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What is an employee workplace right to make a “complaint”

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Taking a look at the decision of Alam v National Australia Bank Limited [2021] FCAFC 178

Author:  Chao Ni, Principal

Part 3-1 of the Fair Work Act 2009 (Cth) contains a general protections regime which, amongst other things, makes it unlawful for an employer to take adverse action against an employee:

  1. Because that employee has a workplace right; or
  2. Because that employee has exercised, or not exercised, a workplace right; or
  3. Because that employee proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
  4. To prevent the exercise of a workplace right by that employee.

An employee has a workplace right if the employee “is able to make a complaint or inquiry in relation to his or her employment” (as set out in section 341(1)(c)(ii) of the FW Act).

History of Case Law

Previous Court decisions have shown that there are broadly two schools of thought on how the words “is able to make a complaint” should be interpreted:

  1. That the words should be read narrowly to include only those complaints that are underpinned by a source of entitlement or legal right to complain (such as a contract of employment, award or legislation).
  2. That the words should be read broadly to include all complaints in relation to the employee’s employment.

We look at a list of previous Court decisions and the interpretation adopted, in chronological order, below:

Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

Broad interpretation per Jessup J: (at [141]) the literal meaning of s 341(1)(c)(ii) would include making complaints or inquiries to employers.  Although this is a wide reading, this is supported by the relevant Explanatory Memorandum. The predecessor of this provision, s 659(2)(e), dealt with the filing of complaints “against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities”.

The Explanatory Memorandum notes that s 341(1)(c)(ii) would be broader than its predecessors …  The seeking of legal advice would therefore be covered by s 341(1)(c)(ii) (at [143]).

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Narrow interpretation per Dodds-Streeton J: (at [625]) the words “is able to” are words of limitation. An employee’s ability to complain must be “underpinned by an entitlement or right”. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Broad interpretation per Bromberg J: (at [41]) the words “in relation to” are words of limitation. There must be a relationship between the subject matter of the complaint and the complainant’s employment. This relationship can be either direct or indirect. If the subject matter of the complain gives rise to “potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied” (at [42]).

Evans v Trilab Pty Ltd [2014] FCCA 2464

Broad interpretation per Lucev J: (at [61]) a complaint or inquiry:

  1. Need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry for the purposes of the Fair Work Act; and
  2. Need only have an indirect nexus with a person’s terms or conditions of employment.
  3. May be about the conduct of another, or about a workplace process which “concerns or has implications for an employee’s employment”.

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Narrow interpretation per Logan, Greenwood and Derrington JJ: (At [28]) “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”.  A complaint or inquiry in relation to a contractual bonus constituted exercise of a workplace right.

The Environmental Group Ltd v Bowd [2019] FCA 951

Narrow interpretation per Steward J: (at [126]) in determining whether a complaint is “in relation to” an employee’s employment, the “potential implications” test “may be too broad a statement of principle”. This is especially the case when dealing with a CEO. Especially in this case, a more appropriate test is whether the complain was “directed at or concerned that person’s employment in a substantive way”. A CEO report cannot be considered to be about a CEO’s employment if it was not directed at their relationship of employment.

The Court is bound by the Full Court decision in Whelan: a complaint must be “founded on a source of employment, whether instrumental or otherwise”.

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15

Narrow interpretation per Rangiah and Charlesworth JJ: (at [13]) A complaint must be “underpinned by an entitlement or right to make a complaint”. (At [16]) Section 341(c)(ii) is not confined to “rights, roles and responsibilities under, or arising from, workplace laws and workplace instruments”. There are three potential sources of the right to complain which only applies to s 341(1)(c)(ii) and not to s 341(1)(a), (b) and (c)(i). These sources include: legislative provisions of general application (at [17]), contracts of employment (includes, but is not confined to, where the contract confers a right to complain)(at [18]), and the general law, such that the employee has a right to sue for breach of contract (at [19]).

Narrow interpretation per Snaden J: (at [165]) For an employee to be “able to make” a complaint, they must identify the source of the entitlement to complain. Examples of valid sources include: “a clause in an employment contract … an award or other statutory instruments … a statutory procedure … or an applicable workplace policy or procedure document”.  However, a breach of contract does not give rise to a right to complain; it merely gives rise to a reason to complain (at [168]-[169]).

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Broad interpretation per Bromberg and Mortimer JJ: the words “is able to” are not words of limitation. An employee will be able to complain as long as the complaint was “in relation to his or her employment” (at [19]).

Narrow interpretation per Anastassiou J: Whelan and PIA Mortgage should be followed unless they are “shown to be clearly wrong”. This threshold was not met, and therefore PIA Mortgage should be upheld (at [291]). This means that an employee must be able to identify a right to complain. This right could be endowed as an express right, in the general law, or pursuant to statute (at [285]).

 

Alam v National Australia Bank Limited [2021] FCAFC 178

On 8 October 2021, the Full Court of Federal Court handed down its decision in the case of Alam v National Australia Bank Limited [2021] FCAFC 178.

The Alam decision is the latest case authority on how to interpret s 341(1)(c)(ii) of the Fair Work Act.

Factual background in Alam

The employee applicant, Ms Alam, alleged that she had been dismissed by her then employer, NAB, because of the many complaints she had made during her employment.  These complaints involved a wide variety of issues, such as unfair assessments of her work performance, mistreatment by co-workers and I.T. malfunctions.

NAB asserted that Alam had been dismissed solely because of her breach of policy, specifically, sending an email containing confidential client information from her work email account to her personal email account without adequate justification.

At trial, NAB’s assertions were accepted.  Alam appealed on the grounds that the trial judge did not adequately consider whether each of the complaints which Alam made were a substantial or operative reason for her termination.

Central to this issue is whether each of the complaints which Alam made was an exercise of a workplace right.

Courts findings in Alam

On appeal, NAB submitted that the Court was bound to follow the reasons of the majority in PIA Mortgage v King, while Alam submitted that the Court should follow Cummins South Pacific v Keenan.

Ultimately, the Full Federal Court (constituted by Judges White, O’Callaghan and Colvin) found that:

  1. It was unnecessary to choose between PIA Mortgage and Keenan, instead finding that the decision in Whelan to be correct.
  2. This meant that 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.
  3. A complaint:
    1. Must be more than a “mere request for assistance”; and
    2. “Should state a particular grievance or finding of fault”.

The Court agreed that the trial judge had not properly considered all of Alam’s alleged complaints. The case was then remitted to the Federal Circuit Court for a retrial to determine whether each of the 12 complaints made by Alam were exercises of workplace rights, as opposed to mere requests for assistance.

Take Away Message

Given the previously differing interpretations of s 341(1)(c)(ii), the Alam decision stands for the authority that not all complaints are protected under the general protections regime. 

Until the High Court hands down a decision on how to interpret s 341(1)(c)(ii), the Alam decision should be considered as the leading authority and litigants in any general protections dispute should seek legal advice in relation to whether each complaint pleaded in a case is “founded on a source of entitlement”.

The MST Lawyers’ Employment Law team can assist in any general protections dispute.  Please contact us today by email at workplace@mst.com.au or by phone +61 3 8540 0200.