General protections; memo to the Federal Court; please clarify

As I have said at various times in my posts, there is a judicial controversy in Australia about the formality which is required to ground the making of a workplace right for the purposes of the protections of the general protections under the Fair Work Act and in particular out of sec 340.

Some judges have held that for the making of a workplace right to be protected from adverse action, the right must have a certain level of formality and be drawn from an instrument; some judges even believe that the source of the entitlement must be identified when the workplace right is exercised; see PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225. This seems to be nonsense to me, but there you have it.  Here is a link to this very important case https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0204

In this Federal Court decision an extract from which I am publishing today, the boundaries of the lack of judicial agreement are identified.

 

“F.2 Alleged contraventions of s 340 of the FW Act

F.2.1   Introduction

  1. Section 340(1) of the FW Act provides:

340  Protection

(1)          A person must not take adverse action against another person:

(a)       because the other person:

(i)          has a workplace right; or

(ii)         has, or has not, exercised a workplace right; or

(iii)        proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)       to prevent the exercise of a workplace right by the other person.

Note:        This subsection is a civil remedy provision (see Part 4‑1).

  1. The term “workplace right” is defined in s 341. The applicants relied only on s 341(1)(c)(ii):

341  Meaning of workplace right

Meaning of workplace right

(1)          A person has a workplace right if the person:

(c)       is able to make a complaint or inquiry:

(i)           to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)         if the person is an employee—in relation to his or her employment.

  1. No case was put under s 341(1)(c)(i). As to s 341(1)(c)(ii), the applicants only put a case that Dr Anderson was “able to make” a “complaint” and did not rely upon him being “able to make” an “inquiry”.
  1. As to the meaning of “complaint”, Dodd-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 stated:

[579]       In Hill v Compass Ten Pty Ltd (2012) 205 FCR 94; [2012] FCA 761 (Hill) Cowdroy J applied the distinction drawn in Zhang between a grievance and a request for assistance. In Hill, the applicant alleged that his employer, the operator of a disability care centre, dismissed him in contravention of ss 340(1) and 772(1)(e) of the Act, because he had made inquiries of the relevant government department expressing concern about staffing levels. He had also discussed with a building inspector his concerns about the adequacy of the respondent’s building works.

[580]       Cowdroy J found that the applicant’s emails (seeking support from the relevant government departments and officers about employing residents or staffing guidelines) did not constitute a complaint. His Honour noted that the applicant made “oblique reference to tension between his perceived responsibilities to residents and responsibilities to the director”, but did not mention “any particular issue with which he has a grievance”: at [48].

[581]            Cowdroy J stated (at [48]):

[48] … A complaint must state a particular grievance or finding of fault. A complaint should be distinguished from a mere request for assistance: see Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347; [2005] FCAFC 99 at [36]–[37].

[626]         As held in Ratnayake, it is, in my view, unnecessary that the employee, in making a complaint that he or she is able to make, expressly identifies the communication as a complaint or grievance, or uses any particular form of words. It is necessary only that relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.

[627]        Whether an employee has made a complaint is a matter of substance, not form, which should be determined in the light of all the relevant circumstances. It does not depend solely on the words used. An employee’s communication of a grievance or accusation could amount to making a complaint within the meaning of s 341(1)(c)(ii) despite an express disavowal of any intention to complain if a reasonable observer would conclude from the employee’s words and conduct in the circumstances (including the nature and gravity of the grievance or accusation) that he or she intended to bring the grievance to the employee’s attention for consideration or other appropriate action.

  1. These passages were referred to by Bromberg J in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, where his Honour stated at [13]:

The natural meaning of the term “complaint” in the context in which it is used in s 341(1)(c) connotes an expression of discontent which seeks consideration, redress or relief from a matter in relation to which the complainant is aggrieved. A complaint is more than a mere request for assistance and must state a particular grievance or finding of fault: Shea … at [579]-[581] (Dodds-Streeton J) and the authorities there cited. Whether an employee has made a complaint is a matter of substance, not form, and is to be determined in light of all the relevant circumstances, it being only necessary that the relevant communication, whatever its form, is “reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”: Shea at [626]-[627] (Dodds-Streeton J).

