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.