Ridd v James Cook University

[2018] FCCA 3080

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIDD v JAMES COOK UNIVERSITY & ORS [2018] FCCA 3080

Catchwords:

INDUSTRIAL LAW – EMPLOYMENT LAW – Termination and breach of contract – remedies – against employer – other remedies – interlocutory injunction for reinstatement.

Legislation:

Fair Work Act 2009 (Cth), ss.50, 340

Applicant: PETER VINCENT RIDD

First Respondent: JAMES COOK UNIVERSITY

Second Respondent: NICK ROGERS

Third Respondent: CHRIS COCKLIN

File Number: BRG 1148 of 2017

Judgment of: Judge Jarrett

Hearing dates: 11 and 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Brisbane

Delivered on: 18 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Kidston direct brief

Counsel for the Respondents: Mr Murdoch QC

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Applicant is granted leave to amend his amened application filed 30 January 2018 in the manner set out in the proposed further amended application attached to the application filed 1 June 2018.

2. The time for compliance with Orders 1 to 3 made on 16 April 2018 be extended to allow:

   (a)The Applicant to file and serve the amended statement of claim by 18 May 2018;

   (b)The Respondents to file and serve the amended defence by 4 June 2018; and

   (c)The Applicants to file and serve a reply by 19 June 2018.

3. Orders 4 and 5 made on 16 April 2018 be vacated.

4. The Application for interlocutory relief is dismissed.

5. Within fourteen (14) days the parties send joint correspondence to the Associate to Judge Jarrett indicating whether there is agreement about the location at which the final hearing ought to be held.

6. Parties notify the Associate to Judge Jarrett by 12.00pm on Friday, 22 June 2018 of the mediator and the date for the mediation, and in the event no such notification is received or in the event no mediator has been appointed by that time, the Court will appoint a mediator at its own accord.

7. The application is adjourned to 9 July 2018 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1148 of 2017

PETER VINCENT RIDD

Applicant

And

JAMES COOK UNIVERSITY

First Respondent

NICK ROGERS

Second Respondent

CHRIS COCKLIN

Third Respondent

REASONS FOR JUDGMENT

1. For the past 29 years the applicant has been employed as a Professor and Head of Physics in the College of Science and Engineering at James Cook University, Townsville.  On 2 May, 2018 his employment was terminated. By this interlocutory application he seeks reinstatement pending the final determination of the principal proceedings.

2. These reasons concern his application for an order for reinstatement pending the final disposition of the proceedings generally.

3. The parties agree on the principles to be applied to determine the present application.

4. First, the applicant must establish a prima facie case.  He must establish that there is a probability that at the trial of the action, if the evidence remains as it is, he will be entitled to relief.

5. Second, the applicant must establish that the inconvenience or injury which he would likely suffer if the injunction were refused outweighs the injury which the first respondent would suffer if the injunction were granted.  Put another way, the question is whether the balance of convenience favours the grant of the injunction.

6. Here, the first respondent argues that the applicant does not establish the requisite prima facie case to support the grant of the injunction.  Further, the first respondent argues that, even if the applicant establishes the necessary prima facie case, the balance of convenience does not favour the grant of the injunction.

7. The applicant pleads his cause of action in an amended statement of claim which runs to some 90 pages in length, including annexures.  By the proceedings he challenges three disciplinary proceedings taken against him by the first respondent, the last of which resulted in the termination of his employment.

8. His causes of action are twofold. First, he claims that the respondents breached the James Cook University Enterprise Agreement 2013 to 2016 and thus have contravened s.50 of the Fair Work Act 2009 with respect to:

   a)a formal censure issued to the applicant on 29 April, 2016 by the third respondent;

   b)another formal censure issued to the applicant on 21 November, 2017 by the third respondent;

   c)more recently, steps taken by the University and the individual respondents, pursuant to the enterprise agreement prior to the censures 2016 and 2017; and

   d)the decision of the respondents to terminate the applicant’s employment on 2 May, 2018.

9. His second cause of action is based in the Fair Work Act. He asserts that the first respondent has taken adverse action against him in contravention of s.340 of the Fair Work Act including by terminating his employment.

10. It is necessary to understand a little of the framework of the applicant’s employment with the University to understand the arguments in the case.  Some clauses of the enterprise agreement and other documents which are relevant to his employment are important.

11. The argument before me focussed on two documents, the first is the enterprise agreement and the other is a document described as a Code of Conduct.

12. Clause 13 of the enterprise agreement talks about the code of conduct.  It provides that:

    The parties to the enterprise agreement support the code of conduct as establishing a standard by which staff and volunteers conduct themselves towards others and perform their professional duties on behalf of the University.

