JENNY BROCKIE: Hello everyone, good to have you all here a tonight. Brian, you were fired for sexual harassment, you've asked to use a different name tonight, what did you do to get fired?
BRIAN: There was a young lady who was flirting with me at work. I asked her for a cup of coffee, if she wanted to go for a cup of coffee with me, me. She went down to the human resources department and complained of sexual harassment. They called me into the office and sacked me.
JENNY BROCKIE: Now it wasn't just that one incident that you were sacked for though, it was a three strikes policy, wasn't it, where you worked?
BRIAN: There were three incidents prior to that. The first one was that some months or perhaps years prior to that there was another young lady who was flirting with me over a period of weeks and months. I didn't have anyone to turn to, to ask, you know, what should I do, how do I resolve this? So in the end I wrote her an email, an email basically said yes, you're playing on my mind, I can't stop thinking about you whenever I come to work. You know, if there's something going on between us could you please let me know and if there isn't, please just state there isn't and I'll be able to move on.
JENNY BROCKIE: Okay.
BRIAN: She of course went to the human resources department and complained about what was said and then I was viewed seemingly as a pervert within the organisation.
JENNY BROCKIE: Now when you say these women were flirting with you at work, what do you mean by flirting?
BRIAN: I mean looks and glances and things like that. On one occasion, for instance, the first young lady involved saw me through a crack in the door and shouted "hello gorgeous" and then ran and got the lift to another floor. On another occasion the other young lady involved sat down on her chair and as she sat down on her chair she let her skirt ride up right to the top of her thighs.
JENNY BROCKIE: Why did you think that was flirting?
BRIAN: Because I do, that's what I think flirting is. It's difficult to determine what is and is not flirting but what I'd like to find out is what's the correct way of dealing with it. What is the right way to find out whether it is flirting or not.
JENNY BROCKIE: Were these people junior to you or on the same level as you were in the company?
BRIAN: The first one was a receptionist and the second one that I've mentioned was an administrative capacity.
JENNY BROCKIE: So was she junior to you as well?
JENNY BROCKIE: Okay, and what about the third incident?
BRIAN: The third incident was that we worked in an office block, the office block had mirrored glass windows in it. On one occasion there was a young couple found a excluded spot just under the office building and started to get all kissy and lovey with each other and they were seemingly oblivious to the fact that there was a fifteen storey office block full of people watching them doing what they were doing. And of course we found that a bit amusing but there was a woman in the workplace who complained about that. She went straight to the human resources department and I was given a written warning for going over to the window and laughing about it.
JENNY BROCKIE: Were there other men there?
JENNY BROCKIE: And were they complained about?
BRIAN: No, just me.
JENNY BROCKIE: Why do you think they weren't complained about if you were all joking and you were?
BRIAN: The possibility was that the woman who complained about me had at some point prior come over to my desk, pulled her top down to relieve her cleavage and shaken her chest in my face and I of course wasn't impressed by that.
JENNY BROCKIE: There seems to be an extraordinary number of women in this office doing things like that. Over what timeframe did that all occur?
BRIAN: Several years.
JENNY BROCKIE: Several years?
BRIAN: Yes. You know it is not unreasonable to think that women are flirtatious I don’t think. I mean I worked for the company for several years and that was three occasions. I mean, one of…the third person I mentioned was not flirting with me at all, so technically speaking there were only two over a number of years.
JENNY BROCKIE: Were there other complaints about you in other workplaces?
BRIAN: Ah no. I say that hesitantly because there's been other occasions where people have flirted with me in the workplace. On one occasion, for instance, there was a young lady and she complained about the way I looked at her so I had to then work in that workplace without actually looking at that young lady in question. But there wasn't any disciplinary action taken about that.
JENNY BROCKIE: So what do you think sexual harassment is?
BRIAN: Well, I mean sexual harassment implies that it's harassment of a sexual nature. You know, harassment such as, you know, I'd like to see your chest or, you know, do you mind just popping into the stationery cupboard and picking something up off the floor, or innuendos and sexual innuendos like that.
JENNY BROCKIE: Have you reflected on your behaviour as a result of all these complaints?
BRIAN: Of course, but the implications to me are now that I never, I haven't got any faith or trust in women. I'm unlikely to ever have a relationship with a woman again because I'm tired of being misinterpreted about what is flirtatious and what isn't.
JENNY BROCKIE: Now you thought that you were unfairly treated?
JENNY BROCKIE: So you took action?
BRIAN: I did.
JENNY BROCKIE: For unfair dismissal, yes?
JENNY BROCKIE: And there was a settlement, a small settlement around that?
BRIAN: There was, yes. I thought that was unfair at the time as well because when I was unfairly dismissed I was given a small amount of money which wasn't anywhere near what we'd previously been told women would be entitled to if they proved that sexual harassment did in fact exist.
JENNY BROCKIE: Liz, definition of what sexual harassment is, because there's been a bit of argument around this?
ELIZABETH BRODERICK, SEX DISCRIMINATION COMMISSIONER: Yes.
JENNY BROCKIE: About what actually constitutes harassment, sexual harassment?
