Facts
37 Orica is a chemical company which operates in approximately thirty countries. In Australia there are four aspects of Orica's business: mining, agriculture, consumer products and chemicals. The chemicals business in turn operates through four divisions: Chemnet, Chlor-Alkali, Adhesive and Resins and Mining.
38 Orica employs approximately 840 people in the chemicals group in Australia across the four divisions. In 1999 and 2000, the 'Chemnet business' operated throughout Australia.
39 There was a degree of confusion in the evidence about one aspect of the organisation of Orica's business. At all relevant times in late 1998, and until her departure on maternity leave in April 1999, Ms Thomson worked in the Chemnet section of Orica's business. At least from late 1998 she was one of three so-called account managers or 'key' account managers (in effect sales representatives) handling the accounts of Chemnet in New South Wales. There were eight or nine Chemnet account managers in Australia. From late 1998 to mid-2000 they all reported to Mr Merrick Majer. It is unnecessary to be precise about what each of these Chemnet account managers did. It is sufficient to understand the nature of Ms Thomson's duties, tasks and responsibilities at about the time of her taking maternity leave in April 1999. There was no suggestion in the evidence that Ms Thomson's position was atypical of New South Wales or Australian Chemnet account managers.
40 In April 1999 Ms Thomson's job involved handling in the order of seventy to eighty accounts in amounts which would vary from time to time, but which were in the order of millions of dollars. For a clear understanding of the nature of this account manager work, the evidence of Ms Ferro referred to below is illuminating.
41 In April 1999, and indeed until a reorganisation of Orica in July or August 2000, there was another part or division of Orica's chemicals business known as 'Spectrum'. During the course of the evidence a clearly articulated distinction between the Chemnet business and the Spectrum business eluded most witnesses. However, looking past some of the more formulaic responses of some of the witnesses, the following appears to be clear. First, until July or August 2000, by way of organisation, the Spectrum account managers did not report directly or indirectly to Mr Majer. In New South Wales they reported to Mr Cavenagh who, in turn, reported to someone other than Mr Majer. In the reorganisation of July or August 2000 all Australian Spectrum account managers (not just in New South Wales) reported to Mr Cavenagh, who in turn came to report to Mr Majer. Nevertheless, prior to July or August 2000 Chemnet and Spectrum were, organisationally, quite separate parts of Orica's business. According to Mr Majer, generally, though not always, Spectrum account managers had responsibility for the lower revenue generating clients.
42 Secondly, the nature of the differences between Chemnet and Spectrum is apparent from the evidence of Ms Ferro, which, with one minor exception referred to below, I accept. She was a Spectrum account manager in April 1999. When Ms Thomson left for maternity leave at that time, Ms Ferro took over Ms Thomson's job - her customers, tasks, responsibilities and duties. Before moving across to Chemnet to do Ms Thomson's job, Ms Ferro, at Spectrum, managed 450 customers for a total 'patch value' of $5m. (The word 'patch' was used in the evidence to refer to the customers that were the responsibility of the account manager.) Ms Ferro said that she was moved from this Spectrum job to Ms Thomson's 'patch' which had just over seventy customers with a total 'patch value' of $25m. That last estimate of $25m by Ms Ferro may have been inaccurate in that it probably exceeded the annual value of Ms Thomson's 'patch', but the point she was making was that she was moving from a job requiring her to take responsibility for a very large number of customers with a modest total value in sales ($5m), to one requiring her to look after a much smaller number of customers with a much larger total value in sales (some millions of dollars in excess of $5m, even if $25m was somewhat inaccurate). This had a number of advantages which Ms Ferro perceived. It was a significant increase in responsibility - it was a 'real step up' in the organisation: in effect the equivalent to a promotion by being given a more responsible position. She perceived (wholly sensibly, it seems to me) that the revenue of a customer in a 'patch' was an important factor in looking at that customer's 'strategic position in the company'. Also, apart from dealing with larger value customers, Ms Ferro saw the move as an opportunity to move away from what she described as 'transactional selling', that is 'based on price rather than any strategy or formulation'. She saw it as advantageous to be able to work with customers to develop a strategic plan for them and to involve herself in the business of the customer. Ms Ferro said that she was excited about the new position. When asked how she would view going back to Spectrum now, she said that she would not be 'too thrilled about the idea because at the moment I'm looking after some strategic customers and I wouldn't have the opportunity to look after those strategic customers if I moved back to Spectrum'. Mr Majer, in his evidence, attempted to limit Ms Ferro's 'promotion' to the fact that she was to be upgraded from 'J/G 32' to 'J/G 33'. However, it was plain from Ms Ferro's evidence, and how she gave it, that it was the nature, quality and value of the work that she saw as more responsible and more exciting.
43 The above evidence was given on the basis that the Spectrum customers that Ms Ferro previously had (approximately 450 totalling about $5m) were a mixture of customers, some being only a few hundred or a few thousand dollars a year, up to some customers being one hundred thousand dollars or more a year.
44 It is unnecessary to deal with all the evidence on Spectrum and what distinguished it from the features of Chemnet. This snapshot gives a clear picture of the two businesses, at least as handled by the account managers. Plainly the Chemnet account manager's job was, and was reasonably viewed as, more challenging and responsible than a Spectrum account manager's job, and one which concerned strategic customers for the business of Orica. The move from the latter to the former was rightly viewed by Ms Ferro as a promotion. The Chemnet account manager's job was a position viewed as more valued and valuable in the organisation - this is so irrespective of pay. It was, and was seen as, a more serious job than the Spectrum account manager's job. This may perhaps explain why Chemnet account managers were called 'key' account managers, at least in parlance (and at times by Mr Majer in his evidence), even if that was not a recognised grade in the so-called 'career ladder' (which was a matrix of managerial skills expected of employees at different grades).
45 Returning to the chronology, Ms Thomson, who had tertiary qualifications in engineering, commenced her employment with ICI Australia Pty Limited (ICI) (the predecessor of Orica) on 1 January 1989. She was employed as a chemical engineer at ICI Specialty Chemicals at the Rhodes site. She worked in this position between January 1989 and June 1991. In June 1989, Ms Thomson was relocated to another office. In early 1991, Ms Thomson approached the Human Resources Manager at the Rhodes site to investigate the possibility of other positions. In June 1991, she successfully applied for a Project Engineer role with ICI Watercare. In January 1992, she started working in the position of an account manager for Watercare. Her responsibilities were to service the New South Wales local council market, Pacific Power and all other non-Sydney Water Board business. She worked as an account manager at Watercare until April 1994. During 1992 to 1993, ICI Specialty Chemicals and ICI Industrial Chemicals groups merged to become ICI Chemicals. The two New South Wales sales forces were consolidated and the new structure was organised along industry lines. In April 1994, Ms Thomson had decided to move to the national sales force in order to increase her level of responsibility and experience. She remained an account manager.
