Duty of care: what the Geoffrey Rush trial means in the workplace

However, in climactic legal irony, the newspaper's recklessness has now wounded a second reputation. In the course of the hearing, a dignified woman was thrust into the courtroom and not by her own choosing. Though not a party to the proceeding, Eryn Jean Norvill was called by The Daily Telegraph to publicly testify about workplace interactions that she had privately disclosed to a trusted colleague and which were later reportedly revealed to the newspaper. Justice Wigney noted of this in his judgement that '(s)he was essentially dragged into the spotlight..'

That Norvill should have had to take the stand at all after the tabloid first profited from and so badly misused her confidential workplace communications is a stony salute to the mechanics of law in Australia. Having done nothing more than quietly discuss aspects of her workplace to a "senior and responsible person" as noted by Justice Wigney, she has been subjected to a humiliation deeper than many. In the course of the public trial between a man and a newspaper, the court found she was not "an entirely credible witness".

The price of fairness for Geoffrey Rush will be settled at a later date before Justice Wigney in the Federal Court. The amount payable by The Daily Telegraph will likely far exceed the aggravated damages of $850,000 already specified. However, there won't be equivalent damages awarded in this matter to Norvill for the entirely avoidable toll this trial has taken on her owing to failed workplace process. Justice Wigney set out this failed process:

"When she first raised her concerns about Mr Rush's behaviour with Ms Crowe in April 2016, Ms Norvill made it clear that she did not want to make a formal complaint. It appears that she did not want to speak publicly about her experiences. Nor could she have expected that she might have to give evidence about her experiences one day."

That Norvill continues, by her public appearances outside court, to be swathed in grace and dignity despite the structural injustice of this situation is tribute to her core strength. Justice Wigney also acknowledged that Norvill was an "intelligent, articulate and confident" witness - again, testament to her character in the context of unjust circumstances. Norvill has shown herself to be a quintessential "steel magnolia".

The outcome for the actress as an employee must strike at the heart of every workplace manager and employer around the country. Whilst not the focus of a defamation trial, the Sex Discrimination Act 1984 (Cth) stipulates every Australian employer owes a duty of care to ensure a safe and healthy environment is upheld for all employees. This law has been interpreted in a suite of Australian common law cases that confirm that this legislative duty includes the provision of confidential processes for communicating workplace concerns as they arise, and with suitable efficiency.

Norvill herself said on the steps of the courthouse after the judgement against The Daily Telegraph was handed down: "It has to be possible for a young woman working in the theatre who feels unsafe in her workplace to get that situation fixed." In fact, this is not only possible but it is required of the duty owed by all Australian employers. The Australian Human Rights Commission Code of Practice provides guidance for employers about how to respond to even informal complaints (as was the case in this matter).

The code stipulates employers should "address complaints in a manner which is fair, timely and confidential" in accordance with "the principles of natural justice". But this inherent protection afforded to all employees was swept from Norvill when The Daily Telegraph received and misused information about her confidential communication, thereby commencing a process of "trial by media", which she did not ask for. In the same way, the fundamental principle of natural justice was also swept from Rush, whose evidence stated in part:

"The moment I became aware of rumours of a complaint I immediately phoned and spoke to senior management at the Sydney Theatre Company asking for clarification about the details of the statement. They refused to illuminate me with the details ..."

There is a lesson here for employers. There is a balance to be struck that has to accommodate an employee's right to raise a concern and for principles of procedural fairness be applied in the course of resolution. The failure of due process can have devastating effects. For Norvill and for Rush, the consequences were unusually dramatic. As Justice Wigney noted in his judgment:

"It plainly would have been better for all concerned if the issues that arose in the saga that played out in this courtroom in October and November last year had been allowed to be dealt with in a different way and in a different place to the harsh adversarial world of a defamation proceeding.

But they were not. And so it comes to this."

It should never have come to this, but this case now becomes a clarion call. Employers must take seriously their duty of care to effect fair and proper complaint processes. Employers must also ensure the dignified treatment of all employees to whom this duty is owed. And, like Norvill, employees must continue to give voice to workplace values, consistent with the lawful right to do so with confidence. Ultimately, it's as the late Dr Maya Angelou explained:

"... dignity means that I deserve the best treatment that I can receive. And that I have the responsibility to give the best treatment I can to other people."