More than five years after the Fair Work Act 2009 (Cth) (the Act) commenced operation, uncertainty still attaches to the meaning of “workplace right”, which is a critical concept in the operation of the Act’s “general protections”.
The Act makes it unlawful for an employer to take “adverse action” against an employee (which includes dismissal, but also anything which disadvantages the employee in employment) because of the exercise of a workplace right by the employee.
The Act defines ‘workplace right’ to include the employee being able to make a complaint or inquiry in relation to his or her employment.
There have been a number of first instance court decisions which have taken divergent approaches to two key aspects of this definition:
- whether the complaint must be made via a statutory, regulatory or contractual provision, or it is sufficient that the compliant was made ad hoc to a person in authority in the workplace;
- whether the complaint must concern matters personal to the employee or it can relate to the employer’s directions as to the performance of work.
In Trilab the Federal Circuit Court had to deal with an application to strike out an employee’s claim of adverse action on the basis that the complaint (which the employee alleged was the exercise of a workplace right) was not made pursuant to any statutory or contractual prescription and did not relate to the person’s employment.
The employee had complained to his employer about the manner in which certain tests on materials had been carried out in the ordinary course of work, claiming that the tests were not consistent with the Australian Standards. The employee’s employment was terminated and he alleged that this termination was carried out because he had made the complaint.
Judge Lucev noted that some cases had taken a broad view under which the complaint or enquiry need not arise from any formal statutory or contractual provision and that the complaint need only have an indirect connection with the person’s terms and conditions of employment. Although other cases had taken a narrower view, the existence of these broader authorities meant that the employee’s claim could not be struck out as misconceived. It was arguable that the employee’s questioning of the way in which the testing was carried out constituted a complaint sufficient to be a workplace right.
What does this mean for employers?
The Trilab decision has implications for employers where an employee makes a complaint or inquiry which does not directly touch upon the employee’s terms and conditions of employment, but instead relates to the way in which the employer operates its business. Until the true extent of the definition “workplace right” is settled by an appeal court, employers should be sensitive to the potential for “indirect” types of complaint to form the basis for a contravention of the general protections established by the Act.