Federal Court of Australia

Rugg v Commonwealth of Australia as represented by the Department of Finance [2023] FCA 179

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory relief be dismissed.

2.    The parties confer on agreed programming orders to bring the matter to trial.

3.    The proceeding be listed for case management at a date to be fixed before 20 March 2023, such date to be fixed after consultation with the parties.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This application initially came before me with some urgency because the applicant, Ms Sally Rugg, was due to have her employment with the second respondent, Dr Monique Ryan MP, come to an end on 31 January 2023. The first respondent, the Commonwealth of Australia as represented by the Department of Finance, is agreed to be Ms Rugg’s employer, although Ms Rugg was employed in Dr Ryan’s office as her Chief of Staff.

2    On 29 January 2023 Ms Rugg informed the Court that the Commonwealth had given an undertaking not to terminate, or give effect to the termination of, Ms Rugg’s employment until 5.00 pm on 3 February 2023. The interlocutory hearing that had been listed was then adjourned on 3 February 2023 for two weeks to allow the parties to attempt to mediate their dispute. On 17 February 2023, the parties jointly sought, and were granted, a further adjournment until 3 March 2023 to continue mediation. On 1 March 2023, the mediation was terminated. The interlocutory application was heard on 3 March 2023.

3    Ms Rugg seeks an interlocutory injunction preventing the respondents from terminating her employment, or allowing the termination of her employment to take effect, until the resolution of this proceeding.

4    The Court is dealing only with this application, and some procedural issues, in this judgment. It is not determining Ms Rugg’s overall claim.

Evidence

5    There was a considerable amount of affidavit material, filed in stages.

6    Ms Rugg’s originating application was accompanied by an affidavit dated 25 January 2023 (the first Rugg affidavit). Shortly before the first hearing in the proceeding, Ms Rugg filed a further affidavit dated 2 February 2023 (the second Rugg affidavit). Dr Ryan filed an affidavit also dated 2 February 2023 (the first Ryan affidavit). Shortly before the second hearing in the proceeding, Ms Rugg filed another affidavit dated 16 February 2023 (the third Rugg affidavit). Shortly before the hearing in which the interlocutory application was heard, Dr Ryan filed a further affidavit dated 2 March 2023 (the second Ryan affidavit). This was followed by a responsive affidavit from Ms Rugg also dated 2 March 2023 (the fourth Rugg affidavit).

Background

7    I have drawn the basic narrative below primarily from the first Rugg affidavit and the first Ryan affidavit, so far as I understand it is uncontroversial between the parties.

8    Ms Rugg has previously worked in advocacy and campaigning, including roles at GetUp, change.org, the campaign for marriage equality and with Australians for a Murdoch Royal Commission.

9    Ms Rugg was introduced to Dr Ryan in around May or June 2022, shortly after Dr Ryan’s election as the Commonwealth Member of Parliament (MP) for the seat of Kooyong.

10    On or around 24 June 2022, Prime Minister Albanese announced that under the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act), independent MPs would only be entitled to one parliamentary staffer. Previously, they had been entitled to four. The Commonwealth submitted this decision was made under the statutory power in s 12 of the MOPS Act, reposed in the Prime Minister, to:

determine that, having regard to the Parliamentary duties of a Senator or a Member of the House of Representatives, the Senator or Member ought to be empowered to employ staff under this Part.

11    On 19 July 2022, Ms Rugg was offered a contract of employment for a position described as Chief of Staff, but classified as ‘Adviser (Non-government)’, the position description for which is annexed as SR-3 to the first Rugg affidavit. It appears there may be a debate about how the role came to be described and classified as it was. There is certainly a dispute between Ms Rugg and Dr Ryan over the scope of the position. In evidence on both sides the position was referred to as “Chief of Staff” despite the agreed classification in the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-23. In these reasons I use the term “Chief of Staff” because that is how the parties described the role.

12    Ms Rugg deposes that her role involved working approximately 70 to 80 hours per week, and included regular travel to and from Canberra and accompanying Dr Ryan to media appearances. Dr Ryan agrees that working hours were long during parliamentary sitting weeks, but deposes that the hours were not as long as Ms Rugg alleges, and were relatively flexible during non-sitting weeks.

13    From not long after Ms Rugg’s employment with Dr Ryan commenced, disagreements about work hours and responsibilities arose. It appears those disagreements began around September 2022.

14    At paragraphs [36]-[39] of the first Rugg affidavit, Ms Rugg details a number of further incidents in November 2022 which she alleges amounted to hostile conduct in the workplace.

15    On 15 November 2022, Dr Ryan scheduled a meeting with Ms Rugg to discuss Ms Rugg’s performance at the end of her three month probation period. At the end of the meeting, Ms Rugg requested a formal performance review, to which Dr Ryan agreed.

16    From 30 November 2022, Ms Rugg deposes that she sought and began receiving assistance from the Parliamentary Workplace Support Service.

17    On 7 December 2022, Dr Ryan gave Ms Rugg a formal warning for travelling from Canberra to Melbourne by plane in November, after she had tested positive for COVID-19.

18    In the afternoon of 8 December 2022, Ms Rugg had an appointment with her general practitioner who advised her to take sick leave for reasons of stress for the next six days. Ms Rugg informed Dr Ryan of her medical leave, which Dr Ryan accepted, but Ms Rugg indicated that she would be available to attend her performance review during her period of leave.

19    Ms Rugg’s performance review was held at 11.00 am on 12 December 2022. During this meeting, while aspects of the discussion are disputed, both Dr Ryan and Ms Rugg agree that Dr Ryan told Ms Rugg that she was not terminating her employment. Dr Ryan proposed that she could consider re-employing Ms Rugg in a different role or capacity (however the specifics of this suggestion are disputed), or Dr Ryan could put Ms Rugg on a performance improvement plan (this is agreed to have been suggested).

20    Ms Rugg returned to work on 19 December 2022. On 20 December 2022, Dr Ryan sent Ms Rugg a performance improvement plan. On 21 December 2022, Dr Ryan and Ms Rugg had a conversation, the precise contents of which are likely to be in dispute, but which concerned (on both accounts) Ms Rugg’s employment in Dr Ryan’s office coming to an end.

21    Later that evening, Ms Rugg emailed Dr Ryan a letter dated 21 December 2022, which read as follows:

Dear Monique,

Please accept my letter as my formal resignation from my role as your Chief of Staff, effective immediately.

I have appreciated the opportunity to work in service of the members of your electorate and to contribute to the important work of the 47th parliament.

I wish you well as you “do politics differently” and the very best for your time as a member of parliament.

Sincerely,

Sally Rugg

22    Dr Ryan replied by email on 22 December 2022:

Dear Sally,

I acknowledge and confirm acceptance of your resignation from my office, received on 21 December 2022.

I would like to take this opportunity to thank you for your work in my team.

I’ve submitted your termination paperwork, using this personal email address, and have indicated to MAPS that your final day will be 31.1.2023 but that I do not anticipate that you will be working in the office prior to that.

As you know the electorate office manager, Tamar, is on leave until 9.1.2023. The office will be staffed tomorrow by me in the morning and Hudson Harding for at least some of the day. If your preference is to drop off your office and APH passes/equipment and collect your personal belongings tomorrow, I’d be grateful if you could check in with Hudson first to make sure they’re still in the office. It would be preferable not to come in while the office is closed for Christmas/New Year as you will not be able to arm the office alarm on exiting. Otherwise it would be fine to sort this out after 9.1.2023.

We’ll also sort out getting your belongings from Canberra but likely not until after 6.2.23.

Please contact me privately re references etc as required.

Free and confidential support is available to you through the Employee Assistance Program, Assure. They are contactable on 1800 945 145 or info@assureprograms.com.au.

