The Federal Magistrates' Court has handed down a decision about the scope of the general protection laws when an employee makes a complaint or inquiry about their employment. The decision is favourable for employers and produces a narrower reading of the provisions than has previously been determined.
Section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (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 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 therefore give rise to a 'workplace right'.
The applicant, Mr Harrison, and the managing director of the respondent, Mr Woodward, were former business partners. After they closed their business, Mr Harrison commenced employment as a business development manager in Mr Woodward's new business. Throughout the course of the employment relationship, Mr Harrison often criticised Mr Woodward's management style and leadership, sometimes in front of staff.
On 24 August 2011, Mr Harrison arranged a meeting with Mr Woodward to discuss a number of grievances. The meeting agenda outlined Mr Harrison's intention to make complaints about a number of issues, including Mr Woodward's lack of recognition for staff, lack of understanding or empathy, inattention at meetings and lack of structure or direction with the business. Mr Harrison raised most of these issues in the meeting before Mr Woodward walked out. Two days later, Mr Woodward terminated Mr Harrison's employment on the grounds that he had become impossible to work with, would not conform with the business and would not accept any management decision made by Mr Woodward.
Mr Harrison alleged that by terminating his employment, the respondent had taken adverse action against him for exercising a workplace right. Mr Harrison submitted that he purported to 'exercise his workplace right to make a complaint or inquiry relating to employment issues', that is, by complaining about those matters raised at the meeting on 24 August 2011.
The court held that Mr Harrison's complaints to Mr Woodward did not constitute a 'workplace right'. The complaints made at the meeting on 24 August 2011 were directed to issues of management and Mr Woodward's management style. None of the matters raised directly concerned Mr Harrison's employment.
The court considered 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'. Accordingly, the court held 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.
The court therefore concluded that the respondent had not taken adverse action against Mr Harrison.
This decision is the first to analyse closely this particular provision of the FW Act. It may appear that the court's reading of the provision should provide a degree of comfort to employers concerned about the reach of the general protection provisions. However, the decision produces an odd result which leaves employees with narrower rights in relation to complaints and inquiries than all other categories of persons entitled to the benefit of the general protections (eg prospective employees, unions, principals and independent contractors).
Therefore, we do not consider that employers can rely on the outcome of this case with comfort until the matter has been considered by a higher court. Employers should continue to be careful to demonstrate that any decision or proposed decision that is adverse to an employee is not in any way retaliation for any kind of complaint or inquiry made about his/her employment.
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