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

NCAT Administrative and Equal Opportunity|2021-02-17|Before: Prof J

Triggell v Pheeney (1951) 82 CLR 497 Whiteoak v State of New South Wales [2014] NSWCATAD 45 Yelda v Sydney Water and Vitality Works [2019] NSWCATAD 203 Texts Cited: International Treaties: UN Convention on the Elimination of all forms of Discrimination against Women (18 December 1979) 1249 UNTS 13 Category: Principal judgment Parties: Reem Yelda (Applicant) Sydney Water Corporation (Respondent in 2018/213657) Vitality Works Australia Pty Ltd (Respondent in 2018/213589) Representation: Counsel: S Omeri (Applicant) K Edwards (Respondent in 2018/213589)

Solicitors: Harmers Workplace Lawyers (Applicant) Bartier Perry Lawyers (Respondent in 2018/213657) FCB Workplace Law (Respondent in 2018/213589) File Number(s): 2018/00213657; 2018/00213589 Publication restriction: Nil

Summary of the Evidence

The following exhibits were tendered at the damages hearing: Exhibit A1: Folder titled 'Vol 1 - Other Evidence' submitted 20 November 2020, 1-286 pages; Exhibit A2: Folder titled 'Vol 2 - Other Evidence' submitted 20 November 2020, 287-422 pages; Exhibit A3: Folder titled 'Vol 3 - Other Evidence' submitted 12 January 2021, 423-493 pages; Exhibit A4: Folder titled 'Expert Evidence', 1-139 pages; Exhibit A5: Clinic notes of the treating psychologist Ms Mariel Gadea from 12 January 2021 (7 pages) including health questionnaire (6 pages); Exhibit A6: Report of Dr Dave from 11 February 2021 (2 pages); Exhibit A7: Medix Specialist Centre report from 9 February 2021 (2 pages); Exhibit A8: Statement of Ms Yelda; Exhibit A9: Statement of Ms Bernadi (also found in Exhibit 1, page 13); Exhibit R1: Consultation Notes - Dr Lam (8 December 2015) (1 page); Exhibit R2: Tab D - Medicolegal Report from Dr S. Lim dated 29.01.2021 (30 pages, plus cover letter); Exhibit R3: Tab D - 11088508_1 Statement of Darren Cash 21 December 2020 (7 pages); Exhibit R4: Tab D - 11088520_1 Statement of Anthony Barron 22 December 2020 (9 pages); Exhibit R5: Respondent's Documents - Damages (excluding tabs 22 and tabs 23); Exhibit R6: 2 x Email chains Vitality Works / Sydney Water; Exhibit R7: Respondent's Extra bundle of documents possibly needed (tab 1-5, tab 8 & 9); Exhibit R8: Statement of K. James from 14 January 2019, including Annexures.
We set out below a summary of the principal evidence tendered before us. This is not intended to be a complete summation of the evidence.

Sally McMahon - 10/01/2019 (contained in Exhibit A2)

Ms McMahon is an exercise physiologist with expertise in workplace health and nutrition. She was employed by Vitality Works from January 2012 until July 2016.
Ms McMahon was responsible for delivering the SafeSpine Injury Prevention program. She delivered the SafeSpine workshop to Sydney Water, conducting approximately four or five workshops at West Ryde, Miranda and Potts Hill.
On 28 September 2015, Ms McMahon met Ms Yelda at a Sydney Water work site to observe a group of Sydney Water employees in the performance of their day-to-day tasks. She asked Ms Yelda if she could photograph her for her image to be used in the internal Sydney Water promotional material. Ms Yelda agreed. Subsequently Ms Yelda's image was selected for the "Feel great - lubricate!" Poster. According to McMahon the "Feel great - lubricate!" Poster was a template with a locked design.
Ms McMahon was cross-examined on her statement. It was put to Ms McMahon that she deliberately intended that the slogan "Feel great - lubricate!" should convey a sexual meaning to attract attention to the Poster from the entire male viewership that would view it. Ms McMahon "absolutely" denied this.
Ms McMahon was then shown a poster featuring men with the slogan "Nuts to Guts". Ms McMahon agreed that she might have designed this particular poster and that the reference to "Nuts" was a reference to testicles.
Ms Yelda submitted that we should reject Ms McMahons' evidence and find that she deliberately intended to convey a sexual meaning to the slogan "Feel great - lubricate!" and in effect cause Ms Yelda to be treated as a "sex object". We are not persuaded that this was the case. We accept Ms McMahon's denial of this proposition. It is supported by the fact that the slogan was an existing template with a locked design that has been used over a long period of time in conjunction with an education program that taught participants that movement of the joints lubricates them and this was the intended meaning of the slogan.

Katharine James - 14/01/2019 (Exhibit R8)

Ms James is employed by Vitality Works Australia Pty Ltd as a Service Delivery Manager at the relevant time. In this role Ms James managed site staff and client relations.
Vitality Works offers health and wellbeing programs to workplaces in Australia and New Zealand.
Ms James noted during her studies in exercise science the concept of lubrication of the joints through the release of synovial fluids was commonly referred to.
Ms James stated the SafeSpine program has been running across Australian workplaces for 14 years, and includes workshop presentations and the creation of posters and smart cards. She noted the program had not changed significantly between 2010 and 2016.
Between August 2010 and April 2016 Ms James delivered 25 SafeSpine programs and conducted 200 workshops.
She noted the SafeSpine programs consists of three aspects; customisation; workshops (implementation); and sustainability.
The customisation phase involved tailoring the programs to the client and includes taking photographs of the staff to create the smart cards and posters.
The implementation of the program is done through workshops which generally run for two and a half hours. These workshops seek to teach about anatomy and injury prevention.
Ms James noted the sustainability phase of the programs 'ensures that behavioural change occurs' through among other things 'continued leader training'.
Ms James said the word lubricate had been involved in the program since she started in 2010 and other than Ms Yelda no one had taken a concern with the use of the word.
Ms James noted the SafeSpine program began at Sydney Water in September 2015. During the implementation of the program Ms James ran workshops in the Ryde and Miranda depots towards the end of 2015. She noted during these workshops no one laughed at the use of the word 'lubricate'.
Ms James stated a customisation day was run on 28 September 2015 and involved Ms McMahon taking photographs of Sydney Water staff, including Ms Yelda.
Ms James stated as the material which used the images of Sydney Water employees was to be only displayed internally no release form was required.
Ms James stated the way the posters were compiled was the insertion of the photograph of the staff member(s) into a Vitality Works template before the poster was sent to a manger for approval.
In relation to the Sydney Water posters, Ms McMahon compiled the posters and sent them directly to Sydney Water, as Ms James was away and could not approve the material. Ms James stated had she not been away she would have otherwise approved the material as she did not see any problem with the posters.
Ms James reiterated that in her experience no client or employee of a client had taken issue with the use of the word 'lubricate'.
On 12 April Ms James was contacted by Mr Wallace from Sydney Water regarding Ms Yelda's complaint. Ms James said she was shocked at the complaint, noting in the SafeSpine program 'lubricate' was used in a scientific way.
Ms James checked with Ms McMahon who noted Ms Yelda had agreed to be photographed but was not shown the template of the Poster.
Ms James also noted Ms Yelda had failed to attend the training workshop.
On 12 April Ms James emailed an apology to Ms Yelda.
On 20 April all SafeSpine posters were removed from Sydney Water. In August 2017 the slogan was changed from "Feel great - lubricate!", to "Move to Improve".
Ms Yelda's complaint was raised in a Vitality Works managers' meeting. Ms James noted the managers were equally surprised by Ms Yelda's reaction.
Ms James was cross-examined on her statement. Ms James agreed that she was told that a poster featuring Ms Yelda's image was put up at the Miranda depot. Ms James denied the proposition that she was aware that Sydney Water's civil maintenance team was made up entirely of men.
Ms James agreed that Vitality Works did not keep a record of where on clients' premises the posters were posted. Ms James then had Vitality Works' apology to Ms Yelda put before her. Her attention was directed to the statement in the letter that stated Vitality Works would like to apologise for any miscommunication over the Poster. It was put to her that there was no miscommunication because Ms Yelda had not been asked to consent to her image being used with the slogan "Feel great - lubricate!". Ms James responded by saying she wasn't aware that she hadn't really consented to the use of the photos.
It was put to Ms James that the letter from Vitality Works in its final paragraph was apologising because she realised that the Poster did not convey a message that was free from sexual innuendo. Ms James denied that and suggested she was apologising for the fact that Ms Yelda didn't feel comfortable with the Poster.
We have some difficulty with this answer and regard it as implausible. The letter and our assessment of Ms James' evidence under cross-examination leads us to conclude that in fact at the time of the letter Ms James did realise that the Poster may have conveyed a sexual innuendo and this was part of the reason for the apology and alleged "miscommunication".

Jesie Chang - 29/10/2020 (contained in Exhibit A1)

Jesie Chang was employed at Sydney Water Corporation from 14 March 2005 to 7 November 2018 as Project Officer. In this role Chang worked closely with Ms Yelda.
Chang described Ms Yelda as 'knowledgeable and approachable', reliable, and 'always very professional in her conduct'.

Lina Yelda - 2/11/2020 (contained in Exhibit A1)

Ms Lina Yelda is the sister of Reem Yelda. She opined that Reem was a smart, respectful and determined individual.
Lina Yelda described her sister at the 'peak in her lifestyle and financial status' in 2015 and early 2016. In April 2016 she noted Reem 'appeared sad and withdrawn' and she noticed Reem's health to be deteriorating.
After weeks of questioning her sister what was wrong, Lina was finally shown the Poster. She stated she could understand why Reem was unwell. Lina noted she was disgusted at the Poster.
Lina Yelda said Reem was ashamed to show the Poster to their father, who was a well-respected member of their church community. Lina noted that Reem lost self-confidence and withdrew from the family.
It was noted that Reem felt as though her reputation in the male-dominated workplace had been tarnished, and her co-workers would look at her differently.
Lina Yelda stated as a result of the Poster she saw her sister's confidence and her physical and mental health decline, resulting in surgery and 'many difficult breakdowns'. It was also noted Reem suffered financial difficulties being involved in a drawn out legal process and had a number of unsuccessful job opportunities.

Diana Bernardi - 6/11/2020 (Exhibit A9)

Ms Bernardi noted that Ms Yelda joined the Emergency Services program with Red Cross in 2016 and had been involved in a number of activations, some of which took her away from home for a week.
Ms Bernardi listed the services Ms Yelda has been involved in, including a number of bushfire relief operations at the end of 2019 and the beginning of 2020.
Ms Yelda was described as a 'highly talented and enthusiastic person' who had engaged in a number of courses during her time at Red Cross and had assumed the role of Deputy Team Leader in Liverpool.
Ms Bernadi was cross-examined by Mr Mattson, solicitor for Sydney Water. Ms Bernadi confirmed that since 2017 she has been able to personally observe Ms Yelda's volunteer work for Red Cross. In that time she agreed that Ms Yelda showed she was highly talented, enthusiastic, showed strong organisational and leadership skills, and in a relatively senior role.

