EMPLOYEE PROTECTIONS - A SHIELD NOT A SWORDBY Nick Tindley
The commencement of the Fair Work Act 2009 (Cth) (FW Act) saw the introduction of a new (or in some cases, refined) set of rights and protections for employees. Part 3-1 of the FW Act sets out the “General Protections” afforded to workers, and to a lesser extent employers. This has proven to be fertile ground for employees and unions, with thousands of complaints made since the commencement of the protections.
Essentially, part 3-1 sets out a number of workplace rights which persons have, and prohibits adverse action being taken against those persons because they have (or have not) exercised, or propose (or propose not) to exercise one or more of those rights.
One of the workplace rights set out in part 3-1 which has created uncertainty for employers is the right of an employee to make a complaint or enquiry in relation to their employment. This has caused significant debate, particularly in relation to what constitutes a complaint or enquiry, and how employees deal with complaints or enquiries that have been made without a genuine basis.
Workplace complaints: genuine or vexatious?
Employers should, and are expected to, promote the ability of employees to make complaints through the correct mechanisms – that being a well communicated dispute/grievance resolution procedure. Encouraging employees to voice their grievances can be beneficial to business in a number of ways – it gives an insight into the inner workings and cultural challenges of the workplace, assists in complying with legal obligations (such as providing healthy and safe working environment), promotes the values of the business and can prevent disputes going to more formal avenues such as the Fair Work Commission.
There will always be circumstances where complaints cannot be substantiated, or further, that it can be concluded that the complaint has been made without reasonable cause.
Two questions arise out of this:
- How should businesses respond to such complaints, or more specifically, how do you deal with a complainant who you have found has made a complaint without reasonable cause and/or for the purpose of causing difficulties for a co-worker?
- What are the risks in managing performance and conduct issues of employees who have made a complaint?
The short answer to both of these is that part 3-1 of the FW Act is a protection, but nothing more. It is a shield against unfair treatment and not a sword to attack the employer and others. Employers should not shy away from legitimate and reasonable performance and conduct management processes, or from dealing with vexatious complaints, just because an employee has or exercises a workplace right. It is a matter of being careful to ensure that action is taken not because of a workplace right but rather for another legitimate reason.
Post complaint management – a recent case example
The case of Shea v TRUenergy Services Pty Ltd (No 6)  FCA 271 (25 March 2014) considered the question - does an employee have a workplace right to make a complaint where that complaint has no, or very little, basis? And can a general protections claim validly follow?
The corporate director of EnergyAustralia claimed that she was made redundant (being the adverse action) because she had made complaints about the way in which a sexual harassment investigation was handled, and therefore brought a general protections application. The investigation was in response to sexual harassment allegations made by this employee, and it found the allegations to be unfounded.
The Court held that “the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees” will not constitute the bases of a complaint which can then be used to make a general protections application.
This case was more than just a complaint followed by a general protections application, as the adverse action in consideration was redundancy.
Ultimately, the Court found there to be genuine operational reasons for the redundancy because of a restructure in the business’ operations.
Promoting the shield, blunting the sword
Well communicated and implemented grievance procedures provide a fair and open opportunity for employees to make complaints. There is a reasonable expectation, however, that employees will only use these procedures for genuine complaints, and this should be made clear to employees. By doing this, employers can take reasonable action against employees who breach this requirement, including serious disciplinary action. It is important, however, to ensure you appreciate the difference between a complaint that is “false, baseless, unreasonable or contrived” and a complaint that cannot be substantiated due to a lack of corroborating evidence.
When a complaint is not substantiated simply due to a lack of corroborating evidence there can be no finding that the above requirement has been breached. Unfortunately, if the employee who has made the complaint is later to be the subject of performance or conduct management, it is common for them to claim that the two are linked – that the employer is trying to get back at them for making the complaint. This should not stop you from progressing with the performance or conduct issue, but does mean you need to be very careful to separate the two issues. If you can demonstrate that the performance or conduct issues are genuine, that you would or have taken the same or similar action against anyone who was experiencing the same issues and that you have been reasonable in the way you have conducted the process any complaint by the employee has very little prospect of success.