Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160

Federal Magistrates Court of Australia|2003-10-03

The application is brought pursuant to s.46PO of the HREOC Act.

The legislation said to give rise to the action is the SDA in ss.5, 7, and s.14 (points of claim).

...(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:

(a) in the terms or conditions of employment that the employer affords the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefit associated with employment;

(d) by subjecting the employee to any other detriment.

Accordingly, it would be necessary for the applicant to establish that the employer had denied the applicant access to opportunities for promotion transfer or training or other benefits associated with employment, dismissed the employee, or subjected the employee to any detriment on any of the grounds as stated prior to there being any unlawful discrimination.

As to each of these the first respondent submits that no such finding could be made for reasons further set out herein.

Moreover, even if the applicant could display such detriment the applicant needs to establish that such detriment arises by reason of discrimination. Discrimination is relevantly defined in s.5 of the Act in the following terms:

(1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of:

(a) the aggrieved woman's pregnancy or potential pregnancy; or

(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or

the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.

It might be conceded that taking maternity leave is a characteristic that appertains generally to women and more particularly to women who are pregnant. That having been said it remains a necessity for the applicant to establish that any detriment she has suffered was by reason of or because of or caused by the fact that she had taken maternity leave (HREOC v. Mt Isa Mines Ltd (1993) 46 FCR 301 at 326). Again it is submitted for reasons set out further herein that no such finding could be made on the evidence of this case.

In establishing motive the applicant carries the burden of proof. It must lead evidence that the reason for the purported disadvantage is the alleged illegal reason. There is no reverse onus. Where the legislature intends to reverse the onus of proof it will do so specifically.

(See for instance Workplace Relations Act 1996 (NSW) s.298V.)

Mr Lynch advanced the case for the applicant in the following terms:

This case is really about the significance of that position (post maternity leave). The applicant says that having taken some maternity leave she sought an extension of it and was told that in those circumstances she would have to vacate her pre maternity leave position. (T'script 11/11 page 5)

At page 6 of transcript on 11 November Mr Lynch characterised the loss or damage which resulted as "the resignation that came in response to the loss of positions after attempts to recover a situation within the company..."

Mr Lynch makes it clear that it is the applicant's case that the first respondent repudiated its obligations under the contract of employment by placing Ms Rispoli in the position she occupied post maternity leave and that Ms Rispoli accepted this repudiation, and was entitled to accept the repudiation more than 18 months after the alleged repudiation. (T'script 11/11 page 6).

Mr Lynch characterised the essence of the case in the following terms:

The essence of the case is that change in functions was not consensual, on either view of the evidence about how the change comes about, because it is so different. It is not a return to a position of a comparable status or function notwithstanding that Ms Rispoli was paid more for the performance of that task than Mr D'Souza.

He continues down the page to note that it is Ms Rispoli's case that she was "prepared to believe it was a comparable position because no one told me differently". "There was an incident in March of 2000 when she discovered for the first time that the position was substantively greater than a MO7 position which is two levels lower than her pre maternity leave position at MO5..." (T'script 11/11 page 9).

In section 1 of the applicant's submissions the applicant refers to an entitlement to maternity leave. Such entitlement is not disputed. These proceedings do not relate to that entitlement. If it were alleged that the relevant NSW legislation was breached appropriate proceedings would have been brought and defended.

In section 2 of the applicant's submissions the contention is advanced that Ms. Rispoli was somehow disadvantaged by reason of Mr Dennett discussing with her whether she was agreeable to her existing position being filled on a permanent basis and she being offered some other position on her return from leave.

There is no disadvantage flowing to the applicant by reason of being asked to consider a consensual change nor would it be contrary to the provisions of the relevant NSW legislation.

(see St Vincent's Hospital v. Harris (1998) 81 IR 173 at 186)

Moreover, the evidence was that Mr Dennett would adopt the same approach in any circumstance where an employee was likely to be unavailable to the department for a period of six months or more for whatever reason.

In section 3 of the applicant's submissions the applicant deals with the period during which the applicant was on maternity leave. During this period she undertook management training, facilitated by Merck Sharp & Dohme, in marketing. The marketing course provided "a very, very high level understanding of how marketing worked".

Indeed, the applicant was involved in a change management course at the University of Technology after her return from maternity leave, again fully funded and facilitated by the first respondent.

Quite what the applicant relies on in these submissions is unclear. It might be conceded and indeed frankly is conceded that at all times from the applicant's departure on maternity leave there was never any suggestion in any officer of the first respondent that the applicant would return to the position of manager, technology support. She had agreed to vacate this position. The only variation on the evidence is the applicant's sometime contention that she did not reach this agreement until September 1998.

It was never suggested that there was an available position to which Ms. Rispoli would be appointed upon her return. Rather it was always the position that a suitable position would be arrived at upon her return.

In section 4 of the applicant's submissions the applicant deals with Ms Rispoli's meetings with Dr Satchell prior to her return to work. Whatever else might be said of the extensive submissions on this point, it is clear on the evidence that Ms Rispoli did not object to the position that was discussed with her. She would have the Court believe that she did not object because she saw no point in objecting. On any review of her evidence it is clear that when Ms Rispoli thought she had something to object about, she had no compunction about expressing it.

Indeed, Dr Satchell's evidence is clear Ms Rispoli did not suggest a return to her position of manager, technology support prior to her return to work from maternity leave or indeed after that return. Nor did she ever make complaint to Dr Satchell about her title being anything other than business improvement facilitator.

Indeed, the applicant makes clear in her own evidence that Dr Satchell invited her to record any thoughts she might have in relation to the assignment he was proposing but she chose not to.

The applicant concludes section 4 of the submissions with the assertion that: "it follows that Dr Satchell's assigning her to the position was a breach of the first respondent's:

a) s.66 Industrial Relations Act obligations,

c) the arrangement made by Mr Dennett with Ms Rispoli"

As to proposition (a) in paragraph 4.21 of the applicant's submissions and as has been submitted, this Court need not and indeed has no jurisdiction to consider the operation of s.66 of the Industrial Relations Act (NSW). To the extent it did it would follow NSW law on that subject.

As to propositions (b) and (c) in paragraph 4.21 of the applicant's submission the first respondent is at a loss to understand the distinction drawn. To the extent that it is asserted that Ms Rispoli was not put into a position that accorded with the arrangement she had reached with Mr Dennett concerning her departure from the position of manager, technology support one need do no more than repeat Ms Rispoli's words from her affidavit of 6 November at paragraph 15.

"It was never suggested to me that I would again be in a `special projects' role. After I requested an extension to my maternity leave in September 1998 John Dennett stated words to the effect that: `A suitable role would be found.' It was never titled."

On the applicant's own evidence the agreement did not extend to comparable status or pay. It is the first respondent who asserts that this was part of the arrangement and that it was complied with. It is not open, in the respectful submission of the first respondent, for the applicant to invite the Court or indeed for the Court in any event, to reject the applicant's evidence of the arrangement in order to find the applicant was disadvantaged in relation to the arrangement_._

Even were the applicant right in the assertion that assigning Ms Rispoli to the position was a breach of any of the nominated obligations that is not the test in the present proceedings. The question is: "Was it a disadvantage?" and "If so, was it imposed by reason of her sex or her taking of maternity leave?" There is no basis in the evidence to satisfy either of these limbs.

In section 5 of the applicant's submissions the applicant poses the question whether the position to which she was appointed was comparable to the position she previously held. For the reasons discussed above such consideration is entirely irrelevant.

