The Federal Circuit Court has found that a former James Cook University Professor of Physics was unlawfully sacked by the University after it made a number of findings that he had breached the University’s Code of Conduct and failed to comply with its directions.

EdYOU first looked at this case on 27 February 2018.

Essentially, Professor Peter Ridd expressed concerns in both an email to a journalist and an interview on Sky News about the science underpinning the Australian Government spending to protect the Great Barrier Reef. In his view, a large proportion of the work that shows damage to the Great Barrier Reef is wrong, and there is a systemic quality assurance problem with the science in general.

Professor Ridd received a formal censure from James Cook University for breaching the University’s Code of Conduct in the way he expressed these views, which was not collegial and impacted on the reputation of the University and his colleagues. Professor Ridd subsequently made further public comments and was found to have breached directions to keep the matter confidential. This ultimately resulted in the termination of his employment.

The decision

The issue for the Court’s determination was whether the findings about Professor Ridd’s conduct, the directions and censures issued to him and the termination of his employment were contrary to the applicable enterprise agreement.

The enterprise agreement contained a clause which set out the right to academic freedom and stated the University’s commitment to acting in a manner consistent with the protection and promotion of it provided staff do not harass, vilify, bully or intimidate those who disagree with their views.

Judge Vasta found as follows:

• The academic freedom clause took precedence over the University’s Code of Conduct, which while referred to in the enterprise agreement did not form part of it.
• All of Professor Ridd’s actions which resulted in findings that he breached the Code of Conduct were an exercise of academic freedom in accordance with the clause of the enterprise agreement.
• Given this, the academic freedom clause applied to protect all of these actions such that they did not breach the Code of Conduct which was subordinate to that clause.
• As a result, the findings made by the University that Professor Ridd had breached the Code of Conduct on 17 occasions contravened the rights he had under the academic freedom clause of the enterprise agreement and were unlawful.
• The disciplinary outcomes arising from those findings (the censures and the termination of employment) were also unlawful because they punished Professor Ridd for conduct that was protected by the academic freedom clause.

The Court has invited further submissions on the issue of penalties as a result of this unlawful conduct.

We note James Cook University disagrees with the decision and is considering whether to appeal it.

Takeaways

The case demonstrates the inherent tension between the right to academic freedom and a university’s requirement that staff do not damage the institution’s reputation (or the reputation of other staff members), and otherwise comply with the institution’s code of conduct. Judge Vasta points out that in the exercise of academic freedom, academics may express unpopular views and some people may be offended or even insulted. He says that sometimes it is not possible to be collegial or respectful in the exercise of academic freedom.

This tension was also canvassed in the recent Review into University Freedom of Speech conducted by former Chief Justice of the High Court Robert French. The report calls for the adoption by higher education providers of a Code to strengthen principles of academic freedom.

It is clear from this case that a University dealing with investigations involving staff who have expressed their opinion must consider the interaction between academic freedom and their code of conduct or other relevant policies. There is a risk that investigation findings and disciplinary outcomes may be unlawful if the conduct is protected by academic freedom clauses enshrined in enterprise agreements.

We expect to see:

• An increased push from the National Tertiary Education Union to include detailed academic freedom clauses in enterprise agreements.
• An increased use of applications for injunctive relief where staff are facing investigations or disciplinary action as a result of expressing opinions which could be covered by academic freedom.