New South Wales Court of Appeal affirmed the decision of the NCAT in Anti-Discrimination Act case
Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147
Summary
On 19 July 2021, the New South Wales Court of Appeal affirmed the decision of the New South Wales Civil and Administrative Tribunal (NCAT) in favour of the respondent, Ms Yelda and dismissed the appeal by Vitality Works Australia Pty Ltd (Vitality Works). The Court found that no error on question of law was shown.
Facts
Ms Yelda was a customer liaison officer employed by Sydney Water Corp (Sydney Water) since 2004. Vitality Work had been contracted by Sydney Water to devise and deliver the Safe Spine Campaign to the Sydney Water Workforce.
In September or October 2015, Ms Yelda was called to a job where a water main had leaked into a residential house. She met an employee of Vitality Works there who was present at the site for the purpose of taking photographs for use in a work health and safety campaign (the Safe Spine Campaign). Ms Yelda agreed to have her photograph taken for the purpose of that campaign.
Vitality Works designed and produced a poster containing a photograph of Ms Yelda in which Ms Yelda is smiling and holding her right arm up above her head and her left arm by her side. There is a large caption above the photograph which says, “Feel great - Lubricate”. The word “lubricate” is the largest and thickest of any word on the poster with an exclamation mark. The poster was displayed outside the men’s toilet and the lunchroom at the Sydney Water Ryde depot at the direction of Vitality Works.
While she agreed for her photo to be taken for the Safe Spine Campaign, Ms Yelda was not informed by Vitality Works that the words “Feel great - Lubricate” would appear on the poster with her photograph.
When Ms Yelda saw this poster in April 2016, she felt humiliated by it. On 3 July 2018, she commenced proceedings against Vitality Works and Sydney Water in NCAT alleging sexual harassment within the meaning of the Anti-Discrimination Act 1977 (NSW) (the Act).
At first instance, NCAT determined that both Vitality Works and Sydney Work contravened s 22B of the Act, as their conduct of preparing the poster containing a photograph of Ms Yelda was found to be sexual harassment. On 30 April 2021, NCAT awarded Ms Yelda $100,000.
Vitality Works and Sydney Water appealed against the finding on liability. However, on 13 October 2020, the NCAT Appeal Panel dismissed the appeals.
Decision
Vitality Works submitted that there was an error in the application of law by NCAT when determining whether the poster carried a sexualised meaning. It argued that NCAT wrongly rejected its subjective intention in creating the poster and failed to assess whether the poster, by reference to its words or images, were “sexually explicit”. It argued that something more than the use of the word “lubricate” was necessary to impute a sexualised meaning to the poster and Vitality Works would need to have engaged in conduct giving rise to the double meaning. Furthermore, it submitted that there was nothing sexualised in the content of the photograph as Ms Yelda was just doing an exercise recommended to prevent workplace injuries in the photo.
The Court considered s 22A of the Act, which provides:
22A Meaning of “sexual harassment”
For the purposes of this Part, a person sexually harasses another person if —
(a) the person makes an unwelcome sexual advance, or an unwelcome request
for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in
relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The Court held that whether Vitality Works engages in “other unwelcome conduct of a sexual nature” in relation to Ms Yelda is a question of fact having two parts.
Whether the conduct of Vitality Works is “unwelcome” is a subjective question, judged from the perspective of Ms Yelda who was subjected to the conduct.
On the other hand, whether the conduct of Vitality Works is “conduct of a sexual nature” is to be ascertained objectively.
The Court noted that the ambit of “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits which do not appear in the legislation. The Court then referred to the following passage which was quoted by Vitality Works in its submissions (Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, Federation Press, 2018) at 640):
The [Sex Discrimination Act 1984 (Cth)] definition of “sexual harassment” strikes a balance between competing interests by providing some protection to unthinking and unwelcome, but genuine, suitors, and to people who engage in horseplay, by requiring proof of an objective element which evaluates the behaviour in question from the perspective of the reasonable person.
The Court determined that the concept of conduct found to be “horseplay” in the above passage should not be immune from being characterised as “sexual conduct”. The Court clarified that it is a “serious error” to contrast “horseplay” with “other unwelcome conduct of a sexual nature”.
The Court stated that in the context of wording of the statute, the subject matter, scope and purpose of the Act, the subjective intention of Vitality Works is not relevant in determining whether its conduct is “other unwelcome conduct of a sexual nature”. The Court also added that if the subjective intention of the alleged perpetrator of sexual harassment was relevant in any sense, it would go against the societal policy, because the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult it is to prove the conduct as sexual harassment.
The Court highlighted that context is important in determining whether particular conduct can be described as “other unwelcome conduct of a sexual nature”. Thus, as societal norms change over time, whether a particular form of conduct is conduct of a sexual nature can vary over time.
The Court found that the poster of Ms Yelda has a sexualised meaning when considered objectively, as found by the NCAT Appeal Panel “that Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs, which gives her sexual pleasure”. The fact that the poster may also carry another message as part of the Safe Spine Campaign (which the Court noted was not obvious) was beside the point. It was significant that the positioning of the photograph of Ms Yelda’s outstretched arm and fingers draws further attention to the word “lubricate”.
The Court highlighted that “other unwelcome conduct of a sexual nature” under the Act should capture other conduct which is not sexually explicit in nature, such as innuendo, overtone, undertone, horseplay, a hint, a wink or a nod. In a separate judgment, Justice McCallum stated that:
[t[]he suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.
The Court also clarified that the second element of sexual harassment, being that a reasonable person having regard to all the circumstances would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the conduct of Vitality Works is an objective test. Therefore, the fact that there were no adverse comments or complaints in the past made by anyone who saw the poster containing a photo of Ms Yelda, was irrelevant to determination of the objective question.
Commentary
The Court dismissed the appeal brought by Vitality Works. The Court concluded that the poster that was designed and prepared by Vitality Works had a sexualised meaning under the s 22A of the Act. Vitality Works was liable for its conduct and ordered to pay Ms Yelda’s costs of the application for leave to appeal and the appeal.
Importantly, Justice McCallum’s interpretation of “unwelcome conduct of a sexual nature” as not being limited to conduct that is sexually explicit supports that implicit unwelcome conduct of a sexual nature can amount to sexual harassment under the Act.
The full case can be read here.
Caitilin Watson is a Special Counsel and Nathan Hedges is a Graduate at Law at Wotton and Kearney.