A major issue has engulfed David Jones Ltd this week. The former Chief Executive admitted aggravated
impropriety (which has been reported in prurient detail by the press). It is also alleged that middle management were warned of his conduct, but did nothing about it. It is further alleged that non-executive board members are responsible for something they did not know about.
This is indeed serious.
It would be a pity, though, if this publicity led Companies to despair. It would do no one any good if employers began to think that they were going to be penalised millions no matter what they did about devising policies and cultures aimed at preventing sexual harassment and other abuses. Companies should not worry, though. If this matter goes to a hearing, the chances of the Applicant getting any more than
about $20,000 plus economic loss are all but non-existent.
On the facts – none of which have been “hidden”, you might say – the victim would be awarded by the Federal Court of Australia between $15,000 and $25,000. That is based on the consistent practice of the courts and tribunals in this area since they began, back in the seventies. There has been no deviation.
If she had been rendered unemployed or incapacitated by the offensive conduct (and we have had cases where that has happened) she would also receive damages for economic loss. In some cases that has meant several years‟ worth of remuneration.
An example is Nikolich v Goldman Sachs, where the person was so injured by what had happened in breach of health and safety, he could not work. In other words, in some extreme cases, you could add a few hundred thousand to the $15 to 25,000. In the David Jones case, the victim has claimed $37million. It is outrageous nonsense to suggest that the Federal Court would grant $37million to a person who is not seriously injured. They are definitely a victim and definitely and understandably traumatised, but not seriously injured. In fact the victim herself
convened a press conference to declare that she did not want money, and that once awarded it, would donate it to charity.
What is the basis of this claim?
The application claims breach of the Trade Practices Act (by the corporation) in so far as the obligations
under that Act have been breached. It is said that there was „deceptive and misleading conduct‟ in leading the Applicant to believe these abuses would not occur. That is followed up by the same allegation against individuals (identical words) under the State Fair Trading Act. If that can be proved, then the Applicant will get damages – ie, loss of money.
What is the loss of money? It is apparently very small. It will be the loss of earnings arising from her having to leave the employment. It would be for the period which elapses until she gets another job. She has a “duty to mitigate”, so she must show that she has another job, or tried to get one, or that she is prevented by illness from doing so.