46 On 1 August 1995 Ms Thomson's job grade was denoted as 'J/G 33'. This was apparently a grade or level standardised by reference to the international character of ICI's then business. The appellation of 'J/G 33' involved no change to Ms Thomson's conditions of employment. During 1999 and 2000 she retained this job grade.
47 On 18 October 1996 Ms Thomson commenced maternity leave for four months. In February 1997 she returned to her previous job as account manager for the food and pharmaceutical industries. Her customer list had not changed over the period during which she had been on maternity leave. She resumed her previous duties without any problems.
48 In 1998, ICI changed its name to Orica Australia Pty Limited. In February 1998, the ICI Chemicals Group became known as the Orica Chemicals Group.
49 In early December 1998 Orica implemented a restructure. The national sales force split into a set of divisional (product-focused) sales forces. Mr Merrick Majer was appointed the National Sales Manager for the 'Chemnet team'. He became the direct line manager for all the Australian Chemnet Account Managers, including Ms Thomson. At that time, there were three Chemnet account managers in New South Wales. From this point, until July or August 2000, Chemnet and Spectrum were organised separately, as described above. The reorganisation in December 1998 led to a change in customers who were in Ms Thomson's 'patch'. Of the customers she left in April 1999, a good number (it being hard to be precise) had only come to her with the reorganisation in December 1998.
50 Ms Thomson's personnel file was put into evidence. It is unnecessary to refer to it in any detail. It is sufficient to say Ms Thomson had generally been rated 'good' in staff reviews. This was short of other achievement levels of 'outstanding' or 'excellent'. However, there was no suggestion in any of the evidence that any decision taken by the respondent concerning Ms Thomson, having any connection with the controversy before the Court, was guided or influenced in any way by any lack of competence in Ms Thomson. She was viewed as a valued and skilled employee, fully capable of satisfactorily discharging her duties as a Chemnet key account manager.
51 In early February 1999 Ms Thomson (who was located in Sydney) rang Mr Majer (who was located in Melbourne) to tell him that she intended to take maternity leave in April 1999. There is a dispute about what was said. Ms Thomson said Mr Majer shouted over the telephone and said that he 'would never employ a female again' and that 'there's laws against this' and that 'now I've got three women on maternity leave'. Ms Thomson says that Mr Majer's outburst reduced her to tears. Mr Majer had a different version. He denied shouting at Ms Thomson. Mr Majer took some umbrage at the evidence of Ms Thomson. Whilst I think that at times Ms Thomson gave her evidence with some exaggeration, I reject Mr Majer's evidence that he did not display anger on this occasion and I accept in substance Ms Thomson's version of the exchange. Ms O'Donoghue was called by the respondent to rebut some evidence given by Ms Thomson. When called, she qualified some of her affidavit evidence by changing denials of certain conversations (as expressed in the affidavit) to not recalling them. She also said that in February 1999 Mr Majer was upset with Ms Thomson and that he could well have been in a bad mood. She did not recall whether Mr Majer was saying 'horrible things' about Ms Thomson. However, she accepted that it was a possibility that he spoke badly of Ms Thomson. She also said that she was aware that Ms Thomson and Mr Majer had a personality clash and he was clearly upset after speaking with Ms Thomson. I refer in this regard to [64] to [67] below.
52 This episode is important for two reasons. First, it buttresses a view that I had on viewing Ms Thomson and Mr Majer that, despite an occasional tendency to exaggerate, Ms Thomson was the more reliable witness. As will become more apparent later in these reasons, I am unwilling to rely on significant parts of Mr Majer's evidence, when it is in contest. He was often evasive and unresponsive in his answers and whenever questioning may have led to answers which might have been unfavourable, he resorted to formulaic and undifferentiated repetition to forestall a direct answer in plain English. At times I simply do not accept him. On this question, I find that he was angry with Ms Thomson, that he expressed that anger, that he spoke harshly to her and that an exchange took place substantially as recounted by Ms Thomson.
53 The second reason why I think that this episode is important is that it explains, at least in part, or perhaps gives a clue as to, why Ms Thomson was treated as she was in 2000. I deal later with the events of 2000. Suffice it to say at this point about the events of April 2000, that I find that Ms Thomson was offered duties and responsibilities of significantly reduced importance and status, of a character amounting to a demotion (though not in official status or salary). I will deal with this in more detail later, but at the bottom of the conduct are a number of facts which I think, at least partly, explain what occurred. Mr Majer and Ms Thomson had a 'personality clash'. That was a euphemism used by Ms O'Donoghue. They didn't like each other. So much was tolerably plain to me in Court; although I would accept that the litigation has probably added a dimension to the dislike. At some point after February 1999, Mr Majer decided that Ms Thomson would not return to her old job in which she reported directly to him. She was, in effect, to be moved to Spectrum to report to Mr Cavenagh. For the reasons which I later give I do not accept the evidence, principally of Mr Majer, as to why Ms Thomson was not given back her previous position. There is no suggestion in the evidence that Mr Majer would have moved Ms Thomson if she had not become pregnant and taken maternity leave. Indeed, he accepted that he would not have moved her had she not become pregnant and taken maternity leave. Ms Thomson having done so, he (I think it was principally a matter for him) decided not to allow her to return to her old job. That had the result of Ms Thomson no longer reporting directly to Mr Majer. I will return to these matters in due course, but for the moment it is sufficient if I simply describe the events of February 1999 and Ms O'Donoghue's evidence as illuminating.
54 In January 2000 Ms Thomson rang Mr Majer to let him know that she was returning to work. The precise terms of the conversation were in dispute, but it is clear that at that time Mr Majer had not taken any steps in preparation for Ms Thomson's return. It is also clear that Ms Thomson's expectation was that she would simply retake the job Ms Ferro was, and had been, doing: in language used in the evidence - take back her 'patch', which, in large part, had been hers prior to her taking leave.
55 In this conversation, or in conversations slightly later in January 2000, Ms Thomson raised the question of a company car before returning on 10 April, on the basis that from 6 March her absence would be on annual leave and not maternity leave, and the question of a salary increase. A modest salary increase was negotiated. Arrangements were made for a car. If there were any defects in these arrangements, to which I do not think it is necessary to descend, they are not of sufficient seriousness to provide a basis for a claim of discrimination or breach of contract.
56 On 28 January 2000 Ms Thomson wrote Mr Majer a letter. That letter was in the following terms:
As discussed with you on the 11th of January, I am writing to confirm that I am returning to work on April 10th, 2000.
As I indicated, my annual leave begins on the 6th of March, so I would appreciate access to a company vehicle from that date.