Peter Tonks - 6/11/2020 (contained in Exhibit A1)

Mr Tonks is a former employee at Sydney Water, having worked at the company and its various preceding incarnations for a number of decades. In 2013 worked closely with, and mentored, Ms Yelda, who was the only female Customer Liaison Officer of the team.
Mr Tonks described Ms Yelda as 'outgoing and a compassionate person, eager to learn, quick on the uptake and not afraid to ask questions.'
Mr Tonks noted that in her role Ms Yelda had to deal with the Civil Maintenance team, who he described as often being crude and condescending towards women. However, this attitude of the Civil Maintenance team did not hinder Ms Yelda's success in fulfilling her role.
In 2015 Mr Tonks changed office but continued to attend the old office. When he attended in mid-2016 he noticed Ms Yelda was not present. He was told she was on sick leave, which he considered unusual.
When Mr Tonks was shown the Poster he said he realised why Ms Yelda was on leave. He stated that the outgoing sympathetic confident person he had known was gone.
Mr Tonks said he could see how the Poster had compromised all the hard work Ms Yelda had done to establish a positive reputation within the Civil Maintenance team.
Mr Tonks noted Mr Yelda had not been able to return to work and he and his wife had tried to support her.
Mr Tonks was cross-examined on his statement by the respondents. Mr Tonks confirmed that he was informed that Ms Yelda was upset by the Poster but that he had not seen the Poster himself. Subsequently, the Poster was emailed to him by someone whom he could not recall.

Stephen Znautas - 6/11/2020 (contained in Exhibit A4)

Mr Znautas was formerly employed by Sydney Water as a manager, retiring in October 2016.
Ms Yelda commenced work in Mr Znautas's team in an entry level role with no previous experience. Mr Znautas described Ms Yelda as 'ambitious' with a 'strong desire and capability to learn'.
Mr Znautas stated in her role Ms Yelda was able to build strong relationships with other teams such as the civil maintenance team. Ms Yelda was seen as 'trustworthy'.
As Ms Yelda became more skilled and experienced, she took over more important roles with little oversight.
Mr Znautas also noted whilst developing technical skills, Ms Yelda also volunteered to be part of the Events team and represented Sydney Water at a number of public events.
In 2013 Ms Yelda applied for the Customer Liaison Officer position and Mr Znautas provided a reference for her. He noted from 2013 to 2016 the two had irregular conversations.
Mr Znautas recalled Ms Yelda complaining to him about the Poster in late April 2016. He advised her to complain to her managers, which Ms Yelda said she had already done but felt nothing was happening to remove the posters. Mr Znautas noted it was his belief some of the posters had not been returned to the managers, but rather destroyed.
Mr Znautas noted during the conversation Ms Yelda was in tears and it was apparent she was 'now questioning her own ability and that it appeared she perceived that her direct management did not support her and that any trust between her and line management had been lost.'
Mr Znautas noted the male-dominated culture which existed meant when Ms Yelda complained it 'degraded her working relationships and shattered any trust'. He considered the drawn out legal process to be indicative of the bullying sustained to Ms Yelda.
Mr Znautas stated as part of the Networks leadership team he was unaware of any investigation into the removal of the posters.
Mr Znautas said he believed the incident showed Sydney Water had failed to adhere to its own stated values.
Mr Znautas said he had a number of conversations with Ms Yelda since she had been off work. He said it was clear the Poster and the prolonged process has impacted her self-confidence and may affect her long term ability to build trusting working relationships.
Mr Znautas opined that prior to the incident Ms Yelda had 'high potential' and would have progressed to higher roles.
Mr Znautas was cross-examined on his statement. He explained that what he meant by there being a "low key atmosphere" at these depots was that it was a male-dominated field personnel who were a bit rough and ready and who could potentially degrade or deride a female. He also confirmed that Ms Yelda was in tears over the display of the Poster with her image.

Reem Yelda - 19/11/2020 (Exhibit A8)

Ms Yelda stated she migrated to Australia in 1982 after fleeing Iraq. She noted she was a Chaldean Catholic and was raised with conservative values.
She said she was employed by Sydney Water since October 2004. Ms Yelda noted she was always employed in service delivery roles, and this involved her working closely with the Civil Maintenance team, which she described as a 'blue-collar workforce'.
Ms Yelda said when she initially started at Sydney Water she was put in an administration role at St Mary's depot. She recalled seeing posters of naked women on the wall.
Ms Yelda said she had worked 'extremely' hard to earn respect in the 'male dominated industry'. She said she was well known and respected by the field and office staff and the contractors of Sydney Water and had lead a number of continuous improvement projects, and was promoted to high level roles. She said whilst working at Sydney Water she was often on 'standby' and had worked at a number of different depots, treatment plants, and offices in the network.
Ms Yelda said she had been used on promotional material a number of times and was never shy about her image being used. She said she would normally sign a release form for her image to be used, noting there was no release form for the SafeSpine Poster.
Ms Yelda stated by 2015/2016 she had achieved her financial goals and was looking forward to settling down and starting a family.
The circumstances which gave rise to the Poster were set out, namely on September or October 2015 she was called to a job. Whilst on the job Ms Yelda was approached by a photographer who told her she was looking for people to be involved in promotional material for the SafeSpine program, and asked whether Ms Yelda would be recognisable in the depots. Ms Yelda then agreed to be photographed.
She noted some months later she was emailed by Mr John Bannerman with the Poster attached. She noted she was initially confused and thought the Poster was altered. When she later saw Mr Bannerman and his reaction she felt disgusted for being portrayed as a 'sex object'.
She said some weeks later she became aware the Poster was displayed at the Ryde depot outside the men's toilets. She said she felt humiliated and ashamed.
On 11 April she was again emailed the Poster from Mr Steve Barclay from the Potts Hill office. When she opened the email she again felt humiliated and ashamed. Upon opening the email she attempted to reverse her car out of a McDonald's carpark and was involved in a minor car accident as a result.
That same day she saw Mr Barclay who advised her she should make a complaint. After this conversation Ms Yelda used the prior car accident as an excuse to leave work. She said that was when 'I broke down and my confidence was completely shattered'.
She said she has never returned to work.
Ms Yelda noted the following day she sent a text message to her team leader Mr Nicolson and told him she was not feeling well. Later that morning she emailed Messrs Cash and Gillett about the Poster.
Ms Yelda said on 12 April she had phone calls with Messrs Barclay and Nicholson. She said when she spoke to Mr Nicholson she could not stop crying at the thought he knew about the Poster.
Ms Yelda then recalled a time between November 2015 and February 2016 when she felt she was attacked by Mr Nicholson after creating a report to track customer complaints. She said that she had a meeting with Messrs Nicholson and Gillett to discuss the unfair treatment. She said no action was taken.
Ms Yelda stated she was unsure why Mr Nicholson was involved in the Poster incident and said she 'firmly believes he saw this as an opportunity to further damage my reputation with SW and an attempt to intimidate me because I complained about the poster.'
Ms Yelda said in her call with Mr Gillett on 12 April he assured her an apology would be sent to her and the matter would be investigated in compete confidence. She questioned this however, considering the Poster had been sent to Mr Nicholson. She said at this point she lost confidence in management and felt alienated.
Later on 12 April Ms Yelda received an apology from Ms Tsoukatos and an email from Ms James.
Ms Yelda said between 12 and 14 April 2016 she contemplated resigning from Sydney Water, noting she was 'continuously crying and could not think straight'. She was then encouraged by a friend to speak to a doctor and get a work cover certificate.
On 14 April Ms Yelda saw her doctor, Dr Lam. She complained of trouble sleeping and racing thoughts. She said she was prescribed Valium and given a work cover certificate. She sent a copy of the certificate to Sydney Water.
Later that day she was called by Ms Halpin who tried to organise her to visit a psychologist. She said during this conversation she felt confused but considered Ms Halpin to have her best interests at heart. She said months later she found this not to be the case.
Ms Halpin then organised Ms Yelda to see a psychologist later that day. Ms Yelda took her mother with her to the appointment and told her mother about the Poster. Ms Yelda also told her mother to keep the Poster a secret, including from her father. Ms Yelda said she felt ashamed and embarrassed and did not want to have to explain it all to her family.
Ms Yelda said she attended a number of appointments with Resilia which was organised through Sydney Water.
She said she felt isolated from Sydney Water and had her access to her email removed, and her work phone and computer taken away from her.
Ms Yelda noted she was worried about the exposure of the Poster and was concerned about where it had been displayed. She said she had not received 'credible clarification of the extent of my exposure.' However, she said she became aware of a poster being displayed in St Mary's depot, which was graffitied. She said this 'confirmed all my thoughts and insecurities'.
She noted she was worried about her reputation which she had worked hard to build up.
Although she had not worked at Sydney Water since April 2016 she said she was constantly reminded of the Poster when seeing anything to do with Sydney Water.
Ms Yelda said months after the incident she felt her physical and mental wellbeing get worse with headaches, panic attacks, palpitations and other symptoms.
After discussions with Dr Lam he provided her with a certificate indicating she had the capacity to work part-time, although was not to return to Sydney Water. Although Ms Yelda searched for a job she was unsuccessful in finding anything.
She noted Ms Fiona Simpson encouraged Dr Lam to issue a certificate indicating Ms Yelda had capacity to work full-time, in order to increase her prospects of finding employment. Ms Yelda was again unsuccessful in finding any employment, noting she went to one interview where she struggled to talk.
After this Dr Lam issued a third certificate once again indicating Ms Yelda only had the capacity to work part-time. She noted this certificate was not accepted by the insurer.
Ms Yelda stated in April 2017 her workers compensation ceased, however she had been under the impression it would last for three years.
As Ms Yelda struggled to find employment she volunteered with the Red Cross Emergency Services Volunteer team. In 2020 she applied for two paid roles with Red Cross but was unsuccessful.
Ms Yelda noted on 8 August 2017 she met with Mr Connelly and Ms Halpin. During the meeting she said she felt anxious and understood why she could not return to Sydney Water.
It was noted that during her search for a job she would be anxious about applying for jobs within the water industry as it was a close knit industry. Also it was noted Sydney Water had a policy in relation to employees getting second jobs, as such any job had to be approved by Mr Gillett.
Ms Yelda said she had Graves' disease which she was managing quite well before the incident, only requiring one tablet per day. After the incident she said her symptoms became exacerbated due to her stress. Her medication was increased sixfold by Dr Gargya.
After her symptoms failed to improve, in early 2017 her Endocrinologist Dr Hoffman prescribed iodine tablets to attack her thyroid gland. In April 2017 Dr Hoffman sent a letter to Ms Yelda's doctor indicating she was still experiencing stress and anxiety.
In early 2017 Ms Yelda noticed excessive bleeding during her menstural cycles, and in December 2018 required surgery for a pelvic mass removal. She noted she requires regular check-ups to monitor and treat pelvic mass growth.
Ms Yelda stated she continues to experience headaches, irregular bleeding, anxiety and stress.
In relation to the anxiety an MRI scan indicated Ms Yelda had 'flared white matter' on her brain and required a follow up MRI scan.
Ms Yelda said she was seeing a psychologist, Mariel Gadea, who was assisting her with her post-traumatic stress.
Ms Yelda stated in 2017 she had no regular income, and in November 2017 she was forced to sell her investment property, which was supposed to fund her retirement. She stated she sold the property to settle in relation to another property she purchased off plan in Melbourne.
She stated the damage to her 'financial portfolio' was significant.
In 2018 she began driving for Uber, however had to stop in 2019 after feeling unsafe.
In March 2020 Ms Yelda asked to be paid her leave entitlements at half rate, however Sydney Water did not pay this. She believes this was malicious on the part of Sydney Water.
In April 2020 Ms Yelda began receiving Job Seeker payments.
Ms Yelda stated she had lost her career opportunities as a result of the Poster. She stated the 'root cause' of her mental, physical and economic harm was the Poster.
Ms Yelda stated she had offered many times to settle the matter with Sydney Water, however these were all rejected.
Ms Yelda was cross-examined by Ms Edwards for Vitality Works.
Ms Yelda agreed that, as reported to Dr Lam in December 2014, she was under a lot of stress at work at the time because she was on call and had to respond to incidents all over Sydney.
Ms Yelda agreed that she did not like her team leader, Mr Nicholson. She, however, denied telling Dr Lam in December 2015 that she wished to be transferred to another role in the new year away from Mr Nicholson.
Ms Yelda agreed that Mr Nicholson was making her life difficult at work as of December 2015 because he was "micromanaging" her. It was put to her that she was upset about that as at December 2015. She responded: I don't know, not really. I don't recall. I didn't let, I didn't let one person affect me. I didn't last there for 12 years if one person upset me.
Ms Edwards took Ms Yelda to the WorkCover letter of 12 January 2017 which advised Ms Yelda that her weekly payments were being cancelled from April 2017. Ms Yelda stated that at that time "my headspace wasn't that great". She agreed she was upset by the WorkCover process and that the process caused her "to relapse".
She also stated that the liability hearing caused her to relapse because that: "…opened up a lot of wounds for me as well … because I've tried not to think about that and focus on my recovery after the poster. But every time, every process I've been through since then has opened up a lot of wounds and I have relapsed and this is just another attempt, when I lash out it's probably another relapse, I guess."
Ms Yelda also emphasised under cross-examination that she did not believe she had capacity to return to work with Sydney Water which is confirmed by some of the medical evidence. She confirmed that she did not want to work for Sydney Water at that time because, as she put it: "I couldn't go back. At that time I was begging them to see where these posters were posted … and no one gave me any information."
She also explained her inability to return to Sydney Water as follows: "A. All I remember, no all I remember is I couldn't face anyone. I would drive past a Sydney Water vehicle and I would turn my head. I'd drive past an asset that I'd operated or shut down or done whatever to and I would cry. So no. I had capacity to work because I wanted to work. I, I wanted to work. I knew it would assist with my recovery because that was my priority. That was my priority nothing else. It was to assist and to assist with my recovery and I've been working since I was 16, 17 years old. I've never, ever been unemployed up until last year so but all I'm telling you. I'm reading this but don't ask me to agree with it. Because all I remember is couldn't go back there and face everyone after this poster was firstly displayed in my workplace and then also going to my team leader and then emailed around anyway. So when you say no restriction, I don't understand what you mean by that. I, the restrictions were from what I remember, from what I recall and I never did go back to Sydney Water, because I tell you now it's, it's different how it is now. They would've found me a job within Sydney Water straight away. But I could not go back there. I could not face the scrutiny and I could not face people talking about me and the poster in front of my eyes. So for me it was just to remove myself from that situation and focus on my recovery. So in terms of working yes I did want to work. Then I, I tried to work. I applied for so many jobs. But I just was very unsuccessful and I still am." (Transcript 15/2/21 at 56.40-57.12)
We accept this evidence and the fact that Ms Yelda's inability to return to Sydney Water was fundamentally based upon the incidents with the display of the Poster.
Further, Ms Yelda gave evidence, which we accept, that the prior incidents with the Poster affected her in other contexts and in particular in seeking employment outside Sydney Water. As she put it in the following terms: "I'd start for interviews, job interviews where I was so confident I was going to get the job and then when I spoke about my experiences about the projects that I'd done they would turn around to me and say to me "Well why are you leaving?" And then I would break down because I couldn't even tell them about the poster. But I know I had to."
Ms Yelda was taken to the WorkCover assessments of her return to work capacity up to February 2017, which continued to agree with Dr Lam that Ms Yelda was not fit to return to Sydney Water, but was fit to return to work outside Sydney Water. In her mind, Ms Yelda indicated that she believed she was only fit for part-time work given her fragile state.
Ms Yelda agreed with the assessment of Dr Lam of 23 June 2016 that an appropriate return to work goal was for Ms Yelda to locate a different role with a different employer.
Ms Yelda also agreed with the assessment of Alfred de Robillard, registered psychologist, of 27 June 2016 that noted that Ms Yelda was willing and has the capacity to engage in work, however, her mental state would not allow her to return to her pre-injury duties. She also agreed with de Robillard's assessment that Ms Yelda consider a position with a different employer, which may improve her psychological state.
Overall, we found Ms Yelda to be a credible, reliable and honest witness.

