Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210 (13 October 2020)

Last Updated: 13 October 2020

REASONS FOR DECISION

1. This matter concerns two appeals against a decision by the Tribunal at first instance under the Anti-Discrimination Act 1977 (NSW) (‘the Act’).
2. The Tribunal at first instance determined that both Vitality Works Australia Pty Ltd (‘Vitality Works’) and Sydney Water Corporation (‘Sydney Water’) contravened s 22B of the Act in relation to the display of a poster, which showed a photograph of Ms Yelda, in the Ryde Depot of Sydney Water. Section 22B of the Act deals with sexual harassment. Vitality Works and Sydney Water have both appealed.
3. The Tribunal at first instance also determined that Sydney Water contravened s 25(2)(c) of the Act. Section 25(2)(c) of the Act deals with discrimination against an employee on the ground of sex. Sydney Water has appealed against this determination.
4. The Tribunal’s decision at first instance dealt only with liability, and not with the issue of damages.

Background

5. In 2016, Ms Yelda was a Customer Liaison Officer employed by Sydney Water. She had been an employee of Sydney Water from about 2004. The Tribunal at first instance found that she had worked closely with the field staff, which consists largely of male, blue-collar workers.
6. In September or October 2015, Ms Yelda was called to a job where a water main had leaked into a residential house. She was there because she was training an electrician to become a customer liaison officer. An employee of Vitality Works was present at the site for the purpose of taking photographs for use in a work health and safety campaign called SafeSpine. Ms Yelda agreed to have her photograph taken for that campaign. A male colleague also had his photograph taken at the site that day.
7. Vitality Works had been engaged by Sydney Water to devise and deliver the SafeSpine campaign to some of the Sydney Water workforce.
8. Vitality Works produced a poster with a photograph of Ms Yelda approximately in the middle of the poster. In the photograph, Ms Yelda is smiling and holding her right arm up above her head and her left arm down by her side. The caption above the photograph says ‘Feel great – lubricate!’ The word ‘lubricate’ is in large, thick letters which are light in colour. The word ‘lubricate’ is the most prominent word on the poster. In the top right hand corner of the poster is a logo alongside the words ‘SafeSpine Injury Prevention Program We’ve got your back’. At the foot of the photograph, in much smaller lettering, are the words ‘Kick off your SafeStarts by ‘warming up the joints’ Ask a SafeSpine leader or specialist for ideas’. Under that lettering is the logo for Sydney Water, which comprises the words ‘Sydney Water’ and the logo for Vitality Works with the words ‘Vitality Works’ alongside it and, in very small letters, ‘Sanitarium Workplace Health’ under those words.
9. The Tribunal at first instance referred to the version of the poster with Ms Yelda’s photograph on it as ‘the Poster’, and we will do the same.
10. The Poster was sent electronically from Vitality Works to Sydney Water. An employee of Sydney Water printed copies of the Poster and arranged to have it displayed. It was displayed in the Sydney Water Ryde Depot, where it was placed just outside the men’s toilet and the civil delivery lunchroom.
11. Ms Yelda was not informed that the words ‘Feel great – lubricate’ would appear on the Poster which featured her photograph.
12. Ms Yelda saw the Poster in about April 2016 at the Ryde depot. The Tribunal at first instance found that she felt humiliated by the display of the Poster.
13. It was the evidence of Mr Wallace, the Business Support Services Manager for Service Delivery, Sydney Water, that Vitality Works designed and prepared at least 12 poster templates, three of which bore the slogan ‘Feel great – lubricate’. One of those three designs pictured Ms Yelda. The other two of those designs depicted a group of three men and a group of two men, respectively. It is unclear from the evidence whether the Poster, or the posters with photographs of people other than Ms Yelda, were displayed at locations other than the Ryde Depot. It is clear that posters were distributed, but unclear as to whether they were displayed (see Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203 at [47]- [55] (hereafter referred to as ‘the decision at first instance’)).

The provisions of the Act

14. The Act, in s 22A, 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.

15. The Act, in s 22B, provides, relevantly:

22B Harassment of employees, commission agents, contract workers, partners etc

(1) It is unlawful for an employer to sexually harass—

(a) an employee, or

(b) a person who is seeking employment with the employer.

...

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

...

(9) In this section—

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

workplace participant means any of the following—

(a) an employer or employee,

(b) a commission agent or contract worker,

(c) a partner in a partnership,

(d) a person who is self-employed,

(e) a volunteer or unpaid trainee.

...

16. The Act, in s 24, provides, relevantly:

24 What constitutes discrimination on the ground of sex

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if the perpetrator—

(a) on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex. ...

17. The Act, in s 25(2)(c) provides:

25 Discrimination against applicants and employees

...

(2) It is unlawful for an employer to discriminate against an employee on the ground of sex—

...

c) by dismissing the employee or subjecting the employee to any other detriment.

Grounds of Appeal

Sexual Harassment

Conduct of a Sexual Nature

18. Both appellants, in their notices of appeal, challenged the finding of the Tribunal at first instance that their conduct constituted ‘conduct of a sexual nature’ within the meaning of s 22A(b) of the Act.

What is the relevant conduct?

19. It is helpful, when considering this issue, to set out precisely what the Tribunal at first instance found the relevant conduct of the appellants to be.
20. In the decision at first instance the Tribunal said, in relation to the relevant conduct of Sydney Water:

110. ... We find that the evidence establishes that Vitality Works had authority to display the Poster on behalf of Sydney Water pursuant to its agreement with Sydney Water. In particular, the Brand Manager of Sydney Water, approved the layout and the design, and then Vitality Works, consistent with this approval, was authorised to fill out and display the Poster without any further approval from Mr Wallace being required. This was consistent with the understanding of both Mr Wallace for Sydney Water and Ms James for Vitality Works.

111. Accordingly, we find that the design, publication, display and distribution of the Poster was done by Vitality Works with the approval of Sydney Water by Sydney Water approving the layout and the design and then authorising Vitality Works to display the Poster under its contract with it.

112. Further, we find that Mr Peter Sybra also approved the display of the Poster. He was sent the Poster because Mr Wallace was on leave. His title was North Region Manager of Sydney Water. We note the Poster was on display at the Ryde depot for several weeks without complaint from anyone at Sydney Water suggesting that Mr Sybra had no authority to approve the display of the Poster occurring at the request of Vitality Work. In the absence of explicit evidence on the matter from Mr Sybra or any other witness, we infer and find that he was authorised to approve the display of the Poster on behalf of Sydney Water in his area of responsibility, provided it was under Vitality Work’s supervision, which it was.

113 Further, Mr Ferguson as manager at the Ryde depot also approved the display of the Poster at the Ryde depot. In the absence of explicit evidence on the matter from Mr Ferguson or any other witness, we infer and find that he was authorised to approve the display of the Poster on behalf of Sydney Water at the Ryde depot, provided it was under Mr Sybra’s and Vitality Work’s supervision, which it was.

114. Finally, having found that the Poster was more likely than not actually displayed by employees of Sydney Water and this was within their overall authority to do so pursuant to the request of Vitality Works, Sydney Water is also liable for such conduct pursuant to s.53 of the ADA.

