1
Fair Work Act 2009
s.604—Appeal of decision
Australian National University
v
Scott Morrison
(C2022/1533)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER BISSETT
SYDNEY, 30 MAY 2022
Appeal against decision [2022] FWC 301 of Deputy President Dean at Canberra on 21
February 2022 in matter number U2020/3161
Introduction
[1] The Australian National University (University) has lodged an appeal, for which
permission is required, against a decision issued by Deputy President Dean on 21 February
20221 in relation to an unfair dismissal application made by Dr Scott Morrison pursuant to s
394 of the Fair Work Act 2009 (FW Act). Dr Morrison, who had been employed by the
University as an Associate Professor in its Mathematical Sciences Institute (MSI),2 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.3 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.
[2] In brief outline, 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
1 [2022] FWC 301
2 Dr Morrison was promoted to the position of Professor on or about 1 January 2020; however, he never performed the duties
associated with this role.
3 PR738352
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DECISION
AUSTRALIA FairWork Commission
[2022] FWCFB 83
2
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.
[3] 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.
[4] 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.
[5] 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.
[6] 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.
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3
(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.
[7] Dr Morrison filed his unfair dismissal application on 17 March 2020. The parties filed
witness statements pursuant to directions made by the Deputy President, and the evidence in
relation to the application was heard by the Deputy President in Canberra on 25, 26 and 27
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November 2020. Both Dr Morrison and the Student were cross-examined during the hearing.
The matter was then set down for closing submissions on 9 March 2021.
[8] On 9 February 2021 the University applied to re-open the hearing and lead evidence
from a new witness (New Witness). The New Witness was a former student of the University
who had provided information to the University about Dr Morrison’s conduct towards her
subsequent to the previous hearing date. On 12 March 2021 the Deputy President issued a
decision4 in which the application to re-open the hearing was granted. A witness statement
made by the New Witness was filed, and she gave evidence in a further hearing on 20 April
2021.
[9] In brief summary, the New Witness’s evidence was 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 New 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 New 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 New Witness feel
uncomfortable. The New 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 New Witness, caused her to form the
view that Dr Morrison was interested in pursuing a sexual relationship with her. On 23 July
2016 the New Witness told Dr Morrison that she was not interested in being anything more
than friends with him. Dr Morrison and the New Witness had further interactions, including
through the ANU Scuba Club, but did not have any further one-on-one interactions. The New
Witness disclosed these events to the University when she read media reports concerning Dr
Morrison’s unfair dismissal proceedings against the University.
[10] The Deputy President received closing submissions on 12 May 2021 and then reserved
her decision. As earlier stated, the decision was delivered on 21 February 2022, over nine
months later.
The decision
[11] In the decision under appeal, the Deputy President identified at the outset that her
decision was that Dr Morrison was unfairly dismissed and that reinstatement was the
appropriate remedy.5 The Deputy President identified the “key” but not the only reasons for
this as being that what had been described as “sexually intimate” conduct was that “they kissed
on two occasions, the kissing was wholly consensual and was encouraged by the Relevant
Student”.6 The Deputy President also made a general credit finding in respect of Dr Morrison
and the Student as follows:
4 Scott Morrison v Australian National University [2021] FWC 1250
5 [2022] FWC 301 at [4]
6 Ibid
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5
“[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.”
[12] The Deputy President also said at the outset that the conduct which led to Dr Morrison’s
dismissal was largely not in contest and that what was in contest was whether his conduct
breached the relevant policies of the University such as to warrant his dismissal and whether,
in any event, he demonstrated a fundamental failure to exercise appropriate judgment as a senior
academic.7
[13] After setting out the relevant policies, being the Code of Conduct (Code), the Conflict
of Interest and Commitment Policy and Procedure (Conflict Policy) and the Prevention of
Discrimination, Harassment and Bullying Policy (Harassment Policy), the Deputy President
embarked upon narration of the facts and, in doing so, identified some of the conflicts in the
evidence and made findings about them. In relation to the beach incident itself on 21 November
2017, she first noted that there was a contest as to whether Dr Morrison asked the Student if
she objected to him taking off his clothes before he stripped naked. Dr Morrison’s evidence
was that he had asked the Student this before stripping and she had not objected, whereas the
Student said this had not happened.8 The Deputy President’s finding about this was:
“[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.”
[14] The Deputy President went on to describe the basic facts of the beach incident in a way
similar to the brief account we have earlier given, including that Dr Morrison and the Student
lay on a grassy area and continued to kiss, that the Student took off her remaining clothes, and
that Dr Morrison asked the Student if she wanted to have oral sex to which she said no.9 The
Deputy President found that “Dr Morrison did not press the matter any further” and said that
they both left the beach and returned to their separate accommodation shortly afterward.10 The
Deputy President then found:
“[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.
7 Ibid at [6]
8 Ibid at [16]
9 Ibid at [18]
10 Ibid
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[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.”
[15] The Deputy President next briefly discussed the relationship of Dr Morrison and the
Student before 21 November 2017. She found that there had been no “close or personal
relationship”,11 and said:
“[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.”
[16] The Deputy President then made some findings about the events which occurred after
21 November 2017 as follows:
(1) 23 November 2017: Dr Morrison told the Student that while he thought she was
“a good person and attractive in many ways”, but his relationship with his wife
was more important, and also said: “I don’t think this [a reference to what had
occurred at the beach] is a good idea”. The Student asked Dr Morrison not to
tell anyone about what had happened on 21 November 2017.12
(2) 25 November 2017: Dr Morrison and the Student met at a park at her request. It
was more likely than not that the Student expressed an interest in an ongoing
relationship with Dr Morrison given that on several occasions she had called
him and made efforts to meet him, and she was in fact keen to pursue a
relationship with him. It was apparent to Dr Morrison that 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.13
(3) 9 December 2017: On or about this date, the Student called Dr Morrison on his
mobile phone, but he did not answer the call. She sent him a text message saying
that she had important information to tell him, to which Dr Morrison replied that
he did not wish to speak to her but she could pass on information through his
wife. He provided the Student with his wife’s mobile phone number for this
purpose. The Student then called Dr Morrison’s wife and, during their
conversation said she felt “a special connection” with Dr Morrison. The Deputy
President assumed this was said for the purpose of causing trouble between Dr
Morrison and his wife. Following this, Dr Morrison’s wife asked him to avoid
the Student because “it’s only going to make things worse for her”, which was a
11 Ibid at [21]
12 Ibid at [24]
13 Ibid at [25]-[26]
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reference to the Student’s obvious interest in Dr Morrison which was not going
to be reciprocated.14
(4) 31 January 2018: Dr Morrison met with the Student at her request on the
University’s campus. Dr Morrison apologised for his lapse in judgment,
suggested that it would be best if they did not have further personal contact, and
said that he wanted things to return to how they had been before the interaction
and that he did not want her to be uncomfortable. Dr Morrison’s evidence was
preferred over that of the Student, who denied that Dr Morrison ever apologised
to her. The Student said that she wanted to understand better what had happened,
to which he replied that he found her attractive and she was a great person and
that him not wanting to pursue a relationship with her was not a rejection of her
but instead his priorities lay with his wife and family. The Student and Dr
Morrison agreed to keep the matter private. Dr Morrison asked her whether she
wanted to keep receiving emails from him about the voluntary Quantum
Mathematics Seminars, and she said that she did.15
[17] In relation to the New Witness, the Deputy President said that she preferred the evidence
of Dr Schwich, as an independent witness, over that of the New Witness about the canyoning
trip incident. In relation to the balance of the matters described in the evidence of the New
Witness, the Deputy President said:
“[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 Witness] 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.”
[18] After setting out the respective cases of the parties and finding that Dr Morrison had
been dismissed and was a person protected from unfair dismissal under s 382 of the FW Act,
the Deputy President addressed the matters requiring consideration under s 387. In relation to
the “valid reason” consideration required by s 387(a), the Deputy President set out the relevant
principles and then said that, for the reasons which followed, the evidence did not support a
finding that there was a valid reason for Dr Morrison’s dismissal.16 The Deputy President
identified two separate bases upon which to consider the “valid reason” issue: first, whether Dr
Morrison was in breach of a University policy and, if so, whether any such contravention
14 Ibid at [27]-[29]
15 Ibid at [30]-[33]
16 Ibid at [74]
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8
justified his dismissal; and, second, whether the dismissal was justified because he engaged in
conduct which was plainly inappropriate and antithetical to his role as a senior academic.17
[19] The Deputy President did not accept that Dr Morrison breached any University policy.18
In this respect, the Deputy President found that:
there was no prohibition on University staff engaging in a consensual relationship with
a student, since the Conflict Policy expressly contemplated the existence of a “close
personal relationship” between a staff member and a student and required the staff
member not to be involved in the supervision, progress, assessment, examination or
grading of a student with whom they have a close relationship and to notify their
supervisor of the relationship;19
Dr Morrison was not required to notify anyone of the interaction with the Student
because, on any reasonable view, it could not be characterised as a close personal
relationship because the whole of the interaction lasted no more than 30 minutes;20
alternatively, if Dr Morrison was required to notify anyone of the interaction, this was
not a breach of the Conflict Policy that could reasonably ground a valid reason for
dismissal, particularly as he was not in a practical sense the Student’s supervisor at the
time of the interaction since he had finalised his role in determining her grades and did
not make any attempt to change her grades after the retreat;21
there was no breach of the Harassment Policy, since there was no evidence that Dr
Morrison’s conduct was unwelcome and the interaction was fully consensual;22 and
there was no breach of the Code, largely for the same reasons that there was no breach
of the Conflict Policy.23
[20] The Deputy President also rejected the University’s contention that Dr Morrison
engaged in conduct which was plainly inappropriate and antithetical to his role as a teacher.24
In this respect, the Deputy President found in relation to the beach incident that:
the interaction was not premeditated;25
17 Ibid at [75]-[76]
18 Ibid at [77]
19 Ibid at [77]
20 Ibid at [78]
21 Ibid at [78]-[79]
22 Ibid at [81]
23 Ibid at [81]
24 Ibid at [83]
25 Ibid at [84]
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in large part, the interaction occurred when the 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;26
not only did the Student initiate the interaction, she made a conscious decision to follow
Dr Morrison into the water “no doubt to make some contact with him”, when if she was
concerned about what was happening, she could simply have returned to the Campus;27
there was nothing in Dr Morrison’s behaviour to indicate that he had engaged in a
sequence of events prior to the retreat designed to encourage the Student to enter into
an intimate relationship with him, or which would have made it difficult for her to leave
the beach;28
there was no doubt that the interaction was fully consensual and the Student knew what
she was doing;29
the evidence of the Student that she was shocked and felt uncomfortable by Dr Morrison
stripping naked was not accepted;30 and
it was likely that the reason Dr Morrison did not disclose the interaction to the
University was because of the request by the Student not to tell anyone what had
occurred.31
[21] In relation to events after the retreat, the Deputy President said:
“[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.