Darren Cash - 21/12/2020 (Exhibit R3)

Mr Cash stated he is the head of Customer Services at Sydney Water, a position he has held since April 2020.
Mr Cash has been employed by Sydney Water since 1991 and in April 2016 he was the Area Manager of the Networks South department. This role required Mr Cash to occasionally engage with Ms Yelda.
Mr Cash also noted he would see Ms Yelda at work functions and they would exchange pleasantries.
He first recalled seeing the Poster depicting Ms Yelda on 12 April 2016. On this day Mr Cash attended a meeting with Mr Frank Kanak, who prior to the meeting had shown Mr Cash an email from Mr Barclay about the Poster. The Poster was attached to the email which was then forwarded to Mr Cash.
Shortly after this Mr Cash called Ms Yelda, who had previously attempted to call him. Mr Cash noted she was upset and the two had a 'lengthy' conversation in which Mr Cash assured Ms Yelda the Poster would be taken down.
Mr Cash then outlined the steps he took to remove the Poster:

He spoke to Mr Balasuriya from the Ryde Depot and asked him to take down the Poster immediately.
He also spoke to persons involved in the SafeSpine program to determine how many posters were in circulation and asked them to be removed immediately.
He spoke to four different managers regarding the removal of the Poster.

Mr Cash also organised for an apology email to be sent to Ms Yelda, which was done by Ms Angela Tsoukatos.
Mr Cash also noted that an email was sent on 19 April 2016 by Mr Tony Cannard about the removal of all SafeSpine posters.
Mr Cash said as far as he was aware all posters depicting Ms Yelda were removed on, or soon after, 12 April 2016. He said he believed that no posters depicting Ms Yelda were withheld or remained on display after 20 April 2016.
He noted there were no records as to where the Poster was on display. However, Mr Cash said on 10 May 2016 he sent an email to Messrs Wallace and Gillett regarding a review of the posters which had been returned from the depots.
Mr Cash said that despite what was claimed by Ms Yelda he was unaware of a poster which depicted Ms Yelda being on display at St Mary's depot, nor that any copies of the Poster were graffitied. He said had this been the case he would have referenced so in his 10 May email.
Mr Cash said that aside from emails to 'trusted senior managers' in relation to the managing of the situation he did not distribute the Poster, or a digital image of the Poster to anybody.
He said he was unaware whether Messrs Kanak or Gillett distributed the Poster to anyone other than for the purpose of responding to Ms Yelda's complaint or for workers compensation.
Mr Cash said he was also unaware of any employees at Sydney Water 'discussing, referencing or otherwise circulating' the Poster.
He recalled seeing a story about Ms Yelda and the Poster in the newspaper and on television around September 2017.
Mr Cash said he was aware that in April 2016 Sydney Water employed 2,603 people, with 33 full-time employees at the Ryde depot, 43 full-time employees at the Warriewood depot, and 59 full-time employees at the Seven Hills depot.
Mr Cash was cross-examined on his statement. Mr Cash agreed that he made the commitment to Ms Yelda to have the Poster taken down because Ms Yelda was so upset about the Poster and because his personal view was that the Poster was inappropriate. He agreed that the Poster in the way it displayed Ms Yelda's image could damage her reputation and standing among her colleagues.
Mr Cash accepted that it was possible that more than one poster was on display and that no records were kept of where the Poster was on display at the time.

Anthony Barron - 22/12/2020 (Exhibit R4)

Mr Barron has been employed by Sydney Water since April 2010 and has remained in the role of Management Coordinator for the Safety, Health and Wellbeing team since being with the company.
Mr Barron said he only recalled meeting Ms Yelda on 11 April 2016 after she was involved in a minor car accident. He recalled Ms Yelda reporting experiencing shortness of breath, a broken fingernail and a headache. Mr Barron sent a workers compensation form to the insurer in relation to this.
At this time Ms Yelda did not say anything in relation to the Poster. Mr Barron said he was aware Ms Yelda made a complaint about the Poster on 12 April 2016.
Mr Barron said Ms Annette Halpin, who is no longer employed by Sydney Water, was involved in assisting Ms Yelda obtain support for her workers compensation claim.
Upon reviewing the case files, Mr Barron noted that on 14 April Ms Halpin attempted to contact Ms Yelda and her general practitioner. On 15 April Ms Halpin spoke to Ms Yelda and made a booking for the same day for Ms Yelda to see Mr Alfred de Robillard, a psychologist.
Mr Barron said the approach by Ms Halpin was consistent with the principle of early intervention in relation to workers compensation matters. He noted that Sydney Water adopted this principle and was proactive in its approach to employee wellbeing. It was noted Sydney Water had a panel of medical specialists who provided urgent care when required.
Mr Barron stated, contrary to Ms Yelda's statement, that Ms Halpin had Ms Yelda's best interests 'at heart'. He said Ms Halpin was a 'conscientious and caring person' and her actions in relation to Ms Yelda were 'appropriate and were only designed to support and help Ms Yelda'.
Mr Barron stated in relation to Sydney Water's workers compensation process, when a claim was received his team would lodge it with Allianz, the insurer for Sydney Water.
In relation to Ms Yelda, Allianz were informed of the claim on 14 April 2016, and from that time Ms Halpin liaised with the insurer and rehabilitation provider to aid Ms Yelda's recovery.
On 19 December 2016 a decision was made by Allianz to terminate Ms Yelda's workers compensation payments effective 21 April 2017. Mr Barron said he believed this decision was made after a work capacity assessment was carried out in relation to Ms Yelda.
Mr Barron noted the letter sent from Allianz to Ms Yelda informing her of the decision to stop her workers compensation payments, which also set out that she was entitled to medical and other related expenses until 21 April 2019. Further, the letter noted Ms Yelda had a right to have the decision reviewed.
Mr Barron said he had been informed that inquiries suggest Ms Yelda did not seek a review of the decision, nor did Ms Yelda dispute her PIAWE calculation.
Mr Barron said he had been told the following in relation to Ms Yelda's compensation payments:

Between 14 April 2016 and 21 April 2017 she received $93,720.52 in weekly compensation payments.
$9,562.47 was spent on Ms Yelda's medical expenses and appointments.
$22,514.05 was spent on Resilia, a third-party rehabilitation provider.

Mr Barron said in August 2017 Ms Halpin sought a quote from Resilia to provide Ms Yelda with additional job seeking sessions to help her obtain employment. Ms Halpin initially approached Allianz to pay for these sessions, however they refused. Instead, Ms Halpin obtained the approval from Sydney Water to pay for this.
Mr Barron stated the email correspondence in relation to these sessions indicate Ms Thompson from Resilia said Ms Yelda had declined the offer.
Mr Barron said Ms Yelda's hourly rate of pay was:

Between 1 July 2016 and 30 June 2017: $53.29985/hr
Between 1 July 2017 and 30 June 2018: $54.63234/hr
Between 1 July 2018 and 30 June 2019: $56.92308/hr
Between 1 July 2019 and 30 June 2020: $58.14693/hr

Mr Barron outlined the leave which was taken by Ms Yelda between 14 April 2016 and 30 June 2020:

0.96 days of her accrued but untaken personal/carer's leave each week from 29 July 2016 to 12 April 2017 (except between 24 December 2016 and 12 January 2017 and 21 January 2017 and 3 February 2017).
A combination of leave without pay and 145.66 personal/carer's leave from 24 April 2017 and 12 February 2018.
Sick leave without pay since 13 February 2018.

Mr Barron said Ms Yelda had been paid a total of $10,582.09 between 1 April 2017 and 6 December 2020 for public holidays under cl 20.3.2 of the Sydney Water Enterprise Agreement 2017.
Mr Barron said Sydney Water had a secondary work policy in place to address conflicts of interest. He said he was aware of Ms Yelda being given approval for secondary employment by Mr Gillett on 18 August 2016. Mr Barron said Ms Yelda was made aware of this approval on 24 August 2016.
Mr Barron stated that business equipment including laptops and mobile phones provided by Sydney Water were attached to specific roles as opposed to individuals. Mr Barron said he believed Ms Yelda's work phone and computer were returned to Sydney Water in September 2016, around the same time Ms Khan took over the role of Customer Liaison Officer.
Under cross-examination, Mr Barron agreed that his first involvement with Ms Yelda was following her car accident. Mr Barron conceded that part of the rationale in trying to get Ms Yelda back to work was to reduce workers compensation premiums. Mr Barron also accepted that Sydney Water trusted the opinion of Mr de Robillard. Mr Barron was taken to Ms Halpin's notes which referred to the indication from Dr Lam and Mr de Robillard that the restriction on Ms Yelda ever returning to work at Sydney Water is likely to be permanent. Mr Barron agreed that the psychologist referred to by Ms Halpin was Mr de Robillard, whom Mr Barron indicated was someone whose opinion Sydney Water trusted.
Under cross-examination Mr Barron was referred to the approach of Mr Gillett that Ms Yelda was allowed secondary employment, but only for a three month period, at the conclusion of which Ms Yelda was told that she should be able to return to her permanent employment. It was suggested that this was inconsistent with the proposition agreed to by Sydney Water that it should be guided by the medical evidence, which at that point was that return to Sydney Water was likely to be inappropriate on a permanent basis. Mr Barron initially stated that he did not agree with that proposition that was put, but then stated that he couldn't say definitively because he wasn't involved to that degree.

Dr David W Lam -14/07/2016 (contained in Exhibit A4)

Dr Lam reported that Ms Yelda was feeling depressed and anxious. She was teary and shaky when the incidence was discussed. She reported having problems sleeping and she experienced a panic attack. She concluded that she would not be able to return to work at Sydney Water again.
Dr Lam agreed that Ms Yelda was angry "as well" mainly at management and she felt that the apologies she received were not genuine and the support management gave her after the incidents was not adequate.
Dr Lam stated that Ms Yelda also reported the following. She loves her job and was proud of what she was able to achieve. She would love to be able to return to work but was unable to face the peceived humiliation. It was Dr Lam's opinion that unless Ms Yelda is able to get over this barrier there will be no resolution for her.
In Dr Lam's opinion if Ms Yelda could find another suitable career it might help her to get over her psychologically traumatic experience quicker.
His opinion was that the display of the Poster was the main cause of her current presented state. It was because of this that she felt extremely humiliated and unable to face her colleagues again. She saw Dr Lam on 13 April 2016 and was in tears over the incidence.
Dr Lam indicated that her psychological injury had not resolved as she still felt depressed, anxious, and angry at the management. However, she has improved significantly.
Dr Lam's opinion was that at that time she was not capable to returning to work for Sydney Water in her usual role. Whilst it is more acceptable if she works elsewhere in Sydney Water, Dr Lam recognised that there is still a high possibility that she would have to deal with old colleagues at work as well as outside work.
According to Dr Lam, Ms Yelda has never raised any workplace or performance issues prior to the incident with the Poster that could have been a contributing factor to her current psychological state and that she has been happy about her workplace performance and her colleagues.

Dr David W Lam - 06/03/2017 (contained in Exhibit A4)

Dr Lam stated, "[the] root cause of her anxiety is from the poster displaced at her workplace, but with what has been going on after this, she is now feeling more frustrated and her anxiety level has increased." Her anxiety and frustration got worse after receiving notification from Allianz that she was going to lose her payment and support in April 2017.

Mariel Gadea - 17/11/2020 (contained in Exhibit A4)

Ms Gadea is Ms Yelda's treating psychologist. It was noted Ms Yelda was referred to Ms Gadea by her general practitioner on 21 April 2020, and since that date Ms Yelda has undertaken a number of consultations.
Ms Gadea stated Ms Yelda reported feeling 'completely distraught, betrayed and depressed' by the Poster and had experienced a number of symptoms including anxiety, insomnia, withdrawal from family and friends, low self-esteem, financial distress, exacerbation of her Graves' disease, night terrors and persistent headaches.
Ms Gadea noted Ms Yelda reported the distress the complaint process had caused, particularly representing herself at the commission. Ms Yelda felt as though Sydney Water was trying to 'run her down emotionally and financially', which further exacerbated her symptoms.
Ms Gadea noted she assessed Ms Yelda as having symptoms consistent with Post-Traumatic Stress Disorder, as well as mild depression and Chronic Adjustment Disorder.
Ms Gadea opined 'Considering the bullying continued through litigation and was systemic and over a 4-year period it would be fair to relate these symptoms to this negative life event. This has consequently led to the return to her job working for Sydney Water as an untenable option.'
Ms Gadea was cross-examined on her statement. In respect of her list of symptoms that involved exacerbation of Graves' disease and excessive menstrual bleeding, Ms Gadea agreed she had no specialist expertise in those fields.
Ms Gadea was then cross-examined on her conclusion that Ms Yelda was exhibiting symptoms consistent with post-traumatic stress disorder which was assessed at DSM-5 level. Ms Gadea rejected the submission that an assessment of DSM-5 was not appropriate because Ms Yelda had not experienced death or serious injury or exposure to viewing serious trauma. Ms Gadea indicated that the assessment was appropriate given the high score Ms Yelda displayed on assessment and that it was appropriate to use clinical experience and clinical skills in diagnosing the post-traumatic stress disorder and level.

Dr Samuel Lim - 29/01/2021 (Exhibit R2)

Dr Lim is a Consultant Psychiatrist qualified by Sydney Water who produced a medicolegal report dated 29 January 2021 based upon his medical examination of Ms Yelda on 22 January 2021.
Dr Lim's assessment was that Ms Yelda has developed an Adjustment Disorder as per the DSM-5 diagnostic criteria, as indicated by Associated Professor Robertson. Dr Lim stated the following: " The display of the poster, Ms Yelda's interpretation of the poster constituting sexual harassment, and the subsequent psychological symptoms she described would qualify in my opinion for the diagnosis of an Adjustment Disorder. I am of the opinion however that while the display of the poster was a highly distressing event for Ms Yelda and which was of sufficient seriousness to cause her to experience an Adjustment Disorder, the display occurred in the context of some tension in the work environment, in particular in her relationship with her team leader."
Dr Lim was of the opinion that Ms Yelda's pre-existing medical conditions, including, but not limited to, Grave's Disease are not a significant causal factor in either past or present episodes. He also opined that Ms Yelda's difficulties with the job seeking process and in identifying alternative gainful employment is a factor in her current mental state rather than her past mental state.
Dr Lim's report included the following: "To the extent any psychological condition was caused by the Poster itself, did that condition resolve and if so, when, and or was it exacerbated by the matters listed above in questions 2 and 3 (excluding (c))? At the time of this assessment, I am of the opinion that Ms Yelda did develop a psychological condition caused by the display of the poster itself and I am in agreement that her presentation at the time consisted of an Adjustment Disorder. l am of the opinion that this condition did stabilise to a degree to the extent that it permitted her to participate in the rehabilitation process. However, it does appear that she likely did make up her mind earlier on that she would not be able to return to work with the employer in any capacity. I am of the opinion that in the context of these difficulties, and as a further result of her perception of an initially inadequate and subsequently adversarial response on the part of Sydney Water, that she experienced a regression of her Adjustment Disorder."
Dr Lim was cross-examined on his report. He was asked whether the diagnosis of an Adjustment Disorder was caused by the display of the Poster or by other causes. His answer was as follows: "It's a nuanced answer and my response would be I am of the opinion that the original impact of the display of the poster with regard to her current mental state is actually less significant compared to other, other matters which I have detailed in my report."
Dr Lim gave the opinion that he did not believe that Ms Yelda fulfils the criteria for post-traumatic stress disorder. Dr Lim however conceded that a psychologist has experience and skill to make a diagnosis of post-traumatic stress disorder.

Dr Nasreen Shammas - 9/02/2021 (Exhibit A7)

Dr Shammas stated she had been seeing Ms Yelda since October 2017 for heavy menstrual bleeding secondary to uterine fibroid and work-related stress.
Dr Shammas said she had seen Ms Yelda eight or nine times in relation to this. She also noted that Ms Yelda complained about stress and anxiety in relation to the Poster.
Dr Shammas opined that Ms Yelda continued to suffer from the conditions as set out in her report dated 23 July 2020, and this condition has been 'partially aggravated' by the Poster and subsequent legal process involved.

Dr Darshana Dave - 11/02/2021 (Exhibit A6)

Dr Dave said she had been reviewing the condition of Ms Yelda, as Ms Yelda's GP, for the past 12 months, noting Ms Yelda has been treated, and continues to be treated, for stress, lowered mood and anxiety which significantly impact her daily activities.
Dr Dave said Ms Yelda was 'constantly on edge when in my rooms'. It was noted that Ms Yelda had been diagnosed with PTSD and depression by her treating specialist.
It was noted Ms Yelda continues to be regularly treated by her psychologist and psychiatrist. Further, Ms Yelda's stress and anxiety has caused her headaches for which she was advised, by her neurologist, to take medication.
Dr Dave noted the 'main cause' of Ms Yelda's stress and depression was the Poster.

Applicant's submissions

Ms Yelda sought damages of $100,000 (totalling $200,000) from each of Sydney Water and Vitality Works. She put forward various heads of loss and damage.
Ms Yelda submitted that the appropriate approach was for the Tribunal to calculate her total losses and then apply the cap to each of Ms Yelda's claims against Sydney Water and Vitality Works. The overall submission was that where Ms Yelda's total losses are over $200,000 ordering each of Sydney Water and Vitality Works to pay the statutory cap of $100,000 will not result in double recovery.

Injury to feelings

Incorporated in this heading were Ms Yelda's claims for humiliation, damages to reputation and character and personal damages. Ms Yelda contends that all of the evidence demonstrates that she has, by reason of the display of the Poster, suffered serious and prolonged injury to her feelings along with pain and suffering which justifies a very significant monetary award, or very near to the statutory cap of $100,000.
Ms Yelda submits that it is no answer that other persons may not have been as troubled as Ms Yelda by the display of the Poster as the respondents must take the applicant as they find her: see for examples Johnson v Commissioner of Police [2004] NSWADT 198 at [34]. Ms Yelda pointed to the Tribunal's finding at the liability hearing that the Poster was displayed at least at three separate depots: at [179].
Ms Yelda contended that evidence of serious hurt to her feelings and pain and suffering over a number of years through to 2020 is provided in the following sources: 1. Ms Yelda's own statement of evidence, in particular paragraphs [25], [26], [29], [34], [42], [45], [46], [52], [56], [59] and [85] of her witness statement of 20 November 2020; 2. the corroborative evidence of Ms Yelda's sister, Lina Yelda, at [5]-[9] and [15] of her statement of 2 November 2020, at [12] of the witness statement of Mr Tonks of 6 November 2020 and at [12] of the witness statement of Mr Cash of 21 December 2020; 3. contemporaneous documents such as Ms Yelda's email of 12 April 2016 to Messrs Cash and Gillett; and 4. the case notes and medical evidence, including in particular case notes prepared by Resilia, on behalf of Sydney Water, on 15, 22 and 29 April 2016 and 11 May 2016; and 5. the report of Ms Yelda's treating psychologist, Ms Gadea, of 17 February 2020.

