..



.

Business News

What happens when employees are fired for complaining at work

  • Written by Elizabeth Shi, Lecturer, Graduate School of Business and Law, RMIT University
What happens when employees are fired for complaining at work

It’s illegal for an employer to fire an employee for complaining under the Fair Work Act[1], but in a study[2] of 30 courts cases we found it’s difficult for employees to prove they have been fired because of complaining or questioning their employer.

The vast majority of victimisation claims in courts involve the employers dismissing employees. However the way these cases are interpreted by the courts often leaves employees defenceless and gives employers excessive managerial powers.

Read more: How racism and a lack of diversity can harm productivity in our workplaces[3]

We looked at cases from 2009 to 2017 and found for employees who have been fired after making a complaint, it’s very difficult to prove that the complaint or inquiry caused the victimisation. We also found the law isn’t clear whether the complaint must be based on a legal instrument such as the employee’s contract.

Common defences used by employers

When an employee is dismissed after making a complaint, it’s relatively easy for the employer to hide the true reason for dismissal. For example, in the case Milardovic versus Vemco Services[4], the employer alleged redundancy was the reason behind Mr Milardovic’s dismissal and not the complaint he had made regarding workplace bullying.

The court accepted this evidence, despite the fact that Milardovic’s employer had immediately replaced Milardovic’s position with two new positions, one of the positions being the exact same role which made Milardovic redundant. The court relied heavily on the employer’s testimony that the real reason for dismissal was redundancy.

As part of our research, we found that employees’ complaints are regularly being relabelled by the employers as “conflict”, “bad attitude” and “lack of cultural fit”. These have been accepted by the courts as legitimate reasons for dismissing an employee.

Read more: A focus on goals rather than behaviour is creating workplace monsters[5]

The case of Dos Santos versus Decjuba Enterprise[6] is an example of this type of relabelling. The employer alleged the reason for Ms Dos Santos’ dismissal was due to “difficulties” between her and her managers, not because of her complaint to the manager.

However, in reality, when an employee complains to the employer, difficulties or conflict would be a natural consequence of complaining. It would be inevitable in most situations where someone is complaining.

If the courts accept that the conflict is a valid reason for dismissal, it’s incongruent with the legal provisions protecting the right to complain or inquire under the Fair Work Act.

In a small minority of cases, we found courts have been more objective in their assessment of the evidence. For example, in the case of Anderson versus BNP Paribas Securities Services[7], although the employer alleged Anderson’s dismissal was for performance reasons, the court was able to ascertain through the timeline of events and the quick-tempered nature of the manager, that Anderson’s dismissal was due to his complaint and not due to the alleged performance reasons. The court ordered the employer to pay compensation to Mr Anderson.

There is lack of clarity about how complaints should arise

Recent cases in 2014-17 have tended to have a broader view of the basis for employees’ complaint, it’s no longer a strict requirement that a complaint must arise from something like a contract.

The current view is that unless there is some prohibition against making a complaint or inquiry, an employee would be entitled to make a complaint or an inquiry. This is without any statute or contract expressly entitling the employee to make a complaint or inquiry.

In the case of Evans versus Trilab[8], the employee was a state manager of engineering for a company that undertakes soil and rock classification testing. He complained to his supervisors that the method of testing was incorrect and not compliant with relevant Australian Standards.

Subsequent to his complaint, the employer dismissed him, alleging performance reasons. The employer argued that the complaint was not within the scope of the right to complain in the Fair Work Act[9].

The judge held that the complaint was within the scope of the right to complain, despite the fact that the method could be construed as a management decision.

This decision demonstrates a broader approach than earlier court findings[10] where management decisions were held to be outside the scope of the employee’s right to complain.

What if you want to complain but are worried about being fired?

In order to be successful in court, it’s important for employees to formalise their complaint. It’s a good idea for employees to raise a complaint through the human resources department of a large business.

Employees working for smaller businesses without a human resources department are best documenting their complaint. They can also formalise the complaint by requesting a formal meeting with the employer to address the complaint, with a union representative coming along as a support person where possible.

Documentation of emails, positive performance reviews, positive customer feedback and good sales records can also be important evidence in court to rebut the arguments the employers may make in court.

If you’re maintaining your professionalism at all times in the workplace (including when complaining) it will make it more difficult for employers to argue that conflict or bad attitude was the reason for dismissal.

It might be difficult to fight a dismissal if the complaint you’re being dismissed for doesn’t relate to a legal document, like your work contract. This is because cases have sometimes relied on this as the proof needed for a valid complaint.

