Equal Time Autumn 2011 Page 13 of 13

Equal Time Autumn 2011 page 13 of 13

Equal Time

Newsletter of the Anti-Discrimination Board of NSW

Number 81 Autumn 2011

Contents

Complaining to the Board 2

Sexual Harassment Costs and consequences 3

Introducing the Board of the ADB 6

Community Outreach 9

ADB Seminars 2011 11

ADB Posters 12

The Anti-Discrimination Board of NSW 13

From the President

Complaining to the Board

The ADB can now accept complaints sent by email

The Anti-Discrimination Board can now accept complaints sent by email. Previously the Anti-Discrimination Act 1977 stipulated that complaints had to either be mailed, faxed or delivered in person.

In December 2010 the Anti-Discrimination Act regulations were amended to allow complaints to be sent by email. An email address has been set up for complainants to send in their complaint (). Once received email complaints are processed in the same manner as complaints received by mail, fax or hand delivery (see flow chart).

The new procedures are welcome as they make it easier for people to make a complaint. If you, or clients you are advising, wish to send a complaint by email you should ensure that they include a contact telephone number and a postal address in their email. This makes it easier for the Board to contact them and to send notifications regarding the complaint.

The Board is currently developing an online form which clients will be able to fill-in, save to their computer, print as well as sending to the Board via email. Use of this form will ensure that people with complaints provide all the necessary information to ensure their complaint is dealt with efficiently and as quickly as possible.

For more information on the Board’s complaints procedures go to the complaints section on the ADB website: (http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_complaint)

Stepan Kerkyasharian AO

Sexual HarassmentCosts and consequences

The David Jones Case – A summary of issues for employers

This case was settled so we have no final reported decision, but it raises some important issues for the prevention and resolution of sexual harassment cases.

Ms Kirsty Fraser-Kirk, a publicity coordinator, complained that Mr Mark McInnes, CEO of David Jones, had sexually harassed her. When the matter was not resolved internally, she took action in the Federal Court under the federal Sex Discrimination Act, breach of contract and negligence laws and both state and federal trade practices legislation. She claimed $37,000,000 in damages.

Liability – Individual, vicarious and accessory

Ms Fraser-Kirk claimed that Mr McInnes was individually liable for the harm his sexual harassment caused her. As CEO, he could not argue that he was unaware of company policy.

She also claimed that David Jones was vicariously liable for damages. Employers are liable for the actions of employees unless they can demonstrate that they took all reasonable steps to prevent it. DJ’s stated that, after Ms Fraser- Kirk’s complaints, it had investigated its policies and procedures relating to sexual harassment and found that they were basically good. Ms Fraser-Kirk argued, however, that David Jones had not taken all reasonable steps because it did not act in accordance with it’s own code of conduct, policies and procedures. She had approached the company’s human resources department but no action was taken in relation to her complaints.

She also claimed that senior management knew about Mr McInnes’s behaviour towards women and, even after she had raised concerns, had deliberately placed her in harm’s way. (As an aside, it is unlawful under the NSW Anti-Discrimination Act to ‘cause, instruct, induce, aid or permit’ another person to do something that is unlawful under the Act. This is known as aiding or abetting or liability as an accessory.)

She was required to attend a number of functions at which he had made sexual comments, touched her inappropriately, and asked her to go with him to Bondi, with the implication that it was to have sex. She claimed senior managers witnessed this behaviour. He later sent text messages asking for sex.

Afterwards, he emailed an apology and admitted ‘conduct unbecoming a CEO’ then denied her claims. A number of emails from him aimed at persuading her to drop her complaints were tendered in court.

Policies – misleading and deceptive conduct

Ms Kirsty-Fraser claimed that DJs had breached this Act by making ‘misleading or deceptive’ representations about its workplace culture and employment conditions to her during her job interview. This claim raised the possibility that statements of policy that do not reflect the reality of the work environment could form the basis of a deceptive or misleading conduct claim under Trade Practices laws.

Proof

The CEO maintained that most of the claims were untrue and an abuse of process. In defence documents lodged with the Court, Ms Fraser-Kirk was accused of making comments of a sexual nature to Mr McInnes. He claimed that he had attempted to kiss her in response to these comments. He denied making unwelcome sexual advances, saying that he had only ever asked her out for a drink or given her the same ‘good-bye hug’ that he gave other women.

Had the case came to court, Ms Fraser-Kirk would have had to satisfy the court, on the balance of probabilities, that her version of events was accurate.

Punitive damages

Much of the $37,000,000 was for ‘punitive’ damages. Such damages are not to compensate a victim for actual harm done, but are awarded when the perpetrator’s behaviour is so culpable that a further amount of money should be paid by way of ‘punishment’. Punitive (sometimes called aggravated or exemplary) damages are rare but have previously been awarded in discrimination cases.

Ms Fraser-Kirk stated that the amount was based on 5% of Mr McInnes’s salary and 5% of DJ’s profits during the time he worked for them.

Ms Fraser- Kirk claimed that her action was not just for herself but for other women working at DJs and she stated that if punitive damages were awarded, she would give the money to charity. Ultimately the case was settled for about $850,000, which was compensation for the harm she had suffered personally. Hence the money was not given to charity as she had originally indicated that it would be.

Witnesses

Ms Fraser-Kirk’s statement of claim alleged that a number of other DJ’s employees and two employees of Black and Decker, had come forward alleging that they had also been harassed by Mr McInnes or by another DJ’s manager and would be witnesses in the case. She did not name the witnesses, however, and it was not clear that all of them had agreed to be witnesses in an open court. Her lawyers had tried unsuccessfully to persuade the court that these witnesses should not be named, except to the lawyers for DJ’s and Mr McInnes. The judge decided that the public interest in open justice overrode the possibility that they might be harassed. These witnesses were not publicly named, however, since the case was settled, their claims have not been tested in court.

