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In May 2018, James Cook University (JCU) made the decision to terminate Professor Peter Ridd’s 30 year employment on the basis that his conduct was contrary to the Code of Conduct.

Specifically, JCU was of the view Professor Ridd had in expressing criticism of JCU, not expressed a professional opinion in a manner consistent with his obligations under the Code of Conduct, including by:

(a) failing to act in a collegial and academic spirit;

(b) preferring his own interests above the interests of JCU;

(c) failing to treat a colleague with respect and courtesy;

(d) denigrating JCU in a manner inconsistent with his obligations; and

(e) breaching directions to maintain confidentiality.

Professor Ridd did not dispute that he had published the comments, the subject of the allegations upon which he was terminated.

Rather, he asserted that clause 14 of the Enterprise Agreement provided him with the right to intellectual freedom and in turn, the conduct alleged did not amount to serious misconduct.

At first instance, the Court held that the Code of Conduct was subordinate to clause 14 of the Enterprise Agreement. Specifically, the primary judge held that “If the whole of what is said objectively is an exercise of intellectual freedom, then the protections of cl.14 apply…It is only when behaviour is not covered by cl.14, that the Code of Conduct can apply”.

On this basis, the court held JCU acted unlawfully in breaching the rights that Professor Ridd held under clause 14 and was ordered to pay Professor Ridd almost $1.1 million as compensation.

JCU appealed this decision to the Full Federal Court to consider whether the Code of Conduct was incorporated into the Enterprise Agreement. The Full Court upheld JCU’s appeal and held that:

(a) the Code of Conduct forms part of the terms and conditions of employment for all JCU workers;

(b) there is no inconsistency between the relevant provisions of the Enterprise Agreement and the Code of Conduct which warrants one to be characterised as primary and the other subordinate;

(c) the provisions of the Enterprise Agreement and the Code of Conduct should be read together; and

(d) JCU had not acted unlawfully in terminating Professor Ridd’s employment.

It is uncertain whether Professor Ridd will appeal this decision to the High Court. However, in the meantime, this decision serves as an important guide for employers. Specifically, employers:

(a) may be entitled to discipline employees where their conduct is contrary to a Code of Conduct even where an employment document appears to excuse such;

(b) should read a Code of Conduct carefully together with any applicable employment document; and

(c) if in doubt take advice.

Please contact the Employment, Safety and Migration Team at Macpherson Kelley if you have any further queries in relation to this article.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.