By Charles Power

The Fair Work Act 2009 (Cth) (FW Act) protects employees from having adverse action taken against them because of a workplace right they have, whether they have exercised it or not. One of these rights is the right of an employee to make a complaint or enquiry in relation to their employment.

This isn’t quite as simple as it sounds. In fact, judges of the Federal Court, who decide many cases concerning this provision, have different views about when an employee has this kind of workplace right.

What do judges agree on?

Federal Court judges agree that an employee makes complaint when they express discontent, and seek consideration, redress or relief from a matter about which they are aggrieved. A complaint is not made simply because an employee requests assistance.

They also agree that the purpose for the FW Act protection is to enable an employee to advocate for their interests without fear of retribution.

Where do judges disagree?

Federal Court judges disagree on the question of whether an employee needs a legal entitlement to make the complaint in order to be protected by the FW Act. There is also some disagreement about whether the matter that is complained about derives from a right or entitlement of the employee.

In a recent decision, Cummins South Pacific Pty Ltd v Keenan (2020), the minority Judge held the narrow view that a complaining employee could only access the FW Act protection if they had a right to complain sourced in legislation, contract or general law. Therefore, the mere fact that an employee makes an employment-related complaint is not enough for the protection to apply.

However, this Judge ruled that when an employee complained about a formal performance management process instigated by the employer, the employee’s right to complain was sourced in his employment contract. That is because the employee’s contract required the employee to comply with all his employer’s policies, procedures and requirements, including its performance management policy. Therefore, he was contractually obliged to participate in the performance management process. This meant he was entitled to voice his complaint because an employer may only exercise a contractual right, bona fide for the purpose for which it was conferred. The employee was entitled to expect that such a right would not be exercised capriciously or in a manner that would deprive him of the benefit of his contract with the employer.

The employer was subject to an implied (or unwritten) obligation not to exercise its right to instigate its performance management process policy in a way that would deprive the employee of the right to fairly respond to the matters raised by the employer. When the employee complained the matters of alleged non-performance raised were ambiguous and/or subjective, he was contractually entitled to do so.

It is likely that the narrower interpretation of when an employee is protected in making an employment-related complaint will consolidate in the various decisions of the Federal Court. However, the above approach shows that judges will, in some cases, stretch to find a general law source for the right to complain.