National Tertiary Education Industry Union v University of Sydney

[2020] FCA 1709

Federal Court of Australia

National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709  

File number:

NSD 553 of 2019

Judgment of:

THAWLEY J

Date of judgment:

26 November 2020

Catchwords:

INDUSTRIAL LAW – alleged contraventions of s 50 of the Fair Work Act 2009 (Cth) – whether Enterprise Agreement created enforceable right to intellectual freedom – whether applicant’s conduct was an exercise of intellectual freedom – whether applicant’s conduct was misconduct or serious misconduct within the meaning of the Enterprise Agreement – alleged contraventions not made out

INDUSTRIAL LAW – alleged contraventions of s 340 of the Fair Work Act 2009 (Cth) – whether the applicant exercised a “workplace right” to make a complaint or complaints – whether the University took adverse action because of the exercise of a workplace right – alleged contraventions not made out

Legislation:

Defamation Act 2005 (NSW)

Fair Work Act 2009 (Cth) ss 50, 340, 341, 342, 360, 361, 539, 550

Higher Education Support Act 2003 (Cth) s 2-1

Tertiary Education Quality and Standards Agency Act 2011 (Cth) ss 21, 58, 105

University of Sydney Act 1989 (NSW) s 4

Higher Education Standards Framework (NSW) para B1.1.2

Cases cited:

Australian Rail, Tram & Bus Industry Union v KDR Victoria Pty Ltd (t/as Yarra Trams) [2014] FCAFC 24

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Blatch v Archer (1774) 1 Cowp 63

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Burns v Australian National University (1982) 61 FLR 76

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 282 IR 86

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fair Work Ombudsman v Hu (2019) 289 IR 240

James Cook University v Ridd (2020) 382 ALR 8

National Tertiary Education Union v La Trobe University (2015) 254 IR 238

Perez v Northern Territory Department of Correctional Services [2016] FCA 476

PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225

Rangi v Kmart Australia Ltd [2019] FCA 1778

Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 375 ALR 453

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

Short v Ambulance Victoria (2015) 249 IR 217

Tattsbet Ltd v Morrow (2015) 233 FCR 46

The Environmental Group Ltd v Bowd (2019) 288 IR 396

Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152

Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441

WorkPac Pty Ltd v Skene (2018) 264 FCR 536

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

290

Date of hearing:

19-23 October 2020

Counsel for the Applicants:

S Kelly

Solicitor for the Applicants:

National Tertiary Education Union

Counsel for the Respondents:

K Eastman SC with Y Shariff SC

Solicitor for the Respondents:

Ashurst

ORDERS

NSD 553 of 2019

BETWEEN:

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

First Applicant

TIM ANDERSON

Second Applicant

AND:

UNIVERSITY OF SYDNEY

First Respondent

STEPHEN GARTON

Second Respondent

ANNAMARIE JAGOSE

Third Respondent

order made by:	THAWLEY J
DATE OF ORDER:	26 November 2020

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

A        OVERVIEW	[1]
B        FACTUAL BACKGROUND	[8]
B.1 Dr Anderson	[8]
B.2  Professor Garton and Professor Jagose	[14]
B.3  University Policies	[16]
B.4 Events leading to the “First Allegations” made on 30 May 2017	[17]
B.4 30 May 2017: First Allegations	[21]
B.5  Dr Anderson’s reaction to the 30 May 2017 allegations	[24]
B.6 26 June 2017: Second Allegations	[31]
B.7  2 August 2017: First Warning	[36]
B.8  Events leading up to the Third Allegations	[39]
B.9  10 August 2018: Third Allegations	[51]
B.10 15 to 24 August 2018: Dr Anderson’s bullying complaint and Sydney Morning Herald article	[53]
B.11 September 2018: Defamation Act 2005 (NSW) concerns notice and response	[63]
B.12 8 October 2018: Outcome of bullying complaint	[65]
B.13 19 October 2018: Final Warning	[68]
B.14 26 October 2018: Fourth Allegations	[79]
B.15 December 2018: Suspension of Employment	[88]
B.16 Review Committee	[90]
B.17 Termination of Employment	[91]
C        RELEVANT ENTERPRISE AGREEMENTS, CODES OF CONDUCT AND POLICIES	[93]
C.1 The Enterprise Agreements	[93]
C.2 Codes of Conduct	[99]
C.3  Public Comment Policy	[100]
D        INTELLECTUAL FREEDOM	[101]
D.1  The applicants’ contentions	[101]
D.2  The respondents’ contentions	[111]
D.3  The significance of the decision in Ridd	[115]
D.4  Relevant principles of construction	[122]
D.5  Consideration	[126]
E        THE COURT’S ROLE IN RELATION TO BREACH OF CLAUSE 384	[142]
F         FIRST WARNING	[151]
F.1 Alleged contraventions of s 50 of the FW Act	[151]
F.1.1      Did the first and second comments constitute the exercise of intellectual freedom?	[154]
F.1.2      Did the University breach cl 315 and fail to comply with cl 384?	[162]
F.1.3      Conclusion	[165]
F.2 Alleged contraventions of s 340 of the FW Act	[166]
F.2.1      Introduction	[166]
F.2.2      Have the applicants established that Dr Anderson had and exercised a “workplace right”?	[177]
The first complaint	[188]
The second complaint	[195]
F.2.3      Have the applicants established that adverse action was taken?	[199]
F.2.4      Was the adverse action taken because of the first or second complaint or both?	[201]
G        FINAL WARNING	[211]
G.1 Alleged contraventions of s 50 of the FW Act	[211]
G.1.2      Did the fourth comments constitute the exercise of intellectual freedom?	[214]
G.1.3      Did the University breach cl 315 and fail to comply with cl 384?	[215]
G.1.4      Misconduct	[218]
The Lunch Photo Allegations	[220]
Bryan Seymour Allegations	[228]
Failure to follow a lawful and reasonable instruction	[234]
G.1.5      Conclusion	[238]
G.2 Alleged contravention of s 340 of the FW Act	[239]
G.2.1      Have the applicants established that Dr Anderson had and exercised a “workplace right”?	[240]
The first and second complaints	[241]
The third and fourth complaints	[242]
The fifth complaint	[244]
G.2.2      Have the applicants established that adverse action was taken?	[245]
G.2.3      Was the adverse action taken because of any, or any combination, of the first to fifth complaints?	[247]
H        TERMINATION	[251]
H.1 Alleged contraventions of s 50 of the FW Act	[253]
H.1.2      Did the fifth comments constitute the exercise of intellectual freedom?	[254]
H.1.2      Did the University breach cl 315 and fail to comply with cl 384?	[258]
H.1.3      Serious Misconduct	[261]
H.1.4      Conclusion	[269]
H.2 Alleged contravention of s 340 of the FW Act	[270]
H.2.1      Have the applicants established that Dr Anderson had and exercised a “workplace right”?	[271]
The first to fifth complaints	[272]
Sixth complaint	[274]
H.2.2      Have the applicants established that adverse action was taken?	[276]
H.2.3      Was the adverse action taken because of any, or any combination, of the first to sixth complaints?	[277]
I          ACCESSORIAL LIABILITY	[283]
J         THE NTEU AS A PARTY	[289]
K        CONCLUSION	[290]

A        OVERVIEW

1. The National Tertiary Education Industry Union (NTEU) and Dr Tim Anderson (the applicants) alleged that the University of Sydney, Professor Stephen Garton and Professor Annamarie Jagose (the respondents) engaged in 21 contraventions of the Fair Work Act 2009 (Cth) (FW Act).

2. There were seven alleged contraventions of ss 50 and 340 of the FW Act connected with each of the following three events:

   (1)the first warning made by the University on 2 August 2017;

   (2)the final warning made by the University on 19 October 2018; and  

   (3)the termination of Dr Anderson’s employment on 11 February 2019.

3. There were two enterprise agreements which relevantly covered and applied to Dr Anderson in his employment with the University and covered and applied to the University in relation to Dr Anderson’s employment:

   (1)between 16 January 2014 and 26 April 2018, the University of Sydney Enterprise Agreement 2013-2017 (the 2013 Agreement); and

   (2)from 27 April 2018 until the termination of Dr Anderson’s employment, the University of Sydney Enterprise Agreement 2018-2021 (the 2018 Agreement).

4. The parties proceeded on the basis that the two enterprise agreements were identical in all respects relevant to the disposition of the proceedings.  In those circumstances, it is sufficient to refer mostly to the 2018 Agreement.

5. The 21 alleged contraventions gave rise to two principal sets of issues:

   (1)The first set of issues related to alleged contraventions of s 50 of the FW Act and concerned a claimed right to “intellectual freedom”. As framed by the applicants, this part of the proceedings gave rise to the following questions:

   (a)whether cl 315 of the 2018 Agreement created an enforceable right to the exercise of “intellectual freedom” and, if so, the content of that right;

   (b)whether conduct constituting the exercise of “intellectual freedom” was capable of constituting misconduct or serious misconduct within the meaning of cl 3 of the 2018 Agreement;

   (c)whether the conduct of Dr Anderson on which the first warning, final warning and the termination of his employment was based constituted the exercise of “intellectual freedom” and was therefore not capable of constituting “misconduct” or “serious misconduct” within the meaning of cl 3 of the 2018 Agreement; and

   (d)whether, if cl 315 of the 2018 Agreement did not immunise the conduct of Dr Anderson leading to the final warning and the dismissal, that conduct was otherwise “misconduct” or “serious misconduct” within the meaning of cl 3 of the 2018 Agreement.

   (2)The second set of issues related to alleged contraventions of s 340 of the FW Act. This part of the proceedings gave rise to the questions whether:

   (a)Dr Anderson exercised a workplace right by making “complaints” within the meaning of s 341(1)(c)(ii) of the FW Act; and

   (b)the University had established that it did not impose the first warning or the final warning or terminate Dr Anderson’s employment because Dr Anderson exercised any one or more of the workplace rights.

6. The applicants also contended that Professors Garton and Jagose breached s 550 of the FW Act by being involved in the alleged contraventions of ss 50 and 340. The accessorial liability claim against Professor Jagose was abandoned shortly after she gave evidence.

7. For the reasons which follow, in summary:

   (1)The 2018 Agreement, including by cl 315, does not recognise the existence of, or give rise to, a legally enforceable right to intellectual freedom of the kind identified the exercise of which can never: (a) constitute “misconduct” or “serious misconduct”; or (b) be the subject of the processes contemplated by cl 384. 

   (2)The University did not contravene ss 50 or 340 of the FW Act.

   (3)The question of accessorial liability on the part of Professor Garton does not arise in light of the fact that the contraventions are not made out. It is not appropriate to hypothesise what conclusions would have been reached if contraventions of ss 50 and 340 had been established, because the answer would depend on factual findings which have not been made.

   B        FACTUAL BACKGROUND

   B.1      Dr Anderson

8. Dr Anderson commenced part-time employment with the University of Sydney on 16 February 1998.  He had previously worked at a number of universities in various positions.  His first position at the University was on a part-time basis in the role of Associate Lectureship in what was then the Department of Economics.

