Workplace rights; making a complaint

The general protections under the Fair Work Act provide, amongst other things, that it is unlawful for a person to take adverse action against another person because that person has exercised a workplace right.

Sec 340 provides that a person has a workplace right if the person is able to make a compliant or inquiry (if the person is an employee) in relation to his or her employment.

There has been some controversy about how formal the complaint needs to be to activate the protections and the following extract from a recent Federal Circuit Court decision identifies the formal elements.

“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.”

Keenan v Cummins South Pacific Pty Ltd (2018) FCCA 2600 delivered 14 September 2018 per Wilson J