An associate professor of mathematics began his employment at a university in June 2012.
Kissing incident at the beach during a retreat
On 21 November 2017, the professor coordinated a mathematics academic retreat at a beachside campus. The professor was in his mid-30s and he had a female student who was in her 20s. The two of them went to beach at night to look at the bioluminescence in the water.
At the beach, the professor asked if the student objected to him undressing and she did not object. The professor undressed and swam naked. The student took off her clothes as well and swam after him in her underwear. She wrapped her legs around the professor and kissed him. The professor reciprocated.
They swam back, and on a grassy area in the beach, they kissed. The student took off her underwear and the professor asked if she wanted to have oral sex but she said no. They left the beach and returned to their separate rooms. They were in the water and on the beach for about 30 minutes. They did not engage in sexual activity. The contact between them was consensual.
The professor’s wife attended the retreat the following day and the professor informed his wife of the incident on the beach. Two days after the incident, the professor told the student that the incident on the beach was not a good idea. The student asked the professor not to tell anyone.
Student pursued the professor
The student called the professor several times. She asked to meet with him. On 25 November 2017, they met in a park, and she wanted to pursue a relationship with him. On 9 December 2017, the student called again, but he did not answer. The student sent a text message saying she had an important information. The professor responded that he did not wish to talk but if she wanted to pass along information, she can call his wife. The professor then gave the student his wife’s phone number.
The student then called the professor’s wife. The student told the wife that she felt a special connection with the professor. The wife later advised her husband to stay away from the student because the professor was not willing to reciprocate her interest in him. On 31 January 2018, the professor met with the student to apologise to her for his lapse in judgment and told her that it would be best if they discontinued any further personal contact. While he found her attractive, his priorities were with his wife and family.
Student attended seminars conducted by the professor. Later, the student voluntarily attended a seminar on Quantum Mathematics conducted by the professor. The student continued to attend the seminars.
Student filed a complaint 18 months after the incident, after she graduated. The student graduated in 2018 and in 2019, she spoke with the Dean of students in 2019 to disclose the beach incident in 2017. She filed a formal complaint.
Professor was terminated by the university
On 16 January 2020, he was informed that he was to be terminated. He asked for a review of the decision to dismiss him and the decision was confirmed in February 2020. He filed an unfair dismissal application.
University’s reasons for dismissal
Improper use of position. The professor was expected to perform his functions and discharge his duties with care and diligence and with good faith. He was not to improperly use his position to gain an advantage for himself or cause detriment to the university, the Commonwealth or any person.
Breach of trust and confidence reposed on him. His position as associate professor was a position of trust and they are expected to be honest in carrying out their duties. The trust reposed on him by the university is at risk when he failed to recognise and avoid conflicts of interest or situations where a perception of such a conflict of interest may arise.
Intimate relationship caused conflict of interest. Any personal or intimate relationship the professor has must not be with students he is supervising, assessing, or examining. And if the professor were to be intimately involved in a relationship with a student, he must advise his manager or supervisor who will then take steps to minimise any conflict of interest or perception of a conflict of interest.
Intimate relationship breached policies and values held by the university. As a senior academic, the professor was expected to exercise appropriate judgment in carrying out his duties and to act in accordance with the policies, principles, and values of the university.
Inappropriate and unprofessional conduct. The professor’s actions were highly inappropriate and unprofessional, but the professor consistently failed to understand why his conduct was inappropriate. The professor failed to inform his manager of the incident; failed to re-establish appropriate professional boundaries and prejudiced the student by telling her to keep away from the seminars he was conducting. The professor’s conduct had a deleterious effect on the university’s reputation.
Second complaint showed professor’s pattern of behaviour
During the trial, the university produced testimony from a new witness who had been a former student of the professor. The student testified that she had read in the papers about the trial and also filed a complaint against the professor. She alleged that she had gone on a canyoning trip with the professor and testified that she had felt uncomfortable when the professor undressed and swam naked, as well.
Witness contradicted the evidence regarding pattern of behaviour
The professor then presented the testimony of another male professor from Germany who went on the same canyoning trip. The German professor testified that in April 2016, the three of them went on a canyoning trip that was not organized by the university. They stopped at a river for lunch and a swim.
