Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited

BACKGROUND

1. The parties have agreed that the issue of liability should be dealt with separately before all other issues in the case. Accordingly, this decision deals only with the issue of whether or not the Respondents have contravened the ADA in the manner alleged.

Sexual harassment

1. Section 22A of the ADA provides that: "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 engaged 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."
2. Relevantly, s.22B of the ADA provides that: "(1) It is unlawful for an employer to sexually harass: (a) an employee, or … … (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."
3. It is alleged that the Applicant had her photograph taken by Ms Sally McMahon whilst an employee of Vitality Works. It is alleged that Vitality Works designed the Poster which featured the photograph of Ms Yelda in question (the Poster) with the slogan "Feel great - lubricate!" (the Slogan). It was alleged the Poster and its publication in the workplace was endorsed by Sydney Water and Vitality Works as evidenced by the logos of each organisation appearing on the Poster.
4. It was alleged the Slogan had a sexual meaning and the composition of the Poster associated the Slogan with Ms Yelda. "Lubricate" was said colloquially to refer to the use of lubrication during sexual acts. The phrase "Feel great" was alleged to add to the sexual nature of the Slogan and is a reference to the sexual pleasure derived from participating in sexual acts. This Poster, it was said, conveys the indication that Ms Yelda is a sex object within her workplace. Against Vitality Works it was stated that this organisation designed, published, displayed and distributed the Poster in the workplace of Ms Yelda.
5. It was alleged that Sydney Water approved the design, publication, display and distribution of the Poster at the workplace. Further, designing, publishing, displaying and distributing the Poster and the approval of such behaviour, was conduct of a sexual nature within the meaning of s.22A(b) of the ADA.

The conduct was unwelcome

1. It was alleged that whilst Ms Yelda agreed to have her photo taken, she did not agree to the form of the Poster and in particular the use of the Slogan. She had no knowledge of that beforehand and did not consent to the display of the Poster with the Slogan. Therefore, the conduct constituted by the displaying of the Poster was unwelcome within the meaning of s.22A(e) of the ADA.

Ms Yelda was offended and humiliated

1. Ms Yelda contended that she was offended and humiliated by the display of the Poster and by receiving the Poster attached to emails from fellow members of the workforce. In particular, she alleged that the email of 11 April 2016 exacerbated her sense of humiliation and offence because it confirmed that Ms Yelda's colleagues were aware of the Poster and were also of the view that it was offensive.
2. Thereby, she contended she was offended and humiliated within the meaning of s.22A of the ADA by reason of the Poster being displayed within her workplace.

Reasonable Person

1. Ms Yelda contended a reasonable person having regard to all of the circumstances would have anticipated the possibility that the Poster would cause Ms Yelda to be offended, humiliated or intimidated.

Liability of the Respondents

1. Ms Yelda contended that in designing, publishing, displaying and distributing the Poster, the employees of Vitality Works were acting with the authority of Vitality Works and thereby Vitality Works had contravened s.22B of the ADA; or, Vitality Works was vicariously liable for the actions of its employees in respect of the display of the Poster within the meaning of s.53 of the ADA.
2. Further, it was contended that in approving the design, publication, display and distribution of the Poster, the employees of Sydney Water were authorised to act on behalf of Sydney Water and by reason of the actions of its employees, the First Respondent has directly contravened s.22B of the ADA; or, Sydney Water is vicariously liable for the actions of its employees in accordance with s.53 of the ADA.
3. It was also contended that Vitality Works and Ms Yelda were both workplace participants at a place that is a workplace for both of them within the meaning of s.22B of the ADA.

Sexual discrimination in employment

1. Section 24 of the ADA provides that: "(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 circumstance, 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…"

The Discrimination

1. It was contended that at the same time that Ms Yelda's photograph was taken for the SafeSpine campaign, a fellow, male, colleague was also photographed. The photograph of the male colleague, it was alleged, was not incorporated into a poster with an offensive slogan of a sexual nature which was subsequently displayed in the workforce. It was alleged that the design and distribution of the Poster was by reason of Ms Yelda's sex.
2. By reason of the display of the Poster and its causing of humiliation and offence to Ms Yelda, it was said that Sydney Water and Vitality Works treated Ms Yelda less favourably than her male colleague, in circumstances that were not materially different. Therefore, Sydney Water had discriminated against Ms Yelda.

In Employment

1. Section 25(2) of the ADA provides that: "It is unlawful for an employer to discriminate against an employee on the ground of sex: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employments, or (c) by dismissing the employee or subjecting the employee to any other detriment."
2. By the display of the Poster which caused Ms Yelda to be offended and humiliated, it was alleged that Sydney Water contravened s.25(2)(c) of the ADA.

