Sacked hours after chasing her car and phone allowances

What happened

Melinda Devonshire was hired by Magellan Powertronics Pty Ltd as its Business Development Manager. According to her, the agreed package was a $67,000 base salary, a $14,000 a year car allowance, a mobile phone allowance of $140 a month and a 2% commission on sales. She said she asked several times for a written contract and never received one.

She said her pay was wrong almost from the start. On her account, she emailed the National Sales Manager on 1 December 2011 because she had been paid incorrectly, followed up on 15 December, and sent more emails before and after her Christmas leave because her salary, car allowance and phone allowance were still not being paid correctly.

On 27 January 2012 she raised it again and was called to a meeting with the company's director. She said he told her she was not worth the money, that he was not happy to pay her the correct salary, and that he was not happy she had taken holidays. After the meeting she felt unwell. She emailed the director and the General Manager to say she had gone to the doctor, and the General Manager replied asking her to bring a doctor's certificate.

At 4.03pm that day the General Manager emailed her under the subject "Contract Termination". The email cited her discussion with the director, the fact that she left the office, her "refusal to wear the company uniform" and her "lack of sales to date", and noted she was still within her three-month probation. She sent the company her medical certificate on 24 February 2012.

The claim and the employer's response

Ms Devonshire, who represented herself, brought a general protections claim. She said the company took adverse action against her (dismissing her) because she had a workplace right, contrary to s 340 of the Fair Work Act 2009 (Cth), and that it dismissed her while she was temporarily absent through illness, contrary to s 352. She sued the company and also its sole director and its General Manager personally.

Rather than go straight to a trial, the company and the two individuals asked the court to decide three questions first. They argued that her questions about pay were not a workplace right, that her sick leave claim failed because the certificate came after she was dismissed, and that the two individuals were not her employer and should be removed from the case. If they had won, her claim would have ended without a trial.

Why: the legal test

A workplace right is defined in s 341. It includes being entitled to the benefit of a workplace law, and being "able to make a complaint or inquiry" about your employment. The employer argued that the second limb only covers formal complaint processes, such as a complaint to a regulator, and not an employee simply asking the boss.

Federal Magistrate Lucev rejected that argument. Section 323 requires an employer to pay the amounts owed to an employee for their work in full and in money, so Ms Devonshire's claim to be paid her salary and allowances was the benefit of a workplace law. Separately, relying on earlier decisions and on the explanatory memorandum to the Fair Work Bill, he held that an employee can make a complaint or inquiry directly to their employer and that this can be a workplace right.

On the sick leave claim, the regulations protect an absence where the worker provides a medical certificate (or statutory declaration) within 24 hours or "such longer period as is reasonable in the circumstances". The employer said the rule applies only to current employees. The court called the submission a "nonsense": a dismissed worker will often provide the certificate after the dismissal. Whether a four-week delay was reasonable was left for the trial.

Finally, s 550 makes anyone "involved in" a contravention liable as if they had committed it. Both individuals admitted dealing with her pay, and the General Manager sent the dismissal email. The court described their argument as "without any merit whatsoever" and kept them in the case.

What the court decided

All three questions went Ms Devonshire's way and the employer's application was dismissed. This was not a final win. The court did not decide why she was dismissed, and the company had said it ended her employment for other reasons, including the uniform and her sales. Those questions were left for a trial. We have not found a later published judgment deciding the claim.

What this means for you

If you have asked your employer about unpaid wages, allowances or commission and were dismissed or treated worse soon afterwards, the timing may support a general protections claim. In such a claim the employer must prove that your complaint was not a reason for what it did. It helps to keep your emails, your payslips and any written record of what you were promised.

Since this decision, the Full Court of the Federal Court has said that not every complaint qualifies: it must be founded on a right or entitlement. In one of those cases the majority held that a complaint to your employer that it has broken your employment contract, or a law about your employment, is enough, so a complaint like Ms Devonshire's should still be covered. A general protections claim about a dismissal must usually be lodged with the Fair Work Commission within 21 days.