ELIZABETH BRODERICK: So it is, as I said the legal definition, unwelcome sexual - conduct of a sexualised nature which offends, intimidates or humiliates. So what could that be? It could be leering and staring on a continuing basis. It could be emails, sexualised emails or sexting. It could be unwelcome cornering, kissing and hugging. It could be intrusive questions about your personal life, your sex life. For example, if I ask you did you have a
good weekend, that's okay, but if I go on and say well, did you get any? Then maybe you've crossed the line at that point.
So the other thing I think people don't understand is if you're out at a nightclub with workplace participants, if you're out at the, you know, conference or the drinks party or indeed if you're sitting in a taxi with workplace participants, under the recent, you know, jurisprudence the fact is all those places are in connection with work, and if sexual harassment happens in any of those places it's still within the legal definition and unlawful.
JENNY BROCKIE: Kim, what do you think it is? What sort of things make you feel uncomfortable and what do you consider unwelcome advances?
KIM: I would agree with that definition, if somebody approaches me and I say no and they don't take no for an answer, then I would see that that would start to stray into harassment territory rather than just an office flirting or somebody showing that they're interested in me.
JENNY BROCKIE: So the saying no is critical?
JENNY BROCKIE: And has that happened to you often, that sort of thing?
KIM: It has happened on a couple of occasions. I had a colleague who would send me pornographic images via email basically to see my reaction.
JENNY BROCKIE: And they became more and more explicit?
KIM: Yes, yes, they did. At first I just said no, mate, and then I realised that the primary thing that he was trying to do was get a raise out of me, some kind of reaction, so I felt at the time the best thing to do was to just not react at all. So I tried and I could hear him chuckling to himself in the cubicle beside me. So eventually it got to the point where one email in particular I thought this is not appropriate at all, I've had enough of this.
JENNY BROCKIE: Can you give us an idea of what it was like?
KIM: It was several ladies, several naked ladies putting corn where corn doesn't normally go and so I just turned around to him and said: "Look, why would I want to see this? Why would I want to see tits? You know, if I really want to I can look down. Actually you've got a pretty good pair, you could look down too." And he went bright red, laughed to himself and that was the last thing that I heard.
So to me if I'd reported it, it wouldn't have gotten him to question his behaviour. I felt the best way to handle that situation was to try and diffuse it with a bit of a joke but to let him know no, that's not okay. I just wanted it to stop. I didn't like it, I found it uncomfortable and offensive but I never felt physically threatened.
JENNY BROCKIE: Emma, I know that you define sexual harassment quite broadly, don't you? Do you want to explain why and what you consider to be sexual harassment?
EMMA LINTON: I do take a bit of a broader view. I honestly think it's any conduct that is unwelcome and makes you feel uncomfortable. So any time that you're getting comments on, you know, your body or your, you know, your clothes or your personality or whatever it is, I think that that's straying into, you know, not work territory so I think that could be defined as harassment.
JENNY BROCKIE: So someone says nice skirt or you look great today, would you be uncomfortable with that?
EMMA LINTON: Obviously there's an element of intention, you know, how it was it meant, how was it said? But if it's constant, so if every single day, you know, you're turning up and the same gentleman's going great skirt, great dress, you know, great heels you can see how that starts to be quite belittling and you know he's not looking at you as a colleague or as a worker, as you know, a smart intelligent person, he's looking at you as someone who wears a skirt.
JENNY BROCKIE: Brian, what did you want to say?
BRIAN: I wanted to say that, you know, I'm very concerned about words like unwelcome because you don't actually know whether it's unwelcome until you've asked the question. I think key to this is the issue of intent. Was it their intention to say something which they would reasonably expect to be unwelcome? We’ve all heard what men shouldn’t do, how you don’t like this and you don’t like that – what should men do? There’s no definition in my workplace about – you know – what should I do if I’m attracted to someone in the workplace.
JEMMA EWIN: You shouldn't shop at work Brian, there's a very fundamental question that you brought up with, it would be a lot easier to go on RSVP and not create unwelcome circumstances in the office.
BRIAN: It's just unrealistic.
JENNY BROCKIE: Why is it unrealistic?
BRIAN: Because you should be able to go out with your colleagues.
JENNY BROCKIE: Leo, you're a business writer, you've been very outspoken about this, some talked about the industry around some of these issues. Why are you so outspoken about it?
LEO D'ANGELO-FISHER: Well, it can be an industry. I mean you get, as the issue becomes more prominent you get more consultants, trainers, who pretty well get on the band wagon and so I'm suspicious of any band wagon effect. Which is not to suggest that sexual harassment is not a problem, it is, it's a very serious problem. It's, it's behaviour that suggests a dysfunctional workplace culture and where I'm often concerned about the approach to sexual harassment in the workplace that tries to take a broad brush approach is that the nuance fails, there's not an understanding of why it takes place, who is offended, why they're offended and how in an organisation where you have people interacting you try to limit that sort of behaviour, if not eradicate it all together.
JENNY BROCKIE: Can I ask just the audience in general the number of people who know of it happening? Who have friends or people they know who've had it happen to them? A show of hands?
ELIZABETH BRODERICK: Every woman in this place putting their hand up. I mean that's a stark reality. As I travel around this nation and I did a focus group just last year actually, and in that group 50 percent had already experienced behaviour which I would define as sexual harassment. And it was interesting, it was one woman, she said to me, she said look Liz, if my uncle does it I know it's not okay but if it's my boss or my manager or a co-worker, maybe that's just the way the workplace is and I have to put up with that?
JENNY BROCKIE: But Leo, you described, you know, the report of Liz's, you described that the results of that survey as the latest example of the self-flagellation of a gender that consumes society?
ELIZABETH BRODERICK: Off the Christmas card list, isn't he?
LEO D'ANGELO-FISHER: There are too many of these surveys. Now, you know from the agency that might be one of the more credible ones but every business association puts out some very questionable research that comes up with the basic figure, there's a lot of sexual harassment in the workplace.
JENNY BROCKIE: So you think it's being overstated, do you?
LEO D'ANGELO-FISHER: No, I think it's been turned into a series of boxes to be ticked and ticking boxes never solved anything in business.
JENNY BROCKIE: Jane, you're President of the New South Wales Bar Association. How common is sexual harassment in legal circles?
JANE NEEDHAM SC, PRESIDENT NSW BAR ASSOCIATION: Well I hesitate to say this but we have a survey, well the most recent one was actually done by the Law Council which is the peak body of lawyers throughout Australia and what they found was that 24 percent of the women in law generally reported sexual harassment, whereas 55 percent of women at the bar, and so to me that is a really concerning figure.
JENNY BROCKIE: How many women reported it?
JANE NEEDHAM: I haven't got that figure but the reporting rates are extremely low now.
JENNY BROCKIE: At the bar?
JANE NEEDHAM: Well at the bar they certainly are. People don't report it.
JENNY BROCKIE: And why don't they report it?
JANE NEEDHAM: Again, I think it comes down to power. The bar is a very unusual structure of a workplace. We are very much structured in terms of seniority so the older you are the more powerful you are and women only make up 20 percent, and I think all of those things go to make it a difficult environment in which to structure a welcoming, welcoming way for people to report that abuse.
JENNY BROCKIE: Has it happened to you?
JANE NEEDHAM: It has.
JENNY BROCKIE: What happened to you?
JANE NEEDHAM: Well, I think almost every woman I know at the bar has a story of the unwanted approach, particularly we work late at night, we work one-on-one very much. What happened to me I was a bar function, I was leaving and a Judge was also leaving at the same time. He had had a very good time at this particular function and he tried to kiss me on an escalator and I ducked and he got his tongue in my ear and, I know, and it was a very difficult for me because I was quite junior, I think I was about 28 or 29 at the time, I'd been at the bar for a couple of years and he was a Judge before whom I was appearing the next Tuesday.
JENNY BROCKIE: So what did you do?
JANE NEEDHAM: I gave him a cold shoulder and left and hoped that he wouldn't hold it against my client later.
JENNY BROCKIE: That's really interesting because you're conflicted because you know that you're representing your client in front of him?
JANE NEEDHAM: Yes.
JENNY BROCKIE: So the option of reporting him for it didn't even cross your mind?
JANE NEEDHAM: Not even, no, I've told people but that's very different from reporting it.
JENNY BROCKIE: And did you think about reporting him later?
JANE NEEDHAM: No. He's now long, long retired and it wasn't really until I started working in the Administrative Decisions Tribunal as a member who heard cases of sexual harassment that came before it that I really realised that it have been reportable conduct, and that sounds incredibly naive of my but I was quite young.
JENNY BROCKIE: And Gabrielle, this reflects what you were concerned about in the surgeons area as well. I mean it's a very similar…
DR GABRIELLE McMULLIN: Very similar.
JENNY BROCKIE: .. pattern, isn't it? The younger trainees?
DR GABRIELLE McMULLIN: It's a very similar hierarchy and it would be impossible for a young trainee to have a conversation, a personal conversation and try and point out the error of that man's ways. That would immediately make sure that they got a bad report. So it very much impacts or your career progression.
JENNY BROCKIE: Michael, you've represented, you know, people in some of the high profile cases in Australia. Do any industries or workplaces stand out for you in terms of this being a problem?
MICHAEL HARMER, HARMERS WORKPLACE LAWYERS: Well, while we're on our own industry I certainly agree that the bar is a bit of a bastion of male domination and sexual harassment. If I move across to accountancy, I'd put them almost at the top of the list. Some of the leading firms in the country, that are meant to be masters of risk management have some of the worst cultures that I've come across.
JENNY BROCKIE: And when you say worst cultures, what sort of things, because again it gets back to, you know, definitions and what we're talking about here in terms of harassment?
MICHAEL HARMER: Sure. Look, it ranges from events at the workplace where the employer will heavily indulge employees in alcohol, where there will be often sexual entertainment, where liberties will be taken, young people hit upon by senior partners in that power imbalance context. It involves young women being present when that sort of entertainment is utilised on deals they're working on as a professional and all too often it involves the question then being popped, when the client takes a fancy to the young practitioner, either an accountant or lawyer, to take one for the team. Put your body on the line.
JENNY BROCKIE: Mandy, you worked in investment banking for more than ten years, did you see much of the kind of thing Michael was describing?
MANDY McEVOY: I saw a lot of it Jenny but fortunately for myself, I was able to diffuse it a lot. Having this conversation, saying that that's not appropriate. That, you know, I'm not interested in you in that way and perhaps being able to explain why. So, it would be typically after work drinks, whether it be a Thursday or a Friday or a Saturday night where the boys perhaps continued the behaviour a little bit into excess.