Ms Yelda

1. Continuing on from the introduction above, Ms Yelda was at pains to point out that while she agreed to have her photograph taken, she did not see the Poster and the way her image was used prior to it being displayed. She was not asked to consent to the manner in which her image would be used on the Poster and the writing that would be on the Poster.
2. In March 2016, John Bannerman, a Network Technician employed by Sydney Water, took a photo of the Poster and emailed it to Ms Yelda. This was the first occasion that Ms Yelda saw the Poster. The email reads, "Who's the chick in the photo??". Ms Yelda responded later the same day with "Oh god, where's that from! You missing me???"
3. Ms Yelda reported that later she saw Mr Bannerman and he asked her if she was aware of the Poster. Ms Yelda says she was so embarrassed and in disbelief, she did not know how to respond. She says that Mr Bannerman's facial expression and shaking of his head suggested to her his disapproval about the Poster being displayed.
4. On 11 April 2016 Ms Yelda received an email from Mr Steve Barclay, Service Delivery Officer with Sydney Water. The subject stated "Do you know about this?" and was in the following terms: "Hi Reem, just at Ryde depot and saw you advertising "Feel Great - Lubricate!" Great advice mate but a bit too much info for me!!!! Cheers. Steve"
5. On the same day Ms Yelda saw Mr Barclay at Potts Hill. She told him she was humiliated and did not know what action she should take. Mr Barclay encouraged her to make a complaint to get the Posters removed.
6. On 11 April 2016 Ms Yelda had a minor car accident and she used that, she states, as an excuse to go home early.
7. On 12 April 2016 Ms Yelda sent an email to Mr John Gillett and Mr Darren Cash, senior managers with Sydney Water, referring to the Poster. She stated she felt very uncomfortable with and insulted by the content and could not understand how Sydney Water had approved the Poster. She stated that she would like the Posters removed immediately from depots and anywhere else they had been distributed without her consent.
8. On 12 April 2016 Ms Yelda received an apology from Ms Angela Tsoukatos, General Manager, People, Leadership and Culture, Sydney Water. It stated that it had come to her attention that the Poster in question "unfortunately contains a slogan that could be seen as offensive". She continued as follows: "I apologise that this has occurred and that you didn't get the opportunity to vet the final Poster before it was published & displayed in the workplace. We have asked Vitality Works to remove these Posters immediately. … Once again, please accept my apology for any stress and embarrassment that this Poster may have caused you."
9. On 12 April 2016 Ms Yelda also received an email from Ms Kate James, Service Delivery Manager, Vitality Works. It stated in part: "I have recently been informed that there was a Poster developed as part of the SafeSpine program which included a photo of yourself completing a mobilisation exercise. As you may be aware, two of the main principles within the SafeSpine program are Stretching and Mobilisation. Mobilisation of which includes development of Synovial Fluid within the joints, which is also known as lubrication of the joints. I understand that the wording on the Poster may not have explained this sufficiently, and thus not reflected as intended. … On behalf of the Vitality Works team and myself, we would like to apologise that the context of the image may not have reflected as intended within the Poster and hope that you will accept this and continue to enjoy the SafeSpine Program on-site."
10. On 14 April 2016, Ms Yelda visited her family doctor who provided her with a WorkCover certificate. We do not deal with her subsequent absences from work as the parties have agreed that damages and remedies will be dealt with at a separate hearing.

John Gillett

1. Mr Gillett was Sydney Water Field Response Manager at the time. He was Ms Yelda's manager, once removed. Her direct supervisor was Mr Brendan Nicholson.
2. On 12 April 2016 Ms Yelda and Mr Gillett had a telephone conversation during which Ms Yelda stated words to the effect: "I'm upset about a Poster that features a photo of me. I hadn't seen the Poster before it was put up. Why didn't I see the Poster before it was put up?"
3. Other terms of the conversation between Ms Yelda and Mr Gillett were in dispute between the parties. It is not relevant for the Tribunal to determine the differences in recollection in this regard. Mr Gillett stated that the first time he saw the Poster was when it was emailed to him by Ms Yelda on 12 April 2016.
4. On 12 April 2016, Mr Gillett discussed Ms Yelda's concern about the Poster with Mr Cash and they agreed that they should have the Poster removed. According to Mr Gillett, the decision to remove the Poster was not made because the content was deemed to be sexual in nature or because displaying the Posters was considered to be sexual harassment. He indicated the Poster was removed because the Applicant had requested its removal and because there was no signed consent form from her in place in respect of the Poster.
5. According to Mr Gillett, based on his conversations with Mr Nicholson, Ms Yelda's immediate manager, there were issues with respect to Ms Yelda's performance, and in particular her attendance at work. She had higher than average sick leave over the past three years. Mr Gillett recalls three one-on-one meetings with Ms Yelda prior to 12 April 2016 in or around December 2015, January 2016 and March 2016. During each of these meetings Ms Yelda brought to Mr Gillett's attention that she believed she was unfairly treated by Mr Nicholson. She complained that the work she was receiving she did not enjoy, and she felt Mr Nicholson was micro-managing her. She also expressed a preference for work in the western area as opposed to the northern area in which she was stationed at the time.
6. Mr Gillett states that when he met Ms Yelda in March 2016, he believed the Vitality Works Poster was already on display at Ryde but that Ms Yelda did not mention the Poster.
7. On 7 April 2016 Mr Nicholson, Mr Connolly (from Human Resources at Sydney Water) and Mr Gillett discussed commencing performance management of Mr Yelda due to ongoing attendance issues with Ms Yelda, timeliness of work delivery and behavioural issues. The behavioural issues were a lack of team work and concerns with her punctuality. It was agreed that Mr Nicholson would arrange a meeting in the week starting 11 April 2016 with Ms Yelda and Mr Connolly.
8. On 11 April 2016 Mr Gillett received a telephone call from Mr Nicholson advising that Ms Yelda had gone home from work as she was upset following a motor vehicle collision that day. Mr Nicholson's report from Ms Yelda was that it was a low-speed collision but that the driver of the second vehicle was aggressive and abusive. The only reported physical issue was said to be a broken fingernail. There was no reported indication of an issue with the Poster at the time.
9. Mr John Gillett provided a statement to investigators signed 2 August 2016. Mr Gillett states that Darren Cash, Networks Manager with Sydney Water, and he discussed the slogan on the Poster and that "We were of the opinion that the slogan may have been perceived by staff as connotative".

