Adverse action and the general protections

One of the general protections in the Fair Work Act provides that an employer must not take adverse action against an employee because the employee made a complaint or enquiry in relation to his or her employment. IN this context what is the making of an enquiry? The following passage from a recent decision of the Federal Circuit Court provides an answer.

“The respondent argues that even assuming that everything in his Form 2 is correct, his “inquiries” amount to no more than the correction of an apparent error regarding conditions and allowances and a request to review his pay grade.  The respondent submits that the applicant’s pleading does not establish that the “inquiries” are anything more than general questions.  The respondent submits that an employee must show that the complaint or inquiry relied upon to found a cause of action occurred in circumstances where the employee was “able to make” the complaint or inquiry.  This involves having some identifiable right or entitlement to make the complaint.  The respondent directed my attention to the following passage from Shea v TRUenergy Services (No 6) [2014] FCA 271, at [29]:

[29]     …(f) [A] complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement whether instrumental or otherwise.

The applicant took me to PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [12-13] where Rangiah and Charlesworth JJ approved the above statement and said:

[12] We respectfully agree with Dodds–Streeton J that s 341(1)(c)(ii) of the FW Act contemplates that not every complaint that an employee makes in relation to his or her employment is one the employee is “able to make” (for present purposes, it is unnecessary to address the ability to make an inquiry). The question then arises as to how the provision distinguishes complaints that come within its reach from those that do not.

[13] Justice Dodds–Streeton considered that the word “able” refers to an entitlement or a right. We respectfully agree. However, her Honour’s statement that a complaint “must be underpinned by an entitlement or right” is ambiguous. On one view, it may indicate that the complaint “must be underpinned by an entitlement or right to make a complaint”. On another, it may indicate that the provision captures any complaint by an employee concerning an entitlement or right related to his or her employment. In our opinion, the former view is consistent with the succeeding sentence in the passage and with s 341(1) of the FW Act as a whole. The phrase “is able to” appears in both s 341(1)(b) and (c). In s 341(1)(b), the phrase indicates an entitlement or right to initiate, or participate in, a relevant process or proceeding. In s 341(1)(c)(i), the phrase indicates an entitlement or right to make a complaint or inquiry to a person or body. Consonantly, in s 341(1)(c)(ii), the phrase describes a right or entitlement to make a complaint or inquiry in relation to the employee’s employment. It may be observed, however, that whichever view is taken makes no difference to the outcome of this case.

However, strong dissent has been expressed about the correctness of the above propositions: Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [67] per Bromberg J with whom Mortimer J agreed, Anastassiou J dissenting). I am bound by what was said by the Full Court in PIA Mortgage Services.

Nonetheless, those statements have no particular application in the present case.  The discussion in Shea, PIA Mortgage Services and Cummins concerned complaints made by an employee to his or her employer. There was no focus in those cases at all upon the term inquiry where it appears in s.341(1)(c)(ii) of the Act. The present case does not concern a complaint but rather an inquiry.  An inquiry is not necessarily a complaint.  If the legislature had intended them to be the same thing, the use of the words or inquiry, would have been entirely unnecessary.  That they have been used tends to suggest that the legislature saw a difference between a complaint and an inquiry.  In Henry v Leighton Admin Services Pty Ltd & Anor (2015) 299 FLR 342 Judge Manousaridis said this of the two terms (footnotes included, my emphasis):

[40]     … The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault, regardless of whether the grievance or finding of fault is factually correct or substantiated: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [600]. The ordinary meaning of “inquiry” is the act of seeking information about or concerning something:  Oxford English Dictionary.

[44]     One key to the association or connection denoted by “in relation to” is what is an essential feature of a complaint and inquiry, and that is their quality of “aboutness”. A complaint is about something; there must be a subject about which a person states a grievance or makes a finding of fault. Similarly with an inquiry. An inquiry is the act of seeking information about something; there must be a subject about which a person seeks information.

Judge Manousaridis took a consistent approach in Storey v Monitoring Centre Pty Ltd [2015] FCCA 3310.

  1. In my view, the reliance by the respondent here upon the passages referred to above in Shea and PIA Mortgage Services is misplaced.  The applicant’s case does not seem to be that he made a complaint for the purposes of s.341(1)(c)(ii) of the Act but rather an inquiry. That is to say he sought information about something – information about the benefits and entitlements and information about a pay rise. This case affords a good example of the difference between the two terms. Seeking information about the possibility of a pay rise is making an inquiry about the terms and conditions of the inquirer’s employment. So too is making an inquiry about the removal of fuel and parking allowance entitlements. It is difficult to see how such inquiries are not within the terms of s.341(1)(c)(ii) of the Act. Even if analysed in accordance with the reasoning in Shea, it can be seen that the source of the ability to make the inquiry is the term or terms of the applicant’s employment contract with the respondent that deal with remuneration.

The respondent submits that the difficulty for the applicant is that his pleading does not establish that the “inquiries” are anything more than general questions. But it is entirely conceivable and in my view most likely, that an inquiry for the purposes of s.341(1)(c)(ii) of the Act will take the form of a question seeking information from the employer. The relevant inquiry does not have to be a complaint. That is because aside from being an inquiry or complaint about the employee’s employment, the inquiry or complaint need have no other character. By that I mean the complaint does not have to have substance or the subject of it be true. Nor the subject matter of any inquiry. Once the employee establishes that he or she has made a complaint or inquiry about their employment, the issue becomes whether the adverse action taken by the employer (assuming adverse action is established) was taken for a proscribed reason.

In my view, the applicant has pleaded a cause of action for a breach of s.340(1) of the Act in his Form 2”

 

Crispe v Bank of Queensland Limited [2021] FCCA 115 delivered 28 January 2021 per Jarrett J