In any event the position clearly was comparable. It took the applicant over 12 months to "discover" the position was in her view, not comparable when "Kornfeld let it slip" that the position was graded MO7. If her only capacity to appreciate that the position was not comparable was because of something said by Mr Kornfeld over 12 months after she had been fulfilling the role it is unlikely that there was any relevant lack of comparability. Certainly no such lack of comparability was considered in Thomson v Orica [2002] FCA 939; (2002) 116 IR 186.

In section 6 of the applicant's submissions the applicant moves to "The 31 March 2000 emails between Mr Kornfeld and Dr Satchell." Fascinating as this subject is the relevance is illusory when one has regard to exhibit R7. This exhibit is dated the same day as the email relied upon by the applicant and clearly draws the distinction between the job and the grade. It proposes a way through the difficulty and it is apparent from the evidence that this way through the difficulty was accepted by the applicant.

(Kornfeld affidavit annexure 57 p307, annexure 63 p324, annexure 58 p310)

Ms Rispoli clearly regarded herself as the equal of Mr Kornfeld, who was at the same level in the organisation chart as Mr Dennett, her previous supervisor.

In section 7 of the applicant's submissions the applicant purports to deal with the period "Thereafter to 21.11.2000". It is difficult to reconcile these submissions with the applicant's email of 14 April 2000 (Kornfeld affidavit annexure 63 p324.) It is to be recalled that email precedes the applicant's appointment to AMRAD, a role the applicant was enjoying (T'script 11/11 p67). It was work which had a purpose and was worthwhile. Ms Rispoli made a contribution and in turn the role made her happy (T'Script 12/11 p5).

Indeed, the applicant's focus throughout her evidence and her submissions is not on whether the job was important but upon whether she considered the job worthwhile.

In section 8 of the applicant's submissions the applicant deals with "21 November 2000" the day of her resignation. It is important to note that the applicant does not assert that the interview by Dr Satchell was of itself repudiatory conduct. The applicant relies upon the purported failure to comply with an arrangement that the applicant denies existed as giving rise to a constructive dismissal.

There ought be no doubt that the applicant resigned. She says so herself repeatedly. Most importantly she tells her fellow employees at her farewell: "I have been unhappy with the role assigned to me on my return from maternity leave".

In section 9 of the applicant's submissions the applicant alleges unlawful discrimination relying on the provisions of the Industrial Relations Act (NSW). For the reasons already submitted such reliance is misplaced. The first respondent relies on its submissions generally as to the law.

In section 10 of the applicant's submissions the applicant asserts unlawful discrimination against Mr Dennett. Intriguingly, Mr Dennett was not named a respondent to the proceedings.

In the respectful submission of the first respondent to not name Mr Dennett as a respondent is hardly surprising. The applicant had been supervised by Mr Dennett when she went on her first period of maternity leave. She reached an accommodation with Mr Dennett that she would not return to the position she then held after her first period of maternity leave. She ultimately returned and suffered no disadvantage whatsoever and her career continued to blossom.

The remainder of the applicant's submissions deal with propositions of law which are dealt with in the first respondent's submissions as originally drafted. In the ultimate the Court is asked to accept that Ms Rispoli had a right to be allocated duties that she considered important regardless of whether the employer needed them done or considered them important and that in the event that she happened to be assigned duties that she considered unsatisfactory and she had taken maternity leave she is entitled to substantial compensation. Such cannot be the law.

In the submission of the first respondent the Court would find that the applicant was approached by Mr Dennett after she had indicated an intention to take maternity leave with a view to reaching an agreement that she would return to another position.

(Dennett affidavit pars 17-20, 39 attachments C & D.)

Notwithstanding the evidence of the applicant (Rispoli affidavit 6/11 par 5, T'script 11/11 p.63,64) the preponderance of the evidence is that agreement was reached at this point.

(Rispoli affidavit 17/5 attachment 7 p1.6, attachment 13 p3.4)

Such an agreement does not constitute discrimination or is otherwise unlawful (refer St Vincent's Hospital v at 186).

Moreover, there is no warrant in the case at hand for suggesting that maternity leave had anything to do with Mr Dennett's desire to consensually move the applicant, other than it in fact being maternity leave which on this occasion removed the applicant from the department. Temporary assignments occurred with a certain degree of frequency and six months was an indicative period for such absences (T'script 30/4 p 233). In respect of such absences Mr Dennett would inform the employee that they would not return to their substantive position on conclusion of that temporary assignment (T'script 30/4 p 31).

Even were agreement not reached at this point it is clear that agreement was subsequently reached.

It was the applicant's experience that she had previously returned from maternity leave and upon return had been placed in a position of manager, special projects and thereafter continued to enjoy all the benefits accruing to executive employees in the first respondent's employ.

It was the expectation that on this occasion she would return in like fashion.

When Dr Satchell came to deal with the applicant, he was dealing with her as an employee who had certain ambitions and who was returning as a valued employee to a restructured department within the first respondent.

On the evidence Dr Satchell was not seeking to disadvantage but rather to advantage the applicant.

There is no evidence to suggest that the applicant's maternity leave had anything to do with what then occurred other than the fact that this was the form of leave she was on prior to returning to the reorganised department. It was her return to the reorganised department, rather than the form of leave she had taken, which was relevant to Dr Satchell's position. Indeed, Dr Satchell gives evidence to expressly the opposite effect of any alleged discrimination which evidence in a lengthy and difficult cross examination, is entirely unchallenged.

The position in which the applicant was placed was a responsible position which required substantial application to a difficult task which the applicant performed well and was well rewarded for.

(Application under heading "Describe What Happened" at par 5.)

The applicant's disaffection arose some 12 months later when she was, on her version of events, excluded from the management group.

There is simply no basis on the evidence to found the suggestion that this exclusion had anything to do with maternity leave.

Nor is their any basis for suggesting that the applicant's role being non managerial directly led to her exclusion (Rispoli affidavit 17/5 par 34).

The "K8" was the management group that the applicant was excluded from, she having participated throughout 1999 in the "K9" managerial group, though she complains that this group, which included her, was "lightweight".

To the extent that the applicant perceived this to be to her disadvantage, far from seeking to impose further disadvantage, on the evidence, the first respondent sought to address the applicant's perception and improve the applicant's position.

(Satchell affidavit pars 44-50, T'script 29/4 pp 103, 104, 105, 106, 107

Some months after the disaffection was overcome the applicant was involved in a disciplinary interview. The concerns raised by the first respondent were serious and were known by the applicant to be serious.

The applicant chose not to deal with the first respondent's concerns instead resigning her employment.

The resignation was not a spur of the moment decision. Rather it was a considered decision taken by the applicant after having first consulted her husband and who advised her "to wait a little longer".

The applicant's decision to resign had nothing to do with AMRAD.

The applicant had intended resigning in a short period in any event for reasons unrelated to her position.

In the first respondent's submission the applicant was less than candid in giving her evidence. At each opportunity she tried to portray her evidence in the most favourable light to her case.

(T'script 11/11 pp.33-34, 37, 39, 41, 54, 56, 60-61, and 63-64;

Where there is conflict, the evidence of the first respondent's witnesses ought be preferred.

Moreover, there is an abundance of conflict, even with the applicant's own witnesses.

In the submission of the first respondent, it is inherently incredible that the applicant, believing the first respondent had deliberately set about disadvantaging her because she had taken maternity leave, seek an indulgence under the family leave policy whilst pressing for a return to her pre maternity leave position. Yet this is precisely what she asks the Court to accept.

