Equal Time Autumn 2011
page 1 of 13
Equal Time
Newsletter of the Anti-Discrimination Board of NSW
Number 81 Autumn 2011
Contents
Complaining to the Board ................................................................................................................ 2
Sexual Harassment Costs and consequences................................................................................. 3
Introducing the Board of the ADB .................................................................................................... 6
Community Outreach ....................................................................................................................... 8
ADB Seminars 2011 ...................................................................................................................... 10
ADB Posters .................................................................................................................................. 11
The Anti-Discrimination Board of NSW ............................................ Error! Bookmark not defined.
Equal Time Autumn 2011
page 2 of 13
From the President
Complaining to the Board
The ADB can now accept complaints sent by email
The Anti-Discrimination Board can now accept complaints sent by email. Previously the Anti-
Discrimination Act 1977 stipulated that complaints had to either be mailed, faxed or delivered in
person.
In December 2010 the Anti-Discrimination Act regulations were amended to allow complaints to be
sent by email. An email address has been set up for complainants to send in their complaint
(complaintsadb@agd.nsw.gov.au). Once received email complaints are processed in the same
manner as complaints received by mail, fax or hand delivery (see flow chart).
The new procedures are welcome as they make it easier for people to make a complaint. If you, or
clients you are advising, wish to send a complaint by email you should ensure that they include a
contact telephone number and a postal address in their email. This makes it easier for the Board
to contact them and to send notifications regarding the complaint.
The Board is currently developing an online form which clients will be able to fill-in, save to their
computer, print as well as sending to the Board via email. Use of this form will ensure that people
with complaints provide all the necessary information to ensure their complaint is dealt with
efficiently and as quickly as possible.
For more information on the Board’s complaints procedures go to the complaints section on the
ADB website: (http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_complaint)
Stepan Kerkyasharian AO
Equal Time Autumn 2011
page 3 of 13
Sexual Harassment
Costs and consequences
The David Jones Case – A summary of issues for employers
This case was settled so we have no final reported decision, but it raises some important
issues for the prevention and resolution of sexual harassment cases.
Ms Kirsty Fraser-Kirk, a publicity coordinator, complained that Mr Mark McInnes, CEO of David
Jones, had sexually harassed her. When the matter was not resolved internally, she took action in
the Federal Court under the federal Sex Discrimination Act, breach of contract and negligence
laws and both state and federal trade practices legislation. She claimed $37,000,000 in damages.
Liability – Individual, vicarious and accessory
Ms Fraser-Kirk claimed that Mr McInnes was individually liable for the harm his sexual harassment
caused her. As CEO, he could not argue that he was unaware of company policy.
She also claimed that David Jones was vicariously liable for damages. Employers are liable for the
actions of employees unless they can demonstrate that they took all reasonable steps to prevent
it. DJ’s stated that, after Ms Fraser- Kirk’s complaints, it had investigated its policies and
procedures relating to sexual harassment and found that they were basically good. Ms Fraser-Kirk
argued, however, that David Jones had not taken all reasonable steps because it did not act in
accordance with it’s own code of conduct, policies and procedures. She had approached the
company’s human resources department but no action was taken in relation to her complaints.
She also claimed that senior management knew about Mr McInnes’s behaviour towards women
and, even after she had raised concerns, had deliberately placed her in harm’s way. (As an aside,
it is unlawful under the NSW Anti-Discrimination Act to ‘cause, instruct, induce, aid or permit’
another person to do something that is unlawful under the Act. This is known as aiding or abetting
or liability as an accessory.)
She was required to attend a number of functions at which he had made sexual comments,
touched her inappropriately, and asked her to go with him to Bondi, with the implication that it was
to have sex. She claimed senior managers witnessed this behaviour. He later sent text messages
asking for sex.
Afterwards, he emailed an apology and admitted ‘conduct unbecoming a CEO’ then denied her