21. Accordingly, the Tribunal at first instance determined that the relevant conduct of Sydney Water was the approval of the layout and design of the Poster and the authorising of Vitality Works to display the Poster at Sydney Water worksites. In addition, the Tribunal found that Mr Sybra, then the North Region Manager of Sydney Water, approved the display of the Poster at the Ryde Depot and that he was authorised to approve the display of the Poster on behalf of Sydney Water, within his area of responsibility, provided that it was under Vitality Works’ supervision, which it was. Furthermore, Mr Ferguson, the Manager of the Ryde depot, also approved the display of the Poster at the Ryde Depot.
22. The Tribunal found, at [104] of the decision at first instance, quoted below at [25], that Sydney Water was jointly engaged with Vitality Works in the publishing, printing, displaying and distributing of the Poster.
23. Sydney Water argued that its relevant conduct ‘was to commission a safety program and relevantly place the finished safety poster (along with various other safety posters) in select (and limited) locations at Sydney Water’s workplaces, where safety messages are ordinarily placed, as part of the “SafeSpine” campaign (to remind the staff of the lessons learnt during their safety training)’.
24. We consider that the description given of the relevant conduct of Sydney Water by the Tribunal is accurate. There is no warrant to limit the description of the relevant conduct of Sydney Water to the conduct selected by Sydney Water for the purposes of its submissions.
25. In the decision at first instance, the Tribunal said, with respect to the conduct of Vitality Works:

99. Vitality Works accepts that an electronic copy of the Poster was sent to Mr Peter Sybra and that it understood Sydney Water may use the Poster to promote the training being carried out by Vitality Works. It submitted, however, that there was no evidence that Sydney Water was required by Vitality Works to use the Poster. Accordingly, it claimed that it could not be found that Vitality Works engaged in the conduct of publishing, printing, displaying and distributing of the Poster. Hence, the claim so far as Vitality Works is concerned must be limited to the design of the Poster, which occurred at its location which was not a workplace of Ms Yelda.

100. The Tribunal rejects this submission. The evidence from Mr Wallace was that there was no requirement for him to approve any of the posters designed by Vitality Works before they were used. This was because the whole process was being managed by Vitality Works at that stage, which was after the Branding Manager of Sydney Water had approved the template contemplated being used by Vitality Works. Further, he stated that “it was up to Vitality Works to fill [the template] out within the confines of the branding guidelines”.

101. Ms McMahon’s evidence was that she gave the Poster to Mr Sybra by sending to him an electronic file, and this was for the purpose of displaying the posters in the workplace, and she understood that he was going to print those posters for this purpose.

102. Finally, there is evidence of an email of 9 February 2016 from Ms McMahon to Mr Paul Ferguson and Mr Peter Sybra. The evidence is that this email requested Sydney Water to print the posters out and discussed putting the posters up in the workplace.

103. In light of this evidence, the Tribunal is of the view that the proper finding to make is that the publishing, printing, displaying and distributing of the Poster was as a result of the joint conduct of Vitality Works and Sydney Water. At the time, Vitality Works was managing the process of the display of the posters and was effectively in charge, with authority to display the Poster itself, if it so chose.

104. It chose, however, to involve the relevant managers of Sydney Water. Those managers, being Messrs Ferguson and Sybra, have not given evidence. We find that their evidence would not have assisted Sydney Water if they had been called. We draw the inference and find that they were involved jointly, with Ms McMahon and Vitality Works, in the decision to display and distribute the Poster, in the understanding that this was under the supervision and direction of the contractor responsible for conducting the training program, being Vitality Works. Thereby, both parties ought be found to have jointly engaged in the publishing, printing, displaying and distributing of the Poster.

26. In summary, the Tribunal at first instance found that Vitality Works was engaged in the publishing, printing, displaying and distributing of the Poster, jointly with Sydney Water. The Tribunal found that Vitality Works created the Poster, provided it to Sydney Water and requested Sydney Water to print and display the Poster, including at the Ryde depot.
27. Vitality Works argued that, in considering its conduct, the Tribunal at first instance wrongly held it liable for conduct in which it did not engage, namely the conduct of Sydney Water employees, including Mr Barclay.
28. Vitality Works submitted that its relevant conduct was:

a. Taking photos of the Respondent;

b. Receiving the Respondent’s consent to use the photo, noting she was advised it “may be used in workshops, posters or smart cards and handouts”;

c. Inserting a photo of the Respondent into a template of the kind the subject of the proceedings (which had been used with at least fifteen 15 other clients);

d. Sending an electronic file containing the poster of the Respondent (as well as other posters of other employees) to Mr Sybra; and

e. Printing and posting on the premises of Sydney Water.

29. However, Vitality Works also submitted that the only conduct which should be taken into account by the Tribunal in considering whether Vitality Works’ conduct was ‘of a sexual nature’ was the insertion of the photo of Ms Yelda into the template of the poster. We reject that submission. There is no reason to confine the Tribunal’s consideration of Vitality Works’ conduct in that way. The relevant conduct of Vitality Works is as described by the Tribunal at first instance.
30. In ground 1f of its grounds of appeal Vitality Works pleaded, and before us it argued, that there was no evidence that it managed the process of printing and displaying the Poster. We reject that submission. The Tribunal at first instance found to the contrary, partly on the basis of the evidence of Ms McMahon, who was, at the relevant time, an employee of Vitality Works, as set out in the extract from the decision at first instance repeated in [25] and [20] above. That finding was open to the Tribunal on the evidence before it. Ms McMahon, in her written statement before the Tribunal at first instance, said that, as a Senior Site Specialist and National Mentor with Vitality Works, she was responsible for delivering the SafeSpine program at Sydney Water. Ms McMahon said that, when delivering the SafeSpine program, her responsibilities were “to deliver and manage the Customisation, Implementation and Sustainability phases of the program”. She then outlined the elements of each of those phases. In relation to the Implementation and Sustainability phase Ms McMahon said, at [14] of her statement:

Implementation - ...Customised posters are were also provided to the relevant client contact(s) for them to post around the workplace...[sic]

Sustainability – the purpose of this phase was to reinforce the SafeSpine messages that had been delivered both in the workshops and also via use of posters and Smart-Cards....

31. Ms McMahon’s evidence was an adequate basis for the finding by the Tribunal at first instance that Vitality Works was managing the printing and display of posters, and that Mr Sybra was under the supervision and direction of Vitality Works when he displayed the Poster. We reject ground 1f of Vitality Works’ grounds of appeal, which asserts that these findings were so unreasonable that they could not be made.
32. As with Sydney Water, we do not consider that there is any valid reason to limit the Tribunal’s consideration of the conduct of Vitality Works to the conduct selected by Vitality Works in its argument before us. The Tribunal at first instance accurately described the relevant conduct of Vitality Works.

Sydney Water’s amended grounds of appeal

33. Sydney Water’s amended grounds of appeal pleaded:

1. The Tribunal erred in finding that Sydney Water contravened s 22B of Anti-Discrimination Act 1977 (NSW) (AD Act). The Tribunal:

1.1 applied the wrong test and or asked the wrong question to determine whether Sydney Water’s conduct was of a sexual nature, within the meaning of s 22A(b) of the AD Act;

1.2 conflated two discrete parts of the test under s 22A: the “sexual nature” of the conduct, and the requirement that “a reasonable person having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated” within the meaning of s 22A(b) of the AD Act;

1.3 construed s 22B such that a sexualised (mis)interpretation which is “reasonably capable” of being placed on conduct makes that conduct “of a sexual nature” where it ought to have inquired only whether the “conduct” of Sydney Water was “sexual” in “nature”;

and consequently erred in finding that Sydney Water’s conduct was “sexual” in “nature”.

1.4 The Tribunal took into account irrelevant factors and failed to take into account relevant factors in determining whether Sydney Water’s conduct was of a sexual nature, within the meaning of s 22A(b) of the AD Act.

1.5 The Tribunal failed to provide adequate reasons for:

1.5.1 its findings at [133], [136] and [140];

1.5.2. why it held Sydney Water’s conduct was of a sexual nature;

1.5.3. why it held Sydney Water’s conduct was “in relation to” the Respondent.

2. The Tribunal erred in finding that Sydney Water contravened s 25(2)(c) of the AD Act. The Tribunal failed to consider whether, and otherwise had no basis for finding that, Sydney Water:

2.1 treated Ms Yelda less favourably; and

2.2 if so, by reason of her sex.

