Based on the Federal Court of Australia’s transcript. Professor Ridd was employed by JCU for a period of twenty-seven years and was terminated on 2 May 2018 for serious misconduct.
According to the court documents, the trouble started on 16 December 2015 when Professor Ridd sent an email to a journalist suggesting that reports produced by GBRMPA and the ARC Centre of Excellence were unreliable. Professor Ridd stated in the email that those two organisations should “check their facts before they spin their story” and that if the organisations were asked about the issue, his “guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story – and they will smell a trap”.
The Federal Court was hearing an appeal against a decision of the Federal Circuit Court declaring that James Cook University contravened Section 50 of the Fair Work Act 2009 by making 17 findings against Professor Ridd for breach of the JCU Code of Conduct, and by giving him two speech directions, five confidentiality directions, a ‘no satire’ direction, two censures, and terminating his employment in contravention of cl 14 of the JCU EBA.
This Federal Court Hearing was to determine whether the EBA provided Professor Ridd with the untrammelled right (provided his conduct did not harass, vilify, bully or intimidate) to express his professional opinions in whatever manner he chose, unconstrained by the behavioural standards imposed by the Code of Conduct.
The Judges handed down a split decision.
Two Judges concluded that under the Universities EBA, the behavioural standards imposed by the Code of Conduct should be taken into account when considering the Professor’s right to express his professional opinions. Further they concluded that the Professor had disobeyed a lawful management instruction by not following the relevant directions and therefore the University had the right to terminate his employment.
The third Judge considered the EBA gave primacy to Intellectual Freedom (the right for the Professor to express his views) over the behavioural standards imposed by the Code of Conduct. He concluded that the orders of the primary judge should be set aside, the proceeding not be dismissed, and the matter should be remitted to the Federal Circuit Court for a new hearing upon the same evidence.
While the legal proceeding will probably continue, in my experience HR Practitioners can learn the following lessons from this case.
1. Check the rules.
Even in this case, the Judges disagree on which rules should be applied. Therefore before you commence any action, as a HR Practitioner take the time to ensure you are clear on what rule(s) you will be following.
2. Rather than be adversarial, focus on the management problem caused by the behaviour.
JCU’s approach was to accuse Professor Ridd of breaching the University’s Code of Conduct. But what was the actual management problem caused when Professor Ridd suggested to a Journalist that reports produced by GBRMPA and the ARC Centre of Excellence were unreliable; or the other actions he took?
Rather than adopt an adversarial approach I have found better outcomes are achieved when the discussion focuses on the management problem caused by the employee’s behaviour. I.e. rather than saying “Professor you breached the Code of conduct” try saying “Professor when you challenge GBRMPA and the ARC Centre of Excellence you are creating the following management problem for me.”
This approach allows all parties to focus on agreeing to and solving real business problems. For over 20 years, I have found this achieves better outcomes for everyone and avoids situations such as this case going to court.
3. Take reasonable management action in a reasonable way.
Before his termination, the Professor was issued with 8 Directions, 2 Censures and found by the University to have breached the Code of Conduct 17 times. Yet interestingly, all three Judges acknowledged that no arguments had been presented by either the University or Professor Ridd as to whether such Directions, Censures and/or Breaches were reasonable.
I always take the time to ensure all planned and actual management action will be deemed reasonable should an appeal occur. This has repeatedly proved invaluable as reasonable management action is always a key factor in every unfair dismissal claim I am aware of.
HR has an important role in ensuring that employees comply with relevant policy and procedures, and that any problems are managed in a reasonable way. By checking the rules, focusing on the problem and ensuring reasonable management action, better outcomes can be achieved.
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