Workplace lawyers have little faith in the A$37m sexual harassment claim against David Jones succeeding.
National group practice leader for workplace relations at Middletons, Jerard Phillips, said the chances of the plaintiff, 27-year-old former David Jones employee Kristy Fraser-Kirk, winning were extremely slim. “When you talk to any lawyer in town, it is a unanimous view that the claim will not succeed,” Phillips said.
The claim, lodged yesterday in the Federal Court, is seeking punitive damages against David Jones and its directors, equivalent to 5% of the company's profits between 2003 and 2010 and 5% of former chief executive Mark McInnes’ remuneration during that period.
Fraser-Kirk has accused the company and its directors of breaching their duty of care by failing to prevent McInnes from subjecting her to sexual harassment. She claims McInnes made repeated and unwanted sexual advances to her and is seeking compensation for breach of contract, punitive damages and costs. Phillips said such awards for punitive damages have never been made in Australian courts. “The fact you have more defendants does not mean the payout is larger,” he said.
Phillips explained that large amounts of compensation were only handed out in one of two situations: Where a high income earner is left unable to work for an extended period of time; or where a young employee is severely injured resulting in substantial loss of income for the rest of their working life.
"It certainly is an unprecedented claim and it's unprecedented in terms of a claim for percentages of the business's turnover and the executive salary. Normally legal principles, in terms of damages, don't function on the basis of that type of assessment,” he said.
“Anyone who has commenced complex litigation [such as this] will tell you it won’t happen quickly and it is a costly process. It could end up that she gets very little in the end,” Phillips added.
Fraser-Kirk is being represented pro bono by Harmers Workplace Lawyers.
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