DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Morrison
v
Australian National University
(U2020/3161)

Application for a remedy for unfair dismissal – application granted.

Introduction

[1] Dr Morrison has made an application for an unfair dismissal remedy, having been dismissed from his employment with the Australian National University (ANU or the University). He was dismissed following an investigation which found that he had engaged in serious misconduct, namely that “at a secluded beach, alone at night, [Dr Morrison] stripped naked in front of [the Relevant Student] and was thereafter sexually intimate with her.”

[2] His application was listed for hearing over multiple days starting in late 2020. A confidentiality order was made to protect the identity of the Relevant Student. After the evidence had concluded and prior to submissions being made, the ANU made an application in February 2021 for leave to lead further evidence by a new student. After a hearing on 9 March 2021, I granted this application and reasons for doing so were provided in a decision dated 12 March 2021 1. The further evidence was heard in April and final submissions were made in May 2021.

[3] This decision does not attempt to traverse all the evidence that has been filed or submissions made by the parties as the volume of the material has been extensive. However all the evidence and submissions have been carefully considered.

[4] For the reasons that follow, I find that Dr Morrison was unfairly dismissed, and I have determined that reinstatement is the appropriate remedy. The key (but not the only) reasons for these conclusions is that, on the evidence of both Dr Morrison and the Relevant Student, what has been described as ‘sexually intimate’ conduct between them was that they kissed on two occasions, the kissing was wholly consensual and was encouraged by the Relevant Student.

[5] I should note at the outset, although much of what happened was common ground between Dr Morrison and the Relevant Student, there was some differences in their recollection of events. This is not surprising as the events in question occurred some years ago. To the extent that there are differences in their evidence, I prefer the evidence of Dr Morrison. He gave his evidence in a manner that was forthright and considered. I was left with the impression that his recall of the events was more accurate than that of the Relevant Student.

Circumstances leading to dismissal

[6] As I have said, the conduct of Dr Morrison which led to his dismissal is largely not in contest. What is in contest is whether his conduct breached the relevant ANU policies such as to warrant his dismissal and whether, in any event, he demonstrated ‘a fundamental failure to exercise appropriate judgement’ as a senior academic.

[7] Dr Morrison was an Associate Professor employed by the ANU in its Mathematical Sciences Institute (MSI). He commenced employment in June 2012.

[8] Dr Morrison’s terms of employment incorporated the ANU’s Code of Conduct (the Code), the Conflict of Interest and Commitment Policy and Procedure (Conflict Policy) and the Prevention of Discrimination, Harassment and Bullying Policy (the Harassment Policy).

[9] The relevant provisions of the Code are:

Duty of care and diligence

19. An official must exercise their powers, perform their functions and discharge their duties with a degree of care and diligence that a reasonable person would exercise in the same position.

Duty to act in good faith and for proper purpose

20. An official of the University must exercise their powers, perform their functions and discharge their duties in good faith and for proper purpose.

Duty in relation to use of position

21. An official of the University must not improperly use their position to gain an advantage for themselves or any other person; or cause detriment to the University, the

Commonwealth or any other person.

Personal and professional behaviour

26. Staff are placed in a position of trust and are expected to be honest in carrying out their duties.

27. This trust is placed at risk when the staff fail to recognise and avoid:

•  conflicts between their private interests and University responsibilities, and

•  situations where there is a reasonable basis for the perception of such a conflict

(see Conflict of interest and commitment policy).

[10] The relevant provisions of the Conflict Policy are:

21. The relationship between the parties should not affect the interests of other parties. Because the effects on other people at work or in the classroom are frequently not apparent to the persons involved in a close personal relationship, anyone with such an involvement should be attentive to the feelings of colleagues and to the potential conflicts of interest that may be involved.

22. Where there is a close personal relationship involving students it is University policy that the staff member should not be involved in the supervision, progress, assessment, examination or grading of students with whom they have a close personal relationship with. The supervisor to whom notification of such a close personal relationship is made (by either the staff member or the student) should immediately take steps to avoid perceived, actual or potential conflicts of interest in respect of the staff-student relationship.

23. Where a staff member is involved in a course that includes the student with whom they have a close personal relationship with, and the staff member or student's involvement in the course is unavoidable, steps to redress the conflict that has arisen may include:

•  Where a staff member could be involved in setting any assessment to be undertaken by a class that includes the student an independent third party should set the assessment and mark the papers.

•  Where a staff member could be involved in the ranking of a group of students which includes the student, alternative examiners should be appointed to ensure any ranking is transparently made on merit.

•  In the case of graduate students, staff should not be involved in the supervision, assessment or examination of a student who is in a close personal relationship, or in material decisions relating to that student's program.

[11] The relevant provisions of the Harassment Policy are:

1. The University’s commitment to excellence is underpinned by values including integrity in all activities, respect in all relationships, collegiality to encourage staff and students to work together and commitment to the University community to meet the needs and nurture the talents of all staff and students.

2. The University is committed to ensuring that staff and students are treated with respect, recognising all members of the University have the right to work and study in an environment free from discrimination, harassment and bullying.

17. Managers, supervisors and academic staff have a responsibility to:

•  monitor the work or learning environment to ensure that acceptable standards of conduct are observed at all times;

•  promote this procedure and the relevant University grievance procedure or complaints policy within their area of responsibility; and

•  treat all complaints seriously and confidentially and take immediate action to refer the staff member or student to the relevant policy and procedures.