Additionally, I expect that you will organise something with regards to a pay increase for this year and would appreciate receiving something in writing with regards to this, as well as details of my next job role (including job description). [emphasis added]
Please feel free to call me on [telephone number provided] to discuss any matters. I am looking forward to returning.
57 It is clear that Ms Thomson was keen to understand what her 'next job role' was. She asked for something in writing. She did not receive such a document. It is fair to say that Ms Thomson began to become insistent as to the matters requested in her letter of 28 January 2000. In late February, Ms Thomson once again rang Mr Majer. He was unable at the time to speak with her. Ms Thomson said that he spoke gruffly. Mr Majer denied this. It matters not.
58 A conversation took place on 24 February 2000. By this time, it is clear that Mr Majer had decided upon the outline of at least some aspects of Ms Thomson's job. There was a conflict in the evidence about the precise terms of this discussion. Before dealing with that conversation, I set out the terms of a letter dated 28 February 2000 sent by Mr Majer to Ms Thomson, shortly after the conversation in question. Ms Thomson says she received it on 7 March 2000.
Thank you for your letter advising of your date for return to work. I hope that you [sic] maternity leave has gone well and you are looking forward to your return to work.
Orica has certainly changed in the time you have been away and I look forward to bringing you up to date with these changes.
In relation to the specifics of your return, I can confirm that you will return to an Account Management role with the same conditions of employment as when you commenced maternity leave.
J/G 33.
Job Description is as per the career ladder.
Salary $63,580 p.a.
Tool of Trade vehicle to be provided.
Job Location is currently Chesterhill but there is a strong possibility we will have to move elsewhere within 6 months.
With regard to the objectives of your work, we want you focused on increasing customer coverage as well as supporting the Chemnet Growth Strategy across both Chemnet and Spectrum customers.
The work will require a high proportion of telephone contact.
The position will report into [sic] Tony Cavanagh.
We will agree specific objectives and targets upon your return.
In the meantime I have arranged for the return of a car for early March and will contact you when it has arrived in NSW.
Trusting this letter answers the questions asked but please do not to [sic] hesitate to contact me if there are more.
59 Distilled from the different versions, and resolving some of the disputes, I find that the essence of the conversation of 24 February 2000 to have been as follows. First, it was plain that Ms Thomson was not to resume the 'patch' currently being handled by Ms Ferro. Secondly, no explanation was given as to why that would not occur. Thirdly, she was told that she would be attending to Spectrum and Chemnet accounts. Fourthly, she was told that she would be involved in significantly more telephone work than previously. I find that Mr Majer said that at least two thirds of her work would be on the telephone. Fifthly, he said that this was part of (as he often said in evidence) the 'growth strategy' of the company. Sixthly, he said that they wanted to try an experiment with her. Seventhly, he said that he wanted market research done, especially on a new product, sodium metasilicate. This was to be done on the telephone, at least initially. The focus of this was to find information about previous purchasers of sodium metasilicate and to see if they would recommence purchasing. Mr Majer said that he also raised a job responsibility for another product, PET resin. Ms Thomson's evidence was that only sodium metasilicate was raised on this occasion. I prefer her evidence. During his examination Mr Majer said that the so-called 'growth strategy' which he discussed with Ms Thomson related to sodium metasilicate and PET resin. In his evidence he did not categorise the Spectrum customer base as part of this 'growth strategy'. In order to clarify his evidence about the 'growth strategy' I asked him some questions:
His Honour Well, let us just stop there for a minute, so I understand, and so we don't lose this. Your understanding of the growth strategies was around two products?
Mr Majer No, these two elements. There were many other works going on in addition, but the two that we wanted Ms Thomson to focus on initially ---
His Honour Well, once again? You wanted her to focus on the growth - the aspects of the proposal from Ms Thomson that involved the growth strategy - your evidence is that PET resin, sale and the sodium metacylicate subject matter?
Mr Majer Yes
His Honour Using those things broadly. They were the two aspects of the growth strategy of the tasks to be given to her?
Mr Majer That would be one element of ---
His Honour Well, I am trying to understand your evidence, and you indicated a moment ago in your own words that the two aspects of the growth strategy for her were, sodium metacylicate and PET?
Mr Majer Yes
His Honour And as I understand it, that is the extent of what you would then categorise as the growth strategy to be given to Ms Thomson to undertake?
Mr Majer Yes.
60 As I said above, I reject Mr Majer's evidence that he discussed the PET resin product development on this occasion. Mr Majer said that by this time the decision concerning Ms Thomson's position was a 'calculated and thought through business decision made by not only myself, but the entire Chemnet management team in the need to develop growth and essential for that was to utilise an extra resource, that of an account manager and… Ms Thomson fitted that bill down to a tee.' I reject this evidence. Mr Cavanagh said that Ms Thomson moving into 'his area' was not his initiative. He also said that he had no need of an extra account manager in Spectrum. He said:
Ms Eastman And the first you knew that Ms Thomson may be reporting to you was as a result of this inquiry by Mr Chesterfield and/or Mr Majer?
Mr Cavenagh Yes, that was when we would have had a conversation sometime and Merrick would have mentioned that, and that was confirmed with the copy of the letter that was sent.
61 While I accept that Mr Majer may have consulted others, it is tolerably plain that this was principally his decision. Precisely why it was made (in the sense of subjective motive) is unclear. As discussed below, the justifications put forward for it in evidence do not withstand scrutiny.
62 Mr Majer denied that he said in this conversation of 24 February 2000 that Ms Thomson would not be managing customers. I accept that denial, in so far as he did say that she would have customers: Spectrum and Chemnet customers. However, I find that he did convey that she would not have customers to manage as she had done so before: that is, that she was to have a significant number of customers who would not be 'managed' in the way she had previously done and in the way that made Ms Thomson's job so attractive to Ms Ferro.
63 Upon receiving the letter dated 28 February 2000 and having the conversation of 24 February 2000, Ms Thomson knew that she would not be retaking her 'patch'; that she would be reporting to Mr Cavenagh; that she would have a mixture of Spectrum and Chemnet customers; and so, from her reporting position and the nature of her customers, she was substantially being moved to Spectrum; that the greater proportion of her time would be spent on the telephone; that she would be doing transactional selling; that she would not be managing existing strategic customers as she had previously; that she would be trying to resuscitate former customers and sell them sodium metasilicate which would require finding old files and doing telephone 'cold calling'; and that this work on sodium metasilicate was part of a 'growth strategy' (whatever that otherwise might mean). Ms Thomson was anxious and unhappy about this. She had reason to be. Unless the part of the new job to do with sodium metasilicate or such other Chemnet customers as she received was sufficient to outweigh it, she was being given a job at Spectrum reporting to Mr Cavenagh. Based on the evidence of Ms Ferro and considering that she would be spending up to two thirds of her time telephoning customers, she could reasonably anticipate that she was being effectively demoted in job status. Such outline as she had of working up customers for sodium metasilicate can hardly have alleviated her concern.
