In Devonshire v Magellan Powertronics Pty Ltd &
ORS, Ms Devonshire had been employed as a Business Development
Manager by Magellan for less than three months before being
She claimed that her dismissal amounted to adverse action by the
company as a result of her exercising a "workplace
right", namely asserting that she had been underpaid and
had been denied her agreed car and mobile phone allowances. The
Fair Work Act specifically protects employees who make a
complaint or inquiry to their employer regarding their
In upholding her complaint, the Federal Magistrates' Court
decided that "a complaint or inquiry" to the
employer about issues in the workplace included both Magellan's
Director and the General Manager (to whom Ms Devonshire would
report her daily activities). Both fell within the relevant
"class of persons to whom a complaint or inquiry may be
made" and therefore could not be removed as named
Respondents in the action.
The Court also examined the explanatory memorandum to the
Fair Work Bill 2008 (Cth) and found that Parliament
intended to allow an employee to make a complaint not only to a
body that can seek compliance (for example a court or a regulatory
commission), but also directly to the employer. Accordingly, a
workplace right was exercised when an employee complained directly
to the employer, in this case Magellan Pty Ltd via the Director and
The court therefore concluded that Magellan had taken adverse
action by dismissing Ms Devonshire for exercising a workplace
Employers should tread carefully when approached by employees to
discuss workplace entitlements. Employees may make reasonable
inquiries about their contracts of employment, for example whether
their modern awards or enterprise agreements are being applied
correctly or whether they are receiving all that is due under their
Furthermore, the employee's belief as to what their
entitlements should be under their contract of employment, (which
ultimately forms the basis of their complaint) need not be
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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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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