Sex, Lies And Banking
By Bernard LaganApril 2, 2012
Vivienne Dye's claims that her Sydney bosses sexually harassed her, and then ended her career when she complained, appeared to open a window into the darker world of banking’s top levels. Now a judge has found she made it all up. In the end, there are only losers in this case — including the stereotyping of women who are harassed in the office.
In her 94 days in court recounting sexual harassment and charged encounters with her Commonwealth Bank of Australia bosses, Vivienne Dye lost it when asked where, exactly, on Michael Blomfield's backside, was the tattoo he'd flashed in Sydney's banking haunt, Le Chifley bar, while celebrating his promotion.
Struggling to explain how the stubbled, 35-year-old head of the bank's showy CommSec online share broking arm could have dropped his pricey strides in a bar crowded with his colleagues to reveal a buttock tattoo he didn't have, Vivienne Dye, a flaxen-haired marketing specialist in her late 20s, now found herself needing to broaden the territory covered by a backside.
Counsel for the Commonwealth Bank, Peter Gray SC asked:
Backside means something else, not being bottom?
Gray: Does it mean side of back?
Gray: It does mean side of back? That answer is just untrue, isn't it, Ms Dye?
Dye: Which one?
Gray: The one that says backside means side of back?
Dye: It can mean side of back, all the way down sort of, I don't know, hip bone. Depending on how much weight a man has, you know, on…
His Honor Judge Robert Buchanan: Where are the buttocks in this scheme or arrangement?
Dye: At the bottom.
His Honour: Are they part of the backside or not in your terminology?
Dye: They could be, but I wasn't referring to the buttocks as in the bottom bottom.
Gray: So bottom is the same as buttocks?
Dye: Well, buttocks is the fleshy bit, isn't it?
Gray: Do you understand the word bottom to mean the same as buttocks?
Dye: I feel I am being harassed about this, your Honour.
"What difference does it make what body part it is?" Dye eventually spluttered. To any unfortunate on the end of a steely cross-examination — especially a young woman taking on the might of Australia's largest bank — her frustration might seem understandable.
To Federal Court judge Robert Buchanan, however, the elusive tattoo would make a vast difference to how he viewed Vivienne Dye and the welter of allegations of unwanted sexual overtures she'd leveled at Michael Blomfield and more serious charges of sexual assault against another, younger Commonwealth bank executive, Angus Patterson.
But first, the judge had to be sure that the Commonwealth's executive general manager of local business banking, Blomfield, was not harboring a tattoo on his behind. He directed Blomfield into an adjoining conference room. There, the banker was asked to drop his pants while the judge, the Commonwealth's counsel, Peter Gray SC, and Vivienne Dye's barrister, the former Liberal MP for the Sydney blueblood seat of Wentworth, Peter King, looked on.
Unhappily for Vivienne Dye, Blomfield's tattoo was not on his backside where she said it was. It was on the banker's outer left thigh and resembled, in the judge description: "A melting stopwatch. It has a number of colours on it, including yellow and red … it has a stopwatch knob on the top."
Although at times entertaining, the hearing's outcome was devastating for Vivienne Dye and her action to sue the Commonwealth Bank for damages in sexual harassment, victimization, defamation and breach of contract.
Justice Buchanan massacred her credit when he delivered judgment on March 23. Her false claim that Michael Blomfield had shown her a tattoo on his backside, the judge said, was but one reason why he came to believe Vivienne's Dye's credit so weak that he couldn't believe any of her evidence that was contested — unless verified elsewhere.
It is hard to imagine a judgment more scathing. Justice Buchanan wrote: "Ms Dye's written accounts of matters [have], over the years, been substantially altered, re-ordered, edited, polished, embellished and even substantially changed as though it were a novel."
He rejected outright her assertions that the Commonwealth Bank executives, Michael Blomfield and Angus Patterson, had sexually harassed her and, in Patterson's case, had sexually assaulted her. He found instead Vivienne Dye had once viewed both as mentors and later developed her own reasons, based on falsehood, to accuse them of sexual harassment.
The picture of Vivienne Dye portrayed in the judgment is deeply unflattering; she emerges as a self-interested woman, whose sexual interest was spurned by one of the men she later accused of sexual harassment — Michael Blomfield. She had asked the other bank executive, Angus Patterson, whilst he was at her Observatory Hill apartment, to have anal sex with her. A married man with young children, Patterson had rebuffed her.