13. As counsel for the applicant points out, the provisions of clause 13 of the enterprise agreement are aspirational in nature.

14. Clause 14 talks about intellectual freedom. It is pivotal to the arguments in this case. Relevantly, clause 14.1 provides that the University is:

    … committed to act in a manner consistent with the protection and promotion of intellectual freedom within the University and in accordance with the code of conduct.

15. Clause 14.2 provides that:

    Intellectual freedom includes the right of staff to:

    ·pursue critical and open inquiry;

    ·     participate in public debate and express opinions about issues and ideas related to their respective fields of competence;

    ·     express opinions about the operations of the University and higher education policy more generally;

    ·     be eligible to participate in established decision making structures and processes within the University, subject to established selection procedures and criteria;

    ·     participate in professional and representative bodies, including unions and other representative bodies.

16. Importantly, clause 14.3 provides that:

    All staff have the right to express unpopular or controversial views. However, this comes with a responsibility to respect the rights of others and they do not have the right to harass, vilify, bully or intimidate those who disagree with their views. These rights are linked to the responsibilities of staff to support JCU as a place of independent learning and thought where ideas may be put forward and opinion expressed freely.

17. Clause 14.4, relevantly, carries an acknowledgement:

    JCU acknowledges the rights of staff to express disagreement with University decisions and with the processes used to make those decisions.

18. Clause 14.5 reinforces that:

    Staff, as leaders and role models to students and the wider community, must adhere to the highest standards of propriety and truthfulness in scholarship, research and professional practice.

19. Clause 14.6 expressly recognises that staff members of the University might comment publicly in a professional or expert capacity and that they might, when doing so, identify themselves using their University appointment or qualifications, but, they cannot represent their opinions as those of the University. Again, there is reference to professional standards.

20. Clause 14.6, relevantly, provides:

    The University expects that staff will maintain professional standards when they intentionally associate themselves with its name in public statements and/or forums.

21. Clause 54 of the enterprise agreement deals with the management of misconduct and serious misconduct.  I will come to that shortly.

22. The arguments before me identify that the issue in dispute here is the way in which the provisions of clause 14, those relating to intellectual freedom, interact with clause 13 and the Code of Conduct.  So much was said, by both counsel, in the course of their submissions.

23. The University’s case is simple. It says that the acts for which it engaged the disciplinary processes under the enterprise agreement in 2016 and then again in 2017 justified that action. It says that the applicant’s conduct since the second of those censures in 2017 is such that he has breached the provisions of the enterprise agreement and, in particular, particular provisions in clause 54 of the agreement relating to confidentiality and that, in those circumstances, the decision to terminate his employment was entirely justified.

24. For his part, the applicant argues that the acts for which the University has taken action against him were acts that he was entitled to perform in the way in which he performed them pursuant to clause 14 in the exercise of his “intellectual freedom”.

25. His argument is that, what it was that he has done which has raised the ire of the University was done by him in pursuit of him expressing his opinions and engaging in public debate in a field of expertise or competence.  He argues that by reason of clause 14 he was entitled to do that in any way that he chose to do it.

26. Put shortly, the University’s difficulty with the applicant’s behaviour is not what he did, but rather the way he did it.

27. The University, when it engaged the disciplinary process for the final time, issued a preliminary determination to the applicant.  The preliminary determination was in these terms:

    The final censure made it clear to you why you were disciplined, that is, you were disciplined for behaviour that was contrary to your obligations under the code of conduct and/or the best interests of the University.  As was explained in the final censure, you are entitled to express your scientific views on matters relating to the Great Barrier Reef.  Academic freedom does not, however, override your obligations under the code of conduct to be collegial nor justify criticism of your colleagues, the University or key affiliates of the University in a manner that is inconsistent with the code or which denigrates the University or its key affiliates.  You are well aware that this is the case.  When you were censured in 2016 it was made clear to you that you are entitled to make public comments in your professional, expert or individual capacity in an academic field in which you are recognised and reinforced that you were to do so in a way that is collegial and upholds the reputation of the University and your colleagues.  In light of that situation I am satisfied that you were well aware of your obligations under the Code of Conduct when exercising academic freedom and the circumstances in which you may be disciplined should you exercise academic freedom in a manner inconsistent with your obligations as an employee of the University.

28. The first respondent argues that the censures that it issued to the applicant in 2016 and 2017 did not impact on his capacity to exercise his intellectual freedom, but rather, dealt with the way in which he might express himself.  They are my words, not the words of counsel, but that is what it amounted to.

