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Policies, Procedures & SafeguardsSeptember 30, 2014
The Fair Work Act 2009 provides that employees have the workplace right to make a complaint or inquiry, without the fear that their employer will take, or threaten adverse action against them. This workplace right protection was recently tested in a Federal Court decision where it was ruled that seeking legal advice is a protected workplace right. Accordingly, any employer who takes action against an employee because they have indicated they wish to seek legal advice, or make an inquiry to a union representative, would be at risk of an adverse action claim.
In this case, an employee made a complaint to her employer about its failure to pay her commissions due under two agreements. The employee informed her employer that if her commissions were not paid, she would be seeking legal advice. In response to this, her employer took a number of unlawful actions against her which included threatening to terminate her employment, discontinuing her access to the computer systems and suspending her employment without pay.
Her employer attempted to argue that this action was in fact taken in response to allegations of improper use of her Cabcharge card. This proposition was promptly rejected by the Court. It found that the facts showed that the employer had withheld the employee’s pay, prior to sending her a letter which set out the occasions on which they alleged she had misused her card.
When considering the facts of this case, the Court confirmed the wide reading of the general protection that it would “include situations where an employee makes an inquiry or complaint to his or her employer”. The employee, in this case, made numerous complaints to her employer over a period of time. Due to her employer’s failure to address her complaints, she informed them of her intention to speak to a lawyer.
The Court was then required to determine whether this protection extended to complaints or inquiries made to a lawyer. It held that legal advice constituted an inquiry in relation to employment within the meaning of the Act. For that reason 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”.
Murrihy v Betezy.com.au Pty Ltd  FCA 908
By Lily Lu, Employment Claims Adviser