Clarity at last! When a complaint by an employee qualifies as a workplace right

• Published date: 05 November 2021
• Law Firm: Bartier Perry
• Author: Mr Darren Gardner, Sylvia Moses and Joshua Handley

The Fair Work Act 2009 prohibits employers from taking "adverse action" against an employee (including dismissal) because the employee has, or has not, exercised, or proposes to exercise a "workplace right".

Among other things, an employee has a "workplace right" if they are "able to make a complaint or inquiry in relation to his or her employment".

On first read, it may seem an employee has a workplace right to complain about anything to do with their employment.

Yet the words "is able to make" have not been judicially accepted as having certain meaning and purpose.

Thanks to the recent decision of Alam v National Australia Bank Ltd [2021] FCAFC 178, there is clarity.

What happened in Alam?

The employee, Ms Alam, alleged she was dismissed because she made many complaints to her employer over several months.

Ms Alam's complaints were broad sweeping, generally concerning issues with her onboarding, treatment by her manager and colleagues, workload, performance targets. Her complaints were foreshadowed by her intention to make an anti-bullying claim to the Fair Work Commission.

NAB denied Ms Alam's complaints were the reason for her dismissal, and asserted the only reason for...