9. On 1 January 1999, Dr Anderson was appointed to an ongoing position at the University, in the role of Associate Lectureship in the Political Economy Group, within the Department of Economics.  Throughout his employment with the University, Dr Anderson was principally employed part-time at 0.5 full-time equivalent, except for a period between 1 January 2008 and 31 December 2009, when Dr Anderson worked at 0.75 full-time equivalent.

10. On 1 January 2000, Dr Anderson was promoted to the position of Lecturer.  On 1 January 2008, Dr Anderson was promoted to the position of Senior Lecturer.  On 30 October 2017, Dr Anderson was elected as a representative of academic staff to the Academic Board.  Elected terms to the Academic Board run for two years.

11. Dr Anderson maintained a Facebook account under the name ‘Tim Anderson’ (Facebook Account).  The Facebook Account was accessible to the public and used only by Dr Anderson.  Until at least mid-2018 the Facebook Account identified Dr Anderson as working at the University.

12. Dr Anderson also operated a Twitter account with the handle ‘@timand2037’ (Twitter Account).  The Twitter Account was accessible to the public and used only by Dr Anderson.

13. At the time of the termination of his employment, in February 2019, Dr Anderson was employed as a Senior Lecturer in the Department of Political Economy in the School of Social and Political Sciences in the Faculty of Arts and Social Sciences (FASS).  He was employed on a part-time basis, at 0.5 full-time equivalent.  Dr Anderson taught:

    ·a post-graduate course, Human Rights and International Development (ECOP6130), in semester 2 of 2015, semester 2 of 2016 and semester 1 of 2018; and

    ·a third-year undergraduate unit, Human Rights in Development (ECOP3017), in semester 1 of each of 2015, 2016, 2017 and 2018.

    B.2     Professor Garton and Professor Jagose

14. Professor Garton has been employed by the University since 1987 in various academic roles. Between 2009 to September 2019, Professor Garton was the Provost and Deputy Vice-Chancellor of the University.  Professor Garton is currently the Senior Deputy Vice-Chancellor of the University.

15. Professor Jagose has been employed by the University since 3 January 2011.  At all times material to the proceeding, she was the Dean of the FASS.  She has held that position since January 2017.

    B.3     University Policies

16. At all times material to this proceeding, the following University policies were in operation:

    ·Code of Conduct – Staff and Affiliates effective from 12 September 2016;

    ·Code of Conduct – Staff and Affiliates effective from 16 October 2017;

    ·Charter of Academic Freedom effective from 6 May 2008;

    ·Public Comment Policy effective from 1 February 2007;

    ·Bullying, Harassment and Discrimination Prevention Policy 2015;

    ·Bullying, Harassment and Discrimination Resolution Procedures 2015;

    ·Resolution of Complaints Policy 2015; and

    ·Policy on the Use of University Information and Communication Technology Resources (ICT Resources) effective from 31 August 2006.

    B.4 Events leading to the “First Allegations” made on 30 May 2017

17. On about 21 April 2017, the University notified to Mr Jay Tharappel allegations of misconduct made against him.  Mr Tharappel was employed by the University as a tutor in subjects taught by Dr Anderson.  Between 22 and 26 April 2017, Professor Jagose and Dr Anderson corresponded by email about the allegations against Mr Tharappel.

18. Between 4 and 10 or 11 May 2017, Dr Anderson made various tweets on his Twitter Account and posts on his Facebook Account.  These were referred to in the Further Amended Statement of Claim (FASOC) as the “first comments”.  The various tweets and posts, among other topics, related to media coverage concerning Mr Tharappel.  An example is as follows:

19. The final tweet, a copy in evidence of which was dated 11 May 2017, described Senator John McCain as “a key US war criminal”. 

20. On 19 May 2017, Dr Anderson wrote to Professor Jagose. The letter concerned allegations against Mr Tharappel and the investigation of those complaints. Dr Anderson referred to the letter in the FASOC as the “first complaint”. As with each of the asserted complaints, the character of the “first complaint” as a “complaint” covered by s 341(1)(c) of the FW Act is at issue.

    B.4      30 May 2017: First Allegations

21. On 30 May 2017, the University sent to Dr Anderson a letter signed by Professor Jagose containing allegations in relation to Dr Anderson’s conduct.  It stated that the allegations, if substantiated, may constitute “misconduct” or “serious misconduct” as defined in cl 3 of the 2013 Agreement.  These were referred to in the FASOC as the “first allegations”.  Professor Jagose had determined to deal with the allegations under cl 309(c) of the 2013 Agreement (equivalent to cl 384(c) of the 2018 Agreement).  The letter stated:

    Allegations

    The allegations, which relate to material published on your Twitter account and Facebook account are that:

    (a) You have breached the Code of Conduct - Staff and Affiliates, by engaging in conduct that:

    (i) does not constitute an exercise of the best professional and ethical judgment, or the carrying out of duties and functions with integrity and objectivity;

    (ii) is not fair and reasonable;

    (iii) does not treat members of the public with respect, impartiality, courtesy and sensitivity;

    (iv) does not comply with the University’s Public Comment Policy.

    (b) You have breached the Public Comment Policy, by engaging in conduct that:

    (i) does not uphold the outstanding reputation of the University in the community;

    (ii) does not constitute the exercise of good and ethical judgement in public comment;

    (iii) is not professional or exercise appropriate restraint;

    (iv) does not maintain the highest professional standards;

    (v) may bring the University into disrepute.

22. The letter attached 11 posts and tweets giving rise to the allegations.

23. The letter also included:

    Confidentiality

    This [sic] matters raised in this letter are confidential, and I direct you to refrain from disclosing to, or communicating with, anyone, the contents of this letter, the Allegations or any information or documents relating to them, other than to members of your family (or support person), your professional adviser on the basis they provide you with an undertaking that they will comply with the above confidentiality direction or unless you are required to do so by law or with the prior written consent of the University. You may of course speak with University staff who are directly involved in the process such as myself or Kim Fletcher, Associate Director, HR Relationship Group.

    The University takes the need for confidentiality very seriously, and reserves the right to take disciplinary action if the confidentiality direction is not adhered to.

    B.5     Dr Anderson’s reaction to the 30 May 2017 allegations

1. On 30 May 2017, as a result of the first allegations, Dr Anderson posted the following to his Facebook and Twitter Accounts respectively:

2. These were referred to in the FASOC as the “second comments”.

3. On 31 May 2017, Dr Anderson sent an email to the Department of Political Economy Board, Department of Political Economy Casual Tutors and Department of Political Economy Honorary Associates with the subject line “USyd management trying to gag anti-war academics”.  This included the following:

   Anti-war academic gagged at Sydney University

   Tim Anderson

   Anti-war academic Jay Tharappel - a tutor and doctoral student - has been gagged by an effective ‘secret social media police’ group set up at the University of Sydney, to monitor public comments by staff involved in controversy.

   This extraordinary development began with an anonymous leak from University management to the Daily Telegraph that Jay was “under investigation” for a “racially charged social media attack”. The tabloid ran a front page story (11 April) vilifying the young academic. He found about his employer’s investigation through the Daily Telegraph’s smear story. That front page story would not have occurred had university management not helped create it.

   A week later, when Faculty of Arts and Social Sciences (FASS) Dean Annamarie Jagose did press misconduct charges, she swore the casual tutor to secrecy.

   The Daily Telegraph story formed part of a torrent of abuse, mostly from News Limited media, against organisers of our successful conference ‘After the War on Syria’, which took place on 18-19 April at Sydney University. The conference was seen as pro-Syria and anti-war, while virtually all the corporate and state media backed Trump’s 6 April missile strike on Syria. In fact media attacks helped swell attendance at the successful conference, video of which is online here: Murdoch media through repeated abuse of us (“Sarin Gasbag”, “Pro-Assad Boffin”, “Uni loonies”, “genocide slur”) tried to pressure the university to act against the conference and its organisers. Jay’s comments were in response to two of these crusading journalists.

   Dean Jagose’s 20 April letter to Jay, after the conference, cited several of his posts and the University’s code of conduct. However it did not detail any particular imputations, as is normally required in civil law. Rather it called for his ‘defence’, while demanding that nothing of the inquiry be made public.

   Jay, myself and an NTEU union representative urged that Dean Jagose state specific imputations (the University’s Enterprise Agreement states that ‘the staff member will be provided with allegations in sufficient detail to ensure that they have a reasonable opportunity to respond’) but she refused. She also refused to release any detail of complaints that had been made against Jay to the university. Jay was left to present a ‘defence’ without any detailed knowledge of what had been alleged against him.

   There was no hearing. In her 17 May ‘outcomes’ letter Dean Jagose found ‘misconduct’ proven, but gave only a little more detail.

   Jay’s criticism of journalist Kylar Loussikian (his surname indicates Armenian heritage) was that he was a ‘traitor’ to Armenians for backing the missile attack on Syria. Historically, Syria provided refuge to Armenians, after the genocide under the Ottoman Empire. Dean Jagose, however, wrongly claimed Jay’s criticism was “on the basis of” his ethnicity. In his criticism of Fairfax journalist Michael Koziol, Jay had used the word “pathetic”, because Koziol had quoted him out of context. Dean Jagose also regarded this as a form of misconduct.

   The FASS Dean concluded there was ‘misconduct’, but not ‘serious misconduct’, and issued a ‘warning’. However the sting was in the tail. Any similar indication of lack of “respect, impartiality, courtesy and sensitivity” to the public would lead to “further Disciplinary Action, up to and potentially including the termination of your employment”. A regime of “appropriate monitoring” would be set up to police this threat.

   Further, Dean Jagose added, “this matter is confidential” and he was “directed to refrain from disclosing [it] to anyone ... the University takes the need of confidentiality very seriously, and reserves the right to take disciplinary action if you fail to adhere to this direction.” The star chamber was to remain hidden.

   However I was sent a copy of this letter and I did not agree to any such confidentiality. The abuse of process under this secret regime deserves to see the light of day.

   University of Sydney management clearly colluded with the Daily Telegraph to smear a young academic in their care - even though he is only employed three hours a week - and then set about trying to gag him. As the initial ‘findings’ were based on such flimsy grounds, it appears likely the secret monitoring group is ready to jump on almost any conflictual interaction by staff with powerful media groups.

   Meanwhile Murdoch journalists are no doubt waiting with baited breath for another chance to smear. What a shameful exercise and breach of trust by university management.

4. On 6 June 2017, Dr Anderson sent Professor Jagose a letter asking her to recuse herself from dealing with the first allegations against Dr Anderson, being those identified in the 30 May 2017 letter.  This letter was referred to in the FASOC as the “second complaint”.  The letter stated:

   Dear Annamarie,

   With respect to your letter of 30 May, let me begin by asking you to step aside.

