‘No chance’ of David Jones $37m sex claim success

by 05 Aug 2010

The complainant in the David Jones sexual harassment law suit has "no chance" of walking away with $37 million, according to a leading workplace relations lawyer.

Gerard Phillips, head of Middletons' workplace relations group, said the courts are likely to grant a far more modest outcome than the "excessive" amount claimed.

"Imagine [the complainant] had been made a quadriplegic instead of being sexually harassed. She would not get $37 million," he said.

"We have really good courts in this country. It's not a trip to the casino. The courts will apply a sober assessment of what her loss is and compensate her accordingly."

Standing in complainant Kristy Fraser-Kirk's way, said Phillips, is the fact she does not seem to have suffered any sort of psychological injury as a result of David Jones CEO Mark McInnes's alleged behaviour, nor has she been unable to return to work.

"There are doubtless cases where the person suffers some sort of anxiety or depression ... I don't know that that is the case here. You have really got to couple some sort of psychiatric injury with loss of employment to get the big money," he said.

"A very subjective perception, watching what is happening in the media, is that she seems to be a very capable young woman, and she hasn't lost her job."

Phillips believes the exorbitant amount claimed is resultant from the high-profile nature of the case, as well as a reflection of frustrations at the ordinarily unremarkable amounts awarded by the courts to victims of sexual harassment.

"It was always a high-profile case and it probably would have been a bit disappointing if they had just gone and filed something up in [the Human Rights and Equal Opportunity Commission]. It would have been a bit of a come down for everybody," he said.

"It is [also] probably trying to break some new ground ... out of some frustration at the modest gains or returns one normally gets out of the discrimination tribunals. There is probably an argument to revisit. The anti-discrimination tribunal in NSW had its jurisdictional limit set in the 1970s."

And while Phillips believes settlement in this matter will be difficult, due to the complexity of the Statement of Claim and the number of parties involved, he is confident a much less salacious outcome will be achieved.

"[I expect] a modest verdict against some of the defendants, but I wouldn't expect that the directors are in any strife," he said.

"The only extraordinary thing with all this is the parties."

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