JENNY BROCKIE: There is going to be a certain amount of romancing and flirting and hitting on and all that sort of thing and that's what I'm interested in. You know, where those lines are, where it's a little bit blurred.
ELIZABETH BRODERICK: Well in Australia, I mean under the definition of sexual harassment if I look at a legal definition, and we're talking about unlawful conduct here, yeah, you can ask someone out at work, you can you can flirt at work, all those things are possible provided it's consensual.
JENNY BROCKIE: Consensual, yeah.
ELIZABETH BRODERICK: That's really at the heart of it.
JENNY BROCKIE: But sometimes people don't pick up signals?
ELIZABETH BRODERICK: No.
JENNY BROCKIE: Perhaps Brian, what happened to you, you just read all the signals wrong?
BRIAN: No, I've had that experience as well. I was out at a work function one night, I was clearly by myself and we went to a restaurant and the waitress walked in and out of the room a dozen times during the course of the evening. At the end of the evening I asked her if she'd like to join us, you know, if she'd finished her shift or whatever and she scowled at me and walked off.
JENNY BROCKIE: But if a waitress…
FEMALE: She was being hospitable.
JENNY BROCKIE: But a waitress is going to walk in and out of the room a lot?
JENNY BROCKIE: And she's going to be smiling a lot.
BRIAN: I was sat, I wasn't sat directly in her line of sight but wherever she went in the room, every time she came in the room she would look in my direction and smile and I think that I'm entitled to ask the question under those circumstances because there's certainly some ambiguity. I certainly believe women are divisive when it comes to that type of thing.
JENNY BROCKIE: What about this business of flirting, Catherine, and how people interpret what flirting actually is?
CATHERINE CAHILL, HR CONSULTANT: Look, that's the $64,000 question, it's probably been asked of me more than anything and in some organisations, and I've seen it, certain people can behave in a more flirtatious way than other people and get away with it and the same as some people are better looking than other people. I don't know why but people don't take offence at the way they behave, and then there are other people who perhaps don't have quite the same social skills who may appear to be saying and doing the same thing but someone feels uncomfortable.
JENNY BROCKIE: So what are the most common scenarios that you come across with sexual harassment?
CATHERINE CAHILL: To me there's definitely two different types. There's one that's very much the power based sexual harassment so it's somebody who's in a position of power and is, because of that position, they're making moves on people who are in weaker positions in the organisation. That's one type of scenario and that's very much about power and I have to say that what I am seeing in the last ten years is because, as more women move into those powerful positions, women are also perpetrators. This is not men against women, it's about power, okay?
The other category that I see a lot is the office romance gone wrong and people have been together, mutually, quite happily, one partner calls it off, the other partner can't quite cope with that and keeps chasing after the person at work and because it's inside the workplace, then that's sexual harassment, and so you know, someone like me has to sit down with them and say I'm really sorry, I know you've got a broken heart but they're not interested any more. You have to back off.
JENNY BROCKIE: What about the issue of what constitutes flirting though and how people perceive whether other people are interested in them or not? I mean do you get many examples coming to you where you think somebody might be say deluded about the fact that ...
CATHERINE CAHILL: Look, I have to say that's probably the most, one of the motion excruciating conversations you have to have as a HR person is to sit down with someone who genuinely believes they're devastatingly attractive to this person who is half their age and say, I know you think you're being flirtatious, I know you think you're very engaging and witty, but this person's not interested and they're actually feeling quite harassed. And to watch that person's face fall and some people don’t get that.
JENNY BROCKIE: But some person's face may fall when you say that but does the behaviour change?
CATHERINE CAHILL: More often than not, yes, so in my experience …
JENNY BROCKIE: But it has to get the point of a complaint?
CATHERINE CAHILL: In my experience, yes. If the person genuinely not trying to cause harm, the person really thinks they're being very attractive and flirtatious, the other scenario where the person is really a sexual predator then no, they won't take any notice of what I've said. They will deny that what I've said is true and they will justify their behaviour.
JENNY BROCKIE: Okay, let's talk about your case Jemma because you were awarded $476,000 in a sexual harassment case. You'd been working as an accountant. Tell us how the harassment started?
JEMMA EWIN: Yes, it was Easter, the person had been in the employment, in our employment at our company for four weeks and I was home for Easter and my husband and I were not long been married. I fell sick and I was at home doing work from home and he obtained my phone number off a fax and started ringing me at my home phone asking me could he come and cook soup for me, was my husband home. You know, he couldn't afford, you know it's so sad that you're sick, we miss you so much, like benign, skin cringing comments, which I was like no thanks, I don't need you.
JENNY BROCKIE: So it escalated?
JEMMA EWIN: It escalated.
JENNY BROCKIE: Comments escalated?
JEMMA EWIN: Yes.
JENNY BROCKIE: To what?
JEMMA EWIN: On the Monday evening before this happened on the Friday I'd noticed my boss's light had gone out in the hallway and we were the last two in the building and at that point I thought oh, just don't feel right about this. And he hitched up his trousers and started walking behind my desk and I said what are you doing? And he said I just want to have a look at the lights of the casino out the office window from behind your desk and I said oh look, you know, I think if you're done just go. He goes no, no, I'd like to get a picture of the view where I fuck you over your desk. And, you know, I'm going to fuck you over your desk and you're going to like it and you're not going to say no.