What also emerges is a tale of money, lust and revenge inside the gilded upper levels of corporate banking and how its insiders navigate the tricky shoals of sexual and power politics. In the end there are no winners. It has all but destroyed Vivienne Dye and deeply scarred Michael Blomfield and Angus Patterson — both of whom have walked out of the Commonwealth Bank, trailing fallout from the affair. Michael Blomfield has left Australia. Angus Patterson had to deal with the disclosure during the court hearing that he'd had sex with another Commonwealth banker, at her apartment in the same block as Vivienne Dye.
One might also ask if the cause of working women and their defences against sexual harassment and assault in the office have also been a loser in this severe judgment — no matter the merits of Vivienne Dye's case.
"This is the awful thing with sexual assault," says Professor Catharine Lumby, the University of NSW feminist academic who has worked with the National Rugby League on gender issues. "It's the one crime where everyone asks, 'What does the victim want? What is she looking for?' If I play my DVD player too loud and someone steals it, nobody says, 'Well, you were asking for it.' Sexual assault and sexual harassment are two areas where people immediately say, 'Oh, this woman, is she manipulative? What's going on here?' And unfortunately you hear a lot of women saying this."
Vivienne Dye was to be no exception.
By April 2008 Vivienne Dye had left the Commonwealth Bank. Her job had been declared redundant during a round of heavy spending cuts. Although it was open to her to try and find another job in the bank and she still retained a "meets expectations" rating from its HR department, the bank was far from unhappy to see her go. There's been a litany of difficulties, in the bank's view, ranging from Dye's intemperate emails, work ethic, problems working with others, at times provocative dress and the devastating false allegations of sexual harassment she'd aimed at her bosses — Michael Blomfield and Angus Patterson. At one point — before Vivienne Dye leveled those — Blomfield became concerned that her intemperate communications with her colleagues was beginning to harm his own big plans for his local business banking group. He fired off a one-line email to her superior: 'Get her out.'
Tensions throughout the bank had been elevated by the arrival of the new, hard-charging chief executive officer from New Zealand. Ralph Norris had launched a furious change program and everyone was keen to put the episode behind them and concentrate on Norris's big — and ultimately successful — plan to ramp up the Commonwealth's performance.
On Monday, April 14, 2008 all changed. Vivienne Dye's allegations became public — though it was hardly the "incandescent blaze of salacious publicity" that Justice Buchanan richly narrated in his judgment. The editors of the Sydney Morning Herald were so unmoved by their reporter's exclusive that they buried it deep inside the paper in the business section. Their story, which ran alongside a corporate mugshot of Michael Blomfield, said Blomfield had bombarded Dye with sexual invitations and then isolated her when they were rejected. Dye, quoted by the Herald, described Michael Blomfield as a rock star at the bank who had, as head of the bank's online broker, CommSec, expanded its operations into margin lending, retail foreign exchange and cash investment products. Dye also offered that he had a reputation in the bank for targeting females and trying to bed them.
Sydney's Daily Telegraph was vastly more excited by the story than the Herald. Over the next 48 hours they tracked down Vivienne Dye, by then in New York on a break from Australia. After leaving the bank she'd taken a job at Bond University but had resigned two months into her eight-month contract. Alongside a moody shot of Dye sipping coffee in a New York street, the Telegraph, using a 180-page document that Dye had prepared for a complaint to the Human Rights and Equal Opportunity Commission, repeated the Herald's allegations against Michael Blomfield. The Telegraph also introduced Vivienne Dye's far more serious allegations against Angus Patterson — a younger bank executive who had in the past been one her strongest supporters and closest work friends. Others in the bank believed — and gave evidence — that Vivienne Dye openly flirted with Angus Patterson to the point of making him uncomfortable. She would perch upon his desk and sit very close to him at other times.
The allegations against Angus Patterson must have been devastating for the young banker and father of four. The Telegraph report said he had pestered Dye for sex over a three-month period in 2006 and in May of that year had insisted on coming inside her apartment after a dinner. Dye was quoted: "When he entered my apartment he picked me up off the ground and carried me into my bedroom and threw me down on the bed. I was screaming for him to get off me but Angus pinned me down by the wrists. He unbuckled his belt and wriggled out of his pants. My protests began to intensify and I struggled and told him to get out (before he) pulled up his pants and left my house immediately, never again mentioning the incident."
She would later elevate this account, adding Patterson's digital penetration of her.
Less than fortnight later, however, she willingly accompanied Angus Patterson on a pre-planned business trip to Auckland, dined with him and listened to music with him in her hotel room. Only much later did she raise allegations that Patterson also sexually harassed her on the trip.
The reaction inside the bank when Vivienne Dye's claims became public was rapid. Barbara Chapman, the Commonwealth Bank's then head of human resources, emailed the bank's staff, describing the stories in the Telegraph and the Fairfax papers as salacious and without any regard for the facts.
