The Federal Magistrates' Court has handed down a decision about
the scope of the general protection laws when an employee makes a
complaint or inquiry about their employment. The decision is
favourable for employers and produces a narrower reading of the
provisions than has previously been determined.
Section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth)
(FW Act) provides that an employee has a 'workplace right'
if the employee 'is able to make a complaint or inquiry... in
relation to his or her employment'. The court held that this
requires an employee to have a substantive complaint or inquiry in
relation to their employment that would engage the jurisdiction of
a person or body with capacity under a workplace law to seek
compliance. Complaints or inquiries directed to issues of
management which do not directly concern the employee's
employment will not therefore give rise to a 'workplace
The applicant, Mr Harrison, and the managing director of the
respondent, Mr Woodward, were former business partners. After they
closed their business, Mr Harrison commenced employment as a
business development manager in Mr Woodward's new business.
Throughout the course of the employment relationship, Mr Harrison
often criticised Mr Woodward's management style and leadership,
sometimes in front of staff.
On 24 August 2011, Mr Harrison arranged a meeting with Mr
Woodward to discuss a number of grievances. The meeting agenda
outlined Mr Harrison's intention to make complaints about a
number of issues, including Mr Woodward's lack of recognition
for staff, lack of understanding or empathy, inattention at
meetings and lack of structure or direction with the business. Mr
Harrison raised most of these issues in the meeting before Mr
Woodward walked out. Two days later, Mr Woodward terminated Mr
Harrison's employment on the grounds that he had become
impossible to work with, would not conform with the business and
would not accept any management decision made by Mr Woodward.
Mr Harrison alleged that by terminating his employment, the
respondent had taken adverse action against him for exercising a
workplace right. Mr Harrison submitted that he purported to
'exercise his workplace right to make a complaint or inquiry
relating to employment issues', that is, by complaining about
those matters raised at the meeting on 24 August 2011.
The court held that Mr Harrison's complaints to Mr Woodward did
not constitute a 'workplace right'. The complaints made at
the meeting on 24 August 2011 were directed to issues of management
and Mr Woodward's management style. None of the matters raised
directly concerned Mr Harrison's employment.
The court considered that the requirement that an employee must
be able to make a 'complaint or inquiry in relation to his or
her employment' must be read narrowly, otherwise it would be
'so wide as to be almost meaningless'. Accordingly, the
court held that an employee must have a statutory or contractual
basis for their complaint or inquiry and the substance of the
complaint or inquiry must be such that, if made to an external
body, that body would have jurisdiction to investigate and seek
compliance under the relevant workplace law or instrument.
The court therefore concluded that the respondent had not taken
adverse action against Mr Harrison.
This decision is the first to analyse closely this particular
provision of the FW Act. It may appear that the court's reading
of the provision should provide a degree of comfort to employers
concerned about the reach of the general protection provisions.
However, the decision produces an odd result which leaves employees
with narrower rights in relation to complaints and inquiries than
all other categories of persons entitled to the benefit of the
general protections (eg prospective employees, unions, principals
and independent contractors).
Therefore, we do not consider that employers can rely on the
outcome of this case with comfort until the matter has been
considered by a higher court. Employers should continue to be
careful to demonstrate that any decision or proposed decision that
is adverse to an employee is not in any way retaliation for any
kind of complaint or inquiry made about his/her employment.
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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