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Perspective

When is a Complaint a Workplace Right?

Andrew Douglas
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When an employee raises a complaint with an employer about how they are being treated, it is a workplace right protected under the ‘General Protections’ (Adverse Action) provisions of the FWA. The employer is prohibited from taking any adverse action (such as termination, demotion, discipline) because of that complaint. The complaint does not have to be a formal complaint, but it must:

  1. Involve contractual arrangements or statutory entitlements Harrison v In Control;
  2. Be genuine and not made for ulterior purposes (Shea v TruEnergy) and
  3. Must have particulars of what is complained of (when, who and what happened) rather than be impressionistic (he always treats me badly) Bunn’s case.

But a person who complains to another person (not the employer) about the employer’s conduct is NOT workplace right in the latest case on the issue of Coling v Programmed. Mr Coling worked for a labour hire business, Programmed. He was located at a host site of Reece. He complained to Reece employees about both Programmed and Reece, and Reece made it plain they didn’t want him back as he was not a team player. Reithmuller J made it clear this was not a workplace right that triggered jurisdiction for an adverse action claim.

Interestingly, such comments about an employer, to a third party client would be a clear breach of the employee’s common law duty of acting in the best interests of the employer (Duty of Fidelity) and could have opened up a termination for serious misconduct as defined under Reg 1.07 of the Fair Work Regulations.

Andrew Douglas
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