   1. I criticised your conduct of charges made against Mr Jay Tharappel, a tutor and doctoral student in my care. Indeed, in response to my private 19 May letter to you, which contained some blunt criticism, you responded with two emails in rapid succession which strongly suggest that your 30 May letter is a reprisal. In your email (22 May at 5.30pm) you simply reject all criticism, adding the claim that “this letter itself breaches our Code of Conduct”. Almost simultaneously (22 May at 5.26pm) you wrote to me: “I would like to meet with you, following some of your recent social media activity ...” The immediate history, combined with these emails, leads me to conclude that this latest exercise is a reprisal.

   2. In my letter of 19 May I criticised what I regard as an attempt to bully and gag Mr Tharappel, by colluding with journalists from the Daily Telegraph to smear him in a front page tabloid attack. He was a junior academic for whom both you and I had a duty of care. That tabloid attack would not have appeared had you not leaked information about your ‘investigation’. Indeed Jay first heard of your ‘investigation’ through the Daily Telegraph. I regard that as a breach of trust on your part.

   3. I infer that the charges against Mr Tharappel were motivated by a concern to protect the university from media criticism it was receiving over the 18-19 April conference on Syria that we organised. It also seems that you and Simon Tormey (apparently your designated ‘monitor’ of social media activity) are concerned at adverse media coverage, as a result of staff engaged in critical discussion of the war on Syria. However I remind you of the University’s specific support for intellectual freedom (EA s.254), including on “the operations of the university”, including “controversial views” so long as there is not “harassment, vilification or intimidation”. There is nothing in my comments which constitutes “harassment, vilification or intimidation”.

   4. In the course of your secretive proceedings against Mr Tharappel you refused to provide specific details of your allegations (imputations), a course you repeat against me in your 30 May letter. You pretend to draw my attention to s.309(c) of the Enterprise Agreement (“the staff member will be provided with allegations in sufficient detail to ensure that they have a reasonable opportunity to respond”), but it appears you have little regard for it. Instead you, or Simon Tormey on your behalf, have trawled through some social media comments then, making not even one specific imputation, present me with 10 pages and an implicit ‘please explain’. I regard this as an abuse of process.

   5. For these reasons I apprehend serious bias. I cannot accept that you are acting as an impartial manager and I ask you to step aside and pass the matter to someone who might be regarded as impartial. I further ask that the new investigator provides the necessary further details or imputations regarding the allegations, prior to my response.

   Yours sincerely

   Tim Anderson

   Political Economy, SSPS

5. On 8 June 2017, Professor Jagose sent Dr Anderson an email, which stated:

   Dear Tim,

   I am not persuaded by the position you set out in your email in a number of respects.

   First, your comments in relation to the process the University conducted in response to complaints about the conduct of Jay Tharappel suggest that you do not understand (or possibly do not accept) the obligations of staff under University policy and the University’s rights to investigate complaints of misconduct against a staff member. The process followed was appropriate in all respects. Your concerns are without foundation and I do not propose to respond any further in relation to them.

   Second, I do not accept that the allegations put to you in my letter dated 30 May (Allegations) lack sufficient specificity. Both the relevant University policies and the conduct alleged to be in breach of the policy were identified, and copies of the social media comments that are the subject of the allegations were attached to the letter. However, to further assist you, I will provide by separate letter, further particulars of the Allegations and extend the timeframe for your response. I aim to provide this letter to you by close of business tomorrow, failing which, it will be next Tuesday. Although you are not required to respond, the Allegations are serious, and I would encourage you to treat them as such and provide a considered response.

   Third, I reject your allegation against me of bias. You have provided no facts nor other information that provides any basis for a genuine concern that I am (or could reasonably be perceived to be) prejudiced or otherwise unfairly influenced against you. It is my responsibility as Dean to manage allegations of misconduct against members of staff and I am satisfied that there are no grounds for me to step aside from my responsibilities in relation to this investigation.

   Finally, the serious accusations you make against me individually and the University, which you have repeated in other public communications, as well as other recent conduct of yours raise further concerns and, in my view, require further allegations to be put to you for your response. These will be provided to you in writing at the same time as I provide the additional particulars of the 30 May allegations referred to above.

   Best,

   Annamarie.

6. On 9 June 2017, the NTEU sent a letter to the University supporting Dr Anderson’s view that Professor Jagose should not be regarded as impartial and requesting that the investigation be allocated to another member of staff. This letter was not relied upon by the applicants as comprising a “complaint” for the purposes of s 341(1)(c).

7. On 23 June 2017, Ms Karen Haywood, the Delegated Officer (Staffing) under the 2013 Agreement, sent a letter to the NTEU advising that the matters raised in Professor Jagose’s letter dated 30 May 2017 would be referred to Professor Garton.

   B.6      26 June 2017: Second Allegations

8. On 26 June 2017, the University sent a letter from Professor Garton to Dr Anderson with the subject line “Further Allegations Relating to Your Conduct”.  The letter stated that, since the first allegations made by letter dated 30 May 2017, the University had become aware of further matters concerning Dr Anderson’s conduct which required additional allegations to be put to Dr Anderson and which, if substantiated, might constitute “misconduct” or “serious misconduct”.  These were referred to in the FASOC as the “second allegations”.

9. The letter identified the further allegations in the following way:

   The Further Allegations, are that:

   (a) On 30 May 2017, you published or caused to be published:

   (i)        on Facebook, a ‘post’ a copy of which is Appendix B; and

   (ii)       on Twitter, a ‘tweet’ a copy of which is Appendix C.

   (b) The post and tweet referred to in paragraph[(a)]:

   (i) stated that the University had “threatened to sack” you, which was false and without foundation;

   (ii) included an extract from the 30 May Letter:

   (A) which was confidential;

   (B) which related to a confidential matter; and

   (C) the publication of which was in breach of the direction with respect to confidentiality given to you in the 30 May Letter.

   (c) On 31 May 2017, you sent or caused to be sent an email to staff members in the Department of Political Economy faculty making allegations about Annamarie Jagose personally and the University (31 May Email). In the 31 May Email, you:

   (i) made statements which were without foundation and were derogatory in nature, including that:

   (A) the University has an “effective social media police” group which monitors public comments by staff involved in controversy;

   (B) the University colluded with the Daily Telegraph to smear Mr Tharappel:

   (C) the University engaged in a “shameful exercise and breach of trust”.

   (ii) published details of a confidential matter relating to Mr Tharappel’s employment with the University.

   A copy of the 31 May Email is Appendix D.

   (d) on 6 June 2017, you sent or caused to be sent an email to Annamarie Jagose making allegations about her personally and the University (6 June Email). In the 6 June Email, you made statements which were without foundation and were derogatory in nature, including that:

   (i) the 30 May 2017 Letter was a reprisal by Annamarie Jagose against you;

   (ii) Annamarie Jagose leaked information to the Daily Telegraph about the investigation relating to Mr Tharappel;

   (iii) the allegations put to Mr Tharappel were motivated by a concern to protect the University from media criticism of the 18-19 April conference on Syria;

   (iv) the investigation relating to Mr Tharappel was not properly conducted and Annamarie Jagose had little regard for the Enterprise Agreement;

   A copy of the 6 June Email is set out in Appendix E.

   (e) The conduct referred to in paragraph (c), (d), (e), (f), constitutes a breach by you of the Code of Conduct - Staff and Affiliates, in that it:

   (i) does not constitute an exercise of the best professional and ethical judgment, or the carrying out of duties and functions with integrity and objectivity;

   (ii) is not fair and reasonable;

   (iii) does not treat staff with respect, impartiality, courtesy and sensitivity; and

   (iv) discloses confidential University information.

   (f) Further, the conduct referred to in paragraphs (c), (d), constitutes a breach by you of:

   (i) the Code of Conduct - Staff and Affiliates, in that it is conduct that does not comply with the University’s Public Comment Policy; and

   (ii) the Public Comment Policy, in that it:

   (i) does not uphold the outstanding reputation of the University in the community;

   (ii) does not constitute the exercise of good and ethical judgement in public comment;

   (iii) is not professional or demonstrates appropriate restraint;

   (iv) does not demonstrate the highest professional standards; and

   (v) may bring the University into disrepute.

10. The letter enclosed a “Schedule to the 30 May Letter”, which contained an explanation as to why the 11 tweets and posts might breach the Code of Conduct – Staff and Affiliates and/or Public Comment Policy.

11. The letter also included:

    Confidentiality

    Tim, I remind you that the matters raised in this letter, and in the 30 May Letter, are confidential, and I direct you to refrain from disclosing to, or communicating with, anyone, the contents of this letter, the 30 May Letter, the Allegations, the Further Allegations, or any information or documents relating to them, other than to members of your family (or support person), your professional adviser on the basis they provide you with an undertaking that they will comply with the above confidentiality direction or unless you are required to do so by law or with the prior written consent of the University. You may of course speak with University staff who are directly involved in the process such as myself or Ms Kim Fletcher, Associate Director, HR Relationship Group.

    I remind you that the University takes the need for confidentiality very seriously, and reserves the right to take disciplinary action if the confidentiality direction is not adhered to.

12. On 5 July 2017, Dr Anderson sent to the University his response to the first (30 May 2017) and second (26 June 2017) allegations letters.

    B.7     2 August 2017: First Warning

13. On 2 August 2017, the University, by Professor Garton, sent to Dr Anderson a letter with the subject line “Re: Outcome – Allegations of Misconduct or Serious Misconduct”.  This letter concluded that the various allegations which had been set out in the first and second allegations letters had been made out.  Professor Garton was satisfied that disciplinary action was appropriate and that the letter should be treated as a written warning in relation to Dr Anderson’s conduct.  The letter included the following:

    As an employee of the University, you owe obligations to the University with respect to your behaviour. The University has in place policies including the Code of Conduct – Staff and Affiliates and the Public Comment policy. These policies apply to you and you are expected to comply with them.

    As you have stated in your Response, the University is committed to the protection and promotion of intellectual freedom. Academic staff are encouraged to contribute to public comment in their area of expertise.

    However, the University, as your employer, has the right to set standards of behaviour in relation to the way in which public comment occurs, and to require that you meet those expectations. In this regard, it is reasonable for the University to require that you comply with standards of behaviour, including by treating members of the public with respect, impartiality, courtesy and sensitivity, and ensuring that your conduct is professional and exercises appropriate restraint. It is also reasonable for the University to require that matters relating to the employment of individual employees are kept confidential.

14. On 21 August 2017, Dr Anderson sent a letter to members of the NTEU employed at the University.  The letter stated:

    Dear colleagues

    During the current EB round NTEU members might be interested to hear how USyd management has been tearing up the ‘intellectual freedom’ provisions of the previous EA.

    DVC Stephen Garton has tried to censure staff with no regard for the provisions of EA 254 (iv), which affirms the “the protection and promotion of intellectual freedom ... [including the right] to express unpopular or controversial views, provided that in doing so staff must not engage in harassment, vilification or intimidation”.

    Before and after an April conference on the conflict on Syria, conference organisers were attacked by the corporate media, for questioning (on Facebook and Twitter) the Middle East wars up to and including President Trump’s missile attack on Syria.

    The vicious media attacks on us also tried to wedge the university, with infantile headlines such as ‘Sydney University at centre of pro-Assad push’ and ‘Sydney University trashes its brand - yet again’. That pressure worked.

