Jim Babalis: Our main topic, everyone, so this is another, we’ve had some great cases today, haven’t we?

Tom Daly: I’m scrolling, scrolling like a madman here.

Jim Babalis: I know, I read through these very quickly. So it’s, the main topic for today for everyone is general protections claim limitations for independent contractors, specifically around political beliefs, whether they’re protected under state laws, necessary not protected workplace laws for independent contractors. And it’s a recent decision.

Tom Daly: This one is quite interesting, I think.

Jim Babalis: It definitely is. So it’s the case of Gillham v. Melbourne Symphony Orchestra, a very recent decision, so.

Tom Daly: To explain a little bit about.

Jim Babalis: So I might just jump into the facts

Tom Daly: Yeah.

Jim Babalis: and then we can go through the findings. So I might just read the facts and then I want to pass over the findings to you and then we’ll talk about it. So the facts on this one here are a freelance Australian British concert pianist, Jason Gillham bought an adverse action claim against the Melbourne Symphony Orchestra, the MSO, and its chief operating officer, Guy Ross. In 2024, Gillham dedicated a performance to Palestinian journalists in Gaza and alleged that they had been targeted by Israeli military forces. Following those remarks, the Melbourne Symphony Orchestra cancelled a subsequent performance.

Gillham alleged that the cancellation constituted adverse action because of political beliefs or activity and relied effectively on the Fair Work Act, the provisions there, as well as the Equal Opportunity Act of Victoria the 2010 legislation. Gillham argued that the Victorian Equal Opportunity Act was a workplace law for the purpose of the Fair Work Act. Also, in an early interlocutory decision, the federal court had refused to strike out the claim, finding the interaction between the Fair Work Act and the Victorian legislation actually required full consideration and . Obviously, they were very reluctant to rule on issues that might have led to appealable error or judicial or jurisdictional issues.

Tom Daly: Yeah, yeah, yeah.

Jim Babalis: And that is really, really interesting. So

Tom Daly: So it’s basically looking at, you know, the Equal Opportunity Act creates some protection around the right to voice political beliefs and things like that.

Jim Babalis: Yeah.

Tom Daly: I’m not 100% sure how it’s worded, but I know it’s something along those lines. And they, in this case, had to look at whether those principles could be kind of imputed in the Fair Work Act and were a right that is protected as a workplace law. So he’s a man who’s a pianist working for a concert, or sorry, for a, the MSO.

Jim Babalis: The MSO.

Tom Daly: the MSO and that.

Jim Babalis: And a contractor, not an employee. And that was.

Tom Daly: Yeah, that’s what they’re looking at. If he’s an employee, maybe they say, okay, well then he has the right for him to make those comments about Gaza or whatever after, he’s protected.

Jim Babalis: Yeah.

Tom Daly: But in this instance, they said, “No, you’re an independent contractor. Those equal opportunity rights don’t apply like as a workplace right under the Fair Work Act.”

Jim Babalis: Yeah.

Tom Daly: And the MSO and the concert organizer has a policy that says, “We don’t want you making political statements after the show.” And because he breached that, they had, there was reputation, potentially reputation damage

Jim Babalis: Potential reputation damage.

Tom Daly: to them and they’re entitled to protect that.

Jim Babalis: Yeah. Also, there were unauthorized political remarks is something that was very clear. So the court found substantial operating reasons for cancelling the performance were obviously the reputational issues. Also, they were unauthorized. Not necessarily Gillham’s personal political views.

Tom Daly: Yeah, it’s not that they had an issue with the views themselves. It was the fact that he made the views, stated those views in breach of their policy.

Jim Babalis: In breach. Also interesting enough, the court did say that it will not change the viewpoint of the court if the MSO took the same action had he expressed, I guess, pro-Israel views, or any other political controversial views that might arise. And I guess.

Tom Daly: The views themselves aren’t that important. It’s more.

Jim Babalis: Yeah. And listen, this probably goes to a lot of other, you know, contemporary social and political issues that are going on.

Tom Daly: So are they saying it would have been different if he was an employee that he may have had more protection, because maybe he has a right that arises under the Fair Work Act that he’s sort of entitled to.

Jim Babalis: Possible, possible.

Tom Daly: I don’t think they really concluded that.

Jim Babalis: They don’t really conclude that point, because it’d still be unauthorized.

Tom Daly: Yeah.

Jim Babalis: That’s the key issue. But obviously, you know, having a personal political view as an employee is a different issue, they say that, but still once again, it would be unauthorized. So the court held, the findings were the federal court dismissed Gillham’s adverse action application and held, and these three points are really, really interesting here, that the Victorian Equal Opportunity Act was not a workplace law capable of giving rise to a workplace right under the Fair Work Act in any circumstances or in the, or sorry,

Tom Daly: In these circumstances.

