11 November 2015

Playing it Safe: Complaints and the General Protections Provisions

Dealing with an employee complaint is never easy, but is part and parcel of people management. It is important for an employer to spot the difference between an employee voicing their concerns and an employee making a complaint and the difference is not always clear cut.

An employer may find themselves in hot water if it has not taken appropriate action to deal with a communication that the employee asserts was a complaint.

What is the scope of a complaint?

In Crawford v Steadmark Pty Ltd (No 2) [2015] FCCA 2697, Ms Crawford emailed her manager stating:

“After today’s meeting even though you had given us free time I returned to the store. On calling Michael for the evening to provide him with the daily figures a conversation followed of which the details and conduct was not warranted or appropriate. As a result I will not be attending tonight’s event.”

Ms Crawford’s manager responded saying;

“I am very sorry to hear that.

I am not entirely sure what has transpired -we shall discuss tomorrow…”,

but did not follow up with Ms Crawford directly or advise her of any inquires she had made and the matter did not progress any further until Ms Crawford’s employment was not renewed after the expiry of her fixed term contract.

Ms Crawford alleged that the employer had taken adverse action because of the “complaint” that she made.

The Federal Circuit Court agreed that a “substantive and operative” reason for why Ms Crawford’s employment was not renewed was because of the complaint that she had made about the Managing Director.

What does this mean for employers?

Whether the email was in fact a “complaint” was not in dispute in the case, as the employer accepted in its submissions that Ms Crawford had a workplace right to make a complaint and exercised that right. However, employers should be aware that even if a complaint is not made formally, an email or conversation may still be construed as a complaint for the purposes of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”).

If you are unsure whether a communication or representation made by an employee is a complaint and requires action, give the PCS team a call on (02) 8094 3100.

Posted in Legal Advice & Consulting.
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