Seeking legal advice can be a workplace right

Cases

Seeking legal advice can be a workplace right

Legal advice falls within the connotation of a complaint or inquiry within the meaning of ‘workplace right’ in the Fair Work Act and so could give rise to an action based on adverse action, the Federal Court has found.

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Legal advice falls within the connotation of a complaint or inquiry within the meaning of ‘workplace right’ in the Fair Work Act 2009 and, consequently, could give rise to an action based on adverse action, the Federal Court has found.
 
 
Section 341 of the Fair Work Act provides (in part): ‘(1) A person has a workplace right if the person: … (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee — in relation to his or her employment …’

Commission not paid
 
The applicant-employee and the respondent-employer (an online betting agency) entered into agreements entitling the applicant to commission calculated as a percentage of net gaming and wagering revenue. The applicant claimed she had not been paid these commissions.
 
The applicant claimed that her employer had threatened to dismiss her if she sought legal advice to recover the moneys she claimed were owing to her and therefore took adverse action under s340 of the Fair Work Act 2009 (Cth) against her.
 
She also claimed that her employer had taken adverse action against her under s340 by removing her access to its computer systems and ceasing to pay her salary upon her obtaining legal advice. The respondent claimed the action was taken because of the employee’s alleged misuse of Cabcharge facilities

The employee argued that seeking legal advice about unpaid commissions was a ‘workplace right’. Consequently, when she threatened to exercise that right, her employer took adverse action against her by threatening to dismiss her.
 
Reasoning
 
Justice Jessup in the Federal Court analysed the legislation and agreed with the employee-applicant:
‘In the present case, it was not the employer to whom the applicant proposed to make a complaint or inquiry: it was her solicitor. Indeed, she had been making complaints to her employer over an extended period.
 
It was the inefficacy of those complaints, and the applicant’s frustrations with the respondents’ failure to address them, that led to her advising Mr K on 20 September 2011 that she proposed to seek legal advice.
 
The question, therefore, is whether the seeking of legal advice falls within the connotation of a complaint or inquiry within the meaning of s 341(1)(c)(ii).
 
[Broader scope of legislation]
 
A significant innovation introduced by the FW Act was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s323(1) of the FW Act.
 
Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is — and there would have been at the time of the introduction of this provision — no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations.
 
Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.
 
Against the wide terms of s341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision.
 
[Should be able to contact solicitor without repercussions]
 
That such an 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, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred.
 
Further, to regard the seeking of legal advice as an “inquiry” within the meaning of para (c) is, in my view, a natural reading of the provision. I take the view, therefore, that the applicant’s proposal, conveyed to Mr K on 20 September 2011, that she would seek legal advice was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act …’
Orders
 
The court found in favour of the employee in relation to her claim for four years of unpaid commissions.
 
Justice Jessup said the employer’s record-keeping had made it difficult to calculate the amounts owing, but said in those circumstances it was up to the court to do its best to quantify the employee’s losses.
 
The court ordered that a date be settled to decide on appropriate damages to be awarded.
 
Message for employers: Workplace rights continue to be explored in the courts. This case demonstrates that the concept is a broad one.
 
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