Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Sexual Harassment and/or Sex Discrimination Complaints in the Workplace in Australia

Employers should recognise that the areas of risk when dealing with a sexual harassment and/or sex discrimination claim are expanding.  The way in which sexual harassment and sex discrimination complaints are being brought and litigated is increasingly becoming more sophisticated and complex.  This includes bringing claims that rely not only on the anti-discrimination legal framework, but also obligations under contract, tort and trade practices and the adverse action provisions under federal workplace relation laws.

Sexual Harassment Sex Discrimination

Sexual Harassment and/or Sex Discrimination Complaints in the Workplace in Australia

Until recently, damages payouts for cases of sexual harassment and/or sex discrimination in Australia did not generally compare to the US, being by and large modest amounts.  However, the sexual harassment claim brought by Kristy Fraser-Kirk against David Jones and its CEO, Mark McInnes, gave Australian employers some concern.

At the time, Ms. Fraser-Kirk was claiming, amongst other things, approximately $37 million in punitive damages, based upon 5% of David Jones’ profit earned from 2003 to 2010, being the time Mr. McInnes was the CEO, together with 5 % of Mr. McInnes’ remuneration and benefits earned over the same period.

The matter never proceeded to trial, and reportedly settled out of court for $850,000.

While significantly less than the initial multi-million dollar claim, it was still a significant amount given the trend in damages in Australia for sexual harassment claims.

In Federal Discrimination Law, which is a publication of the Australian Human Rights Commission (2011), it was reported that damages awarded by the Federal Magistrates Court and Federal Court in sexual harassment cases pursuant to the Sex Discrimination Act 1984 (Cth), ranged from $1,000 up to $392,422, with matters at the upper end being reserved for the more serious cases.

However, it is worth noting that claims like the one brought against David Jones and its former CEO, were not initiated using the traditional path of first making an anti-discrimination complaint under the Sex Discrimination Act with the Commission.  Rather, in conjunction with a complaint lodged with the Human Rights Commission, Ms. Fraser-Kirk’s lawyers filed directly in the Federal Court alleging, amongst other things, breach of contract, tortious duties and trade practices legislation.  The effect was to “fast track” the claim process by circumventing the Commission’s conciliatory function.

While the David Jones case was not ultimately tested in court, Australia may see matters similarly brought forward in the future.

Brooke Pendlebury
Monday, August 27, 2012
Harassment at Work, News, Workplace Investigations