18. All staff have a responsibility to:

•  personally demonstrate appropriate behaviour in accordance with the University Code of Conduct;

•  take reasonable care to ensure their own safety and health and avoid adversely affecting the safety and health of any other person through any act of workplace bullying or omission to deal with an act of bullying.

•  offer support to anyone who claims that they are experiencing discrimination, harassment or bullying and let them know where they can get help and advice; and

•  consult with relevant senior officers on reports of discrimination, harassment and bullying.

[12] The ANU made the following submissions with respect to these policies (with some references removed):

“12. The Code of Conduct sets out the standards of conduct required by staff. It imposes obligations on staff to discharge their duties with care and diligence, in a professional, responsible and conscientious manner, and not to improperly use their position. Among other things, the Code of Conduct provides that:

(a) staff should observe and comply with relevant laws, and are required to act in accordance with University goals, policies and procedures: paragraphs 13-14;

(b) staff should uphold the good name of the University and exercise judgement in the best interests of the University: paragraph 15;

(c) staff should be aware of the University’s goals, policies and procedures: paragraph 17;

(d) officials (which include staff) should exercise their powers, perform their functions and discharge their duties with a degree of care and diligence that a reasonable person would exercise in the same position, and in good faith and for a proper purpose: paragraphs 19-20;

(e) officials must not improperly use their position (or information obtained by them) to gain an advantage for themselves, or cause detriment to the University or any other person: paragraphs 21-22;

(f) all staff are required to treat students with respect and avoid behaviour which may be reasonably perceived as harassing, intimidating, overbearing or emotionally threatening: paragraphs 24-25;

(g) all staff are required to refrain from acting in a way that would unfairly harm the reputation and career prospects of other staff or students: paragraph 25;

(h) staff are placed in a position of trust and expected to be honest in carrying out their duties: paragraph 26;

(i) that trust is placed at risk when staff fail to recognise and avoid conflicts between their private interests and University responsibilities, and situations where there is a reasonable basis for the perception of such a conflict. By virtue of the same, staff must be able to recognise and avoid conflicts and the University have confidence that the staff can recognise and avoid the same: paragraph 27;

(j) one specific situation potentially giving rise to a conflict of interest is personal relationships with students: paragraph 28; and

(k) staff are expected to carry out their duties honestly, responsibly and impartially to the best of their ability, including carrying out their duties in a professional, responsible and conscious manner: paragraphs 31-32.

13. The Conflict Policy defines a ‘conflict of interest’ as:

‘when the private interest of a staff member may influence or compromise the conduct of that staff member in the conduct of their activities at the University, including when making decisions, determining research directions or unduly influencing relationships between that person, their colleagues and students. Apparent or perceived conflicts may undermine trust and be as damaging as an actual conflict’.

14. The Conflict Policy defines a ‘close personal relationship’ as:

‘a relationship with … any person with whom there is currently, or has been in an intimate relationship …’

15. The Conflict Policy makes clear that conflicts can arise from personal relationships: Conflict Policy paragraph 15. When a close personal relationship exists it is the University’s policy that:

(a) one party should not be the direct supervisor of the other: paragraph 19; and

(b) where there is a close personal relationship involving students, the staff member should not be involved in the supervision, progress, assessment, examination or grading of students with whom they have a close relationship. Notification of a close personal relationship should be made to a supervisor: Conflict Policy paragraph 22.

16. As a staff member, and senior academic, Dr Morrison was expected to exercise appropriate judgement in carrying out his duties and to act in accordance with the University’s policies and principles. The requirements in the Code of Conduct, the Harassment Policy and the Conflict of Interest Policy reflect the importance of ensuring that individuals in a position of authority in the University maintain their independence, and that students are not placed in a position where their progression through the University (and their career prospects) are limited by reason of a relationship with a staff member.”

21 November 2017

[13] On 21 November 2017 Dr Morrison was the coordinator of a mathematics academic retreat which was held at the ANU Kioloa campus and attended by both academics and students (the retreat). Kioloa is a beachside location on the south coast of NSW. The Relevant Student had been enrolled from June 2017 in a mathematics course in which Dr Morrison was the lecturer. She was one of the students who attended the retreat.

[14] At the time, Dr Morrison was in his mid-30s and the Relevant Student was in her 20s.

[15] That evening, Dr Morrison and the Relevant Student went to the beach to look at ‘bioluminescence’ in the water which Dr Morrison had seen the previous evening.

[16] At the beach, Dr Morrison took off his clothes and swam naked. In his evidence Dr Morrison said that he asked the Relevant Student whether she objected to him taking off his clothes, and she did not object. Her evidence, on the other hand, was that Dr Morrison did not ask whether she consented to him swimming naked.

[17] Having listened to the evidence carefully, I am satisfied that Dr Morrison’s evidence should be accepted. His evidence is largely confirmed by what happened immediately following Dr Morrison taking off his clothes and going into the water. At that point the Relevant Student took off most of her clothes and entered the water in her underwear. She swam up to Dr Morrison and without being asked or encouraged, wrapped her legs around him and kissed him. He reciprocated.

[18] When Dr Morrison and the Relevant Student returned to the beach a short time later, they sat on a grassy area and continued to kiss. The Relevant Student gave evidence that at this time she took off her remaining clothes. Dr Morrison then asked the Relevant Student if she wanted to have oral sex, to which she said no. Dr Morrison did not press the matter any further. Shortly thereafter, they both left the beach and returned to their separate accommodation (the interaction).

