Employer, Sydney Water, distributed a poster featuring a female staff member, constituting sexual harassment and discrimination
Case name: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107
In 2023, the Fair Work Commission made a significant ruling in the case of Yelda v Sydney Water, and Yelda v Vitality Works Australia Pty Ltd, awarding Ms Yelda $200,000 in damages for sexual harassment and discrimination under workplace laws.
This case examines the nature of workplace sexual harassment, highlighting the impact of inappropriate and sexualised content in workplace materials. It underscores the importance of a prompt and thorough response from employers to such incidents to prevent further harm to employees.
CASE BACKGROUND
The case, Yelda v Sydney Water Corporation, and Yelda v Vitality Works Australia Pty Ltd, involved Sydney Water and its employee, Ms Yelda.
Ms Yelda was employed by Sydney Water and worked primarily with male field staff. In 2016, Sydney Water engaged Vitality Works to create a safety campaign for its staff, during which Ms Yelda agreed to have her photo taken for a poster promoting spine safety.
INCIDENT DESCRIPTION
Sydney Water launched the workplace safety campaign created by Vitality Works, featuring posters to promote spine safety. The poster displayed Ms Yelda smiling and pointing to the slogan “Feel Great – lubricate!” This poster was prominently displayed across multiple Sydney Water depots, including locations outside the men’s toilets and in lunchrooms.
Upon seeing the poster, Ms Yelda felt humiliated and believed it carried a sexual connotation, reducing her to the subject of crude jokes. Her distress was compounded by colleagues’ reactions, including mocking emails. Despite her immediate complaints and an apology from Sydney Water’s HR department, the company’s failure to properly investigate or hold anyone accountable exacerbated her distress.
LEGAL PROCEEDINGS AND DECISION
Ms Yelda pursued significant damages against Sydney Water and Vitality Works, citing sexual harassment and discrimination due to the inappropriate safety poster. She sought compensation for:
- injury to feelings,
- personal injury,
- past loss of earnings and
- aggravated damages.
Deputy President Abbey Beaumont of the Fair Work Commission criticised Sydney Water for its “marked indifference” towards a serious workplace incident. The tribunal noted that Sydney Water’s inadequate response and lack of proper investigation into the poster incident effectively dismissed Ms. Yelda, leading to her resignation after four years of absence due to the psychological impact.
OUTCOME
The Fair Work Commission and the NSW Civil and Administrative Tribunal (NCAT) heard the case. The tribunal found that the poster, with its prominent slogan “Feel Great – lubricate!” alongside Ms Yelda’s image, had a sexualised connotation and was inappropriate for the workplace.
It was concluded that the following conduct constituted sexual harassment:
- Displaying the poster with the phrase “Feel Great – lubricate!” and Ms. Yelda’s image, which carried a sexualised connotation. This was inappropriate for the workplace.
- Failing to properly investigate the incident and report findings to Ms. Yelda.
The tribunal found Sydney Water and Vitality Works jointly liable for the distress caused to Ms. Yelda.
DAMAGES AWARDED
Ms Yelda was awarded a total of $200,000 in damages for the distress and psychological harm she suffered. The compensation was divided equally between Sydney Water and Vitality Works, with each ordered to pay $100,000. Additionally, Ms. Yelda is pursuing further damages exceeding $1 million for unlawful termination and four years of lost income, claiming that Sydney Water’s failure to act forced her resignation.
The NSW Civil and Administrative Tribunal awarded Ms. Yelda a total of $200,000 in damages. This consisted of:
- Injury to feelings and psychological injury: $70,000
- Past economic loss: $243,280.08 (not fully awarded due to cap limits)
- Aggravated damages: $5,000
Given the statutory cap, the Tribunal ordered $100,000 to be paid by each respondent, Sydney Water and Vitality Works, respectively.
IMPLICATIONS FOR EMPLOYERS
This case highlights the importance of thorough investigations and genuine issue resolution. Employers must recognise the legal risks of inadequate responses and ensure compliance with positive duty requirements to create a safe and respectful workplace.
Employers must consider factors such as workforce demographics to determine appropriate measures to prevent and address harassment and discrimination. In high-risk environments, like male-dominated industries, comprehensive prevention strategies are essential. Employers must ensure their workplace campaigns and materials are appropriate and free from any sexual connotations that could lead to harassment claims.
Sydney Water’s failure to properly investigate and apologise for the poster incident and support Ms Yelda underscores the need for a proactive approach to workplace sexual harassment, especially in male-dominated environments.
KEY LESSONS
- Prompt Response: Employers must act quickly and decisively when complaints are raised to avoid legal repercussions and protect employee well-being.
- Thorough Investigations: Conducting comprehensive investigations into harassment claims is crucial to maintain trust and ensure a safe workplace.
- Clear Accountability: Employers should ensure transparency in the resolution process.
- Workplace Campaign Sensitivity: All workplace materials and campaigns must be carefully reviewed to avoid unintended sexual connotations or offensive content.
- Recognition of Subtle Harassment: Actions that may not appear overtly sexual can collectively constitute sexual harassment, highlighting the importance of addressing all forms of inappropriate conduct.
- Significant Damages: Courts are prepared to award substantial damages to employees who successfully demonstrate breaches of their employer’s obligations regarding sexual harassment.
- Proactive Risk Management: Employers should proactively manage sexual harassment risks by fostering a supportive workplace culture, promoting diversity, ensuring legal compliance, and continuously improving policies and procedures.
CONCLUSION
This case highlights the serious repercussions of workplace conduct that fails to uphold legal standards against sexual harassment and discrimination. It serves as a reminder to employers of their duty to create safe and respectful work environments. You must understand how your specific work environment influences the measures required to mitigate unlawful conduct, and act accordingly.
By emphasising the need for proactive measures and thorough investigations, this case underscores the importance of robust policies, comprehensive training and supportive frameworks to prevent and address sexual harassment. Ensuring compliance with legal obligations not only safeguards employees but also protects organisational integrity and fosters a culture of respect and fairness in the workplace.
Reference
Details of this case are published here.
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