The Federal Circuit Court of Australia has handed down a decision which clarifies that an employee’s informal, verbal complaint can form the basis of a successful general protections claim.

Section 340 of the Fair Work Act 2009 (FW Act) provides that a person must not take adverse action against another person because the other person:

  • has a workplace right
  • has, or has not, exercised a workplace right, or
  • proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.

Section 341 of the FW Act relevantly provides that a person has a workplace right if that person is able to make a complaint or inquiry about his or her employment.

In Anderson v BNP Paribas Securities Services [2015] FCCA 2231, the Court considered whether Mr Anderson had made a complaint about his employment within the meaning of the legislation and, if so, whether the complaint made by Mr Anderson formed part of BNP’s reason for his dismissal.

FACTS

Mr Anderson was nearing the end of his three month probationary period when he was confronted by his supervisor about being absent from his desk. Mr Anderson subsequently contacted BNP’s human resources staff and expressed concern about the confrontation.

The next day Mr Anderson participated in a performance review meeting with his supervisor. His supervisor was critical of Mr Anderson’s performance but offered him an extension of his probation. Some days later a second performance meeting was held between Mr Anderson, his supervisor and a representative from HR. Mr Anderson was critical of his supervisor and the workplace culture. The supervisor revoked the offer to extend probation and recommended termination, after which Mr Anderson’s employment was terminated.

DID MR ANDERSON MAKE A COMPLAINT?

The Court found that although Mr Anderson was asked if he wished to make a complaint and on each occasion stated he did not wish to pursue (or ‘formalise’) his complaint, his concerns were never actively addressed by BNP, apart from HR apologising for his supervisor’s behaviour. Importantly, the Court viewed Mr Anderson’s articulation of his concerns as a complaint. The fact he decided not to take it further didn’t prevent his original statements from amounting to a complaint. Accordingly, the Court held that Mr Anderson had made a complaint about his employment for the purposes of s 341 of the FW Act.

WAS THE COMPLAINT A REASON FOR THE DISMISSAL?

For BNP’s dismissal of Mr Anderson to give rise to a breach of the general protections provisions, it was sufficient that Mr Anderson’s complaint was a ‘substantial and operative factor’ or an ‘operative or immediate’ reason for the decision to dismiss him, rather than simply the only reason for the decision.

The Court found that Mr Anderson’s supervisor withdrew the offer to extend his probation period and made the recommendation to terminate his employment after he learnt that Mr Anderson had made a complaint about him. In the Court’s view, the supervisor’s irritation at the complaint was clearly a factor in his recommendation of termination despite the supervisor’s concern with Mr Anderson’s performance and the contemporaneous file notes and emails, which were offered as evidence of this concern.

Similarly, the Court held that the decision to terminate Mr Anderson’s employment was confirmed because it was considered that the conflict between Mr Anderson and his supervisor (which had partly arisen due to the complaint) made Mr Anderson’s ongoing employment untenable. The Court found that the decision was also based on a concern that if Mr Anderson’s complaint gained formality, BNP would not be able to terminate his employment for some time due to the requirement of undertaking an investigation, and this would take him beyond the six month minimum employment period and allow him to make an unfair dismissal claim.

The Court concluded that BNP contravened s 340 of the FW Act by dismissing Mr Anderson for reasons including that he made a complaint about his employment. The amount of any compensation and penalty is still to be determined.

LESSON FOR EMPLOYERS

This decision reinforces that an employee’s complaint about his or her employment does not need to be in writing or otherwise ‘formalised’, and the employee need not even want to pursue the complaint, for the making of the complaint to amount to the exercise of a workplace right. That can then be the basis of a claim of breach of the general protections provisions.

Employers should also be conscious of their health and safety obligations when matters are raised, even if they are not complaints. A concern that an employee raises about workplace culture should be considered in the context of an employer’s obligations to provide a safe system of work and to monitor conditions at workplaces.

When making decisions about an employee’s future, an employer should ensure it can provide credible evidence from the decision maker (which may be several people) that the complaint did not motivate the decision maker’s decision to take the alleged adverse action. The more damning the circumstantial evidence (for example, the sudden withdrawal of an offer to extend probation immediately after becoming aware of a ‘complaint’), the harder it will be to meet this evidentiary challenge. Contemporaneous notes demonstrating that the decision was based on non-prohibited reasons only will be of significant assistance in providing evidence that prohibited reasons were not operative.