Workplace conduct that is "unwelcome conduct of a sexual nature"

22/10/2021

On 19 July 2021, the NSW Court of Appeal handed down the decision in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147.

This was a sexual harassment case. One of the issues was whether the conduct complained of was “unwelcome conduct of a sexual nature” for the purposes of section 22A of the Anti-Discrimination Act 1977 (NSW).

In her judgment, McCallum JA, made a significant contribution to the jurisprudence as to the meaning of the words “conduct of a sexual nature”. By so doing, Her Honour also underscored the importance of diversity on the Bench.

At the heart of this case was a poster of a woman displayed in a male-dominated workplace. One the arguments on appeal was that the poster did not amount to sexual harassment because its sexualized message was not explicit.

McCallum JA observed that the sexualisation of women in the workplace often is not explicit. She further observed:

“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”.

Barristers need to be alive to the power of implication in their own conduct, and the conduct of others, in their places of work, including chambers, court, mediations or the Bar Common Room.

In particular, barristers need to be aware that innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod are all devices capable of sexualising conduct in ways that may be unwelcome. Further, that such unwelcome conduct of a sexual nature may amount to sexual harassment.

By Melissa Fisher

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