Rumble v The Partnership Trading as HWL Ebsworth Lawyers

• Jurisdiction: Australia Federal only
• Judgment Date: 13 March 2020
• Neutral Citation: [2020] FCAFC 37
• Date: 13 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37

Appeal from:	Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2019] FCA 1409
File number:	NSD 1601 of 2019
Judges:	RARES, FLICK AND KATZMANN JJ
Date of judgment:	13 March 2020
Catchwords:	INDUSTRIAL LAW – adverse action – where applicant employee of law firm, who made repeated criticisms in media about government clients of firm, dismissed for breaching firm’s media policy – where firm’s media policy prohibited employees criticising clients or potential clients in the media without permission – where primary judge found that managing partner did not take action against employee because of applicant’s political opinion – whether adverse action taken against applicant because he breached firm’s media policy necessarily taken because of his political opinion – whether managing partner of firm dismissed applicant because of his political opinion in contravention of s 351 of the Fair Work Act 2009 (Cth) – whether not open to primary judge to find that applicant’s political opinion was not a substantial and operative factor in decision maker’s reasons – appeal dismissed
Legislation:	Fair Work Act 2009 (Cth)
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460
Date of hearing:	12 February 2020
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	81
Counsel for the Appellant:	Mr J C Sheahan QC with Ms R Francois and Mr J Widjaja
Solicitor for the Appellant:	Mr R Ishak of William Roberts Lawyers
Counsel for the Respondent:	Mr M J Kimber SC with Mr G Fredericks and Mr S McIntosh
Solicitor for the Respondent:	Mr S Penning of HWL Ebsworth

ORDERS

		NSD 1601 of 2019
BETWEEN:	GARY RUMBLE Appellant
AND:	THE PARTNERSHIP TRADING AS HWL EBSWORTH Respondent

JUDGES:	RARES, FLICK AND KATZMANN JJ
DATE OF ORDER:	13 MARCH 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES AND KATZMANN JJ:

1. The issue in this appeal is whether an employer contravenes s 351(1) of the Fair Work Act 2009 (Cth) by dismissing an employee because the employee repeatedly breaches the employer’s policy prohibiting its employees from criticising the Government (being a client of the employer) in the media when the employer reasoned that that conduct could affect its ability to continue to attract and earn income from fees from Government work. Section 351(1) provides:

351 Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4‑1).

2. On 20 February 2017, Juan Martinez, the managing partner of the respondent, The Partnership Trading as HWL Ebsworth Lawyers (the firm), wrote an email to Dr Gary Rumble, the appellant, giving him three months’ notice of the termination of his contract of employment as a consultant to the firm. Mr Martinez told Dr Rumble that he would be paid out the period of his notice.

3. The primary judge found that, consistently with his history of similar conduct, during November and December 2016, Dr Rumble had criticised the Commonwealth Government twice in The Sydney Morning Herald. His Honour found that the conduct breached the firm’s media policy that in its practical effect prohibited such criticism in the media. The primary judge found, as facts, that first, Mr Martinez dismissed Dr Rumble because he disobeyed instructions and a policy not to discuss the Firm’s clients in public without first getting permission and secondly, Mr Martinez did not terminate Dr Rumble’s employment for having, or expressing, a political opinion.

4. Dr Rumble contended, in substance, that because the media policy operated to prevent him from expressing his political opinion (ie, his criticism of the Government) he was dismissed because of his political opinion in the context in which Mr Martinez had made it clear that he would not waive the policy to give permission to Dr Rumble to express that opinion in the media.

5. Dr Rumble raised other grounds of appeal, but it is not necessary to resolve them. In the course of argument both parties accepted that, were Dr Rumble to succeed in overturning the primary judge’s finding that the firm had not contravened s 351(1), all issues of damages should be remitted to the primary judge.

6. Dr Rumble did not challenge any of the primary judge’s findings of fact on the issue under s 351(1) and those facts are in narrow compass. Rather, he challenged his Honour’s application of the law to those facts. The following background summarises the primary judge’s findings of fact on the issue under s 351(1).

Background

7. Dr Rumble has had a career in the law, particularly public law, since he was admitted to practice in 1975. He holds a doctorate in constitutional law from the Australian National University and has been both an academic and a practitioner. He was a well-regarded public lawyer in Canberra with a specialty in constitutional law.

8. In April 2011, Dr Rumble was a partner in the law firm, DLA Phillips Fox, when the Secretary of the Department of Defence appointed that firm to conduct a review into allegations of sexual and other abuse in the military (the 2011 Review). The three lawyers with DLA Phillips Fox who conducted the review were Dr Rumble, Professor Dennis Pearce AO and another partner, Melanie McKean. The Minister announced that those three were to act as the members of the review. Under their appointment, the three reviewers were expected by all concerned (including DLA Phillips Fox, the Government and the firm) to report their independent views as individuals and not as persons acting for the firm of solicitors for which each worked. This position continued after each of Dr Rumble, Professor Pearce and Ms McKean took up positions with the firm after leaving DLA Phillips Fox during the period between 1 May 2011 and October 2011.

9. On 22 July 2011 Dr Rumble signed a contract under which he was to be a casual consultant to the firm. Thereafter, DLA Phillips Fox (which became known as DLA Piper) and the firm worked cooperatively together in supporting the three reviewers’ work on volume 1 of their report on the 2011 Review.

10. On 11 October 2011 the three reviewers delivered volume 1 of their report to the Minister. On 12 April 2012, Dr Rumble delivered volume 2 of the report from the 2011 Review to the Minister.

11. Dr Rumble formed the view that his and his two colleagues’ appointments entitled each of them to continue to criticise the Government of the day’s implementation of the recommendations of the 2011 Review. As events transpired, Dr Rumble engaged in such criticisms for over four years after work on volume 2 of the report from the...