Workplace advertising has gone bad – a case of “unwelcome conduct of a sexual nature”

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A company welfare consultancy was found jointly responsible, with an employer, for a poster constituting sexual harassment in the workplace.

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In Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147, the NSW Court of Appeal noted that “heckling” and two-way jokes are not immune from being characterized as sexual harassment.

Sexual harassment is defined as any unwelcome sexual advance, unwelcome request for sexual favors or other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, anticipates the possibility that the harassed person will be offended, humiliated or intimidated.

How did we get here?

Ms. Yelda was employed by Sydney Water Corporation as a Client Liaison Officer. She agreed to have her picture taken for an occupational health and safety campaign created by Vitality Works.

When Ms. Yelda saw the poster with her photo on it, she felt humiliated and offended. The slogan above his photo read “Feel good – lubricate!” “ The poster was placed outside the dining room and men’s restroom at Ms Yelda’s workplace.

Ms Yelda brought an action in the NSW Civil and Administrative Court (NCAT) alleging that she had been the victim of sexual harassment and discrimination because of the poster, in contravention of the Anti-discrimination law of 1977 (NSW).

While the poster was part of a SafeSpine stretch and mobilization campaign, the NCAT accepted that sexually suggestive jokes and comments containing a double meaning could constitute “Other unwelcome conduct of a sexual nature”.

At first instance, the NCAT found that the Sydney Water Corporation and Vitality Works sexually harassed Ms Yelda in violation of the law by posting the poster. The Sydney Water Corporation also discriminated against Ms Yelda on the basis of gender by subjecting her to prejudice, as she treated her differently from male employees and caused Ms Yelda to offend and humiliate. Ms. Yelda was awarded $ 200,000 in general and aggravated damages, and Sydney Water and Vitality Works were ordered to pay $ 100,000 each. In assessing damages, the NCAT admitted that as a result of the poster’s display, Ms. Yelda suffered severe and prolonged pain and suffering as well as damage to her feelings.

Vitality Works appeals based on limited involvement

Vitality Works appealed the NCAT decision to the NSW Court of Appeals to dismiss the damages awarded to Ms Yelda on the grounds that Vitality Works was not responsible for the breaches of the law.

Vitality Works claimed that it was not “jointly” with Sydney Water Corporation, as it was only hired to take the photo of Ms Yelda, insert the photo on the poster and send the poster to Sydney Water Corporation.

However, the Court of Appeal determined that Vitality Works was a “workplace participant”, and that the design, publication, display and distribution of the poster was carried out by Vitality Works even though a Vitality Works employee had not physically affixed the poster to the wall. .

Unwelcome conduct of a sexual nature

Vitality Works also claimed that his conduct did not amount to “Other unwelcome conduct of a sexual nature”. Vitality Works argued that while Ms Yelda did not specifically consent to the use of her photograph on the poster, the failure to obtain informed consent was irrelevant to any allegation of sexual harassment as it it was not behavior of a sexual nature.

The Court of Appeal disagreed and found that Vitality Works’ conduct was clearly unwelcome conduct of a sexual nature. It was irrelevant that the poster was not sexually explicit in nature, or that a sexual message was conveyed as a two-way joke. The Court of Appeal ruled that the poster constituted sexual harassment even though Vitality Works did not intend to sexually harass Ms. Yelda.

The impact of changing societal norms

The Court of Appeal noted that by objectively determining whether a given conduct meets the definition of “Other unwanted behavior of a sexual nature”, ‘the context is everything’. The meaning of language changes over time, as do societal norms, including common understandings of what is and is not conduct of a sexual nature.

Vitality Works’ appeal was dismissed and she had to pay the initial compensation of $ 100,000 (or 50% of the damages awarded) as well as Ms. Yelda’s appeal costs.

Key points to remember

The Court of Appeal sent a clear message to employers that conduct does not have to be sexually explicit to constitute sexual harassment. Subtle forms of harassment like ‘innuendo, innuendo, implication, overtone, nuance, heckling, hint, wink or nod’ are all examples of behaviors that can be used to sexualize conduct in a way that may be unwelcome.

It is also clear in recent decisions that courts and commissions more frequently recognize the responsibility not only of employers but also of “participants in the workplace”, which describes a broad relational bond including entrepreneurs, self-employed, volunteers and unpaid interns.


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