Vitality Works Australia Pty Ltd v Yelda (No 2)

[2021] NSWCA 147

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147

Hearing dates:

19 May 2021

Date of orders:

19 July 2021

Decision date:

19 July 2021

Before:

Bell P and Payne JA at [1];
McCallum JA at [125]

Decision:

(1)   Grant leave to appeal on grounds 1, 2, 4 and 5;

(2)   Refuse leave to appeal on ground 6;

(3)   Appeal dismissed;

(4)   Vitality Works to pay Ms Yelda’s costs of the application for leave to appeal and the appeal.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – discrimination – harassment – sexual harassment – where applicant was contracted to design, publish, display and distribute a poster depicting a captioned photograph of the respondent at her workplace – whether conduct was “other unwelcome conduct of a sexual nature” – whether parties were “workplace participants” – Anti-Discrimination Act 1977 (NSW), ss 22A, 22B

CIVIL PROCEDURE – appeal on question of law

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), ss 22A, 22B, 25(2)(c), 52, 53, 89, 89A, 89B(1), 93A, 93B, 93C

Administrative Decisions Tribunal Act 1997 (NSW), s 119

Civil and Administrative Tribunal Act 2013 (NSW), ss 39, 83

Sex Discrimination Act 1984 (Cth)

Cases Cited:

Amaba Pty Ltd (under NSW administered winding up) v Booth [2010] NSWCA 344

Ballina Shire Council v Knapp [2019] NSWCA 146

Barkat v Roads and Maritime Services [2019] NSWCA 240

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

Coleman v Bentley [2002] NSWADT 87

Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; (1989) 85 ALR 503

Iannella v French (1968) 119 CLR 84; [1968] HCA 14

Johanson v Michael Blackledge Meats [2001] FMCA 6; (2001) 163 FLR 58

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Kraus v Menzie [2012] FCA 3

O’Callaghan v Loder (1983) 3 NSWLR 89

Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220

Poniatowska v Hickinbotham [2009] FCA 680

PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446

Styles v ClaytonUtz(No 3) [2011] NSWSC 1452

Thomas v R (1937) 59 CLR 279; [1937] HCA 83

Vergara v Ewin [2014] FCAFC 100; (2014) 223 FCR 151

Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50

Williams v R (1986) 161 CLR 278; [1986] HCA 88

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62

Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54

Texts Cited:

Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, 2018, Federation Press)

Category:

Principal judgment

Parties:

Vitality Works Australia Pty Ltd (Applicant)
Reem Yelda (Respondent)

Representation:

Counsel:
K Edwards and M Bridgett (Applicant)
Q Rares (Respondent)

Solicitors:
FCB Workplace Law (Applicant)
Harmers Workplace Lawyers (Respondent)

File Number(s):

2020/317513

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Appeal Panel

Citation:

[2020] NSWCATAP 210

Date of Decision:

13 October 2020

Before:

Cole DCJ, Deputy President
J Lonsdale, Senior Member

File Number(s):

2019/48285; 2019/48288

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 October 2019, the New South Wales Civil and Administrative Tribunal (the Tribunal) determined that Vitality Works Australia Pty Ltd (Vitality Works) and Sydney Water Corporation (Sydney Water) contravened s 22B of the Anti-Discrimination Act 1977 (NSW), which deals with sexual harassment, in relation to the display of a poster at the Sydney Water Ryde depot. The poster showed a photograph of Ms Yelda, a Sydney Water employee, over which the caption had been written “Feel great – lubricate!” Ms Yelda agreed to have her photograph taken for the purposes of a work health and safety campaign that Vitality Works had been contracted to conduct on behalf of Sydney Water. She was not informed that those words would be used. The Tribunal found that Vitality Works was responsible for the design, publication, display and distribution of the poster. It created the poster, provided it to Sydney Water and directed that the poster be displayed at the Ryde depot, where Ms Yelda worked.

On 13 October 2020, the Tribunal Appeal Panel affirmed the first instance decision. Vitality Works sought leave to appeal to this Court on various asserted questions of law. The appeal principally concerned the construction and application of ss 22A and 22B of the Anti-Discrimination Act.

The Court (Bell P and Payne JA, McCallum JA agreeing) held, granting leave to appeal on limited grounds but dismissing the appeal:

1. Whether conduct amounts to “other unwelcome conduct of a sexual nature” within the meaning of s 22A of the Anti-Discrimination Act 1977 (NSW) is a question of fact having two parts. Whether the conduct is “unwelcome” is a subjective question determined by reference only to the complainant’s state of mind. Whether the conduct is “conduct of a sexual nature” is a question of fact, ascertained objectively: [34], [81]-[82] (Bell P and Payne JA); [125] (McCallum JA).

   Styles v ClaytonUtz(No 3) [2011] NSWSC 1452 at [177] and [181], Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576 at [27], Kraus v Menzie [2012] FCA 3 at [22], applied.

2. The clear words of the statute and the subject matter, scope and purpose of the Anti-Discrimination Act make it clear that the subjective intention of the alleged perpetrator to engage (or not engage) in “other unwelcome conduct of a sexual nature” is not an element of sexual harassment: [81], [96], [98] (Bell P and Payne JA); [125] (McCallum JA).

3. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute. That term includes sexually suggestive “jokes” and comments, including “jokes” and comments containing a double meaning. Conduct which may be characterised as “horseplay” is not immune from being found to be sexual harassment: [36], [97], [100]-[103], [105], [107]-[109] (Bell P and Payne JA); [125] (McCallum JA).

   Johanson v Michael Blackledge Meats [2001] FMCA 6; (2001) 163 FLR 58, O’Callaghan v Loder (1983) 3 NSWLR 89 at 103, Poniatowska v Hickinbotham [2009] FCA 680 at [294], considered.

   Coleman v Bentley [2002] NSWADT 87 at [26], Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; (1989) 85 ALR 503 at 531, not followed.

4. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A is properly construed with an understanding of those matters: [125] (McCallum JA).

5. The test of whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the proved conduct is an objective test: [37] (Bell P and Payne JA); [125] (McCallum JA).

6. The term “workplace participant” in s 22B of the Anti-Discrimination Act describes a broad relational connection. Both Vitality Works and Ms Yelda were “workplace participants” at Sydney Water. Sydney Water’s Ryde depot was a “workplace” of each for the purposes of s 22B(9). The conduct occurred at the same time in the workplace which gave rise to the relevant statutory connection of being a workplace participant: [39], [85]-[86] (Bell P and Payne JA); [125] (McCallum JA).

7. The conduct of Vitality Works’ agents was attributable to Vitality Works under s 53 of the Anti-Discrimination Act and at common law: [43], [70] (Bell P and Payne JA); [125] (McCallum JA).

8. The conduct for which Vitality Works was responsible (the design, publication, display and distribution of the poster) was plainly unwelcome conduct of a sexual nature: [76]-[77], [109] (Bell P and Payne JA); [125] (McCallum JA).

9. The conduct of more than one actor may, depending on the circumstances, properly be the subject of a finding of sexual harassment. That is even more so in the case of two corporate defendants where the activities of various employees and agents may be attributed to more than one such corporate defendant: [57] (Bell P and Payne JA); [125] (McCallum JA).

10. Vitality Works and Sydney Water were each responsible for the publication of the poster and had each directly contravened s 22B of the Anti-Discrimination Act. Vitality Works was not liable under s 52 as a “third party” to the harassment. No error was shown in the Appeal Panel’s decision that Vitality Works and Sydney Water were persons “jointly engaged” in the sexual harassment of Ms Yelda: [31]-[33], [52]-[53], [58]-[60], [63], [65] (Bell P and Payne JA); [125] (McCallum JA).

    Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50, applied.

Judgment

1. BELL P AND PAYNE JA: The applicant, Vitality Works Australia Pty Ltd (Vitality Works), seeks leave to appeal on a question of law from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Tribunal), comprised by Deputy President Cole DCJ and Senior Member J Lonsdale ([2020] NSWCATAP 210) which dismissed an appeal from the Administrative and Equal Opportunity Division of the Tribunal, comprised by Senior Member R Dubler SC and Dr J Goodman-Delahunty ([2019] NSWCATAD 203).

Litigation history

2. On 3 July 2018, the respondent, Ms Yelda, commenced proceedings against Vitality Works and her employer, Sydney Water Corporation (Sydney Water), in the Tribunal alleging sexual harassment within the meaning of the Anti-Discrimination Act 1977 (NSW). On 19 October 2018, Senior Member Scahill determined that liability would be determined by the Tribunal separately and before damages.

3. On 1 October 2019, the Tribunal at first instance determined that both Vitality Works and Sydney Water contravened s 22B of the Anti-Discrimination Act, which deals with sexual harassment, in relation to the display of a poster at the Ryde depot of Sydney Water which showed a photograph of Ms Yelda, over which the caption had been written “Feel great – lubricate” (the Poster). The Tribunal at first instance also determined that Sydney Water contravened s 25(2)(c) of the Act, which deals with discrimination against an employee on the ground of sex: [2019] NSWCATAD 203.

4. Vitality Works and Sydney Water appealed against the finding on liability. On 13 October 2020, the Tribunal Appeal Panel dismissed the appeals: [2020] NSWCATAP 210.

