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Kristy taught us something, we’re just not sure what yet

Jane Lee

by Jane Lee

20 Oct 05:35am

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Filed under: Courts, David Jones, Kirsty Fraser Kirk, Mark Mcinnes, Sexual Harassment

50 comments

Room 22B of the Federal Court of NSW grew pretty crowded as Kristy Fraser-Kirk’s $37 million sexual harassment lawsuit against David Jones, its directors and ex-CEO Mark McInnes came to a head. 

Here's looking at you kid. Source: Daily Telegraph

But if you went to the public gallery expecting to see any of the high-profile players you’d be sorely disappointed.

While the case itself had enough salacious and emotive elements to see it dramatically splashed across print, TV and online as a top-rating story, the scene in court was one carefully cloaked in the cool, passive-aggressive language of the legal profession. 

Ms Fraser-Kirk may have been the face of the drama on all the news bulletins, but in the room it was her lawyer, Rachel Francois, who offered one of the few unscripted outbursts in lieu of her absent client.

“You would know if you had bothered to read the evidence,” she snapped at an equally frustrated Kate Eastman for David Jones as they battled their heavy caseloads, objections and last-minute amendments.

Competing media hacks deciphered the jargon and kept track of details like which witnesses were anonymous and which were not at any given moment.

We watched as Ms Francois flicked through two thick volumes of press coverage to argue this had led to her client suffering psychiatric harm - referred to in evidence as an “adjustment disorder”.

As one who had been reporting on the case this was awkward. It was even more unnerving when Justice Geoffrey Flick dismissed this with words to the effect of: “It’s pretty obvious why this is all over the papers. What’s your point?”

But as far as the law is concerned that’s all over now.

The case that gripped the nation very much in public was settled last Sunday in the private world where the terms of settlement “will not be disclosed”.

But while it may be tempting to do so, debating what went on behind closed doors is a futile task because it is fraught with heated emotions and based on an incomplete story. 

We are now left with precisely those media reports and our impressions – rightly or wrongly - of them, as there is only so much that can or should be gained from the carefully crafted post-settlement statements that have appeared in recent days.

There will still be those out there who will be quick to judge – and without some final determination neither party seems to have emerged well.

When you saw photos of Ms Fraser-Kirk on holiday in New York after fleeing the country for fear of press intrusion, did you ponder the credibility of her claims as you blamed the media for taking the pictures from Facebook in the first place?

And when you read Mr McInnes’ text messages to Ms Fraser-Kirk begging her for compassion and admitting wrongdoing, did you decide his guilt and blame the media for choosing to reveal these deeply personal sentiments, even though they were made public in court documents?

For every internet poll that says 90 per cent of people think the case will inspire women to report sexual harassment, there are also experts only too willing to vouch the opposite. 

If the case had run its course there would have been a determination on the facts.

Without this, perhaps the fairest thing we can do is to treat this case with the same respect a court of law would have done – and give our heated emotions a rest.

After all, despite the alleged courtroom theatre these are serious issues.

Will a woman be viewed differently in the workplace now? For better? For worse? Will a CEO think more carefully if faced with the prospect of committing one of those “serious errors of judgment”?

Will any of you (men and women) be more inclined now to report it if you ever feel you have been sexually harassed by someone in a position of power? Will any of you be more inclined to take such a report at face value?

Whatever you think of Ms Fraser-Kirk, Mr McInnes or David Jones hopefully we are all more aware of these issues in our own lives and will treat them with the seriousness they deserve.

Most commented

50 comments

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    • playing a sad song says:

      04:48am | 20/10/10

      I have experienced harassment twice, but have only reported it once.

      In hindsight, my former employer would have preferred I’d reported the first instance. By the time I was fired without warning at my workplace, my former manager had tried to set me up, without my knowledge, in a threesome with two underage boys, had paid me less than said teenage male staff (despite me being older, more experienced and therefore entitled to a higher wage), and continually leering over me to make comments about my appearance. When I spoke to someone at the head store, I found out that this guy had also not paid a single employee superannuation and was responsible for about six other women being fired in the past three months for similar reasons. That workplace closed down a month later, and I sincerely hope that those boys thought to make a complaint about the harassment they experienced. It’s the same sort of cretins who harass women who will find it funny to harass men and boys as well. It all comes from the same place.

