Deyell v ANI Corporation Ltd tas Steelmark Eagle & Globe [2000] HREOCA 4 (9 February 2000)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No. H 99/54

Between:

GEORGINA DEYELL

Complainant

And:

ANI CORPORATION LTD trading as STEELMARK EAGLE & GLOBE

Respondent

WRITTEN REASONS FOR DECISION OF
INQUIRY COMMISSIONER GRAEME INNES AM

Place of Hearing: Sydney

Date of Hearing: 7, 8 and 9 February 2000

Ex Tempore Decision: 9 February 2000

Written Reasons for Decision: 5 June 2000

Appearances: Mr Jamie Singh of counsel, instructed by Baker & Armstrong, for the complainant

Mr Richard Naughton, of Arthur Robinson & Hedderwicks, for the respondent

1. INTRODUCTION

On 12 November 1997 Ms Georgina Deyell lodged a complaint with the Human Rights and Equal Opportunity Commission (“the Commission”), alleging that she had been discriminated against on the ground of her sex by ANI Corporation Ltd trading as Steelmark Eagle & Globe (“the respondent”) in breach of the Sex Discrimination Act 1984 (Cth) (“the Act”).

Ms Deyell alleged that during her employment with the respondent between October 1991 and July 1996 she had not been given the opportunity to be considered for the position of Processing Manager because she was female.

Whilst the complaint was not lodged until November 1997, Ms Deyell made initial contact with the Victorian Equal Opportunity Commission in May of 1997. The complaint was investigated by staff of this organisation, with delegation from the Commonwealth Sex Discrimination Commissioner, and conciliation was attempted but was unsuccessful. On 12 March 1999 the matter was finally referred to the Commission for determination.

The reasons for the elapsing of almost two years between the initial contact with the Victorian Equal Opportunity Commission and the referral are not altogether clear to me, but I have not pursued the question as it is not the subject of my determination. I should note, though, that the inordinate delays have been a source of frustration for the parties, and heightened the tension between them in this dispute. The length of time since the events occurred has also made the evidence much more difficult to assess.

2. BACKGROUND

Ms Deyell has worked in the steel industry for some years. In October 1991, when she commenced employment with the respondent, she was regarded as an experienced Processing Scheduler.

She was originally employed as a Processing Scheduler in the Processing Department but in May 1995 she moved to the Sheet and Coil Department, where she continued this work, as well as taking on additional work. There was some dispute as to whether or not she continued with all of her original work.

Her employment ended in July 1996 when, due to a downturn in the industry, she was made redundant by the respondent.

3. EVIDENCE

3.1 Evidence for the complainant

3.1.1 Ms Georgina Deyell

Ms Deyell stated that she had worked in the steel industry for some years. She completed her Higher School Certificate in 1974, and one year of a five year part-time civil engineering certificate at Boxhill TAFE in the early 1980s.

She originally worked for the Metropolitan Board of Works, and then for a number of steel production companies in Australia and New Zealand. In the mid to late 1980s she worked as a Processing Scheduler. Prior to working at Steelmark, Ms Deyell had been second in charge to the Processing Manager at Fletcher Steel in New Zealand.

Ms Deyell commenced employment with the respondent on 21 October 1991 as a Processing Scheduler. The role of Processing Scheduler primarily involved the external processing of material. This position required her to estimate programming machines, negotiate with contractors concerning prices and coordinate delivery. It involved determining the requirements of the customer and then working with staff to plan the way in which jobs should be done to maximise efficient use of the steel, as well as assessing the time and cost of the job.

Ms Deyell stated that at her interview for the position with the respondent, Mr Max Anderson, the General Manager of the respondent, informed her that because of her background and skills, her prospects with the respondent were good.

Ms Deyell stated that she was given a performance appraisal in April 1993 by her then supervisor, Mr Peter Wilson. The overview to that appraisal was positive and stated “Good long term employee. Would make future management level with some further training.”

Ms Deyell stated that in May 1994, she approached her manager, Mr Ed Narkiewicz, about a pay rise. She stated that she raised the question of a pay rise with Mr Narkiewicz on a number of occasions but nothing eventuated. The complainant referred to her diary entry dated 9 May 1994 as a record of one such conversation.

Ms Deyell stated that on 30 June 1994 she had a meeting with Mr Kevin Parks, the then Sales Manager, about a pay rise. Ms Deyell stated that during this conversation Mr Parks told her that she would not receive a pay rise and that the respondent did not have enterprise bargaining. She stated that Mr Parks also told her that “I would never be Processing Manager because I was a female”. Ms Deyell stated that he told her that he disapproved of females working in the warehouse, as that was “not their place”. She stated that Mr Parks made clear that these were also the views of Mr Anderson. Ms Deyell referred to her diary entry dated 30 June 1994 as a record of this conversation. She stated that she told her husband about these comments and showed him, soon afterwards, her diary entry of that meeting.