Finance also has a team of dedicated HR case support officers that you may wish to speak to who can provide information regarding HR supports available. You can speak directly with the HR Advice and Support team by contacting (02) 6215 3333.

My best wishes for your future endeavours.

Mon

23    There will be a debate at trial about the context in which these communications were sent, and whether Ms Rugg’s resignation was of her own choice, or whether Dr Ryan in substance forced her to resign.

24    Ms Rugg did not attend the office throughout January 2023. Ms Rugg deposes that she lost access to her work emails and intranet in early January. There were some email communications between Ms Rugg and Dr Ryan during this period which were in evidence.

25    Ms Rugg then commenced proceedings in this Court on 25 January 2023, just before her employment was due to end on 31 January 2023.

Ms Rugg’s claims in summary

26    Ms Rugg’s originating application seeks final relief by way of injunctions, declarations, compensation and pecuniary penalties for alleged breaches by the respondents of ss 44(1), 62 and 340 of the Fair Work Act 2009 (Cth).

27    In summary, Ms Rugg claims that the first respondent contravened s 340 of the FWA by taking adverse action within the meaning of s 342 of the FWA in the following ways:

(a)    “deciding to dismiss” Ms Rugg (to be given effect from 31 January 2023), because she exercised or proposed to exercise various workplace rights in relation to working unreasonable additional hours;

(b)    injuring Ms Rugg in her employment by engaging in hostile conduct in the workplace, because she exercised or proposed to exercise various workplace rights in relation to working unreasonable additional hours; and

(c)    “deciding to dismiss” Ms Rugg (to be given effect from 31 January 2023), because she exercised the workplace right to make complaints and enquiries in relation to her employment.

28    Ms Rugg also claims that the respondents have breached the National Employment Standards, in particular s 62 of the FWA, which deals with unreasonable additional working hours. She contends this leads to a contravention of s 44(1) of the FWA.

29    Ms Rugg contends that Dr Ryan was “involved” in the contraventions of s 340 of the FWA as the “principal actor” on behalf of the Commonwealth. Ms Rugg seeks compensation directly against Dr Ryan, and payment of pecuniary penalties directly by Dr Ryan, such penalties to be made payable to Ms Rugg. Ms Rugg makes similar allegations against Dr Ryan in respect of the alleged breaches of the National Employment Standards (especially s 62), and seeks similar direct relief, including compensation and pecuniary penalties, from Dr Ryan.

30    Importantly, Ms Rugg claims that, despite her purported resignation in the letter dated 21 December 2022, the circumstances surrounding her resignation, as set out in the first Rugg affidavit, mean that her employment was in fact terminated on the initiative of her employer. That is, Ms Rugg claims that she was constructively dismissed by Dr Ryan.

31    One of the orders sought at trial by Ms Rugg is an injunction, on a final basis, restraining the first and second respondents from terminating her employment, or allowing the termination of her employment to take effect, because any such termination would contravene s 340 of the FWA.

32    The following interlocutory relief is sought in the originating application:

1.    An interim injunction restraining the first and second respondents from terminating, or allowing the termination of the applicant’s employment to take effect, until further order.

2.    An interlocutory injunction restraining the first and second respondents from terminating, or allowing the termination of the applicant’s employment to take effect, until the resolution of this proceeding.

33    Counsel for Ms Rugg at hearing accepted that the relief sought at this stage of the application is in the terms of the second of those paragraphs – that is, an interlocutory injunction to the effect stated.

Dr Ryan’s response in summary

34    Dr Ryan denies that Ms Rugg was constructively dismissed. Dr Ryan accepts at [102] of the first Ryan affidavit that she offered resignation as an option to Ms Rugg on 21 December 2022, but denies that she had made up her mind to terminate Ms Rugg’s employment on that day. Dr Ryan denies the substantive allegations put against her in relation to the alleged contraventions of the FWA. Dr Ryan also disputes a number of the key facts alleged by Ms Rugg, including that Ms Rugg regularly worked 70 to 80 hour weeks, and Ms Rugg’s characterisations of a number of conversations and events.

35    Dr Ryan opposes the grant to Ms Rugg of the interlocutory relief sought. Broadly, Dr Ryan maintains that the employment relationship between them is not salvageable and that she has lost all trust and confidence in Ms Rugg, rendering it impractical for Ms Rugg to continue to work as Dr Ryan’s Chief of Staff.

The parties’ submissions

36    Ms Rugg submits that the strength, on her submission, of her case for final injunctive relief is a factor weighing in her favour on the interlocutory application. Further, if Ms Rugg were not granted the interlocutory relief, it might be impractical for her to be granted reinstatement on a final basis, if another person were employed in her role in the interim. Ms Rugg submits that her reputation would suffer if she could not resume in her employment, and that both parties can be expected to be “mature” and work together until trial. However, if this were not workable, Ms Rugg submits that it would be open to Dr Ryan to place Ms Rugg on “Miscellaneous Leave” under cl 43 of the Enterprise Agreement until the matter is tried. This alternative featured in her written submissions, but barely featured in the oral submissions made on her behalf. Ms Rugg further submits that if she is not granted interlocutory relief but succeeds at trial, yet cannot be reinstated due to practical reasons, then an employer (including the Commonwealth) might take the view that compensation and penalties are the “cost of doing business” to achieve an unlawful dismissal.

37    Counsel for Ms Rugg proffered on her behalf the usual undertaking as to damages, and implicitly accepted she may need to refund to the Commonwealth the amounts paid to her by way of salary as a result of any grant of interlocutory relief.

38    Dr Ryan submits that Ms Rugg does not have a prima facie case for the alleged contraventions of s 340 of the FWA, and that there is little to no evidence that Dr Ryan “decided to dismiss” Ms Rugg. Dr Ryan submits that the balance of convenience weighs substantially against the granting of interlocutory relief, as it would require the Court to supervise the ongoing performance of Ms Rugg’s contract of employment in circumstances where Ms Rugg has alleged she was required to work unreasonable hours, Ms Rugg has alleged she was exposed to hostile conduct, and the relationship between Ms Rugg and Dr Ryan is irreparable. Dr Ryan also submits that she would suffer substantial prejudice if the relief is granted, as she would be unable to recruit an additional person to step into Ms Rugg’s role due to the Prime Minister’s determination under s 12 of the MOPS Act.

39    The Commonwealth also opposes the grant of interlocutory relief. In written submissions, the Commonwealth urged the Court not to “preserve a relationship which, after its initial phase, has proved itself to be unworkable”. Regarding the balance of convenience, the Commonwealth first submits that the compensation available under s 545 of the FWA would be an adequate remedy in the context of a broken employment relationship. The Commonwealth then identifies nine relevant considerations it submits weigh heavily in favour of a dismissal of the interlocutory application. In summary, these considerations are:

(1)    a personal services relationship has broken down between Ms Rugg and Dr Ryan;

(2)    most of any reputational damage to Ms Rugg is done due to media coverage of this interlocutory application, and will not be repaired by interlocutory relief;

(3)    reinstatement is available as a form of final relief under s 545 of the FWA;

(4)    Ms Rugg cannot simply be placed in another parliamentarian’s office;

(5)    the Commonwealth owes statutory duties under the Work Health and Safety Act 2011 (Cth) to maintain a safe workplace;

(6)    there is no evidence of financial distress to Ms Rugg;

(7)    it imposes an unfair burden on the Commonwealth to continue to pay Ms Rugg where she cannot provide labour to Dr Ryan;

(8)    Ms Rugg’s (moderate) delay in seeking to rescind her resignation letter is inexplicable and unexplained; and

(9)    the Court would likely be called upon to supervise the order preserving a “troubled and dysfunctional working relationship”.