Personal psychological injury

This was the next head of damage put forward by Ms Yelda. It incorporated Ms Yelda's claims for chronic adjustment disorder and post-traumatic stress as clinically diagnosed heads of personal damages. The contention was that Ms Yelda, apart from hurt feelings, suffered distinct psychiatric injury and has resulted in physical injury in the form of an exacerbation of Ms Yelda's pre-existing Graves' disease, fibroids and heavy menstrual bleeding, and headaches and cervical pain.
Ms Yelda contends that this personal injury amounts to loss or damage she suffered "by reason" of the respondents' conduct. Ms Yelda relied upon the extensive medical evidence to support her personal injury.
In particular, Ms Yelda pointed to the clinical assessment performed for Sydney Water's insurer, Ms McCorry, psychiatrist, who opined that Ms Yelda's symptoms were of adequate frequency and severity to warrant a clinical diagnosis of adjustment disorder with mixed anxiety and depressed mood. Next, Ms Yelda relied upon the diagnosis to similar effect by Resilia in its reports from 16 June 2016 until 22 March 2017. The diagnosis of "anxiety and depression" was also confirmed, Ms Yelda points out, by Mr de Robillard, Sydney Water's retained registered psychologist, in his report of 7 July 2016.
Ms Yelda next refers to the report of Associate Professor Robertson of 27 April 2017 in which the Professor concluded that Ms Yelda presented with chronic adjustment disorder with anxiety and depressed mood and seems to be tracking towards a persistent depressive disorder. Ms Yelda refers to the fact that the Professor specifically noted in the report that Ms Yelda's endocrinologist had "definitively commented" that Ms Yelda's "presentation cannot be attributed to thyrotoxicosis, given she is now clinically euthyroid".
In conclusion, Ms Yelda contends that given her psychological injury has persisted for over four years and has caused physical conditions, it merits an award (at least) at the middle of the statutory cap - i.e. $50,000.

Loss of earnings (incorporating past economic loss)

Ms Yelda submits that the difference between what Ms Yelda would have earned but for the conduct of the respondents in question and what she in fact received under workers compensation and Job Seeker allowance (without factoring in overtime, standby rates, salary increases or the like) was $343,360.32. Ms Yelda contends that Vitality Works in its submissions of 4 February 2020 accepted the difference was at least $243,280.08.
Ms Yelda contends that the evidence makes out that had she not suffered the contraventions the subject of the case before the Tribunal, she would have continued to work for Sydney Water until her constructive dismissal on 9 December 2020.
Medical evidence, it was contended, demonstrates that the discrimination and its psychological sequelae prevented Ms Yelda reasonably from ever returning to work for Sydney Water. Further, Ms Yelda attempted reasonably and appropriately to mitigate her losses by seeking alternative employment. As at April 2017, she applied for over 100 jobs but was unsuccessful.
Accordingly, the Tribunal would have no difficulty in finding at least up to the statutory cap of $100,000 for each respondent, that past economic loss makes up the difference after any finding as to personal injury and hurt feelings under the previous two heads of damage.

Aggravated Damages

Ms Yelda pursued a claim of aggravated damages against Vitality Works, but not against Sydney Water. Ms Yelda relied upon eight matters.
First, she relied upon the insincerity, as she put it, of Vitality Works' apology. Ms Yelda refers to Ms James' apology on behalf of Vitality Works as being insincere. In particular, its statements "I understand that the wording on the poster may not have explained this sufficiently" and "Sally McMahon … would like to apologise for any miscommunication this may have caused". Ms Yelda contended that this minimised the gravity of the conduct and sought to characterise it as "miscommunication".
In addition, Ms Yelda focused on the concluding remarks of the apology where Ms James stated: "…We would like to apologise that the context of the image may not have reflected as it intended within the poster" and the statement that Ms James hoped Ms Yelda would "continue to enjoy the SafeSpine Program on-site". Again, this was cast by Ms Yelda as an attempt to minimise what was the clear effect of the Poster and how it did in fact not focus upon the production of synovial fluid which was allegedly its purpose.
Ms Yelda characterised the apology as "ass covering" and a "non-apology". Associate Professor Robertson referred to the apology as a "melange of 'weasel words'".
Second, Ms Yelda refers to the fact that Vitality Works, although apologising and apparently admitting they bore liability for the sexualised content of the Poster, nevertheless allowed matters to progress to litigation.
Third, and related to the second matter, was the contention that Vitality Works failed to engage with Ms Yelda's settlement attempts. This heightened her stress and compelled her to go through litigation substantially unrepresented.
Fourth, Ms Yelda relied upon what she described as Vitality Works' attempt unreasonably to damage Ms Yelda's character and reputation during the litigation. Ms Yelda here referred to the contention that was pursued by both respondents that Ms Yelda had complained about the Poster and taken leave because she was aware that she was shortly to be the subject of a performance improvement meeting and plan and she was seeking to avoid the consequences of that.
Reference was made to Vitality Works pursuing unmeritorious appeals. This was referred to as the unmeritorious appeal to the Appeal Panel which was unsuccessful.
Ms Yelda relied upon what was described as the filing of inaccurate notes of the liability hearing to the Appeal Panel. What was dealt with under this heading was the contention that the respondents provided so called "transcript" of the liability hearing to the Panel which contained numerous errors which Ms Yelda had to correct by going through and listening to the sound recordings of the liability proceedings herself. At best, this was characterised as unnecessary carelessness of Vitality Works, who was well-resourced.
Seventh, Ms Yelda relied upon the fact of Vitality Works appealing to the Court of Appeal. Included in this contention was the fact that Vitality Works also sought a stay of the damages hearings after this was rejected by the Tribunal. The Court of Appeal rejected the application for a stay and the application for leave to appeal to the Court of Appeal is still outstanding.
Finally, Ms Yelda relies upon Sydney Water issuing seven summonses for documents but not relying upon any documents so produced. We note this is against Sydney Water and that no claim is made against Sydney Water, so it does not appear that we need deal with this last matter.
Ms Yelda concludes that an award for aggravated damages for $20,000 is appropriate. There continues to be delay and unjustifiable, improper and lacking in bona fides behaviour and at least some degree of malice. Alternatively, that the conduct demonstrates an "arrogance bordering on defiance". Reference was made to Ms Yelda's evidence at [83], [84] and [96] of her statement of 20 November 2020, in particular that additional mental distress has been suffered as a result of the conduct referred to.

Conclusion on Damages

Ms Yelda contends that her total damages may be calculated as follows: Injury to feelings: $100,000.00 Personal injury: 50,000.00 Past loss of earnings: 243,280.08-343,360.32 Aggravated damages 20,000.00 (against Vitality Works only) Total: $413,280.08-$508,360.32

Accordingly, an award of damages of $100,000 against each respondent ought be made.

Sydney Water's Submissions

Sydney Water made reference to the medical reports that arose out of Ms Yelda's contact with Sydney Water's workers compensation insurers. In particular, reference was made to the medical reports that by the latter half of 2016 and by early 2017, it was reported by Resilia that Ms Yelda was "psychologically much improved" and that "Ms Yelda's psychological condition had improved and she had re-engaged in social activities and regular exercise". This led to the insurer determining that Ms Yelda had capacity to work and her workers compensation payments would cease in April 2017.
Sydney Water submitted that what angered and upset Ms Yelda after April 2017 was her perception of the genuineness of the apology, how the workers compensation claim was managed (and subsequently ceased) and the subsequent litigation processes. It was contended that these are all matters that are separate from the complaint under the ADA as they are not contraventions of the ADA.
So far as the Poster itself was concerned, Sydney Water submitted that it was, on the evidence, only found to have been on display in three depots and was immediately removed upon complaint from Ms Yelda.
Sydney Water submitted that there was no ill intent to target or humiliate Ms Yelda and Sydney Water commissioned Vitality Works to produce the safety campaign and Vitality Works was not aware of the meaning attributed to the Poster. It submitted that consistent with having no ill motives, Sydney Water immediately apologised. Sydney Water contended that its apology was genuine.
Sydney Water also contends that Ms Yelda in her statement of 19 November 2020 asserts that she was bullied, harassed and continues to be so as part of the Tribunal proceedings. According to Sydney Water, the Tribunal needs to focus on compensation for any loss suffered by reason of the display of the poster - for a limited period in a limited number of locations - and cannot compensate her for these other matters including the impact of the Tribunal proceedings. It submits that in assessing the award of any damages, regard needs to be had to the full circumstances, including the immediate response of Sydney Water to appropriately manage the situation: relying on Cooper v Western Area Local Health Network [2012] NSWADT 39, at [91] and [92].
As to economic loss, Sydney Water submits: 1. There is evidence that the cause of the applicant's continued inability to work by July 2016 was focused on matters other than the Poster directly and that by the later part of 2016 she had psychologically improved and was capable of looking for other employment but that other matters subsequently from January 2017 had then caused her anger and upset. 2. As such, any payment for economic damages should be limited to a defined period of 12 April 2016 to the end of 2016. 3. Account needs to be taken of workers compensation payments or other amounts earned or received by the applicant - like sick leave - in mitigation. 4. The applicant's gross payments for financial year ending 2016 were $109,919 and for the financial year 2017 were $109,270, thereby meaning she had suffered no economic loss. 5. To the extent any economic loss is determined to be suffered by reason of the respondents' conduct, it needs to be apportioned between Sydney Water and Vitality Works and account for contingencies.
As to general damages (which covers humiliation, reputational and personal damages), Sydney Water: 1. accepts the applicant suffered some embarrassment, humiliation and distress in respect of the Poster (but says the level of embarrassment etc is moderated by the applicant's lack of immediate reaction on 1 March 2016, comments on 12 April 2016 that "I don't want to make a big deal about this at this stage" and by herself circulating the Poster nationally in the media); 2. submits there is no evidence of any reputational damage to the Applicant (with reasonable certainty necessary to found damages); and 3. says in this matter, while the Poster may have been upsetting, the incident does not command damages in the middle or higher range. It was a limited display for a limited period, to a small segment of the workforce, with no ill-intent. It would be appropriate to award general damages between $5,000 to $15,000 in all the circumstances.