Ms Deyell stated that she was upset by the conversation with Mr Parks and spoke to Mr Narkiewicz about that conversation on the following day, 1 July 1994.

Ms Deyell stated that on 4 July 1994 she also spoke to Ms Geraldine Whitman about the conversation with Mr Parks. Ms Deyell stated that Ms Whitman told her to speak to Mr Anderson and make notes of any such conversations. Ms Deyell also stated that Ms Whitman told her that she could complain to the Discrimination Board about the unfair treatment. Ms Deyell further stated that Ms Whitman told her that “women will not be made equal” at the respondent and that it was difficult even for her. Ms Deyell referred to her diary entry dated 4 July 1994 as a record of this conversation.

Ms Deyell stated that on 28 July 1994 she again spoke to Mr Parks. She stated that she spoke to him about the possibility of promotion to Processing Manager. She stated that he told her she may get the promotion or she may not. Ms Deyell referred to her diary entry dated 28 July 1994 as a record of this conversation.

Ms Deyell stated that on 12 August 1994 she had a discussion with Mr Anderson concerning her application for the position of BHP Product Manager, a position at the same level as Processing Manager, which had become available. She stated that he told her the job had been offered to Mr Mike Moreland. Ms Deyell stated that during that conversation with Mr Anderson she mentioned her earlier conversation with Mr Parks on 30 June 1994 and her ambition to become Processing Manager. Ms Deyell stated that Mr Anderson told her “you will not be the Processing Manager because you’re female”. Ms Deyell referred to her diary entry dated 12 August 1994 as a record of this conversation. Ms Deyell stated that she showed her husband her diary entry for that meeting shortly after the meeting.

Ms Deyell stated that she did not report these discussions to management because there was no person she could go to at the respondent with such a grievance. She stated that whilst the respondent had a consultant, Mr Blaize Anthony, who was supposed to deal with issues such as discrimination and harassment, she had no faith in him as he was a close associate of Mr Anderson. She further stated that she did not make an external complaint at this time, such as to the Commission, as she did not want to create problems for herself.

On 15 September 1994 the appointments of Mr Ed Narkiewicz as the new Sheet and Coil Product Manager and Mr Tony Fay as Processing Manager were announced. Ms Deyell stated that these positions were not advertised and she was not given an opportunity to apply. Ms Deyell stated that she was very upset by the appointment of Mr Fay as Processing Manager. She also stated that she did not feel that Mr Fay had the skills or experience that she had in respect of the position of Processing Manager. She stated that a number of employees were annoyed by his appointment. She also stated that she had to help Mr Fay with his job as he did not know how to do it.

Ms Deyell stated that on 29 March 1995 she had a meeting with Messrs Anderson and Fay. She stated that Mr Anderson told her to “teach Mr Fay his job and to take the load off Mr Fay as it was too much for him”. Again, Ms Deyell referred to her diary entry of that date as a record of the conversation.

Ms Deyell stated that in about April or May 1995 she presented Mr Anderson with a draft performance appraisal, her last performance appraisal having been in April 1993. She stated that she met with Mr Anderson sometime after 13 April 1995 but before 4 May 1995. She stated that Mr Anderson refused to complete the draft performance appraisal and handed it back to her saying there was no point in completing it. Ms Deyell stated that no other performance appraisals of her were conducted during her time with the respondent.

Ms Deyell stated that on 24 May 1995 Mr Anderson told her that she was to be transferred to the Sheet and Coil Department as the Key Accounts person. This was a new position. Ms Deyell stated that she was to continue to perform her duties in the Processing Department and her workload increased dramatically. She stated that she was not given a pay increase for undertaking these additional duties.

Ms Deyell stated that on 29 May 1995 she was given a formal warning by the respondent for creating dissent because of her advice to a number of female employees in the section about approaching the Commission about sexual harassment. She disputed this warning. She stated that this was another example of the lack of protection for females from discrimination and harassment at the respondent.

On 21 March 1996 Mr Anderson announced the appointment of Mr Harold Furness as the new Sheet and Coil Processing Manager. Ms Deyell stated she was surprised by this appointment due to budgeting pressures at that time and could not understand why she was not appointed to the position. She stated that again the job was not advertised.