29. I accept the first respondent’s argument for the purposes of this application.  The difficulty that the University had, as is clear from the 2016 censure and the 2017 censure, is not so much what the applicant said, but the way he said it.  During the 2017 disciplinary process, there were confidentiality directions given to the applicant.  It is, it seems to me at least, largely what the University perceives to be a breach of these confidentiality provisions or requirements that informed its decision to terminate his employment.

30. Clause 54.1.5 of the code of conduct provides that:

    The confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected and all information gathered and recorded will remain confidential, subject to JCU’s obligations:

    (a)to discharge its responsibilities under an Act or University policy;

    (b)for a proceeding in a court or tribunal; or

    (c)unless the person to whom the confidential information relates, consents in writing to the disclosure of the information or record; or if no consent is obtainable and such disclosure is unlikely to harm the interests of the person affected, or

    (d)unless the information is already in the public domain.

31. The applicant argues that the obligation of confidentiality cast by clause 54.1.5 does not apply to him because he is not a party involved in the management of misconduct or serious misconduct processes.  He asserts that only those who are involved from, perhaps, the University’s side might be properly described as being persons who are involved in “the Management of Misconduct and Serious Misconduct processes”.  The interpretation of clause 54.1.5 contended for by the applicant is arguable but, I suspect, incorrect.  It is an overly narrow interpretation of clause 54.1.5 in my view.

32. In my view clause 54.1.5 and the obligation of confidentiality applies to all of the parties who might be part of a misconduct or serious misconduct process.  The words “involved in the management of” used in clause 54.1.5 are apt, in my view, to include not just those on the University’s side of the record so to speak, but also the applicant, because he is a party involved in the management of that process.  He might not be a person who could be said to be a manager of the process, but he is, nonetheless, involved in the process.

33. It is likely, given the nature of the clause and more so, clause 54 generally, that a broader interpretation of the confidentiality obligation than that contended for by the applicant is appropriate.

34. But, having said that, his interpretation is open.  If he is wrong about that and the obligation of confidentiality is broader and falls upon him just as much as it falls upon the University, then it seems relatively clear, in my view, that the University’s complaints about his conduct which have led to the termination of his employment are likely to be found to be well made at a trial.

35. The applicant has, as I will shortly detail, embarked upon a process of making sure that what he sees as inappropriate conduct on behalf of the University and its processes is made public.  It seems tolerably clear to me, at least, that in the event that that obligation of confidentiality falls upon him, the steps that he has taken since November, 2017 more than arguably breach that obligation.

36. The case does, as counsel for the applicant submits, come down to the interplay between the code of conduct and the enterprise agreement, and in particular, clauses 13, 14 and 54. To the extent that it is suggested that the academic freedoms that are represented by clause 14 of the enterprise agreement stand outside of, or perhaps separate to, and not affected by the code of conduct and clause 13, the argument is weak.

37. Clause 14 expressly preserves reference to the way in which academic freedoms might be exercised and those preservations are consistent with clause 13 and the code of conduct.  The underlying theme, if that is the best way to describe it, running through each of those is a respectful and honest discourse in respect of matters about which academics and others might have disagreements.

38. The argument is nonetheless available, although as I have said, in my view it is not a strong argument.  If the evidence remains as it is, there is a real question, in my view, as to whether the applicant is entitled to the relief that he would otherwise seek in the proceedings.  It might be the case that he is able to establish that there has been some adverse action taken against him arising out of, or in connection with, the 2016 and 2017 censures.  But those matters are not particularly relevant for present purposes, because, to obtain reinstatement, as he now seeks, he needs to satisfy the Court that there is a strong prima facie case in respect of the relief he seeks concerning his termination.

39. The conclusion I have come to is that if the matters remain as they presently are, whilst he has an arguable case, one could not say that the prospects are strong.  I am therefore not satisfied that the applicant has the requisite case necessary to satisfy the test that I referred to at the commencement of these reasons.  I might be wrong about that, of course, and I turn to the question of the balance of convenience.

40. The applicant says that the balance of convenience favours the grant of the injunction for a number of reasons.  He says that, first of all, he offers the usual undertaking as to damages and says that his undertaking is worthwhile.  He says that he has offered to undertake only to attend the University campus to do work which he has identified as necessary to prevent damage which he identifies in his material as being suffered.  Otherwise, he would be on “gardening leave”.  He points out that if he is found to be right at a trial, then his reinstatement would arguably save the University the amounts that he claims by way of compensation.

