Yousif v Commonwealth Bank of Australia

Factual findings 6 The factual disputes between the parties primarily concerned the circumstances surrounding the Bank's failure to appoint Ms Yousif to the position of mobile lender in the Bank's Personal Relationship Banking ("PRB") division in January 2008, and the Bank's conduct of an investigation into Ms Yousif's subsequent complaints. The facts relevant to these disputes as found by the trial judge, in brief, were as set forth below. 7 Beginning in January 2006, Ms Yousif worked as a mobile lender in the Western Region. Her immediate manager was Mr Cameron McKinnon, Sales Manager Mobile Lending, who reported to Mr Ian Gwynne, Regional Sales Manager, Mobile Banking, Western Region. Mr Gwynne in turn reported to Mr Richard Porter, Regional General Manager, Retail Services and Sales, Western Region; and Mr Porter reported to Mr Grahame Carney, Executive General Manager, Branch and Relationship Banking: Yousif v Commonwealth Bank of Australia (No 2) [2009] FCA 656 at [8] and [10]. Ms Yousif's claims regarding the failure to appoint her to the PRB position focused on the conduct of Mr Porter and Mr Carney. 8 The trial judge found that the relationship between Ms Yousif and the Bank had begun to deteriorate prior to her application for the PRB position: Yousif at [14]-[38]. Several factors contributed to this deterioration. First, in August 2007, Ms Yousif became dissatisfied with the number of administrative assistants allocated to her, and applied for a transfer to the Bank's Eastern Region. When the Bank promised to provide Ms Yousif with extra administrative support, she withdrew her transfer application. Second the Bank received complaints from customers regarding inadequate service and rude treatment by Ms Yousif. Although Ms Yousif was the highest performer in the Western Region in terms of sales, Mr McKinnon, Mr Gwynne and Mr Porter all observed that she was becoming increasingly intense and over stressed as she worked harder to achieve more sales. Third, Ms Yousif was upset by Mr McKinnon's decision to divide work related to a company known as Premium Financial Services ("PFS") between her and two other lenders, rather than one other lender. Ms Yousif's dissatisfaction with the decision resulted in an incident at the Bank's Christmas party, and a hostile and confrontational telephone conversation between Ms Yousif and Mr Porter. 9 In January 2008, Ms Yousif applied for a position as a mobile lender in the PRB division advertised on the Bank's intranet. Mr Julian Lenehan, General Manager PRB, interviewed Ms Yousif. Following the interview, Mr Lenehan phoned Ms Yousif: Yousif at [44]. The trial judge did not accept Ms Yousif's contention that Mr Lenehan offered Ms Yousif the PRB position unconditionally at the time of this phone call. His Honour found instead that there was no concluded agreement to appoint Ms Yousif to the position. Rather, according to the trial judge's findings, Mr Lenehan "foreshadowed that an offer would be made after speaking with Mr Gwynne" regarding Ms Yousif's suitability for the position, and "[t]he offer would be in writing and an agreement would be made when a formal contract was signed": Yousif at [53]. 10 The trial judge also rejected Ms Yousif's evidence that Mr Damon Monopoli, General Manager PRB, extended her an unconditional offer for the PRB position during a meeting between her, Mr Lenehan and Mr Monopoli on the day after the initial interview. Instead, the trial judge accepted Mr Monopoli's evidence that he met with Ms Yousif only once, in December 2007, and that no offer was made at this meeting: Yousif at [49]. 11 The trial judge found that, after interviewing Ms Yousif, Mr Lenehan met with Mr Gwynne, and Mr Gwynne told Mr Lenehan that "there were a number of behavioural issues with Ms Yousif": Yousif at [45]. Following this conversation, Mr Monopoli rang Mr Porter to inform him of Ms Yousif's application for the PRB position. Mr Porter told Mr Monopoli that he was attempting to work through several issues with Ms Yousif, and, according to the trial judge's findings, "Mr Monopoli told Mr Porter that he would not look to hire Ms Yousif until Mr Porter had a week to work through her concerns . . .": Yousif at [54]. 12 Two telephone conversations between Ms Yousif and Mr Porter followed Mr Porter's discussion with Mr Monopoli. According to Ms Yousif, Mr Porter told her during the second conversation that "if you are going to leave my region, I want you to circle today's date in your calendar and your career will finish here": Yousif at [63]. The trial judge did not accept her evidence. Rather, his Honour found that Mr Porter told Ms Yousif that transferring to the PRB division could harm her career but did not threaten to end her career. Because this was a message Ms Yousif "did not want to hear", she experienced Mr Porter's statements as a threat: Yousif at [65]. The trial judge found that Mr Porter's desire to dissuade Ms Yousif from transferring was the result of a series of rational managerial judgments. His Honour noted that Mr Porter's manner of communication was direct and forceful, and therefore likely to be misinterpreted as antagonistic by Ms Yousif. The trial judge did not accept Ms Yousif's claim that Mr Porter had a variety of ulterior personal motives for preventing her from transferring. 13 The trial judge further found that Mr Carney decided not to fill the PRB position for reasons independent of Mr Porter's concerns regarding the potential transfer of Ms Yousif. His Honour concluded that Mr Carney developed a strategic plan to reduce the number of mobile lenders in the PRB division for economic reasons before he became aware of the issues regarding Ms Yousif. According to the trial judge's findings, the position in Melbourne for which Ms Yousif applied was particularly uneconomical because the Bank had vacated premises in Moonee Ponds which housed the PRB team and relocated the team to premises at Bourke Street in the Melbourne CBD: Yousif at [79]-[90]. Mr Carney informed Mr Monopoli of his decision, and Mr Lenehan in turn informed Ms Yousif of the decision not to fill the position: Yousif at [107]. 14 On 7 February 2008, Ms Yousif contacted People Connect, the Bank's call centre for human resources issues. People Connect personnel discussed with Ms Yousif the Appointment to Roles Policy contained in the Bank's Human Resource Reference Manual. This policy provided that all Bank employees could be released from their current positions for transfer to new positions, and that only the Business Unit Head (at the time, Mr Ross McEwan) had the authority to deny an employee "releaseability". Ms Yousif complained to People Connect that Mr Porter had denied her releaseability and acted in a harassing manner. She expressed her desire to access the Bank's Fair Treatment Review ("FTR") process. People Connect personnel explained how to initiate the FTR process, and then asked if Ms Yousif would like the Human Resources Department to review her case. Ms Yousif stated that she would. People Connect personnel then referred the matter to the Human Resources Department: Yousif at [109]-[110]. The trial judge found that "[t]his referral was a different process than the FTR process": Yousif at [110]. 15 Ms Kerrie Blundell, Executive Manager, People Support in the Bank's Retail Banking Services Division, contacted Ms Yousif in response to the referral. The trial judge accepted Ms Blundell's evidence that she explained to Ms Yousif that a written application was necessary to initiate the FTR process. His Honour found that Ms Yousif was aware of the requirements for accessing the FTR process but chose not to utilize it: Yousif at [112]-[114]. 16 On 20 February 2008, Ms Yousif sent an email to the Bank's CEO, Mr Ralph Norris, complaining that Mr Porter had threatened to destroy her career because she attempted to leave the Western region. The email was eventually forwarded to Mr Ross Munn, General Manager Human Resources Retail Banking Services. Mr Munn sought a response from Mr Porter. He then referred the initial email and Mr Porter's response to Ms Blundell and asked that she deal with the matter: Yousif at [115]. 17 Ms Blundell conducted an investigation, during which she interviewed Ms Yousif, Mr Carney, Mr Porter, Mr McKinnon, Mr Gwynne, Mr Lenehan, Mr Monopoli, and a mobile lender whose identity Ms Blundell agreed not to disclose. Ms Blundell prepared a draft report summarizing her investigation and recommendations on 14 March 2008. She discussed the issues and recommendations in the draft report with Mr Carney. She then produced a final report, which differed in several respects from the draft report: Yousif at [117]-[119]. 18 The trial judge found that Ms Blundell "approached her task conscientiously, in an organised and logical way, with thoroughness and without fear or favour": Yousif at [125]. In this regard, his Honour rejected Ms Yousif's submission that Ms Blundell was intimidated by more senior Bank employees: Yousif at [124]. The trial judge also rejected the argument that Mr Blundell's investigation was compromised by the fact that she spoke with Mr Carney regarding the management's view of Ms Yousif's complaints before undertaking the investigation. His Honour noted that Ms Blundell had also spoken with Ms Yousif prior to commencing the investigation, and was thus "exposed to both sides of the story": Yousif at [127]. The trial judge further found, in connection with the changes made to the draft report after Ms Blundell's discussion with Mr Carney, that Ms Blundell "was not influenced by Mr Carney against her own judgment": Yousif at [144]. 19 Ms Yousif considered the Bank's treatment of her in respect of the new role she sought and the ensuing investigation to be so unsatisfactory as to cause an irretrievable breakdown in the employment relationship. She commenced the proceeding in this Court on 30 May 2008. The Bank agreed that the relationship had irretrievably broken down and terminated Ms Yousif's employment on 8 December 2008. 20 Ms Yousif's claims were summarised in the trial judge's reasons for judgment (at [4]-[7]) as follows: In this application Ms Yousif claims damages for breaches of contract arising from the Bank's failure to appoint her to the PRB position, and arising from flaws in the handling of the subsequent investigation. In relation to the failure to appoint Ms Yousif to the PRB position, she claims that the Bank acted in breach of: (a) an express agreement to appoint Ms Yousif to the PRB position. (b) the Bank's Appointment to Roles Policy which was incorporated into her contract of employment. (c) an implied term of good faith, trust and confidence in Ms Yousif's contract of employment. In relation to the alleged flaws in the investigation, Ms Yousif claims that the Bank acted in breach of: (a) the Bank's Fair Treatment Review Policy (FTR) which was incorporated into Ms Yousif's contract of employment. (b) an implied term of good faith, trust and confidence in Ms Yousif's contract of employment. Further, Ms Yousif claims a declaration and / or injunction for an alleged breach by the Bank of the Privacy Act 1988 (Cth).

Reasoning and conclusions 21 Based on his underlying factual findings, the trial judge held that the Bank's failure to transfer Ms Yousif to the PRB position did not constitute a breach of her employment contract, or of an agreement to appoint her to the position. As already noted, his Honour found that no agreement to appoint Ms Yousif was reached. The trial judge also concluded that the Appointment to Roles Policy was not part of Ms Yousif's contract of employment, relying on an express disclaimer of incorporation in the opening section of the Human Resources Reference Manual: Yousif at [96]-[97]. His Honour further held that, even if the Appointment to Roles Policy was incorporated in Ms Yousif's contract, the Bank's failure to transfer her did not violate the policy. His Honour explained that "[n]o occasion arose to deny Ms Yousif releaseability from the Western Region in relation to the PRB position because Mr Carney had decided that the vacancy in PRB was not to be filled. Only if Ms Yousif had a position to go to would any question of releaseability arise": Yousif at [98]. 22 As to Ms Yousif's argument that the Bank breached an implied term of trust and confidence or an implied term of good faith, the trial judge concluded that based on his factual findings, no breaches occurred, assuming such terms existed: Yousif at [105]. According to the trial judge's findings, Mr Carney decided not to fill the PRB position for business reasons independent of Ms Yousif. His Honour reasoned that, under these circumstances, the Bank could not have breached any implied terms, as it was "critical to Ms Yousif's case that she establish that Mr Carney acted together with or at least in accordance with Mr Porter's aim" to destroy her career with the Bank: Yousif at [104]. 23 In view of these findings, his Honour had no need to decide whether or not the law implied terms of trust and confidence, or good faith. Rather, in relation to an implied term of trust and confidence, his Honour noted Australian and English appellate authorities had recognised that a term of trust and confidence is implied by law in contracts of employment and reasoned that "it was appropriate to assume the existence of such a term for present purposes" (emphasis added). As to an implied term of good faith, his Honour noted that there was "a preponderance of authority against the implication of such a term", without saying whether he accepted this authority or making any definitive finding of his own as to the existence of such a term. In view of his Honour's subsequent analysis, it appears that he treated the alleged breaches of implied terms of trust and confidence, and good faith in the same way - by assuming that the terms existed for the purposes of analysis and holding that, even on these assumptions, there were no breaches. 24 The trial judge also held that the Bank did not breach the terms of Ms Yousif's employment because of Ms Blundell's conduct of her investigation. Ms Yousif argued that the Bank breached its FTR Policy, which required that the person conducting the FTR be in a higher role than the subject of the review: Yousif at [122]. In addressing this argument, the trial judge did not explicitly consider whether the FTR Policy was incorporated in Ms Yousif's employment contract. Because the trial judge found that Ms Yousif did not initiate the FTR process, he concluded that the Policy did not apply to Ms Blundell's investigation and therefore no breach of it could have occurred: Yousif at [123]. 25 The trial judge rejected the proposition that the alleged flaws in the investigation process constituted a breach of the implied terms of Ms Yousif's contract, emphasizing that Ms Blundell acted conscientiously and independently. In this regard, his Honour expressed the view that most of the changes in Ms Blundell's final report were not adverse to Ms Yousif, and the critical change - namely, "the deletion of the conclusion that Mr Carney vetoed the appointment of Ms Yousif to the PRB position, and that management was attempting to avoid breaking the Bank's releaseability policy" - was due to confusion and incomplete investigation at the time of the draft report: Yousif at [139]-[145].

Alleged Privacy Act violation 26 The facts underlying Ms Yousif's Privacy Act claim were not contested. On 9 October 2007, Mr Andrew Matthews, another mobile lender with whom Ms Yousif had agreed to share the PFS work, accessed Ms Yousif's CommSee profile on the Bank's computer system. The profile recorded certain of Ms Yousif's personal details. Group Security investigated the incident following a complaint made by Ms Yousif to the Bank. The investigation revealed that Mr Matthews accessed Ms Yousif's profile to obtain her address because he had been invited to her home to review certain files and had lost the address: Yousif at [146]-[147]. 27 The trial judge declined to grant injunctive or declaratory relief on the basis that these remedies were discretionary and the circumstances did not "call for the intervention of the Court": Yousif at [152]. In support of his exercise of discretion, his Honour cited the facts that the Bank investigated the incident, that it provided an explanation to Ms Yousif, that the circumstances of the violation did not involve fraud, and that Ms Yousif did not suffer any loss: Yousif at [151].

SUBMISSIONS ON APPEAL 28 Ms Yousif pressed thirteen grounds on appeal, although some were essentially the same. Ground 1: Ms Yousif argued that the trial judge erred in finding that no agreement for appointment to the PRB position was concluded in her telephone conversation with Mr Lenehan on 7 January 2008. Ground 2: Ms Yousif argued that the trial judge erred in failing to conclude that Mr Porter threatened to destroy her career in Mr Porter's discussion with her on 23 January 2008. Grounds 3, 5 and 7: By these grounds, Ms Yousif maintained that the trial judge erred in concluding that Mr Carney decided not to fill the PRB position for business reasons independent of the issues surrounding Ms Yousif's attempt to transfer. Ground 4: Under this ground, Ms Yousif submitted that the trial judge erred in concluding that the Appointment to Roles Policy was not incorporated in her contract of employment. Ground 6: This ground was to the effect that the trial judge erred in concluding that there was a preponderance of authority against the implication of a term of good faith in employment contracts. (As noted above, although the trial judge made the challenged observation, he did not draw any final conclusion regarding the implication of a good faith requirement.) Ground 8: This ground was to the effect that the trial judge erred in finding no breach of the term of trust and confidence, assuming the term existed. Ground 9: This ground was to the effect that the trial judge erred in finding that Ms Yousif did not invoke the FTR process. Grounds 10 and 11: These grounds related to Ms Blundell's investigation. Ground 10 was to the effect that the trial judge erred in concluding that Ms Blundell was not intimidated by more senior employees, and, more generally, that her investigation was not flawed. (Ms Yousif also argued that flaws in the investigatory process constituted a breach of the implied terms of trust and confidence, and good faith: see Grounds 6 and 8). Ground 11 was that the manner in which the changes to Ms Blundell's draft report were introduced constituted a breach of the implied term of trust and confidence (and see also Ground 8). Ground 12: This ground supported Ms Yousif's submission that the trial judge erred in declining to make a declaration concerning the Privacy Act violation. Ground 13: This ground was that the trial judge had erred in failing to address Ms Yousif's pleadings and submissions regarding the Bank's failure to make payments due to her in lieu of a notice of termination. 29 Grounds 1, 2, 3, 5, 7, 9, 10 and 11 are predominantly challenges to the trial judge's findings of fact (including as to credit). Ground 4 can also be regarded as primarily a factual challenge, whilst including some legal considerations. Ground 6 is primarily a question of law, whilst grounds 8, 12 (also involving an exercise of discretion) and 13 (involving an alleged omission) involve questions of fact and conclusions of law. 30 The reasonsfirst address most of Ms Yousif's challenges to his Honour's findings of fact before considering remaining issues of law. Grounds 4, 6, 8, and 11 are considered subsequently under the heading "Incorporated and Implied Terms". Grounds 12 and 13 are considered separately at the end of these reasons.

A: Overriding observation 31 Ms Yousif's submissions in respect of her challenges to the trial judge's findings of fact adopted the same general approach. The submissions first identified the factual finding said to be in error and then contended that the finding was not reasonably open to the judge on the evidence. The submissions thereafter considered the available evidence supporting the contrary conclusion to that reached by the trial judge. 32 Despite the thoroughness of the submissions on Ms Yousif's behalf in respect of these alleged factual errors a number of fundamental difficulties preclude their acceptance. As the Bank's submissions demonstrated, the trial judge's principal factual findings were in part founded upon an assessment of the credit of various witnesses, as follows: (1) In respect of Ms Yousif: the trial judge considered that Ms Yousif was not prepared to make any concessions about her own conduct and engaged in "an extreme and exaggerated response which appeared designed to bolster her own denials": Yousif at [35]. His Honour considered that Ms Yousif was willing to rely on a "feeble" basis to make a serious allegation against a co-worker thereby disclosing her "high level of determination to vanquish any opposition to her own success": Yousif at [74]. His Honour characterised Ms Yousif's approach to making sales as an obsession leading her to give evidence about many issues which was not consciously false but coloured by her own misperceptions and "exaggerated sensitivity", resulting in evidence that was unbalanced and "highly exaggerated": Yousif at [75]-[77]. (2) In respect of Mr Carney: the trial judge considered Mr Carney to be "an impressive witness". The trial judge also found that Mr Carney was remote from any direct involvement in the issues involving Ms Yousif and "came across as a professional and experienced high level manager with his own ideas about the issue which arose": Yousif at [89]. (3) In respect of Mr Porter: the trial judge considered that Mr Porter was direct, frank, open and quite forceful and, like Mr McKinnon and Mr Gwynne, he approached Ms Yousif in "a professional, fair minded and moderate way". Mr Porter also acted on the basis of "rational conclusions" based on his experience as a "skilled manager": Yousif at [77]. (4) In respect of Mr Monopoli: the trial judge found Mr Monopoli to be an "impressive witness". Mr Monopoli "came across as an astute and strategic manager who was aware of and sensitive to the potential to create conflict between departmental managers in the Bank": Yousif at [49]. (5) In respect of Mr Gwynne: the trial judge considered that Mr Gwynne, like Mr Porter and Mr McKinnon, approached Ms Yousif in a "a professional, fair minded and moderate way" and was "serious minded about Ms Yousif's welfare and tried to adopt a sensitive way to manage the issues which arose": Yousif at [77]. (6) In respect of Ms Blundell: the trial judge described Ms Blundell as "well qualified both academically and by experience". His Honour found that she had approached her investigative task "conscientiously, in an organised and logical way, with thoroughness and without fear or favour": Yousif at [125]. Ms Blundell was "a convincing witness" who "had a clear view of her function, namely, to conduct a probing enquiry": Yousif at [144]. 33 A primary difficulty for Ms Yousif's case on appeal is that we are bound by the decision of the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. In common with Fox v Percy, the appeal in the present case is by way of rehearing (ss 24(1)(a) and 27 of the Federal Court of Australia Act 1976 (Cth); see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [75]). Fox v Percy establishes that the fact that a trial judge's decision is partly based on the credibility of witnesses does not relieve an appellate court from its duty to discharge its functions on appeal. Nevertheless, in such a case, allowance must be made for the fact that the trial judge has advantages not shared by the appellate court. The trial judge has seen the witnesses and had the evidence presented in the context of the case as a whole, for which a transcript is not an adequate substitute. For this reason an appellate court will not interfere in a factual finding based on the credit of witnesses unless the trial judge's finding is "glaringly improbable" or cannot rationally be reconciled with incontrovertible facts, uncontested testimony or compelling inferences: Fox v Percy 214 CLR at 124-129 [20]-[31] per Gleeson CJ, Gummow and Kirby JJ; 133 [48], 138-9 [65]-[67], 147 [91]-[93] per McHugh J, citing, amongst other decisions, Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 at 844 and Abalos v Australian Postal Commission (1990) 171 CLR 167. 34 Many of the factual findings of the trial judge which Ms Yousif challenges in this appeal are largely based on an assessment of the witnesses' credit. Consistent with the principles of appellate review discussed above, those findings cannot be set aside on appeal merely by identifying evidence which, if accepted, was capable of supporting contrary findings. Nor does that identification establish a sufficient basis for a submission that the trial judge's findings were not reasonably open on the evidence. The sustainability of the grounds of appeal needs to be assessed in this principled context.

