The new untouchables - does adverse action mean that some employees are immune from dismissal?

Recent case law suggests that an employee who makes a complaint about almost any issue in their workplace, can seek protection from dismissal under the "adverse action" provisions of the Fair Work Act 2009.

But some key lessons are emerging for employers as to how to manage the risks posed by these provisions. Most importantly, a well managed, robust decision making process, leading to a decision that is made for sound reasons, will withstand legal challenge.

BACKGROUND

Under the adverse action provisions in Part 3-1 of the Fair Work Act (FW Act), an employee may be protected from dismissal or for any other adverse action that they have suffered, such as a demotion or disciplinary warning, if they are able to successfully argue that a reason for the dismissal or other action was the exercise of a "workplace right"1. This does not have to be the main or only reason for a claim to succeed, it need only be one of the reasons2.

In addition, where the employee has established that they suffered some form of adverse action and they allege that a reason for this was the exercise of a workplace right, the onus rests on the employer to prove to a court that the exercise of that workplace right was not the reason, or one of the reasons, for the dismissal3.

This has raised many challenges for employers.

COMPLAINTS ABOUT EMPLOYMENT - WHAT DOES THIS INCLUDE?

One of the workplace rights that has the most potential for broad application is the right of an employee to "make a complaint or inquiry ... in relation to (their) employment" (section 341(1)(c)(ii)). This can mean that an employee who raises virtually any inquiry or complaint, that has some loose or vague connection to their employment, can argue that any action taken against them was because of the complaint or inquiry they had made.

The decision of the Federal Court of Australia in Walsh v Greater Metropolitan Cemeteries Trust (No. 2) [2014] FCA 456 (9 May 2014) illustrates this challenge very clearly.

Ms Walsh was dismissed from her employment as a Client Services Manager with the Greater Metropolitan Cemeteries Trust (GMCT) in Melbourne, during her probationary period. She alleged that she had made complaints in relation to her employment, and that these complaints were one or more of the reasons for her dismissal.

GMCT argued that they had dismissed Ms Walsh for reasons of poor performance. GMCT also argued that none of the complaints raised by Ms Walsh was a "complaint or inquiry in relation to employment".

Ms Walsh had complained that another manager's daughter worked for the Alsco company, which supplied linen to GMCT. She complained that as a matter of...