Her email continued: "The allegations made by Vivienne Dye against Michael Blomfield and Angus Patterson were taken very seriously when they were (first) raised. A series of in-depth investigations were under-taken and the claims were found to be unsubstantiated."
Chapman ended saying the bank was supporting both men in their considerations of what action they would take against Vivienne Dye. Michael Blomfield took up his employer's offer of help, and The Sydney Morning Herald and The Age, which also ran the SMH's original story, quickly published apologies.
The Daily Telegraph didn't. Blomfield sued its owners, News Ltd, winning a spectacular victory in the NSW Supreme Court when the defamation case was finally heard in September 2009. Following days of bruising cross-examination of Vivienne Dye, News Ltd abruptly withdrew its defence that the Telegraph stories were true and settled out of court with Blomfield for an undisclosed sum. Blomfield said afterwards that the 18 months since the allegations became public were an unmitigated nightmare.
Despite that setback, Vivienne Dye pursued her action against the Commonwealth Bank for damages for the sexual harassment and other grievances she claimed to have suffered while she was employed at the bank from March 2005 to November 2007 — the matters covered in Justice Buchanan's judgment. Within the period of her employment at the bank she was at work for only about two years, having spent seven months on sick leave.
Vivacious and outwardly confident, Vivienne Dye was in her late twenties when she joined the Commonwealth and was also president of the Paddington Young Liberals. In her past she'd worked for the global public relations firm, Burson Marsteller and, later, Vodafone, where there had been serious trouble. On Dye's own account — in an email she wrote — she left Vodafone after being seriously bullied by three other women whom she had been outperforming and out-qualified. She said she was paid a large sum by Vodafone upon her leaving.
Upon joining the bank, Vivienne Dye, initially at least, made a highly favorable impression. She started working in the bank's Premium Business Services division. Her job was to find "pro-active media opportunities" and send them on to the bank's external communications team who dealt with the media. Her immediate boss, Nicola Bradbury — who had employed her — considered her performance over the first two months to be "absolutely outstanding". Soon, however, tensions developed; other members of Dye's marketing team (all were women) believed she was cherry-picking tasks which interested her the most and claiming credit for work done by others. And she trod on the toes of the bank's main media spokesman, Bryan Fitzgerald, by involving herself in organising media briefings.
Nicola Bradbury, who initially put Vivienne Dye's early conflicts down to teething problems in her new job, now began to develop some misgivings; after Bradbury took 10 days' leave, she returned to find Vivienne Dye's unsolicited plans for an office reorganisation on her desk. Everybody's role on the marketing team would change — including some of Nicola Bradbury's tasks, and Vivienne Dye would be promoted to a new level, get a salary rise and become an executive manager. Bradbury rejected it.
Then, when Bradbury promoted another team member, Rebecca Stroud, who'd joined the team later, Vivienne Dye took it badly. Part of Stroud's work was to rectify Dye's mistakes. Dye began watching Stroud and claimed, under cross-examination, that Stroud had taken 70 sick days and half-days in just eight months and that Nicola Bradbury was favouring her rival. Records produced in Court showed Stroud took no sick leave over the period. The spat over Rebecca Stroud's leave days was cited by the Judge as evidence that Dye's frequent claims that she carried other colleagues was untrue.
By January 2006, Nicola Bradbury was sufficiently worried about Dye's performance that she raised with Dye the need to get along with the rest of the team and to take ownership of her work. Dye broke down in tears. The next month, Bradbury sent Dye on a three-day self-improvement course for the bank's junior managers in an effort to help Dye see how others viewed her. A feature of the course was an exercise in which course participants would make their own self-assessment. It would be compared with an assessment made by the worker's colleagues. Vivienne Dye's self-assessment scores showed she had a self-image that tended toward the perfect — a rating unmatched in the assessments of her colleagues. When Nicola Bradbury raised the differences with Dye, she responded that her work colleagues did not understand her well. Bradbury persisted and said Dye might need to change. Dye responded by again breaking down in tears and going home. Bradbury soon after arranged for Dye to begin seeing a bank-employed psychologist.
The next month — March 2006 — Vivienne Dye collapsed at work, hitting her head, causing bleeding. She blamed Nicola Bradbury for causing her to be stressed. The judge found that to be untrue.
About this time the new CEO, Ralph Norris, announced a further round of changes within the bank that would see Vivienne Dye go to work for a new boss — Angus Patterson. He was a man in his early 30s on the rise within the bank and was well disposed toward Vivian Dye's desire to move out of marketing and into a business analyst role when he took over running her team. The pair became close but not intimate.