Ms Deyell stated that on 8 May 1996 she attended a meeting with Mr Narkiewicz. She stated that he told the staff that there were budget problems and cutbacks. Ms Deyell stated that she told her colleagues that being a female and about 40 years old, she would be made redundant.

On 3 July 1996 Ms Deyell was advised by Mr Anderson that because of financial problems her employment was terminated. Ms Deyell stated that she was shocked as she had been advised by Mr Narkiewicz on 1 July 1996 that she would be getting a CPI pay increase and that she was a very efficient worker. Ms Deyell stated that she believed she was chosen because she was female.

Ms Deyell stated that she had applied for several jobs in the steel industry since her employment with the respondent but had been unsuccessful. Ms Deyell also stated that she began to have health problems due to the increased workload at the respondent in 1995 and that those problems have worsened since her redundancy.

Throughout her evidence, Ms Deyell referred to a number of her diary entries. Ms Deyell stated that it was her practice to keep a comprehensive diary and that she continued this practice throughout her employment with the respondent. Ms Deyell stated that she recorded important meetings, appointments and conversations in her diary so that she could remember them. She made diary entries of conversations and meetings on the same day of those conversations and meetings. She stated that if she was at her desk, she would make a diary entry immediately. If she was at a meeting, she would make the entry after returning to her desk. She stated that if she could not recall something she would not put it in her diary. Ms Deyell also stated that in making her diary entries she would use a number of different pens from her desk and desk drawer, depending on whatever was to hand at the time. She would also write on different parts of the page wherever there was space.

In cross-examination Ms Deyell agreed that there was no entry in her diary about the conversation with Mr Anderson when she had provided him with the second appraisal. She also agreed that, although Mr Fay’s comment regarding not knowing anything about processing was very important, she had not written that in her diary. She confirmed that not every important conversation was recorded.

3.1.2 Mr Peter Deyell

Mr Deyell is the husband of the complainant. He stated that on or about 30 June 1994 Ms Deyell told him that she had a conversation with Mr Parks concerning a pay rise. He stated that she said words to the effect of “Kevin told me that Steelmark does not have enterprise bargaining and that I would not be getting a pay rise”. He stated that she also told him that she asked about her prospects of becoming the Processing Manager and Mr Parks said “you will never be a Processing Manager as you are a female. Females should not work in the warehouse”. Mr Deyell stated that she was very upset by these comments. He stated that on or about 30 June 1994 Ms Deyell showed him her diary entry of her conversation with Mr Parks.

Mr Deyell stated that on or about 4 July 1994, Ms Deyell discussed with him a conversation she had with Ms Whitman. He stated that Ms Deyell said words to the effect that “I told Geraldine about my conversation with Kevin and me being a female I would never be Processing Manager. Geraldine said you have to play their game, keep notes and tell Max. She said if I lodge a complaint, I would have to be careful. Geraldine said that women are not treated equally, even she only got the Falcon and not a Fairmont”. Mr Deyell stated that shortly after 4 July 1994 Ms Deyell showed him her diary entry of her conversation with Ms Whitman.

Mr Deyell also stated that he recalled a discussion with Ms Deyell about a conversation with Mr Anderson concerning the role of Product Manager. He stated that he also recalled seeing her diary entry recording that conversation.

Mr Deyell stated that he remembered on or about 9 September 1994 that Ms Deyell was very upset because Mr Moreland had advised her that Mr Fay had been appointed to the position of Processing Manager. He stated that Ms Deyell complained to him that she was not given the opportunity to apply for that position.

Mr Deyell also stated that in May 1995 he remembered that Ms Deyell was appointed to a position in the Sheet and Coil Department. He stated that as a result of this appointment, her workload increased and she became very tired and stressed.

Mr Deyell stated that his wife had kept a detailed diary for a long time and was a very meticulous diary keeper. Mr Deyell stated that the diary entries made by Ms Deyell were made at the time as events occurred. He stated that it was not in Ms Deyell’s nature to concoct diary entries.

3.2 Evidence for the respondent

3.2.1 Mr Neil Holland

Mr Holland has a Bachelor of Applied Science and has worked as a handwriting expert with the Victoria Police for many years. In 1989 he established his own business in this area.

Mr Holland gave evidence regarding Ms Deyell’s diary. He provided a report, which was an exhibit in the proceedings, analysing the various relevant entries.

The report showed inconsistencies in the handwriting during the entries, and that the same entry had sometimes been written with different pens. It also noted that the relevant entries had sometimes been written with a different pen than other entries on the same page.

In cross-examination Mr Holland stated that he had not attempted to determine when the entries were written.

