When is a complaint made by an employee protected?
The general protection provisions of the Fair Work Act (Cth) 2009 (Act) make it unlawful for an employer to take adverse action against an employee for a range of reasons, including because the employee has exercised a workplace right. But what is a workplace right?
Section 341 of the Act defines the meaning of “workplace right”. For the purposes of this article, we will focus on the right to make a complaint or inquiry under subsection 341(1)(c)(ii). This subsection provides that an employee has a workplace right if the employee is able to make a complaint or inquiry in relation to his or her employment.
In effect, this provision is intended to protect employees from termination, demotion or other adverse action because they have made a complaint to their employer. However what exactly is a complaint “in relation to your employment”? Willall workplace complaints made by an employee fall under the Act’s protection, and in what circumstances could an employer be accused of taking unlawful action against an employee because they have made a complaint?
The protection afforded by the general protections, in so far as they prohibit an employer from taking adverse action against an employee because the employee has made a complaint, only came into existence with the introduction of the Act in 2009. As such the scope and breadth of these protections are still being articulated before the Courts.
The decisions of the Federal Court of Australia, Federal Circuit Court and its predecessor, the Federal Magistrates Court, provide some guidance as to what will constitute a protected complaint under the Act but, as we illustrate below, some areas are far from settled. Below we summarise some key points from recent cases that have considered when a complaint will be a complaint for the purposes of subsection 341(1)(c)(ii) of the Act.
- A complaint can be made by an employee directly to his or her employer. It does not have to be a complaint that must be made to an independent body such as the Fair Work Commission in order to qualify as a complaint for the purposes of section 341(1)(c)(ii).
- For a complaint to be “in relation to” an employee’s employment there must be some relationship between the subject of the complaint and the employee’s employment, direct or indirect. In CFMEU v Pilbara Iron Co (Services) Pty Ltd (No 3)  FCA 697, the employee made a complaint on behalf of a co-worker about shift rosters. The Federal Court found that complaint was in fact “in relation to” the employee’s employment because a similar shift roster applied to the complaining employee.
A complaint to an employer that has no relation at all to the employment relationship is unlikely to fall within the definition of 341(1)(c)(ii) of the Act.
- When making a complaint an employee does not have to use a particular form of words or even use the word “complain”. It is sufficient if the communication would reasonably be understood in the context as a complaint. An employee who writes to his employer advising that he accepted a reduction in working hours “under strong protest” was found to have made a complaint to his employer.
The key question an employer should ask is whether it is evident, from the employee’s communication, that the employee has an issue that he or she seeks to have resolved or addressed?
- Does a complaint have to be founded on a source of entitlement such as a contract, statute or other such instrument? There are conflicting views on this question.
In the Federal Court decision Shea v TRUenergry Services Pty Ltd (No 6)  FCA 271 at , Judge Dodds-Streeton determined that a complaint must be underpinned by a “right” to make the complaint:
“…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it 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.”
Subsequently, in Evans v Trilab Pty Ltd  FCCA 246, an employer sought to have an ex-employee’s general protection application summarily dismissed on the basis the employee’s complaint, which related to the employer’s scientific testing methods, was not a complaint he was able to make pursuant to a statute or instrument. In considering the employer’s application, Judge Lucev noted that there was divergent case law on whether there had to be a “right” to complain.
The Court held that it was arguable that a complaint need not arise from a statutory, regulatory or contractual provision and dismissed the application for summary dismissal. It will be interesting to see how this question is ultimately resolved when this matter proceeds to the substantive hearing.
- Disingenuous complaints may not be protected. In Shea, the Court imposed an additional requirement that the complaining employee “must hold a genuine belief in the truth of the matters communicated as a grievance or accusation”. Adopting this qualification the Court found that one of Ms Shea’s complaints was not protected because it had been made for ulterior purposes.
However, on appeal the Full Court, while still upholding the primary judge’s decision that the real reason for termination was redundancy, cautioned against this approach, stating that it “may serve too discourage those who may well have mixed motives for making a complaint”. We wait to see whether the requirement for a complaint to be genuine is endorsed in future cases.
- The complaint is not required to be substantiated, proved or ultimately established. The Act’s intention is protect those employee’s that make a complaint, not those employees that make a complaint which is substantiated. As such, even in circumstances where a complaint is thoroughly investigated and found unsubstantiated or untrue, the protection will still apply to the complaint.
Linking the adverse action to the complaint
Once an employee proves that they made a complaint and that they were subjected to adverse action section 361 of the Act provides that it is presumed that the employer took the adverse action because the employee had made that complaint. An employer then bears the onus of proving to the court that the complaint was not the reason that adverse action was taken.
In Heathcote v University of Sydney  FCCA 613 for example, while the Court found that a complaint about how a workplace grievance was handled was a type of protected complaint, the employer successfully proved that the termination of the employee was unrelated to the fact that he had made such a complaint. Similarly, in Ramos v Good Samaritan Industries (No 2)  FMCA 341 (upheld on appeal), the employee was found to have made protected complaints regarding statements made to him by his management. Nonetheless, the Court accepted the evidence from the employer that the subsequent dismissal of the employee was made due the employee’s workplace performance and conduct and not because of his complaint.
In this regard it is important to note:
- The Act places the onus on the employer to prove that the reason for the adverse action was not related to the complaint; once the employee asserts as such, it is for the employer to prove otherwise. This reverse onus gives the employee a significant tactical advantage and places a heavier evidentiary burden on the employer.
- If the adverse action is taken for multiple reasons, it is sufficient for the employee’s case that only one of those reasons is due to they making of a complaint. For example, if an employer terminates the employment of an employee due to both poor performance and because they have made a protected complaint, they will be found liable under the Act. Other proven reasons for termination may nonetheless be considered by the court in determining the employee’s compensation and any penalty.
In most circumstances it will be apparent to an employer that an employee complaint has been made and, accordingly, the employer is forbidden from taking adverse action on that basis. However problems may arise when an employer wishes to take legitimate and lawful action against an employee for reasons unrelated to the employee’s complaint, e.g. poor performance or redundancy, where the employee has already made a complaint or makes a complaint during the performance management process.
This is made all the more complex given that there is no set period of time for which a complaint remains protected. For example in Heathcote, the employee pleaded that a complaint he made in 2004 was still relevant to his dismissal in 2012.
Consequently, in these circumstances an employer considering taking adverse action against an employee who has made a complaint should take particular care to ensure that they will be able to lead evidence to establish the lawful reasons for termination if challenged. We would encourage employers to keep contemporaneous records or notes of meetings with the employee, to ensure that they address and close out the employee complaint first and to separate the complaint from the performance or disciplinary process.