    After the conference USyd management tried to intimidate us with ‘misconduct’ charges first laid against tutor Jay Tharappel for his counter-criticism of journalists. Management leaked the ‘news’ of these charges against Jay well before he was even informed, resulting in a front page Daily Telegraph smear story.

    After that the FASS Dean also charged me with ‘misconduct’, for criticism of journalists and of an invitation extended by the University’s US Studies Centre to Senator John McCain, a public supporter of al Qaeda terrorists in Libya and Syria. She also charged me over a private letter in which I criticised her handling of the complaint against Jay.

    The NTEU backed me up, insisting that the Dean stand aside. My matter was then taken up by DVC Garton, who pretended to scold me for an alleged lack of ‘respect, impartiality, courtesy and sensitivity’. In doing so he completely ignored the cited, relevant provisions of EA 254 (iv). His ‘warning’ does not allow for any independent review (EA 309( d)). That lack of accountability must have encouraged his cavalier approach to industrial law.

    Staff may like to know that management pays little regard to the intellectual freedom clause, and that social media comment will be monitored and censured, if it causes some embarrassment to the university.

    Best wishes

    Tim Anderson

    Political Economy

1. For a period thereafter, things settled.  The “third allegations” were made a little over a year later.

   B.8     Events leading up to the Third Allegations

2. On 21 April 2018, Dr Anderson delivered a PowerPoint presentation at a seminar titled “Reading Controversies”, which he had organised (the PowerPoint Presentation).  The PowerPoint Presentation contained an infographic which included what the parties described as an Israeli flag with a superimposed swastika.  In fact, the picture was probably of an Israeli flag with the middle being ripped downwards and exposing a Nazi flag behind it. 

3. Although the presentation occurred before the “third allegations” were notified to Dr Anderson on 10 August 2018, the material in the presentation was not the subject of the “third allegations”.  Nevertheless, the material is relevant to later allegations and is set out here so that the events can be seen in context.

4. On 23 April 2018, Dr Anderson posted the slides from the PowerPoint Presentation to his Facebook Account, along with some comments.  The infographic, described by the parties as the “third comments”, was as follows:

5. On Sunday 22 July 2018, just before commencing annual leave, Dr Anderson posted on his Facebook Account a photo referred to as the “lunch photo”:

6. Mr Tharappel is seated at the table second from the right in the photo.

7. Dr Anderson was on approved annual leave between 23 and 30 July 2018.  Between 31 July 2018 and 2 December 2018, Dr Anderson was on approved Special Study Period leave.  Between 3 and 10 December 2018, Dr Anderson was on approved annual leave. 

8. On 2 August 2018, 7NEWS Sydney posted a video news story by Channel 7 reporter Mr Bryan Seymour about the lunch photo, focussing on the badge on Mr Tharappel’s shirt and commenting on Dr Anderson.  The story was titled “University student sparks outrage: A University of Sydney academic has outraged many in the Muslim and Jewish communities by wearing an offensive slogan”.  Among other things, Mr Seymour described Dr Anderson and Mr Tharappel as a “fervent supporters of … Kim Jong Un”. 

9. On 3 August 2018, Dr Anderson:

   (1)twice posted to his Facebook Account:

   Colonial media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of ‘racism’ for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK.

   media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of ‘racism’ for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK . [Link attached to 7NEWS video story]

10. These were referred to in the FASOC as the “fourth comments”.

11. On 3 August 2018, Dr Anderson received a letter from the University, signed by Professor Jagose, which formally directed Dr Anderson to remove the lunch photo and the fourth comments from his social media accounts.  Professor Jagose’s letter stated:

    I refer to the social media posts that have recently been made on your Facebook and Twitter accounts (see Annexure A for the details of these posts) (Social Media Posts).

    I am formally directing you to remove these Social Media Posts.

    The University has serious concerns that the Social Media Posts have the potential to bring the University into disrepute.

    I require that you confirm in writing by 1.00pm AEST on 4 August 2018 that the posts have been taken down.

    Should you not comply with the directions in this letter, I note that disciplinary action may be taken against you.

    The University is considering what action is appropriate in relation to the Social Media Posts. If it is determined that a misconduct process needs to be commenced in respect of your conduct, I will write to you separately in relation to that process.

    This letter is to be kept confidential and I especially require that you do not share this publicly or with any third party.

    Should you not comply with the directions in this letter, I note that disciplinary action may be taken against you.

12. On 4 August 2018, Dr Anderson sent an email to Professor Jagose in the following terms:

    I never respond favourably to secret demands and threats. You should know that you have no right to demand any censorship of my social communications. Your claim for secrecy of communications is also rejected.

13. Dr Anderson did not remove the lunch photo or the fourth comments. 

    B.9     10 August 2018: Third Allegations

14. On 10 August 2018, the University sent a letter from Professor Jagose with the subject line “Allegations Relating to Your Conduct”.  The letter of 10 August 2018 stated that allegations had been made in relation to Dr Anderson’s conduct which, if substantiated, might constitute “misconduct” or “serious misconduct” within the meaning of the 2018 Agreement and stated that the allegations would be dealt with under cl 384(c) of the 2018 Agreement.  These were referred to in the FASOC as the “third allegations”.  The allegations were identified as follows:

    Allegations

    The Allegations are as follows:

    1. On 22 July 2018, you published or caused to be published on your Facebook account, a photo containing imagery that can be considered as endorsing or promoting racial hatred and/or racism:

    (a) a copy of the photo which was uploaded to the Facebook photo album “Beijing 2018 is included as Post #1A and #1B (Post #1) in Annexure B); and

    (b) Post #1 includes an image of Mr Tharappel wearing a shirt which has a patch/flag with Arabic text which translates to state words to the effect of: “Allah Akbar [or “God is the Greatest”]; Death to America; Death to the Israeli; Curse the Jews; Victory to all Islam” (Patch).

    2. On 2 August 2018, you published or caused to be published on your Facebook account, a “post” (a copy of the post is included as Post #2 in Annexure B), which states:

    Colonial media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of ‘racism’ for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK.

    On 2 August 2018, you published or caused to be published on your Facebook account, a “comment” on Post #1 referred to above (a copy of the comment is included as Post #3 in Annexure B), which states:

    Colonial media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of ‘racism’ for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK.

    On 3 August 2018, you published or caused to be published on your Twitter account, a “tweet” (a copy of the tweet is included as Post #4 in Annexure B), which states:

    Colonial media promotes ignorance, apartheid and war. Channel 7’s Bryan Seymour accuses Indian Australian student of ‘racism’ for siding with #Yemen and other Arab states against #ApartheidIsrael. Also lies about those in solidarity with #Korea #DPRK.

    ...

    5. In relation to Posts #1, #2, #3 and #4, you published or caused to be published content that was derogatory and/or offensive in nature.

    6. In relation to Posts #2, #3 and #4 you published or caused to be published content that is derogatory of the journalist Bryan Seymour, by:

    (a) stating that Bryan Seymour’s new story was an example of “Colonial media [which] promotes ignorance, apartheid and war”;

    (b) stating that Bryan Seymour and/or Channel 7 “lie[d] about those in solidarity with [the Democratic People’s Republic of Korea]”; and

    (c) stating that Bryan Seymour “accuses Indian Australian student of ‘racism’ for siding with [Yemen] and other Arab states against [Apartheid Israel]”.

    7. On 4 August 2018, you refused to comply with the direction issued to you on 3 August 2018 at 6:00pm by Professor Annamarie Jagose, Dean of FASS that you delete Posts #1, #2, #3 and #4 (the letter of direction is attached and your email to the Dean is also attached).

    The conduct that is the subject of the Allegations above is similar in nature to the conduct that was the subject of the Previous Warning.

15. As noted earlier, the allegations did not concern the infographic which contained the modified Israeli flag.  The allegations concerned the lunch photo and Dr Anderson’s posts responding to the 7NEWS Sydney report.

    B.10    15 to 24 August 2018: Dr Anderson’s bullying complaint and Sydney Morning Herald article

16. On 15 August 2018, Dr Anderson made a written complaint to the University’s Director of Workplace Relations, Ms Jodi Dickson and the Director of Safety, Health and Wellbeing, Ms Julia Cohen, making allegations about the conduct of Professor Jagose.  This was referred to as the “third complaint”.  The letter stated:

    Dear Ms Jodi Dickinson [sic] and Ms Julia Cohen

    Subject of complaint: FASS Dean Annamarie Jagose

    This is a complaint about bullying and harassment by Annamarie Jagose, currently Dean of the Faculty of Arts and Social Sciences (FASS).

    Over almost 17 months she has launched trivial, vindictive and vexatious complaints against me, by email or letter, and mostly in relation to my social media posts.

    Last year the NTEU had her disqualified from personal involvement in judging such complaints, however she has returned to the game this year. I believe she does this in a misguided attempt to protect the university from adverse publicity, but without regard to my personal rights and agreed on principles of academic freedom.

    Her acts go well beyond her authority as a manager. As an academic I have never worked under the direction of a Dean; yet she now attempts to give me secret directions on self-censorship in public comment.

    I research and publish in the controversial area of contemporary war propaganda and am subject to repeated abusive personal attacks from the tabloid media. Bullying from Dean Jagose aggravates that. She seems to believe that intimidating me into silence will somehow lessen the tabloid media attacks (and consequent perceived adverse publicity for the university); yet these attacks persist due to the substance of my work.

    In particular, I say that between April 2017 and August 2018 Dean Jagose:

    1. Has made repeated trivial and vexatious formal complaints about me (2017-2018).

    2. Pressured me to self-censor my self-defence from - and criticism of - abusive and dishonest tabloid journalists (e.g. Kylar Loussikian of the Daily Telegraph in April 2017, Bryan Seymour at Channel 7 in August 2018).

    3. Has ignored my rights as a human being, to defend myself from abusive attacks, even though I do not engage in gratuitous or abusive criticism or counter-criticism.

    4. Refused to acknowledge my right to academic freedom, as set out in s.254 of the University’s Enterprise Agreement, which specifically supports intellectual freedom, including on “the operations of the university” and including “controversial views” so long as there is not “harassment, vilification or intimidation”. Dean Jagose seeks to trivialise this formulation.

    5. Falsely claimed that my political criticisms of journalists amount to ‘personal attacks’, or are ‘discourteous’ and ‘derogatory’, even though my criticisms (unlike the tabloid attacks) contain no gratuitous remarks nor abuse (2017-2018).

    6. Raised spiteful and vexatious formal complaints about me, even for my *private* written criticism of her conduct in assisting tabloid media (the Daily Telegraph) to defame tutor and PhD student Jay Tharappel (in April 2017).

    7. Went well beyond her powers as a dean by demanding, without any specified or justified reason, that I self-censor particular social media posts (August 2018).

    8. Raised unjustified and petty ‘misconduct’ charges against me for posting a photograph of friends at lunch in Beijing, because of one of the badges (from Yemen) on one person’s jacket; a peculiar form of ‘guilt by association’.