3.2.2 Mr Max Anderson

Mr Anderson is the General Manager of the respondent. He confirmed that Ms Deyell was employed by the respondent from 21 October 1991 until she was made redundant on 3 July 1996.

Mr Anderson stated that Ms Deyell was employed in October 1991 as an Outside Processing Scheduler. She worked in the Processing Department which included a number of CAD CAM operators, an internal scheduler and a couple of estimators. The Processing Department was managed by a Processing Manager.

He stated that during the period of Ms Deyell’s employment, the respondent’s staff received pay increases over and above the CPI based on performance. He stated that in the period 1 July 1994 to 1 July 1996 Ms Deyell received only minimal salary increases. He stated that this was consistent with his assessment that while her work performance was satisfactory, it was not considered of sufficient merit to warrant a salary increase.

Mr Anderson stated that his overall assessment of Ms Deyell was that as a clerk doing clerical sales functions, she was a reasonable employee. He stated that he had a reasonable relationship with her. Whilst she was a little troublesome, he considered her somewhat of a “maverick” and as businesses always have some mavericks, he tried to manage this.

Mr Anderson stated that he was aware that Ms Deyell was keen to advance and to move into a managerial position. He stated however that in his view her ambition was not matched by sufficient skills and ability. He stated that throughout her employment Ms Deyell put herself forward for different positions when in reality she lacked the background, experience and requisite skills for those positions.

Mr Anderson denied telling Ms Deyell in August 1994 that she would not be appointed to the position of Processing Manager because she was female or “only a female”. He stated that he would not have made a comment of this nature. He stated that he was an experienced manager and worked in an environment where several women had been appointed to managerial positions. He stated that if any such discussion took place, he would only have told Ms Deyell that she lacked the relevant skills for the Processing Manager position.

In relation to Ms Deyell’s application for the position of BHP Product Manager, Mr Anderson stated that his decision was that she did not have adequate experience for the position. He stated that the position required specialised market and product knowledge. He stated that Mr Moreland was appointed to the position of Product Manager in August 1994 because of his sales experience and product knowledge. Mr Anderson further stated that at the time of the appointment, Mr Moreland had been the Assistant Manager in this area and his promotion was a natural progression.

In relation to the appointment to the position of Processing Manager, Mr Anderson stated that this position required specialist knowledge of the capacity of the processing machines, responsibility for the profitability of the Processing Department and the management and supervision of several staff. He stated that Ms Deyell did not have sufficient technical knowledge and lacked the necessary management skills to be considered for this position. Mr Tony Fay was appointed to this position in September 1994. Mr Anderson stated that the respondent’s management knew of Mr Fay because he had run his own private engineering business and had worked as a contractor for the respondent for a number of years. Mr Anderson stated that at the time of appointing Mr Fay he had decided that he wanted someone who understood the engineering side of the business, who was able to converse with tradespeople and who had leadership skills. Mr Anderson also stated that Mr Fay was assessed by human resources consultants as having strong management skills.

Mr Anderson denied that Mr Fay did not know how to perform the role of Processing Manager or that he requested Ms Deyell to teach Mr Fay how to perform that role. He stated that if any discussion took place concerning Mr Fay’s role, as alleged by Ms Deyell, he would merely have indicated that Ms Deyell should assist Mr Fay with some of the clerical and administrative parts of the job. Mr Anderson stated that this was all she could have done as she had no understanding of the maintenance and engineering functions performed by the Processing Manager.

Mr Anderson stated that there was some dissatisfaction amongst the Processing Department with the appointment of Mr Fay as Processing Manager because it was an “external” appointment. He stated that once he explained the role to be played by the Processing Manager to these individuals, they were satisfied with the decision.

Mr Anderson stated that Ms Deyell had indicated to him that she thought the respondent needed a Human Resources Manager and that she considered herself suitable. He stated that she had no background or skills in this area and that this approach demonstrated to him how desperate she was for a managerial level position and that she was completely unaware of the necessary skills and training that it would involve.

Mr Anderson stated that in May 1995 Ms Deyell was transferred from the Processing Department to the Sheet and Coil Department. He stated that at this time a decision was made that Ms Deyell’s capacity could be better utilised assisting with accounts as scheduling requirements could be absorbed by other members of staff.

Mr Anderson denied having seen the draft performance appraisal from April or May 1995 prepared by Ms Deyell. He stated that had he seen it, he would have signed or initialled that document. He further stated that Mr Fay, Ms Deyell’s immediate manager at that time, should have completed any such performance appraisal rather than himself.

