27 Nov 2014

When is a "complaint" or "inquiry" a "workplace right" in adverse action?

by Michael Byrnes

Courts are frequently taking a broad view of "complaint or inquiry in relation to employment", so employers should deal with them carefully to avoid adverse action claims.

The precise scope of the right of an employee to "make a complaint or inquiry ... in relation to [their] employment" under the adverse action laws in the Fair Work Act 2009 (Cth) remains unclear. Courts have taken both a narrow and broad view both of the types of complaints, and the connection with the employee's employment.

A good example is the recent case, Evans v Trilab Pty Ltd [2014] FCCA 2464, in which the Federal Circuit Court refused to strike out an application alleging dismissal in contravention of a general protection on the ground of a "complaint or inquiry".

A workplace conversation, a workplace termination

Hayden Evans was employed by Trilab Pty Ltd as a State Manager in Engineering in Perth to conduct soil and rock classification testing.

Mr Evans spoke to the Senior Lab Manager, Chris Cannon, asking why, in his view, Trilab was not conducting testing of soil and rock samples according to Australian testing standards.

Both Mr Cannon and Trilab's Chairman Mr Gavin Hamilton rejected this, saying Trilab's testing method did meet the relevant Australian standard, and asked him to conduct testing to Trilab's policies. On 26 August 2014 Mr Evans' employment was terminated on the grounds of his performance, three weeks after he had started work.

Mr Evans' adverse action application

Mr Evans alleged he was sacked primarily because he had questioned the testing methods of the company (he also says Trilab wrongly claimed that he had a criminal record for firearms offences). This, he said, contravened the general protections provisions of the Act, specifically section 341(1)(c)(ii).

Mr Evans asserted that:

  • a complaint regarding employment need not be to a formal or governing body;
  • the complaint he made was to Mr Cannon, a senior staff member; and
  • a complaint made by an employee, whether to a governing body, a senior staff member, or a director of a company, is a complaint made under the Act.

Trilab asked the Federal Circuit Court to summarily dismiss the application, because Mr Evans' comments to Mr Cannon were not a complaint or inquiry capable of corresponding to a workplace right within the meaning of section 341(1)(c)(ii) of the Act. If it did, then any employee whose employment was terminated could cite a complaint or inquiry they made to their employer to found a claim for adverse action.

Competing views of "complaint or inquiry in relation to employment"

Previous cases on when an employee “is able to make a complaint or inquiry” have been conflicting. Judge Lucev focused on four cases, which had adopted divergent approaches.

Under the narrow view:

  • the complaint must originate from or be an incident of the contractual arrangements or statutory framework surrounding the employment (Harrison v In Control Pty Ltd (2013) 273 FLR 190); and
  • a complaint made by an employee must be based on a genuine objection or grievance and should not be made for any ulterior purposes (Shea v TRUenergy Services Pty Ltd (No. 6) [2014] FCA 271).

Under the broad view:

The broad view is arguable and Mr Evans' claim can go ahead

Judge Lucev did not have to decide one way or the other at this stage, but he held that it is arguable that a complaint or inquiry:

  • doesn't have to arise from a statutory, regulatory or contractual provision to be a complaint or inquiry in relation to a person’s employment for the purposes of section 341(1)(c)(ii); and
  • only needs to have an indirect nexus with a person’s terms or conditions of employment to come within the scope of section 341(1)(c)(ii). This could include a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee’s employment.

Given the breadth of meaning of the phrase “in relation to”, and Mr Evan's duties under his contract of employment which included management responsibilities, Judge Lucev said it was arguable that Mr Evans' complaint was a complaint or inquiry in relation to his employment.

Complaints about others' conditions could be enough

There have been other decisions adopting a broad view, which have held that an employee's complaints about other employees' working conditions fell within section 341(1)(c)(ii).

In CFMEU v Pilbara Iron Company (No 3) [2012] FCA 697 the fact that the employee had raised concerns or complaints about safety issues within the workplace was found to be the exercise of workplace right. The complaints did not relate to his own personal working conditions, safety or environment, but were complaints made out of concern for the safety of employees at that workplace generally.

In another recent decision, Walsh v Greater Metropolitan Cemeteries Trust (No. 2) ) [2014] FCA 456, the Federal Court observed that an employee could make a complaint about misconduct that had an effect on another employee, but not on the employee making the complaint directly. That may be sufficient to demonstrate the exercise of a "workplace right" by that employee. Thus, the Court found that the complaint did not need to be directly related to the employment; an indirect relationship was enough.

How should employers deal with complaints or inquiries in relation to employment?

It is conceivable that an employee who complains or inquires about inadequate equipment, systems of work, or the conduct or employment performance of other employees, may be able to argue that the complaint or inquiry was in relation to their employment, which could then be the basis for a general protections claim under the adverse action provisions of the Act.

Until there is guidance from the Full Federal Court, the smart employer should play it safe. That means having a robust internal system for dealing with employment-related complaints. It's imperative for employers that the decision-maker is able to provide cogent evidence for the reasons underlying any subsequent performance-related measures, including termination of employment. The key to this will usually be sound documentation – carefully and contemporaneously noting relevant events.

Thanks to Ann-Maree Harnett for her help in writing this article.

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