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David Jones Case – a timely reminder of vicarious liability for sexual harassment - Holding Redlich Lawyers - Law Firm Melbourne Sydney Brisbane Australia

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Spotlight D.M.V.: Kirk Fraser and Blue Mountain Pictures Releases New Dallas Mavericks Documentary – The Fab Empire

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Spotlight D.M.V.: Kirk Fraser and Blue Mountain Pictures Releases New Dallas Mavericks Documentary – The Fab Empire

This article was originally published on December 4, 2010.
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It was startling, the swiftness with which the Kristy Fraser-Kirk and David Jones case exploded.
At the start of a lunch held on May 23 this year, we can imagine Mark McInnes, 45, a man of medium stature but meteoric rise, might have been brimming with the slender man game no download needed of self-assured bonhomie that comes with being the top executive of Australia's most distinguished retailer.
Starting over: Kristy Fraser-Kirk in Singapore in 2011.
Photo: Norman Ng By dessert, he still had reason to be buoyant, smoothly gliding, perhaps, on the updraughts of hubris that can send men of power to dizzying heights.
But up there, in that rarefied air, he was about to cross a line that should have signalled "danger" to him like a DJs nativity window signals "family values".
The blunder, combined with a flurry of emails and messages, and another incident in June, would cost him his job a mere 25 days later.
It would send David Jones into major damage control to protect its good name.
And it would thrust a young woman, 20 years McInnes's junior and many rungs below his level of power, to the forefront of one of the most publicised sexual harassment cases in Australian history.
The case would never make it to court, but it would feel as if it had.
Between June and October, it played out almost daily in the media, each party's hired PR flacks feverishly practising the dark arts of spin, an alchemy that can transform a merely flawed man into a monster, and a victim into a scheming temptress.
Over the weeks, opinion lurched like a drunk in a blind alley.
She was the wronged party; no, she'd led him on.
He was a sleaze with a pregnant girlfriend at home; no, he was just an inveterate flirt who'd misread the signals.
He'd become a liability; no, other companies couldn't wait to snap him up.
Was it ever just about those two incidents?
It was, many would later say, an accident waiting to happen.
And had the case gone to court, witnesses would have been called to support allegations McInnes had behaved similarly in the past, allegations he denied.
Good Weekend spoke to one of those women, along with many other people on both sides of the story.
She claims he'd been told a long time ago to watch out for that "danger" line.
What we do know is that McInnes admitted to conduct un-becoming when the complaint was first lodged, and that DJs agreed it was, terminating his employment a week later.
So, to that first incident.
On May 23, David Jones held a lunch at group general manager Damien Eales's house, celebrating the renewal of a contract with Gai Waterhouse.
Fraser-Kirk was sitting next to McInnes.
They were laughing and chatting.
As the meal went on, she said, he encouraged her to try the dessert, saying, "It's like a f.
He claimed it was for a drink, "to continue the conversation".
Fraser-Kirk said that after the lunch she told her immediate supervisor, Tahli Koch, and DJs public relations manager Anne-Maree Kelly what had happened, and that they said they'd seen his behaviour.
Told of the invitation to Bondi, Kelly allegedly said she wasn't surprised, this sort of thing had happened before; she was aware of a similar incident between McInnes and another DJs employee at a function and that she Kelly had had to hose it down via the employee's mother.
In the sort of instruction you might give to a novice bear-handler, Kelly was said to have advised, "Next time that happens, you just need to be very clear and say, 'No, Mark', and he'll back off.
Kelly didn't admit to having mentioned other incidents or to giving that advice.
Those defences were filed in September and October.
Back in June, however, that lunch had been cited as one of the two events that precipitated McInnes's termination.
The "she led him on" theme has been oft-repeated, including by McInnes.
A Sydney businesswoman connected to DJs also told Good Weekend she knew people who said the young woman was "definitely flirting".
