By Clayton Payne, Special Counsel
If a complaint is made by a worker in relation to their employment, and the finding is not to the worker’s liking, might they be in a position to bring a claim against their employer?
Does the complaint need to have been brought by the employee themselves?
What sorts of claims could arise?
What sort of matters might a court consider in these circumstances?
These matters were recently considered by the Federal Court of Australia in the matter of Trevena.
The worker was engaged by the employer as an administration assistant. In this regard the worker was engaged on a casual basis working 60 hours over six days per week.
Matters came to ahead in September 2013 following an incident between the worker and a supervisor (one who was not employed directly by the employer), following which the worker’s brother, who was present, made a formal complaint on behalf of the worker.
The complaint revolved around an allegation that the supervisor in question had said to the worker “How is your father”, with a smirk on his face, in circumstances where the worker’s father had been seriously ill.
The complaint was investigated and could not be substantiated.
It was claimed that the worker’s access to the employer’s IT system had been cancelled, according to the company, because of an offensive email he had sent to a senior manager in relation to the investigation and because offensive comments he had allegedly made to other employees.
It was claimed that the worker had been informed by management of the employer that it was still looking into an alternative permanent role for him within the organisation.
Further discussion ensued about the worker’s skill set, and whether he could be accommodated in the position of “Quality Controller”. The opinion of relevant senior employees of the employer was that he could not. The worker was later advised of this.
The worker then asked if he could return to his previous, casual position (noting that the worker had since returned from Queensland, where he had worked, to Melbourne).
Discussions were also had amongst senior staff about the worker’s position being untenable noting issues the worker had with other employees, largely it would seem, associated with the investigation.
The worker returned to Queensland, but when the worker was asked by a member of the HR staff about that, he advised that he had returned to pack up his apartment before returning to Melbourne (although claiming that he had not left the project). The worker maintained that he had been offered a full time role to the member of the HR staff, however, she was unaware of this and asked the worker for further details. The worker also wanted a “fly-in, fly-out” role from Melbourne, which the employer did not make available to casual employees
After a conversation between the worker and a manager to the effect that his position was no longer available, the worker wrote to the HR staff member asking whether his employment had been terminated.
The response to this request said in part,
“Relevant work is now nearing completion following your failure to make yourself available for further casual engagements on site on your previous terms. The suggestion that your employment (as a casual) was in any way terminated at (the employer’s) initiative is refuted.
Subsequently, the worker brought adverse action and coercion claims against the employer under the Fair Work Act 2009 (Cth) (Fair Work Act), as well arguing that the employer had breached the Competition and Consumer Act 2010 (Cth) (C&C Act) for failing to offer him a permanent position, which he claimed he had been promised.
In summary, evidence was lead and accepted that certain staff members had canvassed the possible creation of a full-time rule to which the worker might have been appointed. That said it was held that the worker was never advised that the positioned existed or that he would be appointed to it.
Justice Tracey rejected the claim that the employee’s employment had been terminated and that the offer of a permanent position had been withdrawn because of a complaint being made about the supervisor.
He also found that no adverse action had been taken against the worker on contravention of the Fair Work Act (i.e. because of his “exercise of a workplace right”).
In particular, It was found that the employer was under no legal obligation to offer the employee his previous casual position after he had unilaterally decided to return to Melbourne and that the employer,
“ … was not under any obligation to offer (the worker) a staff position which had not been created much less advertised ….
By 11 November 2013 work was running down and there was no further need for (the worker’s) services. (The employer) was under no obligation, at this stage, to offer him casual employment. Its failure to do so did not constitute adverse action”.
It was also noted that from September 2013 until November 2013 there did not appear to have been any decision made by anyone not to offer the worker the opportunity to work in his then existing casual position (well after the investigation had been dealt with).
His Honour also found,
“The complaint (i.e. leading to the investigation) was, in my view, made in relation to (the employer’s) employment. Nothing turns on the fact that it was made on his behalf by his brother”.
The claim that the employer had sought to coerce the worker not to challenge the investigation findings was also rejected by the Court, as was the claim under the C&C Act that the employer had mislead or deceived the worker in relation to his employment (particularly as it has been found that the worker had never been offered full-time employment by the employer).
While cases such as this one turn on their own facts, is likely that the employer was successful because it not only was able to call upon evidence supporting the decisions which it has made, but also because it clearly had established processes in place (particularly dealing with the creation of new positions and offers of employment).
The evidence also seemed to show that no adverse action was taken against the worker for bringing a complaint (albeit one brought on his behalf by his brother) which led to an investigation into a supervisor, even though it was found that the complaint was not substantiated, based on the evidence.
Employers however need to remain particularly vigilant when relevant employee complaints are made. They also need to ensure that any decision which might adversely impact upon an employee in their employment is not made for an illegitimate reason. Advice should be sort when questions arise as to the reason for a decision, such as a termination of employment, are made.
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