5. On 13 January 2021, Vitality Works filed a summons seeking leave to appeal in this Court against the decision of the Appeal Panel. On 25 January 2021, Vitality Works filed a motion in this Court seeking an order that the damages hearing in the Tribunal be stayed pending the determination of Vitality Works’ application for leave to appeal to this Court on the question of liability. On 2 February 2021, this Court dismissed Vitality Works’ motion: [2021] NSWCA 4.

6. Between 15 and 17 February 2021, the Tribunal heard Ms Yelda’s damages claim. The Tribunal calculated Ms Yelda’s loss and damages at $318,280.08. On 30 April 2021, in accordance with the statutory monetary limit on damages which can be awarded by the Tribunal, the Tribunal ordered each of Vitality Works and Sydney Water to pay Ms Yelda $100,000: [2021] NSWCATAD 107.

7. On 19 May 2021, Vitality Works’ application for leave to appeal and appeal on liability were heard concurrently in this Court.

Relevant facts

8. In 2016, Ms Yelda was a customer liaison officer employed by Sydney Water. She had been an employee of Sydney Water since about 2004. She had worked closely with the Sydney Water field staff, which consisted largely of male, blue-collar workers.

9. In September or October 2015, Ms Yelda was called to a job where a water main had leaked into a residential house. She was there because she was training an electrician to become a customer liaison officer. An employee of Vitality Works was present at the site for the purpose of taking photographs for use in a work health and safety campaign it had been contracted to conduct on behalf of Sydney Water called “SafeSpine”. Ms Yelda agreed to have her photograph taken for the purposes of that campaign.

10. Vitality Works had been contracted by Sydney Water to devise and deliver the SafeSpine Campaign to the Sydney Water workforce. Vitality Works subsequently produced the Poster containing a photograph of Ms Yelda. In the photograph, Ms Yelda is smiling and holding her right arm up above her head and her left arm down by her side. The large caption above the photograph says: “Feel great – lubricate!” The word “lubricate” is in large, thick letters which are light in colour against a red background. It is shown as the most prominent word on the poster with emphasis given to it by the size and thickness of the font (the largest and thickest of any word on the poster) with further attention being given to the word “lubricate” by the use of an exclamation mark. ^[1]

    1. In the top right-hand corner of the poster is a logo alongside the words “SafeSpine Injury Prevention Program We’ve got your back”. At the foot of the photograph, in much smaller lettering, are the words “Kick off your SafeStarts by ‘warming up the joints’ Ask a SafeSpine leader or specialist for ideas”. Under that lettering is the logo for Sydney Water, which comprises the words “Sydney Water” and the logo for Vitality Works with the words “Vitality Works” alongside it. “Sanitarium Workplace Health” is in very small letters under those words.

11. The Poster was prepared by Vitality Works and displayed at their direction at the Sydney Water Ryde depot, where Ms Yelda worked. The Poster was placed just outside the men’s toilet and the lunchroom.

12. Ms Yelda was not informed that the words “Feel great – lubricate” would appear on the Poster which featured her photograph. She had agreed for her photo to be taken for the purposes of the SafeSpine Campaign and was told it would be incorporated into a poster to be used in that campaign. Ms Yelda saw the Poster in about April 2016 at the Ryde depot. She felt humiliated by the display of the Poster.

13. Vitality Works designed and prepared at least 12 poster templates, three of which bore the slogan “Feel great – lubricate”. One of those three designs pictured Ms Yelda. The other two of those designs depicted a group of three men and a group of two men, respectively.

The Appeal Panel decision

14. Ms Yelda appeared for herself in the initial hearing before the Tribunal. She was represented before the Appeal Panel. As we will explain, the application for leave to appeal to this Court is limited to an “appeal on a question of law”. Findings of the Tribunal at first instance are relevant to the appeal in this Court only to the extent that those findings were adopted by the Appeal Panel and formed some relevant part of the attack made by Vitality Works in the Appeal Panel on the decision at first instance. To the extent that Vitality Works sought to challenge findings of fact made by the Tribunal at first instance which were not the subject of complaint in the proceedings before the Appeal Panel, that challenge must be rejected.

15. At the heart of the Appeal Panel’s decision is the finding of fact made by the Tribunal and adopted by the Appeal Panel about the scope of Vitality Works’ conduct relevant to the assessment of whether it had engaged in sexual harassment within the meaning of the Anti-Discrimination Act:

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

16. As we will explain, this is a finding of fact critical to the determination of this case. The conduct which the Tribunal found Vitality Works had engaged in was the design, publication, display and distribution of the Poster. It will be seen that much of Vitality Works’ appeal in this Court was predicated on its conduct being characterised as comprising a different, and much narrower, set of acts.

17. The appeal by Vitality Works to the Appeal Panel was on questions of law and, with leave, on questions of fact. We will return to the significance of the limits upon the Appeal Panel’s function later. Given those limits it is appropriate to explain how the Appeal Panel dealt with all of the issues before it. Vitality Works’ grounds of appeal to the Appeal Panel were:

“1.   The Tribunal made the following errors of law.

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

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

c.   The Tribunal failed to give reasons as to:

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

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

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

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

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

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

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

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

was so unreasonable it could not be made.

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

h.   The Tribunal took into account irrelevant facts when it made a finding that the circumstances relevant to the case against the Appellant included the subjective views of employees of the First Respondent, including Mr Barclay, of the Poster [this ground was later withdrawn].

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

2.   The Tribunal made the following errors of fact.

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

18. As to ground 1(a) of the appeal, the Appeal Panel found no error of law in the factors the Tribunal took into account in determining whether Vitality Works’ conduct was “unwelcome” within the meaning of s 22A(b) of the Anti-Discrimination Act. The Appeal Panel held:

“[91]   We consider that it is clear from the Tribunal’s decision at [115]-[122], quoted above, that the Tribunal was satisfied, on the evidence, as a matter of fact, that the juxtaposition of Ms Yelda’s photograph with the words ‘Feel great – lubricate’ on the Poster which was created by Vitality Works for display at Sydney Water premises was unwelcome conduct from Mr Yelda’s point of view.

[92]   In relation to the issue of what constitutes conduct that is ‘unwelcome’, the Tribunal adopted and applied the test in Aldridge and GLS v PLP (Human Rights) [2018] ECAT 221 at [33] and not the test in O’Callaghan which, as we have explained, has been overtaken by changes in the Act. This is not an error of law. The passages in question must be read and applied, however, in the knowledge that they relate to statutory schemes which are different from the Act, albeit that the concept of conduct that is ‘unwelcome’ is a feature similar to each of the schemes.”

19. As to ground 1(b) of the appeal, the Appeal Panel rejected the claim that the Tribunal at first instance applied the wrong test in determining whether Sydney Water’s and Vitality Works’ conduct, respectively, was “conduct of a sexual nature” within the meaning of the definition of sexual harassment in s 22A(b) of the Anti-Discrimination Act. The Appeal Panel held:

“[48]   The intention of Sydney Water and its employees and the intention of Vitality Works and its employees does not determine whether their conduct was ‘conduct of a sexual nature’. The question of whether conduct is ‘conduct of a sexual nature’ within the meaning of the Act is to be determined on an objective basis: that is, from the point of view of a hypothetical reasonable person. The Tribunal at first instance assessed the relevant conduct in this matter on an objective basis and concluded that it was conduct of a sexual nature under the Act. No error of law has been demonstrated to be present in that reasoning.”

20. As to ground 1(c) of the appeal, the Appeal Panel found that the Tribunal at first instance gave detailed reasons for deciding that Vitality Works’ conduct was of a sexual nature and that Vitality Works’ conduct was “in relation to” Ms Yelda: at [76].

21. As to grounds 1(d) and 1(g) of the appeal, the Appeal Panel rejected the submission that the Tribunal conflated the issue of the “sexual nature” of the conduct and the requirement that “a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated” within the meaning of s 22A(b) of the Anti-Discrimination Act: at [50]-[51]. The Appeal Panel held:

“[52]   … sexual harassment under s 22A of the Act requires both unwelcome conduct of a sexual nature and the anticipation of a reasonable person, in all the circumstances, that the person in Ms Yelda’s position would be offended, humiliated or intimidated. The Tribunal does not conflate those two elements in discussing whether [the relevant] conduct was of a sexual nature.”

22. The Appeal Panel rejected the submission that, as a consequence of having conflated the two issues, the Tribunal construed s 22B of the Anti-Discrimination Act “such that a potential sexualised (mis)interpretation by hypothetical persons which is ‘reasonably capable’ of being placed on selected words then makes that conduct ‘of a sexual nature’”. The Appeal Panel held that the Tribunal applied an objective test, which was the correct approach. The Tribunal determined that, viewed objectively, the words “Feel great – lubricate” on the Poster, in conjunction with the particular photograph of Ms Yelda displayed on the Poster, conveyed the sexual connotation argued for by Ms Yelda – “that Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure” and “that Ms Yelda advocates that others should do the same”.