JENNY BROCKIE: Were you in a position to sack him?
JEMMA EWIN: No, no, my boss, I went to my boss and said look, and he just said look, we have to get over your antics, he's only here for twelve weeks, you know, why bark when you've got a dog to bark for you, this is my boss's comment. Make him meet deadlines.
JENNY BROCKIE: So you complained about him fairly early in this process?
JEMMA EWIN: Yes, I went to my boss and I said look, there's something about him and that was on the week before this happened and I arrived after popping off to Price Waterhouse Coopers and another KPMG for tax or something. I came in late and it was like a bomb had gone off in the office. This particular individual had gone into the CEO of our organisation, who is a man of presence, an older man, somebody that has stature.
He walked in and told the CEO that he felt like he was being racially vilified in the office. I said he has not said one thing to me about this. I have no idea why he's gone into the CEO and had a blow up. He goes well he's your staff member, keep an eye on him. I just said look, I'm having trouble making him meet deadlines, I'm having trouble making him stick to the program that I've given him. I'm having trouble making him report to me and he said, you know, the day I have to do your job is the day you go. So I thought okay, he's here for twelve weeks and…
JENNY BROCKIE: So this was ratcheting up and up?
JEMMA EWIN: Up and up.
JENNY BROCKIE: He's ratcheting up the sexual comments to you?
JEMMA EWIN: On the Tuesday after he switched all the lights out in the office. I was the most senior person in the office, I was waiting for him to go so I could lock up and he went to the mail toilets and he came back, turned the hallway lights out, he turned the lights out outside my office and he turned out my office so the whole office floor was in pitch black darkness. And he came across and tried to touch my hand and make me turn off my computer saying, you know, we should go out dancing. And I just said, you know, get away from me. You know, shoved him and he goes I'm going to have an affair with you. Like no, no, I'm recently married.
He says you're unhappy in your marriage; I said no I'm not, I'm happy in my marriage. I think about, I think about fucking you at work all the time, I masturbate in the group shower that you use. I always use the showers after you. I masturbate at home about you. I said look, I don't know what I've said or done, I'm not interested in you.
I grabbed my things and he followed me, I walked up the main street and there's cameras all up and down the street and we got to a darker area where the lights were out and he grabbed me and shoved me against, grabbed me by the coat and threw me against the wall and tried to kissing me and I've shoved him and said don't ever touch me again and got to the train and got home.
On the Wednesday he says to me again, you know, what are you going to do to keep me happy? If you want me to deliver this piece of work on type so that you can get your accounts out on time and you meet your deadlines for your job you're going to have to do things to keep me happy. And he'd just look at me and come and stick his face in my face and my other employee would walk in and he'd just sort of move across or grab a pen or grab a folder. It was a real and I said I'm not going to do anything, you're going to do your work, you're going to do your journals, you're going to do what you're supposed to do and you're here now for six months and that's what's going to happen.
At this stage I'm feeling exceptionally frightened. I didn't want to come to work. I've got this person saying, you know, I've got a big dick and I'm going to split you in two and you're going to like it. It just wasn't - I was under immense pressure to deliver financial statements by 30 June. We were moving buildings as well, it was a torrid time workload wise which happens to all of us but I believe that a sexual predator came to my workplace, he was vetted by an international recruitment company despite having a problem in his previous contract. I believe that what happened to me on that Friday night was premeditated.
JENNY BROCKIE: Can you just briefly tell us what happened on that Friday night.
JEMMA EWIN: Yes. What happened, we were having a meet and greet between the new accounting teams at Melbourne Aquarium. Everyone was sent an invite. By this stage I was exceptionally frightened and did not want to be in the office by myself, I'd made sure I didn't stay in the office for the rest of the week. I'd spoken to my boss on the Thursday and I just said I don't know that I can do the six months, I don't know that I can do this, and he just said well you have to. There's no one else and you have to. I said right. On the Friday I was wearing three quarter length pants and knee high black boots but they were the same as my other ones.
JENNY BROCKIE: I find it extraordinary you're even feeling you have to describe what you were wearing.
JEMMA EWIN: I think for me a lot of the time afterwards I asked, and I think this is very reminiscent of people who have been sexually assaulted, who have been stalked, you know, what did I do something to encourage this, you know?
JENNY BROCKIE: So you went?
JEMMA EWIN: I went to the work function and what happens was the function was double booked, so basically at 6 pm, we got there about half past 4, 6pm basically it as all packed up and we moved across the road to a hotel about twenty of us. I was the most senior executive that went across to the pub. It was my first social function with my team because I'd been up in the Queensland closing down, so why on earth I would write myself off to the point I couldn't stand up is beyond me but I maintain that I was drugged. To this day I have a memory where I went to the toilet, I vomited, I'd collapsed and I couldn't speak according to other witnesses. Went to the toilet, I came out, he threw me against the wall and that's my last memory. He dragged me out of the side of where everybody was and I just vanished. All my things were left there, nobody noticed I was missing.
JENNY BROCKIE: So your memory from that moment you lost over two hours of time?
JEMMA EWIN: Two hours and twenty minutes is the duration of what went on in my office, which was the next block along. So basically…
JENNY BROCKIE: And when you came to after that two hours and twenty minutes?