The German professor explained that he and the professor shed their clothes to go swimming naked. As he was from Germany, he relished a swim whenever he can even when he did not have any swimwear. He swam naked so that he will have dry clothes after the swim. He only swam naked when there were no strangers or children and if no one in his group objected to it.
All three of them belonged to the scuba club and were used to seeing each other in minimal clothing and in embarrassing situations where they urinated or vomited overboard. The only complaint made by the student that he remembered was that she suffered from leg cramps through the hike back from the river to the car after their swim and so her testimony at trial was a shock to him.
Questions to be determined by the Fair Work Commission
The evidence that had led to the dismissal was largely uncontested. Did the professor’s actions breach the policies of the university and warranted dismissal? Did the professor’s conduct with the two female students warrant his termination from employment?
If the professor’s conduct breached university policy, then his dismissal was justified. But if the professor’s conduct did not breach the university’s policies but acted inappropriately and against his role as an academic, his dismissal would still be justified.
Evidence does not demonstrate a valid reason for dismissal
There was no breach of university policy. The kissing on the beach was consensual. The university’s policy prohibits a “close personal relationship” between a staff member and either a fellow staff member or a student. In the event that a close personal relationship did exist, the professor should not be in a position of power over the other party such as supervision, assessment or examination or grading of a student or co-worker.
University policy dictated that the professor notify his supervisor of any close personal relationship and the professor failed to do so. However, the kiss on the beach cannot be considered a “close personal relationship” and at the time that the kiss occurred, the professor was no longer in any position of power over the student. Also, the student had asked the professor not to tell anyone about the incident.
There was no abuse of position or power. Despite the claims of the student, there was no relevant or convincing evidence that the professor harassed, coerced, or pressured the student to engage in a romantic relationship with him at any time. The kiss on the beach was fully consensual.
Prior to the incident on the beach, the professor did not have any close or personal relationship with the student. And at the time of the incident on the beach, the professor had already marked, completed, and returned to the students their final exam. The professor had also signed and submitted the final grade sheets. At that time, the professor no longer had any teaching, supervision, or administrative role with respect to the student.
The interaction on the beach was not premeditated. The student admitted initiating the kiss. She consciously followed the professor into the water and consciously called and texted the professor after the incident. There was no basis to doubt that she knew what she was doing.
The professor took steps to re-establish a professional relationship. After the incident and while she was no longer a student of the professor, the professor took steps to ensure her wellbeing. The student testified that the professor checked to see if she was okay.
The professor attempted to re-establish professional boundaries. The professor apologised to the student. He was less than clear about his not wanting to have an ongoing relationship with her but this was because he did not want to hurt her feelings. The student’s feelings were hurt by the professor’s unwillingness to engage in a relationship, and this spurred her to file a complaint 18 months after the incident at the beach.
The second complaint does not prove a pattern of behaviour. The Commission did not accept that she felt discomfort when the professor when he stripped naked for a swim in the river as she sent the professor an email after that trip telling him that she had a great time. She also house-sat for him and his family twice.
While she may have felt uncomfortable that the professor expressed an interest in having a relationship with her, she never told him that she felt his expression of interest as inappropriate. She did tell him that she was not interested and there is no evidence that the professor pursued her after she told hm no. There is no evidence that he pressured or coerced her in any way to be close or intimate with him. The new witness was studying in a different faculty and the professor was never in a position of power over her.
The professor was remorseful. The professor admitted that his actions had been foolish and that he was deeply regretful for the emotional distress caused to the student. His handling of the incident was clumsy and his poor judgment could have resulted in some disciplinary action but it was not a valid reason for dismissal.
Professor, reinstated to his former position
The Commission found no good reason not to reinstate the professor to his former position as it is the primary remedy for an unfair dismissal. It is not sufficient for the university to assert that it had lost its trust in the professor, there must be a rational basis for the loss of trust. There is evidence to show that the colleagues of the professor openly advocated for his reinstatement. His strong performance at work at his past ability to appropriately supervise female students before and after 21 November 2017 were clear. Further, there is no evidence that the professor poses a risk to the safety of others in the workplace. He was also awarded 6 months’ remuneration for lost pay.
Source:
Australian National University v Dr. Scott Morrison [2022] FWC 568 (15 March 2022) and Scott Morrison v Australian National University [2022] FWC 301 (21 February 2022)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2022/568.html
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/301.html