[19] Dr Morrison and the Relevant Student were on the beach or in the water together for around 30 minutes. The physical contact that occurred in this half hour was the only physical contact between the two. The contact might fairly be described as intimate. Importantly, for the purpose of this case, they did not engage in sexual activity.

[20] And it must be emphasised that the contact both in the water and on the grassy area was wholly consensual and instigated by the Relevant Student.

Relationship prior to 21 November 2017

[21] Dr Morrison had not had a close or personal relationship with the Relevant Student prior to the evening of 21 November 2017. He saw the Relevant Student during lectures, tutorials and mathematics seminars as was the case with other students in the course. He had some interaction with her in relation to the organisation of and participation in a footrace run by the ANU in which both Dr Morrison and the Relevant Student participated.

[22] It is also important to note that by 15 November 2017, all grading of the students enrolled in Dr Morrison’s course had been completed, including him having marked and returned to students their final exam. Dr Morrison had also signed and submitted the final grade sheets for each student. In other words, at the time of the retreat, Dr Morrison did not have a teaching, supervision or administrative role with respect to the Relevant Student, except in so far as he was one of the organisers of the retreat.

Events after 21 November 2017

[23] Dr Morrison’s wife attended the retreat the following day. Dr Morrison informed her of what had happened with the Relevant Student.

[24] Dr Morrison had a conversation with the Relevant Student on 23 November, during which he told her that while he thought she was ‘a good person and attractive in many ways’, but his relationship with his wife was more important. He told the Relevant Student: “I don’t think this [a reference to what had occurred at the beach] is a good idea”. During the conversation, the Relevant Student asked Dr Morrison not to tell anyone about what had happened on 21 November.

[25] At her request, Dr Morrison and the Relevant Student met on 25 November in a park in Canberra. According to Dr Morrison, the Relevant Student expressed an interest in an ongoing relationship with him. Dr Morrison said it was apparent she was more interested in pursuing a relationship than he had anticipated, and he was concerned not to hurt her feelings. For this reason, he may not have been as clear as he should have been with her that he did not want to be in a relationship with her.
[26] The Relevant Student denied saying she wanted to pursue a relationship with Dr Morrison. I find it more likely than not the Relevant Student did express an interest in an ongoing relationship with Dr Morrison given that on several occasions she had called Dr Morrison and made efforts to meet him. I find that she was in fact keen to pursue a relationship with him.

[27] On about 9 December 2017 the Relevant Student called Dr Morrison on his mobile phone. He did not answer the call. She then sent a text message saying she had important information to tell him. Dr Morrison replied saying he did not wish to speak with her but if she wanted to pass on information, she could do so through his wife. He provided the Relevant Student with his wife’s mobile number.

[28] The Relevant Student then called Dr Morrison’s wife. During their conversation the Relevant Student said she felt she had ‘a special connection’ with Dr Morrison. It is far from clear why the Relevant Student would make such a comment to Dr Morrison’s wife. I assume it was to cause some trouble between them.

[29] Following this conversation, Dr Morrison’s wife asked him to avoid the Relevant Student because ‘it’s only going to make things worse for her’, being a reference to the Relevant Student’s obvious interest in Dr Morrison which was not going to be reciprocated.

[30] The Relevant Student continued to contact Dr Morrison after 9 December 2017. At her request he agreed to meet with her on 31 January 2018 on the ANU campus. During the meeting, Dr Morrison apologised to her for his lapse in judgment. He suggested it would be best if they did not have further personal contact, and that he wanted things to return to how they had been before the interaction. He told her he did not want her to be uncomfortable. The Relevant Student denied Dr Morrison ever apologised to her, however as set out earlier I prefer the evidence of Dr Morrison.

[31] Dr Morrison said the Relevant Student told him she wanted to ‘understand better what had happened’. He replied he found her attractive and she was a great person, and him not wanting to pursue a relationship with her was not a rejection of her. Instead, his priorities lay with his wife and family. The Relevant Student again reiterated she did not want anyone to know what had happened between them. Dr Morrison said he also wanted to keep the matter private.

[32] At this time, Dr Morrison was conducting Quantum Mathematics Seminars which students were free to attend on a voluntary basis.

[33] The Relevant Student attended these seminars from time to time. Dr Morrison asked her whether she wanted to continue receiving emails from him about these seminars. She said that she did. He continued to send her those emails and she continued to attend the seminars during 2018.

[34] The Relevant Student completed her studies at the ANU around June 2018. She spoke to the Dean of Students at the ANU in August 2019 and disclosed what had occurred with Dr Morrison at the retreat. She made a formal complaint a few months later.

[35] The ANU wrote to Dr Morrison on 1 November 2019, some 18 months after his last contact with the Relevant Student, requesting a meeting on 6 November 2019 to discuss a complaint. At that meeting he was given a letter advising that he was suspended pending an investigation into the complaint.

[36] On 12 November 2019 the ANU provided the details of the allegations against him about his interaction with the Relevant Student.

[37] Extensive correspondence then passed between the ANU and either Dr Morrison or his lawyers.

[38] On 16 January 2020 the ANU advised Dr Morrison that his employment was to be terminated. He lodged a ‘review of decision’ application in accordance with the terms of the relevant enterprise agreement. The decision to dismiss Dr Morrison was confirmed in late February 2020.

