Unfortunately, all too often we see clients who indicate that they have experienced problems at work with bullying, harassment or discrimination, or often they have been unfairly dismissed or underpaid their correct wage.
In many instances, the inappropriate workplace conduct has gone on for months, if not years, but the worker has been too worried about the consequences of speaking up or seeking legal advice.
Clients often say that they fear they will lose their job if their boss finds out they have seen a lawyer.
However, the Federal Court of Australia has recently confirmed the protection under Part 3-1 of the Fair Work Act for workers to make complaints or inquiries relating to their work, including seeking legal advice.
The Fair Work Act protects workers from employers who threaten to take adverse action against an employee if they propose to make a complaint or inquiry in relation to their employment.
Adverse action includes (but is not limited to) acting, organising or threatening to:
- Dismiss or refuse to employ an employee;
- Injure an employee in his/her employment;
- Alter an employee's position to his/her disadvantage;
- Discriminate between an employee and other employees in the workplace.
However, until the recent Federal Court decision, it was unclear as to whether the protection under Part 3-1 was confined to complaints made by the worker directly to the boss, or whether the right to complain could be extended to lawyers, Union officials or other representatives. If the legislation was interpreted so the complaints could only be made to the employer, then a boss would have every legal right to threaten to sack a worker if they sought legal advice.
In that case of Murrihy v Betezy.com.au Pty Ltd, the worker complained to the CEO of the company that she was not being properly paid her entitlements to commissions. The worker told the CEO that if the matter wasn't rectified soon, she would have little choice but to speak to a lawyer. However, it was alleged by the worker that the CEO threatened to sack the worker if she sought legal advice.
In Murrihy, the Federal Court confirmed that "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".
Murrihy was also important for some other reasons. For example, in that case, the employer suspended the employee without pay and removed her access to the computer system. The Federal Court found that taking away computer access privileges amounted to adverse action.
Overall, the Federal Court has confirmed the protection to workers who seek legal advice relating to workplace issues. This protection would also apply to a worker who seeks advice from their Union.
Importantly, this protection should not be confused with other procedural matters under the legislation or specific Enterprise Agreement. For example, just because a worker has a right to seek advice from their lawyer or Union, does not mean that the lawyer or Union can represent them in certain legal hearings or disciplinary meetings.
Therefore, if you feel that there are issues within your workplace, you should feel comfortable seeking legal advice without fearing for your job security. If any direct or indirect threat is made to you about seeking legal advice, speak to a solicitor experienced in employment law immediately. Bosses need to be very careful, because making such a threat will contravene the legislation and potentially make them liable to severe penalties