Academic freedom of speech confirmed by the Federal Court

The clash between social media, intellectual freedom and the workplace has again been highlighted in the recent case of National Tertiary Education Industry Union v University of Sydney [2021] FCAFC 159. In this case, the Full Federal Court of Australia found that an 'intellectual freedom' clause in the university's enterprise agreement created an exercisable workplace right which was not watered down by its code of conduct.

What happened?

• In 2019, human rights lecturer of 20 years, Dr Tim Anderson, was dismissed for superimposing a swastika on an Israeli flag during a lecture, an alleged anti-Israeli Facebook post and posting a photo on his private Facebook page with a person wearing clothing with patches that read "Death to Israel", "Curse the Jews" and "Victory to all Islam".
• Dr Anderson's employer, Sydney University, claimed these incidents amounted to serious misconduct, breaches of its code of conduct, his employment contract and its public comment policy.
• Dr Anderson argued that the intellectual freedom clause contained within the University's enterprise agreement provided him with a right to intellectual freedom, and that him exercising this right could not be a valid reason to dismiss him.

What the Court found

The Full Court of the Federal Court upheld Dr Anderson's appeal and found that:

• the University's enterprise agreement created an exercisable right for academic staff, including Dr Anderson, to express "unpopular or controversial views";
• just because Dr Anderson may have caused subjective or objective offence by his exercise of his right does not mean that he didn't validly exercise his right;
• the fact that Dr Anderson's actions may be characterised as disrespectful, discourteous and insensitive to some people does not, of itself, mean that he did not properly exercise his right to intellectual freedom; and
• to the extent that the Code of Conduct is inconsistent with the provisions relating to intellectual freedom, the right to exercise intellectual freedom prevails.

Takeaways

Some key lessons that all employers can take away from this decision are:

• where you are considering taking disciplinary action against an employee for social media posts, employers must carefully consider their own policies and any applicable award or enterprise agreement; and
• in some circumstances, the mere fact that an employee causes offence is not sufficient to make the conduct actionable by their employer.

If you require assistance in relation to any of the information provided above, Pragma's specialist employment lawyers can provide advice to you and your business to minimise your future risk. Contact us today by clicking here or call us on (08) 6188 3340