James Wallace

1. Mr Wallace at the time in question was the Business Support Services Manager for Service Delivery employed by Sydney Water. Mr Wallace explained that he was part of the Transformation Team that was formed by Sydney Water to design a wellbeing program for its employees. The aim was to take a more proactive and strategic approach to the safety and wellbeing of its workforce. Sydney Water had experienced a high rate of body stressing injuries, and soft tissue damage, in the civil delivery section of its workforce.
2. As part of this process, Vitality Works was engaged by Sydney Water to implement a SafeSpine program. Mr Wallace informed us that Vitality Works made a presentation of its SafeSpine program which included emphasis upon how exercise could increase health and reduce injury. The presentation included use of the word "lubricate" in a medical and physiological context to describe the benefit of warming up and exercising to help lubricate one's joints. This involved Vitality Works obtaining photographs of employees performing their duties as well as performing exercises and stretches associated with the SafeSpine program. The photographs were then used in producing posters and smart cards.
3. Vitality Works also presented workshops to Sydney Water staff. There was a presentation about physical activity and exercise. A Powerpoint presentation was made to the employees. These slides did not include in any prominent location the word "lubricate". These workshops were conducted between October and December 2015.
4. According to Mr Wallace, Vitality Works designed and prepared a number of poster templates as part of the SafeSpine program at Sydney Water. He produced a bundle of copies of these poster templates, numbering 12 in total. Of these, three bore the Slogan "Feel great - lubricate!", one of which is annexed to this Decision and depicts Ms Yelda. The other two posters each depict men. The second one shows three men and the third one shows two men. These men are employees of Sydney Water. According to Mr Wallace, he "understood" that these posters were displayed at locations at Sydney Water and Mr Peter Sybra, a Sydney Water employee, helped Vitality Works put up the posters at various depots. He was unable however, to give any direct evidence of these matters. No other witness gave evidence to support Mr Wallace's understanding.
5. According to Mr Wallace, no complaints were received prior to that of Ms Yelda in April 2016 in respect of the Poster. According to Mr Wallace, he did not find the words on the Poster to be offensive or sexual. After the complaint by Ms Yelda, Mr Wallace was involved in having all of the Posters removed from the depots. Posters from all depots except the Miranda and Unanderra depots were returned to Mr Wallace. The Posters that had been at these two depots were shredded.
6. According to Mr Wallace, he contacted as many staff members featured in all of the displayed posters as possible and no other employee objected to the use of their photo in the Vitality Works posters. According to James Wallace's email of 11 May 2016, the posters were rolled out to each site as training progressed and the posters were designed and displayed by the SafeSpine specialists. They were handed to team managers and supervisors to be displayed in their local depots. Further, according to Mr Wallace's email, staff were asked to sign a waiver to feature in their posters, but not shown the specific posters. This does not seem to have been the case for Ms Yelda. A new process was implemented after Ms Yelda's complaint whereby staff were required to give specific permission for each poster before its use.
7. Mr Darren Cash in his email of 10 May 2016 stated that he did a review of reports from the manager as to which posters had been at the depots of Sydney Water. In the case of the St Marys depot, the staff had removed and destroyed the SafeSpine posters but could not recall the content of the posters or who featured in them. At the Seven Hills depot there was one A3 version of the Poster featuring Ms Yelda with the words "Feel great - lubricate!".
8. Further, two A4 versions of the Poster were returned from the Ryde and Warriewood depots. However, he stated "It is not clear whether these Posters were present at each depot location, or whether they were both posted at one of the depot locations". In addition, according to this email, "on the day we became aware of the Poster featuring Reem we knew of only one location (in the "green room" conference room at Ryde). This was immediately removed by the Networks North team and has been destroyed." Mr Cash's conclusion from this was that four Posters featuring Ms Yelda and the statement "Feel Great - lubricate!" existed and they were located at Seven Hills, Ryde and possibly Warriewood depots. Finally, the email reported that information from the SafeSpine consultant was that the Poster in question had been posted in only one location - Miranda.
9. According to Mr Cash in this email, the Poster at the Ryde depot was located at the green room conference room at Ryde. Mr Wallace states, however, that he recalls sitting down and carefully reviewing each Poster that was returned and can only recall receiving one Poster with Ms Yelda's picture, and this was displayed at the Ryde depot.
10. Mr Wallace, in his statement to the investigator, asserted that whilst he did not see the Poster beforehand, there was no express requirement for him to see them before they were used. He understood the posters would be managed by Vitality Works. He believed no-one from Sydney Water approved the Poster.
11. Mr Wallace confirmed that the SafeSpine training program was aimed at the civil field worker and that he had not attended the actual training session of such field workers but had participated in the outlining of the program provided to Sydney Water by Vitality Works. He heard the word "lubricate" being used in this context and thought it was appropriate where those hearing the word would understand that it referred to the releasing of fluids in the spine and joints upon movement. He stated that the civil maintenance workforce at the time were all men. He confirmed the training was focused on the civil delivery field crew. In that context, he thought the Poster was appropriate. He stated "the people who were undertaking the training would understand what the terminology means".
12. Mr Wallace stated that the template of the smart cards was approved by the branding manager of Sydney Water. This included the designs and the layout. He gave the following evidence: "My understanding was that the branding manager, with Ms James from Vitality Works, approved the layout, because there was some concern about where Sydney Water's logo was, for example, they approved the design, and then it was up to Vitality Works to fill that out within the confines of the branding guidelines, that was my understanding."

Stephen Znautas

1. Mr Znautas is a Professional Engineer who was employed by Sydney Water from 1974 until October 2016. At the relevant time he was an Area Manager and Ms Yelda was in his group.
2. Mr Znautas spoke highly of Ms Yelda and her ability and work performance. According to Mr Znautas, Ms Yelda "was outstanding" in her learning and ability to apply knowledge to solve system and customer issues and her ability to build relationships with both field and office-based maintenance operatives. Mr Znautas noticed that this was so despite Ms Yelda being a female in a male dominated working environment. Ms Yelda also mentioned that her area was substantially male blue-collar workers. Mr Znautas said that as Customer Liaison Officer, Ms Yelda was empathetic and gregarious and had an ability to build trust and respectful relationships within a male manual worker dominated environment and this helped her to successfully carry out her role.
3. Mr Znautas stated that in late April 2016, Ms Yelda called and was very upset. She messaged him an image of the Poster in question from her mobile phone. Ms Yelda indicated that even though the Posters had been removed, she was still very concerned about her reputation being tarnished and the potential loss of respect from the field-based maintenance personnel. She was in tears and could not understand how Sydney Water could approve a Poster with her image that could be interpreted in a sexual manner.
4. Mr Znautas stated that he could understand Ms Yelda's concerns. In his view, the slogan above her image could potentially result in unsavoury comments from the field-based manual workers.
5. Mr Znautas saw the Poster, and when he did so he did not see the link between the use of the term "lubricate", the image and the objective of the program. He stated that having been associated with manual labourers for a significant part of his career, he could see that this combination could be interpreted in a sexual way and could lead, in the worst case, to direct lewd comments, and more likely, to behind-the-back comments. He stated that this would lead to a loss of respect for Ms Yelda as well as her losing her self-confidence.

