The Federal Court of Australia has found that the definition of a "workplace right" includes the right of an employee to seek legal advice in relation to employment matters. An employer who threatened to fire an employee when she expressed her intention to make legal inquiries was found to have taken adverse action under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act).
The Court took an expansive view of what constitutes a "workplace right" under the FW Act. The employee had made complaints in the past to her employer about unpaid commissions, and when such complaints proved to be ineffective in resolving the issue, the employee threatened to seek legal advice. The employee alleged that in response her employer threatened to terminate her employment and also treated her adversely in suspending her employment.
The Court accepted that the employee had sought to make an inquiry to her solicitor which the judge found was within the reading of a "workplace right". The decision will allow employees to seek legal assistance without the "fear of repercussions" from their employer. While penalties are yet to be determined, the employee was successful in recovering four years' worth of unpaid commissions against her employer.
Lesson for Employers
This decision significantly broadens the scope of the already wide-ranging adverse action provisions. Unless or until this decision is overturned on appeal, employers will need to be careful when managing difficult employees who have sought or threaten to seek legal advice. An employer should ensure that any disciplinary or less favourable treatment
towards an employee is based on a valid reason and not because the employee has a right to seek legal advice.
Murrihy v Betezy.com.au Pty Ltd (2013) FCA 908