Dismissal of a professor involved in intimate encounter with student held to be valid on appeal
Earlier this year we published an article on the unfair dismissal application of Dr Scott Morrison, an Associate Professor employed by the Australian National University (ANU) which may be accessed here.
While Dr Morrison was successful in the first instance, on appeal, the Full Bench of the Fair Work Commission (FWC) quashed Deputy President Dean’s decision on each of the three grounds of appeal submitted by the ANU.
Facts
A full discussion of the facts can be found in our previous article. In summary, Dr Morrison attended a beachside retreat with various students. One night, he and a student he had taught that semester (the Student) swam naked and kissed at the beach. After the trip, Dr Morrison and the Student discussed what had happened but he attempted to distance himself from her. After the Student made a formal complaint, ANU conducted an investigation and found that Dr Morrison’s conduct was in breach of his duty of care to ANU students and ANU’s close relationship policies. As a result, his employment was terminated and he commenced an unfair dismissal application.
In the primary decision, DP Dean held that the conduct did not breach ANU harassment or close relationship policies because Dr Morrison was no longer involved in the supervision of the Student, and in any case the contact between Dr Morrison and the Student was consensual. Accordingly, Dr Morrison’s dismissal was found to be unfair.
Grounds of appeal
ANU submitted three grounds of appeal, namely that:
- even on the primary facts as found by the Deputy President, it was not reasonably open to find other than that there was a valid reason for the dismissal;
- the Deputy President’s conclusion was based on significant errors of fact; and
- the Deputy President failed to consider and make findings about or otherwise take into account significant aspects of the evidence upon which ANU relied in its case.
Decision on appeal
Ground 1
The Full Bench held that the Deputy President put too much weight on certain facts in forming her conclusion. Most notably, the Deputy President placed a significant weight on the fact that the conduct was consensual, even though it had never been claimed that Dr Morrison had sexually harassed or assaulted the Student. Rather, ANU’s submission was that Dr Morrison’s employment duties and obligations required him to refrain from engaging in sexual intimacy with a student, even if it is consensual or even initiated by that student.
Further, the consideration of mitigating factors such as an apology was not relevant in determining the ‘harshness’ of the dismissal. If Dr Morrison’s conduct on the beach constituted a valid reason for his dismissal, the Full Bench agreed that this conclusion cannot be diminished by things he said or did after the event.
Ground 2
The Full Bench accepted ANU’s submission that the decision contained a number of errors of fact, which arose primarily from the Deputy President’s almost exclusive reliance on Dr Morrison’s evidence over that of the Student and her witnesses.
In preferring Dr Morrison’s evidence, the Full Bench held that the Deputy President made numerous errors of fact, including in finding that Dr Morrison had no supervisory role over the Student, that there was no potential that he might be involved in the assessment of the Student in the future, that the Student was told to stay away from Dr Morrison’s seminars, and that Dr Morrison was not dishonest and untruthful during ANU’s investigation process.
Ground 3
The Full Bench found that the Deputy President had failed to consider all of the evidence relating to the events of the night on the beach, in particular relating to a particular subsequent discussion between the Student and Dr Morrison. All that the Deputy President took from that meeting was that the Student had stated that she wanted to have an ongoing relationship with Dr Morrison. However, the Student also put forward evidence of that meeting which was not taken into account. This may have caused the Deputy President to mischaracterise Dr Morrison’s conduct. That evidence, if accepted, indicated that Dr Morrison had a sexual attraction to the Student, had floated the possibility of continuing a relationship with the Student, believed relationships between staff and students had happened before in the department, and did not feel any remorse regarding his conduct.
The Full Bench held that, between Dr Morrison’s conduct during the beach incident, his failure to disclose the incident to ANU, his subsequent dealings with the Student, and his lack of honesty in the interview process, there was a valid reason for his dismissal. Therefore, the Full Bench held that the Deputy President’s finding had to be quashed and the appeal upheld.
Take home messages
As advised in our earlier article, sexual and romantic acts in the workplace must be approached with caution. Even if they are consensual, the imbalance of power between the parties must be considered. Importantly, even if one of the parties does not currently report to the other, it may be relevant if there is a possibility that they will in the future. The terms of any harassment or close relationship policies will be critical, but employees may also have an overarching duty of care towards their coworkers in certain situations, such as in educational facilities.
If you would like to discuss any of the matters raised in this article, please contact Ganesh Krishnan on + 61 8217 1395 or gkrishnan@normans.com.au, Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.