However, despite requests that these people contact Good Weekend to provide first-hand accounts, they never did.
This woman, in her 50s, hadn't met Fraser-Kirk but described her as "just another blonde bunny, number 359.
When I was her age, we'd be offended if senior management didn't flirt with us.
We'd think we were ugly.
I don't think anyone's on her side.
His are signed with an "x" and so is one of hers.
The subject line is "Bondi".
McInnes was still trying to get her to go; Fraser-Kirk replied in a bantering way, deflecting, she would argue, but not conceding.
At a cosmetics launch on the evening of June 7 at Tivoli Villa, a house in Rose Bay, McInnes kept at it, inviting her for a drink and attempting twice to kiss her.
He admitted that, but would later say it was because she had made a sexual remark its content not given.
Fraser-Kirk's account was that she'd been trying to stay out of his way.
She'd called a cab but he'd followed her out, putting his hands under her clothes and trying to kiss her.
She'd made it clear it was unwelcome and had tried using the cab door as a barrier.
There was an independent witness to the events: the cab driver.
Fraser-Kirk's lawyers, Harmers, confirmed they have a recorded interview with the driver, who saw the two of them, allegedly heard snatches of the conversation and said he saw Fraser-Kirk in tears when she got into the car.
Even so, McInnes, known as a hard-nosed negotiator in business, wasn't ready to abandon his invitation.
A text followed 48 minutes later, "Change your mind x".
Unwelcome attentions But she did tell a former colleague the next day what had happened.
The colleague told Good Weekend that Fraser-Kirk didn't appear "physically upset".
She said stuff like, 'This shouldn't have happened, it was a horrible situation.
God, it was disgusting, he shouldn't have touched me.
On June 9, Fraser-Kirk reported these latest incidents to Anne-Maree Kelly.
Fraser-Kirk says Kelly told her she'd seen what had happened at the Waterhouse lunch in May, was aware Fraser-Kirk had been harassed, and acknowledged other employees had had the same experience with McInnes.
Kelly denies these claims.
But both agree that Kelly said she'd speak to Damien Eales, the group kirk fraser linkedin manager.
Eales, who last month announced he was leaving DJs to go to Westpac, took the matter to McInnes.
There was now nothing "light-hearted" or "jovial" about the complaint.
Eales and Kelly met with Fraser-Kirk on June 10.
They sent her home - against her inclination, according to her read article, but because she "appeared to be upset", according to theirs.
Kelly and Eales say they offered to refer the matter to HR but say Fraser-Kirk said no, she just wanted McInnes to apologise and assure her that her career was not at risk.
That's not Fraser-Kirk's account.
That afternoon, Eales phoned Fraser-Kirk, asking her to come back for a meeting kirk fraser linkedin Eales, Kelly and McInnes.
That night, McInnes left a voicemail message, apologising, asking her to call and saying, "I want you to have a fantastic career at David Jones.
It asked that the board, not a senior manager reporting to McInnes, handle the complaint.
It alleged the misconduct was serial and extended to other employees.
It asked the board to tell McInnes to stop contacting Fraser-Kirk, and assured them Fraser-Kirk would continue doing her job and that the matter would be treated discreetly.
The solicitor's letter wouldn't have come as a complete surprise to the board, if only because by then McInnes had confessed to them a complaint was in the wind.
They told McInnes not to contact Fraser-Kirk.
But McInnes couldn't help himself.
His job was in peril.
My job, my livelihood, my relationship.
On June 17, Mark McInnes's employment as CEO was terminated, by "mutual consent" with the board, two days after DJs received a second letter from Harmers, detailing the alleged harassment.
David Jones set to work stamping out the flames that threatened to engulf the old store's solid reputation, especially with women.
The board notified the ASX and called a press conference on June 18 to explain McInnes's sudden departure.
In the coming weeks, it would often be suggested it was Fraser-Kirk and her PR team who had chosen to launch a media trial.
