Vitality Works Australia Pty Ltd v Yelda (No 2)

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).

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.

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.

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.

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.

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.

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

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.

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.

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]

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.

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.

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.

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.

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:

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.

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:

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:

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:

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].

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:

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”.

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:

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:

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.

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].

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:

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):

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.”

The grounds of appeal in this Court are as follows:

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.

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.

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

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.

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):

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.

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”.

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

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.

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:

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.

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:

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.

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.

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.

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:

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

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:

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.

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.

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.

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.

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

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:

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.

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.

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.

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.

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.

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.

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:

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.

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.

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

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.

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

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:

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).

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.

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.

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

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.

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.

We do not agree.

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.

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.

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”.

Ground 2(b) should be rejected.

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.

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.

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.

We agree with McCallum J in Styles v Clayton Utz (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).

Ground 2(c) should be rejected.

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.

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”.

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.

Ground 2(d) should be rejected.

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).

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

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 was abandoned in writing in Vitality Works’ written submissions in reply.

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.

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).

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.

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.

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.

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.

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.

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]:

We accept that the Sex Discrimination Act 1984 (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.

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.

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

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.

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

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).

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:

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”.

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”.

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.

Ground 5(a) should be rejected.

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.

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.

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.

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

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.

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:

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.

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.

In addition, there was the following evidence:

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.

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

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.

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.

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:

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.

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