ARTICLE · 30 NOVEMBER 2014

When is a "complaint" or "inquiry" a "workplace right" in adverse action?

Clayton Utz

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Courts are frequently taking a broad view of "complaint or inquiry in relation to employment.

AustraliaEmployment and HR

Michael Byrnes (Formerly With Clayton Utz)

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Key Points:

Courts are frequently taking a broad view of "complaint or inquiry in relation to employment", so employers should deal with them carefully to avoid adverse action claims.

The precise scope of the right of an employee to "make a complaint or inquiry ... in relation to [their] employment" under the adverse action laws in the Fair Work Act 2009 (Cth) remains unclear. Courts have taken both a narrow and broad view both of the types of complaints, and the connection with the employee's employment.

A good example is the recent case, Evans v Trilab Pty Ltd [2014] FCCA 2464, in which the Federal Circuit Court refused to strike out an application alleging dismissal in contravention of a general protection on the ground of a "complaint or inquiry".

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