A worker has successfully sued his employer after he was sacked for complaining about being given additional tasks and responsibilities outside his role. In this article we review this case study and look at how this ruling confirms that workers are protected against being fired for raising issues with pay and conditions.
Mr Wibowo was employed by Vehicle Monitoring Systems Pty Ltd as a data analyst. He began working part-time for 15 hours per week, increasing to full-time work after he completed his Master’s degree in IT.
Mr Wibowo sent an email to his manager and a director of VMS, in February 2020, which expressed concerns that he was performing tasks outside of the scope of his role and that he would:
“…make no guarantee of my commitment to these additional tasks in the future, unless we renegotiate my duties and responsibilities set out in my contract.”
The following day, Mr Wibowo was told that his position was redundant and would be terminated.
Mr Wibowo argued his email was an exercise off his workplace right to make a complaint or inquiry about his employment.
VMS countered that Mr Wibowo had not identified the source of his ability to make the complaint - for example, in a term or provision of a contract or statute.
This issue of whether there must be a source of a right to make a complaint in a term of an instrument - such as a contract, statute, award or enterprise agreement - for an employee to be ‘able to’ make a complaint or inquiry in relation to employment has been the subject of a number of recent court decisions.
Recently, in Alam v National Australia Bank, a Full Court of the Federal Court of Australia, following previous decisions, concluded that it is sufficient if a complaint relates to a subject matter for which the contract provides, rather than there needing to be a right to complain in the contract itself.
In this case, Judge Riley held:
“The employment contract dealt with the applicant’s duties and remuneration. The applicant’s email dated 24 February also dealt with his duties and remuneration. That satisfies Alam. It seems to me that the pleadings were more than sufficient in relation to the complaint."
In finding in favour of Mr Wibowo, Judge Riley concluded that the director decision-maker (a recipient of Mr Wibowo’s email) had decided to make his position redundant after he received the email, in part due to VMS’ financial difficulties but also because of his complaint.
A subsequent hearing will be conducted to determine the amount of any compensation and any penalties.
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