1 The Complainant, Mrs King, is and has been since March 2000 an employee of the Respondent ("Nike"). She alleges that, following the birth of her first child, Nike discriminated against her by reason of her parental responsibilities in that it did not appoint her to the position of Sales Operations and Analysis Manager ("the Senior Role") in its hierarchy but required her instead to occupy the lesser position of Sales Information/Planning Manager ("the Junior Role"). She also claims she was refused the option of working from home or working part time when she returned from maternity leave but the most significant claim is the first. She says that this discrimination was in breach of the Equal Opportunity Act 1995 ("the Act") and seeks damages and other relief.

2 The matter came before me on 24 July 2006. The hearing proceeded over three days and was then adjourned to Tuesday, 1 August 2006 when it concluded. Mr Millar of Counsel represented Mrs King and Mr Donaghey of Counsel represented Nike.

3 For Mrs King I heard evidence from Mrs King herself, from a human relations consultant, Miss Collins-Hughes and from a Mr Peter Turnbull, a former employee of Nike who appeared on subpoena. For Nike, I heard evidence from its Sales Director, Mr David Stevenson, its Human Resources Director, Mrs Louise Pullia and from a human relations consultant Dr Colin Hurley.

4 Mrs King has a bachelor's degree in commerce from the University of Newcastle and is also a Certified Practising Accountant. Before commencing work with Nike she held sales management positions with other large companies, including two in the clothing industry. Nike employed her as Sales Decision Support Manager. In this position, she reported to the then Sales Director, Mr Younane, and had a subordinate employee reporting to her. I shall refer to this position throughout these reasons as "the Original Role".

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.

10. By s.7 of the Act, "discrimination" means direct or indirect discrimination on the basis of an attribute. By s. 6, "attribute" includes parental status or status as a carer. The term "carer" means a person on whom another person is wholly or substantially dependent for ongoing care and attention. It was not disputed that Mrs King was a carer of her baby at all relevant times and had the status she claims.

11. Direct discrimination occurs if a person treats someone with an attribute less favourably than that person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances. The attribute must be a substantial reason for the treatment.

12. Indirect discrimination occurs if someone imposes a requirement or condition or practice with which someone with an attribute cannot comply, and the imposition of that requirement condition or practice is not reasonable.

13. Mrs King claims that she has been discriminated against on the ground of her status as a carer or parent in three respects:

a

She was required to return to full time work at the conclusion of her maternity leave instead of part time work which she would have preferred;

b

Nike would not allow her to perform any of her duties from home under its "telecommuting policy"; and

c

Nike failed to provide her with the same position she held before going on maternity leave or the equivalent of that position.

14. In regard to the first of these she says that she was less likely or able to comply with the requirement to work full time than someone without the responsibility of a parent or carer. She said that the imposition of the requirement to work full time was not reasonable and that therefore the conduct of Nike in imposing the requirement amounted to indirect discrimination within the meaning of s. 9 of the Act.

15. In regard to the refusal to allow her to work from home, Mrs King says that this imposed upon her a requirement to be physically present in the workplace. She says this was a requirement that a person with responsibilities as a parent or carer was less likely to be able to comply with than someone without those responsibilities and that the imposition of the requirement was not reasonable.

16. The last complaint relates to the rejection of her application for the Senior Role and her being put instead into the Junior Role which, she claims, amounted to a demotion. She says that the Senior Role was equivalent to the Original Role. This complaint is one of direct discrimination and the ultimate issues are whether the treatment was less favourable treatment within the meaning of s.8 of the Act and whether Nike would have treated another person who did not have the attribute of a parent or carer in this way in the same or similar circumstances.

17. Nike denies having imposed requirements upon Mrs King that she work full time and at the work place and says, in effect, that it was her choice to do so. It also alleges that the Junior Role was equivalent to the Original Role and that the reason she was not appointed to the Senior Role was that the successful applicant, a Miss Hore, was better qualified.

18. After considering the evidence and the submissions made, I find the third complaint is established. The other complaints are not made out and will be dismissed. I provide the following reasons for these conclusions.

19. In the absence of direct evidence, any finding that the alleged conduct occurred by reason of Mrs King's status as a carer or parent would need to be made from inference. The proven facts must be carefully examined to see whether any such inference can be drawn. In this regard, there is considerable conflict, as to the lay evidence, between the evidence of Mrs King and Mr Turnbull on the one hand and Mr Stevenson and Mrs Pullia on the other. In regard to the expert evidence there is conflict between the evidence of Miss Collins-Hughes for Mrs King and Dr Hurley for Nike.

20. Mr Donaghey referred me to the following passage from the joint judgment of Brennan and McHugh JJ. in the case of G v H [1994] HCA 48; (1994) 181 C.L.R. 387 at 390:

"An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience."

19. As was recently pointed out by the Court of Appeal in Chapman v Cole (2006 VSCA 70, the test as to whether an inference can be drawn is not whether it is the only inference reasonably open. That is the test in a criminal case. It is also not necessary to show that the inference necessarily follows. All that needs to be shown is that, if the underlying facts are accepted, the facts to be inferred are more probable than not. That case involved consideration of whether malice should be inferred in an action for malicious prosecution. Like this case, it involved the civil standard of proof but a serious finding that should not be made lightly.

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:

"She was definitely a good candidate for that position, it's just that the person who got that role just had more experience and a stronger competency related to that position that Sally did. It's not that Sally couldn't do that role."

40. She did not give evidence of any facts to support this suggestion that Miss Hore had a stronger competency for the Senior Role than Mrs King. If that was her opinion, and not just her belief of what Mr Stevenson's opinion was, it seems inconsistent with the other evidence and in any case, she is not qualified to give opinion evidence.

41. In general, where there is conflict between the evidence of Mrs King and Mrs Pullia I prefer the evidence of Mrs King.

Was the Junior Role a lesser role than the Original Role?

42. Mrs King asserted that the Senior Role was effectively the Original Role. She said that her primary duties in the Original Role included the following:

(a)

Manage, design, strategise and implement business decision support decisions;

(b)

Sales strategic reporting, budgeting and forecasting;

(c)

Local leadership team and regional investigation requests related to sales of customer specific information;

(d)

Trading terms analysis;

(e)

Strategic discounting and pricing analysis;

(f)

Customer performance reviews and management process;

(g)

Strategic scenario planning with sales management team to increase revenues and effectively manage customer relationships;

(h)

Sales related project (local, regional and global);

(i)

Sales tools management (including training for Pacific sales);

(j)

Key member of the Pacific sales management team for the discussion of long term sales strategies concerning customers, pricing, processes, resources and other higher level business issues;

(k)

Staff management and mentoring above a decision support personnel.

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.

50. Both experts analysed the respective roles and points were attributed to them, known as "Hay points". The greater the number of points, the more senior the role. Dr Hurley assessed the Senior Role at 496 points and the Junior Role at 298 points. Miss Collins-Hughes accepted these assessments as appropriate. The difference between them was that Dr Hurley equated the Original Role with the Junior Role and Miss Collins-Hughes equated it with the Senior Role. Whose evaluation of the Original Role should I accept? For that I must look carefully at the factual assumptions upon which the two experts based their opinions.

51. Miss Collins-Hughes interviewed Mrs King on 23 March 2006 in order, she said, to "clarify aspects of her position at Nike, to clarify timelines, to elaborate on the sales operation manager position that she (Sally King) had held prior to her maternity leave, and to factualise the process that she went through to transition back into work at Nike". She also interviewed Mr Stevenson on 24 March 2006 together with a representative from Nike's solicitors. She said that the purpose of this interview was to "factualise and further clarify aspects of David's statement specifically where it referred to the development of the SOM and SOAM roles as well as how the interviewees were apprised of the job descriptions, etc".

52. In her report Miss Collins-Hughes says she was provided with the following documents:

(a)

SOM Role Prior to December 2003, ie, the Original Role Description;

(b)

"Big 5" Presentation written by Mrs King for the Interview for the Senior Role. This was a draft position description for the role which she prepared herself since one had not been prepared by Mr Stevenson;

(c)

30-90 Day Plan written by Mrs King for the Interviews for the SOAM Position. This was another document prepared by Mrs King before her interview for the Senior Role setting out how she thought the role should be implemented;

(d)

Mrs King's witness statement;

(e)

The Particulars of Claim and the Particulars of Defence in this proceeding;

(f)

Mr Stevenson's first witness statement;

(g)

Dr Hurley's witness statement with the position description as supplied to him by Nike;

(h)

Mrs Pullia's witness statement with attached policies.

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."

59. In assessing the relativities of the positions, Dr Hurley did not speak to Mrs King but spoke to Mr Stephenson and Miss Hore. He seems to have proceeded on an assumption that the Original Role and the Contractor's Role were substantially the same without investigating whether that was really the case. As he said in cross-examination, the evaluation that he made was of the role he was lead to believe Mrs King performed.

60. Dr Hurley was provided with the following documents:

(a)

The Position Description for the Junior Role;

(b)

The Position Description for the Senior Role;

(c)

Page one of the Position Description for the Contractor's Role;

(d)

Organisational charts.

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.

75. Mrs King said that before going on leave, she expressed the desire to "transition back into work on a part time basis following maternity leave as other employees had done". She said that the then Sales Director, Mr Younane and the then Human Resources Director, Michelle Hayward, acknowledged that, "with details to be worked out at a later date".

76. The first discussion about her return occurred in August 2004 between Mrs King, Mr Stevenson, the Contractor and Miss Davis (the person who had reported to Mrs King). At this meeting Mrs King says that she said she would prefer to return part time for three days a week with one of those days being worked from home. She told them she was on a waiting list for a maximum three days a week child care. Mr Stevenson denies this was mentioned but I prefer Mrs King's evidence which is both detailed and credible. It also purports to be a positive recollection, whereas Mr Stevenson refers only to what he believes he would have said. Neither the Contractor nor Miss Davis were called by Nike.

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.

81. Mrs King says that no such information was provided to her by Mr Stevenson although she contacted him several times. Mr Stevenson said that he had discussions with her about other positions that did not interest her but he did not say what they were or when these alleged discussions took place. There is no documentary evidence of any such contact. In cross-examination he said that she could have accessed information about vacancies through her computer on the internet. Whether she could have done so or not he had agreed to provide her with the information on any vacancies and I accept that he did not do so. He also said in cross-examination that he would have referred any further requests from her to the Human Resources department. It would seem from a telephone call to Mrs King from Mrs Pullia's assistant, Amanda Evans, that Human Resources was expecting Mr Stevenson to provide the information to her.

82. That telephone call from Amanda Evans occurred in mid-January. Miss Evans asked Mrs King whether she had received any job descriptions. When she said that she had not received any Miss Evans said that she would chase up Mr Stevenson. This would suggest that Miss Evans thought that Mr Stevenson might have given her some by that time.

83. During January and February, Mrs King was told by Mr Turnbull that he had been approached "repeatedly" by Louise Pullia and offered the job of Sales Operations Manager. This caused Mrs King to be very concerned for her future with Nike because she had been told that the Original Role was to cease with the new structure.

84. On 23 February Mr Stevenson rang and told her that both the Senior and the Junior Role would require 5 days a week commitment. He also mentioned the possibility of another position in finance. She said that, during this conversation, he said to her that her priority should be the care and attention of her son and that she should want to spend as much time with him as possible. He said that both the Senior Role and the Junior Role would require long hours of work. Mr Stevenson denies that he reflected on her priorities and adds "It is not something I would say." Again, his account lacks the specific nature of hers and he adds a comment about what he claims he would not have done before proceeding in his witness statement to a more general denial. For this reason and because I doubt the veracity of his evidence generally and think she is the more reliable witness, I accept Mrs King's account of this conversation.

85. On 25 February 2005 Mrs King sent Mr Stevenson an e-mail as follows:

Just to keep our discussions progressing, can I please get information from you guys on the following roles:

•

Sales Operations manager

•

Information/Planning Manager

•

Other roles available within Nike at the same grade

The key information that I would need to make a final decision on a role would be:

All of the above options would be viable for me contingent on the right job description & salary package. If the salary was suitable for me to sustain a 5 day week option, I would definitely consider this, so please do not discount me at this stage.