23. As to ground 1(e) of the appeal, the Appeal Panel rejected the submission that the Tribunal applied the wrong test and/or took into account irrelevant factors in determining whether the conduct in which it engaged occurred “at a place that is a workplace of both those persons” within the meaning of s 22B(6) of the Anti-Discrimination Act. The Appeal Panel held:

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

24. Ground 1(f) of the appeal attacked the finding that Vitality Works was liable for the publication, display and distribution of the Poster on the basis that the finding was so unreasonable that no reasonable Tribunal could have made it. Given that this complaint, put in a variety of ways, was at the heart of Vitality Works’ complaint in this Court, the findings about this issue should be set out at length. The Appeal Panel said:

“[20]   In the decision at first instance the Tribunal said, in relation to the relevant conduct of Sydney Water:

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

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

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

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

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

…

[25]   In the decision at first instance, the Tribunal said, with respect to the conduct of Vitality Works:

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

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

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

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

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

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

[26]   In summary, the Tribunal at first instance found that Vitality Works was engaged in the publishing, printing, displaying and distributing of the Poster, jointly with Sydney Water. The Tribunal found that Vitality Works created the Poster, provided it to Sydney Water and requested Sydney Water to print and display the Poster, including at the Ryde depot.

[27]   Vitality Works argued that, in considering its conduct, the Tribunal at first instance wrongly held it liable for conduct in which it did not engage, namely the conduct of Sydney Water employees, including Mr Barclay.

[28]   Vitality Works submitted that its relevant conduct was:

a.   Taking photos of the Respondent;

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

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

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

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

[29]   However, Vitality Works also submitted that the only conduct which should be taken into account by the Tribunal in considering whether Vitality Works’ conduct was ‘of a sexual nature’ was the insertion of the photo of Ms Yelda into the template of the poster. We reject that submission. There is no reason to confine the Tribunal’s consideration of Vitality Works’ conduct in that way. The relevant conduct of Vitality Works is as described by the Tribunal at first instance.

[30]   In ground 1f of its grounds of appeal Vitality Works pleaded, and before us it argued, that there was no evidence that it managed the process of printing and displaying the Poster. We reject that submission. The Tribunal at first instance found to the contrary, partly on the basis of the evidence of Ms McMahon, who was, at the relevant time, an employee of Vitality Works, as set out in the extract from the decision at first instance repeated in [25] and [20] above. That finding was open to the Tribunal on the evidence before it. Ms McMahon, in her written statement before the Tribunal at first instance, said that, as a Senior Site Specialist and National Mentor with Vitality Works, she was responsible for delivering the SafeSpine program at Sydney Water. Ms McMahon said that, when delivering the SafeSpine program, her responsibilities were ‘to deliver and manage the Customisation, Implementation and Sustainability phases of the program’. She then outlined the elements of each of those phases. In relation to the Implementation and Sustainability phase Ms McMahon said, at [14] of her statement:

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

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

[31]   Ms McMahon’s evidence was an adequate basis for the finding by the Tribunal at first instance that Vitality Works was managing the printing and display of posters, and that Mr Sybra was under the supervision and direction of Vitality Works when he displayed the Poster. We reject ground 1f of Vitality Works’ grounds of appeal, which asserts that these findings were so unreasonable that they could not be made.

[32]   As with Sydney Water, we do not consider that there is any valid reason to limit the Tribunal’s consideration of the conduct of Vitality Works to the conduct selected by Vitality Works in its argument before us. The Tribunal at first instance accurately described the relevant conduct of Vitality Works.” (Emphasis added.)

25. As to ground 1(i) of the appeal, the Appeal Panel rejected the complaint that the finding that Vitality Works’ conduct was sexual conduct in relation to Ms Yelda was so unreasonable that it could not be made.

26. As to ground 2, the Appeal Panel declined to grant leave to Vitality Works to appeal on the basis that the Tribunal made an error of fact when it found that Ms Yelda was offended, humiliated or intimidated by the Poster from the first occasion she saw it. The Appeal Panel held that the Tribunal at first instance clearly set out the evidentiary basis for its finding on this issue and that none of the factors necessary for a grant of leave to appeal on a question of fact had been established: at [105]-[106].

Application for leave to appeal

27. The application for leave to appeal to this Court was made under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) which provides:

83 Appeals against appealable decisions

(1)   A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

(2)   A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.

(3)   The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a)   an order affirming, varying or setting aside the decision of the Tribunal,

(b)   an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

(4)   Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.

(5)   Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.

28. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Basten JA made the following observation about s 83 (with which Gleeson and Leeming JJA agreed):

“[11]   It would be a rare case in which the Supreme Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel and which, accordingly, had not been the subject of ‘any decision made by [the Appeal Panel] in the proceedings.’”

29. More recently, in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62, Leeming and White JJA remarked at [4] that “[i]n many cases, leave would not be granted to raise a point not taken at first instance.”

30. The grounds of appeal in this Court are as follows:

“1 The Tribunal erred in law and or made a decision ultra vires, when it decided that the Appellant could be liable for the acts of Sydney Water under s 22A and 22B of the ADA because they were ‘jointly engaged’ in conduct, even though no person acting on behalf of the Appellant carried out all of the relevant conduct.

2 The Appeal Panel misapplied and made errors of law when it failed to identify relevant factors to determining breach of ss 22A and 22B of the ADA, which included:

a.   the conduct in which the Appellant (or its employees) engaged, being the creation of the relevant poster and limited to:

i.   taking the Respondent’s photo,

ii.   inserting it into the poster template and

iii.   sending it to Mr Sybraa;

b.   whether that specific conduct was conduct of a sexual nature in relation to the Respondent

c.   whether a reasonable person having regard to all the circumstances in which the Appellant engaged in the conduct, and necessarily limited to that conduct, would have anticipated that the Respondent would be offended, humiliated or intimidated;

d.   whether the conduct occurred [in] a location that was the workplace of both the Respondent and the Appellant.

3   [Not pressed]

4 The Appeal Panel misapplied and made errors of law when it took into account irrelevant matters in determining the Appellant was liable under ss 22A and 22B including:

a.   The conduct of Sydney Water’s employees in printing, displaying and distributing of the Poster as evidence of what the Appellant did;

b.   Whether the Appellant and Sydney Water were ‘jointly engaged’ in the printing, displaying and distributing of the Poster;

c.   whether employees of the Appellant ‘managed’ employees of Sydney Water engaged in the Relevant Conduct in a general sense;

d.   Whether Sydney Water employees were under the ‘supervision’ of Vitality Works’ employees;

e.   the fact of the contract between the Appellant and Sydney Water;

f.   whether the Appellant could have engaged in the impugned conduct, rather than did in fact engage in the impugned conduct; and

g.   the subjective assessment of the poster by Sydney Water employees at a time after the conduct in which Vitality Works engaged.

5 The Appeal Panel made an error of law when it applied the wrong test to determining s 22A of the ADA and specifically whether the conduct was:

a.   conduct of a sexual nature and/or

b.   to be assessed by reference to Ms Yelda’s point of view rather than by reference to whether ‘a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated’ as is set out in the legislation.

6   The Tribunal erred in law when it made findings as set out in grounds 4c to 4d and 4g inclusive as there was no evidence supporting those findings.”

31. The issue which is immediately apparent in a comparison of Vitality Works’ grounds before the Appeal Panel and the grounds of appeal in this Court is that the “no evidence” ground, ground 6 in the appeal to this Court, was not in whole or in part a ground of appeal before the Appeal Panel. We will return to the issue of whether leave to appeal should be granted on any ground at the conclusion of these reasons.

31. The most striking feature of Vitality Works’ case in this Court is the assertion that it was a “third party” in the publication, display and distribution of the Poster and thus not responsible for that conduct, as ancillary liability under s 52 of the Anti-Discrimination Act had not been “pleaded” against it. Vitality Works’ argument rested on the fact that an employee, as distinct from an agent, of Vitality Works had not printed out and physically attached the Poster to the wall at the Ryde depot. Given the critical, unchallenged and in this Court, unchallengeable finding of fact, that the design, publication, display and distribution of the Poster was done by Vitality Works, however, the basis for much of Vitality Works’ appeal falls away.

Sexual harassment

33. Section 22A of the Anti-Discrimination Act provides: ^[2]

22A Meaning of “sexual harassment”

For the purposes of this Part, a person sexually harasses another person if—

(a)   the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b)   the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

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

2. Sections 22A, 22B, 52 and 53 have not been amended since the relevant date in April 2016.

34. The relevant requirements of the section are that the first person, here Vitality Works, engages in “other unwelcome conduct of a sexual nature” in relation to the other person, here Ms Yelda. Whether conduct amounts to “other unwelcome conduct of a sexual nature” is a question of fact having two parts. Whether the conduct is “unwelcome” is a subjective question, judged from the point of view of the person subjected to the conduct. Whether the conduct is “conduct of a sexual nature” is a question of fact, ascertained objectively.

35. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute. In a leading text concerning sexual harassment, which was quoted in submissions by Vitality Works, the following passage appears (Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, 2018, Federation Press) at 640):

“[12.3.24]   The [Sex Discrimination Act 1984 (Cth)] definition of ‘sexual harassment’ strikes a balance between competing interests by providing some protection to unthinking and unwelcome, but genuine, suitors, and to people who engage in horseplay, by requiring proof of an objective element which evaluates the behaviour in question from the perspective of the reasonable person.”

