Firing an employee who criticises your client is not unfair dismissal

3rd Dec 2020

In Rumble v The Partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409, the Federal Court upheld a law firm’s right to dismiss an employee who persistently and publicly criticised the government, noting that the firm did a lot of work for the government and that the employee had refused to follow the employer’s direction.

Review into abuse in the Australian Defence Force

The case centred on the actions of Dr Rumble, a lawyer who led a government-commissioned review in 2011 to 2012 into sexual and physical abuse in the Defence Force.

Dr Rumble was increasingly frustrated that, as years passed, he felt the government was not taking sufficient action to assist victims of abuse in the Defence Force.

Publishing of criticism

In 2016, Dr Rumble wrote an article titled ‘Defence is still failing the victims of abuse’ for The Canberra Times in which he stated that boys as young as 13 years old had suffered sexual, physical and psychological abuse in the defence forces since the 1940s. He opined that it was a disgrace that some of these victims were not receiving the veterans’ benefits to which they were entitled.

Dr Rumble’s public criticism was of concern to his employer law firm, which had the Department of Defence as a key client. In 2014, the law firm implemented an internal policy prohibiting employees from criticising the firm’s clients without the permission of the manager.

Unfair dismissal and discrimination

After his article was circulated, Dr Rumble was barred from an office Christmas party and was fired over email soon after.

He took action in the Federal Court, arguing that he was unlawfully dismissed and had been discriminated against because of his political opinion. However, the Court interpreted it simply as a matter of whether or not he had followed orders.

Perram J found that Dr Rumble had not followed management directions not to criticise a client of the firm, regardless of how well-founded his criticism of the Defence Force might have been.

Perram J also looked at Dr Rumble’s employment contract which stated that he was working on a casual basis, and that both the law firm or government could terminate his contract with three months’ notice. Since Dr Rumble was paid out for the three-month notice period, he had no legal argument on that ground.

Perram J said that Dr Rumble was not fired because of his political opinion, to which ‘the firm was at least indifferent and quite possibly in fact sympathetic’ (at [14]).

Refusal to cease criticising client

The Court found that the firm was more concerned about the ‘earning of fees and the elimination of insubordination’ (at [139]).

‘There was nothing therefore unlawful in the firm’s dismissal of Dr Rumble because he refused to cease criticising the firm’s client,’ Perram J stated at [14].

This case illustrates that although you might feel like you have a moral high ground, you should obtain expert legal advice before you commence an action so that you understand the legal strengths and weaknesses of your case.

This is an edited version of an article first published at Stacks Law.

Geoff Baldwin is a lawyer in the employment law team at Stacks Champion. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Employment