The New Witness

[39] It will be recalled that following the completion of the evidence in this matter, I permitted the ANU to call evidence from the New Witness. The matters raised by the New Witness was not a reason for Dr Morrison’s dismissal, as the events she described were not known to ANU at the time of the dismissal. Nevertheless, I decided to admit her evidence on the basis that it may relevant both to the dismissal and potentially any appropriate remedy.

[40] The New Witness and Dr Morrison met in early 2016 while scuba diving with the ANU scuba club. She was a student in a different faculty, so Dr Morrison had no academic role in relation to her studies.

[41] Dr Morrison, another male professor (Dr Schwich) and the New Witness went on a canyoning trip together on a weekend in April 2016. The trip was not organised by, nor was part of, any ANU sports club event. Towards the end of the day, the New Witness, Dr Morrison and Dr Schwich stopped at a river to have lunch and go for a swim. Dr Schwich gave the following evidence (in a witness statement) in relation to what happened:

“13 Both Scott and I went swimming naked. I do not recall anything unusual about the way in which Scott prepared for the swim or got in the water. In my experience, people here in Australia seem to be two ways about nude swimming, either not minding it at all, or avoiding it altogether. Being from Germany I have grown up in an environment where this is handled in a relaxed way, and so I do it here as long as people do not mind. I often go for swims where opportunities come up, and often that means I do not have beachwear with me. So that I have dry clothes afterwards, I often swim naked (where surrounds allow) and then dress in all-dry clothing straight after the swim. Strangers, and children deter me from naked swimming, but I did not consider the New Witness and Scott as strangers by the time of this trip.

14. My memory is that both Scott and I got in the water first to have a swim and that New Witness went swimming a little later, and a bit to the left of where we had started from, yet from the same big rock. I cannot recall whether New Witness was wearing her wetsuit or other swimwear, but to the best of my recollection she did not go swimming naked.

15. I do not recall what the period was between Scott coming out of the water and putting his clothes on; it might have been a few minutes. I’m pretty sure I would have put whatever I had left to wear (likely shorts, certainly not the wetsuit) on as soon as I got out of the water. From memory that was at a spot to the right of the big rock where we had all dropped our gear on. I don’t think I had a towel with me, and even if so, the entire contents of my backpack had been soaked during the abseil. It is likely I would have remained without shirt for a while longer to warm up and to give the shirt a bit more time to dry out.

16. Both Scott and New Witness would have seen me at least in speedos numerous times in the past in the context of the Scuba Club. With diving off the same boat, there isn’t much privacy. If I need to urinate on a diving trip I will not urinate in my wetsuit. Instead, I will pull down my wetsuit and urinate overboard. In my experience this is not unusual. Scuba Club members are used to seeing each other in minimal clothing, and in embarrassing situations such as throwing up overboard.

17. The amount of time that Scott spent unclothed or I spent topless after swimming to dry-off would not have been long because we had a substantial hike back to the car. It had been a long day, and we needed to get back before dark, plus we had the drive back to Canberra ahead of us. At that point I did not have a full understanding how long the hike back would be, so Scott would have been the one pushing on.

18. I recall that there was a substantial uphill hike, mostly on an established dirt road, to get back to the car. What was remarkable to me about this hike was that New Witness had some re-occurring leg cramps, so Scott and I took turns carrying her backpack to lighten her load. The cramps continued, and we had a few shorter stops on the way back to allow for some relief. Apart from this, I do not recall New Witness expressing discomfort on the trip.

19. Shortly after our canyoning trip Scott reached out to a few dive club members who are also known to be experienced and keen mountaineers, plus New Witness and myself, to see who was interested in another day of canyoning. This was in early April 2016, and although this never eventuated since people had other commitments and winter was setting in, all those addressed expressed interest, including New Witness.

20. Prior to reading New Witness’s witness statement I had personally considered our canyoning day as a great success and a lot of fun.

21. I have seen both New Witness and Scott numerous times since this trip over the years. Neither New Witness nor Scott have ever told me that they felt uncomfortable during that canyoning trip. New Witness has never mentioned feeling uncomfortable towards Scott and reading New Witness’s witness statement was a shock to me.”

[42] The New Witness gave a slightly different account of what occurred, however I prefer Dr Schwich’s evidence as an independent witness and who’s account closely matches that of Dr Morrison.

[43] The New Witness and Dr Morrison continued to communicate after the canyoning trip. On a few occasions she ‘house-sat’ for him when he and his family were away. He subsequently expressed a romantic interest in her. This included Dr Morrison making a comment via Facebook after she had house-sat for the first time to the effect that he was ‘thinking about her sleeping in his bed’. She did not tell him she thought the comment inappropriate, and she subsequently had dinner at his house with his family while picking up keys to house sit again.

[44] The New Student later advised Dr Morrison she was not interested in him in a romantic way and only wanted to be friends. His response was that he had ‘a bit of a crush’ on her but would ‘cancel that line of thought’. There is no suggestion he tried to pressure or coerce her in any way to become involved with him after that time.

The case for the ANU

[45] Dr Morrison was dismissed because ANU took the view that his conduct constituted serious misconduct, which it submitted was completely antithetical to his obligation an educator to maintain professional relationships with students and to discharge his role in ensuring the University’s duty of care to its students. Such a duty is discharged, it argued, in part by ensuring that the relationship between teacher and student remained a professional one given his position of influence and ability to assist and affect the Relevant Student’s academic career.

