A recent decision of the Federal Circuit Court of Australia1 has shed light on a contentious section of the Fair Work Act, in considering when an employee will be protected against adverse action taken because they have made a “complaint or inquiry” in relation to their employment.

Background

The “adverse action” general protection provisions of the Fair Work Act 2009 (Cth) (FW Act) have been in operation  for four and a half years, but the meaning of key sections of these provisions remains unclear.

In this particular case, the Federal Circuit Court considered some of the conflicting judicial consideration about these sections and shed light on their interpretation.

Facts

Trilab Pty Ltd is a company involved in  the business of soil and rock classification testing. Hayden Evans, was employed by Trilab as State Manager - Engineering (Perth) for three weeks in August 2013.

As part of his employment, Mr Evans was required to perform soil testing in accordance with the relevant Australian Standard. He asked the laboratory manager why Trilab was not conducting testing in line with the Standard, in the belief that Trilab should be using “wet- testing” instead of “dry-testing”. Mr Evans said that he was shortly afterwards dismissed for “asking questions about test methods”.

Mr Evans brought an adverse action claim, asserting that his internal questioning about the test methods constituted a complaint or inquiry in relation to his employment for the purposes of the FW Act and that he was therefore protected from adverse action by his employer.

Trilab sought summary dismissal of Mr Evans’ claim on the basis that it had no reasonable prospect of success. In support of this, Trilab argued that in order to make a relevant complaint or inquiry under the FW Act, Mr Evans must have had some authority or right to make a complaint either under statute or another instrument, such as an enterprise agreement or contract. Trilab further argued that Mr Evans was dismissed for performance reasons.

Decision

Judge Lucev examined the divergent judicial decisions on whether a  complaint or inquiry requires a “source of entitlement”(such as statute, an agreement or contract) before it can obtain the protection of the FW Act, in order to determine whether the claim should be summarily dismissed.

His Honour found that it was clear that a complaint or inquiry:

  1. 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”; and
  2. need only have an “indirect nexus with a person’s terms or conditions of employment” to come within the scope of the FW Act 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”.

Mr Evans’ question about testing was therefore arguably capable of being characterised as a complaint or inquiry in relation to his employment. Judge Lucev refused to summarily dismiss the claim and said it was “obviously appropriate” that the matter go to a hearing.

The hearing is yet to take place.

Bottom line for employers

If it is necessary to dismiss an employee for poor performance, take care to ensure that no connection can be drawn between the real, performance-related reasons for the dismissal, and any complaint or inquiry made by the employee in relation to his or her employment.

Employers must be able to clearly articulate the performance-related reasons for the dismissal and clearly demonstrate that the complaint or inquiry was not in any way related to the dismissal. Ensure that any complaint or inquiry - even a seemingly innocuous complaint or inquiry - is not connected in the mind of the decision-maker in any way with the real reasons for the dismissal.