claims. A number of emails from him aimed at persuading her to drop her complaints were
tendered in court.
Policies – misleading and deceptive conduct
Ms Kirsty-Fraser claimed that DJs had breached this Act by making ‘misleading or deceptive’
representations about its workplace culture and employment conditions to her during her job
Equal Time Autumn 2011
page 4 of 13
interview. This claim raised the possibility that statements of policy that do not reflect the reality of
the work environment could form the basis of a deceptive or misleading conduct claim under
Trade Practices laws.
Proof
The CEO maintained that most of the claims were untrue and an abuse of process. In defence
documents lodged with the Court, Ms Fraser-Kirk was accused of making comments of a sexual
nature to Mr McInnes. He claimed that he had attempted to kiss her in response to these
comments. He denied making unwelcome sexual advances, saying that he had only ever asked
her out for a drink or given her the same ‘good-bye hug’ that he gave other women.
Had the case came to court, Ms Fraser-Kirk would have had to satisfy the court, on the balance of
probabilities, that her version of events was accurate.
Punitive damages
Much of the $37,000,000 was for ‘punitive’ damages. Such damages are not to compensate a
victim for actual harm done, but are awarded when the perpetrator’s behaviour is so culpable that
a further amount of money should be paid by way of ‘punishment’. Punitive (sometimes called
aggravated or exemplary) damages are rare but have previously been awarded in discrimination
cases.
Ms Fraser-Kirk stated that the amount was based on 5% of Mr McInnes’s salary and 5% of DJ’s
profits during the time he worked for them.
Ms Fraser- Kirk claimed that her action was not just for herself but for other women working at DJs
and she stated that if punitive damages were awarded, she would give the money to charity.
Ultimately the case was settled for about $850,000, which was compensation for the harm she had
suffered personally. Hence the money was not given to charity as she had originally indicated that
it would be.
Witnesses
Ms Fraser-Kirk’s statement of claim alleged that a number of other DJ’s employees and two
employees of Black and Decker, had come forward alleging that they had also been harassed by
Mr McInnes or by another DJ’s manager and would be witnesses in the case. She did not name
the witnesses, however, and it was not clear that all of them had agreed to be witnesses in an
open court. Her lawyers had tried unsuccessfully to persuade the court that these witnesses
should not be named, except to the lawyers for DJ’s and Mr McInnes. The judge decided that the
public interest in open justice overrode the possibility that they might be harassed. These
witnesses were not publicly named, however, since the case was settled, their claims have not
been tested in court.
Damage to the employer
The case demonstrates the cost to an employer of failing to prevent or deal effectively with sexual
harassment and other forms of discrimination, harassment or bullying.
Equal Time Autumn 2011
page 5 of 13
The company received widespread adverse publicity over several months. Loss of reputation can
have catastrophic effects on business, productivity, turnover and recruitment.
The company also incurred enormous costs in time spent by managers and staff, fallout among
employees, further victims coming forward with their own complaints, legal fees and, ultimately,
the payout to Ms Fraser-Kirk.
It was alleged at one hearing that three other employees of David-Jones had lodged sexual
harassment claims but not against the CEO. If proved, these claims will further damage DJ’s
because they will add to the perception that DJs has a culture which condones sexual
harassment.
Personal harm
Ms Fraser-Kirk states that her intention in making such a large claim was to draw attention to the
fact that David Jones has allowed sexual harassment by its senior managers to continue
unchecked. She claimed that she was acting on behalf of other female victims and not purely in
her own interests. She feels that the action has achieved these aims.
While not everyone supported Ms Fraser-Kirk, the case has certainly raised awareness of sexual
harassment within David Jones and the community.
Meanwhile, Ms Fraser-Kirk has developed a psychological illness as a result of the pressure
placed upon her (which included numerous court appearances regarding various issues, intense
and not always flattering media coverage, pressure from Mr McInnes, claims regarding her own
behaviour and surveillance by a private investigator) after she commenced her action.
The case must also raise questions about her future career prospects.
The settlement
Ms Fraser-Kirk accepted a settlement of $850,000 made up of a contribution from both the
company and the CEO. No other details of the settlement are available.
Equal Time Autumn 2011
page 6 of 13
Introducing the Board of the ADB
