Ground 1(b): Whether the primary judge erred in finding that "complaints or inquiries" had been made
116 Ground 1(b) of the Amended Notice of Appeal alleges that the primary judge erred in law in finding that Mr Smith made "complaints or inquiries" within the meaning of s 341(1)(c)(ii) of the FWA.
117 In paragraph 29 of his Amended Statement of Claim, Mr Smith alleged that he said words or provided letters to Mr Burns and Mr Aisthorpe that amounted to "complaints or inquiries" within s 341(1)(c)(ii) of the FWA. This allegation required that findings be made as to whether the words were said, and whether they were "complaints or inquiries".
118 The appellants submit that the primary judge erred in finding that Mr Smith said the words he claimed to have said on 8 June, 10 July and 17 October 2017. However, the evidence of Mr Burns and Mr Aisthorpe did not contradict Mr Smith's evidence as to what he said on these occasions. As these aspects of Mr Smith's evidence were uncontradicted, there was no error made by the primary judge in accepting his evidence.
119 On 12 June 2017, Mr Smith told Mr Burns that he wanted the Directors to consider his need to attend hospital and medical appointments and to consider having some work outsourced. Mr Smith said there was a danger that he would end up working hours in excess of those stipulated in the medical certificate due to his excessive workload.
120 The appellants submit that the language used by Mr Smith on 12 June 2017 was of mere requests for further discussion and consideration of particular matters, and was not a "complaint or inquiry". The appellants rely upon Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271, where Dodds-Streeton J held at [581] that a "complaint" is more than a mere request for assistance and must state a particular grievance or finding of fault.
121 In my opinion, Mr Smith made a "complaint" on 12 June 2017. The words used by Mr Smith must be understood in the context of:
his provision of a medical certificate on 5 June 2017;
his statement to Mr Aisthorpe on 5 June 2017 that due to his medical condition he needed more resources to assist him to do his job;
his request on 5 June 2017 for a follow-up meeting to discuss these matters; and
his evidence that following receipt of an email from Mr Burns dated 7 June 2017, he was under pressure to work hours in excess of those indicated in the medical certificate.
122 In addition, at an earlier meeting on 8 June 2017, Mr Smith had told Mr Burns that he was working excessive hours, feeling stressed and was not well due to his medical condition and that he needed urgent additional assistance. Mr Smith had also said that in view of his need to work reduced hours, he could not see how he was going to get all of his work completed because his role was so busy and that it was necessary to out-source some jobs to assist with his workload. Mr Smith deposed that his request for the purchase of another computer and to employ an additional draftsperson was denied.
123 Seen in this context, Mr Smith's statements at the meeting on 12 June 2017 cannot be considered to be merely a request for assistance, but a grievance that his requests had not so far been acceded to. In my opinion, the primary judge was correct to hold that Mr Smith had made a "complaint" within s 341(1)(c)(ii) of the FWA on 12 June 2017.
124 The appellants also submit that his Honour erred in holding that words that were said by Mr Smith on 12 June 2017 and those contained in his letter dated 14 September 2017 were "complaints or inquiries" within s 341(1)(c)(ii) of the FWA.
125 Mr Smith wrote a letter, which he delivered to the offices of Mr Burns and Mr Aisthorpe on 14 September 2017, and again handed to Mr Aisthorpe at a meeting on 19 September 2017. Mr Smith's letter complained of the offer of a $20,000 annual salary increase and 10% profit share. The letter complained of the additional duties, such as completing timesheets, that would be required of him. It complained that he had continually requested accounting and financial details for management and financial planning purposes and additional staff, but that these had not been provided. It complained that the offer made on 29 November 2016 to make him a Director with a 10% profit share had been withdrawn.
126 The appellants submit that, in respect of the letter of 14 September 2017, no workplace right existed because Mr Smith did not have an entitlement to have his salary increased and his Honour found that no agreement had been made about any wage or incentive package or the directorship. They also submit that his Honour erred in taking into account the concession of Mr Aisthorpe that the letter constituted a "complaint" concerning aspects of Mr Smith's employment.
