Murrihy v Pty Ltd

Since their introduction with the Fair Work Act 2009, "adverse action" claims have become the "new black" of employee claims - a favourite that goes with everything.  Almost every claim that now comes across our desks has an adverse action component to it.  These claims have also been keeping our Federal Court judges busy - with that Court recently reporting a significant increase in the number of claims (The Sunday Age, "Federal Court sees surge in work disputes", 22 September 2013).  These claims have produced a fascinating body of case law, with one matter going all the way to the High Court (BRIT v Barclay [2012] HCA 32).

The latest decision in this fast developing area is Murrihy v Pty Ltd ([2013] FCA 908).  In Murrihy, the Federal Court looked at the question of whether employees have a "workplace right" to seek legal advice.  If they do, employers cannot take adverse action against them (that is disadvantage them) because they have exercised that right.

It was argued in Murrihy that when the Fair Work Act talks about an employee's right to make a complaint or inquiry in relation to his/her employment being a workplace right, it is referring to a right to complain to a regulator (such as WorkSafe or the Fair Work Ombudsman) which is conferred expressly by statute or such a right expressed in a formal grievance/dispute resolution procedure in an award or enterprise agreement.

Perhaps unsurprisingly, the Federal Court said that limited view of a workplace right was not correct and that the adverse action laws extend to protect employees who seek legal advice about their entitlements.  The trial judge said that an employee, particularly an employee not represented by an union, "should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of "adverse action" taken by the employer, would be well within the purposes of the section…" (Justice Jessup, paragraph 143).

The prospect of an employee seeking legal advice may weigh heavily, but employees need to be given freedom to seek counsel.  Employees increasingly want their lawyers present at process and disciplinary meetings.  Each request and approach should be considered in context, but employers need to be careful to allow employees to get their own independent advice.