14 June 2018

What a whinger! Employee’s complaint about management found to be a workplace right

In Fatouros v Broadreach Services Pty Ltd [2018] FCCA 769, the Federal Circuit Court has taken a broad view of what constitutes a workplace right by awarding an employee $144,570.48 in compensation plus a pecuniary penalty of $12,500.

Key impacts

  • Employers should be aware that a broad range of communications which demonstrate an employee’s dissatisfaction could give rise to an adverse action claim. This may now include an employee’s unhappiness at the way an employer deals with subcontractors or other customers.
  • Employers need to ensure they have complaint or grievance management policies and procedures in place to deal with complaints raised in a timely and efficient manner.
  • Employers should clearly document their decision making processes if they decide to take disciplinary action against an employee who has raised a complaint or inquiry in respect of their employment.

Facts

Mr Fatouros was engaged by Broadreach Services Pty Ltd (Broadreach) as a Senior Technical Consultant and General Manager – Solutions & Consulting, providing systems design and project management advice.

In July 2015, Mr Fatouros was project managing the installation of Broadreach’s audio visual and digital media equipment throughout 100 plus rooms at the University of Melbourne (the Project). At the same time, Mr Fatouros started reporting to a new CEO, Ms Marie Kaliviotis.

On Mr Fatouros’ evidence, by August 2016 the Project had fallen behind schedule whilst being managed by Ms Kaliviotis. In particular, Mr Fatouros became concerned when he realised that Ms Kaliviotis had not paid a significant subcontractor for a number of months which led to the subcontractor leaving the Project site. Mr Fatouros voiced his concerns directly to Ms Kaliviotis in an email on 11 August 2016 saying, “I am really disappointed by how you have handled this situation…” On the same day, he wrote a further email complaint to two senior managers of the business saying, “Gentlemen, I really need your help…sadly I don't believe Marie is acting in the highest and best interests of the business.”

On 22 August 2016, Mr Fatouros was dismissed and paid five weeks’ in lieu of notice. One of the reasons stated for his dismissal was the fact that Mr Fatouros had sent the email complaint to senior managers on 11 August 2016 suggesting that Ms Kaliviotis was not acting in Broadreach’s best interests.

Mr Fatouros brought a general protections claim alleging that his dismissal from Broadreach was adverse action within the meaning of section 342 of the Fair Work Act 2009 (Cth) (FW Act) in contravention of section 340 of the FW Act on the basis that his email complaint of 11 August 2016 was:

  1. in relation to his employment; and
  2. a right which was a workplace right within in the meaning of section 341 of the FW Act.

At hearing, no evidence was given by Broadreach that Mr Fatouros’ termination did not include the fact that he had exercised this workplace right to make this complaint.

Outcome

Judge McNab of the Federal Circuit Court held that Mr Fatouros’ email complaint raising issues regarding the timely payment of subcontractors arose directly out of the performance of his work and impacted on him as an employee. Accordingly, Judge McNab was satisfied that the email of 11 August 2016 was a “complaint” or “inquiry” within the meaning of section 341(1)(c)(ii) of the FW Act. Judge McNab awarded Mr Fatorous $144,570.48 in compensation and ordered Broadreach to pay a pecuniary penalty in the sum of $12,500.

In the making these findings, Judge McNab had regard to the Court’s diverging opinions on what constitutes a workplace right under the FW Act. He firstly considered the narrower view of Justice Dodds-Streeton in Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 where it was held that the FW Act requires an employee’s “complaint” or “inquiry” to be genuinely held so that the other relevant party takes notice of it and considers it. Judge McNab then considered and went on to agree with the broader approach taken by Justice Bromberg in Walsh v Greater Metropolitan Cemeteries Trust (No. 2) [2014] FCA 456, where it was held that the words “inquiry” and “Complaint” have a wide import so that the relationship with the subject matter of an employee’s complaint and their employment may be indirect.

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