36. No doubt contrary to the intention of the learned authors, it would appear that this passage may have been understood by some as introducing the concept of conduct found to be “horseplay” as being somehow immune from characterisation as “sexual conduct”. We reject that suggestion. It is a serious error to contrast “horseplay”, whatever that non-statutory term is supposed to mean, with “other unwelcome conduct of a sexual nature”. A finding of fact that conduct amounts to “horseplay” is irrelevant to the question of whether that conduct should be characterised as “other unwelcome conduct of a sexual nature”. Conduct which may be characterised as “horseplay” – an imprecise concept – is not immune from being found to be sexual harassment.

37. The second element of sexual harassment is that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the proved conduct. This is an objective test. Vitality Works’ submission that the use of the slogan “Feel great – lubricate” over photographs of employees of Sydney Water and other clients of Vitality Works had not led to adverse comment in the past, and that this was somehow relevant to determination of the objective question, should be rejected. The evidence advanced by Vitality Works of a subjective reaction of an unknown number of people about this question is a clear example of why the subjective views of participants are irrelevant to the question of whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the conduct. The evidence relied upon by Vitality Works was vague and anonymous. Absent context, Vitality Works’ evidence about the absence of complaint concerning other posters reveals nothing about whether a reasonable person would be offended, humiliated or intimidated by the conduct addressed to Ms Yelda here. That evidence did not even disclose whether any other woman, as distinct from a man, had ever been subject to a campaign where her image was superimposed with the text “Feel great – lubricate”.

38. Sexual harassment, as defined, is only unlawful if a relational element is also satisfied. Section 22B of the Anti-Discrimination Act provides:

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

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

(a)   an employee, or

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

(2)   It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3)   It is unlawful for a person to sexually harass—

(a)   a commission agent or contract worker of the person, or

(b)   a person who is seeking to become a commission agent or contract worker of the person.

(4)   It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5)   It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

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

(7)   It is unlawful for a member of either House of Parliament to sexually harass—

(a)   a workplace participant at a place that is a workplace of both the member and the workplace participant, or

(b)   another member of Parliament at a place that is a workplace of both members.

(8)   It is unlawful for a workplace participant to sexually harass a member of either House of Parliament at a place that is the workplace of both the member and the workplace participant.

(9)   In this section—

place includes a ship, aircraft or vehicle.

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

workplace participant means any of the following—

(a)   an employer or employee,

(b)   a commission agent or contract worker,

(c)   a partner in a partnership,

(d)   a person who is self-employed,

(e)   a volunteer or unpaid trainee.

(10)   Without limiting the definition of workplace, the workplace of a member of either House of Parliament is taken to include the following—

(a)   the whole of Parliament House,

(b)   any ministerial office or electoral office of the member,

(c)   any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties.

39. Traditional relationships such as employer and employee, partners and people seeking to become partners, commission agents and, more recently, Members of Parliament, are defined as falling within the prohibition. In the context of modern workplaces, with traditional employment models becoming less common, an additional relational basis of liability is of increasing importance – “workplace participants”. The term “workplace participant” describes a broader relational connection including (in addition to all of the traditional categories) a person who is self-employed, a corporate contractor or a volunteer or unpaid trainee. The connection between the relational categories of “workplace participants” is that the sexual harassment must occur at a place at which each participant works or otherwise attends in connection with being a workplace participant. As this is the relevant connection engaged in this case, we will return to this topic when addressing Vitality Works’ proposed grounds of appeal.

40. In the appeal to this Court, Vitality Works complained that the Appeal Panel, without mentioning s 52 of the Anti-Discrimination Act, found against it on the basis of that section. Vitality Works’ principal complaint is that statutory ancillary liability had not been “pleaded”. Section 52 of the Anti-Discrimination Act provides:

52 Aiding and abetting etc

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

41. As we will explain, Vitality Works’ submission about an alleged misuse by the Appeal Panel of s 52 of the Anti-Discrimination Act is without merit.

42. Finally, s 53 of the Anti-Discrimination Act, which provides a statutory recognition of the attribution of liability to a principal or employer such as a corporation, should be noticed. Relevantly, the acts of an agent of a company, which are expressly or by implication authorised by the company, are attributed to the company for the purposes of determining the company’s liability. Section 53 of the Anti-Discrimination Act provides:

53 Liability of principals and employers

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

(2)   If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3)   Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4)   For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

43. Companies can only act through employees or agents. We doubt that s 53 of the Anti-Discrimination Act has any broader application than the common law in attributing the acts of employees and agents to a corporation. An act done by an employee or agent, within the scope of the authority of the employee or agent, is attributable to the company and the company is liable as if it had committed the act. To the extent that Vitality Works’ submissions were predicated upon liability attaching to it only for the conduct of its employees, and not agents acting within the scope of their authority, we reject those submissions. They are inconsistent with both s 53 of the Anti-Discrimination Act and the general law.

“A question of law”

44. Vitality Works submitted that leave to appeal should be granted pursuant to s 83(1) of the Civil and Administrative Tribunal Act because there are clear errors in the decision below that raise issues of principle and general importance. It was submitted that these proceedings will determine the extent to which a person may be held liable for the acts of another party under the Anti-Discrimination Act.

45. Ms Yelda submitted that Vitality Works should be refused leave to appeal on all grounds because it has not shown that the decision is attended by sufficient doubt or that substantial injustice will result from a refusal of leave.

46. In Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378, Leeming JA considered the meaning of “a question of law” in the context of s 119 of the Administrative Decisions Tribunal Act 1997 (NSW), the predecessor to s 83 of the Civil and Administrative Tribunal Act:

“[3] The appeal created by s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) is an appeal ‘on a question of law’. The subject matter of any such appeal is one or more questions of law. That is the natural meaning of the statutory language. It accords with authority: see for example Brown v Repatriation Commission [1985] FCA 194; 7 FCR 302 at 304 (‘[the question of law is] the subject matter of the appeal, and the ambit of the appeal is confined to it’). And it accords with its historical context …

[4]   There is no satisfactory test of universal application to define a question of law: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394. One reason is that the meaning of ‘question of law’ is dependent upon context: see eg Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 at [25]-[44] especially at [37]. Even in a familiar context, where the term ‘question of law’ delineates the scope of an appeal, there is no clear test. This is no new thing, as Windeyer J explained in Da Costa v The Queen (1968) 118 CLR 186 at 194-195.”

47. In PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446, Sackville AJA (with whom McColl and Leeming JJA agreed) said the following:

“[113]   A failure to state and apply the correct principles of law constitutes an error of law. On an appeal limited to questions of law the appellate court can correct an error of this kind.

[114]   The position is different with findings of primary fact. Ordinarily, a challenge to such findings gives rise only to questions of fact and does not involve a question of law. There are, however, qualifications to this proposition. For example, a contention that there was no evidence to support an important finding of primary fact raises a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321, at 355, per Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed); Kostas v HIA Insurance Services, at [33], per French CJ.”

48. In Barkat v Roads and Maritime Services [2019] NSWCA 240, Emmett AJA (with whom Leeming JA and Simpson AJA agreed) observed in another context that an appeal on a question of law:

“[48]   … requires the Court to identify a decision on a question of law made by the Court below. That identification is not merely a precondition to a right of appeal but identifies the subject matter of the appeal. Secondly, it must be demonstrated that the question of law was decided erroneously. What will amount to an error of law in any particular case will depend upon context. However, it is clear that neither erroneous findings of primary fact nor the drawing of illogical or inappropriate inferences will of themselves constitute an error of law. A perverse or unreasonable finding is not without more an error of law. If the reasoning whereby the finding of fact is arrived at is shown to be unsound, that does not suffice for there to be an error on a question of law.”

49. Most recently, in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220, Bathurst CJ and Bell P undertook an extensive analysis of the meaning of a question of law. One matter pointed out by their Honours at [60] was that it is well established that a question of mixed fact and law is to be differentiated from, and is not, a “question of law”, citing Thomas v R (1937) 59 CLR 279; [1937] HCA 83 at 306; Iannella v French (1968) 119 CLR 84; [1968] HCA 14 at 114-115; and Williams v R (1986) 161 CLR 278; [1986] HCA 88 at 287 and 314.

50. We doubt that a number of Vitality Works’ grounds truly raise a question of law. Given the conclusions we have reached about those grounds, however, it is unnecessary to say more than to the extent that those grounds either explicitly or implicitly challenge findings of fact, they must be rejected. We will return to the question of leave to appeal having addressed the substance of each of Vitality Works’ grounds of appeal.

Grounds 1 and 4(a)-(f) – ss 22A and 22B and persons “jointly engaged”

51. Vitality Works submitted that the Tribunal’s (and the Appeal Panel’s) finding that it and Sydney Water were “jointly engaged” in the sexual harassment of Ms Yelda was “ultra vires”. It submitted that ss 22A and 22B of the Anti-Discrimination Act did not empower the Tribunal (and the Appeal Panel) to make that finding. Further, it was submitted that the Appeal Panel misapplied the statutory test and made errors of law by taking into account irrelevant matters in determining that Vitality Works was liable under ss 22A and 22B.

