The Federal Court of Australia has dismissed a senior lawyer’s general protections claim in which he alleged unlawful dismissal because of his political opinions, and because he made an inquiry regarding a pay increase.
In Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409, the Court held that the true reason for the lawyer’s dismissal was his repeated breach of reasonable directions, and of the firm’s media policy, to the effect that he cease public criticism of the firm’s clients.
The applicant, Dr Gary Rumble, was an experienced lawyer employed on a casual basis by HWL Ebsworth Lawyers. Prior to his employment with HWL Ebsworth, Dr Rumble conducted a review on behalf of the Department of Defence into allegations of sexual and other abuse in the military.
Dissatisfied with Departmental and ministerial responses to his review, Dr Rumble publicly criticised the Department of Defence and the Department of Veteran’s Affairs – both of which were clients of HWL Ebsworth. HWL Ebsworth subsequently directed Dr Rumble to desist from public criticism of its clients and, further, implemented a media policy requiring that staff not engage in public comment about the firm’s clients without prior approval. Dr Rumble disregarded these directions and continued to publicly criticise the Departments.
Dr Rumble also made inquiries about a 5% increase to his retainer payment and hourly rate that he was to receive on 1 May of each year.
Dr Rumble alleged that, in contravention of the general protections provisions of the Fair Work Act 2009 (Cth), he was dismissed because of:
Dr Rumble also alleged that, prior to his dismissal, the firm contravened the general protections provisions, by discriminating against him on the basis of his political opinion by:
Dr Rumble also brought a common law claim, alleging that the firm breached an implied term of good faith in his employment contract by terminating his employment, failing to provide him with work opportunities and failing to implement the 5% pay increase in a timely manner.
The Court found Dr Rumble was not dismissed because of his political opinion, but rather because he disobeyed instructions and a policy not to publicly discuss the firm’s clients without prior approval.
In respect of Dr Rumble’s pay related inquiry, the Court held that while this may have been what finally spurred the firm to terminate his employment (in that it brought Dr Rumble back to the forefront of the Managing Partner’s mind), it was not the actual reason for doing so.
In considering whether Dr Rumble was dismissed because he was expressing his political opinion or because he was criticising the firm’s clients, Judge Perram noted that “no doubt the same actions on Dr Rumble’s part are involved in both cases because his breach of the firm’s media policy was constituted by his expressions of political opinion.” However, Judge Perram concluded that the question is not what Dr Rumble did, but rather why the firm terminated his employment. Judge Perram noted that Dr Rumble’s conduct was “capable of multiple characterisations”, but that the correct factual question is which of them was it that actuated the decision to terminate his employment.
Judge Perram provided some analysis around the distinction of the complaint being the reason to dismiss, saying at [120]: ‘I therefore conclude that Dr Rumble’s inquiry about the 5% pay increase was at least the sine qua non for the timing of Mr Martinez’s decision. But does that mean Mr Martinez terminated his employment because of that request as a matter of substance? Not necessarily, for there are various ways the event can be viewed. One version of events would see Dr Rumble’s request as having the effect of reminding Mr Martinez to terminate Dr Rumble’s employment; another would see Mr Martinez provoked by the request into the termination. The former would not be a termination because of the request, but the latter would be.’ Judge Perram concluded that the former characterisation better fitted the facts.
Judge Perram also concluded that the reduction in Dr Rumble’s work, his dis-invitation to the firm Christmas party and the ungiven gift card were not matters attributable to any prohibited reason. Rather, the reduction in his work related to his continued criticism of the firm’s clients and a question mark about his value to the firm; his dis-invitation to the Christmas party followed him having infuriated the firm’s Managing Partner on the very day of Christmas party by again disobeying instructions to cease public criticism of the firm’s clients; and the firm had only given the gift cards to full time employees (Dr Rumble was a casual).
The breach of contract claim was also dismissed on the basis that Dr Rumble was lawfully dismissed for failing to comply with the firm’s media policy.
This case demonstrates that courts are prepared to make fine distinctions between the exercise of workplace rights or the existence of protected attributes, and the consequences flowing from them (such as, in this case the breaching of a firm policy designed to protect client relationships). In determining whether there has been a breach of an employee’s general protections, the court’s focus will be on why adverse action was taken. Credible evidence from a decision maker to the effect that a decision to take adverse action was not motivated by the exercise of a workplace right or the existence of a protected attribute, but rather by a consequence flowing from them, will, it seems, be capable of discharging the reverse onus of proof applicable in general protections claims.
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Nikita Barsby (BA LLB, Murdoch University) is a Senior Associate at MDC Legal, with almost a decade’s experience in workplace and employment law. She is recognised as a recommended employment lawyer in Doyle’s Guide to the Legal Profession in 2018 and 2019. Nikita has worked with Corrs Chambers Westgarth and Lynn & Brown Lawyers, prior to joining MDC Legal. Nikita has advocacy and negotiation experience in the Federal Court of Australia, the Federal Circuit Court of Australia, the Magistrates, District and Supreme Courts of Western Australia, in the Fair Work Commission and in the Western Australian Industrial Relations Commission. She advises employees and employers on all aspects of State and Federal workplace laws, including unfair dismissals and general protections matters, contractual and statutory rights and obligations, the drafting and interpretation of employment contracts, redundancies, performance management and termination and discrimination. Nikita also works with Human Resources practitioners and business owners in the development of workplace relations strategies, policies and procedures. You may connect with Nikita by email: nikitabarsby@mdclegal.com.au or on LinkedIn
Renae Harg (BA LLB, University of Western Australia) is a Senior Associate at MDC Legal. Renae has practiced in employment law since 2013. Prior to commencing with MDC Legal, Renae worked at a global law firm and boutique WA employment law firm. Renae has a broad range of experience in providing employment and workplace relations advice and has acted for individuals as well as small, medium and global employers. Renae provides advice and assistance in all employment law matters, including termination of employment, unfair dismissals, adverse action, discrimination, drafting of employment contracts and policies, enterprise bargaining, post-employment restraints and workplace investigations. You may connect with Renae by email: renaeharg@mdclegal.com.au or on LinkedIn