Author: Stuart Andrews
Date: 25 July 2020
James Cook University’s decision to terminate Professor Peter Ridd’s employment has been vindicated by the Full Court of the Federal Court. The court has upheld the right of the university to issue reasonable directions to Professor Ridd and to terminate his employment following his failure to comply with those directions.
Professor Ridd’s dismissal had “nothing to do with the exercise of intellectual freedom”. Those are the words of the Federal Court. He was not sacked for holding certain views about the impact of climate change on the Great Barrier Reef or for exercising his right, as indeed he had, to voice those views publicly. Rather, his employment was terminated for serious misconduct.
That misconduct involved repeated deliberate failings by Professor Ridd to comply with directions that he maintain confidentiality about internal disciplinary proceedings instituted in accordance with the university’s enterprise agreement. He was dismissed because he deliberately disclosed confidential information about the disciplinary process to The Australian, to another person, on a website, and by causing or allowing a flyer to be distributed on campus disclosing the outcome of the disciplinary proceedings and stating that he had no intention of complying with a final censure that had been issued to him. The court concluded that the university was entitled to give these directions to uphold the confidentiality obligations that relate to such processes, in accordance with the provisions of the enterprise agreement.
Professor Ridd did not contest that he failed to comply with all the directions issued to him. His argument, rejected by the court, was that he didn’t need to comply because the standards of behaviour that underpinned those directions were set out in a separate code of conduct, and therefore did not apply to him when exercising his intellectual freedom rights.
As indicated by the court, “the code of conduct describes the standards of behaviour expected of all staff of James Cook University in respect of four fundamental ethical principles “to guide the actions” of staff when acting in their official capacity. Those principles are to: seek excellence as part of a learning community; to act with integrity; to behave with respect for others; and to embrace sustainability and social responsibility”.
There is nothing Orwellian about such standards of behaviour. They are standards that people would expect to see in a code of conduct established in accordance with state public sector ethics legislation, as it was, through a consultative process with academic union involvement.
The court held that those standards of behaviour applied to Professor Ridd alongside his rights to exercise intellectual freedom. This included a responsibility for Professor Ridd to respect the rights of his university colleagues and academics associated with the institutions he criticised.
Intellectual freedom rights are integral to the proper functioning of a university and are set out in the enterprise agreements of all Australian universities. It is a fundamental principle that academic freedom exists to allow academic staff to pursue critical and open inquiry, participate in public debate, and express opinions about issues and ideas related to their respective fields of confidence.
James Cook University agrees. This is enshrined in its enterprise agreement. The Federal Court decision does not derogate from this.
The court’s decision upholds the university’s right to set appropriate behavioural standards in the exercise of those rights.
The Australian Higher Education Industrial Association is the employer association for the higher education sector, registered under the Federal Fair Work (Registered Organisations) Act 2009. Our membership currently comprises 32 universities.
AHEIA provides a range of learning and development services, including a suite of workplace relations training programs, leadership development programs and wellbeing programs specifically designed for university staff. The Association designs bespoke and customised programs for ‘in-house’ delivery as well as offering training workshops throughout the year in all mainland State capital cities.