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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147
Case
[2021] NSWCA 147
Decision Date
CaseChat Overview and Summary
Vitality Works Australia Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning allegations of sexual harassment. The dispute arose from Vitality Works' engagement of a contractor to design, publish, display, and distribute a poster featuring a captioned photograph of the respondent, Ms Yelda, at her workplace. Ms Yelda alleged this conduct constituted sexual harassment under the *Anti-Discrimination Act 1977* (NSW).
The Court of Appeal was required to determine whether the conduct complained of constituted "other unwelcome conduct of a sexual nature" as defined by the Act, and whether the parties involved qualified as "workplace participants" for the purposes of the relevant provisions. The appeal also involved a question of law concerning the application of these provisions to the facts as found by the primary judge.
The Court granted leave to appeal on several grounds but ultimately dismissed the appeal. The reasoning focused on the interpretation of "other unwelcome conduct of a sexual nature" and the definition of "workplace participants" within the *Anti-Discrimination Act 1977* (NSW). The Court found that the primary judge had correctly applied the law to the facts, and therefore, the appeal on the substantive grounds failed. Consequently, Vitality Works was ordered to pay Ms Yelda’s costs of the application for leave to appeal and the appeal itself.
Orders
Orders of the court
(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.