THE FACTS
6 Ms Yousif worked for the Bank as a mobile lender in the Western Victoria / Tasmania Region (Western Region). Her job was to persuade customers to take out home loans with the Bank. She was successful in attracting a high volume of business. As her figures increased she sought additional administrative assistance from the Bank. Initially some further assistance was provided, but towards the end of 2007 her further request was refused. She then attempted to transfer as a mobile lender to the Personal Relationship Banking (PRB) division. Mr Grahame Carney, the Executive General Manager, Branch and Relationship Banking determined that the position was not available due to a restructure of mobile lending in PRB. The refusal of the Bank to allow Ms Yousif to move to PRB generated great controversy. Ms Yousif went on sick leave in about the end of March 2008 as a result of the stress caused by the dispute.
7 Then, on 30 May 2008 she filed proceeding VID 394 of 2008 in this Court. In that proceeding she alleged that the Bank acted in breach of her contract of employment by refusing to allow her to transfer to PRB, and also acted in breach of her contract of employment in the way in which it conducted the investigation into the decision to refuse to allow her to transfer to PRB. A detailed account of that controversy is contained in the reasons for judgment published in application VID 394 of 2008 (Yousif v Commonwealth Bank of Australia (No 2) [2009] FCA 656), and, it is not necessary to repeat those details in this judgment. Rather that account should be read as incorporated in these reasons. However, some aspects of particular relevance to this application should be related.
8 In VID 394 of 2008 on 2 June 2008 the Bank gave undertakings to Gray J that until further order:
(i) it will not dismiss the applicant from her employment; and
(ii) it will continue to pay to the applicant her usual salary without requiring her to perform duties or offering to provide her with duties to perform.
9 The hearing of application VID 394 of 2008 commenced on 6 November 2008. Ms Yousif was called as the first witness. She was cross examined on 6 and 7 November 2008. At the end of the cross examination at about midday on 7 November Mr M McDonald, who appeared as senior counsel for the Bank, asked some questions concerning Ms Yousif's attitude to returning to work. She made it clear in her answers that the relationship with the Bank had completely broken down. It is best to let Ms Yousif's own words describe her position. She said in response to questions in cross examination:
I'm putting to you that from 13 February, the certificates that are in evidence from your doctors expressly say that barrier to you returning to work is that you're in the Western Region and that you should be relocated out of the Western Region. That's what your doctors say?‑‑‑And he said I understand there is ongoing legal proceeding.
So, it's the fact that the ongoing legal proceeding has not been resolved, that's what - that's your evidence ‑ ‑ ‑?‑‑‑No, no.
That's what's stopping you from going back to work?‑‑‑No, no. Because all these bullying and harassment which affect on my health and also there are all these unresolved issue and the treatment that I had from management and also when I took this matter to senior that has not been dealt through - fairly, this has even affect more on my level of stress and my family life. And on top of that, it did not stop to here. The bank went way too far with this. They wanted to get rid of my altogether and I've seen that termination letter that ‑ ‑ ‑
The bank has offered you ongoing work ‑ ‑ ‑
…
THE WITNESS: Mr Carney want me just to forget about everything happen overnight and just - he - I received this letter just before 1 o'clock, it was about 12 - it might come about 12, 12.30 and he just want me to attend to work on the 6th, which was this Monday, at 9 am. So he expect me to have four hours to forget about everything and - I get all my health back, all the stress sorted out all in just four hours and just come back to work.
MR M McDONALD: The bank was giving you what you had been asking for, for seven months, Ms Yousif, a transfer out of ‑ ‑ ‑?‑‑‑But after damage had already ‑ ‑ ‑
‑ ‑ ‑ the Western Region into the Eastern Region?‑ ‑ ‑ been done, Mr McDonald. The damage already done.
HIS HONOUR: But then, Ms Yousif, what is it that the bank can do, apart from giving you what you want by way of a transfer, and let's assume that some resolution was made to the period you have been on sick leave. In terms of the ongoing issues for you, what more can the bank do, you want them to sack Mr Porter or sack Mr Carney and Mr Gwynne and - I mean, what's the realistic position that you're actually putting?‑‑‑Sorry, your Honour. How do you want me to trust these people again?
