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Norman Waterhouse

Rumble in the corporate jungle

Last month, the Federal Court of Australia (the Court) handed down its judgment of Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409 and dismissed Dr Gary Rumble’s statutory claim for compensation under the Fair Work Act 2009 (Cth) (the Act) and common law claim against The Partnership trading as HWL Ebsworth Lawyers (HWL).

Dr Rumble, a well-regarded public lawyer specialising in constitutional law, was terminated from his casual employment at HWL, where he acted as a consultant. Dr Rumble asserted that HWL took adverse action against him, including discriminating against him because of his political opinion and making an inquiry as to why his remuneration had not been increased pursuant to his employment contract. Dr Rumble also brought a common law claim and alleged that HWL breached an implied term of good faith in his employment contract by terminating his employment. All of these claims were ultimately rejected by the Court.

Facts

Dr Rumble commenced casual employment at HWL in October 2011. He was to perform up to 60 hours of promotional work for HWL, in which he would be paid an annual retainer of $30,000, to be increased by 5% on 1 May each year.

Prior to Dr Rumble commencing at HWL, in his capacity as a partner of another law firm, he was approached by the Department of Defence to conduct a review into allegations of sexual and other abuse in the military (the Defence Review). Dr Rumble’s work on the Defence Review continued while he was employed at HWL.

In 2012, Dr Rumble began to have concerns about the Government’s handling of the Defence Review. Dr Rumble aired these concerns publicly in various media outlets over the course of 2012 to 2017. Dr Rumble’s concerns were highly critical of the Department of Veterans’ Affairs and the Department of Defence, both of which were clients of HWL.

In the meantime, Dr Rumble was making inquiries with HWL with regards to why his remuneration had not been increased in accordance with his employment contract.

The Managing Partner of HWL repeatedly directed Dr Rumble to refrain from making comments about HWL’s clients in the media. In particular, Dr Rumble was advised that he was bound by HWL’s policies which required Dr Rumble to obtain HWL’s approval before speaking to any media outlet, and even where approval was granted, not to criticise HWL’s clients.

Ultimately, Dr Rumble failed to do so. The relationship between Dr Rumble and the Managing Partner of HWL had irretrievably broken down, to the point where the Managing Partner advised Human Resources that if Dr Rumble was attending the HWL Christmas Party in 2016, he would not do so. Dr Rumble was asked to ‘reconsider’ his attendance at the party, to which he did not attend, in the end.

The Managing Partner of HWL terminated Dr Rumble’s employment via email on 20 February 2017. Dr Rumble then brought a claim which was the subject of the proceedings before the Court.

Decision

The Court rejected Dr Rumble’s assertion that he was terminated from HWL because he expressed a political opinion. The Court emphasised that HWL cared about Dr Rumble’s conduct in criticising HWL’s clients, which were a threat to its business. Dr Rumble was directed not to criticise HWL’s clients, one would assume would be a reasonable request, however, he still continued to do so. This was contrary to HWL’s media policy.

HWL had clear interests in preserving its relationship with its clients. The media policy was held to be justified to protect this client relationship and was not an infringement of the Discrimination Act 1991 (ACT), as asserted by Dr Rumble.

Dr Rumble also complained of a diminution in his work at HWL. Despite the Court accepting that this did occur, it was not satisfied that such diminution was for any of the proscribed purposes in section 351 of the Act.

Dr Rumble’s common law claim for breach of contract also failed. The Court aptly noted that “co-operation is a two-way street and Dr Rumble was not co-operating.” The Court held that no implied term would require HWL to co-operate with Dr Rumble by not terminating his employment, when Dr Rumble himself was not co-operating with it by directly breaching repeated instructions not to criticise HWL’s clients publicly.

All of Dr Rumble’s claims against HWL were dismissed, however, no order as to costs were made due to the ‘no costs’ jurisdiction of the Act.

Take Home Message

This decision serves as an example of how an employee’s personal interests and beliefs may have a negative impact on their professional life. While Dr Rumble advocated for what he believed was a noble cause, his cause was in conflict with the interests of HWL’s media policy, which was a lawful policy of the employer.

Employers should be conscious of the out-of-hours conduct of their employees, particularly in circumstances where there is a crossover between professional obligations to your organisation, as there was in Dr Rumble’s case. However, for any disciplinary action to be warranted, a reasonable nexus must be established between the employee’s conduct and their professional organisations to your organisation.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au or Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au.

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