Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda (2020)
Sydney Water Corporation (Sydney Water) engaged Vitality Works Australia Pty Limited (Vitality) to implement a work health and safety program called SafeSpine.
Sydney Water customer liaison officer Ms Yelda and a male colleague were asked to have their photos taken to be used in posters for SafeSpine. The posters were printed and displayed in the workplace, including outside the male toilets. In the poster picturing Ms Yelda, she had her right hand above her head pointing to the slogan: “Feel great – lubricate!”.
The slogan was the most prominent writing on the poster. In much smaller print, the poster also featured the campaign logo and the lines:
- “SafeSpine Injury Prevention Program: We’ve got your back”;
- “Kick off your SafeStarts by warming up the joints”; and
- “Ask a SafeSpine leader or specialist for ideas”.
Ms Yelda lodged an anti-discrimination claim in the NSW Civil and Administrative Tribunal (NSWCAT), alleging that she had been:
- sexually harassed by Sydney Water and Vitality; and
- discriminated against on the grounds of her gender by Sydney Water.
Ms Yelda alleged that the words “feel great” and “lubricate” suggested the use of lubrication during sex. She also claimed the slogan, along with her photo, suggested she was a sex object in her workplace.
Sydney Water and Vitality argued there was nothing sexual about the poster, and that the words referenced lubricating the joints and spine. They argued that the fact that Ms Yelda read it differently did not mean the poster was sexual in nature.
The NSWCAT found in favour of Ms Yelda, and agreed she had been sexually harassed and discriminated against on the grounds of her gender.
The NSWCAT found that the poster did not immediately suggest a work health and safety context, that it was capable of conveying a sexualised connotation, and the poster of the male colleague did not use the suggestive slogan.
Both Sydney Water and Vitality appealed, arguing that it was not their intent for the poster to have a sexual connotation.
The appeals were dismissed on the basis that intent was irrelevant in determining whether, on an objective basis, the conduct was of a sexual nature. NSWCAT also confirmed Ms Yelda had been treated less favourably on the grounds of her gender.
In determining whether an employee has been sexually harassed or discriminated against, a tribunal or court examines the conduct, and how a reasonable person would have viewed it. The intent behind the conduct is not relevant.