Well then you wouldn't want to go back to the bank, would you?‑‑‑If the - if all these issues are raised in my letter on 15 September and if my health helped me to get back to the same and work with these people again, yes, I will. But I can't see that I have a future with this bank. That my - how can Mr Carney fix? Is he going to go and run another teleconferences to management in all Australia and say, I was - I made a wrong decision, Linda was never should've been sacked. Linda did - Andrew Matthews has signed that letter and we called him to lie and therefore to find an excuse. Is he going to tell my story? My file, your Honour, has been filled with all this complaint and diary note that I have no idea about. Anywhere I go with the bank, any management want to take me, they going to look at my files, what's my history of employment? And my name absolutely been blackened in that file.
…
Well, don't let's get into the detail. Let's just try and isolate the issues which you say are still outstanding. You've been given the transfer, there's the blackening of your name by linking you with a forgery which you say is a false accusation?‑‑‑Yes.
All right. What else is there, there's the question of your - if you were to leave the bank, how they would represent you to other employers?‑‑‑And my clients and my referral source and what will happen with the ‑ ‑ ‑
Well, that's only if you stay at the bank but the way you're talking, it seems as if the likelihood that you're going to be happy at the bank is remote. If you don't trust all these people, how would you ever want to go back?‑‑‑Well, that's my point. I'm saying they've done damage that cannot be resolve and it came way too late. Mr Carney, he said in his letter of 3 June that he investigated the matter and he was in a position to dismiss me, when he really did not investigate the matter.
…
MR M McDONALD: Can I just ask you a very simple question?‑‑‑Yes.
Do you want to go back to work?‑‑‑I can't.
There's a job for you. It's waiting there for you. It's been an offer made in good faith to you. Do you want to go back to the bank and be an employee of the bank?‑‑‑I don't believe, Mr McDonald, your clients have good faith because I don't trust - after what happened to me I do not trust that they had any good faith in any decision they made.
So is the answer no, you don't want to go back?‑‑‑I cannot. I want to. I wish if you could bring the time that it's January again and I could get the same job, but during the last 10 months the bank has caused major damages, damages to my reputation, to my client base, to my future, not only with the bank but to my future elsewhere as well if I go and do this lending elsewhere.
10 On 8 December 2008 the Bank applied to be released from the undertakings which it had given to the Court on 2 June 2008. The application was granted (Yousif v Commonwealth Bank of Australia [2008] FCA 1948) partly on the basis that Ms Yousif's evidence on 7 November 2008 indicated that she could no longer work for the Bank.
11 Then on the same day the Bank terminated Ms Yousif's employment.
12 The only evidence given in relation to the present application concerned the reasons for the termination. Mr Carney had made the decision to dismiss Ms Yousif. In examination in chief he explained the reason as follows:
The termination decision was made simply because Ms Yousif stated in that very court that there was an irretrievable breakdown of relationship between her and her employer. She didn't trust the Bank and she didn't trust the senior executives of the Bank; and, therefore, I took that as an irretrievable breakdown and I took the - the decision to terminate the services.
13 He denied that one of the reasons for the termination was that Ms Yousif was temporarily absent from work due to illness, and he also denied that one of the reasons was that she had participated in the proceedings she brought against the Bank.
14 Mr Millar, who appeared as counsel for Ms Yousif, fastened upon an answer given by Mr Carney in cross examination as evidence that one reason for the termination was that Ms Yousif was absent from work. The exchange was as follows:
If Ms Yousif had said what she did in the workplace, if she'd had an outburst one afternoon at work and said words to the effect of, "I don't want to work here any more. I don't trust these people," would you have immediately dismissed her? Or would you have sat down with her later to talk through the issues, to see if they could be resolved?‑‑‑It's somewhat hypothetical, but I would treat every case on its merits, and I would want to understand the issues that - that triggered the outburst, and the circumstances around it. But I want to reiterate, the termination action that I took, and outlined in my letter that's before the courts, was not on an isolated issue. I had done my best, as I considered it, to get Linda Yousif back to work, and I have outlined the process I took and the steps I took over the period of time I took it.
15 Mr Millar argued that Mr Carney's reference to Ms Yousif's evidence that the relationship with the Bank had broken down not being an isolated issue meant that Mr Carney had other reasons for the dismissal. Mr Carney's immediately subsequent reference to trying to get Ms Yousif back to work demonstrated that one reason for the dismissal was Ms Yousif's temporary absence from work.
16 This evidence was given in response to questions in cross examination suggesting that Mr Carney would not dismiss an employee simply because the employee expressed the view that they could not work for the Bank. Mr Carney explained that he did not take the evidence given by Ms Yousif in isolation when deciding to terminate her employment. He viewed the issue against the history of his attempts to get her back to work first by offering her a different manager in the Western Region, and then offering her a transfer to the Eastern Region. He thought he had tried all reasonable options to meet Ms Yousif's requirements. When she indicated in Court that, despite those efforts, she did not trust the Bank or its senior executives, Mr Carney was in the position which he described thus:
I just didn't know where else I could go, and given the breakdown, which I considered to be irretrievable, I took the decision that I did and communicated that decision.
