King v Nike Australia Pty Ltd

King v Nike Australia Pty Ltd - [2007] VCAT 70 - VCAT 2007 case summary — Zoe

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5 In December 2003, Mrs King went on leave. This was partly sick leave and partly annual leave but it was predominantly maternity leave because her first child was due to be born early the following year. She remained on maternity leave until early March 2005.

6 While she was on maternity leave a temporary replacement ("the Contractor") was engaged to do her job. The Contractor had difficulty performing all of the duties of the Original Role and so, for the last six months of her maternity leave, Mrs King provided him with assistance for an average of 8-15 hours a week, apparently on an ad hoc basis, for which she was paid. In addition, I am satisfied that certain aspects of the job were removed from the Contractor giving him a reduced workload that he could cope with. I shall refer to this reduced role performed by the Contractor as "the Contractor's Role".

7 In about May 2004, Mr Stevenson, who had previously been employed at the same level as Mrs King, was appointed Sales Director of Nike. In August 2004 Mrs Pullia was appointed Human Relations Director.

8 When Mrs King returned from maternity leave on 7 March 2005 she took up the position of Pacific Sales Operations Manager. She referred to this in her evidence as being a title change from the Original Position but the Contractor was still there until the end of March and a number of normal tasks were put on hold because there as a lot of work to be done to prepare for the new system. I infer from this that she was very busy but in terms of day to day work she cannot be said to have been performing the duties of the Original Role.

9 At that time there was a pending reorganisation of Nike in which the Original Role was to disappear and two new positions were to be created. These were the Senior Role and the Junior Role, the first being the more senior position to which the second position reported. Mrs King applied for the Senior Role but she was offered only the Junior Role. Since no other position was available to her she undertook the Junior Role, albeit reluctantly, and now brings this application for compensation.

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21. As a former employee of Nike and a present employee of an associated company Mr Turnbull is separate from the interests of Mrs King and can be regarded as disinterested. He appeared to give his evidence carefully and without any apparent embellishment. Despite some uncertainty about dates I regard him as a reliable witness.

22. His evidence provides a stark contrast between the way he was regarded as a candidate for the Senior Role and the way Mrs King was so regarded. He was offered the role a number of times without having applied for it and he eventually rejected the offer.

23. Mrs King gave her evidence in a clear and forthright manner. I thought there was some tension between her expressed desire to work from home or part time if she could and her willingness to work full time if that meant obtaining the job she wanted. Nevertheless she struck me as being an impressive and credible witness with a better knowledge of the facts and a more reliable recollection of events than either Mr Stevenson or Mrs Pullia.

24. I found Mr Stevenson a most unsatisfactory witness. Apart from his demeanour in the witness box there were a number of matters about his evidence that have caused me to doubt both the completeness and truthfulness of his evidence.

25. I was concerned that Mr Stevenson appeared willing to assert as fact matters about which he could have had no personal knowledge. For example, he insisted that the Contractor was doing the same job Mrs King had previously done but, since she never reported to him in that position it does not appear that he had any first hand knowledge of what the Original Role was. There were documents setting out what the role was that would have been available to him but his evidence was inconsistent with them. It is clear from the evidence that responsibilities were taken from the Contractor who then managed the reduced workload with assistance from Mrs King. Under these circumstances, Mr Stevenson had no reasonable basis for his assertion.

26. When challenged about his knowledge of Mrs King's earlier responsibilities Mr Stevenson said that "her accountabilities" were shown to him by another employee in 2002, although he did not identify the documents he was shown and says he did not receive a copy of them. At that time he was Equipment Sales Manager on the same level as Mrs King and he did not suggest why, in that position, he would have been shown her "accountabilities". Even if he was shown them, without copies it seems unlikely that he would he remember the detail of the documents years later. Mrs King acknowledged that he would have had some knowledge of her role for a very short period before she went on leave but at that time his job was not to supervise her. She had direct knowledge of her duties and responsibilities. He had his own job to do. Mr Stevenson also is not and did not purport to be, an expert in assessing roles. For that expertise I must look to the two expert witnesses.

27. In regard to the offer of the Senior Role to Mr Turnbull, Mr Stevenson gave quite detailed evidence but it conflicts with the evidence of Mr Turnbull. It also conflicts with the evidence of Mrs Pullia in regard to a most significant event, which was a directors' meeting early in January 2005. According to Mrs Pullia the Directors, decided at that meeting to offer Mr Turnbull the Senior Role. Mr Stevenson's failure to refer to this meeting seems an odd omission by a witness claiming to have a good recollection of events and wishing to give a full picture of what occurred. He was a director at the time and the one most involved in the Senior Role and there is no suggestion that he was not at the meeting. Further, his evidence as to the detail of the approaches to Mr Turnbull is different from that of Mrs Pullia.

28. When I asked Mr Stevenson who made the decision that Mr Turnbull should be offered the Senior Role he said that he thought it must have been Mrs Pullia. He said that Mrs Pullia approached him and asked him if he was comfortable with Mr Turnbull being offered the job and he told her that he was. He said it was then a matter for her and Mr Balfour, the Managing Director, to decide whether to make the offer. Indeed, he said in cross examination that he was unsure whether or not Mrs Pullia was going to offer him the role. This account is substantially different from that of Mrs Pullia. It is also inconsistent with Mr Turnbull's evidence.

29. When questioned by Miss Collins-Hughes, who interviewed him for the purpose of preparing her report, Mr Stevenson told her that he had not previously had a part time professional employee reporting to him. Miss Collins-Hughes insisted, when giving her evidence, that she asked him about that twice and obtained this response. Mr Stevenson denied this in his second witness statement and again under cross-examination, saying: "No. I absolutely did tell her.". I prefer Miss Collins-Hughes evidence.

