Unfair Dismissal Case Report: Fair Work Commission Confirms Employees Can Be Dismissed for the Way They Make Workplace Complaints

Can You Be Fairly Dismissed for Making Workplace Complaints?

One of the most frequently asked questions in unfair dismissal matters is whether an employer can lawfully dismiss an employee who repeatedly makes workplace complaints.

The short answer is yes—but not simply because the employee exercised a workplace right.

The Fair Work Commission recently considered this issue in Li v Commonwealth of Australia as represented by the Department of Health, Disability and Ageing [2025] FWC 3902, ultimately finding that the dismissal was not unfair because the reason for dismissal was the employee's conduct, rather than the mere fact that complaints had been made.

For anyone considering an unfair dismissal application, this decision provides important guidance on the difference between exercising workplace rights and engaging in conduct that may justify disciplinary action.

Unfair Dismissal Case Report: Fair Work Commission Confirms Employees Can Be Dismissed for the Way They Make Workplace Complaints

Background to the Unfair Dismissal Application

Dr Xinguo Li commenced employment with the Commonwealth Department of Health, Disability and Ageing in 2018 as a Compliance Evaluator.

Over the following years, he lodged a significant number of workplace complaints concerning:

• management decisions;

• workplace bullying;

• harassment;

• work health and safety;

• workplace culture;

• performance management;

• procedural fairness;

• alleged breaches of the Fair Work Act;

• alleged breaches of the Public Service Act; and

• the Department's handling of previous complaints.

Following an extensive Code of Conduct investigation, the Department terminated his employment.

Dr Li subsequently lodged an unfair dismissal application with the Fair Work Commission under section 394 of the Fair Work Act 2009.

Why Was the Employee Dismissed?

The employer did not argue that employees cannot make complaints.

Instead, it argued that the dismissal resulted from a continuing pattern of conduct, including:

• repeatedly re-submitting complaints that had already been investigated;

• reformulating earlier complaints to restart investigations;

• making repeated allegations against supervisors after matters had been finalised;

• escalating complaints to numerous internal and external decision-makers; and

• communicating with managers in a manner that was disrespectful, intimidating and disruptive.

This distinction became central to the Commission's decision.

The Employee's Case

The applicant argued that:

• he was exercising protected workplace rights;

• he had genuine concerns regarding management;

• his complaints were legitimate;

• he had been subjected to bullying and victimisation;

• the disciplinary investigation was procedurally unfair; and

• there was no valid reason for dismissal.

These are issues frequently raised in unfair dismissal claims before the Fair Work Commission.

The Fair Work Commission's Decision

After considering more than 6,400 pages of evidence, the Fair Work Commission dismissed the application.

Deputy President Dean concluded that there was a valid reason for dismissal.

Importantly, the Commission accepted that:

• employees have an unquestionable right to make workplace complaints; but

• employees also have obligations to communicate respectfully and comply with reasonable workplace standards.

The Commission found that the applicant had engaged in what it described as:

• persistent complainant conduct; and

• unreasonable complainant conduct.

Employees Have Workplace Rights—But Those Rights Have Limits

One of the most significant passages in the decision is the Commission's confirmation that:

"There is absolutely no question that employees have the right to make complaints..."

However, the Commission also explained that employees cannot continually pursue the same issues indefinitely after appropriate complaint processes have concluded.

Examples identified by the Commission included:

• re-litigating complaints already determined;

• repeatedly reframing old complaints as new complaints;

• escalating complaints to multiple decision-makers after receiving outcomes;

• involving unnecessary third parties; and

• communicating in a discourteous or unprofessional manner.

Why the Employer Was Successful

The Commission accepted that the Department had followed an extensive disciplinary process.

Among other things, the employee:

• received detailed allegations;

• was given multiple opportunities to respond;

• received extensions of time;

• was informed of the proposed disciplinary outcome before the final decision; and

• was afforded procedural fairness throughout the investigation.

Those procedural safeguards significantly strengthened the employer's position.

Valid Reason for Dismissal

When considering an unfair dismissal claim, one of the key questions for the Fair Work Commission is whether the employer had a valid reason related to the employee's capacity or conduct.

In this case, the Commission concluded there was.

It found the dismissal was based upon:

• repeated inappropriate conduct;

• disrespectful communications;

• threatening comments towards supervisors;

• persistent refusal to accept final complaint outcomes; and

• conduct that significantly disrupted workplace operations.

The Commission also noted that managing the applicant's complaints ultimately required substantial departmental resources over an extended period.

What This Means for Unfair Dismissal Cases

This decision demonstrates an important principle under Australian unfair dismissal law.

Making a complaint is generally protected.

However, the protection does not provide immunity from disciplinary action where an employee's own conduct independently amounts to misconduct.

The distinction is critical.

The Commission was satisfied that the dismissal occurred because of how the complaints were pursued—not because complaints were made in the first place.

Lessons for Employees

If you are considering making a workplace complaint, you should:

• document concerns carefully;

• remain professional in all communications;

• follow established workplace complaint procedures;

• avoid personal attacks;

• avoid repeatedly re-submitting complaints without genuinely new information; and

• seek advice early if workplace conflict begins escalating.

Employees who exercise workplace rights professionally are generally in a much stronger position should litigation arise.

Lessons for Employers

For employers managing difficult workplace complaints, this decision reinforces several important principles.

Employers should:

• distinguish between protected complaints and misconduct;

• investigate complaints fairly;

• provide procedural fairness before disciplinary action;

• clearly communicate expectations regarding workplace behaviour; and

• ensure disciplinary action is based on conduct rather than the existence of complaints.

Employers who fail to make this distinction may expose themselves to unfair dismissal, general protections, or adverse action claims.

MYUNION's View

At MYUNION, we regularly assist workers with unfair dismissal applications, general protections disputes, workplace bullying, and employment investigations.

This decision should not discourage employees from exercising their workplace rights.

Instead, it highlights the importance of exercising those rights effectively.

A strong workplace complaint is one that is:

• evidence-based;

• professionally presented;

• proportionate;

• respectful; and

• directed through the appropriate processes.

Likewise, employers should be careful not to label robust or persistent complaints as misconduct simply because they are inconvenient. Each case depends on its own facts, and the Commission will closely examine whether the dismissal was truly based on misconduct or whether it was, in substance, retaliation for exercising workplace rights.

If you have been dismissed, believe your dismissal was harsh, unjust or unreasonable, or are unsure whether you have an unfair dismissal claim, obtaining early advice can make a significant difference.

Strict time limits apply—most unfair dismissal applications must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect.

Need Help With an Unfair Dismissal?

MYUNION assists employees across Australia with:

• Unfair dismissal applications

• General protections claims

• Workplace bullying

• Adverse action disputes

• Discrimination and human rights matters

• Fair Work Commission representation

Website: www.myunion.auEmail: gethelp@myunion.auPhone: 1300 MYUNION

Read the full Fair Work Decision

Disclaimer: MYUNION is an employment and human rights advocacy service. We are not a law firm and do not provide legal advice. This article is general information only and should not be relied upon as legal advice.

Category: Unfair Dismissal | Fair Work Commission | Workplace Rights | Employment Law | Bullying | General Protections

Keywords: unfair dismissal, unfair dismissal Australia, Fair Work Commission, unfair dismissal claim, valid reason for dismissal, workplace complaints, employee misconduct, workplace rights, Fair Work Act 2009, unfair dismissal lawyer, unfair dismissal advocate, dismissal for misconduct, procedural fairness, workplace investigations.