Peter Tonks

1. Mr Tonks is a Civil Technician employed by Sydney Water until July 2017. He was first employed by Sydney Water in 1976. He stated that Ms Yelda was the only female Customer Liaison Officer.
2. Mr Tonks stated that he mentored and supported Ms Yelda and found Ms Yelda to be an outgoing and compassionate person who was eager to learn, quick on the uptake and not afraid to ask questions. He stated that all these attributes helped as she developed her knowledge and as her professional relationship grew. He stated that a major part of the Customer Liaison Officer's role involved dealing with civil maintenance colleagues. Further, that this part of Sydney Water has for many years been a male manual worker dominated area and that it takes time and effort to earn such people's respect. He stated that this did not hinder Ms Yelda in successfully carrying out her role Her outgoing and compassionate personality and her ability to build trusting and respectful relationships assisted her in dealing with and solving customer-related issues.

Bob Chilton

1. Mr Chilton was employed by Sydney Water until his retirement in 2010. He stated that in the period 2008 to 2010 he supervised and mentored Ms Yelda. He spoke highly of her attitude to work, her commitment to her duties and responsibilities and her well-established interpersonal skills. He stated that in early 2016 he received a phone call from Ms Yelda in which she was emotionally upset. She sent him an image of the Poster in question.

Associate Professor Michael Robertson

1. Professor Robertson, a psychiatrist, saw Ms Yelda on 27 July 2016. Ms Yelda reported to the professor that she was affronted and angered by the use of her image with a slogan that was apt for "double entendre". Ms Yelda stated that this affront gave her a sense of shame and humiliation.

Katharine James

1. Ms James is employed by Vitality Works. She explained that Vitality Works delivers industry-leading health and wellbeing programs to workplaces across Australia and New Zealand. She holds a Bachelor of Exercise Science and stated that in her studies, the concept of lubrication and synovial fluids was frequently referred to, specifically in the anatomy subjects she took. She was taught that synovial fluid acts in the body like it does in an engine, it lubricates the joints.
2. Vitality Works produces a SafeSpine injury prevention program which it has done since 2004. Between August 2010 and April 2016, Vitality Works delivered 25 SafeSpine programs across 15 companies.
3. Ms James stated that she has run approximately 200 workshops in delivering the SafeSpine program. She said that lubricating the joints has been a core component of the training program since 2010 and she was not aware of any individual raising concern with the use of the word "lubricate" as part of the SafeSpine program and that not one person has ever laughed at the use of the word.
4. She explained how she uses the word in the workshops. First, she refers to a slide with a photo of the tin man and asks "What does the tin man do every morning?" She hopes to elicit the response "Lubricates his joints". Next, she shows a slide with an image of a shoulder with fluid and explains that synovial fluid develops once we start to move and lubricate the joints. After that, she asks attendees to participate in physical demonstrations of moving their joints while she explains that this lubricates them.
5. In around May 2015 Vitality Works was contracted by Sydney Water to produce its SafeSpine injury prevention program to Sydney Water. In 2015 Ms James conducted a training workshop at Sydney Water's depots. She says she never experienced any laughter or unusual reactions to the word "lubricate" in those training sessions.
6. Vitality Works produced posters and smart cards as part of its program from photographs taken of Sydney Water employees. Ms James explained that Sydney Water did not require Vitality Works to have Sydney Water employees sign a photo release when being photographed for the SafeSpine promotional material, as the materials were being displayed internally within Sydney Water. Given the Posters of Ms Yelda were only to be used internally, no photo release form was required, only a verbal agreement from the employee to be photographed.
7. The process was to create the posters and smart cards by inserting photographs taken of the client's employees into the poster templates developed by Vitality Works. Ms James annexed to her statement the relevant template which showed a poster with the large logo at the top stating "Feel great - lubricate!" and then a space for the placement of a photograph.
8. As Ms James was on annual leave when Ms McMahon amended the Sydney Water posters, Ms McMahon forwarded the posters directly to Peter Sybra, North Region Manager of Sydney Water. Ms James saw the Poster when she returned from annual leave at the Sydney Water Ryde Depot.
9. In Ms James' statement to the investigator, she stated Mr Sybra put the posters on display and no-one from Sydney Water was required to provide approval on the posters. The agreement between Vitality Works and Sydney Water required Vitality Works to obtain approval of templates to be used in respect of corporate colours, however, there was no requirement to obtain approval of the final copy.
10. Ms James said that the use of the Poster in question with the slogan "Feel great - lubricate!" has been used for approximately 15 clients and some of those Posters were annexed to her statement. They show employees doing stretches, and in particular, men doing stretches.
11. In August 2017 the slogan "Feel great - lubricate!" was changed by Vitality Works to "Move To Improve".

Sally McMahon

1. Ms McMahon was employed by Vitality Works at the time in question. She delivered the SafeSpine workshop to Sydney Water, conducting approximately four or five workshops at West Ryde, Miranda and Potts Point.
2. When doing so, she used the word "lubricate" and referred to the release of synovial fluid into the joint space to reduce joint friction and resulting injuries that can be exacerbated by failing to warm up. She says that when using the word "lubricate" she did not listen to any unusual response from the audience.
3. On 28 September 2015 she met Ms Yelda at a Sydney Water worksite. She asked Ms Yelda if she could take her photograph whilst performing stretches and mobility exercises to be used as promotional material. She explained to Ms Yelda it was part of the SafeSpine program and may be used in workshops, posters or smart cards and handouts. Ms Yelda agreed to participate.
4. Ms McMahon stated that she would like to use images of both females and males as part of promoting diversity in the workplace. She used templates that Vitality Works had which had a locked in design. This only allowed her to insert the image and edit the text box in order to identify the client. The text of "Feel great - lubricate!" was part of the template, as was the red colour of the background.
5. Ms McMahon stated in her oral evidence "that posters were provided to Sydney Water". She said they were printed in house by Sydney Water and a gentleman named Peter, but she could not remember his surname. We find that this likely was Peter Sybra.
6. Later Ms McMahon agreed that she gave "the posters" to Peter Sybra by sending to him the electronic file and this was for the purpose of displaying the posters in the workplace. She stated she understood that he was going to print those posters. She also confirmed that the smartcards were sent to the branding manager at Sydney Water for approval.

Daniela Santos

1. Ms Santos was an employee of Vitality Works in the position of Site Specialist. Ms Santos has delivered approximately 30 workshop sessions to Sydney Water over the last four years. She uses the word "lubricate" in these sessions. She explains that lubrication occurs when the fluid inside the body, called synovial fluid, functions like WD-40 in the body's joints. She explains that synovial fluid acts as a lubricant for the joints when they move. She says that when using the word lubricate in this manner, it has never resulted in any unusual response such as laughter or shock or any sign that it is taken as having any sexual connotation.

Andrew Patterson

1. Mr Patterson, of Wise Workplace, was instructed by Sydney Water to conduct an investigation into Ms Yelda's complaint and interviewed several witnesses in September 2016 and produced a final report dated 8 November 2016.
2. This report refers to an email from Sally McMahon of Vitality Works to Paul Ferguson and Peter Sybra dated 9 February 2016. The email is not in evidence but the report claims that it states that some SafeSpine posters are attached and requests Mr Ferguson and Mr Sybra to print them out. The email is also said to discuss putting the posters up in the workplace.
3. Mr Ferguson is a manager at the Ryde depot. In his interview with Mr Patterson on 29 September 2016 he stated that he remembered the Poster with Ms Yelda in it. He said he wasn't sure who actually put the poster up. He said it could have been him, or one of his co-ordinators, or someone from the SafeSpine program.
4. In light of the evidence of Ms McMahon, we find it more likely than not that the Poster was put up at the Ryde depot by either Mr Ferguson or his coordinators, being employees of Sydney Water and this was done with the knowledge and consent of Mr Ferguson, as manager of the Ryde depot, and Mr Sybra, as North Region Manager of Sydney Water.

Mr Barclay

1. Mr Barclay was an employee of Sydney Water with 35 years' experience. He was working in the Condition Assessment Team for Sydney Water's large sewers. He was based at Potts Hill.
2. On 11 April 2016 he saw the Poster at the Ryde depot. He was attending the Ryde depot in order to chair a "traverse meeting". This was a multi-disciplinary meeting of different fields, including the civil maintenance supervisors, people from civil planning, consultants, safety people and environmental people. The aim of the meeting was to put together a safety document going through the hazards of working in confined spaces to be finalised before the people go out in the field in such confined spaces.
3. He saw the Poster at the conference room at the Ryde depot. That was the room the meeting was being held in. He also described it as "the civil maintenance office". He stated that the civil maintenance crews on-site work from that office.
4. When he saw the Poster, the first thing he noticed was Ms Yelda's photo pointing to "lubricate", which he noticed as being in big bold letters. Mr Barclay said he only noticed that the Poster was part of an "injury prevention program" when he "read the whole Poster". He took a photograph of it and sent it to Ms Yelda to see if she knew about it. He assumed that with her face on the Poster she would have had to have known about it. But as he put it, apparently that was not the case.
5. In his email he wrote "Great advice mate but a bit too much information". When he was asked what he meant by that comment, he stated: "Such a young lady going like this saying it's great to lubricate which was a sexual issue."
6. When the meeting finished Mr Barclay drove back to Potts Hill to the depot where he met Ms Yelda in the kitchen area. In his evidence he stated: "You seemed visibly upset and I asked you how you were and you said a bit upset about it."
7. He stated the Poster was standard A3 size. He stated that at first glance the Poster did not look like a work health safety campaign. Not until he looked up and saw "SafeSpine" did he have any understanding of it being a work health safety Poster.
8. When Mr Barclay saw Ms Yelda later, he told her he would escalate the matter which he did. Soon after his conversation with Ms Yelda, Mr Barclay confirmed that Ms Yelda left the office.
9. Mr Barclay spoke to his boss about the Poster and then raised it with his "manager once removed". He showed this manager a copy of the Poster and told him it was "inappropriate against Sydney Water's procedures and values that we have within the workplace". That manager then escalated it to the general manager, Mr Eric de Rooy.
10. Mr Barclay had not undertaken the SafeSpine training course. He stated that in 2016 there were a couple of times when he attended the Ryde depot. He stated that in his email he put exclamation marks as intending to express to Ms Yelda that he had concerns about the Poster. Mr Barclay later described Ms Yelda as being "physically upset". He further stated that the words "great advice mate but a bit too much information for me" was a comment to say how "inappropriate" he thought the Poster was. He stated that the purpose of sending the email to Ms Yelda was "to make sure it was taken down".

Vitality Works

1. Vitality Works submits that the only conduct relevant to it is the design of the Poster, which involved inserting Ms Yelda's image into the relevant template. This, it submitted, occurred at the workplace of Vitality Works and was done by Ms McMahon. This was not a workplace of both Ms Yelda and Vitality Works.
2. As such, it was alleged the claim does not fall within the definition of "workplace participants" within the meaning of s 22B(6) of the ADA. That is, there can be no claim in relation to that conduct as it occurred away from the premises of Sydney Water and thus was not a workplace of both the relevant persons, being Ms Yelda and employees of Vitality Works charged with doing work under the contract between Sydney Water and Vitality Works.
3. 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.
4. 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".
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

Sydney Water

1. It is accepted that Ms Yelda was an employee of Sydney Water. We also accept and find that Sydney Water was a workplace participant and Ms Yelda was another workplace participant at a place that is a workplace of both such persons, being employer and employee. Sydney Water made no submissions to the contrary.
2. Sydney Water focused on the complaint against Sydney Water being that it "approved" the "design, publication, display and distribution of the Poster". It submitted that the evidence did not establish that Sydney Water actually approved the Poster.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

"Unwelcome" conduct

1. 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) 80 ALR 1 at [5] per Spender J.
2. 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)
3. The Tribunal also adopts this test.
4. 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.
5. 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.
6. 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''.
7. 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.
8. 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.

