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When is an employee entitled to complain about 

work?

Wednesday, 7th January 2015, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: Is an employee who raises concerns about work processes protected from adverse action?
Dear Reader,

Under the Fair Work Act 2009 (Cth) (FW Act), employees are protected from having adverse action, including dismissal, taken against them for exercising a workplace right.
Today’s bulletin focuses on an employee’s right to make a complaint or inquiry in relation to their employment. Given that it is not clear exactly how closely related to their employment an employee’s complaint or inquiry must be to be considered a workplace right, the recent case that Charles Power summarises in today’s bulletin is particularly interesting.
Its outcome indicates that, as an employer, you should be cautious in taking adverse action against an employee who makes a complaint or inquiry about their employment – such a complaint or inquiry could relate to anything from the employee’s rights and entitlements, to how work is performed, to their relationship with a third party.
To be on the safe side, assume that taking adverse action against an employee for making this kind of complaint or inquiry could lead to an adverse action claim.
Read on for the details of the recent court decision surrounding this issue.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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Case Law: Is an employee who raises concerns about work processes protected from adverse action?
by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
In Evans v Trilab Pty Ltd (2014), a new state manager at a soil and rock classification testing company raised concerns with his superiors regarding how the company was undertaking testing. His view was that a wet testing method should have been used in order to comply with the relevant Australian Standards.
The chairman of the company’s board of directors responded by telling the employee to use the dry testing method and stop telling other staff they were using the wrong method. Four days later – after only 3 weeks of being employed by the company – the employee was dismissed. The employer’s reasoning was that the employee:
  • refused to adopt the dry testing method;
  • had a disastrous performance review; and
  • had not completed the proficiency test as requested.
The employee brought an adverse action claim under the FW Act, alleging that he had been dismissed for exercising a workplace right – that is, his right to make a complaint or inquiry.
The company responded by claiming that the termination had been entirely due to performance issues. It made an application to the Federal Circuit Court to summarily dismiss the employee’s application on the basis that his complaint regarding the company’s testing methods did not constitute a workplace right under section 341(1)(c)(ii) of the FW Act.
In determining whether the complaint did constitute a workplace right, the Court considered:
  • the employee’s duties, including his leadership in the laboratory, his day-to-day management and his overall responsibility for test results;
  • the legal precedent “that it is arguable that a complaint or inqury need:
    • not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person's employment for the purposes of s.341(1)(c)(ii) of the FW Act; and
    • only have an indirect nexus with a person's terms or conditions of employment to come within the scope of s.341(1)(c)(ii), and may be 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".
The Court concluded that, even though the employee’s questions regarding the company’s testing methods had no basis in any statutory, regulatory or contractual right or entitlement, the employee may still be entitled to make that complaint/inquiry. It therefore ruled that the employee’s claim be determined at a hearing.
Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook



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