Members of the statutory Anti-Discrimination Board play an important role in the
implementation of anti-discrimination law in NSW, providing guidance in pursuing the
Board’s statutory charter and promoting the objectives of the Anti-Discrimination Act.
There are four Board members plus the President, Stepan Kerkyasharian, as chair. In previous
issues of Equal Time we introduced Board members Peter Wertheim, Christine Regan and Sigrid
Patterson. In this issue we profile Michael Christodoulou.
Michael Christodoulou
For Anti-Discrimination Board member Michael Christoudoulou, education is the key to redressing
disadvantage and inequality.
Michael experienced this at first hand growing up in a poor family in Cyprus. His father was a truck
driver who died in an accident when he was only seven months old, and his mother found herself
having to support the family.
‘It took me a long time to come to terms with my father’s death, and it had a huge impact on my
life,’ he said. ‘When ever anything went wrong I felt it was because I didn’t have a father.’
‘But although I was deprived materially, I wasn’t deprived of love. My mother was one of the fairest
people I ever met in my life, and I had a strong ethical upbringing. We were brought up to abide by
the law - it was important not to hurt anybody and to mind our own business.’
Michael was lucky enough to have the opportunity to attend high school on a scholarship, with
support from his primary school headmaster and the local priest. When he was 15 and still at
school, his family moved to- Australia where he began in Year 10 at Dulwich Hill High School.
‘My father had been planning to migrate to Australia before he died,’ he said. ‘After his death, my
mother was suddenly forced to provide for five children between seven months and ten years of
age. So we were very poor, and we wanted a better life. Two of my brothers had come here in 1969,
and being united was also very important to my mother, so that was enough motivation for her to
migrate with the remaining children.’
‘Everyone had a trade except me, and there was a discussion about what to do with me, and my
eldest brother said he would support me to continue at school. I then went on to study to be a
chiropractor at university. So that is what Australia has given me, the opportunity to have an
education.’
Michael says his mother was very happy that the family was together in Australia. ‘For the first time
she could go to the shops and buy what she wanted,’ he said. ‘She fulfilled her dream to provide for
all of us. She loved those stores selling kitchen implements, and I still love them myself!’
Since his early days in Australia Michael has been very active in the community. ‘Social justice
comes very naturally to me,’ he said. ‘I felt compassion and understanding for those in need, and
wanted to participate in providing services for them.’
Equal Time Autumn 2011
page 7 of 13
He was a Board member of the May Murray Neighbourhood Centre in Marrickville for 16 years,
and has been the Coordinator of the United Nations Human Rights Day Committee since 1995.
He is also a member of the Marrickville Council Sister Cities Committee, President of the Cyprus
Community of NSW, Director of the Stanmore Hawks Soccer Club, Chairperson of the Cyprus
Community Home for the Aged, Chairperson of the Liverpool-Macarthur and Illawarra Regional
Advisory Councils, President of the Justice for Cyprus Coordinating Committee, and President of
the Federation of Cyprus Communities and Organisations of Australia and New Zealand.
‘I am also a big supporter of volunteering, and I promote it all the time,’ he said. ‘There are many
organisations that only exist because of volunteers. For example with the Cyprus Club, we have
plans to expand our services for the elderly, women and young people, but we can only do it with
volunteer labour.’
In 1995 Michael became a Commissioner of the Community Relations Commission for a
Multicultural NSW (CRC). ‘I am a firm believer in multiculturalism, and people’s rights to freedom
to practice their own religion and culture,’ he said. He has represented the Commission in a
number of other areas including the Medical Board of NSW and the NSW Community Languages
Board.
‘In a way the CRC is the story of my life,’ he said. The influx of migrants, what happens to them,
how do they evolve, do they integrate, do they keep their religion, language and culture, how can
they better themselves, how do they become good Australians? I went through that experience
and I understand it – it comes back to human rights, equality and discrimination.’
Asked about the negative views that some people have of multiculturalism, Michael says: ‘The
world is changing now, the migration pattern is changing, so it’s important to try to take the best of
that. Multiculturalism provides us with so many valuable experiences if we are open to them.’
‘For example, until I came here I had never met a Turkish Cypriot, and from propaganda at school