Resolution

40    In order to grant the interlocutory relief sought, I must be satisfied that there is a serious question to be tried on the current evidence, and that the balance of convenience lies in favour of granting the interim injunction sought. If those factors are made out, it is in the interests of justice for interlocutory relief to be granted. In Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [19], Gleeson CJ and Crennan J said:

… in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.

41    Gummow and Hayne JJ explained at [65], by reference to Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618, that:

By using the phrase “prima facie case”, their Honours [in Beecham] did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

42    And at [71]:

… the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

43    As I explain below, this particular interlocutory application cannot turn on the strength of the serious question to be tried. Rather, I consider the ultimate decision about where the interests of justice lie is to be determined by an assessment of what would be the injustice or injury to Ms Rugg if her interlocutory application were refused, weighed against the injustice or injury to Dr Ryan (and, to a lesser extent, the Commonwealth) if the interlocutory application were granted. That is why the word “balance” appears in the phrase “balance of convenience”. The Court must weigh the likely effects of an order of the kind sought on the parties’ interests and circumstances. That is very much a fact-dependent exercise.

44    The Court must consider the circumstances of the applicant (usually the moving party on an interlocutory application, as here), and of the respondent or respondents. Here, there are two respondents, whose circumstances in relation to the applicant differ, and their interests need to be considered separately. The Commonwealth made limited submissions about the way its interests would be affected by the granting of the interlocutory injunction, and I address them where necessary below. The focus of the parties’ submissions, correctly, was on the effect of such an order (or the refusal of such an order) on Ms Rugg and Dr Ryan.

45    It was an orthodox principle that the Court ordinarily will not grant relief by way of specific performance where it will require one party to perform services to the other: JC Williamson Ltd v Lukey [1931] HCA 15; 45 CLR 282 at 298 (Dixon J). This was particularly the case where the relief sought is in the context of an employment relationship where there has been a loss of confidence between the parties. As Megarry J explained in Chappell v Times Newspapers Ltd [1975] 1 WLR 482 at 506, “if one party has no faith in the honesty or integrity or the loyalty of the other, to force [them] to serve or to employ that other is a plain recipe for disaster”. See also Gregory v Philip Morris Ltd [1988] FCAFC 169; 80 ALR 455 at 482. In Quinn v Overland [2010] FCA 799 at [97]-[104], Bromberg J explained why this older approach to specific performance may not be suited to modern employment contracts, to the FWA scheme, nor to modern considerations of workplace rights. However, his Honour also emphasised the need to look at the circumstances of each particular case: at [100]. In the present circumstances, the employment relationship between Dr Ryan and Ms Rugg was as close a relationship of personal services as could be imagined: one Commonwealth-paid parliamentary staff member for each independent MP, read with the Chief of Staff position description that I extract below. This workplace bears no relationship to the workplace under consideration in Quinn. The principles expressed in the older authorities resonate with this particular working relationship. –

46    I accept that Quinn is an interlocutory relief case, but as Bromberg J noted at [95], there was no debate in Quinn that the “employment contract between Ms Quinn and the respondents is operative and subsists”, and the interlocutory relief concerned restraint of particular directions from Ms Quinn’s employer, including a suspension direction. The circumstances are different here: the working relationship would have been at an end save for the Commonwealth’s undertakings. The analogy with specific performance is much closer. As I explain below, the fact that the Court has the power to order reinstatement by way of final relief under s 545(2)(c) of the FWA may well mean, at a final hearing, if Ms Rugg succeeds, the older principles I have set out above need to yield, or be modified in some way, to accommodate what is a wide statutory remedy in the FWA, not necessarily constrained by common law or equitable principles. Nevertheless, the nature of both the workplace and the working relationship will still pose a challenge for Ms Rugg in persuading the Court that final relief of that kind is appropriate. Her case may rise to meet that challenge; time will tell.

The period during which any interlocutory order might be in force

47    An initial consideration is when a final hearing might occur in this proceeding. Ms Rugg seeks an interlocutory order until the resolution of the proceeding. It is material for the Court to assess how long any interlocutory order might be in place, especially where there is no real factual debate that the circumstances for both Ms Rugg and Dr Ryan will not be easy.

48    After some discussion, and testing of his initial estimates by the Court, counsel for Ms Rugg accepted that a trial in this matter may take up to two weeks. He submitted the matter could be ready for trial in approximately three months. Counsel for Dr Ryan submitted the trial would take at least 10 days, perhaps 14 days. He emphasised that now that Ms Rugg seeks to add “serious contraventions” against the Commonwealth to her claim, pleadings may be required, which would slow the process down. He emphasised there may be discovery required. I understood him to submit that counsel for Ms Rugg’s estimate of the matter being ready in three months might be too optimistic, and the time to trial would be more likely to be four to six months. The Commonwealth submitted the trial would take 10-15 days.

49    In my opinion, on the material currently before the Court, it is unlikely a trial in this proceeding would take less than 10 days. Ms Rugg has foreshadowed an intention to add penalty claims against the Commonwealth, which are wider in scope and relate to allegations of a systematic tolerance (I infer, by the Commonwealth and those acting on its behalf) for unreasonable working hours by all parliamentary staff. That claim may add another five to 10 days, as counsel for Ms Rugg accepted this was a much broader claim, involving more witnesses.

50    I consider that even with close case management and tight time frames, it would be unlikely this matter could be ready for trial in less than four months. That would have a trial occurring in July 2023 at the very earliest, and more likely after that time. The question of any interlocutory injunction could be revisited at trial. However, on any view, an interlocutory injunction would require Ms Rugg and Dr Ryan to be working closely together over a number of parliamentary sitting periods, and for a number of months. The period would likely be longer than the period Ms Rugg worked for Dr Ryan before the initial differences of opinion about Ms Rugg’s performance and working conditions emerged.

51    Even on the most favourable view of Ms Rugg’s submissions about how responsibly they might each try to behave, I do not consider the situation is likely to be tolerable, let alone productive and workable, for either of them. The applicant’s submissions to the contrary had a significant degree of unreality about them. They appeared to depend in part on a scenario in which Ms Rugg would set her own boundaries about what work she would do and how much work she considered reasonable, and Dr Ryan would – apparently because of Ms Rugg’s affidavit evidence in this proceeding – elect to modify her expectations accordingly so as to fit in with Ms Rugg’s perspective on these matters. Aside from not reflecting at all that Dr Ryan is the office holder under the MOPS Act from whom Ms Rugg would be required to take directions (and not the other way round), this scenario also assumed that all of Ms Rugg’s claims were correct and that the workplace should be run accordingly until trial.

The reverse onus in s 361 of the FWA

52    Ms Rugg submits that under s 361, the Commonwealth will bear the onus of establishing that it did not dismiss Ms Rugg for reasons including her exercise of workplace rights. The respondents contended s 361 was not engaged in an interlocutory application. Ms Rugg did not actively dispute this proposition. The proposition is based on, at least, a decision of Snaden J in Australian Workers’ Union v Chemring Australia Pty Ltd [2019] FCA 750.

53    This matter was not addressed in oral submissions and I consider it is not necessary to make any findings about the correctness of Snaden J’s approach, or whether s 361 is engaged. My conclusions do not in any way depend on which party bears the onus of proof in terms of the strength of Ms Rugg’s adverse action allegations. I am comfortably satisfied, wherever the burden lies, that the balance of convenience warrants refusal of relief.

Serious question to be tried

54    The proposition that the two limbs to be assessed in any injunction application are interrelated is well established: see, for example, Warner Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; 311 ALR 632 at [70]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [67].