52. These grounds should be rejected. As we have explained at [15]-[16] and [24] above, the Appeal Panel adopted the critical finding of fact made by the Tribunal that the design, publication, display and distribution of the Poster was “done by Vitality Works with the approval of Sydney Water”. The Appeal Panel emphasised that Vitality Works created the Poster, provided it to Sydney Water and directed that the Poster be displayed at the Ryde depot. That finding was a sufficient basis to conclude that Vitality Works was liable to Ms Yelda under ss 22A and 22B of the Anti-Discrimination Act.

53. The critical finding of fact was made for essentially three reasons:

1. Vitality Works was responsible under their contract to manage the design, publication, display and distribution of the Poster. The Tribunal (and the Appeal Panel) accepted the evidence that the practical relationship between Vitality Works and Sydney Water gave effect to this contractual agreement as well. Mr Wallace from Sydney Water gave evidence, which was accepted, that there was no requirement for him to approve any of the posters designed by Vitality Works before they were used. This was because the whole process was being managed by Vitality Works. His evidence that “it was up to Vitality Works to fill [the template] out within the confines of the branding guidelines” was accepted;

2. Vitality Works was responsible for the publication, display and distribution of the Poster. Ms Sally McMahon of Vitality Works accepted as much. She involved Mr Sybra of Sydney Water by sending to him an electronic file of the Poster with a direction to print and display the Poster; and

3. the Tribunal relied upon evidence of an email of 9 February 2016 from Ms McMahon to Mr Paul Ferguson (of Sydney Water) and Mr Sybra. The email directed Sydney Water to print the posters out and display them in the workplace. There was secondary evidence of the email containing that direction. Vitality Works cannot be heard to complain about factual findings made on the basis of secondary evidence where they have failed to provide primary evidence of their own email.

54. The subsequent finding in relation to “joint responsibility” with Sydney Water addressed Sydney Water’s liability, not Vitality Works’ liability. The content of the Appeal Panel’s decision makes that clear. The finding that the publishing, printing and distributing of the Poster was as a result of the joint conduct of Vitality Works and Sydney Water is at [103]-[104] of the Tribunal’s decision. Those paragraphs appear as part of a passage in which the Tribunal is reasoning that, despite their earlier finding that the conduct constituting sexual harassment was engaged in by Vitality Works, it was proper to regard Sydney Water as also responsible for sexual harassment:

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

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

55. The real significance of the Tribunal’s additional finding, that the publishing, printing, displaying and distributing of the Poster was as a result of the “joint conduct” of Vitality Works and Sydney Water, was not, as Vitality Works suggested, to identify Vitality Works as a third party to the relevant conduct, but rather to implicate Sydney Water as jointly responsible for the conduct that the Tribunal found had been engaged in by Vitality Works.

56. Having stated that “Vitality Works was managing the process of the display of the posters and was effectively in charge, with authority to display the Poster itself, if it so chose”, the Tribunal explained that Vitality Works chose to involve the relevant managers of Sydney Water. The Appeal Panel adopted the Tribunal’s explanation. A critical factual finding of the Tribunal, accepted by the Appeal Panel at [31], was that Mr Sybra (who received the posters by email from Vitality Works) was under the supervision and direction of Vitality Works when he printed and physically displayed the Poster.

57. Even if the Appeal Panel had reasoned directly that both Vitality Works and Sydney Water were “jointly responsible” for sexually harassing Ms Yelda (without first finding that Vitality Works was itself liable for sexual harassment), there is nothing in the subject matter, scope or purpose of the Anti-Discrimination Act which would make that finding “ultra vires”. The conduct of more than one actor may, depending on the circumstances, properly be the subject of a finding of sexual harassment. That is even more so in the case of two corporate defendants where, depending on the circumstances, the activities of various employees and agents may be attributed to more than one such corporate defendant. Vitality Works’ submission that two defendants can never be found jointly liable for sexual harassment would effect a very substantial restriction to the operation of ss 22A and 22B of the Anti-Discrimination Act. There is no reason to impose limits, not found in the statute, upon the clear statutory prohibition on sexual harassment.

58. Vitality Works submitted that the only mechanism by which one person may be held liable for the conduct of another was on the basis that they caused, instructed, induced, aided or permitted another person to do an act that is unlawful under that Act. Contrary to Vitality Works’ repeated submission, s 52 of the Anti-Discrimination Act was not the basis upon which the Appeal Panel concluded that Vitality Works was liable. The basis of Vitality Works’ assertion that it was a “third party” to the harassment of Ms Yelda was that an employee of Vitality Works had not physically affixed the Poster to a wall at the Ryde depot. Vitality Works claimed that its conduct was limited to the design and sending by email of the Poster, which it submitted occurred at a location which was not a workplace of Ms Yelda.

59. There is an immediate answer to Vitality Works’ submission. By reason of the critical finding of fact made in this case which we have described at length, the asserted restriction of Vitality Works’ conduct to acts preparatory to the printing and affixing of the Poster to the walls at the Ryde depot must fail. That is a sufficient basis to reject these grounds.

60. As we have explained, Vitality Works’ complaint about s 52 of the Anti-Discrimination Act is without merit as it is based on far too narrow a conception of Vitality Works’ conduct. In any event, the Tribunal did not find that s 52 of the Anti-Discrimination Act was engaged in relation to Vitality Works.

61. Finally, it is necessary to say something briefly about the complaint that s 52 of the Anti-Discrimination Act had not been “pleaded”. A complaint about sexual harassment must be in writing and made to the President of the Anti-Discrimination Board (ADB). The relevant provisions of the Anti-Discrimination Act provide:

89 Form and content of complaints

(1)   A complaint is to be in writing but does not have to take any particular form.

(2)   A complaint, as made, need not demonstrate a prima facie case.

89A Making of complaint

(1)   A complaint is made by lodging it with the President [of the ADB].

(2)   A complaint may be lodged with the President—

(a)   by delivery by post or hand to an office of the Board, or

(b)   by facsimile to an office of the Board, or

(c)   by such other means as may be prescribed by the regulations.

62. The President of the ADB is required to accept or decline the complaint, in whole or in part: s 89B(1) of the Anti-Discrimination Act. The complaint, if unresolved by the ADB, may be referred to the Tribunal (as was done in this case): ss 93A, 93B and 93C of the Anti-Discrimination Act. There is no requirement for formality imposed upon a complaint referred to the Tribunal. Upon referral, the Tribunal is seized of jurisdiction to consider the complaint: s 39 of the Civil and Administrative Tribunal Act.

63. Whilst the procedures adopted by the Tribunal to ensure procedural fairness may include a requirement to file additional documents, such as points of claim, in the present case all that was before the Tribunal was the original written complaint document together with a notification dated 19 June 2017 from the ADB to Vitality Works. The complaint contained a clear allegation that Vitality Works had published the Poster and that Sydney Water had approved the publication of the Poster and that each thereby had directly contravened s 22B of the Anti-Discrimination Act: [31] and [33]. There is nothing surprising, let alone “ultra vires”, about two parties each being responsible for degrees of publication: Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50.

64. There was no unfairness in the Tribunal acting on that complaint and finding that Vitality Works had engaged in unlawful sexual harassment.

65. No error has been shown in the Appeal Panel’s decision that Vitality Works and Sydney Water were persons “jointly engaged” in the sexual harassment of Ms Yelda.

66. Grounds 1 and 4(a)-(f) should be rejected.

Grounds 2, 4(g) and 5(b) – failure to identify relevant matters in determining a breach of ss 22A and 22B

67. By ground 2, Vitality Works complained that the Appeal Panel made errors of law when it failed to identify factors relevant to determining breach of ss 22A and 22B of the Anti-Discrimination Act, which included:

1. the conduct in which Vitality Works (or its employees) engaged, being the creation of the Poster and limited to (i) taking Ms Yelda’s photo, (ii) inserting it into the poster template and (iii) sending it to Mr Sybra;

2. whether that specific conduct was conduct of a sexual nature in relation to Ms Yelda;

3. whether a reasonable person, having regard to all the circumstances in which Vitality Works engaged in the conduct, and necessarily limited to that conduct, would have anticipated that Ms Yelda would be offended, humiliated or intimidated; and

4. whether the conduct occurred at a location that was the workplace of both Ms Yelda and Vitality Works.

68. Vitality Works submitted that the Tribunal failed to have proper regard to the test in ss 22A and 22B by reference to the conduct for which it could be held liable (that is, taking Ms Yelda’s photo, inserting it into the poster template and sending it to Mr Sybra).

69. At the risk of repetition, Vitality Works’ submission does not address the critical finding of fact made about its conduct but rather assumes it away. The repeated assertion that the only conduct Vitality Works engaged in was taking Ms Yelda’s photo, inserting it into the poster template and sending it to Mr Sybra does not make it so.

70. The Appeal Panel rejected Vitality Works’ submission that it was only the physical acts of its employees for which it could be responsible. The Appeal Panel was correct to do so. Vitality Works’ submission was not correct as a matter of law. Leaving aside the attribution to a company of the authorised acts of agents acting on its behalf at common law, s 53 of the Anti-Discrimination Act plainly makes the conduct of Vitality Works’ agents attributable to Vitality Works.

