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We live in a polarising time, and for employers, this raises real questions as to how far the expectation of employee conduct can extend within the parameters of the law and governing employment documents. In the recent decision of Ridd v James Cook University, the High Court highlighted that it is becoming increasingly difficult for employers to maintain control over the behavioural expectations they set for employees, particularly in relation to conduct that occurs outside of work hours.

The decision discusses the crucial interplay between the limitations of a right to intellectual freedom granted to an individual in an industrial instrument versus a code of conduct.

academic publicly scrutinises health concerns over great barrier reef

Dr. Ridd was a longstanding academic employee of James Cook University (the University). In 2015, Dr. Ridd expressed concerns in an email to a journalist and during an interview on Sky News about the science underpinning the Federal Governments’ spending on the Great Barrier Reef. Dr. Ridd was publicly outspoken for criticising the validity of the Great Barrier Reef’s decline in health, a view that was in direct contention with the position of his colleagues and the University.

university claims breach in code of conduct

The University issued a formal censure to Dr. Ridd after finding he had engaged in conduct contrary to the Code of Conduct as he expressed a professional opinion in a manner that was not collegial and impacted on his colleagues, the reputation of the University and its stakeholders.

Despite this censure Dr. Ridd continued to make public comments expressing his views and the University subsequently terminated his employment for breaching the Code of Conduct on 17 occasions, repeatedly breaching confidentiality directions, and failing to treat colleagues with respect.

Also at play was an Enterprise Agreement which contained a clause setting out a right to intellectual freedom and stated the University’s commitment to acting in a manner consistent with that right, provided staff did not harass, vilify or intimidate those who disagreed with their views.

code of conduct vs enterprise agreement

Dr. Ridd brought proceedings against the University asserting that its disciplinary actions, including his dismissal, were in contravention of the Enterprise Agreement, which protected intellectual freedom, and section 50 of the Fair Work Act 2009 (Cth) (Fair Work Act) because the termination was unlawful.

Dr. Ridd’s legal representatives argued that each allegation of misconduct related to him exercising intellectual freedom in accordance with the Enterprise Agreement. The University on the other hand maintained that it had never sought to silence Dr. Ridd or infringe his right to intellectual freedom but rather acted on concerns of serious misconduct and breaches of the Code of Conduct.

At first instance, the Primary Judge found that the Code of Conduct was subordinate to the Enterprise Agreement and that it was only when behaviour was not covered by the intellectual freedom clause in the Enterprise Agreement that the Code of Conduct could apply.

On appeal, the Full Court of the Federal Court determined that while the Enterprise Agreement informed the content of the exercise of intellectual freedom, the Code of Conduct regulated the manner in which that freedom may be exercised.

high court decision: key findings

The High Court ultimately determined that neither the position of the Primary Judge nor the position of the majority of the Full Court could be entirely accepted.

In the High Courts opinion:

1. the intellectual freedom protected by the Enterprise Agreement was not a general freedom of speech – an expression of opinion about issues or ideas must be related to a field of competence and an expression of disagreement with the University decision- or decision-making processes must be in accordance with the applicable processes giving reasonable opportunity for those processes to be followed;
2. the best interpretation of the Enterprise Agreement was that it preserved intellectual freedom subject to some constraints contained in the Code of Conduct but, contrary to the conclusion of the majority of the Full Court, only those constraints that were adopted within the Enterprise Agreement itself; and
3. the constraints contained in the Enterprise Agreement did not require that the exercise of intellectual freedom be expressed respectfully or courteously but they did require that an expression of disagreement with University decisions followed the applicable processes including adhering to obligations of confidentiality.

The High Court went on to hold that as Dr. Ridd did not dispute that the conduct occurred and that it would be misconduct or serious misconduct and as he had run his case on an all or nothing basis the termination decision was justified even though the initial censure was found to be invalid as the email subject to censure related to the expression of Dr. Ridd’s honest academic expertise.

a lesson for employers

This decision highlights that when considering whether an employee is engaged in misconduct, employers will need to consider the interplay between all relevant rights and obligations, including those set out in any industrial instrument or Code of Conduct.

Contact our Employment, Migration and Safety team for advice.