{"id":2721,"date":"2021-02-04T16:02:07","date_gmt":"2021-02-04T05:02:07","guid":{"rendered":"https:\/\/www.olexo.com.au\/?p=2721"},"modified":"2021-02-04T16:02:07","modified_gmt":"2021-02-04T05:02:07","slug":"employees-right-to-inquire-upheld","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=2721","title":{"rendered":"Employee’s right to inquire upheld"},"content":{"rendered":"

Published 4 February 2021<\/em><\/p>\n

Crispe v Bank of Queensland Limited [2021] FCCA 115<\/em><\/strong><\/p>\n

In Crispe v Bank of Queensland Limited [2021] FCCA 115 <\/em>the Federal Circuit Court heard on an interlocutory application to strike out portions of a Form 2 lodged by Mr Crispe (the Applicant<\/strong>). The Applicant had brought an unfair dismissal claim against his former employer, Bank of Queensland Limited <\/em>(the Respondent<\/strong>), alleging that he had been dismissed for making an \u201cinquiry\u201d in relation to his employment, pursuant to section 341(l)(c)(ii) of the Fair Work Act 2009 (Cth)<\/em> (the FW Act<\/strong>). The Respondent argued that the Applicant had no right to make an inquiry. The interlocutory application was dismissed.<\/p>\n

Facts <\/strong><\/span><\/p>\n

The Applicant claimed that adverse action was taken by the Respondent in response to the Applicant exercising a workplace right by making an inquiry about his employment. Namely, the Applicant had enquired with his employer about the decision to remove the fuel and parking allowance entitlements that the Applicant had previously received and asked for his pay grade to be reviewed because he believed that it was not commensurate with his role. The Applicant\u2019s position was terminated shortly thereafter.<\/p>\n

The Respondent filed an interlocutory application with the Federal Circuit Court to have parts of the Applicant\u2019s Form 2 removed on the basis that the Applicant had not in fact made an \u201cinquiry\u201d pursuant to section 341(l)(c)(ii) of the FW Act.<\/p>\n

Issue<\/strong><\/span><\/p>\n

Had the Applicant made a complaint or inquiry in relation to his employment under section 341(l)(c)(ii) of the FW Act?<\/p>\n

Law<\/strong><\/span><\/p>\n

Section 340(1) of the FW Act provides that a person, such as an employer, must not take adverse action against another person, such as an employee,<\/p>\n

(a)\u00a0 because the other person:<\/u><\/p>\n

(i)\u00a0 has a workplace right; or<\/p>\n

(ii)\u00a0 has, or has not, exercised a workplace right;<\/u> or<\/p>\n

(iii)\u00a0 proposes or proposes not to, or has at any time proposed or<\/p>\n

(b)\u00a0 to prevent the exercise of a workplace right by the other person.<\/p>\n

Section 341 of the FW Act sets out the meaning of a workplace right<\/u> as:<\/p>\n

(1)\u00a0 A person has a workplace right if the person:<\/p>\n

(a)\u00a0 is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or<\/p>\n

(b)\u00a0 is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or<\/p>\n

(c)\u00a0 is able to make a complaint or inquiry:<\/u><\/p>\n

(i)\u00a0 to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or<\/p>\n

(ii)\u00a0 if the person is an employee–in relation to his or her employment. <\/u><\/p>\n

(emphasis added<\/u>)<\/p>\n

Decision <\/strong><\/span><\/p>\n

The Federal Circuit Court found that the Applicant did make an \u2018inquiry\u2019 about his employment by asking about his pay rate and his entitlements and dismissed the Respondent\u2019s interlocutory application.<\/p>\n

Both the Respondent and the Applicant made submissions in relation to whether the Applicant was \u2018able to make\u2019 an inquiry pursuant to the wording of section 341(1)(c) of the FW Act, and both parties referred to precedents on the topic.<\/p>\n

The Respondent claimed the Applicant was only \u2018able to make\u2019 a complaint if he had some identifiable right to make the complaint, pursuant to Shea v TRU energy Services (No 6) <\/em>[2014] FCA 271. Conversely, the Applicant argued that the \u2018entitlement\u2019 was not about a right to make a complaint, but rather about the broader entitlement to complain or inquire about his employment, as was established in PIA Mortgage Services Pty Ltd v King<\/em> [2020] FCAFC 15.<\/p>\n

Judge Jarrett course-corrected both the Applicant and the Respondent, noting that the precedents referred to by the parties related only to making a complaint, and not to making an inquiry. His Honour highlighted that both words are included in the legislation for a reason and this case is a good example of what the difference between the two terms is; to seek information about the \u2018possibility of a pay rise\u2019 is making an inquiry about the terms of employment. Judge Jarrett added that the Applicant\u2019s ability to make an inquiry arises from the terms of the employment contract that relate to remuneration.<\/p>\n

The Respondent had submitted that the Applicant\u2019s actions did not amount to an \u2018inquiry\u2019 because he merely asked questions. Judge Jarrett noted it is \u2018entirely conceivable\u2019 that an inquiry would take the form of a question seeking information. He continued by saying:<\/p>\n

\u201c\u2026the inquiry or complaint need have no other character. By that I mean the complaint does not have to have substance or the subject of it be true. Nor the subject matter of any inquiry. Once the employee establishes that he or she has made a complaint or inquiry about their employment, the issue becomes whether the adverse action taken by the employer (assuming adverse action is established) was taken for a proscribed reason.\u201d<\/em><\/p>\n

The Federal Circuit Court held that the Applicant has pleaded a cause of action for a breach of a general protection and no part of the Form 2 was to be struck out.<\/p>\n

The Take Home<\/strong><\/span><\/p>\n

Employees are entitled to make inquiries and complaints about their employment without threat of dismissal, or other adverse action being taken against them. What constitutes a \u2018complaint or inquiry\u2019 is broad and does not necessarily have to be reliant on some substantive entitlement. This is particularly the case in relation to the making of an \u2018inquiry\u2019. An employee may wish to simply clarify how their pay rate is determined and this may constitute an \u2018inquiry\u2019 for the purposes of a general protections claim.<\/p>\n

The key factor for a general protections claim, where adverse action in the form of a dismissal has been taken against an employee, will be whether the employer made the decision to take that action in response to the inquiry or complaint. The intention of the employer will be crucial.<\/p>\n

\n

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations. Working Knowledge recommends that specialist legal advice should be sought about specific legal issues.<\/p>\n","protected":false},"excerpt":{"rendered":"

Published 4 February 2021 Crispe v Bank of Queensland Limited [2021] FCCA 115 In Crispe v Bank of Queensland Limited [2021] FCCA 115 the Federal Circuit Court heard on an interlocutory application to strike out portions of a Form 2 lodged by Mr Crispe (the Applicant). The Applicant had brought an unfair dismissal claim against […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[201],"tags":[],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/2721"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2721"}],"version-history":[{"count":0,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/2721\/revisions"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2721"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2721"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2721"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}