55    Ms Rugg’s case has two principal components. First, her claims to have been constructively dismissed and subjected to hostile conduct because of her exercise of her workplace rights to refuse to perform unreasonable additional hours and to make complaints or inquiries about her conditions of employment. Second, her claims of the contravention of her workplace right to refuse to work unreasonable additional hours. As Dr Ryan’s submissions emphasised, Ms Rugg’s entitlement to any interlocutory relief depends on the strength of her claim that she was dismissed, rather than that she resigned. It is the preservation of her employment, on her case that it was wrongfully terminated, which is capable of being the foundation for the interlocutory relief she seeks. For reasons I explain below, the strength of her case that she was dismissed (within the terms of s 386 of the FWA) and did not resign is so fact-dependent that no qualitative assessment can be made of its strength at this point, other than to conclude it is an arguable allegation, in the sense of not being fanciful or vexatious or irrational.

56    The authorities which explain why in some cases, a strongly arguable case may mean a moving party has a lower threshold on balance of convenience are in my opinion not of much assistance on the present application. That is because Ms Rugg’s case is highly fact-dependent.

57    Some of the larger factual disputes are:

(a)    what was the nature of the working relationship for the five months that it existed;

(b)    how many additional hours Ms Rugg worked and whether they were reasonable additional hours in the context of her position;

(c)    whether Dr Ryan behaved as Ms Rugg alleges;

(d)    whether Ms Rugg behaved as Dr Ryan alleges;

(e)    the wider contextual circumstances that Dr Ryan’s staff allowance was reduced (as with all independent MPs) by an exercise of the discretion in s 12 of the MOPS Act, and the effect this had on the work to be done in Dr Ryan’s office;

(f)    whether Ms Rugg resigned, having reached a voluntary decision to do so in all the circumstances; and

(g)    whether Dr Ryan essentially forced Ms Rugg to resign so that there was in substance a constructive dismissal.

58    Then, into whatever factual findings are to be made must be fitted some of the questions of law that arise, or mixed questions of law and fact. Those matters include:

(a)    the construction and operation of s 62 of the FWA, a provision which has rarely been the subject of any judicial analysis and which – as the arguments on the interlocutory application revealed – has a number of complexities;

(b)    the construction and operation of the definition of “dismissed” in s 386 of the FWA;

(c)    the construction and operation of various clauses in the Enterprise Agreement – in particular cl 32, and its relationship with the additional personal staff allowance payable under cl 33; and

(d)    whether Ms Rugg had the workplace rights she alleges, whether she exercised them and whether the exercise of rights was the reason for her alleged dismissal.

59    These are all matters for trial. Much will depend on the whole body of evidence adduced at trial, and its probative value, especially the witnesses’ evidence after it has been fully tested.

60    In the employment jurisdiction, unless there is something obviously persuasive and incontrovertible in early documentary material produced by an applicant, or there are substantive and core admissions made by the respondent(s), claims of this kind invariably involve starkly different accounts being given by the key participants. It is only through the trial process that a Court can ascertain whose account it considers reliable. That is before the Court even reaches the further two substantive matters of the proper construction of the statutory provisions relied upon, and the application of the law to the facts as found.

61    In my opinion, on this application the appropriate approach for the Court to take is to recognise that there is a serious question to be tried, that there are arguments of fact and law which may tend to favour the applicant and that there are arguments of fact and law which may tend to favour the respondents. It is neither possible nor appropriate for the Court to go further, because that would involve making findings on contested matters of fact, and contested matters of statutory construction.

62    Where that leads is to the proposition that this is a case about where the balance of convenience lies. The Court should approach an assessment of the balance of convenience on the basis that Ms Rugg has an arguable case, not fanciful or vexatious or remote, but that it is not possible to make any preliminary assessment of the strength of her case beyond this. In saying that, the Court also finds two further matters:

(a)    the points made on behalf of the Commonwealth and Dr Ryan are also arguable, and not fanciful or vexatious or remote; and

(b)    on the evidence presently before the Court, there are real divisions in the accounts given by Dr Ryan and Ms Rugg, such that the reliability and credibility of their evidence about what happened during the five months of the employment relationship is going to be critical to the outcome of the proceeding.

63    That said, as I explain below, the evidence of each of Dr Ryan and Ms Rugg about what happened after their working relationship broke down is clear. This evidence is material to the assessment of the balance of convenience. I am comfortably persuaded that the balance of convenience does not favour the grant of the interlocutory relief sought, and Ms Rugg’s interlocutory application should be refused. I turn now to explain why I have reached those conclusions.

Balance of convenience

64    Aside from compensation, declaratory relief and penalties, Ms Rugg also seeks final relief of either reinstatement, or a permanent injunction restraining the termination of her employment. It is on that basis that she seeks the interlocutory order she does, to preserve her ability to obtain similar relief at trial. As I explain, Ms Rugg may well be entitled to such relief at trial, if she proves her allegations and persuades the Court such relief is just and appropriate. However, on the present evidence for her interlocutory application, it is clear that the balance of convenience is firmly against the Court making orders continuing her employment in Dr Ryan’s office until trial.

65    The first matter I address concerns what the evidence discloses about why Ms Rugg wishes to remain in the position of Chief of Staff for Dr Ryan. A submission on this matter was made on behalf of Dr Ryan, and I consider it has force.

66    Ms Rugg’s affidavit evidence does contain statements to the effect that she wishes to return to work for Dr Ryan, but they are moderately expressed. At [82] of the first Rugg affidavit:

Although Dr Ryan and I did have a close personal relationship for a time, in my view, that intimacy is not essential for the proper performance of the role. A parliamentarian needs to be able to trust the integrity and confidentiality of their chief of staff, and have confidence in their ability to perform tasks well and quickly. I think the role could be performed perfectly well without that level of personal intimacy.

67    Then at [83], Ms Rugg states:

In that light, I am confident that I could continue to work with Dr Ryan. Whilst the tensions that arose late last year were challenging, my relationship with Dr Ryan was for a long time productive and efficient.

68    This evidence contains an exaggeration. Ms Rugg and Dr Ryan did not work together “for a long time”. They worked together for five months. There is no detail in Ms Rugg’s affidavit to explain the basis for her asserted confidence. For example, despite being familiar with the role and demands of the position, she gives no detail about how she considers she could work on a day-to-day basis to manage any tensions or challenges, or how she considers her concerns about working hours could be addressed. There is nothing but an assertion. The assertion is contrary to the objective evidence. I do not accept it.

69    In contrast, Ms Rugg’s affidavit evidence is more fulsome on the topic of how much she enjoys being in the parliamentary environment in Canberra. At [84]-[85] of the first Rugg affidavit:

I would be especially willing to work to restore a professional and productive relationship because of the non-financial benefits that go with my role. As a chief of staff, I receive briefings from the Government and agencies on proposed legislation and many other high-profile issues, and I get to work with Dr Ryan to formulate policy positions on those issues. I get a valuable insight into the way policy decisions are made, and the motivations of relevant stakeholders.

I also get to attend negotiations with Government and Departments on policy issues and decisions, and see how parliamentarians prepare for and perform for things like that. I’m not aware of any other job where one gets opportunities like that.

(Emphasis added.)

70    At [89]:

As I mention above, I aspire to one day be a parliamentarian, and I am sympathetic to the ‘teal’ movement. I see myself as a contributing force for the movement. My ability to assist the movement (and pursue my dream of being a parliamentarian), would be irreparably affected if the termination were to proceed.

(Emphasis added.)

71    And at [77] of the second Rugg affidavit:

I have really missed being at work, especially sitting weeks. I love my job, especially then. It is exciting. I feel lit up like a Christmas tree to be there.

72    There is little if anything in this kind of evidence that refers to supporting and assisting Dr Ryan. It is all about Ms Rugg. Ms Rugg’s focus in her role on those aspects of the work that fit well with her personal objectives of being in and around Parliament is confirmed in Dr Ryan’s evidence (at [70] of the first Ryan affidavit):

Ms Rugg loved going to Canberra. She was previously an advocate for various causes, and in my view she enjoys being involved with the media and being “where it’s all happening”. However, my impression of her was that she was not interested in engaging with my electorate and would regularly say to me that “it wasn’t part of her role”. Engaging with my electorate was the most important part of her job for me.

