A Sydney Water Corporation employee has won a dispute over a photo of herself that was used for a purpose she wasn’t informed about. The Civil and Administrative Tribunal had to assess whether Sydney Water Corporation or the company which took the photo contravened the Anti-Discrimination Act 1977 (NSW). Ultimately, the Tribunal found the woman’s employers to be guilty. The parties will now arrange a date with the Registrar for a damages hearing.
What happened?
The applicant is employed by Sydney Water Corporation as a Customer Liaison Officer, a role which requires working in the field around the city. At the time of the incident, the claimant was at a job where a water main had leaked into a residential house. She was approached by a member of Vitality Works Australia, who asked to take her picture. The photographer told the applicant that she was looking for staff volunteers who work in the field to be part of the work health safety campaign called SafeSpine. The applicant agreed to participate with this information in mind.
Seven or eight months later, the claimant saw a poster with her image on it in the foyer of a Sydney depot. The poster depicted the applicant with her right arm outstretched above her head, smiling broadly. Above the photograph in large print was one of SafeSpine’s campaign slogans, ‘Feel great’ and underneath, in even larger print, the word ‘lubricate!’.
How did the case progress?
The claimant established that she did not agree to how the photo would be used or any text that the image would be paired with. As she was offended and humiliated by the image, the Tribunal confirmed she had a case to claim damages.
The Tribunal then needed to decide whether or not displaying this poster with this message comprised sexual harassment and/or discrimination on the grounds of sex within the meaning of the Anti-Discrimination Act 1977 (NSW). Section 24 of the Act classes discrimination of sex as a perpetrator treating an aggrieved person less favourably, based on the aggrieved’s sex or the sex of an associate, than they would another person in the same circumstance.
Despite the poster’s message relating to staying active to keep the spinal cord lubricated, the applicant contended that the poster’s alleged sexual undertones convey the indication that she is a sex object within her workplace. The claimant added that at the same time her photo was taken for the SafeSpine campaign, a male colleague was also photographed. This image was not used for any poster or other promotional material with that slogan. As such, the Tribunal determined that the applicant was treated less favourably than her male colleague, in circumstances that were not materially different.
Because Sydney Water Corporation approved the design, publication, display and distribution of the poster in the workplace, the organisation was determined to have sexually harassed/discriminated against the claimant.
If you think you have suffered from sexual harassment or assault yourself, the compassionate Gerard Malouf & Partners team can help you make your case today.