3. The Tribunal erred in finding that Sydney Water approved the Poster.

Vitality Works’ grounds of appeal

34. Vitality Works’ grounds of appeal were as follows:

1. The Tribunal made the following errors of law.

a. The Tribunal applied the wrong test and/or took into account irrelevant factors in determining whether the Appellant's conduct was unwelcome within the meaning of s 22A(b) of the Anti-discrimination Act 1977 (NSW) (ADA).

b. The Tribunal applied the wrong test and/or took into account irrelevant factors to determine whether the Appellant's conduct was of a sexual nature, within the meaning of s 22A(b) of the ADA.

c. The Tribunal failed to give reasons as to:

i. why it held the Appellant's conduct was of a sexual nature;

ii. why it held the Appellant's conduct was "in relation to" the Respondent;

by reference to the legal arguments set out in the Appellant's submissions.

d. The Tribunal took into account irrelevant factors when it determined the circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that the Respondent would be offended, humiliated or intimidated, within the meaning of s 22A(b) of the ADA.

e. The Tribunal applied the wrong test and/or took into account irrelevant factors when it determined the conduct in which the Appellant engaged occurred "at a place that is a workplace of both those persons" within the meaning of s 22B(6).

f. The finding that the Appellant was liable for publishing, displaying and distribution of the Poster including:

i. the finding that employees of the First Respondent were under the "supervision and direction" of the Appellant

ii. the finding that the Appellant was "managing the process of the display of the posters and was effectively in charge"

was so unreasonable it could not be made.

g. The Tribunal took into account irrelevant facts when it made a finding that because the Appellant had authority to display the poster, it was liable in the acts of the First Respondent (Sydney Water) whose employees in fact printed, displayed and distributed the poster.

h. (withdrawn)

i. The finding that the Appellant's conduct was sexual conduct in relation to the Applicant was so unreasonable it could not be made.

2. The Tribunal made the following errors of fact.

a. The Tribunal wrongly found the Respondent was offended, humiliated or intimidated by the Second Respondent's poster from the first occasion she saw it, being on 1 March 2016.

Ground 1.1 of Sydney Water’s appeal and ground 1b of Vitality Works’ appeal

35. Ground 1.1 of Sydney Water’s appeal and ground 1b of Vitality Works’ appeal both plead that the Tribunal at first instance applied the wrong test in determining whether Sydney Water’s conduct and Vitality Works’ conduct, respectively, was conduct of a sexual nature within the meaning of the definition of sexual harassment in s 22A(b) of the Act.
36. Vitality Works also pleaded that the Tribunal at first instance took into account irrelevant factors to determine whether Vitality Works’ conduct was conduct of a sexual nature.
37. The Tribunal at first instance discussed the issue of whether the conduct of the respondents was conduct of a sexual nature at [123]-[129].
38. The Tribunal at first instance determined that the subjective intention of the respondents was not determinative of whether their conduct amounts to ‘conduct of a sexual nature in relation to the other person’. The Tribunal said, at [124]:

The test must be objective. A respondent cannot escape liability on the basis that he, she or it did not intend the conduct to be of a sexual nature or to be in relation to the other person.

39. The Tribunal said, at [123]-[129]:

123. Ms Yelda’s view of the Poster is not determinative of whether it amounts to “conduct of a sexual nature in relation to the other person”. “The characterisation of conduct as sexual harassment cannot depend upon the subjective response of its object except insofar as the section requires it to be unwelcome”: Hall v A & A Sheiban Pty Ltd [1989] FCA 72; [1989] 20 FCR 217 at 277 per French J.

124. Similarly, the subjective intention of the Respondents with respect to the Poster is also not determinative of whether it amounts to “conduct of a sexual nature in relation to the other person”. The test must be objective. A respondent cannot escape liability on the basis that he, she or it did not intend the conduct to be of a sexual nature or to be in relation to the other person.

125. In Johnson v Blackledge [2001] FMCA 6 at [84], Driver FM held that it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way. Similarly at [89] it was held that it is not necessary for an applicant alleging sexual harassment to be the conscious target of the conduct, and that an accidental act can therefore constitute harassment.

126. Accordingly, we reject the submission of Vitality Works that the conduct in question cannot be viewed as being either “of a sexual nature” or “in relation to” Ms Yelda because its intention was for the Poster to not have any sexual characterisation and also to be “in relation to” several people, both men and women, where similar posters were used rather than simply in relation to Ms Yelda. The issue must be determined objectively by the Tribunal construing the particular Poster in question.

127. The content of the term “of a sexual nature” in the ADA must take its meaning from its context. Its context includes s.22A(b) of the ADA, referring to sexual advances or requests for sexual favours: Poniatowska v Higginbotham [2009] FCA 680 at [294] [sic]. It involves conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour: Poniatowska at [294]. It is not necessary or appropriate to set the outer bounds of "conduct of a sexual nature": Poniatowska at [294].

128. Sexual harassment can be perpetrated through the engagement of a wide range of behaviours, including touching and verbal comments: Hooper v Mount Isa Mines Ltd (1997) EOC 93-879. Sexually explicit and derogatory graffiti in respect of an employee has been held to constitute sexual harassment: Hunt v Rail Corporation of New South Wales [2007] NSWADT 152. Similarly, there have been several cases that have established that exposure to pornographic or sexually explicit posters in the workplace can constitute a form of sexual harassment: Hooper v Mount Isa Mines Ltd (1997) EOC 93-879; Hunt v Rail Corporation.

129 Accordingly, in our view, the display of a poster in the workplace of an employee, if it makes sexually suggestive remarks about an employee, or holds up such employee to possible embarrassment or humiliation of a sexual nature, can amount to sexual harassment of the employee in question and would also satisfy the test of being “in relation to the other person’’. The issue is whether this Poster does so in respect of Ms Yelda.

40. The Tribunal at first instance then considered the meaning of the word ‘lubricate’. It set out in detail the argument on behalf of the respondents that the use of the word in the Poster was intended to refer to ‘the lubrication of joints and the generation of synovial fluid’ by the moving of joints as part of an injury prevention program. The Tribunal at first instance also set out in detail Ms Yelda’s argument that the use of the word ‘lubricate’ is likely to indicate to many male workers who view the Poster the use of lubrication during sexual acts, and, in conjunction with Ms Yelda’s photograph on the Poster ‘conveys the imputation that Ms Yelda is a sex object within her workplace’. The additional words ‘feel great’ were said to add to the sexual connotation. The Tribunal at first instance said at [138]-[143]:

138 The key aspects of the Poster in our view are the following. First, there is the prominent display of her image as the sole person on the Poster with her smiling appearance, her hand outstretched directing viewers to the prominent text “Feel great – lubricate!”. These words are sizeable relative to the other words on the Poster. Second, these words and the Poster as a whole do not immediately suggest the intended meaning of the generation of synovial fluid upon movement of the joints by Ms Yelda performing a stretching exercise. The fact that the Poster is in a workplace health and safety context is also not immediately obvious on a first viewing of the Poster.

139 Rather, the actual intended meaning of the Poster appears unclear without further explanation. Even when one reads the first line of the poster, which reads "SafeSpine", an ordinary reader would not understand how the outstretched hand and arm position and the slogan, "Feel great – lubricate!", relates to spinal safety. It is only when one reads the very small text under the image of Ms Yelda that there is a reference to "warming up the joints".

140 One immediate impression or meaning that is reasonably capable of being conveyed by the Poster is 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. Further, the phrase “Feel great – lubricate!” and the Poster as a whole, particularly with Ms Yelda’s hand in the air directing viewers to those words, are reasonably capable of conveying the meaning that Ms Yelda advocates that others should do the same.