      In this latest instance, the harassment was far more subtle. It was a group of them and they were always very careful to dance close to the line: never anything obvious, and things they could try to brush off as coincidence or innocuousness. I reported it quick-smart when I realised that I was afraid to walk around certain sections of this workplace and the person I reported it to was extremely happy to put a stop to it, and there have been no problems since.

      I work hard and treat people right as an employee. I am entitled to go to work without feeling uncomfortable, to earn a good salary, to have a good working relationship with my superiors. I reward good management with my own loyalty and hard work and I am more inclined to do so if I know that they also have my best interests at heart. It’s really no more complex than that.

      If Mark McInnes didn’t want to be sued he shouldn’t have been inappropriate. He was just asking for it, with that kind of conduct. And frankly, I think the amount he had to pay out was a tax for him being stupid, and given that I am frequently delighted when stupid people are parted with their money because of said stupidity, I cannot complain about it.

      Reply

    • Front Row says:

      07:20pm | 20/10/10

      The moment this was driven into the media, she lost all credibility.  She’s either incredibly stupid or terribly advised.
      Kirsty’s thing has set the cause of people who are sexually assaulted at work back at least 40 years.
      Next time someone who works at a local chicken shop for ten bucks an hour gets touched up by some creep who employs them, well, it just got a lot harder for them to do anything - all because of this PR idiocy.
      I hope everyone’s happy.

    • Eric says:

      05:08am | 20/10/10

      If anything, this case has shown that “sexual harassment” is treated way too seriously already.

      Some trivial incidents that could have been settled internally were blown up into a huge public row that destroyed two careers and damaged a large company. All over claims of a bit of inappropriate banter.

      This whole spurious area of the law, drummed up by feminists as a way to give women power over men in the workplace, needs to be reformed.

      Reply

    • acotrel says:

      07:24am | 20/10/10

      ‘This whole spurious area of the law, drummed up by feminists as a way to give women power over men in the workplace, needs to be reformed.’

      Yes, the law should be changed to require all middle managers to have Certificate 4 in Management Theory and Practice!  A lot of them are absolute disgraces!

    • Pete says:

      07:25am | 20/10/10

      stupid comment Eric…once again you’ve proved the point that some people still live a few decades back than the rest of the population

    • Jane says:

      10:36am | 20/10/10

      Probably important to note that Kristy Fraser-Kirk’s case against David Jones was based on the argument that it did not keep its promise to improve its systems so that this (and other alleged claims) COULD be handled internally. 

      Regardless of whether or not that’s true, laws exist to protect both men and women from “an unwelcome sexual advance, or an unwelcome request for sexual favours”, not ‘inappropriate banter’.

      What reforms would you suggest, Eric? Or are you saying you think all sexual harassment laws should be scrapped?

    • Eric says:

      03:43pm | 20/10/10

      Jane, I would suggest first of all a cap on payouts. It’s ridiculous that someone can sue for millions just for getting their feelings hurt, when people who lose life and limb at work get far less.

      Tightening the definition of harassment and making it less subjective would also help.

      Currently, with hundreds of thousands of dollars at stake, or even millions,  there is too much incentive for frivolous claims.

    • acotrel says:

      07:15am | 20/10/10

      Kristy, I’m behind you 100 per cent!

      Reply

    • Zeta says:

      09:17am | 20/10/10

      That’s what Mark McInnes said.

    • Adam Diver says:

      08:03am | 20/10/10

      Justice Geoffrey Flick dismissed this with words to the effect of: “It’s pretty obvious why this is all over the papers. What’s your point?”

      Did I just see common sense in a court room? There may still be hope for our justice system.

