The statutory protection against adverse action taken because the employee made a complaint about the employment should not be limited to situations where the employee genuinely believes in the merit of the complaint, the Full Federal Court has said in a recent decision – but without finally disposing of this controversy. Adverse Action
The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take “adverse action” against an employee because of his/her exercise of a workplace right. Adverse action includes termination of the employment.
A “workplace right” includes the ability of the employee to make a complaint to the employer relating to the employment.
In any claim brought by an employee for adverse action, the employer bears the onus of proving that the adverse action was not taken because of the exercise of the workplace right by the employee.
Shea Case – Facts
The plaintiff was an executive whose employment was terminated due to redundancy. She alleged that the redundancy was contrived and sued under the adverse action provisions of the Act.
The case advanced by the plaintiff was that the employer had ended the employment because she had made complaints alleging sexual harassment.
The judge ruled that in order for a complaint to be a workplace right:
- the complainant must hold a genuine belief in the truth of the matters communicated as a grievance or accusation;
- the grievance or accusation must be communicated for a proper statutory purpose; and
- the ability to make a complaint must be underpinned by an entitlement or right.
The trial judge dismissed the proceedings partly on the basis of the above findings, but mainly because the evidence established that the redundancy arose from orthodox business considerations and was not related to the complaints.
The Full Court rejected an appeal from the decision of the trial judge, finding that there was no error in the conclusion that the redundancy was unconnected with the complaint.
This was sufficient to dispose of the appeal and so the Full Court did not have to come to a concluded view on what constitutes a complaint for adverse action purposes. This was unfortunate as appellate clarification on this point would have been welcome.
However, some guidance can be gained from these observations made in passing by the Full Court:
“Considerable care needs to be exercised before implying …any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”…The expression or drafting of a “complaint” should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made.”
What does this mean for employers?
The scope of the “ability to complain” basis for an adverse action claim is still unsettled. The lack of judicial guidance, coupled with the reversed onus of proof, makes it wise for employers to proceed cautiously when dealing with employees who have a history of raising grievances.