127 Section 340(1)(a)(ii) of the FWA provides, relevantly, that, "a person must not take adverse action against another person…because the other person…has…exercised a workplace right". Section 341 defines the expression "workplace right". Under s 341(1)(c)(ii), a person, "has a workplace right if the person…is able to make a complaint or inquiry…if the person is an employee - in relation to his or her employment."
128 In Shea v TRUenergy Services Pty Ltd, Dodds-Streeton J held:
625. In my opinion, the requirement that the complaint be one that the employee 'is able to make' in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
129 In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225, Charlesworth J and I held:
12. We respectfully agree with Dodds-Streeton J that s 341(1)(c)(ii) of the FW Act contemplates that not every complaint that an employee makes in relation to his or her employment is one the employee is "able to make" (for present purposes, it is unnecessary to address the ability to make an inquiry). The question then arises as to how the provision distinguishes complaints that come within its reach from those that do not.
13. Justice Dodds-Streeton considered that the word "able" refers to an entitlement or a right. We respectfully agree…
14. On the understanding that s 341(1)(c)(ii) requires an entitlement or right to make a complaint in relation to the employee's employment, there must be an identifiable source of that entitlement or right. In Shea, Dodds-Streeton J did not suggest that the entitlement or right is limited to one arising under an instrument such as legislation, an industrial instrument, or a contract of employment. In fact, her Honour was careful not to attempt any exhaustive description of the source of the right to make a complaint or inquiry. Nor did her Honour suggest that the entitlement or right must be conferred expressly or directly by the source.
…
19. Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is "able to make a complaint" about his or her employer's alleged breach of the contract of employment. That ability is "underpinned by" (to use Dodds-Streeton J's expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.
20. Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is "able to make a complaint" within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint.
…
26. An employee is "able to complain" to his or her employer within s 341(1)(c)(ii) of the FW Act concerning the employer's alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is "able to complain" to the employer or to a relevant authority of their employer's alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority. As Dodds-Streeton J held in Shea at [29], the complaint must be made genuinely, in good faith and for a proper purpose.
130 In PIA Mortgage Services, the majority held that the words "is able to make" in s 341(1)(c)(ii) are, impliedly, words of limitation, and not every complaint made by an employee in relation to his or her employment is one that the employee is "able to make". The majority held that s 341(1)(c)(ii) requires that an employee have an entitlement or right to make a complaint in relation to his or her employment. The sources of such an entitlement may include a statute, a contract of employment, or the general law.
131 In dissent, Snaden J preferred a narrower construction, deciding at [167]-[169] that complaints made in aid of asserting rights allegedly conferred by statute or by the general law are not complaints an employee is "able to make" for the purposes of s 341(1)(c)(ii) of the FWA.
132 In Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400; [2020] FCAFC 204, Bromberg J (with whom Mortimer J agreed) adopted a wide view to what constitutes a complaint or inquiry that an employee is "able to make" within s 341(1)(c)(ii). His Honour disagreed with the approach taken in Shea and PIA Mortgage Services, concluding at [19]-[20] that the text, context and purpose of the provision indicate that a complaint need not be sourced in a right or entitlement of the employee to make the complaint, or be about a right or entitlement held by the employee. His Honour said:
34. …There is nothing in the text and in particular the words "is able to", which suggests that any inquiry is required as to the provenance of the ability held, that is, how the ability was acquired or whether or not there is some underlying foundation for its existence. All that matters, on the plain words of the provision and in the context of its function, is whether or not the circumstance exists that the protected person has or holds the specified ability.
