Fair Work Commission appeal by university on termination for sexual encounter with student

The Australian National University has been successful in its appeal against a first instance decision that it unfairly dismissed an academic who engaged in a consensual sexual encounter with a student and failed to disclose the relationship to the University.

Dr Morrison, who had been employed by the University as an Associate Professor in its Mathematical Sciences Institute (MSI), was dismissed by the University effective from 27 February 2020 for serious misconduct relating to him engaging in “consensual intimate contact of a sexual nature” with a student at the University (Student) and failing to disclose that relationship to the University. In her decision, the Deputy President found that there was no valid reason for Dr Morrison’s dismissal and that his dismissal was harsh and therefore unfair. The Deputy President ordered that Dr Morrison be reinstated to his former position, that his continuity of employment and period of continuous service be maintained, and that he paid six months’ pay on account of lost remuneration. The University contends in its appeal that the Deputy President erred in finding that there was no valid reason for the dismissal and that the dismissal was harsh, made a number of significant errors of fact, erred in ordering reinstatement, and failed to deal with the University’s submissions or failed to give adequate reasons for rejecting them.

The factual circumstances which led to Dr Morrison’s dismissal were as follows. From February 2014, the Student undertook a Bachelor of Philosophy course at the University. She commenced her Honours year in the degree in Semester 2 of 2017 and, as part of this, she enrolled in a mathematics course in which Dr Morrison was the lecturer. Dr Morrison’s role as lecturer in this course involved him marking assessment items and issuing final grades. Dr Morrison and the Student also came into personal contact with each other because the Student participated in a MSI running team which Dr Morrison was organising, and they exchanged mobile phone numbers in the course of this.

In November 2017, the MSI conducted a mathematics retreat at the University’s Coastal Campus at Kioloa on the southern coast of New South Wales. This was to be attended by a number of academics and invited students in the MSI. Dr Morrison was the coordinator or “Group Leader” of this retreat. The Student was invited to attend the retreat. At the time of the retreat, the Student had received her marks for each assessment item in the mathematics course taught by Dr Morrison, but had not yet received her final grades.

The retreat commenced on 20 November 2017. Dr Morrison, who was about 37 years old at the time, travelled to the Kioloa campus on 19 November 2017 with his children. His wife was due to travel separately to Kioloa on 22 November 2017. The Student, who was then 22 years old, travelled separately to Kioloa on 20 November 2017. Dr Morrison and the Student were accommodated in separate cabins on the Campus.

At about 9.00 pm on 21 November 2017, after the completion of the evening mathematics lecture, Dr Morrison and the Student walked down from the Campus facility to the nearby beach to see bioluminescence in the water. This occurred at Dr Morrison’s suggestion, although there was a factual contest as to whether Dr Morrison had invited others to go with him or only the Student. When they arrived at the beach, Dr Morrison stripped naked, and the Student stripped down to her underwear, and they both swam in the water. Dr Morrison and the Student began kissing while in the water. They then left the water, walked along the beach, and lay down together in a grassy area behind the beach where they continued kissing and touching each other. During this, the Student took off the remainder of her clothes. Dr Morrison asked the Student if she wanted to have oral sex, and she declined. They then got up, put their clothes back on, and returned to their respective cabins on the Campus. The episode on the beach lasted for about 30 minutes.

There was no further activity of a sexual nature between Dr Morrison and the Student, but there were a number of subsequent personal interactions between them about what had occurred. Dr Morrison’s wife eventually became involved. The chronology of these interactions and some other relevant events is as follows:

(a)?23 November 2017: There was one or perhaps two conversations between Dr Morrison and the Student about the beach incident while they were both still at the retreat on 23 November 2017. Prior to this, Dr Morrison had told his wife about what had happened, and she had left the Campus and returned to Canberra.

(b)?25 November 2017: After their return to Canberra, Dr Morrison and the Student exchanged text messages and then met on 25 November 2017 at O’Connor Ridge Nature Reserve and had a conversation.

(c)?30 November 2017: Final grades for Semester 2 2017 were released.