The concept of constructive dismissal is generally found in cases where "the employee is instructed or forced to resign by the employer, or leaves in response to conduct by the employer which constitutes a repudiation of the employment contract". (Barghouthi v Transfield [2002] FCA 666; (2002) 122 FCR 19 at 25 par 16).

Certainly it is the law in the United Kingdom that "an employee must signify his attitude in a clear unambiguous fashion...he must indicate that he is exercising his entitlement to claim constructive dismissal. (Logarbax v Titherley [1977] IRLR 97).

Moreover, while the repudiatory breach or breaches need not be the sole cause for the employee leaving the employment they must be the effective cause. (Jones v FSIRL & Son (Furnishers) Limited [1997] IRLR 493).

The term "constructive dismissal" is explained by Lord Denning in Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 2; (1978) QB 761 at 769:

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.

As cited by Einfeld J in Librizzi v Flower Power Pty Ltd (2000) 100 IR 39 at 49.

Mohazab v Dick Smith Electronics Pty Limited (No.2) (1995) 62 IR 200 is sometimes cited as authority for the proposition that "it is not necessary...to find a breach of contract in order to find a constructive dismissal" (see for instance Mayer v ANSTO [2003] FMCA 209 at par 74). In the respectful submission of the first respondent such a view is in error. In Mohazab, the Full Court of the Industrial Relations Court of Australia expressly refrained from deciding whether the case before them fell within or without the notion of constructive dismissal (see page 208.2). Moreover, the case has not been followed in the Federal Court as authority for the proposition that it is unnecessary to find a breach of contract in order to find a constructive dismissal (see for instance Daw v Flinton Pty Ltd (1998) 85 IR 1 at page 4).

Accordingly, in the case at hand, there can be no question of constructive dismissal.

Firstly, the applicant needs to establish a breach of the contract. The conduct apparently relied on is the offering of duties other than the duties which the applicant would have preferred to perform. This does not constitute a breach of the contract of employment. The employer is entitled to refrain from providing any duties to the employee. (Ramsey Food Processors Pty Ltd v Blackadder [2003] FCAFC 20; (2003) 196 ALR 660.

Even were the Court to find that the offering of duties which the applicant did not find appropriately stimulating notwithstanding her express representations to the contrary (see applicant's tender bundle page 110) was a breach of contract, the applicant had by November 2000 waived any right to rely upon that breach as a repudiation entitling the applicant to treat the contract as at an end.

Accordingly, one must look to what took place in the interview. On the evidence the employer had become aware of a potential breach of confidentiality and was enquiring as to that apparent breach. This the employer was, undoubtedly, entitled to do (see Daw v Flinton Pty Ltd at page 4). A resignation, considered as it was in these circumstances, is just that, a resignation.

Accordingly, even if, contrary to all the first respondent's submissions, the Court finds there was discrimination, there was no damage as a result of that discrimination. There is no evidence of psychological trauma. There is no economic loss.

In the respectful submission of the first respondent whilst the Court administering remedial legislation will always be keen to protect the policy underpinning that legislation, it must be vigilant to ensure it does not, by its decisions, undermine that policy by providing some solatium to applicants aggrieved for non-compensable reasons who rely upon compensable reasons to punish their employer.

In the circumstances at hand the first respondent clearly is cognisant of its obligations under the legislation. Indeed, its performance in meeting those obligations is such as to warrant commendation rather than criticism. A finding by this Court that the first respondent had infringed its obligations would be a quite serious matter. It would only be done, in the respectful submission of the first respondent, because a clear breach would have been established.

It ought not be doubted that Ms Rispoli feels aggrieved from the circumstances of her employment. This, regrettably, occurs from time to time with employees. It is not the task of this Court to redress grievance. This Court is charged with ensuring employers satisfy their obligations not to unlawfully discriminate. Unless the Court is affirmatively satisfied that the first respondent set about disadvantaging Ms Rispoli for the reason that she had taken maternity leave, the application ought be dismissed.

Even approaching the analysis of damages, accepting the applicant's case at its highest, there is no warrant for an award of damages. On the case advanced, Ms Rispoli was entitled to be returned to the position of manager, technology support on her return from maternity leave (notwithstanding her express agreement to forego that position).

Approaching the question of damages then as being a question of what is required to restore Ms Rispoli to the position she would have been in had she been returned to the position of manager, technology support on her return from maternity leave (as to which see Mayer v ANSTO at par 89) one sees that her position by November 2000 would have been no different. Mr Hurse, who was appointed to the position in Ms Rispoli's absence, was displaced from the position in a subsequent reorganisation when the position was abolished in or about March 2000 and a new position is assumed by Ms Minto (See generally T'script 28/3 at pp 56-59). The position to which Mr Hurse was allocated had no managerial responsibility, the grievance that Ms Rispoli principally harboured in her new position (see T'script 12/11 at pp 41, 44). There is no doubt that the first respondent was entitled to utilise Mr Hurse's services wherever they could be usefully deployed upon the existing position being abolished. It can hardly be suggested that Ms Rispoli's position was enhanced by reason of her being a woman or having taken maternity leave.

The nature of the discrimination warranting redress

Some indication of the statutory scheme can be seen by the discrimination attracting relief in respect of family responsibilities (SDA s.14(3A) ). It can hardly be thought that the legislature was intending to provide relief for any grievance of a female employee and yet only affording the remedy of preventing termination in employment in respect to an employee discriminated against by reason of family responsibilities.

Moreover, were the Court to find discrimination in the current context it would do a disservice to the objects of the Act rather than promote the objects of the Act. It trivialises an important social objective when discrimination legislation is utilised to redress an industrial grievance.

On the basis of the matters of fact and law dealt with herein the application as against the first respondent ought be dismissed. The first respondent wishes to separately address the question of costs.

18. On behalf of the second and third respondents the following written submissions are made:

These proceedings are purportedly brought pursuant to the provisions of s.46PO of the HREOC Act. That section is in the following terms:

46PO Application to court if complaint is terminated

(a) a complaint has been terminated by the President under section 46PE or 46PH; and

(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).

(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

As can be seen by s.46PO(1) the complaint to be made to the Federal Magistrates Court may only allege discrimination by respondents to the terminated complaint.

The complaint that was before the Commission nominated only the first respondent as respondent. This is the only complaint which has been for conciliation before the Commission. It is the only respondent against whom the proceedings could properly have been brought (see Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531).

Accordingly, as there was never any jurisdiction for the complainant to bring the complaint against the second respondent and third respondent, the complaint as against each must be dismissed.

In any event there is no evidence which could properly lead the Court to conclude that either the second respondent or third respondent disadvantaged the applicant by reason of her sex or family responsibilities. Indeed, quite the contrary (see for instance annexure BK51 to Kornfeld's affidavit at page 291 and Transcript 11/11 at p 49).

Against that background, it is ludicrous to suggest that the applicant ever genuinely considered that the second respondent was liable to discriminate against her on the basis of family responsibilities.

In her complaint the applicant identifies that she had been assigned a major Y2K project which meant remaining in the role to which she was assigned for all of 1999 (paragraph 5).

She describes, in early 2000, discussing moving with her Manager, the second respondent, and says:

"he was, however, in the process of trying to leave the group himself and was not receptive to discussions, dismissing my concerns."

That is to say when given an opportunity to complain about the second respondent's conduct she does not suggest he was motivated by her having taken maternity leave but rather by his own personal concerns.