JEMMA EWIN: I came to and I was standing outside of the hotel where I had previously been with all these people and I looked inside and there was nobody there and a woman, a barmaid opened the door and just kind of handed my things and said these are yours and I'm like, yeah?
JENNY BROCKIE: And you were bleeding?
JEMMA EWIN: Haemorrhaging, yes. And then the next memory I have I've been put into a taxi and he's slammed the door and he's just standing there. I have the taxi receipt. I have no memory of going home and the next day I woke up with significant injuries. Like I had whiplash, you know, significant muscular injuries as well as internal injuries. I felt like I'd been thrashed.
JENNY BROCKIE: Now in the civil case the Court found that he engaged in unwelcome sexual intercourse with you?
JEMMA EWIN: That's correct.
JENNY BROCKIE: And engaged in other unwelcome sexual activity with you and that formed part of the decision around the pay-out?
JEMMA EWIN: Yes.
JENNY BROCKIE: And the finding of the Court but there wasn't a criminal case, there wasn't a rape case as such. There were no charges laid. Did you go to the police about it?
JEMMA EWIN: Yes I did go to the police. I reported it to the police and I also attended for…
JENNY BROCKIE: But some time later, it was about a month later that you went to the police?
JEMMA EWIN: I spoke to the police within two weeks and in that two weeks I think I was, I think I was in shock. I'd lost a significant amount of blood and I didn't get to the doctor until two weeks later to be tested for STDs and AIDS and things like that.
JENNY BROCKIE: And the police investigation didn't proceed?
JEMMA EWIN: A full police investigation occurred. They were the ones who basically highlighted to my workplace that they needed to do something and it wasn't until the police requested swipe card information that HR actually became involved. I told my boss what had happened and the next day, on the Monday I tried telling him and he told me that he'd never had the pleasure of being sexually harassed in the workplace because he'd been hit with the ugly stick and laughed at me. By the time two weeks after that that HR were involved, I was given a parable by HR and no offence, HR sometimes are risk mitigaters.
CATHERINE CAHILL: I know.
JEMMA EWIN: She gave me two parables. She said to she's knows somebody, something funny happened at work and I'm like some funny hasn't happened at work. You know, we all have little things happen and we don't tell our husbands and I'm like no, that's not what happened. You know, she had a friend, one, that reported it to police and she lost her marriage, she lost her kids, she lost her house. The other one just got on with life and she's still married, she's still got her kids and she's still got a house. Now HR didn't arrange for me to go to police. In fact once the police arrived it was very obvious my workplace were not supportive.
JENNY BROCKIE: And you went to the Human Rights Commission as well?
JEMMA EWIN: Yes. As far as the police goes, DNA was taken and DNA was matched so his semen all over my boots, all over my clothes, smeared amongst other things, was linked so he was arrested and interviewed for six hours, of which the transcript involves fucking her like an animal and…
JENNY BROCKIE: So he agreed he'd had sex with you but claimed it was consensual?
JEMMA EWIN: Right at the very end. He'd said fondling and kissing may have happened, he's not sure. He can't remember. Gee, I can't help you with that but when they brought out the DNA swabbing he certainly remembered. He claimed it was consensual.
JENNY BROCKIE: How are you now?
JEMMA EWIN: Um, to say that I've won Australia's landmark case in the civil system, which is where the victim sues the perpetrator and wins in the Federal Court and then taking it to appeal and then winning again, the perpetrator has now tactically declared himself bankrupt so that will probably leave me out of pocket over $650,000.
JENNY BROCKIE: Is he working?
JEMMA EWIN: Yes he is. He's now working at another company on another maternity leave placement, managing female staff.
JENNY BROCKIE: Are you working?
JEMMA EWIN: No, I haven't worked since, since December 2010. But I do look forward to going back to work now that it's all finished in some way.
JENNY BROCKIE: And you have PTSD?
JEMMA EWIN: Yes, I've been diagnosed with post traumatic stress disorder and a part of that, I've been working with my psychologist in understanding that every time you have to go before Courts again and go through the gruesome details of the injury again, the sexual harassment and just that reeling feeling that sets in, it's not been easy.
JENNY BROCKIE: So how are you right now, right this minute, going through it again?
JEMMA EWIN: I feel like I've turned a page. I've done all that I could do to bring a perpetrator to account in the criminal system, in the civil system, in the human rights system. The fact that our laws in Australia then allow him to bankrupt himself and not pay his dues and what our legal system says, I don't consider that justice has been done. I question the hollowness of my, my successful win.
JENNY BROCKIE: If you had your time over again, in terms of what to do in a situation like this, would you complain and take it through the court system?
JEMMA EWIN: I think if I had my time again within the workplace, I would, I would exhaust all options of trying to find somebody who validated my experience of being sexually harassed.
JENNY BROCKIE: Liz, your response to this?
ELIZABETH BRODERICK: I mean, yeah, my first response is that it takes courageous women like Jemma speaking out to actually create change in our society. But there's no question that you know, when you do speak out you pay the price.
JENNY BROCKIE: The other thing I'm interested in this story and why I asked about you how it started is that it started small, relatively small?
JEMMA EWIN: Yeah.
JENNY BROCKIE: And escalated very quickly?