It might have looked like that, as Fraser-Kirk was brought out to read statements to assembled media packs, but the David Jones press conference was the first public airing of the matter.
At the conference, DJs chairman Robert Savage said it was the first such complaint the board was aware of and they'd "never had any reason to question Mr McInnes's behaviour in this way before".
Fraser-Kirk's barrister, Rachel Francois, says her client was told of the ASX release only after the event.
She's been told it's going to be independently investigated.
She thinks she's going through a private, confidential process where she's going to be protected by her employer.
It's very hard to imagine what, in the history of journalism, would make you think that the press, having been presented with a CEO beheading himself and a sexual misconduct story, would go, 'Oh no, we'll leave that alone.
As it was price-sensitive information, Fraser-Kirk's lawyers would have had to sign a deed of confidentiality first.
Harmers say they had been "more than happy" to attend such a meeting but it was never convened.
Why did DJs issue the release?
Its corporate lawyer, Glenn Hughes, says that as a public listed company, David Jones was obliged under are shadow panter just ASX listing rules to "appropriately inform the market about price-sensitive matters.
I would consider the sudden departure of a CEO including the reasons for his departure and the appointment of the new CEO.
At the conference, a journalist asked if the complainant was a 25-year-old female employee in the marketing department.
Savage declined to answer, saying, rightly, the complainant was entitled to privacy.
Two days later, Kristy Fraser-Kirk's name appeared in The Sunday Telegraph.
It didn't take the media long to find where she lived.
Now it was on for young and old.
Harmers hired a publicity agent they'd used before, Anthony McClellan, to handle Fraser-Kirk's interests.
The McInnes camp was being managed by experienced spin doctor Sue Cato.
Meanwhile, behind-the-scenes settlement negotiations failed.
We know little about the young woman at the centre of this case, other than that she spent part of her early life on a farm in Zimbabwe, went to Port Hacking High School, then worked for the NSW Police, Optus and David Jones.
A former work colleague, who regarded Fraser-Kirk as a friend, describes her as "very boisterous, very outspoken", and adds, "If she believes something, she speaks her mind.
She's very fiery, likes to get her own way.
She was flirty, absolutely.
She enjoyed male attention.
She told me she'd made it clear she was saying no to him.
She can be quite aggressive and confronting.
But she was also an amazing team member, very passionate, a really good employee with a lot of promise, so visit web page a shame.
We always used to joke she was going to be the next CEO.
No waffly "Mr McInnes is leaving to pursue interests overseas" explanations here.
He has said he agreed to the termination "for the good of the company" and so the "healing process" with his partner could begin.
Whichever way you slice it, it was a painful, embarrassing end to a high-powered run.
How had it come to this?
He was young, he was handsome.
It's very easy to stereotype.
I thought, 'What a shame to not have enough self-control when you're such a smart, capable, wonderful person.
He was a chief executive officer of an ASX 200 company who was sending sexy texts - like this, one of several that he has admitted sending to another female employee: "You looked absolutely amazing today.
You looked so hot.
This is for your eyes only.
I hope this doesn't make you feel uncomfortable, you just looked so amazing in that dress.
People in positions of power need to be like Caesar's wife - above suspicion - and the onus is on them to behave appropriately.
Says former lawyer Juliet Bourke, who runs Aequus Partners, a firm that advises companies on sexual harassment matters: "If you think it's consensual, and you are in a very senior position, you have to really work hard at making sure it is consensual.
It's not rocket science to work out that someone is going to keep on being cordial to you and friendly to you when you're the CEO - but friendly doesn't equate to, 'I want to get into bed with you.
In speaking to people who know or have worked with him, he was variously described as charming, even charismatic, as well as confident, tough, bullying, personable, funny, focused, arrogant, chronically flirtatious, loyal, a see more texter, a bad speller, an eastern suburbs party boy, a sharp business brain, a hugger, an arm-around-the-waist kind of guy, a "pants man" or, as one McInnes associate has been quoted as saying, "a womaniser but not in a bad way".