30. Mr Stevenson said that in the first week of March he was aware that Mr Turnbull was not interested in the position but that is contrary to Mr Turnbull's evidence.

31. When it was put to Mr Stevenson in cross-examination that, at the time he spoke to Mrs King on 23 February, there were discussions with Mr Turnbull about the Senior Role he said these were only "minimal", even though the directors had agreed to offer him the job and even though it had actually been offered to him. Colouring of evidence by a witness is a matter of concern. I also found his evidence as to whether the offer was by him or by Mrs Pullia quite evasive.

32. In regard to Mrs Kings experience with e-commerce before her departure on leave, he said it was "extremely minimal", yet Mrs King was one of the people at Nike involved in some development work on e-commerce which was then put on hold pending the restructure. Her experience in this regard might have been less than Mr Stevenson wanted but the phrase "extremely minimal" is excessive and suggestive again that he was colouring his evidence.

33. The primary conflicts are between Mrs King's assertions and Mr Stevenson's denials, the latter usually being expressed in rather general terms. When I sought to resolve these, I generally found that the other evidence, particularly the documents, supported Mrs King.

34. For these reasons and others that follow I have substantial reservations about the reliability of the evidence given by Mr Stephenson, both in terms of veracity and completeness and where there is conflict between them I prefer Mrs King's evidence.

35. Mrs Pullia was appointed Human Resources director in August 2004, well after Mrs King had gone on maternity leave and so had no first hand knowledge of the Original Role. She first met Mrs King at a significant meeting on 7 March 2005. She was a confident witness who gave responsive answers to the questions asked of her but in a number of instances it appeared that she was giving evidence of what she had been told by others rather than what she had witnessed herself. For instance, she said that Mrs King had never said that she was coming back full time until 7 March 2005. However she then acknowledged that the communications that occurred were not with her but with Mr Stevenson and with Amanda Evans. Her knowledge of the content of these communications must necessarily have been second hand. Her hearsay evidence of what she says Amanda Evans was told by Mrs King concerning these communications cannot stand against the direct evidence of Mrs King.

36. Some of her evidence was inaccurate. For example, she said that Mrs King had been performing the duties of the Junior Position since returning from maternity leave, when it is clear that she was carrying out a different role. Indeed, when she returned from maternity leave, the duties of the Junior Role had not even been established. Elsewhere in her evidence Mrs Pullia agreed that the duties of the Original Role had been divided between the Senior and Junior Roles. It appears from other evidence that, until at least 1 August, Mrs King did both, as well as other work related to implementing the new system.

37. Mrs Pullia said that, at the 7 March meeting, Mrs King had said that she was coming back to work on Monday, Tuesday and Wednesday of that week, that is, for three days only. This allegation is not in her first witness statement but appears in the second. Mr Stevenson did not suggest that this was said and Mrs King denied it. It is not mentioned in the e-mail she sent to Mrs King immediately following the meeting which acknowledges that Mrs King is returning full time and agrees to provide details in regard to the Senior and Junior Roles (the former of which, Mrs Pullia insisted in her evidence, could only be performed full time). The allegation also seems inconsistent with the surrounding circumstances, particularly the e-mails sent by Mrs King on 25 February towards the end of her leave and on 8 March after her return to work and her discussions with payroll, all of which indicate an intention to return on a full time basis.

38. She refused to concede that the Contractor was performing a pared down version of the Original Role. She said the basis of her view of the Original Role was her observations of the Contractor and what she described as "what documents that were around." I do not accept her evidence as to extent of the Original Role. It is inconsistent with the weight of the other evidence and she was not there before Mrs King went on leave when the Original Role was being performed and so had no direct knowledge of its extent. I think her evidence in this regard is probably second hand. Further, opinion evidence is only relevant if the witness is suitably qualified. She was not qualified to give expert evidence and indeed, did not purport to do so.

39. For the same reason, I do not accept her evidence as to the comparative qualifications of Mrs King and Miss Hore in their candidacy for the Senior Role. As to Mrs King she said:

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43. Attached to her witness statement is a document prepared by Nike entitled "Coaching for Excellence Accountabilities" ("the Original Role Description") in which her duties in the Original Role are set out. This document appears to support her assertions as to the breadth of the Original Role although it is expressed in different terms. Of the "Outputs" described in this document, those to which she was to devote 50% of her time are described as "Participate & Contribute". Those to which she was to devote 40% of her time are described as "Lead, Coordinate & Manage". Of these latter tasks, there are two in which, as part of implementing them, she is to "Educate the sales managers on all sales planning processes and outcomes". Those tasks were called "The business operating plan & forecasting process" and ""The sales strategic planning & budgeting process for FY04". I note that one of the sales managers at the time was Mr Stevenson.

44. She had a sales operations analyst who reported to her and she in turn reported directly to the Sales Director. She also said in evidence that she was experienced in strategic analytical work for "a high volume top end company".

45. Mr Turnbull said that he had worked with Mrs King closely in the sales management team. He said that when she came into the organisation there was a real focus and need for accountability on behalf of the sales group and she was charged with strategising, designing and creating a series of templates and measures to provide a factual base for the decisions the sales group would make. He said they would outline strategies to go forward and grow the business and Mrs King would then work behind the scenes to cost those measures and ultimately determine whether they were going to be profitable or not for the entire business.

