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Why harassment claimant wants to rock DJs


David Jones CatalogueSometimes a claim for a lot of money for an alleged wrong makes saying truth to power more effective. The young woman who instructed her lawyers to go straight to the Board of David Jones about being sexually harassed by DJs' former CEO has now acted in a way that seems to have flabbergasted the retail giant. But discrimination law experts have been anticipating it for a while.

Most large employers have great policies about zero tolerance for sexual harassment and bullying, complex grievance procedures and lots of contact officers, and a reservoir of unmade complaints and unhappy staff. This complainant has upped the ante.

Kristy Fraser-Kirk could have made an internal complaint, but didn't trust the processes after what she claims was the 'knowing' response of senior staff. She could have gone to the Australian Human Rights Commission and complained about sexual harassment and been offered conciliation, but she didn't. Nor did she go to the state Equal Opportunity Commission.

She went to the Board, then, after its public response, which included the departure of an apologetic chief executive and an announcement that it was an isolated occurrence, made it real. She has apparently taken action in the Federal Court for punitive damages in an amount that Australian courts have rarely granted, though American courts have: $37 million.

Punitive damages have not often been awarded in Australian courts. They don't aim to be compensatory — Fraser-Kirk isn't claiming she has suffered that kind of 'damage' to her career or health. She wants the courts to teach big employers a lesson, about keeping the promises they make in employment contracts, in their policies and procedures, and their public reputation as employers of choice for vulnerable groups.

When I started out as Victorian Commissioner for Equal Opportunity, in 1990, the average award of 'damages' for pain, suffering, humiliation and breach of civil laws protecting equality of opportunity was around $500. That year, federal court judge, Marcus Einfeld, made headlines for saying 'mature' complainants of sexual harassment who were sexually assaulted by their boss should not be awarded damages — he retracted after he was roundly ticked off by his female colleagues.

Over the last 20 years there has been a gradual increase in the compensatory damages that tribunals award, to around $450,000 in a case last year, and private compensation settlements in the several millions. But never have tribunals in the 'real' courts been directly challenged to take seriously their potential to punish an employer who, if the facts are found against them, has failed to find out what is really happening in the workplace below.

Last year I got a call from a senior HR woman in a firm who had clear and unambiguous evidence that the CEO of the local section of the large multinational she worked for was a physical bully, asking me (off the record) what to do about it. You can imagine my advice. But as she pointed out, there would be repercussions for her with the Board, as the bearer of bad tidings.

It's true. She could well have found herself marginalised for raising the issue. The victims of this man's bullying were equally frightened to raise it. What she did, I do not know, but that she acted and feared as she did is solid evidence that even HR functionaries (meant to support staff and conduct standards) are suborned, consciously or not, into protecting the 'ear' of those in authority.

Fraser-Kirk has argued, in the media, that she has acted to protect any woman in her position in the future, by making it screamingly obvious: first, that you can't lightly promise to prevent staff from being discriminated against, harassed, bullied or victimised; and second, that there are huge consequences if the ultimate authority, the Board, does not have positive reason to believe that its own rules and the laws of the land are being complied with.

This means that they need to have actual knowledge of any potential or even anticipated complaints about breaches of work and safety and discrimination issues, and what happens to them.

This is not the norm. Boards and chairmen and corporate officers rely on those with administrative responsibilities to do the right thing. Yet the buck stops further up the chain of command.

You are supposed to know what's going on in your company.

The action taken is for breach of contract, and also — intriguingly — for breach of the Trade Practices Act obligation not to engage in misleading practices; in this case, by holding out that there are no problems, and also that there was no previous cause to intervene in the interests of the company. If this is substantiated, the 'soft' duty to avoid complaints will most certainly become a 'hard' responsibility to take effective preventive action without the need for any complaint at all.

The Victorian Equal Opportunity Act has been amended to impose such a positive duty on employers, effective from August 2011. 

As to the damages award: who knows what Australian judges will do? The complainant has unwisely, in my view, announced that she would donate the damages awards to an appropriate charity. The point is not what a complainant would do with the award, but whether a court would teach the defendants and their insurers a very important private lesson, and all employers a public one, by awarding a substantial, and painful, award against a company of such repute.

