What Does the Rush Defamation Case Tell us About How to Manage Workplace Complaints?

The Federal Court (in the case of Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496) has found in favour of Geoffrey Rush and awarded the defamed actor at least $850,000 in damages. While the media are focusing on Ms Norvill’s evidence and questioning Justice Wigney’s ability to assess the complexity of power imbalances in sexual harassment situations I am interested in another angle and that is, the way the Sydney Theatre Company (“STC”) managed the situation.

According to the evidence in the defamation proceeding, Ms Norvill did notify, initially STC’s manager about her experience of Rush in relation to sexual harassment -and she appears to be the only person who made notes (a day after the meeting) in the form of an email she sent to the Executive Director (ED) and Director in relation to the allegations- so far so good. A few days later Ms Norvill met with the Director and the Casting Director but, it appears on the evidence that they did not make any notes of that meeting and it would appear that they did not do anything further about it because Ms Norvill wanted to have an ‘off the record’ conversation with them.

Whether this evidence is accepted or not, it still raises the all too common belief that employees can have an ‘off the record’ conversation with a manager about a workplace issue; they cannot! One of the fundamental concepts I teach managers when they attend my training is that there is no such thing as an ‘off the record’ conversation about a workplace issue. First and foremost a manager has a duty of care to provide a safe workplace and if they believe that the workplace is not safe because of what they have witnessed or been told by another then they must be actively involved in resolving the issue, even when the employee does not want them to. In this situation STC was put on notice that there was the possibility of harm that had occurred and they therefore had a responsibility to ‘check it out’ to establish whether it was a real issue or not. It is unclear on the evidence in the hearing as to whether they did anything further post this second meeting with Ms Norvill.

In addition, Mr Rush was not notified of any allegations made against him by Ms Norvill and when he finally found out about them through a journalist and went back to STC to ask for details he was told they would not be provided to him because the person had requested anonymity. One of the fundamental principles of natural justice is that a person has the right to be informed of the allegations made against him so that he has the opportunity to respond. The company should never have granted Ms Norvill anonymity in the first place.

I wonder how much of Ms Norvill and Mr Rush’s experience would have been different if STC had managed the initial complaint differently. If you want to know more about how to skill up managers to manage workplace complaints in a legally sound and effective manner then contact EEO Specialists.