Speaking against your colleagues and employer: High Court of Australia to hear controversial scientist’s appeal

In a matter of a few years, we have another employment law matter before the High Court of Australia dealing with alleged ‘freedom of speech’ at work.  The High Court in its earlier decision of Comcare v Banerji [2019] HCA 23 held that a public servant did not have an untrammelled freedom to criticise their employer by breaching its policies, even anonymously. 

The current case has attracted much public and media attention (see, for example, the ABC’s coverage here).  But what is all the fuss?  In this case, Dr Ridd – an academic – believed he had the right to speak out about scientific research on the health of the Great Barrier Reef (even if his views were controversial and critical of his employer and colleagues).  James Cook University disagreed, and he was dismissed after warnings.  The University said he could not ignore its Code of Conduct when expressing his views.

Before the High Court hears the matter on 23 June 2021, it’s worth looking back over the previous decisions to see where we are and how we got here.

First things first – the framework

There were two key documents that govern the employment of Dr Ridd at the University – the James Cook University Enterprise Agreement 2013 – 2016 (see here) and the Code of Conduct (see here).

Importantly, cl 14 of the Agreement provided for intellectual freedom for all University staff.  However, the freedom itself is caveated:

All staff have the right to express unpopular or controversial views. However, this comes with a 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.

In conjunction with the Agreement, the Code requires all University employees to ‘treat fellow staff members, students and members of the public with honesty, respect and courtesy, and have regard for the dignity and needs of others’.  Importantly, the Code is referred to in the Agreement, with the Agreement stating that:

• the Code ‘establishes the standard by which staff and volunteers conduct themselves towards others and perform their professional duties’; but that

• the Code ‘is not intended to detract’ from intellectual freedom.

So what went wrong?

Dr Ridd was employed by the University for 27 years.  At the time of his termination, he was the head of Physics, having previously managed the University’s marine geophysical laboratory.

Dr Ridd’s employment came to an end in 2018 following a series of actions and events.  In 2015, the University issued its first censure in response to Dr Ridd making derogatory comments to a journalist about two of the University’s stakeholders (of a serious kind).  The University determined that the comments were in breach of Dr Ridd’s obligation to act in a ‘collegial’ manner and ‘uphold the integrity and good reputation of the University.’

Following a second set of similar comments in a 2017 interview with Sky News, Dr Ridd was again investigated for breaching the Code.  During the investigation, he was told the matter was to remain confidential.  Dr Ridd did not maintain this confidentiality.  Combined with his interview comments, Dr Ridd was again held to have breached the Code.

Dr Ridd was issued with a direction to refrain from criticism that was not ‘in the academic spirit of the search for knowledge understanding and truth’ and not make any statements that ‘trivialises, satirises or parodies’ the University’s actions against him. 

Once again, Dr Ridd breached these directions, along with engaging in other conduct allegedly against the Code.  Once again, the University held that they were a breach of the Code.  This time, Dr Ridd’s employment was terminated. 

In the legal proceedings, Dr Ridd never challenged that he engaged in misconduct.  The issue was whether he had the right, under the Agreement, to say what he did, and how he did, without ramification.

Initial decision

Dr Ridd challenged the University’s disciplinary action as being unlawful in breach of the Agreement, including his right to express unpopular and controversial views.  Dr Ridd argued that the University’s disciplining of him was unlawful as he had a right to do what he did under the intellectual freedom clause of the Agreement.

In the first instance, Judge Vasta of the Federal Circuit Court held in favour of Dr Ridd.  At the core of his reasoning, his Honour held that the University had assumed that the Code acted to limit the freedom provided by the Agreement.  

Judge Vasta said the Code was not part of the Agreement, so the Agreement’s terms prevailed.  The Code was, according to Judge Vasta, subordinate to the intellectual freedom granted by the Agreement.  In so finding, Judge Vasta relied on the nature of universities and higher education, saying:

intellectual freedom is so important. It allows academics to express their opinions without fear of reprisals. It allows a Charles Darwin to break free of the constraints of creationism. It allows an Albert Einstein to break free of the constraints of Newtonian physics. It allows the human race to question conventional wisdom in the never-ending search for knowledge and truth. And that, at its core, is what higher learning is about.

Dr Ridd was awarded over $1.2 million for breaches of the Fair Work Act 2009 (Cth).

Appeal

Unsurprisingly, the University appealed the first decision.  The Full Federal Court held that the University was able to discipline Dr Ridd.

Justices Griffiths and Derrington held that the Code acted in conjunction with the Agreement to ‘regulate the manner in which’ intellectual freedom is to be applied.  In particular, they had regard to the fact that:

• the intellectual freedom was not broad ranging, and it came ‘with a responsibility to respect the rights of others’; and

• the right of others are set out in the Code, which is expressly referred to and ‘enshrined in’ the Agreement.

Their Honours found that the University’s actions, confidentiality directions and termination were not in breach of the Agreement properly interpreted.

So what now?

In February 2021, the High Court granted Dr Ridd leave to appeal the Full Federal Court’s decision.  Dr Ridd is maintaining his argument that the Code should not limit his intellectual freedom in the Agreement.

The issue for the High Court is narrow.  It involves the proper interpretation of an enterprise agreement to determine how a policy and the enterprise agreement interact with each other.  Do they operate together or does one prevail over the other?

This is not a broad ranging case on whether academics have a free-standing untrammelled intellectual freedom (or employees, a freedom of speech).  Rather, the focus is limited to whether the University can rely on the Code of Conduct, in the context of an enterprise agreement, to discipline an employee whose conduct falls foul of the Code.

For employers that have employment contracts, their own codes of conduct and policies setting standards of behaviour, the issue is often can it enforce those standards when an employee can, or is able to, engage in contrary behaviour.  Sometimes the boundary is not clear. 

Employment is a two-way street.  Employees enter employment knowing they owe duties to their employer and need to comply with their employer’s codes and policies in return for their wage.  Perhaps this calls for moderation in behaviour if the employee wants to maintain that employment (especially if their behaviour has a direct impact on the business, clients and colleagues). 

The High Court hearing is set down for 23 June 2021.  While we don’t yet know which way the High Court will rule, we can say that this matter will definitely attract more attention.  Stay tuned.

 

Authors: Jade Bond, Linda MacKinlay and James Mattson.