had been offered the position in LBB and had accepted it. She was finally informed in January 2007 that her application to Macquarie Bank had been unsuccessful. She had not been offered a position by Mr Blomfield and it was not offered as an alternative to any possible position with Macquarie Bank. Ms Dye also said:
I am an employee of Local Business Banking who was hand picked by the Executive General Manager [i.e. Mr Blomfield himself], and I believe that I am now the subject of an unwarranted political attack from your two former CommSec employees [Mr Selvarajah and Ms Bayada]. I will not stand by and let Arnie Selvarajah sell my career down the river. I will not be his victim.
299 Ms Dye was not hand picked by Mr Blomfield. Any belief on her part to that effect disclosed a lack of contact with reality. No doubt it disclosed a more deep seated problem, which is a sounder explanation for the difficulties that developed in her relationship with Mr Blomfield than any suggestion that she was the victim of an unwarranted attack by Mr Selvarajah.
300 Under the bank's procedures, Ms Dye was entitled to bring complaints about her manager to the attention of her manager once removed, who was Mr Blomfield. Mr Blomfield came to the view that it would be inappropriate for him to deal with the complaints in a formal way and that it would be better for Ms Dye to initiate an "out of line" review so the matter could be examined by somebody independent of Mr Blomfield, Mr Selvarajah and Ms Dye. A short time later this is the procedure which was followed. However, as an immediate response to Ms Dye's email and arising from his concern about the more general implications of Ms Dye's behaviour, Mr Blomfield had a discussion with Ms Dye on 15 February 2007 in which he attempted to explain his concern about the nature of some of her email communications. Some of those had been forwarded to him and others had come to his attention. In his evidence in the proceedings, Mr Blomfield said, and I accept, that he had received a number of complaints about Ms Dye's behaviour, in particular the way in which she spoke to other staff both by email and in person. Ms Dye for her own part told Mr Blomfield that Mr Selvarajah was a poor manager and that whatever poor performance she was being accused of was either Mr Selvarajah's fault or the fault of Ms Bayada or Ms Bevan. She was disparaging about Ms Bayada and Ms Bevan, calling them "the girls", and said she was not there just to be some "admin hack". Ms Bayada and Ms Bevan were at the same level as Ms Dye (level 2) and Mr Blomfield thought her attitude and approach inappropriate. He also expressed his dissatisfaction with the tone of her email communications with areas in the bank with which LBB needed to work. His evidence was that he said to Ms Dye: "This is causing me damage and this has to stop".
301 Mr Blomfield, in his evidence, gave a specific example, drawing upon one of the email communications which he discussed with Ms Dye. Arising from her communication a senior officer of the bank had indicated his concern to the head of marketing for the bank saying, pithily:
Mark,
FYI … getting collaboration with LBB is a challenge.
There is nothing wrong with fair debate but the tone of their communication is another matter.
Dom
302 This was a reference to statements by Ms Dye in her email. In his evidence, Mr Blomfield was asked about this email and its contents and gave the following response:
MR GRAY: Subsequently when you did see it, what was your reaction?---My reaction was, "This is exactly what I feared", which is that Dominic, who knew me very, very, very well - I had hired him into the firm - had, on the basis of this email, not come to me for a friendly chat, but had escalated this to the bank's - to the head of marketing for the entire bank, and not just that, but he says here that getting collaboration with my division is a challenge, not with Ms Dye, but my division, and this is [a] really strong example of the damage that people can do when they behave this way inside a big organisation.
303 It is unnecessary to attempt any independent assessment, as I said earlier, of whether Mr Blomfield's concerns were justified or not, although I have no reason at all to think that they were not. The immediate point of relevance is that Mr Blomfield, as the head of LBB, was concerned about Ms Dye's communication, he had evidence before him that her communication style was reflecting badly upon his division and indirectly upon his leadership, he raised the issues directly with Ms Dye and he was entitled to a constructive response from her. Although, of course, she could choose to contest his assessment, there would be little point in doing so upon the basis that it was outside his discretion to raise the matter with her or to form the view which he did. That position does not change simply because the issues have now been ventilated in the proceedings. These were management issues which were, and remain, matters of managerial discretion. Assessment of performance under the bank's continuous improvement policy was a matter for the bank and its officers. The policy was in place to permit steps to be taken to change performance which was perceived to be inadequate. Ms Dye's performance came into this category. Mr Selvarajah and Mr Blomfield were entitled, in accordance with the policy, to seek a change in her behaviour. If she chose to contest their judgment her options were limited but, such as they were, she apparently decided to exercise them.