  1. The term “adverse action” is defined in s 342. It is sufficient to refer to Item 1 of s 324(1):

342  Meaning of adverse action

(1)          The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item Column 1
Adverse action is taken by …
Column 2
if …
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c)  alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.

 

  1. The applicants pleaded that the first warning constituted adverse action within the meaning of Item 1(b) or (c) of s 342(1) of the FW Act. In closing submissions, it was clarified that reliance was not placed on para (b). Submissions were only advanced in respect of para (c). The applicants pleaded that the “adverse action” was taken against Dr Anderson for reasons which included that Dr Anderson had made the first complaint and the second complaint or either one of them.
  1. It follows from the terms of ss 340 and 341 and the way the applicants have put their case, that the applicants bear the onus of establishing that:

(1)          Dr Anderson had a “workplace right”, namely that he was able to make a complaint in relation to his employment;

(2)          Dr Anderson exercised the workplace right, that is, that what he did in fact constituted the making of a “complaint” or “complaints”; and

(3)          the University took adverse action by altering Dr Anderson’s position to his prejudice.

  1. If the applicants discharge the onus of establishing these matters, then – by reason of ss 360 and 361 of the FW Act – the University bears the onus of proving that the adverse action was not taken because of the exercise of the identified workplace right or for a reason which included that reason: Perez v Northern Territory Department of Correctional Services [2016] FCA 476 at [51]–[54]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [41]–[44], [56]–[59], [104], [140]; Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 [27]–[28]; Short v Ambulance Victoria (2015) 249 IR 217 at [54]–[55].
  1. Sections 360 and 361 of the FW Act provide:

360  Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361  Reason for action to be presumed unless proved otherwise

(1)          If:

(a)          in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)          taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)          Subsection (1) does not apply in relation to orders for an interim injunction.

  1. In Cummins at [83], Bromberg J explained:

The statutory presumption created by s 361 places an onus on a respondent to establish the fact that the reason alleged was not a reason which actuated the adverse action taken by the respondent: BHP Coal at [192]. Given that, for s 340(1) to be engaged, the reason which actuated the adverse action must be a “substantial and operative” reason, the respondent’s burden is that of negating the alleged reason as a “substantial and operative” reason for the taking of the adverse action in question. A failure to displace the statutory presumption enables the allegation by an applicant that the adverse action was taken for a particular reason to stand as sufficient proof of the fact: Short at [56].

F.2.2   Have the applicants established that Dr Anderson had and exercised a “workplace right”?

  1. The evident object of s 340 of the FW Act is to provide an employee with protection, additional to any protection offered under the general law, against adverse action because he or she has exercised a “workplace right”.
  1. It has been said that the additional protection is broad, but it has limits, including those which arise by the definition in s 341 of “workplace right”: PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at [10]. It has also been said that the phrase “is able to make a complaint or inquiry” in the definition of “workplace right” in s 341(1)(c)(ii) of the FW Act operates to limit the scope of the protection provided in that the complaint “must be founded on a source of entitlement, whether instrumental or otherwise”: Shea at [29(f)], [625]; PIA Mortgage Services at [11] to [19].
  1. In Shea, at [29(f)] and [625], Dodds-Streeton J stated:

[29]         I concluded, for reasons set out below, that in the context of s 341(1)(c)(ii) of the [Fair Work] Act: …

(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

[625]        In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

  1. The Full Court in PIA Mortgage Services at [11] and [12] approved what was said by Dodds-Streeton J in Shea at [625]. The Full Court stated that:

(1)          the complaint “must be underpinned by an entitlement or right to make a complaint”; s 341(1)(c)(ii) does not capture any complaint by an employee concerning an entitlement or right related to his or her employment: at [13];

(2)          there must be an identifiable source of that entitlement or right: at [14];

(3)          for the purposes of s 341(1)(c)(ii) there were three obvious potential sources of an employee’s ability to make complaints which fall outside s 341(1)(a), (b) and (c)(i) but within (c)(ii): legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law: at [16];

(4)          under the general law, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment; this ability is “underpinned by” the right to sue in respect of the breach and extends to making a verbal or written complaint to the employer about an alleged breach of the contract: at [19].