Mr Anderson stated that in March 1996 Mr Harold Furness was appointed as the new Sheet and Coil Processing Manager. He stated that Mr Furness was appointed to this position principally because of his particular expertise and his thirty years of experience in the steel industry. Mr Anderson stated that due to the specialist nature of this role, it was absurd for Ms Deyell to suggest that she should have been appointed to this position.

Mr Anderson stated that Ms Deyell’s position with the respondent became redundant on 3 July 1996 as a result of a severe market downturn and the restructuring of processing in the Processing Department. It was not considered necessary to retain an Outside Processing Scheduler. Two other staff members, one male and one female, were made redundant at the same time. Other pressures for retrenchments or downsizing were covered by natural attrition as a result of the resignation or retirement of eight other staff members between May and July 1996. Mr Anderson stated that the position held by Ms Deyell no longer exists. He stated that Ms Deyell’s employment was terminated as a result of a genuine redundancy.

Mr Anderson stated that in the period 1994 to 1996 he simply did not consider Ms Deyell had the skills or temperament to take on a managerial position. He stated that she was considered to be something of a troublemaker in the workplace, that he had on one occasion given her a written warning and that she had poor relationships with various members of the Processing Department. He was satisfied that Ms Deyell did not have leadership or managerial skills.

Mr Anderson stated that Ms Deyell was not appointed to a managerial position with the respondent because she did not have the relevant qualifications and experience and was not considered suitable for the different managerial roles.

3.2.3 Mr Kevin Parks

Mr Parks was formerly the Sales Manager of the respondent. He is now retired.

Mr Parks stated that he could remember discussions with Ms Deyell in or about June 1994 concerning her position with the respondent. He stated that he recalled a discussion dealing with her job generally and her desire to be appointed to a managerial role. His recollection was that the discussion was not in the nature of a formal meeting. He stated that he did not recall that the discussion specifically concerned a pay rise.

Mr Parks denied that he told Ms Deyell in that discussion that she would not receive a pay rise. He stated that the respondent’s standard practice was for individuals to get pay rises according to movements in the CPI. Mr Parks also stated that he would not have engaged in a discussion of this kind in any more detail because Ms Deyell had her own manager in the Processing Department. He stated that he would have referred such matters to Ms Deyell’s own manager or to the General Manager, Mr Anderson.

Mr Parks specifically denied ever saying to Ms Deyell that she would never be appointed to Processing Manager because she was a female or was “only a female”. He denied saying that he disapproved of females working in the warehouse as that was “not their place”. He further stated that at this time the respondent had two female Product Managers who were already working in the warehouse. He stated that these women were work colleagues of his and he had assisted them to obtain those career promotions. He stated that there was no way he would have made a comment of this nature considering his awareness of the role of those women. He further stated that it would not have been in his nature to make those kinds of remarks.

Mr Parks also specifically denied that he would ever have indicated to Ms Deyell that she would never be the Processing Manager because he would have assumed that any decision on such matters required input from other managers and Mr Anderson. He stated that he would never have spoken in this way concerning the appointment.

Mr Parks admitted in cross-examination that he may have initially been of the view that women should not work in the warehouse. However, he stated that he did not maintain such a view and that he had actively helped women to obtain positions that involved working in the warehouse.

3.2.4 Ms Geraldine Whitman

Ms Whitman is the Sales Manager (Aluminium) of the respondent.

Ms Whitman stated that she recalled having a conversation with Ms Deyell on or about 4 July 1994. She stated that at this time she had only recently been placed in a managerial position with the respondent, and as a result, would have been very careful concerning what she said to Ms Deyell. She also stated that she understood Ms Deyell had made claims against former employers and this would have made her extremely cautious about what she said to her. She stated that she was always careful in her dealings with Ms Deyell.

Ms Whitman stated that she did not recall Ms Deyell telling her that Mr Parks had made a comment that Ms Deyell was “only a female”.

Ms Whitman denied that she said anything along the lines of “things being difficult, you must play the game”. She also denied that she said that “women will not be made equal” at the respondent. She denied making any reference to her having a Falcon and not a Fairmont motor vehicle.

Ms Whitman stated that she did recall telling Ms Deyell that if she felt she had been discriminated against on some ground she should make a complaint and should tell Mr Anderson. She also stated that she told Ms Deyell that it was a serious matter and she needed to be sure of her facts. Ms Whitman stated that she could recall this part of the conversation clearly because she was very conscious of how she should word her comments.

Ms Whitman stated that she could recall telling Ms Deyell to make notes of conversations but did not say that life would be difficult for her if she made a complaint or any comments of that nature. Ms Whitman stated that she told Ms Deyell that she might be happier in some other workplace where she had an opportunity to perform a different role.