133 Justice Bromberg continued:
45. For many of the reasons already canvassed, there is no textual basis for the other way in which the observations in Shea have been understood - that the ability to complain or inquire referred to in s 341(1)(c) must be underpinned by a right or entitlement. It is the fact that the protected person has the particular ability described that is the actuating circumstance serving the function which I have explained. As earlier stated, how the person acquired that ability, or the source or provenance of that ability is not addressed by the text of s 341(1). It may be accepted that the text contemplates that not all persons will necessarily have the particular ability in question, but, contrary to the approach taken by Dodds-Streeton J, it does not follow that the intended beneficiaries of the protective reach of the provision are only those persons who have that ability because of some right or entitlement. The actuating circumstance is the fact that the protected person has the ability and not a right or entitlement which has enabled that ability to be held. Read in context with its operative prohibition (s 340(1)(a)(i)), if an ability specified by s 341(1) held by the protected person actuates the adverse action taken, the prohibition will have been engaged.
46. The position may have been different if a person's ability to initiate or participate in a process or proceeding under a workplace law or workplace instrument or the ability to make a complaint or inquiry were necessarily acts only able to be done as of right or by virtue of some legal entitlement. But that is not the case. In particular, a complaint or an inquiry are both simple acts constituted by a communication. It is difficult to think of a circumstance in which the ability of a person to make an inquiry depends upon a legal right to do so. People are ordinarily free to make an inquiry of others without some legal right or entitlement to do so. So too in relation to the making of a complaint. These are activities which are not ordinarily enabled by some legal right or entitlement. There is nothing in the inherent features of those activities which suggests that the draftsperson sought to limit the protective reach of s 340(1) so that only adverse action taken because of a right or entitlement to inquire or complain is prohibited. Nor is there any discernible basis for thinking that, in providing the protection of s 340(1), the framers of the legislation sought to distinguish between an ability to complain or inquire as of right and an ability to complain or inquire absent some legal right or entitlement to do so. What policy or purpose can be discerned to justify that distinction? If the purpose of the provision is to facilitate the making of complaints or inquiries without fear of retribution, as I consider it is, why would it matter whether the complaint or inquiry is sourced in a particular right or entitlement? It is the protected person's ability or capacity to inquire or complain, not some legal right or entitlement to do so, which is the subject of the protective intent of the scheme. To my mind, when s 341(1)(b) and (c) are construed by reference to their text and purpose, with a proper appreciation of their function undistracted by the "workplace right" label which has been assigned to the actuating circumstances described in s 341(1), that conclusion is crystal clear.
(Underlining added.)
134 Although Bromberg J did not directly explain how the phrase "is able to" in s 341(1)(c)(ii) of the FWA was to be interpreted, I understand his Honour to have construed the phrase as meaning "is capable of". Under that construction, as long as an employee is able to make, in the sense of being capable of communicating, a complaint or inquiry in relation to his or her employment, the employee has a "workplace right". It would follow that in any circumstance where an employee makes a complaint or inquiry in relation to his or her employment, the employee exercises a workplace right.
135 I accept that the true construction of s 341(1)(c)(ii) of the FWA is uncertain. At least three different views have been expressed, and each is fairly arguable. While I appreciate the force of Bromberg J's carefully reasoned judgment, I adhere to the opinion expressed by Charlesworth J and myself in PIA Mortgage Services that the expression "is able to" in s 341(1)(c)(ii) of the FWA implies that an employee must have an entitlement or right to make a complaint in relation to his or her employment.
136 The word "able" and the phrase "is able to" are ambiguous. One meaning ascribed by the Macquarie Dictionary is, "to have the capability or capacity to". That is the meaning that I understand Bromberg J to have adopted. However, that is not the only possible meaning. Another is, "is qualified to". It is in that sense that the phrase was interpreted in Shea and PIA Mortgage Services. An employee "is able to" make a complaint or inquiry if he or she qualified to do so. The qualification that is required is an entitlement or right to make a complaint or inquiry.