141 It may be that the ordinary reasonable reader would appreciate that this could not be the intended meaning but, nevertheless, we are of the view that the Poster is reasonably capable of colloquially conveying the sexualised connotation contended for by Ms Yelda as we have described above.

142 We note the Respondents have placed particular attention on the fact that many viewers of the Poster will have attended the training seminars. Accordingly, the Respondents contend that such viewers will understand the intended meaning of the Poster. The difficulty with this submission is that not all viewers of the Poster will have attended those seminars and this included Ms Yelda herself. Further, even persons who have attended the seminar, in our view, may also take from the Poster the contended for sexualised meaning as an unintended double entendre.

143 Accordingly, and also having regard for the matters discussed in the following section of our reasons, the Tribunal finds that the display of the Poster at Ms Yelda’s workplace is conduct of a sexual nature in respect of her within the meaning of the ADA.

41. It was submitted on behalf of Sydney Water, before us, that Sydney Water’s conduct did not amount to conduct of a sexual nature because Sydney Water’s conduct was simply to ‘commission a safety campaign and allow Vitality Works, as a specialist in this area, to perform its contracted health and safety functions’ (Sydney Water written submissions, paragraph 4). It was argued that the interpretation of the Poster should only occur in the context of the knowledge of the SafeSpine program.
42. We reject Sydney Water’s submission that its conduct was limited to commissioning a safety campaign, or to commissioning a safety campaign and displaying the posters associated with that campaign, for the reasons set out in [20]-[24] above. We also reject the argument that the Poster should only be interpreted in the context of the SafeSpine program. The test of whether the Poster bears a sexual meaning is objective. In any event, the evidence was that only a subset of Sydney Water employees undertook the SafeSpine program.
43. For the reasons set out in [26]-[32], we reject the submissions on behalf of Vitality Works that its conduct was limited to less than the conduct the Tribunal at first instance attributed to it.
44. Vitality Works argued that the decision of the Administrative Decisions Tribunal of New South Wales in Coleman v Bentley [2002] NSWADT 87 stands for the proposition that a poster such as the Poster must be ‘sexually explicit’ in order for its display to constitute sexual harassment. That proposition does not appear in the decision in Coleman, although examples of conduct which have been found, in other matters, to constitute sexual harassment were listed in the decision (see paragraph 28) and were described as involving ‘sexually explicit comments written on walls and equipment’ using the complainant’s name (Hopper v Mount Isa Mines Ltd (1997) EOC [92-879]) and ‘sexually explicit comments about a previous employee during a pre-employment interview’ (B, C and D v Stratton (1997) EOC [92-883]). Examples of conduct found in previous cases to constitute sexual harassment which did not include content which was ‘sexually explicit’ were also given in Coleman. There is no requirement as a matter of law that a poster such as the Poster contain content which is ‘sexually explicit’ in order to constitute conduct of a sexual nature or sexual harassment under the Act.
45. Vitality Works relied on the decision of the Federal Magistrates Court of Australia (as it then was) in Johanson v Michael Blackledge Meats [2001] FMCA 6. In that matter the accidental sale to a customer, as a bone for her dog, of a bone which had been attached with a skewer to another bone by a butcher’ assistant and altered to resemble male genitalia, was alleged to constitute sexual harassment of the customer under the Sex Discrimination Act 1984 (Cth). Vitality Works argued that the decision in Blackledge was authority for the proposition that the sexual nature of the conduct complained of must be the product of a conscious decision. However, the Court said, in Blackledge, at [84]:

Clearly, the sale of an ordinary dog bone is not conduct of a sexual nature. However, the provision of a dog bone shaped so as to resemble a human penis is conduct of a sexual nature. The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way. ...

46. We reject the submissions of Vitality Works that its conduct was not conduct of a sexual nature. It’s submissions on this point are inconsistent with the test for conduct of a sexual nature being an objective test.
47. In Stanley v Service to Youth Council Incorporated [2014] FCA 643, in the context of a matter involving an allegation that a termination of employment during unpaid parental leave was a breach of the Sex Discrimination Act 1984, White J said, at [84]-[85]:

84. Section 28A(2) elaborates the expression “conduct of a sexual nature” to make it plain that it includes statements of a sexual nature, but the SD Act does not otherwise define the expression. In context, it appears to connote conduct involving or evidencing sexual attraction, instinct, activity or relationships. The expression may have a broad scope, and a wide range of matters may be able to be characterised as constituting conduct of a sexual nature. However, the expression is not without limits. Essentially it requires that the conduct be characterised as sexual, or sexually-related. In Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J said that the term “conduct of a sexual nature” involves “some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour”. Mansfield J did not, however, attempt to set the outer bounds of the expression “conduct of a sexual nature”.

85. Whether conduct should be so characterised is to be determined objectively and does not depend upon the subjective intention of the actor.

48. The intention of Sydney Water and its employees and the intention of Vitality Works and its employees does not determine whether their conduct was ‘conduct of a sexual nature’. The question of whether conduct is ‘conduct of a sexual nature’ within the meaning of the Act is to be determined on an objective basis: that is, from the point of view of a hypothetical reasonable person. The Tribunal at first instance assessed the relevant conduct in this matter on an objective basis and concluded that it was conduct of a sexual nature under the Act. No error of law has been demonstrated to be present in that reasoning.
49. Once it is understood that the test for whether conduct is conduct of a sexual nature is an objective test, the protests of Vitality Works that the sexualised perceptions of the Poster of which evidence was given by Sydney Water employees had been unfairly imputed to Vitality Water and its employees must fall away. The Tribunal referred to that evidence simply as context.

Ground 1.2 of Sydney Water’s appeal and grounds 1d and 1g of Vitality Works’ appeal

50. In ground 1.2 of its amended grounds of appeal, Sydney Water pleaded that the Tribunal had conflated the issue of the ‘sexual nature’ of the conduct and the issue of the requirement that ‘a reasonable person, having regard to all of the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated’ within the meaning of s 22A(b) of the Act.
51. We reject this argument. The Tribunal at first instance dealt with the two issues separately and in detail in its reasons. In the passages quoted above at [39], the Tribunal clearly set out why it is that the display of the Poster constituted conduct of a sexual nature. Following those passages, the Tribunal set out at some length the arguments of the parties with respect to the anticipation of a reasonable person in the circumstances at [143]-[165] of the decision at first instance. In [144], the Tribunal said:

144. We wish to emphasise that simply because a person uses particular words innocently which have no sexual connotation on their literal meaning, but which may colloquially bear a sexualised connotation, this will not of itself amount to sexual harassment under s.22A of the ADA. An important requirement under the Act is that a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the words and/or images used by that first person.