      Reply

    • Duff says:

      09:51am | 20/10/10

      Adam, you’d be surprised to learn that most Judges are extremely intelligent individuals who regularly apply sound common sense most of the time.  This case was settled out of court for an amount ($850k) which was far, far below the original claim of $37m.  My feeling is that the judge was not going to be a push-over on this case and that both sides knew the substance of the allegations was, overall, pretty light stuff. 

    • Markus says:

      11:48am | 20/10/10

      My thoughts exactly Duff.
      That the settlement was accepted so readily suggests that the prosecution had very little in the way of substance to back up the media circus that has been going on surrounding the case.

      Which is why I think this has done more harm than good for harrassment cases in this country.  The fear would now be that lodging a harrassment claim will immediately been seen as a grab for cash.

    • KH says:

      12:25pm | 20/10/10

      Interesting, Duff.  It occurred to me that she asked for a way over the top amount to end up with an amount that most people would never get.  $850K is a lot of money - I have never heard of a case like this getting that sort of cash.  If she had asked for $100,000 and got it, the outcome is obviously not as good, cash wise, but her own repuation would still have been trashed.  She will find it hard to get another job.  The victim in these cases is usually the one who ends up being viewed with suspicion and losing the most, and thanks to the publicity, everyone knows who she is.  No doubt Mr McInnes will end up with some high flying job somewhere, as the sympathy definitely seems to be on his side.

    • Andy D says:

      08:19am | 20/10/10

      Why does “justice” increasingly involve one party giving money to another party?

      Reply

    • iansand says:

      10:43am | 20/10/10

      Cash is the currency of compensation.  Courts are not the places for arguments about principle.

      When clients told me they were fighting a case as a matter of principle part of my spiel for discouraging them was “You are about to discover what you principles are worth”.  A request for a few grand up front used to concentrate their minds as well.

    • Tim says:

      08:24am | 20/10/10

      This case was ridiculous from the outset:
      From the stupid amount of money claimed, to the apparent psychiatric harm to Fraser-Kirk caused by the media circus of her own making, the whole thing was a joke.
      McInnes’s conduct was at the low end of the scale of innapropriate behaviour and he was duly sacked. What more could a complainant ask for? 
      The results of this case will make it harder for women who have real problems and make men far more suspicious and careful around their female employees.

      Reply

    • Duff says:

      09:52am | 20/10/10

      Agree 100%.  This case will ultimately be a negative for workplace relations in Australia.

    • Blackadder says:

      04:45pm | 20/10/10

      Agree. The silly amount claimed made her out to be an obsessive gold-digger, flirting her way to the top. She lost all respect from the outset, and the real issue was buried beneath the circus that resulted.

      I feel she’s done more harm than good, as people will be more cautious employing women into more senior positions for fear of them making a play for headlines like this, to advance their own position.

      Hope she enjoys her $850k. No-one in their right mind would employ her now after this.

    • Tim says:

      08:25am | 20/10/10

      Oh,
      and who didn’t know the whole “donation to charity” thing was Never going to happen?

      Reply

    • Claire says:

      03:19pm | 20/10/10

      She said that she would donate any punitive damages she got to charity. She didn’t receive any punitive damages in her settlment.

    • MH says:

      03:39pm | 20/10/10

      That is a rather convenient distinction Claire.  The pledge to donate punitive damages to charity was intended to garner public support and diffuse assertions that she was just in it for the money.  It was all part of the strategic game and made knowing full well that the prospect of ever receiving punitive damages was basically zero from the start.  In the end she took a negotiated settlement and opted to keep all of it herself.  She’s perfectly entitled to do that but let’s not try to justify the morality or otherwise on a technical characterisation.

    • Tim says:

      03:40pm | 20/10/10

      That’s sort of the point Claire.
      This case was always going to be settled out of court, so punitive damages bit was a moot point.
      The “Donation to Charity” bit was just another part of the publicity war that Fraser-Kirk and her team were waging at the time.
      It made her look good at the time but there was never any chance that any charity was going to see a cent.

    • Claire says:

      01:33pm | 21/10/10

      I’m not justifying it guys, simply pointing out the facts. I wish the whole settlement, punitive or otherwise, had gone to charity.

    • Charles Kelly says:

      08:42pm | 21/10/10

      I can’t believe some people are so gullible, they actually buy into the whole “punitive damages” excuse! It was simply a convenient escape clause, designed to disguise the fact that this greedy unscrupulous gold-digger was always just in it for the money.

    • blah says:

      08:31am | 20/10/10

      I learnt if I ever need to make a claim against someone, it is best to do it in the media rather than through the courts. You get more money.

      Reply

    • Anjuli says:

      10:37am | 20/10/10

      I wonder she would have done if it was an ordinary working bloke , I have been harassed before once by a JP another by a Free Mason at one of their night outs which my husband and I attended .I dealt with it by a good slap across the face end of story,good luck to her getting another job after this.

      Reply

    • NEFFA says:

      11:37am | 20/10/10

      A slap across the face is assult and she would have rightfully been sacked. whatever the provacation.
      She did the right thing, complained to HR and no action was taken by DJ’s. that is why it ended in court.

    • Markus says:

      01:25pm | 20/10/10

      NEFFA, if i remember correctly he was sacked within 5 weeks of her initial complaint being lodged.
      That seems like fairly swift and definite action to me.
      Her future employability was also not in question in any way until she decided to go to the media with it.

    • NEFFA says:

      04:19pm | 20/10/10

      MARKUS,  you mis-understood me.  Anjuli was suggesting if a man sexually harrasses you, slap them across the face.
      i replied that if you slap a co-worker across the face that is assault and you will be immediately sacked.

    • Dave G says:

      06:32pm | 20/10/10

      brilliant post.

      The world isnt for the weak. Have some strength and kick off people hassling you.

      This case takes away focus from people truly sexually harassed in the workplace

    • L says:

      06:52pm | 20/10/10

      NEFFA is a good illustration of the problem.  Everything has to be cast in legal terms, everything has to be blown out of proportion.  We’d all be happier if there was less HR, less procedures and policies and compliance and sensitivity training, less box-ticking exercises generally would be nice.
      We’d all be much better off if women were happy to slap a guy across the face as a way to deal with low-level stuff like this.  No ‘sexual harrassment’, no ‘assault’, no problems.  Otherwise she could have got her boyfriend to thump him after work.
      Dealing with things in an attention-seeking legal fashion just made her look like an opportunistic gold-digging pain in the neck.
      Which is probably quite fair, since she seems to be an attention-seeking legal fashion just made her look like an opportunistic gold-digging pain in the neck.

    • BK says:

      11:22am | 20/10/10

      And we still don’t know what happened. The media has been too busy editorialising to give us anywhere near enough details about the allegations.

      Reply

    • stephen says:

      12:50pm | 20/10/10

      If yer lose yer leg at the workplace, yer get 310 grand.
      If yer lose 2 legs at the workplace, yer get 620 grand.
      if yer lose,as well, an arm at the workplace yer get 730 grand.
      If yer lose 2 arms, 2 legs, a nose, yer tongue and anything else forward of yer knees,(if yer had any), you’d be able to take this lady to coffee, and if yer lucky , to ask her out,(but only to the zoo.)

      PS   And if yer can’t see the hippos, get her ter lift you up.

      Reply

    • Andrew Credit says:

      03:27pm | 20/10/10

      She flirted with him, he made advances back and apologised for making them. She complained to HR. They did nothing. She got lawyers and sued him. The public and media made her out to be a victim. His company settled. She will never get a job again. He will work again in a high powered position…. Australia needs its head read. How stupid and PC this country has become.

      Reply

    • Mirror says:

      06:58pm | 20/10/10

      You don’t think she’s going to be a poster girl for the feminists?  Employment is guaranteed.

    • Kika says:

      03:57pm | 20/10/10

      No. I think this is a great case. Good on you Kristy. You did what a lot of women out there are probably too chicken to do. Seriously, it happens on a daily basis everywhere. It’s so common. I have been harassed by a person in a management position. Luckily enough it was done in front of others and a colleague stepped in to intervene. But how many women out there have been leered at, perved on and gawked at by men in the workplace? How many MEN out there have been inappropriately advanced upon? This isn’t Mad Men. It’s 2010. No wonder why women wear burqas.

