The momentum of the law remains in favour of perpetrators to the detriment of society.
Given the history of our laws, we are yet to throw of the shackles imposed when women were chattels gifted by their father, children were serfs unto their parents and people were persecuted for their religious beliefs or sexuality. This is despite knowing the perverse outcomes such as domestic violence and sexual assault, abuse and rape of women and children and the used of information to compromise people.
In fact it seems unclear whether the evil of the first woman, eve, has ever been forgotten. The standard defence is to focus on the conduct of the person being harassed or discriminated and not on the person acting in a harassing and discriminatory manner.
The adversarial legal system by its design and nature supports this proposition, as this is the end point for any person who is harassed or discriminated against or supports a person who they observe has been harassed or discriminated against.
This high barrier is also supported by the cost of bringing (and defending these maters when they become legal eruptions). When the facts lead to a conclusion that might impinge the reputation of the CEO or senior manager, the threat of defamation is normally sufficient to see off the report and investigation in most cases.
No wonder there is so much under reporting, allowing Boards, Directors and CEOs to set a low risk approach and low resource framework. Coupled with a broad claim of legal professional privilege across all material and most misconduct is unlikely to generate an incentive to improve.
There are numerous reported case examples in the media. What is now unusual is the number of people who were subject to a similar pattern of inappropriate behaviour, are supporting each other. The ability to dismiss one allegation is easy in today fake news cycle. Social media is making this strategy less effective and increases the money at risk.
While the presumption of innocence until proven guilty, is an intrinsic part of the adversarial system, it does not serve the purpose of assessing what has happened and how to fix it. This article is not suggesting a switch to the inquisitorial system, but it does highlight the benefit of an impartial observer accumulating the facts, rather than the rather confected thrust and parry of the adversarial system.
In many cases it would seem difficult to consider that at each time there was harassment, assault or rape, that someone else was not either:
- actively or passively participating in the lead up to the harassment, assault or rape
- present during the harassment, assault or rape
- actively or passively observing the consequence of the harassment, assault or rape
- received information about the harassment, assault or rape
- provided advice to the individual as an employee or director, in preference to providing advice to the organisation and the Board
- if needed facilitated payments on behalf the individual as an employee or director, rather than preferencing the organisation and the Board and denying payment
In the law suit against the retail giant David Jones, no one is clear on what occurred.
“David Jones’s HR policies and procedures were found by a third-party expert to be sound, but it has also since refined its complaints/whistleblower procedures to make them more independent, anonymous and accessible.”
It is also unclear how David Jones sales and therefore profitability was impacted by the litigation. It is also unclear how much of the compensation was paid by David Jones (and therefore David Jones shareholders) and how much was paid for by the employee, while both denied the allegations.
Notably the lawyers for the claimant, asserted they had obtained statements from seven women – five of whom allege they were harassed by the CEO while working with the CEO at DJs and others during other previous employment.
“everyone has paid lots of money to lawyers. It should have been handled much better”
What was intriguing was the convergence of issues (see SMH Article). The article presents the “he said/she said/they said” and the balance of probabilities“ defence arguments:
- report of the CEOs behaviour, had been light-hearted and jovial, not a complaint
- she led him on
- the group general manager. Eales, took the matter the CEO (not the Board)
- the Board directed the CEO not to contact the person concerned, but the CEO did
- Chair said it was the first such complaint the board was aware of
- Board never had any reason to question the CEOs behaviour in this way before
- Obviously, he has been able to get away with this behaviour for so long because he is so good at his job
- implied I was over-reacting
- There are two sides to a story. We’ve asked him. He denies it. You probably misunderstood him, you’re young. It might be better if you move on. Blah blah. Well move you to another department
- I went and looked for other work
- I learnt another woman in the company, a woman I never knew, made a similar complaint around the same time
- At the pre-trial hearing, the judge took issue with an approach that required answering anonymous allegations, calling it a pretty rough form of justice
- She must have blown it all out of proportion
- She must have just been out for the money
- If you read some press reports, they say shell never work again. I don’t believe that. I think she’ll find some ethical employers who admire her stand, but if she doesn’t shell need the money
- she had a history of making sexual harassment complaints
- You can say all you like about making a point, but I don’t think a young woman would benefit by going through a trial, subjected to nasty stuff, stuff about her background, allegations she asked for it and so on
The key reference and comment is:
“It’s not ultimately about the particular incidents [of harassment]. 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.”
Given the findings in the ABS Personal Safety Survey, the level of reporting in most organisations should be much higher, The survey has revealed:
- one in two women had experienced it in the course of their lifetime
- one in four men had too
- in the past year, 2.4 million Australians said they experienced harassment
- Women aged 18 to 24 were the worst affected, with 38 per cent reporting acts such as inappropriate comments about their bodies and sex life, indecent exposure or unwanted touching, kissing or grabbing in the past year.
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 Equal Time: Newsletter of the Anti-Discrimination Board of New South Wales –  EqTimeNSWADBNlr 2 http://www.austlii.edu.au/au/journals/EqTimeNSWADBNlr/2011/2.html