I thought they might be physically different from the rest of us. Now I am organising conflict
resolution workshops with them!’
The Anti-Discrimination Board is a related but different experience for Michael. ‘There is a huge
need for the legislation and its application,’ he said. ‘It encapsulates so many things I have been
involved with for years, but it is about rights rather than about welfare.’
‘It has also been a fantastic learning process for me, how to apply my experience and ideas to
issues that I had not previously had much contact with, such as homosexual and transgender
discrimination. It has made me more tolerant and developed my understanding in these areas.’
‘I enjoy the dilemmas that we deal with at the Board, and I find the work fulfilling. I believe that you
can change things for people through operating at this level. You can make people happier and give
them dignity.’
Equal Time Autumn 2011
page 8 of 13
Community Outreach
MS Australia
Multiple Sclerosis Australia (MS Australia) has been supporting and helping people with multiple
sclerosis (MS) since 1956. Through an extensive network of centres, branches, support groups
and health services, MS Australia provides specialist programs to people with MS, their families,
carers, friends and health care professionals. Claire Williams (Community Educator) attended a
recent staff meeting to train NSW staff from this organisation regarding disability discrimination.
MS Australia strives for a world without multiple sclerosis through quality research and for service
excellence to people with multiple sclerosis and their carers. MS Australia informs people with
multiple sclerosis how best to achieve as full and healthy a lifestyle as possible while managing
the symptoms of MS, raises funds for the provision of services, programs and research, educates
the community, and liaises with government and other bodies on MS-related issues.
Mardi Gras Fair Day - 20 Feb
Despite a forecast of rain and storms, the weather for Fair Day 2011 remained sunny and humid,
bringing an estimated crowd of over 70,000 community members and supporters to Victoria Park.
Friends, families and couples enjoyed the buzzing vibe and roaming the 220 stalls around the
park, including the ADB information stall.
Fair Day is the official kick-off to the Mardi Gras Festival season, where thousands of people head
to Victoria Park for a fun and relaxing day to celebrate the GLBTI community.
Mardi Gras Parade - 5 March
As the sun set on Parade night, Sydney’s streets closed down and hundreds of thousands of
colourful spectators lined the streets in costume, electric with anticipation. Thousands of Parade
participants mingled, sparkled and checked their dance moves before exploding onto Oxford
Street in the world’s most flamboyant, hilarious, creative and friendly celebration of gay pride.
This year’s parade was overseen by Ignatius Jones ( Sydney Olympics Ceremonies, 2010 Winter
Olympics Ceremonies, 2010 World Expo Shanghai). As Consulting Artistic Director, he brought his
artistic genius to create a Parade like no other.
In 2011 all Entrants were encouraged to “ Say Something”! The ADB ‘paraders’ carried a banner
stating ‘No Discrimination – gay, lesbian and transgender discrimination is against the law’. A fun
night was had by all and a message of ‘no discrimination’ was relayed to the community.
Law Week 2011 – ADB Poster Competition
JUST BE FAIR – Celebrate
Diversity in Your Community
The Anti-discrimination Board of NSW is offering young people of primary and secondary school
age group throughout NSW, (as well as young people from Youth, Migrant, Community Health
Centres and Public Libraries), the opportunity to design an A3 poster, (utilising multimedia;
Equal Time Autumn 2011
page 9 of 13
photography, digital design computer based graphics, drawing, and painting), encouraging them to
embrace and celebrate difference hence promoting anti-discrimination and anti-bullying.
The theme for the competition is ‘JUST BE FAIR – Celebrate Diversity in your Community.’ Young
people will be asked to design an A3 poster with this theme as their title during Law Week.
Entries for the Competition will close on 30 May 2011. Entries will be judged by an independent
panel. The competition invites entries from NSW only and will award book vouchers as prizes. The
prizes will be as follows;
FIRST PRIZE: $500 book voucher ($250 to the student/$250 to school library)
SECOND PRIZE: $200 book voucher ($100 to the student/$100 to school library)
THIRD PRIZE: $100 book voucher ($50 to the student/$50 to school library)
Please email or phone Claire Williams (Community Education Officer) for further information (02)
9268-5518 claire_williams@agd.nsw.gov.au
Equal Time Autumn 2011
page 10 of 13
Seminars 2011
The ADB’s seminar series is a leading training program designed to keep you up to date
with the latest trends in workplace relations.
Courses available in 2011 are:

