Have The Floodgates Opened For Sexual Harassment Claims?
It was difficult to miss the publicity surrounding Kristy Fraser-Kirks sexual harassment law suit against David Jones, former CEO, Mark McInnes, and nine directors. She walked away with a cool $850,000.
So what effect will this case have on future claims of this nature?
Workplace sexual harassment refers to unwelcome sexual attention that makes the victim feel uncomfortable or intimidated, such as touching and familiarity, suggestive comments and jokes, or invasive personal questions. Its illegal under the Sex Discrimination Act of 1984.
Victims of sexual harassment have a few avenues for recourse. They can complain to Fair Work Australia, which is free. The employer may be fined or ordered to amend procedures, but the victim wont be financially compensated.
They can lodge a complaint with the Human Rights and Equal Opportunity Commission (HREOC), also free. HREOC may invite both parties to participate in Conciliation, an informal discussion between the complainant and the employer to try to resolve the issue. A Conciliator from the Commission facilitates the discussion, and may make a final decision if the parties cannot agree. Complaints can be terminated if there is too little evidence.
While HREOC can award financial compensation, it is often only for economic loss, such as for legal fees incurred, or lost wages as a result of the complainant resigning because of the harassment.
Finally, they can take the matter to the Federal Court. In reality, most workplace lawyers would be unlikely to advise their clients to do this unless there had been catastrophic psychological injury. Being successful in Court requires strong evidence, often difficult to acquire in sexual harassment cases. And losing means hefty legal costs.
Fraser-Kirk took all of these actions. She initially sought punitive damages in Court to the amount of 37 million dollars, a seemingly impossible feat, given the nature of her complaints.
In the end, she achieved $850,000 via an HREOC closed Conciliation, an amount far greater than what would usually be awarded in a sexual harassment case. The public will never know what was said. As far as we can gauge from media reports, there was little evidence to prove her claims.
According to Kym Luke, employment law specialist at Stacks Law Firm, Ballina, I imagine there are many people confused by this outcome, including members of our profession. It would appear to be a test case, perhaps aimed at putting the spotlight on workplace sexual harassment, with no expectation of actually achieving the amount claimed.
Clearly, a company of David Jones repute would want this negative publicity to go away, preferably out of Court.
This case may prompt employers to take a closer look at sexual harassment within their organisation; a good outcome. But clients expecting to achieve a similar result may be disappointed.