    9. Plagiarised false claims from the tabloid media (Channel Seven, August 2018) about alleged ‘incitement to racial hatred’ implied by the Yemeni badge. However when I studied that badge (which was not the subject of my post) I saw nothing which came close to ‘inciting racial hatred’. Dean Jagose’s letter (August 2018) simply copied false allegations from the tabloid media story, including a poor translation of the Arabic text in that badge.

    10. Went well beyond her authority as a dean by threatening me with dismissal on trivial and unjustified grounds, while improperly demanding that her written threats against me be kept secret (2017-2018).

    11. Carried out this vexatious campaign of harassment against me, at times calling her allegations ‘serious’, yet knowing full well that nothing in them could amount to ‘serious misconduct’ and so could not be subject to independent review.

    Could you please call this manager to account? Her actions have been threatening, unreasonable and divert me from my work while wasting time. Could you ask her to desist from this bullying and, if necessary, communicate any relevant matters in a civil way through the head of the Political Economy Department?

    Yours sincerely

    Tim Anderson (Dr),

    Senior Lecturer in Political Economy, Camperdown

17. On 17 August 2018, Dr Anderson received an email from Michael Koziol, a journalist from Fairfax media.  This stated:

    Hi Tim,

    Just following up on this. The university has confirmed it is investigating your conduct in relation to this matter.

    Is there any comment you would like to provide?

    thanks,

    Michael

    ---------- Forwarded message ----------

    From: Michael Koziol [redacted email address]

    Date: 14 August 2018 at 14:55

    Subject: Inquiry from the SMH

    To: [redacted email address]

    Hi Tim,

    Hope all well. Apologies, I know I had your mobile number at some point but I can’t find it.

    I’m hoping you can give me a call on [redacted] or let me know how to reach you directly.

    I’d like to ask about your recent trip to the DPRK, as well as your remarks about your former colleague Jay Tharappel, including this tweet:

    Many thanks,

    Michael

18. The same day, Dr Anderson forwarded this email to Professor Jagose, stating:

    Annamarie

    Can i take it that someone in your team has provided information to journalists (see below) to smear me in the media?

    Tim Anderson

19. On 19 August 2018, the Sydney Morning Herald published an article by Mr Koziol entitled “Sydney Uni lecturer investigated for defending ‘Death to Israel’ badge”.

20. On 20 August 2018, the University sent to Dr Anderson a letter signed by Professor Garton which stated that the “misconduct process” would be put on hold whilst Dr Anderson’s bullying complaint against Professor Jagose was considered.  The letter stated that queries in relation to the misconduct process should be directed to Professor Garton and that queries in relation to the bullying investigation should be directed to Mr Strbik, Associate Director of Workplace Relations, or Mr Tait, Workplace Relations Advisor. 

21. On 22 August 2018, Dr Anderson wrote a letter to Mr Strbik.  The letter explained that Dr Anderson would address the misconduct process and the bullying complaint together, stating:

    Provost Stephen Garton has written to me to say that my 15 August bullying complaint against Dean Jagose will be considered before Dean Jagose’s 10 August 2018 misconduct allegations against me. He adds that any queries about the bullying complaint be referred to you, while queries about the misconduct allegations be referred to him.

    I would like to add and respond to both matters now, as I am about to go overseas for most of the next three and a half months, on study leave. For convenience, I will address both matters together …

22. The letter then addressed the relevant matters in detail.  This letter was described as comprising the “fourth complaint”.

23. On 23 August 2018, Professor Garton sent an email to Dr Anderson, stating:

    Private and confidential

    Dear Tim

    I refer to your email dated 17 August 2018 addressed to the Dean. In view of your complaints against the Dean which are currently being reviewed, it is appropriate that I respond to you on behalf of the University.

    At no time has information been provided to journalists by anyone in the University “to smear” you in the media and such an allegation is entirely without foundation and should be withdrawn.

    The University, through its Media Office, in response to contact from the media, made a public statement that it had initiated an investigation in relation to your alleged conduct. In making such a statement (which you know to be a true one), the University did not breach the confidentiality obligation (which you share) which is directed to ensuring that the investigation is not compromised by details of the allegations or the process being disclosed to or discussed with third parties. The University reminds you of your obligation to keep confidential details of the investigation in accordance with the letter of allegations issued to you on 10 August 2018. To be clear, however, this does not prevent you (or the University) from disclosing the fact that the investigation is being conducted.

    Should you have any questions, please let me know.

    Stephen

24. The same day, Dr Anderson responded, stating:

    Dear Stephen

    Dont be disingenuous. You know very well that that SMH story would not have run without that official statement.

    Tim

25. On 24 August 2018, Mr Simon Kempton of the NTEU sent to the University a letter to the effect that the University should not have disclosed that Dr Anderson was being investigated for misconduct and concluding:

    The NTEU believes that the University should make a formal and public apology to Dr Anderson and also acknowledge that this inappropriate release of information has an affect on his life and may damage his career. This must be taken into account when considering the matters he has raised about bullying and inappropriate behaviour on behalf of University staff.

    B.11    September 2018: Defamation Act 2005 (NSW) concerns notice and response

26. On 8 September 2018, Dr Anderson sent a concerns notice under the Defamation Act 2005 (NSW) to the University’s Vice Chancellor, Dr Michael Spence AC. This was described as the “fifth complaint”. The letter opened with the following two paragraphs:

    I write to inform you that I consider the University of Sydney to be partly and jointly responsible for recent defamation of my reputation, by colluding with media outlets to publicise false claims about my alleged ‘promoting [of] racial hatred and/or racism’.

    Whatever the motives and duties of university mangers [sic], disclosure of an ‘official investigation’ into these bogus claims was also made in breach of university confidentiality procedures. The joint University of Sydney - public media defamation (which compile a collection of false claims and defamatory innuendo) has led to a stream of hate mail and threats (see attached).

27. On 14 September 2018, Dr Spence AC responded in the following terms:

    Dear Tim

    University of Sydney statements relating to Tim Anderson

    I refer to your letter dated 8 September 2018 in which you allege that the University has been involved in defamation of you.

    The tenuous basis for your allegations appears to be the public statement made by the University, through its Media Office, in response to contact from the media, that it had initiated an investigation in relation to your alleged conduct.

    I reject any suggestion that the making of that statement (which was clearly true) by the University could or did contribute to the alleged defamation of you by media outlets or any other third parties.

    The University bears no responsibility (partial, joint or otherwise) for the media reports that you allege constitute the defamation, and there is no basis for your demand that the University “make appropriate amends”. Accordingly, your offer of settlement is rejected.

    Yours sincerely,

    Michael Spence

    B.12    8 October 2018: Outcome of bullying complaint

1. On 8 October 2018, Professor Garton sent to Dr Anderson a letter regarding the outcome of the investigation into his complaint against Professor Jagose.  The letter included:

   Findings

   Mr Tait’s investigation of these allegations has now been completed. After carefully examining all of the evidence available, Mr Tait has made the following findings on the balance of probabilities in relation to the allegations that were raised:

   l. That the allegations against Professor Jagose could not be substantiated and that Professor Jagose’s interactions with you were deemed to fall within reasonable management actions as defined by Bullying, Harassment and Discrimination Prevention Policy 2015.

   Determination

   I have considered the process undertaken by Mr Tait and the findings set out above. I am satisfied that Mr Tait reasonably considered the evidence in an impartial manner and conducted a fair process. I have therefore decided to accept the findings of the investigation.

   As a result of this, Professor Jagose is not deemed to have breached the University’s Bullying, Harassment and Discrimination Prevention Policy 2015, and no formal disciplinary action will result.

   I consider this matter to now be closed.

   Confidentiality

   I note that your obligations relating to the confidentiality of this investigation continue to apply. The substance and fact of the investigation must be kept confidential.

   …

2. On 8 October 2018, Dr Anderson responded to the letter of 8 October 2018 by way of an email to Professor Garton, Mr Darren Burdon and Mr Kempton in the following terms:

   Dear Stephen and Darren

   I have your letter of 8 October, in which you provide a precis of a report by Mr Tait.

   Please provide me with a copy of the full report.

   Please note also that, especially following some managers’ practice of abuse by press release, I will disregard your claims for secrecy in correspondence.

   Be aware that I will make public parts of the correspondence from managers as and when I see fit.

   This is my right, both to defend myself from defamation, and to pursue my research speciality. You know about this, I have told you before.

   Best wishes

   Tim Anderson

3. On 9 October 2018, Professor Garton replied, by way of an email from Mr Burdon, to Dr Anderson’s email of 8 October 2018 to Professor Garton, Mr Burdon and Mr Kempton.  This included:

   Requirement to maintain confidentiality and allegations of defamation and abuse

   There is no justification for your stated intention to breach your confidentiality obligations in relation to these matters and your claim of a ‘practice of abuse by press release’ is without foundation and totally inappropriate.

   Your rights to defend yourself against any perceived defamation of you and to pursue your research speciality are not incompatible with your obligations as an employee of the University to comply with University policy and procedures, including the Code of Conduct - Staff and Affiliates, the Public Comment Policy, and any other obligations relating to your employment. These include the obligation to follow reasonable and lawful directions by your manager and to maintain confidentiality over particular information, documents or processes.

   Direction to maintain confidentiality

   I reaffirm that you are directed not to publish or disclose confidential information or correspondence relating to the bullying investigation, the misconduct process, or any other confidential information. Any breach of this direction may result in disciplinary action against you.

   B.13    19 October 2018: Final Warning

4. On 19 October 2018, the University, by Professor Garton, sent to Dr Anderson a letter advising of the outcome of the misconduct investigation.  The letter advised that Professor Garton was, on balance, satisfied that the allegations had been largely substantiated.  Detailed findings were set out by way of annexure to the letter.

5. The letter referred to the written warning issued on 2 August 2017 and then stated:

   It is of significant concern to me that you have repeated conduct in respect of which you received a formal warning.

   I am satisfied that Allegations 2, 3, 4, 6 and 7 are substantiated and Allegation 5 is partially substantiated, and that your breaches of the Code of Conduct - Staff and Affiliates (Code of Conduct) and Public Comment Policy amount to Misconduct.

   I am satisfied that throughout this process, you were afforded a reasonable opportunity to respond to the allegations.

   This letter constitutes a final warning that you must appropriately discharge your obligations pursuant to your contract of employment with the University, the Enterprise Agreement, the Code of Conduct and the Public Comment Policy going forward.

   I specifically remind you of the requirement to exercise good and ethical judgment in any public comment, demonstrate professionalism (including in public comment) and exercise appropriate restraint. I also remind you of your obligations to act fairly and reasonably, and treat all relevant persons, including staff and members of the public, with respect, impartiality, courtesy and sensitivity.