(d)?9 or 10 December 2017: After Dr Morrison had returned from a trip to America, he and the Student exchanged some text messages. The Student asked by text that they have a discussion but Dr Morrison said he would not talk to her and, instead, told her to speak to his wife and gave the Student his wife’s number. The Student says she called Dr Morrison’s wife on 9 December 2017 and they had a discussion, but the wife says this occurred on 10 December 2017.

(e)?31 January 2018: The Student texted Dr Morrison to request a further meeting to clear the air before the beginning of the semester. They met on 31 January 2018 and had a discussion in the University campus grounds.

(f)?1 February 2018: The Student received a phone call from Dr Morrison’s wife.

(g)?13 February 2018: Dr Morrison’s wife began working as a casual administrative assistant at the MSI. She subsequently had various interactions with the Student at the MSI.

(h)?June 2018: The Student completed her Bachelor of Philosophy degree with First Class Honours in Mathematics. She subsequently engaged in casual academic work for the University.

(i)?9, 11 November 2018: The Student attended a mathematics seminar at the MSI and afterwards attended drinks at which Dr Morrison was present. Both left separately by bicycle. Two days later, Dr Morrison sent the Student an email and she responded to it the same day.

(j)?Latter half of 2018: The Student spoke to her former honours supervisor, a Professor at the University, about the beach incident.

(k)?22 August 2019: The Student made a formal confidential disclosure about the beach incident to the acting Dean of Students at the University.

(l)?22 October 2019: The Student made her first written statement about the beach incident and subsequent events.

(m)?1 November 2019: The University began an investigation process.

(n)?16 January 2020: Dr Morrison was informed of the outcome of the investigation and advised that his employment will be terminated unless he lodged a review of the decision pursuant to the ANU Enterprise Agreement. Dr Morrison subsequently applied for a review.

(o)?27 February 2020: Dr Morrison was advised that his review had been unsuccessful and his employment was terminated.

Further evidence was led by the University from another former student that in early 2016, when she was 19 years old and in her first semester as a student, at the University, she met Dr Morrison through the ANU Scuba Club. In April 2016 the witness participated in a canyoning trip organised by Dr Morrison and another academic in the Bungonia National Park. The canyoning involved abseiling and hiking, at times through pools of water. The witness said that when the group stopped for lunch during the trip, Dr Morrison stripped naked to go swimming, and after leaving the water, remained naked for some time, which made the witness feel uncomfortable. The witness subsequently engaged in housesitting for Dr Morrison while he and his family were away in May and June 2016, and again in July 2016. She described a number of subsequent personal interactions between herself and Dr Morrison privately by way of Facebook Messenger during the course of 2016. The canyoning event, and comments made by Dr Morrison during subsequent interactions with the witness, caused her to form the view that Dr Morrison was interested in pursuing a sexual relationship with her. On 23 July 2016 the witness told Dr Morrison that she was not interested in being anything more than friends with him. Dr Morrison and the witness had further interactions, including through the ANU Scuba Club, but did not have any further one-on-one interactions. The witness disclosed these events to the University when she read media reports concerning Dr Morrison’s unfair dismissal proceedings against the University.

On appeal, the Full Bench found that the Deputy President erred in finding that there was no valid reason for the dismissal. Even on the findings of primary fact made by the Deputy President, which the Full Bench found were attended by significant error and omitted to address important aspects of the evidence, the conclusion that there was not a valid reason for the dismissal was not reasonably available. The Full Bench considered that, on any view, Dr Morrison’s conduct during the beach incident, his failure to disclose this to the University, his subsequent conduct in his dealings with the Student, and his lack of honesty in the investigation and review process, constituted a valid reason for his dismissal. As the Deputy President’s finding of a lack of valid reason was the sole basis for her conclusion that Dr Morrison’s dismissal was harsh and therefore unfair, the appeal was upheld and the decision quashed.

The Full Bench made a clear finding that there was a valid reason for the dismissal of Dr Morrison related to his conduct, but provided an opportunity for submissions by the parties on other considerations, including whether the dismissal was harsh in all the circumstances. The Full Bench also referred the matter to a further conciliation conference, to allow the parties opportunity to discuss resolution.