The Case

Mr Henry was dismissed from Leighton Admin Services Pty Ltd after he made complaints about one of Leighton’s projects going over budget and Leighton overstating its revenue by $14 billion.

Mr Henry commenced two adverse action proceedings in the Fair Work Commission, which then continued to the Federal Circuit Court. Mr Henry claimed that Leighton dismissed him:

• because he exercised a workplace right in making his complaints; and
• on the grounds that his opinions about Leighton’s financial reporting were political opinions.

Leighton made an application to the Court that the claims should be dismissed because they lacked reasonable prospects of success.

The Verdict

The Federal Circuit Court refused to strike out the claims.

Mr Henry relied on section 341(1)(c) of the Fair Work Act 2009 (Cth) in claiming that he “was able to make a complaint or inquiry in relation to his employment.”

Leighton contended that the phrase “able to” in section 341(1)(c) meant that Mr Henry had to have some statutory or contractual entitlement, and that the phrase “in relation to his employment” did not extend to Leighton’s financial reporting.

The Court, however, adopted a literal reading of the phrase “able to”, and a broad interpretation of “in relation to his employment”. It found that Leighton’s code of conduct contained an obligation on employees to act with “honesty and integrity” and to “promptly raise known or suspected breaches”.

As such, the Court held that Mr Henry “was contractually obliged to complain if he suspected there were breaches of the law.” The Court therefore held that there was an obligation to complain under Mr Henry’s employment contract, and this had the necessary ‘relation’ to his employment.

Mr Henry argued that his opinions about Leighton’s conduct were political opinions on the basis that complaints of contraventions of the Corporations Act 2001 (Cth) bear on “the relationship between the government and the governed”. The Court agreed.

The Lesson

This decision does not mean that Mr Henry will be successful at the final hearing. However, it does demonstrate that the Federal Circuit Court is favouring a broad interpretation of workplace rights and a willingness to include contractual obligations, such as codes of conduct.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.