I know you are pressed for time at the moment, so if it is easier for me to talk to HR directly, I would be willing to do this. Just let me know."

86. In response to this she received an e-mail from Mr Stevenson to say that he would try and get the information to her as soon as possible but by the time of her return to work on 7 March, no job descriptions had been given to her about any available positions. Indeed, it appears from the other evidence that Mr Stevenson had not prepared any. It seems surprising that such a large company would be undertaking a major restructure of senior management involving the creation of highly paid, responsible positions without first articulating what the duties of those positions were to be.

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.

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.

98. Mrs King said that, following this meeting, she asked Mr Stevenson if she could return on a part time basis but he told her that the role to which she was to return and occupy until the restructure came into effect - the Pacific Sales Operations Manager Role - would require her attendance five days a week in the office. Mr Stevenson denies this but I prefer her evidence. Not only do I regard her as a more reliable witness, but it fits with the heavy workload she had following her return to prepare fro the new system. I also note that, in fact, the Junior Role has been worked full time since its inception.

99. On 8 March Mrs King, who had in the meantime received Mr Stevenson's e-mail, sent an e-mail to Mrs Pullia, copied to Mr Stevenson and Miss Evans, confirming that she would be returning to work on a full time basis.

100. On either 7 or 8 March 2005, Mrs King received from Mrs Pullia documents intended to be treated for the time being as job descriptions and salary information in regard to the Senior and Junior Roles. These had not been prepared specifically for those positions but were taken from positions within the Nike organisation overseas that Mr Stevenson thought were similar. The description he considered appropriate for the Senior Role was a Position Description for "Country Sales Ops Manager" for South East Asia. The one he considered appropriate for the Junior Role was a Position Description for "Customer Information Manager" with the US Sales Operations Department.

101. In an e-mail referring to the two roles sent the same day, Mr Stevenson told Mrs King that the Senior Role would be full time in the office but that he would "consider" 3 days a week in the office for the Junior Role. After reviewing these documents, Mrs King told Mr Stevenson that the Junior Role was not the same level of responsibility as her earlier position and that she would be only interested in the Senior Role. He made no comment.

102. In the meantime, Mr Stevenson and Mrs Pullia were attempting to persuade Mr Turnbull to accept the Senior Role. Mr Turnbull said that he was first approached by Mr Stevenson who dropped by his office and suggested that he might be interested in the Senior Role but gave him only a verbal description of it. Mr Turnbull said this occurred in about "early-Marchish" 2005 but the evidence of Mrs Pullia and Mrs King would suggest that it was earlier. He said that he told Mr Stevenson at the time that he could not see any difference between the role as described to him by Mr Stevenson and the role performed by Mrs King. Indeed, he said in evidence that it struck him as odd that Mrs King was going to have to be interviewed for what he believed was her job.

103. After speaking with Mr Stevenson Mr Turnbull then spoke with Mrs Pullia and a number of other directors. He said that one of these directors told him that he was the "only person in the organisation" who was going to be able to fit into the role.

104. Mr Stevenson gave him a folder of papers to look at over what he thinks was the Easter break or the Labour Day weekend. I note that in 2005 Labour Day was on 14 March and Good Friday was 25 March. He was never provided with a written job description.

105. During March and early April Mrs King was contacted several times by Mr Turnbull to say that he was still being approached by Mrs Pullia to accept the Senior Role. He asked her whether, if he were to accept the Senior Role, she would be prepared to accept the Junior Role. She told him that she would not. He later told her that he had decided not to accept the offer of the Senior Role.

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.

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.

114. In his first witness statement Mr Stevenson says that, following the interviews, he decided that Mrs King was not the better candidate for the position because he felt "...she did not have the strategic or commercial acumen to be able to perform that position." (para. 64) and that "...her skills did not suit the SOAM position ..." (para 82). This is inconsistent with much of his other evidence and sits uneasily with the second paragraph of Mr Manley's assessment, which reads; "Is thinking more strategically, especially in terms of what would best serve the Sales Organisation in the future." Mr Manley said nothing in his e-mail about a lack of commercial acumen on the part of Mrs King, nor does he refer to the presence or lack of strategic or commercial acumen of either candidate. This does not seem consistent with the notion that these were the considerations that determined the choice of candidate.