   Should any further incidents of this nature occur, the University will rely upon the 2 August 2017 letter, and this final warning letter to determine any appropriate further Disciplinary Action, up to and potentially including the termination of your employment …

6. The letter also addressed a new issue, namely posts of which it had become aware which included one which contained a modified Israeli flag.  The letter stated:

   [T]he University is aware of other posts made on social media accounts in your name which raise serious concerns about your willingness to comply with your employment obligations. In particular, I refer to a Facebook Post of a presentation in a “Reading Controversies” Seminar delivered for the Centre for Counter Hegemonic Studies. This post was made on 23 April 2018 and shows a cropped Swastika superimposed over the Israeli flag (see Annexure C to this letter).

   Given the period of time which had elapsed from when you had made the post and when it was referred to the University, a decision was made not to include it in the allegations. In the circumstances, the University will not raise this post with you formally. However, in my view, a reasonable person would regard the superimposition of a cropped Swastika over the Israeli flag as offensive.

   Please immediately add a disclaimer in any medium in which this post appears that the presentation is not connected in any way with the University of Sydney and remove any references to the University of Sydney from the relevant posts.

   You must also make it clear in any future posts relating to the Centre for Counter Hegemonic Studies that it is not associated with, or endorsed by, the University of Sydney in any way, consistent with guideline (e) of the Public Comment Policy.

   I have separately written to the NTEU in relation to the matters that they have raised on your behalf. I confirm that you are able to confirm the fact of the allegations, but not the substance of them. I also confirm that you are required to keep confidential the contents of this letter, including on social media.

   …

7. As to the lunch post (which formed the part of allegation 5 which was considered to have been substantiated) the annexure to the letter included:

   ALLEGATION 5

   …

   Post#1

   While I have found that the content of Post #1 does not, on balance endorse or promote racial hatred and/or racism (see finding in relation to Allegation 1), I am satisfied that the content is offensive or derogatory.

   In my view, whether the meaning of the Arabic text on the Patch worn by Mr Tharappel is “Death to Israel”, “Death to Israeli” or “Death to the Israeli”, when it is coupled with “Curse the Jews”, it is an incitement for the death of people of the predominantly Jewish inhabitants of the state of Israel and not a purely political statement seeking the demise of a nation state as you have suggested.

   The University is committed to supporting and encouraging the free expression by its students and staff of opinions and ideas, regardless of whether they are controversial, unpopular or objectionable to others and regardless of whether they are contrary to the views of the University. However, that general freedom is not unconditional and importantly, does not override policies of the University that are directed to ensuring that all staff, students and members of the public are treated with respect and courtesy by members of the University community, regardless of religion, race, ethnicity, political belief or other difference.

   The University supports the free exchange of ideas relating to the state of Israel. However, content that calls for a death to a State and the people within it, and a curse on people who are of a particular religion, does not form part of a respectful debate.

   In my view a reasonable person is likely to find the Patch worn by Mr Tharappel and posted by you to be offensive and/or derogatory. This allegation is substantiated.

8. As to Posts #2, #3 and #4 concerning Bryan Seymour, the annexure included:

   ALLEGATION 6

   In relation to Posts #2, #3 and #4 you published or caused to be published content that is derogatory of the journalist Bryan Seymour, by:

   (a) stating that Bryan Seymour’s new story was an example of “Colonial media [which] promotes ignorance, apartheid and war”;

   (b) stating that Bryan Seymour and/or Channel 7 “lie[d] about those in solidarity with [the Democratic People’s Republic of Korea]’; and

   (c) stating that Bryan Seymour “accuses Indian Australian student of ‘racism’ for siding with [Yemen] and other Arab states against [Apartheid Israel]”.

   In your Response, you state that you believe you are entitled to state these things under cl 254 of the Enterprise Agreement. I assume that you intended to refer to cl 315 of the Enterprise Agreement (which was cl 254 in the predecessor to the Enterprise Agreement and related to intellectual freedom).

   Clause 315 refers to the right of academic staff to “engage in the free and responsible pursuit of all aspects of knowledge and culture ...” (my emphasis). Further, the right recognised in clause 315 needs to be read alongside the commitment in clause 317 to “uphold the principle and practice of intellectual freedom in accordance with the highest ethical, professional and legal standards.”

   This means, among other things, that an exercise of a freedom of intellectual freedom must be responsible and considered and in compliance with the standards of behaviour set in the Code of Conduct.

   In my view, the statement made by you (and set out above) are, on any objective view, derogatory of Bryan Seymour and go beyond the expression of an opinion about the underlying issue.

   Your statement is an attack on the credibility of an individual journalist rather than the views expressed by him, in that you directly associated Mr Seymour with the “colonial media”, thereby inferring that he promotes “ignorance, apartheid and war.”

   The statements that Mr Seymour “lies about those in solidarity with #Korea #DPRK” and that he “accuses Indian Australian student of ‘racism’ for siding with [Yemen] and other Arab states against [Apartheid Israel]” are personal attacks on the reporter rather than a fact-based statement about an issue and, in my view, are derogatory and offensive.

   Finding relating to Allegation 6

   This allegation is substantiated.

9. The annexure also included:

   ALLEGATION 7

   On 4 August 2018, you refused to comply with the direction issued to you on 3 August 2018 at 6:00pm by Professor Annamarie Jagose, Dean of FASS that you delete Posts #1, #2, #3 and #4 (the letter of direction is attached and your email to the Dean is also attached).

   Professor Jagose provided a lawful and reasonable direction to you, as someone in a supervisory position relating to your employment, that you remove posts that she considered had the potential to be in breach of University’s expectation of employees under the Code of Conduct and Public Comment Policy. It was reasonable for her to issue that direction to you in circumstances where she had formed the view that the content of your posts was contrary to your obligations under the Code of Conduct and Public Comment Policy.

   You have admitted that you refuse to comply with Professor Jagose’s direction.

   Finding relating to Allegation 7

   The Allegation is substantiated.

10. Dr Anderson stated in his affidavit that, after receiving the final warning, he removed “the University of Sydney” from the “about” details of his Facebook and Twitter Accounts. 

11. Dr Anderson had not previously heard of any complaint about the infographic in his Reading Controversies slides, referred to by Professor Garton in the final warning.  He stated that he examined the slide and could not see a swastika in it.  In his affidavit he then stated:

    By way of asserting my right to freedom of political and intellectual freedom, and to once again make use of a teaching aid of which I was, and remain, quite proud, on 20 October 2018, I reposted the Gaza Graphic slide to my Facebook and Twitter accounts with the caption:

    Revision: how to read the colonial media, and untangle false claims of ‘moral equivalence’. The colonial violence of #Apartheid #Israel neither morally nor proportionately equates with the resistance of #Palestine.

12. On 19 or 20 October 2018, Dr Anderson posted an image from the PowerPoint Presentation and tweeted that image on the Twitter Account.  These were referred to in the FASOC as the “fifth comments”.  The Facebook post was:

13. The Twitter post was:

14. Dr Anderson also commented on the 19 or 20 October 2018 Facebook post with a link to an article he had written and published on the Centre for Counter Hegemonic Studies site, entitled “The Future of Palestine”. 

    B.14    26 October 2018: Fourth Allegations

15. On 26 October 2018, the University sent to Dr Anderson a letter with the subject line “Further Allegations Relating to Your Conduct”.  The letter contained allegations that publication of the 19 or 20 October 2018 Facebook and Twitter posts might constitute misconduct.  These were referred to as the “fourth allegations”.  The letter included by way of background:

    Background

    On 3 August 2017, you were issued with a written warning following an investigation that substantiated allegations of misconduct against you and found that your conduct breached the Code of Conduct -Staff and Affiliates (Code of Conduct) and Public Comment Policy. The letter is attached (noting it is dated 2 August 2017 but was emailed to you on 3 August 2017). The relevant misconduct involved the posting by you of material on your social media accounts that was offensive or inappropriate and in breach of University policy and your employment obligations.

    …

    On 19 October 2018 you were issued with a written final warning following an investigation of further allegations of misconduct by you in relation to the posting of inappropriate material by you on your social media accounts and found that your conduct breached the Code of Conduct and Public Comment Policy. The letter is attached. You were advised that should any further incidents of a similar nature occur, the University would rely on the 2 August 2017 warning and the 19 October 2018 final warning.

    The 19 October 2018 letter also referred to a post made by you to your Facebook account on 23 April 2018 that depicted a cropped Swastika superimposed over the Israeli flag (altered image of the Israeli flag). You were advised that while the post had not formed part of the allegations in respect of which the final warning was issued, it was the University’s view that a reasonable person would regard the altered Israeli flag image as offensive.

16. The letter then set out the following further allegations:

    Further Allegations

    I have now been made aware of fresh allegations of misconduct by you which again relate to your social media activity and which involve the republication by you of the altered Israeli flag image (Further Allegations).

    Given the serious nature of the Further Allegations, I have determined to deal with them under clause 384(c) of the Enterprise Agreement.

    The Further Allegations are as follows:

    (a) on 19 October 2018 at 4:57PM, you published or caused to be published on your Twitter account (Post #1 in Annexure B), a photo depicting the altered image of the Israeli flag, along with the text “Revision: how to read the colonial media, and untangle false claims of ‘moral equivalence’. The colonial violence of #Apartheid #Israel neither morally nor proportionately equates with the resistance of #Palestine.” (Twitter Post);

    (b) the content of the Twitter Post was also posted on 20 October 2018 at 10:55AM on your Facebook account (Post #2 in Annexure B) (Facebook Post);

    (c) you posted as a comment to the Facebook Post at 11:02AM stating “On the future of Palestine. which included a hyperlink to the Centre for Counter Hegemonic Studies website;

    (d) the Facebook Post and the Twitter Post (due to the fact it included the altered image of the Israeli flag) are derogatory and/or offensive in nature;

    (e) the altered image of the Israeli flag included in the Facebook Post and the Twitter [Post] can be reasonably seen as racist towards or seeking to target and/or offend Israelis and/or Jewish people and/or Jewish victims of the Nazi regime;

    (f) there is no legitimate academic or intellectual purpose served by the inclusion of the altered image of the Israeli flag in the Facebook Post or the Twitter Post;

    (g) you were aware or should reasonably have been aware that the inclusion of the altered image of the Israeli flag in the Facebook Post and the Twitter Post was offensive; and

    (h) the making of the Facebook Post and Twitter Post with the inclusion of the altered image of the Israeli flag was a deliberate and direct contravention by you of the final warning issued to you on 19 October 2018.

17. The letter informed Dr Anderson that the further allegations, if substantiated, would amount to “serious misconduct” and may justify the termination of Dr Anderson’s employment.  Dr Anderson was invited to respond.

18. Annexed to the letter were screenshots of Dr Anderson’s Facebook and Twitter profiles and various screenshots of Dr Anderson’s posts and an enlarged image of the Israeli flag from the Facebook and Twitter posts.  This is the latter image:

19. On 26 October 2018, Dr Anderson sent to Professor Garton and others an email which concluded by stating that he did not intend to respond further in relation to the letter dated 26 October 2018 which he had received.  This was referred to as the “sixth complaint”.  The email stated:

    Dear Stephen

    Following are the reasons why I categorically reject your letter of 19 October, along with your clumsy, unprincipled ttempts to act as political censor of my public comments.

    1. Your letter of 2 August 2017 refused to respond to or even acknowledge the existence of principle of academic freedom, spelt out in s.254 of our university’s Enterprise Agreement (2013-2017). For that reason alone I consider the letter legally incompetent.

    2. In your 19 October 2018 letter you belatedly recognize this principle (now s.315 in the EA 2018-2021), but try to downgrade its meaning. You specifically avoid the wording I have quoted to you on two separate occasions, that academic staff are entitled to “express unpopular or controversial views, provided that in doing so staff must not engage in harassment, vilification or intimidation”. These are the most relevant formulations to most of the complaints you make about my pubic [sic] comments. You abandon these formulations, the agreed industrial rules of our university, and substitute your own idea of what someone might find ‘offensive’. That is just dishonest. Your evasiveness on this matter leads me to conclude that you have little respect for intellectual freedom.

    3. Your attempts to police and censor my public statements have included double standards and public abuse. You have demanded secrecy of your ‘investigations’ into alleged misconduct, but proceed to issue press releases on those same matters. I have sent a concerns notice under defamation law to the Vice Chancellor about this. Now, after the NTEU drew your attention to this abuse, you have revised your position. You now say I am entitled to defend myself in public from such abuse, but only within certain terms that you have decided. This is unacceptable.

    4. There is dishonesty in your attempt to dismiss the behaviour of Dean Annamarie Jagose who (as I pointed out in my letter of 22 August 2018) plagiarised a false arabic translation (of part of a badge worn by someone else) to falsely accuse me of racism. You now respond: “In my opinion whether the meaning of the Arabic text on the patch word by Mr Tharappel is “Death to Israel” or “Death to Israeli” or “Death to the Israeli” … it is an incitement for the death of people of the predominantly Jewish inhabitants of the state of Israel”. You are wrong and you are dissembling. You do not want to understand the difference between a state and people. Further, you ignore and try to cover up Dean Jagose’s plagiarism of the false translation, to assist her false accusation.

    5. Some of your comments are garbled and contradictory. You rightly reject Dean Jagose’s outrageous claim that my innocent social media post (of friends at lunch in Beijing) ‘promotes racial hatred’; yet you claim maintain that the photo was ‘offensive or derogatory’. You ‘substantiate’ complaints (e.g. #3) which are not even formulated to include an accusation of misconduct. This is incompetent and reckless abuse.

    6. You add your own complaint about another social media post, on ‘reading controversies’ (your appendix three); a complaint which is improper in substance and process. You make false statements about that post before presenting your summary conclusion, and without seeking my response. You claim this post – which you say you ‘will not raise formally … raises serious concerns about [my] willingness to comply with employment obligations’. This accusation is a case study in how little you respect your colleagues’ rights. Firstly, this was not a presentation for the Centre for Counter Hegemonic Studies, as you claim; it is an excerpt from my teaching materials in a unit of study called ‘Human Rights in Development’ (ECOP3017). Second, there is no ‘cropped swastika[’] on the post. That is simply a false statement. You show no understanding or interest in what that graphic is about.

    7. Your subsequent demand that I add a disclaimer to ‘this medium’ is an attempt to interfere in my teaching materials. I infer that you are unhappy with the criticism of Israel in this educational graphic. I totally reject this politically motivated interference. That graphic is one of several I use, and will continue to use, to help students ‘read controversies’ and decipher false statements in what I call the colonial media.

    8. You object to my use of the term ‘colonial media’, to describe stories which normalise war and illegal foreign intervention. You fail to appreciate that this is precisely the domain of my research and legitimate academic freedom. I do not care if you disagree with my views. What I object to you is your abusive behaviour as a manager. You misrepresent my criticism of journalists as ‘personal attacks’, just as you defend the sensitivities of those who engage in gutter journalism and mount actually abusive personal attacks on me. That is a failure in your duty of care towards a colleague.

    For the above reasons I reject: your 19 October letter, your attempts to interfere in my academic independence, your attempts to constrain my right to defend myself from public abuse and your clumsy and unprincipled attempts at censoring my social media comments. If you insist on continuing with this abuse, take it to an independent tribunal. Your dishonesty and lack of commitment to principle makes any further dialogue pointless.

    I received and have read your additional letter of 26 October, it contains nothing new in substance and I do not intend to respond further.

    Yours sincerely

    Tim Anderson (Dr)

    Senior Lecturer

    Political Economy

1. The applicants submitted that:

   (1)While the infographic containing the altered image of the Israeli flag may have been controversial, it formed part of Dr Anderson’s teaching materials in an area of his academic expertise, consistent with his research and teachings.  The creation, use and posting of the infographic (fifth comments) was an exercise of intellectual freedom.  Dr Anderson’s conduct in making the posts of 19 October 2018 did not constitute serious misconduct because it was an exercise of his right to intellectual freedom and therefore was not capable of constituting serious misconduct within the meaning of cl 3 of the 2018 Agreement.

   (2)Irrespective of whether Dr Anderson’s conduct was an exercise of intellectual freedom, it was not “serious misconduct”. The phrase “serious misconduct” was defined to mean “serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of a staff member’s duties or to other staff carrying out their duties” or “a serious dereliction of duties”. The applicants submitted that Dr Anderson’s conduct did not meet that threshold and that, by relying on that conduct to dismiss Dr Anderson from his employment, the University breached cl 384 of the 2018 Agreement and thereby breached s 50 of the FW Act.

   H.1.2   Did the fifth comments constitute the exercise of intellectual freedom?

2. The real issue is whether the posting of the infographic on 19 or 20 October 2018 (fifth comments) constituted the exercise of intellectual freedom.  The answer to that is not supplied by answering whether its creation and use as part of teaching materials was the exercise of intellectual freedom.

3. The reason Dr Anderson posted the infographic was that he wanted to express his view that he had a right to post material of that kind if he wished and that he considered he was able to do so without censure.  He stated in his affidavit: “I reposted my graphic to reassert my right to use my own educational material, in public.  I intended this as an assertion of my intellectual freedom”.  Dr Anderson also gave evidence to the effect that he posted the graphic for purposes connected with his teaching or, as he put it in his affidavit: “to once again make use of a teaching aid of which I was, and remain, quite proud”.  He stated that he linked the Facebook post to an article he had written and published on the Centre for Counter Hegemonic Studies, entitled “The Future of Palestine”.  No satisfactory explanation was given of what it was that he was teaching at the time which made it relevant to post the infographic on 19 or 20 October 2018.  The timing of the posts makes the real reason for posting the infographic obvious.  It was intended by Dr Anderson as an assertion of an unfettered right to exercise what he considered to be intellectual freedom.  It was intended to convey that Dr Anderson could post such material if he wanted and the University had no right or entitlement to prevent him from doing so.  It was deliberately provocative.

4. The posting of the infographic on 19 or 20 October 2018 was not a genuine exercise of intellectual freedom in the senses given in cl 315(a) or (b)(iv) of the 2018 Agreement, being the clauses upon which the applicants relied. 

5. Even if the posting of the infographic was a genuine exercise of intellectual freedom in the senses given in cl 315(a) or (b)(iv), for the reasons which follow, it would not matter to the result.

   H.1.2   Did the University breach cl 315 and fail to comply with cl 384?

6. The termination of employment did not breach cl 315 of the 2018 Agreement because cl 315 did not create a legally enforceable right to exercise intellectual freedom and did not have the effect that anything that could be classified as an exercise of intellectual freedom falling within cl 315 could not constitute “serious misconduct”. 

7. Neither cl 315 nor 317 immunise an exercise of the “rights” referred to in cl 315 so as to prevent the University from engaging the processes contemplated by cl 384 or from reaching a conclusion that it was satisfied that conduct purportedly or in fact constituting an exercise of intellectual freedom within cl 315 was “serious misconduct”.

8. By reason of cl 317 an exercise of intellectual freedom must be practiced in accordance with the “highest ethical, professional and legal standards”.  It is open to the University to invoke the processes contemplated by cl 384 and to be satisfied that there has been “serious misconduct” where, in the context of an exercise of intellectual freedom, the standards required by cl 317 or other relevant clauses of the relevant enterprise agreement have not been met.

   H.1.3   Serious Misconduct

9. As noted earlier, in a way equivalent to that which the applicants alleged in respect of the final warning, the applicants pleaded that the “fifth comments” (the 19 or 20 October Facebook and Twitter posts) did not “constitute serious misconduct within the meaning of [cl] 3 of the 2018 Agreement”: FASOC [78(b)]. The applicants submitted that, even if the University’s view that Dr Anderson had engaged in serious misconduct was reasonably open, the Court had to reach its own conclusion about that matter and, if the Court reached a different view on the merits and decided that Dr Anderson had not engaged in serious misconduct, then the University’s disciplinary action was unlawful and it would have breached cl 384 of the 2018 Agreement and thereby the civil remedy provision being s 50 of the FW Act.

10. The applicants’ case in this respect was misconceived for the reasons given earlier – see: [142] to [150] above.

11. Although the question is irrelevant to the case as pleaded or run, I would record that the applicants did not establish that Professor Garton was not satisfied that the conduct engaged in by Dr Anderson, relevant to termination, was “serious misconduct” or that his satisfaction was in some way vitiated or not open.  No such case was put to Professor Garton.  I make the following further observations.

12. Clause 3 of the 2018 Agreement included:

    DEFINITIONS

    3 In this Agreement:

    …

    Code of Conduct means the University’s Code of Conduct - Staff and Affiliates or Research Code of Conduct, as amended or replaced from time to time.

    …

    Misconduct means conduct or behaviour of a kind which is unsatisfactory. Examples of conduct or behaviour which may constitute Misconduct include:

    (a) a breach of a Code of Conduct (as defined in this clause); or

    (b) a refusal or failure to carry out a lawful and reasonable instruction.

    …

    Serious Misconduct means:

    (a) serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of a staff member’s duties or to other staff carrying out their duties; or

    (b) a serious dereliction of duties.

    Examples of conduct which may constitute Serious Misconduct are:

    (a) a serious breach of a Code of Conduct (as defined in this clause);

    (b) theft;

    (c) fraud;

    (d) assault;

    (e) serious or repeated bullying or harassment, including sexual harassment;

    (f) persistent or repeated acts of Misconduct; or

    (g) conviction of an offence that constitutes a serious impediment to the carrying out of a staff member’s duties.

13. A narrow interpretation of the word “duties” should not be taken where that word is used in paras (a) and (b) of the definition of “serious misconduct”. An employee’s “duties” would include all duties, including the implied duty of fidelity and to obey the lawful directions of the employer. Dr Anderson’s “duties” included carrying out his employment duties in accordance with his contract of employment, the 2018 Agreement, the Codes of Conduct and various other policies. A refusal to follow lawful directions, with the result that the employments duties are not carried out in a way which the employer can lawfully direct that they be carried out, is capable of being “serious misbehaviour of a kind that constitutes a serious impediment to the carrying out of a staff member’s duties”. Whether it will constitute “serious misconduct” depends on all of the facts. No doubt different reasonable minds will differ as to the answer as they in fact did in this case (see Review Committee’s recommendation at [91] above).