Angus Patterson, while not backward in admonishing Dye for intemperate emails to colleagues, nevertheless seemed to enjoy Dye's company in and out of the office. She sent him a suggestive cartoon of which depicted the hand of God emerging from a cloud offering a large penis to a man without one. The caption said: "I didn't make you quite as intelligent as the woman so here's a little something that will do your thinking for you!" The judge saw the cartoon as a more eloquent statement of Vivienne Dye's brand of humor and approach to office relationships than her courtroom protestations about her sensitivity to sleazy and coarse behaviour on the part of others. Similarly, he said Dye's decision to turn up at the bank's 2006 Christmas Party wearing a white G string poking above her tight pants was in keeping with evidence that suggested Dye had a very robust approach to sexually suggestive and explicit themes.
Others in the office believed she flirted with Angus Patterson. Throughout the second half of 2006 the pair often met or communicated socially. They lunched with Vicki Dye, Vivienne's mother. They shopped for after-shave together. Angus Patterson, a car enthusiast, helped her sell a purple Honda S600 sports car. In mid-September Vivienne Dye emailed Patterson suggesting they meet up at the Hugo Boss store. Her email included the words "would love to catch up if you're free for a spot of shopping (for jeans)". There were strings of chatty emails from her to him. One, sent by Vivienne Dye to Angus Patterson in January the next year — 2007 — described him as "very sympathetic" and "such a good mentor". In early May the pair shared a bottle of wine together on a Friday afternoon in Vivienne Dye's apartment.
Justice Buchanan remarked in his judgment: "I am satisfied that the true position was that Mr Patterson was during the whole of this period, as he had always been, Ms Dye's friend, supporter and advisor. He did act honourably, and he acted generously. He deserved much better than the course taken by the present litigation or the earlier accusations against him."
On Justice Buchanan's findings, Angus Patterson's relationship with Vivienne Dye radically altered in mid-November, 2007. By then Vivienne Dye had made allegations inside the bank that the more senior executive, Michael Blomfield, had sexually harassed her. She sought Angus Patterson's help in her campaign against Blomfield. He refused. Patterson told Vivienne Dye he'd been asked by the bank 's human resources department "to step back" in his relationship with her until her allegations against Blomfield were resolved.
Angus Patterson told the court hearing, "I remember saying to her, 'I am not sure what else I can do.' And that was the last contact I had with Ms Dye."
Vivienne Dye now turned upon Angus Patterson more savagely than he ever could have imagined. Said Justice Buchanan: "It was after this that Ms Dye commenced to make increasingly serious allegations against Mr Patterson himself. That did not occur until he had declined to assist her against Mr Blomfield."
Vivienne Dye now set down, for the first time, grave allegations of sexual assault against Angus Patterson in documents drafted to support her complaints to the Human Rights and Equal Opportunity Commission. The worst occurred, she now said, when other evidence showed the pair was at their closest — in 2006.
She alleged that in early June 2006, after they'd had dinner, he escorted her to her apartment where they'd taken tea in the library. She gave several versions of the events but the gist was that Angus Patterson had insisted he came up to her apartment. There, he had thrown her onto her bed and digitally penetrated her anus and vagina.
It was all, in Justice Buchanan's view, a pack of lies Vivienne Dye made up.
The judge said: "It may never be possible for the stain on Mr Patterson's reputation caused by the smear constituted by Ms Dye's accusations to be completely removed. However I feel that I should make it as clear as I can that, in my view, based on the evidence in the present proceedings there was no relevant factual foundation for these accusations, and they were, to Ms Dye's certain knowledge, not true. It follows that they were falsely made."
Michael Blomfield rose up from unfavourable beginnings to be running CommSec in his mid 30s and then the new local business banking arm put in place by Norris to speed the bank's performance. Blomfield, eager to make an impression on the new CEO, was a man who, understandably, was sensitive toward how his division was seen in the bank's s higher ranks. When, in June 2006, he was promoted, one of those within the bank to send an early congratulatory message was Vivienne Dye. They had met by chance soon after she joined the bank. From then, according to Justice Buchanan, Vivienne Dye initiated contacts with Blomfield. She would later portray most as initiated by Blomfield — a scenario the judge rejected.
Upon his promotion under Ralph Norris in March 2006, Michael Blomfield's colleagues organised drinks for him at Le Chifley bar in the Sydney CBD. Vivienne Dye was invited but not by Blomfield. "How delightful," she replied. "Thanks for the invite. I will be there."
