The role political opinions may or may not play in sacking a consultant to a major law shop … Insubordination and being rude about a client … Close connection to expressing a political opinion … Fair Work Act … Acceptable to communicate views to anyone but the media … Martinet … Motivations … Stephen Murray reports
In a decision last Friday (March 13), the Full Court rejected Dr Gary Rumble’s argument that he was sacked for holding and expressing a political opinion, which would amount to a breach of s.351(1) of the Fair Work Act, finding instead that Rumble was sacked for insubordination and threatening the firm’s business interests.
Rumble, a well-regarded public lawyer, was among a group who left DLA Piper to join HWL Ebsworth in 2011. While with DLA Piper, Rumble had been engaged to lead work on a Department of Defence inquiry into allegations of historical abuse against defence personnel. Rumble subsequently became dissatisfied with the response of governments of both persuasion to revelations from the inquiry.
Rumble then made representations to Senate committees, and made contact with journalists, appearing in an interview with Laurie Oakes in April 2014, criticising the departments of Defence and Veterans Affairs.
After Rumble’s criticisms were made known to HWL Ebsworth, the firm’s managing partner, Juan Martinez, had the media policy revised to require management approval for media appearances and established an obligation not to criticise clients in the course of any approved appearance.
In November and December 2016, Rumble gave an interview to a Sydney Morning Herald journalist and penned an opinion piece, which appeared in the SMH and the Canberra Times, which was critical of the government for failing to call a royal commission into the allegations of abuse in the defence forces.
In February 2017, Rumble was given three months’ notice of the termination of his employment contract by Martinez.
Rumble challenged his termination in the Federal Court, saying variously that he was sacked because of his insistence on seeking an increase in remuneration and as punishment for his political views.
In a decision last September, Justice Nye Perram found that Rumble:
“… was not terminated because of his political opinion as to which the firm was at least indifferent and quite possibly in fact sympathetic. It terminated him because he repeatedly disobeyed a reasonable direction to cease from criticising the firm’s clients.”
Perram rejected the pay issue as bearing on the termination, saying Martinez’s concerns were more pedestrian:
“He held a perception that Dr Rumble was not bringing in much in the way of profit and he was infuriated by Dr Rumble’s refusal to comply with the media policy.”
Rumble put two propositions to the Full Court as to how Justice Perram had erred, namely that his expression of his political opinion was part of the actuating motive or reason for Martinez terminating his contract, and as the media policy operated to preclude him absolutely from expressing his political opinion, since it was critical of the government, and the breach of the media policy was relied on for termination, the firm necessarily contravened s.351(1) of the FWA, which proscribes adverse action by an employer for political opinions.
Rumble submitted that in each of the trilogy cases, the employee could have modified their conduct but still exercise their rights in the workplace or engage in industrial activity.
In his case, however, he could not modify his conduct so as to comply with the media policy except by refraining entirely from expressing his political opinion. This feature of the media policy and Martinez’s reasons for dismissing him necessarily meant that he was terminated for expressing a political opinion, and thus contravened s.351(1).
In a joint judgment, Justice Steven Rares and Justice Anna Katzmann said the rulings in the trilogy cases required Justice Perram to find as a fact why Martinez decided to terminate Rumble’s contract. Their Hons said the Fair Work Act did not require Martinez to establish his decision had nothing to do with Rumble’s political opinions; only that they not be a “substantial and operative factor” in Martinez’s reasoning.
Perram’s findings that Martinez was motivated by Rumble’s insubordination and protection of the firm’s business interests, and not Rumble’s political opinions, were therefore the only substantial and operative reasons.
Justices Rares and Katzmann said it would be incongruous if Martinez could have terminated Rumble’s contract lawfully if Rumble had criticised a non-government client:
“There is no reason why s 351(1) should be construed so as to give Dr Rumble an advantage that other employees, consultants and partners of the firm did not enjoy if they wished to criticise non-Government actual or potential clients of the firm in the media.”
“Thus, Dr Rumble was free, without seeking permission from Mr Martinez or the firm, to hold his political opinion and express it to anyone, except through the media, including to stakeholders, ministers, parliamentary committees, shadow ministers, backbenchers, colleagues, friends, acquaintances and family members.”
Therefore the distinctions between Rumble’s circumstances and the trilogy of cases “were not sustainable”. Rumble could have modified his behaviour by adhering to the media policy and still would have been able to hold and express his political opinion using other means.
In a separate decision, Justice Geoffrey Flick noted in Rumble’s argument there was no room in the firm’s media policy for expressing a political opinion. However, the judge said this distinction was foreclosed by decisions such as BHP Coal.
While there was “unquestionably” a connection between the expression of Rumble’s political opinion, the firm’s media policy and Martinez’s decision to terminate Rumble’s contract, the motivating factor was Rumble’s continuing breach of the media policy. The mere fact that an employee’s conduct may be “inextricably entwined” (in the language of BHP Coal) with the taking of adverse action was to say no more than it had a connection to the industrial activity. What was necessary was to consider the “true motivations” of the employer.
In Rumble’s case, Justice Perram had “carefully made” his findings of fact, and no appellable error was discernible in his reasons.