Ms Whitman stated that she did not have a high regard for Ms Deyell’s professional ability. She stated that Ms Deyell had made a number of errors and that she had poor relationships with some of the respondent’s suppliers. She stated that, in her view, Ms Deyell was not performing her job as a Processing Scheduler all that well.

In cross-examination Ms Whitman agreed that she liked Ms Deyell. She said that it was clear that Ms Deyell thought she was being discriminated against. Ms Whitman said that she had just tried to be kind to her, and encourage her to discuss it with Mr Anderson. Further, Ms Whitman agreed that there had been a lot of discussion about the status of her car, but asserted that she had not complained about it.

3.2.5 Mr Ed Narkiewicz

Mr Narkiewicz is the Sheet and Coil Sales Manager of the respondent.

He stated that Ms Deyell worked under him during her time working at the respondent, both in the Processing Department and later in the Sheet and Coil Department.

Mr Narkiewicz stated that he did not specifically recall any discussions with Ms Deyell in 1994 concerning her prospects of a pay rise. He stated that he would have not discussed such matters with her but would have referred such matters to Mr Anderson or Mr Parks.

Mr Narkiewicz stated that in early May 1995 Ms Deyell was transferred to the Sheet and Coil Department and reported to him. He stated that her workload did not increase dramatically at the time of that transfer. He stated that she was given one additional task, being to look after one customer, Bilcon Engineering. He stated that this was the only additional task that she was given. He stated that at the same time some of her other tasks were taken away from her. As a consequence, he stated that there was no question of her receiving a pay rise.

He stated that there was no attempt to increase Ms Deyell’s workload but rather an attempt was made to vary her job to include some sales experience and to give her an opportunity to leave the office to visit a customer on a regular basis.

Mr Narkiewicz stated that his overall view of Ms Deyell was that she was reasonably good at clerical work although sometimes overly meticulous. He stated that he did not believe she was capable of assuming a managerial role. He stated that he doubted whether she had as much ability as she claimed and that she had an extremely high view of her own abilities. He stated that he also had some concerns about her ability to supervise staff.

Mr Narkiewicz stated that he was aware of Ms Deyell’s desire to become Processing Manager. He stated however that this particular job changed during the time of Ms Deyell’s employment from being limited to a sales function to more of a production and maintenance function. He stated that in his view this required skills which Ms Deyell did not have. In his view she lacked managerial experience or skills and had limited sales experience.

Mr Narkiewicz stated Ms Deyell’s redundancy was a genuine redundancy. He said her job was divided up into a number of functions which were allocated amongst three other people.

3.2.6 Mr Angelo Bruno

Mr Bruno is the CAD CAM Programmer and Estimator in the Processing Department of the respondent. He was working in the Processing Department when Ms Deyell commenced employment there.

Mr Bruno stated that the role of Ms Deyell in the Processing Department was essentially clerical. He stated that she did not have any technical or processing skills. He further stated she was not regarded as being next in line for the position of Processing Manager, nor was there any natural progression to this position from the role of Processing Scheduler.

He stated that when Mr Fay became the Processing Manager in 1994 it was accepted that he was appointed because of his mechanical and engineering skills. He stated that there was some dissatisfaction about his appointment because he was an external appointment. He stated however that the decision was accepted by staff in the Processing Department when management explained what kind of person it wanted in that role.

Mr Bruno stated that he had to teach Ms Deyell certain procedures including how to “nest”. He explained that this is a procedure for ensuring that metal plate is best utilised. He stated that Ms Deyell had no idea about this process even though it was a basic requirement for the purpose of quoting on jobs. He stated that Ms Deyell kept making mistakes and could not understand the theory behind this process. He stated that this would have been a fundamental requirement for the role of Processing Manager. He stated that she had no technical skills or ability and was unable to read mechanical drawings. He stated that in his view she did not have adequate estimating skills to perform the role of Processing Manager.

Mr Bruno stated that he would have been more qualified for promotion to the role of Processing Manager than Ms Deyell due to his greater experience and qualifications.

3.2.7 Mr John Verderosa

Mr Verderosa is the Product Specialist of the respondent. He was working in the Processing Department when Ms Deyell commenced employment there.

Mr Verderosa stated that Ms Deyell was not popular or well respected in the Processing Department during her employment. He stated that she was not regarded as a team player and did not have the confidence of fellow staff in the Department. He stated that she was not respected by her staff for her work performance or leadership skills.