52. The Tribunal in this passage is clearly aware that sexual harassment under s 22A of the Act requires both unwelcome conduct of a sexual nature and the anticipation of a reasonable person, in all the circumstances, that the person in Ms Yelda’s position would be offended, humiliated or intimidated. The Tribunal does not conflate those two elements in discussing whether Sydney Water’s conduct was of a sexual nature.
53. Ground 1d of Vitality Works’ appeal is that the Tribunal took into account irrelevant facts when determining the circumstances in which a reasonable person would have anticipated that Ms Yelda would be offended, humiliated or intimidated within the meaning of s 22A(b) of the Act.
54. The factors asserted by Vitality Works’ to be irrelevant included the size of the Poster and the location in which it was displayed. Vitality Works argued that those matters were the result of decisions made by Mr Sybra, an employee of Sydney Water, and could not be taken into account in assessing the conduct of Vitality Works. We reject this argument. Again, it seeks to limit the scope of the conduct of Vitality Works. For the reasons set out above at [25]-[32], Vitality Works bore responsibility for the printing and display of the poster. There was no suggestion that either the size of the Poster or the location in which it was displayed were beyond the scope of what was contemplated by Vitality Works in its arrangement with Sydney Water. When considering the second limb of the definition in s 22A(b) of the Act, the Tribunal properly took into account the size of the Poster and the location in which it was displayed.
55. Vitality Works argued that a further factor taken into account by the Tribunal which was irrelevant to an analysis of Vitality Works’ conduct in the context of s 22A(b) was the knowledge, imputed to Vitality Works, that it was a predominantly blue-collar workforce which would be viewing the poster. We reject this submission. The SafeSpine program was, by its nature, obviously aimed at a blue collar workforce. The fact that the workforce who would be viewing the Poster was a predominantly blue collar workforce was so obvious that it did not need to be the subject of a specific line of questioning. We note, however, from, for example, the Tribunal’s summary of Mr Znautas’ evidence at [60] of the decision at first instance, that the nature of the workforce, members of which would be viewing the Poster, was discussed in evidence. It was abundantly clear from the evidence that the workforce which would view the Poster was a blue collar workforce and that Vitality Works and the employees delivering the SafeSpine program knew that.

Grounds 1.3, 1.4 and 3 of Sydney Water’s appeal

56. Sydney Water argued that, as a consequence of having conflated the two issues ( see Sydney Water appeal ground 1.3):

...the Tribunal construed s 22B such that a potential sexualised (mis)interpretation by hypothetical persons which is “reasonably capable” of being placed on selected words then makes that, conduct “of a sexual nature” where it ought to have inquired only whether the conduct of Sydney Water was “sexual” in “nature”. For conduct to be sexual in “nature”, the sexual element or aspect must be intrinsic to the relevant party’s conduct, rather than a mere matter of a possible interpretation that some persons might in the future in some circumstances put upon the conduct (written submissions for Sydney Water).

57. We reject this argument. It does not fairly represent the reasoning of the Tribunal at first instance. The Tribunal at first instance clearly determined, in the paragraphs set out above, that the display of the Poster at Ms Yelda’s workplace, viewed objectively, was ‘conduct of a sexual nature’ on the part of Sydney Water. The Tribunal applied an objective test, which is the correct approach. To summarise, the Tribunal determined that, viewed objectively, the words ‘Feel great – lubricate’ on the poster, in conjunction with the particular photograph of Ms Yelda displayed on the poster, conveyed the sexual connotation argued for by Ms Yelda. In its conduct with respect to the Poster, including displaying the Poster at the Ryde Depot, Sydney Water undertook ‘conduct of a sexual nature’ within the meaning of the Act.
58. If Sydney Water is arguing that Sydney Water, or those of its employees who were involved in the printing and display of the poster, must have been aware of the sexual innuendo embodied in the Poster in order for the conduct in displaying the Poster to be conduct of a sexual nature, we reject that argument. We also reject any implication that Sydney Water or its employees must have intended that the conduct convey a sexual connotation in order to be conduct of a sexual nature. The test is objective.
59. Sydney Water further argued (see Sydney Water ground of appeal 1.4) that the Tribunal at first instance took into account an irrelevant factor, being ‘the hypothetical capacity of conduct to be construed in a prurient way’, and failed to take into account relevant factors, being the actual ‘nature’ of the conduct of Sydney Water in determining whether Sydney Water’s conduct was of a sexualised nature, within the meaning of s 22A(b) of the Act.
60. We reject this argument. It misunderstands the application of an objective test. The objective assessment that the words with the picture on the Poster are reasonably capable of conveying a sexual meaning (to a hypothetical reasonable person) is not an irrelevant factor, it is the application of the objective test. Furthermore, it is clear from its reasons that the Tribunal at first instance was well aware, and took into account, that Sydney Water’s purpose in displaying the Poster was to reinforce one of the messages of the injury prevention program it was engaged in with Vitality Works with respect to some of Sydney Water’s employees. Nevertheless, Sydney Water’s conduct in printing the Poster and displaying it at the Ryde Depot was ‘conduct of a sexual nature’ because the double entendre intrinsic in the poster, viewed objectively, is apparent. In other words, Sydney Water’s intentions and objectives are not determinative of the question of whether its conduct in printing and displaying the Poster constituted conduct of a sexual nature.
61. It was argued that Sydney Water was not alerted to the fact that the Poster was reasonably capable of conveying a sexual meaning. Again, for the reasons set out above, this is not a matter which is determinative of or relevant to the question of whether Sydney Water’s conduct was of a sexual nature.
62. In ground 3 of its amended grounds of appeal, Sydney Water pleaded that the Tribunal erred in finding that Sydney Water approved the poster. Sydney Water, in its written submissions, took issue with [110]–[113] of the Tribunals reasons. The Tribunal said, in [108]-[114]:

108. Whilst Sydney Water accepted that the posters (including the Poster) were provided to Mr Sybra to display at depots, there was no evidence that Mr Sybra was authorised to approve the posters (including the Poster) or to display them around the workplace. It submitted that Mr Wallace was the authorised person.

109. Sydney Water accepted that the “smart cards” were actually approved by Sydney Water – namely, the Project Manager, Mr Wallace, and the Brand Manager. However, it submitted that this was in stark contrast with the Poster which it claimed was not approved by Sydney Water.

110. We reject this submission. We find that the evidence establishes that Vitality Works had authority to display the Poster on behalf of Sydney Water pursuant to its agreement with Sydney Water. In particular, the Brand Manager of Sydney Water, approved the layout and the design, and then Vitality Works, consistent with this approval, was authorised to fill out and display the Poster without any further approval from Mr Wallace being required. This was consistent with the understanding of both Mr Wallace for Sydney Water and Ms James for Vitality Works.

111. Accordingly, we find that the design, publication, display and distribution of the Poster was done by Vitality Works with the approval of Sydney Water by Sydney Water approving the layout and the design and then authorising Vitality Works to display the Poster under its contract with it.

112. Further, we find that Mr Peter Sybra also approved the display of the Poster. He was sent the Poster because Mr Wallace was on leave. His title was North Region Manager of Sydney Water. We note the Poster was on display at the Ryde depot for several weeks without complaint from anyone at Sydney Water suggesting that Mr Sybra had no authority to approve the display of the Poster occurring at the request of Vitality Work. In the absence of explicit evidence on the matter from Mr Sybra or any other witness, we infer and find that he was authorised to approve the display of the Poster on behalf of Sydney Water in his area of responsibility, provided it was under Vitality Work’s supervision, which it was.

113. Further, Mr Ferguson as manager at the Ryde depot also approved the display of the Poster at the Ryde depot. In the absence of explicit evidence on the matter from Mr Ferguson or any other witness, we infer and find that he was authorised to approve the display of the Poster on behalf of Sydney Water at the Ryde depot, provided it was under Mr Sybra’s and Vitality Work’s supervision, which it was.

114. Finally, having found that the Poster was more likely than not actually displayed by employees of Sydney Water and this was within their overall authority to do so pursuant to the request of Vitality Works, Sydney Water is also liable for such conduct pursuant to s.53 of the ADA.

63. Mr Sybra was an employee of Sydney Water.
64. The Act provides, in s 53(1);

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

65. In the paragraphs quoted above, the Tribunal was explaining why Sydney Water is responsible for Mr Sybra’s decision to display the Poster at the Ryde Depot. It was argued on behalf of Sydney Water that the Tribunal unfairly attributed the actions of Vitality Works to Sydney Water. We reject that argument. It is a misinterpretation of the Tribunal’s reasons. The findings of fact made by the Tribunal were clearly open to it on the evidence. Ground 3 of Sydney Water’s grounds of appeal fails.

Ground 1.5 of Sydney Water’s appeal and ground 1c of Vitality Works’ appeal

66. In ground 1.5 of its amended grounds of appeal, Sydney Water said that the Tribunal failed to provide adequate reasons for its findings at [133], [136] and [140].
67. The Tribunal at first instance said, at [133]:

The dictionary definition of the word “lubricate” – that is, to apply oil or grease to “an engine or component” to minimise friction (Oxford Dictionary) – does not greatly assist the resolution of this conflict. That is because this dictionary definition does not easily apply to either party’s contention for how the word “lubricate” should be interpreted in the context of the Poster.

68. In its written submissions Sydney water said, of the Tribunal’s conclusion at [133]:

The basis for that conclusion is not revealed at all, and fails to acknowledge (see Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140, [47]-[49]) the plethora of evidence filed by Vitality Works as to the meaning of lubricate being the oiling or greasing of joints in the human body.

69. This is simply a misunderstanding of the Tribunal’s meaning in [133], which we consider to be plain. The evidence filed by Vitality Works indicates, in summary, that the health and safety program in issue promoted joint movement as a method of inducing the body to generate synovial fluids to protect joints before physical activity. Neither oil nor grease was involved. Joints are not engines or components of engines.
70. The Tribunal at first instance, at [133], was pointing out that the dictionary definition of ‘lubricate’ was not the sense of the word as it was used in the SafeSpine program, including the poster. In addition, the meaning argued for the word ‘lubricate’ in Ms Yelda’s case was also not strictly in conformity with the dictionary definition.
71. The Tribunal at first instance said, at [136]:

136. The Poster and its words/text may have the contended for sexualised connotation which operates as a double entendre despite its intended literal meaning. Such a sexualised connotation, if it is likely to be, or if it is reasonably capable of being, conveyed by the Poster, will result in the display of the Poster being conduct of a sexual nature within the meaning of the ADA.

72. It was argued that this conclusion was based on ‘first viewing’ and ‘immediate impression’ and that all relevant circumstances and context were not considered. We reject this argument. It ignores the detailed discussion of the arguments set out by the Tribunal from [123]-[135]. It also ignores the summary of the evidence by the Tribunal from [24]-[96].
73. The Tribunal at first instance said, at [140]:

140. One immediate impression or meaning that is reasonably capable of being conveyed by the Poster is 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. Further, the phrase “Feel great – lubricate!” and the Poster as a whole, particularly with Ms Yelda’s hand in the air directing viewers to those words, are reasonably capable of conveying the meaning that Ms Yelda advocates that others should do the same.

74. In Sydney Water’s written submission, the following argument was put:

There is nothing in the Safety Poster itself, or conduct or any other evidence, that is sexual or sexualised (or that relates to sexual organs, application of lubricant or sexual pleasure). The fact someone may (mis)represent a slogan in the Safety Poster does not mean that the Poster, or more critically, Sydney Water’s conduct, is of a sexual nature.

75. We reject this argument. The existence of products referred to as ‘lubricants’ for sexual purposes is notorious. The Tribunal at first instance determined that the poster, with its juxtaposition of a smiling Ms Yelda with her hand in the air pointing to the words “Feel great – lubricate”, viewed objectively, conveyed a sexual meaning. That finding was consistent with Ms Yelda’s argument on the point, which was set out at [134] of the decision at first instance. That finding was open to the Tribunal. There is no error of law. Clearly the Poster may bear more than one interpretation by the hypothetical reasonable person.
76. Ground of appeal 1.5.2 in Sydney Water’s amended grounds of appeal and ground of appeal 1c i in Vitality Works’ grounds of appeal alleged that the Tribunal at first instance failed to provide adequate reasons for why it held that Sydney Water’s conduct was of a sexual nature. We reject this argument for the reasons set out above at [38]-[52]. The Tribunal at first instance gave detailed reasons.
77. Ground of appeal 1i in Vitality Works’ grounds of appeal alleges that the finding that Vitality Works’ conduct was sexual conduct in relation to Ms Yelda was so unreasonable that it could not be made. For the reasons set out at [38]-[52] above, and in [81] below, we reject that argument.
78. Ground of appeal 1.5.3 in Sydney Water’s amended grounds of appeal and ground 1c ii in Vitality Works’ grounds of appeal pleaded that the Tribunal at first instance failed to provide adequate reasons for why it held that Sydney Water’s conduct was ‘in relation to’ the Respondent. We reject this argument. It is self-evident from the uncontested facts that Sydney Water’s conduct in printing and displaying the Poster was ‘in relation to’ the Respondent because she was pictured on the Poster. The Poster could also be said to be ‘in relation to’ the SafeSpine injury prevention program. The ‘conduct of a sexual nature’ in s 22A(b) of the Act does not have to be solely, or even principally, ‘in relation to’ the person harassed.

Ground 1a of Vitality Works’ appeal

79. Ground 1a of Vitality Works’ appeal is as follows:

a. The Tribunal applied the wrong test and/or took into account irrelevant factors in determining whether the Appellant’s conduct was unwelcome within the meaning of s 22A(b) of the Anti-Discrimination Act 1977 (NSW).

80. The Tribunal, in its decision, said:

115. By “unwelcome” the advance or request for conduct must be unsolicited or uninvited by the employee, and the employee regarded the conduct as undesirable or offensive: Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1 at [5] per Spender J.

116. In GLS v PLP (Human Rights) [2013] ECAT 221, Garde J stated at [33]:

“In order to constitute sexual harassment, the sexual advance, request for sexual favours or conduct of a sexual nature in relation to the other person must be unwelcome. In Aldridge v Booth, Spender J held that this required that the conduct was not solicited or invited by the employee, and that the employee regarded the conduct as undesirable or offensive. This test has been applied in Paul v A & A Sheiban Pty Ltd, Elliott v Nanda, Boniadowska v Hikinbotham, and in many subsequent cases. I adopt this test.” (Footnotes omitted)

117 The Tribunal also adopts this test.

118 Vitality Works submitted that the evidence disclosed that Ms Yelda was aware of the Poster for almost 6 weeks before she made any complaint and that this must be taken as evidence that she did not have concerns when she first saw the Poster. It contended that her concern about the Poster only came when she received the email from Mr Barclay on or about 11 April 2016. According to Vitality Works, this meant that it was the email by Mr Barclay, which was an intervening act that imposed a sexualised interpretation of the Poster where none had been imposed by the acts of Vitality Works.

119 Whilst Ms Yelda agreed to have her photograph taken, she did not consent to the final form of the Poster and, in particular, the text that appeared above it with the word “lubricate”. She says that she was embarrassed, upset, affronted, offended and humiliated by the final form of the Poster and the fact that it appeared at the workplace in a prominent location and in a prominent way.

120 Vitality Works submitted that Ms Yelda did not state that she was "humiliated, offended or intimidated" by the Poster. This is not correct. For example, she reported to Mr Barclay that she was humiliated by the Poster and to Prof Robertson that she felt humiliated and affronted by the Poster. In her statement of evidence, whilst also making submissions on her legal case, she does state ‘’the poster humiliated and offended me’’.

121 The Respondents also made some suggestion that this is not a genuine complaint, bearing in mind in particular that Ms Yelda had seen the Poster attached to the email of Mr Bannerman on 1 March 2016 but first raised her concern with Sydney Water on 12 April 2016. Further, whilst complaining about certain ailments to her treating doctor during this period, she did not complain about the Poster and feelings of anxiety in respect of the Poster.

122 Ms Yelda explained the delay by saying that her initial reaction to seeing the Poster was that she was so embarrassed that she did not want to talk about it. We accept this evidence. In our view, and we find that, Ms Yelda’s statement of concern, embarrassment and humiliation in respect of the Poster from when she first saw the Poster is genuine, and accordingly we find that the conduct in the display of the Poster was “unwelcome conduct” within the meaning of the ADA.