"Conduct of a sexual nature in relation to the other person"

1. 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] 20 FCR 217 at 277 per French J.
2. 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.
3. 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.
4. 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.
5. 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]. 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].
6. 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.
7. 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.
8. "Lubricate"
9. At the heart of the current proceedings between the parties is the meaning that one should give in the context here to the word "lubricate" which appears prominently on the Poster. The parties contended for radically different meanings to be given to the word when used on the Poster. One is reminded of Lewis Carroll's Alice in Wonderland: "'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean - neither more nor less'. 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be mastered - that's all.'"
10. According to the Respondents, the word in its proper context means the generation of synovial fluid in the joints upon their movement. Ms Yelda contends that its meaning, or at least its likely meaning to many male workers who view the Poster, is the colloquial reference to the use of lubrication during sexual acts and the depiction of Ms Yelda on the Poster with such a text conveys the imputation that Ms Yelda is a sex object within her workplace. Further, that the phrase "feel great" adds to the sexual nature of the slogan and is a reference to the sexual pleasure Ms Yelda derived from participating in such sexual acts.
11. 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.
12. We accept that account must be taken of the context in which the Poster was displayed. Ms Yelda made detailed submissions in respect of the Poster being sexualised and her main points included the following: 1. the disproportionately large bolded text "Feel great - lubricate!"; 2. the existence of a predominantly male blue-collar workforce; 3. the Poster being located near the men's toilet; 4. the use of the colour red, being a colour of intimacy; 5. the words "feel great" were said to add to the sexual nature of the Slogan; 6. the sole use of the Applicant in the Poster as a female; 7. Ms Yelda's hand is in the air directing viewers to the word "lubricate".
13. On the other hand, the Respondents made equally detailed submissions in respect of the Poster having no sexual meaning and their main points included the following: 1. the Poster was part of an injury prevention program where, in training, the word "lubricate" is used referring to the lubrication of joints and the generation of synovial fluid; 2. the Poster was placed in an area where important employment and safety messages were normally communicated by Sydney Water; 3. the header refers to the spine and back, both non-sexual organs; 4. the header also reveals the purpose of the Poster is safety at work and injury prevention; 5. the Slogan "We've got your back" confirms the Poster is about protecting the back; 6. the words "feel great" are a reference to feeling well by protecting one's back and spine; 7. the depiction of Ms Yelda with one arm raised is showing a stretching motion and is not a pose sexual in nature; 8. the Poster contains the instruction "Kick off your SafeStarts by 'warming up the joints'" which is a clear safety instruction; 9. the word "lubricate" is not disproportionately large, as words like "SafeSpine" are also large; 10. the Poster was located near both the men's and women's toilets and in an area where many important employment and safety messages were generally kept; 11. no conclusion can be drawn from the use of the colour red, and red is a colour generally of safety.
14. 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.
15. In Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 at [110], the Tribunal found that graffiti inside the men's toilet "included a term that is a colloquial way of referring to female genitalia and was of a sexual nature."
16. 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.
17. 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".
18. 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.
19. 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.
20. 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.
21. 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.

In circumstances in which a person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated

1. 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.

Submissions of the Parties

1. Vitality Works submitted that the meaning of the word "lubricate" was a reference to synovial fluid, which is produced by moving the joints. The reason for talking about this form of lubrication was to draw a link between the exercises and creation of the synovial fluid which protects the joints by way of such lubrication.
2. According to Vitality Works, this goes to the context, or the circumstances in which the Poster was produced. Further, Vitality Works relied on the evidence of Ms James to say there has never been an issue raised with this term until this complaint.
3. According to Vitality Works, in respect of the reasonable person test, there was nothing Vitality Works did to encourage anything other than a plain reading of the Poster.
4. According to Sydney Water, the circumstances relevant to the question whether a reasonable person would have anticipated humiliation or offence from the display of the Poster included the following: 1. the Employer engaged Workplace Health and Safety (WHS) experts to deliver a safety campaign to target a specific WHS issue; 2. the campaign in look, feel and content was only WHS-related; 3. no laughter or complaints about the word "lubricate" occurred in any of the training; 4. the Poster was professional in appearance; 5. the words used in the Poster directly related to safety and the training provided to staff; and 6. no previous complaints were made to Vitality Works about the Poster or the word "lubricate".
5. In conclusion, Sydney Water submitted that the Poster seen and viewed in proper context would not lead to a conclusion that a reasonable person would anticipate offence.
6. Ms Yelda in reply submitted that she was not the only one to complain about the Poster. Mr Barclay also complained about the Poster and escalated the issue through his management line. Ms Yelda referred to the following matters relevant to whether any reasonable person would have anticipated humiliation or offence: 1. written apologies were sent to Ms Yelda almost immediately afterwards; 2. not only was the Poster removed, the whole SafeSpine campaign posters and smart cards were removed; 3. strict guidelines and processes, being a reference to not obtaining Ms Yelda's consent to the final form of the Poster and branding guidelines, were not followed; 4. an investigation was carried out on the Poster incident approximately five months later.
7. Finally, Ms Yelda said that the reasonable person test should not be considered as applicable only to a person who has undergone the SafeSpine training, bearing in mind that not all persons who viewed the Poster would have undergone that training.

Consideration

1. Taking into account all of the relevant circumstances in this case, we come to the conclusion that a reasonable person would have anticipated that Ms Yelda would be, at least, offended or humiliated by the Poster. The factors we think are relevant in this regard, in addition to those already discussed in the previous section of our reasons, are the following.
2. First, the image of Ms Yelda was displayed in a large size poster and it was displayed in a prominent location, at least at the Ryde depot, where many persons, some of whom did not attend the SafeSpine training, would view it. This certainly was the case with Mr Barclay and Ms Yelda.
3. Second, we take account of the fact that, to the knowledge of Ms Yelda, it was a male blue-collar workforce with whom Ms Yelda dealt, that would be viewing the Poster.
4. Third, for the reasons already given, in our view a reasonable person would have anticipated that the Poster may convey the sexualised connotation contended for by Ms Yelda.
5. All of the above goes to suggest that a reasonable person in the circumstances would have anticipated that Ms Yelda would at least be offended or humiliated by having her image so prominently used in the context described above. A reasonable person in the circumstances should appreciate that such a prominent display of an employee at a workplace is a significant matter which can easily affect a person's reputation or sensibilities, particularly given modern technology and social media fastening frequently upon images of people, including the concept of an image "going viral".
6. In this regard, we make no finding about whether the image did become publicly displayed on social media as this may be an issue that goes to damages rather than liability. The purpose of making this comment is that viewed objectively, it is a circumstance in which a reasonable person would have anticipated that Ms Yelda would be uncomfortable with her likeness being displayed in the manner in which it was in the Poster such that she would be offended or humiliated by it.
7. Whilst our finding is not dependant upon on it, we note the immediate reaction of the Respondents to the Poster and the complaint of Ms Yelda in the emails sent by Sydney Water and Vitality Works at the time. How a reasonable person will act "in the circumstances" cannot be viewed in a total vacuum. The immediate reaction of managers at Vitality Works and at Sydney Water is not wholly irrelevant. How management did respond at the time gives some context to the question. We reiterate, however, that it is ultimately a matter for the Tribunal to judge as the test is purely objective.
8. We note that this approach is consistent with the remarks of Deputy President Hennessy expressed at a preliminary hearing in this matter on 25 February 2019 which we have followed. That is, whilst the mere statement of opinion about the Poster by a witness cannot be of assistance to the Tribunal, the way each Respondent responded to Ms Yelda contemporaneously in respect of the Poster has some relevance as to what a reasonable person would anticipate, even though it is far from definitive. It may not be proof in itself of how a reasonable person would react, but it could form part of the circumstances at this workplace.
9. So far as Sydney Water management was concerned, Mr Gillett gave evidence that the decision to remove the Poster was not made because the content was deemed to be sexual in nature or because displaying the Poster was considered to be sexual harassment. On the other hand, however, he did state in his signed statement to investigators that he and Mr Darren Cash decided to remove the Poster because they were of the opinion that the slogan may have been perceived by staff as connotative. We note that Mr Cash has not given evidence to contradict this statement.
10. We infer the word "connotative" to mean that the Poster and slogan may be perceived as having a sexual meaning in respect of Ms Yelda. In our view, if management of Sydney Water could anticipate that such a sexualised meaning may be perceived by some staff as arising from the Poster, then this supports the proposition that a reasonable person would have anticipated that Ms Yelda would be offended or humiliated by the Poster as she equally would perceive that staff may take this sexualised meaning from the Poster.
11. Similarly, in the email of 12 April 2016 from Ms Tsoukatos it was stated that the Poster "unfortunately contains a slogan that could be seen as offensive". This supports also the proposition that a reasonable person in the position of Sydney Water in all the circumstances would anticipate that Ms Yelda would be offended by the Poster.
12. Turning then to Vitality Works. In Ms James' email to Ms Yelda of 12 April 2016, Ms James stated: "I understand that the wording on the Poster may not have explained this [lubrication referring to lubrication of the joints] sufficiently, and thus not reflected as intended. On behalf of the Vitality Works team and myself, we would like to apologise that the context of the image may not have reflected as intended within the Poster and hope that you will accept this and continue to enjoy the SafeSpine program on-site."
13. Again, if a reasonable person in the position of Vitality Works could appreciate that the Poster content may not have reflected as intended, then such a reasonable person would anticipate that Ms Yelda would be offended or humiliated by having such an image of herself displayed in such a way. We note the slogan "Feel great - lubricate!" was replaced thereafter by "Move to Improve".
14. Finally, in respect of the evidence that there had not been any complaints previously, there does not appear to be evidence before us that any materially similar circumstances were previously encountered. In particular, there is no evidence of a previous prominent display of a single female with the text in question in a male dominated workforce without the subject's consent. Accordingly, the absence of complaint does not, in our view, negate our finding in this regard.

Conclusion

1. We find that the Respondents have contravened s.22B of the ADA in respect of the display of the Poster with the image of Ms Yelda on it.

Submissions of the parties

1. Ms Yelda submitted that sexual discrimination occurred because on the same day that her photograph was taken, a fellow male colleague, Mr Mead, was photographed for the same purpose but his photograph was not incorporated into a poster which was displayed in the workplace. According to Ms Yelda, her image was chosen and not that of Mr Mead because it would attract the audience by reason of her being the only female working at the depot at the time. Therefore, she was chosen and subject to degrading treatment by reason of her sex. She submitted that by the display of the Poster she was subjected to the detriment of being offended and humiliated in contravention of s.25(2)(c) of the ADA.
2. This claim was brought only against Sydney Water. Sydney Water's submission was that Ms Yelda's comparator, being Mr Mead, was too narrow and erroneous. According to Sydney Water, many of its staff were photographed by Vitality Works and both men and women were used in such posters along with the slogan "Feel great - lubricate!"
3. It referred to Ms McMahon's evidence that she could not recall her specific thought process at the time of selecting Ms Yelda in the specific poster, other than she likes to use images of both males and females to promote diversity in the workplace. Ms McMahon denied selecting Ms Yelda on the ground of her sex.

