Section 340(1) of the Fair Work Act 2009 (Cth) (FW Act) prohibits an employer from taking adverse action against an employee because the employee is able to make a complaint or inquiry in relation to their employment.
This year, several rulings of the Federal Court and Federal Circuit and Family Court of Australia have clarified the scope of employee complaints protection, and provided more certainty as to how claims in this area will be determined.
What is a complaint?
It's now clear that, for an employee to make a complaint that is protected by section 340(1), the employee must communicate or convey a grievance, a finding of fault or accusation for the purpose it be investigated or redressed, as is appropriate.
Furthermore, the subject matter of the complaint or inquiry must be founded on an entitlement sourced in either the employee's contract of employment or some other instrument regulating their employment, such as an award or the FW Act.
In a recent ruling1 the Federal Circuit and Family Court of Australia applied this approach to rule that several claimed complaints were not complaints protected by the FW Act.
The Court accepted that employee complaints about being the subject of abusive, aggressive and offensive behaviour from another manager were protected. However, mere observations about a manager's conduct or approach were found not to be protected complaints.
Similarly, a remark by an employee in a staff meeting refuting an accusation that he was responsible for overspending was not a protected complaint and was considered by the Court to simply be an ordinary business discussion (albeit a vigorous and robust discussion).
A conversation between the employee and his manager, in which the employee asserted that employees at the workplace should not be stood down because there was work they usefully do, was also unprotected. This was not an expression of a grievance or a complaint about his right to work under the contract or his right not to be stood down under the FW Act. Rather the employee was simply arguing that there was another way to run the business given the pandemic.
Nor was an inquiry to another manager about whether the stand down of employees was permitted under the dealership franchise agreement a protected inquiry in relation to the employee's employment. The employee was not party to the franchise agreement.
An occasion when the employee queried the reliability of financial information supplied by another manager wasn't an expression of a grievance or a complaint, rather it was him expressing a different view about commercial matters in the context of a debate about whether or what parts of the business were to remain open during the pandemic. The employee was not complaining about his right to work under the contract or his right not to be stood down under the FW Act.
An observation that another manager did not trust him and other managers, even though they were trying to support the business, was also not a protected complaint.
Raising and discharging the reverse onus
The general protections scheme provides for reverse onus in section 361 of the FW Act. If the employee proves the existence of objective facts that are said to provide a basis for the alleged adverse action, the onus shifts to the employer to disprove that the action was taken in respect of the prohibited reason.
Section 361 only comes into operation after it has been established that adverse action was taken and that a relevant workplace right exists as an objective fact. The employee cannot activate the reverse onus by simply alleging they had a workplace right and were the subject of adverse action.
The standard of proof required of the employer to satisfy the onus lying upon it pursuant to section 361 is "the establishment of a reasonable satisfaction on the preponderance of probabilities".
It will be extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.
Even if the decision-maker gives evidence they acted solely for non-proscribed reasons, other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
If, however, the decision-maker's testimony is accepted as reliable, it will be capable of discharging the burden imposed on the employer by section 361.
Where there is only one person who made the relevant decision, this process is relatively simple. It involves an inquiry in the reasoning process leading to that person's decision to take the adverse action.
It becomes more complex if a number of individuals are involved, with varying degrees of knowledge about the relevant issues, and the decision making process can be described as collaborative.
A recent decision of the Full Court of the Federal Court of Australia2, Wong v National Australia Bank Limited, has confirmed that an inquiry into the reasons of a corporate entity may require an examination of the states of mind of human actors other than the single individual having the authority to bind the corporation in the relevant act.
In this case the employee, Wong, alleged she had been dismissed because she made complaints in relation to her employment. The dismissal decision was effected by a manager, Mcleod, relying on information supplied by Wong's manager, Arnott. Arnott had formed the view that Wong was a difficult employee because of her conduct in making multiple complaints and inquiries concerning her employment. Arnott did not have the authority to dismiss Wong. However, Arnott informed McLeod that he could not work with Wong, without referring to the complaints she made. McLeod exercised her authority to dismiss Wong for the reason that McLeod could not work with Wong. The Full Court found the judge, at first instance, made an error in not treating Arnott as a person who had relevant involvement in the decision to dismiss.
Lessons for employers
- Ensure that your managers appreciate when the management action they take in relation to employees (e.g. discipline, performance management, dismissal) is adverse action and when employee complaints are protected by the FW Act.
- Review processes for adverse management action so that the reasons for taking it can be readily established and the decision-maker is protected.
- Review processes for managing employee complaints so that they are efficient and effective, resolve protected employee complaints in a fair and impartial way and are sufficiently independent from adverse management actions.
1 Green v Preston Motors Pty Ltd  FedCFamC2G 205 (25 March 2022)
2 Wong v National Australia Bank Limited  FCAFC 155 (8 September 2022).
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.