41. He points out that, procedurally, there is no impediment to the grant of the injunction on discretionary grounds; there is no delay in his application. He says that there would be specific prejudice to him if he was not reinstated. Because of the nature of his work with the University he is required to attend there and continue it.  It is not in the nature of work that it can be simply left and then picked up six or 12 months later.

42. He says in his affidavit of 6 June, 2018 that there would be a number of consequences if he was not to be reinstated.  First, he says that he will be affected by the proposition that the University has terminated his employment and has publicised his termination.  He says that he has been, and is likely to be, besmirched in his reputation.  He says that given his specialised skill set, the length of time he has served the University and his current age, his prospects of getting alternative employment are slim.  He says that he needs the income at least if the matter is not determined within six months from now.  He says that he is part way through two important research papers that cannot be completed by him without access to students, laboratory and library facilities.  He says that that work is likely to be lost.  He says that he was in control of funds generated from consulting work and other projects that can be used on future projects.  That funding will be lost to others and he says that, notwithstanding that he has asked for undertakings in respect of that funding, none have been given.  He is also responsible for supervising the work of honours students and doctoral students.  He says that that will not be able to be continued and that the University will be prejudiced because it will not be able to pursue, through his assistance, funding applications for future work.  There are some other reasons that he sets out in his affidavit.

43. The University, for its part, suggests that there is no particular prejudice that it will suffer by reason of the matters to which the applicant has drawn the Court’s attention. It says that damages will be an adequate remedy. If the applicant’s case is found to be proved, then he will be entitled to compensation which the University will be able to pay.

44. Perhaps the strongest argument made by the University is that the applicant has conducted himself in a way which has really challenged the University and resulted in the termination of his employment.

1. The decision to terminate his employment was taken, according to the material before me, because of the way in which the applicant chose to publicise the disciplinary proceedings that the University had taken against him.  He was aware that directions had been given to him not to reveal the particulars of the disciplinary processes and those directions, as far as I can tell, were consistent with clause 54.1.5 of the enterprise agreement.  Further, the confidentiality directions did not, again as far as I can tell from the material before me, prevent the applicant from expressing his opinions about the issues and ideas related to his respective fields of competence, nor did it prevent him from expressing disagreement with the University’s decisions to issue the censures, or processes used to make those decisions.

2. Accepting that the applicant has one view about the operation of clause 54.1.5, his conduct is such that the University decided to terminate his employment for breach of the confidentiality provisions, seemingly primarily, but for not that reason alone.

3. However, prior to it deciding to do so, the University, cognisant of these proceedings no doubt, because it said so in its response filed on 23 February, 2018, suggested that the University provide an undertaking that it would not by its servants, officers or agents, purport to determine any of the allegations the subject of the then applicant’s statement of claim, until the determination of these proceedings or there was some agreement in writing between the parties or there was another order of the Court.

4. Subsequently, on 28 February, 2018 and before the termination decision, the University’s solicitors indicated that the University was prepared to offer mutual undertakings which, apparently, if accepted, meant that the disciplinary process that was then underway would be suspended until the conclusion of these proceedings. They would require the applicant to remove the information that the University was suggesting had been improperly disclosed by him and which the University considered derogatory and misleading. That was material that the applicant had published on a WordPress blog site that he had established and what is described in the material as a “Go Fund Me page”.

5. The undertakings would also have had the effect of requiring the applicant to cease making public commentary on these proceedings or the current disciplinary process, including any asserted effect that they had on his academic freedoms.

6. One might have thought that the offer of such undertakings was reasonable in the circumstances because it would allow for an adjudication of the rights of the parties in an appropriate way without there being prejudice to either party.  The applicant would have maintained his employment; the University would have maintained what it saw as the integrity of its disciplinary processes, pending a determination about those issues from the Court.  However, the applicant declined to enter into those undertakings and there was no alternative suggestion.  The offer of the undertakings was repeated on 14 March, 2018 but, again, the applicant declined to give them.

7. Those matters are significant, in my view, because there was an opportunity for the applicant to avoid the very prejudice that he now says he is subjected by reason of the University’s conduct.  He was given the opportunity, in a reasonable way in my view, to have the relevant matters adjudicated upon and, in the meantime, the status quo preserved.

8. That, in connection with what, in my view, is not a particularly strong case for relief, leads me to the conclusion that the balance of convenience does not favour the grant of the injunction in any event.

9. In those circumstances, the application for interlocutory injunctive relief is denied. 

10. There will be an order though for the delivery of a further amended statement of claim as sought in the draft order.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  2 November 2018