JEMMA EWIN: Very quickly.
JENNY BROCKIE: Gina, tell us about what happened to you when you were working in the law?
GINA: I was in a support role in a law firm. There was a man in a senior position not in my team but on the same floor. We always got along really well, we'd just have playful banter, I considered him a friend. We'd been working together for about two years or so and then there was a work Christmas party and I wasn't drinking because I had exams coming up; he definitely was. He acted really physically inappropriate towards me.
JENNY BROCKIE: In what way?
GINA: Touching me in ways that I wasn't comfortable with, put his hand up my dress, just in view of other people but not in a way that other people were doing anything or saying anything about it. So I didn't know how to react at the time. I was really upset about it and the next day at work I saw him in the office and he was like hey, Gina how are you? I just looked a bit confused.
He was a bit taken aback and sort of caught me in the corridor and said oh, did something happen at the Christmas party? And I said oh well, yeah, funny you mention that. So I had to explain in detail how inappropriate his actions were. I didn't know what to do. I felt so embarrassed about having to explain to the person who did what he did, and he, he was really upset. I put it down to a lot of different things and then I started to question well maybe I encouraged it. Maybe what I was wearing made him think that it was okay to take it that step further. So I didn't do anything about it, because I thought it had been dealt with and I thought I was really happy with the way things had been handled until six months or so later, very similar incident happened again at a work function.
JENNY BROCKIE: He touched you inappropriately again?
GINA: Yeah. So again he called me the next day, he said oh, I'm so sorry, I don't know what's wrong with me but don't worry, I've just resigned. So I thought well there's no point me even saying anything about it because the problem's going to be gone.
JENNY BROCKIE: And he was superior to you?
GINA: Yeah, not in the same department.
JENNY BROCKIE: And popular?
GINA: Very popular, very well liked. He was charming, very good looking, everyone loved him including, including my manager who I respected hugely and she was an excellent manager, I didn't want - stupidly I didn't want to cause any trouble for him. He was married, I didn't want to, um, make things bad for him even though it was uncomfortable for me. I thought well I've dealt with this twice now.
JENNY BROCKIE: Where did that leave you though?
GINA: Pretty dissatisfied.
JENNY BROCKIE: Do you think you'd do anything differently if it happened again?
GINA: I, I would love, in hindsight to say yes with all the knowledge that I have now but I don't think that I would. I don't want to, I wouldn't want to bring myself under scrutiny about how I act, how I dress, how I am perceived in the workplace. I'm there to do be a job, I want to be respected for my work and I also like to be like. I didn't want, because this guy was so popular, I thought me causing trouble with him would look badly on me. So I don't think I would.
JENNY BROCKIE: Gabrielle, you recently hit out at male surgeons very strongly and you said you've advised surgical trainees to give in to sex with their trainees rather than complain about it for the sake of their careers. You know, that's since been very heavily qualified by you in terms of what you meant but what you were effectively saying is don't call it out?
DR GABRIELLE McMULLIN: Yes, the problem is that you are affecting your career if you do call it out and what I find interesting is a lot of the male surgeons that I've spoken to since then have said what they advised their daughters to do is never to complain to HR or the organisation, but to hit the guy.
JENNY BROCKIE: To hit the guy?
DR GABRIELLE McMULLIN: Hit the guy.
FEMALE: A direct action approach.
DR GABRIELLE McMULLIN: Yes, direct action and violent.
JENNY BROCKIE: Michael, you've taken on some big organisations but you've also attracted criticism for some of your tactics, particularly using the media the way you do. Why do you use the media the way you do?
MICHAEL HARMER: We just try and redress the gross imbalance whereby major corporations who care more about their brand than about the way they treat their people have to add up the damage to that brand that could be undertaken if a case like this does get to court. And the reason why we raise that with them is because the court system is so hopeless, it is complaint driven, it's very difficult to get through and we've got a very male dominated judiciary. So it's sometimes a threat rather than the actuality of taking it publicly in court can achieve an outcome when you're dealing with a major brand.
So when you're dealing with extreme cases it takes extreme measures. I've seen too many women lose their careers through this sort of conduct, good, solid professional women, and if you look at statistically the importance of women entering leadership in the world and the way we're failing in that regard, one of the major barriers is the prevalence in Australian society and Australian business of sexual harassment and if it's not turned around through real responsibility being booked on the corporation, rather than responsibility on an individual to complain about something so difficult, then the law in this area is not going to achieve anything at all.
JENNY BROCKIE: How good are HR departments at dealing with this?
MICHAEL HARMER: Look, it ranges, obviously we've got …
JENNY BROCKIE: Something personal Catherine.
MICHAEL HARMER: We've got some very good HR managers obviously in the audience but it's very disparate, there is no accreditation requirements in Australia.
CATHERINE CAHILL: I've been involved in situations with organisations where the result of the investigation, the person has absolutely without a shadow of a doubt behaved completely inappropriately and really shouldn't be in to the workplace any more and I've senior people say well, this person's too important, we can't afford to lose them and I've been directed to negotiate a settlement with the person who is the victim. And I think people say, you know, HR should fix it but HR need to have powerful sponsors in an organisation to be able to do what they're supposed to do.
JENNY BROCKIE: Well if the harasser is senior in the company?
