Generally sexual harassment occurs through inappropriate interactions between two employees. However, in the case of Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210 (13 October 2020), the company and its workplace health service provider are the ones liable for the sexual harassment.
Sydney Water had used an employee’s photo on a safety campaign poster, where her hand was in the air pointing towards a slogan that said “Feel great – lubricate!” The poster was part of a spine safety campaign and the reference to lubricate related to the movement of synovial fluids in joints.
The worker was humiliated after the poster was published around the site and she received several emails and text messages from colleagues making fun of her. The worker subsequently filed a claim that the poster constituted sexual harassment and discrimination.
Under section 28A(1)(b) of the Sex Discrimination Act 1984 (Cth) (the Act) sexual harassment is defined as:
- Unwelcome conduct of a sexual nature;
- Directed towards another;
- That a reasonable person in all the circumstances would have anticipated;
- That the conduct would have an offensive, humiliating or intimidating effect on the victim.
There are two limbs to establishing sexual harassment. Both elements are required to establish sexual harassment.
- First, there is a subjective test to determine whether the conduct was ‘unwelcome sexual conduct’. This is wholly subjective, meaning the intention behind the conduct is completely irrelevant. The only thing that matters is how the recipient perceived the conduct and if it was unwelcome to them. Understandably, there are many workplace behaviours which could be considered unwelcome, depending on who was subjected to the behaviour. Due to the subjective nature of the test, as an employer it is important that you do not dismiss sexual harassment allegations out of hand, no matter how trivial they may seem to you.
- Second, there is an object test to determine whether the conduct would result in “an offensive, humiliating or intimidating effect” which could have been anticipated by a reasonable person. Fortunately, this second test is objective and narrows the scope to prevent false and vexatious claims.
Important note: A single, isolated incident of sexual harassment is sufficient to amount to serious misconduct (unlike bullying, which is defined as repeated behaviour).
Under section 28A(2) of the Act, conduct of a sexual nature includes any oral or written statements that are directed towards another, or simply made in the presence of another.
Sydney Water’s arguments that the poster was compliant with their health and safety obligations and therefore could not be sexual harassment, failed at the first instance. Sydney Water appealed the decision which was dismissed by an Appeal Panel on the following grounds:
- Sydney Water’s intentions behind creating the poster were irrelevant, because it was clearly unwelcome sexual conduct;
- While the worker had agreed to taking the photo, she was not aware of how the photo would be used;
- The worker was the only female on-site and no other male employees’ photos had been used in a sexually suggestive manner for the same campaign; and
- The poster’s intended safety meaning was not immediately obvious to a reasonable person, rather the messaging suggested inappropriate suggestions about the worker’s personal life.
Damages are to be awarded at a later date.
Key Lessons
- Often employers can have conflicting obligations such as safety or employment that they must comply with, it is important that your actions in complying with one do not put you in breach of another.
- Sexual harassment can arise even if it is not directed at the individual, indirect sexual harassment such as where it is in an individual’s presence is sufficient to constitute conduct of a sexual nature.
- Remember it is a subjective test – so it does not matter if there was no malicious intent behind the conduct. Jokes or workplace banter are a common excuse but they do not excuse the misconduct!
- Indirect discrimination is still a breach of employment law obligations.
- While the employer was found directly responsible in this case, in the usual cases it is an employee sexually harassing another. But the same lessons are relevant in those cases as employers can be found vicariously liable for the actions of their employees.
Written by Nina Hoang
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