But the Supreme Court disagreed.
“The fact that the poster may also have been capable of conveying a safe spine message (which is not obvious) is not to the point,” the judges wrote. Jokes, horseplay and innuendo could all constitute harassment, they said.
What mattered was Ms Yelda saw the conduct as unwelcome and that objectively, in a male-dominated blue-collar workplace, the image of Ms Yelda smiling and appearing to point at the word “lubricate” suggested a sexual meaning.
The fact Sydney Water had put up the poster after Vitality Works designed it was also not enough for the health and safety company to escape liability, the court found.
A spokesman for Hamers Workplace Lawyers, which is representing Ms Yelda, said in a statement she was pleased with the decision after years of litigation. “However, Ms Yelda’s battle continues in separate proceedings against Sydney Water in relation to the loss of her career,” the spokesman said.
Barrister Kate Eastman, SC, a discrimination law expert, said the decision was a restatement of the clear law on the area in recent decades that the harasser’s intention was not relevant.
“You often hear ‘oh it was just a laugh’, but that is no defence to sexual harassment and never has been,” Ms Eastman said.
A Sydney Water spokeswoman emphasised it had not appealed the $100,000 it had been told to pay and said was committed to creating a safe and healthy work environment.
Vitality Works were contacted for comment.