[46] The ANU described the interaction as follows:

“Dr Morrison engaged in highly inappropriate, unprofessional conduct by taking the [Relevant Student] to a secluded beach, alone at night, stripping naked in front of her and was thereafter sexually intimate with her”.

[47] In terms of who had initiated the interaction, the ANU referenced various parts of the cross examination of the Relevant Student and contended that she was confused by the questions which is why she had agreed she swam over to him. In any event, the ANU contended, it did not matter who had initiated the interaction because either way, Dr Morrison should not have engaged in it.

[48] The ANU contended that there was a consistent and continuing failure on Dr Morrison’s part to understand why his conduct was inappropriate.

[49] The ANU highlighted that Dr Morrison did not inform it of his ‘misconduct’ and did not take steps to ensure that the Relevant Student’s studies were not thereafter affected by his conduct. Instead of re-establishing appropriate professional boundaries, it argued, Dr Morrison involved his wife in his dealings with the Relevant Student who yelled at and threatened the Relevant Student. Further, rather than supporting the Relevant Student, he sought to preclude her from attending academic seminars and told her ‘to just keep away’.

[50] It submitted that Dr Morrison had confirmed in his evidence that:

a. he did not notify the University of his relationship with the Relevant Student, and he now accepted that he ought to have done so; and

b. he ‘mostly’ accepted that despite the Relevant Student expressing her concern to him that his conduct had been inappropriate, he did nothing to support her, such as suggesting support that was available within the University.

[51] The evidence established, in the ANU’s submission, that Dr Morrison’s relationship with the Relevant Student was not the only time he had sought to engage in a relationship with a student at the University. To this end, the ANU highlighted that Dr Morrison had stripped naked in front of the New Witness and sat naked in front of her while he ate his lunch, and sent her Facebook messages to the effect that he had a ‘bit of a crush’ on her and had thought about her sleeping in his bed, being a reference to when the New Witness had engaged in ‘house sitting’ when he and his family had been away.

[52] The ANU contended that his conduct had serious consequences for the Relevant Student who felt shut out of the Department and effectively did not pursue a PhD. It highlighted the evidence of the Relevant Student to the effect that after the interaction she did not feel comfortable or supported by Dr Morrison to continue to study at MSI.

[53] The ANU stated that Dr Morrison had not taken steps to ensure the professional relationship and boundaries were re-established by providing support for the Relevant Student, including arranging support for her from a female in the Department or referring her to the University counselling service.

[54] The ANU argued that Dr Morrison’s conduct toward the Relevant Student was not an isolated event, because of his interaction with the New Witness, who was in her first year at university when he took her on a canyoning trip and stripped naked in front of her, and thereafter sent her inappropriate Facebook messages and sought out a relationship with her.

[55] The ANU confirmed that it terminated Dr Morrison’s employment because of his dereliction from his duties and his demonstrable lack of insight and judgment when dealing with students, such judgment and insight being essential to his duties.

[56] It was also argued that his conduct had a deleterious effect on the ANU’s reputation.

[57] The ANU noted that the New Witness was made to feel uncomfortable by Dr Morrison not only because she was not interested in a relationship with him, but because he was older and was an ANU staff member.

The case for Dr Morrison

[58] Counsel submitted that this case, at its core, is about whether conduct in which Dr Morrison engaged in towards two young women ought to warrant the termination of his employment. Specifically, there is no dispute that the Relevant Student swam towards him, knowing he was naked, wrapped her legs around him and kissed him, to which he reciprocated. In relation to the New Witness, he had voiced feelings towards her in circumstances where they had been friends. The New Witness was not and would never be a student under his power and control.

[59] Counsel emphasised that this case is not and should not be about personal views on whether there is anything inherently wrong with a relationship between people where there is a large age gap (i.e., early 20s to mid-30s). Nor was it relevant that Dr Morrison and his wife had something akin to an open relationship (not a term used by Dr Morrison), having had slept with other people with the consent of the other during their marriage.

[60] Dr Morrison gave evidence that he was devastated by the situation. He acknowledged that his interactions with the Relevant Student were ‘poorly handled’. He said:

“I have put in a lot of work mentoring and encouraging many years of research students without any issues of any kind, and yet this does not seem to have been taken into account. I'm confident that my former research students would attest that I was uniformly supportive, respectful and encouraging in my interactions with them. I appreciate now that my enthusiasm for all students in the department in part led to this problem. I now believe that my enthusiasm and supportiveness while I was her lecture was interpreted by [Relevant Student], leaving her to feel it was directed particularly at her, and encouraging her to believe I wanted a romantic relationship with her. In addition I find it deeply upsetting that my interactions with [Relevant Student] indicate that I was a safety risk to anyone. In particular the intimate interaction I had with [Relevant Student] was consensual and on her terms, and there has been no suggestion otherwise of which I am aware. I am acutely aware that my foolishness in allowing anything to happen directly led to the emotional distress she experienced, and I am deeply regretful for this. Much of that distress appeared to me to arise when I expressed my unwillingness to continue any relationship with her after the events of 21 November 2017. I believe that my contribution to the Mathematical Sciences Institute was widely acknowledged and appreciated. My colleagues have been very supportive in the aftermath of that ANU’s decision, and it is my understanding that multiple colleagues have written letters in my support to both the ANU administration and to other universities with which I have been negotiating for another academic position …”

[61] Prior to his dismissal, Dr Morrison was in a ‘research only’ position, meaning he was not required to teach, but may be required to supervise honours or PhD students.

