Published 4 August 2015
The Federal Circuit court refused to strike out a claim made an employee, who claims to have been terminated for complaining about company’s potential breaches of the corporations act. In doing so, the court offered a broad interpretation of the meanings of ‘workplace right’ and ‘political opinion’ in the Fair Work Act 2009 (Cth).
Mr Henry’s employment was terminated from his role as Technical Manager within the Leighton’s Risk Team. The termination occurred after he had made complaints that one of the company’s projects had gone over budget by $205 million, and that the company had overstated its revenue by $14 billion. Mr Henry file proceedings in the Federal Circuit Court. Among four different causes of action, Mr Henry alleged two separate adverse action claims. Firstly, that Leighton’s terminated his employment because he exercised a workplace right in making the complaints, and alternatively that the termination was on the grounds of his ‘political opinion’.
Leighton’s made an application to the court that all four of the claims should be knocked out because the applicant lacked a ‘reasonable prospect of success ’.
The court held that Leighton had not succeeded in their contention that Mr Henry lacked a ‘reasonable prospect of success’, and accordingly refused to strike out the statement of claim.
In rejecting the respondents application Manousaridis J adopted an inclusive interpretation of the phrases ‘workplace right’ and ‘political opinion’ in the Fair Work Act 2009 (Cth).
Mr Henry relied on the definition found in s 341(1)(c) in claiming that he “was able to make a complaint or inquiry in relation to his employment.” Leighton argued firstly that the phrase ‘able to’ necessarily suggested some statutory or contractual entitlement of the employee, and that the phrase ‘in relation to his employment’ did not extend to aspects of the corporation’s financial reporting. Manousaridis J preferred both a literal reading of ‘able to’, and a broad reading of ‘in relation to his employment.’ Of particular relevance was the fact that the Leighton’s Code of Conduct contained an obligation on the employee to act with ‘honesty and integrity’ and to ‘promptly raise known or suspected breaches’. The court held that:
“Mr Henry became aware of the matters about which he complained in the course of undertaking the duties he was required to undertake. ….Thus, the subject matter of Mr Henry’s complaint related to a matter about which he was contractually obliged to complain if he suspected there were breaches of the law.”
The court subsequently held that this obligation to complain under his employment contract created the necessary ‘relation’ to his employment.
Mr Henry also alleged that his opinions about the conduct of the company were ‘political opinions’, because in alleging contraventions of the Corporations Act 2001 (Cth)that opinion bears on ‘the relationship between the government and the governed’. Manousaridis J held that:
“In my opinion, Mr Henry’s alleged views can reasonably be characterised as an opinion that corporations should obey the law. That, in turn, can reasonably be regarded as constituting a political opinion because it is about how citizens, in particular, “corporate citizens”, should conduct themselves in our society.”
With this interpretation, the court was unable to rule that Mr Henry lacked a reasonable chance of success.
This ruling does not necessarily indicate that the Applicant will be successful in proving his case on his asserted facts. However this judgment shows a hesitancy from the Federal Circuit Court to favour literal constructions of the General Protections Provisions, and a willingness to include contractual obligations, such as codes of conduct, into the statutory concept of ‘workplace right’.