Sally Rugg has failed in her bid to keep her job as a staffer for independent MP Monique Ryan pending the full trial of her Fair Work case alleging she was sacked for refusing “unreasonable” additional hours.
The federal court’s Justice Debra Mortimer dismissed Rugg’s application to prevent the commonwealth giving effect to the termination of her employment, meaning she ceased being employed on Tuesday morning.
In her written reasons, Mortimer explained that although there was a serious question to be tried in the case, it was not convenient to require that Rugg remain employed because it would likely not be “tolerable” for the pair to work together for at least four months pending the trial.
In a statement the Maurice Blackburn Lawyers principal, Josh Bornstein, said that Rugg was “disappointed” but the case was “at an early stage”.
“As Justice Mortimer observed in her judgment, ‘Ms Rugg’s arguments at trial about contraventions of the [Fair Work Act] may well succeed’,” he said.
Rugg has sued the commonwealth and Ryan for alleged adverse action after Rugg tendered her resignation, claiming that Ryan had “pushed or jostled” her out of the chief of staff role for refusing to work unreasonable additional hours.
Ryan has denied directing or requiring Rugg to work 70-hour weeks, and she and the commonwealth also deny that they engaged in “adverse action” in breach of the Fair Work Act.
Mortimer said the case could not commence until at least June, meaning the pair would have to work “closely together over a number of parliamentary sitting periods, and for a number of months”.
“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 judge said.
“[Rugg’s] submissions to the contrary had a significant degree of unreality about them.”
That was because Rugg appeared to be suggesting she could “set her own boundaries about what work she would do and how much work she considered reasonable”, the judge said.
“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 judge said there was a “live debate” about whether Ryan had lost trust and confidence in Rugg, about her working hours, and whether community engagement is part of her role.
“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.”
Mortimer also cited Rugg’s Instagram post to a private account that she was “devastated” to have missed out on the protections of the new code of conduct in parliament.
The judge accepted Ryan’s characterisation that this suggested Rugg was “subject to poor treatment” in her office.
“I do not see how this is the conduct of a person who wishes to return to work closely and professionally with Dr Ryan.”
The judge also cited two tweets that were “antithetical to the position on Covid-19 held by Dr Ryan” and one criticising the teal independents’ position on super tax concessions.
The judge found that, given Rugg took stress leave in early December, it was likely her health would deteriorate further if she returned to work.
Given the “untenable” relationship between Rugg and Ryan, a return to work would also be “likely to have adverse effects” on others in the office, she said.
Mortimer said she was “not determining Ms Rugg’s overall claim”.
The judge said the case involved “factual disputes” about how many hours Rugg worked, the “wider contextual circumstances” of the Albanese government cutting independents’ staffing allocation and whether Rugg resigned voluntarily or was forced out.
“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.”
The case will be listed for case management before 20 March, ahead of a trial in three to six months which is expected to take up two weeks.
Bornstein said the case would consider “whether 70 hour working weeks, almost twice the ordinary working week of 38 hours, is unlawful”.
“The issues to be considered at trial could have far-reaching ramifications for all Australians who work in industries where long hours are expected and normalised.”
