General protections; what is a workplace right?

Currently, there is a legal and judicial controversy as to what constitutes a workplace right for the purposes of the general protections of the Fair Work Act. On the one hand it is often contended that a workplace right exists if a complaint or enquiry is made about a workplace issue and that it is not necessary that there be a formal instrument or recognition of such a right for it to satisfy the requirements of the Fair Work Act.

On the other hand there are those who argue that a workplace right for these purposes does not exist unless it is formally conferred upon he or she who seeks to exercise it by a formal instrument such as a contract or employer policy.

Here is the issue at play in the Federal Circuit Court, although you will need to be the judge of whether the reasoning resolves the issue for you.

  1. “The Court accepts that the October Email and the repetition of the substance of the complaint to Ms Yun constitutes a complaint “in relation to” Mr Batista’s employment. This arose directly from Mr Batista’s workplace. The essence of Mr Batista’s allegation was that he was required to work in a workplace which he perceived to be characterised by harassment: Regulski v Victoria [2015] FCA 206 at [162]-[163].
  2. The Court also accepts that the complaint made in the November Discussions that customers were ridiculing Mr Batista was “in relation to” Mr Batista’s employment. It related to a grievance that arose directly from Mr Batista undertaking his employment role.
  3. The basis of Wells Fargo’s argument is that the “complaints” that Mr Batista made were not founded on a source of entitlement. That is, for a complaint to be a “workplace right” an individual must be “able to” make the complaint in relation to their employment. The ability to make a complaint is not at large.
  4. Recently, the Full Court of the Federal Court in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 at [28] confirmed the statements of Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 at [625] (“Shea”) that to be a “workplace right” the complaint must be founded on an entitlement (such as, in a contract or instrument). Hence, the ability to make a complaint derives from a source or right of complaint, not just the general capacity to do so.
  5. Here, Mr Batista (despite having legal assistance when drafting the Amended Statement of Claim) has not pleaded the source of the entitlement to complain. Further, Mr Batista’s submissions do not address this issue.
  6. The October Email states as follows:

Talena, if this keeps going, I will be logging an official complaint to the US via the portal or whatever means they have.

As mentioned previously the units were paid, I sighted the payment details at the dealership. In the past I have not had to escalate anything that is paid. Has everyone else had to escalate audits were dealers have paid for units, according Henry he hasn’t either.

I now consider this a form of harassment given the past emails. I am keeping and logging every email going forward.

  1. Mr Batista repeated these allegations and complaints to Ms Yun in February.
  2. Given the subject matter, the Court will consider these two “complaints” together.
  3. In Shea, (at [640]), it was found that the Equal Opportunity Employment Policy of the respondent, which was incorporated into the applicant’s contract of employment, constituted an “instrumental” basis for the right to make a complaint about the sexual harassment of the applicant by another employee. That is, the policy of the employer in Shea entitled the employee to make a complaint.
  4. Mr Batista’s employment contract provided as follows:

16           Company Policies

16.1         Unless otherwise expressly stated in a Company policy, plan, procedure or this Agreement, any policies, plans or procedures issued by the Company will not form part of the Employee’s Agreement, do not have contractual effect and are not binding on the Company. To the extent that a policy, plan or procedure of the Company requires the Employee to do or refrain from doing something, it constitutes a direction from the Company with which the Employee must comply.

16.2         The Employee must comply with the employment policies, plans and procedures and codes of conduct of the Company as varied by it from time to time, including without limitation, the:

(a)    Handbook;

(b)    Code of Ethics and Business Conduct;

(c)     Information Security Policy; and

(d)    Privacy and Solicitation Policy pertaining to customers and prospects.

  1. Here, the Court has no policies before it that suggest that Mr Batista had an entitlement to raise his complaint. The October Email suggests that there was, perhaps, a “right” to complain as Mr Batista refers to an “official complaint to the US via the portal”. However, cl.16.1 of the employment contract suggests that any policy which may be relevant to the “ability” of Mr Batista to “complain” about the matters he pleads is, in any event, a “direction” and may not form part of a contractual or instrumental bases of entitlement.
  2. Overall, the Court is satisfied that the complaints made by Mr Batista were the exercise of a workplace right. The October Email alludes to an ability to make a complaint and although the October Email may not have been the formal mechanism for that right, the right nonetheless appears to exist. Mr Batista alludes to an “official complaint” via a “portal”. This suggests that an employee is “able to” make a complaint.
  3. Further, the Court does have before it some evidence that Mr Batista contacted the “Ethics Line” and that Mr Batista (after his dismissal) contacted the Ethics Line to report an “incident”. This leads the Court to believe that there was a “right” to complain. Again, notwithstanding that Mr Batista may not have adopted the formal process of raising his complaint or used the Ethics Line to make the complaints previously, the right nonetheless appears to arise.
  4. It is also the case that an investigation into Ms Yun’s allegations was undertaken and a resolution was provided in relation to the “complaint”, or “concern”, about bullying and harassment. The allegation was again investigated by Ms Yun in the course of the Investigation. Had Mr Batista not had a right to complain about these matters, they would have been investigated. The Court is prepared to accept that there was a “Grievance Process” or an ability and right to complain about the alleged bullying and harassment.
  5. As for the complaint Mr Batista made about customers ridiculing him, it is difficult to ascertain whether there was a mechanism that would have allowed Mr Batista to be “able to” make a complaint of this sort. The Ethics Line may have provided such an avenue. In the circumstances, the Court will consider the complaint about customers ridiculing Mr Batista with the complaints made in relation to Ms Rhodes. They were, in effect, an allegation of mistreatment.
  6. The Court is satisfied that Mr Batista exercised a workplace right when making the complaints about bullying and mistreatment.”

 

  1. BATISTA v WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD (No.2) [2020] FCCA 829 (15 April 2020) (Judge Kendall)