06 November 2018
Is dismissing a complaining employee flying too close to the sun?
Greek mythology tells us a story of a boy, Icarus, stuck on an island with his dad. Luckily, Icarus’s dad knew how to make wings out of wax and feathers, allowing Icarus to fly away and be free. In a sudden turn of events, Icarus flew too close to the sun, his wax-wings melted, and … well… it’s not a happy ending. Icarus’s story presents a lesson to employers on how to manage a complaining employee.
Workplace cohesion and respect is valued as part of an organisation’s culture. Dissent and disrespect is frowned on when it threatens cohesion, respect and unity. However, employees have the workplace right to complain in relation to their employment and a complaint need not always be viewed as dissent and disrespect.
But what happens when an employee openly criticises the way you run your business, or even directly criticises you as a person? A decision of the Federal Circuit Court in Fatouros v Broadreach Services Pty Ltd  FCCA 769 has given employers cause to pause before ‘pulling the trigger’.
Mr Spiros Fatouros was employed as a senior consultant and project manager at Broadreach Services Pty Ltd. One of the projects that Spiros managed had stalled because Broadreach’s new CEO would not authorise a payment to a sub-contractor. Spiros felt that was not right.
After complaining to the CEO that he was “really disappointed” by how she had handled the situation, Spiros sent an email to two Executive Advisors of Broadreach to say: “sadly I don't believe Marie [the CEO] is acting in the highest and best interests of the business”. Ouch. Spiros concluded his email: “From a personal standpoint, if disciplinary action is the follow-on effect of my actions here then so be it. However, please be assured, my intent is purely driven by the interests of the business, its employees, our customers and suppliers, all of whom we have obligations to that are presently not being met”.
Unsurprisingly, the CEO didn’t love that Spiros had questioned her motives. She fired him. The termination letter merely said that one of the reasons for Spiros’s dismissal was because of his email to the Executive Advisors. Did Marie fly too close to the sun?
Spiros commenced proceedings against Broadreach under the general protections provisions of the Fair Work Act 2009. Under those provisions, it is unlawful for an employer to take adverse action (including dismissal) against an employee if one of the reasons for that action is a complaint or enquiry that the employee has made in relation to their employment.
Was Spiros complaining about his employment, or merely whinging about a decision made by his boss?
What is a complaint in relation to employment?
What if I made a complaint about the lack of Iced VoVos in the office kitchen? Or what if I complained about a colleague that blabbed about The Bachelor before I have had a chance to watch the latest episode? Would these complaints be about my employment? What if I told my boss that I thought he was a jerk? What about if I also complained about my workload at the same time? Am I protected by the fact that I simultaneously complained about my workload?
An issue in the Fatouros proceedings was whether the email was a complaint by Spiros ‘in relation to his employment’. The email was about some contractors and their treatment expressed in derogatory terms of his boss. But was it a complaint in relation to his employment?
Not all communications or expressions of grievance made at work would necessarily be a complaint. Nevertheless, the Courts have held that the complaint only needs to have an indirect link to the employment to be within the Fair Work Act protections: Walsh v Greater Metropolitan Cemeteries Trust (No.2)  FCA 456 at . As such, raising issues about probity and questioning decision-making may be a complaint in relation to employment if the subject matter of the complaint has potential implications for the employment of the complaining employee.
Spiros’s email was a complaint and related to his employment as “his raising of issues regarding the timely payment of subcontractors in each of the relevant emails was something that arose directly out of the performance of his work and impacted on him as an employee”, the Court held.
So, did Marie dismiss Spiros because of his complaint? Yes, she ‘flew too close to the sun’. Firstly, the termination letter did not limit the reason for termination to the inappropriateness of the comments about the CEO’s motives. Instead, it referred simply to the email as a reason for dismissal. Secondly, the CEO failed to give evidence at the hearing to explain her reasons. As a result, the Court ordered Broadreach to pay compensation, penalties and interest of over $150,000; more than a year’s wages.
What can employers learn
Care needs to be taken when flying close to the sun and dismissing a worker in relation to a complaint or grievance they have made.
As the Fatouros proceedings demonstrate the wording that you use in the termination letter is important because that letter will likely be a key piece of evidence to determine the reasons for dismissal.
The lesson is not to avoid discipline merely because a complaint has been made if the conduct is inappropriate, unprofessional and disrespectful behaviour. The High Court of Australia made it clear in Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32 that the enquiry is to find the real reasons for the discipline. Making a complaint does not provide an employee immunity from their inappropriate, unprofessional and disrespectful behaviour.
Broadreach would have also been well placed to deal with the complaint on its merits, separate from the disrespectful remarks made by Spiros. Dealing with a complaint on its merits is usually good evidence that tends to demonstrate the making of the complaint did not motivate any adverse action against the employee.
It is also important to keep in mind that the general protections provisions in the Fair Work Act are not the only laws that protect employees that make complaints. Workplace safety laws provide protection for employees that raise an issue or concern about safety. Federal Parliament is currently considering beefing up the ‘whistleblowers’ protections in the Corporations Act, which will apply to some complaints by employees. There are State laws for public sector organisations allowing protected disclosures and preventing retaliation.
In short, managing a complaining employee is challenging but you need to focus on what is the real issue. You need to accept that employees can complain but the ability to make a complaint is not a licence to be inappropriate, unprofessional and disrespectful. Give us a call if you’d like some help.
Authors: James Mattson & Ryan Murphy