The University of Sydney has successfully appealed a Federal Court decision that the 2019 termination of former lecturer Tim Anderson constituted unfair dismissal.
The appeal overturned an October 2022 Federal Court decision that Anderson’s termination over alleged misconduct was unfair dismissal. The Court ordered Anderson to be reinstated to his position without compensation from the University.
A USyd spokesperson told Honi the University was, “pleased with this outcome, as we were confident of our actions.”
“We strongly defend freedom of speech and the ability of our staff to express their expert opinion as outlined in our Charter of Freedom of Speech and Academic Freedom.”
“The principle and practice of intellectual freedom must be upheld in accordance with the highest ethical, professional, and legal standards,” the Spokesperson continued.
A National Tertiary Education Union (NTEU) Spokesperson told The Sydney Morning Herald that the Union was “disappointed” by the outcome, noting that “as we’ve said from the very start, this case was never about Dr Anderson’s statements.”
“The NTEU was solely focused on defending academic freedom as clearly set out in the university’s enterprise agreement,” the Spokesperson said.
“The NTEU doesn’t always agree with our members but we will defend their right to academic freedom because it is a cornerstone of healthy universities.”
USyd’s successful appeal represented a two-to-one majority decision by the Federal Court.
Justice Nye Perram said the onus for proving that Anderson’s behaviour represented the “highest ethical, professional and legal standards” as per USyd’s enterprise agreement was not on the University, as claimed in the 2022 judgement, but on Anderson.
“Given the paucity of evidence on this topic from at least the Union parties, I am unable to determine the issue one way or the other,” Perram said, “it follows that I am not satisfied that Dr Anderson’s comments did not constitute misconduct or serious misconduct on the basis that they were exercises of the intellectual freedom.”
The 2022 decision represented a successful appeal on Anderson’s behalf after a 2019 decision absolved the University of wrongdoing.
Anderson was fired in 2019 following several controversial comments, including public stoushes with journalists regarding a 2017 Syrian War conference, and lecture material involving an Israeli flag modified to include a swastika. USyd claimed this material was “offensive and derogatory.”
“While some may feel offended by Nazi-Zionist analogies, I say the inclusion of the analogy in that graphic was appropriate,” Anderson told the court.
“The purpose of the slide was to encourage critical analysis,” Anderson said, “no student raised any issue with the slide during the seminar.”
Justice Micheal Lee called the case a “procedural mess,” noting that “the lack of clarity in the pleadings and the submissions has caused much confusion.” According to Lee, “the primary judge did not receive the assistance his Honour was entitled to expect from the University parties.”