What happened at Le Chifley bar that night of June 15, 2006, when 30 of Blomfield's bank colleagues gathered, would become a matter of huge contention. Vivienne Dye later claimed that Blomfield monopolised her attention, flashed a tattoo on his backside at her, dirty danced with other women, and that another female work colleague had grasped him in the regions of the testicles. The judge rejected all of Dye's claims about Blomfield's behaviour, saying she made them falsely and that they did not happen. She even claimed that she'd become so concerned about Blomfield's behaviour toward her that she had phoned her mother. Telephone records did not support her claim.
In fact some of the bankers who were at Le Chifley gave evidence that it was Vivienne Dye who was chasing Michael Blomfield that night. One female banker warned Blomfield at the bar that Dye was "trouble". Others said she followed him around the bar and positioned herself next to him at every opportunity. At the end of the night, while Michael Blomfield walked Vivienne Dye to her apartment, he made clear to her that there would be no relationship between them, despite, in the judge's words, a desire Dye had made clear to Blomfield on the night.
Said the judge: "The fact of the matter is that Ms Dye was highly desirous of getting closer to Mr Blomfield, of working for him and, I am satisfied, of establishing a close personal (probably intimate) relationship with him."
About three weeks after the events at Le Chifley, Dye and Blomfield crossed paths on a Saturday morning in the city. Blomfeld, who had been at a funeral, walked straight past Dye and her mother before realizing who it was. He tapped out a text message to Dye which said "Didn't recognize you in your civvies." When Dye replied, "Wish I'd seen you in yours," Blomfield told the court he made a mental note to again speak to Vivienne Dye to dispel any idea that she could flirt with him.
Michael Blomfield, according to his evidence, decided he would again counsel Dye about her behaviour toward him in a social rather than a work setting. The following Tuesday he asked Dye and other work colleagues to drinks at the Westin Hotel. As at Le Chifley, what was to unfold at the Westin would again become a matter of great contention.
Vivienne Dye would later claim that Blomfield rubbed his leg against her and put his leg between her legs. Again, the judge rejected her allegations as false. During the bank's own investigation of this incident, a female colleague of Blomfield's said she told Blomfield to "shut it down" as Dye was "coming on" to him. One point of agreement did emerge between Dye and Blomfield as to what happened that night. It would, in the words of the judge, create a major difficulty for Vivienne Dye in the whole of her court action against the bank.
Sometime in the evening Dye asked Blomfield directly: "Do you have the hots for me?" Blomfield replied: "No, I don't. I can't believe you asked me that question. Why, do you have the hots for me?" When Dye said she did, Blomfield told her that they'd need to talk about it. Dye suggested he walk her home, Blomfield agreed. During the walk, Blomfield told the court, he told Dye he was married, was a Catholic and had children. There was no possibility of a relationship with Dye. She wanted to keep talking so late that night they went to the small Observatory Hill Park above The Rocks. There, Dye told Blomfield that if he left his wife, she would dedicate her life to making him the most powerful man in the world. Blomfield thought she was serious, and he was worried.
If Blomfield's decision to walk Dye home a second time from a bar seems odd or misguided, that is also how it appears to have been viewed by the an internal investigator appointed earlier by the bank to inquire into some of Dye's allegations. The investigator wrote in his report after interviewing Blomfield about his post-drinking walks with Dye to her apartment: "Michael is aware that this action put his reputation at risk, and he has made clear that he would not choose the same option again."
After the late-night Observatory Hill conversation with Blomfield, the judge said, Vivienne Dye started to go into decline. She may have started having suicidal thoughts. Her family noticed that she was anxious and appeared depressed. But by some accounts Michael Blomfield became an object of revenge for her.
Angus Patterson told the court that some months later — in October 2007 — he received a phone call from Vivienne Dye to tell him she was taking out a sexual harassment action against Michael Blomfield. Her tone was venomous. She told Patterson: "I am going to get that cunt and I am going to fucking destroy him and his family." By then Vivienne Dye was on sick leave from the bank. She would not return. The bank was looking to make tens of millions in cuts to costs and her job as a business analyst was one the bank decided it could do without.
By year's end she was gone. But as the bank came to learn, it was far from the last it would hear from her.
Justice Buchanan's findings have cleared Angus Patterson and Michael Blomfield of any wrong-doing. Both have had to recover their careers elsewhere. Angus Patterson has stayed in Australia and joined another bank.
Michael Blomfield moved to Asia and is said by the judge to be understandably bitter about his experience.
Vivienne Dye is not finished with either man or the bank.
She intends to appeal Justice Buchanan's findings.