By Glenn Fredericks -
Snapshot
- Two recent decisions of the Full Court of the Federal Court have considered important issues in the application of the general protections provisions of the Fair Work Act.
- One issue considered in Rumble v The Partnership t/as HWL Ebsworth Lawyers was how a decision-maker’s reasons were to be determined where adverse action was taken against an employee because of ‘inextricably intertwined’ actions which were capable of different characterisations (e.g. both as expression of political opinion and as disobedience of the employer’s media policy).
- In PIA Mortgage Services Pty Ltd v King, the Court clarified the scope of the workplace right being where a person ‘is able to make a complaint or inquiry … in relation to his or her employment’ under the Fair Work Act, s 341(1)(c).
Two recent decisions of the Full Court of the Federal Court have considered important issues in the application of the general protections provisions of the Fair Work Act 2009 (Cth) (‘the FW Act’). Amongst other things, these provisions make it unlawful for an employer to take adverse action against an employee (such as dismissing the employee) because of, or for reasons including, that the employee has exercised a workplace right (s 340(1)) or because of the employee’s political opinion (s 351(1)).
In Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37 (‘Rumble’), the Court (Rares, Flick & Katzman JJ) considered whether an employer contravened section 351(1) of the FW Act when it dismissed an employee for repeated breaches of the employer’s employment policy. The policy prohibited employees from criticising the Government in the media. The Government was a client of the employer and the employer reasoned that such conduct could affect its ability to continue to attract and earn income from Government work (Rumble at [1] per Rares & Katzmann JJ).
In PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 (‘PIA Mortgage’) the Court considered the scope of the workplace right set out in section 341(1)(c)(ii) of the FW Act, being where a person ‘is able to make a complaint or inquiry … if the person is an employee – in relation to his or her employment’.
Rumble
Dr Rumble was a consultant with HWL Ebsworth (‘the Firm’). In 2011 and 2012, Dr Rumble had, with other lawyers, conducted a review of allegations of sexual and other abuse in the military. After the report was submitted to the Commonwealth Government, Dr Rumble made a number of public criticisms of what he perceived to be the Government’s delay in implementing, or its failure to implement, the recommendations made by the review. These statements included criticisms of the Department of Veterans Affairs and the Department of Defence (‘the Departments’), both of which were clients of the Firm.
The Firm issued a media policy which required a staff member to obtain approval before giving any media interview and which also provided that any such approval would be on the condition that ‘the staff member will not be permitted to make any negative or critical comments in relation to any existing clients, past clients, potential clients, government departments …’ (at [15]). Dr Rumble continued to make unapproved public statements about the implementation which were critical of the Government and the Departments. After an article he wrote was published in the Sydney Morning Herald and the Canberra Times, the Firm terminated his employment.