137 Which meaning is to be ascribed must depend upon the context in which the words are used. An important aspect of context is, as Dodds-Streeton J pointed out in Shea at [625], that the phrase "is able to" suggests that that there are complaints which an employee is not able to make in relation to his or her employment. In that sense, "is able to" are words of limitation, and imply that there must be an entitlement or right to make a complaint. It is true, as Bromberg J observed in Cummins at [46], that people are ordinarily free to make an "inquiry" of others without some right or entitlement to do so, but the construction of the phrase as requiring an entitlement or right has work to do in respect of "complaints".
138 This construction of "is able to" in s 341(1)(c)(ii) of the FWA is consistent with the way the same phrase is used in s 341(1)(b) and in s 341(1)(c)(i). Under s 341(1)(b), a person has a "workplace right" if, "the person…is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument". It may be noted that this provision applies, not merely to an employee, but to "a person". The provision seems most unlikely to be intended to apply to any person who is merely physically and mentally capable of initiating or participating in a relevant process or proceeding. The provision envisages that the person has a qualification - a right or entitlement - to initiate or participate in a relevant process or proceeding. In other words, the provision implies that the person must have the standing, or at least arguably have the standing, to do so. Section 341(1)(c)(i) of the FWA provides that person has a "workplace right" if, "the person…is able to make a complaint or inquiry…to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument". That provision also envisages that the person has a right or entitlement to make a complaint to the relevant body. A construction of the same phrase in s 341(1)(c)(ii) as imposing no similar qualification would be discordant.
139 The construction preferred by the majority in Cummins would have the consequence that ss 340(1)(a) and 341(1)(c)(ii) of the FWA prohibit an employer from taking any adverse action against an employee because the employee has made or proposes to make any complaint in relation to his or her employment. The phrase "in relation to" is one of considerable width. The construction in Cummins is consistent with s 340 having the purpose of protection of employees. But, it must also be recognised that such protection is provided within limits. Section 340(1) prohibits adverse action taken because a person has, exercises or does not exercise, or proposes to exercise or not exercise, "workplace rights"; or to prevent a person from exercising such rights. Section 341 then limits the width of protection by defining what "workplace rights" are. The scope of the protection is also limited by the definition of "adverse action" in s 342. That there are inbuilt limits to the scope of the protection is unsurprising, given that the object of the FWA is, under s 3, "to provide a balanced framework for cooperative and productive workplace relations".
140 As the object of the FWA is to provide balance, it would be surprising if the scales were tipped in favour of employees to the extent that would occur under the construction of s 341(1)(c)(ii) of the FWA given by the majority in Cummins without that intention being made clear. If there is any such intention, it can only be gleaned through one possible interpretation of the ambiguous phrase "is able to". Under that construction, just as there is no room for the implication of a requirement of an entitlement or right to complain or inquire, there would be no room for the implication of any other limitation. There could be no implication of the requirement by Dodds-Streeton J identified in Shea at [29] that a complaint must be in good faith and for a proper purpose. There could be no implication of any limitation where a complaint in relation to employment is made, not to the employer or some statutory body, but, for example, to the media or to the public via social media. Just as there are some vexatious litigants, there may be vexatious employees who repeatedly make genuinely believed, but objectively unjustified, complaints against fellow employees or an employer. Yet the protection for an employee who makes a complaint in relation to his or her employment would, under the interpretation in Cummins, be so broad that the employer could not threaten or take any disciplinary or legal action, amounting to adverse action, against such an employee, even to protect other employees or the employer's business. Even though the same outcome might occur in some situations under the interpretation given in Shea and in PIA Mortgage Services, that interpretation may potentially provide some measure of protection for an employer against contravening a civil penalty provision. In my opinion, that measure of protection explains the legislative intention in requiring that an employee must have an entitlement or right in order for the employee to "be able to" make a complaint.
