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    Worker "humiliated" by photo on innuendo-filled poster.

    Savvy Human Resources Workplace Solutions Update Worker humiliated by photo on innuendo filled posterWorker humiliated by photo on innuendo filled poster

    A Sydney Water employee who lodged a complaint with the NSW Anti-Discrimination Tribunal, alleging sex discrimination and sexual harassment after her image was used on an innuendo-filled 'lubricate' poster, has won her claim against the utility company.

    In the poster, used as part of a work health safety campaign, the employee was pictured standing alone against a red background, with one hand raised towards the word "lubricate". She claimed that a reasonable person could have anticipated she would have been offended, intimidated or humiliated and that Sydney Water treated her less favourably than a "non-female" employee in circumstances that were not materially different and, accordingly, she was discriminated against by virtue of her sex.

    It was alleged that whilst the employee agreed to have her photo taken, she did not agree to the form of the Poster and in particular the use of the Slogan. She had no knowledge of that beforehand and did not consent to the display of the Poster with the Slogan. Therefore, the conduct constituted by the displaying of the Poster was unwelcome within the meaning of s.22A(e) of the Anti Discrimmination Act.

    The NSW Anti-Discrimination Tribunal found that Sydney Water Corporation and Vitality Works Australia, which designed the poster, discriminated against the employee by treating her differently to male employees. "In our view, the display of a poster in the workplace of an employee, if it makes sexually suggestive remarks about an employee, or holds up such employee to possible embarrassment or humiliation of a sexual nature, can amount to sexual harassment of the employee," the tribunal found.

    Background:

    The employee had been employed as a Customer Liaison Officer and had worked closely with the field staff which consists largely of male blue-collar workers.

    The worker and a male colleague were asked by their employer if they would be photographed for a campaign to promote spine workplace safety. The male colleague did not feature in the campaign.

    The poster was situated around Sydney Water depots, including near the door of the general male toilet, and it was only then that the worker learnt how her image had been used.

    The poster featured the worker pumping her fist into the air, beneath the slogan "Feel great – lubricate!".

    The worker has told the Tribunal that when she saw her picture beneath the caption "Feel great - lubricate!" outside some men's toilets six months later she nearly collapsed and she felt “absolutely humiliated”.

    “It is a very male-dominated workplace and I felt like I had been turned into the punchline of a dirty joke”.

    “There's 70 to 80 men in each depot. Who knows what they were thinking?"

    “I felt betrayed after agreeing to be part of a serious and informative spine safety campaign, but instead I was made the laughing stock of my workplace”.

    “I worked for Sydney Water for 12 years and I strived to be respected and taken seriously in the workplace, but overnight I became ‘that woman from the poster’, a smutty joke”.

    “Sexual discrimination like this happens in workplaces every day and enough is enough.”

    She added that nobody deserves to be made into a “laughing stock” and sexualised in their workplace.

    “There are a thousand slogans they could have used that would not have humiliated me,” she said.

    “I wouldn’t wish the shame, humiliation and anxiety I have experienced on anyone else, so I hope that speaking out will go some way towards stopping it from happening in the future.”

    Although two other templates featuring photographs of male employees were drawn up, there was no evidence that either of them had been printed.

    The tribunal found they were also less suggestive of intimate sexual activity, since they also featured the words "Keep your joints lubricated to avoid wear and tear" in large type and the men were performing actual mobility exercises.

    By reason of the display of the Poster and its causing of humiliation and offence to the employee it was said that Sydney Water treated Ms Yelda less favourably than her male colleague, in circumstances that were not materially different. Therefore, Sydney Water had discriminated against the employee.

    It was alleged the "Feel great - lubricate!" slogan had a sexual meaning and the composition of the Poster associated the Slogan with the employee. “Lubricate” was said colloquially to refer to the use of lubrication during sexual acts. The phrase “Feel great” was alleged to add to the sexual nature of the Slogan and is a reference to the sexual pleasure derived from participating in sexual acts. This Poster, it was said, conveys the indication that the emplyee is a sex object within her workplace.

    Lessons for Employers:

    On any view the lessons rising from the complaint about this workplace safety campaign are more about the various forms of discrimination and harassment in the workplace, rather than spine safety.

    Just three elements must be met for conduct to be considered unlawful sexual harassment. The conduct must:

    • be of a sexual nature;
    • be unwelcome; and
    • occur in a situation in which a reasonable person, having regard to all the circumstances, would anticipate the harassed person would be offended, humiliated or intimidated.

    However, conduct that is unwelcome, offensive, humiliating and intimidating may not be considered sexual harassment if it is not of a sexual nature – and what constitutes conduct of a ‘sexual nature' is not always black and white.

    [Click Here for the complete PDF article]

    About the author: Craig McFadden is the founding director of Savvy HR. Craig's clear, practical counsel and ability to influence others into action and to rethink traditional HR practices with a business oriented lens, has gained him credibility with CEOs and executive leaders and he is frequently called on to serve as a strategic partner with the primary focus of defining, building and influencing the talent within leadership teams to drive business objectives.

    This publication is provided by way of general guidance only and is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances.

    Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203

     

    https://www.caselaw.nsw.gov.au/decision/5d91433de4b0c3247d712163

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    Craig McFadden's clear, practical counsel and strong influencing and relationship building skills have gained him credibility at both the executive and line manager level and he is frequently called on to coach managers through complex industrial relations issues, termination or redundancy matters, performance reviews or to prepare for discussions with difficult individuals and team members.

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