Federal Court Confirms Seeking Legal Advice is a Workplace Right

Both seeking and proposing to seek legal advice are workplace rights under the Fair Work Act 2009 (Cth), the Federal Court has recently confirmed. This is good news for employees, as it means that employers cannot take adverse action against them in response to the employee seeking legal advice in relation to their employment, or proposing to do so.

The decision in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 addressed various controversial areas relating to the remuneration and other entitlements of Ms Murrihy in her capacity as an employee of Betezy. Ms Murrihy complained to Betezy about the company’s failure to pay her money that she was owed pursuant to two commission agreements. Her complaints were ignored, and she told Betezy’s chief executive that she would seek legal advice. The chief executive responded by telling her that she would be fired if she did so. 

Ms Murrihy claimed that Betezy took adverse action against her because she had proposed to exercise a workplace right. Justice Jessup agreed that threatening to sack someone constitutes adverse action, and that Betezy made this threat because Ms Murrihy had proposed to seek legal advice. The issue then became whether seeking legal advice was in fact a  workplace right.

According to section 341(1)(c)(ii) of the Act, a person has a workplace right if they are able to make a complaint or inquiry in relation to their employment. Betezy’s representatives put forward that this provision should be given a narrow interpretation - that it must be conferred expressly by statute or expressed in a formal grievance procedure in an award or enterprise agreement. Betezy argued that Ms Murrihy was not assured of the right to seek legal advice by any such instruments or procedures. Therefore, Betezy had not breached the adverse action provisions of the Act.

Justice Jessup rejected this interpretation and considered the right Ms Murrihy was seeking to enforce: to be paid all amounts payable. This right is assured by section 323(1) of the Act and His Honour found that there is nothing in that provision to suggest that its benefit should be confined to people in unionised sectors. 

Justice Jessup awarded Ms Murrihy more than $500,000 in damages and compensation for unpaid wages, commissions, interest and superannuation contributions. 

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Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 
Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146

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