03 November 2021

Clarity at last! When an employee’s complaint qualifies as a workplace right

The Fair Work Act 2009 prohibits employers from taking “adverse action” against an employee (including dismissal) because the employee has, or has not, exercised, or proposes to exercise a “workplace right”.

Among other things, an employee has a “workplace right” if they are “able to make a complaint or inquiry in relation to his or her employment”.

On first read, it may seem an employee has a workplace right to complain about anything to do with their employment. 

Yet the words “is able to make” have not been judicially accepted as having certain meaning and purpose.

Thanks to the recent decision of Alam v National Australia Bank Ltd [2021] FCAFC 178, there is clarity.

What happened in Alam?

The employee, Ms Alam, alleged she was dismissed because she made many complaints to her employer over several months.

Ms Alam’s complaints were broad sweeping, generally concerning issues with her onboarding, treatment by her manager and colleagues, workload, performance targets. Her complaints were foreshadowed by her intention to make an anti-bullying claim to the Fair Work Commission.

NAB denied Ms Alam’s complaints were the reason for her dismissal, and asserted the only reason for dismissal was because she sent confidential customer information to her personal email address (and, in doing so, breached the employer’s policy).

Ultimately, NAB’s explanation was accepted by the trial judge. Ms Alam’s dismissal was found to be for lawful reasons.

Ms Alam appealed. She alleged that the trial judge did not properly consider whether out of all the complaints she made, none were a “substantial or operative” reason for the dismissal.

When is an employee “able to make” protected complaints or inquiries?

On appeal, the Court reconsidered if any of Ms Alam’s complaints or inquiries were the kind protected by the Fair Work Act.

The Court’s consideration though was not directed to whether she “complained”. Instead, the Court had to determine whether she was “able to make” all the complaints that she did within the meaning of those words in the Act.

The qualifying words “is able to” make a complaint or inquiry appears to narrow the kind of complaints or inquiries that attract a workplace right.

The Court had previously expressed differing views as to how narrow. The Alam appeal considered how narrow or broad the words “is able to” should be read when considering general protections claims.

Narrow? Broader? Or Broadest? — Differing interpretations

On a narrow view, it had been suggested by the Court that an employee’s ability to make a complaint or inquiry was contingent on a legal entitlement to do so. Thus, an employee would have to identify the source of an entitlement or right to make a complaint or inquiry (for example, a dispute resolution clause in an enterprise agreement).

But this narrow interpretation has not been widely accepted. 

Instead, a broader view has emerged. If the complaint or inquiry relates to an employee’s rights or entitlements (regardless of whether the rights arise under statute, industrial instrument, or contract), then it has been considered that the employee is “able to make” such a complaint or inquiry.

Applying the broader view, it had been found that an employee is “able to make” complaint about a contractual right to a bonus payment — even if the employee cannot identify a specific means to make that complaint. 

Another competing interpretation expands the scope even further. At its broadest, the Court has considered the ability to make a complaint or inquiry may not need to be constrained by the existence of employee’s rights or entitlements. Instead, the words “able to make” should not be read as words of limitation. 

While this reasoning has never been applied to a specific case, it would doubtlessly expand the ambit of claims that could be made (meaning that if the complaint is at all “in relation” to the employment. As Justice Bromberg said, “the actuating circumstance is the fact that the protected person has the ability and not a right or entitlement which has enabled that ability to be held”.

An opportunity to clarify what kind of complaints or inquiries are protected

So which interpretation should be applied? The narrowest? Broader? Or broadest? 

The Court settled on taking the middle-of-the-road interpretation. A complaint that an employee is able to make in relation to his or her employment is not “at large”, but “must be founded on a source of entitlement (whether instrumental or otherwise)”.

For Ms Alam, the matter has been remitted to trial and determination as to the whether the complaints were of kind protected by the Fair Work Act.

For employers, Alam acts as a reminder to tread carefully when disciplining an employee -especially if the employee is making a lot of noise about their employment.

It is crucial that employers carefully document disciplinary processes, and the matters they take into consideration before taking disciplinary action. 

Conflating the reasons for the dismissal with the subject of employee’s complaints - especially when those complaints relate to an employee’s rights or entitlements - could be the employer’s undoing in any subsequent litigation.

Authors: Darren Gardner, Sylvia Moses & Joshua Handley