Sexual Harassment on Trial

Abstract

The ‘trial’ by media and lawyers in the 2010 dispute between Kristy Fraser-Kirk, leading retailer David Jones and former CEO Mark McInnes ended in an out of court settlement. The case was significant in many ways. The complainant took the unusual step of pleading her claim under the Trade Practices Act 1974 (Cth), Fair Trading Act 1987 (NSW) and the common law of contract, in addition to the sexual harassment provisions of the Sex Discrimination Act 1984 (Cth). Fraser-Kirk and her lawyers also actively engaged with the media, prompting David Jones to respond in kind. In this paper, we contrast how this particular trial by media and lawyers compares to the typical processes and outcomes for those whose complaints are not spotlighted in newspapers or the news. We critique the use of publicity in that dispute, showing that the plaintiff’s $37m claim grabbed media attention and fostered an out of court settlement that is inconsistent with traditional damages for workplace injury and awards regarding sexual discrimination. We find too that the size of the claim seemed to be highlighted more by the media than Fraser-Kirk’s resemblance to the ideal complainant identified in previous research (young, subordinate position, fresh complaint). Although it is a case worthy of analysis as exemplifying a trend in adversarial dispute resolution, we conclude that these tactics may not be useful or work for everyone.