26 Ibid at [84]
27 Ibid at [85]
28 Ibid at [86]
29 Ibid at [87]
30 Ibid at [88]
31 Ibid at [89]
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[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.”
[22] The Deputy President also did not accept that Dr Morrison attempted to preclude the
Student from attending his seminars when he told her to keep away from him, finding instead
that he genuinely believed that she had been pursuing him and he wanted that to come to an
end.32
[23] In relation to the New Witness, the Deputy President noted that she complained to the
University after reading a newspaper article about the proceedings, did not complain about Dr
Schwich swimming naked, and acknowledged in cross-examination that she had participated in
a naked scuba dive during an ANU Scuba Club event and that she was used to seeing men on
diving trips pull down their wetsuits to urinate over the side of the boat.33 The Deputy President
said that “[i]t may be that the New Witness was uncomfortable that Dr Morrison had expressed
an interest in entering into a relationship with her … [b]ut at no time did she tell him this”.34
The Deputy President found in relation to their interactions after the canyoning trip that when
the New Witness made it clear to Dr Morrison that she was not interested in a relationship with
him, there was no evidence that he did anything other than respect her decision and he did not
pressure or coerce her to change her mind.35
[24] Finally, in relation to the valid reason issue, the Deputy President did not accept that Dr
Morrison consistently failed to understand why his conduct was inappropriate. The Deputy
President considered that Dr Morrison’s evidence showed that he accepted that he had been
“foolish” and was deeply regretful for the emotional distress the Student had experienced.36
The Deputy President also did not accept that the evidence showed that Dr Morrison was
dishonest and untruthful during the University’s investigation and review process, and instead
found that he had answered the questions that were put to him openly and honestly.37
[25] It is not necessary to recount in any detail the Deputy President’s findings and reasoning
concerning the consideration in paragraphs (b)-(g) of s 387 since these were not challenged in
the appeal grounds. It is sufficient to note that the Deputy President found that Dr Morrison was
given sufficient information as to the reason for his dismissal and provided with an opportunity
to respond, was not refused a support person, and that the size of the University did not impact
on the procedures followed by it in effecting the dismissal.38 In relation to s 387(h), the Deputy
President simply said:
“[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.”
32 Ibid at [93]
33 Ibid at [94]
34 Ibid at [95]
35 Ibid at [96]
36 Ibid at [98]
37 Ibid at [99]
38 Ibid at [101]-[111]
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[26] In her final conclusion as to unfairness, the Deputy President accepted a submission
made on behalf of Dr Morrison to the effect that he did not engage in unlawfully harassing or
discriminatory conduct, the fact of an age difference did not turn what occurred into anything
other than failed romantic interests on the part of the Student towards Dr Morrison, and the
Student was a grown woman responsible for her own life who must live with the decisions she
made with regard to romantic interests she chose to pursue, or not.39 The Deputy President also
said:
“[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.”
[27] The Deputy President concluded by saying that, having weighed up all of the matters
requiring consideration under s 387, she found that Dr Morrison’s dismissal “was harsh, and as
a result, unfair”.40 The Deputy President then turned to the question of remedy, and stated that
she was 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”.41 The Deputy President did not
accept that there was a rational basis for the University’s asserted loss of trust and confidence
in Dr Morrison. In this regard the Deputy President referred to evidence which showed that
many of Dr Morrison’s colleagues had advocated for his reinstatement, the Director of the MSI
was open to the possibility of a lesser sanction than dismissal, Dr Morrison had appropriately
and successfully supervised many female students both before and after 21 November 2017,
and Dr Morrison’s work performance had been recognised as strong.42 The Deputy President
also found that there was no evidence that Dr Morrison would pose a risk to the safety of others
in the workplace, since the evidence showed that the interaction between the Student and Dr
Morrison was consensual, Dr Morrison accepted that the New Student did not wish to pursue
and intimate relationship with him and in no way coerced or pressured her, other female
students confirmed he was at all times supportive or professional, and many of his colleagues
who had observed his interactions with students over the years considered him supportive and
professional.43 Reinstatement, together with maintenance of the continuity of employment and
the period of continuous service, was therefore considered appropriate in all the
circumstances.44
[28] Finally, the Deputy President gave consideration as to whether an order should be made
pursuant to s 391(4) of the FW Act for a payment to be made to Dr Morrison on account of
remuneration lost because of the dismissal. The Deputy President found that Dr Morrison had
lost wages since his dismissal, and was likely to have lost further wages in the time since his
hearing. However, the Deputy President also found that she was satisfied that “even though Dr
Morrison’s conduct did not warrant his dismissal, it demonstrated a lack of judgment that
39 Ibid at [114]
40 Ibid at [116]
41 Ibid at [119]
42 Ibid at [120]
43 Ibid at [121]
44 Ibid at [122]-[125]
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12
should not be condoned”, and determined that an order requiring the payment of six months’
remuneration should be made.45
Appeal submissions
The University
[29] The University’s primary submission was that the Deputy President erred in concluding,
in her consideration under s 387(a), that the evidence did not support a finding that there was a
valid reason for dismissal and, in her consideration, made a number of significant errors of fact.
Seven specific submissions were advanced in this respect:
(1) It was erroneous not to find a valid reason for dismissal having regard to the
totality of Dr Morrison’s conduct, which was not confined to the beach incident
and included that he was an Associate Professor, failed to take steps to maintain
or re-establish professional boundaries between him and the Student, and failed
to notify the University of the intimate contact between them and the events
thereafter. The Deputy President made a significant error of fact in finding that
Dr Morrison did not have a teaching, supervision or administrative role with
respect to the Student given that:
(a) Dr Morrison remained the Student’s lecturer at the time of the Kioloa
retreat, which took place before the official conclusion of the semester,
before final grades had been distributed and before the Student knew her
marks;
(b) the Student was only halfway through her Honours year, and there was
a possibility that Dr Morrison could be directly involved in the
assessment of her Honours grades including as a potential examiner of
her thesis; and
(c) Dr Morrison was the Higher Degree Research (HDR) convenor for the
MSI, which meant (as he conceded in cross-examination) that: he always
had the capacity to affect the experience of a student and their capacity
to learn; he had a significant ability to assist the Student in the future in
terms of professional guidance and support; Honours students from time
to time sought his guidance and assistance; he had the capacity to
introduce the Student to other students, researchers and professors in the
field; he had the capacity to invite students to become known by inviting
them to speak at the Quantum Mathematics Seminar; he had the capacity
to assist the Student by supporting her in applications to undertake
courses at another university; and he was required to ensure that students
were not placed in a position where their progress through the University
and their career prospects were limited by reason of a relationship with
a staff member;
45 Ibid at [129] – [131]
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(2) It was erroneous not to find that there was a valid reason for dismissal in
circumstances where Dr Morrison engaged in the conduct at the retreat and
where that conduct was initiated by him. Contrary to the Deputy President’s
finding, the Student did not concede that she initiated the interaction, and Dr
Morrison admitted in cross-examination that both of them had a role in initiating
the conduct. The initiation of the conduct occurred when Dr Morrison asked the
Student to accompany him alone to a secluded beach at night and stripped naked
in front of her. The Deputy President made a significant error of fact when she
found that Dr Morrison asked for the Student’s permission before stripping
naked, when the evidence of the New Witness was that he had also stripped
naked in front of her without first seeking her permission. In any event, it did
not matter who initiated the conduct, since Dr Morrison as a senior academic
should not have engaged in the conduct and should have stopped it rather than
exploiting the opportunity for intimate contact. On any view this conduct was
inappropriate and constituted a valid reason for dismissal, and the Deputy
President erred in giving weight to Dr Morrison’s initiation argument.
(3) It was a serious dereliction of Dr Morrison’s duties to involve his wife in the
conduct and fail to protect the Student from subsequent threats made by his wife.
The Deputy President failed to refer to the phone call made to the student by the
wife on 1 February 2018, or to admissions made by Dr Morrison in cross-
examination about him involving his wife in the matter knowing that she was
seeking employment in the MSI. These matters were centrally relevant to
University’s case and were not considered. The Deputy President also, relatedly,
erred in finding that Dr Morrison had taken steps to ensure the “wellbeing” of
the Student.
(4) The Deputy President erred in failing to find that Dr Morrison sought to exclude
the Student from participating in academic seminars in his email of 11
November 2018 when he said: “I’d appreciate it if you could try to just keep
away (particularly, I’d like to be able to run my seminar without being stressed
about this)”. Dr Morrison was dishonest about this in the investigation process.
(5) The Deputy President erred in finding that Dr Morrison did not breach the Code
or the Conflict Policy on the basis that he was not in a “close personal
relationship” with the Student. Dr Morrison’s conduct was in contravention of
multiple provisions of the Code and the Conflict Policy, including several
provisions which were relied upon by the University below but not addressed in
the decision. The Deputy President failed to engage with the University’s
submission that Dr Morrison’s breaches of the policies included not just his
failure to notify a supervisor of his conduct but also his failure to maintain a
professional relationship with the Student and his dereliction of his duty to act
with diligence.
(6) The Deputy President erred in finding that Dr Morrison was not dishonest and
untruthful during the investigation process, and this was a significant error of
fact. He did not disclose during the investigation that he had offered the Student
[2022] FWCFB 83
14
oral sex, had discussed having sex with his wife with the Student, or that he had
told the Student to “keep away”. A failure to provide a frank and truthful account
of what occurred may in and of itself justify dismissal. The Deputy President
failed to address the University’s submissions on these matters.
(7) The Deputy President erred in finding that the Student complained about the
Respondent because she was upset at his unwillingness to engage in a
relationship, where there was no evidentiary basis for such a finding and this
was not put to the Student during the proceedings.
[30] The University also submitted that the Deputy President erred in finding that the
dismissal was harsh and, as a result unfair, despite holding that Dr Morrison was an Associate
Professor, engaged in the conduct at the retreat and thereafter and, in doing so, demonstrated a
“lack of judgment that should not be condoned”. Instead, the Deputy President placed excessive
and, indeed, decisive weight on the consensual nature of the conduct. The Deputy President
also should have found that the dismissal was not unfair in circumstances where she found that
Dr Morrison had engaged in the conduct in relation to the New Witness concerning stripping
naked during the canyoning trip and his later interactions with her. The Deputy President made
significant errors of fact when she found that Dr Morrison did not pressure or coerce the New
Witness into becoming involved in a relationship with him, and failed to find or give adequate
weight to that fact that the New Witness was 19 years old at the time, in her first semester at
the University, and Dr Morrison was a senior academic at the University. The Deputy President
also failed to give consideration to the submission that the dismissal of Dr Morrison was not
harsh given that the evidence of the New Witness demonstrated that his conduct with the
Student was not the first time he had sought to engage in a relationship with a student at the
University.
[31] The University contended that a fair review of the Deputy President’s reasons reveals
that she failed to give genuine and realistic consideration to the matters she was called upon to
consider, and erred by failing to deal with, or failing to provide adequate reasons for the
rejection of, submissions centrally relevant to the University’s case. This constituted an error
of law because it resulted in a denial of procedural fairness.
[32] In relation to the Deputy President’s decision to grant the remedy of reinstatement, the
University submitted that the Deputy President failed to provide adequate reasons, failed to
refer or have regard to the evidence of the University’s witnesses concerning the University’s
loss of trust and confidence in Dr Morrison, and erroneously focused on statements made by
supporters of Dr Morrison. The Deputy President should have given primacy to the University’s
obligation to discharge its duty of care towards students by ensuring that the relationship
between academics and students is a professional one, including in circumstances where Dr
Morrison held a position of influence as a senior academic and where, as HDR convenor, he
had the ability to affect the Student’s academic career. The University submitted that
reinstatement was also not appropriate by reason of the deleterious effect conduct of the type
engaged in by Dr Morrison has on the University’s reputation, including in circumstances where
it is of fundamental importance that relationships between academic staff and students are
professional. Finally, the University submitted that there was no evidence to support the finding
that Dr Morrison had “lost wages” since his dismissal.
[2022] FWCFB 83
15
[33] The University submitted that it was in the public interest for permission to appeal to be
granted because the decision was attended by error, including jurisdictional error, and the
appeal raises issues of important and general application in connection with the operation of
the University and other academic institutions with respect to sexual (mis)conduct between
academics and students. It was also submitted that the Deputy President’s reasons either
demonstrate a misunderstanding of the evidence or the applicable law, and the decision
manifests an injustice because the Deputy President failed to give any or adequate reasons for
rejecting the University’s submissions.
Dr Morrison
[34] Dr Morrison submitted in the first instance that permission to appeal should not be
granted because there was no disharmony with other decisions of the Commission concerning
academic misconduct because they were decided on different facts, and that the University’s
contention that there was some form of injustice because of an insufficiency of reasons should
be rejected since the reasons given comfortably met the standard required by the law. It was
further submitted that no question of serious importance or general application arises in
reconsidering the respective reliability of Dr Morrison and the Student’s accounts of the beach
incident and subsequent events, and the idiosyncratic facts as found make this an inappropriate
vehicle for an articulation of any general principles on the responsibilities of academics.
[35] In relation to the merits of the appeal, Dr Morrison referred to the principles applicable
to an appeal under s 604 of the FW Act, including that the appellant carries the “heavy burden”
of showing an error of the kind described in House v The King.46 Dr Morrison also submitted
that whether there has been a mistake as to the facts on a rehearing, the Full Bench must observe
the “natural limitations” that exist in a case of a hearing conducted wholly or substantially on
the record. This includes the disadvantage that the Full Bench has when compared with the
Deputy President in respect of the evaluation of the witness’ credibility and of the “feeling” of
the case which the Full Bench, reading the transcript, cannot fully share, and the Full Bench
will not have the opportunity, enjoyed by the Deputy President, of receiving and considering
the entirety of the evidence and reflecting upon that evidence and drawing conclusions from it
over a longer interval. It was submitted that the determinative findings of fact made by the
Deputy President were based on her assessment of the credit of Dr Morrison and the Student,
and error would not be found in those findings unless they are demonstrated to be wrong by
incontrovertible facts or uncontested testimony or they are glaringly improbable or contrary to
compelling inferences.
[36] In relation to the Deputy President’s consideration of whether there was a valid reason
for dismissal, Dr Morrison submitted that this involved the making of an evaluative assessment
in the nature of the exercise of a discretion, and the University had not pointed to any error of
law or of statutory construction or in the application of legal principle. Insofar as the University
allege errors of fact, the appellate restraint to which the University had referred was required.
It was submitted that the only suggestion made by the University of an error of law or principle
focused on the “power” enjoyed by a senior academic over a student, but there was nothing in
the findings of fact of the Deputy President that could conceivably support a conclusion that Dr
Morrison abused that power, and the University had not articulated a case, consistent with the
46 [1936] HCA 40, 55 CLR 499
[2022] FWCFB 83
16
findings of fact made by the Deputy President, that Dr Morrison exercised any such power in a
manner that would breach the University’s duty to ensure that appropriate professional
boundaries exist between academics and students. In relation to the beach incident, the
University had not identified anything which Dr Morrison did to result in the University
breaching any duty to the Student to establish and maintain professional boundaries. Dr
Morrison further submitted in this regard that the intimate contact occurred during a 30 minute
window, was not premediated, was instigated and encouraged by the Student and occurred in
circumstances where the Student knew what she was doing. As for what happened after the
beach, it was submitted that the contest at trial was whether Dr Morrison had declined any
further intimate contact and had taken appropriate steps to limit and avoid further personal
contact - and to ensure that she, and not he, was the one who determined the scope of any
continuing professional contact (Dr Morrison’s case); or whether Dr Morrison had continued
to pursue an inappropriate personal and sexual relationship with the Relevant Student (the
University’s case). Once the Deputy President resolved that dispute in favour of Dr Morrison,
while correctly observing that the way in which he had gone about it was clumsy and
demonstrated poor judgement, any contention of an abuse of power or position by Dr Morrison
sufficient to constitute a valid reason for dismissal must necessarily have failed.
[37] In relation to the correct approach in determining whether there exists a valid conduct-
based reason for dismissal under s 387(a), Dr Morrison submitted that the required assessment
entails a consideration of the nature of the conduct in the full context in which it occurred, that
attention must be given to matters which mitigate the seriousness of the conduct, and that part
of the assessment is whether the penalty of dismissal was proportionate to the reason. In this
last respect, it was submitted, conduct that might warrant disciplinary action does not
necessarily warrant dismissal, conduct has to be sufficiently serious to justify dismissal, and
trivial misdemeanours do not warrant dismissal. The factual findings made by the Deputy
President well supported a conclusion that there was no valid reason for the dismissal, and the
University did not point to any specific policy that expressly prohibited the interaction between
Dr Morrison and the Student which occurred on the beach. In fact, it was submitted, interactions
of the intimate kind engaged in by Dr Morrison and the Student were expressly permitted by
the Conflict Policy, which required disclosure of, rather than imposing a prohibition against,
close personal, or “intimate relationships” between teachers and students. While the Deputy
President found that Dr Morrison’s conduct following the incident was clumsy and
demonstrated poor judgment and might have resulted in some disciplinary action, it was
submitted that the conduct was simply not sufficient to rise to the level of valid reason.
[38] In relation to the University’s contention that the Deputy President erred in finding that
Dr Morrison had no specific role with respect to the Student that enlivened the Conflict Policy,
it was submitted that the finding was correct in that:
Dr Morrison was not the Student’s lecturer at the time of the retreat because Semester
2 had ended on 27 October 2017;
Dr Morrison had submitted his signed grade sheet on 15 November 2017 and the Student
had already received her raw marks;
[2022] FWCFB 83
17
there was no realistic prospect that Dr Morrison would become involved in supervising
or grading the Student’s Honours thesis since it concerned a topic wholly outside Dr
Morrison’s experience;
Dr Morrison had a role as HDR convenor, but at the time of the retreat the Student was
an undergraduate and had not applied to undertake any higher degree;
the matters now relied upon by the University did not form part of its case concerning
valid reason below;
the Deputy President’s findings as to what occurred after the beach incident are
inconsistent with a case that Dr Morrison did not re-establish professional boundaries;
and
the Deputy President was alive to the contention that, as a consequence of Dr Morrison’s
conduct, the Student felt shut out and did not pursue a PhD, but balanced this against
other considerations.
