Beware of the "informal" HR complaint

HR professionals and employers are often left with the vexing question of what to do when an employee complains about their employment, but does not commit to pursuing a “formal complaint”.

A recent decision of the Federal Circuit Court of Australia warns against relying on such a distinction, upholding an adverse action claim based on an “informal complaint”.

In Anderson v BNP Paribas Securities Services, an analyst complained to HR about a confrontation he had with his manager, he also raised concerns about the employer’s “work culture”. The analyst’s manager subsequently recommended the analyst’s dismissal and withdrew a previous offer to extend the analyst’s probationary period.

The employer claimed the analyst’s employment was terminated on the basis of performance and denied that the termination was in any way related to the concerns he raised. It submitted that the analyst’s concerns did not constitute a “formal complaint” and had a complaint been made, it would have been investigated appropriately.

Judge Driver accepted that the analyst was asked on several occasions whether he wished to make a formal complaint and he found that the analyst “did not formally pursue his complaint but neither did he abandon it”. Judge Driver said the analyst’s complaints should not have been “so lightly dismissed’ and held that the analyst’s concerns constituted a complaint for the purpose of s.341(c)(ii) of the Fair Work Act 2009 (Act) – meaning it was a workplace right and the analyst was protected from adverse action because of it.

Tips for Employers

• Employers are reminded that dismissals during a probationary period may still attract the General Protections of the Act and lead to adverse action claims.

• Employers should be cautious about disregarding employee complaints simply because they are raised “informally”.

• HR professionals should be supported with sufficient training and expertise to review complaints and advise line managers about the appropriate action required.

• Grievance procedures should have sufficient flexibility to enable an employer to take action, such as conducting an investigation of the complaint, without the need for an employee to elect the process.

• External workplace investigators can support HR professionals to enable appropriate advice to be provided in a timely way.