Alam v National Australia Bank Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 08 October 2021
• Neutral Citation: [2021] FCAFC 178
• Date: 08 October 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Alam v National Australia Bank Limited [2021] FCAFC 178

Appeal from:	Alam v National Australia Bank Limited (No 2) [2020] FCCA 2491
File number:	NSD 1176 of 2020
Judgment of:	WHITE, O'CALLAGHAN AND COLVIN JJ
Date of judgment:	8 October 2021
Catchwords:	INDUSTRIAL LAW – appeal against the dismissal of an adverse action claim – Appellant claimed that her employment had been terminated because of her exercise, and proposed exercise, of her workplace right to make complaints or inquiries in relation to her employment – whether the primary Judge erred in failing to consider whether each alleged complaint or inquiry was one to which s 341(1)(c) of the Fair Work Act 2009 (Cth) referred – whether the primary Judge erred in failing to apply s 361 of the FW Act in relation to each of the alleged complaints or inquiries – whether the Appellant was denied procedural fairness – appeal allowed in part.
Legislation:	Australian Consumer Law s 31 Evidence Act 1995 (Cth) ss 98, 99, 100 Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, Federal Court of Australia Act 1976 (Cth) s 28(1)(c)
Cases cited:	Alam v National Australia Bank Limited (No 2) [2020] FCCA 2491 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Cigarette & Gift Warehouse Pty Ltd v Whelan[2019] FCAFC 16; (2019) 268 FCR 46 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 Flageul v WeDrive Pty Ltd [2021] FCAFC 102 General Motors–Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 12 ALR 605 Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 Maric v Ericsson Australia Pty Ltd [2020] FCA 452; (2020) 293 IR 442 Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, (2013) 238 IR 307 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451;(2013) 234 IR 139 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 Salama v Sydney Trains [2021] FCA 251 SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159 Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285 Wong v National Australia Bank Limited [2021] FCA 671 Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	131
Date of last submission/s:	20 September 2021
Date of hearing:	25 August 2021
Counsel for the Appellant:	Mr A Metcalfe
Solicitor for the Appellant:	Abbas Jacob Lawyers
Counsel for the Respondent:	Mr C O’Grady QC with Mr M Seck
Solicitor for the Respondent:	King & Wood Mallesons

ORDERS

		NSD 1176 of 2020
BETWEEN:	SUMYYA ALAM Appellant
AND:	NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 Respondent

order made by:	WHITE, O'CALLAGHAN AND COLVIN JJ
DATE OF ORDER:	8 October 2021

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The judgment of the Federal Circuit Court Judge is set aside in part.

3. All issues in the proceedings other than that concerning whether the Appellant sent to herself the Data Breach email of 12 January 2019 are remitted to the Federal Circuit Court for re‑trial before another Judge.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant commenced employment with the respondent (NAB) on 15 October 2018 as an Associate Financial Planner at its Dee Why Branch in Sydney. Just over three months later, on 30 January 2019, NAB terminated her employment.

2. In the proceedings in the Federal Circuit Court (the FCC), the appellant alleged that, in dismissing her, NAB had taken adverse action against her by reason of her exercise, and proposed exercise, of workplace rights (the making of complaints or inquiries and a foreshadowed application to the Fair Work Commission (FWC) in relation to her employment) and that it had thereby contravened s 340(1) of the Fair Work Act 2009 (Cth) (the FW Act). She sought an order for her reinstatement, orders for payment of lost salary and damages for non‑economic loss, the imposition of a pecuniary penalty, and other relief. The appellant also alleged that NAB had, by the termination, breached her contract of employment and sought damages with respect to that breach.

3. NAB asserted that it had terminated the appellant’s employment because of evidence that the appellant had, in breach of its policies and practices, sent an email from her work email address to her personal email accounts on 12 January 2019 which attached confidential customer information and because the appellant had not provided an adequate explanation for doing...