The facts

Mr Trevena was employed by Thiess as a casual administrative assistant. He worked at a site controlled by QCG Ltd where Thiess provided services to QCG Ltd in relation to a natural gas project. While he was working at QCG Ltd’s site, he reported to Mr Jones. Mr Jones was an employee of QCG Ltd.

Mr Jones made a sarcastic comment about the terminal illness being suffered by Mr Trevena’s father. This made Mr Trevena quite upset. Mr Trevena’s brother, who was also employed by Thiess, submitted a complaint to Thiess against Mr Jones on Mr Trevena’s behalf. Mr Trevena claimed that Thiess had taken adverse action against him because he had exercised a workplace right to make a complaint ‘in relation to’ his employment.

Did Mr Trevena exercise a workplace right?

In defending Mr Trevena’s application, Thiess argued that Mr Trevena had not exercised a workplace right. Amongst other things, it submitted that the complaint was made by Mr Trevena’s brother, that it was made against a person who was not an employee of Thiess, and that the complaint was so unreasonable and baseless that it did not constitute a ‘complaint’ for the purposes of the adverse action provisions.

In determining the matter, his Honour found that Mr Trevena did make a workplace complaint in relation to his employment. In so doing, he stressed the phrase ‘in relation to’ is to be interpreted in a broad sense. He made this finding on the basis that the complaint concerned comments that were made by Mr Trevena’s supervisor while Mr Trevena was carrying out work during the course of his employment with Thiess. The fact that the complaints were made against a person who was not employed by Thiess, and that the complaint was submitted by his brother, were not relevant.

However, despite Tracey J finding that Mr Trevena did make a workplace complaint in relation to his employment, he determined that the complaint was so unreasonable and baseless that it did not constitute a ‘complaint’ for the purposes of the adverse action provisions. In so doing, he said that the fact that Mr Trevena might have been mistaken about the tone used by Mr Jones did not make the complaint unreasonable. He suggested that only ‘extreme’ complaints which are clearly ‘contrived’ or ‘baseless’ will not constitute a ‘complaint’.

Lessons for employees

Tracey J’s decision provides an important reminder to employers of the breadth of the concept of a ‘complaint in relation to’ a person’s employment. It suggests that employers should be mindful that the general protections provisions may be engaged by a broad range of complaints made by employees, including complaints made about third parties who are present on work sites and complaints which are mistaken but not baseless.