Consideration

1. Section 24 of the ADA specifies 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 circumstance, 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…"
2. Section 25(2) of the ADA provides that: "It is unlawful for an employer to discriminate against an employee on the ground of sex: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employments, or (c) by dismissing the employee or subjecting the employee to any other detriment."
3. Less favourable treatment
4. Direct discrimination has two elements, differential treatment and causation. For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of different sex and that treatment must have occurred in circumstances which are the same or not materially different. The treatment which was afforded to the complainant must be objectively less favourable than the treatment which was actually afforded to a person of different sex, or which would have been afforded to a person of different sex, in the same circumstances as the complainant or in circumstances which were not materially different. In Purvis v New South Wales [2003] HCA 62; 217 CLR 92; the majority (Gummow, Hayne and Heydon JJ) found at [224] that the relevant circumstances "are all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the "discriminator".
5. The relevant treatment of Ms Yelda was the display of the Poster with her image which used the slogan "Feel great - lubricate!" Mr Mead was a male worker at the site whose photo was taken for a SafeSpine illustration by Ms McMahon at the same time as that of Ms Yelda. The image of Mr Mead was not used with the slogan "Feel great - lubricate!" In respect of the selection of a comparator, Sydney Water contended that this should consist of those men whose images were used in similar posters along with the slogan "Feel great - lubricate!", rather than Mr Mead. Without deciding, we will assume this to be the case.
6. Neither Ms McMahon nor Ms James gave specific evidence as to selecting any men for posters to be displayed at Sydney Water's Depots with the slogan "Feel great - lubricate!" Mr Wallace did refer to two poster templates which used the slogan "Feel great - lubricate!" which also depicted male employees. One poster shows two men while the other poster shows three men. He was, however, unable to give any direct evidence as to their display or whether these images were ever utilised in this template. He only gave evidence of seeing Ms Yelda's poster in the Ryde Depot.
7. The poster of three men shows one out of focus and poor lighting on the other two. It's appearance is that of a trial photo in the template, not a final copy for use in the promotional materials. It may have been prepared and never have been printed and displayed.
8. Accordingly, we are unable to make any finding as to whether or not these posters depicting men as referred to by Mr Wallace were in fact displayed or used anywhere at Sydney Water. We are satisfied, given the detailed evidence received concerning the Ryde depot, that neither of these two posters were on display at the Ryde Depot.
9. In any event, these posters displayed men in a different way to which Ms Yelda was displayed in the Poster and in a different context. In respect of the posters containing images of men:

• One poster shows three men standing indoors in work attire in what appears to be a classroom. A group photo with other men in a classroom setting is less suggestive of intimate personal sexual activity.
• The other poster shows two men each in work attire standing outdoors. One man on the left appears to be performing a neck stretch and the other man on the right appears to be performing a shoulder roll. In large white type between the photos are the words "Try some neck movements or shoulder rolls" which did not appear in the Poster.
• Illustrating actual mobility exercise positions utilised in the SafeSpine training also created a different inference less suggestive of intimate personal sexual activity.
• Both posters displayed the text, "keep your joints lubricated to avoid wear and tear" which did not appear in the Poster and was in larger font than the text displayed in the Poster, again making those posters less suggestive of intimate personal sexual activity.
• The men in the photos worked in the all male Civil Maintenance Field Workers division and they, it can be assumed, participated in the SafeSpine mobility training course.
• Viewed objectively, the men in the photos are less likely to be offended or humiliated by their fellow male students and work colleagues seeing the two posters.

1. In contrast, the display of the Poster came with the following features:

• Ms Yelda was depicted alone in an eye-catching pose and not within a group or class. She was not in any obvious way depicted performing a SafeSpine mobility exercise nor was she depicted in a classroom. The text suggesting a mobility exercise was smaller and not obvious.
• She did not work in the all male division nor did she attend the SafeSpine mobility training course. Hence, she was unfamiliar with the course and would not be associated by viewers as a SafeSpine mobility training participant.
• She was familiar to and personally identifiable in the Poster to the Civil Maintenance Field Workers division as an individual employee who worked at that location, outside of the division.
• Viewed objectively, Ms Yelda is more likely to be offended or humiliated by reason of the male Civil Maintenance Field Workers division viewing the Poster.
• Based on the evidence we have summarised at paragraphs 51 and 52 above, we find the Poster was displayed at multiple sites in two different dimensions. In A3 size at Seven Hills and a smaller A4 size displayed at Warriewood and Ryde
• The Poster was displayed in a prominent location at Ryde. It was placed near the door of the general male toilet in the vicinity of general employment notices. It was clearly visible by all attendees on site, not just by those attending the mobility training course. This increased the likelihood that the Poster would be viewed with the suggestive sexual connotation.

1. For the foregoing reasons we find the treatment which was afforded to Ms Yelda was objectively less favourable than the treatment which was actually afforded to either Mr Mead or the men put forward by Sydney Water as the relevant comparators. We therefore conclude that Ms Yelda has established that she was treated less favourably than in the same circumstance, or in circumstances which are not materially different, Sydney Water treated or would treat a person of the opposite sex.

"On the ground of sex"

1. 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.
2. 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) 217 CLR 92 at [160] and IW v City of Perth (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) 217 CLR 92 at [166].
3. 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.
4. 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.
5. 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.

''Subjecting the employee to any other detriment''

1. The Tribunal has already found that the display of the Poster subjected Ms Yelda to the detriment of being offended and humiliated.
2. Accordingly, the Tribunal concludes and finds that Sydney Water acted in contravention of s25(2)(c) of the ADA.

ORDERS 1. The Tribunal finds the Respondents have contravened s.22B of the Anti-Discrimination Act 1977 (NSW) in respect of the display of the Poster with the image of the Applicant. 2. The Tribunal finds Sydney Water has contravened s25(2)(c) of the Anti-Discrimination Act 1977 (NSW) in respect of the display of the Poster with the image of the Applicant. 3. The parties are to approach the Registrar to arrange for a date for the matter to be listed for further directions to timetable a hearing on damages in respect of the found contravention of s.22B of the Anti-Discrimination Act 1977 (NSW).

Annexure A Image of the Poster redacted. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2019