In previous posts we have examined the “workplace rights” limb of the adverse action jurisdiction in the Fair Work Act 2009 (Cth) (the Act) – specifically the protection given in relation complaints. The issue has been considered again in a recent decision of the Federal Circuit Court.
The issues
The Act makes it unlawful for an employer to take “adverse action” against an employee because of his/her possession or exercise of a workplace right.
A workplace right includes a situation where the employee is “able to make a complaint or inquiry in relation to his or her employment”.
At issue are the ambit of the concept of “able” and the degree to which the complaint must be connected with the person’s employment.
The circumstances
The employer operated a nursing home. The employee was the manager of the facility.
The employee made a number of complaints under the Aged Care Complaints Scheme about the operations of the nursing home. The Aged Care Complaints Scheme is established under the Complaints Principles of the Aged Care Act 1997 (Cth). In general terms, the Scheme exists for the management and resolution of complaints about the provision of aged care services.
The employee was dismissed within the probationary period because of alleged “performance issues” and “unprofessional conduct”.
The employee claimed that he was dismissed because of his complaints under the Aged Care Act. He said that these complaints constituted the exercise of a workplace right, which meant that the dismissal was unlawful adverse action.
Hearing
At the hearing, the employee submitted that the objects of the Aged Care Act were to ensure the quality of services for the aged and in that regard the provisions relating to complaints were a necessary component of the framework. Delivering quality services was also a key performance indicator in relation to the employee’s position. The employee argued that the Aged Care Act was, therefore, a part of his contract of employment.
The employee also argued that his complaints were all about the quality, type and level of care, and so were matters which have a significant bearing on the relationship between employers and employees in the aged care industry.
The trial judge ruled that the ability to complain under the Aged Care Complaints Scheme established by the Aged Care Act was not a “workplace right” because the legislation and its complaint principles were not workplace laws or instruments.
The judge said the objects of the Aged Care Act related to the provision of aged care services and the health of recipients of aged care. The legislation imposed duties and obligations on aged care providers but did not regulate the relationship between employees and their employer in the sector.
Consequently, the claim was dismissed without the need to examine whether the stated reason for the termination was correct.