64 In March Ms Thomson spoke to a number of people at Orica: Ms O'Donohue, Ms Hodder and Ms Travaglia. I accept that she spoke to these people. She rang them in order to ascertain how other people had been treated in situations similar to her own. I have referred earlier to Ms O'Donohue's evidence. She withdrew her denial in her affidavit that Mr Majer was 'bad mouthing' Ms Thomson to others in the Melbourne office in early 1999. She said she could not recall that matter. She said, in chief:
Ms Ronalds …To the best of your recollection, did you make the comment there, ascribed to you with the (a)?
Ms O'Donohue That Merrick is in a foul mood. I really can't recall. I recall that Merrick was upset with Cynthia and could well have said that he was in a bad mood. Again, I don't recall whether Charles [Charles Tulloch - another employee] had told me that Merrick was saying horrible things about Cynthia, so I can't say for certain that I said that.
Ms Ronalds So you have no recollection of saying that?
Ms O'Donohue Not really
Ms Ronalds As his Honour was putting to you, is it likely it was the sort of thing you would have said?
Ms O'Donohue Well, the difficulty that I have is that I don't believe that I would have said something quite like this because I worked very closely with Cynthia and I knew that Cynthia and Merrick, they had a bit of a personality clash, and I had also worked for Merrick and had like working for him and found him a good manager, and I recall in my conversations with Cynthia that I took a more conciliatory tone. If she was upset with Merrick, I would try to explain where I thought he was coming from.
His Honour You wouldn't necessarily fan any fire?
Ms O'Donohue Yes, and that's why I find it hard to believe that I would have put it in these terms but I can't recall.
65 She went on to say the following:
Ms Ronalds Do you recall Ms Thomson saying, 'It's not very nice that he's discussing me like that in Melbourne, it's not professional'?
Ms O'Donoghue I don't recall the specific words but I do recall her saying something along those lines.
Ms Ronalds The next comment from you, 'I agree, I think he's stressed out with all the changes'?
Ms O'Donoghue I may have said that, I wouldn't deny it.
66 I referred Ms O'Donoghue to a later affidavit of Ms Thomson which had Ms O'Donohue participating in the following conversation with Ms Thomson:
A [Ms O'Donoghue] Merrick is in a foul mood. Charles [Tulloch - a Product Manager] told me that Merrick is saying really horrible things and bad-mouthing you. I think he's not coping well.
C [Ms Thomson] What else?
A He's saying he's got three women on leave and he's never going to employ a female again and from now on will only employ someone with the name of 'Jack', 'Fred' or 'John'.
C It's not very nice that he's discussing me like that in Melbourne - it's not professional.
A I agree. I think he's stressed out with all the changes.
C Still… it's no reason to lash out at me.
A I know.
C I'm really upset I don't know what to do. He's being really silly. It's not as if there is no time to get someone in to fill my shoes and, to top it all off, I was going to suggest Katie as a suitable 'temp' replacement. What do you think?
A Good idea
67 In discussing this evidence of Ms Thomson the following exchange took place:
His Honour If you go to the top of page 8 again, you were asked some questions about that first paragraph and correct me if I'm wrong but this is how I understand your evidence, that you recall that conversation [that is a conversation with Ms Thomson] but I think the gist of it is, you think it unlikely that you would've said it, not likely to have said it because of the reason we discussed?
Ms O'Donoghue Yes
His Honour Let me put this to you and I'd like your comment on it: you don't say to me that it's unlikely that you said it because in your experience you wouldn't have thought it likely that Merrick Majer might have said those things, do you understand what I mean?
Ms O'Donoghue Could you repeat it, please?
His Honour Yes. Ms Thomson says in this affidavit that you said, Charles Tulloch told me that Merrick is saying horrible things and bad mouthing him?
Ms O'Donoghue Yes.
His Honour You can't recall that?
Ms O'Donoghue Yes.
His Honour But you think it unlikely that you said anything like that and the reason we discussed earlier, that logically you think that is right is because you've worked closely, as I understand it, you like Cynthia, you thought that they had a personality clash and you had worked with Merrick Majer and you had enjoyed working with him, you thought he was a good line manager?
Ms O'Donoghue Yes
His Honour In that sense you had a reasonable relationship with both?
Ms O'Donoghue Yes.
His Honour For that reason, to use my words, you didn't like to fan the flames?
Ms O'Donoghue Yes
His Honour Your words, you were conciliatory if there was a problem. But as I understand your evidence, you don't give as a reason for the lack of likelihood of saying this, that you don't think that that's the sort of thing that Merrick would've done? Do you see my point?
Ms O'Donoghue Yes, I can see what you are saying. He was upset at the time
His Honour He was upset at the time?
Ms O'Donoghue Yes and he may have said ---
His Honour You don't have to speculate but that is not one of the reasons you give for thinking it unlikely
Ms O'Donoghue No
His Honour That is all I'm asking you?
Ms O'Donoghue Yes, that's correct.
68 This is the evidence assisting the finding which I made in [51] above.
69 As to Ms Hodder, Ms Thomson gave evidence that Ms Hodder said that what was being done to Ms Thomson was what had been done to her after returning from maternity leave - that Ms Thomson was being offered a 'shit kicker's' role beneath her (Ms Thomson's) status. Ms Hodder denied this. I accept Ms Hodder. I think that this was one area of exaggeration by Ms Thomson. However, much of Ms Hodder's oral evidence confirms that Ms Thomson was very disgruntled at the time about what Mr Majer had said to her, in a way conformable with Ms Thomson's evidence.
70 Ms Thomson also spoke to a Ms Travaglia about the latter not having received back her 'patch' after maternity leave. Ms Travaglia could not give evidence because of personal circumstances. In significant part because of Ms Thomson's exaggeration in respect of Ms Hodder, I propose to place no weight on Ms Thomson's evidence in [45] of her affidavit of 22 December 2000 about Ms Travaglia, without the benefit of Ms Travaglia's evidence.
71 After receiving the letter of 28 February 2000 Ms Thomson attempted to call Mr Majer. She rang him on four or five occasions on the day she said that she received it, 7 March. Unable to speak with him, she rang Mr Cavenagh, to whom she had been told she would be reporting. She said the following about his telephone call:
On 7 or 8 March 2000 I contacted Tony Cavenagh - Manager, Spectrum NSW Sales, who was supposedly going to be my new line manager. I thought that he might have more information. He said he and Majer had not finalised 'anything'. He commented that they were keen on more 'coverage', and said they 'want more phone orientation to increase coverage'. He said there was to be less customer responsibility in the role than my previous one. He stated that, with respect to what they wanted me to do, they had 'not put pen to paper' yet. He said they need to operate 'more like the competitors' i.e. lots of low-cost phone contact.
