16 November 2021

The recent decision of the Full Bench (White, O’Callaghan and Colvin JJ) of the Federal Court of Australia in Alam v National Australia Bank Ltd [2021] FCAFC 178 (“Alam v National Australia Bank”) provides superior court clarity on the circumstances in which an employee’s complaint or inquiry in relation to his or her employment amounts to an exercise of a “workplace right” for the purposes of section 341(1)(c) of the Fair Work Act 2009 (Cth) (“FW Act”).

Under the “General Protections” regime of the FW Act, it is unlawful to take adverse action (including, but not limited to dismissal) against a person for exercising a workplace right. Further, an employer has the onus of proving that the adverse action was taken for a reason other than a prohibited reason.

Background facts

On 15 October 2018, the appellant, Ms Alam, commenced employment with the respondent, National Australia Bank Limited (“NAB”), as an Associate Financial Planner.  However, just over three months later, NAB terminated Ms Alam’s employment.

Ms Alam commenced proceedings in the Federal Circuit Court alleging, amongst other things, that NAB had taken adverse action against her by reason of her exercise, and proposed exercise, of her workplace right to make a complaint or inquiry in relation to her employment. Ms Alam argued that NAB had contravened the general protections provisions in the FW Act by terminating her employment because she had made 12 complaints relating to her workplace rights, including when she had foreshadowed making an anti-bullying application to the Fair Work Commission (“FWC”).

During the proceedings, NAB maintained that it had terminated Ms Alam’s employment solely because she had sent confidential customer information to her personal email account in breach of its policies and practices (“Data Breach”).

The Federal Circuit Court, in Alam v National Australia Bank Limited (No 2) [2020] FCCA 2491, found that Ms Alam had exercised a workplace right by foreshadowing a FWC application, and in so finding, considered it unnecessary to consider whether the other 11 complaints or inquiries related to workplace rights. However, the primary judge dismissed Ms Alam’s claim that NAB had taken adverse action against her for a prohibited reason, finding that the decision to dismiss her had been based on Ms Alan’s conduct in relation to the Data Breach.

On appeal, the central issue for the Full Federal Court was whether the primary judge erred in failing to properly consider whether the alleged complaints or inquiries constituted a workplace right as per s 341(1)(c).

The Full Federal Court found that the primary judge had fallen into error by failing to make findings concerning whether the 11 other complaints or inquiries alleged by Ms Alam had also been a substantial or operative reason for the termination so as to discharge the onus in s 361 of the FW Act (as under the section, it was enough that the prohibited reason be a reason for the adverse conduct).

Although NAB accepted the above finding, it nevertheless submitted that the appeal should be dismissed on the grounds that none of the complaints or inquiries constituted the exercise of a workplace right. The Full Federal Court rejected NAB’s submission in part, finding that some of Ms Alam’s complaints or inquiries were capable of being characterised as such where they involved Ms Alam raising a grievance in respect of which she sought her direct manager’s assistance.

Whether Ms Alam was “able to make” the complaints or inquiries?

The Full Federal Court in Alam v National Australia Bank explored the meaning of the expression “is able to make a complaint or inquiry” in relation to the employment in s 341(1)(c) of the FW Act, by reference to several previous decisions of the Court, which had taken slightly different approaches to that question.

The Full Federal Court considered the statement by Collier J at first instance in Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [33] that for the purpose of s 341(c)(ii) of the FW Act, “a complaint that an employee is able to make in relation to his or her employment is not at large, and must be founded on a source of entitlement, whether instrumental or otherwise”. His Honour rejected the view that, in relation to rights finding their source in the contract of employment, the section required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it was sufficient if the complaint or inquiry related to a subject matter for which the contract of employment made provision. This approach was relevantly adopted and endorsed by the Full Federal Court on appeal from Collier J in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 (“Whelan”).

The Full Federal Court also considered the decision of Rangiah, Charlesworth and Snaden JJ in PIA Mortgage Services Pty Ltd v R [2020] FCAFC 15 (“PIA Mortgage”). While the majority in that case provided an expansive view of the nature of the right or entitlement which may form the basis of a workplace right to make a complaint or inquiry, they appeared to require that the right be found in an instrumental source. In PIA Mortgage, their Honours held that an employee may have the ability to make a complaint or inquiry not only by reason of a workplace law, a workplace instrument or an order made by an industrial body, but also from legislative provisions which are not workplace laws, contractual terms providing a right to make complaints, and from the general law. The Court in Alam v National Australia Bank noted that this may mean there is little in practical outcome between the approaches between Whelan and PIA Mortgage, but held that the Court was bound to follow Whelan.

The complexity of the issue is illustrated by the fact that the Full Federal Court in Alam v National Australia Bank ultimately held that four of the complaints or inquiries made were not “complaints or inquiries” for the purposes of s 341(1)(c) of the FW Act, but ultimately rejected NAB’s submission that the other complaints or inquiries were not complaints or inquiries which the appellant was “able to make” in relation to her employment.

The Full Federal Court therefore ordered the remittal of the matter to the Federal Circuit Court for re-trial before another Judge to consider the unresolved issues in the proceedings.

Key Action Points for Human Resources and In-house Counsel

• Employees will be “able to make” a broad range of complaints or inquiries in relation to their employment, including if it relates to a subject matter in their contract of employment.
• Employers should be aware of the types of complaints or inquiries an employee is “able to” make under the general protections provisions of the FW Act.
• Employers should note that an employee’s right to make a complaint or inquiry will be read broadly by the courts.
• Employers should also be aware that s 341(1)(c)(ii) is not confined to rights, rules and responsibilities under, or arising from, workplace laws and workplace instruments.

If your business requires assistance in dealing with employee complaints or inquiries in relation to workplace rights, please do not hesitate to contact our Harmers team on +61 2 9267 4322.