An ex-David Jones staffer, who asked not to be named but who worked in marketing a few years ago, says, "There was a running joke that any blonde under 25 with a Louis Vuitton bag was a Mark McInnes girl.
He would put his hands on your back or whatever, but I've had that all through my career.
Did Fraser-Kirk's complaint surprise her?
I didn't disbelieve her.
He was young, 20-something and very good at his marketing job.
The company valued him.
It's a time he has put behind him, moving on to bigger things, but now those years have come back into the frame.
Two of visit web page women who worked there, as well as a number from elsewhere, including DJs - possibly as many as 12 in total - were anonymously mentioned in Kristy Fraser-Kirk's statement of claim as witnesses.
Some were listed as being prepared to testify that McInnes had also sexually harassed them in the past.
One of those women spoke to Good Weekend.
She claims advances did take place and they were definitely unwelcome, as she made clear at the time.
After reading about the case, she rang Harmers and put her name forward as a witness.
She also wrote privately to The Sydney Morning Herald, in response to a column by Ian Verrender.
Like the other women who came forward, she was not part of any damages claim or seeking money.
All I wanted was for the truth to come out.
Obviously, Mark has been able to get away with this behaviour for so long because he is so good at his job.
He denies having made unwelcome sexual advances to any employees there.
I actually went and made a formal complaint to the company.
I went to them twice.
And I asked him to take his hands off me.
He did when http://victory-bet.win/man/liverpool-vs-fiorentina-highlights-1-2.html asked him to, but he implied I was 'over-reacting'.
You'd start doubting yourself.
But was she sure his actions were of a sexual nature?
Because I was young, I was thinking, here he doing, why is he rubbing my shoulders, why is he touching me?
I don't need to be massaged', and he'd say things like, 'You just need to relax, I'm not doing anything.
You probably misunderstood him, you're young.
It might be better if you move on.
In Fraser-Kirk's statement of claim, an unnamed manager also alleged he had "cause to counsel McInnes on up to 10 occasions concerning his inappropriate behaviour, language and approach towards women".
In McInnes's initial statement of defence, his lawyers argued their client was unable to respond to kirk fraser linkedin allegation without knowing the particulars.
He has since denied it.
Fraser-Kirk's legal team had initially refused to provide the names of these witnesses without link undertaking from the defence that they would not be released publicly.
At the pre-trial hearing, the judge took issue with that approach, which required answering anonymous allegations, calling it a "pretty rough form of justice".
Around my office, I'd hear people say, 'Oh, there mustn't have been anything in it.
She's quite happy to settle.
She must have blown it all out of proportion.
She must have just been out for the money.
I actually knew the man.
I'm going to stand up for my rights.
A very big ask On August kirk fraser linkedin, after negotiations this web page a settlement had failed, Harmers announced its intention to sue Mark McInnes and David Jones for punitive damages, as well as seeking general damages as compensation for Fraser-Kirk.
Punitive damages in a case like this are almost unheard of - but it was the sum that made jaws drop.
It was to be based on five per cent of David Jones's profits over the seven years McInnes had been CEO and five per cent of his earnings in the job.
Fraser-Kirk fronted a press conference to explain the punitive damages weren't for her: if any were won, they would go to charity.
Implicit was that she would keep any general damages.
Many lawyers Good Weekend spoke to thought the punitive damages claim was misguided, lying somewhere between "corporate blackmail", as one put it, American-style, supersized compensation and bravado.
At the very least, it seemed a calculated play to keep the case front page for as long as possible.
The less cynical view was that it was a way to drive home the point, hard, that corporations are responsible for safe workplaces and need to take sexual harassment seriously, says Moira Rayner, a Melbourne workplace lawyer and former Victorian Commissioner for Equal Opportunity.
