The Fair Work Act’s general protections are nearly four years old and in many cases the scope of the protections is still uncertain. Four recent decisions have provided more definition of this cause of action, including the process and substance of a claim.
FWC conference powers: no need to find a dismissal
In the decision of Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital  FWCFB 6321, the Full Bench of the Fair Work Commission (FWC) found that the FWC is not required to resolve whether an applicant was in fact dismissed before conducting a general protection conference.
If a person makes a general protection dismissal application in the Fair Work Commission (FW), the FWC must conduct a conference between the parties under section 368 of the Fair Work Act 2009 (FW Act).
In Murrihy v Betezy.com.au Pty Ltd  FCA 908, Justice Jessup of the Federal Court confirmed that making an inquiry to a lawyer in relation to employment, rather than directly to the employer, is a ‘workplace right’ pursuant to the general protection provisions.
But the FWC does not have the power to conduct a conference if there is no dismissal, unless the parties to the dispute agree to participate. In this case, Murrihy had alleged that her employer had taken adverse action against her by threatening to terminate her employment because she had advised her employer that she would get legal advice if she was not paid commissions in accordance with her contract. This could also be considered making “a complaint” in relation to her employment directly to her employer.
Problems arise when there is a dispute over whether a dismissal occurred, for example in a constructive dismissal case. In response to Murrihy, the employer said words to the effect that if she sought legal advice she ‘would be fired’. The Federal Court found that in doing so, the employer took adverse action against Murrihy because she exercised or sought to exercise a workplace right.
The employee would of course need to make the employer aware that they have made such an inquiry before the employee could rely on the general protections. If the employer does not know that the employee has sought legal advice regarding their employment, it would be difficult for the employee to sustain that the employer took adverse action because the employee exercised that workplace right.
Of course an employer may become aware inadvertently of an inquiry being raised with a lawyer, for example by receiving correspondence from that lawyer or being advised as such by a third party. If the employer takes adverse action following receipt of such information, they may be liable for a breach of the general protection provisions.
In making its decision, the FWC placed significant weight on, amongst other things, the Explanatory Memorandum of the Fair Work Bill, which provides that:
‘clause 365 [of FW Act] provides that a person who alleges that they have been dismissed in contravention of Part 3-1, may apply to [FWC] for a conference’.
This statement is inconsistent with the clear language of the FW Act.
The FWC in this instance appears to have taken a pragmatic approach, perhaps in line with its function to provide a process that is quick, informal and avoids unnecessary technicalities. However, there remains a clear divide between the language of the FW Act and the FWC’s approach to dealing with this jurisdictional matter.
Employers will now be forced to engage in the conference process in any matter where an employee says they have been dismissed, including a constructive dismissal, whether or not there is a factual basis for that assertion.
Workplace rights defined
The definition of “exercising a workplace right” has been further clarified by recent decisions to include taking such action as seeking legal advice about workplace entitlements. However, contracts of employment and general or “non-workplace laws have been excluded” legislation from the meaning of “workplace instrument” and “workplace law”.
In Daw v Schneider Electric (Australia) Pty Ltd  FCCA 1341, Daw alleged that he was dismissed because he had exercised a workplace right by refusing to do work that would expose him to a breach of the Professional Engineers Act 2002 (the Engineers Act) and had also lodged a bullying complaint against his manager.
Under the Engineers Act, professional engineering services must be performed, or supervised by a registered professional engineer. Daw refused to perform work as directed by his manager, who was not a registered professional engineer and therefore could not supervise his work in accordance with the Engineers Act. Daw was repeatedly asked to perform work as directed and refused on each occasion.
The employer eventually held a meeting with Daw and advised him that if he continued to refuse to perform work ‘…we will have no other option than to review your current employment status with the Company’.
Jarrett J of the Federal Circuit Court found that this threat gave rise to a constructive dismissal, as the employment was effectively brought to an end by the employers actions. However, Jarrett J went on to find that refusing to perform work because it was unlawful pursuant to the Engineers Act was not an exercise of a ‘workplace right’ as it was not a workplace law.
Relevantly, the Engineers Act was not a ‘workplace law’ within the meaning of the FW Act, which is defined as any law that regulates the relationship between employers and employees. Jarrett also found that, in the circumstances of that case, the employer had not dismissed the employee because he had made a bullying complaint. Rather, he was dismissed because he refused to follow reasonable directions.
Similarly, in an older decision, Bayford v Maxxia Pty Ltd  FMCA 202, Riley FM confirmed that a contract of employment was not a ‘workplace instrument’, as defined by the FW Act and from which a ‘workplace right’ may be derived, because it was not made under a ‘workplace law’.
In that case, the employee claimed that he had a ‘workplace right’ because he was entitled to the benefit of flexible working hours under the employer’s Equal Opportunity Policy, which was incorporated into his contract of employment. The Court ruled against the employee finding that he was not exercising a workplace right.
These cases confirm that:
- subject to any future amendments to the FW Act, employers must attend a conference at the FWC in relation to a general protections dispute even if there is no dismissal;
- employers must be careful not to take any ‘adverse action’ against an employee because they have inquired about their rights or entitlements to a lawyer (or potentially any other person); and
- employers may still take ‘adverse action’ for reasons that are unrelated to the exercise of a ‘workplace right’.