The Case

(2018)

Mr Fatouros was a project manager for Broadreach Services Pty Ltd (Broadreach). Mr Fatouros was aware that the CEO had stopped paying one of the main subcontractor’s invoices on a project he was managing. Mr Fatouros was concerned this would jeopardise completion of the project and could lead to legal action.

As such, Mr Fatouros sent:

• an email to the CEO expressing his disappointment with how the matter was being handled (Mr Fatouros proposed a part-payment be made to the subcontractor for the outstanding fees so that the subcontractor could continue work and the rest of the payment could be sorted out later); and
• an email to two other senior executives in Broadreach complaining about the CEO’s handling of the matter.

Mr Fatouros’ employment was terminated 1 week later for reasons including the fact he had indicated in the email to the two senior executives that he did not believe the CEO was acting in the best interests of the company.

Mr Fatouros commenced general protection proceedings, alleging that Broadreach had taken adverse action against him by terminating his employment as a result of him exercising a workplace right to make a complaint in relation to his employment, namely about the CEO.

Broadreach argued that the right to make a workplace complaint could only be made about matters concerning the employment contract and the legislation, such as salary and leave entitlements. Broadreach argued the general protection provisions did not extend to complaints about executives of the business.

The Verdict

The Federal Circuit Court (FCC) found in favour of Mr Fatouros, finding there was no basis to support the narrow interpretation of a workplace complaint sought to be relied upon by Broadreach.

The FCC held that the emails that Mr Fatouros sent were complaints and enquiries within the meaning of the general protections provisions. Mr Fatouros’ complaints arose directly out of his employment and his performance of his work as a project manager given that:

• he was responsible for the management of the project involving the subcontractor, and as such, whether the subcontractor stopped working was a part of Mr Fatouros’ employment duties; and
• how the project progressed materially affected Mr Fatouros’ employment.

Since the emails were a reason for Mr Fatouros’ employment termination, Broadreach had engaged in adverse action.

Mr Fatouros was awarded:

• $131,723.22 in lost wages and entitlements (plus interest);
• $1,266.12 as reimbursement of outstanding expenses; and
• $12,500 as a penalty, given he had to commence proceedings to achieve resolution of the matter, and Broadreach did not accept it had engaged in adverse action and was not remorseful for its conduct.

The Lessons

This decision supports the broad interpretation of what classifies as a workplace complaint under the Fair Work Act 2009 (Cth). In essence, a complaint about anything affecting the employee’s employment has the potential of being covered by the general protection provisions.

Exercise great care when taking any action in response to an employee’s workplace complaint.

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.