It was never suggested of either the second respondent or the third respondent in cross-examination that any action they had taken in relation to the applicant was a result of her having taken maternity leave. Nor could it properly have been so put.

Not only were the proceedings against the second respondent and third respondent misconceived in law they were patently vexatious as the case unfolded. The respondents should be entitled to be indemnified against their costs of involvement in the proceedings.

19. The applicant deposes that prior to going on maternity leave she held a responsible managerial position and that she had received commendations for good performance in that position. She says that it had been intended that her position would only be filled temporarily by Mr Hurse during her period of maternity leave and that, as a result of an experience she had had during a previous period of maternity leave, she was keen to ensure that she was not disadvantaged by reason of her maternity leave. Nevertheless, the applicant says that when she wanted to extend her period of maternity leave she accepted that Mr Hurse would fill her job permanently on the basis that she would be placed in an equivalent position upon her return. She says that when she returned to work in February 1999 Mr Kornfeld assigned her to a position that was formerly held by an employee at the MO7 grade (Ms Gorczyca) undertaking work on a Y2K business continuity plan. The applicant says that this work was minor clerical and administrative work of substantially lesser responsibility than her former position. The applicant says that she expressed her dissatisfaction to Mr Kornfeld but that she accepted the state of affairs in reliance upon an assurance given by Dr Satchell in January 1999 that she would benefit from a restructure planned for April 1999. That restructure did not proceed. The applicant says that she continued to express her dissatisfaction to Mr Kornfeld who gave assurances of a new role becoming available in 2000 following the completion of the Y2K business continuity plan.

20. The applicant deposes that she received a positive performance rating in December 1999 and that she was dismayed when in February 2000 she was excluded from a new managerial group known as "K8". The applicant says that in February 2000 she approached Dr Satchell with the aim of increasing the challenges in her role. She says that she had further discussions with Mr Kornfeld in or about March 2000. She says that nevertheless she continued to be excluded from the K8 management group when Mr Hurse left that group in March 2000.

21. The applicant deposes that she had a further meeting with Mr Kornfeld on 20 March 2000, after which the human relations area of the first respondent became involved. In late March 2000 the applicant again met with Mr Kornfeld and with Ms Sally Haslett (the HR representative) at which time the applicant says that she was given to understand that a new role would be found for her in 2001. At Dr Satchell's suggestion she agreed to undergo a psychological assessment in order to determine her suitability for future roles. The applicant deposes to continuing distress and dissatisfaction with her position and exclusion from management consultations and that she again approached Mr Kornfeld and Dr Satchell on 26 June 2000. She says she received no satisfaction. She says that on or about the same date she contacted the US office of the first respondent to raise an issue of discrimination but received no satisfaction. She deposes that in July 2000 there was an investigation into staff dissatisfaction with the behaviour of Dr Satchell but that the outcome was inconclusive. She deposes as to further conversations between her and Mr Kornfeld between July and October 2000 which failed to resolve her concerns.

22. The applicant deposes that she undertook a psychological evaluation in September 2000, and in that connection, had discussions with Harris Smith & Associates, who conducted the evaluation. She says that the results were positive and that on 21 November 2000 she met Dr Satchell to discuss the results of the evaluation. The applicant says, however, that Dr Satchell at that meeting discussed what he apparently regarded as a breach of confidentiality by the applicant in respect of a sensitive issue of human relations in connection with a proposed merger between the first respondent and another company [AMRAD]. The applicant deposes that, as a result of this discussion, which was apparently acrimonious, she formed the view that she could not expect a reassignment in 2001. Immediately after this meeting she handed her resignation to Dr Satchell and Mr Kornfeld.

23. The applicant deposes that on 22 November 2000 when she attended the workplace she was escorted off the premises. She deposes that it is normal practice for employees of the first respondent to be permitted to work a period of one month following a resignation but this did not occur. She also states that she was denied access to 316 shares in the first respondent, assigned for performance on 27 February 1996 and ordinarily available for exercise on 27 February 2001. She deposes that her health insurance paid for by the first respondent was cancelled on or about 22 November 2000 without notice. She deposes that she sought alternative employment between January and March 2001 but was unsuccessful. She lodged a complaint with HREOC on 6 March 2001. She has not worked since.

24. The applicant was cross-examined at length upon her affidavits. She impressed me as an intelligent and articulate woman. She gave evidence quietly but clearly and with authority. She was unshaken on the essential details in her affidavits, although she did make some concessions under cross-examination. She admitted that she was comfortable and confident in dealing with Dr Satchell and Mr Kornfeld and that she had no difficulty expressing disagreements with them and that in some of her communications with them she was "cheeky". She admitted receiving a $4,000 incentive award and stock options on 6 March 2000. She admitted receiving a further $7,000 award bonus and share options later in 2000. She admitted that the first respondent regarded the Y2K business continuity plan as important but asserted that her role in it was essentially clerical. She admitted being aware of a sensitive issue of staff redundancies related to a proposed merger between the first respondent and AMRAD. She denied any impropriety or any breach of confidentiality in relation to that matter and asserted that Dr Satchell gained an incorrect impression from a voice mail message that was reported to him. This was apparently the voice mail message which led to the acrimonious meeting between Dr Satchell and Ms Rispoli that precipitated her resignation. She admitted participation in some management meetings but says these were relatively minor discussions. She admitted being satisfied with her work in relation to the AMRAD project but stated that the responsible work in relation to that project was denied her following the meeting with Dr Satchell. In response to a question from me the applicant stated that her concerns following her return from maternity leave would have been met if she had have been permitted to continue with the AMRAD project, if she had clearly been restored to a position of MO5 status and if she had been included in management discussions. She admitted speaking to AMRAD staff about transitional issues related to the proposed merger but denies disclosing any sensitive HR information.

25. Craig Lynch is a manager of operation systems with the first respondent and has worked with the first respondent for approximately 17 years, spending six and a half years in his present job. He is employed at the MO5 level. He provided a job reference for Ms Rispoli following her resignation. He confirmed that the applicant was not a member of the K8 management team but expressed the view that the position she returned to following her maternity leave was a management position. He expressed the view that the position to which the applicant returned following her maternity leave had the same status as before but fewer management responsibilities. He stated that as far as he could recall the applicant was the only person in the group at the MO5 level not included in the K8 management group.

26. Under cross-examination Mr Lynch conceded that there were one or two other MO5 level staff without line management responsibilities. He also stated that it was common for staff at that level to have to do their own typing and undertake other clerical tasks. He stressed that the Y2K business continuity project, on which the applicant worked, was a very important project for the first respondent. He stated that a customer centred improvement project, which the applicant worked on in 2000, was of lesser importance. He conceded that other lower level staff of the first respondent, such as Ms De Silva and Mr de Soussa and Ms Gorczyca, had some management functions but reaffirmed that there were staff at the MO5 level with no line management responsibility. In response to a question from me, he said that the Y2K project was appropriate for a person at the MO5 level but that it could have been done at a lower level. He denied that putting the applicant on the project was a misallocation of resources.

28. Ms de Silva also provided a reference to the applicant following her resignation. She confirmed that following her return from maternity leave the applicant did not have line management responsibilities. Her evidence was not otherwise of assistance in resolving the issues in dispute.

