Cummins South Pacific Pty Ltd v Keenan
Citation: [2020] FCAFC 204
At a glance
- Employees affected
- 1
What happened
Andrew Keenan worked for Cummins South Pacific for approximately 34 years as an engineer and later senior manager. He made five complaints between July 2014 and October 2015: about colleague Sharmili Baldota's conduct; about the fairness of a Performance Improvement Plan; that he was extremely stressed; and an ethics case against colleagues. Following these complaints, Keenan experienced adverse actions including dismissal in October 2015. He also claimed underpayment of long service leave upon termination because service with a related entity overseas was not counted.
What was decided
At first instance, all claims succeeded. The Federal Circuit found Cummins breached s.340 by taking adverse action because Keenan made complaints (workplace rights). It also found breach of s.352 (dismissal due to illness absence). Reinstatement and substantial compensation were ordered. On appeal, the Full Court allowed the appeal in part. It found some complaints did not qualify as 'complaints' under s.341(1)(c)(ii) because they were not made to persons or bodies with capacity to enforce workplace laws. The s.352 finding was upheld. The matter was remitted for mediation.
What it means for employers
Making complaints about employment conditions, subjective work processes, or stress constitutes exercising workplace rights. Dismissing employees for making such complaints constitutes adverse action breaching s.340. However, not all informal grievances constitute statutory 'complaints' under s.341(1)(c)(ii) – the person or body receiving the complaint must have capacity under a workplace law to seek compliance.
What it means for employees
Employees can make complaints to employers about employment matters without fear of dismissal. Complaints are protected workplace rights. However, complaints must be made to appropriate bodies with authority to enforce workplace laws to receive full protection. Dismissal for raising legitimate employment concerns is unlawful.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →