In recent years, disputes between aggrieved employees and their alleged corporate tormentors have attracted significant media interest. That attention has been courted through deliberate case-management strategies adopted by legal representatives who unashamedly rely on the media as part of a proactive campaign to advance their clients’ claims.
Engaging the media has become a common tactic, aiming to exert reputational pressure on employers and force them to settle claims to protect further damage to their brand and reputation. Running a case in the press, in our opinion, is done with a view to avoid running a case in court, where the salacious facts would be subsequently tested and scrutinised.
Two recent cases, with contrasting outcomes for the applicants, have quite telling lessons for employers.
Kristy Fraser-Kirk and David Jones
Kristy Fraser-Kirk, a former employee of David Jones, filed a headline-grabbing $37 million punitive damages claim (linked to corporate profit and said to be destined for charity if the claim succeeded) in the Federal Court against David Jones, its former CEO Mark McInnes and named members of the board. From the outset, Fraser-Kirk’s lawyers and publicist pursued an aggressive media strategy, such as timing the lodgement of the claim to coincide with the David Jones spring–summer fashion collection launch.
The national and international media coverage of the case – Fraser-Kirk v David Jones Ltd and Ors (2010) 190 FCR 325  – drew comment from Justice Flick, who noted that the parties should avoid making submissions in the style of a “media release” and criticised Fraser-Kirk’s legal team for making allegations that relied on evidence from witnesses who had not yet provided consent to participate in the litigation, a situation described by his Honour as “truly disturbing”.
The matter settled for $850,000 within months, but with a trial pending. Perhaps unsurprisingly, the $37 million punitive damages claim did not form part of the settlement, and charities were denied that promised windfall gain.
Vivienne Dye and CommSec
A similarly aggressive media strategy resulted in a very different outcome for the applicant in Dye v Commonwealth Securities Ltd.
Details of Vivienne Dye’s sexual-harassment claims against two senior managers at CommSec were published in major Australian newspapers, based on a 181-page document provided by her representatives. It was only several months later that Dye commenced legal proceedings in the Federal Court.
CommSec was highly proactive in publicly responding to the newspaper articles, commenting that Dye had only raised the allegations after her work performance had been questioned. It also didn’t shy away from making clear that the allegations had been internally investigated and found to be unsubstantiated.
Almost three years after the claims were first publicised, Justice Buchanan of the Federal Court of Australia found in favour of CommSec and awarded $5.85 million in indemnity costs. The judge was scathing about Dye as a witness and said her media strategy was “very badly judged, highly damaging and was executed with a callous disregard for the interests of anybody else”. His Honour further commented that it had served only to achieve “the possible destruction of [the applicant’s] own employability”.
Leaving aside the facts, there is a major difference between these examples: Dye got to trial and Fraser-Kirk did not.
The trend continues
These contrasting experiences highlight the level of risk involved in pursuing an aggressive media strategy. However, this hasn’t deterred similar tactics being employed by others, as witnessed in the Ashby-Slipper litigation or Sally Berkeley’s claim against Pacific Brands.
What, then, is the lesson that employers should learn from the cases that have already played out on our airwaves, television screens and newspaper pages?
The days of ‘no comment’ are over
The impact of the 24-hour news cycle – particularly on corporate brand and reputation – cannot be doubted. In this context, employers may need to offer more than a ‘no comment’ or vanilla responses to media inquiries. This may involve developing procedures for collaboration between in-house legal and media teams. Or, aggressively adopting litigation strategies, such as seeking interlocutory relief for abuse of process or confidentiality orders to protect commercially sensitive information. Plainly enough, the best approach will depend on the individual facts of each case.
Any steps to engage the media must recognise the risks involved of escalating the dispute in the public arena, and the way a court will view such behaviour.
Nevertheless, trials by media are here to stay; employers must learn to deal with such tactics and be prepared to do more than simply await their day in court.