CATHERINE CAHILL: And if the harasser is senior…
JENNY BROCKIE: And you're an HR executive on an executive with the harasser, I mean how likely are you going to be to call on it?
CATHERINE CAHILL: Yeah.
JENNY BROCKIE: Or if they're deciding your salary as a HR manager and your conditions?
CATHERINE CAHILL: The first time I ever did that I didn't understand the politics of it. I went to a more senior person and said this is the problem and within six months I was made redundant in the role. So…
JENNY BROCKIE: That's interesting?
CATHERINE CAHILL: I now understand, I understand politics much better than I used to in organisations. You do need to get a senior person to sponsor you if you are going to go in on these matters.
JENNY BROCKIE: What do some of the men in the room think of these stories and what we've talked about here. Yes?
MALE: I work in the IT software industry and I don't deny it, I mean the nerds don't have a reputation for social skills, awkward moments happen. But I personally have not experienced anything but if some of these horror stories that I hear happened, one tenth of it happened in my workplaces no one would have tolerated that.
JENNY BROCKIE: Okay, some other views from men in the room, yes?
MALE: I've got a friend who's a junior and she has to keep clients and the clients have to be happy and so she's pushed from the senior people to actually do whatever to maintain the clients. And so I think that with sexual…
JENNY BROCKIE: What do you mean do whatever?
MALE: Like have sex or, or um, do anything. There's one story where one, I think the female had to be on a lying down and he would eat sushi from her. She has never spoken up about that because she feels embarrassed and stuff. So I think that it's scary being in that situation and having to deal with future career developments because…
JENNY BROCKIE: What have you said to her, what have you advised her in that situation?
MALE: Um, I've said basically just to speak up to peers that you're close to in the office if that's easy.
JENNY BROCKIE: Emma, you call people out frequently, has it affected your reputation do you think? Has it affected the way you're viewed in the workplace?
EMMA LINTON: I'm not sure. I'm lucky in that organisation has a lot of senior women that I respect very much and that I would always feel I could go to. Perhaps I'm seen as a troublemaker among the senior men but I think there's enough senior women that it wouldn't impact me.
JENNY BROCKIE: Do senior women make a difference though Catherine because you said that you're seeing it happening with women…
CATHERINE CAHILL: No, I'm not going to say unequivocally but I have seen cases where it's senior women preying on junior men and junior women. So to me…
JENNY BROCKIE: So does that mean it's more about power?
CATHERINE CAHILL: It's power. That particular type of harassment comes from power. So there's, there's the power, there's the relationship gone wrong at work and then there's the sexual predator. So it's all coming under the one umbrella but the behaviours can be quite different and the way you deal with it has to be quite different.
JENNY BROCKIE: iz, do you think having more women in management positions would shift this or not?
ELIZABETH BRODERICK: Yes, I do, absolutely. Because I think once we get greater levels of diversity and that's starting with gender diversity but moving out, we build more inclusive cultures and when we build more inclusive cultures, aberrant behaviour like this has no place. So I do think…
CATHERINE CAHILL: I'm not saying that it wouldn't make a difference and believe me we need to have more women in management because they're talented and they deserve to be there but it's not the only answer. The answer comes back to and many people have said it, it's respect and it's the values in the organisation.
JENNY BROCKIE: Brian, you wanted to say something?
BRIAN: Yes I do. I'd just like to say that I don't support or condone sexual harassment in the workplace. My sympathy goes out for the victims of sexual harassment that we've heard from tonight. My only concern is that the law also needs to be seen to be fair to men. It's men's culture of expectation that they'll be proactive in romance and sometimes women are dishonest about it.
JENNY BROCKIE: Alright, Gabrielle, there are two enquiries underway in the medical profession. Do you think they'll make a difference as a result, you know, of the comments you made and the issues you raised about a particular colleague and her career?
DR GABRIELLE McMULLIN: Yes.
JENNY BROCKIE: Do you think those enquiries will make any kind of difference?
DR GABRIELLE McMULLIN: I mean I was very pleased. Initially there was complete denial that the problem occurred in surgery but I am concerned that it is not going to make a difference. I do believe that the most important thing is to have more senior women in the organisation and I really see that as the only way forward that's going to produce the sort of change in culture that we want.
JENNY BROCKIE: Anyone else have ideas about what might change the culture around this? Jane?
JANE NEEDHAM: I've been, I've been president now for a year of the Bar Association and I've spent most of that time trying to bring in a whole raft of changes, both top down, bottom up. And part of that is trying to include more diverse people coming to the bar, women staying at the bar and women going forward in their careers at the bar and so it's a really multifaceted approach and you're right, it does need leadership, it does need champions.
JENNY BROCKIE: Jane, how would you deal with that Judge if, you know, tomorrow you were in the same situation, the Judge with his tongue in your ear and you're appearing before him on Tuesday?
JANE NEEDHAM: I have to say I have thought long and hard about that. I would probably be more direct to him and say words to the effect it's not on and consider what I would do. I would probably, again given that I was before him the next Tuesday, not do anything at that point but the Judges are also subject to professional conduct requirements and it might be something I would take up. I really don't know.
JENNY BROCKIE: Okay, we do have wrap up I'm afraid. That is all we have time for tonight. Thank you all very much for joining us here on Insight but we will keep talking on Twitter and on Facebook about this.