Jim Babalis: in these circumstances. I’d probably say possibly in all circumstances, but we’ll leave it there. Independent contractor, sorry, cannot rely on the Equal Opportunity Act as a workplace law for the purposes of the Fair Work Act. So that’s another key consideration. And the cancellation was actually motivated by concerns about the reputational impact and the breach of the actual policy, not the political beliefs or activities. So what are the key takeaways in this, in possibly in an age where these, such views are becoming pretty prevalent? State anti-discrimination law will only constitute a workplace law under section 12 of the Fair Work Act.

Tom Daly: For employees.

Jim Babalis: For employees where it regulates the relationship between, you’re right

Tom Daly: Yeah.

Jim Babalis: employers and employees, and it will not extend to workplace rights to independent contractors in circumstances, or in these circumstances. An adverse action claim requires proof that the adverse action was taken because the person actually exercised that workplace right. An employee principle may lawfully act where the operative reason for the decision is enforcement of a content neutral policy of protection, rather than disagreeing with someone’s personal political viewpoints. And this decision categorically clarifies the limits of the Fair Works Act’s general protection powers for independent contractors, who I guess might circumvent the process to try to rely on state workplace protections.

Tom Daly: Yeah, I think I’ll say, it’s just a classic, like a sort of worldly example of like independent contractors don’t have the same rights as employees.

Jim Babalis: Yeah.

Tom Daly: Yeah.

Jim Babalis: So really interesting decision, I think.

Tom Daly: Yeah.

Jim Babalis: Pretty prevalent and I think a lot of takeaways.

Tom Daly: Yeah.

Jim Babalis: We’re going to read, we’re going to proceed to the case study, but Tom, we’re going to change it around. I want to spice it up. I’m going to pass to you to read it this time, okay?

Tom Daly: All right, all right. See if I’m up to it. So Gordon was the head waiter at the Bristol Waiters Club, a unique and stylish bistro in Northcote that served modern French cuisine. The club seated 120 patrons, and on most Saturday nights, had seven bar and food waiters on duty. Despite its somewhat alternative white collar professional clientele, people paid a premium because of the celebrated service led by Gordon. His expectations were high and he was intolerant of poor performers. His axiom, “Good waiters are seen, not heard,” meant that any employee who grinned tooth fully and chatted with clients was quickly reminded,

“This is a formal dining room, not a pub. Serve perfectly and move silently.” Another one of his favorite axioms. Gordon found Ruby’s tattooed torso, arms, and legs together with her many body piercings, gauche, gauche? I don’t know. He had complained to the owner that she belonged in a life, in a still life painting, not serving tables at the club and that there was nothing about her that was silent. Clients, however, loved the juxtaposition of the formal atmosphere of Ruby’s avant-garde appearance, while Gordon saw her as unrefined noise. Ruby, on the other hand, thought Gordon was a repressed, subservient, and pretentious bore. Those are strong words.

Jim Babalis: It is, yeah.

Tom Daly: She delighted in provoking him ever so slightly in everything she did. Larger than life gestures, raucous laughter, hugging and kissing favorite clients, behavior the clients loved, but were grating, irritating, annoying, and completely contrary to the club’s theme. Ruby also had other habits that were unacceptable. She was always late to work, rarely cleaned the tables. She served and never helped her colleagues. Eventually enough was enough. Gordon spoke to the owner, a wizened creature called Paul, who always wore a cravat, and they agreed it was time to give her a formal warning. Impeccable detail in this story.

Jim Babalis: It’s great.

Tom Daly: The following night, Ruby arrived as usual 10 minutes late. Gordon asked her to accompany him to Paul’s study on the first floor. Paul and Gordon had carefully choreographed the meeting, and it was going well, until Gordon informed Ruby that she was receiving a formal warning. He explained that her lateness and repeated breaches of workplace protocol had to stop or she would lose her job. Ruby stood up, stared at Gordon, called him a mischievous and conniving prick, we’ll go with that,

Jim Babalis: We’ll go with that one.

Tom Daly: and stormed out. Gordon found her downstairs crying in the club’s anteroom? Anteroom.

Jim Babalis: Yeah.

Tom Daly: Trying to be kind, he said, “Take a 20 minute break. No one means you any harm, but when you come back, no talking. I need you to just take the orders and serve the clients, not your usual banter.” She glared at him defiantly. He stared back and added, “I mean it, Ruby. None of your usual schtick. Just serve them.” Hurt and a little churlish, she resumed work 20 minutes later.

However, as the night wore on, she slipped back into her old habits, and if anything, they’d become worse. Gordon took her aside once more. He explained that he had specifically instructed her not to behave in that manner and why she had ignored, and asked why she had ignored his direction. She replied, “Because I can.” He smiled coldly and laughed before saying, “I’m afraid you can’t Ruby. You’ve worked your last shift. Head home now. You are dismissed.” Very, very good.

Jim Babalis: I’ll just clarify, I don’t know these people. It’s a case study. I grew up in Preston, which is next to Northcote, and maybe it was standard behavior. I grew up where these things would occur. But an interesting case study. And obviously, I think there’s a couple of questions we can really drag out,

Tom Daly: Yeah, yeah.

