The Fair Work Act 2009 (Cth) (FW Act) protects employees from adverse action which is taken by their employer because the employee is ‘able to’ or has made complaints or inquiries in relation to their employment (s 341(1)(c)(ii)).
A recent Federal Magistrates Court decision (Devonshire v Magellan Powertronics Pty Ltd & Ors  FMCA 207)has taken a broad view of the circumstances in which an employee exercises a workplace right by making a complaint or inquiry in relation to their employment.
The Devonshire case was about an employee who made complaints and inquiries on a number of occasions to her employer about her rate of pay (which was different to that initially agreed upon), contractual entitlements and unpaid superannuation. The final time she made the complaints and inquiries was to the Director of the employer, during a meeting between them. The employer terminated her employment later that same day and after the employee had gone home early on sick leave. In the notice of dismissal, the employer cited its reasons as including her discussions with the Director.
The employee argued that the reasons for the termination included, amongst other things, that she was ‘able to’ and had made a complaint or inquiry in relation to her employment.
The employer argued that the employee did not have a workplace right to make a complaint or inquiry in relation to her employment because the protection is limited to formal or specified mechanisms of complaint or inquiry. The employer argued that the workplace right under s 341(1)(c)(ii) is not as broad as allowing an employee simply to make a complaint or inquiry of their employer in relation to their employment.
The Court disagreed with the employer and found in favour of the employee. The Court concluded that an employee will be protected from adverse action which is taken because the employee has made a complaint or inquiry directly to an employer in relation to their employment. The Court found that an employee ‘is able’ to make such a complaint or inquiry to their employer, even where there are no formal machinery or provisions for that complaint or inquiry.
Key points for employers
- When read together with another recent decision by the Federal Magistrates Court (Harrison v In Control Pty Ltd  FMCA 149) – see link, it is clear from this decision that complaints or inquiries in relation to employment must concern matters personal to an employee and not concerning the direction of the business and other management level decisions.
- If this decision is followed in subsequent Court decisions, a complaint by employees about matters personal to them will be enough to attract the FW Act protection against adverse action, even in circumstances where there are no formal complaint mechanisms or processes for the complaint or inquiry (whether within the employment or externally, i.e. under legislation or an industrial instrument). In this regard, the decision conflicts with Harrison v In Control Pty Ltd, which found that an employee must be ‘able to’ make their complaint or inquiry to a person or body having capacity to enforce the subject matter of the complaint.
As a consequence of this conflict, employers should not assume that either point of law is fixed. Employers must remember that they need to be able to lead credible evidence to prove that any adverse action taken against an employee is not related to the fact the employee had complained or inquired about their employment.