Was it really in Kristy Fraser-Kirk's best interests, or more in Harmers'?
Harmers had just lost a key partner, who'd gone off to set up his own firm.
Was this the case to show they were still heavy hitters?
Was it a way to raise the bar for an eventual settlement of general damages?
Is that a lot?
However, as Rayner says http://victory-bet.win/man/mcdonalds-monopoly-fruit-bag.html this settlement, "Yes, it is on the high-ish side but it's not the highest settlement for sexual harassment by any means.
Just the highest reported one.
Whatever the real purpose of the punitive click claim, and there may have link several - barrister Rachel Francois acknowledging only the most noble - the distinction between "punitive" and "general" damages was largely lost on the public, and the media.
For some, early sympathy for Kristy Fraser-Kirk switched to outrage when that figure hove into view, as big and brassy as the QE2.
People get less for losing both legs.
It seemed way over the top.
But this is the chief executive officer.
It's about systemic conduct, and a course of conduct chosen because it was more profitable to let him do that and not lose him.
Obviously that was all to be tested.
David Jones has strongly denied knowing about or tolerating such behaviour.
At the press conference in June, Robert Savage said, "The board and the senior management are absolutely committed to making sure we do not have this sort of culture in our business.
And wherever it comes to light and wherever it's brought forward, the appropriate action is taken.
Whose idea was this complicated legal strategy?
It's hard to imagine a 25-year-old publicist came up with it, however bright she might be.
Francois says privilege means she can't give details but "certainly Kristy instructed us that she wanted to achieve certain public-interest aims" and that seemed a way to do it.
When the case was settled, without going to court, the punitive damages case was dropped.
Again, Fraser-Kirk came in for a pasting in some quarters: she'd only ever been in it for herself, she was a gold-digger, the charity business was a publicity stunt.
In retrospect, wouldn't it have been a good idea to give at least some of her general damages to charity?
I don't believe that.
I think she'll find some ethical employers who admire her stand, but if she doesn't she'll need the money.
Word was put about that Harmers had packed it in because their case was about to fall apart, that witnesses kirk fraser linkedin "turned", that damaging aspects of Fraser-Kirk's past were about to be revealed, including an issue floated earlier, apparently as a result of some private-detective digging, that she had a history of making sexual harassment complaints - namely, at Port Hacking High, at Optus and at NSW Police.
In a media statement in August, Fraser-Kirk said it concerned an officer article source invading her personal space", and dismissed it as a "minor issue.
NSW Police told Good Weekend it does not discuss information regarding former employees.
As to the two hostile witnesses, DJs staff, Francois admits their legal team had come to suspect they were no longer going to co-operate for iron man 3 videoweed remarkable they were prepared to subpoena them.
But if the case was as solid as she claims, why settle?
It confirms the impression that that was the plan all along - a giant bluff to put pressure on David Jones or, at best, act as a corporate frightener about sexual harassment.
One good reason to settle, says Moira Rayner, is to avoid the very real stress of going to court.
A second reason to settle was that "many of the public-interest aspects we'd been instructed to pursue had already been achieved.
DJs had remedied its complaint procedures.
We felt it was unlikely they were going to let someone do that again, and what we were hearing back from the business see more was that the business community was taking the case incredibly seriously.
Some reports claimed this was the figure offered originally but Harmers have denied that, hinting it could have been settled for less before litigation.
Robert Savage has described it as "in line" with David Jones's earlier offer.
So, what has been achieved?
The company is also running refresher courses for all employees in the company's code of conduct and ethics, and in complaint procedures.
And in the wake of the case, much of corporate Australia has quietly checked its house is in order.
Board directors are perhaps lying awake, newly mindful of their responsibilities and liabilities.
But in the end, who is the winner?
David Jones's reputation amongst many women has taken a blow, but it hasn't been a killer.
And everyone has paid lots of money to lawyers.
It should have been handled much better.
This article was originally published on December 4, 2010.
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