115. On 28 April Mrs King was told that her application for the Senior Role was unsuccessful and that she would be appointed to the Junior Role. At the same time she was told that the Senior Role would not commence until 1 August and that in the meantime she would be required to recruit, manage and train staff which, she said, was part of the responsibility of the Senior Role. Once the Senior Role commenced she was to move back into the Junior Role.

Events following the failure of her application

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.

123. Mrs King says that during her five years with Nike she achieved the second highest rating in every annual performance review and "special accolades" and bonuses for her performance. This is not denied. Indeed, Mr Stevenson admits that she is "..an outstanding worker for Nike..". Her work assessments (not prepared by Mr Stevenson) for the period before she went on leave are impressive. For example, the report dated 23 July 2002 states:

"Sally has been a tremendous asset to the sales organisation and the sales team can look forward to Sally's increased presence and contributions as Sales Operations Manager.

Sally is a self starter highly motivated and demonstrates the ability to get things done. She is a strong generalist with the ability to work across the various functions in the business. Sally has knee deep (sic.) in business process improvements that has made her a strong contributor in driving the DSS and Sales Program projects. Additionally, Sally has also upgraded the SG&A budget process as well as the customer sales budget process over the past year.

Sally is the consummate professional who has to serve two demanding constituencies...the needs of the Sales Organisation and the needs of the DSS and sales program project. She has managed these two competing priorities exceedingly well and has been enjoyable to work with.

She has executed against her accountabilities with minimal oversight and always finds ways to improve work processes. Her new role as Ops Manager will enable her to drive further improvements for Nike Australia's sales organisation."

Earlier assessments are just as complimentary of her performance.

124. My task is not to determine whether or not Mr Stevenson caused Nike to appoint the better candidate for the Senior Role. In order for Mrs King to succeed, I must be satisfied on the balance of probabilities that the choice that he made was on the basis of Mrs King's status of parent and carer (s.7(1)). Her status need not be the sole basis for the decision that he made but it must at least be a substantial reason (s. 8(2)(b)). Although the burden of proof is on the balance of probabilities, in determining whether the burden is discharged, the seriousness of the allegations made must be borne in mind (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).

125. Mr Stevenson said that he did not appoint her because her skills did not suit the Senior Role. He said that she did not have the strategic or commercial acumen to be able to perform that position. This is very much against the weight of the evidence which establishes that she did have the skills and acumen to suit the role. But if he actually believed that she did not and did not appoint her for that reason, Mrs King's complaint would fail. What did he really believe? For that one must look beyond bald assertions and consider all the evidence.

126. Inconsistent with the notion that he believed she did not have the necessary skills and acumen was:

(a)

his acknowledgement in his evidence that, if it had not been for a better candidate, he would have appointed her;

(b)

his conflicting evidence. In some of his evidence he acknowledges she could have done the job;

(c)

the offer of the Senior Role that he made to her in December the previous year:

(d)

the extensive documentation in Nike's possession setting out her skills and experience and the her previous work performance;

(e)

the documentation as to the extent of the Original Role which would, if he had read it, have shown him that she had already been performing most of the tasks of the Senior Role, and performing them to a high standard.

120. It would be surprising if Mr Stevenson had not familiarised himself with whatever documentation Nike had about the two candidates. It was a significant role that had to be filled. Moreover, he said in evidence that people in the Nike organisation overseas knew Mrs Kings strengths and skills. Either he knew them himself and has downgraded them in his evidence or he did not make any enquiries.

121. I do not believe that Mr Stevenson really believed that Mrs King did not have the skills and acumen to perform the Senior Role. Hence, I do not believe that the reason he gave for not appointing her was a truthful one.

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:

(a)

the concern he expressed 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.

(b)

he said to her that her priority should be the care and attention of her son and that she should want to spend as much time with him as possible.

(c)

the patronising e-mail of 7 March, suggesting a link between her behaviour in the work place and her role as a mother.