72 Mr Cavanagh denied saying there was to be less customer responsibility in the proposed role than in Ms Thomson's previous role. He did say that he said there would be more telephone coverage of customers. I find that in this conversation with Ms Thomson, Mr Cavanagh did say something that led Ms Thomson reasonably to believe that she would have far less customer responsibility in the sense that she had undertaken such responsibility prior to taking maternity leave. This conforms with the type of customer responsibility he did in fact plan for her. It is unclear when this conversation took place. Ms Thomson said 7 March. Mr Cavanagh said it was probably later. In March 2000 Mr Cavanagh began to prepare the Spectrum part of Ms Thomson's proposed 'patch'. He prepared a spreadsheet of customers of Spectrum account managers - Ms Toyne, Mr Donohoe and Ms Kostovska. He extracted a group of customers from these spreadsheets for, as he said, 'the purposes of Ms Thomson's partial proposed customer patch'. (Mr Cavenagh no doubt was aware that she would have some Chemnet customer responsibility as well, and he may have been aware of the 'growth strategy' in relation to sodium metasilicate.) He did not send this Spectrum 'patch' to Mr Majer until 8 April 2000, when he did so by email. I will deal with this list now because it is ample foundation for the finding that Mr Cavenagh said something such as that recalled by Ms Thomson about customer responsibility in the conversation in early March just referred to. It does not, perhaps, matter when the list was created, but Mr Cavenagh in [19] of his affidavit of 22 May 2001 swore that he extracted the customers in March. I infer that this formed the substance of what he sent to Mr Majer on 8 April.
73 The covering email of Mr Cavenagh to Mr Majer on 8 April 2000 was in the following terms:
'As per attached file. Proposed customers for coverage by Cynthia.'
74 The enclosed file contained two lists of Spectrum customers. The first was a list of 303 customers from the 'patches' of the three account managers referred to in [72] above, ranked largely in order of value of sales from December 1998 to December 1999. There was no identification of when the sales took place. Some of the customers may not have bought products since before March 1999 and so could be described as 'dormant', using Orica's classification system. The highest sales value for the 1998-1999 year was $8,152. However, this was atypical and out of order in the list. The next highest was $4,983. Some had $0 attributed to them. The lowest sales value greater than $0 was $49. The total value of these customers was $452,115. The second list was of 126 customers who had no value attributed to them. They were dormant customers.
75 Quite plainly, the first list was a collection of the lower end (in value) of each of the three account manager's patches. It will be recalled that Ms Ferro stated that her Spectrum 'patch' (not said to be atypical) was about 450 customers with a total value of about $5m. Also, Mr Majer in particular was at pains to say that many Spectrum customers were substantial in value. This would account for the (presumably typical) size of Ms Ferro's Spectrum 'patch'. What is quite clear from Mr Cavenagh's list is that he proposed a usual number of Spectrum customers (over 400) with a total value of under $500,000, nearly a third of which were dormant. The list covered customers all over New South Wales. Plainly it was a 'patch' which involved predominantly telephone calling, transactional selling and much 'cold-calling' to resuscitate dormant accounts.
76 Whilst I have rejected Mr Majer's evidence that Ms Thomson's new role was a considered business decision of relevant management, the evidence concerning Mr Cavanagh's preparation of the list of customers enables me more easily to infer that he and Mr Cavenagh spoke in March about the Spectrum list being formulated by Mr Cavenagh and which was contained in Mr Cavenagh's email of 8 April 2000.
77 If this was the sort of work and customer list anticipated to be assigned to Ms Thomson, as in fact it was, and if Mr Cavenagh and Mr Majer were aware of that, as I find they both were in March, then it is likely that it informed what they said to Ms Thomson about her new job, unless they intended to mislead her.
78 It is necessary to return to March 2000 in the chronology. After the conversation with, and letter to, Ms Thomson of 24 and 28 February 2000, respectively, Mr Majer sought advice from those responsible at Orica for staff matters, in particular for the legal obligations of Orica to staff. One of those persons would appear to have been involved in drafting the letter of 28 February. On 20 March 2000 Mr Majer sent the following email to Ms Donnellan and Mr Day at 'Human Resources':
Have you been able to make progress. Here is my view
Here is the relevant piece of our HR policy
'All employees granted entitled family leave have the right to return to their previous position, or if this no longer exists, to a comparable position if available.'
There are a logical sequence of questions that need to be determined, namely
1. Does the words 'previous position' mean the exact customer patch for which she was Account Manager
My view is her previous position was Account Manager (the customer patch is incidental and are reshuffled regularly as a normal course of work), therefore as long as we offer an Account Management role (which we are, albeit with a high degree of telephone contact)) [sic] she is returning to her previous position. Situation: No argument.
2. If the interpretation is that we are not offering 'their previous position', then we ask
Does the returning role meet the requirement of the 'comparable position if available'
My view would be a YES, as J/G, salary, car, PD all remain unchanged…Situation: No argument
3. If the interpretation of the returning position is that it is not comparable with the previous position. We have no position and either an alternative position is found or redundancy applies.
Your speedy reply appreciated as Cynthia is looking for resolution…mm
[emphasis in original]
79 Incidentally, it is important to note that in this email Mr Majer said that customer patches are reshuffled regularly as a normal course of work. The importance of this statement will be evident in due course.
80 The email reflects an assertion then being made by Ms Thomson with which, to a degree, she persisted: that is that Orica, in order to comply with its obligations to her, must return her to her old 'patch'.
81 On 24 March 2000 Ms Thomson wrote to Mr Majer in the following terms:
Following various communications with you since January this year, I would like to put in writing statements I have made to you concerning my return to work on April 10th 2000.
Firstly, I expect to return to my previous job as Account Manager for Chemnet, taking responsibility for the same set of customers I serviced prior to going on maternity leave. I understand that, as that job still exists, it is automatically mine to reoccupy.
Secondly, I fully expect you to implement Orica's previous promise of a job grade increase, to the equivalent of the old Grade 9. As advised, while a previous manager authorised and implemented the appropriate step-up in my salary, he did not follow through with the appropriate steps for management approval of a Grade increase, contrary to indicating otherwise as early as 1992, the result being I am still a Grade 8 employee in the Orica HR system.
Thirdly, I cannot accept that the new position, reporting to Tony Cavenagh, which you stated you expect me to occupy from the date of my return, is an equivalent position to the one previously held. My understanding is that there will be no accounts to manage, that the position will require far less technical, sales and negotiating skills than I was successfully employing in my Account Manager role, and that telemarketing and telephone sales will be a large portion of the job. These aspects are far removed from the role I previously occupied.
I would appreciate a response to this letter prior to the end of March, and expect that we can resolve the issue prior to my return.