73    I find that on this interlocutory application it is more likely than not that Ms Rugg’s principal objective is to continue working in the parliamentary environment in Canberra. That is not to doubt the sincerity or genuineness of the evidence I have extracted above. Rather, it is to emphasise that the submissions on her behalf failed to acknowledge there were two objectives on the evidence to be secured by the interlocutory injunction, only one of which focused on the performance of work for Dr Ryan.

74    Of course, there is nothing remarkable about a person in Ms Rugg’s position having a personal career objective of this kind. Indeed, it is likely to be one shared by many political staff. It is both understandable and appropriate that a person in Ms Rugg’s position has a broader career objective which may well explain why she wishes to work as a parliamentary staffer. At trial, and save for the question of the kind of permanent relief I have referred to above, these matters are unlikely to be relevant.

75    The relevance of this evidence to the present interlocutory application, however, is different. Ms Rugg seeks an order which would in substance have her return to Dr Ryan’s office as her only Commonwealth-paid parliamentary staff member. Dr Ryan would be compelled, against her wishes, to have Ms Rugg perform that role. The duties of her role are set out in the position description attached to the first Rugg affidavit at SR-3:

About the Office of Monique Ryan MP

In 2022 Monique Ryan MP created political history by becoming the first Independent and first woman to represent Kooyong, a seat which has been held by the Liberals since WWII. This is an exciting opportunity to be part of the team of Monique Ryan MP, working with Monique to bring about change on the issues that matter to Kooyong – especially urgent climate change action, integrity in government, and respect and true equality for women.

The Office of Monique Ryan MP embraces the values of respect, trust, courage, integrity, inclusiveness and optimism. Behaviours promoted in the office include engaging in positive action, acting in the best interests of Kooyong and its community, being welcoming and inclusive, and demonstrating honest and decent behaviour.

All employees are expected to sign a confidentiality agreement and code of conduct prior to the commencement of their employment.

JOB DESCRIPTION

The Chief of Staff (CoS) to Monique Ryan is an exciting, demanding, fast-paced senior leadership position. It is a strategic role that oversight of policy development and parliamentary activities, managing relationships with staff and stakeholders, and oversight of the planning and execution of budget, staffing, and administration of the MP’s electorate and parliamentary offices.

The CoS will build and manage a high performing team of electorate staff to ensure that the team works strategically and collaboratively to deliver for the people of Kooyong.

The CoS role will provide expert and timely advice to the Member on complex and sensitive parliamentary, legislative, policy and political issues and will advise and support the Member in a wide variety of meetings, consultations and negotiations.

The CoS will also be responsible for the development and execution of a media and communications strategy for the Member, and will be responsible for drafting media responses, speeches, social media posts, website copy and constituency newsletters. The CoS will develop strong working relationships with local and national journalists.

The Chief of Staff is an employee of the Parliament of Australia. The position is directly accountable to the MP, and works closely with the MP and the Manager of the Electorate Office. The role requires versatility, flexibility, the ability to work to very tight deadlines, loyalty and confidentiality.

RESPONSIBILITIES

1. Build and manage a high performing team of paid and volunteer staff, including position descriptions, and professional development.

2. Formulate strategy for the MP’s engagement with government, the electorate and key stakeholders, including identifying the aims, objectives, strategies, responsibilities, timelines, performance indicators and resources required to achieve the MP’s goals.

3. Prepare and present a yearly budget for the Member’s approval, across all activities.

4. Provide expert and timely advice to the Member on parliamentary, legislative, policy, political and constituency issues.

5. Coordinate Parliamentary business, including analysis of upcoming legislation and amendments and advice on parliamentary procedure.

6. Prepare Parliamentary speeches, speech notes, policy briefings, private members bills and amendments, letters and submissions on issues of interest.

7. Provide advice to MP on emerging policy issues and contribute to policy development, including capitalising on opportunities for Parliamentary action on priority issues.

8. Assist, represent and/or accompany the MP as required.

9. Develop and execute the media and communications strategy and draft copy for speeches, social media posts, media responses, website copy and constituency newsletter

10. All other responsibilities as lawfully directed by the MP.

PHYSICAL REQUIREMENTS OF THE ROLE

1. Able to work extended hours (12+) during Parliamentary sitting weeks and on weekends as required

2. Able to undertake office-based activities including sitting at a desk and using a computer for extended periods.

3. Able and willing to travel as required.

LICENSES & STATUTORY AUTHORITY TO WORK

1. Australian Citizenship or current Australian visa

OTHER RELEVANT INFORMATION

Employment will be subject to a police check and successful completion of a probation period.

PAY AND CONDITIONS

1. The position is offered under the Members of Parliament (Staff) Act 1984, and employment conditions are outlined in the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-23 (the Enterprise Agreement 2020-23).

2. In addition to your salary, a Parliamentary Staff Allowance is paid in recognition of, and compensation for, reasonable additional hours of work. This is in addition to employer superannuation of 15.4%.

3. Where employees are directed by Monique Ryan MP to travel on official business, employees are entitled to allowances, payments and reimbursements as set out in the Enterprise Agreement 2020-2023.

4. The Office of Monique Ryan MP ensures Work Health and Safety practices are maintained and staff has access to the Employee Assistance Program.

5. A probationary period of 3 months, with the option of extending by a maximum of two months, will apply.

All employees are required to sign a Confidentiality and Code of Conduct Agreement and undergo a police records check.

76    There remains a live debate between the parties about what some of these descriptions encompass. Dr Ryan contends that community engagement work is a key part of the position occupied by Ms Rugg. Ms Rugg denies this and contends community engagement work is outside her role as defined. That was one of the apparent differences between the two which led to a deterioration in their working and personal relationship.

77    Thus, there is a live debate about the scope of Ms Rugg’s duties. There is obviously a live debate about her working hours, and working times. There is a live debate about whether Dr Ryan has trust and confidence in her.

78    What might – hypothetically – be balanced against this could be evidence of a powerful desire by Ms Rugg to really get back to assisting Dr Ryan with her parliamentary duties, and all that goes with them. There could have been evidence of a high sense of willingness and dedication to assisting Dr Ryan, a focus on working to ensure Dr Ryan can perform all the duties required of her.

79    That evidence could have been given. Ms Rugg has not given that evidence. She has given a lot of evidence about her own ambitions, her own desires to be in Canberra. On this interlocutory application, the evidence about her personal objectives is relevant because it persuades me there is no prospect whatsoever of a cooperative working relationship being restored because – even for the purposes of her own application – Ms Rugg cannot bring herself to express her dedication to assisting Dr Ryan. She instead focuses on her own career objectives. Which, as I say, are perfectly understandable and not to be criticised in themselves. On this application, they weigh against the grant of the relief Ms Rugg seeks. I am far from persuaded Ms Rugg really wants to go back to work supporting and assisting Dr Ryan.

80    Ms Rugg’s own evidence, both in her affidavits and in the attachments to many of the affidavits, which largely consist of emails, discloses that Ms Rugg wished to leave the job with Dr Ryan behind her.

81    Whether this was because she had indeed voluntarily decided to resign, or because she was forced to resign, is not a matter I decide, nor need it be decided. What these emails reveal is a person who no longer wishes to work with Dr Ryan. For example, in an email dated 4 January 2023 attached to the first Ryan affidavit at MR-8:

I won’t be coming into the office … and you can dispose of anything else of mine that’s left in there … feel free to discard with everything else if preferred … When parliament resumes in February I would appreciate if Liza could put my things into a bag which I’ll arrange for Amy Remeikis to collect from the suite.

82    In the same email:

Please don’t contact me by phone again -- you can reach me at this email address.