46. Mr Stevenson's evidence of Mrs King's role before she went on maternity leave is sparse in his written statements. He says that in his opinion, the Junior Role was very similar to her pre-maternity leave position, save for the fact that there was no report to it and it did not report directly to the Sales Director. In what respects it was similar he does not specify. In paragraph 60 of his first witness statement he says that staff management responsibilities and strategic business exposure was only a small part of what she did. He estimates that it would have occupied less than 10% of her time overall but he did not say what the basis of this estimate was. The most detail he provides as to his view of the Original Role was that it was "an information position, implementing other person's planned tasks, rather than taking the initiative in such tasks". Again, he does not say how he formed this opinion.

47. In his second witness statement Mr Stevenson says that he worked alongside Mrs King before her maternity leave "and so I know what the role was". This seems to be the only evidence provided as to the source of his knowledge, apart from his assertion that he was "shown her accountabilities" at some earlier time. However, Mr Turnbull also worked alongside her on the same level and thought that the information he was given by Mr Stevenson about the Senior Role described the Original Role. Indeed, his evidence was that he said to Mr Stevenson at the time he was offered the job that it was Mrs King's position.

48. Significantly, Mr Stevenson does not refer at all to the Original Role Description, which defines what the role was. This seems extraordinary. The document was of critical importance and was available to him. He acknowledged in cross-examination that he had seen it and was aware of its existence. Yet his evidence is quite inconsistent with it. For example, in his second witness statement he says that Mrs King was not responsible for analysis yet the very first output in the Original Role Description requires her to design and produce analysis. Also, in the strategic planning and budgeting process which she is to "Lead, Coordinate & Manage", she is required to "Review, validate and analyse all customers & SG&A budgets and provide an executive summary comparison of FY04 budget, FY03 actual and FY03 Budget to the Sales Director in a timely manner." Even more significantly, Mr Stevenson did not provide the Original Role Description to Dr Hurley who was thus engaged to assess the seniority of the role without the very document that set out what it was.

49. I do not accept the evidence of Mr Stevenson as to the scope of the Original Role and since the documentary information as to its scope was available to him I can only conclude that he has downgraded its importance for the purpose of this case. I find this a matter of grave concern.

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53. In addition to these documents she also had the position description, dated 5 August 2005, of the Contractor's Role ("the Contractor's Job Description") that Mr Stevenson says was prepared by the Contractor and reviewed by him in mid 2004. Whereas the Original Role Description is fairly detailed and sets out what is to be done, the hours to be worked each week in each area (totalling 60) and a description of what each task involves, the Contractor's Job Description is just two pages, only the first of which was given to Dr Hurley, and is expressed in very general terms. For example, under the Contractor's Job Description the Contractor is required by the document to achieve the following "Strategic Objectives":

"Deepen the Consumer Relationship

Deliver Absolute Product Superiority. Period.

Make Supply Chain a Competitive Advantage

Leverage our growth potential." (sic.)

What this means in plain English and what the holder of the position was really supposed to do was never explained, nor does the document say how he should or could achieve these very general "objectives". This document, prepared by the Contractor and Mr Stevenson, is in stark contrast to the Original Role Description.

54. Miss Collins-Hughes says in her report that there is a full list of accountabilities in the Original Role Description which states the weighting, in hours, for each aspect of the role. She notes that the hours add up to 60 for a standard week's work. She summarises what she says were the "key outputs" of the Original Role in 2003 and comments on some of the terminology used.

55. She concludes that the Contractor's Role is "clearly not at the same level as the Original Role in which Sally King was working". She pointed out that it had no subordinate role reporting to it and no budgeting function. She said that the strategic and regional aspects of the job had also been removed.

56. She then analysed the Senior Role, although she noted that at the time of Mrs King's interview there was no specific job description for that position. She said that Mr Stevenson told her that he used "some regional ones that he thought might be comparable" but preferred not to develop a job description until there was a person in the role. It appears that it was because of this that Mrs King wrote a presentation for the purpose of her interview setting out how she saw the role.

57. Mr Stevenson's expressed preference to prepare a job description once he had someone in the job seems odd. One might think it more logical to establish what the position was and then find someone suitable to fill it rather than appoint someone and then tailor the job description to suit the incumbent. Nevertheless, that seems to have been what was done. Mr Turnbull, who had worked at Nike for many years, said that there are a standard couple of sets of documents that are normally attached to any new role as it is posted but that he did not receive any of that information when he was offered the Senior Role. I therefore conclude that what happened here was not normal practice at Nike.

58. Miss Collins-Hughes said that she believed that the role that "flowed directly from" the Original Role was the Senior Role. Referring to the Original Role Description, she said:

"Words such as 'lead', 'co-ordinate' and 'manage' as well as the content, indicate that the job, which is at the level of reporting to a director, is a high level job with primary accountabilities for key strategic functions within the team."

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61. The surprising omission in the information provided to Dr Hurley by Mr Stevenson is the Original Job Description. I find that this described the job that Mrs King was doing before going on leave and it contains considerably more information about the original role than that imparted by Mr Stevenson to Dr Hurley at the interview. Under cross-examination Mr Stevenson said he was unsure whether it had been shown to Dr Hurley. This is difficult to believe. He was the principal person charged with providing instructions to an expert witness whose report would have to be based on the information he provided. He ought to have ascertained what information Dr Hurley had to ensure that he had all the facts. His answers to questions about this document were, I think, evasive.

62. A Position Description for the Senior Role, called a "Success Profile", was prepared by Miss Hore with the approval of Mr Stevenson in November 2005 so it was not available at the time of the interviews. Miss Collins-Hughes pointed out that this position description appears to be similar in many respects to the draft position description that Mrs King had prepared for the Senior Role for the purpose of her own interview.

