Section 340(1) of the Fair Work Act 2009 (Cth) (FW Act) prohibits an employer from taking adverse action against an employee because the employee is able to make a complaint or inquiry in relation to their employment.

It’s now clear that for an employee to make a complaint that is protected by this provision, the employee must communicate or convey a grievance, a finding of fault or accusation for the purpose of it being investigated or redressed, as is appropriate.

Furthermore, the subject matter of the complaint or inquiry must be founded on an entitlement sourced in either the employee’s contract of employment or some other instrument regulating their employment, such as a modern award or the FW Act.

Determining what is a protected complaint

In Green v Preston Motors Pty Ltd (2022), the Court applied this approach. While accepting that employee complaints about being the subject of abusive, and aggressive and offensive behaviour from another manager were protected, the Court ruled that several other claimed complaints were not complaints protected by the FW Act.

What were not protected complaints?

The Court determined that the following were not protected complaints under the FW Act:

• Mere observations about a manager’s conduct or approach.
• A remark by an employee in a staff meeting refuting an accusation that he was responsible for overspending. This was considered by the Court to simply be an ordinary business discussion (albeit a vigorous and robust discussion).
• A conversation between the employee and his manager in which the employee asserted that employees at the workplace should not be stood down because there was work they could usefully do. This was not an expression of a grievance or a complaint about his right to work under the contract or his right not to be stood down under the FW Act; rather, the employee was simply arguing that there was another way to run the business during the pandemic.
• An enquiry to another manager about whether the stand down of employees was permitted under the dealership franchise agreement, as the employee was not party to the franchise agreement.
• A query about the reliability of financial information supplied by another manager. This simply expressing a different view about commercial matters in the context of a debate about whether or what parts of the business were to remain open during the pandemic. The employee was not complaining about his right to work under the contract or his right not to be stood down under the FW Act.
• An observation that another manager did not trust him and other managers, despite that they were trying to support the business.