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.

Unavailability of part time work and inability to work from home

141. The alternate claims made by Mrs King are not consistent with the decision that was ultimately taken by her to seek the Senior Role. In applying for that role she accepted that it was to be full time employment, working at the work place. Had her application for the Senior Role been successful that would have been the result and the damages to be awarded should be calculated (inter alia) on what she would have received had her application succeeded. The quid pro quo was that she accepted the requirement that the Senior Role be worked full time and at the workplace. I am satisfied that she wanted to work part time but Mr Stevenson refused to allow her to do so. This is at odds with his e-mail of 7 March but is consistent with the work load she faced on her return. The task of preparing for the new system was, she said, so demanding that a number of matters were put on hold. This would suggest that there as no time to do them. This is consistent with the reason she said Mr Stevenson gave her on 7 March for not allowing her to work part time. There was no one else to do what she had to do except the Contractor who was there for only two or three weeks. If she wanted the job she had to work part time which she says caused her great difficulty in arranging care for her baby. However the evidence does not justify a finding that that requirement was unreasonable in the circumstances which would be necessary to establish a claim for indirect discrimination.

142. Mrs King seeks to be appointed to the Senior Role or in the alternative, to a redundancy payment. By s.136(a)(iii) of the Act, the Tribunal may make an order to redress loss damage or injury suffered as a result of the contravention. However the Senior Role is now occupied by Miss Hore and since the two of them could not sensibly do the same job at the same time, to appoint Mrs King to it would, it would seem, necessarily involve terminating her employment. She is not a party to this proceeding and has not been heard. Quite obviously, no order should be made which affects her rights.

143. As Mr Donaghey pointed out, this is not an action for breach of contract for failing to make a redundancy payment. Even if it is argued that damages should be assessed in accordance with what she would have received on redundancy I am not persuaded that would be appropriate. The problem with any redundancy claim would have been that she did not leave the employment of Nike. She went on working at the salary she had previously received, although in a lesser role. The document in evidence setting out the terms of the redundancy policy says that an employee will only receive a redundancy payment "where redeployment does not occur." The essence of a redundancy payment is that the employee has left her employment. It is not established that, under the terms of her contract of employment she is entitled to a redundancy payment or that by reason of the discriminatory conduct she has been made redundant.

144. The appropriate remedy for the discriminatory conduct is damages, which will involve loss of income and general damages.

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.

148. Notwithstanding that she was not to be appointed to the Senior Role Mrs King was required to perform the functions of that role, as it evolved, until Miss Hore was able to assume it in August. She also had to train Miss Hore in some aspects of the role and then be relegated to an inferior position to her in the hierarchy. Effectively, she lost her job and was required to take a position of lesser status.

149. She said in evidence that in the Junior Role she no longer reports to a director, has no staff management responsibilities and no strategic business exposure. Her work is "predominantly day to day functions" and Miss Hore has management responsibility with respect to matters within her role. As such, she has suffered a significant loss of status and responsibility. She has been excluded form meetings and information to which she was privy in the Original Role. I am satisfied that she has suffered humiliation and a significant loss of status.

150. She said in her witness statement that her career path at Nike had been terminated and she had suffered "much stress and anxiety". A report was filed from a Psychologist, Mr Selwyn Lever, but since he was not called and objection was taken to the report being relied upon in the absence of cross-examination, I have had no regard to it. Nevertheless, I am satisfied from her own evidence that Mrs King has been most distressed at the treatment she has received. Assessment of general damages for distress and humiliation is notoriously difficult but in all the circumstances I think $9,000 would be appropriate.

151. Mrs King also seeks an order that Nike apologise to her for the discriminatory conduct. There are cases where an apology is appropriate but I cannot see any purpose in ordering one here. It can never be known whether such an apology is genuine or merely made to comply with the order. The award of damages is in itself sufficient to demonstrate to Nike the disfavour with which the Tribunal views its conduct towards Mrs King and no doubt the matters raised will be considered by its directors in determining what changes might need to be made to its procedures.

152. I will order the Respondent to pay to the Complainant the sum of $19,685. Costs will be reserved.