71. To the extent ground 2(a) was pressed, which is unclear, it should be rejected.

72. In relation to ground 2(b), Vitality Works submitted that sending the electronic file was not conduct “in relation to” Ms Yelda and was not conduct of a sexual nature. It submitted that the critical issue was the use made of the photograph and, while Ms Yelda did not specifically consent to its use in the particular poster template, the failure to obtain informed consent was not conduct of a sexual nature and so was not relevant to any sexual harassment claim.

73. Vitality Works further submitted that inserting Ms Yelda’s photograph into the poster template was conduct “in relation to” Ms Yelda and was the only conduct which could be assessed by reference to ss 22A and 22B.

74. We do not agree.

75. Vitality Works again incorrectly undercharacterises the conduct in which it has been found, as a matter of fact, to have engaged. The facts found by the Tribunal and endorsed by the Appeal Panel were that the design, publication, display and distribution of the Poster was done by Vitality Works.

76. The conduct for which Vitality Works was actually responsible was plainly unwelcome conduct of a sexual nature. Vitality Works’ conduct held up Ms Yelda to sexual ridicule in her workplace. It was plainly unwelcome conduct for Ms Yelda literally to be made the poster-woman for sexual self-lubrication to her all-male colleagues. The Appeal Panel correctly regarded Ms Yelda’s evidence that Vitality Works’ conduct was unwelcome as dispositive.

77. As we will explain at [96]-[109] below, we are unable to accept the submission that the conduct for which Vitality Works was responsible, considered objectively, was not sexual in nature. The Poster was correctly found to convey the meaning “that Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure”.

78. Ground 2(b) should be rejected.

79. In relation to ground 2(c), Vitality Works submitted that, as at the date of the conduct, there was no indication that Ms Yelda had any issue with the use of her image within the general consent provided and no evidence that Ms McMahon meant anything by the insertion of the photo other than the medical meanings used in the “SafeSpine” program. It was submitted that there was no indication from prior experience that the words used on the Poster would have the effect that was later had on Ms Yelda, noting that “lubricate” had been used in approximately 200 workshops with no similar response and the same poster template had been used with images of other employees for at least 15 other clients of Vitality Works.

80. Further, Vitality Works submitted that the test in s 22A is an objective one, and the Tribunal erred in law in finding that the assessment of whether the conduct was unwelcome should be carried out by reference to only Ms Yelda’s point of view. It was submitted that the test of what is “unwelcome” requires consideration of the conduct of both parties and whether the alleged perpetrator could have known that the conduct was unwelcome.

81. Ground 2(c) should be rejected. There is no legal requirement that the perpetrator of sexual harassment intended to sexually harass the victim. Whether conduct is “unwelcome” for the purposes of s 22A(b) imports a subjective test determined by reference only to the complainant’s state of mind.

82. We agree with McCallum J in Styles v ClaytonUtz(No 3) [2011] NSWSC 1452 at [177] at [181], that “the sexual conduct must be subjectively unwelcome to the complainant” and that “the phrase ‘unwelcome conduct’ plainly means conduct perceived by the complainant as unwelcome”. We also agree with Bromberg J, who held in Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576, at [27], that “‘unwelcome’ simply means conduct that is disagreeable to the person to whom it was directed” and that “[t]he requirement that the impugned conduct be unwelcome raises a subjective test” ^[3] (see further Kraus v Menzie [2012] FCA 3 at [22] per Mansfield J).

    3. This aspect of the judgment was not challenged on appeal: see Vergara v Ewin [2014] FCAFC 100; (2014) 223 FCR 151 at [68].

83. Ground 2(c) should be rejected.

84. In relation to ground 2(d), Vitality Works submitted that s 22B(6) of the Anti-Discrimination Act was not engaged because it does not extend to work done by employees of Vitality Works at Vitality Works’ workplace, which is not also Ms Yelda’s workplace.

85. Section 22B(6) was plainly engaged in this case because both Vitality Works and Ms Yelda were “workplace participants” at Sydney Water; Vitality Works as a contractor, Ms Yelda as an employee. Sydney Water’s Ryde depot was a “workplace” of each for the purposes of s 22B(9), being “a place at which a workplace participant works or otherwise attends in connection with being a workplace participant”.

86. Vitality Works’ real complaint was that in order to be liable there needed to be conduct occurring at the same time in the workplace which gave rise to the relevant statutory connection of being a workplace participant. On the basis of the critical finding of the Tribunal, adopted by the Appeal Panel, that requirement was met.

87. Ground 2(d) should be rejected.

88. The premise of ground 4(g) is without merit. The Tribunal’s findings, adopted by the Appeal Panel, were not based on a subjective assessment of the Poster by Sydney Water employees at a time after the conduct in which Vitality Works was found to have engaged. Vitality Works’ real complaint appears to have been directed to the evidence of internal enquiries within Sydney Water about Vitality Works’ conduct. In taking that evidence into account, the Tribunal did not impermissibly take into account a subjective assessment of the Poster by Sydney Water employees. The Tribunal made it clear that in assessing whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated, an objective test was being applied. We reject ground 4(g).

89. Vitality Works submitted that the Appeal Panel made the error complained of in ground 5(b) at [91] of its decision:

“[91]   We consider that it is clear from the Tribunal’s decision at [115]-[122], quoted above, that the Tribunal was satisfied, on the evidence, as a matter of fact, that the juxtaposition of Ms Yelda’s photograph with the words ‘Feel great – lubricate’ on the Poster which was created by Vitality Works for display at Sydney Water premises was unwelcome conduct from Mr Yelda’s point of view.”

90. Ground 5(b) is without merit. The Appeal Panel did not assess the test in s 22A of the Anti-Discrimination Act by reference to Ms Yelda’s point of view rather than by reference to whether “a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated”. As we have explained, the Appeal Panel applied an objective test in addressing that question. The reference to Ms Yelda’s point of view at [91] of the Appeal Panel decision is addressed to the question of whether the conduct was unwelcome. That was a subjective question.

Ground 3 – whether the Tribunal identified the wrong question when it asked itself about joint involvement between Vitality Works and Ms Yelda

91. Ground 3 was abandoned in writing in Vitality Works’ written submissions in reply.

Ground 5(a) – conduct of a sexual nature

92. The Tribunal found, as a fact, that the Poster conveyed the meaning “that Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure”. The question here is whether that proved conduct of Vitality Works was “other unwelcome conduct of a sexual nature in relation to the other person” within the meaning of s 22A of the Anti-Discrimination Act. Vitality Works submitted that it was not.

93. Vitality Works submitted that the Tribunal and Appeal Panel applied the wrong test when it determined that the Poster may carry a sexualised meaning by way of a double entendre because (a) it wrongly rejected Vitality Works’ intention as irrelevant; and (b) it failed to assess the Poster by reference to whether its words or images were “sexually explicit”, in which case no such finding could be made in respect of a double meaning unless Vitality Works engaged in conduct bringing that other meaning to life (in relation to which there was no evidence): see Coleman v Bentley [2002] NSWADT 87. It was submitted that the Poster could not fall into that category because there is nothing sexual about the image itself and the ordinary meaning of the words, including “lubricate”, is not sexually explicit. It was submitted that the Appeal Panel erred in referring to Johanson v Michael Blackledge Meats [2001] FMCA 6; (2001) 163 FLR 58 (Blackledge).

94. Vitality Works submitted that the Tribunal failed to engage with relevant evidence given by Ms McMahon because it wrongly relied upon Blackledge as authority for the proposition that “it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way” (at [125], quoted by the Appeal Panel at [39]) and as a consequence failed to have regard to relevant matters, including (a) Vitality Works’ intention in creating the Poster; and (b) that it was the emails sent by Sydney Water employees that in fact gave rise to a sexually explicit meaning. It was submitted that the Tribunal effectively held that Vitality Works was liable for the conduct of persons who were not its employees or agents.

95. Vitality Works submitted that something more was required to turn the use of the word “lubricate” into conduct “of a sexual nature” and Vitality Works would need to have engaged in conduct giving rise to the double meaning. It was further submitted that the image portrayed Ms Yelda doing an exercise recommended to prevent workplace injuries, namely stretching her right arm towards the sky with fingers extended whilst holding her left arm down with fingers also extended and pointing to the ground, in clothing from neck to ankle and a high visibility vest, and there was nothing sexualised about the way in which the photograph was taken or its content.

96. We have concluded that the clear words of the statute and the subject matter, scope and purpose of the Anti-Discrimination Act make it clear that the subjective intention of Vitality Works to engage (or not engage) in “other unwelcome conduct of a sexual nature” is not an element of sexual harassment.

97. As to the words of s 22A of the Anti-Discrimination Act, they are clear and sufficient to encompass the present conduct. The phrase “other unwelcome conduct of a sexual nature” is not a term of art but, rather, an ordinary English expression in common usage. It is a term of broad import that should not be narrowly construed. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute.