304 At some point in this meeting, Mr Blomfield asked Ms Dye what she wished to be done to resolve the complaint which she had made to him in writing. He wrote down what she said. The list had eight items. They read as follows:
- Change reporting line
- Ensure VLD [Ms Dye] gets coaching on the work that she is doing at the moment
- Map out a potential career path & help her get there. Wants to be my COO. [Chief Operating Officer]
- Pay rise $95 [thousand]→$130 [thousand]
- Someone to do conflict resolution ŵ CB [Ms Bevan]
- Help VLD develop a relationship ŵ LB [Ms Bayada]
- Be nice to VLD
- A hug
305 This statement by Ms Dye of her desired outcomes showed a serious lack of appreciation of her circumstances. It contained no acknowledgement at all of the matters which were causing concern and which by now had been discussed with her quite specifically by both Mr Selvarajah and by Mr Blomfield. It revealed that Ms Dye wished to take up a position in close contact with Mr Blomfield and appeared to expect him to help her achieve her objective. It, astonishingly, suggested that she was entitled to a very substantial pay rise (over 30%). The final request is almost bizarre in the serious circumstances that Ms Dye faced and about which she appeared to show no real appreciation.
306 Mr Blomfield's response was that none of her concerns could be addressed by him until a review was conducted by someone else of Ms Dye's complaints. He did say to Ms Dye, however, that if at the end of that process it was determined that Mr Selvarajah had acted inappropriately he would be shown the door.
307 On 19 February 2007, Mr Blomfield and Ms Dye met with Mr Carroll. Ms Dye indicated that she wanted an in line review. Mr Blomfield explained why he was unwilling to do such a review of complaints about Mr Selvarajah. The alternative was an out of line review. At the end of the meeting the matter was left with Ms Dye to make a decision about what she wanted to do. The same day Mr Carroll forwarded by email an electronic link to information concerning the out of line review process and a link to the form which would need to be completed if Ms Dye wished to proceed in that fashion. Later in the day he sent her a similar link to information about the continuous improvement program. The following day, Ms Dye obtained a medical certificate certifying her unfit for work from 20 February 2007 until 3 March 2007 because of "stress". Ms Dye obviously used this time to prepare the documents which she sent on 28 February 2007 to the HR department with a copy to Mr Blomfield. The bundle of documents commenced with a formal request for an out of line review. The formal request contained an "issues statement". The "issues statement" complained about Mr Selvarajah's file notes and about his use of the issues referred to in those file notes to "put me on a Continuous Improvement Program if I don't leave the business of my own accord". The issues statement accused Mr Selvarajah of neglecting his own obligations. The solution proposed was summarised as follows:
I have listed a number of steps which HR, Arnie and I could take to resolve this matter, together with some supporting facts. In short, I feel the most appropriate way to resolve the above concerns would include a change of reporting line from Arnie Selvarajah to Michael Blomfield.
308 Thereafter, a number of detailed proposals were advanced for the way in which Ms Dye could interact with her "preferred manager". The "preferred manager" was unmistakeably Mr Blomfield. The issues statement was replete with criticism of Mr Selvarajah and contained criticism also of Ms Bayada and Ms Bevan.
309 The HR department moved quickly to appoint Mr Terry Mason, a senior officer of the bank approaching retirement after long service with the bank, to conduct the out of line review. Mr Mason gave evidence in the proceedings. He impressed me as thorough, diligent and conscientious in his approach to the review which he conducted. The review commenced with a meeting with Ms Dye on Friday 2 March 2007. Mr Mason's notes of that meeting record that Ms Dye told him that a satisfactory resolution to her would be a change of reporting lines. She complained of bullying, suggesting that Ms Bayada was hostile and aggressive to her. Mr Mason attempted, evidently, to explain to Ms Dye the nature of the continuous improvement process which had been activated by Mr Selvarajah. He recorded the following:
I asked [sic] her that given her current manager had assessed her performance as not meeting expectations and if that stood, there would be optional outcomes - one is to improve so that expectations are met; the other is that if performance remains assessed as not meeting expectations, termination could be a possible outcome. Vivienne responded that if that happened she would immediately see her lawyer.
