General protections; what is a complaint?

What is the making of a complaint for the purposes of the general protections?

“The Applicant contends that this “complaint” is caught by the definition in s.341(1)(c)(ii) of the FW Act. The Applicant contends that, by the words that the Applicant did use and by her conduct, she was implicitly making a complaint about a fellow worker. The Applicant contends that this situation is analogous to the situation that obtained in Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 where Judge Riley (at [117]) ruled that what was said by an Applicant in that case amounted to a “complaint”.

In Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271, Dodds-Stretton J said, at paragraph 630, that:

To hold that all conduct and communications come under the aegis of a valid complaint with which they are contemporaneous or associated would effectively prohibit an employer from taking adverse action against an employee for misconduct because it was coupled with a complaint or inquiry that the employee was able to make.  An employee could, for example, make mischievous, baseless and damaging accusations of misconduct in the workplace against other employees in an abusive or threatening manner, yet the employer would be prohibited from taking adverse action to discipline or restrain the complainant, even where necessary to do so in order to protect other employees.  A provision aimed at the protection of workplace rights should not operate to secure immunity from the consequences of misconduct.

When the matter went on appeal, (Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167) the Full Court did not disturb the observations that had been made; however, neither did the Court endorse those sentiments. At paragraph 12, the Full Court said:

Considerable care needs to be exercised before implying into s 341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”. To too readily imply into the language of ss 340 and 341 the necessity for a complaint to be a “genuine” complaint, necessarily would be productive of argument about whether a “complaint” is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a “complaint” should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made. Care should also be taken before construing the term “right” in s 341 in a manner which may have more far-reaching implications for the meaning of that term when it is employed elsewhere in the Fair Work Act. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3-1.

In The Environmental Group v Bowd [2019] FCA 951, Steward J conducted an analysis of the authorities dealing with the notion of a “complaint”. His Honour said, at paragraph 145, that he was:

…not bound to reject the implication drawn by Dodds-Streeton J that only complaints made in good faith fall within s 341(1)(c)(ii). However, such an implication should only be made after exercising, to use the language of the Full Court, “considerable care” and not “too readily”.

His Honour said, at paragraph 148, that:

In my view, for the purpose of construing s 341(1)(c)(ii), there is no reason not to imply a similar limitation, namely that if a complaint is to qualify for protection it should be made in good faith and for the purpose for which the right to make such a complaint was conferred. Parliament could hardly have intended that the maker of a dishonest complaint, or one otherwise made in bad faith, should be entitled to the protections offered by Div 3 of Pt 3-1 of the FW Act…”

SINCLAIR v ALL ABOUT PUMPS & PIPES PTY LTD & ANOR [2020] FCCA 479 delivered 5 March 2020 per Vasta J