[62] In terms of the New Witness, Dr Morrison contended that there was no basis to compare his nude swim at the retreat with the canyoning trip with the New Witness and Dr Schwich, because he had asked the Relevant Student for her permission before he swam naked, and because he did not undress right in front of the New Witness as he was several meters away from her at the time. Dr Morrison gave evidence that there was never any intimacy with the New Witness. They had been friends for some time and had developed ‘a crush on her’, whereas he had no prior feelings for the Relevant Student prior to the interaction. Importantly, he said, he would never be in a position of power over the New Witnesses academic career, as she was studying in a different faculty.

Consideration

Protection from Unfair Dismissal

[63] There is no dispute and I am satisfied that Dr Morrison was dismissed and is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[64] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[65] There is no dispute that Dr Morrison was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[66] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[67] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd² as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[68] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.³

Valid reason - s.387(a)

[69] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”⁴ and should not be “capricious, fanciful, spiteful or prejudiced.”⁵ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁶

[70] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred⁷. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it⁸.

[71] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason⁹.

[72] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[73] It is well settled that the employer bears the onus of establishing the misconduct upon which it relies to demonstrate a valid reason for the dismissal.

[74] For the reasons that follow, I find that the evidence does not support a finding that there was a valid reason for Dr Morrison’s dismissal.

[75] It is necessary to consider this issue on two separate bases. The first is whether, as ANU alleges, Dr Morrison was in breach of an ANU policy and, if he was, whether any such contravention justified his dismissal.

[76] The second basis assumes that there has been no contravention of an ANU policy, but is whether Dr Morrison’s dismissal was justified because he engaged in conduct which was plainly inappropriate and antithetical to his role as a senior academic.

ANU policies

[77] I do not accept, as ANU would have it, that Dr Morrison breached any ANU policy. There is no prohibition on ANU staff engaging in a consensual relationship with a student. So much is clear in that the Conflict Policy expressly contemplates the existence of a ‘close personal relationship’ between a staff member and another staff member or student. When a ‘close personal relationship’ exists, the Conflict Policy requires that ‘one party should not be the direct supervisor of the other; and where there is a close personal relationship involving students, the staff member should not be involved in the supervision, progress, assessment, examination or grading of students with whom they have a close relationship. Notification of a close personal relationship should be made to a supervisor’.

[78] Dr Morrison did not formally notify anyone of the interaction with the Relevant Student. In my view, he was not required to do so because on any reasonable view, the interaction could not be characterised as a close personal relationship given the whole of the interaction lasted no more than 30 minutes. If I am wrong about this and he was required to notify a supervisor, this is not a breach of the Conflict Policy that could reasonably ground a valid reason for his dismissal. This is particularly where at the time of the interaction he was no longer, in a practical sense, her supervisor.

[79] The ANU argued that the Relevant Student was Dr Morrison’s student at the time of the incident. While I accept that the retreat was held just prior to the official end of the semester, Dr Morrison was no longer involved in her supervision, assessment etc. At the time of the retreat, Dr Morrison had finalised his role in determining her grades. He did not make any attempt to change her grades after the interaction, noting it would have been difficult for him to do so in any event. Further, while it might have been theoretically possible for him to have a supervisory role in relation to the Relevant Student had she enrolled in a subject he taught after the retreat, this did not happen.

[80] I accept that Dr Morrison was aware of his responsibilities under the relevant policies in that he had turned his mind to the fact that the Relevant Student had ceased being his student at the time of the retreat, and was unlikely to be his student again.

[81] I find that there was no breach of the Harassment Policy. There is no evidence to support a finding that the conduct (ie the interaction) was unwelcome. On the contrary, the interaction was fully consensual. Similarly, I find there was no breach of the Code, in large part for the same reasons there was no breach of the Conflict Policy.

[82] The ANU submitted that the Commission did not need to consider whether Dr Morrison’s conduct involved a breach of the University’s policies. However the ANU specifically identified breaches of the relevant policies as the reason for his suspension and the basis for its investigation of his conduct in its correspondence of 12 November 2019, and subsequently his dismissal.

[83] To the extent the ANU contend the dismissal was justified regardless of any policy breach because Dr Morrison engaged in conduct which was plainly inappropriate and antithetical to his role as a teacher, I disagree for the following reasons.

The retreat and the interaction

[84] The interaction was not premeditated. In large part, the interaction occurred when the Relevant Student went into the water in her underwear when she was fully aware that Dr Morrison was naked and she swam up to him and wrapped her legs around him then began kissing him. In her initial statement to the ANU, the Relevant Student was silent as to who initiated the interaction. While some of her answers in cross examination were inconsistent on this point, ultimately she conceded she initiated the interaction.

[85] Not only did the Relevant Student initiate the interaction, she made a conscious decision to follow Dr Morrison into the water no doubt to make some contact with him. If she was at all concerned about what was happening, she could have simply gone back to the others at the retreat.

[86] There is nothing in Dr Morrison’s behaviour that he had engaged in a sequence of events prior to the retreat designed to encourage the Relevant Student to enter into an intimate relationship with him. In particular, there is nothing in his behaviour which would have in some way made it difficult for the Relevant Student to leave the beach.

