David Jones Sexual Harassment Settlement: Who Really Won?

Now that the dust had settled on the David Jones sexual harassment case with the department store having reached a settlement with 27-year-old complainant Kristy Fraser-Kirk, it is interesting to take a look at how the drama has impacted all the major players involved.

Four months ago Fraser-Kirk launched the much publicised $37 million sexual harassment lawsuit against former CEO Mark McInnes and on Sunday a resolution was reached with Fraser-Kirk receiving an $850,000 settlement that encompassed combined payments from David Jones and McInnes. So, based on surface level evaluations it is safe to say that Fraser-Kirk had a win and David Jones and Mark McInnes had to pay for his conceded inappropriate behaviour; however when you consider the peripheral consequences of the lawsuit, the victory loses its potency.

Since the details of the action settlement were revealed Kristy Fraser-Kirk has undergone a somewhat contemptuous character audit in the media for reneging on a statement she’d made at the start of legal proceedings saying a percentage of punitive damages awarded would be donated to “a charity assisting persons in the area of sexual harassment and bullying”. And (with the benefit of retrospect influencing/clouding our judgment), there’s no doubt about it: making public philanthropic promises when chips worth $37 million dollars are on the table and doing a u-turn once the chip count has decreased significantly doesn’t exactly score high points for virtue.

The unfortunate truth is attempted character assassination is just one of the consequences that are inevitable in the hangover after a sexual harassment suit settles. In a statement Fraser-Kirk said her charity pledge was “no longer possible” because the sum did not include the punitive damages she had sought – and, hell, I will wager most people who had lost a job wouldn’t be overly forthcoming with donations either.

In addition to this, employees that pursue legal action against their former workplace are always in danger of getting labeled a “litigation enthusiast” and, subsequently, get blacklisted (intentionally or unintentionally) by future potential employers. There’s been no shortage of “37 million dollar” gags around offices over the last four months but ultimately we all recognise that workplace sexual harassment is an appalling, humiliating (or at least extremely awkward) experience for an employee – male or female – to be subject to. The idea that victims could suffer ongoing career repercussions as a result of coming forward with a complaint against a guilty employer beggars belief.

Today the Herald Sun published an article with the title “Kristy Fraser-Kirk sex case could backfire for women”, which said [Kristy Fraser-Kirk] put herself up as a champion for women in the workplace but Kristy Fraser-Kirk may instead have scared victims of office sexual harassment… Workplace law expert Gerard Phillips said the massive publicity was the very reason other women would be discouraged. “Everyone in the country knows who she is. I don’t think anyone else would want to reveal themselves in the glare of publicity,” said Mr Phillips, a partner at law firm Middletons.

That’d make for one helluva backward step for individuals’ industrial relations rights.

Following the allegations, Mark McInnes resigned as chief executive of David Jones in June and conceded his the way he had behaved with Fraser-Kirk was “unbecoming of the high standard expected of a chief executive officer to a female staff member”. Ragtrader reported that upon his “mutual termination” from David Jones, McInnes received statutory entitlements of $445,421 and a settlement payment of $1.5 million. That’s $1,095,421 more than Kristy Fraser-Kirk. McInnes has maintained throughout the saga that “the vast majority of the allegations are simply untrue and the nature of the court proceedings was an abuse of legal proceedings.” But still.

As for the department store, as of yesterday on the Australian sharemarket David Jones added 0.41 per cent to $4.85 compared with main rival Myer Holdings that shed 1.55 per cent to $3.79. Nice!

The main message that comes through loud and clear from the experience is that leaders of industry and human relations departments need to get their shit together to ensure sexual harassment complaints procedures are water tight so that employees at all levels are sufficiently protected one way or another.