Removal announced to 423 colleagues, then dismissed

Ms Wong managed National Australia Bank's internet banking platform from July 2015. From early 2016 she raised many concerns with her managers: about staffing, about colleagues' work, and about rising costs on a large payments project. On 21 March 2017 she was removed from her role. That afternoon an email announcing her replacement went to 423 NAB employees. On 11 May 2017 the bank dismissed her.

She sued under s 340 of the Fair Work Act, saying the bank acted because of 19 complaints and two inquiries she had made. The court accepted that all three steps were adverse action, including the email, because some colleagues thought less of her after reading it.

Not every concern counted. NAB accepted that 11 of her complaints and inquiries were protected. Of the rest, the judge found two were reports and suggestions rather than complaints. The others did not concern any right or entitlement she held, so on the law as the judge applied it they were not workplace rights.

The case turned on why the bank acted. The general manager who made both decisions, Ms MacLeod, did not know about the earlier complaints when she removed Ms Wong. The judge accepted her stated reasons: the platform's performance and Ms Wong's behaviour. Ms MacLeod dismissed her, the judge found, because Ms Wong had not engaged with those concerns, not because her later emails were complaints. Ms Wong's direct manager did know of the complaints, but the judge found him a very impressive witness who genuinely held critical views of her. Whether those views were fair was not the question.

A defamation claim over the email also failed. The court found the email did not suggest misconduct or incompetence, and was in any event protected by qualified privilege. The application was dismissed.