The submissions of Vitality Works

Vitality Works focused firstly on the medical evidence and submitted that Ms Yelda had produced no medical evidence in a form that is of use to the Tribunal as expert evidence as none of the evidence complies with Practice Direction 3 and/or was produced as evidence under unrelated legislative schemes. That is, the medical evidence went to the issue of whether or not treatment at work in general caused injury or inability to work rather than whether the specific actions in question, being the publishing, printing, display and distributing of the Poster, caused an injury and her inability to work.
There was, Vitality Works contended, no cogent medical evidence in support of the proposition that Ms Yelda's pre-existing condition of Graves' Disease and any gynaecological conditions were exacerbated by the stress caused by the unlawful treatment in question. It was submitted that there needed to be specialists in the precise areas (being endocrinology or gynaecology) showing stress could and in fact did exacerbate her conditions in this regard. Overall, for the above reasons, we were urged to give low to no weight to Ms Yelda's medical evidence.
According to Vitality Works, the evidence demonstrates that Ms Yelda's deterioration of her condition in 2017 was due to Ms Yelda's perception of how she was treated by her employer, Sydney Water, and in particular its insurer and Vitality Works cannot be held responsible for such contributing factors to her increased anxiety and associated psychological condition.
As to economic loss, Vitality Works accepts there are two separate claims as against Sydney Water and Vitality Works so that each respondent is liable for damages to the statutory limit of $100,000 by virtue of s.108(2)(a) of the ADA. By reference to a schedule of the evidence, Vitality Works submitted that the difference between what Ms Yelda would have earned and what she in fact received under workers compensation and Job Seeker until the date of her termination in December 2020 was around $243,280.08. However, it submitted that as matters other than the contravening conduct gave rise to Ms Yelda being unfit for work after 2016, there is no evidence of economic loss in the relevant period to support a claim for past or future economic loss so that Ms Yelda would be confined to a claim of general damages.
As to general damages, Vitality Works referred to various decisions, in particular Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 and Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112. It emphasised that the Tribunal has awarded general damages by reference to the statutory cap of $100,000 and that this can distinguish the situation in the Federal sphere where damages are uncapped.
Vitality Works contended that it is jointly and severally liable with Sydney Water for the damages caused by their conduct. However, it contends it cannot be held liable for steps Sydney Water did or did not take after the discriminatory conduct that exacerbated Ms Yelda's damage. In particular, Vitality Works cannot be held responsible for matters such as when or how the Poster was removed; what steps were or were not taken to investigate the complaint; and Sydney Water's dealings with Ms Yelda thereafter.
As to the claim for aggravated damages, Vitality Works contends the evidence does not permit any such award to be made as it did not show any ill feeling or malice towards Ms Yelda and at all times Vitality Works had acted reasonably in the litigation. Further, that its apology was genuine and reasonable.
Vitality Works contends that Ms Yelda cannot bring a claim for reputational damage when she promulgated the Poster herself. Further, there is no direct evidence of any impact on reputation in the evidence filed.
In summary, Vitality Works' principal contentions were as follows: 1. Ms Yelda was recovering in 2016 and her deterioration was linked to factors other than the Poster; 2. there was a failure to lead cogent medical evidence clearly linking Vitality Works' breach of the ADA to Ms Yelda's injuries; 3. Ms Yelda's emphasis in the hearing and to various doctors as to the reasons for her distress were focused on treatment by Sydney Water and its insurer well after the complaint about the Poster; 4. the handling of the complaint about the Poster and the workers compensation claim, in relation to which Vitality Works had no role, except in its apology, clearly caused the damage alongside any response to the Poster itself; and 5. the applicant suffered no loss of income until 2018.
Accordingly, Vitality Works submits Ms Yelda cannot show she was unable to return to work because of the Poster so as to cause Vitality Works to be liable for economic loss from 2017 when her condition worsened due to treatment by entities other than Vitality Works.
Accordingly, the only claim against Vitality Works should be for general damages, which should not be more than $10,000 as a one-off event, and given that the Poster was removed immediately following her complaint. The amount of $10,000, it was contended, should be apportioned between it and Sydney Water.
As to past economic loss, it put forward a schedule as follows: Total $243,280.08 Text versions: Schedule (75834, rtf) | Schedule (42109, pdf)

Ms Yelda's submissions in reply

Ms Yelda invited the Tribunal to infer that the reason why Ms Yelda's image was chosen to feature in a poster with the heading "Feel great - lubricate!" was in order to attract the attention of its exclusively male workforce by associating the image of an attractive, smiling young woman with sexual conduct. That is, the intention was to have the audience look at the Poster and think about sexual matters and thereby be more receptive to the other message of the Poster related to the SafeSpine Program. In other words, that the respondents deliberately used Ms Yelda as a sex object in order to convey the work health and safety message without obtaining her consent to such use of her image.
It was contended that such treatment of Ms Yelda, and as perceived by her, makes her injury to feelings and claim of humiliation and the like all the more serious and worthy of significant compensation.
Ms Yelda made submissions in reply to the argument of the respondents that her injury to feelings was not the result of the display of the Poster, but rather of her dissatisfaction with any of the apologies received or the approach of the respondents to litigation and that neither is compensable as not being relevant to or caused by the "conduct" in contravention of the Act which is compensable under s.108(2)(a) of the ADA. It invited the Tribunal to reject such a submission on two principal grounds.
First, it is artificial and wrong to divide up Ms Yelda's hurt feelings between the specific causes such as the original display of the Poster and subsequent conduct. None of the experts sought to do so. The better conclusion is that at least one of the relevant causes of her hurt feelings and humiliation and the like was due to the display of the Poster and there was no break in causal connection. Ms Yelda cited in support the Full Court of the Federal Court's decision in Richardson's case [2014] FCAFC 82 per Kenny J at [69].
Second, or in the alternative, Ms Yelda submits that s.108(2)(a) of the ADA permits the Tribunal to order the respondents to compensate Ms Yelda for any loss or damage suffered "by reason" of their conduct. Ms Yelda contends that but for the display of the Poster, neither respondent would have had a reason to apologise to Ms Yelda, nor would Ms Yelda be embroiled in the litigation against her. As a result, loss or damage which Ms Yelda suffers as a result of the apologies or the respondents' litigation strategy is loss or damage she has suffered by reason of the contravening conduct. It was contended that this is consistent with the conclusions of the Full Court of the Federal Court in Richardson.
Alternatively, Ms Yelda submits that any exacerbation of her injury to her feelings caused by the apologies and the respondents' litigation strategy was reasonable and justified and hence ought to be regarded as compensable from the original contravening conduct.
Ms Yelda made submissions in reply to the submissions of Vitality Works that as Associate Professor Robertson's report of 29 July 2016 stated, Ms Yelda's injury has attenuated to 50% of its original severity. This demonstrates that the original personal injury flows from the conduct of Sydney Water not Vitality Works. Ms Yelda invites the Tribunal to reject this submission as Vitality Works remains liable with Sydney Water for an injury, even if it diminishes in its original severity. In particular, Ms Yelda refers to the reliance of Associate Professor Robertson in his later report of 27 April 2017 wherein he stated that "the issue of 'the posters' is one component of Ms Yelda's grievance as was the inadequate (in her view) response on the part of the Employer". Accordingly, the medical evidence supports the view that the Posters remain a component of Ms Yelda's psychopathological response to her situation.
Ms Yelda contends that, overall, the medical evidence can leave no doubt that the ongoing physical injuries and psychological injuries at best amount to exacerbation of pre-existing conditions which are compensable and that there is no real support for a contention that after a point in time, all of her physical injuries and complications did not have a causal link to the original onset of the distress caused by the Poster.

Consideration

Ms Yelda puts forward four heads of damages as follows: 1. Injury to feelings; 2. Personal injury; 3. Past economic loss; 4. Aggravated damages
It is beneficial to first consider the claim for past economic loss.