310 This is a further indication that Ms Dye seemed determined to resist and contest any suggestion that her behaviour in her work should change. Subject, of course, to the outcome of the review which Mr Mason was to undertake in the period which followed this seems to reveal a form of obstinate resistance to any idea that Ms Dye might need to consider any attempt at improvement. She had evidently decided that the cause of all her difficulties lay elsewhere. Regrettably for this position on her part, that was not the conclusion to which Mr Mason came. On 5 March 2007, he interviewed Mr Selvarajah and Mr Carroll. On 7 March 2007, Mr Mason interviewed Ms Bevan. Mr Mason recorded Ms Bevan's observations that she initially raised concerns with both Mr Blomfield and Mr Selvarajah about Ms Dye's appointment to LBB because she had worked with her elsewhere and found that Ms Dye tried to take control of matters by allocating tasks to others without delivering fully herself. Ms Bevan told Mr Mason that often Ms Dye's emails and statements in discussions were condescending. On 8 March 2007, Mr Mason interviewed Ms Bayada and also Mr Tanner. Mr Tanner described Ms Dye as bright, enthusiastic "with a need to control" and said he was aware of discussions between others about her behaviour being disruptive. He described Ms Dye as "can be high maintenance". On 15 March 2007, Mr Mason interviewed Ms James who was highly complimentary of the LBB management team. She described Mr Selvarajah's management approach as "direct, fair and clear on expectations". She made an observation that Ms Dye "has an aggressive if not unacceptable tone when dealing with people".
311 As recorded by him in his notes, and according to his evidence in the proceedings, Mr Mason received no support for the suggestions made by Ms Dye of dysfunctional management in LBB or poor management by Mr Selvarajah in particular. He did, however, receive information from those he interviewed which would serve to confirm that Ms Dye was not always easy to deal with and had a tendency to approach her work in a way which was not altogether harmonious with the ideas of others.
312 Meanwhile, Ms Dye on 7 March 2007 had a meeting with Mr Selvarajah concerning the work which he wished her to carry out and shortly thereafter she had a meeting with Mr Blomfield. Mr Selvarajah gave Ms Dye a list of six specific projects to complete with completion dates between 9 and 16 March 2007. There was a note of other work which she was currently doing and finally a short list of other projects which were to be put on hold until further notice. Mr Selvarajah asked her to review the list and to give him her response to it. Later that day, Mr Selvarajah sent Ms Dye an email with some amendments and asked her to confirm that the first six tasks could be completed on the basis she was not required to work outside of normal work hours. He asked for any suggested changes by the end of the week. The initial meeting with Mr Selvarajah was at 8 am. Surprisingly, in a meeting at 9 am Ms Dye presented to Mr Blomfield a supposed list of projects which she claimed to be "managing" for Mr Selvarajah, Mr Tanner and Ms James. Mr Blomfield's response was to say to Ms Dye that no single human being could run all those projects. He indicated to her that he thought she was overstating the position. In fact it is clear that the claim involved substantial falsehoods. In any event, what Ms Dye was required to do had, a very short time before, been put beyond argument by Mr Selvarajah in writing. On the evening of Friday 9 March 2007, Ms Dye sent Mr Selvarajah's list back to him with substantial changes. The changes were not acceptable to Mr Selvarajah who immediately sought advice from HR as to whether he could ask her to adhere to the tasks he had assigned to her.
313 Part of the arrangements Mr Selvarajah advised Ms Dye about was that he would meet with her weekly to review progress on the projects she had been allocated. A meeting was appointed for 15 March 2007. Ms Dye postponed it. The meeting was rearranged for 16 March 2007. On 16 March 2007, Mr Selvarajah sent an email to Mr Furlong in HR, for his information, to the effect that he had scheduled a work in progress meeting with Ms Dye that day at 3 pm, that she had failed to attend, that he had tried to call her on her mobile phone and it went to voicemail, and that people had told him that she had not come into work that day at all. In fact Ms Dye did not come to work in LBB again. On 22 March 2007, she obtained a medical certificate that she was unfit for work from 15 March 2007 until 23 March 2007 as result of stress. The following day, she was given a medical certificate stating her unfitness for work from 23 March 2007 until 25 May 2007. I shall trace the subsequent history of her medical attention and the medical certificates it generated separately.
314 On 30 March 2007, Mr Mason met with Ms Dye (who came to the office for this purpose) and provided her with a copy of his report and recommendations to read. She was not given a copy to keep at that stage. Although Mr Mason came to the view that Mr Selvarajah could have provided more specificity for Ms Dye in the work she was to do, his conclusions were overall unfavourable to Ms Dye and involved rejection of her complaints. Those conclusions included the following: