1
Fair Work Act 2009
s.394—Unfair dismissal
Scott Morrison
v
Australian National University
(U2020/3161)
DEPUTY PRESIDENT DEAN SYDNEY, 12 MARCH 2021
Application to re-open case – application granted.
[1] Mr 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).
[2] His application was listed for hearing over multiple days in late November 2020. At
the conclusion of the evidence, Counsel for both Mr Morrison and the ANU requested an
extended time period in which to file their closing submissions, citing their unavailability over
December and part of January as the basis of the request. With some reluctance, their request
was granted.
[3] In early December 2020 the ANU’s student newspaper, the ANU Observer, printed an
article about the proceedings. As a result of that article, a former student of the ANU (the
New Witness) approached the ANU’s HR division about her interactions with Mr Morrison in
2016.
[4] The ANU now seeks leave pursuant to s.589 of the Act to lead new evidence in the
form of a statement from the New Witness and to rely upon that evidence in these
proceedings (the application to reopen). The application to reopen is opposed by Mr
Morrison.
[5] The application to reopen was made on 9 February 2021 and was the subject of a
hearing on 9 March 2021. Prior to the hearing on 9 March, the parties proposed a timetable
and directions for dealing with the application to reopen and all the outstanding matters
relating to Mr Morrison’s application for an unfair dismissal remedy, which was accepted by
the Commission.
[6] So as not to impact on the remainder of the timetable, I advised by the parties by email
yesterday that I would grant the ANU’s application to reopen the proceedings and allow the
evidence of the New Witness, and that my reasons for doing so would be provided today.
[7] These are my reasons.
[2021] FWC 1250
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 1250
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The case for the ANU
[8] The ANU submits that its application should be granted on the following basis:
a. The evidence of the New Witness was not available at the time of the hearing. The
New Witness did not approach the University to complain about Mr Morrison’s
conduct until December 2020, following the publication of an article in the ANU
Observer regarding Mr Morrison’s dismissal. Accordingly, and importantly, there was
no failure on its part to lead the new evidence during the hearing. The University has a
good explanation as to why the evidence was not led at that time of the hearing; the
evidence was not available to it.
b. It is in the interests of justice to allow ANU to re-open the proceedings. This is
because the new evidence is directly relevant to the question of whether the University
has a valid reason to dismiss Mr Morrison. It is also relevant to the question of whether
reinstatement is appropriate if the Commission finds that Mr Morrison was unfairly
dismissed.
c. The evidence is relevant as to whether ANU had a valid reason to dismiss Mr
Morrison because it demonstrates inappropriate conduct by a senior academic with
respect to an undergraduate student. It was also relevant because it was responsive to
Mr Morrison’s assertions that his interactions with the Relevant Student were ‘an
exceptional and isolated situation’ and was a ‘lapse in judgment that I will never
repeat’. The evidence is responsive to Mr Morrison’s evidence that he has an
‘established history of respectful relationships with female students and junior
faculty’.
d. Further, the evidence of the New Witness is directly relevant to whether Mr Morrison
should be reinstated because he has shown a remarkable lack of judgment in dealing
with an undergraduate student. His poor judgment with respect to the New Witness is
clearly relevant to whether the ANU can be confident he can be trusted to safely
interact with students.
e. The admission of the new evidence will not cause substantive prejudice to Mr
Morrison because it is of short compass and can be dealt with quickly. In particular,
the parties are yet to make their closing submissions and can therefore accommodate
this evidence. The time taken to hear the new evidence must be balanced against the
justice to be served by ensuring that the Commission has before it all available,
relevant evidence.
[9] In their written and oral submissions, the ANU expanded upon these contentions by
reference to the statement of the New Witness and other evidence in the proceedings.
The case for Mr Morrison
[10] Counsel for Mr Morrison submitted that the Commission should not exercise its
discretion to reopen the proceedings to allow the evidence of the New Witness.
[2021] FWC 1250
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[11] The basis for this submission included that:
a. The evidence of the New Witness was not relevant to a fact in issue. Her evidence, at
its highest, discloses a consensual friendship between Mr Morrison and the New
Witness, during which Mr Morrison apparently developed feelings for the New
Witness who happened to be a student at ANU.
b. Mr Morrison did not teach the New Witness and there was no prospect of him
teaching her as she was enrolled in another faculty. Accordingly, there was nothing for
him to declare in terms of any alleged conflict of interest.
c. There is no possibility that her evidence supports a finding that the ANU’s Code of
Conduct had been breached, as there is nothing in the Code which prevents lecturers
from engaging in intimate relationships with students outside their faculty.
d. Further, the evidence only proves the existence of a friendship, a discussion between
them of taking the friendship further, and that the relationship did not progress
because the New Witness told him she was not interested in him as anything other
than a friend.
e. There is no proper basis for the ANU to put any submission that the new evidence
comprises a breach of the law or of his contract of employment. Persons may have
their own views on the appropriateness or otherwise of relationships between adults
who are many years apart in age, but that is not a basis upon which to dismiss
someone.
f. The New Witness has recast her friendship with Mr Morrison in an entirely different
way having read the allegations against him in December 2020.
g. The ANU could have obtained the new evidence with reasonable diligence. There is
no evidence from the ANU as to what it did to identify any other witnesses prior to the
hearing, for example by undertaking an audit of its students to ensure nothing
untoward had happened.
h. The delay in making the application to reopen should weigh against granting the
application.
i. To the extent that the new evidence has possible relevance as tendency evidence and
credit, its probative value is so low as to require it to be rejected.
j. The evidence is not ‘extremely confined’ and the evidence in reply may require
evidence from Mr Morrison, his wife, and the other academic identified on the
canyoning trip.
Relevant legal principles
[12] Both parties in their written submissions set out the principles generally relevant to the
consideration of whether proceedings ought be reopened. I have not repeated their
submissions in this decision.
[2021] FWC 1250
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[13] It is not in contention that the power to reopen a case should be exercised sparingly,
having regard to the public interest in maintaining the finality of litigation.
[14] In deciding whether to reopen proceedings, the following considerations are relevant:
a. Is the evidence relevant, in that it engages in one or more of the issues requiring
determination?
b. Was the evidence able to be obtained with reasonable diligence for use during the
hearing?
c. Are the interests of justice served better by allowing or rejecting the evidence?
d. What is the likely prejudice to the party resisting the application?
e. Will a denial of procedural fairness likely arise if a party does not have an adequate
opportunity to argue its case?
f. Was the evidence not led because of inadvertence or mistake?
Consideration
[15] I consider the arguments for and against exercising my discretion to reopen these
proceedings to be finely balanced.
[16] In terms of evidence, no evidence currently has been filed by Mr Morrison in response
to the statement of the New Witness, there having been no requirement for him to do so
unless the application to reopen is granted. Further, the evidence of the New Witness is
untested. On the face of it, the new evidence engages in at least one of the issues I may need
to decide, that being whether reinstatement is practicable. Whether the new evidence is
actually relevant and has probative value is difficult to determine at this point in time, noting
it is not at all unusual that answers given by witnesses in cross examination can significantly
change the complexion of that person’s evidence.
[17] I am not satisfied that the ANU could have obtained the evidence of the New Witness
with reasonable diligence prior to the hearing. This would have effectively required it to
publicise the nature of the alleged conduct and reasons for Mr Morrison’s dismissal broadly. I
would not consider this to be a reasonable step to take, and no doubt not one that Mr Morrison
would want the ANU to take.
[18] Mr Morrison does not argue that there is prejudice to him in terms of the issues raised
by the evidence of the New Witness. The submissions on his behalf also note that his legal
costs are now increased significantly regardless of the outcome of the application to reopen.
[19] I consider that the ANU has had an adequate opportunity to present its case, and
accordingly a denial of procedural fairness does not arise in this matter.
[20] There is no suggestion that the evidence was not led because of inadvertence or
mistake.
[21] In terms of the significant delay attributable to the ANU in the Commission being able
to deal the application to reopen, as outlined earlier, the ANU were contacted by the New
Witness on 8 December 2020 and its HR division met with her on 15 December 2020. The
application to reopen was not made until 9 February 2021. The delay was attributed to
Christmas leave period closures and the unavailability of Counsel for the ANU.
[2021] FWC 1250
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[22] In a jurisdiction where unfair dismissal applications are to be dealt with quickly, a
delay of almost two months without even flagging the issue with Mr Morrison’s lawyers or
the Commission is highly unsatisfactory. However, given the delay both parties had sought
regarding the making of final submissions, I am not satisfied that this delay should weigh
against exercising my discretion in favour of reopening the proceedings.
[23] Having carefully weighed all these considerations, I am on balance satisfied that the
interests of justice are better served by allowing the new evidence. Accordingly, the
application to reopen the proceedings to allow the evidence of the New Witness is granted.
[24] The parties are aware of the directions previously issued to progress and finalise this
matter. No further adjournments or extensions will be entertained.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR727594
NORK COMMISSION De SEAL OF THE FAIL