83    Likewise, an email from Ms Rugg to Dr Ryan on 12 January 2023 attached to the first Ryan affidavit at MR-10 reads:

It’s up to you if you choose to speak to media about my departure - I don’t have any control over that. I suggest you don’t say anything defamatory, or anything untrue that would force me to correct the record.

From my end, there is nothing to discuss further.

84    This is not a person who wants to return to supporting Dr Ryan.

85    There is also the evidence that Ms Rugg took medical leave in December 2022. I infer Ms Rugg took this leave because of how she was experiencing the workplace in Dr Ryan’s office. She described it as “stress” leave. That is consistent with her case, and it is consistent with her later description of why she took medical leave:

And, as you know, I was on stress leave last week because of the distress and disorientation of this experience and could not work on it then.

86    I turn to consider Dr Ryan’s evidence. I accept, as counsel for Ms Rugg submitted, that the Court cannot simply take Dr Ryan’s statements towards the end of the first Ryan affidavit at face value. In that part of her affidavit, Dr Ryan deposes to why she does not consider she could work with Ms Rugg (at [124]-[131]):

I understand that in bringing these proceedings, Ms Rugg is seeking to continue working as my Chief of Staff. I do not see how that could possibly work in practice.

I need my Chief of Staff to be loyal, trustworthy and dependable. I spend a lot of time working very closely with my Chief of Staff, so it is extremely important that we get along well, that we trust each other, and that I have confidence in them.

Ms Rugg recognises at paragraph 82 of her affidavit that an MP needs to be able to trust the integrity and confidentiality of their chief of staff and have confidence in their ability to perform tasks well and quickly. I agree. Trust and confidence is integral to the role. I no longer have that trust and confidence in Ms Rugg, and I could not work with her again.

My trust in Ms Rugg began to erode in November 2022 when Ms Rugg placed members of the public at risk by choosing to fly from Canberra to Melbourne, knowing that she was positive to COVID-19. I was also very concerned that Ms Rugg did not seem to understand or accept the seriousness of her conduct or the basis for my concerns. At that time, I believed that my relationship with Ms Rugg was salvageable. I no longer believe that.

Based on my interactions with Ms Rugg in December 2022 and January 2023, particularly her request on 4 January 2023 that I not contact her by telephone again, and the allegations made by Ms Rugg about me in these proceedings, I believe that our relationship is irreparable.

Ms Rugg states at paragraph 83 of the Rugg Affidavit that she is confident that she could continue to work with me. I do not understand how she could believe that when less than a month ago she was not willing to even speak to me, and wanted all further correspondence with me to be in writing.

I do not have the trust and confidence in Ms Rugg’s ability to perform the work that I require her to perform. I believe that Ms Rugg’s skillset was not what was needed for the role of Chief of Staff. She had the skillset for the role of policy adviser or media adviser, but not Chief of Staff. I believe that her skillset was lacking in terms of her ability to manage and administer the team, engage with the community, and strategize about what was needed to deliver for the people in Kooyong. She does not have the skillset that I need in terms of her ability to manage a team or in developing a community engagement strategy in Kooyong, both of which I view as integral components of the Chief of Staff role. I believe that she does not have the ability to do that work, and that she could not or would not perform those critical aspects of the role to the required standard if she continued in employment in my office.

Ms Rugg’s description of her duties in the Rugg Affidavit only serves to reinforce my view that she fundamentally misunderstands the importance of the community engagement component of the Chief of Staff role and is unwilling to perform it.

87    Counsel for Ms Rugg spent some time drawing my attention to earlier parts of Dr Ryan’s affidavit, and some of the exhibits to various affidavits, where he submitted it was plain that the working relationship was not as broken as the latter part of Dr Ryan’s affidavit suggested. Implicitly, he contended Dr Ryan was exaggerating.

88    I accept I should scrutinise all of Dr Ryan’s evidence, in its proper context, including the kinds of statements to which counsel drew my attention. Having undertaken that exercise I do not consider Dr Ryan is exaggerating in her evidence about how difficult it would be for her to continue to have to work with Ms Rugg as her Chief of Staff.

89    Further, counsel’s submissions overlook, or diminish, what has happened since December 2022. All the evidence counsel took me to was prior to 22 December 2022, save for referring to one email on 4 January 2023 to explain why that email did not signify a reluctance by Ms Rugg to be in touch with Dr Ryan.

90    As I suggested during oral argument, the more critical time to focus on is after this proceeding was commenced. The atmosphere is very different now. Ms Rugg has made serious allegations against Dr Ryan, allegations affecting her reputation both personally and professionally. She is seeking compensation directly from Dr Ryan. She is seeking pecuniary penalties be imposed directly on Dr Ryan. At some points in the affidavit material, Ms Rugg’s evidence squarely implies Dr Ryan is lying. See [32] of the third Rugg affidavit:

At paragraph 57 of Dr Ryan’s affidavit, Dr Ryan says another team member was present for the discussion on 25 September 2022. That is not true.

91    At [34]:

At paragraph 59(c), Dr Ryan says ‘we were a fully staffed office’. That is not true.

92    Ms Rugg’s approach thus overlooks the key event since December 2022; namely, the commencement of this proceeding. Once this proceeding was commenced, Dr Ryan’s own reputation was put squarely in issue. Serious allegations are made against her, at a level of her own personal behaviour, and in a way which characterises that behaviour as not only unlawful, but unreasonable, insensitive to Ms Rugg’s personal and family circumstances, and self-absorbed. The parties have been through a mediation process over several weeks which has not been successful. Dr Ryan has had to put time and resources into defending the allegations in this proceeding and defending this interlocutory application, because of the position taken by Ms Rugg.

93    It is not rational to contend that Dr Ryan can, or should be able to, put all this to one side and resume a constructive working relationship with Ms Rugg in what is on the evidence a pressured, extremely busy and demanding working atmosphere, at the best of times.

94    Even if I assume, contrary to my earlier findings, that Ms Rugg is wholly dedicated to resuming a role that has as its focus assisting and supporting Dr Ryan, it would be wholly unreasonable to impose such an obligation on Dr Ryan. Especially since the working relationship would be resumed while the parties continue to prepare for trial – a trial which, on any view, will be hotly contested and subject to considerable scrutiny. It is a trial which, on counsel’s statements to the Court, is being broadened to include systematic allegations against the Commonwealth, of which, as I understand it, what Ms Rugg alleges happened to her is but one example.

95    I accept Dr Ryan’s evidence extracted at [86] above is a genuine reflection of her state of mind about the prospect of Ms Rugg returning to work for her. I do not accept it is exaggerated.

96    At [82] of the first Rugg affidavit, Ms Rugg accepted that a “parliamentarian needs to be able to trust the integrity and confidentiality of their chief of staff”, and at [22] of the second Rugg affidavit that “[t]he chief of staff is the right-hand person of the parliamentarian”. Dr Ryan has deposed that she does not have that trust and confidence in Ms Rugg. There is no reason not to accept her sworn evidence on this point. It is simply not feasible Ms Rugg could perform the role she admits the position entails – being a “right-hand person” – in those circumstances.

97    If any further proof were needed that there is no real working relationship left between Ms Rugg and Dr Ryan, and it is unlikely to be restored during the trial process, then I need look no further than the fourth round of affidavit material from Ms Rugg, after a second affidavit from Dr Ryan. Not only does this affidavit material demonstrate how conflicted they are with each other, it demonstrates in my opinion a conscious attempt by Ms Rugg to criticise Dr Ryan. Again, on Ms Rugg’s account of what has occurred to her in 2022, such an attitude, and behaviour, might be understandable. Nevertheless, it is highly probative against the proposition that the two can continue to work together in any constructive way.

