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Disciplinary action may be unlawful if it infringes upon academic freedom

8 mins  10.06.2019 Jeremy Roe, Jennifer Bourke
In expressing views or challenging the work of others, an academic may breach a university's code of conduct by harming the reputation of the university or by denigrating the work of colleagues.

The Federal Circuit Court has recently determined that disciplinary action by a university in these circumstances was unlawful because it was inconsistent with the protection provided by an academic freedom clause in the relevant enterprise agreement: Ridd v James Cook University [2019] FCCA 997. At this stage the remedy is not known. We will need to wait and see if the university will appeal the decision after proceedings have concluded.

The interaction between a university's Code of Conduct and academic freedom provisions

This case is about the interaction between a university's Code of Conduct and the academic freedom provisions of its enterprise agreement. The Court was asked to consider whether a university can terminate an academic for breaching the Code of Conduct in circumstances where the academic says their conduct was protected by the academic freedom clause of the EA.

Professor Ridd had been employed by James Cook University (JCU) for over 15 years. A couple of years prior to the termination of his employment, he begun corresponding with media outlets, and made public statements, in which he questioned the quality of scientific research published about the health of the Great Barrier Reef. Some of the scientific research was conducted by other academics employed by JCU.

JCU responded to Professor Ridd's conduct by censuring him and issuing him a number of directions in relation to his future conduct, including directions that any public comments be made in a collegial manner that upholds JCU and respects individuals, and that he maintain confidentiality with respect to the direction. Professor Ridd refused to comply with these directions. JCU formed the view that Professor Ridd had engaged in serious misconduct, as his conduct had denigrated his colleagues and failed to maintain confidentiality, in breach of the Code of Conduct. Professor Ridd was censured and further directions were issued. Professor Ridd continued to refuse to comply with the directions and his employment was ultimately terminated.

The JCU EA contained an 'Intellectual freedom' clause (clause 14). It provided staff with a 'right' to publicly express opinions related to their respective fields of competence, provided that staff 'respect the rights of others' in doing so. Conduct which harassed, vilified, bullied or intimidated those who disagreed with the academic's views was expressly prohibited by clause 14. The EA noted the existence of the Code of Conduct, but did not place an obligation on staff to comply with the Code of Conduct. Further, the Code of Conduct expressly stated that it was not intended to detract from the right to academic freedom in clause 14 of the EA.

Professor Ridd's claim that his conduct was not unlawful

Professor Ridd said that certain findings, directions and censures, and the termination of his employment by JCU, were unlawful. JCU had taken these actions in response to Professor Ridd's conduct, which it described as a breach of the Code of Conduct. However, Professor Ridd argued that his conduct was not unlawful because it was an exercise of his right to academic freedom. Professor Ridd argued that JCU breached the EA in taking disciplinary action in respect of his conduct.

What did the Federal Circuit Court say?

The key issue which the Federal Circuit Court was required to determine was whether the right to academic freedom in the EA could be read as being subject to other behavioural expectations set out in the Code of Conduct.

JCU submitted that the intellectual freedom clause of the EA ought be considered through the lens of the Code of Conduct – ie. if the conduct offends the Code of Conduct, it cannot be protected by the academic freedom clause of the EA. However, the Court found that the opposite approach ought be taken. The Court concluded that the first consideration is whether the conduct falls within the scope of the intellectual freedom clause. If the conduct meets the requirements of that clause, then it will be protected. In the Court's view, the whole of the academic freedom clause would be redundant if it is the Code of Conduct that determines how any academic or intellectual freedom is to be exercised.

In reaching this conclusion, the Court took into account that clause 14 of the EA contained within it an express limitation on the right to academic freedom – ie. clause 14 provided that in exercising academic freedom, academics have a responsibility to respect the rights of others and must not harass, vilify, bully or intimidate those who disagree with their views. While Professor Ridd's conduct may have been disrespectful towards a colleague, it did not rise to the level of harassment, vilification, bullying or intimidation. In disciplining Professor Ridd, JCU relied on Professor Ridd's conduct as having been a breach of the Code of Conduct, rather than a breach of clause 14 of the EA. The Court found that such further limitations on the right to academic freedom could not be enacted through the Code of Conduct. The Court stated that '[w]hen the clause already has sufficient limitations on the right to intellectual freedom, it seems incongruous to then impose other limitations that have not been expressly identified. If the clause is truly meant to be subject to compliance with the Code of Conduct, such a limitation would have been spelt out in the clause itself'.

In reaching the conclusion that the JCU Code of Conduct could not override the intellectual freedom clause of the EA, the Court noted that an EA is a formal agreement that must be ratified by the Fair Work Commission and which cannot be changed unless the FWC gives its approval. On the other hand, the Code of Conduct can be amended at the initiative of the employer. The Court said that '[i]t seems incongruous that a document which can be changed by JCU, admittedly after consultation (whatever that means), can override a clause in an EA which can only be changed by the Fair Work Commission'.

The Federal Circuit Court did not rule out the possibility that an academic freedom clause could be subservient to another clause of the EA relating to behaviour. However, in this case, there were no such clauses relied upon by JCU – JCU took disciplinary action in respect of Professor Ridd on the basis that he breached the Code of Conduct, not the EA.

As for the alleged breaches of confidentiality by Professor Ridd, the Court determined that the terms of the confidentiality clause of the EA, under which the confidentiality directions were issued, made clear that the clause was for the benefit and protection of Professor Ridd, not JCU. JCU therefore did not have the power to issue the confidentiality directions and Professor Ridd's breach of those directions was therefore not grounds for disciplinary action.

The Federal Circuit Court concluded that the termination of Professor Ridd's employment was unlawful. The matter was adjourned to 18 July 2019 for a further hearing on the question of relief and penalties.

Implications for universities

This case does not significantly change the landscape with respect to a university's ability to take disciplinary action in relation to academics purportedly exercising academic freedom. It has always been the case that a policy implemented by an employer (such as a Code of Conduct) cannot override or circumvent protections or obligations set out in an EA unless the policy is expressly incorporated into the EA. However, we expect that this case will give new fuel to the fire for academics. We've already seen a similar claim filed in the Federal Court against the University of Sydney in respect of an academic's use of the swastika in a lecture.

When considering whether an employee has engaged in misconduct when purporting to exercise academic freedom, universities need to carefully consider the interaction between the relevant clause of their EA which gives academics a right to intellectual freedom, other clauses of the EA relating to behavioural expectations, and any Code of Conduct. It is important to remember that, when assessing an academic's conduct, the assessment begins with the academic freedom clause – the academic freedom clause cannot be read through the lens of other behavioural expectations, unless the clause expressly states that this is to occur. However, there may be grounds to take disciplinary action (even if the conduct meets the requirements of the academic freedom clause) if the conduct is otherwise unlawful – for example, if the conduct is such that it would constitute vilification, it may contravene the Equal Opportunity Act 2010 (Vic) and may therefore be unlawful.

Universities may also wish to consider the scope of their academic freedom clause when negotiating a new EA. For example, universities may wish to give consideration to ensuring that the EA clause expressly states that it is subject to other behavioural expectations set out in the EA (if that is what was always intended).

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