Two recent adverse action cases have produced narrower readings of the "General Protections" provisions of the Fair Work Act 2009 (Cth) (FW Act), representing favourable outcomes for employers. The decision of the Federal Magistrates' Court (now named the Federal Circuit Court) in Harrison v In Control Pty Ltd  FMCA 149 concerned an employee making a complaint or inquiry to his or her employer, while in CFMEU v Bengalla Mining Pty Ltd  FCA 267 the Federal Court found that the FW Act was not intended to restrict the authority of an employer to take disciplinary action.
Harrison v In Control Pty Ltd  FMCA 149
Section 341(1)(c)(ii) of the 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 in Harrison v In Control 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 give rise to a "workplace right".
Mr Harrison (the applicant) was employed by In Control Pty Ltd as a sales representative. Over time, Mr Harrison expressed strong disagreement with the director of the respondent company, Mr Woodward, about his manner and style of management.
Mr Harrison raised a number of issues about the direction of the business in a meeting on 24 March 2011 with Mr Woodward. Two days later, Mr Woodward terminated Mr Harrison's employment on the grounds that he had become impossible to work with and would not accept management decisions.
The applicant argued that the respondent, in terminating his employment two days after making complaints or inquiries in relation to his employment, had taken adverse action against him because he had exercised a workplace right to do so, pursuant to section 341(1)(c)(ii) of the FW Act.
The parties were in dispute over the following matters:
- Whether the applicant's conduct at the material time was in respect of a "workplace right" or exercising a "workplace right"; and
- Whether the adverse action (i.e. dismissal) was taken because the applicant was seeking to exercise a workplace right.
Burnett FM found 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." It was further concluded 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.
His Honour held that the complaints made by the applicant at the meeting on 24 March 2011 were not complaints or inquiries that were capable of forming a "workplace right" for the purpose of the FW Act.
CFMEU v Bengalla Mining Pty Ltd  FCA 267
In this case, the Federal Court found that a warning letter to a coal mineworker who took unauthorised leave to attend a union meeting did not amount to adverse action, as the disciplinary action was not taken for a prohibited reason.
During 2012, the mineworker employee, who was also a union member and office holder, made three applications for unpaid leave in order to attend union meetings. Pursuant to the employer's leave policy, unpaid leave 'may' be granted 'where an employee has used all of their relevant accrued leave.' Thus, on each occasion the employer refused to approve the employee's unpaid leave request on the basis that he had not exhausted his accrued leave.
After attending a union management meeting without approval for leave, the employee was issued with a written warning stating that any further unauthorised absence from work could result in the termination of his employment.
The union contended that the warning letter had been given for a prohibited reason, because of the employee's affiliation with the union, and that this constituted adverse action under the FW Act.
The Federal Court accepted the employer's evidence that the employee's union membership, his position as an officer of the union and the fact he was absent from work to attend a union management meeting did not at all influence its decision to take disciplinary action against the employee. As such, the employer had discharged its onus of proving that its warning letter had not been issued for a prohibited reason.
The Court observed that if the union's arguments had succeeded, no employer who took disciplinary action against an employee knowing them to be a union member or officer, or knowing the employee was engaging or intending to engage in industrial activity, could ever discharge the reverse onus. In this way, the union's argument was not materially different from that rejected by the High Court in the Barclay matter.
Lessons for employers concerning adverse action claims
These two decisions should provide a degree of comfort to employers concerned with the reach of the adverse action provisions of the FW Act.
The decision in Harrison v In Control debunks the view that any complaint by an employee will enshrine the employee with adverse action rights.
The decision in CFMEU v Bengalla Mining Company illustrates that the mere inference that an employer's decision to take disciplinary action against an employee could have involved prohibited reasons is not enough to overcome direct evidence to the contrary. Justice Katzmann held that, in the circumstances of the case, "In truth, what the union sought was preferential treatment."
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