I don't need to be massaged', and he'd say things like, 'You just need to relax, I'm not doing anything. You feel uncomfortable. When she lodged a complaint, an action confirmed by others she worked with at the time, she says she was told: " '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. It's only since this recent case, as witnesses have come forward, that she has learnt another woman in the company, a woman she never knew, made a similar complaint around the same time.
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 that 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 an 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. On August 2nd, after negotiations for 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.
Debate raged. 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? It depends. However, as Rayner says of 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 damages claim, and there may have been 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.
It's all very well to claim the board knew or should have known, but the Fraser-Kirk camp would have had to prove it. 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 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. Even after it was settled in the Human Rights Commission on October 15, on the brink of evidence being filed, the rumours, claims and counter-claims continued to swirl. Word was put about that Harmers had packed it in because their case was about to fall apart, that witnesses had "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.
It never happened The police complaint was made when Fraser-Kirk worked as a civilian within the NSW force, between and In a media statement in August, Fraser-Kirk said it concerned an officer "occasionally invading her personal space", and dismissed it as a "minor issue 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 but 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. He issued a statement saying that he deeply regretted the events and said he apologised to Szlakowski she denies there was an apology.
But the problem seems far from solved. Several more alleged victims came forward to reveal that they were terrified about speaking up at the time. At this stage, no charges have been laid against Heydon, who stepped down from the bench in , and he retains his Companion Order of Australia honour.
Heydon denied any allegation of predatory behaviour or breach of the law. As it stands today, the battle has two main fronts. The other front is that, overwhelmingly, sexual harassment is still treated as a problem only once a victim speaks up.
While MeToo felt like a watershed moment in a broad sense, too many men who sit at the top of powerful organisations still see sexual harassment as something to be downplayed and minimised rather than stopped at its source. None of this surprises Fraser-Kirk. The idea that change needs to come from the top sounds obvious, but the reality is different, as Jenkins outlined in the Respect Work report. Some men seem to be getting it. Instead, they want Australian CEOs and boards to be proactive about prevention, and put the health and wellbeing of their workforce above profit.
Fraser-Kirk says she would love to see the day come when sexual harassment is treated for what it is: a workplace health and safety issue that marginalises women, stifles their ability to progress and rewards powerful men. Today, she is a manager herself, and takes every opportunity she can to talk to the women who work for her about their rights, in the hope it can give them some tools to protect themselves. We need to bring some basic empathy back into the workplace.
McInnes initially admitted to behaving in a manner unbecoming of the high standard expected of a CEO, but later denied most of the allegations.
Now, 10 years on from the case, Fraser-Kirk has spoken out for the first time about what she says she endured — not just the harassment itself, but what it was like to be sidelined as the company went into damage-control mode. If that had happened to me today, I would have simply told him to fuck off. It happened at the beginning of my career when I was naive and just starting out. Fraser-Kirk is proud of her decision to speak out at the time, but the personal toll was immense.
I was dealing with people discrediting me on every level professionally and personally, at a really young age. I was scared, petrified actually, and why? The case dominated national headlines for months. Yet a decade later, it appears Australian workplaces — particularly large corporations — have learnt few lessons from the allegations, with sexual harassment seemingly as prevalent today as it was then.
FraserKirk despairs that so many Australian women are still having to put up with the same sort of violation and power play in the workplace that she says she experienced — and the solutions seem a long time coming. This was the first time that any Australian CEO had resigned over sexual harassment claim. Ms Fraser-Kirk justified the size of the lawsuit by saying she would donate any punitive damages to a charity of her choice that helps people in the area of sexual harassment and bullying.
The settlement was announced after the parties met at the Australian Human Rights Commission last week. Mr McInnes has denied the "vast majority" of the allegations, while David Jones and its directors have denied all wrongdoing.
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