Breach of the Occupational Health and Safety Act in so far as it can be implied into the contract of employment, is also alleged. This is probably quite accurate. An employer has a statutory obligation to “ensure” that “systems of work” are not injurious to health and safety. Physical attack by the Chief Executive qualifies as a breach, to say the least. These are appalling circumstances indeed. The remedy? It is damages. How much money has the person lost now or in the future as a result of this? In this case, it is not $37 million. It is mitigated loss for the period of unemployment. It is combined with the above.
Then we have the Fair Work Act, McArdle Legal. You may not take “adverse action” against a person on the grounds of their gender, or because they have asserted a “workplace right” (in this case, complained about the conduct of the Chief Executive). The remedy is “up to” six months pay, subject to mitigation of loss – ie, the amount awarded is reduced by the amount of earnings in the six months after the triggering event, which in this case is termination of employment. That would mean the person would get a maximum of six months pay “mitigated” downwards, as above.
All of the above would be awarded jointly and severally. There would be one award of mitigated damages, not multiple.
Then, there is the Sex Discrimination Act. There has been a clear breach. The Chief Executive is not liable personally under this Act, though. It will be David Jones who has to pay (see Section 106), unless they can show that they had taken every practicable step to prevent the conduct. It is alleged that they indeed failed to take any such steps. The Applicant will therefore be entitled to a clear award of compensation: $15,-25,000. That is not subject to “mitigation”.
Individual Directors have been targeted. This has worked in other cases in the past. It is designed to cause concern among Directors, in the hope that they will demand that money be paid in settlement. However, there is no obligation under the Corporations Act for a Director to involve themselves in the day to day management of the Company. They are permitted to exercise “business judgment in good
faith” and to conduct themselves as directors according to the standards of the “reasonable person”.
For the Applicant to win against individual Directors, her lawyers would have to prove that those individuals knew or should have known about this fellow‟s conduct and did nothing. If they can prove that, then there is a strong case. The remedy? Damages for economic loss.
The court will not “double count” so any remedy under the Fair Work Act, or breach of OH&S, or Trade Practices/Fair Trading and the like will also offset this amount. Likely outcome against individual Directors: zero. Then there is an action against the Chief Executive himself. He could be shown to have undermined the Applicant‟s employment contract.
He probably did. We are not sure if this has been claimed. On the other hand, the remedy is economic loss. Likely outcome: mitigated damages as above. It is very dangerous to exaggerate matters when commencing proceedings. It has the likelihood of doing long term harm. This case should have been drafted differently.