He stated that Ms Deyell was a good sales person and had clerical skills but lacked any skills in relation to areas like maintenance, processing machinery and engineering. He stated that at the time of Mr Fay’s appointment to Product Manager it was realised that someone was needed in that job with an engineering background with specialist maintenance and machinery skills. These were not skills possessed by Ms Deyell.

4. THE LEGISLATION

Having regard to the nature of the discrimination alleged in the complaint, sections 5 and 14(2) are the relevant provisions of the Act. So far as is relevant, they read as follows:

5 Sex discrimination

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D.

5"> 14 Discrimination in employment or in superannuation

(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 benefits associated with employment;

(c) by dismissing the employee; or

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

5. FINDINGS OF FACT

The nub of this matter is the dispute in the evidence. The complainant asserts that certain conversations took place with Mr Anderson, Mr Parks and Ms Whitman which indicate that she was treated less favourably by the respondent on the ground of her sex. She supports this assertion with notes written in her diary contemporaneously, and shown to her husband on the day or soon afterwards. The respondent, through Mr Anderson, Mr Parks and Ms Whitman, asserts that although conversations occurred at these times, the comments which Ms Deyell alleges indicated that she was being discriminated against were not made, or were made in different contexts. The respondent further asserts, supported by the evidence of its forensic expert, that parts of the diary entries in question were not made at the same time as the rest of the entries.

In all of these matters the complainant, of course, has the onus of proof to persuade me on the balance of probabilities. If the complainant is able to persuade me that the conversations occurred as she has recalled and recorded them, then there is little doubt that this would constitute a breach of the relevant sections of the Act.

I will deal first with the forensic evidence in relation to the complainant’s diaries. Whilst casting no aspersions on the work which Mr Holland, the forensic expert, did or on his report, when analysed in the broader context of the matter it was of little assistance. Mr Holland indicated that parts of certain entries were written in different inks, or with a different writing instrument to other parts. He also suggested that the slightly different nature of the writing indicated that parts of entries were written at different times to other parts. However, this is as far as Mr Holland’s evidence went.

Whilst he was able to say, and I accept, that they were written at different times, he was unable to suggest whether the gaps in time were minutes or months, and in what order the entries were written. In short, whilst the respondent tried to draw an inference from Mr Holland’s evidence that specific parts of the diary entries were written later to support the complainant’s case, there is no evidence to support such an inference.

I find that all of the diary entries referred to in the evidence were written contemporaneously and in the order that they appear. I accept the complainant’s evidence that she had many pens in her desk drawer, and that she often wrote something in her diary and then picked up a different pen to write something else. I also find that the same view applied to the spirex page stapled to the diary page of 8 May 1996. As was her practise, Ms Deyell took notes during that meeting with several pens, and probably at different times during the meeting. Mr Holland stated that writing can change under stress, and this is probably the explanation for the writing in the centre of that entry being different, as Ms Deyell would have felt more strongly about its content than the rest of the entry.

The respondent was not able to bring any evidence to the hearing which would give its assertion any higher status than that of inference, and on the balance of probabilities I accept the complainant’s evidence that her notes were written at the time the events occurred. This is supported by the evidence of Mr Deyell, who swore to seeing the relevant diary entries at these times. Again, attempts were made by the respondent to impugn this evidence, but there is no evidentiary basis for this attempt.

The complainant’s case, then, is whether she was provided with the opportunity to be promoted to the position of Processing Manager. This turns on the evidence of the conversations the complainant had with Mr Anderson, Mr Parks and Ms Whitman. What is also relevant, though, is the complainant’s assessment of her skills and abilities, and potential for promotion, in the organisation as compared with that of her general manager, manager and work colleagues.

The conversations in question happened four to six years ago, and I must take this into account when assessing people’s memories of those conversations. Bearing this in mind, the fact that the complainant made contemporaneous diary notes gains greater importance. Weighed against this, however, the complainant has the onus of proof in these circumstances, and she has no direct corroborative evidence. The allegations in this matter are not of such a serious nature, in the context of discrimination legislation, that the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 would come into effect to raise the onus barrier higher.

Against the complainant’s evidence I have been presented with the evidence of three more senior employees, all of whom appreciate the significance of the statements which they are alleged to have made. Messrs Anderson and Parks deny making the statements, and so I must make a choice between the two versions. They assert that they would not make statements such as this to any member of staff. Mr Anderson went so far to say that if he had been aware of Mr Parks making such statements he would have been severely warned, and possibly dismissed. Mr Parks, whilst agreeing that his original view may have been that women should not work in the warehouse, was later involved in the promotion of a number of women in the steel industry. He gave evidence that the respondent company was a leader in this area. This evidence was not disputed.