David Jones says it is still interested in settlement. She doesn't want to settle, mate. She wants to make a point. Start talking about that, and we've got a real leap forward in governance coming.

Moira RaynerMoira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.

Topic tags: Moira Rayner, David Jones, equal opportunity, sexual harassment, $37 million, $37, 000, 000



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Existing comments

Onya Moira. Your words "She doesn't want to settle mate. She wants to make a point" earn my nomination for Catchphrase of the Year.

Anna Summerfield | 06 August 2010  

I disagree with Ms Rayner that Ms Fraser-Kirk shouldn't have declared early that she plans to give any damages received to charity. If she hadn't, the media would have portrayed her as a greedy b*tch, as they are inclined to do when women claim sexual harassment in the workplace. I hope she wins big. And I hope large and small companies pay attention. Sexual harassment in the workplace is so insidious, so poorly reported. I have the humblest respect for Ms Fraser-Kirk. Our workplaces need a new hero!

Sarah Forbes | 06 August 2010  

In my opinion the lawyers acting for the female complainant are guilty of professional misconduct. $37 million is no where near what our laws would or should allow. Bringing an action for such an amount is ridiculous. How does this complaint compare to a person who is injured and is then without the ability to speak and without the use of arms, legs and brain!!...and such a person might get $10million, maybe a little more. There needs to be a proper sense of balance. This is the worst kind of cheap publicity.

Rob Colquhoun | 06 August 2010  

I hope this article is sent to the 'Board'. Who did he think he was and who did the Board think he was? Go Girls!

Heather Marshall | 06 August 2010  

Brilliant Moira. And many thanks for your insights born out of wide experience in the field.

Father John Fleming | 06 August 2010  

Well spoken, Moira - it's about time! As a person who suffered bullying in two large Catholic-based organizations with wonderful policies about bullying and harassment, I know something has to change. The existence of the policies make no difference when the bully exists at a high management level, or has friends at that level. I think, though, that Ms Fraser-Kirk was right in this case to offer any damages to charity. It's made an enormous difference to people who would otherwise dismiss her as a gold digger. They've had to ask what this is really about!

Joan Seymour Albion, Vic. | 06 August 2010  

This is all very interesting but leaves me with one unanswered question. Is Australia becoming a more litigious society because England certainly has.

John Wren | 06 August 2010  

It seems that the message is clear. If you are a CEO, you can do whatever you want. If for some reason you have to leave, you will receive a few million dollars from the Board. I am sure shareholders are happy to have their money spent this way.

Beat Odermatt | 07 August 2010  

As someone experiencing bullying in the form of a supposed performance review, I can understand the thinking behind this lawsuit, 'making a point' and wanting powerful people to be accountable for their actions. More often than not, we are told 'nothing you can do, mate' or 'walk away, it's not worth fighting about' which is how and why bullies in leadership positions continue to get away with it.

The "leader" I am dealing with, 'talks the talk', calls herself a Christian, etc. Her behaviour - not just to me - but to two other staff is anything but . . . how do I deal with that. Very tempted to do a 'Fraser-Kirk'!

'Purple Minerva' | 08 August 2010  

The amount is over the top. If negligence on the part of DJ's had killed her entire family, the young woman would not have been awarded so much. However, the point being made is a valid one. Laws against harassment and discrimination are far too often dependent on our good will to be administered properly, like the hotel which provides a "Diaabled Accesss" toilet but uses it to store its cleaning materials. Stories of HR advice to young women abound: " I can follow this up for you, but you'll do in your job if I do." Good on Kirsty. The more power to her elbow.

Dianne Mullin | 08 August 2010  

Supporting Kristy 100% and I am hearing a lot of support for her through my work at The Feminist Bookshop. Women I speak to there understand the need to make a point and get a strong and lasting message through that sexual harassment is not OK. How many years have women been saying NO and trying to be assertive. Some people only understand when it costs them big money.

gabrielle hewison | 09 August 2010  

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