Date of Hearing: 23 June 2021 Date of Judgment: 13 October 2021
B12/2021
ORDER
Appeal dismissed.
On appeal from the Federal Court of Australia
Representation
S J Wood QC with B W Jellis and C Mintz for the appellant (instructed by Mahoneys)
B W Walker SC with Y Shariff SC and V Bulut for the respondent (instructed by Clayton Utz)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ridd v James Cook University
Industrial law (Cth) – Industrial agreement – Interpretation of Enterprise Agreement – Where Enterprise Agreement and Code of Conduct each applied to all employees of respondent – Where intellectual freedom protected by Enterprise Agreement – Where Enterprise Agreement imposed confidentiality requirements concerning disciplinary processes – Where disciplinary action taken and employment terminated for misconduct and serious misconduct including for breaches of Code of Conduct – Whether disciplinary action taken for breaches of Code of Conduct contravened Enterprise Agreement – Whether exercise of intellectual freedom subject to constraints in Code of Conduct – Whether exercise of intellectual freedom subject to confidentiality obligations in Enterprise Agreement.
Words and phrases – "academic freedom", "censure", "Code of Conduct", "confidentiality", "critical and open debate and inquiry", "disciplinary processes", "Enterprise Agreement", "freedom of expression", "intellectual freedom", "lawful and reasonable direction", "obligations of confidentiality", "responsibility to respect the rights of others", "right to express unpopular or controversial views", "termination", "tone or manner of expression", "treat fellow staff members, students and members of the public with honesty, respect and courtesy".
Dr Ridd was employed by James Cook University ("JCU") for 27 years. For 15 years he managed the University's Marine Geophysics Laboratory. From 2009 until 2016 he was the head of physics at JCU. He had been ranked by ResearchGate within the top 5% of researchers globally. In 2015, Dr Ridd sent a lengthy email to a journalist, which concerned issues and ideas relating to his field of expertise. There was no suggestion that the remarks in his email were anything other than honestly held opinions. Nothing said in his email has ever been suggested to be unlawful or defamatory. It was not suggested that the remarks were wrong, or even unreasonable. But JCU concluded that these remarks had breached the JCU Code of Conduct for the failure by Dr Ridd to treat those who held different views with respect and courtesy.
From 2016, JCU took various actions against Dr Ridd based upon this and subsequent conduct by Dr Ridd: 17 findings were made by JCU that Dr Ridd had breached the JCU Code of Conduct; Dr Ridd was issued with two directions about impermissible speech, five directions about confidentiality, and a direction not to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ridd v James Cook University [2021] HCA 32
Case
[2021] HCA 32
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Dr. Ridd against James Cook University (JCU). The dispute concerned disciplinary action taken by JCU against Dr. Ridd, including the termination of his employment, for alleged misconduct and serious misconduct. Dr. Ridd contended that his actions were protected by the intellectual freedom provisions within the parties' Enterprise Agreement.
The central legal issues before the High Court were whether the disciplinary action taken by JCU contravened the Enterprise Agreement, and whether Dr. Ridd's exercise of intellectual freedom was subject to the constraints outlined in JCU's Code of Conduct and the confidentiality obligations stipulated in the Enterprise Agreement. Dr. Ridd did not dispute that his actions constituted misconduct or serious misconduct, but argued that they were all covered by the protection of intellectual freedom under clause 14 of the Enterprise Agreement.
The High Court, in dismissing the appeal, reasoned that Dr. Ridd had not made submissions challenging the Full Court's conclusion that some of his conduct could not be characterised as an exercise of intellectual freedom as defined in clause 14, but rather as expressions of personal opinion and frustration unrelated to his field of competence. Furthermore, Dr. Ridd had not advanced arguments that any of his actions, which JCU relied upon as justifying termination for serious misconduct, fell within the scope of intellectual freedom. Given this approach to the appeal and the existing constraints on intellectual freedom under the Enterprise Agreement, the High Court found that the appeal must be dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ
(dissent)
Given the manner in which his case was run, Dr Ridd did not make any submissions challenging the cogent conclusions of the majority of the Full Court that some of his conduct after the 2015 email, as to which the majority gave nine examples, could not be "characterised as an exercise of intellectual freedom in the sense described in cl 14, being no more than expressions of personal opinion and frustration (unrelated to issues or ideas related to his respective field of competence)"[2]. Nor did Dr Ridd make any submissions about how any of his actions that were the subject of numerous findings of serious misconduct relied upon by the Deputy Vice-Chancellor and the Vice-Chancellor as justifying termination were within the intellectual freedom. In light of the manner in which Dr Ridd ran his appeal, and the constraints upon the intellectual freedom protected by cl 14, his appeal must be dismissed.[2]James Cook University v Ridd (2020) 278 FCR 566 at 595 [135].The issues and the decisions below The actions of Dr Ridd that formed the basis for JCU's findings, directions, and censures, and ultimately its termination of Dr Ridd's employment, are considered in detail later in these reasons. Those actions can be broadly divided into four categories. First, there were comments relating to matters in the area of Dr Ridd's area of academic competence which criticised JCU or various institutions or unnamed "scientists" or particular people. Secondly, there were comments, which were not related to matters in the area of Dr Ridd's academic competence, that were critical of either particular institutions or particular people. Thirdly, there were comments which were critical of decisions or decision‑making processes of JCU but which did not follow applicable processes for raising those concerns. Fourthly, there were comments made or information disclosed by Dr Ridd that was said by JCU to concern confidential matters. Dr Ridd did not seek to distinguish between these categories. On his all-or-nothing submission, the intellectual freedom protected by cl 14 of the Enterprise Agreement covered all of the above categories. Dr Ridd did not dispute that each and every instance of his alleged actions had occurred. One curiosity about the manner in which his case has been presented at first instance and on both appeals is that he also did not dispute that each and every instance of his actions was properly characterised by JCU as misconduct or as serious misconduct. It may be, for example, that some of the information revealed by Dr Ridd, and said to be confidential, was in the public domain and thus its disclosure by Dr Ridd could not have amounted to misconduct, still less serious misconduct. Nor was any issue raised about whether conduct of Dr Ridd was serious misconduct on the basis that, as the majority of the Full Court concluded, some instances "were undoubtedly trivial"[3]. The Full Court considered this stance of Dr Ridd to be "inexplicable"[4]. But Dr Ridd chose not to contest any of the findings of serious misconduct other than on the basis that he was protected by cl 14. The same stance was taken in this Court. It suffices to proceed on the same assumption, that each instance of alleged conduct by Dr Ridd would be misconduct or serious misconduct subject to Dr Ridd's submissions about the operation of cll 14 and 54.1.5 of the Enterprise Agreement.[3]James Cook University v Ridd (2020) 278 FCR 566 at 574 [23].[4]James Cook University v Ridd (2020) 278 FCR 566 at 573 [23], 609 [204].