Ms Whitman denied some of the statements, and said that others occurred in a different context to that which Ms Deyell has recorded. She agreed that discrimination was discussed, but asserted that Ms Deyell had raised it and that she, Ms Whitman, gave Ms Deyell advice about what to do if Ms Deyell felt that discrimination had occurred. Ms Whitman said that she liked Ms Deyell, and that she was trying to be kind to her, and give her some direction. Ms Whitman stated that she was cautious when dealing with Ms Deyell because she regarded Ms Deyell as encouraging dissent among other women in the office, and this assessment, whether correct or not, would tend to confirm Ms Whitman’s evidence of her caution.

It is clear from the evidence that Ms Deyell was a committed and energetic employee. This can be seen from her own evidence, and the evidence of others, particularly Mr Anderson who confirmed in the witness box the comment he had made in her reference. Mr Anderson described her as a “maverick” but sought, during her employment, to harness or focus her energies in a way which would benefit the company.

Ms Deyell is also clearly ambitious. There is nothing innately wrong with this, but it seems to have caused Ms Deyell to have a somewhat higher view of her skills and abilities at the time she worked for the respondent. This is confirmed when the evidence of Mr Anderson, and other witnesses for the respondent, is taken into account. Messrs Narkeiwicz, Bruno and Verderosa confirm this, and their assessments are quite consistent with that of Mr Anderson.

The complainant’s counsel submitted that I should give less weight to the evidence of the respondent’s witnesses because Mr Anderson admitted to having read all witness statements, and there was general agreement that discussion had occurred among them regarding the evidence adduced. I am not persuaded by this submission. As the senior representative of the respondent it was quite appropriate for Mr Anderson to be aware of the evidence to be led in order to instruct his counsel. I am not persuaded that credit should be lessened by the suggestion of collusion. In fact, the consistent pattern of that evidence is, in itself, persuasive. I am also not persuaded that I should discredit this evidence because of minor inconsistencies between statements and outlines of evidence. They did not go to issues of substance.

Messrs Anderson, Narkeiwicz, Bruno and Verderosa all asserted that the complainant’s administrative skills were strong, but that her technical skills were weak. Mr Bruno asserted that he felt that he, not Ms Deyell, should have been considered for the position as Processing Manager when Mr Fay was appointed. Mr Anderson confirmed that the company was seeking someone with strong engineering and maintenance skills.

Ms Deyell’s view was confirmed, however, by her first staff appraisal carried out in April 1993 by Mr Peter Wilson, her then immediate supervisor. It describes her in quite positive terms as potential future management material, given more experience and more training. But, as Mr Anderson pointed out, this appraisal did not receive the imprimatur of senior management. Also, as he pointed out, Ms Deyell had not completed much further training. Because of this appraisal, and the lack of further regular appraisals which may have been somewhat less optimistic, the respondent bears the responsibility for confirming the view of herself which Ms Deyell had developed.

Taken in the context of this view, the lack of advancement in the organisation must have become quite frustrating. It is not surprising, then, that Ms Deyell formed the conclusion that her lack of success related to her gender. Once she had reached this conclusion, comments made in the conversations with Mr Anderson, Mr Parks and Ms Whitman were heard in a different context.

The occurrence of these conversations is not in dispute. It is what was said, and how it was said, that is in contention. On the balance of probabilities, and weighing all of the evidence about the workplace and performance in it, the complainant has not satisfied me that the references to her sex and the different treatment she would receive because of it were made as she remembers them and has recorded them. I have little doubt that the topics were discussed, but I am satisfied that the versions provided by Mr Anderson, Mr Parks and Ms Whitman more closely represent what was said. However, I am also satisfied that Ms Deyell’s interpretation of those conversations is her honest belief, and that she honestly wrote down what she thought she had heard.

6. CONCLUSION

Based on the above findings, the complainant is unable to make out her claim of discrimination on the ground of her sex. I have therefore not considered the relevant statutory provisions. I therefore dismiss the complaint pursuant to s.81(1)(a) of the Act. I direct that the complainant’s diaries, which were tendered as evidence in these proceedings, be returned by the Commission to the complainant.

It is unfortunate that this complaint has reached this stage of the process, and has taken so long to do so. Whilst it is the complainant who has prosecuted the matter, the respondent’s personnel practices in not properly monitoring staff appraisals, and in not conducting them regularly, has been a contributing factor. The length of delay has also caused positions to be entrenched and costs to increase. Both are regrettable.

Dated this 5th day of June 2000

Graeme Innes AM
Inquiry Commissioner