A court has determined that an employee had a workplace right under the Fair Work Act 2009 (Cth) (“Act”) to make a complaint entitling the employer to proceed with her general protections claim. The employee alleged that her former employer engaged in adverse action by terminating her employment because she exercised a workplace right. The employer was unsuccessful in its application to have the claim thrown out by the court which found that the employee had a workplace right to claim about not being paid correctly. The court was satisfied that the employee had a workplace right because she was entitled to a benefit (being full pay) and was “able to” make a complaint about not being paid in full. The decision does not resolve the employee’s adverse action claim, rather it clarifies that the employee has jurisdiction to make her claim if it proceeds. Devonshire v Magellan Powertronics Pty Ltd (2013) FMCA 207
In a separate decision, the same court has rejected an employee’s adverse action claim, finding that the employee’s complaints about management did not constitute a workplace right covered by the general protections provisions in the Act. The decision of Federal Magistrate Burnett (now Justice Burnett) is reported as being the first time a court has considered the proper construction of section 341(1)(c) of the Fair Work Act 2009 (Cth), which protects an employee’s right to make complaints or inquiries “in relation to” his or her employment.
The employee was unsuccessful in his six-figure claim for damages, alleging his former employer took adverse action against him by terminating his employment because he had made complaints or inquires about his employment. Rather, the former employer defended its decision to terminate the employee because of a history of “mild insubordination” and a “long standing clash of personalities”. Accordingly, the employee’s “complaints or inquiries” were found to have arisen from the employee’s discontent with his employer’s management approach and was not sufficiently connected to his employment governed by a contractual or statutory framework to fall within the ambit of the general protections provisions in the Act. Harrison v In Control Pty Ltd (2013) FMCA 149
Key takeaway: Given the uncertainty that has surrounded the operation of section 341(1)(c) of the Fair Work Act 2009 (Cth), the decision of Justice Burnett should be welcomed by all employers, both large and small. By applying a narrow cumulative construction to the workplace right found in the two limbs of section 341(1)(c), employers should be more confident about making legitimate management decisions in the ordinary course of business with less fear of a disgruntled employee bringing an adverse action claim against them founded on a difference of opinion about a management decision or a clash of personalities.