Get What You Want From Your Employer and not dismissed in the process.
Avoid dismissal and Get What You Want became increasingly relevant in the general protections claim of Ridd v James Cook University (JCU).[1] An academic challenged his dismissal by his Employer in the Federal Circuit Court of Australia, based on his own beliefs regarding climate change. In 2015, Professor Ridd told a journalist that JCU needed to “check their facts before they spin their story”. As “bad science” and misleading photos were being circulated about climate change and its effect on the Great Barrier Reef. Professor Ridd was dismissed as he was found to have breached JCU’s code of conduct.
Justice Vasta found that JCU’s code of conduct (which stipulates that staff are not to jeopardize the integrity or standing of the university or its reputation) was “subordinate” to an intellectual freedom clause in its 2013 Enterprise Agreement. Professor Ridd was awarded more than $1.2 million for multiple agreement breaches under the Fair Work Act.
Disagreeing with your employer
This case raises the issue of where and when is it acceptable to disagree with your Employer. How there may be no place for “courtesy” in the workplace. Employees are in a tricky situation when they do not see eye-to-eye with their boss. How do you disagree with a person who most likely hired you? Who has the power to potentially dismiss you? If an employee speaks up, they run the risk of being seen as “difficult” or “argumentative”. If an employee stays silent, they could seem “ambivalent” or “complacent”.
It is important to convey your point of view in the workplace, but it must be done so strategically.
Time it Right
Firstly, it is important to carefully consider the time and place for where and when you want to raise a contrary opinion. If your manager tends to prefer group or team meetings to share ideas. Then this may be the perfect opportunity to speak up. It is important to remember not to seem aggressive or condescending. If you feel your boss may be embarrassed by having that conversation in front of an audience, pull him aside and have a one-on-one chat to talk it out. Ensuring you pick the right time. This will make a great deal of difference in how your boss reacts to your disagreement.
Keep it Professional
Disagreements should not be personal nor should they be expressed when a person is angry, emotional or upset. You should not let your emotions take over but instead endeavour to remain calm at all times during a disagreement. If you address a disagreement in a way that is perceived as an attack, your boss may not take this well. It is important to approach the situation in a respectful manner as this is the most effective way to discuss your differences, without the need for conflict.
Listen to their point of view
In a successful disagreement setting, the employee should approach the discussion by clearly stating his Employer’s position on the issue. By acknowledging and validating your boss’s opinion, you are showing him that you respect his opinion and authority. You are helping your boss feel as if he is being heard and understood. Thus, by building this rapport with your boss, he will hopefully extend this same respect towards you and hear you out, despite your differing opinion.
Bond over the end result
If you and your boss are working towards a common goal, it may be helpful to exhibit a commitment to achieving this goal. Or to the overall success of the business. If your boss can sense that your differing opinion or disagreement stems from your commitment to see the business succeed. It will demonstrate to your boss that you are not disagreeing with him due to a personal vendetta. Further, it is best to demonstrate to your Employer that this disagreement is not you attacking him or merely being a pest. But the purpose is to provide constructive criticism and an alternative opinion on how the end goal can be achieved. This will ensure you and your boss have built a rapport and are on the same team with the same end result, despite your disagreement or differing views.
Respect the Final Decision
In the end, your Employer will have the final say. (companies are not democracies). If he or she has considered your point of view but does not decide to take on board your suggestion or alternative view, you need to respect that. Although you may feel as though this is unfair, you need to know when it is time to respect your manager’s decision, let it go and move on.
Can I complain about the final decision or the disagreement?
If you decide to escalate the matter and complain to your boss’s superior or an external third party, such as making statements to a journalist as in Ridd v James Cook University (JCU),[2] you may be subject to disciplinary action.
Although the General Protections provisions prohibit an Employer from taking adverse action against an employee. Because they have exercised their workplace right. And made a complaint or enquiry in relation to their employment, this protection is only available if your complaint falls within the parameters of “complaint or inquiry”. Unfortunately, the Fair Work Act 2009 (Cth) does not define complaint or inquiry, so we must rely on relevant case law to determine whether a complaint is protected.
It has been held that the complaint or inquiry must originate from or be an incident of the contractual arrangements or statutory framework surrounding the employment.[3] Further, it has also been held that a complaint or inquiry made by an employee must be based on a genuine objection. Or grievance and should not be made for any ulterior purposes.[4]
Are my complaints protected?
In CFMEU v Pilbara Iron Company (No 3),[5] the fact that the employee had raised concerns or complaints about safety issues within the workplace was found to be the exercise of workplace right. The complaints did not relate to his own personal working conditions, safety or environment. However were complaints made out of concern for the safety of employees at that workplace generally.
In Walsh v Greater Metropolitan Cemeteries Trust (No. 2),[6] the Federal Court observed that an employee could make a complaint about misconduct that had an effect on another employee, but not on the employee making the complaint directly. That may be sufficient to demonstrate the exercise of a “workplace right” by that employee. Thus, the Court found that the complaint did not need to be directly related to the employment; an indirect relationship was enough.
Based on the relevant case law, it is unlikely that complaining about any general disagreement with your Employer, will be protected under the General Protections provisions. The actual disagreement would need to be explored and assessed. For instance, complaining about the boss having a different view about how a project goal is to be reached, may not constitute a complaint or inquiry under the Fair Work Act 2009 (Cth). Instead, this complaint may be perceived as a retaliation and for the ulterior purpose of challenging the boss’s authority.
Avoid dismissal and Get What You Want
I hoped to liked the article on “Avoid dismissal and Get What You Want”. Need any help with workplace matters. Give us a call at A Whole New Approach. We are not employment lawyers, but leading workplace advisors. For all Fair work Commission matters workplace investigations, general protections, unfair dismissals. Being sacked and any related matters, including diversity in the workplace. We are proud of our staff and the outcomes they get for our clients. Termination of employment, give us a call, free, confidential, prompt advice is here for you 1800 333 666.
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Citations
[1] [2019] FCCA 997.
[2] [2019] FCCA 997.
[3] Harrison v in Control Pty Ltd (2013) 273 FLR 190.
[4] Shea v TRUenergy Services Pty Ltd (No. 6) [2014] FCA 271.
[5] [2012] FCA 697.
[6] [2014] FCA 456.
