When is my Complaint a protected complaint?

Author: Mark Comito

Published : 5 September 2018

In Fatouros v Broadreach Services Pty Ltd [2018] FCCA 769, the Court applied a broad interpretation of what constitutes “a complaint or enquiry in relation to employment”   for the purposes of  a  protected “Workplace Right” under s341(1)(c)(ii) of the Fair Work Act 2009 (Cth).

Mr Fatouros was engaged by his employer, Broadreach, as a Senior Technical Consultant and General Manager. His role included liaising with clients and sub-contractors in the field of information and engineering services.

In August 2016, Mr Fatouros emailed two written complaints to his employer. He informed his employer of their need to pay a major sub-contractor’s outstanding fees owed and about the threat of a legal damages claim. He also expressed concerns that if the sub-contractor had stopped work, this would hold up the project he was working on. Mr Fatouros argued that his complaint “in relation to his employment” constituted a workplace right under the Fair Work Act.

Shortly after making his complaint, the employer terminated Mr Fatouros’ employment for alleged poor performance of his duties.

Broadreach argued that Mr Fatouros’ complaints did not constitute a workplace right because they did not have a sufficient nexus to his employment.

Broadreach also argued that any decision undertaken by any employer would leave it open to a claim relating to a breach of workplace rights, just because an employee complained about the strategic direction of their employer’s business. Broadreach argued that Mr Fatouros’ rights were underpinned by his contract of employment and legislation which did not extend to ‘protecting’ commentary or criticism of the direction of the owners of the business.

The Court rejected these arguments, citing previous decisions (including the decision of Walsh v Greater Metropolitan Cemeteries Trust No 243 IR 468 (per Bromberg J) , that where the subject matter of a complaint raises an issue which has potential implications for the complainant’s employment, it is likely the complaint is in relation to employment.

Justice McNab held that “workplace rights” are not limited in this way and referred to the example of an employee raising a complaint regarding whether the company was at risk of trading whilst being insolvent, or in breach of their obligations with their bank. Justice McNab held that these types of complaints arise directly from the work that the employee performs in their employment and so are related to employment because they had the effect of impacting the person as an employee.

What can I do if my employer takes action in relation to a complaint I have made?

If you have made a complaint to your employer about any matter which affects or impacts on your employment, and the employer takes any Adverse Action because you made the complaint ( including terminating your employment; depriving you of an employment benefit or otherwise discriminates against you), you may have rights to pursue a General Protections application to claim compensation for loss or damage and/or pain, suffering, distress or anxiety. Strict time limits apply to when a General Protection application must be filed.
Contact our office for a free case assessment to discuss your employment rights further.