When is a complaint or inquiry ‘able’ to be a workplace right?

The Fair Work Act provides employees with a workplace right to make complaints or inquiries about their employment. However, the courts have expressed divergent views on when a particular complaint or inquiry will fall within the scope of a ‘workplace right’ for the purpose of the FW Act.

Employers previously took comfort from the Full Federal Court’s decision in Alam v National Australia Bank[1] (Alam) which endorsed a seemingly narrower approach to the types of complaints or inquires that are protected. While a recent decision of the Federal Circuit and Family Court of Australia highlights that the scope of a workplace right remains unsettled, the decision is not yet cause for alarm.

Conflicting approaches – when an employee ‘is able to’ make a complaint or inquiry

Employees are protected from adverse action being taken against them by employers where they have made a complaint or inquiry relating to their employment within the meaning of s 341(1)(c)(ii) of the FW Act. However, the inconsistent application of this provision has raised questions as to precisely which complaints are worthy of protection, resulting in uncertainties for employers.

Some Federal Court decisions[2] have emphasised that the words ‘is able to’ imply that there must be some complaints or inquires that employees are not able to make, leading to the view that the complaint or inquiry must be underpinned by a source of ‘entitlement or right’ such as a contract of employment, award or legislation.

Contrastingly, other Federal Court decisions[3] have broadly interpreted the meaning of a ‘workplace right’ in finding that the complaint or inquiry need only have an ‘indirect nexus’ (ie be either directly or indirectly related to) the employment relationship to come within the scope of the FW Act.

In PIA Mortgage Services Pty Ltd v King[4] (PIA Mortgage) the majority of the Full Federal Court (Justices Rangiah and Charlesworth) agreed that not every complaint will fall within the scope of a ‘workplace right’ for the purpose of the FW Act and that the words ‘is able to’ refer to an entitlement or a right. However, the majority held that the entitlement or right is not confined to rights, rules and responsibilities under, or arising from, workplace laws and workplace instruments and includes other sources such as legislative provisions that are not workplace laws, as well as contractual terms providing a right to make complaints and the general law.

However, in Cummins South Pacific Pty Ltd v Keenan[5] (Cummins South Pacific), Justice Bromberg (with Justice Mortimer agreeing) rejected the reasoning in PIA Mortgage and stated:

‘… there is no textual or contextual basis for construing s 341(1)(c)(ii) as requiring a complaint or inquiry to be underpinned by a right or entitlement to make it, whether sourced in the employee’s contract or sourced elsewhere.’

A narrower approach – Alam v National Australia Bank

Ms Alam was employed by NAB as an Associate Financial Planner at its Dee Why Branch in Sydney for just over three months before she was dismissed in January 2019.

Ms Alam alleged that, in dismissing her, NAB had taken adverse action against her by reason of her exercise of workplace rights in relation to making complaints or inquiries in relation to her employment. She sought an order for her reinstatement, orders for payment of lost salary and damages for non‑economic loss, the imposition of a pecuniary penalty, and other relief.

NAB on the other hand asserted that it had terminated Ms Alam’s employment because of evidence that she had, in breach of its policies and practices, sent an email from her work email address to her personal email accounts which attached confidential customer information and because she had not provided an adequate explanation for doing so.

The Full Federal Court (Justices White, O’Callaghan and Colvin) acknowledged that the scope of a ‘workplace right’ had been the subject of divergent views. After considering the various authorities, their Honours held that it should follow the earlier unanimous decision of the Full Federal Court in Cigarette & Gift Warehouse Pty Ltd v Whelan[6] (Whelan) with that decision being largely consistent with the approach of the majority in the later decision of PIA Mortgage.

The Full Federal Court stated that while there is some difference between the principles endorsed by the Full Federal Court in Whelan and the approach of the majority in PIA Mortgage, any difference in the application of those two approaches is unlikely to be significant.

The Full Federal Court emphasised the importance of the underlying principle of comity, where the Court will generally follow one of its earlier decisions unless it considers that the earlier decision is wrong. In deciding to follow the decision in Whelan, the Full Federal Court found that the reasoning of Justices Rangiah and Charlesworth in PIA Mortgage was part of the rationale for the decision in that case, whereas the reasoning of Justice Bromberg in Cummins South Pacific was said in passing and therefore not binding.

Further confusion – El-Hajje v Rissalah College Limited

In the more recent decision of El-Hajje v Rissalah College Limited[7] (El-Hajje), Judge Manousaridis was required to consider whether s 341(1)(c)(ii) requires a person to have an identifiable entitlement to make a complaint or inquiry in relation to their employment in the context of a strike out application.

Rissalah College submitted that because Mr El-Hajje had failed to plead how he was ‘able to’ make the complaints or inquiries alleged, Mr El-Hajje had failed to exercise a ‘workplace right’ within the meaning of the FW Act.

His Honour acknowledged the tensions between the authorities in Alam and PIA Mortgage in stating:

[23]      I do not interpret the Full Federal Court in Alam as having endorsed the view that “is able” in s 341(1)(c)(ii) of the FW Act necessarily requires that such ability be underpinned by an entitlement or legal right. I interpret the Full Federal Court either as having decided that “is able” in s 341(1)(c)(ii) of the FW Act does not necessarily require that an ability to make a complaint or inquiry in relation to a person’s employment be underpinned by an entitlement or legal right, or as having decided that it is an open question, to be determined in an appropriate case, whether an ability to make a complaint or inquiry in relation to a person’s employment must be underpinned by an entitlement or legal right.

His Honour concluded that it is at least reasonably arguable that it is not essential for there to be an identifiable entitlement to make the complaint or inquiry for the purpose of s 341(1)(c)(ii) of the FW Act as such it is at least reasonably arguable that it is not necessary for an applicant to plead facts on the basis of which an entitlement to make the complaint or inquiry can be identified.

His Honour further held that even if it is essential that there exists an identifiable entitlement to make the complaint or inquiry, it is at least reasonably arguable that such an entitlement will be implied on the basis that ‘under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law’. As such, it is at least reasonably arguable that it is not necessary for an applicant to plead facts on the basis of which an entitlement to make the complaint or inquiry can be identified, but rather it is for the respondent to plead that the applicant is not permitted or is otherwise restricted from making a complaint or inquiry in relation to their employment.