If you want a good laugh have a read of the judgement in the case of Ridd v JCU.
Before you do that realise that JCU management are unrepentant.
We disagree with the Judge’s comments and are also troubled by the fact that he fails to refer to any legal precedent or case law in Australia to support his interpretation of our enterprise agreement, or academic freedom in Australian employment law. The judgement reflects views, which are not supported in any way by any case law or legal precedent The Judge has not attempted to do so in his judgement in preferring an interpretation of the enterprise agreement that disregards the Code of Conduct or confidentiality obligations which exist both separately in the enterprise agreement and also at law.
I suspect that is code for “we’re gonna appeal”.
But having read the judgement I suspect the judge feels that he didn’t really need to quote case law and the like. It boils down to applying section 50 of the Fair Work Act and interpreting the plain language of the JCU Enterprise Agreement.
JCU argued that the clause in their EA that discussed Academic Freedom had to be read in accordance with their Code of Conduct. Long story short – if that was the case, according to the judge, the EBA would have said so. But it didn’t.
So in the end:
- To use the vernacular, the University has “played the man and not the ball”. Incredibly, the University has not understood the whole concept of intellectual freedom. In the search for truth, it is an unfortunate consequence that some people may feel denigrated, offended, hurt or upset. It may not always be possible to act collegiately when diametrically opposed views clash in the search for truth.
Damning. “… the University has not understood the whole concept of intellectual freedom”. It is worse than that though – JCU management did not understand their own enterprise agreement. As the quotes below will show the judgement boils down to the judge saying “your EA says this, you did that”.
Some choice quotes by the judge:
- The EA is made at the enterprise level and provides terms and conditions for the employees to whom it applies. The fact that there is a clause devoted to intellectual freedom in the EA is an illustration of how fundamental the concept is to employees of a university.
- It must be remembered that an Enterprise Agreement is a formal agreement that must be ratified by the FWC and cannot be changed unless the FWC gives its imprimatur. Therefore, it is the document that is the basis from which other JCU documents gain their power.
- The University submits that the right to exercise intellectual freedom provided by cl.14 is subject to the other terms of the EA, which must be read together with cl.14, as part of the context of the clause. This includes cl.13 (which talks of the Code of Conduct), cl.8 (which defines misconduct and serious misconduct) and cl.54 (which prescribes the steps to be taken by the University to address allegations of misconduct or serious misconduct).
- To do requires one to limit the concept of intellectual freedom and make it subservient to clauses that relate to behaviour.
- The wording of cl.14 does not show that there is any such limitation on its power or applicability.
- Whilst cl.14.1 speaks of the commitment of JCU to act in accordance with the Code of Conduct, it does not, in that clause, bind anyone other than the university itself with the Code of Conduct.
- The clause puts its own limitations on intellectual freedom. The clause speaks of a “responsibility to respect the rights of others”. As referred to earlier in these reasons, there is no right to harass, vilify, bully or intimidate those who disagree with the views espoused.
- The clause links the rights to intellectual freedom to the responsibilities of staff to support the University as a place of independent learning and thought where ideas may be put forward an opinion expressed freely. The clause speaks of what staff should do and what they must do.
- When the clause already has sufficient limitations on the right to intellectual freedom, it seems incongruous to then impose other limitations that have not been expressly identified.
- If the clause is truly meant to be subject to compliance with the Code of Conduct, such a limitation would have been spelt out in the clause itself.
- As noted earlier, the Code of Conduct is not part of the EA. Clause 13 of the EA simply notes the existence of a Code of Conduct. It also notes that the Code of Conduct can be changed after “consultation” with the joint consultative committee.
- It seems incongruous that a document that can be changed by JCU, admittedly after consultation (whatever that means), can override a clause in an EA which can only be changed by the Fair Work Commission.
The points in paragraphs 256 and 258 seem to be pretty damning. It’s not clear to me what case law the judge needs to cite in making those points. The whole exercise seems almost trivial.
But wait … there is more.
- What Professor Ridd did was point out anomalies in the methodology and conclusions made by Professor Hughes and others. He invited the journalist to ask questions of Professor Hughes and others so that debate could ensue and the public be able to discern the truth for themselves.
- It would seem to me that this is exactly what a university should be encouraging and, relevantly, why cl.14.3 actually exists.
That has got to hurt.