Past economic loss

The main issue separating the parties is the question of whether or not, particularly after 2016, the applicant has made out a causal connection between the contravening conduct of the respondents and Ms Yelda's condition, including her perceived inability to return to work at Sydney Water.
In deciding whether loss or damage is caused "by reason of" conduct in contravention of the ADA will involve normative considerations which is primarily to be found in the purpose and object of the statute and as related to the circumstances of a particular case: see I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at 119 [25]-[26] (HTW Valuers); more generally, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079; 215 ALR 389; Travel Compensation Fund v Robert Tambree t/as R Tambree & Associates (2005) 224 CLR 627 at [28]-[30] per Gleeson CJ; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [130]-[132], per Besanko and Perram JJ.
The object of the ADA is to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. The notion of "discrimination" and "equality of opportunity" for persons of different status, including sex or gender, are not precise concepts. In respect of discrimination on the grounds of sex, the provisions of the ADA are in near identical terms to those contained in the Commonwealth Sex Discrimination Act 1984 (Cth). The latter Act gives effect to international human rights conventions that Australia has ratified, in particular, the UN Convention on the Elimination of all forms of Discrimination against Women (18 December 1979) 1249 UNTS 13. In such circumstances, the position at international law can inform the object and purpose of the ADA with respect to sex discrimination: see Lyttle v Everglades Country Club Ltd [2021] NSWCATAD 52 at [64]-[72].
In such circumstances, it is generally accepted that the ADA is important beneficial legislation designed to protect and advance the rights of persons of different status, including in this case that of sex or gender. Generally speaking, the meaning to be given to the phrase "by reason of the respondent's conduct" in s.108(2)(a) should be read generously and not narrowly to benefit victims of sexual harassment or sexual discrimination.
Nevertheless, the burden of proof always remains with the applicant and a causal link must be able to be demonstrated between the loss or damage suffered and the respondents' conduct. Further, we accept the general principle enunciated by Kenny J in Richardson at [33] that loss arising from an employer's lawful conduct - in that case its investigation into Ms Richardson's allegations of sexual harassment - is not compensable unless it was also loss sustained because of the harasser's unlawful conduct. Similarly, the plurality held at [155] in Richardson that for Mrs Richardson's claim for psychological injury flowing from Oracle's investigation into her allegations while the unlawful conduct of her harasser provided the setting for what followed, as a matter of "common sense and experience" it was not the cause of the manner in which Oracle conducted its investigation.
Similarly, we accept the proposition that, generally, stress or anxiety caused by litigation, including litigation following a complaint of sexual harassment or sex discrimination, is not compensable because of the lack of sufficient causal connection between the mere conduct of litigation and the actual contravening conduct: see Richardson at [39] per Kenny J; [163] per Besanko and Perram JJ; Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56-605.
On the other hand, we also accept that the presence of multiple factors, of which sexual harassment or sex discrimination is one of those factors, giving rise to a specific form of loss or damage will not necessarily bar the applicant from recovering all of that loss. This is consistent with Richardson in which Kenny J held at [69] that: "Further, quite apart from the appellant's suggested application of Hall v A & A Sheivan, there is likely error in an approach which concludes without further analysis that the presence of multiple factors giving rise to a specific form of loss or damage will bar a victim of sexual harassment from recouping compensation for the part which the contravening conduct played in that loss that discriminatory conduct which contributed (but which was not the sole contributor) to the onset of the injury is a loss "suffered because of the conduct of the respondent" was accepted without question by French and Jacobson JJ in Qantas Airways v Gama at [99] in the course of applying s.46PO of the AHRC Act. Such an acceptance reflects the remedial nature of s.46PO(4)(d)…"
Kenny J then went on to quote the judgment of Gaudron, Gummow and Hayne JJ in HTW Valuers in which their Honours held that: "…There may be cases where it will be possble to say that some of the damage started by a person following the contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it would be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particularly causative events are likely to be rare. Further, it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it would be useful to speak of what caused that separate part of the loss as being "independent" of the contravention."
We note, however, that the above statements have to yield to the latest statements on the matter of the High Court, including Tabet v Gett (2010) 240 CLR 537 at 558 [42] per Gummow ACJ; at 578 [111] per Kiefel J (Hayne and Bell JJ agreeing at 564 [65]). The High Court in Robinson Helicopter Company Inc. v McDermott [2016] HCA 22 summarised the relevant principles at [66] as follows (omitting citations and footnotes): "Although proof of causation may sometimes entail the robust, pragmatic drawing of inferences, especially where there are a number of possible causes and there is difficulty in ascertaining which of them was the cause of the damage suffered, proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered."
With the above principles in mind, we turn to the facts in this case.
The evidence is clear that Ms Yelda suffered psychological or psychiatric injury arising from and following the display of the Poster. For the period immediately after the display of the Poster, this proposition does not appear to be disputed by the respondents. The nature of this personal injury was given two different diagnoses, that is either as Chronic Adjustment Disorder or Post-Traumatic Stress Disorder. In our view, it is not important nor necessary to determine which diagnosis is the more accurate as it is the symptoms which are important in assessing the level of injury suffered by Ms Yelda.
There are multiple sources of medical evidence in support of Ms Yelda's psychological injury which arose immediately after the display of the Poster. For example, Senior Consultant Psychiatrist, Gabrielle McCorry in her report dated 18 January 2017 at page 38 opined that: "I am of the opinion that at the time of submitting her current workers' compensation claim for psychological injury in April 2016, Ms Yelda's symptoms were of adequate frequency and severity to warrant a clinical diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood (Classification: 309.28) as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition - Text Revised."
Similarly, this diagnosis was accepted by Resilia in its report dated 16 June 2016 with a date of injury of 12 April 2016.
Also Mr de Robillard, Registered Psychologist, in his report of 7 July 2016 stated the following: "• Yes Reem satisfies DSMV Axis 1, her diagnosis is anxiety and depression. Reem suffers from the following symptoms; depressed mood, constant feeling of irritability, overcome by sadness and emptiness and resorts in tears often, diminished Interest in pleasurable activities, difficulties with sleeping, lethargy, hopelessness, loss of confidence and self esteem, inability to concentrate on small tasks, indecisiveness, restlessness and edginess and ongoing fatigue. • Reem displays overt anger towards Sydney Water as she believes that the offensive poster should not have been passed and the apology expressed to her was inadequate. Reem also mentioned that the stress she is under has triggered other medical condition which has stopped her from exercising."
Similarly, Dr Lim in his report was of the opinion that Ms Yelda developed a psychological condition which had been brought on or caused by the display of the Poster itself and her presentation at the time consisted of an Adjustment Disorder. We agree with and accept this assessment.
The contention put forward by the respondents was that because subsequently Ms Yelda reported that her condition had improved and she was willing to undertake alternative employment with another employer, the subsequent regression of her Adjustment Disorder was due to factors other than the contravening conduct.
We reject this submission and agree with the applicant's contentions in this regard.
In our view, for the reasons which follow, the evidence establishes the following findings which we make.
First, taking into account the relevant principles of causation described above, we are satisfied on the balance of probabilities that the Poster incident remained the cause of at least a portion of Ms Yelda's hurt feelings and psychological/psychiatric injury up until at least her date of resignation in December 2020. In particular, it is impossible and artificial to say that Ms Yelda's psychological/psychiatric injury which may have arisen from or been exacerbated by, the subsequent factors pointed to by the respondents - namely, the respondents' apologies, the conduct of the workers compensation insurer and the stress of litigation - took over from the original effect of the Poster incident.
Second, it was reasonable for Ms Yelda, given her condition, in the period up until her resignation, not to return to work for Sydney Water and the root cause of this circumstance remained the display of the Poster. In other words, we are satisfied on the balance of probabilities that Ms Yelda's inability to return to work for Sydney Water at least until 20 December 2020 would have occurred without the subsequent factors pointed to by the respondents.
Third, Ms Yelda acted reasonably in attempting to find alternative employment up until the hearing in February 2021 but was nevertheless unsuccessful in being able to obtain alternative employment in that period, despite her best and reasonable endeavours. Accordingly, we are satisfied that the Poster incident remained the cause of Ms Yelda being unable to earn financial reward or wages up until at least the date of her resignation in December 2020.
We agree with the applicant's submission that the position at its highest for the respondents was the most recent expert evidence of consultant psychologist Dr Samuel Lim and his report qualified by Sydney Water. His evidence was that the display of the Poster was "less significant" currently. Crucially, he did not say that the original impact of the Poster was now trivial or non-existent. Nor did Dr Lim apportion parts of Ms Yelda's ongoing psychological condition to the display of the Poster and parts to other matters.
We note that Dr Lim in his report was of the opinion that the display of the Poster was of sufficient seriousness to cause Ms Yelda to experience an Adjustment Disorder. We accept and agree with this opinion and note that Dr Lim did not express an opinion that the display of the Poster ceased to be a relevant cause of Ms Yelda's ongoing medical condition.
Dr Lam was of the opinion that the display of the Poster was the main cause of her presented state. We accept and agree with this opinion and note it has support in the reports of Drs Dave and Shammas.
Further, we note in her statement, which we accept, that the Poster, according to Ms Yelda, remained a cause of her distress, anxiety and depression. In addition, her evidence under cross-examination, which we accept, was that she continued to react to the prospect of return to work with stress, anxiety and depression because of the Poster and broke down at interviews when considering this incident.
Ms Yelda explained she was unable to return to Sydney Water as she could not face everyone after the Poster was displayed. On our assessment of her giving evidence, we accept this evidence.
Accordingly, we are confidently satisfied there was no complete breach of the causal connection between the display of the Poster and Ms Yelda's ongoing psychological condition.
Next, we accept the evidence that Ms Yelda's return to her employment with Sydney Water was not feasible in particular and because of the previous display of the Poster. As was put by her general practitioner, Dr Lam, as at 21 October 2020, "my opinion is that she should not continue working with Sydney Water for the sake of her health and wellbeing". Dr Lam' s view was that the display of the Poster was the main cause of her presented state and because of this she was unable to face her colleagues. We accept and agree with this conclusion as it is supported by much of the other medical evidence presented.
This consisted of Mr de Robillard's evidence. His opinion was that Ms Yelda being unable to return to Sydney Water was likely to be permanent. Ms Gadea also opined that Ms Yelda's return to Sydney Water was an untenable option stating, : "In my opinion Ms Yelda would not be able to return to her work at Sydney Water without further exacerbating her Post Traumatic Stress and Depression symptoms. It is not recommended as a safe work place for Ms Yelda."
Further, we accept Ms Yelda's evidence that she has done her best to obtain alternative employment with another employer, including attending many interviews but has not obtained employment. We also note that there was no cross-examination or challenge to Ms Yelda on her attempts to find alternative employment.
In our assessment, the view expressed by Ms Yelda that her condition had improved such that she was willing to attempt to embark upon alternative employment proved to be an optimistic statement by Ms Yelda which goes to her credit. She found it difficult to present well at interviews because of her condition. In particular, we note her evidence, which we accept, that she would break down when having to relay to prospective employers why she had to leave Sydney Water.
In our view, this demonstrates that her psychological condition subsequent to the display of the Poster never resolved itself and remained an ongoing condition of hers and was caused by the Poster incident.
The respondents also made the same submission to the effect that account must be taken of Ms Yelda's pre-existing medical condition.
In reference to Ms Yelda's pre-existing condition, this referred in particular to Ms Yelda's diagnosis with Graves' disease, an immune system disorder that results in hyperthyroidism. Attention was also drawn to the report of Dr Lam of 8 December 2015 where Ms Yelda attended his practice to discuss issues she was having with Mr Nicholson, her immediate supervisor. During this appointment, it was noted by Dr Lam that Ms Yelda stated she had "a lot of stress at work" and her supervisor was "making her life difficult".
In our view, it is clear that the evidence shows that from the date of the incident with the Poster, the nature of Ms Yelda's stress, anxiety, depression as diagnosed by the medical evidence and reported upon by the experts is quite distinct and different from her symptoms prior to that date. The "stress at work" discussed with Dr Lam on 8 December 2015 was not nearly as severe or dramatic as what occurred from the date of the Poster. Prior to the display of the Poster, Ms Yelda had never had a diagnosis of Adjustment Disorder with mixed anxiety and depression nor any form of Adjustment Disorder.
It seems obvious to us that but for the incident with the Poster, and subsequent events, Ms Yelda would have been able to sufficiently manage what level of stress she was suffering from prior to the incident with the Poster and been able to pursue and continue a fruitful career with Sydney Water.
In this regard, we accept the evidence of Ms Yelda that she would not let her relationship with Mr Nicholson significantly impact upon her otherwise successful career at Sydney Water. We also note and accept the evidence that Ms Yelda was a good employee who liked her work and was competent in her field: see the evidence of Ms Bernadi, Chang, Tonks, Znautas.
We note that the above conclusions with respect to Ms Yelda's pre-existing medical condition is also generally supported by Dr Lim's report where he gives the opinion that Ms Yelda's pre-existing medical conditions are not a significant causal factor in either her past or present Adjustment Disorder episodes. We accept and agree with this opinion.
In respect of quantum, we find and accept the calculation of earnings lost put forward by Vitality Works as being the most thorough and cogent of the parties' assessment of the evidence. In support of this conclusion, we note the applicant and Sydney Water, despite being asked to specifically reply to the calculation of earnings lost put forward by Vitality Works and indicate how this calculation was incorrect, did not do so.
Accordingly, we find Ms Yelda has suffered past economic loss by reason of the respondents' contravention of the ADA in the amount of $243,280.08.
Given the statutory cap, this finding is sufficient to dispose of the complaints. However, we set out below briefly our findings on the other heads of damage.

