A university lecturer was dismissed after he published content of a political nature on social media that was deemed to be offensive.

Claiming adverse action and wrongful dismissal, he relied on a clause in the university’s enterprise agreement that purported to allow “intellectual freedom”. The university had a Charter of Freedom of Speech and Academic Freedom. However, the Federal court found the agreement clause to be not legally enforceable and rejected his claims.

Facts of case

The lecturer had been employed for about 20 years. He was dismissed after the following incidents:

  • He superimposed a swastika on an Israeli flag in teaching materials during a lecture on the topic of propaganda, and also did so on social media posts. He operated both Facebook and Twitter accounts under his own name, but each clearly identified him as employed by the university.
  • He published tweets accusing the Murdoch-owned media of fabricating genocide threats in an attempt to intimidate anti-war academics, and the media generally of attempting to dissuade dissent from the “official war line”.

The university claimed that he had breached both its Code of Conduct and Public Comment Policy, and warned him not to do so again, but he continued to post comments that included the claims that the university was trying to prevent him from posting.

The lecturer lodged complaints of bullying by university management (which an investigation rejected) and accused it of “feeding” the media to discredit him. He claimed the media stories defamed him.

The university claimed that his posts, and continuing to make them after being warned not to, amounted to serious misconduct, breaching the agreement obligations, its Code of Conduct, his employment contract, and its policy on making public comments. Also, its Charter of Freedom of Speech and Academic Freedom allowed employees to express and debate their “expert opinions” but they had to do so respectfully and in compliance with the law. It issued two warnings regarding the above incidents, then dismissed him. 

Representing him, his union claimed that the university dismissed him because of his political opinions and to prevent him from complaining. By doing so, it breached the adverse action and “prohibited reason for dismissal” (political views) provisions of the Fair Work Act 2009. It claimed that employees were entitled to express their opinions without fear or favour, even if those opinions were controversial or unpopular. However, the clause actually stated that staff could express controversial or unpopular opinions, but not in ways that amounted to harassment, intimidation, or vilification.

A key issue was whether the enterprise agreement clause provided a legally enforceable right to “intellectual freedom”, which would mean that exercising it could not amount to misconduct. 

Decision

The court, however, found his actions were not merely an “expression of intellectual freedom” (as defined by the agreement clause) but were deliberately provocative and intended to convey the message that the lecturer could publish such material if he felt like doing so. The clause required employees to “uphold the principle and practice of intellectual freedom in accordance with the highest standards of ethical, professional and legal standards”.  It did not create a legally enforceable right to intellectual freedom. The court said that if those standards were not met, the university was entitled to conclude that misconduct had occurred.

It rejected the lecturer’s claim of wrongful dismissal and found that the university had not committed adverse action against the lecturer. The latter was because it acted in response to his conduct, not because he had exercised his right to make complaints against the university and some of its staff.

Continuing to post offensive comments after being warned not to amount to misconduct, and he should reasonably have been aware that the Israeli flag and swastika items would be regarded as offensive. The university considered it likely that the lecturer would continue to post similar comments if he remained employed.

The bottom line: Cases that involve the expression of political views are usually controversial, and this one attracted plenty of media comments. As with other cases, this one was decided according to the context in which political comments were made.

Although the lecturer had used personal Facebook and Twitter accounts for posting his comments, he had clearly stated on them that he was exercising his intellectual freedom as an academic employed by the [named] university. He thus used the accounts to post his views as an academic. The comments included attacks on the media that were derogatory rather than addressing the views they expressed.

In this case, the derogatory manner and content of the political posts, which made them likely to cause offence and damage the employer’s reputation, overrode the employee’s right to express his views.

Read the judgment: National Tertiary Education Institution Union v University of Sydney [2020] FCA 1709, 26 November 2020