As we discussed in our earlier blog post "What’s in a $500k general protections claim?", employers who take an “adverse action” against an employee because of that employee’s “workplace right” will be liable for a range of potential remedies (including uncapped compensation and fines).
The Act states that an employee will have a “workplace right” if the employee is able to make a complaint in relation to his or her employment. So what complaints will employees be able to rely upon?
Whilst this specific section of the Fair Work Act has not been given much judicial consideration to date, Justice Dodds-Streeton made the following findings about what will constitute a “complaint” in Shea v TRUenergy Services Pty Ltd (No 6)  FCA 271 (which have since been affirmed by Justice Bromberg in Walsh v Greater Metropolitan Cemeteries Trust (No 2)  FCA 456):
- a complaint needn’t be labelled as such but must convey “a grievance, a finding of fault or accusation” which the complainant considers valid;
- “the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established”, but the making of the complaint must be “in good faith and for a proper purpose” (i.e. to be investigated and/or redressed);
- a complaint may be made not only to an external party with the power to enforce or require compliance or redress, but also to an employer or an investigator appointed by the employer; and
- a complaint “in relation to” an employee’s employment must “be founded on a source of entitlement”, like a contract, award or legislation.
This decision makes it clear that every negative communication between an employee and employer will not be viewed as a “complaint” for the purposes of the adverse action provisions. It also makes it clear that complaints motivated by a hidden agenda will not be enough.
Do you have a grievance/complaints procedure in place so that your employees understand how to make a legitimate “complaint” within the business? Do you quarantine who deals with employee complaints within your business from the person who makes final decisions on dismissals (if possible)? Do you spell out to employees when you make a decision which affects their employment (like performance managing them or dismissing them) why you’re doing it? Just a reminder that you really should. The reverse onus of proof in these types of claims makes that paper trail we’re always harping on about even more important.
If your business needs help defending an adverse action claim, contact THE WORKPLACE.
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