Judge says Sally Rugg returning to work for Monique Ryan may be ‘simply unworkable’

The judge in Sally Rugg’s federal court case against the independent MP Monique Ryan and the commonwealth has warned it may be “simply unworkable” for her to return to work pending the final hearing.

In a hearing on Friday after the breakdown of mediation, Justice Debra Mortimer said she had never “seen a case like this” – of an employee seeking an interim injunction to keep their job in what both Rugg and Ryan accepted was an “intense, personal working relationship”.

Rugg has sued the commonwealth and Ryan for alleged adverse action after the MP purportedly dismissed her chief of staff from her employment for refusing to work unreasonable additional hours.

Friday’s hearing contained fresh revelations about the breakdown of Ryan and Rugg’s relationship, including that Ryan cited Rugg’s decision to travel by aeroplane while she had Covid as a reason for losing trust and confidence in her.

Rugg’s counsel, Angel Aleksov, told the court that Rugg’s salary of a little over $136,607 plus a payment of $30,205 for working some additional hours “doesn’t justify working 70 hours a week, week-in, week-out”.

Justice Mortimer suggested the full case could take two weeks to hear, and may require evidence about what “reasonable hours” staffers in parliament work, including evidence from “staffers of other politicians”.

Aleksov said that Rugg was “pushed or jostled” to resign on 23 December. But he said termination of her employment was not effective until 31 January, a date later pushed back by undertakings to wait for the hearing on 3 March. Rugg should be allowed to return to work, he said.

He revealed that, despite having the “day to day” description of chief of staff, Rugg’s role was actually classified as a “non-senior role” under the workplace pay deal.

Aleksov said that Rugg exercised a right in the Fair Work Act to refuse unreasonable additional hours and was the subject of “retaliation” as a result. Aleksov submitted that staffers’ eligibility for a payment of $32,000 for additional hours could increase what was reasonable, but did not justify Rugg’s workload, which included Ryan’s request for her to do community work on weekends.

But Justice Mortimer cast doubt on whether it would be convenient to order that Rugg keep her job pending the full trial, suggesting she was “inviting the court to supervise” her working relationship with Ryan or else the relationship would be “simply unworkable”.

Mortimer questioned how “two people who have different views” about what reasonable hours are can be “ordered to continue to work together”.

Aleksov said that Rugg was not “work-shy” and she could do community engagement work, provided that tasks were reprioritised and some of her other duties were given to other staff.

He played down the formal warning that Rugg received for travelling by aeroplane with Covid, explaining that Rugg had doctor’s advice to return home, which implicitly condoned flying home.

The parties also fell into dispute about whether Rugg would have a job to return to. Rugg cited evidence from a work Slack channel that Ryan had a new acting chief of staff “seconded from a private organisation”, which Aleksov later revealed was Climate 200.

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Aleksov argued that because the replacement staffer is privately funded, there is still a Member of Parliamentary Staff Act funded-position for Rugg to go back to.

Simon Holmes à Court told Guardian Australia that Climate 200 had not provided a new chief of staff to Ryan. Rather, “a staff member of Climate 200 approached their manager asking for leave without pay in order to fill the gap in Ryan’s office”, he said.

“[This was done] completely at arm’s length, with no initiation from Climate 200.”

Ryan’s counsel, Matthew Minucci, submitted that there was no prima facie case for Ryan to answer and, if there were, it was an “extraordinarily weak” one.

Minucci argued that Rugg had quit her job, citing an Instagram post from her private account that she had “left” her job, and that she had returned her work laptop and refused to forward emails.

Both Ryan and the commonwealth, through counsel Nick Harrington, argued that it was now inappropriate for Rugg to return to work. They cited the fact Rugg and Ryan are in dispute about the nature of her role and hours of work.

Harrington cited Rugg’s intention to add a claim of “serious contravention” by the commonwealth for the “knowing and systematic” breach of labour standards as evidence the legal conflict was “escalating not de-escalating”.

Justice Mortimer adjourned the matter to Tuesday 9.30am for orders and publication of reasons. Rugg remains employed on miscellaneous leave until then.