Injury to feelings/psychiatric injury

In order to avoid overcompensation, we are of the opinion that both hurt feelings and the psychological injury in question should be assessed together.
Ms Yelda, apart from hurt feelings and psychiatric injury, contended her compensable loss includes physical injury in the form of an exacerbation of her pre-existing Graves' disease, fibroids and heavy menstrual bleeding, and headaches and cervical pain.
In this regard we accept Vitality Works contention that no cogent medical evidence was advanced in support of the proposition that Ms Yelda's pre-existing condition of Graves' Disease and any gynaecological conditions were exacerbated by the stress caused by the unlawful treatment in question. In the absence of evidence from specialists in the precise areas (being endocrinology or gynaecology) showing stress could and in fact did exacerbate her conditions in this regard, we are not satisfied of this contention.
The respondents accepted that Ms Yelda's immediate reaction to the Poster led to her hurt feelings, disappointment, stress, anxiety and depression but only up to approximately May 2016, after which time she had substantially recovered. Further, the respondents sought to categorise her symptoms and hurt feelings as relatively minor compared with a worst case scenario as it was simply a one-off event of a poster being displayed. In our view, this does not fairly summarise the evidence.
We accept the submission that the respondents must take their "victim" as they find her and that it is no answer that others more robust may not have been so troubled by the Poster as Ms Yelda evidently was: see for example Johnson v Commissioner of Police [2004] NSWADT 198 at [34].
We note we have already found that the Poster was displayed at least at three separate depots (at [179]) out of a total of seven depots. The Posters were displayed for a period of over two months from 9 February 2016 to at least 19 April 2016: see Yelda v Sydney Water and Vitality Works [2019] NSWCATAD 203 at [84] and [102]; email from Tony Cannard of 19 April 2016.
The Tribunal accepts Ms Yelda's evidence of injury to hurt feelings and humiliation or embarrassment as set out in her witness statement of 20 November 2020, where Ms Yelda states the following: 1. [When she became aware of the Poster in March 2016]: "I was so embarrassed and in disbelief…I felt disgusting" (at [24]). 2. [When she saw the Poster outside the men's toilets (no doubt strategically placed) at the respondent's Ryde depot]: "I nearly collapsed…I felt exposed, humiliated and ashamed of my image being on the poster" (at [25]). 3. [When she opened an email sent to her by Mr Barclay attaching the Poster]: "I was horrified, humiliated and so ashamed of the exposer [sic] and attention I was getting" (at [26]). 4. [After a conversation with Mr Barclay on 11 April 2016]: "That is when I broke down and my confidence was completely shattered" (at [29]). 5. [After speaking with Mr Nicholson on 12 April 2016]: "I was devastated he knew and could not stop crying" (at [34]). 6. [After speaking with Mr Gillett on or around 12 April 2016]: "I immediately felt betrayed and lost all confidence in management and their conduct whilst investigating my complaint. This numbness alienated me from feeling any sincerity in the written apologies that followed that day." (At [42].) 7. [Between 12 and 14 April 2016]: "…I was mentally trying to process the betrayal I felt by my employer, the disgusting poster and I was contemplating resigning from Sydney Water. I was continuously crying and could not think straight." (At [45].) 8. [While speaking with her treating doctor, Dr Lam on 14 April 2016]: "…I told him I was having trouble sleeping and the poster was haunting me. At this time my mind was racing a hundred miles an hour. I couldn't stop crying." (At [46].) 9. "I felt ashamed and embarrassed and didn't want my broader family to know about the poster. I didn't know how to explain to them how I allowed myself to be on a poster advocating for sex. And I did not know how to explain to them how my employer, Sydney Water allowed this to happen. I kept it from them for as long as I could." (At [52].) 10. "I was very worried about the exposer [sic] of the poster and could not believe my employer sexualised me particularly in the Civil Maintenance department. I was desperate to know where else this poster with my image was posted, and how exposed I have been in my workplace. These questions I had were never answered." (At [56].) 11. "I was worried about my reputation; I had worked so hard for and how I would be perceived by my colleagues. The possibilities made me sick. The posting of the poster haunted me for months, I could not process how my employer could have done this to me, and to be honest I still cannot process this." (At [59].) 12. "I have very little trust for the respondents and cannot trust them as far as I can throw them…" (at [85])."
That Ms Yelda felt all of these things by reason of the display of the Poster is supported by the evidence of her sister, Lina Yelda (at [5]-[9] and [15]) and Mr Tonks (at [12]) and by contemporaneous documentation, including documentation generated by the respondents or on the respondents' behalf.
For example, on 12 April 2016, Ms Yelda wrote to Messrs Cash and Gillett that: "…I feel very uncomfortable and insulted with the content and cannot understand how a Sydney Water personnel could approve this…"
In case notes prepared by Resilia, on behalf of the first respondent, it is recorded that the first respondent's own Ms Halpin wrote the following: 1. On 15 April 2016: "She was extremely upset…Rheem [sic] was very emotional, struggling to talk…Her anger towards Sydney Water is strong at the moment and she wants to keep away." 2. On 15 April 2016: "Dr Lam advised that she is very upset and agreed that she requires urgent treatment…Rheem [sic] was extremely upset [at her first appointment with Mr de Robillard]." 3. On 11 May 2016: "As Reem is very angry at the moment which is understandable…" (emphasis added).
The same case notes record Resilia's Fiona Simson as writing the following: 1. On 22 April 2016: "Reem was distressed when talking about the incident and how this has impacted on her image in the workplace…". 2. On 29 April 2016: "Reem continues to be very upset and emotional about the incident. She was teary throughout the medical case conference."
In his witness statement of 21 December 2020, Mr Cash states at [12] that: "…Ms Yelda called me … I recall that Ms Yelda was upset and that we had a lengthy discussion regarding the poster."
The applicant appears to assert that a copy of the Poster was graffitied, and her image was even more sexualised. We are not satisfied that it is legitimate for the applicant to make such a submission in the following circumstances: 1. This allegation was not raised in the complaint filed with the Anti-Discrimination Board of NSW nor was it raised in any of the liability proceedings and in our view is not part of the complaint before us; 2. There is no evidence or cogent evidence to support the assertion that the applicant's image was graffitied; 3. The evidence that one SafeSpine poster (which did not feature the applicant) had some graffiti on it, does not allow an inference to be drawn that the Poster featuring the image of the applicant was graffitied.
We next accept the submission from Sydney Water that there is no evidence to support the applicant's submission that the Poster went "viral".
Next, we deal with the applicant's submission that her professional reputation was tarnished and destroyed by the display of the Poster. We accept that on the balance of probabilities it is likely that as a consequence of the display of the Poster some employees of Sydney Water will have thought the lesser of the applicant or held the applicant up for ridicule. We have taken this circumstance into account in our assessment of an appropriate award for damages.
However, we cannot agree with the submission that no claim for reputational damage can be made when Ms Yelda promulgated the Poster herself. We agree with the applicant's submission that this was in the context of seeking to explain what happened and distance herself from the offensive slogan.
This is quite a different context compared with the original display of the Poster where the natural conclusion to be drawn from viewing the Poster is that Ms Yelda was consenting to her image being displayed. Further, the resort to the media was after Ms Yelda reasonably believed many employees had already viewed the Poster and with this conclusion in mind.
Next, as dealt with above we are not satisfied that Vitality Works intended to treat Ms Yelda as a sex object.
As summarised above, the respondents' principal contention was that from around the middle of 2016 Ms Yelda's symptoms improved and it was only as a consequence of matters other than the display of the Poster - namely, Ms Yelda's reaction to the respondents' apologies, her treatment by the worker's compensation insurer and the stress of the litigation - that Ms Yelda suffered any ongoing hurt feelings or psychological/psychiatric injury.
We note our previous findings that the display of the Poster remained a significant cause of Ms Yelda's hurt feelings and the psychological injury, though we accept it was subsequently exacerbated by these other factors. In our assessment of the evidence as described above, the display of the Poster remained the cause of 70% of Ms Yelda's symptoms from approximately 2017. In other words, we are of the opinion that absent these other factors Ms Yelda's hurt feelings and psychological injury would have still presented to the level of 70% of her actual symptoms.
That then leaves assessing an appropriate award. We note the relevant principles with respect to quantum for general damages and in addition, psychological injury. The two major competing principles are, first, damages in the field should recognise the seriousness of hurt feelings or pain and suffering (usually referred to as 'general damages') and, in this case, stress, anxiety and depression caused by a contravention of the ADA. Concerning the quantification of damages for hurt feelings and stress, the courts have repeatedly asserted that awards for such loss "should not be minimal, because this would tend to trivialise or diminish respect for the public policy": Richardson's case [2014] FCAFC 82 per Kenny J quoting the English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975.
Second, regard must be had to the statutory cap in the Tribunal's jurisdiction as giving a benchmark of the most serious case. See, for example. Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87 (7 May 2004): [35], a decision of Needham JM, Weule and Bolr NJM, in which the Tribunal stated: In Caton v Richmond Club Limited [2003] NSWADT 202, the Tribunal found that the respondent was vicariously liable for the acts of an employee who physically harassed a female employee, over a period of a few months. There was evidence in that case of psychological effects of the harassment. In that case, the applicant was granted $15,000 damages. It can be seen that, given the $40,000 damages limit of the Tribunal the range of damages for minor or minimal breaches is quite low.
Similarly, in Whiteoak v State of New South Wales [2014] NSWCATAD 45 at [27] the Tribunal referred to 'scale' in the context of the $100,000 limitation.
In Chalker v Murrays Australia Pty Ltd [20l7] NSWCATAD 112 the Appeal Panel held at [95]-[96]: ... Mr Chalker is entitled to be compensated for any distress and injury to his feelings that he suffered as a result of the discriminatory decision not to employ him. In Bonella v Wollongong City Council [2001] NSWADT 194 at [121] the Tribunal held that: Damages for non-economic loss are always difficult to quantify. The English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 warned that in discrimination cases damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy': Any award of general damages in this case should include a component for the complainants' loss of opportunity, or chance, to be considered for a work related benefit in a non-discriminatory manner. In the circumstances of this case we believe that each complainant is entitled to an award of $7500 for general damages. There is no statutory and very little judicial guidance as to the level of damages that are appropriate in anti-discrimination cases. Each case will depend on its facts. Where a person has been sexually harassed over an extended period and suffered significant psychological effects, awards have been made in the vicinity of $100,000: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. Awards as low as $2,000 have been made in cases of a single incident of racist abuse in public: Sidhu v Raptis [2012] FMCA 338.
Bearing in mind these principles and our findings on the evidence as referred to above, we are of the opinion that both hurt feelings and the psychological injury in question should be assessed together. We find that all of the evidence demonstrates that the display of the Poster has caused Ms Yelda to suffer serious and prolonged psychological injury as well as injury to her feelings, over an extended period which merits a significant monetary award. Our assessment in this regard is that her loss should be found at $70,000 caused by reason of the contravention in question.

Aggravated damages

We accept the principle that aggravated damages may be awarded when the conduct of the respondent between the date of contravention and trial has been such as to increase the hurt suffered by the complainant. However, whilst that conduct need not be malicious, it must, to justify such an award, be in some way unjustifiable, improper or lacking in bona fides: see Triggell v Pheeney (1951) 82 CLR 497, Elliott v Nanda & Commonwealth (2001) FCA 418, Hughes v Car Buyers Pty Ltd (2004) 210 ALR 645.
We note the claim is only against Vitality Works.
We note that Vitality Works relies upon eight matters. Five of these eight relate to conduct in or in respect of the litigation between the parties.
Ms Yelda bears the onus of proof in this regard and, in our opinion, she has not been able to satisfy us that in respect of the litigation between the parties the conduct of Vitality Works could be regarded as "unjustifiable, improper and lacking in bona fides".
Turning to the remaining matters and firstly, the alleged insincerity of Vitality Works' apology. We accept in the broad that the apology was "minimal" and far from a full apology. We agree with the assessment that the so-called apology was full of "weasel words" which sought to minimise Vitality Works' role in the display of the Poster. The claim that there was a "miscommunication" trivialized what had occurred.
In conclusion, we are of the opinion that the apology could be described as unjustifiable. Further, the failure to issue a full and proper apology caused Ms Yelda considerable upset and hurt feelings.
We find an award of $5,000 is appropriate for such conduct.
We are not satisfied that Vitality Works' conduct in 'allowing matters to progress to litigation' could be regarded as "unjustifiable, improper and lacking in bona fides".
Next, Ms Yelda suggested that the failure to settle is unjustifiable, improper and lacking in bona fides. The evidence in this regard is far too sparse and we do not have any confidence in being able to agree with this submission of Ms Yelda's.

Conclusion

Accordingly, we find Ms Yelda's loss and damage is as follows: Injury to feelings, psychological injury $70,000.00 Past economic loss $243,280.08 Aggravated damages $5,000 TOTAL $318,280.08

In such circumstances, it was not in dispute that the appropriate order would be $100,000 to be paid by each respondent.

ORDERS

The Tribunal makes the following orders and directions in 2018/213657: 1. The Tribunal finds that the complaint against the respondent is substantiated. 2. The Tribunal orders the respondent to pay the applicant $100,000 by way of damages. 3. The applicant, if it wishes to apply for costs must file and serve any submissions and any evidence in support, within 14 days of the date of these orders. 4. The respondent is to file and serve any submissions and evidence in response within 14 days thereafter. 5. The applicant is to file any submissions in reply within 7 days thereafter. 6. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application.
The Tribunal makes the following orders in 2018/213589: 1. The Tribunal finds that the complaint against the respondent is substantiated. 2. The Tribunal orders the respondent to pay the applicant $100,000 by way of damages. 3. The applicant, if it wishes to apply for costs must file and serve any submissions and any evidence in support, within 14 days of the date of these orders. 4. The respondent is to file and serve any submissions and evidence in response within 14 days thereafter. 5. The applicant is to file any submissions in reply within 7 days thereafter. 6. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application. 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: 30 April 2021

[2019] NSWCATAD 2003

At a glance

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Judgment (37 paragraphs)

Legislation Cited (3)

Cases Cited (15)

Cited By (5)