29. Ms Seisun is a human resources business partner with the first respondent. She gave evidence about bonus payments to the applicant between 1994 and 1999 on the basis of information extracted from the personnel records of the first respondent. She expressed the opinion that in 1999 the applicant received a bonus payment appropriate for an employee at the MO5 rating. She also gave evidence that the applicant was permitted to work reduced hours from 1 June 2000, apparently for reasons of family responsibilities. Significantly, Ms Seisun gave evidence about the personnel policies and procedures of the first respondent in respect of leave. Under cross-examination she conceded that it was part of the first respondent's maternity leave policy that an employee proceeding on maternity leave was entitled to return to her old job or to a job of equivalent salary and status. Mr Lynch showed her the parental leave employment guide applicable at the relevant time: exhibit A19, which includes the statement:

It is likely that you will return to the same job or similar job (this does not include a job to which you were transferred because of your pregnancy). If your job no longer exists when you return to work, and other jobs are available, you must be given a job which, in salary and status, is most like the one you occupied before you went on leave and one for which you are qualified and which you are capable of performing.

30. Ms Seisun conceded under cross-examination that a facilitator was a position of lesser status than a manager. She conceded that the starting point for the operation of the HR guideline was that the employee was entitled to return to her old job after maternity leave and that there was an established procedure to follow if the employee was not to return to that position. She conceded that she found no documents which might establish that the procedure was followed in the case of the applicant. She conceded that it would be wrong to pressure an employee to surrender her former position while on maternity leave. She asserted that it would be legitimate for the first respondent to discuss any perceived need by the first respondent to move an employee on maternity leave to a new position upon return to work but conceded that she found no record of any discussion taking place with the applicant. She conceded that the position which the applicant returned to was not the same as her former position. She conceded that the issue of the applicant's status had been raised and that Ms Haslett had become involved. She stated that the applicant's job was augmented by the addition of Y2K and AMRAD project responsibilities in order to raise its status.

31. Under re-examination Ms Seisun gave evidence that a Ms Kriegs was responsible for HR records at the relevant time and that she was not a particularly good record keeper. She gave evidence that it was possible that records do exist about discussion with the applicant of a change of jobs following her maternity leave but the records had been misfiled. She also gave evidence that other staff on extended leave, for example, study leave, could not necessarily expect to return to their old job following that extended leave.

32. Dr Satchell was, at the relevant time, director of the IT group for the first respondent, known as the operations improvement group. He was appointed to that position on 1 October 1998. He deposes as to an organisational restructure at his instigation in December 1998 in the IT area of the first respondent, which had the effect of consolidating three groups into one. He deposes that, in the light of the structural reorganisation he interviewed all affected employees, including the applicant while she was on maternity leave. He deposes as to two discussions with Ms Rispoli in mid and late January 1999. He denies the precise terms of the conversations in Ms Rispoli's affidavit of 17 May 2002 (paragraph 22). He deposes that he discussed with the applicant her future within the company and obtained information about her expectations and desires. Dr Satchell deposes that the discussion with the applicant focused on the issue of leadership. He deposes that in the second meeting he proposed that the applicant go into the position of business improvement facilitator with a view to giving her the opportunity to develop new leadership skills. Dr Satchell deposes that the applicant accepted this proposition. He deposes that he specifically discussed with the applicant her reporting to Mr Bernard Kornfeld, also at her MO5 grade. He deposes that Ms Rispoli accepted that arrangement.

33. Dr Satchell deposes that initially Ms Rispoli performed well in her new role but that Mr Kornfeld suggested that she needed a clear task, leading to Dr Satchell proposing that Ms Rispoli undertake the Y2K project. He regarded this as a very important project for the first respondent. Dr Satchell regarded the performance of Ms Rispoli throughout 1999 as very good but he deposes that he was concerned that Ms Rispoli needed to start using her skills in relation to change management outside her own group.

34. Dr Satchell deposes as to the issue which arose in about March 2000 of Ms Rispoli refusing to sign her performance contract for the year 2000. He deposes of being informed, in particular by Mr Kornfeld, that Ms Rispoli was having difficulty in her expanded role involving change management and, with this in mind, he arranged for a psychological evaluation of the applicant to be carried out by Harris Smith and Associates. He deposes that he has never seen the report prepared by Harris Smith and Associates. Dr Satchell denies the suggestion that the psychological assessment was required in order for staff assessment of the applicant in her then current role. He deposes that the psychological assessment was sought for the benefit of Ms Rispoli to enable her to better assess her strengths and capabilities.

35. Dr Satchell deposes that he proposed to Ms Rispoli that she join the transition team dealing with the integration of the first respondent with the AMRAD company following the acquisition of AMRAD by the first respondent. This occurred in about August 2000. Ms Rispoli accepted this proposal. Dr Satchell deposes that the people selected for this team were the very best persons available (paragraph 49 of his affidavit). Nevertheless, at paragraph 47, Dr Satchell also deposes that:

I made sure that I emphasised to those persons running the integration team that I did not think that Ms Rispoli should be involved in direct people integration issues, because it had become obvious to me, at that point in time, that her judgement in respect of interactions with people was at times faulty.

36. Dr Satchell deposes that on 21 November 2000 he had a conversation with the applicant about a transcript of a recorded conversation which had raised some questions as to what Ms Rispoli had said to personnel of AMRAD "on the quiet". He deposes that he sought information as to what Ms Rispoli had said to the AMRAD personnel and that she accused him of wanting to get rid of her. He deposes that Ms Rispoli left his office and that later he found a letter of resignation of his desk. He deposes that he was surprised that Ms Rispoli had resigned, given that he was trying to find out what her conversation with the AMRAD personnel was about.

37. Dr Satchell was cross-examined at length and at times vigorously by Mr Lynch. Under cross-examination Dr Satchell made some significant concessions. He admitted that he signed a document permanently appointing Michael Hurse to the applicant's pre-maternity leave position on 18 December 1999 which effectively precluded the applicant being returned to that position when she returned from maternity leave. He had initially asserted that the appointment of Mr Hurse to the position was "a done deal" at the time he (Dr Satchell) arrived in October 1998. He was shown documents establishing that after his arrival the selection process for the filling of the position had been completed. He said he was not previously aware of that. He admitted that if he had been aware that the selection process was ongoing after his arrival it would have given him cause for thought before he signed the permanent appointment document. Nevertheless, he asserted that it was a matter of business urgency to make the temporary filling of the job by Mr Hurse permanent. He did not fully explain what the urgency was, given that he signed the permanent appointment document only about six weeks before Ms Rispoli was due back from maternity leave. He said that he acted on advice from John Dennett.

38. Mr Lynch showed Dr Satchell the organisation chart (exhibit A24 in the applicant's tender bundle). He admitted the position that the applicant was placed in was nominally a MO7 position but insisted that the duties of the position had been augmented to upgrade it. Mr Lynch then showed Dr Satchell exhibit A37 in the tender bundle, which showed the grade of the position for the year 2000 as being MO7. He asserted that this was a mistake; he also asserted that he was not previously aware of it. Mr Lynch also showed Dr Satchell exhibit A84 in which Bernard Kornfeld sought confirmation from Dr Satchell that the applicant must perform her duties at the MO7 level, notwithstanding her apparent belief that she was still employed at the MO5 level. In his reply, Dr Satchell expressed complete agreement with Mr Kornfeld's approach. Under cross-examination Dr Satchell admitted that it appeared that Mr Kornfeld was under a misapprehension about the status of Ms Rispoli's position and that he (Dr Satchell) did nothing to correct that misapprehension.

