Vitality Works Australia Pty Ltd v Yelda (No 2)

Case [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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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