17 The background to which Mr Carney referred emerges from correspondence between Mr Carney and Ms Yousif which begins with a letter from Mr Carney concerning several disciplinary issues involving Ms Yousif which had been investigated by the Bank at the time. Mr Carney wrote a letter dated 19 August 2008 which included the following:
Your Continuing Employment
The issues with respect to your ongoing employment with the Bank remain unresolved. I want to do what I can to resolve them.
The Bank does not propose to take any disciplinary action against you in relation to the matters raised in my letter dated 5 May 2008.
On the issue of the forged signature, I do not know who is telling the truth. I have conflicting sworn testimony between you and Andrew Matthews. As such, I cannot be satisfied that you should be dismissed on that account alone.
On the issue of the manipulation of the VLOC bonus system, in fairness to you, it is an issue which extends beyond your own actions to others. However, you should be on notice that in future the Bank will exercise a zero tolerance approach. The operation of the Bank's mobile lending functions, especially in Victoria and Tasmania, are going to be very closely managed and supervised including by me. Interference with, or manipulation of the Bank's systems and protocols by mobile lenders and others will cease. More specifically, your actions in this respect to date will not in and of themselves result in the termination of your Contract of Employment. However, you should be in no doubt that in the future manipulation of the VLOC/Bonus system will be treated as a most serious breach of employment obligations which is likely to lead to instant dismissal. I propose making this fact plain to all relevant staff as well.
As a consequence, I propose that, once you have medical clearance from your treating doctors, you return to work in a position of mobile lender reporting to Keith Osborne [a different manager in the Western Region].
There is another matter that I would like you to seriously consider. I am concerned that your focus on work has operated to the detriment of your health and is not in your interests or indeed those of the Bank. I suspect that this led to the behavioural issues raised with you by Richard Porter, in relation to your dealings with clients and colleagues. We need you to regain perspective. With this in mind, I invite you to participate in the Bank's Employee Assistance Program to work out the best way of balancing you work and family commitments, and avoid becoming obsessive about your work.
You have not been offered the position of Mobile Banker - Personal Relationship Banking because as I advised you in our telephone conversation in late January 2008 I had determined the position was not to be filled due to restructuring decisions I had under active consideration at that time. The position no longer exists.
18 Ms Yousif replied on 25 August 2008 as follows:
I was pleased to receive your letter of 19 August 2008 and I look forward to returning to my role of Mobile Banker as soon as I can obtain a health clearance from my doctor.
I trust you are aware of the issues that I have had with Mr Porter and if you have any doubts about any matter I would be pleased to provide you with the information that you may need. I never had a problem coping with my workload until I was bullied and harassed by Mr Porter and suffered a lack of support from Mr McKinnon. However, it is my hope that past issues can be put behind us and that a new start can be made going forward.
To do this will require some compromise on behalf of myself and I will need the support of the Bank as described below.
To ensure that there are no ongoing problems between myself and Mr Porter, or anyone in his management line, please authorise a transfer of my position to either the Eastern Region or Personal Relationship Banking. I am aware that many other Mobile Bankers have moved seamlessly between regions.
I will give you my utmost cooperation in ensuring that there is no disruption in the transfer. I usually work from home and my clients are, as you know, not territory bound. I have complied with the Bank's directions that I am entitled to treat my role as a business and recruit from referral work resulting from good service to wherever those referrals may lead.
As part of my goodwill towards the Bank, I have instructed my lawyers to seek a prompt resolution of any matters which may remain outstanding under my Statement of Claim. It would be highly desirable that I not be involved in any litigation with the Bank whilst working hard for the Bank. Nor, would I want to take any time off work to prepare for my legal case or be distracted by my legal case when I can be engaged in my preferred preoccupation, winning business for the Bank as a Mobile Banker.
Perhaps it may be a good idea if we enjoyed a private, informal meeting. There is no need for the airing of any disparaging remarks if you can personally assure me that I have a bright future with the Bank in the mobile lending area, which is my passion.
19 In response, Mr Carney wrote on 3 September 2008:
Your continuing employment
I am writing in response to your letter dated 25 August 2008.
At this time, I do not think matters can be advanced by our meeting privately. I am also concerned since it appears to me that you believe that your return to work is something that should be negotiated between us.
