A lesson for the employer
December 7, 2010
The David Jones Case
Sexual harassment was yet again pushed into the public eye after David Jones and its former Chief Executive Officer, Mr Mark McInnes faced one of the biggest sexual harassment claims in Australian history. In this case, David Jones became the centre of a very public debate that could have possibly been avoided, if the original complaint was handled in a prompt and timely manner. The case has highlighted the importance for employers and their employees to be aware of their obligations and responsibilities under company harassment policies.In August 2010, Ms Kirsty Fraser-Kirk launched a $37 million damages claim in the Federal Court against her employer, David Jones and Mr McInnes. The complaint alleged unlawful sexual harassment and sex-based discrimination under the Sex Discrimination Act 1984 (Cth). The allegations outlined on the Statement of Claim filed with the Federal Court, stated that Mr McInnes had made a number of unwelcome comments of a sexual nature and sexual advances towards Ms Fraser-Kirk at a Company function in May and further comments and advances following the event. When the complaint was raised with management, Ms Fraser-Kirk alleged she was told if the conduct occurred again, she just needed to tell him no and he would back off.
The claim settled for $850,000 at the conciliation stage in the Australian Human Rights Commission in October.
It is essential for employers to be proactive and take steps to eliminate the risks of sexual harassment and other forms of harassment in the workplace. Under both Federal and State law, a sexual harassment claim will be successful where the complainant can demonstrate that another employee has engaged in unwelcome conduct of a sexual nature which has occurred in circumstances that a reasonable person would have anticipated that the person harassed, would be offended, humiliated or intimidated.
The risk for employers faced with a complaint of sexual harassment is being found to be vicariously liable for the conduct of their employee if that conduct has occurred in connection with the employment of the employee. A defence to being held vicariously liable for an employee's actions can be established if an employer can show that they have taken all reasonable steps to prevent the employee from engaging in sexual harassment.
So what are the reasonable steps that you can take? First and foremost, it is imperative to have clearly defined and robust policies that explain what constitutes appropriate and inappropriate behaviour in the workplace. Complaint handling mechanisms must also be included and should be clearly detailed and articulated to all employees and management. It is also important for employers to consider whether the contact officer is a suitable person for all of its employees. It may be that there needs to be a number of nominated contact officers across the organisation which includes both genders in differing managerial positions. This will ensure that all staff have the option of talking to someone who they feel comfortable with. It is all very well for an employer to argue they have policies and procedures in place, but you also need to ensure your employees are aware, trained and have access at all times to the policies and procedures. Effective training with all new employees during the induction processes and retraining of all existing staff and management is essential.
Finally, all complaints should be taken seriously, confidentially and dealt with in a timely manner. This was the major downfall for David Jones where their reaction to the allegations made by Ms Fraser-Kirk when she raised the complaint of unwelcome sexual conduct was dismissive. The complaint should have been made a priority and appropriate disciplinary action taken.
In light of the David Jones Case, we recommend employers revisit their current policies and procedures and take the initiative to ensure refresher training for all employees and management. Policies should also consider new forms of communication on social media sites which could serve as a new means for inappropriate behaviour. Communication on such sites that occurs outside of working hours does not necessarily mean that harassment would not be considered to have taken place in employment.
For more information contact Rebecca Weatherall, Consultant.
