Australia: Is dismissing a complaining employee flying too close to the sun?

Last Updated: 12 November 2018
Article by James Mattson and Ryan Murphy

Greek mythology tells us a story of a boy, Icarus, stuck on an island with his dad. Luckily, Icarus's dad knew how to make wings out of wax and feathers, allowing Icarus to fly away and be free. In a sudden turn of events, Icarus flew too close to the sun, his wax-wings melted, and ... well... it's not a happy ending. Icarus's story presents a lesson to employers on how to manage a complaining employee.

Workplace cohesion and respect is valued as part of an organisation's culture. Dissent and disrespect is frowned on when it threatens cohesion, respect and unity. However, employees have the workplace right to complain in relation to their employment and a complaint need not always be viewed as dissent and disrespect.

But what happens when an employee openly criticises the way you run your business, or even directly criticises you as a person? A decision of the Federal Circuit Court in Fatouros v Broadreach Services Pty Ltd [2018] FCCA 769 has given employers cause to pause before 'pulling the trigger'.

The facts

Mr Spiros Fatouros was employed as a senior consultant and project manager at Broadreach Services Pty Ltd. One of the projects that Spiros managed had stalled because Broadreach's new CEO would not authorise a payment to a sub-contractor. Spiros felt that was not right.

After complaining to the CEO that he was "really disappointed" by how she had handled the situation, Spiros sent an email to two Executive Advisors of Broadreach to say: "sadly I don't believe Marie [the CEO] is acting in the highest and best interests of the business". Ouch. Spiros concluded his email: "From a personal standpoint, if disciplinary action is the follow-on effect of my actions here then so be it. However, please be assured, my intent is purely driven by the interests of the business, its employees, our customers and suppliers, all of whom we have obligations to that are presently not being met".

Unsurprisingly, the CEO didn't love that Spiros had questioned her motives. She fired him. The termination letter merely said that one of the reasons for Spiros's dismissal was because of his email to the Executive Advisors. Did Marie fly too close to the sun?

The claim

Spiros commenced proceedings against Broadreach under the general protections provisions of the Fair Work Act 2009. Under those provisions, it is unlawful for an employer to take adverse action (including dismissal) against an employee if one of the reasons for that action is a complaint or enquiry that the employee has made in relation to their employment.

Was Spiros complaining about his employment, or merely whinging about a decision made by his boss?

What is a complaint in relation to employment?

What if I made a complaint about the lack of Iced VoVos in the office kitchen? Or what if I complained about a colleague that blabbed about The Bachelor before I have had a chance to watch the latest episode? Would these complaints be about my employment? What if I told my boss that I thought he was a jerk? What about if I also complained about my workload at the same time? Am I protected by the fact that I simultaneously complained about my workload?

An issue in the Fatouros proceedings was whether the email was a complaint by Spiros 'in relation to his employment'. The email was about some contractors and their treatment expressed in derogatory terms of his boss. But was it a complaint in relation to his employment?

Not all communications or expressions of grievance made at work would necessarily be a complaint. Nevertheless, the Courts have held that the complaint only needs to have an indirect link to the employment to be within the Fair Work Act protections: Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456 at [42]. As such, raising issues about probity and questioning decision-making may be a complaint in relation to employment if the subject matter of the complaint has potential implications for the employment of the complaining employee.

Spiros's email was a complaint and related to his employment as "his raising of issues regarding the timely payment of subcontractors in each of the relevant emails was something that arose directly out of the performance of his work and impacted on him as an employee", the Court held.

So, did Marie dismiss Spiros because of his complaint? Yes, she 'flew too close to the sun'. Firstly, the termination letter did not limit the reason for termination to the inappropriateness of the comments about the CEO's motives. Instead, it referred simply to the email as a reason for dismissal. Secondly, the CEO failed to give evidence at the hearing to explain her reasons. As a result, the Court ordered Broadreach to pay compensation, penalties and interest of over $150,000; more than a year's wages.

What can employers learn

Care needs to be taken when flying close to the sun and dismissing a worker in relation to a complaint or grievance they have made.

As the Fatouros proceedings demonstrate the wording that you use in the termination letter is important because that letter will likely be a key piece of evidence to determine the reasons for dismissal.

The lesson is not to avoid discipline merely because a complaint has been made if the conduct is inappropriate, unprofessional and disrespectful behaviour. The High Court of Australia made it clear in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 that the enquiry is to find the real reasons for the discipline. Making a complaint does not provide an employee immunity from their inappropriate, unprofessional and disrespectful behaviour.

Broadreach would have also been well placed to deal with the complaint on its merits, separate from the disrespectful remarks made by Spiros. Dealing with a complaint on its merits is usually good evidence that tends to demonstrate the making of the complaint did not motivate any adverse action against the employee.

It is also important to keep in mind that the general protections provisions in the Fair Work Act are not the only laws that protect employees that make complaints. Workplace safety laws provide protection for employees that raise an issue or concern about safety. Federal Parliament is currently considering beefing up the 'whistleblowers' protections in the Corporations Act, which will apply to some complaints by employees. There are State laws for public sector organisations allowing protected disclosures and preventing retaliation.

In short, managing a complaining employee is challenging but you need to focus on what is the real issue. You need to accept that employees can complain but the ability to make a complaint is not a licence to be inappropriate, unprofessional and disrespectful. Give us a call if you'd like some help.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions