General protections; when is a complaint or enquiry a workplace right?

The general protections under the Fair Work Act include a prohibition against the taking of adverse action against a person because he or she has exercised workplace right. Sec 341 if the Fair Work Act provides that a person has a workplace right (if the person is an employee) if the person is able to make a complaint or enquiry in relation to his or her employment.

The issue of whether an employee has exercised a workplace right is often tricky especially where the complaint or enquiry is made informally and is of a non adversarial nature. What is required for such a complaint or enquiry to constitute the exercise of a workplace right? Here is the answer.

“Returning to the criteria from TRUenergy about the legal characterisation of a “complaint” for the purposes of s 341(1)(c) of the FWA, in my view the first employment complaint was a “complaint” for the purposes of that section. It seemed to me that on 17 July 2014 Mr Keenan communicated, as a matter of substance, a grievance about the difficulty he had in working with Ms Baldota. It also seemed to me that Mr Keenan genuinely held that grievance and he considered it to be a valid grievance. It also seemed to me that Mr Keenan’s grievance was made in good faith and for a proper purpose.

In written submissions on behalf the respondent dated 13 October 2017, it was contended that Mr Keenan’s complaints did not directly or indirectly raise any issue with a sufficient nexus to the terms and conditions of his employment.  Counsel for the respondent argued in paragraph 31 of those submissions that considered objectively, the statements made by Mr Keenan did not exhibit the characteristics of a complaint about his employment or the terms and conditions under which that employment was to be performed.  Counsel further argued that Mr Keenan’s first complaint concerned the conduct of one or more of his colleagues and that in making the first complaint (as indeed all complaints) Mr Keenan’s purpose was not to seek the respondent’s consideration and formal redress but merely was to express his frustration or to convey his state of mind.

I disagree.

As the respondent made the same point in relation to each of Mr Keenan’s five employment complaints, many if not all of the comments below have application in relation to all of Mr Keenan’s employment’s complaints.

Taking Mr Keenan’s communications about Ms Baldota’s and his working relationship and the difficulties occasioned to him by her attitude, in my view that squarely went to a matter having a direct nexus to Mr Keenan’s terms and conditions.  He was entitled to expect cooperation from those whose job it was to support him.  Mr Keenan was entitled to enjoy a workplace where he was allowed to perform his role unimpeded by lower-level functionaries.  He was entitled to be given an environment in which his support staff actually supported him, rather than hindered him.  I do not accept the respondent’s argument to the effect that an applicant such as Mr Keenan must identify a specific provision in a letter of engagement or a clause in an employment contract and demonstrate that the complaint bears a direct or indirect nexus to such a term before the applicant can assert that a complaint arises.  Conceptually, where (as here) an applicant is hindered in the overall discharge of his role by acts referrable to some other employee leading to the applicant making a complaint about that issue, then directly as well as indirectly that applicant is exhibiting a grievance about the terms and conditions of his employment.  In other words, he is voicing a grievance that he is unable to perform his employment to the best of his ability by reason of the impediment orchestrated by the acts of that other person (here, Ms Baldota).  I was unable to see how the situation could be otherwise.  I do not accept that it is a correct characterisation of the matter as being merely the expression of Mr Keenan’s frustration.  He may well have been frustrated that his efforts to perform his role to the best of his ability were being thwarted by the actions of Ms Baldota.  It would be surprising if he were not so frustrated.  And while I accept that Ms Baldota’s conduct may have been the ultimate source of her interaction with Mr Keenan that led to his communication on 17 July 2014 conveying his grievance, in my view Mr Keenan’s communication of his grievance was not solely to convey his state of mind nor was he communicating a grievance about the conduct of his colleagues.  The communication between Mr Keenan and Ms Elderbrant on 17 July 2014 had at its core Mr Keenan’s contention that he was being impaired in his ability to perform his employment contract.  That was a long way from the way the respondent’s characterised of the first employment complaint.

In those circumstances, I find that the first employment complaint was a “complaint” properly so called for the purposes of s 341(1)(c) of the FWA and for the purposes of the test prescribed by Dodds‑Streeton J in TRUenergy.  That is because the 17 July 2014 communication –

  1. a)was a communication that as a matter of substance conveyed a grievance;
  2. b)was a grievance Mr Keenan considered to be valid; and
  3. c)was a grievance made in good faith and for a proper purpose

The first employment complaint was therefore proven to the requisite degree.”

Keenan c Cummins South Pacific Pty Ltd (2018) FCCA 2600 delivered14 September 2018 per WilsonJ