No decision on sexual harassment

A lot has been said about alleged sexual harassment of Colin Craig against Rachel MacGregor.

MacGregor made a complaint alleging sexual harassment to the Human Rights Commission in September 2014. This complaint was withdrawn as part of a mediation process. Craig has since claimed that sexual harassment had not occurred, but there has been no finding on whether what happened amounted to sexual harassment or not.

I’m not aware of MacGregor publicly stating her views on sexual harassment, except for one tweet.

“Colin Craig is trying to frame me as a mistress. There was never a sexual relationship, nor was there consent for his inappropriate actions”.

She has otherwise abided by the confidentiality agreement on this.

Craig has admitted to “inappropriate actions”, he has kept claiming those actions didn’t constitute sexual harassment, but whether it amounted to sexual harassment or not has not been independently determined. The Human Rights Commission did not rule on it.

The mediation was heard in May 2015 and a settlement was reached. From the decision MacGregor v Craig [2016] NZHRRT 6 (PDF, 501 KB):

[5] Following discussion between their respective lawyers, Ms MacGregor and Mr Craig on 4 May 2015 attended a mediation in Auckland facilitated by the Human Rights Commission. The outcome of that mediation was that both the sexual harassment claim and the financial dispute were settled. A settlement agreement styled (at Mr Craig’s request) as a Mutual Resolution Agreement was signed on 4 May 2015 and the documentation recording the financial settlement executed on 7 May 2015.

The just released decision does not rule on whether sexual harassment occurred.

[12] It is necessary to emphasise that the sexual harassment claim having been resolved and settled by the parties at the mediation held on 4 May 2015, the issue before the Tribunal is not whether sexual harassment occurred as alleged by Ms MacGregor but whether the terms of the settlement agreement are to be enforced.

[36] In these discussions Mr Craig was adamant the sexual harassment and financial claims were separate but both prior to and at the meeting Ms MacGregor made it clear she would accept settlement of the sexual harassment claim only if all other matters were resolved. It was on this basis the negotiations at the mediation took place.

[37] The parties eventually reached agreement regarding the terms of a settlement which reconciled their respective fixed positions:

[37.1] Mr Craig would only agree to pay the money owing to Ms MacGregor if the sexual harassment claim was withdrawn. [37.2] Ms MacGregor would only agree to withdraw the sexual harassment claim if Mr Craig agreed to pay her the money she was owed.

[38] While Ms MacGregor accepted Mr Craig wanted the issues to be seen to be separate (he did not want to be seen to be making a “pay off” in respect of the sexual harassment allegations) she did not accept the separation was anything but a way of recording the agreement.

The Human Rights Review Tribunal did not attempt to determine whether sexual harassment occurred or not.

The tribunal’s decision pointed out the imbalance of power in Craig’s use of the media to deny sexual harassment took place.

[126] We accept the submission for Ms MacGregor that far from turning his mind to how little he could damage Ms MacGregor, Mr Craig was controlling the narrative. He was exercising power and control over what was in the media by carefully releasing what he thought would save himself, what he thought would save his position and save his reputation. The released information was selected not after a careful navigation to avoid breaching the confidentiality as little as possible, but to paint himself as a person who had been falsely accused by a woman who was clearly incapable of managing her money and a fair inference was that what she was seeking through the sexual harassment complaint was money. Instead of holding the agreed line and waiting for the media frenzy to abate, instead of going back to mediation or coming to the Tribunal for orders enforcing the settlement agreement (if there was indeed a rational basis for claiming Ms MacGregor was breaching it) Mr Craig chose the most public of stages.

[142.4] Fourth, Mr Craig is wealthy, well-connected and well advised. At all times he has been in a more powerful position than Ms MacGregor. He has used his power and his wealth to conduct a calculated campaign of breaches for the sole purpose of bolstering, or attempting to bolster, his own reputation. He has disregarded his obligations under the Human Rights Act and the settlement agreement.

[142.5] Each utterance has had the effect of diminishing the reputation of Ms MacGregor by portraying her as variously a mistress, a trouble-maker, a woman who cannot manage her own life, a woman with no financial management skills, who is mentally unwell and, in evidence before the Tribunal, a liar and a blackmailer.

[142.6] Mr Craig has breached his obligations repeatedly and intentionally, rendering Ms MacGregor the victim of a series of statements and media events choreographed to portray her in a negative light. She has been unable to exert any control over the timing, nature or extent of those breaches.

MacGregor was the victim of a very public one sided trashing of her reputation in clear breach of the confidentiality agreement.

The Tribunal made a restraining order.

[149.2] An order is made under s 92I(3)(b) of the Human Rights Act 1993 restraining Mr Colin Craig from continuing or repeating the breaches of his confidentiality obligations under the settlement, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach or conduct of any similar kind.

So sexual harassment was alleged, was withdrawn as part of a mediation process, was denied by Craig in breach of a confidentiality agreement, MacGregor has only publicly said “nor was there consent for his inappropriate actions“, she made a complaint about the confidentiality breaches, and now Craig is restrained from any further breaches of the confidentiality agreement.

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