141 The thorough analysis of the legislative history undertaken by Bromberg J in Cummins is instructive, but I do not consider that it supports the construction of s 341(1)(c)(ii) of the FWA favoured by his Honour. That history shows that there has been a progressive widening of the circumstances in which employers are prohibited from taking adverse action against employees. However, the width of the protection afforded would be expanded to the extent that there is absolute protection against adverse action for an employee who makes a complaint in relation to his or her employment. The history does not support an inference that a broadening to such an extent was intended.
142 I accept that the Explanatory Memorandum for the Fair Work Bill provides support for the construction adopted by the majority in Cummins. It states that cl 341(1)(c)(ii), "specifically protects an employee who makes any inquiry or complaint in relation to his or her employment". However, the section itself does not refer to "any" inquiry or complaint. The implication of limitation given by the expression, "is able to make a complaint or inquiry", cannot be ignored. The Explanatory Memorandum cannot displace the countervailing considerations.
143 The opinion expressed by Charlesworth J and myself in PIA Mortgage Services that the expression "is able to" in s 341(1)(c)(ii) of the FWA requires that an employee have an entitlement or right to make a complaint in relation to his or her employment does not, it must be acknowledged, result in perfect consonance of all the textual and contextual factors. In particular, it may be that such a limitation applies, in practical terms, only to a complaint, and not to an inquiry. However, the alternative constructions are less satisfactory. This is the preferable construction.
144 The appellants submit that Mr Smith's complaints on 12 June 2017 were not complaints that he was "able to make" within s 341(1)(c)(ii) of the FWA. In PIA Mortgage Services, the majority held that the sources of an employee's entitlement or right to make a complaint may include a statute, a contract of employment, or the general law. I consider that Mr Smith's complaints that his workload was excessive and potentially damaging to his health found a source in at least s 19 of the Work Health and Safety Act 2011 (Qld), which requires a person conducting a business to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the person.
145 The appellants submit that Mr Smith's complaints in his letter of 14 September 2017 were not complaints that he was "able to make" within s 341(1)(c)(ii) of the FWA. I accept that Mr Smith did not have any contractual entitlement to have his salary increased, so that his complaint about the salary increase offered to him was not a complaint about any alleged breach of contract. No other source of any entitlement or right to make that complaint has been identified.
146 However, the salary increase was not the only topic of the letter of 14 September 2017. Mr Smith also complained that the Directors had "dishonoured the original offer" of a directorship and a 10% profit share. In the proceeding before the Federal Circuit Court, Mr Smith alleged that he had accepted the offer, and that there was a concluded and binding agreement. Understood in this context, Mr Smith was complaining of a breach of contract by his employer in relation to his employment in his letter of 14 September 2017. It is not to the point that the primary judge ultimately concluded that there was no binding agreement. It has not been suggested that the complaint was not made in good faith. The source of Mr Smith's entitlement to make that complaint was the general law. Accordingly, his letter of 14 September 2017 did contain a complaint that he was "able to make" within s 341(1)(c)(ii) of the FWA.
147 As the primary judge accepted that Mr Smith had made a complaint that he was "able to make" about his employer's failure to adequately increase his remuneration, that was an error. However, in view of all the other complaints that were established as fully within s 341(1)(c)(ii), and the substantial and operative role they played in the decision to terminate Mr Smith's employment, the error did not affect, and could not have affected, the outcome. The error did not cause any substantial injustice.
148 The appellants assert that the concession by Mr Aisthorpe in his evidence that the letter of 14 September 2017 was a complaint was irrelevant and should not have been considered by the primary judge. However, an issue required to be determined by the primary judge was whether the letter contained a "complaint" in the sense of a grievance, rather than, for example, a mere request. Mr Aisthorpe's understanding of the letter as a complaint was relevant to that issue and to the reasons for the termination of Mr Smith's employment and was able to be taken into account by the primary judge.
149 Mr Smith relies upon a Notice of Contention which goes to issues substantially wider than those raised by the appellants. In view of the conclusions I have reached, it is unnecessary to address the Notice of Contention.
150 For the reasons I have given, Ground 1(b) must be rejected.