The NSW Civil and Administrative Tribunal (NCAT) has awarded $200,000 in general and aggravated damages to a former Sydney Water customer liaison officer after it used her image in a “Feel great - lubricate!” safety poster.

The employee, Ms Yelda, agreed to have her photo taken, in September 2015, by Vitality Works Australia Pty Ltd (Vitality Works) as part of the safety campaign promoting spinal health. Subsequently in April 2016, Ms Yelda saw the poster located just outside the men’s toilet at Sydney Water’s facilities. The poster showed Ms Yelda smiling with the words “Feel great” and underneath that in larger print was the word “lubricate!”. On seeing the poster, Ms Yelda claimed to have felt distressed for being portrayed as a “sex object”. Ms Yelda also felt that her reputation in the male-dominated workplace had been damaged and did not return to work shortly thereafter.

Ms Yelda then successfully brought proceedings against Sydney Water and Vitality Works, with NCAT finding that she had been sexually harassed and discriminated against as a result of the poster [Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd (2019) EOC ¶93-891; [2019] NSWCATAD 203].

Sydney Water, who lost an appeal against that finding [Vitality Works Australia Pty Ltd v Yelda; Sydney Water Corporation v Yelda (2020) EOC ¶93-917; [2020] NSWCATAP 210], accepted that Ms Yelda suffered humiliation and distress. Vitality Works issued an apology but stated that the poster was a “miscommunication”.

In assessing damages, NCAT stated that because of the poster, it was likely that some employees of Sydney Water would have thought “lesser” of Ms Yelda and subjected her to ridicule. NCAT accepted that Ms Yelda suffered serious and prolonged psychological injury as well as injury to her feelings. In total, NCAT calculated Ms Yelda’s losses to be $318,280 but due to the statutory cap could only award $100,000 against each respondent, which included $5,000 in aggravated damages against Vitality Works for its “weasel” worded apology.

Source: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107, 30 April 2021.

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