Sasha Borissenko: Russell McVeagh scandal two years on - lots of talk, very little action

Dame Margaret Bazley releasing the findings of her independent report on Russell McVeagh at the firm's office in Wellington in 2018. Photo / Mark Mitchell

COMMENT:

It's been exactly two years since I worked on the Russell McVeagh scandal. The #metoo movement - as evidenced by the painfully drawn out Weinstein case, is arguably suffering audience fatigue. I know I'm certainly tired of barking on about the maltreatment of women.

In a legal context we've seen a lot of statements promising change and a lot of inquiries, but there's been little evidence - other than after-work drinks being rendered to a thing of myth and legend - to suggest genuine change for the better.

Two years on, I decided to contact the main stakeholders.

First, I contacted Russell McVeagh and asked whether there had been any further complaints of a bullying or sexual nature since February 14, 2018. I went on to ask whether any non-disclosure or confidentiality agreements had been issued at the time, and since, and whether the victims of the scandal had been financially compensated. I also asked how many people had left the firm in the last two years.

Unsurprisingly, the firm didn't speak to any of my questions, instead it issued the following statement:

"Russell McVeagh has come a long way in the past 18 months, and we are proud of what we have achieved since the Dame Margaret Bazley report was released. We have implemented the majority of the recommendations in the report, and are making significant progress on the rest, but naturally we still have work to do. We have taken a careful and considered approach to ensure changes are implemented in a sustainable way and are meaningful.

"We have engaged with our staff throughout the process and are in regular contact with many of our key stakeholders including Dame Margaret.

"While we can't go into details on specific policies and issues you have raised, we are confident that we have robust and thorough processes in place, and that we continue to build an open, inclusive and people-focused culture. We have put in place a number of mechanisms internally and externally to encouraged [sic] a 'speak up policy', which includes a confidential whistleblower service that is independently monitored."

According to one staff member (who chose not to be named): "From my perspective there's the same hierarchy as there always was, where certain people in positions of power have a say and others don't. People mysteriously disappear, we aren't told of what's happening or how things are going to improve. It's really frustrating."

It should be noted that one of the two alleged perpetrators subject to the scandal still holds a practising certificate but is no longer working at Russell McVeagh.

Since Aotearoa Legal Workers' Union launched in May last year, it's had a number of meetings with the firm, largely focusing on its compliance with time recording and minimum wage obligations.

The reason being due to Dame Bazley's recommendation that the firm develop "... a fair system of days in lieu or payment for overtime [that is] applied consistently, and not left to the discretion of partners", president Morgan Evans said, quoting the report.

"Although we appreciate the complexity of these issues and the fact that the firm is continuing to do work in this space, we have been disappointed to see a lack of progress or any concrete plans to implement overtime and non discretionary bonus policies."

In terms of the report's other recommendations: "the absence of any transparent reporting process means that it is very difficult to determine whether meaningful progress is being made".

"Anecdotally, we understand that many people working at the firm are still doing so for long hours and subject to the same power imbalances that exist in all large law firms and that creates the opportunity for the bullying and sexual harassment highlighted in Dame Bazley's report."

Victoria University students protest against sexual harassment in legal fraternity in March 2018 in Wellington. Photo / Marty Melville

Moving on to the Law Society.

Chief executive Helen Morgan-Banda couldn't comment or confirm whether it had received any complaints, as to do so would be breaking the law.

"The Law Society is committed to transparency and openness in its dealings, but it cannot operate outside of the law. If a complaint raised serious issues, or issues that merited publication, the outcome could be published at the conclusion of the investigation.

"The law around disclosure of information about complaints is one of the matters which led to the Law Society's decision to commission an independent review of its structure and functions. Planning for this review is now underway."

Justice Minister Andrew Little has met with the Law Society on several occasions and has reiterated his expectation that there needs to be improvements in the profession to make it safe, equal, and fair, he said.

While he continues to monitor the progress it's making, he's holding open the option of removing the profession's regulatory function from the Law Society.

"The Bazley report was a disturbing insight into the prevalence of workplace harassment at Russell McVeagh. Whilst I have no influence over the implementation of the recommendations of the Bazley report within Russell McVeagh, I do have a specific interest in the Law Society's response to what is clearly a culture issue."

In a wider context, Little said the Health and Safety legislation makes it clear that all employers are responsible for providing a safe workplace. That includes being free from bullying and harassment. "If it happens they have a responsibility to deal with and prevent it."

According to a WorkSafe spokesperson, the agency has received 16 sexual misconduct concerns since February 2018. Of the 16 concerns raised since 3 July 2019, WorkSafe's response has included referrals to the New Zealand Police and the Employment Relations Authority.

"WorkSafe has also undertaken Assessment work and addressed concerns with employers directly where appropriate. If a crime has been committed or allegedly committed, we advise the complainant to contact the New Zealand Police."

WorkSafe has not prosecuted any companies for sexual misconduct, but it is actively working on building organisational capacity and capability when it comes to handling notifications of this nature.

Meanwhile, the Ministry of Business, Innovation, and Employment provided some sobering figures. Its Employment Mediation Service began collecting voluntary information specifically on sexual harassment in July 2018 for its mediation cases.

In 2019, 74 out of nearly 7,300 Mediation Services applications were coded sexual harassment.

In 2019 the MBIE call centre also received 106 employment related inquiries regarding sexual harassment. As a result, Workplace Relations and Safety Minister, Iain Lees-Galloway has asked the ministry to put together an Issues Paper into the issue of bullying and harassment in the workplace.

Ultimately, a lot of talk, and little action.

We know sexual misconduct is not limited to any one law firm, or one industry, but it seems the only way for there to be real traction, or for the information to be brought to light is if people come forward. If you feel so inclined please do be in touch.

If you've got any tips, legal tidbits, or appointments that might be of interest, please email sasha.borissenko@ gmail.com.