Our last post explained what a general protections claim is, who is protected, how to make one, and what compensation you can receive.
This post will dive into one of the more challenging areas of the general protections legislation, and one we see very often in practice. What workplace right an employee has to make a complaint or inquiry in relation to their employment.
What is a workplace right?
A workplace right is defined by the Act in s341(1). It includes a person’s workplace right to initiate or participate in a process or proceedings under a workplace law or workplace instrument, or to make a complaint or inquiry. The focus of this piece is on a person’s workplace right to make a complaint or inquiry in relation to his or her employment.
One of the most common claims we assist clients with is a general protections application involving dismissal, where the employee has exercised their workplace right to make a complaint or inquiry in relation to their employment. That is, an employee has been dismissed because of their exercise of their workplace right.
To provide you with a simple example – John Smith, a carpenter, notices that the worksite he works on is very unsafe. He raises his concerns with his boss, both verbally and in writing, who tells him not to worry about it and get on with his job. John continues to raise these concerns, and his employer eventually threatens that if he doesn’t shut up, he will be fired. John decides to make a formal complaint about the worksite, and his bosses threats, to his employer’s HR department. John’s employment is then terminated.
However, not every matter is as straightforward as Johns. Sometimes it can be difficult to determine what a complaint or inquiry in relation to your employment actually is. The first step in determining whether your general protections application has strength, is to determine if you have made a complaint or inquiry in accordance with the law.
What is a complaint or inquiry?
Unfortunately the Act does not define complaint or inquiry, so we must rely on past decisions that have given the term context.
In Shea v TRUenergy Services Pty Ltd (No 6)  FCA 271, the Federal Court discussed the parameters of “complaint or inquiry.” In summary, they found that:
- A complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
- The grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
- The grievance, finding of fault or accusation need not be substantiated, approved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
- The proper purpose of making a complaint is giving notice of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed;
- A complaint may be made not only to an external authority or party within the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
- A complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
- A complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint.
This broad interpretation of the FWA was also adopted in Henry v Leighton Admin Services Pty Ltd  FCCA 1923 where the Federal Circuit Court stated at :
A person has a workplace right within the meaning of s341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employment rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations, or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment.
In Evans v Trilab Pty Ltd  FCCA 2464, the Court stated that a complaint or inquiry need
- Not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry for the purposes of the FWA; and
- Only have an indirect nexus with a person’s terms or conditions
In Walsh v Greater Metropolitan Cemeteries Trust (No 2)  FCA 456, Justice Bromberg of the Federal Court expanded the term to include instances where the subject matter of the complaint or inquiry raises an issue with potential implications for the complainant’s employment – in this case an employee reported the wrong-doing of others.
In Rowland v Alfred Health  FCA 2, the Court held that a complaint or inquiry must be in relation to the employee’s employment. Prima facie this appears to be a constriction of the term, however Rowland has not since been cited with approval.
Whether a complaint or inquiry will be accepted to be in accordance with the FWA will depend on the facts, circumstances and context of each Applicant’s matter. Unfortunately there is no guidance or case law from the High Court on this point yet. If you believe you have a general protections claim on the basis of your exercise of a workplace right, please contact Resolution123.