63. As stated, Dr Hurley was only provided with the first page of the Position Description for the Contractor's Role which had left off one of the 5 individual business goals. It seems extraordinary that he did not notice this because in the column above, where the goals are set out, there is the heading: "Big 5 Individual Business Goals" and below that, there are only four numbered paragraphs relating to the first four of these goals. It does not appear that he raised any query about this.

64. In response to questioning about this omission he said that he had little regard to the August 2005 document and gave it little weight because although it was "an indicator of a description of the role" (sic.) he chose to interview Mr Stevenson to get his opinion. He also chose not to interview Mrs King.

65. At the time he made these choices he believed that Mr Stevenson was the sales director to whom Mrs King had reported before going on maternity leave. He was unaware until told in the witness box that this was not the case.

66. Dr Hurley was accompanied at the interviews of Mr Stevenson and Miss Hore by a colleague, Miss Williams, and both took notes which were tendered. Dr Hurley says that he thought Mr Stevenson had a good and adequate understanding of the Original Role for him to be able to evaluate it and that he was led to believe that Mr Stevenson had in fact been the supervisor of Mrs King.

67. Dr Hurley said that he believed that he asked Mr Stevenson whether there was a report to the Original Role. He also believed that he was not told at the interview that there was such a report and there is certainly nothing in his notes or those of Miss Williams to suggest that he was. Despite this, Mr Stevenson insisted during cross-examination that he had told Dr Hurley there was a report to the role. However the absence in the notes of both Dr Hurley and his colleague of any mention of a report leads me to conclude that Dr Hurley's belief that he was not told is correct. I do not believe Mr Stevenson's evidence in this regard. Interestingly, although Mr Stevenson made no mention of the report to the Original Role he did tell them about the reports to the Senior Role.

68. Although acknowledging that when he assessed the earlier role of Mrs King he had not taken into account that it had a report to it, Dr Hurley said that the existence of this report made "no significant difference" in that it makes no difference to the Hay Points allocation. I am unhappy with Dr Hurley's evidence in this regard which seems defensive. Elsewhere in his evidence he said that the existence of a report was something that was taken into account in assessing the value of a job. In this regard I prefer the evidence of Miss Collins-Hughes.

69. Dr Hurley defended the lack of reliance upon documentary evidence as to the extent of the Original Role by saying that he interviewed "the boss", although it is clear that he did not do so. There was no interview of the person who actually supervised Mrs King, nor was she herself interviewed.

70. In his second witness statement Dr Hurley said he did not interview Mrs King because the information she would have provided would have been subjective and that she would have tended to overemphasise or exaggerate things which supported her case. Again, this sounds somewhat defensive. The same might be said in regard to Mr Stevenson or any other person involved in the dispute but whatever the reason, he did not interview her and so proceeded on incomplete and, I find, inaccurate information.

71. Dr Hurley's notes of the interview with Mr Stevenson occupy only two handwritten pages. At the top of the first page Dr Hurley has written "Sally worked for David from May 2004 when David started to October 2004". It is clear on the evidence that for the whole of that period Mrs King was on maternity leave, although she provided some occasional assistance to the Contractor from home.

72. The notes taken by Dr Hurley's colleague are more detailed. It is clear from the notes of both Dr Hurley and his colleague that Mr Stevenson described the Original Role to them in fairly simplistic terms and his own source for what he told them is by no means apparent. He must have appreciated the importance of ensuring that Dr Hurley was fully and accurately informed and I feel that his down-playing of the Original Role and his neglect to give them the Original Role Description must have been either reckless or deliberate. Again, this is a matter of grave concern.

73. Because of the deficiency in information from either available documents or some person with knowledge of the relevant facts, I do not believe that Dr Hurley was in any position to make an accurate assessment of the value of the Original Role and I therefore prefer the evidence of Miss Collins-Hughes. I would add that whereas Miss Collins-Hughes sets out the grounds of her conclusions in her report Dr Hurley's report does little more than set out the result of his assessments.

74. I therefore accept Miss Collins-Hughes evidence that the Senior Role was substantially similar to the Original Role and considerably senior to the Junior Role to which Mrs King has been relegated. That is not to say of course that it was identical to the Original Role. The Senior Role had responsibility for e-commerce, something which had been discussed earlier but not implemented. It also had four people reporting to it instead of one. The evidence I accept is that, notwithstanding these differences, it is of a similar seniority to the Original Role and in substance the role that the Original Role had become following the restructure.

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77. The next meeting occurred on 21 December when Mr Stevenson told Mrs King of a proposed restructure and described a new role of "Sales Operations Manager", which was the earlier name given to the Senior Role. She said that from his description this sounded similar to the Original Role. He said to her that the job was hers if she wanted it but that it would be five days a week. Mr Stevenson denied he said that and then added that he had doubts that he could have done so anyway because he was uncertain of the job description for the position. However he offered the job to Mr Turnbull without a job description and there was still no job description for it at the time of interviews, apart from some indicative ones that had been prepared for other positions overseas. It was also Mr Stevenson's own stated preference to prepare job descriptions after a role was filled. Again, I prefer Mrs King's evidence. I find that Mr Stevenson did offer her the Senior Role at that time.

78. At the same meeting, Mr Stevenson told Mrs King that there was to be another position, being the Junior Role, which he described as having less responsibility than Mrs King was accustomed to but that this could be performed three days a week. Mr Stevenson did not deny this specifically but said again that he had no "success profile" for the job. He said in his first witness statement that, with some stated exceptions, he believed the Junior Role was very similar to the Original Role. On all of the evidence, particularly that of Miss Collins-Hughes, I find there was, and is, no reasonable basis for such a belief and I do not believe that he honestly held it. I accept Mrs King's account of what was said about the Junior Role.

79. Mrs King also said that, during that meeting, Mr Stevenson expressed concern about how women working at home managed their time, that they may spread their work over longer hours interrupted by other activities and that he needed to investigate how this time could be managed without loss to Nike. Mr Stevenson acknowledges that he said he would need to look into the suitability of the policy. I accept Mrs King's account of what he said.

80. Finally, Mrs King says she asked him to inform her about any other opportunities for part time work in the restructure and he agreed to do so. She also requested a job description and salary range for the new "Sales Operations Manager" position. I accept her evidence.

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87. Mrs King returned to work on 7 March 2005. At 8.26 that morning Mr Stevenson sent the following e-mail to all of Nike Pacific staff:

"Hi everyone

Sally King returns back from maternity leave today, only 12 months since having little Marcus.

Sally will be initially returning 3 days a week, of which 2 will be in the office, and 1 will be working from home. Over the next four weeks, Sally may be a little transient in where she sits, until Nick Edwards finishes up with us at the end of March.

Please welcome Sally back to the office, and if she s p e l l s e v e r y t h i n g out when talking to you please be patient!

Dave"

88. Mr Stevenson said that he intended the last paragraph and the double-spacing between the letters in the words "spells everything" to be humorous. The suggestion, undoubtedly not intended to be taken seriously, is that because Mrs King has been looking after her baby for the previous 12 months she might spell out words when speaking to adults. Whether humorous or not, it seems an odd message to send to a large number of people many of whom may not have known Mrs King on a personal basis. Mr Stevenson said that it was sent to "..the entire Nike Australia head office". In re-examination he suggested that it had been sent to all Nike staff in Australia, New Zealand and the Pacific Islands. Although I accept that it was intended to be humorous, the e-mail suggests that Mr Stevenson makes a connection between Mrs King's role as a carer of her child and her performance in the workplace, which is a matter of concern. The tone of the e-mail, concerning as it does a senior executive returning from leave, is also patronising.

89. The other significance of the e-mail is that it suggests that Mr Stevenson believed that, at least initially, she would be coming back three days a week, one of which would be worked from home. This is curious because at that stage no position details had been provided to her and she had not been appointed to any position and so in returning to work she was returning to the position she had left, which was a full time position.

90. Mr Stevenson said that he believed that she was to return on a part time basis as a result of a conversation he says that he had with her but his evidence as to this alleged conversation is conflicting. In paragraph 35 of his witness statement he says that, "at some time following the 23 February conversation" Mrs King told him that she wanted to return part time and that they agreed she would work three days a week. He does not say when or in what manner this communication was made. Under cross-examination he said at first that he had no recollection of any contact with Mrs King after 23 February until her return on 7 March. He then said that the request was made in the telephone conversation of 23 February. He said that, in that conversation: "We very clearly agreed it would be part time initially three days a week.". Later in cross-examination he said that they had such a discussion between 23 February and 7 March.

91. Mrs King denies there was any such agreement to work part time and the claim that there was is inconsistent with her e-mail of 25 February. She had complained to Amanda Evans about changes to the telecommuting policy and had certainly said a number of times that she would like to work part time but as her e-mail shows, at the time in question she was anxious to know her options before making a decision. Since December she had been seeking details of her options and these were never provided.

92. The Contractor was to remain until 31 March to hand the position back to Mrs King. Mr Turnbull had not yet declined the offer of the Senior Role. Had he accepted it, it is unclear what there would have been for Mrs King to do pending the restructure. It may be that, knowing the Contractor would be there and knowing that he had not given Mrs King the information she had requested and perhaps believing that her preference, expressed earlier, was to work for thee days a week Mr Stevenson took it upon himself to agree to it at least initially, until options could be discussed, and that he then informed the staff that that would occur.

93. Whether or not any of those matters explain the e-mail, I am not satisfied that there was any agreement before Mrs King's return that she would return to work on any terms other than those that applied when she left. She had worked full time. As she pointed out in evidence, no revised contract of employment for part time work had been presented to her. There was no letter or even an e-mail sent to her advising her of any change in her employment situation to part time. She had, in the discussions referred to indicated a preference to pursue part time and telecommuting options but none had been offered to her. Accordingly, she was not in a position to make any decision about what she would do apart from return to work, which she did.

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94. On the day the fax was sent, 7 March 2005, Mrs King had a meeting with Mr Stevenson and Mrs Pullia. She said she was told at this meeting that the telecommuting policy was being reviewed and that working from home would be permitted only in exceptional circumstances. Mr Stevenson denied that it was said that all five days would need to be worked in the office but he acknowledged that he had said in December that he would need to look into the suitability of the telecommuting policy. It does not appear from his evidence whether he ever did and I accept Mrs King's evidence that he never told her that it was available to her. Nevertheless, the fax he sent demonstrates that at least to start with he would allow her to work one day a week at home.

95. Mrs King said that Mrs Pullia told her that the policy could not be used as a substitute for child care and that she would not be permitted to work from home. Mrs Pullia denies having said that but agreed in her witness statement that the telecommuting policy had changed and was to be looked at on an individual basis. Mrs Pullia also agreed that the policy cannot be used as a substitute for childcare. She did not provide much detail of what she did say at the meeting about telecommuting. I am unable to find, one way of the other, precisely what was said about telecommuting although I accept that Mrs King formed the view from what was said at the meeting that it was not available for her.

96. It was confirmed at the meeting that the Original Role was to be abolished with the restructure. Mrs King said that it was agreed that she would be given details of the Senior and Junior Roles but they did not feel she was suitable for the Senior Role because it would require in excess of 60 hours a week and the Junior Role would be more suitable for her. It should be noted that by this time it had been determined to offer the Senior Role to Mr Turnbull and he had not yet rejected it. Both Mr Stevenson and Mrs Pullia denied that they said the roles would require more than 60 hours a week. Mr Stevenson agrees that he said that both roles would be labour intensive. He then acknowledged that he said that at times the hours could be up to 60 hours a week but added that these are not the usual hours. Mrs Pullia said that Mr Stevenson said that the Senior Role had a heavy workload and could not be performed part time. She added that he also said that he would look into whether the Junior Role could be performed part time.

97. However it was expressed, I am satisfied that both Mr Stevenson and Mrs Pullia told Mrs King at the meeting that both roles were very demanding, that the Senior Role could require in excess of 60 hours a week and that the Junior Role would be more suitable for her. Since they were still trying to interest Mr Turnbull in the Senior Role I think it likely that their intention at the meeting was to discourage any interest Mrs King might have had in the Senior Role and, perhaps, steer her towards the Junior Role since there does not appear to have been any other position available.

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106. Mrs King was told by Mr Stevenson that she would have to apply for the positions and that interviews would be held in mid April. It is unclear when she was told this but I think it likely that it would have been after Mr Turnbull had rejected the offer.

107. The two final candidates for the Senior Role were Mrs King and Miss Hore. They were interviewed first by Mr Stevenson and Mrs Pullia and then, by video conference, by a Mr Kevin Manley in America. Mr Manley was the Regional Sales Operations Manager responsible for the Pacific region.

108. For these interviews, Mrs King prepared a written presentation comprising two documents. The first of these was a "Big 5" set of accountabilities that she thought appropriate for the Senior Role and the other was a 30 to 90 day plan to indicate how she would progress the business through the Senior Role following her appointment. There is no evidence as to what documents, if any, Miss Hore prepared. None have been produced.

109. Before the interview, Mr Stevenson sent an e-mail relating to a number of appointments to Mrs Pullia. Included in this was the following:

"Sales Operations and Analysis Manager

We have an interview with Sally King this afternoon, so I will have a point of view on the preferred candidate (along with Sandra Hore) tomorrow. We also need to run our preferred option through Kevin Manley on a video conference as well."

In the margin next to this passage, there are the following handwritten words:

"OK. It's not Sally King in my POV"

These words were written by the Manager, Mr Balfour, who was Mr Stevenson's superior. I was told that "in my POV" means "in my point of view"(sic.). Mr Balfour was not called to give evidence as to why he held that view.

133. Mr Stevenson acknowledges that Mrs King's application was impressive. He said that her presentation at the interview and her handling of questions were positive and reflected her knowledge of Nike and her experience there.

110. After her interview with Mr Stevenson, Mrs King was interviewed by Mr Manley. Mr Manley sent an e-mail to Mr Stevenson summarising the two video conference interviews. His comments on the two candidates seem to me to be more favourable to Mrs King than to Miss Hore, although he expresses no final preference for either candidate and leaves the choice to Mr Stevenson. Of interest, in the first line of his e-mail, he said as to Mrs King:

"Overall, a better interview than I had expected - she was very relaxed and thoughtful and seemed much more confident in her answers."

There is nothing in the evidence to suggest why he had expected less.

111. Mr Stevenson said that Mr Manley told him that he had reservations about Mrs King and that he thought she was not the better candidate because she had not had commercial experience or extensive project management experience. It seems odd that, if Mr Manley really had these concerns and had expressed them to Mr Stevenson in a telephone call, he did not put them in the very detailed e-mail that he sent almost immediately afterwards.

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112. In regard to management Mr Manley said in his e-mail that Mrs King had the most direct functional experience with the Sales Operations function of anyone. He said that although she had little people management experience, with only one person reporting to her, she had nine people reporting to her in her previous employment. He said that she had demonstrated her project management skills but he questioned how successful she would be "...at championing new ideas... with the Pacific team." As to Miss Hore, he pointed out that she had demonstrated team management skills but "...little people management experience at Nike so this is a bit of an unknown how she will do with 3-4 people reporting directly to her." He adds "She doesn't have much knowledge about the Sales Ops function in the areas of Sales Tools or Sales Planning so this will be a stretch for her." He concludes the e-mail with a request for Mr Stevenson to let him know how things go, from which I infer that he leaves it to Mr Stevenson to make the decision.

113. Despite all the other detail, there is nothing in the e-mail to corroborate Mr Stevenson's claims about what Mr Manley told him. This Tribunal can receive hearsay evidence but it must be treated carefully. The best evidence as to what Mr Manley thought of the candidates would come from Mr Manley himself. In that regard, all that I have is his e-mail. What Mr Stevenson says he was told by Mr Manley is inconsistent with the e-mail which immediately followed that conversation, if it occurred. Even if he had the telephone conversation, it is impossible to assess the reliability of Mr Stevenson's recollection, almost a year later, of what Mr Manley said to him in it, particularly where it does not appear that he made any written record of it at the time. For this reason and because I have significant doubts as to the veracity of his evidence I am not prepared to give any evidentiary weight to Mr Stevenson's account as to what he says Mr Manley told him in the telephone conversation but I will receive the e-mail as evidence of what Mr Manley thought, because that is a contemporaneous written record of his thoughts prepared by him.