92. As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected.

93. In Blackledge, reliance upon which by the Appeal Panel was much criticised by Vitality Works, the accidental sale of a bone which had been attached with a skewer to another bone by a butcher’s assistant and altered to resemble male genitalia was held to constitute sexual harassment of the customer who purchased the bone under the Sex Discrimination Act 1984 (Cth). Federal Magistrate Driver said at [84]-[86]:

“[84]   Clearly, the sale of an ordinary dog bone is not conduct of a sexual nature. However, the provision of a dog bone shaped so as to resemble a human penis is conduct of a sexual nature. The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way. The type of conduct that has been held to be conduct of a sexual nature includes exposure to sexually explicit material and sexually suggestive jokes …

[85]   It is also clear that sexual harassment constituted by conduct of a sexual nature can be the result of a single act or single incident. I was referred Miss Needham to the decision in Bennett v Everitt where it was pointed out that the question whether a single action or statement can constitute sexual harassment depends on the nature or quality of the action or statement. Some conduct may be so troublesome or vexing to be of such a nature as to cause offence sufficient to constitute sexual harassment. On the other hand, other conduct would not. I accept that submission. On the other hand, I accept the applicant’s submission that there is no reasonableness test in relation to the nature of the complainant’s reaction to the relevant conduct. The test is whether a reasonable person would have anticipated that a complainant would be offended, et cetera.

[86]   In the present case the respondents conceded that the object was of its nature a shocking object. There is evidence, which I accept, from the applicant that she was offended, humiliated or intimidated by the provision of the bone. While I do not place great weight on the evidence of Ms Schofield it provides corroboration. Both Mr Blackledge and Mr Finlay expressed feeling shock on seeing the bone or a picture of it. Having regard to the evidence, and on my own inspection of the object, I am satisfied that a reasonable person would have anticipated that the applicant would feel offended, humiliated or intimidated as a result of receiving the bone.” (Citations omitted.)

100. We accept that the Sex Discrimination Act1984 (Cth) contains a differently phrased prohibition upon sexual harassment and that care should be taken in mechanically applying decisions made under that Act to the Anti-Discrimination Act. We fail to see, however, that Blackledge would be decided in any different way under the Anti-Discrimination Act. Much less do we think that by its reference to Blackledge the Appeal Panel in the present case erred. To be clear, “other unwelcome conduct of a sexual nature” includes sexually suggestive “jokes” and comments, including “jokes” and comments containing a double meaning.

101. As to whether as a matter of objective fact particular conduct meets the description of “other unwelcome conduct of a sexual nature”, context is everything. The meaning of language changes over time. Language falling within the concept of “other unwelcome conduct of a sexual nature” may change over time. Societal norms, including the common understanding about what is and is not conduct of a sexual nature, change. Analysing decisions from 20 years ago about what was or was not conduct of a sexual nature is fraught with risk. With those caveats in mind, some assistance may be gleaned from previously decided cases.

102. In O’Callaghan v Loder (1983) 3 NSWLR 89, Mathews DCJ (as her Honour then was) said at 103 that:

“The sexual conduct of the employer can vary, on the one hand, from attempts at sexual intercourse or some other overt sexual connection, through the whole range of sexual contact, including kissing, touching or pinching, and can include purely verbal approaches such as sexual propositions, or gender based insults or taunting. It would be wrong for this tribunal to attempt an exhaustive list, as human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment.

In the normal course of events it is the persistence in the sexual conduct which renders it unlawful under this head. A single approach by an employer would be unlikely to fall within s 25(2)(a). But one cannot discount the possibility of an employer's single act of sexual aggression so tainting the working environment as to come within this section. It would thus be wrong for this tribunal to limit the numbers or types of approaches which might attract s 25(2)(a). It will depend entirely upon the circumstances of each case. But before this section can be invoked, the conduct of the employer must create an unwelcome feature of the employment in a continuing rather than an isolated sense.”

103. What Justice Mathews said almost 40 years ago in the context of an Act which did not even contain a definition of sexual harassment bears close analysis. Any attempt to compile an exhaustive list of “other unwelcome conduct of a sexual nature” is doomed to fail. Human inventiveness would almost certainly find other activities or approaches of a sexual nature, equally unwelcome and unpleasant, which might then be denied the label of sexual harassment.

104. In Poniatowska v Hickinbotham [2009] FCA 680, Mansfield J at [294] said about the phrase “conduct of a sexual nature”:

“[294]   The term ‘conduct of a sexual nature’ is not defined other than inclusively in the SD Act. The content of the term ‘of a sexual nature’ must take its meaning from its context. Its context includes s 28A(1)(a), referring to sexual advances or requests for sexual favours. Section 28A(1)(b) and (2) is intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a), but I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour. It is not necessary or appropriate to set the outer bounds of ‘conduct of a sexual nature’. It does not, in my view, extend to encompass the conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language.”

105. We agree with Mansfield J that it is not necessary or appropriate to set the outer bounds of “conduct of a sexual nature”. We respectfully doubt, however, that “conduct of a sexual nature” necessarily excludes “conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language” (emphasis added).

106. Vitality Works relied heavily on a decision of the Equal Opportunity Division of the Administrative Decisions Tribunal in Coleman v Bentley [2002] NSWADT 87. Whilst the outcome in Coleman v Bentley is unobjectionable, we do not agree with the following passage which was relied upon by Vitality Works, nor with the decision of the Federal Court in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; (1989) 85 ALR 503 which it recites:

“[26]   As the Federal Court has observed:

Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word ‘harass’ implies the instillation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary:

1.   To trouble by repeated attacks, incursions, etc. as in war or hostilities; harry; raid;

2.   To disturb persistently; torment, as with troubles, cares, etc. (Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 at 531).”

107. The passage, with respect, contains an unwarranted gloss on the statutory language of the Anti-Discrimination Act and does not represent the law. Even assuming that there is some contextual utility in seeking to define “sexual harassment” outside of the statutory definition in s 22A, the suggestion that sexual harassment “implies the instillation of fear or the infliction of damage” must be rejected. The Macquarie Dictionary definition of “harass” is, in the present context, profoundly unhelpful in potentially introducing a number of non- statutory limitations upon the operation of the prohibition. The limitations upon the statutory prohibition that this passage implies are not warranted by the text and context of the Anti-Discrimination Act. The prohibition upon sexual harassment in the Anti-Discrimination Act provides an important societal norm, which is not limited by a dictionary definition of “harass”.

108. In the present case, the Poster plainly conveyed the meaning found as a fact by the Appeal Panel “that Ms Yelda, with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure”. The fact that the Poster may also have been capable of conveying a safe spine message (which is not obvious) is not to the point. “Other unwelcome conduct of a sexual nature” includes sexually suggestive comments or “jokes”, including comments or “jokes” containing more than one meaning. Indeed, the whole point of the Poster, ascertained objectively, and its use of sexually suggestive language of female lubrication over a photograph of Ms Yelda, was to emphasise the sexual meaning which Vitality Works now denies was intended. It is not without significance that, in the Poster, the photograph of Ms Yelda’s outstretched right arm and fingers is positioned as to effectively point and thus draw further attention to the most prominent word in the Poster, namely “lubricate”.

109. The construction contended for by Vitality Works involves an impermissible narrowing of the statutory language. It seeks to substitute for the statutory language of “other unwelcome conduct of a sexual nature” the words “other unwelcome conduct of a sexually explicit nature”. There is no doubt that sexually explicit content, for example “revenge pornography” or “up skirted” images, is correctly understood to be “other unwelcome conduct of a sexual nature”. But the category of other conduct which is sexual in nature and prohibited by the Anti-Discrimination Act is far broader than that. It includes conduct such as the present which can properly be described as holding up Ms Yelda to sexual ridicule amongst her colleagues. To the extent, which we doubt, that Coleman v Bentley is authority for another proposition advanced by Vitality Works, that the putative sexual harasser must have “sought to impose a sexual meaning in relation to Ms Yelda”, that case is not correct and should not be applied in the Tribunal.

110. Ground 5(a) should be rejected.

Ground 6 – no evidence

111. There is a fundamental problem with ground 6, the no evidence ground. Of course, a complaint about no evidence being available to support a factual finding may amount to an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32.

112. Counsel for Vitality Works accepted that the no evidence ground was not taken below. As this Court has made clear in the authorities referred to at [28]-[29] above, it would be a rare case in which this Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel and which, accordingly, had not been the subject of any decision made by the Appeal Panel in the proceedings.

113. Leave to appeal on this ground should be refused because it was not raised in the appeal to the Appeal Panel. This Court is rightly reluctant to say that the Appeal Panel failed to decide a ground that was never argued before it. Given the limits of an appeal under s 83, Vitality Works should not be permitted to conduct its case before the Appeal Panel in one way and reserve the right to conduct the appeal to this Court on a different basis.

114. Even if leave to appeal were to be granted, however, we would reject ground 6.

115. Vitality Works submitted that there was no evidence to support the Tribunal’s finding that it managed and supervised the employees of Sydney Water in relation to the whole of the harassing conduct. First, it was submitted that there was no “pleading” that Vitality Works and Sydney Water were working together to produce conduct that constituted sexual harassment; the only evidence of management of the project being of a general kind. Secondly, it was submitted that there was no evidence that Vitality Works (specifically, Ms McMahon) had any power and control over what Mr Sybra did or did not do with the Poster sent to him by her.

