A university academic will not be compensated for the hurt and humiliation he claimed to suffer after being fired for posting a picture online of an Israeli flag with a Nazi symbol on it.
Tim Anderson knew the picture would be deeply offensive to many people when he posted it, however he should get his job back, a judge ruled on Monday.
He suffered “the usual amount” of distress in response to disciplinary action and the judge was not persuaded he had suffered the “psychological burden” claimed, given how willing he was to engage in “provocative and vigorous debate including of a personal nature and by expressing views known to be highly offensive to many people”.
“None of Dr Anderson’s posts were of a kind which demonstrated an individual whose feelings might easily be hurt,” Federal Court Justice Tom Thawley ruled, rejecting sought penalties against the institution but making a pending order for it to reinstate him.
Dr Anderson worked at the University of Sydney for more than two decades before he was dismissed from his position as a part-time senior lecturer in the Department of Political Economy in February 2019.
It followed two warnings from his employer in August 2017 and October 2018 regarding statements he made about journalists and politicians.
Two months after his dismissal he sued the university with the backing of the National Tertiary Education Industry Union, losing in November 2020 before a successful appeal when the court ruled the university’s academics were permitted to express their views under the banner of intellectual freedom even if they were “deeply offensive and insensitive”.
Referred to as “The Gaza Graphic”, the post encouraged students to identify independent evidence and test qualifying language in reports of conflict between Israelis and Palestinians over the territory, and had been included in presentations before he posted it to Facebook in April 2018.
It contained a small image showing a partially torn Israeli flag revealing part of the Nazi Germany flag underneath.
The university submitted to the court it had previously misinterpreted and misapplied the intellectual freedoms outlined in its agreement with employees, but not unreasonably, and its commitment to those freedoms was proved by its defence of Dr Anderson in relation to other criticism.
The judge said the university’s conduct during the legal proceedings was “not ideal” but did not extend to the characterisation of “deliberate, arrogant and high-handed” sought by Dr Anderson and the union.
“The contravening conduct arose out of views which have been held to be erroneous, but honestly and reasonably so,” Justice Thawley wrote.
Dr Anderson should be reinstated under the same terms and conditions as his previous employment, the judge said, however the order is pending on the determination of another appeal against previous orders.
The matter returns to court on June 5.
