Employment and Migration Blog

Crashing and burning

Posted by Stephen Booth on 7 May 2012

There was a flurry of media attention in 2008 when Vivienne Dye launched claims against Commsec and the Commonwealth Bank, alleging persistent predatory sexual harassment (in some instances alleging conduct amounting to rape) by 2 named managers. The managers’ reputations were trashed.

 

However, in the long run it is Ms Dye who has crashed and burned, as the Federal Court dismissed all her claims last month, after a case lasting 94 hearing days!  The decision includes many details which would seem far fetched if you read them in a novel, including Ms Dye attending a work party wearing a white fur G-string – as you do!

Among the matters which sank her claims was the timeline of when she alleged sexual misconduct occurred, and what emails, phone messages etc showed was happening at or around that time: a good timeline is very helpful in complex litigation. For example, emails showed that a short time after the alleged rape, she had invited the same manager around to her place on a Friday afternoon, and asked him to bring a bottle of red. Not a good look.

 

The big practical issue this case highlights, though, is the robust (and hideously expensive) defence the CBA had to put up in order to have the truth come out, rather than go for a “commercial” settlement. Usually cases like this have a lot of grey in them, and taking that high road is much more often a risk too far, because you can’t tell in advance how dark will be the grey on your own side after everything has been through the litigation mincing machine. 

 

This one came out black and white: hats off to the employer.