116. The “no evidence” ground is without substance. In Amaba Pty Ltd (under NSW administered winding up) v Booth [2010] NSWCA 344 (referred to more recently with approval in Ballina Shire Council v Knapp [2019] NSWCA 146 and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54), Basten JA explained that:

“[24]   Whether an inference is reasonably open, in the sense of being logically available, involves an evaluative judgment, which is to be assessed by the court exercising appellate or supervisory jurisdiction.”

117. The inferences drawn by the Appeal Panel were reasonably open, in the sense of being logically available. Further, the inferences drawn by the Appeal Panel were in our view clearly correct.

118. As we have said, the Appeal Panel was entitled to rely upon the terms of the contract between Vitality Works and Sydney Water which made it clear that Vitality Works was responsible for the delivery of the SafeSpine project, including by displaying the Poster at the Ryde depot. The Appeal Panel was also entitled to rely on evidence of an email of 9 February 2016 from Ms McMahon (of Vitality Works) to Mr Paul Ferguson (of Sydney Water) and Mr Sybra. The email directed Sydney Water to print the posters out and display them in the workplace. There was secondary evidence of the email containing that direction. ^[4] That was sufficient for the Tribunal to rely upon it. The rules of evidence do not apply to cases of this kind in the Tribunal. In any event, Vitality Works cannot be heard to complain about factual findings made on the basis of secondary evidence where they have failed to tender the primary evidence, their own email.

     4. An investigation report prepared by WISE Workplace described that email as Annexure 16 and recorded at 5.17 that: “The email states that some SafeSpine posters are attached and it requests Mr Ferguson and Mr Sibraa to print some out. The email then discusses putting them up in the workplace.”

119. In addition, there was the following evidence:

1. The written evidence of Ms McMahon (of Vitality Works) was that she was responsible for delivering the SafeSpine Injury Prevention Program and, when delivering that program, her responsibilities were to deliver and manage the customisation, implementation and sustainability phases of the program with the client companies. Customised posters were provided to the client to be posted around the workplace. In the present case Ms McMahon took the photos of Ms Yelda herself:

“7.   As a Senior Site Specialist and National Mentor with Vitality Works I was responsible for delivering the SafeSpine Injury Prevention Program …

…

9.   When delivering the SafeSpine program my responsibilities were to deliver and manage the Customisation, Implementation and Sustainability phases of the program with our client companies…

10.   Phase 1: Customisation – This is specific to each client and designed to boost engagement. I would attend client sites… then photograph employees… These photographic images would then be used in the … posters.

11.   Phase 2: Implementation / Workshops – …

…

13.   Customised posters were also provided to the relevant client contact(s) for them to post around the workplace. Like Smart-Cards, customised posters contained photographs of employees from a particular client site conducting exercises/stretches that were introduced and practiced in the workshops and recommend for their roles. (italics added)

14.   Phase 3: Sustainability – …

15.   The SafeSpine program, including workshops and promotional material, is customised for each client, utilising a standard template. Customisation includes adding photographs of a clients’ employees, company logos and other client specific requests to provide a sense of familiarity. The content of the program and promotional material is generally standard and unchanged for each client.

…

22.   … I invited [Ms Yelda] and her colleague to have their photographs taken whilst performing stretches and mobility exercises that would be considered for use in the internal Sydney Water promotional material.

…

25.   The taking of photographs of a client’s employees and using them in internal promotional material is standard practice in the SafeSpine program and an approach that we use across all of our clients.

…

27.   Once I took the photographs of Reem Yelda and her colleagues, I gave them a general explanation of how the images may be used. I used words to the effect of ‘these photos may be used for the SafeSpine Injury Prevention program that we are delivering at Sydney Water. Most likely in the presentations or posters’.

28.   I did not provide specific details such as which poster they would appear on or what slogans may accompany their photographs …”

2. The oral evidence of Ms McMahon was that no approval was necessary from Sydney Water to compose and display the Poster at the Sydney Water Ryde depot.

3. The written evidence of Ms Katherine James (a manager of Vitality Works) was that no one from Sydney Water was required to provide a final sign off or approval on the posters:

“33.   … I am aware that Sally McMahon facilitated the customisation day for Sydney Water …

39   … Sally compiled the posters for Sydney Water…

41.   … Sally forwarded the posters directly to Peter Sybra, North Region Manager of Sydney Water.”

“24.   General practice is for me to give final approval of any posters or promotional material before being sent to the client. This process wasn’t followed at this time as I was away on annual leave however there is nothing in the poster or the wording that would have prevented me from approving the poster with Reem [Yelda]. I would have approved it in this format.

…

32.   No one from Sydney Water was required to provide a final sign off or approval on the posters…

33.   Our agreement with Sydney Water requires us to get approval for templates to be used on site with regards to using their corporate colours however there is no requirement to get their approval on final copy.”

4. The WISE report dated 8 November 2016 ^[5] which was in evidence recorded information provided by Ms James about the Poster being put up by either an employee of Vitality Works or Sydney Water:

   5. WISE Workplace was retained by Sydney Water to prepare an investigation report in relation to Ms Yelda’s complaint about the Poster.

“5.59   … Ms James said the poster of Ms Yelda would have been put up by either her former colleague [at Vitality Works], Sally McMahon, or by Sydney Water staff. Ms McMahon did send the poster via email to Paul Ferguson and Peter Sibraa at Sydney Water.”

5. The written evidence of Mr James Wallace (a Sydney Water manager) was that there was no express requirement for Vitality Works to send him the Poster before it was printed and displayed; no one from Sydney Water approved the Poster before it was displayed; the Poster was managed and displayed by Vitality Works; and Vitality Works printed and displayed the posters at various depots:

“18.   I never saw the finalized posters before they were printed to be displayed. The posters were not sent to me by Vitality Works before they were printed and displayed. There was no express requirement for Vitality Works to send me the final posters before they were printed and displayed.

…

35.   No one from Sydney Water approved the posters before they were displayed. My understanding was that the posters would be managed by Vitality Works. As the Vitality Works employees completed the programme training at the various depots, they displayed the posters … whilst at those depots.”

“51.   I understand that Vitality Works printed the posters, including the Poster, and displayed the posters at various depots.

52.   I have been told by Mr Peter Sibraa, a Sydney Water employee, and believe, that he offered to help, and helped, Vitality Works put up the posters at various depots…”

6. The oral evidence of Mr Wallace was that he was not a branding expert and his view was to leave it in the hands of the experts, which was why Vitality Works was hired to deliver the work, including the Poster:

“J Wallace:   Cause I was managing this program as well as many others and I'm not a branding expert. So my view was to leave that in the hands of the experts.

…

R Yelda:   But you’re not an expert.

J Wallace:   No I’m not an expert. Again that’s why we hired Vitality Works to deliver this work.”

7. Ms Yelda‘s oral evidence was that she was under the direction of Ms McMahon, who told her to stretch for the photo which appeared in the Poster: “she told me to stretch”.

120. The Appeal Panel’s finding that the design, publication, display and distribution of the Poster was done by Vitality Works was not only open but clearly correct. Vitality Works took the photograph of Ms Yelda. Vitality Works designed the Poster template including adding the message attributed to Ms Yelda “Feel great – lubricate”. Vitality Works was responsible both legally and factually for printing and displaying the Poster. Those involved in printing and displaying the Poster were doing so at the express direction of Vitality Works.

121. Even if leave were to be granted, ground 6 should be rejected.

Leave to appeal

122. As we have explained, leave to appeal on ground 6 should be refused given the failure of Vitality Works to conduct a “no evidence” appeal to the Appeal Panel.

123. The most significant factor in favour of the grant of leave on the remaining grounds is that this Court has only rarely been asked to consider the sexual harassment prohibition in the Anti-Discrimination Act. Experienced counsel appearing for Vitality Works appropriately drew the Court’s attention to the available authority and pointed out the absence of authority from intermediate appellate courts on at least some of the topics sought to be agitated, particularly the prohibition on sexual harassment as it applies to workplace participants. Accordingly, leave to appeal on grounds 1, 2, 4 and 5 should be granted but the appeal dismissed.

Conclusion and orders

124. No error on a question of law has been shown in the decision of the Appeal Panel. For the foregoing reasons, we propose the following orders:

1. Grant leave to appeal on grounds 1, 2, 4 and 5;

2. Refuse leave to appeal on ground 6;

3. Appeal dismissed;

4. Vitality Works to pay Ms Yelda’s costs of the application for leave to appeal and the appeal.

125. McCALLUM JA: I agree that the appeal must fail for the reasons stated by Bell P and Payne JA. I wish only to add the following remarks in respect of ground 5(a), which challenged the correctness of the test applied by the Appeal Panel to determine whether the conduct complained of was “conduct of a sexual nature” within the meaning of s 22A of the Anti-Discrimination Act.  It was common ground that the poster depicting Ms Yelda was designed for the purpose of conveying a work safety message in what was established to be a male-dominated workplace.  One of the arguments in support of ground 5(a) was that the depiction in that context of a woman feeling great because she lubricates could not amount to sexual harassment because its sexualised message was not “explicit”.  The sexualisation of women in the workplace often isn’t.  Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome.  The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8]-[12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.

126. I agree with the orders proposed by Bell P and Payne JA.  

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Endnotes

Decision last updated: 19 July 2021