Appellant Disputes Finding of Serious Misconduct and Termination
Ridd v James Cook University [2021] HCA 32 (13 October 2021)
17 findings were made by James Cook University ("JCU") that Dr Ridd had breached the JCU Code of Conduct. JCU's position was that all of the findings against Dr Ridd were justified. Dr Ridd's position was that none of the findings made against him was justified. The Court, in determining whether or not the appeal should be granted, assessed the Code of Conduct which were central to the findings of serious misconduct against Dr Ridd.
Facts:
Dr Ridd was employed by JCU for 27 years. For 15 years he managed the University's Marine Geophysics Laboratory. In 2015, Dr Ridd sent a lengthy email to a journalist, which concerned issues and ideas relating to his field of expertise. JCU concluded that these remarks had breached the JCU Code of Conduct for the failure by Dr Ridd to treat those who held different views with respect and courtesy.
17 findings were made by JCU that Dr Ridd had breached the JCU Code of Conduct. Dr Ridd was issued with two directions about impermissible speech, five directions about confidentiality, and a direction not to subject JCU to satire or parody. Dr Ridd was issued with two censures ("the 2016 Censure" and "the Final Censure"). The basis for the first of these censures, and part of the basis for the second, was a finding that Dr Ridd had contravened the Code of Conduct by failing to treat others "with respect and courtesy" in his public discussion of his research.
On 2 May 2018, Dr Ridd's employment was terminated for serious misconduct under JCU's (now superseded) enterprise agreement ("the Enterprise Agreement"). By the time that the termination decision was made by the Vice‑Chancellor, that decision focused upon conduct by Dr Ridd that did not concern any matter within his academic expertise. Dr Ridd commenced proceedings claiming that each and every action taken by JCU was a contravention of s 50 of the Fair Work Act 2009 (Cth). Dr Ridd submitted that the application of the intellectual freedom protected by cl 14 of the Enterprise Agreement: (i) precluded any finding that he had breached the Code of Conduct; (ii) invalidated every direction and censure issued to him by JCU; and (iii) meant that his termination was unlawful.
The primary judge (Judge Vasta) accepted Dr Ridd's submissions and concluded that 13 actions taken by JCU were contrary to the Enterprise Agreement and ordered that JCU pay to Dr Ridd compensation of $1,094,214.47 and pecuniary penalties of $125,000.
Dr Ridd sought to reinstate all of the orders made by the Federal Circuit Court with adjustments for compensation and pecuniary penalties to reflect errors identified by the Full Court which he conceded had been made.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Fair Work Act 2009 (Cth) s 50 - provides that a person must not contravene a term of an enterprise agreement.
Fair Work Act 2009 (Cth) s 29 - provided that a modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.
Public Sector Ethics Act 1994(Qld), s 10 - provides for codes of conduct to express standards of conduct for, relevantly, public sector entities.
Anti-Discrimination Act 1991 (Qld) s 131A - requires respect for the rights of others and implicitly requiring lawfulness.
Ridd v James Cook University (2019) 286 IR 389, and Ridd v James Cook University [No 2] [2019] FCCA 2489 - where the primary judge declared that JCU contravened s 50 of the Fair Work Act 2009 (Cth) by doing each of the following in contravention of cl 14 of the Enterprise Agreement.
James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at 595 [135] - where it was provided that some of the information revealed by Dr Ridd, and said to be confidential, was in the public domain and thus its disclosure by Dr Ridd could not have amounted to misconduct, still less serious misconduct.
Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84 - provided that the Fair Work Act gave statutory force to the terms of the Enterprise Agreement and applied those terms (as varied from time to time) to JCU and all of its employees.
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440 [57] - where it was held that industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.
Sweezy v New Hampshire [1957] USSC 84 - provided what is recognised by some as the essential elements of the concept of intellectual freedom, such as (i) critical and open debate and inquiry including in public fora, namely the "spirit of free inquiry"; and (ii) participation and discussion in university governance.
Analysis:
Intellectual freedom is not qualified by a requirement to afford respect and courtesy in the manner of its exercise. Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a "convenient plan for having peace in the intellectual world", the "price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind". The only conduct that falls within the intellectual freedom in cl 14 is the expression of opinion within an area of academic expertise and the criticism of JCU decisions and processes through applicable processes which include obligations of confidentiality. However, this litigation concerned conduct by Dr Ridd far beyond that of the 2016 Censure, almost which culminated in the termination decision, a decision which itself was justified by 18 grounds of serious misconduct, none of which involved the exercise of intellectual freedom.
Conclusion:
The Court dismissed the appeal. The 2016 Censure given to Dr Ridd was not justified.
