The Federal Court has ruled that seeking legal advice in relation to employment is a protected workplace right. As such, a threat to fire an employee for seeking legal advice can amount to adverse action under the Fair Work Act.

In breach of her right to be paid at least monthly for work performed, an employee was not paid commissions owed to her. After making repeated complaints to her employer about the unpaid commissions, the employee threatened to seek legal advice. In response, the employer threatened to fire her if she did as she proposed.

The judge decided that seeking legal advice is a workplace right. First, the judge stated that the ordinary meaning of workplace rights is broad, and clearly includes the right to make an inquiry or complaint to the employer. Second, the judge considered whether the right extends to making an inquiry or complaint to a solicitor. The judge decided that it does, because:

  • the natural reading of the provision suggests that seeking legal advice should be regarded as making an inquiry; and
  • had the employee belonged to a union, she would have had the benefit of union representation in respect of her right. As such, she should not be precluded from seeking and obtaining independent legal advice and representation in relation to the same right.