98    In the second Ryan affidavit, Dr Ryan deposes to two social media posts by Ms Rugg. The first was on Instagram on 10 February 2023. The date of that post is after the initial listing of Ms Rugg’s interlocutory application before this Court, and during the time her interlocutory application was adjourned while negotiations continued. In other words, Ms Rugg posted this while she was mediating with Dr Ryan (and the Commonwealth) to resolve the proceeding. The Instagram post stated:

Liked by brittanyhiggins___

_campaign_papi I can’t really talk about my case in the federal court while legal proceedings are still underway, which could be for another 2wks or, if we have to go to a trial, could go on for many, many months.

But I want to thank everyone who has messaged me with their love and support or made public statements of solidarity. Every day since I left this job that I so deeply loved has been an immense struggle, and I haven’t been able to reply to you all. But your messages, flowers and public support has meant everything to me and given me great comfort and strength.

Today the parliament affirmed the new Code of Conduct for all MPs, a landmark achievement that took thousands of political staff years of work and advocacy. The 2021 independent inquiry into commonwealth workplaces and subsequent Set the Standard report laid bare the need for this explicit code. I’m devastated to have just missed out on these new protections but am glad they’re in place now for current and future staff.

I hope that speaking out about what happened to me will help those staff too, and all other workers who aren’t able to speak up.

99    Dr Ryan deposes (at [6]):

The Instagram post suggested that the Applicant was subject to poor treatment whilst working as a Chief of Staff in my office, and that she needed, but did not have, the protection of the Code of Conduct whilst working in my office. The Applicant also specifically states that she was “speaking out about what happened to me”.

100    Dr Ryan’s characterisation of the post is in my opinion an accurate one. I do not see how this is the conduct of a person who wishes to return to work closely and professionally with Dr Ryan. It is the conduct of a person who accepts their employment is at an end, and accepts they are embarking on a process to establish unlawful behaviour by Dr Ryan and the Commonwealth.

101    The proceeding returned to Court on 17 February 2023. The Court was informed the mediation had not resolved the proceeding yet, but the parties wished to continue mediating. On that basis, Ms Rugg’s interlocutory application was adjourned by consent to 3 March 2023.

102    Then, on 24 February 2023, Ms Rugg tweeted a link to an article published by the Australian Financial Review to her public Twitter account, with commentary on the subject matter of the article.

103    The AFR article was entitled “Teals hit back at Labor’s $3m super cap idea”.

104    Ms Rugg tweeted:

A progressive, equitable tax system for a sustainable budget and future-focussed economy!

…

Oh, except keep tax breaks for the top 1% income earners with millions in super who own homes in the wealthiest parts of the country. Also reduce their income tax.

105    As Dr Ryan deposes, the substance of this public comment was critical of the position of the “Teal” independents. Dr Ryan deposes she was contacted by several journalists for comment, and asked whether Ms Rugg’s tweet reflected her views. Ms Rugg subsequently deleted the tweet, but it had already been published in The Australian newspaper, including references to the fact that Ms Rugg continues to be paid by the Commonwealth.

106    Dr Ryan expresses her position about the tweet in the following way:

It is not appropriate for the Chief of Staff for any Member of Parliament to make social media posts about political issues, especially posts which are critical of the positions of other politicians, without authorisation from the relevant Member of Parliament. A Member of Parliament’s Chief of Staff cannot act independently from, or contrary to the interests of, the Member of Parliament for whom they work.

107    Ms Rugg filed a responding affidavit. In it, she contends her Instagram post should not be seen as a public statement because it was posted on her “private” Instagram account. Ms Rugg deposes this Instagram account is limited to “mostly extended family, close and old friends”. However she deposes that “private” account has 350 followers. I do not consider that is a very “private” account. It is on any view a large group of people. The evidence demonstrates it was “liked” by Ms Brittany Higgins, herself a person with a high public profile. At the very least, I find Ms Rugg well understood, when she made this post, that 350 people would see her criticism of Dr Ryan. This is the person with whom she now says she can work in a way that maintains trust and confidence.

108    As to her tweet, Ms Rugg’s response to this was to disagree with Dr Ryan:

I do not agree with Dr Ryan when she says that it is not appropriate for a chief of staff to make social media posts about political issues, including posts critical of other politicians’ positions on issues, without authorisation from their parliamentarian.

109    Ms Rugg does not explain why the tweet was deleted. Instead she purports to give other examples of tweets she has posted which have been “critical of Dr Ryan’s position”. I have looked carefully through the list Ms Rugg gives. I can see none of them which are critical of Dr Ryan’s position until two on 29 December 2022 and 2 January 2023. On those occasions, Ms Rugg retweeted tweets that were critical of the Labor Government’s position on mandatory COVID-19 testing of people arriving in Australia from China. Ms Rugg notes Dr Ryan’s own position was in favour of such testing.

110    Thus, in two tweets shortly after her alleged constructive dismissal, Ms Rugg made public statements she knew to be antithetical to the position on COVID-19 held by Dr Ryan. That was in the context of the formal warning Dr Ryan had given her also concerning Ms Rugg’s behaviour when she tested positive to COVID-19. I fail to see how that is the conduct of a person who deeply and sincerely desires to return to work for Dr Ryan. It might be the conduct of a person who feels hurt and angry at the way she has been treated, so much can be accepted. This conduct is not consistent with wanting to return to work for that person, and that is its relevance here.

111    As Dr Ryan deposes, both the Instagram post and the tweet can be seen as showing poor judgment by Ms Rugg. I accept Dr Ryan is expressing a sincerely held and rational view when she deposes at [17]-[18] of the second Ryan affidavit:

The Applicant’s behaviour further confirms my belief that any attempts to re-establish a functional working relationship with me or my office would be impossible. The social media posts are further examples of the erosion of the trust and confidence required to adequately perform the role as my Chief of Staff.

I have lost all confidence in the Applicant’s judgement, and I do not trust her to work in my office.

112    There was a further theme to Ms Rugg’s submissions that must be addressed. Counsel appeared to be suggesting from time to time that a new role could be created in Dr Ryan’s office for Ms Rugg, one that apparently she would prefer. This is, as I understand it, a role of media or policy adviser. It is true that in her affidavit material there are references to Dr Ryan having suggested such a role to Ms Rugg in December 2022, when their working relationship got into difficulties. At [97]-[98] of the first Ryan affidavit, Dr Ryan deposes:

I do not agree that I said to Ms Rugg in that meeting [on 12 December 2022], as stated at paragraph 64 of the Rugg Affidavit, that Ms Rugg could resign, and I might consider re-employing her casually or she could go on a performance improvement plan. There would be no way to do that under the electorate staffing model set out by the government. What I did say was that I thought the role of Chief of Staff was not the right one for her. I thought she was better suited to a media or policy adviser role, and that it might be worth us considering rejigging things so that she had a role that played to her strengths. I did not think her interest in the community engagement part of the Chief of Staff role was sufficient.

I offered her a media or policy adviser role and she asked if she would still have the title Chief of Staff and the same salary. I said no, that would not be possible because of the staffing allocation, but I thought maybe with the money from Kooyong Independents, I could rejig things and employ her in a different role.

113     However, the evidence shows Ms Rugg turned that offer down, in an email communication:

On Monday you told me that you saw two options for my employment with you. The first option was terminating my employment through MoPs as your Adviser and then potentially re-engaging me to perform the work of an Adviser but on an insecure contract, paid at a much lower rate through the office support budget. I want to be very clear that there is nothing I would love more than to work as your Adviser, with a normal Adviser position description that’s congruent with all the other Advisers across the parliament. I would even be thrilled to adjust my current role down to the responsibilities of two roles; policy adviser and media adviser. I think this would be a far better use of my time and would see me able to contribute my actual expertise and qualification to you, rather than being spread so thin across so many huge demands. It would also be much fairer and more appropriate, from an employment perspective. But, I won’t accept losing my employment as an Adviser to be re-engaged as an Adviser on an insecure, poorly paid and fixed contract. This is not an option for me.