Ground 1: concluded agreement to appoint Ms Yousif to PRB position 35 Ms Yousif argued that the trial judge erred in concluding that Mr Lenehan did not extend her an unconditional offer for the PRB position. There was a difficulty with this submission from the beginning. As the Bank submitted, Ms Yousif pleaded that the agreement was made with Mr Lenehan on 14 January 2008: see paragraph 17 of the fourth further amended statement of claim, which was not the case she finally sought to make at trial and on appeal. 36 The evidence underlying the trial judge's finding as to this issue is described in his reasons at [44]-[47]. These paragraphs are as follows: On about 7 January 2008 a position was advertised on the Bank's intranet. Ms Yousif applied. Mr Lenehan then arranged to meet Mr Gwynne to see if Ms Yousif was suitable. Mr Gwynne did not mention any problems with Ms Yousif, and as a result Mr Lenehan interviewed Ms Yousif. Mr Lenehan described the next event in his affidavit as follows: I rang Linda and said that I would be offering her a job on the same terms and conditions, but that I needed to speak to Ian [Gwynne] again first. Mr Lenehan then met with Mr Gwynne who then told him that there were a number of behavioural issues with Ms Yousif. Mr Lenehan was annoyed that he had not been told this at the first meeting with Mr Gwynne. Mr Lenehan then reported the situation to Mr Monopoli to see if Mr Monopoli had spoken with Mr Porter. Thereafter he left the matter with Mr Monopoli and had no further contact in relation to it. Mr Lenehan was interviewed by Ms Blundell in the course of her investigation. Her notes recorded: He made an offer - while his memory is a little hazy, he believes it was unconditional / without qualification. The offer was verbally accepted. The qualification (ie first speak to your current management about issues there) may have occurred after the offer. In cross examination Mr Lenehan agreed that this note reflected his recollection of the events. Mr Lenehan also said in cross examination that the three to four week period before Ms Yousif could start the new position was to allow a letter of offer to be prepared. The offer was not confirmed until put in writing and, as best Mr Lenehan could recall, this requirement would have been discussed with Ms Yousif. Later in cross examination Mr Lenehan again explained what he told Ms Yousif in the final phone call as follows: I told her that I'd be offering her the job and then I'd just speak to Ian again first to make sure before the paperwork gets - start that [sic - started]. 37 The trial judge's analysis of this evidence appears in paragraphs [51]-[53] of his reasons: In his oral evidence it was clear that Mr Lenehan did not regard the appointment of Ms Yousif as finalised at the time of his phone call to her. The offer was subject to him speaking to Mr Gwynne. It was also subject to a formal written offer being prepared and a contract signed. The requirement that he speak to Mr Gwynne was a consistent factor recorded in his affidavit and also in the notes of Ms Blundell. Mr Lenehan had worked for the Bank for 36 years. He knew from Ms Yousif that there were issues with her managers and he had been at the meeting when Mr Monopoli said that she should try to sort out those issues before any transfer to PRB. Ms Blundell's note records that Mr Lenehan's recollection as to whether the offer was subject to speaking to Ms Yousif's managers was a little hazy. The note resulted from a phone conversation and is her distillation of his comment. Both these circumstances render the evidence potentially less reliable than the oral evidence given to the Court. After careful consideration, I am satisfied from his evidence in Court that Mr Lenehan recalled telling Ms Yousif that the appointment was subject to him speaking to Ms Yousif's managers, and also to a formal offer being processed in accordance with the Bank's procedures. I do not accept Ms Yousif's evidence that she was appointed to the PRB position. She was determined to leave the Western Region and was not prepared to let anything stand in her way. When Mr Lenehan told her of the conditions under which she would be appointed, she interpreted the matter as settled. Her understanding was clouded by her overwhelming desire to shift to PRB. Her recollection of the events reflected what she wanted to hear rather than what was said. I find on the balance of probabilities that there was no concluded agreement by the Bank to appoint Ms Yousif to the PRB position at the time of Mr Lenehan's phone call. He foreshadowed that an offer would be made after speaking with Mr Gwynne. The offer would be in writing and an agreement would be made when a formal contract was signed. None of these events happened. Instead Mr Carney became actively involved. 38 Ms Yousif submitted that the conclusion that no offer was made was not reasonably open to the trial judge on the evidence. She argued that her evidence was that the offer was unconditional, as was Mr Lenehan's evidence; that Ms Blundell's notes reflected an unconditional offer; and that Mr Lenehan's need to speak to Mr Gwynne was merely a formality and a matter of courtesy to Mr Gwynne. The difficulty for Ms Yousif is that these matters represent only part of the evidence before the trial judge. 39 Mr Lenehan testified at the trial that he recalled that, consistent with Ms Blundell's notes, his offer to Ms Yousif was unconditional and without qualifications and was verbally accepted. Regarding the need to speak to Mr Gwynne, however, Mr Lenehan testified as follows: [Mr Millar (counsel for Ms Yousif) cross-examining] … So you went ahead and interviewed her? [Mr Lenehan] Yes. [Mr Millar] And then after that you phoned her and offered her the job on the same terms and conditions and she accepted the appointment? [Mr Lenehan] Yes. [Mr Millar] Yes? [Mr Lenehan] And I was going to follow up with Ian [Gwynne]. [Mr Millar] You were going to follow up with Ian and then you had a further discussion and he had - did he say that there were behavioural issues? [Mr Lenehan] Yes. He said, "There's issues with Linda." . . . [Mr Millar] … Now, you say that you rang and made the job offer, same terms and conditions; Ms Yousif accepted that. Now, what did you go on to say about speaking to Mr Gwynne, because you'd already spoken to him [before interviewing Ms Yousif]? [Mr Lenehan] That was - I was going to speak to Ian again to tell him that I was going to appoint one of his staff. [Mr Millar] Yes, but you told Ms Yousif that? [Mr Lenehan] Yes, I told her that I'd be offering her the job and then I'd just speak to Ian again first to make sure before the paperwork gets [started]. [Mr Millar] So really that - going back to Ian Gwynne was largely another courtesy, having told him that you were going to interview someone and he didn't tell you about any issues that arose; you'd had the interview; liked what you saw; decided to make an appointment and you were going to get back to him to tell him where things had reached? [Mr Lenehan] Correct. 40 Mr Lenehan's testimony regarding the telephone conversation was ambiguous. Portions of his testimony indicated that Mr Lenehan believed an offer and acceptance had occurred. Other portions indicated that he communicated to Ms Yousif that further steps needed to be completed before any offer was finalized. The trial judge cited Mr Lenehan's statement that "I told her that I'd be offering her the job and then I'd just speak to Ian again first to make sure before the paperwork gets [started]". This statement indicated (as the trial judge noted) that Mr Lenehan conveyed the likelihood of a future offer - which he would be extending after "mak[ing] sure" with Mr Gwynne - rather than a final offer. 41 Mr Lenehan's responses to questions put to him by the trial judge also supported the characterization of the telephone conversation in his Honour's reasons: [Mr Millar] Now, Ms Yousif says that when you - when the position was offered to her and she accepted it that you then spoke about when she could start in three or four weeks. Is that --- ? [Mr Lenehan] The normal time is four weeks. [Mr Millar] Four weeks? [Mr Lenehan] Once the paperwork is completed and - - - [His Honour] What paperwork is that, Mr Lenehan? [Mr Lenehan] That would be the letter of offer or contract offer; at that stage i[t] was verbal. [His Honour] And when is the deal done? Does it require the paperwork to be completed? [Mr Lenehan] Yes. A letter of offer or contract needs to be presented to the applicant who's been successful and once they've been presented with that and they do the - complete the paperwork and come back to me, I'll - - - [His Honour] But before the paperwork is completed is the position filled or not? Is there an agreement reached or is it dependent on the paperwork being completed? [Mr Lenehan] Well, it would be dependent on the paperwork being completed, yes. [His Honour] And was that factor discussed with Ms Yousif; the need for the paperwork to be completed? [Mr Lenehan] Yes. . . . [His Honour] But did you discuss with her that the deal needed to be confirmed, if you like, by the completion of the paperwork? [Mr Lenehan] Well, I - from what I can recall that would be correct, yes. 42 Whether Mr Lenehan or Ms Yousif believed an offer to have occurred is not determinative of whether the particular proposal put to Ms Yousif by Mr Lenehan was in fact a legally effective offer. Under the "objective theory of contract", as the High Court explained in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, what matters is not what the potential parties to a contract subjectively believe but "what each party by words and conduct would have led a reasonable person in the position of the other party to believe": Toll 219 CLR at 179. Accordingly, whether a particular proposal constitutes an offer, such that acceptance would result in the formation of a contract, is a question of fact: see, e.g., Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566 at 591 [88]. 43 Applying these principles, we are not persuaded that the trial judge erred in concluding that no offer was made during the telephone conversation between Mr Lenehan and Ms Yousif. In her written and oral submissions, Ms Yousif relied primarily on Mr Lenehan's statements, in court and to Ms Blundell, that he had made, and Ms Yousif had accepted, an offer that was "unconditional". While this may be an apt description of Mr Lenehan's understanding of what occurred, it says little about the actual words exchanged between Mr Lenehan and Ms Yousif. Ms Yousif's testimony regarding the conversation was also couched in general terms and did not address the specific language used. The only specific details of the conversation that emerge from the evidentiary record are that Mr Lenehan said that he needed to speak with Mr Gwynne and that paperwork needed to be completed. 44 These, of course, were the aspects of the evidence on which the trial judge focussed, appropriately in our opinion. Under the circumstances, whether an offer was made turned on how a reasonable person in the parties' position would have interpreted Mr Lenehan's reference to the need to contact Mr Gwynne and complete paperwork. The trial judge accepted Mr Lenehan's testimony that he told Ms Yousif the offer had to be "confirmed" by paperwork, and that he had to "make sure" with Mr Gwynne. The need to "confirm" and "make sure" in respect of an offer would have led a reasonable person in Ms Yousif's position to understand that additional steps needed to be taken before an offer was finally made. Mr Lenehan's subjective impression that the need to speak to Mr Gwynne was a "formality" does not change the manner in which an objective person would perceive the requirement. 45 The trial judge's finding involved a careful assessment of the whole of the evidence, including the credibility of Ms Yousif's evidence given what the trial judge described as her "overwhelming desire to shift to PRB" (at [52]) and having regard to the governing legal principles. In the face of all the evidence, Ms Blundell's file note provides no proper basis for appellate intervention. Nor does the submission that the Bank had a practice of confirming an appointment in writing after the appointment had taken effect. 46 Ms Yousif relied on her past experience that she had begun her original position before paperwork was completed. Transfer to a new division, however, different from Ms Yousif's earlier experience, and Mr Lenehan had referred to an additional requirement that had not affected her before - the need to speak to Mr Gwynne. Further, there was no evidence that Ms Yousif's prior experience was typical of the Bank's regular practice. Considering the whole of Mr Lenehan's testimony, we are not persuaded that his Honour erred in finding that there was no offer extended to Ms Yousif for the PRB position. 47 We accept that, as Ms Yousif contended, the need to complete paperwork was not specifically put to her and arose subsequently at the time of Mr Lenehan's cross-examination. The issue whether any condition was placed on any offer extended by Mr Lenehan during the telephone conversation, however, clearly raised with Ms Yousif. In cross-examination, counsel put to her that the offer was subject to Mr Lenehan speaking to Mr Gwynne. Ms Yousif denied this, stating that "[t]here was no condition not so ever with this offer [sic]" and that the offer was "absolutely unconditional". Under the circumstances, the trial judge's reliance on the need for paperwork and the need to speak to Mr Gwynne did not result in any relevant unfairness to Ms Yousif.

Ground 2: a threat by Mr Porter to end Ms Yousif's career? 48 Ms Yousif argued that it was not reasonably open to the trial judge to find that Mr Porter had not threatened to end her career, as she alleged. Ms Yousif's evidence was that Mr Porter told her "[i]f you are going to leave my Region, I want you to circle today's date in the calendar and your career will finish here". Ms Yousif contended that her evidence was corroborated by part of Ms Blundell's interview notes of her discussion with Mr Porter to the following effect: Richard said to her words to the effect "just make sure you are doing the right thing here; you get a lot of support from the region; think about if you are running away from something or running to something; cameron [sic] gives you referrals; is [sic] she was right for the HVC customer base? Look at the date - it is an important - don't destroy everything you have built up". At the end of the conversation he said: "I'm almost pleading with you to stay; ok you're releasable and you can go to PRB". (Emphasis added.) 49 Ms Yousif also submitted that Ms Blundell's notes then refer to a call from Mr Porter to Mr Carney on 23 January 2009. Mr Carney decided to remove the PRB position one day after this discussion. This, so Ms Yousif argued, showed that Mr Porter's reference to the date made sense only if it is understood as conveying an implied threat to ensure Ms Yousif did not obtain the PRB position. 50 Mr Porter denied making the statement attributed to him by Ms Yousif. The essence of his affidavit evidence on this point was that, during the conversation in question, he told Ms Yousif that she would not be successful in the PRB position and that she should be careful not to destroy the successful career she had developed in the Western Region. This was consistent with Ms Blundell's notes. At the hearing, Mr Porter testified that he said "nothing like" the statement attributed to him by Ms Yousif, and that he did not remember telling Ms Blundell that he asked Ms Yousif to look at the date. 51 Ms Blundell's evidence cannot be characterised as corroborating that of Ms Yousif. The notes do not record a threat of the kind described by Ms Yousif. Ms Yousif said that Mr Porter threatened to finish her career at the Bank if she transferred. Mr Porter said that he outlined the disadvantages of transferring and warned Ms Yousif not to destroy the business she had built up. There is a significant difference between these two versions of the conversation. Ms Blundell's note is consistent with Mr Porter's recollection. As recorded by Ms Blundell, Mr Porter's communication does not convey the threat perceived by Ms Yousif. 52 The trial judge, who had the benefit of seeing both witnesses give evidence, considered that Mr Porter acted "professionally as a manger who saw a responsibility to both Ms Yousif and his employer to ensure that the considerations relevant to the transfer were openly exposed for deliberation": Yousif at [65]. While the trial judge thought the communication was probably more robust than Mr Porter recollected, his Honour was satisfied that Ms Yousif had come to believe her version of events out of a "determination to show that she was wronged by the Bank": Yousif at [65]. By this means, his Honour concluded that Ms Yousif had "translated the opinions expressed by Mr Porter which questioned the rationale for her wishing to transfer into a threat by Mr Porter to ensure that the transfer would not be granted and her career with the Bank would be ended": Yousif at [65]. 53 This analysis is consistent with the whole of the evidence and derived, in part, from the trial judge's observations of the witnesses as they gave evidence. It is apparent that these conclusions are related to the trial judge's general assessment of Ms Yousif as a person of "exaggerated sensitivity", resulting in her giving evidence that was unbalanced and "highly exaggerated": see Yousif at [75]-[77]. Ms Yousif's argument constitutes a direct challenge to the trial judge's finding of credit in relation to the different versions of the conversation presented by Ms Yousif and Mr Porter. As such, it falls within the principles set forth in Fox v Percy 214 CLR 118. Applying those principles, we conclude that the trial judge did not err in preferring Mr Porter's account of his statements to Ms Yousif. Nothing in the trial judge's reasons indicates error capable of sustaining appellate intervention.

Grounds 3, 5 and 7: Mr Carney's decision not to fill the PRB position; no occasion to deny Ms Yousif releasability; Mr Carney acted for strategic reasons? 54 Ms Yousif submitted that the trial judge erred in finding that Mr Carney decided not to fill the PRB position for business reasons unrelated to Ms Yousif. Ms Yousif argued that this finding was not reasonably open chiefly because it was inconsistent with Mr Porter's evidence and the fact that the position was being advertised at a time when Mr Carney was allegedly considering that he would not fill the vacant position. Ms Yousif also argued that the evidence before the trial judge supported her position because Mr Carney did not tell Mr Porter of his decision not to fill the PRB position until after Mr Porter mentioned the issues relating to Ms Yousif to Mr Carney; because Mr Carney did not mention the decision in his conversation with Mr Gwynne about the appointment of Ms Yousif; because there was no paperwork reflecting Mr Carney's decision; because Mr Porter's desire to prevent Ms Yousif from transferring provided a motive for Mr Carney's decision; and because the PRB position was later re-advertised in February 2008. 55 Because we have rejected Ms Yousif's challenge to the trial judge's finding that Ms Yousif was not offered the position, this submission is largely irrelevant to the outcome of this appeal. If Ms Yousif was never offered the PRB position, there can be no argument that this decision was made to avoid appointing Ms Yousif to the position. 56 Ms Yousif's written submissions on this issue disclose at least one reason for rejecting them. Although framed as a claim that the finding was not reasonably open, the submissions assert no more than that the finding "sits uneasily" with Mr Porter's evidence and the decision to advertise the position on 1 February 2008 following a "disagreement with the release of the candidate". The fact that a finding sits uneasily with some evidence (if that be the fact) does not warrant appellate intervention where considerations of credit weighed heavily in the balance, as in this case. 57 In any event, the trial judge's finding is readily reconcilable with Mr Porter's evidence. Mr Porter's evidence, as the trial judge found at [85], showed that he was subordinate to Mr Carney in the decision-making process. Mr Carney's evidence, as summarised by the trial judge (at [86]-[89]), disclosed his independent thought processes about the strategic issues. While the trial judge accepted (at [88]) that it was unfortunate that the particular position was advertised at a time when Mr Carney was contemplating a different strategy, the whole of the evidence provided ample support for the finding made that Mr Carney's decision had nothing to do with Ms Yousif. Furthermore, the trial judge was impressed with Mr Carney as a witness and accepted his explanation for his decision not to fill the position. In all the circumstances, the matters cited by Ms Yousif do not provide a sufficient basis to disturb the trial judge's finding that the reasons given by Mr Carney constituted the true explanation for his action. 58 Because the trial judge was satisfied that Mr Carney had decided not to fill the PRB position for strategic reasons unconnected to Ms Yousif's circumstances, it followed that Ms Yousif's claim (see ground 5) that the Bank breached its Appointment to Roles Policy (providing that all internal candidates were releasable from their current role) could not succeed. Ms Yousif's further submission that, even if nominally a strategic decision, the Bank in substance decided not to appoint her to the PRB position in breach of the Appointment to Roles Policy cannot be sustained in the face of the trial judge's findings about Mr Carney's decision. Nothing in the Appointment to Roles Policy (or, for that matter, the Fair Treatment Policy) could or did purport to limit the Bank's capacity to make strategic decisions about its business, including implementing a policy of reducing mobile lenders in the PRB section having regard to the range of considerations which the trial judge accepted weighed on Mr Carney's mind at the relevant time. 59 Thomson v Orica Australia Pty Limited (2002) 116 IR 186; [2002] FCA 939, to which Ms Yousif referred in submissions, does not support ground 5. The outcome in Thomson v Orica turned on factual findings that that the company had acted in serious breach of its own employment policies. The same cannot be said of the present case, given the trial judge's finding (which we have found was open to him) that the PRB position was not filled for reasons unconnected to Ms Yousif's circumstances. 60 In support of ground 7, Ms Yousif repeated her submissions in support of appeal grounds 3 and 5. Ground 7 also fails for the reasons we have just stated. Ground 9: FTR Process 61 Ms Yousif submitted that the only finding open on the evidence was that she had initiated the FTR process; and that the Bank was bound to follow the policy regulating that process but failed to do so. The trial judge dealt with this issue in some detail: see Yousif at [107]-[115] and [121]-[124]. At [114]-[115] his Honour concluded that: Ms Blundell then explained to Ms Yousif that Ms Yousif could invoke the FTR process. To commence the process it was necessary to complete an application form outlining the issues in contention. Ms Blundell discussed this requirement for initiating the FTR process with Ms Yousif. I accept Ms Blundell's evidence that Ms Yousif was made aware of the way to initiate the FTR process. I find that Ms Yousif chose not to do so. Instead, on 20 February 2008 Ms Yousif sent an email to Mr Norris, the CEO of the Bank …. 62 Ms Yousif submitted that the evidence compelled contrary findings because, first, it was not put to her that she had chosen not to initiate the FTR process. Second, the form retained by the Bank records the relevant category of inquiry as "Fair Treatment Review". Third, the same form records that Ms Yousif wanted to "access the FTR process". Fourth, the Bank's Acting General Counsel described the investigation as having been undertaken through the Bank's "Fair Treatment Review Process". 63 The Bank's submissions in support of the trial judge's reasoning are, however, compelling. The Bank's Fair Treatment Policy contemplated at least two review options - an "In-Line Review" and an "Out-of-Line Review". Only the latter was required to be conducted by a "Fair Treatment Facilitator" more senior than the subject of the investigation. To commence an "Out-of-Line Review" the policy required an employee to speak to a "Fair Treatment Contact" and complete an "Issues Statement". The trial judge found that Ms Yousif had not completed the "Issues Statement": Yousif at [114]. The log of Ms Yousif's inquiry in the form retained by the Bank cannot be the "Issues Statement" as the inquiry raised no issue about Mr Carney's conduct that was central to Ms Yousif's pleaded case: see paragraphs 36E to 36M of the fourth further amended statement of claim. In any event, the form, read as a whole, does not support a finding that Ms Yousif initiated the FTR process. The inquiry was logged on 7 February and closed on 8 February 2008 apparently on the basis that Ms Yousif had been informed of the steps she needed to take to commence the FTR process and the human resources department could provide her with support and assistance. 64 Further, Ms Yousif's evidence was that she was advised that she could commence the FTR process and that she wrote to Ralph Norris, the Bank's Chief Executive Officer: see paragraphs 29 to 32 of Ms Yousif's affidavit of 30 May 2008 and paragraph 77 of her affidavit of 11 October 2008. What she failed to do, however, according to the trial judge's findings, was complete the requisite documentation to initiate the FTR process. Ms Blundell's evidence was that she conducted her investigation as if it were a review under the FTR policy - thus indicating that she was not in fact conducting such a review: see paragraph 23 of Ms Blundell's affidavit of 20 August 2008. This is consistent with Ms Blundell's oral evidence as recorded by the trial judge in [123] of his reasons for judgment as follows: I'm interested, Ms Blundell, in what you say in paragraph 22 about the allegations being made against Mr Porter and the way that the fair treatment officer is normally selected. You were aware by this time that you were, in effect, inquiring into the decisions of a number of people, including Mr Carney. He was, what, two levels removed from you? --- That's right. And is that normal practice? --- For a fair - for investigation, yes. For a fair treatment review, no. And what were you conducting? --- I was conducting an investigation, however, I was using processes that were akin to the fair treatment review process. Did this process ever get to a fair treatment review? --- No. 65 In this context, the submission that it was not reasonably open to the trial judge to find that Ms Yousif did not commence the FTR process cannot be accepted. Ground 10: Ms Blundell not intimidated by senior management 66 Ms Yousif's appeal grounds 10 and 11 addressed alleged flaws in Ms Blundell's investigation. 67 Ms Yousif identified a variety of factors which she argued resulted in a compromised and unfair investigation. First, she asserted that, even if there was no formal requirement that the investigator be at least as senior as Mr Carney (because the investigation was not pursuant to the FTR process), Ms Blundell did not act independently because she was intimidated by more senior management. Next, she argued that Ms Blundell was biased because she had been exposed to the Bank's version of events prior to beginning the investigation. Finally, she argued that it was unfair to provide Mr Carney with an opportunity to comment upon Ms Blundell's draft report, and that changes in the final version reflected Mr Carney's influence. She submitted that the trial judge erred in rejecting these contentions. 68 The trial judge concluded that Ms Blundell was "a convincing witness" whose final report "reflects a considered view formed after she undertook a conscientious enquiry"; and that she "was not influenced by Mr Carney against her own judgment"; conducted her investigation "without fear or favour"; and "was not deflected by the hierarchical positions of the interviewees": Yousif at [125]. In this regard, his Honour also noted that Ms Blundell was qualified by academic background and work experience for the task. Ms Yousif did not dispute the trial judge's conclusions regarding Ms Yousif's background qualifications on appeal. 69 The trial judge's findings were supported by the evidence. Ms Blundell said she felt no discomfort about independently reviewing Mr Carney's conduct despite his seniority to her in the Bank's hierarchy. When asked about the terms of her draft report, Ms Blundell stated that she felt free to test propositions about the conduct of the Bank's senior management. Further, and as the Bank submitted, it was not put to Mr Carney that he intimidated Ms Blundell into altering her report. Mr Carney's evidence was clear. He considered it his responsibility to ensure that his input was correctly reported and recorded. The changes to the draft report, for the reasons given in respect of ground 11 below, do not support Ms Yousif's contentions about Ms Blundell's investigation. Against this evidentiary background, the trial judge's conclusion that the investigation process was not flawed cannot be disturbed on appeal. 70 In addition, the trial judge's finding that Ms Blundell was not intimidated was strongly influenced by Ms Blundell's in-court evidence and the impression she created in the witness box. His Honour cited the following portions of Ms Blundell's testimony: So you knew that in pursuing this investigation as fair treatment review, or applying policy, you were going to become involved in discussions with Mr Carney, and possibly reviewing a decision that he had taken; you would agree with that? - Yes. And that didn't make you at all uncomfortable, the fact that he was two levels in the hierarchy above you, that you were potentially going to have to bring an independent eye to the decisions that he had taken? - No. No. It didn't make you uncomfortable because you were confident that you would have the fortitude, as an independent reviewer, to withstand any pressure that he, in a senior role, might bring to bear? - Yes. … Now, you were certainly, in your position, not in a position to ring Mr Carney and say: well, you've got it wrong, you haven't told me full story, anything like that? You were in no real position to do that because he is in such a senior role? - No, it's part of my job to do that. 71 The trial judge's conclusion regarding Ms Blundell was entirely based on his findings of credit. This followed from the fact that Mr Carney's seniority gave rise to a possible inference that Ms Blundell was intimidated, which inference fell to be tested in the cross-examination of Ms Blundell. Thus, Ms Yousif's challenge to the trial judge's conclusion falls squarely within the principles of Fox v Percy, and the Court should not disturb it unless it is "contrary to compelling inferences": see 214 CLR at 128 [29], quoting Chambers v Jobling (1986) 7 NSWLR 1 at 10. 72 Although not couched in the language of Fox v Percy, Ms Yousif's submissions in oral argument on the appeal could be taken as arguing that the undisputed fact of Mr Carney's seniority gave rise to a compelling inference that Ms Blundell was necessarily intimidated, her contrary testimony notwithstanding. We would reject this argument. First, as noted, Ms Blundell's qualifications to conduct the investigation were not impugned. Internal grievance investigation procedures of this kind are accepted in the workplace. It is important to recognize that, although Ms Blundell was less senior than Mr Carney, she was not acting on her own behalf but on the authority of more senior employees. The event that triggered the investigation was Ms Yousif's email to the CEO; this email was forwarded to the head of the human resources department in Sydney, and then to Mr Munn, who assigned Ms Blundell to the investigation. Whilst their relative seniorities vis-ŕ-vis Mr Carney were unclear, Ms Blundell's evidence was that Mr Munn and Mr Carney were part of a "separate reporting line". Although it is doubtful that the Bank's CEO had any personal involvement in the matter, it is nonetheless apparent that there was significant institutional authority behind Ms Blundell's investigation. An employee with Ms Blundell's experience would be likely to be mindful of this circumstance and, as a result, able to deal appropriately with possible intimidation. 73 Ms Yousif's other point regarding the investigation - that the investigation was compromised because Ms Blundell had spoken to Mr Carney and obtained the Bank's perspective on Ms Yousif's complaints prior to beginning her task - is unavailing for the reasons stated by the trial judge: see Yousif at [126]-[127]. Simply put, Ms Blundell had been exposed to Ms Yousif's side of the story as well as the Bank's before starting her investigation. Ground 11: the changes to Ms Blundell's report 74 Ms Yousif's argument regarding changes to Ms Blundell's draft report requires a more detailed analysis. Ms Blundell prepared a draft report on 14 March 2008. She discussed certain aspects of the draft report with Mr Carney before issuing a final report on 31 March 2008. As the trial judge noted, the evidence was unclear as to whether Ms Blundell provided Mr Carney with a written copy of the draft report or simply discussed it with him orally. In cross-examination, Ms Blundell described her motivation for speaking to Mr Carney as follows: . . . I set up a time to speak to [Mr Carney] and I talked him through the recommendations that I was making to see if he was going to support those or not because I needed to know that if I was going to present [the final report with recommendations] to Linda [Yousif]; whether I'd made a recommendation that wasn't going to be implemented. And also I wanted to challenge him around this releaseability issue and clarify with him his view of what had happened here. She stressed that the only substantive issue she discussed with Mr Carney was releaseability 75 The trial judge accepted Ms Blundell's evidence regarding her reasons for speaking to Mr Carney. For the reasons discussed above in relation to the question of intimidation, Ms Yousif has not shown that the trial judge erred in this regard and in rejecting Ms Yousif's allegation that, in effect, Ms Blundell met with Mr Carney to give him an opportunity to edit out any conclusions unfavourable to the Bank. Similarly, Ms Yousif has not shown any error in his Honour's finding that the changes introduced in the final report were Ms Blundell's independent conclusions rather than impositions by Mr Carney. 76 The final report differed in several respects from the draft report. The trial judge discussed changes to two sections. First, he discussed changes to the section addressing Ms Yousif's allegations of bullying and harassment by Mr Porter. His Honour concluded that "[o]n the whole, the changes to this section from the draft report to the final report do not reflect any significant dilution or deletion": Yousif at [133]. On appeal, Ms Yousif did not focus on these changes. Upon examination, we consider that the trial judge's characterization of the changes was accurate. 77 Second, the trial judge considered changes to the section regarding the Bank's failure to appoint Ms Yousif to the PRB position. His Honour summarized the changes (at [138]-[139]) as follows: A comparison of the two stages of the report reveals that several of the references contained in the draft report which counsel for Ms Yousif alleged were deleted or diluted in the final report were not, in fact, deleted or diluted. Reference to the fact that Mr Carney made the final decision is common to both versions of the report. Similarly, the conclusion of Ms Blundell that the decision was made after an offer of the PRB position was communicated to Ms Yousif, and the conclusion of Ms Blundell that the full basis of the decision was not communicated to Ms Yousif appeared in both versions of the report in essentially the same form. The critical change between the two stages was the deletion of the conclusion that Mr Carney vetoed the appointment of Ms Yousif to the PRB position, and that management was attempting to avoid breaking the Bank's releaseability policy. In place of these conclusions was the conclusion that Mr Carney had determined not to fill the PRB position as part of a review of the structure of PRB and the use of mobile lenders in that division. 78 The trial judge accepted Ms Blundell's evidence that this "critical change" reflected the fact that this portion of the draft report represented a preliminary scenario that Ms Blundell wanted to test, rather than a firm conclusion she had reached. This was one of the reasons she sought to discuss the draft with Mr Carney. The trial judge also accepted that the draft report reflected Ms Blundell's confusion surrounding the question of releaseability. The draft report states that the Bank was attempting to avoid the Appointment to Roles Policy despite the fact that the Policy did not apply. It is not surprising that this apparently illogical version of events would create confusion. Moreover, there is again no reason to reject the trial judge's conclusion that Ms Blundell's explanation for the changes was credible. 79 Ms Yousif submitted, however, that the trial judge overlooked another significant change between the two versions of the report, namely, that the draft report referred to an offer and acceptance of the PRB position, whereas the final report referred only to an offer. Ms Yousif argued that, against the background of changes having been made by Ms Blundell following a meeting with Mr Carney, the trial judge should have found that the investigation was compromised. 80 In the draft report, Ms Blundell mentioned the offer and acceptance in connection with her concern at the time that the Bank was seeking to avoid the Appointment to Roles Policy. The relevant portion of the draft report stated: As the Executive General Manager for the Retail Network it is within Grahame [Carney]'s authority to veto appointments to roles within his business. In this circumstance, he vetoed appointment into PRB, rather than denying her releasability from the Retail side of his business. On this basis, there is no issue of releasability in this case. The core issue lies around her suitability for role. However, the process that was followed was not ideal because management were trying to avoid breaking the Bank's "Releasability" policy, not realising that in this case it did not apply. The concerns I have are: 1. The decision to veto occurred after the offer was made and accepted (Emphasis added.) 81 The final report mentioned an offer, but did not specifically refer to acceptance: … Grahame Carney had been reviewing property/leasing matters within Victoria, which led him to consider the structure of the PRB teams. On this basis, Grahame Carney decided to withdraw the role from offer. Unfortunately, Julian Lenehan was not aware of Grahame's plans for restructuring, so had advertised the role in accordance with policy. The timing of this decision to withdraw the role was unfortunate for Linda and would have been disappointing for her as she had already been offered the role. (Emphasis added.) 82 The inference that, in making the changes particularly noted above, Ms Blundell intended to convey a legally significant difference in the circumstances touching the PRB position - i.e., that according to the findings of the final report no acceptance, in a legal sense, had occurred - is weak at best. It was clearly Ms Blundell's understanding that Ms Yousif believed an agreement to appoint her to the PRB position had been reached. While the difference between "offer" and "offer and acceptance" would be highly significant in the context of a lawyer's legal writing, there is little to support the proposition that Ms Blundell, as a non-lawyer, intended anything of moment in making these changes. 83 In any event, the trial judge gave close consideration to the changes between the draft and final report. He did so having had the benefit of hearing from both Ms Blundell and Mr Carney. His Honour's conclusions were supported by the evidence. As his Honour said, the final report was "more focused and more tightly constructed" than the draft and some recommendations were more favourable to Ms Yousif: Yousif at [129]. The trial judge was satisfied that there was "clearly more work to be done on the releaseability section of the draft report in order to present a final coherent analysis": Yousif at [141]. This conclusion was consistent with Ms Blundell's oral evidence, a matter to which the trial judge referred: Yousif at [142]. As stated above, the trial judge accepted Ms Blundell's evidence and found that she formed the views in her final report after conscientious inquiry and not by reason of any inappropriate pressure from Mr Carney. Based on the trial judge's findings of credit, which, for the reasons already given, we are bound to accept, if Ms Blundell intended any difference in meaning, that difference was the result of her independent judgment and not any improper influence exerted by Mr Carney. 84 For these reasons, Ms Yousif has not shown any error in the trial judge's conclusion that she suffered no unfairness as a result of the alleged flaws in Ms Blundell's investigation.

Consequences for grounds 4, 6, 8 and 11 and the implied terms claims 85 Our rejection of Ms Yousif's claims of error by the trial judge in respect of various factual findings undermines the balance of her grounds of appeal. 86 As to ground 4, any error by the trial judge as to whether the Bank's Appointments to Roles Policy was incorporated into Ms Yousif's contract of employment (see Yousif at [97]) is immaterial. The trial judge (at [98]) found that, even if the policy were incorporated, there was no breach given that Mr Carney decided not to fill the PRB position for strategic reasons unconnected to Ms Yousif's circumstances. Given that this finding cannot be disturbed on appeal, the issue of incorporation cannot undermine the trial judge's rejection of Ms Yousif's claims. 87 The same considerations apply to grounds 6, 8 and 11 in respect of the allegations that the Bank acted in breach of the implied obligation of good faith and so as to destroy the relationship of trust and confidence between it and Ms Yousif. That is to say, even if the conclusion at [103] that the weight of authority is against the implication of an implied obligation to act in good faith is incorrect, the trial judge's factual findings exclude any conclusion of breach of that obligation. Having assessed and rejected Ms Yousif's claims that: - (i) Mr Porter had threatened to end her career; (ii) Mr Monopoli and/or Mr Lenehan had made her an unconditional offer of the PRB position which she accepted; (iii) Mr Carney intimidated Ms Blundell into changing her report; and (iv) that Ms Blundell's investigation was not independent and was seriously flawed - breach of any such implied terms (if they exist) cannot result in Ms Yousif's claims being upheld. 88 Given that the parties addressed these matters, however, we deal with some of the legal issues relating to grounds 4, 6, 8 and 11 below. We do so briefly on the basis that, under the circumstances, resolution of these legal issues could not lead to an outcome in Ms Yousif's favour in any event. Ground 4: Incorporation of Appointment to Roles Policy 89 Ms Yousif submitted that the trial judge erred in concluding that the Bank's Appointment to Roles Policy was not part of the terms of her employment contract. She argued that the Policy was incorporated into her contract by virtue of paragraph 2 of a document which formed part of the contract, entitled "Statement of Conditions Applying to Commonwealth Bank Existing Employees - Australian Workplace Agreement" ("AWA"). This paragraph provided: 2. Policies and Procedures You are required to comply with all Bank policies and procedures existing from time to time. Ms Yousif argued that this statement, although phrased only in terms of the employee's compliance, imposed a contractual obligation to comply with Bank policies, including the Appointment to Roles Policy, on the Bank as well. In this regard, she cited Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889 and Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120. 90 In Riverwood, the Full Court upheld the trial judge's conclusion that, in the circumstances of the case, the contractual provision, "[y]ou agree to abide by all company policies and practices currently in place, any alterations made to them, and any new ones introduced", bound both employer and employee to the policies contained in the employer's "Policies and Procedures Manual". North and Mansfield JJ agreed with the trial judge's conclusion regarding incorporation, with Lindgren J dissenting. In upholding the trial judge's finding of incorporation, both North and Mansfield JJ paid attention to the dictionary definition of the term of "abide" (at 213 [106]-[107] and 221-222 [146]-[147]), the language of the policy manual as a whole (at 209- 212 [89]-[102], 220-221[142]-[144] and 223 [151]), and the factual context in which the contract was formed (at 212 [103] and 222-223 [148]-[149]). 91 At issue in Goldman Sachs was whether the trial judge properly concluded that certain portions of a document titled "Working With Us", which was presented to an employee at the time he entered into his employment contract, were incorporated into that contract. Black CJ, Marshall and Jessup JJ all reached the same conclusion regarding incorporation, though by different paths. Jessup J disagreed with Black CJ's and Marshall J's conclusion as to breach. As to incorporation, all three members of the Court agreed that there was no error in the trial judge's conclusion that a health and safety provision in "Working With Us" document was incorporated into the employment contract, but erred in finding that provisions addressing harassment and grievance procedures were also incorporated. 92 In oral submissions, counsel for Ms Yousif argued, essentially, that there was no relevant difference between the language in Ms Yousif's contract and that in Riverwood, and that Riverwood was therefore controlling on the issue of incorporation. In arguing that the Appointment to Roles Policy was incorporated into her contract, Ms Yousif relied on the language of paragraph 2 of the AWA. The sole basis for her argument was the similarity between this provision and the terms construed in Riverwood and Goldman Sachs. This argument did not address the relationship of the provision with other contractual terms, or any other aspects of the surrounding context that might elucidate the parties' intent. The argument did not involve analysis the facts of this case or offer any comparison between these facts and those in Riverwood or Goldman Sachs. 93 Ms Yousif's argument involves an erroneous approach, which is inconsistent with the authorities. Riverwood and Goldman Sachs both identify the importance of the context in order to determine the objective intention of the parties: see, for example, Riverwood 177 ALR 193 at 207-210 [77], [81], [89] per North J; 221-222 [146], [150] per Mansfield J and Goldman Sachs [2007] FCAFC 120 at [23] per Black CJ and [283] per Jessup J. Whatever the differences of approach or emphasis in Goldman Sachs, the reasons of all three Justices reflect the principle that whether or not a particular term forms a contractual obligation turns on the intent of the contracting parties, as objectively "conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened": see Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95; [2002] HCA 8 at 105-106 [25]. 94 The trial judge concluded that the Appointment to Roles Policy was not part of Ms Yousif's contract, based on a disclaimer of incorporation in the opening section of the manual containing the policy, which provided: The manual is not in any way incorporated as part of any industrial award or agreement entered into by the Bank, nor does it form any part of any employee's contract of employment. 95 We agree with his Honour that, absent any countervailing factor, this provision clearly indicates that the Appointment to Roles Policy was not to be incorporated into the contract. On its own, this provision manifests an unambiguous intent that the policies contained in the manual are not to have contractual operation. Other than observing the arguably superficial similarity between paragraph 2 of the AWA and the language in Riverwood, Ms Yousif did not point to any facts that might evince a contrary intent. Accordingly, Ms Yousif has not shown that the trial judge erred in relying on the disclaimer to conclude that the Appointment to Roles Policy was not incorporated in the contract between the parties. 96 As the trial judge found, the express purpose of the Human Resources Reference Manual was to "provide guidance to managers and staff on the interpretation and application of the Bank's human resource policies": see Yousif at [92]. The Manual, accordingly, dictated how the policies were to be read and understood. The effect of the statement in the Manual that it "is not in any way incorporated as part of any … agreement entered into by the Bank, nor does it form any part of any employee's contract of employment" cannot be read down by reference to the subsequent paragraph stating that, in the event of any inconsistency between the Manual and any agreement or contract, the agreement or contract is to prevail. Construed as a whole both statements have effect. These circumstances are different from those considered in Riverwood and Goldman Sachs. In Riverwood and Goldman Sachs there was no equivalent to the exclusionary provision in the Human Resources Reference Manual on which the trial judge relied in the present case. 97 Ms Yousif's submitted that the trial judge elevated the incorporated document (the policies) above the source document (the employment agreement). The exclusionary statement in the Manual was thus described as a "self-serving denial" incapable of denying the contractual effect of the policies. In both Riverwood and Goldman Sachs, the terms of the policies in question were an important part of the context in which the question of intention fell to be considered. In the present case, the Manual is part of the context which must be considered. Reference to the Manual, as the trial judge found, disclosed a clear statement that the policies were not intended to form part of any contract of employment. The exclusionary statement in the Manual cannot simply be disregarded. It is not a matter of elevating the incorporated document above the source document. It is a matter of determining the objective intention of the parties given all the surrounding circumstances, including the terms of the Manual, of which the policies form part. 98 Ms Yousif argued that the trial judge erred in failing to recognise that the denial of contractual effect is in the Manual, rather than in the policies themselves. We regard this as immaterial. As already noted, the evidence before the trial judge supported the finding that the "express purpose of the Manual was to provide guidance … on the interpretation and application of the Bank's human resource policies": Yousif at [92]. In other words, the policies were to be construed in accordance with the Manual, including the statement denying those policies any contractual effect. 99 Ms Yousif also submitted that, as the Manual makes clear that the contract of employment is to prevail (see the inconsistency provision referred to above), there was an inherent inconsistency between the contract and the Manual. The flaw in this argument is that it seeks to determine the objective intention of the parties by reference to some of the relevant circumstances (namely, the terms of the employment agreement and the policies) whilst disregarding others (namely, the Manual). The question of intention is, however, to be determined by reference to all relevant circumstances, subject only to the rules of admissibility of evidence. Once this is done, there is no inconsistency. 100 Ms Yousif's final argument on this issue, that incorporated terms apply only to the extent that they are not inconsistent with the contract, is a variant of the argument already dismissed above. The question of the terms of the document incorporated only arises if there has been incorporation by reference. The exclusionary statement in the Manual operates on the question of incorporation itself. It denies the whole of the policies any contractual effect. Accordingly, the identification of the terms incorporated by reference to potential inconsistencies never arises. 101 We note that Ms Yousif's submissions in the appeal diverged from those presented to the trial judge in a number of respects. First, the appeal submissions contended that both the Appointment to Roles Policy and the Fair Treatment Review Policy were incorporated into the contract of employment. Second, the appeal submissions contended that the Human Resources Reference Manual, which contained the key provision supporting the trial judge's conclusion that the policies were not incorporated into the contract, applied to the Appointment to Roles Policy but not the Fair Treatment Review Policy. 102 As we have seen, however, the trial judge found that the Human Resources Reference Manual applied to the Bank's human resources policies. Ms Yousif's submission that the Manual did not apply to the Fair Treatment Review Policy because the latter was not included in the Manual appears to be based on the way in which the documents appear in the evidence. This is an insufficient foundation to support the appellate court's departure from the trial judge's finding, particularly given that Ms Yousif's written submissions on incorporation sought to diminish the proposed departure to a footnote to the effect that there was "no suggestion" that the critical provision in the Manual (see above) applied to the Fair Treatment Review Policy. This is an inversion of the correct question. It was for Ms Yousif to make her claims clear at the trial, including any claim about the interaction of the Manual and the Fair Treatment Review Policy. We consider that this is a new argument, which should not be permitted to be raised in the appeal. 103 For these reasons we see no error in the trial judge's legal analysis rejecting Ms Yousif's claims that the Bank's policies were incorporated by reference into her contract of employment. 104 In any event, as already noted, the Appointment to Roles Policy only came into play if there was a position to which Ms Yousif could be released. Since no error is shown in the trial judge's finding that Mr Carney decided not to fill the position for business reasons unrelated to Ms Yousif, then it must be accepted that there was no position available. Further, the trial judge's finding that, even if incorporated, the Bank had not acted in breach of the policy must be accepted. For the reasons stated, the trial judge did not err in concluding that no breach of contract occurred by way of violation of the Appointment to Roles Policy. Moreover, since Ms Yousif's argument was that, if the policy were not incorporated, nonetheless breach of the policy was breach of implied terms of good faith, or trust and confidence - then, as the trial judge held, absent any policy breach, this could not constitute breach of any implied term (assuming it existed).

Grounds 6 and 8: Implied Terms of Trust and Confidence, and Good Faith 105 In submissions on the appeal, counsel for Ms Yousif put a variety of arguments regarding the implication of terms of trust and confidence, and of good faith, embracing both questions of law and issues related to the specific facts of this case. First, Ms Yousif argued that the trial judge erred in concluding, as she perceived it, that there was no implied term of good faith in employment contracts. The Bank shared Ms Yousif's misconception in this regard, and both parties argued the good faith question during oral submissions. In relation to the Bank's notice of contention, the parties also put forth arguments regarding the existence of an implied term of trust and confidence. As already noted, however, his Honour did not (and he had no need) to rule definitively on the existence of the implied terms. This was because the trial judge concluded that the facts as found did not disclose any conduct by the Bank that could be considered a breach of the implied terms, assuming their existence. Because, for the reasons stated below, we find that the trial judge did not err in this regard, we too need not consider whether, as a matter of law, the implied terms exist as an incident to the employment relationship. 106 The significance of the question of the existence of the implied terms provides further reason not to consider the issue in the present limited context. The Bank provided detailed written submissions addressing the implication of terms of trust and confidence, as well as good faith. Within the confines of this appeal it had no real opportunity, however, to explore those written submissions in oral argument. Those submissions raise many difficult, but important, issues. As we have said, in the present case, the trial judge's factual findings (which have not been successfully challenged on appeal) render any discussion of these issues in the present case of academic interest only. Given these circumstances, we consider it inappropriate to explore these issues further. The trial judge's findings of fact preclude any conclusion of breach of any of the alleged implied terms, even assuming their implication. 107 Ms Yousif submitted that the Bank breached the implied terms of trust and confidence, and good faith (which we shall refer to below as the "implied terms" since her argument did not differentiate between them) by presenting her with a pretextual version of events - i.e., that Mr Carney decided not to fill the PRB position for strategic business reasons - in order to cover up the fact that the Bank was seeking to avoid violation of the Appointment to Roles Policy. This argument depends on challenges to the trial judge's findings that Mr Lenehan did not offer Ms Yousif the PRB position and that Mr Carney acted for reasons unrelated to Ms Yousif. These challenges have already been addressed, and they fail for the reasons stated earlier. 108 Ms Yousif also submitted that the investigation of her complaints was so flawed as to constitute a breach of the implied terms. As presented in written submissions, this argument appeared to rely on challenges to the trial judge's findings of fact, specifically, his findings that Ms Yousif did not invoke the FTR process, and that Ms Blundell was not intimidated by more senior employees during her investigation. To this extent, Ms Yousif's argument is disposed of by our earlier discussion. 109 During oral submissions, however, this argument took a slightly different form. Counsel for Ms Yousif submitted, in effect, that even if Ms Blundell's investigation was not actually compromised by the alleged flaws, the conduct of the investigation was nonetheless so fundamentally unfair and one-sided that it constituted a breach of the implied terms. In essence, Ms Yousif's argument was that the procedures employed were so likely to result in unfairness, or create an appearance of unfairness, that they constituted a breach even if no unfairness in fact resulted. Ms Yousif cited two factors as creating this fundamental unfairness: Mr Carney's seniority relative to Ms Blundell; and the fact that Mr Carney was afforded an opportunity to comment on Ms Blundell's draft report that was not afforded to Ms Yousif. We address this aspect of Ms Yousif's submissions in the following paragraphs. 110 The precise contours of the implied terms, assuming they exist, are uncertain. Although the parties disagreed as to the existence of the terms, both suggested that it was more useful to think of them as a single term than as two distinct terms, citing Russell v the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559. In Russell, Basten JA observed (at 567): Although there were said to be two implied terms, it is probably sufficient to identify them as a single obligation.Thus, in Eastwood v Magnox Electric plc [2005] 1 AC 503 at 523 [11], Lord Nicholls of Birkenhead stated: "[11] … The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith ..." 111 In oral submissions, counsel for Ms Yousif urged a variety of formulations of the obligation said to be encompassed by the implied terms. Citing Russell and Eastwood (referred to above), counsel argued that the obligation was essentially for employers to treat their employees fairly. Relying on State of South Australia v McDonald (2009) 185 IR 45; [2009] SASC 219 at [233], counsel also argued that the purpose of the obligation was to restrain abuses of an employer's power, although the Court in that case concluded that the term was not part of the employment contract in question. Finally, Ms Yousif's counsel argued that the obligation could be formulated as a duty to minimise adverse consequences to the employee and the employment relationship, citing Morton v the Transport Appeal Board (No 1) (2007) 168 IR 403; [2007] NSWSC 1454 at [203]. 112 It is sufficient for purposes of the present case that, under any of the formulations of the implied terms posited by Ms Yousif, the trial judge did not err in finding there was no breach. 113 For the reasons already stated, the fact that Ms Blundell was assigned to make the investigation, notwithstanding that she was less senior in the organisation than Mr Carney, was not per se unfair, an abuse of power, or likely to create consequences adverse to an employee. On the trial judge's factual findings, upheld here, we cannot conclude that any implied term of trust and confidence or good faith would have obliged the Bank to appoint an employee more senior than Mr Carney to conduct the investigation, rather than Ms Blundell. 114 There was more force to Ms Yousif's argument that, providing management an opportunity to suggest changes to a draft report, without providing an employee a similar opportunity, would be so fundamentally unfair as to constitute a breach of the implied terms, regardless of the outcome of an investigation. Whether or not such circumstances would constitute a breach, they were not, however, the circumstances of this case. While Ms Yousif characterized Ms Blundell's discussion of the draft report with Mr Carney as an opportunity for Mr Carney to impose changes on Ms Blundell's conclusions, Ms Blundell, in evidence accepted by the trial judge, described a different scenario. 115 According to Ms Blundell, the meeting was not an opportunity for Mr Carney to comment on her factual findings. Her intent was to discuss the possibility of implementing her recommendations and clarify a single factual issue as to which she was still uncertain, i.e., the releaseability question. This is evident in the following exchange during Ms Blundell's cross-examination by counsel for the Bank: Now I've already discussed - I've already raised with you you weren't going to give Ms Yousif an opportunity to comment on the draft report; that's right?---That's right. Yes; but you thought it to be prudent to give Mr Carney an opportunity to comment on your findings?---Not on my findings; on the recommendations which he as the manager of that business would have to implement. . . . . [Mr Carney] doesn't specifically say [in his affidavit] whether he was given a copy of the draft report but you certainly went through it with him in some detail, didn't you?---The detail - the only issue that I went through in detail was around that releaseability because I wanted to clarify his position; that and the recommendations that I had made. 116 The situation described in the evidence given by Ms Blundell and accepted by the trial judge does not present the kind of fundamental unfairness argued for by Ms Yousif. Ms Blundell spoke to Mr Carney to assure herself that she understood one of the issues under investigation and to discuss implementing her recommendations. There was no error in the trial judge's conclusion that, in doing so, she neither created unfairness to Ms Yousif nor acted in a manner likely to result in unfairness. 117 For these reasons, the trial judge did not err in concluding that there was no breach of the implied terms by the Bank, assuming they formed part of Ms Yousif's contract.

Conclusion on Grounds 4, 6 and 8 118 For the reasons stated, we are satisfied that grounds 4, 6 and 8 of Ms Yousif's appeal cannot be sustained.

Ground 12: Discretion: declaration as Remedy for Privacy Act violation 119 The trial judge considered Ms Yousif's claims in respect of breaches of the Privacy Act at [146]-[152] of his reasons for judgment. As the trial judge found, another Bank employee accessed Ms Yousif's personal details through the Bank's computer system. Ms Yousif claimed that this access meant that the Bank had breached s 16A(2) of the Privacy Act (providing that an organisation must act so as to breach the National Privacy Principles). Ms Yousif relied on cl 2.1 of the National Privacy Principles ("(a)n organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection" other than in specified circumstances). The access was also said to amount to a breach of the implied terms of trust and confidence, and good faith. The Bank did not contest the facts in respect of the access, which it implicitly accepted was unauthorised. 120 The trial judge recorded that: - (i) Ms Yousif's submissions did not contend that she suffered any actual damage by reason of the breach, (ii) the Bank had systems in place to investigate such incidents, (iii) the Bank in fact investigated the unauthorised access the subject of Ms Yousif's claim and required the other employee to explain his actions, (iv) the employee provided an explanation which the Bank provided to Ms Yousif, and (v) the explanation was that the other employee required Ms Yousif's address to deal with matters that ultimately led to the other employee offering Ms Yousif a share of the loans from Brisbane which were available through the other employee's contacts. The trial judge described the remedies of injunction and declaration as discretionary and declined to grant either form of relief. His Honour (at [152]) said that: The steps taken by the Bank demonstrate that it regarded the incident as important to pursue. Those actions of the Bank indicate that the circumstances do not call for the intervention of the Court 121 Ms Yousif submitted that the trial judge's reasons were not sufficient to justify the refusal of relief by way of a declaration. The difficulty for Ms Yousif is that the trial judge's decision to refuse relief was discretionary. An appellate court cannot interfere with an exercise of discretion other than in accordance with the well-recognised principles stated in House v The King (1936) 55 CLR 499 at 504-505 as follows: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the trial judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the trial judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 122 The circumstances of the present case do not enliven these principles. The trial judge was entitled to decline to grant a declaration on the discretionary ground he identified. No appellable error is apparent. It follows that ground 12 of Ms Yousif's appeal cannot be sustained. Ground 13: Omission; payment in lieu of notice of termination 123 Ms Yousif's final appeal ground was that the trial judge did not address her submissions regarding the Bank's failure to make payments due to her in lieu of a notice of termination. 124 Ms Yousif claimed that the Bank had failed to pay her full entitlements in lieu of notice. She argued that the Bank should have paid her the sum that would have put her in the same position she would have enjoyed had she been given four weeks' notice as required. On this basis (given the termination of her employment on 8 December 2008) Ms Yousif would have been employed on 5 January 2009 and thus, she claimed, entitled to a payment of a trailing commission of $8,478.79. The Bank submitted that there was no such entitlement as Ms Yousif's employment ceased on 8 December 2009. 125 It is true that the trial judge omitted to deal with this claim. The claim, nevertheless, is unsustainable. The parties agreed that the effect of the payment in lieu of notice which the Bank made to Ms Yousif brought the contract of employment to an end. WT Partnership (Aust) Pty Ltd v Sheldrick (2000) 96 IR 202; [1999] FCA 843 at [16], on which Ms Yousif relied, emphasised that a calculation of damages for breach of a notice requirement must be based on the terms of the contract. In the present case, there was a dispute about the relevant contractual conditions due to some confusion in the conditions attached to the workplace agreement lodged for approval. Counsel for Ms Yousif argued that the applicable conditions were those applying to new rather than existing employees, which counsel for the Bank said was a departure from the way the case was conducted before the trial judge. Counsel for the Bank submitted that, at trial, the case went forward on the basis that the applicable conditions were those applying to existing employees, which the Bank maintained was the correct position. The issue, whether the applicable conditions were those applying to new or existing employees, was not explored at trial. As we have already said in another context, it appears to us that it was for Ms Yousif to make her claims clear at the trial, including any claim that the conditions applying to new employees applied rather than the conditions applying to existing employees, as might more naturally be expected. We consider that Ms Yousif's argument is a new argument, which should not be permitted to be raised in the appeal. 126 If the applicable conditions were those applying to existing employees, then Ms Yousif was not entitled to any further payment. Clause 13 of these conditions required payments on termination to be calculated on "the basis of your cash component". From the terms of cll 1.1 and 1.2 it is apparent that "the cash component" of Ms Yousif's salary was her minimum base remuneration under cl 1.1. Bonus payments were regulated by cl 1.2 as payments "in addition to" the minimum base remuneration and, under cl 1.2, Ms Yousif's entitlement was to "participate in tailored bonus arrangements for Commonwealth Bank staff operating from time to time…". The Bank's bonus arrangements in operation at the relevant time provided that, where employment was terminated for any reason other than redundancy, entitlements to payments under the Bank's bonus scheme were "foregone". 127 In any event, even if the applicable conditions were those applying to new employees, we are unpersuaded that there would be a different result. Clause 13 of these conditions required payments on termination to be calculated on "the basis of your Gross Remuneration". The terms of cll 1.1 and 1.2 indicate that Ms Yousif's "Gross Remuneration" was in fact her minimum base remuneration under cl 1.1. As in the case of conditions applying to existing employees, bonus payments were regulated by cl 1.2 as payments "in addition to" the minimum base remuneration; and under cl 1.2 Ms Yousif's entitlement was to "participate in tailored bonus arrangements for Commonwealth Bank staff operating from time to time…". As we have seen, the bonus arrangements in operation at the relevant time provided that, where employment was terminated for any reason other than redundancy, entitlements to payments under the Bank's bonus scheme were foregone. It follows that the terms of Ms Yousif's contract, even as she alleged them to be on appeal, precluded the payment to her of trailing commissions accruing after the date of termination of her employment. 128 For these reasons, although the trial judge omitted to deal with this claim, the claim cannot be accepted and thus cannot lead to the appeal being allowed.

CONCLUSIONS 129 For the reasons stated, none of Ms Yousif's grounds of appeal can be upheld. The trial judge was correct to dismiss the claims against the Bank on the facts. It follows that the appeal must be dismissed. The usual order as to costs should also be made. I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Tracey and Jagot.