Australia: Stop whingeing! - Which employment compliants could lead to an adverse action claim?

The Federal Circuit Court decision in Evans v Trilab Pty Ltd [2014] FCCA 2464 (30 October 2014) has again raised for consideration the nature of the "workplace rights" that form the basis of the protections offered to employees under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act).


Sections 340-341 of the FW Act protect an employee from dismissal or other adverse treatment (e.g. demotion), where the reasons for the employer's action include the fact that the employee has exercised a "workplace right". That concept includes the employee's ability to make a complaint or inquiry in relation to his or her employment (section 341(1)(c)(ii)).

On the basis of several previous decisions, employees have been able to pursue adverse action claims based on their having raised issues with only a loose connection to their employment. For example, in Walsh v Greater Metropolitan Cemeteries Trust (No. 2) [2014] FCA 456 (9 May 2014), Justice Bromberg of the Federal Court took a broad view in finding that the employee's raising of probity concerns about the awarding of external contracts was a "complaint or inquiry in relation to her employment".1

In contrast, other decisions have taken a narrower approach to what constitutes a complaint or inquiry that can give rise to an adverse action claim. In Shea v TRUenergy Services Pty Ltd (No. 6) [2014] FCA 271 (25 March 2014), for instance, Justice Dodds-Streeton held that an employee's complaint or grievance must be genuinely held in order to fall within the scope of the statutory protection of workplace rights. Further: "the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees", such as allegations of sexual harassment and of a lewd workplace culture, would not be protected. It was also determined that an employee's complaint or inquiry must have some basis in an actual right or entitlement, such as those provided by a contract or employment, award or legislation.


The employee was engaged as the State Manager – Engineering (Perth) by the employer, a company which undertakes soil and rock classification testing. The employee raised concerns with his superiors about the manner in which the company was undertaking testing, asserting that a wet testing method should have been used to ensure compliance with relevant Australian Standards.

The Chairman of the company's Board of Directors met with the employee, and directed the employee to use the dry testing method and to cease telling other staff that they were using the wrong method. Another meeting took place four days later, with the Chairman informing the employee that he was to be dismissed because he refused to adopt the dry testing method; his performance management review "was a disaster" and he had not completed a proficiency test as requested (according to the Chairman's evidence). The dismissal occurred only three week's after the employee had commenced employment with the company.

The employee brought an adverse action claim under Part 3-1 of the FW Act, on the basis that he had been dismissed for exercising his workplace right to make a complaint or inquiry – i.e. the fact that he had raised questions about the company's testing methods.

In response, the company asserted that the employee had been terminated solely for performance issues. It made an application to the Federal Circuit Court for summary dismissal of the employee's claim, on the basis that the complaint (about the testing methods) is not capable of constituting a workplace right within section 341(1)(c)(ii).


Judge Lucev of the Federal Circuit Court held that the employee's questioning of the company's testing methods was arguably capable of being characterised as an employment complaint or inquiry, so the claim should not be dismissed as having no reasonable prospects of success. This view was reached taking into account the employee's duties, which included leadership of the employer's Perth laboratory, day-to-day management and overall responsibility for test results.

In the course of making these findings, Judge Lucev reviewed relevant authorities on the question of what constitutes a complaint or inquiry in relation to employment under section 341(1)(c)(ii), noting that "divergent approaches" had been taken in – and by – different courts.

For example, in Harrison v In Control Pty Ltd [2013] FMCA 1341, the Federal Magistrates Court restricted the ability to make a complaint or inquiry to an ability to do so under a provision in legislation, a statutory instrument (e.g. an enterprise agreement), or an employment contract. A similar approach was later taken by the Federal Court in Shea v TRUenergy Services Pty Ltd (No. 6) [2014] FCA 271 (discussed above).

On the other hand, in Devonshire v Magellan Powertronics Pty Ltd and Others [2013] FMCA 207, the Federal Magistrates Court found that section 341(1)(c)(ii) does not require a formal mechanism or provision for an employee's complaint or inquiry to constitute a workplace right. The employee's complaints or inquiries about her salary package and payments therefore fell within the protection offered by section 341(1)(c)(ii).

Similarly, in Murrihy v Pty Ltd [2013] FCA 908, the Federal Court held that the employee's ability to seek legal advice about her rights to remuneration and commission constituted a complaint or inquiry in relation to her employment. The Court stated: "That such an [unrepresented] employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of 'adverse action' taken by the employer, would be well within the purposes of [section 341(1)(c)(ii)] as they may be perceived in the legislative context ... ."

Judge Lucev also considered the Federal Circuit Court decision in Daw v Schneider Electric (Australia) Pty Ltd [2013] FCCA 1341, where the employee asserted (among other things) a workplace right not to comply with an unlawful or unreasonable direction from the employer. The Court found that while the employee was entitled to refuse to perform work in accordance with such a direction, in so doing the employee was not exercising a workplace right for purposes of the FW Act.

Judge Lucev concluded, in Evans v Trilab, that it is evident from the various cases "that it is arguable that a complaint or inquiry need:

  1. not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person's employment for the purposes of s.341(1)(c)(ii) of the FW Act; and
  2. only have an indirect nexus with a person's terms or conditions of employment to come within the scope of s.341(1)(c)(ii), and may be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee's employment."

In this case, according to his Honour, even if the employee's questioning of the company's testing methods had no basis in any statutory, regulatory or contractual right or entitlement, that does not – on an arguable view of section 341(1)(c)(ii) – preclude the employee from being able to make that complaint or inquiry. Such a view is open based on the decisions in Devonshire v Magellan Powertronics and Murrihy v Judge Lucev found that the employee's claim should therefore be determined at hearing.


  • While the conflicting authorities mean that the law in this area is presently unsettled, employers should assume that a broad range of expressions of discontentment by employees could give rise to an adverse action claim.
  • These could range from issues relating directly to an employee's rights or entitlements under legislation, industrial instruments or contracts – through to matters relating to how work is performed, and even the employer's relationships with third parties.
  • How employers respond to these complaints or issues, when raised by employees, will be of critical importance. Employers need to have effective complaint/grievance resolution processes in place, and apply them fairly when issues arise.
  • Employers also need to be careful when instigating, or continuing, disciplinary or performance management processes in respect of employees who raise employment-related issues or concerns.
  • In those situations, the employer will need to be able to explain and defend its decision-making process (e.g. leading to dismissal or disciplinary action) – in order to demonstrate that any adverse action taken against an employee was based on legitimate reasons and was not tainted by the employee having instigated a complaint.


1See our previous Corrs In Brief (including discussion of other relevant decisions).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions