The Federal Court of Australia (“FCA”) has set aside a decision by the Federal Circuit Court of Australia (“FCCA”) regarding the dismissal of a university academic, raising questions over the line between intellectual freedom and serious misconduct.

The FCA’s ruling in James Cook University v Ridd [2020] FCAFC 123 sets up the potential of a High Court ruling on terminating employees on the basis of their public comments. This draws parallels with the recent public discourse on freedom of speech in the context of the termination of Israel Folau’s contract.

Background

The academic was a professor who was employed by James Cook University (“JCU”) for over twenty-seven years. In 2018 the academic was terminated by JCU for serious misconduct, which was preceded by a series of confidentiality directions and two censures from JCU related to the academic’s alleged breaches of JCU’s Code of Conduct. The academic claimed in public comments and interviews during investigations into his serious misconduct that his intellectual freedom was being breached, and that the action was being taken against him because of his scientific views.

The termination stemmed from a series of conduct by the academic starting in 2015. The academic sent an email to a journalist which suggested that reports about the degradation of the Great Barrier Reef produced by two organisations affiliated with JCU were unreliable. This conduct resulted in a censure from JCU which directed the academic to act in a “collegial manner” in relation to public comments made by the academic in a professional capacity.

Two years later a further investigation was conducted stemming from public comments by the academic during an appearance on Sky News and emails sent by the academic to students and colleagues. During the academic’s appearance on Sky News he had made further comments about the two organisations being untrustworthy regarding the Great Barrier Reef. This resulted in complaints made by his colleagues that he was “trashing” JCU’s relationship with the other organisations.

The academic had been directed by JCU to maintain confidentiality of the matters being investigated. However, during the investigation he made a series of comments to The Australian, on the internet, and in a flyer distributed on campus alleging that JCU had taken disciplinary action against him of his scientific views. Altogether JCU’s investigations made 17 findings of breaches of the JCU Code of Conduct against the academic which amounted to serious misconduct. The findings were that the academic had denigrated a colleague of the academic, denigrated JCU, interfered with the disciplinary process and breached confidentiality.

JCU found not to have breached intellectual freedom protections

The academic sought to rely on clause 14 of the James Cook University Enterprise Agreement 2016 (“JCU Enterprise Agreement”) in challenging the decision to terminate his employment. Clause 14 stated that “JCU is committed to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with JCU’s Code of Conduct.”

The FCA found that the confidentiality directions made by JCU were justified under the JCU Enterprise Agreement or alternatively the common law right of JCU to give reasonable and lawful directions. As a result, neither the censures nor the termination contravened the JCU Enterprise Agreement.

Most notably, the FCA accepted JCU’s alternative argument that the FCCA had incorrectly characterised each of the academic’s acts as an exercise of intellectual freedom. The FCA found that while some elements of the academic’s conduct did fall within the scope of intellectual freedom, JCU had not disciplined him on this basis. The termination of employment was due to JCU’s concerns about the academic’s serious misconduct in the context of his duties to his colleagues and academics associated with the organisations he was criticising.

The FCA found that the intellectual freedom obligations under clause 14 were not absolute, and were “tempered” by the expectations and boundaries in relation to “respecting the rights of others…and the maintenance by staff of professional standards”. The FCA held that the some of the academic’s conduct were expressions of “personal opinion and frustration” and “general criticism of JCU or the university sector more broadly”.

The academic’s conduct in deliberately disclosing information about the disciplinary process despite the directions to maintain confidentiality demonstrated a “willingness to disobey lawful and reasonable directions given to him by his employer” which were “destructive of the necessary trust and confidence for the continuance of the employment relationship”.

What does this mean for intellectual freedom?

While there is significant public interest in this area of employment law, this case has shown that even where there is an explicit clause dealing with intellectual freedom or freedom of expression it is not an absolute right. Employers will still be able to rely on their ability to issue lawful and reasonable directions, particularly in relation to maintaining the confidentiality of disciplinary processes.

While it remains to be seen whether the High Court has a different view, this case shows that even in a sector which is built upon notions of freedom of thought and expression, intellectual freedom protections are not a defence to serious misconduct by employees.

Key takeaways
• Intellectual freedom protections are not absolute
• Breaches of confidentiality directions can be serious misconduct
• Lawful and reasonable directions are the best defence against wrongful dismissal claims

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