Decision sheds more light on the meaning of ‘complaint or inquiry’

November 3, 2021
FCB Workplace Law

A recent decision handed down by the Full Court of the Federal Court of Australia has confirmed that for the purposes of general protections claims under the Fair Work Act 2009 (Cth) (FW Act), the workplace right of being able to “make a complaint or inquiry…in relation to his or her employment” must require that the complaint or inquiry has a source of entitlement at law (and such entitlement is identified in the claim).

The appellant in the case of Alam v National Australia Bank Limited [2021] FCAFC 178, Ms Alam, had been employed by National Australia Bank (NAB) for only three months when her employment was terminated. Ms Alam alleged that the termination occurred because she had exercised a workplace right, being the making of complaints and inquiries and proposing to make an anti-bullying application to the Fair Work Commission. Under s340 of the FW Act, it is unlawful to take adverse action, including terminating an employee, because that employee has exercised or proposed to exercise a workplace right (including making a complaint or inquiry in relation to their employment).

Ms Alam asserted that she had made 12 complaints during her three months of employment, including raising concerns about the conduct of her co-workers, how her performance was being assessed, the allocation of tasks in the workplace, and advising that she was unable complete a particular training module because no account had been set up.

The employer submitted that 11 of those 12 complaints were not “underpinned by any entitlement at law, or by Award or contract and thus were not matters in respect of which a workplace right existed.” The primary Judge found that only one complaint needed to relate to Ms Alam’s employment (which it did, being the foreshadowed anti-bullying application), and therefore that it was unnecessary to consider the remainder of the complaints.

However, in the appeal, the Full Federal Court deemed that this was “wrong as a matter of approach”, because all the evidence had to be considered for a finding to be made as to whether the employer had established, on the balance of probabilities, that none of the complaints had been a substantial or operative reason for the termination. Furthermore, because the complaint relating to the anti-bullying could not have formed the basis of the termination decision (because it was shown to have occurred four days after NAB made the decision to terminate the employee), it was necessary for the Judge to have considered the remaining complaints.

The Court then gave further attention to the concept of complaints or inquiries made in relation to a person’s employment, noting that a ‘complaint’:

  • is more than a “mere request for assistance” and “should state a particular grievance or finding of fault”;
  • does not need to be in a particular form, and nor does it need to include specific words; and
  • “connotes an expression of discontent” where the person is looking for a remedy or relief from the issue they have raised a concern about.

On this basis, the Court found that some of the alleged ‘complaints’ were requests for assistance: for example, in establishing an account to complete training, or to request a meeting to discuss work arrangements. Furthermore, an email in which Ms Alam outlined her concerns about the conduct of another employee but said that she “did not need to make a complaint”, was not found to constitute a complaint, although the Court observed that this should not be taken as a blanket finding that similar statements by employees will avoid a finding that a ‘complaint’ has been made.

This case confirmed that attention must be given to not just whether an employee made a complaint, but whether they were “able to make” the complaint – that is, whether the complaint was “founded on a source or entitlement”. This threshold has been considered in a number of cases, including the recent Full Federal Court decisions of PIA Mortgage and Whelan, which considered that the source of such an entitlement is not limited to a workplace law or instrument, or an order made by an industry body (e.g. a Court or the Commission), but also from the general law and contractual terms.

While the jurisdiction of general protections can be a difficult one to navigate at the best of times, these further qualifiers on what constitutes a ‘complaint or inquiry’ in relation to an employee’s employment adds a further level of complexity for both employers and employees alike, in determining whether adverse action taken because of the complaint is unlawful under ss340 and 341 of the FW Act. However, this decision has brought a certain amount of clarity to assist in limiting the otherwise inexhaustible scope of what could constitute a complaint in employment.

If you have a question about the general protections provisions in the FW Act or the implications of this case, please contact the team at FCB.