Disgraced lawyer booted over sexual harassment complaint goes on to score VPS job

By Melissa Coade

Tuesday April 13, 2021

Michael McNamara will lead Victoria’s new digital transformation agency.
Michael McNamara will lead Victoria’s new digital transformation agency. (Image: Treasury Gardens, Melbourne. Adobe/Greg Brave)

The transition of a lawyer accused of sexual harassment to a new role in the Victorian Public Service (VPS) raises questions about the efficacy of a complaints-based system in the workplace.

On Monday The Australian reported that a former Allens lawyer had been asked to leave its Melbourne office due to a sexual harassment incident at a Christmas party nine years ago. According to the report, he was allowed to remain at work for an additional five weeks until a piece of litigation was finalised. 

The senior lawyer now works for the VPS. A legal representative of the unnamed lawyer told The Australian that the man’s “departure from his former employer is a matter which is confidential to him”. 

It is a scenario that is familiar to many workplaces — a colleague who is complained against and departs under a cloud of alleged wrongdoing — and the sneaking suspicion that the next organisation they are about to join has no idea of the potential risks of this new hire.

The weakness of Australia’s complaints-based system in the workplace was admonished by Professor Louise Chappell from UNSW Sydney following the government’s response to the [email protected] report last week. 

“If the perpetrator moves on, then what have you got left? You can’t sack them because they’ve moved on, and that’s really the only tool in your toolbox,” Professor Chappell told The Mandarin

A complaints-based system is what Professor Chappell describes as a ‘limiting process’ because it reinforces power imbalances that allow people to get away with sexual harassment in the first place. 

Currently in Australia there is no positive duty for employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. The government’s roadmap also recognised that under present arrangements, “addressing workplace sexual harassment is complex and confusing for victims and employers to navigate”.

Sex Discrimination Commissioner Kate Jenkins recommended that this be changed with law reform (recommendation 17 of the [email protected] report) so that a positive duty on employers be included in the Sex Discrimination Act. She reiterated last week that she was ready to assist government with evidence provided to the National Inquiry as they further assessed the recommendation. 

“It will be a missed opportunity to not introduce a positive duty to take reasonable and proportionate measures to eliminate sexual harassment,” Jenkins said in statement.

For the current complaints process to work, it also depends on both the victim and alleged perpetrator remaining employed in their workplace. Professor Chappell observes this is another way victims are disadvantaged by the process. 

“If you are sexually harassed [at work], you have to have the wherewithal to complain about it and you are already in a less powerful position.

“If you’ve left that company, or the public service or parliament house or wherever you’re working, then the sanctions are weakened in a way. It’s much harder to address the impunity issues,” she says. 

Allens was approached for comment but referred The Mandarin to a general statement that was published on their website about incidents of inappropriate conduct at the firm. 

The statement notes that the approach to ‘stamping out’ harassment at the firm has, and will continue, to evolve. The law firm also took the position that sexual harassment is unacceptable and said a swift investigation would follow any allegation.

“It’s important that our people feel empowered to raise complaints, be supported when they do so and have transparency regarding the consequences imposed on those who engage in misconduct,” the statement said.  

“We are taking action to build a better, more holistic approach for preventing and responding to sexual harassment.”

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