[39] In relation to other errors fact alleged by the University, Dr Morrison submitted that:
it was not open in the appeal to reconsider the Deputy President’s findings as to what
happened on the beach, since they were based on the evidence of Dr Morrison and the
Student and were resolved in accordance with the Deputy President’s findings on credit;
the University’s allegation of error based on the evidence of the New Witness is perverse
because there is no explanation of the rational basis for the suggestion that the
circumstances in which Dr Morrison took off his clothes (together with Dr Schwich)
during the canyoning trip made any particular aspect of the beach incident more or less
likely;
the Deputy President found that there was no premeditation in relation to the beach
incident on the part of Dr Morrison, and did not make a finding that Dr Morrison invited
the Student only to the beach;
as to the criticism of Dr Morrison having continued the physical contact after having
left the water, it was the Student who took off all her clothes at that point when there
was no difficulty in her simply leaving the beach;
the University’s submission seeking a reconsideration of the findings on what happened
after the beach incident must be assessed against the findings concerning the Student
seeking to pursue a relationship with Dr Morrison and seeking contact with him;
in relation to the suggested failure by Dr Morrison to protect the Student from his wife,
the evidence was unambiguous that it was the Student who established the contact, that
Dr Morrison knew nothing of the subsequent call from his wife, and that there was no
evidence that the wife made any threat at all;
[2022] FWCFB 83
18
the Student admitted in cross-examination that she had misled the University when she
originally said that Dr Morrison’s wife somehow obtained her number and called her
out of the blue;
the criticism of Dr Morrison failing to obtain support for the Student must be considered
in the context that the Student made plain to him that she did not wish him to raise the
beach incident with anyone;
the Deputy President’s finding that Dr Morrison did not intend to exclude the Student
from participating in academic seminars by his email of 11 November 2018 was
supported by the evidence that the Student followed Dr Morrison home after the seminar
on 9 November 2018;
in relation to the University’s submissions concerning dishonesty during the
investigation, there was no process of questions and answers during that investigation,
and Dr Morrison gave a truthful response to the allegations letter sent by the University
to which he was not required to give a response; and
there was no requirement to put the proposition in paragraph [92] of the decision,
namely that Dr Morrison’s unwillingness to engage in a relationship with the Student
her upset her and culminated in her complaint to the University some 18 months after
the interaction, in circumstances where the Student’s evidence that Dr Morrison had
sought and she had refused a relationship was rejected.
[40] As to the Deputy President’s decision that the dismissal was harsh, it was submitted that
this was not so unreasonable that no reasonable authority could have arrived at it and was
supported by the facts as found by the Deputy President. Consent was treated as important but
not decisive as asserted by the University. As to the evidence of the New Witness, it was not
open to the University to challenge the acceptance by the Deputy President of Dr Schwich’s
over that of the New Witness in circumstances where he was not cross-examined.
[41] In relation to the contention of an inadequacy of reasons, Dr Morrison submitted that a
judge is not obliged to spell out every detail of the process of reasoning to a finding, but it is
essential that he or she expose the reasons for resolving a point critical to the contest between
the parties. The Deputy President expressed her reasons for her conclusion concerning the
fairness of the dismissal, recorded that she had considered all evidence and all submissions but
did not refer to all of it because of the volume of material, and provided the University with
enough information to understand why its case had been rejected. It was submitted that there
was no obligation to give further reasons when undertaking her broad evaluative task by
specifically rejecting each individual argument and each individual way in which each
individual fact was put.
[42] In relation to the grant of the remedy of reinstatement, it was submitted that there was
no error in the Deputy President’s approach to this question. The reluctance of an employer to
shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious
wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of
trust and confidence is irreparably damaged or destroyed. Further, the University did not seek
to adduce evidence on the alternative case that, if the Deputy President found no premeditation,
[2022] FWCFB 83
19
consent, mutuality, no attempt to continue a relationship and to the contrary efforts to avoid all
personal contact, that a loss of trust and confidence would still exist. It was therefore submitted
that the Deputy President’s conclusions were open on the facts.
Consideration
Permission to appeal
[43] We consider that the grant of permission to appeal would be in the public interest. For
the reasons which follow, we consider that the decision under appeal is attended by appealable
error, including significant errors of fact, is counter-intuitive and wrong in principle.
Whether there was a valid reason for dismissal – s 387(a)
[44] The Deputy President’s conclusion for the purpose of s 387(a) that there was no valid
reason for Dr Morrison’s dismissal was clearly foundational to her determination that his
dismissal was unfair. The findings made by the Deputy President as to the procedural matters
specified in paragraphs (b)-(d) and (f)-(g) of s 387 all favoured the conclusion that the dismissal
was not unfair, and it was not in dispute that paragraph (e) was not relevant because the
dismissal did not relate to unsatisfactory performance. The Deputy President’s consideration in
respect of paragraph (h) of s 387 did not identify any matter favouring Dr Morrison’s position
as being relevant. Therefore, the premise upon which we proceed in our consideration of the
appeal is that if we conclude that the Deputy President erred in finding that she was not satisfied
that there was a valid reason for dismissal, her decision cannot stand and must be quashed.
[45] We consider that the Deputy President’s conclusion that no valid reason for Dr
Morrison’s dismissal had been established was in error, for the following reasons:
(1) Even on the primary facts as found by the Deputy President, it was not
reasonably open to find other than that there was a valid reason for the dismissal,
and the Deputy President’s conclusion otherwise proceeded on an error of
principle.
(2) The Deputy President’s conclusion was based on significant errors of fact.
(3) The Deputy President failed to consider and make findings about or otherwise
take into account significant aspects of the evidence upon which the University
relied in its case.
[46] We deal with each of the above matters in turn.
Conclusion not reasonably available and founded on an error of principle
[47] On the primary facts as found by the Deputy President, Dr Morrison:
was a senior academic at the University who had until recently been the Student’s
lecturer and involved in grading her work;
[2022] FWCFB 83
20
had responsibility for organising the retreat at Kioloa, which was an official
University activity and occurred on University premises;
during the course of the retreat, went alone with the Student to the nearby beach
when it was dark;
when at the beach, stripped naked in front of the Student and swam with her;
responded immediately when she went up to him and began kissing him;
engaged in sexually intimate conduct with her in the water and later on the grassy
area near the beach;
offered her oral sex;
subsequent to the beach incident, twice (on 23 November 2017 and 31 January
2018) said that he found her “attractive”;
involved his wife in his dealings with the Student by inviting the Student to speak
to his wife and giving the Student her number, in circumstances where the wife was
shortly to be employed by the University in the MSI; and
never disclosed any of the above to the University.
[48] The principles concerning the “valid reason” consideration required under s 387(a) in
relation to alleged employee misconduct are well-established.47 They are as follows:
(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the
Commission must, if it is in issue in the proceedings, determine whether the
conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified
termination. There would not be a valid reason for termination if the conduct did
not occur or it did occur but did not justify termination (because, for example, it
involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct
sufficiently serious to justify summary dismissal on the part of the employee in
order to demonstrate that there was a valid reason for the employee’s dismissal
(although established misconduct of this nature would undoubtedly be sufficient
to constitute a valid reason).
47 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB
6092 at [117]; Titan Plant Hire v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support
Pty Limited [2015] FWCFB 1033 at [25]-[35]
[2022] FWCFB 83
21
(5) The existence of a valid reason to dismiss is not assessed by reference to a legal
right to terminate a contract of employment.
(6) The criterion for a valid reason is not whether serious misconduct as defined in
reg 1.07 of the Fair Work Regulations 2009 has occurred, since reg 1.07 has no
application to s 387(a).
(7) An assessment of the degree of seriousness of misconduct which is found to
constitute a valid reason for dismissal for the purposes of s 387(a) will be a
relevant matter under s 387(h). In that context the issue is whether dismissal was
a proportionate response to the conduct in question.
(8) Matters raised in mitigation of misconduct which has been found to have
occurred are not to be brought into account in relation to the specific
consideration of valid reason under s 387(a) but rather under s 387(h) as part of
the overall consideration of whether the dismissal is harsh, unjust or
unreasonable.
[49] The Deputy President’s findings of fact make it apparent that the essentials of the
conduct alleged against Dr Morrison were found to have occurred (and indeed were not
fundamentally disputed by Dr Morrison). The critical evaluative judgment to be made by the
Deputy President, in accordance with the principles stated above, was whether the conduct
found to have occurred was sufficiently serious to constitute a sound, defensible and well-
founded justification for dismissal. In making that evaluation, it was not necessary for the
Deputy President to find that Dr Morrison had committed “serious” misconduct, or conduct
warranting summary dismissal, or conduct giving rise to a legal right to terminate his contract
of employment, in order to find that there was a valid reason for dismissal.
[50] The critical feature of Dr Morrison’s conduct is that it was not private in nature,
involving an out-of-hours interaction with another person who happened to be a student of the
University, but was rather directly connected with his employment. The retreat at Kioloa, as
stated above, was a University educational activity and conducted on University premises. Dr
Morrison was present at the retreat in his capacity as a senior academic in the MSI as well as
an organiser of the retreat, and the Student was there in her capacity as an Honours student in
the MSI. All of Dr Morrison’s obligations as a senior academic with respect to a student
therefore applied, even if one accepts the Deputy President’s finding (which, for reasons stated
later, we do not) that his role as a lecturer with respect to her had for all practical purposes
ended.
[51] Under the Code, which Dr Morrison was obliged to comply with by his contract of
employment and the then-applicable enterprise agreement,48 he was relevantly required to:
exercise his powers, perform his functions and discharge his duties with a degree of
care and diligence that a reasonable person would exercise in the same position (para
19);
48 Australian National University Enterprise Agreement 2013-2016 cl 6.1
[2022] FWCFB 83
22
not improperly use his position to gain an advantage for himself or cause detriment
to the University (para 21);
disclose any material personal interest relating to the affairs of the University (para
23); and
treat other staff and students with respect, courtesy, fairness and equity; avoid
behaviour that may be reasonably perceived as emotionally threatening; and refrain
from acting in a way that would unfairly harm the reputation and career prospects
of other staff and students (para 25).
[52] In addition, the Code provides that University staff are placed in a position of trust, and
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 (paras 26 and 27). In this respect, Dr Morrison was required to
avoid and disclose to the University any situations which might require him to supervise or
assess a student with whom he had, or previously had, a personal, commercial, familial or other
significant relationship (para 28).
[53] We are in as good a position as the Deputy President to decide what inference, for the
purpose of s 387(a), should be drawn from the primary findings of fact made by her.49 We
consider that the only reasonably available view of Dr Morrison’s conduct on 21 November
2017, and his subsequent non-disclosure of it, is that it involved a serious breach of the above
obligations such as to constitute a sound, defensible and well-founded reason for dismissal. Dr
Morrison’s duty at the retreat was to engage in the education of students and to organise the
retreat. It was plainly incompatible with this duty to take a young female student down to the
beach alone almost immediately after the end of a lecture, to strip naked in front of her and then
to engage in sexual intimacy with her. The fact that Dr Morrison engaged in this conduct had
long-lasting consequences for the Student: it led to her subsequently becoming involved in a
series of what were, on any view, intensely personal interactions with both Dr Morrison and his
wife, and plainly caused her emotional distress. Dr Morrison plainly did not conduct himself
with care and diligence as to the consequences of his actions on the evening of 21 November
2017, used his position as a senior academic and organiser at the retreat to place himself in a
compromising position alone with the Student on the beach, and did not treat the Student in her
capacity as such at a University educational event but rather interacted with her as if he was
engaged in a purely private social activity. The effect and consequence of Dr Morrison’s
conduct was to establish a non-professional, personal relationship with the Student – a situation
which he was required to avoid and, once it occurred, to disclose to the University. He did
neither, and thus placed at risk the trust which the University reposed in him.
[54] In finding that there was no valid reason for the dismissal, it is apparent that the Deputy
President placed very significant and arguably determinative weight on her finding that the
intimacy which occurred during the beach incident was fully consensual and initiated by the
Student. However, that does not operate to diminish any of the conclusions we have stated
immediately above. The reasons upon which the University dismissed Dr Morrison were
49 Fox v Percy [2003] HCA 22, 214 CLR 118 at [25]-[27] per Gleeson CJ, Gummow and Kirby JJ
[2022] FWCFB 83
23
founded, as we said at the outset of this decision, upon a finding that he engaged in “consensual
intimate contact of a sexual nature”. The Student never alleged, nor did the University ever
contend, that Dr Morrison engaged in sexual harassment or a sexual assault during the beach
incident. To say that therefore that the intimacy was consensual does not advance the analysis
of whether there was a valid reason for dismissal.
[55] We consider that it should be obvious that a senior academic should not in the course of
conducting an education activity engage in sexual intimacy with a student participating in that
activity, even if the intimacy was consensual and initiated or invited by the student. In the well-
known case of Orr v University of Tasmania,50 the High Court considered the position of a
Professor of Philosophy who was found to have engaged in a sexual relationship with one of
his students as follows:
“…But on the basis that the validity of the findings of the learned trial judge should be
conceded counsel for the appellant contended that the facts as found by the learned trial
judge did not constitute legal justification for the appellant's dismissal. With this
submission we emphatically disagree. Miss Kemp was a student in the appellant's class,
she was eighteen years of age and it is apparent that she was then passing through a
period of turbulent eroticism. Moreover there can be little doubt that she was eager to
institute an intimate personal relationship with the appellant, but there is not the slightest
doubt, upon the facts as found, that the appellant, having observed her feelings, became
only too ready to take advantage of them and seduce her. The affair developed under
the guise of the discussion of philosophical problems and, within a short period resulted
in sexual intercourse taking place between them. Thereafter, it occurred on a number of
occasions. We have not the slightest doubt that this conduct on his part unfitted him for
the position which he held and that the university was entitled summarily to dismiss
him. We can only express our surprise that the contrary should be maintained.”
(underlining added)
[56] It may be accepted that the above decision was concerned with the question of a legal
right to dismiss rather than any question of unfair dismissal and involved conduct of a more
serious nature. It may also be accepted that sexual mores have changed significantly since the
time of this decision. However, we consider that the central point remains completely valid: it
is inconsistent with the employment obligations of a senior academic to utilise their
employment to engage in sexual intimacy with one of their students, irrespective that this is
consensual and even initiated in some respect by the student. Dr Morrison should never have
placed himself in a position where, during the course of a University educational activity, he
was alone and naked with the Student on a beach at night and, to the extent that it was the
Student who sought to initiate intimacy, he should never have responded to this by taking
advantage of the sexual opportunity which was presented to him.
[57] In saying the above, we do not intend to adopt any overly censorious, puritanical or
wowserish approach. As the Deputy President found, the University’s Conflict Policy appears
to contemplate that consensual sexual relationships may exist between academics and students.
The University has over 20,000 undergraduate and postgraduate students and 4,000 staff
engaged in a wide variety of educational and research activities. Clearly, it is possible for an
50 [1957] HCA 32, 100 CLR 526 at 530
[2022] FWCFB 83
24
academic at the University, in their private life, to enter into a consensual relationship with
another person who happens to be a student at the University without this having any relevant
connection to the academic’s employment. It is difficult to conceive that, without more, the
existence of such a relationship could ever constitute a valid reason for dismissal. However, as
we have explained, the factual context here is entirely different.
[58] The approach by which the Deputy President reached the conclusion that she did in
respect of s 387(a) appears to us, inferentially, to have involved two errors of principle. First,
the Deputy President treated her task as if it involved determining whether the “complaint”
made by the Student which ultimately led to Dr Morrison’s dismissal was justified or valid.
Thus, the Deputy President’s findings included that the Student “made a conscious decision to
follow Dr Morrison into the water no doubt to make some contact with him”,51 that “[t]here is
no basis to doubt that [the Student] knew what she was doing”,52 and 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”.53 Leaving aside that we consider these
findings were based on scant evidence and unfairly seek to cast the Student as some sort of
embittered seductress, they involve a misconception as to the task which the Deputy President
was required to undertake, namely to properly characterise Dr Morrison’s conduct in light of
the employment duties and obligations he owed to the University in order to determine whether
that conduct constituted a valid reason for his dismissal. The Student’s intentions and
motivations had little relevance to this task. This was not a case of the type where two
employees make competing claims of misconduct against each other (such as in a “fighting”
case) and the Commission is required to analyse the conduct and credibility of each; here,
instead, the basic elements of the conduct of the one employee in question were not in dispute
and the focus had to be on the proper characterisation of that conduct for the purpose of s 387(a).
[59] Second, the Deputy President’s consideration as to whether there was a valid reason for
Dr Morrison’s dismissal related to his conduct was infected by her taking into account matters
extraneous to s 387(a). It is clear that the Deputy President took into account matters which she
regarded as being of a mitigative character: for example, in paragraph [91] of the decision, as
part of her consideration under s 387(a), the Deputy President placed weight on her findings
that Dr Morrison “took some steps to re-establish a professional relationship” with the Student
and to “ensure her wellbeing”, and apologised to her about the interaction on the beach on more
than one occasion. Additionally, in paragraph [98], the Deputy President placed weight for the
purpose of s 387(a) upon her finding that Dr Morrison had accepted he had been “foolish” and
was regretful for the emotional distress which the Student had experienced. In accordance with
the principles concerning s 387(a) set out in paragraph [48] above, these were matters which
may have been considered relevant and taken into account under s 387(h) but were not relevant
to the narrower consideration of the validity of the reason for Dr Morrison’s dismissal based on
his conduct. That is, if Dr Morrison’s conduct during the retreat on 21 November 2017
constituted a valid reason for his dismissal, that conclusion could not for the purpose of s 387(a)
be diminished by a consideration of things he said or did subsequently (leaving aside the fact
that some of his later conduct formed separate reasons for his dismissal by the University).
51 [2022] FWC 301 at [85]
52 Ibid at [87]
53 Ibid at [92]
[2022] FWCFB 83
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[60] It may also be inferred from the decision that the Deputy President took into account,
under s 387(a), her view that dismissal was a disproportionate response to Dr Morrison’s
conduct. Having found that the “consensual intimate contact of a sexual nature” which formed
the substantial basis of the dismissal had, as a matter of fact, occurred, the Deputy President did
not find that Dr Morrison’s conduct did not constitute misconduct or was merely trivial but
nonetheless found her way to the conclusion that it did not constitute a valid reason for
dismissal. That this conclusion was reached as a result of the Deputy President’s view as to the
disproportionality of dismissal is apparent in paragraphs [116] and [117] of the decision. In the
former paragraph, the Deputy President said that if Dr Morrison repeated his conduct in the
future (presumably meaning after reinstatement with the University), he could “expect to be
dismissed as a result”. It is difficult to understand this reasoning, given the Deputy President’s
earlier findings that such conduct did not breach the University’s policies, was not antithetical
to Dr Morrison’s role as a senior academic and did not constitute a valid reason for dismissal,
unless she considered for the purpose of her s 387(a) consideration that dismissal was too harsh
a penalty for a “first offence”. This is confirmed in the latter paragraph, where notwithstanding
her finding that there was no valid reason for dismissal, the Deputy President found the
dismissal only to be harsh and made no finding that it was unjust or unreasonable. If a dismissal
effected on the basis of misconduct is found to lack a valid reason, it will usually follow that
the dismissal is unjust and unreasonable. A dismissal will be found to be harsh because of “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”,54 and
it is well-established that a dismissal may be found to be harsh by reason of matters taken into
account pursuant to s 387(h), notwithstanding that there is a valid reason for dismissal. As
earlier stated, the Deputy President did not, under s 387(h), treat as relevant and take into
account any matter which weighed in Dr Morrison’s favour. Nowhere did she take into account
under s 387 the financial and personal consequences of Dr Morrison’s dismissal. The only
inference that can be drawn is that the Deputy President’s conclusion that there was no valid
reason for dismissal was based on a view that dismissal was disproportionate to Dr Morrison’s
conduct.
[61] The picture is rendered even clearer by the Deputy President’s statement, made in
paragraph [130] in connection with her conclusion that Dr Morrison should only receive six
months’ pay as compensation for lost wages, that she was “satisfied that even though Dr
Morrison’s conduct did not warrant his dismissal, it demonstrated a lack of judgment that
should not be condoned”. By the time the decision was issued, it had been almost two years
since Dr Morrison’s dismissal. Not having found that Dr Morrison had obtained any alternative
earnings during this period, it is apparent that the Deputy President considered that Dr
Morrison’s conduct warranted the loss of 18 months’ pay notwithstanding her finding that such
conduct did not constitute a valid reason for dismissal. This only makes sense if the Deputy
President’s valid reason finding was infected by her view as to disproportionality. The
principles stated in paragraph [48] above make it clear that the question of disproportionality in
the sense discussed in Byrne v Australian Airlines Ltd55 does not arise for consideration under
s 387(a).
Significant errors of fact
54 Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410 at 465 per McHugh and Gummow JJ
55 Ibid
[2022] FWCFB 83
26
[62] We accept the University’s submission that the decision under appeal contains a
number of errors of fact. We do not propose to determine all of the University’s submissions
concerning factual error, but will rather identify three errors of fact which we consider to be
“significant” within the meaning of s 400(2) of the FW Act. Before we do so, it is necessary to
deal briefly with Dr Morrison’s submission concerning the restraint we should exercise in
reviewing the Deputy President’s findings of fact. It may be accepted that it is necessary,
consistent with the principles stated in Fox v Percy,56 to respect the Deputy President’s
advantage in having seen and heard the witnesses give evidence. It is also necessary to give
some weight to the fact that, with the benefit of this advantage, the Deputy President made a
credibility finding in favour of Dr Morrison over the Student. However, as earlier stated, we
are in as good a position as the Deputy President to decide the proper inferences to be drawn
from the primary facts as found by her, or facts which were not in dispute or established
incontrovertibly. In relation to the Deputy President’s credibility finding, a number of matters
operate to diminish the weight to be assigned to it in this appeal:
(a) Dr Morrison and the Student, as well as all the other witnesses, gave their
evidence-in-chief by way of written statements of evidence, so the advantage
enjoyed by the Deputy President was confined to seeing and hearing their cross-
examination and re-examination. It has been observed that seeing and hearing a
witness give their evidence-in-chief orally, rather than reading in chambers a
witness statement which has been “settled” by a lawyer and then having the
witness exposed to cross-examination immediately upon entering the witness
box, provides a much better basis for assessing the witness’s credibility in
relation to contested issues of fact.57 We are certainly in as good a position as
the Deputy President to read the witnesses’ statements and analyse them for
consistency both internally and with other evidence given in the proceedings,
including the witnesses’ own oral evidence.
(b) The Deputy President’s credibility finding was confined the accuracy of
recollection of Dr Morrison and the Student and did not concern their honesty.
Issues of recollection are less likely to be affected by the demeanour of
witnesses, and inconsistencies in the evidence given which are apparent in the
record of the hearing are likely to provide a better guide to the accuracy of a
witness’s memory.
(c) The decision containing the credibility finding was delivered almost 15 months
after the Deputy President heard the oral evidence of Dr Morrison and the
Student. Protracted delay in providing a reasoned decision after a hearing will
result in the presumed advantage of the primary decision-maker being lost or
significantly reduced and, if such a decision is based on credibility findings, it
may be treated with scepticism on appeal.58
56 [2003] HCA 22, 214 CLR 118 at [23]-[27] per Gleeson CJ, Gummow and Kirby JJ
57 Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 at [23]-[28]
58 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470 at [86] per Kirby
J, [161] per Callinan and Heydon JJ
[2022] FWCFB 83
27
[63] The first significant error of fact concerns the Deputy President’s finding in paragraph
[22] that, at the time of the retreat, “Dr Morrison did not have a teaching, supervision or
administrative role with respect to the … Student, except in so far as he was one of the
organisers of the retreat.” For the reasons earlier outlined, the Deputy President failed to
appreciate the import of the exception which she identified in this finding but, in any event, we
consider the finding to be wrong. It is correct, as the Deputy President found, that by this time
lectures for the relevant mathematics course had finished, the students had received the marks
for their final exam, and Dr Morrison had signed and submitted the final grade sheets for each
student. However, there was uncontroverted evidence that the students had not yet been
informed of their final course grades, which did not occur until 30 November 2017, and that Dr
Morrison retained the capacity to change the grades as at the time of the retreat.59 That
undoubtedly meant that he did retain a teaching and supervision role with respect to the Student
at the time of the retreat. Dr Morrison’s submissions sought to diminish the significance of this
by referring to evidence that changing grades at this late point in time was unusual, and that he
did not do so with respect to the Student, but in our view this misses the point. There is no
evidence that the Student knew, at the time of the retreat or as at her conversations with Dr
Morrison on 23 and 25 November 2017, that Dr Morrison had completed her grading or would
not alter her grading once it was determined. This meant that there was necessarily at least a
perceived power imbalance between them. Further, from the University’s broader perspective,
the integrity of its grading systems is as much a matter of appearance as reality. The interaction
between Dr Morrison and the Student at a time when she was awaiting her final grade in his
course had the potential, if it became known, of give rise to a perception that her grading may
have been compromised.
[64] There was also incontrovertible evidence that because of Dr Morrison’s senior position
in the MSI and his role as the HDR Convenor, there was potential at the time of the retreat that
he might in the future be involved in the assessment of the Student’s Honours grade the
following year and the consideration of the award of the University Medal, and might also be
in a position to influence or affect her future academic progression beyond that point.60 Dr
Morrison’s submissions again refer to evidence that this was unlikely and did not subsequently
occur. However, again, the significance of this is that, at the time of the retreat and immediately
afterwards, the mere potentiality of this contributed to the power imbalance we have already
described. It is also significant, as we discuss later, that there was evidence that Dr Morrison’s
course of conduct culminating in the email exchange of 11 November 2018 caused the Student
to cease any further connection with the MSI.61
[65] Second, we consider that the email which Dr Morrison sent to the Student on 11
November 2018 can only be understood as requesting that she keep away from mathematics
seminars in the MSI in future, and the Deputy President erred in finding otherwise in paragraph
[93]. As earlier recounted, the Student had attended such a seminar on 9 November 2018, and
Dr Morrison also attended.62 They both then attended drinks afterwards as part of a group from
59 Transcript, 27 November 2020 PN 3046 – PN 3052; Exhibit 12: Student Witness Statement dated 31 July 2020 at [9];
Exhibit 14: Dr Nadine White Witness Statement dated 31 July 2020 at [41]
60 Exhibit 14: Dr Nadine White Witness Statement dated 31 July 2020 at [42]; Exhibit 12: Student Witness Statement dated
31 July 2020 at [56] – [64]
61 Exhibit 12: Student Witness Statement dated 31 July 2020 at [58]
62 Exhibit 2: Dr Scott Morrison Witness Statement dated 20 August 2020 at [52]; Exhibit 12: Student Witness Statement
dated 31 July 2020, Annexure 1, pages 14-15
[2022] FWCFB 83
28
the seminar and left the venue by bicycle at approximately the same time. Dr Morrison’s
evidence was that he saw the Student on her bicycle while he was riding home and formed the
conclusion that she was following him.63 Her evidence was that she was simply travelling to
attend a social event in the same general direction.64 On 11 November 2018, Dr Morrison sent
the Student the following email from his private email address:
Hi [Student’s name],
If you've got something you need to say, could you please say it? I didn't like being
followed on Friday. I'd appreciate if you could try to just keep away (particularly, I'd
like to be able to run my seminar without being stressed about this). If you need to
interact with Kate at work, please just do so in the most straightforward way possible.
scott
(underlining added)
[66] The Student sent a reply the same day:
Hi,
Yes, I deserve an apology. Let me know if there is a time that suits you to meet.
Re Friday, I attended the seminar because I was interested in the topic - the reason I
attended was definitely not related to you. I had a friend's congratulation drinks to attend
after at 5pm on Lonsdale. I have only been polite and straightforward to Kate since she
started working in the department.
[Student’s name]
[67] In our view, the third sentence of Dr Morrison’s email can only reasonably be
understood as requesting that she keep away from him generally, including from his seminars.
The Deputy President’s finding did not attempt to assign any alternative meaning to the words
in parentheses “particularly, I'd like to be able to run my seminar without being stressed about
this” used in direct connection to Dr Morrison’s “keep away” request. His use of the word
“particularly” infers that the Student keeping away from the seminars was in fact the major
component of the “keep away” request. That was certainly the way it was understood by the
Student, who felt it necessary to justify her attendance at the seminar on 9 November 2018 in
her response to the email.
[68] In any event, the Deputy President failed to assign the appropriate significance to Dr
Morrison’s email, regardless of whether it is to be read as a request to keep away from the
seminars or keep away from Dr Morrison more generally. Dr Morrison was a senior academic
in the MSI. The Student had recently graduated with First Class Honours in mathematics and
was considering undertaking a PhD in mathematics, either at the University or elsewhere. On
any view, Dr Morrison’s “keep away” request, together with a further demand concerning
63 Exhibit 2: Dr Scott Morrison Witness Statement dated 20 August 2020 at [58]
64 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 15
[2022] FWCFB 83
29
interaction with his wife who worked at the MSI, would necessarily operate as a strong
discouragement for the Student to engage in any further study at the MSI. As we discuss later,
it was in fact the case that the Student suffered significant distress as a result of reading Dr
Morrison’s email and consequently severed any further engagement with the MSI.
[69] Third, we consider that the Deputy President erred in finding in paragraph [99] that Dr
Morrison was not dishonest and untruthful during the University’s investigation and review
process and that he “answered the questions that were put to him openly and honestly”. The
University process for investigating the disclosure made by the Student and for internal review
of the outcome of its investigation proceeded, in summary, as follows:
(1) On 6 November 2019, Dr Nadine White, the University’s Director, Human
Resources, met with Dr Morrison and informed him that he was suspended and
that a process to consider whether he had committed serious misconduct would
be undertaken.