Breakfast seminar for lawyers

Case law update

EEO recruitment and employment practices

Grievance handling skills

Grievance management and resolution skills

Managing harassment and bullying prevention

Managing psychiatric disabilities

Policy development

Skills training for Contact Officers

Contact Officers training — refresher course
For more information on our seminar program visit:
http://lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_employment_seminars
To register for seminars contact Milly Stylli on (02) 9268 5530 or 1800 670
Equal Time Autumn 2011
page 11 of 13
Posters
The ADB has a series of six attractive posters that promote the rights of people in NSW. Our
posters are a colourful and stimulating way of reminding people about their rights and
responsibilities under anti-discrimination law.
A new poster highlighting the rights of breastfeeding women
is available.
Posters cost $7.50 each plus postage and handling and GST. There are discounts available for
bulk purchases.
To order posters, download an order form from our website
(http://www.lawlink.nsw.gov.au/lawlink/adb) and fax it to us on (02) 9268 5500. The form also
gives details of the bulk discounts. Orders must be received in writing so please use the supplied
order form. For more information contact Milly Stylli on (02) 9268 5530 or 1800 670 812.
To view the posters visit our website at
http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_posters
Three of our posters are designed specifically for the workplace and include space to add contact
details for your organisation. The other posters are designed for a variety of settings but will also
be effective in workplace environments One poster has a
brief message about discrimination in thirteen languages.
Displaying our posters will help reinforce the message that your organisation does not tolerate
discrimination or harassment.
Equal Time Autumn 2011
page 12 of 13
The Anti-Discrimination Board of NSW
What types of discrimination do we deal with?
The NSW Anti-Discrimination Board can only deal with discrimination complaints that are covered
by the NSW Anti-Discrimination Act. This means that we can only deal with a discrimination
complaint if:

it is based on any of the grounds listed below and happens in one of the areas of public life
listed below; or

it is racial, homosexual, transgender or HIV/AIDS vilification, that is, a public act of
incitement to hatred, serious contempt or severe ridicule.
The laws do not allow us to deal with discrimination complaints based on other grounds (e.g.
religion, political conviction), or based on events in your private life.
Grounds

Sex (including sexual harassment, pregnancy and breastfeeding)

Race (including colour, nationality, descent, and ethno-religious or national origin)

Marital or domestic status

Homosexuality (male or female, actual or presumed)

Disability (past, present, future, actual or presumed)

Age

Transgender

Carers’ responsibilities (in employment only)
Areas

Employment

Education

Obtaining goods and services (e.g. credit, access to public places, entertainment,
government or professional services)

Accommodation

Registered clubs
Equal Time Autumn 2011
Where we are
Sydney
Level 4, 175 Castlereagh Street, Sydney NSW 2000
PO Box A2122, Sydney South NSW 1235
ph (02) 9268 5555, fax (02) 9268 5500, TTY (02) 9268 5522
Enquiries/Employers Advisory Service (02) 9268 5544
Wollongong
84 Crown St, Wollongong NSW 2500
PO Box 67, Wollongong NSW 2520
ph (02) 4224 9960 fax (02) 4224 9961
TTY (02) 4224 9967
Newcastle
Level 1, 414 Hunter St
PO Box 1077, Newcastle NSW 2300
Newcastle West NSW 2300
ph (02) 4926 4300 fax (02) 4926 1376
TTY (02) 4929 1489
Toll free number — 1800 670 812
Website — http://www.lawlink.nsw.gov.au/adb
page 13 of 13