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116. Her complaint of discrimination was made to the Equal Opportunity Commission on 6 May 2005. Mrs King nonetheless continued working at Nike although she refused to sign an employment contract for the Junior Role.

117. She continued to manage the Sales Operation Department until Miss Hore started in the Senior Role in August. She says that she then had to train Miss Hore in budgeting, reporting, preparation of customer information booklets and pricing analysis. She said that she also "extensively counselled" the Pricing Analyst in Finance on pricing analysis, discount reporting and budgeting, because that part of the Original Role was now handled by Finance. I accept this evidence.

118. Mr Stevenson claimed that these were tasks of the Junior Role but they do not seem to fit within the stop-gap position description for the Junior Role given to Mrs King before the interview. There is no mention in that document of training the occupant of the Senior Role or recruiting or training anyone else, apart from those responsible for entering, maintaining or accessing customer profile information or "members of the customer information team". There is also no mention of carrying out any work necessary to implement the change to the new system. However, in the stop-gap Position Description for the Senior Role given to Mrs King before the interview the duties for that role are said to include coordinating "...the implementation, training and support of new systems" and "..appropriate training to the sales force on Sales processes and tools.". I accept Mrs King's evidence that this extra work was outside the Junior Role and within the scope of the Senior Role.

119. I have found that the Senior Role replaced the Original Role and it does not appear that anyone else was doing the job, apart from the Contractor, who was handing his duties back to Mrs King. Further, in August 2005, Mr Stevenson sent Mrs King a "Success Profile for the Junior Role." This is expressed in very general terms but appears to relate only to sales information. Again, the only staff responsibilities mentioned in this document relate to "training of the sales team on Information and Planning tools".

120. I am satisfied that, until Miss Hore started, Mrs King was carrying out at least a substantial part of the duties of the Senior Role. In this, as in so much of his evidence, Mr Stevenson was at least careless in what he said.

121. The job description for the Senior Role was prepared by Miss Hore in consultation with Mr Stevenson in August. Interestingly, the "Strategic Objectives" she is to achieve are said in this document to be:

"Deepen the Consumer Relationship

Deliver absolute product superiority. Period.

Make Supply Chain a Competitive Advantage.

Focus on Fields of Play to Accelerate Growth." (sic.)

122. The first three lines are identical to the first three lines of the Strategic objectives the Contractor was to achieve, except for the last line which, for the Contractor, was: "Leverage our growth potential." Whether there is any difference in meaning is impossible to say since it is unclear, in plain English and in practice, what any of these "Objectives" means.

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122. Between the offer of the position in December 2004 and the interview, his attitude towards her changed substantially. To find why one must look at the evidence of what occurred in that period.

127. First, at the December meeting and after the offer was made, Mrs King intimated that she wanted to work part time and partly from home. Mr Stevenson's view, one that he expressed to her at the time, was that the Senior Role would require a full time commitment working from the office. He says that he told her it was a very large role with long hours and I find that was his perception. He also expressed concern at that same meeting about how women working at home managed their time, that they may spread their work over longer hours interrupted by other activities and that he needed to investigate how this time could be managed without loss to Nike. He said that the Junior Role could be performed three days a week.

128. When Mrs King did not immediately accept the December offer she discussed options involving part time work and working from home. It was after she raised those options that Mr Stevenson's attitude towards her as a candidate for the Senior Role changed. Those options related to her child care responsibilities. His subsequent conduct is consistent with the notion that, following this conversation, Mr Stevenson saw Mrs King as a woman who wanted to work part time and partly from home so that she would have more time with her baby. Indeed, in January she raised complaints with Miss Evans about changes to the telecommuting policy. This did not fit with his view of the Senior Role at all. He wanted someone who would be able to work the long hours he thought the job required and whose attention to the job would not be interrupted by "other activities". He did not see Mrs King as being such a person because of her expressed desire to spend some time caring for her child. A change in attitude is also reflected in what he said to her in the telephone conversation of 23 February. I think thereafter he saw her only in the Junior Role.

129. There was then a need to find a suitable position within the company for Mr Turnbull whose role was also to cease. Accordingly, the Senior Role was earmarked for him and he was told by Mr Stevenson that, although Mrs King would be interviewed, she would not receive the position. He would.

130. Thereafter, there was a failure to provide Mrs King with the information she requested about available positions. The contact in mid January from Amanda Evans of Human Resources would suggest that she thought it was for Mr Stevenson to provide this information. Although he provided information to Mr Turnbull and even went to see him about the Senior Role with a folder of documents, he provided no such information to Mrs King. There has been no explanation given for this. I think the only reasonable inference to draw is that he did not provide the information to her about the Senior Role because he did not see her in that position and wanted it to go to Mr Turnbull.

131. According to Mr Turnbull, Mr Stevenson told him that Mrs King would be interviewed for the role that was being offered to him; that is, although she would be interviewed for the role, it would be his if he wanted it. This is revealing evidence. Why would Mr Stevenson interview her for a role he had promised to someone else? The only answer can be that her interview would not be a genuine one, in that he had already decided that, if Mr Turnbull wanted the Senior Role, she would not have it, however well she might perform at the interview. He was nonetheless willing to go through the pretence of an interview for no other purpose than to give Mrs King the impression that she was being considered for the job when she was not.

132. After Mr Turnbull declined the Senior Role Mr Stevenson's changed attitude about Mrs King persisted. From being his preferred candidate when he offered her the role in December he now does not want her in the Senior Role at all. Instead he steers her towards the much less demanding Junior Role.

133. Yet she was the obvious choice for the job. The Senior Role was, on the evidence, her existing role with some responsibilities added to it. She had already been doing it for some time to a very high standard. She had worked for Nike for over four years. The assessment documents tendered support her evidence that she was very highly regarded at Nike and, contrary to what Mr Stevenson asserted, she had more directly relevant experience than Miss Hore who had been working in another area. Miss Hore had worked at Nike for only 18 or 24 months (Mr Stevenson was unable to say precisely how long) but significantly, she had not been on maternity leave.

134. In the end, the only reason Mr Stevenson gave for not appointing Mrs King was that Miss Hore was the better candidate. Yet the only evidence I have that he thought Miss Hore was the better candidate is his own evidence. The documents certainly do not support such a view. I also note that there is no suggestion that he had offered the Senior Role to Miss Hore in the previous December.

135. He said several times in his evidence that he considered that the Junior Role was the equivalent of the Original Role without having any reasonable grounds for such a belief apart from an expert's report based upon incomplete and erroneous information that he himself provided.

136. That he considered Mrs King's child care responsibilities to be significant is apparent from what he said to her, namely:

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134. There is also the lack of any explanation of Mr Balfour's annotation in the e-mail or why he believed Mrs King should not be appointed. Why had he formed this view? Was it related to her child care responsibilities or to something else? He was not called to explain and so I do not know. As I pointed out in submissions, the wording of his note is more suggestive that he had something against Mrs King's candidacy than that he thought Miss Hore to be the better candidate. If there was anything apart from the prohibited ground that was against her candidacy, I am surprised Mr Balfour was not called to give evidence about it. This e-mail and note appeared in Mrs King's witness statement that was filed a month before those of Nike's witnesses. The key issue in this case is why she was not appointed and Mr Balfour was Mr Stevenson's superior. In these circumstances an explanation was called for and none was forthcoming. I infer that the evidence about it by Mr Balfour would not have assisted Nike but that does not, in itself, mean that his antipathy towards her candidacy was necessarily on a prohibited ground. It simply means that, even before her interview, the Manager of Nike did not want her in the role and he will not say why. It is significant when looked at with the other evidence. I note Mr Stevenson claims it did not influence him and has not sought to justify his conduct by reliance on it.

137. There are the apparent inconsistencies between Mr Stevenson's reasons for preferring Miss Hore and the documentary evidence. The suggestion that Mrs King did not have the necessary strategic or commercial acumen is ridiculous and inconsistent with Mr Manley's e-mail, the documents relating to her earlier position, her performance in that position and the fact that she had previously done the job and continued to do it until Miss Hore took it over. It is also inconsistent with other parts of Mr Stevenson's own evidence. Why bother to say that if, despite what he said in his first witness statement, he finally acknowledged that Mrs King was competent to perform the Senior Role?

138. Much of Mr Stevenson's evidence is coloured or contrary to other evidence that I have accepted and in some instances I simply do not believe his evidence. If the facts supported the Respondent's case, why seek to change them?

139. From all of this evidence I infer that she was not appointed because of her childcare responsibilities and the effect Mr Stevenson thought these might have upon her performance in a role he considered highly demanding. This inference is drawn in the face of his contrary sworn evidence but his evidence is most unsatisfactory and the grounds for the drawing of the inference are sufficiently strong to support such an inference. Having carefully reviewed the whole of the evidence, I am satisfied on the balance of probabilities that that was why she was not appointed.

140. Mr Stevenson eventually agreed that Mrs King would have been suitable for the position, but claimed that he did not appoint her because Miss Hore was the better candidate. I do not believe him. I think she was not appointed for the reason I have given. I am satisfied that if she had not had the care of her baby and expressed a desire to have some time with him she would have been appointed to the Senior Role which was, substantially, her old job back with some additions. In all the circumstances it would have been foolish not to have appointed her. In regard to the non-appointment to the Senior Role, the complaint is proven.

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145. The first question to be considered is her evidence that, if she had been offered the Senior Role, she might not have accepted it. This has to be looked at in the context of the whole of her evidence. Her preference was to work part time if she could, but no part time positions were ever offered to her. As she pointed out in her e-mail of 25 February, she needed to consider whether the salary would "sustain a 5 day a week option." The problem was that she had arranged child care for only three days a week and to engage a nanny was expensive. As it was, she was given no choice and, even for the Junior Role, she was required to work for 5 days a week. I think it more probable than not that, given the alternative of working 5 days a week in the Junior Role, she would have accepted the Senior Role that was to be worked the same number of days but at a substantially greater salary.

146. The salary for the Junior Role was $75,000 per annum and the salary for the Senior Role was said to be $90,000, and this figure appears on one of the documents. On this evidence, had she been appointed following the interview as I think she would have been, but for her status as a parent and carer, she would have received an extra $15,000 per annum from, at the latest, when the role was to commence on 1 August 2005 until now, less the second twelve months maternity leave which she commenced on 19 December for twelve months, of which only twelve weeks is paid, according to the evidence. That leaves a period of 260 days at the rate of $15,000 p.a. The loss of income for that period is therefore $10,685.

147. There is no evidence what she now intends to do. She might remain in the Junior Role in the future but, in view of her qualifications and experience, it is equally possible that she will seek a position equivalent to the Senior Role with another employer. Damages cannot be assessed without evidence and, apart from the loss of income to date I do not have any. I cannot therefore award any prospective damages for loss of income.

At a glance

Court

Decision date

Source

Judgment (61 paragraphs)

King v Nike Australia Pty Ltd (Anti Discrimination) [2007] VCAT 70 (19 January 2007)

Parties

Cases Cited (1)