81. Vitality Works argued that the correct ‘test’ required the Tribunal to identify with precision the conduct of the Appellant being impugned, determine whether that was conduct of a sexual nature in relation to the Respondent, and then assess that conduct by reference to the evidence as to whether it was “welcome”.
82. Vitality Works argued that its involvement was limited to taking photographs of Ms Yelda, getting her consent to use her photograph in “workshops, posters or smart cards and handouts”, inserting Ms Yelda’s photograph into a template, sending the electronic file containing the poster, together with other posters, to Mr Sybra (an employee of Sydney Water) and, arguably, printing and posting on the premises of Sydney Water.
83. It was conceded that Ms Yelda did not consent to the wording of the Poster. It was conceded that inserting Ms Yelda’s photograph in the Poster template was conduct in relation to Ms Yelda.
84. Vitality Works argued, in effect, that each and every one of its actions in relation to the Poster should be the subject of separate consideration as to whether that conduct was conduct of a sexual nature.
85. Vitality Works argued that the only element of its conduct which could be considered to be ‘unwelcome’ was the insertion of Ms Yelda’s photograph into the template.
86. Vitality Works relied upon a decision of Judge Matthews in O’Callaghan v Loder [1983] 3 NSWLR 89. That matter related to a complaint by a female lift driver, employed by the Department of Main Roads, of discrimination in employment in the form of sexual harassment by the Commissioner for Main Roads. In the paragraph of the decision relied upon, Her Honour said:

The employer must either know that his conduct is unwelcome, or the circumstances must be such that he should know it. In other words, conduct which is persisted with in the face of rejection from the employee is capable of being unlawful under this head. Conduct which is continued in the face of an unequivocal response may or may not be so. In all cases it is a pre-condition of liability that the complainant show both that the conduct was unwelcome in fact and that the employer either knew or ought to have known of this.

87. The version of the Anti-Discrimination Act 1977 under consideration in O’Callaghan v Loder was a much earlier version of the Act than the version under consideration in the present matter. As Judge Matthews said, in O’Callaghan v Loder at p 92:

There is no reference in the Anti-Discrimination Act to sexual harassment, and therefore no statutory definition of it.

88. In contrast, the Act, today, in s 22B, makes sexual harassment unlawful in a large number of contexts, and, in s 22A, defines ‘sexual harassment’. It is these provisions we are interpreting and applying in this case, and not the version of the Act which was in force in 1983 at the time of O’Callaghan v Loder. There is no warrant to import into the definition of sexual harassment in s 22A of the Act, which is set out above at [14], any mental element on the part of the person or entity whose conduct is unwelcome conduct of a sexual nature.
89. Vitality Works criticised the Tribunal for omitting to ‘engage’ with this passage. That criticism is misplaced. The passage is not applicable to matters under the Act as it is today.
90. The Tribunal, at [115], relied upon the following passage in relation to the Sex Discrimination Act 1984 (Cth) from the decision of Spender J in Re Aldridge v Booth [1988] FCA 170 (‘Aldridge’) in relation to the question of whether conduct was ‘unwelcome’:

4. ... By “unwelcome’, I take it that the advance, request or conduct was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive: see Michael Rubenstein The Law of Sexual Harassment at Work, (1983) 12 Industrial Law Journal 1 at p 7 and Henson v City of Dundee [1982] USCA11 536; (1982) 682 f 2d 897.

5. It is to be noted that it is not mere unwelcome conduct of a sexual nature which is proscribed: it is such conduct, coupled with reasonable grounds for belief that resistance to that conduct will result in disadvantage in connection with a person’s employment or actual disadvantage. The section is concerned with the unlawful exploitation of a position of power and, in the context of unwelcome sexual requests or conduct prohibits a kind of blackmail. So understood, it does not inhibit non-exploitative amorous or sexually oriented advances.

...

91. We consider that it is clear from the Tribunal’s decision at [115]-[122], quoted above, that the Tribunal was satisfied, on the evidence, as a matter of fact, that the juxtaposition of Ms Yelda’s photograph with the words ‘Feel great – lubricate’ on the Poster which was created by Vitality Works for display at Sydney Water premises was unwelcome conduct from Mr Yelda’s point of view.
92. In relation to the issue of what constitutes conduct that is ‘unwelcome’, the Tribunal adopted and applied the test in Aldridge and GLS v PLP (Human Rights) [2018] ECAT 221 at [33] and not the test in O’Callaghan which, as we have explained, has been overtaken by changes in the Act. This is not an error of law. The passages in question must be read and applied, however, in the knowledge that they relate to statutory schemes which are different from the Act, albeit that the concept of conduct that is ‘unwelcome’ is a feature similar to each of the schemes.

Ground 1e of Vitality Works’ appeal

93. Ground 1e of Vitality Works’ appeal is that the Tribunal ‘applied the wrong test and/or took into account irrelevant factors when it determined the conduct in which the Appellant engaged occurred ‘at a place that is a workplace of both those persons’ within the meaning of s 22B(6)’.
94. As we have set out at [15] above, s 22B of the Act makes it unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
95. The Act defines ‘workplace’ in s 22B(9) to mean:

workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

96. In the decision at first instance, the Tribunal said, at [105]:

Further, we accept and find that, at the time of the display of the Poster, Vitality Works was a workplace participant and Ms Yelda was another workplace participant at a place that is a workplace of both of those persons, namely the relevant depots of Sydney Water at which the Poster was displayed. We note that at the relevant time Vitality Works was still under contract with Sydney Water to conduct the training program known as “SafeSpine”. We further note that “workplace participant” under the ADA includes an employer or employee.

97. Ms Yelda was obviously a workplace participant at the Ryde Depot as an employee of Sydney Water.
98. Vitality Works, at the time of the display of the Poster, was managing the printing and display of the Poster at the Ryde Depot under its contract with Sydney Water. At the relevant time, Vitality Works was an employer undertaking the delivery of the SafeSpine program through its employees, including Ms McMahon, at premises where Sydney Water’s workforce was working, including the Ryde Depot. In other words, Vitality Works was a workforce participant, as an employer, at the Ryde Depot, where Ms Yelda, as an employee of Sydney Water, was also a workplace participant. That is what the Tribunal at first instance said at [105], and there is no error of law in that reasoning.

Ground 2 of Vitality Works’ grounds of appeal

99. Vitality Works pleaded that the Tribunal made an error of fact when it found that Ms Yelda was offended, humiliated or intimidated by the Poster from the first occasion that she saw it, on 1 March 2016.
100. The Civil and Administrative Tribunal Act 2013 (NSW) provides, in s 80(2):

(2) Any internal appeal may be made—

(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

101. Vitality Works requires the leave of this panel to appeal on a question of fact.
102. The principles which apply to the issue of whether leave should be given to appeal on a question of fact are set out in Collins v Urban [2014] NSWCATAP 17. The Tribunal in that matter said, at [84]:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

103. The question of whether Ms Yelda was offended, humiliated or intimidated by the Poster was agitated before the Tribunal at first instance.
104. In the decision at first instance, the Tribunal said, at [120]-[122]:

120. Vitality Works submitted that Ms Yelda did not state that she was "humiliated, offended or intimidated" by the Poster. This is not correct. For example, she reported to Mr Barclay that she was humiliated by the Poster and to Prof Robertson that she felt humiliated and affronted by the Poster. In her statement of evidence, whilst also making submissions on her legal case, she does state ‘’the poster humiliated and offended me’’.

121. The Respondents also made some suggestion that this is not a genuine complaint, bearing in mind in particular that Ms Yelda had seen the Poster attached to the email of Mr Bannerman on 1 March 2016 but first raised her concern with Sydney Water on 12 April 2016. Further, whilst complaining about certain ailments to her treating doctor during this period, she did not complain about the Poster and feelings of anxiety in respect of the Poster.

122. Ms Yelda explained the delay by saying that her initial reaction to seeing the Poster was that she was so embarrassed that she did not want to talk about it. We accept this evidence. In our view, and we find that, Ms Yelda’s statement of concern, embarrassment and humiliation in respect of the Poster from when she first saw the Poster is genuine, and accordingly we find that the conduct in the display of the Poster was “unwelcome conduct” within the meaning of the ADA.

105. The Tribunal at first instance clearly set out the evidentiary basis for its findings on this issue.
106. We do not consider that any of the factors necessary for a grant of leave to appeal on a question of fact has been established by Vitality Works in relation to the issue of whether Ms Yelda was offended, humiliated or intimidated by the Poster.
107. Vitality Works, in its written submissions, after referring to extracts of Ms Yelda’s evidence, said:

What the above evidence shows is that it was the email from Mr Barclay that caused the Respondent to make her complaint. That was because that email on its face introduced a sexual connotation to the poster that the Appellant never designed or intended, as demonstrated by its evidence. It would be unfair and unjust to hold the First Appellant liable for a reading of the poster given to it by Mr Barclay and then communicated by Mr Barclay to the Respondent.

108. Vitality Works’ argument on this issue really amounts to a theory about Ms Yelda’s thoughts and feelings which is at odds with her evidence about those thoughts and feelings. It is also misunderstands what it is to assess on an objective basis whether the relevant conduct of Vitality Works was conduct of a sexual nature.
109. We decline to grant leave to Vitality Works to appeal on the issue of fact set out in ground 2 of Vitality Works’ notice of appeal.
110. Had we granted leave, the appeal on ground 2 would have failed in any event. There was a sufficient evidentiary basis for the Tribunal’s finding, and the Tribunal at first instance was best placed to assess how genuine Ms Yelda’s opinions and feelings concerning the Poster were.

Sex discrimination in work

111. The Act provides as follows in relation to sex discrimination and discrimination at work:

24 What constitutes discrimination on the ground of sex

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if the perpetrator—

(a) on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

(1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.

(1C) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act, breastfeeding includes the act of expressing breast milk.

(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs—

(a) are a woman who is pregnant and a man, or

(b) are not of the same marital or domestic status, or

(c) are a woman who is breastfeeding and a man.

(3) (Repealed)

25 Discrimination against applicants and employees

...

(2) It is unlawful for an employer to discriminate against an employee on the ground of sex—

...

(c) by dismissing the employee or subjecting the employee to any other detriment.

112. Ground 2 of Sydney Water’s notice of appeal pleads that the Tribunal failed to consider whether, and had no basis for finding, that Sydney Water treated Ms Yelda less favourably and, if so, by reason of her sex.
113. The Tribunal considered in detail the issue of whether Sydney Water treated Ms Yelda less favourably than other workers who were photographed for possible inclusion on a SafeSpine program poster at [172]-[180]. The Tribunal compared the poster displaying a photograph of Mr Mead, a male Sydney Water worker who was photographed at the same time as Mr Yelda, with the Poster. The slogan ‘Feel great – lubricate!’ was not used with Mr Mead’s photograph.
114. There were two posters apart from the Poster which used the ‘Feel great- lubricate’ slogan. One used a photograph of two men and the other used a photograph of three men in a group. There was no evidence that either of these posters was ever displayed. The Tribunal at first instance noted that the lighting in the photograph of the group of three men was poor and inferred that the poster may have been a trial poster rather than a final for use in the promotional materials. In any event, the group of three men was photographed in what appeared to the Tribunal to be a classroom, with no suggestion of intimate personal sexual activity. The photograph of the two men in the other poster showed them obviously performing a neck stretch and a shoulder roll respectively, with the words in large type between the photographs “Try some neck movements or shoulder rolls”. The absence of any such words on the Poster was remarked upon by the Tribunal.
115. Sydney Water argued that the Tribunal’s findings of fact with respect to the issue of whether Ms Yelda was treated less favourably than a person of ‘the opposite sex’ was based ‘wholly and solely’ on analysis of acts engaged in by Vitality Works and that there was no consideration of how those acts might be attributed to Sydney Water.
116. As we have said, the Tribunal at first instance found that the relevant conduct of Sydney Water included the conduct set out in [104] and [110]-[114] of its decision, which we have set out at [20] and [25] and summarised at [21]-[22] above. The relevant conduct of Sydney Water included the printing and displaying of the Poster.
117. The members of ‘the opposite sex’ forming the comparator on the analysis of the Tribunal at first instance were Mr Mead and the other men in the two other posters
118. There was no error of law in the Tribunal’s finding that Ms Yelda was treated less favourably than a member of ‘the opposite sex’ within the meaning of s 24(1)(a) of the Act.
119. Sydney Water argued that the Tribunal failed to consider whether Sydney Water’s conduct was engaged in on the ground of Ms Yelda’s sex. In fact, the Tribunal deals with this topic at some length in [181]-[185]:

“On the ground of sex”

181 To constitute direct sex discrimination, the selection of the complainant’s image must have been on the ground of Ms Yelda’s sex. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason. That is the case whether or not the lawful reason is the dominant or a substantial reason for doing the act: see s4A of the ADA.

182 When considering causation, it is the grounds or the reasons for a respondent’s action, as opposed to his or her intentions or motives for so acting, which are relevant: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [160] and IW v City of Perth [1997] HCA 30; (1997) 71 ALJR 943 at 975 per Kirby J. The focus is on the "real reason" for the alleged discriminator's act: see Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [166].

183. We are satisfied that one of the real reasons for selecting the complainant’s image for the Poster was that she was a female. This finding is supported by the statement by Ms Sally McMahon that she wanted to include a woman in the promotional materials. Ms McMahon said she approached Ms Yelda specifically to include a woman in the promotional materials as she liked to use images of both women and men. This is a conscious decision to use the complainant’s image because of her sex. The denial by Ms McMahon that Ms Yelda was selected on the ground of her sex contradicts that statement and is also implausible. Even if chosen, ‘’to promote diversity in the workplace’’, this does not contradict our finding that her image was selected and utilised on the ground of her sex.

184 Our finding is also supported by the complainant’s evidence that Ms McMahon sought her out, verified that she was a Sydney Water employee working with the largely blue-collar, all male field staff, and expressed interest in using her image. The Tribunal accepts Ms Yelda’s evidence that she was the sole female working at the depot at the time that her image was selected for display in a prominent size and location at the Ryde depot.

185 Our finding is also supported by the fact that Mr Mead was photographed at the same time as Ms Yelda but his photograph was not incorporated into a poster which was displayed in the workplace. We find that Ms Yelda’s image was chosen because of the desire to display a female employee who was working at the Ryde depot at the time.

120. Again, once the scope of the relevant conduct of Sydney Water is understood to be the conduct referred to in [117] above, it is clear that the Tribunal has not made an error of law in relation to the issue of whether Sydney Water’s conduct was occasioned on the ground of her sex.

Conclusion

121. All of the grounds of appeal pleaded by Sydney Water as errors of law by the Tribunal at first instance fail. Sydney Water’s appeal will be dismissed.
122. Leave to Vitality Works to appeal on the facts will be refused.
123. All of the grounds of appeal pleaded by Vitality Works alleging an error of law fail. Vitality Works appeal will be dismissed.

Orders

(1) The appeal by Sydney Water Corporation in AP 19/48288 is dismissed.

(2) The application by Vitality Works Australia Pty Ltd in AP 19/48285 for leave to appeal on a question of fact is refused.

(3) The appeal by Vitality Works Australia Pty Ltd in AP 19/48285 is dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar