A decision of the Federal Circuit Court weighed the freedom of expression contained in an Enterprise Agreement against a university’s Code of Conduct.
This decision considers the limits of an employer’s ability to regulate the conduct of employees in the face of broad freedoms contained within an Enterprise Agreement. In it, Professor Peter Ridd won an unlawful termination suit against former employer James Cook University (JCU).
Ridd was employed by JCU in 1989, and was head of the physics department from 2009. He had managed JCU’s marine geophysical laboratory for 15 years, and was an outspoken critic of the mainstream scientific consensus that factors such as human-accelerated climate change are hastening the demise of the Great Barrier Reef.
But this was not a case about the merits of differing scientific positions. Rather, as Judge Vasta put it: “this trial was purely and simply about the proper construction of a clause in an enterprise agreement.”
Ultimately, Vasta ruled that 17 findings made by JCU against Ridd, along with a number of directions, two formal censures and the ultimate termination of Ridd’s employment were unlawful.
“It probably has a far-reaching effect for higher education institutions – specifically universities – in relation to the notion of intellectual freedom,” says Aaron Goonrey, partner at Lander & Rogers.
An EA vs a code of conduct
The conflict between Ridd and JCU centred on clause 14 of the JCUEnterprise Agreement (the EA) entitled “Intellectual Freedom”. Breaching the terms of the EA would render the offending conduct unlawful pursuant to section 50 of the Fair Work Act 2009.
Clause 14 of the EA stipulated that:
- JCU is “committed to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with JCU’s Code of Conduct.”
- “All staff have the right to express unpopular or controversial views”, subject to their responsibility, “to respect the rights of others and they do not have the right to harass, vilify, bully or intimidate those who disagree with their views …”
Goonrey says such clauses appear in Enterprise Agreements in many Australian universities. Vasta made a similar observation.
Also weighing on the case was the University’s Code of Conduct, which was referred to in clause 13 of the EA but did not form a part of the EA itself. Importantly, clause 13.3 of the EA stipulated that, “the parties note that the Code of Conduct is not intended to detract from Clause 14, Intellectual Freedom.”
It’s important to understand the laws that underpin the HR profession. This one day course will get you up to speed.
So what happened?
On 16 December 2015, Ridd wrote an email to a News Limited journalist, questioning the reliability of photographic and other evidence used by organisations, including some of which his colleagues at JCU were a part, to argue that the Great Barrier Reef was being degraded.
Ridd wrote, among other things, that the relevant organisations “should check their facts before they spin their story.”
The journalist forwarded Ridd’s email to Hughes, the head of one of the organisations singled-out, for comment. Hughes then made a formal complaint about Ridd’s email to JCU.
Applying the Code of Conduct, JCU issued Ridd both a formal censure and a direction regarding his future conduct. JCU wrote that Ridd had breached the Code of Conduct, in that he had failed to, “act in a collegial way and in the academic spirit…”
“What the University was saying was that the tenor of how he was engaging in the debate was contrary to the Code,” says Goonrey.
On this point, Vasta held that, “Ridd is pursuing a critical issue and is calling for an open enquiry. He is participating in public debate and he is expressing opinions about issues and ideas related to his field of competence. In this respect, he is exercising his right to intellectual freedom and specifically those rights as given to him by cl.14.2 of the EA.”
That the views expressed by Ridd might have been “unpopular or controversial” did not enter into the picture, Vasta held – so long as he respected the rights of others and did not harass, vilify, bully, or intimidate anyone.
On 1 August 2017, Ridd was invited to appear on Sky News program Jones and Co, where he was interviewed by Alan Jones regarding the science surrounding the health of the Great Barrier Reef.
During the interview, Ridd said, “the basic problem is that we can no longer trust the scientific organisations…” Significantly, Ridd allowed that “most of the scientists” arguing that human activity was degrading the reef “genuinely believe” what they are saying.
Upon receiving a summary of this interview, Hughes complained to JCU’s Vice-Chancellor.
A JCU HR Manager contacted Ridd on 24 August 2017 alleging that his conduct amounted to serious misconduct pursuant to the EA. JCU issued a direction requiring Ridd to maintain confidentiality concerning the disciplinary matters in which he was then involved, citing the confidentiality requirements of clause 54 of the EA.
Vasta ultimately held that Ridd had not impugned the honesty of his colleagues.
On 27 August 2017, Ridd received a direction from JCU stating that he “should not discuss any aspect of the serious misconduct process whilst it is ongoing – except with an appropriate representative”. This, it was found, had the effect of directing Ridd not to discuss the matter with his wife.