14. The University’s letter of 19 October 2018 had included:

    Please immediately add a disclaimer in any medium in which this post appears that the presentation is not connected in any way with the University of Sydney and remove any references to the University of Sydney from the relevant posts.

    You must also make it clear in any future posts relating to the Centre for Counter Hegemonic Studies that it is not associated with, or endorsed by, the University of Sydney in any way, consistent with guideline (e) of the Public Comment Policy.

15. I am not satisfied that a disclaimer was added to the Facebook post.  It was well within the capacity of Dr Anderson to have given clear evidence in that respect if he had made such a disclaimer – cf: Blatch v Archer (1774) 1 Cowp 63. Further, the Facebook Account and linked articles or pages made it apparent that Dr Anderson was connected with the University of Sydney and with the Centre for Counter Hegemonic Studies. The comment made by Dr Anderson on his 19 or 20 October 2018 Facebook post included a link to an article posted on the Centre for Counter Hegemonic Studies website. The “About” page of the Centre for Counter Hegemonic Studies website indicated that Dr Anderson was the Director of that Centre and that he was from the University of Sydney. There was nothing on that page or the Facebook Account to indicate that the Centre was “not associated with, or endorsed by, the University of Sydney”.

16. In the circumstances of this case, which included that Dr Anderson had refused to follow lawful directions and where it would be reasonable to infer that he would continue to refuse to follow lawful directions, it was reasonably open for Professor Garton to conclude that the making of the fifth comments was such as to constitute “serious misconduct”. 

    H.1.4   Conclusion

17. The University did not breach cl 315, did not fail to comply with cl 384 and did not contravene s 50 of the FW Act in the ways contended in relation to the termination of Dr Anderson’s employment.

    H.2 Alleged contravention of s 340 of the FW Act

18. The applicants contended that Dr Anderson’s employment was terminated because of or for a reason which included the fact that Dr Anderson had made the first to sixth complaints or one or other of them: FASOC [92].

    H.2.1   Have the applicants established that Dr Anderson had and exercised a “workplace right”?

19. The relevant principles have been set out at [177] to [181] above.

    The first to fifth complaints

20. These have been addressed earlier.  I have concluded that:

    (1)Dr Anderson had an entitlement to make the third and fourth complaints and that the letters said to constitute those complaints were an exercise of the entitlement to make a “complaint” within the meaning of s 341(1)(c) of the FW Act.

    (2)The applicants have not discharged the onus of establishing that the first, second and fifth complaints were “complaints” within the meaning of s 341(1)(c)(ii).

21. Against the possibility that I am wrong in my conclusions concerning the first, second and fifth complaints, I will address the remaining issues on the basis that they were “complaints” within the meaning of s 341(1)(c) and were the exercise of “workplace rights”. Whilst I have concluded that Dr Anderson did not establish that he had a relevant entitlement to make the first, second and fifth complaints in accordance with PIA Mortgage Services, I proceed on the basis that he has established such an entitlement or that it is not necessary to establish one. 

    Sixth complaint

22. The sixth complaint was said to be constituted by Dr Anderson’s email dated 26 October 2018, by which he rejected the final warning dated 19 October 2018 and stated that he would not be responding further to the fourth allegations made in the letter of 26 October 2018: FASOC [53]. The applicants pleaded that the letter was a complaint about Professor Garton’s conduct. The applicants declined to identify with precision the contended source of the right or entitlement to complain.

23. The objective construction of the letter is that it was a rejection of the final warning and a notification that Dr Anderson did not propose to respond further to the allegations. The letter is aggressive, discourteous and critical of Professor Garton, but its context is not such as to suggest that it was written with a view to some action being taken against Professor Garton or that it sought redress or that it was in the nature of a complaint. The applicants have not discharged the onus of establishing that the letter was a “complaint” within the meaning of s 341(1)(c). I do not accept that Dr Anderson subjectively intended the letter to be a complaint, as opposed to rejecting the final warning and stating that he did not propose to respond further to the allegations. Nevertheless, against the possibility that the sixth complaint was a “complaint” covered by s 341(1)(c), I will address the remaining issues on the basis that it was also the exercise of a “workplace right” and that source of entitlement was either established or unnecessary.

    H.2.2   Have the applicants established that adverse action was taken?

24. Termination of employment was plainly adverse action.

    H.2.3   Was the adverse action taken because of any, or any combination, of the first to sixth complaints?

25. The applicants’ case was that the University terminated Dr Anderson’s employment because he had made the first to sixth complaints or one or other of them or for reasons which included those complaints: FASOC [89]. I approach the task on the basis that the question is whether adverse action was taken because of any one of the complaints individually or because of any combination of them.

26. Professor Garton referred, amongst other things, to the sixth complaint in his 26 November 2018 Briefing Paper.  Professor Garton set out the background events in some detail in the Briefing Paper.  He referred to the “formal complaint of bullying and harassment against Professor Jagose” made on 15 August 2018 (the third complaint).  He also stated:

    On 27 October 2018, Dr Anderson advised me by email that he rejected the Final Warning and made a number of allegations against me including that I had engaged in censorship and politically motivated interference in relation to his work. Dr Anderson claimed that the Image was an excerpt from his teaching materials, and that the Image did not depict a swastika over the Israeli flag (which I do not accept).

    …

    Proposed action

    In my view, Dr Anderson’s rejection of the Final Warning and his republication of the Image was deliberately provocative and demonstrates that he does not accept the authority of the University or its right to determine whether his behaviour complies with his employment obligations and University policies.

    In my view, having regard to the substantiation of the First, Second and Third Allegations and the Warning and Final Warning already issued to Dr Anderson, Dr Anderson’s conduct in relation to the Fourth Allegations amounts to serious misconduct, within the meaning of the EBA. It is clear that Dr Anderson is unwilling to accept the University’s authority and conform to the behavioural expectations and requirements for all staff. If Dr Anderson’s employment were to continue, I consider it highly likely that Dr Anderson will engage in similar conduct in the future, exposing the University to ongoing risk of reputational damage and possible legal claims.

    For these reasons, and in all the circumstances, in my view the appropriate disciplinary action is the termination of Dr Anderson’s employment.

    …

27. There was no dispute between the parties that the 27 October 2018 email referred to in the Briefing Paper was the email which was in evidence bearing the date 26 October 2018.  Dr Anderson was overseas when the email was sent.  Professor Garton gave evidence that the reason why he referred to Dr Anderson’s 26 October 2018 email was that he considered it important that others knew that Dr Anderson had made criticisms of Professor Garton’s actions so that those others could make their own assessments with full knowledge that those criticisms had been made of him.  He denied taking action because Dr Anderson had criticised him.  I accept Professor Garton’s evidence.

28. I approach the task on the basis that all of the circumstances are relevant including the content of the complaints and the respective proximity of the various complaints to the decision.  I take into account that Professor Garton was aware of the various complaints and referred to the existence of them.  I also take into account the broader factual context, including that some in the University are likely to have had a concern about adverse reputational consequences to the University arising from some of the underlying facts. 

29. Professor Garton denied making the decision to terminate Dr Anderson’s employment because of the complaints or any one of them. I accept his evidence. Professor Garton was not directly challenged with the proposition that he terminated Dr Anderson’s employment because of one or other or a combination of or all of the various complaints. Professor Garton recognised and respected the right to make complaints. Even if it is assumed that each of the six asserted complaints was the exercise of a workplace right under s 341(1), I am satisfied that Professor Garton did not decide to terminate Dr Anderson’s employment for a reason which included the fact that any of the complaints had been made alone or in any combination. Taking all of the circumstances into account, I accept that the complaints, whether viewed individually or in various combinations, were not a substantial or operative reason for why the adverse action was taken.

30. Even on the assumption that each of the first to sixth complaints were “complaints” within s 341(1)(c), I am satisfied that the adverse action was not taken for a reason which included that any one or more of the complaints had been made.

    I          ACCESSORIAL LIABILITY

31. It is unnecessary to determine the claims for accessorial liability made against Professor Garton.  Nevertheless, I will make some observations in that regard. 

32. Section 550 of the FW Act relevantly provides (notes omitted):

    550     Involvement in contravention treated in same way as actual contravention

    (1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

    (2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:

    (a)       has aided, abetted, counselled or procured the contravention; or

    (b)has induced the contravention, whether by threats or promises or otherwise; or

    (c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

    (d)       has conspired with others to effect the contravention.

33. In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, White J stated (extracts omitted):

    Relevant principles

    [176]Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …

    [177]Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …

    [178]The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]–[325].

    [179]As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.

1. This summary was accepted by Flick and Reeves JJ as accurate in Fair Work Ombudsman v Hu (2019) 289 IR 240 at [15], although their Honours noted that the terms of s 550 have given rise to some potential divergence, referring to EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 282 IR 86 at 90 to 91 (Flick, Bromberg and O’Callaghan JJ).

2. If I had concluded that cl 315 of the 2018 Agreement gave rise to a right to intellectual freedom such that an exercise by Dr Anderson of such a right consistently with the internal limitations contained in that clause could not amount to “misconduct” or “serious misconduct”, the applicant would likely have established a breach of cl 315.  In assessing the accessorial liability claim, I would have concluded that Professor Garton’s view was that cl 315 did not have the operation for which the applicants contended and that any right to intellectual freedom was subject to other relevant Codes of Conduct and University policies.  This was made clear in Professor Garton’s evidence, including in his cross-examination.  I will refrain from expressing a view on whether Professor Garton would have been liable as an accessory in respect of a hypothetical contravention of cl 315 because it may well depend on findings which have not been made.

3. If I had concluded that the final warning or termination was taken for a reason which included the fact of one or other or a combination of the complaints having been made and that a contravention of s 340 had otherwise been established, the conclusion as to whether Professor Garton would have been liable as an accessory would have depended on the precise nature of the factual findings giving rise to that conclusion. Given that I have not made such findings, it is not appropriate to speculate on what the position would have been.

   J         THE NTEU AS A PARTY

4. The University raised the question why the first applicant, the NTEU, was a party to the proceedings. The NTEU was a party to the 2013 and 2018 Enterprise Agreements. It had standing to commence proceedings: s 539 of the FW Act. The University submitted that the applicants did not identify on what basis the NTEU might be a beneficiary of any order made if the Court found in the applicants’ favour. The Originating Application sought relief specific to the NTEU, seeking “[a]n order for pecuniary penalties, to be paid to” the NTEU. This ground of relief was not abandoned by the NTEU. On the basis that the NTEU sought relief which was different to the relief sought by Dr Anderson, the NTEU was properly a party to the proceedings. In any event, the NTEU had a right to be heard because of its interest in the proceedings, for example, in the proper construction of the 2013 and 2018 Enterprise Agreements. That does not necessarily translate into a right to be joined as a party, but as I have said, the NTEU sought relief independently of Dr Anderson.

   K        CONCLUSION

5. The proceedings must be dismissed.

I certify that the preceding two hundred and ninety (290) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

Associate:

Dated:       26 November 2020