Damage to the employer

The case demonstrates the cost to an employer of failing to prevent or deal effectively with sexual harassment and other forms of discrimination, harassment or bullying.

The company received widespread adverse publicity over several months. Loss of reputation can have catastrophic effects on business, productivity, turnover and recruitment.

The company also incurred enormous costs in time spent by managers and staff, fallout among employees, further victims coming forward with their own complaints, legal fees and, ultimately, the payout to Ms Fraser-Kirk.

It was alleged at one hearing that three other employees of David-Jones had lodged sexual harassment claims but not against the CEO. If proved, these claims will further damage DJ’s because they will add to the perception that DJs has a culture which condones sexual harassment.

Personal harm

Ms Fraser-Kirk states that her intention in making such a large claim was to draw attention to the fact that David Jones has allowed sexual harassment by its senior managers to continue unchecked. She claimed that she was acting on behalf of other female victims and not purely in her own interests. She feels that the action has achieved these aims.

While not everyone supported Ms Fraser-Kirk, the case has certainly raised awareness of sexual harassment within David Jones and the community.

Meanwhile, Ms Fraser-Kirk has developed a psychological illness as a result of the pressure placed upon her (which included numerous court appearances regarding various issues, intense and not always flattering media coverage, pressure from Mr McInnes, claims regarding her own behaviour and surveillance by a private investigator) after she commenced her action.

The case must also raise questions about her future career prospects.

The settlement

Ms Fraser-Kirk accepted a settlement of $850,000 made up of a contribution from both the company and the CEO. No other details of the settlement are available.

Introducing the Board of the ADB

Members of the statutory Anti-Discrimination Board play an important role in the implementation of anti-discrimination law in NSW, providing guidance in pursuing the Board’s statutory charter and promoting the objectives of the Anti-Discrimination Act.

There are four Board members plus the President, Stepan Kerkyasharian, as chair. In previous issues of Equal Time we introduced Board members Peter Wertheim, Christine Regan and Sigrid Patterson. In this issue we profile Michael Christodoulou.

Michael Christodoulou

For Anti-Discrimination Board member Michael Christoudoulou, education is the key to redressing disadvantage and inequality.

Michael experienced this at first hand growing up in a poor family in Cyprus. His father was a truck driver who died in an accident when he was only seven months old, and his mother found herself having to support the family.

‘It took me a long time to come to terms with my father’s death, and it had a huge impact on my life,’ he said. ‘When ever anything went wrong I felt it was because I didn’t have a father.’

‘But although I was deprived materially, I wasn’t deprived of love. My mother was one of the fairest people I ever met in my life, and I had a strong ethical upbringing. We were brought up to abide by the law - it was important not to hurt anybody and to mind our own business.’

Michael was lucky enough to have the opportunity to attend high school on a scholarship, with support from his primary school headmaster and the local priest. When he was 15 and still at school, his family moved to- Australia where he began in Year 10 at Dulwich Hill High School.

‘My father had been planning to migrate to Australia before he died,’ he said. ‘After his death, my mother was suddenly forced to provide for five children between seven months and ten years of age. So we were very poor, and we wanted a better life. Two of my brothers had come here in 1969, and being united was also very important to my mother, so that was enough motivation for her to migrate with the remaining children.’

‘Everyone had a trade except me, and there was a discussion about what to do with me, and my eldest brother said he would support me to continue at school. I then went on to study to be a chiropractor at university. So that is what Australia has given me, the opportunity to have an education.’

Michael says his mother was very happy that the family was together in Australia. ‘For the first time she could go to the shops and buy what she wanted,’ he said. ‘She fulfilled her dream to provide for all of us. She loved those stores selling kitchen implements, and I still love them myself!’

Since his early days in Australia Michael has been very active in the community. ‘Social justice comes very naturally to me,’ he said. ‘I felt compassion and understanding for those in need, and wanted to participate in providing services for them.’

He was a Board member of the May Murray Neighbourhood Centre in Marrickville for 16 years, and has been the Coordinator of the United Nations Human Rights Day Committee since 1995.

He is also a member of the Marrickville Council Sister Cities Committee, President of the Cyprus Community of NSW, Director of the Stanmore Hawks Soccer Club, Chairperson of the Cyprus Community Home for the Aged, Chairperson of the Liverpool-Macarthur and Illawarra Regional Advisory Councils, President of the Justice for Cyprus Coordinating Committee, and President of the Federation of Cyprus Communities and Organisations of Australia and New Zealand.

‘I am also a big supporter of volunteering, and I promote it all the time,’ he said. ‘There are many organisations that only exist because of volunteers. For example with the Cyprus Club, we have plans to expand our services for the elderly, women and young people, but we can only do it with volunteer labour.’

In 1995 Michael became a Commissioner of the Community Relations Commission for a Multicultural NSW (CRC). ‘I am a firm believer in multiculturalism, and people’s rights to freedom to practice their own religion and culture,’ he said. He has represented the Commission in a number of other areas including the Medical Board of NSW and the NSW Community Languages Board.

‘In a way the CRC is the story of my life,’ he said. The influx of migrants, what happens to them, how do they evolve, do they integrate, do they keep their religion, language and culture, how can they better themselves, how do they become good Australians? I went through that experience and I understand it – it comes back to human rights, equality and discrimination.’