In a recent decision the Full Bench of the Federal Court refused to restrict the definition of a workplace right under the General Protections provisions in the Fair Work Act 2009 (Act). This means that there will continue to be a broad application of what constitutes a workplace right.
Employers in the agribusiness industry need to be fully aware of this.
The General Protections provisions in the Act provide that adverse action, which includes dismissal or any other prejudice in the course of employment, cannot be imposed upon an employee by reason of their having and/or exercising a “workplace right”. In turn a workplace right is defined to include, for example, the exercising of a right under a workplace law or the ability to make a complaint or inquiry in relation to the employment.
How far do these provisions extend?
There have been a growing number of decisions exploring the scope of these provisions given that any breach exposes the employer (as well as individuals culpably involved in the breach) to civil penalties and also the employer to uncapped compensation orders.
Some of the existing issues that courts are yet to finally determine include:
- Whether the ability to make a complaint or inquiry must be derived from an actual entitlement under a workplace instrument, including an employment contract.
- How strong the required connection between the complaint and the complaint maker’s employment needs to be.
These types of questions are important because employees make all types of complaints or inquiries during the course of their work. For example, if an employee complains generally about the conduct of their manager or the strategy or direction of the business and is then retrenched from their employment could they raise a claim under these provisions? In these circumstances, the question is whether the employee can allege that the fact of their complaint was the exercise of a workplace right under the Act. If so, the employer will have the onus to prove that the fact of the complaint was not a reason for the decision to retrench the employee. In this particular example, the position would most likely be that without some particular connection back to the employee’s employment, the complaint was not in relation to their employment but more generally the conduct of the business. If so, the claim could not be made out.
The General Protections provisions under the Act provide for a reverse onus of proof placed on employers for these claims. This means that under these provisions, once the employee makes the application, it is up to the employer to disprove that the alleged “unlawful” reason had anything to do with the adverse action taken against the relevant employee.
The scope of these provisions was recently considered by the Full Bench of the Federal Court in Shea v Energy Australia Services Pty Limited. In these proceedings, Ms Shea argued that her complaint that she had been subjected to sexual harassment and then a further complaint concerning the outcome of the investigation into the sexual harassment complaint were reasons why she was later made redundant in a group restructure. In the initial decision, the Court found that these complaints were not a reason for the termination of her employment and that there had been a genuine redundancy for operational reasons. However, the Court also held that in order for a “complaint” to fall within the bounds of the General Protections provisions in the Act, it must be “genuine”. This would then require the Court to consider first whether any alleged “complaint” was genuine prior to determining whether or not the onus of proof had shifted to the employer to prove the reasons for any adverse action.
Full Bench says no such restriction
The Full Bench rejected Ms Shea’s appeal on a range of grounds and was therefore not required to decide specifically whether the trial Judge was correct in saying that there was a requirement for any “complaint” to be “genuine”. However, it did say that it was of the view there should be no such restriction on the jurisdiction and that there is no need for a Court to decide whether or not a particular complaint is “genuine”. All that is required is for the Court to determine that there is a relevant complaint and then for it to determine whether a breach of the Act has occurred having regard to the reverse onus of proof.
The Full Bench did not wish to place any constraints on the operation of the General Protections provisions of the Act but wished to ensure that they had a wide operation. This decision further supports a broad approach being taken to the outstanding issues detailed above.
This decision does not mean that the genuineness or otherwise of a complaint has no role in a Court decision. The genuineness of any complaint will go to whether it in fact was a reason for the adverse action and therefore, whether the employer has met its burden of proof. It still has a critical role to play as part of a Court determining the actual reason for any adverse decision but it will not be a separate threshold matter that a Court will be required to determine.
Implications for employers
This decision together with earlier decisions supports the Courts taking a broad approach to what will qualify as a complaint or inquiry in the exercise of a workplace right, in order to invoke the protections under the General Protections provisions of the Act. This means that employers need to be very careful in the following matters:
- identifying when an employee has made a complaint or inquiry;
- being careful to ensure that any process leading to a decision adverse to the interests of a particular employee is not influenced by any such complaint or inquiry either expressly or subconsciously;
- ensuring an individual is identified as the decision maker and can speak to the information they had regard to and the reasons for the decision; and
- ensuring there is a structured decision making process, so that the employer is ready to meet any allegation that the adverse decision was because of, or influenced by, the workplace right exercised by the relevant employee.
Author: Stephen Trew
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