Based on the information you have provided and the investigation already carried out, I do not believe that issues you raised regarding Richard Porter allegedly bullying and harassing have been substantiated.
Further, I am not confident, having regard to your letter, that you accept that there are any issues arising out of your behaviours that you need to take responsibility for and address. In my opinion there are and they include:
(a) your manipulation of the VLOC system inappropriately to secure additional remuneration for yourself:
(b) threatening your managers that you will move to another region if work and bonuses are not allocated in the way you would like;
(c) your failure to follow a clear direction from your manager about allocation of work by entering into an agreement with another employee contrary to this direction; and
(d) performance issues around your behaviours and service standards.
You have asked for my personal assurance that you have a bright future with the Bank in the mobile lending area. Linda, this entirely depends on your actions, behaviours and compliant business outcomes.
With due respect, none of my concerns have anything to do with the complaint you have made to Mr Norris. It is important that you understand that there are behavioural issues that you need to take accountability for and address upon your return to work and they will not be ignored. I am prepared to give you every opportunity to succeed but if your unacceptable behaviours continue, I will take appropriate disciplinary action as is normal.
In my earlier letter, I invited you to participate in the Bank's Employee Assistance Program in order to achieve work life balance, a proper perspective on your role with the Bank and to deal with any behavioural issues. I again encourage you to agree to undertake the Employee Assistance Program upon your return because in my view, you have become 'obsessive' about your work. For example, you continued to undertake work including logging onto your PC and making business calls whilst you were on sick leave and were not fit to do so.
Before you can return to work, we need to ensure that you are fit to do so. Accordingly, could you please obtain medical evidence as to whether you are fit to return to work by Tuesday 9 September 2008. Alternatively, if you are not presently fit to return to work, the report must state when you are likely to be fit to return to work.
20 This letter provoked a long response from Ms Yousif on 15 September 2008. It is not necessary to reproduce the entire letter however its contents and tone are illustrated by the following extracts:
I must say with all my respect that your letter dated 3 September was very poor and made me realise that you care factors are absolutely zero and I will never have any support from you and the Bank on my return to work and also by you rejecting my offer of a private meeting to sort some of the issues just proved to me that you refuse to make peace and insisting on running the war against me and this is exactly what was prescribed by Justice Gray when he made his orders on 2 June 2008.
I have done the right thing by my clients and the Bank and the issue you are raising on your letter dated 3 September 2008
…
b) Threatening management - this is exactly vice versa of what occurred. The management have threatened me verbally first and then they carried out the threat. Richard Porter did this in late night calls in the week 18 - 23 January 2008. Particularly the call he made to me on 23 January 2008 when he told me that he would destroy my career with the Bank and to circle today's date in my calendar and my career will finish here. I have done the right thing by you and by senior management by escalating my complaint through the correct procedure. You decided to stick with Richard Porter and help him to put his threat to practice. You proposed to me in your letter dated 3 June 2008 that a decision was made to dismiss me from my employment. Luckily for me this was stopped by a court action dated 2 June 2008 by Justice Gray. Western region or eastern region or even personal relationship banking departments all belong to the bank, so tell me where is the threat to you when you manage all the three departments? The reason behind my decision to leave western region initially was because of the lack of support from management and the favouritism rules. I would like to remind you about the PRB's mobile banker's role which was already officially offered to me in mid Jan 2008 and you have withdrawn the offer late Jan 2008. The bank already admitted this fact in their summary report investigation by Kerrie Blundell in March 2008 (known to court as Doc LY-1). The big fact that you know and I know and everyone else in the bank was that Richard Porter did not want to release me from his region because I was the second highest top sales performer in Australia. Leaving him meant effecting on his personal bonus and overall on his sales lending results which was not going to make him look good.
…
d) There has been absolutely no performance issue around my behaviour that I was made aware of and if Richard Porter and Cameron McKinnon are going to make any story I am sure was after my email to the CEO Mr Ralf Norris. The serious behaviour issue that needs your attention and the bank is Richard Porter and Cameron McKinnon unacceptable behaviours which is highly effecting on the bank's reputation, for example running their drinking sessions during business hours and interrupting work and running their personal affairs at work and during business hours with the staff that they directly managing, misusing their management's position to take advantage of their staff and those workplace romances are effecting on other staff and clients. They are not appropriate and not professional plus it is a conflict of interest when making decisions and they always put their lovers at favourite positions. This is breach of the bank's statement of professional practice.