82 The first point made by her is the assertion, to which I referred in [80] above. The third point made by her substantially reflects the substance and effect of what she had been told. These words may not have been those of Mr Majer, but what he said to her reasonably led her to understand what she there wrote. She had also been told of a 'growth strategy', which involved her undertaking the tasks referred to in [59] above in promoting sodium metasilicate.
83 Mr Majer sent this letter off to Mr Day for advice. A letter in response was then drafted by Mr Day and amended by Mr Majer. That letter was dated 5 April 2000. It was signed by Mr Majer. It was given to Ms Thomson on 10 April when she saw Mr Majer on her return, in circumstances described in [89] to [95] below. The letter in its final form was in the following terms:
Thank you for your letter of 24 March 2000, and the opportunity to respond to your concerns.
I confirm our understanding that on Monday 10th April 2000, you will return to work with Orica as an Account Manger. We look forward to rejoining our team [sic].
We confirm that (consistent with Orica's Family Leave Policy) upon your return, your position will remain the same as it was prior to your absence on Family Leave. However, you will not be resuming responsibility for the same set of customers whom you serviced previously. That is to say, while your 'job' will be different, your position remains the same.
We note that you state in your letter 24 March 2000 that you cannot accept that that job (reporting to Tony Cavanagh) is an equivalent position to the one which you previously held. The position is an equivalent position, notwithstanding that specific objectives and targets will be agreed upon your return. It is not uncommon for adjustments to be made to the job specifications for Account Managers (in Orica or elsewhere).
Orica considers you to be a valuable employee and the new job planned for you is consistent with the position of Account Manager for Chemnet. Furthermore, aspects of your remuneration, including salary, tools of trade, and motor vehicle entitlements will be unchanged. The nature of the position of Account Manger is a generic one and your career from Orica's perspective will be treated in the same way as if there had been no adjustments whatsoever.
Orica realises that there may be some adjustments to your job specifications, and acknowledges that this may necessitate a 'transitional period' upon your return to work. Orica will support you through this time and do everything possible within its means to make this transition as easy as possible for you.
In relation to the 'previous promise of job grade increase' as contained in your letter of 24 March 2000, we have not been able to find any reference to such in our records. We would be interested to review any personal records that you may have on this issue. In the absence of any further records, the Career Ladder is the process by which Account Mangers may pursue job grade changes.
Once again, we look forward to seeing you on 10th April 2000, and hope that this letter has resolved any outstanding issues which you had.
84 On 6 April 2000 Mr Majer sought Mr Day's advice again. The email sent to Mr Day on 6 April was as follows:
Thank youfor this letter and it appears from its content that we are operating within both Orica's and NSW policies…Please confirm
I can confirm that we move account managers [sic] patches around for a number of reasons..equalisation of work loads, optimise Account Manager expertise in a particular market sector, customer restructures where decision maker is moved to another site/state and often patches are shuffled when I take on a new Account Manager.
I have confirmed with Cynthia that neither Orica nor she has any record of the promised job grade change and she agrees that she will have to pursue the career ladder process..I will modify your letter to reflect this.
Unless I hear otherwise, I will present this letter to Cynthia personally on Mon next.
85 Again it should be noted that Mr Majer stated that account manager patches are moved around for a number of reasons.
86 Just as Ms Thomson's asserted position had, to a degree, a rigidity of approach inrequiring her old 'patch' back, so too did Orica's position. It was evident from the letter of 5 April and from much of Mr Majer's evidence that it was his and Orica's view that if Ms Thomson kept her formal grade in the progression of the 'career ladder' and her salary and attendant aspects of remuneration, she could not really complain. This approach laid no emphasis upon the content of the tasks being required of her. It led to some examination of Mr Majer in which (in a manner that can be described as stubbornly formulaic) he would not recognise the word 'position' as having any context other than the so-called career ladder, which was only a matrix of skills, saying little or nothing about duties and responsibilities.
87 Meanwhile, during March, Ms Thomson spoke to Mr Majer, who at that time said he was waiting for advice from Human Resources. This delay during March clearly frustrated Ms Thomson and it provoked in her a level of anxiety which was understandable, given what she had been told.
88 On 5 April 2000 Mr Majer and Ms Thomson spoke over the telephone. Some aspects of the conversation were in contest. To the extent any aspect of that dispute is important, I prefer Ms Thomson's evidence. As I have said, I found Mr Majer to be a less than impressive witness. He resorted to formulaic repetition to evade direct answers. He was stubbornly repetitive and, as far as I could see, was anxious to avoid directing his attention to questions, the straightforward answering of which might apparently harm Orica's case. I deal later with other aspects of his evidence, some of which I do not think was frank, and some of which was quite unacceptable.
89 Ms Thomson returned to work on 10 April 2000. She met Mr Majer for three hours. It is important to understand what was said at this meeting, though it is also important to realise that much had already been conveyed, as I have described earlier. Ms Thomson commenced her affidavit evidence about the meeting with what I accept to be an accurate statement of her primary position at that meeting:
On 10 April 2000 I had about a 3 hour meeting with Majer at Chester Hill, and restated my case. I stated that as my position existed, I was entitled to resume it on my return as per Orica policy and the law. I stated that Katie had been told she was a temporary maternity leave replacement employee, and that, accordingly, she would need to move out on my return.
90 Part of the conversation was taken up with detail of work and work tools including car, computer, work area, facsimile access and like considerations.
91 There was a dispute in the evidence as to what was said about the nature of the proposed job. I find that Ms Thomson was insistent on taking back Ms Ferro's 'patch', that Mr Majer refused this, that Mr Majer insisted, by reference to the 'career ladder', that Ms Thomson was receiving an account manager role and, ipso facto, was receiving an equivalent position, that Mr Majer said that Human Resources were of the view that Orica was complying with its obligations and that Ms Thomson indicated that Orica had breached its legal obligations by not returning to her Ms Ferro's 'patch'.
92 Ms Thomson deposed to the following exchange:
C So, why have I not been given my job back and Katie the new role you propose for me?
M That won't happen. The Account Manager position is the same, your entitlements are the same, it's just that some specifics have changed. The patch is different, and you also have Tony Cavenagh as a line manager, no different to Western Australia where other people have hybrid roles.
C I'm not interested in WA - besides the situation is different in WA with not many sales people for a large state and low sales dollars. The job you are offering is not comparable.
M We are working from the Career Ladder.
93 I accept this evidence.
94 Mr Majer deposed that he explained why Ms Thomson could not have Ms Ferro's 'patch' back as follows:
CT 'Can I have Katie's customer patch back?'
MM 'No, because Katie's customer patch is different to the one that you left 12 months ago. The position we want you to come back to is an Account Manager role identical to the one that you left, albeit with different customers. There is no value in disrupting the customers again with a change in Account Managers when we have an Account Manager role there for you.'
