“Every time we try to manage this employee, they make another complaint.”
A complaint about their manager.
A complaint about their workload.
A complaint about their pay.
A complaint about how their performance is being managed.
Then another complaint about how the last complaint was handled.
Eventually someone around the executive table says:
“Can we just sack them?”
Potentially, yes.
But this is where employers can walk straight into a general protections claim.
An employee making complaints does not mean they can never be dismissed.
However dismissing an employee because they made those complaints can be a very different story.
And sometimes the difference between the two comes down to a badly worded email, an irritated manager and a decision made at exactly the wrong time.
The Employee Who Complains About Everything
Let’s imagine an employee has been difficult to manage for 12 months.
Their performance isn’t where it needs to be.
Their manager raises concerns.
The employee responds by complaining that the manager is bullying them.
Performance management continues.
The employee then complains to HR that they are being unfairly targeted. HR investigates and doesn’t substantiate the complaint Another performance meeting is scheduled. Another complaint arrives. At some point management becomes exhausted.
Then comes the email I never want to see:
“We can’t keep dealing with these complaints. We need to get this person out of the business.”
That one sentence completely changes the complexion of the matter.
Making a Complaint Can Be a Workplace Right
Section 340 of the Fair Work Act 2009 (Cth) protects employees from adverse action because they have, exercise or propose to exercise a workplace right.
Under section 341, an employee may have a workplace right where they are able to make a complaint or inquiry in relation to their employment.
Depending on the circumstances, this can potentially include complaints or inquiries about:
- pay and entitlements;
- workplace safety;
- bullying or harassment;
- discrimination;
- leave;
- contractual entitlements; or
- other matters relating to their employment.
Dismissal is one form of adverse action.
So the employer may have completely legitimate concerns about an employee’s performance or conduct.
However if one of the reasons for dismissing them is that they exercised a workplace right, the employer may find itself defending a general protections claim.
“Wait on… Their Complaint Was Wrong”
For Employers and managers this can be frustrating
The employee complains.
Management investigates.
The allegations aren’t substantiated.
Management concludes:
“They were wrong, so surely we can deal with them now.”
That is not always the case.
The important issue is not necessarily whether the employee ultimately proves the allegation underlying their complaint.
The issue is whether making the complaint or inquiry was the exercise of a workplace right and whether adverse action was taken because of it.
A Case Example
Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430 provides a useful example of how badly things can go.
Timothy Ruttley had worked for the business for more than 20 years.
Over time, a number of issues developed.
He made a workers’ compensation claim.
He also repeatedly made inquiries about his accrued leave entitlements, including requests for information about leave and questions about the non-payment of entitlements.
The Court found those inquiries amounted to the exercise of a workplace right.
His employment was eventually terminated.
The Court found the employer had taken adverse action against Mr Ruttley because, among other things, he had exercised his workplace right by making inquiries about his leave entitlements.
The employer was ordered to pay $162,631 in compensation, plus interest.
A later penalty decision, Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 919, resulted in further penalties.
The lesson for employers isn’t that an employee who complains can never be dismissed.
It is that the reason for the dismissal is integral.
Complaining Doesn’t Make an Employee Bulletproof
This point is equally important.
Employees don’t obtain immunity from performance management simply by making a complaint.
Otherwise the result would be ridiculous.
An employee is performing poorly.
The employer starts performance management.
The employee complains about their manager.
Performance management stops forever.
That is not the position.
The better approach is to keep the two issues separate.
Here are key questions to consider…….
The complaint
What has been alleged?
Does it require investigation?
Who should deal with it?
Is the manager involved in the complaint?
The performance or conduct issue
What are the concerns?
When were they identified?
What evidence supports them?
Were they raised before the complaint?
Has the employee been given a proper opportunity to respond and improve?
The danger comes when the two streams become mixed together. Particularly when management starts treating the employee’s complaints as part of the performance problem.
When the Manager Has Had Enough
Managers are human.
If an employee repeatedly complains about them, frustration can build.
The language starts to change:
“They are impossible.”
“Everything becomes an HR issue.”
“They are always complaining.”
“I can’t manage them anymore.”
Then that same manager recommends dismissal.
That is when I start getting nervous.
Not necessarily because the performance concerns aren’t genuine.
Moreso because the evidence may suggest the complaints themselves have become part of the manager’s frustration with the employee. This is integral in a general protections case.
Who Actually Made the Decision?
Before a difficult termination, I want to know who is actually making the decision.
The CEO?
The General Manager?
The employee’s direct manager?
HR?
Then I want to understand why that person is making the decision.
Not simply what is going to be written in the termination letter.
The actual reason.
A carefully drafted letter saying:
“Your employment is terminated due to ongoing performance concerns.”
doesn’t necessarily solve the problem if the internal emails say:
“We need to get rid of them because these complaints are becoming ridiculous.”
The termination letter is evidence.
So are the emails.
So are Teams messages.
So are meeting notes.
And so is the evidence of the person who actually made the decision.
The evidence needs to tell the same story.
Five Questions I Would Ask Before Termination of Employment
Where an employee has recently made complaints, I would want clear answers to these five questions.
- What is the actual reason we are considering termination?
Be specific. “It’s just not working” isn’t enough.
- Did the performance or conduct concerns exist before the complaints?
If they did, show the evidence.
- Have the employee’s complaints been properly dealt with?
Moving straight from complaint to termination can create a difficult factual sequence to explain.
- Who is actually making the termination decision?
What do they know about the complaints and what are their reasons for making the decision?
- If every email, Teams message and meeting note became evidence, would they support the reason we say we terminated the employee?
This one is self-explanatory and the one I would spend the most time on as both in a proactive and reactive perspective.
So, Can I Sack an Employee Who Keeps Making Complaints?
Potentially, yes.
An employee who makes complaints can still be performance managed. They can still be disciplined for legitimate misconduct. And there may still be circumstances where their employment can lawfully be terminated.
However, the complaint itself cannot become a prohibited reason for adverse action.
The above 5 questions, are key questions to ask before termination of employment.
Need Assistance?
South Geldard Lawyers regularly assists employers, HR teams and executives with:
- Termination of Employment
- General Protections Claims
- Unfair Dismissal Matters
- Workplace investigations
- Psychosocial hazard management
- Manager and leadership training
Check out our Proactive Legal Packages – legal input built into how you manage people, day to day, One predictable monthly investment, not surprise invoices. Advice from a team who already knows your business. Issues caught and resolved before they become expensive. Get in contact via jmamaril@southgeldard.com.au or 07 4936 9100.
