General protection rights to “whinge and moan” in the workplace,
General protection rights to “whinge and moan”, is great topic and needs to be explored, what is a general protection right?, what is a complaint? Under the General protections provisions of the Fair work Act, and the subsequent decisions of the Fair work Commission and courts, its generally accepted that you cannot be dismissed for excising a workplace right. Ie the right to complain. But when do general protection complaints cross over to an employee whining and moaning about their workplace?.
We get calls constantly from employees who complain every week, every time, or little detail or happening at work they are not happy with. It goes without saying employers are not happy with what they see as a distraction. We see this particularly in probations periods.
Of course its your right to complain at any time. However sometimes be smart about it, wait until your probation period is up, or the qualifying period is over. It gives you the rights to lodge an unfair dismissal claim, perhaps a more substantial general protections claim. Employers know this and will approach the issue in a more even handed way. That doesn’t mean you have to put up with a toxic workplace, or an bullying workplace or breaches of OH&S. Its your decision, I’m just pointing this out.
What is my general protection claim worth, click here
Lets examine what the Fair work Commission and the Federal court have decided
Manager has failed to win anti-bullying orders
In Fair work Commission case of Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd & Josie Williams, a manager has failed to win anti-bullying orders against a female supervisor after the FWC found that his “violent objection” to being placed on a performance improvement plan at times became “blatantly misogynistic”.
On 3 June 2021, Mr Donovan Christopher Jnr Scott (Mr Scott) filed an application pursuant to s.789C of the Fair Work Act 2009 (the Act). To the Fair Work Commission (the Commission) for an order to stop bullying. Mr Scott’s employer is Vita People Pty Ltd (Vita People). The application sought an order to stop bullying against Ms Josie Williams, Business Manager at the North Queensland Telstra Business Technology Centre. And Mr Matt Parks, Regional Manager Brisbane.
Mr Scott was an account manager for Telstra service provider Vita People and began reporting to his former colleague, Ms Josie Williams. This was last year after her promotion to business manager at the Telco’s business technology centre in Townsville. Following concerns about missing targets, late starts, customer service. also listening to LinkedIn podcasts during work hours, the employer imposed a PIP on Mr Scott in April 2021. Mr Scott responded to the development by telling Ms Williams, “Dude you’re wrong, this is bullshit“.
Reasonable and lawful direction
Commissioner Hunt of the Fair Work Commission described Mr Scott’s consternation regarding the reasonable and lawful direction to complete a certain number of GES unassigned tasks each month is extraordinarily immature. Ms Williams didn’t create or determine the numbers that all Account Managers needed to achieve; Vita People determined it as a business, based on its client’s requirements. Mr Scott’s refusal to comply with this reasonable and lawful direction was described as disruptive. Also rude behaviour towards Ms Williams.
Disrespectful behaviour was blatantly misogynistic
Commissioner Hunt also acknowledged that Mr Scott’s disrespectful behaviour towards Ms Williams was blatantly misogynistic. As he would continually verbally refer to her as dude, bro or man. Ms Williams repeatedly informed him of her displeasure at being referred to in masculine terms. However it appeared Mr Scott had deliberately continued to use these references towards Ms Williams. Commissioner Hunt reasonably concluded that Mr Scott would have been unlikely to have addressed his manager in such a condescending and rude manner if his manager was male.
Ultimately, Commissioner Hunt held that Ms Williams had been “correct” in placing the manager on a PIP. Which she did with the “full authority” of Vita People management. Commissioner Hunt acknowledged that Ms Williams did not need Mr Scott’s consent nor his agreement as to what was within the PIP. Additionally her conduct was reasonable management action carried out in a reasonable manner.
Whilst this decision relates to an application for an order to stop bullying. Commissioner Hunt does make reference to Mr Scott’s “complaints” or lack thereof. In her decision, Commissioner Hunt made an interesting assertion regarding the effect of Mr Scott’s disputation of having to perform the task.
What is a complaint?
Given this task was performed satisfactorily by his peers, Commissioner Hunt found that Mr Scott whinged and moaned about having to perform the task. When he had no right to do so. This comment raises an interesting point in respect of what is considered a complaint. When a person has a right to complaint and when will a person’s “complaint” be disregarded as no more than a mere unjustifiable whinge.
No right to “whinge and moan”
A workplace right is defined s.341(1) of the Fair Work Act 2009 (Cth)(the Act). It includes a person’s workplace right to initiate or participate in a process or proceedings under a workplace law or workplace instrument, or to make a complaint or inquiry. The focus of this piece is on a person’s workplace right to make a complaint or inquiry in relation to his or her employment.
Complains or enquiry
In Shea v TRUenergy Services Pty Ltd (No 6). The Federal Court discussed the parameters of “complaint or inquiry.” In summary, they found that:
- A complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
- The grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
- The grievance, finding of fault or accusation need not be substantiated, approved or ultimately established. But the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
- The proper purpose of making a complaint is giving notice of the grievance, accusation or finding of fault. So that it may be, at least, received and, where appropriate, investigated or redressed;
- A complaint may be made not only to an external authority or party within the power to enforce or require compliance. Or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
- A complaint that an employee is able to make in relation to his or her employment is not at large. But must be founded on a source of entitlement, whether instrumental or otherwise; and
- A complaint is limited to a grievance. Finding of fault or accusation that satisfies the criteria in s341(1)(c)(ii). And does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint.
A person has a workplace right
This broad interpretation of the Act was also adopted in Henry v Leighton Admin Services Pty Ltd. where the Federal Circuit Court stated at : “A person has a workplace right within the meaning of s341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employment rights and obligations or about matters which may prejudice the person in his or her employment.
A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations. Or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment”.
In Evans v Trilab Pty Ltd. The Court stated that a complaint or inquiry need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry for the purposes of the FWA; and only have an indirect nexus with a person’s terms or conditions.
Reported the wrong-doing of others
In general protections claim of Walsh v Greater Metropolitan Cemeteries Trust (No 2). Justice Bromberg of the Federal Court expanded the term to include instances where the subject matter of the complaint or inquiry raises an issue with potential implications for the complainant’s employment – in this case an employee reported the wrong-doing of others.
In Rowland v Alfred Health, the Court held that a complaint or inquiry must be in relation to the employee’s employment. Prima facie this appears to be a constriction of the term; however Rowland has not since been cited with approval.
Whether a complaint or inquiry will be accepted to be in accordance with the general protections provisions of the Act. Will depend on the facts, circumstances and context of each matter. Given the rather narrow scope of a workplace “complaint or inquiry” and as evident in Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd & Josie Williams. An employee does not have the right to simply whinge and moan in the workplace.
These tasks need to be performed by somebody
As held by Commissioner Hunt, no employee will ever like every single task they are required to perform. There are many tasks that employees perform which they consider to be irrelevant, unnecessary, unpleasant, of no utility or boring. Reasonable employers will try and limit the amount of unpleasant tasks an employee is required to perform. The reality is in life, these tasks need to be performed by somebody. As long as a task falls within the realm of reasonableness and is considered reasonable management action. An employer can direct their employee to complete such a task and the employee cannot object.
Conclusion to “General protection rights to “whinge and moan””
Thank you for reading “General protection rights to “whinge and moan””. The answers are not always easy, we are here to help you. We are A Whole New Approach, long established advocates for employees. We are always researching general protections and unfair dismissal cases.
To keep you up to date what are best practices, what the tribunal and courts are deciding. There nothing more political than workplace relations, its effects all working Australian’s, its changing daily.
Another article on general protections that may be informative, click here
General protections application, click here
Excising your workplace rights, click here
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.