(2) On 12 November 2019, Dr White and another staff member met with Dr
Morrison and provided him with a letter which contained 19 specific factual
allegations of misconduct. Dr White took Dr Morrison through the allegations
to ensure he understood them. The letter invited Dr Morrison to respond to the
allegations in writing.65
(3) Mr Morrison initially replied by way of an undated letter in which, relevantly,
he sought further particulars and clarification of the allegation.66
(4) On 20 November 2019, the University sent Dr Morrison a detailed list of the
alleged breaches of the University policies and procedures.67
(5) Mr Morrison’s lawyers then sent the University a further letter dated 26
November 2019 in which a “Preliminary and Without Prejudice Response” to
the allegations was provided. The letter also made a number of complaints
concerning procedural fairness.68
(6) The University replied to this last letter on 6 December 2019 which relevantly
stated that if Dr Morrison wished to provide any further response to the
allegations, he was required to do so by 12 December 2019.69
(7) Dr Morrison’s lawyers responded on 12 December 2019. Their letter made
further procedural fairness complaints, and included a short supplementary
response to the allegations.70
65 Exhibit 1: Dr Scott Morrison Witness Statement dated 24 June 2020, Annexure SM7
66 Ibid, Annexure SM8
67 Ibid, Annexure SM9
68 Ibid, Annexure SM10
69 Ibid, Annexure SM11
70 Ibid, Annexure SM12
[2022] FWCFB 83
30
(8) On 16 January 2020, the University informed Dr Morrison that a number of the
allegations had been upheld and, subject to his exercise of his internal review
rights, he would be dismissed.71
(9) In an undated letter that was provided to the University on 21 January 2020, Dr
Morrison applied for a review of the decision and gave a short account of the
beach incident.72
(10) The University established a Review of Decision Committee in accordance with
clause 73.7 of the ANU Enterprise Agreement 2017-2021.
(11) On 6 February 2020, the University provided the Review Committee with a
response to Dr Morrison’s review application.73
(12) In a letter dated 12 February 2020, Dr Morrison made a submission to the
Review Committee in support of his review application. This included a
“Narrative summary” of what had occurred.74
(13) In a letter dated 13 February 2020, Dr Morrison’s lawyers provided a further
submission to the Review Committee in support of his review application. It was
submitted that Dr Morrison was denied procedural fairness, that dismissal would
be grossly disproportionate to his conduct, and that dismissal would significantly
impact him, his family and the University.75
(13) By letter dated 17 February 2020, Dr Morrison provided a supplementary
submission to the Review Committee.76
(14) The Review Committee met on 20 February 2020, and Dr Morrison was
permitted to make an oral submission at this meeting.
(15) On 27 February 2020, Dr Morrison was advised that his review application had
been unsuccessful and that his dismissal would proceed.77
[70] We have set the process out in some detail because the Deputy President seems to have
had a misapprehension about the process as involving at some stage a question and answer
process. The process proceeded almost entirely by way of written correspondence and
submissions, save for meetings we have identified in the above chronology. At no stage during
the process was Dr Morrison required to give answers to specific questions either orally or in
writing (apart from responding to the allegations). Accordingly, the Deputy President’s finding
that Dr Morrison “answered the questions that were put to him openly and honestly” was wrong.
71 Ibid, Annexure SM13
72 Ibid, Annexure SM14
73 Ibid, Annexure SM15
74 Ibid, Annexure SM17
75 Ibid
76 Ibid, Annexure SM20
77 Ibid, Annexure SM22
[2022] FWCFB 83
31
[71] It is clear that in his responses during the investigation process and his submissions in
the review process, Dr Morrison was untruthful in a number of respects. Two examples of this
will suffice. First, in his “[n]arrative summary” in his submission of 12 February 2020, Dr
Morrison said the following about that part of the beach incident on 21 November 2017 after
he and the Student had left the water:78
“Leaving the water after a few minutes, we dressed, and I started walking away from the
beach. [Student’s name] indicated she wanted to stay at the beach with me. We had a
brief discussion, in which I raised the problem that [Student’s name] had previously
been my student, she dismissed that issue as no longer relevant, and she raised the
problem that I was married, and I briefly spoke about my marital difficulties. We then
sat at the back of the beach and kissed and touched. To be clear, there was no sex, either
oral or penetrative, and there was clear consent from both parties for what took place.
At some point I got cold, and indicated I wanted to stop, and I felt at the time that I was
disappointing [Student’s name]. We then dressed, and left the beach, returning to our
individual accommodations.”
(underlining added)
[72] It must be noted that the initial allegations letter of 12 November 2019, it was
specifically alleged that Dr Morrison “asked [Student’s name] if you could go down on her” –
a matter to which Dr Morrison did not provide any specific response during the course of the
investigation and review process. The above account by Dr Morrison gives the impression that,
when they were back on the beach, it was the Student who wanted to go further and Dr Morrison
who decided to stop and thus disappointed her. This is to be compared to the account given by
Dr Morrison in his primary witness statement in the proceedings below:79
“We then walked further along the beach, and sat down in the grass and began kissing
again. We both removed our clothes and touched each other’s bodies. Her body
language indicated to me that she was enjoying this and would like to do more. I recall
at one stage I asked “Would you like to do more?”, meaning more than we had been
doing, and she said, “No”. We continued kissing.
We did not have sex. Shortly after we left the beach and walked separately to our
accommodations…”
(underlining added)
[73] By this point, Dr Morrison had disclosed that he had asked the Student about going
further, and it was she who said no. He did not give evidence that he indicated that he wanted
to stop. This is directly contrary to his “[n]arrative summary” provided to the Review
Committee.
[74] It was only in the second witness statement Dr Morrison filed in the proceedings below,
dated 20 August 2020, that he admitted that he had proposed oral sex and the Student had
78 Ibid, Annexure SM17
79 Ibid at [39] – [40]
[2022] FWCFB 83
32
refused.80 The Deputy President made a finding to that effect.81 The Deputy President never
found that it was Dr Morrison who brought the intimacy to an end, as he represented to the
Review Committee. Thus, in our view, this aspect of the “[n]arrative summary” was untruthful.
[75] Second, in respect of his interactions with the Student after 31 January 2018, Dr
Morrison said in the same “[n]arrative summary”:82
“We continued to have occasional brief and cordial interactions within the department,
before and after [Student’s name] graduated. On several occasions we both attended the
same department events or department lunches. I certainly had no educational or
supervisory role with respect to [Student’s name], and no such allegation has been put
to me.”
[76] This is a plainly misleading statement, since it omits entirely the Student’s attendance
at the seminar and drinks on 9 November 2018 and the subsequent acrimonious email exchange
of 11 November 2018 in which Dr Morrison told the Student to “keep away” from him.
Failure to consider significant aspects of the evidence
[77] We accept the University’s submission that the Deputy President did not consider or
make findings about a number of significant aspects of the evidence upon which the University
relied and, as a result, did not address critical parts of its case.
[78] First, the Deputy President did not address the contested evidence concerning the
circumstances in which Dr Morrison and the Student came to go to the beach on the evening of
21 November 2017. The Student’s evidence was that, after the evening mathematics lecture at
the retreat, Dr Morrison asked her if she wished to go to the beach with him, and that they were
alone at the time.83 She agreed. Then they returned to their respective cabins, and Dr Morrison
subsequently collected the Student from her cabin. When he did so, she asked him whether
anyone else wanted to come, and he said no. They then walked to the beach together.84
[79] Dr Morrison’s version was significantly different. He said that, following the final
lecture, he walked with a group of people, including the Student, towards the kitchen building
and asked them generally if anyone wanted to walk to the beach later to see if the
bioluminescence (which he had mentioned to the participants he had seen the previous evening)
was still there. The Student was the only one who expressed an interest, and in response to Dr
Morrison asking whether they should go after they had been to the kitchen, the Student said
“[l]et’s go now”. They thereupon went to the beach.85
[80] Acceptance of the Student’s version of events would likely give rise to the inference
that Dr Morrison premeditated going to the beach in the dark alone with the Student specifically,
80 Ibid at [36]
81 [2022] FWC 301 at [18]
82 Exhibit 1: Dr Scott Morrison Witness Statement dated 24 June 2020, Annexure SM17
83 Exhibit 12: Student Witness Statement dated 31 July 2020 at [16]
84 Ibid, Annexure 1, page 9
85 Exhibit 1: Dr Scott Morrison Witness Statement dated 24 June 2020 at [34]-[35]
[2022] FWCFB 83
33
and naturally would give rise to a question about his motivation in selecting her to do this with.
Dr Morrison’s version, by contrast, represents the fact that he went to the beach with the Student
only as occurring by happenstance. We consider that it was fundamental to resolve this conflict
in order to properly characterise what occurred thereafter.
[81] Second, although the Deputy President considered the conflict in the evidence as to
whether Dr Morrison asked for the Student’s permission to strip naked once they were on the
beach before doing so, and resolved it in Dr Morrison’s favour, she did not take into account
the evidence as to what occurred immediately thereafter. The Student’s evidence was that Dr
Morrison said “you can also undress if you want”.86 Dr Morrison’s evidence, which was that
he said to her “I do not mind if you want to undress too”, was not substantially different.87 The
inference may be drawn from this evidence that Dr Morrison was inviting the Student to strip
naked, as he had done. That, in our view, constituted a significant aspect of his conduct during
the beach incident which required consideration and evaluation.
[82] Third, the Deputy President failed to consider the evidence that was given concerning
what was said between Dr Morrison and the Student during the beach incident once they had
left the water. The Student’s evidence went as follows:88
“We got out of the water. When we were walking back to his clothes on the beach Scott
said: ‘[Student’s name], you have to tell me if I am doing something wrong’. I said:
‘Well, I think I am doing something wrong.’ Figuring out I was referring to the fact that
he has a wife, Scott said: ‘Oh no, Kate and I are in an open-relationship. She knows I
think you are hot. We see other people. She sees more other people than I do, because I
am really busy’.”
[83] In cross-examination, the Student was adamant that Dr Morrison used the phrase “open
relationship”, of which she said she had a vivid memory.89 In relation to this, one aspect of the
New Witness’s evidence is pertinent. She appended to her first witness statement a series of
Facebook messages passing between Dr Morrison and herself. This included the following
exchange which occurred after Dr Morrison met for coffee with the New Witness in July
2016:90
New Witness: hey! thanks for coffee the other day, always nice catching up :)I just
wanna make sure we’re on the same page about our friendship, because
I enjoy being friends but don’t want anything more than that. Sorry if
there was any confusion!
Dr Morrison: Hi [New Witness] oops! As you seem to have guessed, I have had a bit
of a crush on you recently! I’ll cancel that line of thought... Not quite
sure how to express that I’m sure everything will work out fine.
