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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.

In the first instance decision (Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409), Perram J found the Firm terminated Dr Rumble’s employment because he ‘repeatedly disobeyed a reasonable direction to cease from criticising the Firm’s clients’ (at [14]), that is ‘his disobedience to the media policy’ (at [122]).It was assumed, without holding, at first instance and on appeal that the prohibition in s 351(1) on dismissing an employee because of their political opinion also extends to dismissing an employee because of their expression of that political opinion. On appeal, Dr Rumble submitted that because his expression of his political opinion was the reason for his dismissal, and the Firm’s media policy prevented him from expressing his political opinion, the fact that his employment was terminated because of his breach of the media policy meant that his employment was terminated because of his political opinion. That is, in effect, that his breach of the media policy and his expression of his political opinion were one and the same.

The Court dismissed the appeal and confirmed that the general protections provisions required a factual determination of the actual reason(s) the decision maker had for making the decision. In this case, the fact that the breach of the media policy was constituted by Dr Rumble’s expression of his political opinion did not change this requirement. The primary judge found the decision maker had not been actuated by Dr Rumble ‘having or expressing a political opinion’ but rather that he had been actuated by Dr Rumble’s disobedience. This finding was not challenged on appeal. Further, the fact that Dr Rumble’s actions were capable of different characterisations (that is, both as expression of political opinion and as disobedience) which were ‘inextricably intertwined’ did not mean that the decision must have been taken to have been motivated by both characterisations.

The Court confirmed it was not necessary for the decision maker to prove his reasons for taking adverse action were ‘entirely dissociated’ from the protected activity (at [41]). This was not altered by the fact that the media policy was worded so as to prevent Dr Rumble from publicly expressing his political opinion (at [44]). What is relevant is what – as a matter of fact – were the reasons of the decision maker in making the decision to terminate Dr Rumble’s employment. In reinforcing this point, the Court made the observation that it would have been ‘incongruous’ if Dr Rumble could have been dismissed because he had breached the media policy by publicly criticising a non-Government client, but could not be dismissed where the breach of that policy involved his political opinion (at [45]). This decision reinforces the approach which the High Court set out in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500, namely that the determination of whether or not a decision maker took adverse action against an employee ‘because’ of a particular reason is a matter of fact as to the decision maker’s actual reasons and that reasons are not to be attributed to the decision maker or assumed because particular conduct being considered by the decision maker is capable of different characterisations.

One issue not addressed by the Court was whether the scope of the term ‘political opinion’ extends to the expression of political opinion. As noted above, it was assumed but expressly not decided, at first instance and on appeal, that it did extend to the expression of the opion. This issue was extensively considered by Mortimer J in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27, 327 ALR 460 (‘Sayed’) where Her Honour found the protection extended to the membership of a political party. However, this issue, at least in the context of the general protections provisions, remains to be considered by the Full Court and the High Court.

PIA Mortgages

Mr King, then the Chief Executive Officer of PIA Mortgage Services Pty Ltd (‘PIAM’) made a number of complaints to PIAM directly and through his solicitor, including a complaint that PIAM had foreshadowed breaching his contract of employment and had breached the Australian Consumer Law. The majority of the Court found that these complaints, which were genuinely made, were the exercise by Mr King of a workplace right.

PIAMs solicitors responded by letter, dismissing Mr King, and his demands. The trial judge held that this letter established that ‘one of the two reasons given for the termination was the fact that Mr King made claims in respect of his employment’ (at [34]). In the proceedings at first instance, the decision maker (Mr Wang, a director of PIAM) gave evidence, but did not give direct evidence of his reasons for terminating Mr King’s employment. The Court on appeal held this letter was ‘capable of allowing an inference to be drawn’ as to PIAMs reasons for terminating the employment of Mr King (at [36]).

The issue then to be determined was one which has been a matter of uncertainty for some time, namely as to what is encompassed by the provision ‘is able to make a complaint or inquiry … in relation to his or her employment’ in s 341(1)(c). For example, in order for a complaint to fall within this provision does it:

  • simply have to be a complaint about employment (for example, ‘I don’t like my job’);
  • have to be a complaint supported by or about an underlying legal right (such as the employee’s contract of employment); or
  • have to be made pursuant to an underlying right to make that complaint (such as a disputes resolution clause in a contract of employment or industrial award)?

In this case the Court (Rangiah and Charlesworth JJ, Snaden J dissenting in part) held that the second of the above interpretations was the correct interpretation (at [16]-[20]) and also confirmed that ‘the complaint must be made genuinely, in good faith and for a proper purpose’ (at [26] and [37]). The Court also stated that it was not foreclosing ‘other circumstances that may give rise to an ability to make a complaint’ (at [27]).

The Court found that, in the absence of direct evidence from Mr Wang as to his reasons, PIAM had not discharged its onus to show that the reasons for dismissal did not include that Mr King had made the complaints. Accordingly, the Court upheld the first instance finding that PIAM had contravened s 340(1) of the Act (PIA Mortgages at [36]–[37]).

This decision is an important clarification of what complaints are captured by s 341(1)(c). It is clear that generalised complaints which are not based on an underlying legal right are not caught. However, it is not restricted to complaints made pursuant to a formal process. Accordingly, while the scope of the section has been read down to some extent, it has been given a broad effect.

* The author appeared as junior counsel in the Rumble proceedings.


Glenn Fredericks is a barrister in State Chambers.