Wong v National Australia Bank Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 22 June 2021
• Neutral Citation: [2021] FCA 671
• Court: Federal Court
• Date: 22 June 2021

Federal Court of Australia

Wong v National Australia Bank Limited [2021] FCA 671

File number:	VID 903 of 2017
Judgment of:	SNADEN J
Date of judgment:	22 June 2021
Catchwords:	INDUSTRIAL LAW – employment – adverse action – removal of applicant from position in which she was employed – announcement of removal to co-workers – subsequent termination of applicant’s employment – whether the applicant was subjected to adverse action by the respondents in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act) – whether applicant made complaints or inquiries amounting to the exercise of “workplace rights” pursuant to s 341 of the FW Act – whether adverse action was taken because the applicant had exercised workplace rights – operation of statutory presumption in s 361 of the FW Act – identification of the person or people who decided to engage in adverse action – whether corporate state of mind resided (or partly resided) in a person who did not make a relevant decision – whether the second respondent was liable as an accessory to any statutory contravention committed by the first respondent – application dismissed ; DEFAMATION – publication of email communication by respondents to various personnel of the first respondent – whether communication conveyed defamatory imputations, namely that the applicant was incompetent or had misconducted herself – ordinary and natural meaning of words in communication – whether communication conveyed defamatory imputations by way of innuendo – whether the communication conveyed any other defamatory imputations not materially dissimilar to the imputations alleged – defence of qualified privilege – whether the respondents had a duty to send (or an interest in sending) the communication – whether the recipients of the published communication had a right to receive (or an interest in receiving) it – whether the communication ventured beyond the legitimate service of those duties or interests – whether the communication was actuated by malice – state of mind of the respondents – communication did not convey defamatory imputations as alleged – the communication did not contain defamatory imputations by way of innuendo – the communication was not actuated by malice – the publication of the communication was made on an occasion of qualified privilege – the applicant was not defamed
Legislation:	Fair Work Act 2009 (Cth) – Pt 3-1 – ss 340, 341, 342, 347, 360, 361, 539, 550, 570 and 793 ; Judiciary Act 1903 (Cth) – s 39B
Cases cited:	ACCC v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1 Atkas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 AWU v John Holland (2001) 103 IR 205 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 CFMEU v Clermont Coal Pty Ltd (2015) 253 IR 166 CFMEU v Endeavour Coal (2015) 231 FCR 150 CFMEU v Piblara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu (2019) 289 IR 240 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Gregg v The Queen [2020] NSWCCA 245 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Maric v Ericsson Australia Pty Ltd [2020] FCA 452 Meridian Global Funds Management Asia Limited v Securities Commission [1995] 3 All ER 918 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 Patrick Stevedores Operations (No 2) v Maritime Union of Australia (1998) 195 CLR 1 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Qantas Airways Ltd v Australian Licensed Aircraft Engineers’ Association (2012) 202 FCR 244 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Sabapathy v Jetstar Airways [2021] FCAFC 25 Salama v Sydney Trains [2021] FCA 251 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352 Wood v City of Melbourne Corporation (1979) 26 ALR 430
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	389
Date of hearing:	2-10 December 2019 and 17 April 2020
Counsel for the Applicant:	Mr M L Felman with Mr A R M Pollock
Solicitor for the Applicant:	Jholl Lawyers & Consultants
Counsel for the Respondents:	Mr J Forbes with Mr J Hooper
Solicitor for the Respondents:	Minter Ellison

ORDERS

		VID 903 of 2017
BETWEEN:	SENE-LI WONG Applicant
AND:	NATIONAL AUSTRALIA BANK LIMITED First Respondent ; CATHERINE MACLEOD Second Respondent

order made by:	SNADEN J
DATE OF ORDER:	22 june 2021

THE COURT ORDERS THAT:

1. The application be dismissed.

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

REASONS FOR JUDGMENT

Part 1: Overview	[1]
Part 2: Background and evidence	[10]
2.1 The trial	[10]
2.2 NAB’s structure and personnel	[15]
2.3 The “MAP” and “NPP” projects	[21]
2.4 The “agile” work environment	[25]
2.5 The relevant time periods	[29]
Part 3: The Adverse action case	[47]
3.1 Summary	[4...