Jim Babalis: draw out of this one, I think, yeah.

Tom Daly: Yeah, I think a good first one might be, you know, whether, has what Ruby done and she’s ignored her direction, is that misconduct?

Jim Babalis: Short answer is yes. The lateness clearly amounts to misconduct. The behavior which, you know, is contrary to rules and style of the business was arguably misconduct through her employment, but it became clear misconduct once she’d been expressly instructed that she was to, you know, about how she was to perform her duties.

Tom Daly: Yeah.

Jim Babalis: Based on that, that’s a key issue.

Tom Daly: The restaurant has a policy.

Jim Babalis: The restaurant has a policy.

Jim Babalis: These are our minimum expectations,

Tom Daly: Yeah.

Jim Babalis: dress appropriately, talk appropriately, serve appropriately.

Tom Daly: And you’re deliberately ignoring them.

Jim Babalis: And you’re deliberately ignoring them.

Tom Daly: Yeah.

Jim Babalis: Okay. Also, adding into the fact is the abusive comments component. Disrespectful conduct towards Gordon as manager, supervisor, superior in the place.

Tom Daly: Yep.

Jim Babalis: This is all misconduct.

Tom Daly: Was it enough to be, to say that that’s serious misconduct? Did what she do amount to serious misconduct, do you think?

Jim Babalis: It is possible, I think. So listen, I guess in this particular one, we’re sort of looking at this. You know, Paul and Gordon have a significant problem with, you know, how they condoned these issues, because I guess they’ve tolerated the behavior

Tom Daly: For a long time.

Jim Babalis: for a long, long time, and that’s also a common issue with sometimes poor performing employees or rogue employees.

Tom Daly: You let it go for too long.

Jim Babalis: You let it go for too long. But you know, Ruby’s response though, when she asked why she, you know, ignored the direction when she says, “Because I can,” you know, that’s defiant, disrespectful, insubordinate is probably the other word I could think of. But that, you know, act of defiance, if you put it that way, you know, it may have become the issue of support a finding that her refusal to follow that lawful and reasonable direction amounts to serious misconduct? I think it’s arguable.

Tom Daly: Yep.

Jim Babalis: So I think it would be arguable on both points.

Tom Daly: Right. And do you think Ruby has any, you know, what’s the likelihood that she could bring a claim that she was unfairly dismissed, do you think?

Jim Babalis: Listen, she can try the claim, of course.

Tom Daly: Yeah.

Jim Babalis: And I think in these instances when you’re dealing with, you know, these type of employees who are insubordinate, the odds of them lodging a claim are pretty high. So I think that would be the case. But clear, there’s a valid reason for dismissal, though, if you think of it, because Ruby has failed to comply with the actual lawful direction.

Tom Daly: Yeah.

Jim Babalis: That’s what really rings out here. You know, the more difficult question really is whether that direction was also reasonable because, you know, given Gordon’s historically judgmental attitude towards Ruby, you know, not great either, and the employee’s longstanding acceptance of her behavior, remember that condoning that behavior for a long period of time.

Tom Daly: So they got a problem where they’ve got a good reason to get rid of her, but they’ve allowed it to go for so long.

Jim Babalis: They’ve allowed it to go.

Tom Daly: So in that sense it might be unfair.

Jim Babalis: Well, and that becomes a bit of a habit, doesn’t it?

Tom Daly: Yeah.

Jim Babalis: It becomes a poor process issue. Also, you got to sort of counter it a little bit with you know, I grew up in the northern suburbs. A lot of clients like that type of behavior, you know, that type of personality. And the fact that clients might appear to just really value, you know, what could be a unique style. That’s another, I guess, listen, when we’re sort of looking at this, you know, many Fair Work commissioners, depending on where they sit on the pendulum on these type of matters, you know, could likely conclude that although there was a valid reason, the dismissal might be because the employer effectively condoned the behavior for an extended period of time before suddenly treating it as a dismissal worthy event. That’s a key issue. And it’s likely that the commission might find this unreasonable and harsh. But bringing to the next question about, what is the day after involved in that scenario? Reinstatement would really be unlikely. I think the employment relationship is severed, it’s broken. It’s frustrated.

Tom Daly: They hate each other.

Jim Babalis: They hate each other’s guts.

Tom Daly: Yeah.

Jim Babalis: You know, you know, she’s provocative, she’s challenging, she’s rude. This would weigh heavily against reinstatement. I think a commissioner, even on the pendulum side of supporting employees or unions or, you know, that aspect of it, would probably just reduce any award of compensation. You know, two weeks could be sufficient in this instance. Effectively, you know, trying to counterbalance it with a bad behavior.

Tom Daly: I think that’s all we got time for.

Jim Babalis: That’s all we got time for. So listen, thank you everyone for tuning in today to this presentation with some really interesting cases. Tom, thank you once again for your special guest appearance.

Tom Daly: Oh, my pleasure.

Jim Babalis: Thank you everyone.