Adverse Action Ruling Likely to Cause Adverse Reaction

Evans v Trilab Pty Ltd [2014] FCCA 2464 (30 October 2014)

If a federal circuit court judge’s ruling on what constitutes a workplace right turns out to be correct, there’ll be no end to the matters which can be litigated by employees in future.

The legislation says a workplace right includes the ability (of an employee) to make a complaint or inquiry “in relation to their employment”. The circuit court judge has ruled that a manager, who challenged his employer’s work practices, and was sacked for treating his instructions with contempt, had a “workplace right” to complain, and have his day in court.

What started out as a protection against abuse of rights of association (i.e. right to be in a union etc.) looks like being expanded completely to just about anything to do with the employment relationship, as this case demonstrates.

The matter involved a soil testing laboratory whose manager challenged a protocol the company had been using, saying it was the wrong method. The company responded by advising the manager he was to follow established procedures and adopt the approach the company used. In its evidence, the company stated 99% of soil-testing in Australia used this particular method and it complied with Australian Standards.

The manager persisted with his view and the Chairman decided to dismiss the manager because the manager simply refused to adopt the standard test. There were other related reasons attaching to the dismissal, but it was central to the action that the manager had been so insistent about the testing regime.

The court decided the employee had an arguable case that his complaint constituted a workplace right, the exercise of which had been the reason for his dismissal, and sent the matter to trial.

This decision is a concern for employers. The long history of protections against unlawful termination have concentrated on issues like employment contracts, union/non-union membership, union activities, personal characteristics (e.g. age, gender, etc.).

If an employee can make an inquiry or complaint about management decisions this is far removed from established rights to query or complain about entitlements or union rights. Ultimately for businesses this could lead to having to cop employees undermining the management rights to run their business as best they see fit. If an employer dismisses someone for complaining about the businesses practices, they would do that based on loss of trust and disloyalty tending to undermine the firm. But this latest development means the court will entertain an employee’s right to make such a complaint (and create the consequent loss of trust and confidence) without suffering any consequences.