The recent decision of Burnett FM in Harrison v In Control Pty Ltd[1] may herald the end of adverse action claims by ‘workplace whingers’ who make complaints or inquiries to anybody listening, about any matter relating to their employment. This is so even if the ‘matter’ does not pertain to a workplace law or workplace instrument

Facts in Harrison v In Control

Throughout the course of the employment relationship in question, the applicant expressed strong disagreement with the director of the respondent company (Director) about his manner and style of managing.

The applicant asked the Director to meet with him on 24 March 2011.

The applicant had prepared an agenda for the meeting to make some inquiries about issues relating to sourcing a new location for the office and the purchasing of equipment such as PC’s and filing cabinets, and to make complaints about the bullying of the staff, working hours in the new office, the Director’s lack of recognition for staff, lack of understanding or empathy, inattention at meetings, lack of structure or directions with the business and concerns that the applicant had about the dissatisfaction of staff members.

At the meeting the applicant stated that the Director did not have the management or leadership skills to run the business.  Matters reached a point such that the Director concluded that the applicant’s behaviour had crossed the line and he regarded it as inappropriate.  Following the Meeting the Director terminated the applicant’s employment.

The applicant’s adverse action claim

The applicant alleged that the respondent had taken adverse action against him for exercising a workplace right to make ‘complaints and inquiries in relation to his employment and on behalf of other employees’.  The applicant argued that by complaining about the matters raised at the meeting, he was exercising his workplace right to make a complaint or inquiry relating to his employment. 

The applicant argued that section 341(1)(c)(ii) of the FW Act does not limit the class of persons to whom a complaint or inquiry may be made and by its drafting does not exclude a person who makes a complaint or inquiry to his or her employer. 

The applicant claimed compensation of $110,075.00 for loss and damage, together with interest and costs.

Burnett FM’s decision

Burnett FM accepted that subparagraph (i) and (ii) in section 341(1)(c) of the FW Act are to be read cumulatively, so that a workplace right arises under section 341(1)(c)(ii) of the FW Act only when an employee ‘is able to make a complaint or inquiryto a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrumentin relation to his or her employment’. 

Burnett FM further concluded that the complaint or inquiry must be sourced in an underlying contractual and or statutory obligation governing the employer/employee relationship.

Burnett FM quoted acomment made by the Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd[2] in support of his construction of that section: “We are inclined to think…that s.341(1)(c)(ii) contemplates that the employee is ‘able’ to make the complaint by virtue of some provision in a statute or an instrument such as an enterprise agreement or contract of employment’.[3]

Burnett FM also held that if he was wrong in the construction of section 341(1)(c)(ii) of the FW Act, the applicant was not dismissed because he made a complaint or inquiry in relation to his employment. 

Implications for employers

If this construction of section 341(1)(c)(ii) of the FW Act is confirmed, it will prevent employees from making out a workplace right on the basis of complaints or inquiries, unless the employee has a right to make a complaint or inquiry underthe terms of the contractual relationship or a relevant statutory framework and the substance of the complaint or inquiry is such that it would invite the intervention of an external body with capacity under a workplace law to enforce compliance with a workplace law or instrument.

This construction of section 341(1)(c)(ii) of the FW Act favours employers as it places a restrictive caveat on when a ‘complaint or inquiry’ by an employee will give rise to a workplace right.

So can employers rejoice that workplace whingers can no longer cry “adverse action”? 

The answer is maybe, assuming Burnett FM’s decision in Harrison v In Control is ultimately confirmed by a higher court. 

So do you need to protect your organisation?

Although Harrison v In Control may curtail the incidence of unmeritorious adverse action claims, Gadens encourages organisations to continue to take a proactive approach to managing the risks of adverse action:

  • Understand the adverse action/general protections laws and how they operate, including what attributes and activities are protected;
  • Ensure that the decision-making in matters that may have an adverse effect on employees is conducted for sound and defensible reasons unrelated to any statute or contract-based complaints or inquiries, protected attributes or activities; and
  • Properly document the decision-making process to ensure that tangible evidence of the reasons for the decision are available for later use.