95 Ms Thomson denied that he said this, saying he simply said no in the way set out above. I accept Ms Thomson. Before me, various explanations were given as to why Ms Thomson was not returned to her old 'patch' which I will deal with presently. None withstands scrutiny. I find that Mr Majer decided to use the opportunity of the maternity leave to move Ms Thomson from her position at Chemnet to one where she would report to someone else. I accept the evidence of Ms Thomson that the following exchange took place between them:
C I totally disagree with what you are doing. I am entitled to my previous role. You have breached your obligations. You should have told Katie she is a replacement employee. If I had not gone on maternity leave I would still have that role. I am giving you the opportunity to reconsider what you are doing because what you are doing is in breach of the law. I have seen a lawyer too, and my lawyer said that the simple way of looking at the situation is as follows: You ask the question: 'If you had not gone on maternity leave would you still be doing that job?' and the answer is 'Yes', hence I should be doing the job that I did before maternity leave, the one Katie is doing now. Do you agree that would have been the case?
M Yes.
96 Ms Thomson was being told, in effect, that she was moving to Spectrum, with some Chemnet customers, with responsibility for resuscitating customers for sodium metasilicate, in a context in which her old job was available, it having been filled casually pending her return, with no explanation being given to her for why she could not do her old job and why Ms Ferro's role could not be limited in the way originally proposed (that is as a temporary replacement); all this in a context in which Mr Majer agreed that had Ms Thomson not gone on maternity leave, she would not have undergone any such change. Even without the evidence referred to in [95] above, there was no evidence that any such change would have occurred, and I would have inferred that fact in any event.
97 Notwithstanding that her job grade and remuneration remained the same, in the light of the communications since January 2000 and the behaviour of Mr Majer in January 1999, Ms Thomson was entitled to feel (as was the case) that she was being treated somewhat arrogantly and shabbily by Mr Majer and Orica.
98 At this point, it is necessary to understand the explanation and justification given in evidence for the way Ms Thomson was treated. First, it is appropriate to know what was not put forward. There was no suggestion of any inadequacy on Ms Thomson's part to retake her job. There was no suggestion, save for one reference in the evidence referred to at [99] below, that Ms Ferro was better at the job than Ms Thomson. There was no suggestion that the customers had not been told that Ms Ferro was only temporary. Indeed, Ms Ferro said she told the customers that. There was no suggestion that any customer would have been surprised or angry at losing Ms Ferro. Indeed, neither Mr Majer nor Mr Cavenagh made any enquiry at all of the customers about the matter. There was no suggestion that the personality clash between Mr Majer and Ms Thomson made working together impossible.
99 Turning to the explanations in the evidence, Mr Majer said the following:
(a)
Ms Eastman That as at January 2000, it was open to you to say to Ms Thomson, well I'll get the ball rolling in terms of you coming back to the, if we call it the chair that Katie Ferro was occupying. That's what you could have said to her?
Mr Majer What my recollection is that I would get the ball rolling in terms of the return to an account management position.
Ms Eastman Well, had changed in your mind between writing the email to Katie Ferro on 18 March 1999 and 11 January 2000, in relation to Katie Ferro being the temporary employee?
Mr Majer What had changed in that time was a number of things, if you'll bear with me. One was the business direction of the company had changed and there was a massive growth initiative being initiated, requiring extra sales resource and we saw Ms Thomson as being integral in developing that resource because of her experience as an account manager and particularly some of her experience as business development in her previous role with ORICA. So we were welcoming in that opportunity. The second part was that ---
[emphasis added]
(b)
Mr Majer …I had sanction by this time, since Ms Thomson's return, to increase the number of account managers in the New South Wales - extra resource. That resource, that extra resource, would be put into freeing up, or developing time to develop some of these growth opportunities that had been identified…
[emphasis added]
(c)
Mr Majer …The second aspect was that customers don't like disruption.
[emphasis added]
(d)
Mr Majer The second aspect was that I looked at the state of the existing business and it was quite evident to me that Katie Ferro had been looking after the current customer base very well indeed. In fact, one of the largest customers, and this is most unusual, one of the largest customers, SmithKline Beecham, indicated to me that they were extremely happy with Katie Ferro's performance. That was on a visit, an unusual visit, and yet I had to go there by myself. Katie Ferro wasn't available to go with me, which is the normal practice. So I knew that the patch was performing very, very well under Katie's wing. The third part was that half of the existing customer base that Ms Ferro was looking after, were new to Ms Thomson. Ms Thomson only assumed responsibility for them 16 weeks prior to going to ---
[emphasis added]
100 Four elements can be discerned. First, there was the 'growth initiative', which I accept was promulgated by the board. However, this (whatever its precise meaning) did not require Ms Thomson to be told what she was about her likely tasks; it did not require her to come back to a plainly substantially inferior body of customers, tasks and responsibilities. I reject the proposition that Ms Thomson, with her considerable experience, was somehow better suited than say, Ms Ferro, or someone else, to attend to what Mr Cavenagh and Mr Majer contemplated for Ms Thomson. No particular skill was required to explore dormant customers and seek to develop sodium metasilicate. To the extent that Mr Majer said that he raised with Ms Thomson the development of a market opportunity for PET resin, I have already rejected that. Some such opportunity may have existed at some point concerning PET resin. No documentary material was produced to support it and no mention of it was made in the affidavits. I find that it was a reconstruction after the event, and that Mr Majer's evidence in this regard is unacceptable. Nor was it apparently the exciting and valuable opportunity to be grasped by the experienced employee, as Mr Majer's evidence would have it. After Ms Thomson went home on 10 April it became evident within a matter of one to two weeks that there was a serious dispute with her and she may not return. No attempt was made to put anyone else onto the PET resin project and the opportunity evaporated later that year.
101 Secondly, the fact that Mr Majer may have received approval for an additional account manager (which he did not say in his affidavit) does not explain why he treated Ms Thomson in the way he did.
102 Thirdly, whilst as a matter of general proposition it could be legitimately said that customers do not like disruption, there was no suggestion here of any disruption to customers. All had been told of the position and would have expected Ms Ferro to hand over to Ms Thomson. The evidence was littered with references to the commonplace occurrence of changes to 'patches' and the re-shuffling of 'patches'. I have earlier referred to written references by Mr Majer in that respect. No investigation was made of customers by Mr Majer or Mr Cavanagh about this.
103 Fourthly, Ms Ferro was doing a good job - no doubt. She struck me as capable and personable. In no affidavit material or elsewhere in the evidence and in no contemporaneous document is there any suggestion that Ms Ferro was handling the 'patch' better than Ms Thomson. This was not put to Ms Thomson between January and April 2000. It was not said in the justificatory correspondence from Orica's solicitors in April and May 2000. I accept that Ms Ferro was competent and acquitted herself (to use Mr Majer's words) 'very, very well'. However, given the lateness of this assertion, I do not accept that it was the only reason for so acting.