Between August and September 2017, Ridd emailed a number of colleagues, students, and supporters, saying, among other things: “As usual, I have offended some powerful organisations who don’t like being challenged, and rather than debate the case, they just resort to threats and complaints.”
On 23 October 2017, JCU wrote to Ridd alleging, as Vasta put it, that, “he had denigrated colleagues and failed to maintain confidentiality in a number of emails” in breach of the Code of Conduct.
In scrutinising each of the impugned emails, however, Vasta would hold that Ridd’s comments were to be read in context. In so doing, the found that the comments were not harassing, vilifying, bullying or intimidating with respect to Hughes or anyone else, and that in each such case Ridd was “exercising his rights” pursuant to the EA, including his right to express opinion about JCU’s operations and decision-making processes.
On 21 November 2017, JCU issued a final censure, directed Ridd to observe the Code of Conduct and to maintain strict confidentiality in relation to the disciplinary proceedings.
Meanwhile, Ridd had started a crowdfunding campaign to raise money for his legal costs, and circulated a “flyer” detailing his experiences and concerns. He published materials related to his internal JCU disciplinary process on a blog, as well as speaking with journalists. JCU alleged that these disclosures represented, among other things, breaches of Ridd’s confidentiality directions.
However, Vasta would again hold that Ridd’s conduct was protected by clause 14 of the EA.
JCU responded on 13 April 2018, writing to Ridd that it had identified nine additional breaches of the Code of Conduct.
JCU’s Vice-Chancellor terminated Ridd’s employment with JCU on 2 May 2018.
The final decision
Confronting the university’s arguments as to the lawfulness of its conduct, Vasta wrote that: “The University submits that…the exercise of intellectual freedom must be done in accordance with the Code of Conduct.”
Vasta was not swayed.
“It seems to me that such an approach is far too narrow,” he said – requiring, as it did, “one to limit the concept of intellectual freedom and make it subservient to clauses that relate to behaviour. The wording of cl.14 does not show that there is any such limitation on its power or applicability.”
Ultimately, it was found that clause 14 did not “bind anyone other than the university itself with the Code of Conduct.” When it came to Ridd exercising his freedom under clause 14, Vasta said, “whether there is a breach of the Code of Conduct is totally irrelevant.”
Finally, Vasta found that the confidentiality clause in the EA was designed to protect the interests of employees involved in disciplinary and other processes – it did not impose confidentiality obligations on Ridd. Clause 54 did not give JCU power to issue the confidentiality directions to Ridd, and nothing in that clause trumped his entitlements under clause 14.
In summing up, Vasta held that, “the University has not understood the whole concept of intellectual freedom… Many aspects of the Code of Conduct cannot sit with the concept of intellectual freedom and certainly contravene cl.14. The Code of Conduct is subordinate to cl.14 of the EA.”
Lessons for employers
What lessons can employers in the higher learning sector take from the decision?
“What universities will need to look at is whether or not [intellectual] freedom ought to be measured or balanced with other considerations,” says Goonrey. “Because in the Enterprise Agreement, that freedom was very broad in the case of James Cook University.”
Significantly, following Vasta’s decision in April, JCU issued a press release criticising the judgement and defending its treatment of Ridd.
Last week, Vasta issued a withering decision on compensation and penalties, scorching JCU’s conduct. In awarding Ridd a staggering $1.2m, Vasta noted that the controversy surrounding his treatment by JCU and ultimate dismissal had had a catastrophic effect on his employability.
As Ridd himself said in court: “most big institutions don’t want a bar of somebody who has been through my sort of controversy.”
JCU’s press release had contributed to Ridd’s dire situation, said Vasta.
In calculating the award, Vasta also considered the stress, isolation, anxiety, anguish and humiliation suffered by Ridd for engaging in the intellectual freedom to which he was entitled.
The scale of the award has been heralded by some as a significant win for employees. It may also serve as impetus for other aggrieved workers in the tertiary education sector. “I think it may actually open up more in terms of claims being made, that people are being stifled,” says Goonrey.
As to the decision’s broader situation in the legal landscape, it’s illustrative of an increasingly prominent tension. “It does seem slightly inconsistent with some of these other decisions we’re seeing, such as the Twitter case, where employers are told ‘you have a right to manage the performance of employees’,” says Goonrey.
“The difference between those cases and this case is that the freedom we’re talking about was actually encapsulated in a document that Ridd engaged with. There’s just an inherent tension between the Enterprise Agreement and the Code, and in this case, the Enterprise Agreement wins. That’s what’s happening in the Folau cause, that’s what happened in the Twitter case – these tensions. Ultimately, it comes down to which person has the better claim to their ‘right’?”
JCU has three weeks from the September judgement to file an appeal.