Although recent cases indicate a more lenient interpretation of the law, it’s still quite difficult to successfully link the complaint with the dismissal in court. However, the steps mentioned above should assist in the preparation for a legal battle, should that battle become necessary.

References

  1. ^ Fair Work Act (www.austlii.edu.au)
  2. ^ but in a study (www.lexisnexis.com.au)
  3. ^ How racism and a lack of diversity can harm productivity in our workplaces (theconversation.com)
  4. ^ Milardovic versus Vemco Services (www.austlii.edu.au)
  5. ^ A focus on goals rather than behaviour is creating workplace monsters (theconversation.com)
  6. ^ Dos Santos versus Decjuba Enterprise (www.austlii.edu.au)
  7. ^ Anderson versus BNP Paribas Securities Services (www.austlii.edu.au)
  8. ^ Evans versus Trilab (www.austlii.edu.au)
  9. ^ Fair Work Act (www.austlii.edu.au)
  10. ^ earlier court findings (www.austlii.edu.au)

Authors: Elizabeth Shi, Lecturer, Graduate School of Business and Law, RMIT University

Read more http://theconversation.com/what-happens-when-employees-are-fired-for-complaining-at-work-90939

Business Daily Media Business Development

4 Best Budget-Friendly Attractions in Las Vegas

Perhaps no other city in the world deserves the moniker “Sin City” more than Las Vegas. This city has been illustrated in countless works of art as the place where dreams are made, lives a...

News Company - avatar News Company

Bahrain Property Show 2018: How does it reflect the real estate market development in Bahrain

It is no secret that the Arabian Peninsula and the Gulf Cooperation Council (GCC) countries are currently going through a lot of pivotal changes. Such changes do not include economic or po...

News Company - avatar News Company

Di Jones real estate recognises high achievers

Di Jones celebrated its outstanding performers on Saturday (24 February 2018) evening at the Di Jones Real Estate Annual Awards.                               The black-tie Gala Dinner s...

Helen Hull - avatar Helen Hull

Five Reasons Melbourne Rules

If you are traveling in Australia and have left Melbourne off your destination list, then you are going to want to reconsider. Many people consider Melbourne to the best city in the world...

News Feature Team - avatar News Feature Team

Making Friends During Your Campsite Stay

Part of the excitement of vacation is meeting people who you would never otherwise encounter. Staying at a campsite isn’t just about taking in nature. It’s also about sharing the beauty of n...

News Feature Team - avatar News Feature Team

Have More Fun On Your Business Trips

Whether you are a traveling salesman or someone who finds themselves on the road more than in their office you probably are grateful for any tips you can get especially if they involve havin...

News Feature Team - avatar News Feature Team

Business Daily Media Business Reports

Di Jones real estate recognises high achievers

Di Jones celebrated its outstanding performers on Saturday (24 February 2018) evening at the Di Jones Real Estate Annual Awards.                               The bla...

Helen Hull - avatar Helen Hull

Eclipse Travel Expands Operations to New Zealand

Eclipse Travel, specialists in key adventure destinations such as Antarctica, the Arctic, Africa and Latin America, have announced today their expansion of operations to ...

Yvonne Kong - avatar Yvonne Kong

How medical professionals can benefit from an overall wealth management solution

As a health care professional, you have made it your life's work to focus on the care and health of the general public. While this kind of work can be extremely rewarding...

News Feature Team - avatar News Feature Team

Why Pinterest Should Be Part of Your Marketing Strategy

Pinterest is a growing social media platform that can deliver significant traffic to your website and new followers to your brand. With it’s steady growth and outrageous ...

Greg Nunan - avatar Greg Nunan

The top reasons why gyms fail

Steve Grant is a Business Coach and Founder of GymHub.com.au   Every month thousands of new trainers walk out of their 6-month course with the qualifications needed ...

Steve Grant - avatar Steve Grant

WHITE LABEL NOBA’s Winter 2016 season: Earth + Country

Taking cues from the warm winter colours of tobacco and caramel, and combining them with the strength of navy and the embracing lightness of whites and creams; and then...

Kath Rose - avatar Kath Rose

Former Etihad boss brings substantial event insight to PMY Group Board

Paul Sergeant PMY Group, the architects of the digital insurgency occurring at major venues across Australia and New Zealand, are delighted to welcome 35 year even...

Annie Konieczny - avatar Annie Konieczny

More training for coffee making than property sales: REINSW

Sydney 9 May 2016. An overhaul of education and training standards for the real estate profession must take place to help prevent illegal activities, according to the Rea...

Helen Hull - avatar Helen Hull