39. Dr Satchell admitted that by March 2000 he was aware that the expanded role given to Ms Rispoli was not succeeding and that Ms Rispoli wanted "out" of that job but he took no action and rather, left Mr Kornfeld to work things out with the applicant. Dr Satchell did point out that he obtained the involvement of Harris Smith and Associates in order to assist Ms Rispoli. He explained that he did not want to undercut the position of Mr Kornfeld as Ms Rispoli's line manager. He maintained that position even when it was pointed out to him that Ms Rispoli was also an MO5 officer at the same level as Mr Kornfeld. Dr Satchell admitted that there was no real management role in Ms Rispoli's duties, although there was what he described as a leadership role. He admitted exclusion of Ms Rispoli from certain management discussions at the MO5 level.

40. Although he had, in my view, no intention to mislead, I gained the impression during the cross-examination of Dr Satchell that he was back peddling on certain elements of his evidence and appeared uncertain on matters of detail. He left me with the impression that he had given scant attention to Ms Rispoli's position prior to the appointment of Mr Hurse to it and that his discussions with Ms Rispoli were to secure her agreement to an employment arrangement that suited Dr Satchell's convenience following the management restructure, rather than to meet the needs and aspirations of Ms Rispoli. Thereafter, Dr Satchell appears to have left the management of the employment relationship with Ms Rispoli primarily to Mr Kornfeld. He intervened three times, once to arrange for the engagement of Harris Smith and Associates, once to select Ms Rispoli for the AMRAD project and once to challenge Ms Rispoli on her apparent conversation with AMRAD personnel "on the quiet". His decision to select Ms Rispoli for the AMRAD integration team is curious. His reservations about her judgement in respect of interactions with people does not sit well with his assertion that Ms Rispoli was one of the very best persons available for the task. Nevertheless, Dr Satchell did select Ms Rispoli for a highly sensitive task and to that extent he placed trust and confidence in her. It is curious that Dr Satchell would challenge Ms Rispoli on a potentially explosive issue of a possible breach of confidence by an unauthorised disclosure to AMRAD personnel and would not pursue it, notwithstanding his surprise at Ms Rispoli's resignation. In response to a question from me, Dr Satchell explained that he accepted the resignation and did not pursue his investigation on the basis of advice from human relations personnel. I remain troubled that a senior manager in Dr Satchell's position would act in that way.

41. Under re-examination Dr Satchell stated that Ms Rispoli never asked for her old job back when she returned from maternity leave and neither did she ever raise with him a concern over her job title. He also stated that Ms Rispoli never made suggestions to him about her contributions to work following her return from maternity leave. Dr Satchell asserted that he offered to bring about further job change for Ms Rispoli in 2000 and that Ms Rispoli thanked him for his support: exhibit R7. Dr Satchell asserted that business continuity work undertaken by Ms Rispoli made her job significantly different from the job as performed by Ms Gorczyca previously.

42. Rebecca Kriegs is not currently an employee of the first respondent, but between October 1997 and March 2000 she was employed by the first respondent as a human resources business partner and senior manager in its corporate affairs area. Ms Kriegs deposes that in 1998 in her position as human resources business partner she became involved in a discussion with John Dennett concerning Ms Rispoli's maternity leave. Ms Kriegs deposes that she and John Dennett discussed the process for obtaining a replacement for Ms Rispoli while she was on maternity leave. She cannot recall the precise terms of the conversation but she recalls that she discussed the inappropriateness of using an outside contractor.

43. Ms Kriegs cannot recall any conversation between her and Ms Rispoli prior to her commencing her period of maternity leave in 1998, nor following her return from maternity leave in 1999. It was her practice at the time to keep diary notes of low key employee matters. Ms Kriegs has searched but can find no diary notes relating to this period.

44. Ms Kriegs also deposes as to a conversation by telephone in or about October 2002 with Janine Seisun. Ms Kriegs deposes that Ms Seisun asked her to recall her dealings with Ms Rispoli in the light of a claim of discrimination made by Ms Rispoli at that time. Ms Kriegs deposes that she informed Ms Seisun of what she recalled about her conversation with John Dennett.

45. Under cross-examination Ms Kriegs confirmed her knowledge and understanding of the first respondent's maternity leave policy. Ms Kriegs confirmed that it was her understanding that the first respondent followed the requirements of New South Wales law regarding the entitlement of an employee to return to her old position following a period of maternity leave. She was pressed by Mr Lynch on her recollections of her conversation with Mr Dennett. Ms Kriegs was unable to expand significantly on her affidavit. She could not recall what she may have discussed with Mr Dennett about the first respondent's maternity leave policy and her understanding was that John Dennett had discussed with Ms Rispoli some time before a proposition that she would not return to her old job. Her understanding was that the matter was not entirely settled and that Ms Rispoli had given her consent to take an alternative position if the position was appropriate. Her understanding was that Ms Rispoli had left the decision concerning an alternative position in the hands of the first respondent on the basis of trust.

46. I found Ms Kriegs to be a frank, open and generally reliable witness. However, her recollection was uncertain on details of her conversation with Mr Dennett or even whether there were one or two conversations with him. She was uncertain about precisely when the conversation or conversations took place or the detail of those conversations. To the extent that the recollection of Ms Kriegs differs to that of Mr Dennett I prefer the evidence of Mr Dennett. I do not regard as material any difference in the evidence of Ms Kriegs and Ms Janine Seisun.

47. Ms Kriegs' affidavit was filed by leave and accepted into evidence by me over the objections of Mr Lynch as to substantial parts of it.

48. Mr Kornfeld is and was at all material times an employee of the first respondent. At the relevant time he worked in the role of business improvement manager, initially to Mr John Dennett and subsequently, following the reorganisation of December 1998, to Dr Satchell. He became Ms Rispoli's immediate supervisor upon her return from maternity leave. He was at the time a MO5 grade employee.

49. Mr Kornfeld deposes that at the time Ms Rispoli returned from maternity leave there were in fact three people carrying out the role of business improvement analyst: Ms Gorczyca, Mr de Souza and Ms Rispoli. Ms Rispoli took over from Ms Gorczyca. Both Mr de Souza and Ms Rispoli reported to Mr Kornfeld. Mr Kornfeld deposes that immediately prior to Ms Rispoli returning from maternity leave he met Dr Satchell and discussed with him the role to be allocated to Ms Rispoli. He deposes that the MO7 elements of Ms Rispoli's role were augmented by adding the role of facilitating organisational change across the KIIA group of the first respondent and to facilitate the development of a business continuity plan of the first respondent, with particular reference to the Y2K problem. Mr Kornfeld deposes as to Ms Rispoli's good performance in 1999 and to the importance of the Y2K work and the business continuity plan. He provides details of the work undertaken by Ms Rispoli and responds to her allegation that her role in the development of the business continuity plan was largely clerical. He deposes that Ms Rispoli had a high level responsibility for the development of the plan and that clerical support was provided to her.

50. In relation to Ms Rispoli's other additional role Mr Kornfeld deposes that Ms Rispoli undertook change management training and facilitation training in 1999 to prepare her for the role. He deposes that Ms Rispoli did not raise with him concerns about either role in 1999.

51. Mr Kornfeld does confirm that Ms Rispoli raised concerns about her lack of management role and the grade of her position in March 2000. Ms Rispoli had in the preceding month raised with Mr Kornfeld difficulties in the performance of her change management role.

52. Mr Kornfeld deposes that although Ms Rispoli did raise with him concern about the MO7 grade of her job he thought that this concern had been allayed following discussion between him, Ms Rispoli and a Ms Borland. Those discussions clarified that Ms Rispoli, although occupying a MO7 job, was a MO5 officer and that the first respondent was legally obliged to provide Ms Rispoli with equal pay and status. Mr Kornfeld deposes that Ms Borland advised him that Ms Rispoli was a MO5 manager in respect of pay and status. Ms Rispoli indicated concern that her role ought to have been a MO5 role as well and sought management responsibility that she had previously enjoyed. Mr Kornfeld deposes that he considered himself unable to confer any of his management responsibility on Ms Rispoli and that in any case he regarded Mr de Souza as having seniority in respect of the allocation of a management role. Mr Kornfeld deposes that he had an underlying and continuing concern about Ms Rispoli's performance of her change management role.

53. Mr Kornfeld deposes as to what he saw as a deterioration in Ms Rispoli's performance and state of mind in April, May and June 2000. It was because of concern about Ms Rispoli's emotional state that Mr Kornfeld informed Ms Rispoli about the services of "CorpPsych". CorpPsych provide confidential and free counselling services to employees as part of the first respondent's employee assistance programme.

54. Mr Kornfeld deposes that on 20 November 2000 he was informed by a Ms Christine Minto about a voicemail message she had received the day before which indicated to Mr Kornfeld that two persons from AMRAD had discussed the fact that a person by the name of "Frances" (which he understood to be Ms Rispoli) had given some confidential information to them on the "QT". Mr Kornfeld arranged for Dr Satchell to discuss the matter with Ms Rispoli. Mr Kornfeld deposes as to an acrimonious telephone discussion with Ms Rispoli on 21 November 2000 and to Ms Rispoli's resignation the same day.

55. Under cross-examination by Mr Lynch Mr Kornfeld was pressed about exhibit A84. He was asked why he had not made specific mention of it in his affidavit. He said that the document only came to light after his affidavit had been prepared. He was also pressed about his statement that Mr de Souza had seniority over Ms Rispoli. He conceded that Ms Rispoli had seniority in terms of her employment with the first respondent but stated that his statement was based on Mr de Souza's longer experience in his particular group. He appeared to discount Ms Rispoli's management experience in her job prior to maternity leave.

56. I also queried with Mr Kornfeld why he had sought to upgrade Mr de Souza's job to MO6 but had made no similar approach on behalf of Ms Rispoli, even though she had raised with him concerns about the grading of the job. Mr Kornfeld responded that he saw no need to make an approach on behalf of Ms Rispoli because she was being paid at the MO5 level.

57. Mr Kornfeld admitted that he treated Ms Rispoli as a subordinate, notwithstanding that her officer grade was the same level as his. This reflected line responsibility. He stressed that Ms Rispoli's job had been upgraded by the addition of higher level duties. He admitted that he had corrected the grading on Ms Rispoli's job from MO5 to MO7 in her 2000 performance agreement in order to accurately reflect the grading of the job. He insisted that he regarded the role performed by Ms Rispoli to be at the MO5 level. Mr Kornfeld conceded that the MO7 job in which Ms Rispoli was placed following her return from maternity leave was not the same status as her pre-maternity leave job in terms of management accountability.

58. Later in cross-examination Mr Kornfeld appeared to contradict himself in agreeing with Mr Lynch that the role of Ms Rispoli's job post maternity leave was not at the MO5 level. It transpired that Mr Kornfeld drew a distinction between the job role, which was classified at the MO7 level, and the objectives of the job which he regarded as being at the MO5 level. He drew a distinction between the classification of the job and the level at which the job was done. He disagreed that the job was not comparable in content with a MO5 job but he agreed that the job was not comparable with Ms Rispoli's pre-maternity leave job.

59. In re-examination Mr Kornfeld emphasised the apparent difficulties experienced by Ms Rispoli in the performance of her change management role in 2000. He also sought again to clarify his understanding of the grade of Ms Rispoli's post maternity leave job and the level at which she was expected to perform the duties of that job.

60. I was left with the impression of Mr Kornfeld as a generally truthful but wary witness. I gained the impression that Mr Kornfeld had difficulty in managing Ms Rispoli in 2000 and that when Ms Rispoli raised with him (apparently for the first time) her concern about her job grade and lack of line management responsibility, he initially did not understand her status entitlement. This had to be explained to him in the course of several meetings. I also gained the impression that while Mr Kornfeld held a high opinion of Ms Rispoli in 1999 his opinion of her deteriorated following Ms Rispoli's challenges to him about her status and role. I further gained the impression that Mr Kornfeld took a very limited view on the relative experience of Mr de Souza and Ms Rispoli in terms of their claims on management responsibilities. He clearly preferred Mr de Souza, notwithstanding Ms Rispoli's generally superior management experience. Mr Kornfeld discounted the pre-maternity leave experience of Ms Rispoli. He placed significance on the work experience of Mr de Souza in his immediate group, including during the period when Ms Rispoli was on maternity leave.

61. In addition, I found Mr Kornfeld's response to the question of why he had attempted to upgrade Mr de Souza's job but made no attempt to upgrade Ms Rispoli's job unsatisfactory. Mr Kornfeld was on notice by March 2000 of the responsibility of the first respondent to protect Ms Rispoli's pre-maternity leave status and was on notice of Ms Rispoli's concerns about her status and lack of management responsibility. It was not simply a matter of pay.

62. John Dennett is employed as manager, E-business with the first respondent and has been so employed since January 2001. Mr Dennett was Ms Rispoli's supervisor from 1993 until 15 December 1998. He ceased being Ms Rispoli's supervisor on that date due to the reorganisation instigated by Dr Satchell. Mr Dennett deposes that following an earlier period of maternity leave that Ms Rispoli took in 1994 and 1995 she agreed to be given the role of manager, special projects upon her return from maternity leave. He deposes that Ms Rispoli later was selected for the position of manager, technology support (grade MO5) in November 1996. In that position Ms Rispoli supervised eight employees of the first respondent.

63. Mr Dennett deposes that around January 1998 he discussed with Ms Rispoli her taking another period of maternity leave as Ms Rispoli had confided in him that she had fallen pregnant. Ms Rispoli indicated to him that she proposed to take six months maternity leave. Mr Dennett deposes that shortly after 12 January 1998 he discussed with Ms Rispoli that she might return to a special IT projects role as she did after her first period of maternity leave. Ms Rispoli sought an assurance on the preservation of her grade and remuneration and received it. Mr Dennett deposes that in a subsequent conversation shortly after the first conversation Ms Rispoli herself proposed promoting Michael Hurse into her position. In mid May 1998, shortly before Ms Rispoli commenced maternity leave, Mr Dennett advised Ms Rispoli that he intended placing Mr Hurse in her position on a caretaker basis.

64. Mr Dennett refutes Ms Rispoli's allegations that he resisted her extension of maternity leave later in 1998. He confirms that Ms Rispoli telephoned him in September 1998 for an extension of her maternity leave from November 1998 until February 1999. Mr Dennett states that he gave his approval.

65. Mr Dennett further deposes that Mr Hurse commenced to perform Ms Rispoli's duties in a caretaker capacity in May 1998 and about eight weeks later he began a competitive selection process to fill the position permanently. He deposes that the process of filling the position permanently took until 15 December 1998 because of the need for advertising, interviews and evaluation. Mr Dennett deposes that at all times when he was Ms Rispoli's supervisor he had envisaged that she would return to work following her maternity leave to an equivalent position of grade MO5. He envisaged that the position to which Ms Rispoli returned would be a stepping stone to further IT management roles, as had occurred following Ms Rispoli's first period of maternity leave.

