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

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".

A workplace conversation, a workplace termination

Hayden Evans was employed by Trilab Pty Ltd as a State Manager in Engineering in Perth to conduct soil and rock classification testing.

Mr Evans spoke to the Senior Lab Manager, Chris Cannon, asking why, in his view, Trilab was not conducting testing of soil and rock samples according to Australian testing standards.

Both Mr Cannon and Trilab's Chairman Mr Gavin Hamilton rejected this, saying Trilab's testing method did meet the relevant Australian standard, and asked him to conduct testing to Trilab's policies. On 26 August 2014 Mr Evans' employment was terminated on the grounds of his performance, three weeks after he had started work.

Mr Evans' adverse action application

Mr Evans alleged he was sacked primarily because he had questioned the testing...