114    Contrary to counsel’s submissions, this is not a rejection only because of job “insecurity”. It appears Ms Rugg was also not happy with the prospective salary nor the proposed fixed term. Instead, she now seeks to retain the salary she has for the Chief of Staff position, but on the basis she perform a quite different and more limited role. On one view she is using what purports to be an application for an interlocutory injunction to regain her previous position, to instead secure a position paid by the Commonwealth which she considers suits her better. It is surprising this option was seriously advanced.

115    There is evidence that as at early January a person called Nina O’Connor was said by Dr Ryan to be commencing work with her:

Nina O’Connor has taken a leave of absence from C200 and will join the team as Acting Chief of Staff from 1.2.23.

116    Ms Rugg deposes (at [17] of the third Rugg affidavit) that Ms O’Connor is a friend of hers. She deposed that:

In a text message to me, Nina said that she had been “seconded” to Dr Ryan’s office from Climate 200. I understand “seconded” to mean that Climate 200 were paying her wages and directing her to work for Dr Ryan.

117    There is no evidence before the Court about whether Ms O’Connor is still working for Dr Ryan and, if so, on what basis.

118    The point made by Mr Minucci for Dr Ryan, which I accept, is that Dr Ryan is entitled to one full time staff member paid for by the Commonwealth, being a stable and ongoing position. The fact that independent MPs had their Commonwealth-paid parliamentary staffing allocations substantially reduced objectively makes this one position even more critical. The evidence about this reduction in staff members, and the affidavit evidence generally before me, supports a clear inference that although Dr Ryan has four electorate staff as well, having to perform her duties with one Commonwealth-paid parliamentary staff member is a challenge.

119    I do not consider the incomplete evidence about whether there might be another person performing work in Dr Ryan’s office on an “acting” basis while the situation about Ms Rugg’s employment as Chief of Staff is resolved, takes the balance of convenience anywhere in favour of Ms Rugg. The debate on the interlocutory application is about the Commonwealth funded staff member in Dr Ryan’s office, and whether Ms Rugg should have that position until trial.

120    Other factors to which I have given some consideration are the following.

121    As for Ms Rugg’s contentions about damage to her reputation, in the circumstances of her present litigation, I do not consider that refusal of this interlocutory application, with its consequence that she will no longer be working for Dr Ryan, is objectively likely to cause any damage to Ms Rugg’s reputation, let alone “serious” damage. Refusal of her interlocutory application, as I have sought to explain, does not rest on any adverse assessment of the prospects of her allegations being proven and accepted at trial. It rests on the realities of Ms Rugg and Dr Ryan working together until that point. Objectively, I consider most people looking at the circumstances would readily understand first, that it would not be appropriate to force Dr Ryan to have Ms Rugg back as her Chief of Staff; second, that such a situation might not be in Ms Rugg’s best interests in terms of her health and wellbeing (on the evidence); and third, that this outcome says nothing about the prospects of Ms Rugg’s allegations being upheld at trial.

122    Ms Rugg does not depose to any financial hardship if she cannot continue her employment with Dr Ryan. Thus, any income she is losing is not put forward on her behalf in the balance of convenience, in terms of it causing her any real financial hardship. Added to this, Ms Rugg has deposed that she has the capacity repay any salary she is paid if her interlocutory application succeeds, which suggests she is not entirely dependent on this income in the short term.

123    Counsel for Ms Rugg appeared to dispute that there were any health or wellbeing concerns associated with Ms Rugg returning to work for Dr Ryan. I do not accept that submission. Ms Rugg’s own evidence is that the conflicts with Dr Ryan caused her to take a week’s “stress leave” in December 2022. She wrote to Dr Ryan in the following terms:

I saw my doctor this afternoon who recommended I take stress leave from work, until the end of next week, Friday 16 December. I’ve attached my medical certificate and can put the leave through PEMs once I’m with my work laptop.

124    It seems to me to be a reasonable likelihood that if Ms Rugg was feeling so unwell in December 2022 that she needed a week’s stress leave, if she returns to Dr Ryan’s office in the current circumstances, her health could deteriorate again.

125    On the topic of wellbeing, the evidence is that there are other staff employed in Dr Ryan’s office. A difficult workplace may well have adverse effects on them. Dr Ryan deposed to the views of other staff being that they do not wish Ms Rugg to return to the workplace. I do not give that evidence much weight: it is hearsay, and on top of that, hearsay about the opinions of others. Those staff provided no affidavits themselves, but could have. Nevertheless, given the findings I have made, it is a reasonable inference that what I have found to be the untenable relationship between Dr Ryan and Ms Rugg is likely to have adverse effects on other employees in Dr Ryan’s office (and perhaps beyond it) if Dr Ryan is compelled to accept Ms Rugg back into that environment. As Mr Harrington submitted, such effects are a matter in which the Commonwealth properly has an interest, given its occupational health and safety obligations as an employer, including its obligations to Ms Rugg. This factor weighs against the grant of relief, but compared to the matters I have focused on, it is not determinative.

126    There was a faintly advanced suggestion, undeveloped in any detail, that the Court could grant the interlocutory injunction and Ms Rugg could in fact not return to work, but be placed on “Miscellaneous Leave” under the Enterprise Agreement. In a communication to the Court after the hearing, the parties agreed Ms Rugg has been on paid miscellaneous leave from 3 February 2023 as a result of the undertakings proffered by the Commonwealth to the Court on 3 February, 17 February and 3 March 2023. However, there was no evidence, nor any agreed facts, about how such leave could continue to be granted, and particularly whether it would be granted, if the interlocutory injunction succeeded. This proposal would leave Dr Ryan without a Chief of Staff who was actually working, unless the Commonwealth made additional payments for another person temporarily to take that position. This whole scenario was so undeveloped, and apparently without any support whatsoever from the Commonwealth or Dr Ryan, that it need not be considered further. Ms Rugg’s application was squarely put on the basis she wished to return, and was capable of returning, to work full time as Chief of Staff.

127    The respondents made two further points to which I give no weight, although I accept they were fair points to raise.

128    There was some delay in Ms Rugg commencing her proceeding and making this interlocutory application. It was not made until a few days before 31 January, although it could have been made earlier in January. However, January is traditionally a month in which many people, including lawyers, do not work, or do not work as much. There may be many explanations for the timing of her application. I do not weigh the timing of her application as a factor against the grant of relief.

129    I agree Dr Ryan had Ms Rugg as her functioning Chief of Staff for only around 5 months, so that the working relationship was very short. I have relied on this fact in the way I have set out at [50]. Other than that, I do not see the short period of employment itself as a factor weighing against the grant of relief.

Conclusion

130    The balance of convenience overwhelmingly favours refusal of the interlocutory relief sought. The interlocutory application must be dismissed.

131    Ms Rugg’s arguments at trial about contraventions of the FWA may well succeed. If that is the case, then on the evidence as it will be at trial, she will be able to apply for an order for reinstatement. The circumstances may well be quite different then, and the Court would be proceeding on the basis that she has been wholly or largely successful in her allegations. The Court’s orders today do not prevent, or adversely affect, final orders being made under s 545(2)(c) of the FWA. There may be greater flexibility in final orders as to the position to which Ms Rugg is to be reinstated, because at that point the remedy will be granted (if at all) after proof of contraventions, and the Court will be astute to ensure the remedies granted are just in those circumstances. I do not consider the refusal of interlocutory relief occasions any prejudice to Ms Rugg in the final relief she seeks.

132    The parties should confer on agreed programming orders to bring the matter to trial. The proceeding will shortly be listed for case management at a date to be fixed in consultation with the parties.

Associate:

Dated:    7 March 2023