Employee's right to inquire protected

26 Feb 2021


Employee and employer conversation

 

Our Workplace Relations team are a wealth of information on key issues that may impact your private practice. Here's a recent article they prepared on a case that upheld an employee's right to inquire.  

When an employer dismissed an employee for asking questions about a pay review and car-related entitlements, they quickly found themselves on the wrong side of a general protections claim.

The recent case highlights an employee's right to make an inquiry about their employment without fear of dismissal.

Dismissed employees have two key courses of redress.  The first is an unfair dismissal claim, which is common knowledge in Australia.  The second is less well-known: A general protections claim.

General protections claims can take many forms, but one of the most common forms of claims relies on employees showing they were dismissed because they had, has, exercised or proposed to exercise their ‘workplace right’ or was prevented from doing.

In the recent decision of Crispe v Bank of Queensland Limited [2021] FCCA 115 on 28 January 2021, Crispe was successful in his claim that he was dismissed from his employment because he made an inquiry with his employer about the potential of a pay review and the removal of car-related entitlements.

Judge Jarrett found: “seeking information about the possibility of a pay rise is making an inquiry about the terms and conditions of the inquirer’s employment…and so too is making an inquiry about the removal of fuel and parking allowance entitlements”.

The employer essentially objected to Crispe’s claims on the basis that a complaint must be founded on a source of legal entitlement and that an ‘inquiry’ must be underpinned by an identifiable right or entitlement to make a complaint.

Judge Jarrett found the employer’s objections to be “misplaced” in that Crispe had not raised a complaint but made an inquiry.  Judge Jarrett found that an ‘inquiry’ must be “about the employee’s employment”, whether that inquiry is factually correct or not.  He held that an inquiry within the meaning of the general protections provisions can take the “form of a question seeking information for the employer”.

Given the very broad definition of inquiry as affirmed in Crispe v Bank of Queensland Limited, it is crucial that private practice employers seek advice before taking disciplinary action against staff members for making any demand or posing any question relating to their employment, as this could give rise to a successful general protections claim against the practice.


Published: 26 Feb 2021