A 'workplace right' includes an employee seeking legal advice

The Federal Court, in the recent decision of (Murrihy v Betezy), has confirmed that the making of a complaint or inquiry by an employee to their lawyer about an employment matter can constitute the exercise of a 'workplace right' for the purpose of the general protections/adverse action provision of the Fair Work Act 2009.

Background

The employer was an online gambling service. The employee - Ms Murrihy, was a manager with the business. Ms Murrihy made a complaint to the chief executive officer (Mr Kay) of the employer that her commissions had not been paid. The employee then threatened to seek legal advice if her commissions remained unpaid. In response Mr Kay threatened to fire the employee.

Was there adverse action?

The judge found that the conversation between Mr Kay and Ms Murrihy, where he threatened to fire her if she sought legal advice about her unpaid entitlements, had, in fact, occurred. Consequently, the judge ruled that this threat constituted adverse action within the definition of the general protections section of the Act. Having made this determination the next question for the judge was whether or not Ms Murrihy had a 'workplace right'.

Did the employee have a 'workplace right'?

The employee argued that her right to make a complaint or inquiry about a feature of her employment (specifically her remuneration and commission) to a lawyer constituted a 'workplace right' within the meaning of s.341(1)(c)(ii) of the Act.

The employer argued that the section could only be triggered if the complaint or inquiry was made pursuant to a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint on inquiry.

The judge turned to the Explanatory Memorandum of the Act for guidance, which stated the section would "include situations where an employee makes an inquiry or complaint to his or her employer". However, the Explanatory Memorandum makes no direct reference to an employee making complaints or inquiries to a lawyer.

The judge went on to observe that s. 323(1) of the Act is a statutory provision that obliges employers to pay their employees in full at least monthly. The judge found that:

it must be realistically accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.

Furthermore, the judge found that that section 341(1)(c)(ii) provided "no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer…" In so finding, the judge held that such an employee:

should be able to have recourse to his or her solicitor, without fear of repercussions in the nature of "adverse action" taken by the employer, [and this] would be well within the purposes of the section…

What does this mean for your business

The decision is significant because it clarifies that a 'complaint or inquiry' by an employee is not limited to complaints or inquiries made by an employee under a workplace law; workplace instrument or some other statutory or regulatory regime in order for the general protections provisions of the Act to be triggered. Essentially, the provisions will be triggered so long as the complaint or inquiry relates to the employment. This is a relatively easy threshold for an employee to satisfy.

Employers need to appreciate that a complaint or inquiry made by an employee (or intended to be made) to a lawyer about an employment matter can constitute a 'workplace right'. Accordingly, employers need to be cautions not to take any negative action against an employee in response to an employee seeking the assistance of a lawyer in an employment matter.

If you would like more information about the case or its implications, please contact Jason Donnelly, Carly Fielding, Elizabeth Kenny or Tim Trezise on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.