104 After the 10 April 2000 meeting Ms Thomson went home with a migraine. On 19 April solicitors for Ms Thomson wrote a forceful letter complaining about Orica's treatment of their client, which concluded with the following paragraph;
Given that Orica has persistently refused to allow Ms Thomson to return to her former position of Account Manager for Chemnet and is persisting with its ridiculous suggestion that there is a position on offer to Ms Thomson which is the same or equivalent to the position previously occupied by Ms Thomson, even though Orica has had 3 months to produce a job description and customer list in respect of the alleged position and has not been able to do so, Ms Thomson has instructed us that unless some satisfactory proposal is put forward by midday tomorrow, Thursday, 20 April 2000, she will have no option but to treat Orica's actions as amounting to a constructive dismissal of her employment and will resign on that basis.
[emphasis in original]
105 No such offer was forthcoming.
106 Orica led evidence that Ms Thomson first saw her solicitors about this matter on 3 March 2000. There was a meeting and there were three phone calls prior to 10 April 2000. It was said that this exhibited a desire not to remain at Orica, in a sense, before she had anything to complain about. I reject this. It was plain, at least by late February, what was facing Ms Thomson. I do not think anything that happened on 10 April came as any surprise to her.
107 There was a dispute in the evidence as to whether Mr Majer sent an email to Ms Thomson on or about 11 April 2000. Mr Majer said that he sent this email after his meeting with Ms Thomson. He said he sent it twice. Ms Thomson said she did not receive it. There appears to be a business record addressed to 'Cynthia'. It is unclear whether Mr Majer did send it. I accept Ms Thomson's evidence that she did not receive it. Mr Majer's evidence that he sent it and Ms Thomson's evidence that she did not receive it is perhaps best explained by a failure of technology. In any event, if Ms Thomson had received it, it would hardly have led her to any revision of her views. It would only have reinforced her views about what she was being offered. The email included the following:
Cynthia,
Here is the first cut of customer in distribution channel 00 that we wish to transfer. There are likely to be more and importantly there will be new market sectors that we wish to enter but do not enjoy current sales.. ie growth. Tony has a separate list.
The timing of the transfer needs to be agreed with Tony and the other Account Managers.
[emphasis added]
108 There followed on the same page of the email a list of Chemnet customers, some with amounts of money next to them, which would apparently be for Ms Thomson. There was also included in the email the list of 303 Spectrum customers referred to in [74] above.
109 Mr Majer attempted to say in evidence that this was simply the universe from which customers would be taken. His own language in this email betrays that proposition. It was the first cut of customers 'that we wish to transfer'. Mr Cavanagh's words in his email to Mr Majer of 8 April ([73] above) also make plain that this was not a list for discussion, but for transfer. The plural used in the first paragraph by Mr Majer in his email of 11 April ([107] above) of 'new market sectors' may support the proposition that PET resin was in his mind at this time. However this does not change my view that the finding I should make about this is, as I have referred to at [59] and [60] above.
110 A number of further matters need to be dealt with before turning to the law. First, Mr Chesterfield in a late affidavit sworn on 29 August 2001 sought to describe the growth strategy by reference to small customers. This was directed, no doubt, to the very large number of Spectrum customers of extremely low value which were proposed to be given to Ms Thomson. Mr Majer in his oral evidence was clear, and was specifically directed to the point, that the 'growth strategy' he was talking about (so he said) was the sodium metasilicate and PET resin. I place little reliance on this part of Mr Chesterfield's affidavit evidence. This incantation of 'growth strategy' was used by witnesses in an attempt to present a package of hundreds of customers with less than $500,000 in sales per annum, as some opportunity in the organisation for Ms Thomson to show and display her skills in 'growing' the value of these customers. The fact is that she was being given the smallest and least valuable customers in terms of revenue of all customers in Spectrum. It may be that some of them had a high gross margin. However, I find the commonsense and straightforward evidence of Ms Ferro compelling in this regard. What was proposed for Ms Thomson was a clear demotion in status by presenting her with a large number of customers of little present sales value to Orica. I also find that no one with any experience in the organisation of Orica could have realistically or rationally thought otherwise. Thus, I find that Mr Majer was fully aware of how Ms Thomson could reasonably view what he was offering as in accordance with Ms Ferro's evidence. The incantation of 'growth strategy' was 'window dressing' in the evidence in an attempt to make the customer 'patch' proposed for Ms Thomson appear less unappealing, than it reasonably appeared to Ms Thomson contemporaneously.
111 Some further evidence of Mr Chesterfield contained in his affidavit of 21 May 2001 should be noted. In [37] of that affidavit he said the following:
Generally speaking, it is Orica's practice to find a replacement employee for an Account Manager who takes 12 months or more family leave. On the return of an Account Manager from family leave of 12 months or more, it is usual practice that the Account Manager will not be realigned with the customer patch serviced prior to taking family leave. This general practice is due to commercial imperatives including the need to minimise the disruptions to the relationship between customers and Account Managers. It is Orica's usual practice to create a customer patch for the account manager returning from maternity leave of 12 months or more by taking parts of customer patches from a number of other Account Managers. This minimises disruption to customers as entire customer patches are not realigned, merely parts of customer patches.
112 At no time did Mr Majer say anything of the kind to Ms Thomson. It does not appear in the Orica 'Family Leave Policy'. This was said to be because it was a practice and not a policy. Mr Chesterfield was questioned about it. It was plain on receiving his answers and observing the confusion experienced by him upon being questioned about [37] of his affidavit that there was no such practice which could be so clearly defined. I think this evidence reflects badly upon Mr Chesterfield and I reject it in the terms in which it was given. I return to one aspect of it below.
113 It was put to me on behalf of the applicant that I could conclude that upon Ms Thomson's return to work there was no 'real' position for her. The 'position' was never advertised and no other person was considered for the position in April 2000. The evidence reveals that nothing was done by Mr Majer or Mr Cavenagh before or after 10 April 2000 to prepare a job description or finalise duties to be performed. No one took up the PET resin opportunity. None of the Spectrum or Chemnet customers was transferred to a new account manager. No account manager took on the responsibility for identifying potential customers with respect to sodium metasilicate for a discrete customer patch. The above matters, which are born out in the evidence, reinforce my conclusion that Ms Thomson was, in substance, being sent to Spectrum, as well as being given a patchwork of other responsibilities in order to make less unappealing that apparent demotion. Another way of putting it is as I am urged to: that there was in fact no 'real' position.
114 The above does not exhaust the factual material which needs to be discussed. It is convenient to deal with legal issues in the case, which will involve some further factual analysis.