By Jack de Flamingh and Zack Trumper -
Snapshot
- Two recent judgments of the Federal Court provide greater clarity as to what types of complaints or inquiries constitute protected workplace rights under the general protections provisions of the Fair Work Act 2009 (Cth).
- The reach of the protection extends only insofar as the relevant complaint or inquiry is underpinned by a right or entitlement, and there must be an identifiable source of that right or entitlement.
- The requirement to have an identifiable source of an entitlement significantly constrains the scope of possible actionable inquiries for prospective employees.
Under the general protections provisions of the Fair Work Act 2009 (Cth) (‘FW Act’), employees are protected from adverse action if they exercise a ‘workplace right’, which may include making a complaint or inquiry in relation to their employment (s 341(1)(c)(ii)). The protection has oft been litigated since it was introduced in 2009 and a considerable degree of uncertainty has persisted about the full reach of the protection.
On a narrow view, the right or entitlement underpinning the complaint or inquiry must have an identifiable source that enables the complaint or inquiry to be progressed. On a broader view, the protection may apply even where an employee’s complaint or inquiry was simply in the nature of a statement or passing comment in connection with their employment. Within these two views lies an impossible number of examples of conduct that could (or could not) constitute a complaint or inquiry in relation to employment.
Two recent Federal Court decisions shed further light on the debate. Notwithstanding a dissenting judgment, the decisions advance the prevailing view that while the scope of the protection is broad, there still needs to be an identifiable source for the complaint.
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
The facts are messy, but can be shortly stated. Mr King left his employment at another financial institution to become CEO at PIA Mortgage Services Pty Ltd (‘PIAMS’) under a five-year, fixed term employment contract. As is common, the employment contract could be terminated summarily which, on its terms, included for Mr King’s unauthorised absence of two or more days, and an inability to achieve specified business objectives (after being provided with two months’ notice of the concerns).
Part of Mr King’s new role involved the management of a mortgage broking business, Zenik Finance Solution Pty Ltd (‘Zenik’). Within a short period of signing the contract (and before commencing the role in October 2016), Mr King was fielding complaints about the conduct of the broking practices at Zenik. Six months later, in March 2017, Zenik lost its Australian Credit Licence. This left PIAMS without a mortgage broker to secure finance for its clients.
On 3 April 2017, Mr King met the sole director and shareholder of PIAMS, Mr Wang. In that meeting, Mr Wang proposed to ‘park’ the mortgage broking aspect of the business, and offered to terminate Mr King’s employment contract on the provision of four months’ notice.
