The ACT Brumbies face another week of uncertainty and drama in the build up to their first home game in a month, with the club's board waiting to find out of the ACT Supreme Court will overturn an order preventing them from standing down chief executive Michael Jones.
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The Brumbies board fought on Tuesday to remove a court order barring them from standing down Mr Jones, arguing he should not be given temporary whistleblower protection.
The fight over Mr Jones' employment at the Super Rugby club continued before a packed public gallery and lawyers spent some time behind closed doors to discuss sensitive issues.
Arguments continued late into the night but Justice Richard Refshauge made no decision, meaning Mr Jones is free to continue working as chief executive for the time being.
A decision could be made in the coming days and follows a week of high drama at the Brumbies, which started with the board standing down Mr Jones following a controversial radio interview that attacked critics of his job.
It's an unwanted distraction for the Brumbies' on-field performances after returning to Canberra this week following three games on the road in Perth, Cape Town and Bloemfontein.
Ticket sales have been extremely low in the build up to their clash against the Waikato Chiefs at Canberra Stadium on Saturday night, despite the Brumbies winning four of their five games this year.
The off-field war behind the scenes has been confusing for fans as they watch club powerbrokers fight each other. Brumbies director Angus McKerchar was the only board representative in court on Tuesday.
Mr Jones lodged an injunction in the ACT Supreme Court last week less than 24 hours after the board moved to stand him down indefinitely.
The board had asked Mr Jones to hand over his keys to the office and cut off his business credit card before he was reinstated after gaining the injunction.
Mr Jones used an alleged breach of contract and the ACT's whistleblower laws to temporarily stymie the Brumbies' attempts to stand him down, while also preventing the university, its vice-chancellor Stephen Parker, Joe Roff, and David Lamont from talking to the club about the chief executive's employment. He argues he was victim of "detrimental actions" after making a series of disclosures, and asked for temporary protection as a whistleblower, while also seeking damages.
The exact nature of Mr Jones' disclosures has largely been kept secret, due to a number of suppression orders put in place by the court. The angst stems from the Australian Federal Police investigation into transactions at the club between 2009 and 2013 relating to the sale of the Brumbies' Griffith headquarters and subsequent move to the University of Canberra.
Mr Jones said rumours about his future were fuelled by people who had been named in the AFP investigation and detailed report by KPMG.
The Brumbies' lawyers told the ACT Supreme Court on Tuesday that they were applying to dissolve the order preventing the Brumbies from standing Mr Jones aside.
They attacked Mr Jones' use of whistleblower protections on a number of grounds. Barrister Simon Meehan argued that Mr Jones' series of disclosures could simply not be defined as "disclosable conduct" under ACT whistleblower laws. Some were not serious enough to meet the legal test, he argued, and none identified a particular person who acted improperly or dishonestly, as required by law.
"None of that evidence... satisfies the definition of public interest disclosures," he said.
"And Your Honour would not, with respect, conclude that the detrimental action was causally linked with the disclosure."
But lawyers for Mr Jones said that if whistleblowers were forced to identify a person when disclosing conduct, it would "unnecessarily restrict" the purpose of whistleblower protections.
Mr Meehan also argued there needed to be a causal link between Mr Jones' standing down and the disclosures, which he had not done.
He argued that if such a link didn't have to be established, then an employer would never be able to stand down any employee, for any reason, after they've made a disclosure.
"So then if any employer stood down an employee who made a disclosure, for any reason, ever, then they could be restrained by injunction," he said.
Justice Refshauge agreed it would be "absurd if there was no relationship" between the disclosures and the action taken against the whistleblower.
The judge has continued the injunction preventing the Brumbies from standing Mr Jones aside, until he makes a decision.
That is not likely to happen on Wednesday morning, he said.
Canberra rugby clubs are keeping a close eye on the situation before deciding whether they will intervene. The clubs hold the balance of power in the Brumbies' boardroom, with 14 of a possible 23 votes.
If the impasse continues, the clubs could move a vote of no confidence in the board to trigger governance changes.