- Although not strictly relevant to the case at hand, I do note that the interview in question came about because Professor Ridd wrote an essay that was collected in a book. That essay is one of the annexures to the affidavit of Professor Ridd. In that essay, Professor Ridd is quite critical of Professor Hughes for his claim that coral bleaching was a new phenomenon. Professor Ridd also talks of climate change and bleaching as the latest in a long list of spurious claims about the Reef.
- Upon reading this essay, one could objectively conclude that it is more “insulting” to Professor Hughes and the other scientists than anything that was said in the interview with Alan Jones. And yet, despite the fact that the University had clearly read the essay, there were no allegations that the writing of this essay was a breach of the Code of Conduct.
Here the judge is having far too much fun.
- By virtue of this reply, the University were prohibiting Professor Ridd from talking to his wife about these matters.
In the end it was this aspect of the case – not allowing Peter Ridd to discuss the matter with his wife that really cooked them. Public policy promotes and respects the social institution of marriage. What was JCU thinking? Bad enough that they tried to deny him access to legal advice, but not talk to his wife? This and this alone would have established their malevolent intent. Later the judge says:
- Whilst none of this makes any difference at all to my ultimate decision, the actions of the University in this respect are, quite frankly, appalling. They have had no regard for the anguish that Professor Ridd felt between 24 August 2017 and 19 September 2017. There has not even been an apology for what can only be seen as extremely callous behaviour. This is inexcusable.
To be told by a judge that your behaviour is “appalling” and “inexcusable” should have given the JCU management a lot of discomfort, but no; as indicated above they are unrepentant.
- Again, whilst it is not part of the matters that I have to decide, it would seem that, rather than disciplining Professor Ridd, the better option would have been to provide evidence that would illustrate the errors in what he has said. If it had been shown that what Professor Ridd had been saying was demonstrably wrong, that would have been the greatest rebuke of all.
Sad that a judge should be in the position of having to explain this to university administrators.
- Whilst a finding that the words written by Professor Ridd breached confidentiality would seem to be totally bereft of logic, this is not the matter with which I have to grapple. …
I think this is judicial code for WTF?
- Whilst this finding is incredibly trifling, it is a finding that is properly made if the direction given in the final censure letter is a lawful direction.
- The hypocrisy is breathtaking. On one hand, the University is finding that Professor Ridd has breached the Code of Conduct in that he has made public a number of items to do with the disciplinary process. On the other hand, he is accused of breaching the Code of Conduct in that he has not referred to all of that material when he has made this particular statement. …
- … One could be forgiven for thinking that the university was more concerned with the splinter in the eye of Professor Ridd whilst ignoring the plank in their own.
Feel the burn.
- The fact that the University would not concede that this finding was unjustified, yet made no submissions to allow me to even consider how the finding was justified, is symptomatic of the way in which they have conducted this litigation.
You can just feel that the judge is getting angrier and angrier.
Now it gets very interesting. Disciplinary actions at universities – and elsewhere, I suspect – make extensive use of confidentiality clauses. Here is what the judge said:
- There are many good reasons why there should be confidentiality in relation to disciplinary processes. As was submitted by the University, it can protect the personal information of third parties involved in disciplinary proceedings, such as complainants. It encourages disclosure during the disciplinary process knowing that there is confidentiality. Most of all, it ensures that an employer can complete their investigations without the risk of details been disclosed before the employer has been able to consider the evidence.
- But that is not how cl.54.1.5 has been written. It has been written for the protection of the staff member. It speaks of the obligations of JCU; it does not speak about the obligations of any other person. It speaks of the exceptions to confidentiality that would allow JCU to disclose the information gathered.
- If it were the case that a staff member had confidentiality obligations, the clause would have been written to reflect that, which reinforces the conclusion that cl.54.1.5 did not mandate confidentiality obligations on a staff member.
- All that sub- subclause said is that the confidentiality of all parties would be respected. There is nothing in that phraseology that infers that there are obligations regarding confidentiality. The only items deemed to remain confidential are all the information gathered and recorded, presumably in the misconduct process.
Oh dear. Makes you wonder if JCU management ever knew what their own EA says.
I suspect this judgement will have the HR departments of universities reading their Enterprise Agreements quite closely. The exact wording varies from document to document but the euphemisms are fairly standardised.