      Reply

    • Eric says:

      06:29pm | 20/10/10

      Good plan! Let’s adopt the burkha as the workplace uniform for all women. It will solve so many problems.

    • Peter says:

      05:46am | 21/10/10

      No seriously, the burqa idea is not as silly as it sounds. The burqa is more than a bodily covering. The same as the Puritan dress with the giant cross of Christ in bygone ages. It means “I am not available” in clear unambiguous tones. What message does modern female dress give?

    • hmm says:

      08:52am | 21/10/10

      Kika just can’t get off the subject of burqas.  Western women are afforded the freedom to dress how they want as long as it’s considered appropriate attire for the workplace.  Kirsty was nothing but a gold digger from the outset.  I’d be happy to experience what she went through for a cool $500K net.

    • sick of liars says:

      06:02pm | 20/10/10

      But what happens if you are falsely accused of sexual harassment, and are fortunate enough to prove your innocence? The answer is, nothing. You go through hell to prove your innocence, and the liar gets away with it, even after all the facts prove that the accusation was bullshit. I firmly believe that if someone makes a false accusation, they should bear the full penalty that their intended victim would have gotten. It is extremely unfair that people can make false accusations, and get away without being punished.

      Reply

    • Charles Kelly says:

      09:59pm | 20/10/10

      SPOT ON!!!

      The REAL victims are the unjustly accused.

    • Peter says:

      05:40am | 21/10/10

      Totally agree. The same applies to complaints from students on teachers. At present anyone can instigate a formal investigation on anyone. If no case is found (never pronounced innocent!) there is no chance of compensation for the innocent victim after months/years of soul-destroying defence. The complainer always gets off scot free. False complainers must be subject to counter-suing to make the playing field level and deter malicious claims.

    • CK says:

      07:35pm | 20/10/10

      I am in my mid-40’s and not even particularly attractive in the looks department and I have been ‘harrassed’ by men and even one woman my whole working life, including recently an attempt at seduction by my then CEO (married of course).  Did I try to make money out of any of these things, or wreck lives or careers?  No, I simply told the ‘harrasser’ that their advances were unwelcome and not to do it again and we all moved on amicably.  The end.  I despise people like this young woman.

      Reply

    • Charles Kelly says:

      08:24am | 21/10/10

      Well said CK!

      It’s comforting to know that in our PC obsessed nanny state, there still exist people who are willing and able to take care of themselves.

    • Moet all round says:

      07:38pm | 20/10/10

      This was settled out of court so nothing was proved and the decision to make would be along the lines of how much does DJ’s pay to make this go away.  They got out of it quite cheap really when you consider the size and their earning capacity.  I have been through this as an employer and even if the person suing you is not telling the truth it costs a lot of money to prove you are right.

      Reply

    • Murray says:

      10:58pm | 20/10/10

      It’s 850,000 insults to all the women and men that really have been sexually harassed in the workplace.

      Reply

    • Ben says:

      04:47am | 21/10/10

      She taught us that if you want to make some easy money, just play the victim and sue a major company. It doesn’t matter if it’s true or not, the media will play it as a poor innocent victim of the “big bad company”.

      Reply

    • acotrel says:

      05:46am | 21/10/10

      The reaction to this case, on this forum, indicates a big amount of guilt amongst certain people?  I wonder how many of those expressing outrage at the $37M claim, are simply thinking ‘there but for the grace of God go I’? I’ll bet Eric has got up to a bit of harassment in his time?

      Reply

    • Front Bar-rister says:

      06:16pm | 21/10/10

      This is clearly actionable.
      Eric?

    • Charles Kelly says:

      04:12pm | 22/10/10

      It’s a win-win for women who constantly flirt and use their sexuality for career advancement. If their attempts prove ineffective, at least they know they can always sue for sexual harassment instead.

      Reply
 
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