I have asked you for your personal assurance that I have a bright future with the bank because since everyone start fighting me the minute they knew about the email I have send to the CEO on the 20/02/2008 and every action was taken since then was threatening to my career with the bank. For example:
1. All your threatening letters from March - June 2008, specifically in your letter dated the 3rd June 2008 which was stopped by the court order 02/06/2008. How could a man with your experience and position with the bank decided to dismiss me from my employment because Andrew Matthews has denied signing letter dated 24/12/2007. Have you ever thought about the legal position you are putting your employer through or you just wanted to stick with Richard Porter and discriminate me and victimize me.
…
All the above issue have a big impact on the high income I was earning $370,000 pa, so they are the issue and damage that are totally up to the bank to fix and get me on the same level of success that I was on before I went on stress leave.
…
Since I have been on stress leave you totally disregarded all the medical certificates and serious medical letters from my treating doctors and I total disagree with you on what you describe as my focus on work caused health issue. I am always focused on my work and always enjoyed good health the fact evidence is to check my employment history and I rarely been on sick leave specially in the last 3 years in this role as a mobile banker until I was harassed and bullied by Richard Porter and the lack of support from Cameron McKinnon.
My stress issue is getting treated by my personal doctor and its very inappropriate for you to give me advice on my health because you simply not a medical specialist and to push me to take the employee assistant program instead of offering me a safe work place free of bulling and harassment.
I am not fit to work at present and I will be returning to work once I have medical clearance from my treating doctor.
…
I have requested from you in my letter dated 25/08/2008 to authorize that transfer to eastern region or to personal relationship banker, so I am repeating that request again so could you advise me of your decision if you seriously offering me my job with the bank.
21 Then on 30 September 2008 Mr Carney wrote a letter which included the following:
Further to your letters dated 25 August 2008 and 15 September 2008, I accept your request to transfer your role as a Mobile Banker to the Eastern Region. In this role, you will be part of Roger Revere's team.
Accordingly, I direct you to report to Mark Wilson at Level 4, 385 Bourke Street at 9:00 am on Monday, 6th October 2008.
22 Ms Yousif responded on 8 October 2008 through her then solicitor with a list of 14 questions as follows:
1. Whether or not our client will be given the same mobile phone number which she had before it was removed from her on 19 May 2008 and if so, when?
2. Whether or not our client will be given the phone records from 19 May 2008 until the date of her return showing calls received or made from that number to show the communications which have been made using that phone. This would necessarily include any recorded message and if so, when?
3. Whether or not our client will be provided with a current list of the clients that she services in the year prior to 12 February 2008 including in the list the names, addresses, contact points and business written during the period until she returns to work. Including, as attributed to any other Mobile Banker or bank branch and if so, when?
4. Whether or not the clients which our client had as a Mobile Banker in the 12 months prior to 12 February 2008 will be advised of our client's return to work in the Eastern Region and told that she is their Mobile Banker and that they should deal with her for all of their dealings with the Bank in the future and if so, when?
5. Whether or not our client will be compensated for any loss of income by reason of her absence from work and her inability to service clients of the bank or secure new clients and be paid bonuses as she was in the period to 31 December 2007 and if so, when?
6. What support she will receive from administrative assistance upon her return to work? Will she receive two assistants and will one of those assistants be Mr Richard White?
7. What period, if any, will be afforded to her to re-establish herself with her clients and what targets will be set for her upon her return and in a reasonable period thereafter?
8. Will your client disclose what statements were made to staff of the Bank about our client's absence or possible return to work since 19 May, 2008. If so, please provide those statements to us within seven days?
9. Does your client intend to provide a statement to its staff about our client's return to work and if so, what statement will be made? Could you please provide us with a copy of the proposed statement within seven days?
10. What action, if any, does your client propose to take against the staff who have breached our client's privacy as referred to in the Statement of Claim? What action, if any, has you client taken or proposed to take to prevent a breach of privacy as alleged in the Statement of Claim?
11. Does your client propose to make any notation on our client's personnel file about any of the matters referred to in the Statements of Claim and if so, please advise what notation will be made?
12. What action, if any, does your client propose to take or has your client already taken in relation to its employees who are alleged to have engaged in bullying and harassment as referred to in the Statement of Claim?
13. What proposal, if any, does your client have for payment of our client's legal costs and medical expenses in view of the apparent reversal of the Bank's position of our client's employment?
14. Could you please provide us with a copy of our client's personnel file on or before 5:00pm tomorrow, 9 October, 2008 so that we may have access to the documents before completing our client's Affidavit on Friday?
The Bank did not provide the answers requested.