Most Read Contributor in Australia, September 2016
The Fair Work Act 2009 (Cth) (FW Act)
protects employees from adverse action which is taken by their
employer because the employee is 'able to' or has made
complaints or inquiries in relation to their employment (s
A recent Federal Magistrates Court decision (Devonshire v
Magellan Powertronics Pty Ltd & Ors  FMCA 207) has
taken a broad view of the circumstances in which an employee
exercises a workplace right by making a complaint or inquiry in
relation to their employment.
The Devonshire case was about an employee who made complaints
and inquiries on a number of occasions to her employer about her
rate of pay (which was different to that initially agreed upon),
contractual entitlements and unpaid superannuation. The final time
she made the complaints and inquiries was to the Director of the
employer, during a meeting between them. The employer terminated
her employment later that same day and after the employee had gone
home early on sick leave. In the notice of dismissal, the employer
cited its reasons as including her discussions with the
The employee argued that the reasons for the termination
included, amongst other things, that she was 'able to' and
had made a complaint or inquiry in relation to her employment.
The employer argued that the employee did not have a workplace
right to make a complaint or inquiry in relation to her employment
because the protection is limited to formal or specified mechanisms
of complaint or inquiry. The employer argued that the workplace
right under s 341(1)(c)(ii) is not as broad as allowing an employee
simply to make a complaint or inquiry of their employer in relation
to their employment.
The Court disagreed with the employer and found in favour of the
employee. The Court concluded that an employee will be protected
from adverse action which is taken because the employee has made a
complaint or inquiry directly to an employer in relation to their
employment. The Court found that an employee 'is able' to
make such a complaint or inquiry to their employer, even where
there are no formal machinery or provisions for that complaint or
Key points for employers
When read together with another recent decision by the Federal
Magistrates Court (Harrison v In Control Pty Ltd 
FMCA 149) – see
link, it is clear from this decision that complaints or
inquiries in relation to employment must concern matters personal
to an employee and not concerning the direction of the business and
other management level decisions.
If this decision is followed in subsequent Court decisions, a
complaint by employees about matters personal to them will be
enough to attract the FW Act protection against adverse action,
even in circumstances where there are no formal complaint
mechanisms or processes for the complaint or inquiry (whether
within the employment or externally, i.e. under legislation or an
industrial instrument). In this regard, the decision conflicts with
Harrison v In Control Pty Ltd, which found that an
employee must be 'able to' make their complaint or inquiry
to a person or body having capacity to enforce the subject matter
of the complaint.
As a consequence of this conflict, employers should not assume
that either point of law is fixed. Employers must remember that
they need to be able to lead credible evidence to prove that any
adverse action taken against an employee is not related to the fact
the employee had complained or inquired about their employment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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