  1. The conclusion in Shea at [29(f)] and [625] and the reasoning in PIA Mortgage Services was carefully considered in Cummins.  If it had been necessary, Bromberg J would have declined to follow PIA Mortgage Services on the basis that it was plainly wrong: at [67]. It was, however, not necessary because the appeal was allowed on other grounds. Mortimer J agreed with Bromberg J on this point: at [209].
  1. Bromberg J accepted that the provision was not intended to provide protection from retribution for any and all complaints.  The protection was from retribution in respect of complaints about the employee’s employment or the matters that relate to it.  His Honour stated at [14]:

As Dodds-Streeton J observed in Shea at [619], the relevant object of s 340 (in combination with s 341(1)(c)) “is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment”. The protection from retribution is not a protection provided for any and all complaints. What is protected is the right of an employee to complain about the employee’s employment and the matters that relate to it. That seems to be based on the rationale that an employee should be entitled to advocate in support of her or his interests in the employment without fear of retribution for having raised those interests with her or his employer or another person or body to whom the employee has turned for assistance.

  1. Bromberg J did not consider it was necessary for the ability to complain to be sourced in some identified right or entitlement to complain, stating at [19]:

In my view, for the purposes of s 340(1)(c) of the FW Act, a complaint need not be sourced in the right or entitlement of the employee to make the complaint or be about a right or entitlement held by the employee. The imposition of either limitation is not supported by the text, context or purpose of the provision.

  1. His Honour proceeded to explain that conclusion by reference to the language and history of the provision, including a review of relevant authorities: at [20] to [66]
  1. Anastassiou J considered that the Court should follow PIA Mortgage Services in relation to the criterion referred to by Dodds-Streeton J in Shea at [29(f)]. His Honour considered PIA Mortgage Services had not been shown to be plainly wrong: [214], [291].
  1. As a single judge, I am bound by PIA Mortgage Services and have to follow it irrespective of my view about whether it was plainly wrong on this point.  It follows that there is no point in me expressing a view about it.  Nevertheless, the existence of the debate and the carefully reasoned decision of Bromberg J in Cummins, suggest that I should also consider the position on the basis that PIA Mortgage Services was wrongly decided.  For the reasons which follow, the result would not have been different if Dr Anderson only had to show that the complaints were “in relation to” his employment and did not need a relevant entitlement or right to complain in the sense indicated in PIA Mortgage Services.
  1. In its closing submissions, the University contended that the applicants had not identified the source of the entitlement of the right to complain.  Cummins had not been delivered before the conclusion of the hearing and, accordingly, was not addressed by the parties.  In closing reply submissions, the applicants identified the source of the entitlement as partly the Code of Conduct, partly the Complaints Policy and that it was also “underpinned by the contract of employment”.  When asked whether it was necessary to identify more specifically what gave rise to the right to complain, it was submitted that it was not necessary to be specific.  If PIA Mortgage Services was correctly decided, and I am bound to proceed on the basis that it was, this submission is not correct.  It may be accepted that it is not necessary for the employee, when making a complaint, to identify the source of the right or entitlement to complain.  However, if PIA Mortgage Services is correctly decided, it would be necessary to identify the source of the contended right in proceedings which allege a contravention of s 340. Ultimately, little turns on this. The contraventions are not made out even if it is unnecessary to establish that the asserted complaints were “founded on a source of entitlement” contrary to what was said in PIA Mortgage Services.”

 

National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 delivered 26 November 2020 per Thawley J