[87] There is no doubt in my mind that the interaction between the two was fully consensual. The Relevant Student was a woman in her early 20s. There is no basis to doubt that she knew what she was doing.

[88] Moreover, I do not accept the evidence of the Relevant Student that she was shocked that Dr Morrison stripped naked and that she felt very uncomfortable. This is quite inconsistent with what happened. To repeat, the Relevant Student swam up to Dr Morrison and initiated the interaction. It is also inconsistent with the fact that when they returned to the beach she took off all her clothes while kissing him.

[89] It is also likely that part of the reason Dr Morrison did not disclose the interaction to the ANU was because of the request by the Relevant Student not to tell anyone what had occurred.

Events after the retreat

[90] While it is clear that Dr Morrison’s handling of the situation with the Relevant Student after the interaction was clumsy to say the least, in particular by involving his wife, there is no evidence that Dr Morrison exploited his position in any way. His conduct demonstrates poor judgment. While his poor judgment might have resulted in some disciplinary action, it was not a valid reason for his dismissal.

[91] I accept that Dr Morrison took some steps to re-establish a professional relationship with the Relevant Student, and to ensure her wellbeing. For example, the Relevant Student’s evidence was that while still at the retreat, Dr Morrison had ‘checked in if I was OK’. I accept the evidence of Dr Morrison that their meeting on 31 January was for the purpose of re-establishing a professional boundary. He apologised to her about the interaction on more than one occasion. He was less than clear in his communication with her that he was not going to have an ongoing relationship with her. I accept that in part this was a result of not wanting to hurt her feelings.

[92] It is likely that Dr Morrison’s unwillingness to engage in a relationship with her upset her, culminating in her complaint to the University some 18 months after the interaction.

[93] I do not accept that Dr Morrison attempted to preclude the Relevant Student from attending his seminars when he told her to keep away from him. At this point he genuinely believed she had been pursuing him and he wanted that to come to an end. Any statement about ‘keeping away’ from him was not a reference to the seminar he was conducting.

The New Witness

[94] The New Witness complained to the ANU about Dr Morrison after reading an article in the ANU newspaper about these proceedings. She did not complain about Dr Schwich swimming naked. She acknowledged in cross examination that she had participated in a naked scuba dive during an ANU Scuba Club event (that did not include Dr Morrison), and she was used to seeing men on diving trips pull down their wetsuits to urinate over the side of the boat.

[95] It may be that the New Witness was uncomfortable that Dr Morrison had expressed an interest in entering into a relationship with her. But at no time did she tell him this. Likewise, Dr Schwich’s evidence, which I accept, was that the New Witnesses evidence had come as a shock to him because at no stage did she express any discomfort about Dr Morrison and Dr Schwich swimming naked. In fact after the canyoning trip she sent Dr Morrison an email saying, amongst other things, that she had ‘had a great time’.

[96] The New Witness and Dr Morrison continued to interact regularly after the canyoning trip, including for the purpose of making arrangements for her to ‘house-sit’ when he and his family were away, and she had had dinner at his house and played board games after dinner with him and his family. When the New Witness subsequently made it clear to Dr Morrison that she was not interested in a relationship with him, there is no evidence that he did anything other than respect her decision. He did not pressure or coerce her to change her mind.

[97] In my view, none of Dr Morrison’s interactions with the New Witness interfered with his obligations and duties to the University.

Other matters

[98] The ANU went to great lengths to emphasise that Dr Morrison did not take responsibility for his own actions. I do not accept that Dr Morrison consistently failed to understand why his conduct was inappropriate. His evidence set out earlier makes it clear he accepted he had been ‘foolish’ and was deeply regretful for the emotional distress the Relevant Student had experienced.

[99] Finally, I do not accept, as put by the ANU, that the evidence shows Dr Morrison was dishonest and untruthful during the investigation and review process. He answered the questions that were put to him openly and honestly.

[100] For these reasons, I am not satisfied there was a valid reason for Dr Morrison’s dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[101] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,¹⁰ in explicit terms¹¹ and in plain and clear terms.¹² In Crozier v Palazzo Corporation Pty Ltd¹³ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”14

[102] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.¹⁵ This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹⁶

[103] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Dr Morrison before his dismissal was effected.

[104] Dr Morrison contended that he was not afforded procedural fairness in part because the allegations were so poorly framed as to make it impossible to fairly engage with the process or provide a response. Further, not all of the factual matters relied upon for the decision were put to him for his response. Dr Morrison also contended that the decision maker was either biased against him in favour of the Relevant Student or exercised her duties with reckless disregard for whether the facts asserted by the Relevant Student were accurate or not.

[105] While I am satisfied that there is some basis for this criticism, I find that Dr Morrison was given sufficient information as to the reason for his dismissal and was provided with an opportunity to respond. This is evident from the extensive correspondence between the parties between November 2019 when the allegations were first put to Dr Morrison to the time of his dismissal in February 2020.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[106] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[107] Dr Morrison was not refused a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[108] A warning for the purposes of s.387(e) must clearly identify:

a. the areas of deficiency in the employee’s performance;

b. the assistance or training that might be provided;

c. the standards required; and

d. a reasonable timeframe within which the employee is required to meet such standards.¹⁷

[109] The warning must also ‘make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.’¹⁸

[110] This is a neutral consideration given the reason for the dismissal was not unsatisfactory performance.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[111] I am satisfied that the size of the ANU did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[112] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[113] I have taken account of the extensive submissions by the ANU as to why the dismissal was fair. I do not consider that these matters are sufficiently persuasive to warrant a finding that on balance the dismissal was fair.

Conclusion as to unfairness

[114] The following final written submissions of the Applicant sum up this matter well:

“166. … Both students and staff are responsible for their own actions. The fact is, the Applicant did not engage in unlawfully harassing or discriminatory conduct towards anyone and the fact of an age difference does not turn what occurred into anything other than failed romantic interests on the part of the [Relevant] Student towards the Applicant. The [Relevant] Student (and the New Witness for that matter) is a grown woman responsible for her own life and she must live with the decisions she made with regard to romantic interests she chose to pursue (or not). To make a ruling that the Applicant in this case was liable for how a student felt about having her romantic attentions ultimately rejected in one case, or having to tell him that if he was interested in anything beyond friendship she was not in another, would be to uphold disciplinary action not authorised by policies, his contract or the law. It is also essentially paternalistic behaviour towards women that subjugate them to social norms rather than the law or policy and their own free agency.”

[115] I am also satisfied based on the evidence of Dr Morrison that he is fully cognisant of the effect of his actions and there will be no repeat of this type of conduct. Were there to be further such conduct, Dr Morrison ought to expect to be dismissed as a result.

[116] Having weighed up all of the matters requiring consideration under s.387, I find that the dismissal of Dr Morrison was harsh, and as a result, unfair.

[117] I now turn to the appropriate remedy.

Remedy

[118] Having found that Dr Morrison was protected from unfair dismissal, and that his dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him. Dr Morrison seeks the remedy of reinstatement.

[119] I am not satisfied that there is any good reason not to reinstate Dr Morrison to his former position given it is the primary remedy for an unfair dismissal.

[120] The ANU argued strongly that reinstatement was not appropriate and asserted that it had lost trust and confidence in Dr Morrison. As Counsel for Dr Morrison correctly contended, the mere assertion of a loss of trust will be insufficient to avoid an order for reinstatement. There must be a rational basis for the perceived loss. The evidence clearly shows that many of Dr Morrison’s former colleagues had advocated for his reinstatement, and the Director of the MSI was open to the possibility of a lesser sanction than dismissal. The evidence is also clear that Dr Morrison had appropriately and successfully supervised many female students both before and after 21 November 2017. Two female students gave evidence that they had observed and been subject to respectful and appropriate relationships between Dr Morrison and his female students. Further, the evidence is clear that Dr Morrison’s strong work performance had been rewarded with a number of promotions during his employment with the ANU, and he was described by some colleagues as ‘a phenomenal colleague’ and an asset to the ANU.

[121] There is no doubt that the ANU has a duty to provide a safe environment for its staff and students. Despite the submissions of the ANU to the contrary, there is no evidence that Dr Morrison would pose a risk to the safety of others in the workplace. The evidence shows:

a. The interaction between the Relevant Student and Dr Morrison was consensual;

b. Dr Morrison accepted the New Student did not wish to pursue an intimate relationship with him when he made his feelings known to her, and in no way coerced or pressured her;

c. other female students confirming he was at all times supportive and professional; and

d. many of his colleagues who had observed his interactions with students over the years considered him supportive and professional.

[122] Accordingly, I find that the reinstatement of Dr Morrison is appropriate in all the circumstances.

[123] Dr Morrison’s reinstatement will be effective from Monday 7 March 2022.

[124] Section 391(2) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

a. the continuity of the Applicant’s employment;

b. the period of the Applicant’s continuous service with the employer or, if applicable, the associated entity.

[125] In all the circumstances, I consider it appropriate to make an order to maintain Dr Morrison’s continuity of employment and period of continuous service with the ANU. There is no reason not to do so.

[126] Section 391(3) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

[127] Section 391(4) of the Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

a. the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

b. the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[128] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.¹⁹ Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.²⁰

[129] I am satisfied that Dr Morrison has lost wages since his dismissal. His evidence in this regard was unchallenged. He is likely to have lost further wages in the time since the hearing.

[130] I am also satisfied that even though Dr Morrison’s conduct did not warrant his dismissal, it demonstrated a lack of judgment that should not be condoned.

[131] I consider that I should make an order causing the ANU to pay lost remuneration to Dr Morrison in the amount of six months’ remuneration. If there is a dispute about this amount, the parties have liberty to apply within 14 days from the date of this decision.

[132] Orders providing for reinstatement with continuity of employment and lost remuneration will be issued separately.

DEPUTY PRESIDENT

Appearances:

K Edwards of Counsel with R Richardson of BAL Lawyers for Scott Morrison.
E Raper of Counsel with K Weir of HWL Ebsworth Lawyers for Australian National University.

Hearing details:

2020.
November 25, 26, 27 (Canberra).
2021.
March 9 (By video);
April 20 (Canberra);
May 12 (By video).

Printed by authority of the Commonwealth Government Printer

<PR738351>

 1   [2021] FWC 1250.

2 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

3 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

5 Ibid.

6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

7 Edwards v Giudice (1999) 94 FCR 561.

8 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

9 Miller v University of New South Wales (2003) 132 FCR 147.

10 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

11 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

12 Previsic v Australian Quarantine Inspection Services Print Q3730.

13 (2000) 98 IR 137.

14 Ibid at 151.

15 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

16 RMIT v Asher (2010) 194 IR 1, 14-15.

17 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

18 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

19 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

20 See, eg, Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].