Sometimes 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