66. Under cross-examination Mr Dennett stated that his initial agreement with Ms Rispoli was that she would return to a position of manager, special projects. He could not recall whether he informed Dr Satchell of that. He claimed responsibility for the selection of Mr Hurse and stated that the selection process for the permanent filling of the position did not begin until after Ms Rispoli commenced her maternity leave. The gist of Mr Dennett's evidence was that although the final appointment was made by Dr Satchell the decision was effectively his (John Dennett's). Mr Dennett stated that he would have told Dr Satchell of the general agreement with Ms Rispoli that she would return to an equivalent position to the one she left but he may not have mentioned the particular position that he had in mind. He confirmed that following the restructure initiated by Dr Satchell his intention that Ms Rispoli would return as manager, special projects under his supervision was not carried out. Mr Dennett did not document the understanding he reached with Ms Rispoli but said that he told Dr Satchell generally about it.

67. Mr Dennett gave evidence that he was aware of the first respondent's responsibility to provide the same or an equivalent job to an employee returning from maternity leave and agreed with Mr Lynch's suggestion that it would be a breach of the first respondent's maternity leave policy to ask an employee to accept something less. He stated his understanding that the obligation on the first respondent was to preserve the remuneration, grade and status of the employee. He regarded reporting arrangements as an element bearing on the status of the job.

68. I was impressed with Mr Dennett's evidence. I regard him as a frank, honest and open witness.

69. The first issue to determine is one of jurisdiction. Under s.46PO of the HREOC Act, this Court's jurisdiction is limited to complaints that have been terminated by HREOC. In addition, the complaint the subject of the proceedings in court must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint: s.46PO(3) of the HREOC Act. The Court has no jurisdiction to deal with proceedings instituted against persons other than those who were the subject of the complaint to HREOC and neither has the Court any jurisdiction in relation to a complaint that has not been terminated: Charles v Fuji Xerox Australia Pty Ltd.

70. Ms Rispoli's complaint to HREOC and the termination of the complaint by a delegate of the President are attachments to the information sheet filed on behalf of the applicant on 17 May 2002. Under the heading "I am Complaining About", the complaint states that it is about Paul Satchell, Bernard Kornfeld and Merck Sharp & Dohme (Australia) Pty Ltd. In the body of the complaint Ms Rispoli refers to the conduct of Dr Satchell and Mr Kornfeld and at the end she seeks a written apology from both Dr Satchell and Mr Kornfeld as well as financial compensation. There can be no doubt whatsoever that Ms Rispoli's complaint was a complaint about not only the first respondent but also the second and third respondents.

71. However, it is equally clear that the complaint terminated by HREOC was limited to the complaint against the first respondent. Only the first respondent is identified in the notice of termination and the accompanying letter. Accordingly, as Ms Rispoli's complaint against the second and third respondents has not been terminated by HREOC, the Court has no jurisdiction to deal with her application insofar as it relates to those respondents. I do not know whether HREOC simply overlooked the fact that Ms Rispoli had complained against two natural persons as well as the corporation or whether HREOC regarded the complaint against Mr Kornfeld and Dr Satchell as having been resolved or as otherwise not requiring termination. If the complaint remains on foot before HREOC against Mr Kornfeld and Dr Satchell it could still be terminated and Ms Rispoli could institute fresh proceedings against them. The orders made by the Court should countenance that possibility, although I note that Ms Rispoli ultimately conceded that no relief is sought against Mr Kornfeld. It is therefore improbable that she would seek to institute fresh proceedings against Mr Kornfeld even if she were able to.

72. Mr Dennett did not unlawfully discriminate against Ms Rispoli and neither was Mr Dennett involved in any breach of Ms Rispoli's contract of employment. After Ms Rispoli informed Mr Dennett that she was pregnant and would be taking maternity leave Mr Dennett discussed with Ms Rispoli the filling of her position while she was on maternity leave and what would happen when Ms Rispoli returned from maternity leave. There was more than one discussion and the precise timing and content of the discussions is not agreed. What is clear is that Mr Dennett raised with Ms Rispoli the need for her position to be filled while she was away, at least on a temporary basis. Ms Rispoli claims that she herself suggested that Mr Michael Hurse fill her position temporarily. Mr Dennett proposed that when Ms Rispoli returned from maternity leave, she might come back to the position of manager, special projects, rather than to her position as manger, IT support. There were perceived to be benefits in this approach, both for the company and for Ms Rispoli. The company would be able to fill a position permanently that would be vacated for a reasonably long period while Ms Rispoli was on maternity leave. Ms Rispoli would be able to undertake further career development upon her return. Mr Dennett intended and explained to Ms Rispoli that the position she would return to would be comparable to the one she would be vacating, in terms of remuneration and status.

73. There was nothing novel or sinister in Mr Dennett's approach. The same thing had happened previously in 1994 when Ms Rispoli had taken maternity leave for an earlier pregnancy (transcript, 30.04.03, p229 at 10). Ms Rispoli agreed, at least in principle, with Mr Dennett's proposal. Ms Rispoli was entitled to return to her old position after her maternity leave or to a comparable position. Mr Dennett proposed that Ms Rispoli would return to a comparable position. She expressed general agreement with that proposition. There was no attempt by Mr Dennett to deprive Ms Rispoli of her statutory or contractual entitlements and neither was there any attempt by Mr Dennett to disadvantage Ms Rispoli on account of her sex or pregnancy.

74. The agreement given by Ms Rispoli was considered sufficient by the first respondent to both place Mr Hurse in the position on a caretaker basis and to undertake the process of filling the position permanently. I accept that Ms Rispoli's agreement to the change was conditional. It was conditional upon her being returned to a comparable position. That was the common understanding of Mr Dennett and Ms Rispoli. Provided that that condition were fulfilled there could be no complaint about the filling of Ms Rispoli's position: St Vincent's Hospital v Harris.

75. Ms Rispoli asserted that when she sought an extension of her maternity leave, Mr Dennett resisted that request and informed Ms Rispoli that she would have to give up her position. I reject that characterisation of the circumstances. Ms Rispoli sought and was granted an extension of her maternity leave. The extension of her maternity leave may have influenced the permanent filling of her position, noting that there were several discussions between Ms Rispoli and Mr Dennett. However, the change was consensual, not imposed. The only qualification was the common understanding and expectation that Ms Rispoli would return to a comparable position to the one that she was giving up.

76. Dr Satchell did not adopt Mr Dennett's proposal that Ms Rispoli would return as manager, special projects. It is unclear whether Dr Satchell was in fact made aware of that proposal. It is clear that Dr Satchell was briefed generally by Mr Dennett and was aware that Ms Rispoli must be returned to a position comparable to the one she had given up. What happened was that Mr Dennett's proposal was overtaken by events. After his appointment, Dr Satchell decided to restructure the IT groups within the first respondent. As a result of this reorganisation, Mr Dennett's responsibilities changed and Mr Kornfeld became business improvement manager. At the same time, Ms Sharon Gorczyca went on maternity leave, creating a vacancy of business improvement facilitator, reporting to Mr Kornfeld. Dr Satchell decided that rather than have Ms Rispoli return to Mr Dennett's group there would be advantage in having her return to Mr Kornfeld's group, taking over the responsibilities of Ms Gorczyca. There were two meetings between Dr Satchell and Ms Rispoli in January 1999. There is a dispute about what was said at those meetings. I make the following findings:

At a glance

Court

Decision date

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Judgment (224 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (16)

Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160 (3 October 2003)