86 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 9
87 Exhibit 2: Dr Scott Morrison Witness Statement dated 20 August 2020 at [33]
88 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 9
89 Transcript, 25 November 2020, PN 1777 – PN 1779
90 Exhibit 19: New Witness Witness Statement dated 9 February 2021
[2022] FWCFB 83
34
New Witness: No worries! I’m sure it will be too, I think you’re a cool guy and I’m sure
we can maintain a friendship.
Dr Morrison: (as a little context, Kate and I both date other people at times; I wouldn’t
want you to think that me thinking so highly of you recently would upset
Kate.
New Witness: That's good to hear, wouldn’t want to cause any issues for you two!
Dr Morrison: Sorry that I made things awkward to the point you wanted to bring it up.
I feel bad about that. On the other hand, you are sufficiently awesome
that I wanted to try to find out if you might be interested, in my awkward
way...
New Witness: No, don’t worry about that! It wasn’t too awkward, I just thought it
would be better to bring it up rather than confusing you or stringing you
along.
Dr Morrison: Great! While I’ll admit to being a little sad, thanks for just talking to me
straightforwardly! (a curious thing being happily married — and Kate
and I are indeed very happily married, even if that sounds strange given
we also see other people — somehow makes the disappointment of
finding someone you’re interested in isn’t interested so much milder than
I remember in younger times. If that makes sense.”
(underlining added, emojis excluded)
[84] Dr Morrison’s version of the exchange with the Student after leaving the water during
the beach incident in his witness statement was as follows:91
“[Student]: Do we have to stop? I don’t want to stop, but I know that you are married.
Me: You don’t need to worry about my marriage. Kate and I have slept with
other people outside of our marriage before. But I am concerned that
you were so recently one of my students.
[Student]: Don’t worry about that – I’m not your student anymore. It doesn’t worry
me. How about we at least walk along the beach?”
[85] Dr Morrison presented this exchange as occurring when had put his pants on after
exiting the water and was walking to the beach exit, with the Student following him.92 This
gives the impression that, but for the Student saying she did not want to stop, no further physical
intimacy would have occurred after they had left the water. The Student denied that Dr Morrison
91 Exhibit 1: Dr Scott Morrison Witness Statement dated 24 June 2020 at [38]
92 Ibid
[2022] FWCFB 83
35
put any of his clothes back on at this point,93 and did not recall saying that she did not want to
stop or that Dr Morrison raised any concerns about her being his student.94
[86] This aspect of the evidence was plainly significant. Even if Dr Morrison’s version of
events is accepted, he told the Student that he and his wife had slept with other people outside
of their marriage – a completely inappropriate thing for a senior academic to say to a student in
any context, let alone the particular circumstances they were in at the time. Further, Dr
Morrison’s version evinces a recognition on his part at that moment that he held a concern about
engaging in physical intimacy with someone who had been “so recently one of my students”.
Once inference that might have been drawn from this is that he knew what he was doing was
inappropriate in the context of his employment as a senior academic with the University.
Notwithstanding this, it is not in dispute that he resumed physical intimacy with the Student
shortly thereafter.
[87] On the Student’s version of events, read together with the New Witness’s evidence, the
inference might be drawn that Dr Morrison’s reference to his “open relationship” with his wife
was intended to convey that he was willing to engage in a sexual relationship with the Student
and that this would not cause any difficulty with his marriage. The same inference might
conceivably be drawn even if Dr Morrison’s version were to be accepted. The Student’s
evidence that Dr Morrison said he had told his wife that the Student was “hot” would also
readily give rise to an inference that he had formed a sexual attraction to the Student well before
21 November 2017 (whether he actually told his wife this or not), and this would again raise
questions about his premeditation and motivation for going to the beach alone with her. This
evidence, of obvious significance, was completely overlooked in the decision.
[88] Fourth, the Deputy President also overlooked the Student’s evidence that while she and
Dr Morrison were engaged in further physical intimacy on the grassy area behind the beach, Dr
Morrison said “[Student’s name], you are such a distraction at the seminars”.95 Dr Morrison
said he did not recall saying this, but did not deny it.96 That evidence, if accepted, would also
support an inference that Dr Morrison had formed a sexual attraction to the Student well before
21 November 2017.
[89] Fifth, the Deputy President failed to consider and address the full extent of the
differences in the evidence of the Student and Dr Morrison concerning their interactions at the
retreat on 23 November 2017. According to the Student, they had two conversations, not one.
The Student’s evidence included that, during the first conversation, Dr Morrison said that he
had told his wife about the beach incident and that his wife was upset and jealous of the
Student.97 During the second conversation, Dr Morrison was crying and said “I am sorry for
dragging you into all my mess”.98 There was no reference to this evidence in the decision. The
inference that might be drawn from this evidence, if accepted, is that Dr Morrison did nothing
93 Transcript, 26 November 2020, PN 1754 – PN 1755
94 Ibid, PN 1772 – PN 1773, PN 1783
95 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 9
96 Exhibit 2: Dr Scott Morrison Witness Statement dated 20 August 2020 at [15]
97 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 10
98 Ibid
[2022] FWCFB 83
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to “re-establish a professional relationship” with the Student on that day (see paragraph [91] of
the Decision).
[90] Sixth, in relation to the discussion between the Student and Dr Morrison which occurred
at O’Connor Ridge Nature Reserve on 25 November 2017, the Deputy President accepted Dr
Morrison’s evidence that the Student expressed an interest in continuing a relationship with
him99 (noting that the Student agreed in cross-examination that she wanted a romantic
relationship with Dr Morrison at that point in time).100 However, other key aspects of the
evidence concerning this discussion were not considered or addressed by the Deputy President.
The Student gave evidence that Dr Morrison:101
(a) asked her about her level of sexual experience given her “reservations” during
the beach incident;
(b) said that he did not want to ask anyone to go the beach at Kioloa;
(c) in response to the Student saying that she didn’t appreciate Dr Morrison saying
she was a distraction at seminars, he said “[b]ut that’s what makes it fun”;
(d) said that on Friday (24 November 2017, the day before), he and his wife had
talked for hours “and then had really good sex”;
(e) said that he would really like to “see” the Student occasionally and thought he
could “make it work”, but that the Student might have to talk to his wife first;
and
(f) said “[t]hese sorts of things have happened before in the MSI”.
[91] In response to the above, Dr Morrison admitted (a), (d) and (f).102 In response to (b), Dr
Morrison said that he recalled saying: “I enjoyed myself that evening, I don’t regret that nobody
else wanted to join us on that walk to the beach”.103 Dr Morrison either did not recall or
tentatively denied (c).104 In response to (e), Dr Morrison accepted that he said he would like to
see the Student occasionally and thought he could make it work;105 he did not precisely recall
saying the Student he might have to talk to his wife first, but said that he “emphasised to her
that if there was going to be any form of friendship going forward, that that was conditional
upon it being compatible with my relationship with my wife”.106 When cross-examined about
the nature of this “friendship going forward”, Dr Morrison said: “I do not think that I either
99 [2022] FWC 301 at [26]
100 Transcript, 26 November 2020, PN 1976
101 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, pages 10-11
102 Exhibit 12: Dr Scott Morrison Witness Statement dated 20 August 2020 at [13]; Transcript, 25 November 2020, PN 720,
PN 745
103 Exhibit 12: Dr Scott Morrison Witness Statement dated 20 August 2020 at [14]
104 Transcript, 25 November 2020, PN 727–PN 729
105 Ibid, PN 737
106 Ibid, PN 739
[2022] FWCFB 83
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explicitly said that I wanted something that was intimate, nor explicitly ruled that out”,107 but
went on to say that during his conversations with his wife, his wife had made clear that a
continuing relationship with the Student was not a possibility.108
[92] We make the following comments about the above evidence, none of which was referred
to in the decision:
(1) Dr Morrison’s inquiry as to the Student’s sexual experience, which he admitted,
was completely inappropriate on the part of a senior academic in relation to his
student. On one view, that by itself would constitute a valid reason for dismissal.
Further, it arguably supports the inference that Dr Morrison would have
proceeded to have sex with the Student at the beach at Kioloa but for her
“reservations”.
(2) Dr Morrison’s own evidence that he “enjoyed” the beach encounter and did not
regret that no one else wished to go to the beach at the time tends to indicate that
he did not feel any remorse about the propriety of his conduct.
(3) The evidence of the Student as per [90](c) above, if accepted, would further
support the inference that Dr Morrison had formed a sexual attraction to the
Student prior to 21 November 2017.
(4) On any view, Dr Morrison floated the possibility of a continuing personal
relationship of some sort with the Student subject to his relationship with his
wife not being disturbed and, regardless of his intentions, he was ambiguous
about the nature of this relationship. If the Student’s evidence were accepted, Dr
Morrison was implicitly referring to an intimate relationship between them for
which his wife’s permission would have to be obtained.
(5) The meaning of Dr Morrison’s comment that “[t]hese sorts of things have
happened before in the MSI” was not explored, but on one view it infers that Dr
Morrison believed that non-professional relationships between academics and
students in the MSI were acceptable.
[93] Taken as a whole, we consider that had the totality of the evidence concerning the 25
November 2017 meeting been considered, it would have supported a finding that, not only did
Dr Morrison not attempt to re-establish professional boundaries with the Student, he continued
to engage in highly inappropriate conduct with her.
[94] Seventh, the Deputy President made no mention of the telephone call which Dr
Morrison’s wife made to the Student on 1 February 2018, shortly before she began working as
a casual administrative assistant in the MSI. Apart from the date, Dr Morrison’s wife did not
dispute the Student’s evidence about this phone call, which included that Dr Morrison’s wife
yelled at her and that the following exchange occurred:109
107 Ibid, PN 744
108 Ibid, PN 748
109 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 12
[2022] FWCFB 83
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Wife: Please leave us alone! Don’t go past Scott’s office and don’t make eye-contact
with him in the hallway!”
Student: I’m just a student and 22 years old. I just want things to go back to normal.
Wife: Things will never go back to normal.
[95] This conversation, which was obviously intended to discourage even normal contact
between Dr Morrison and the Student at the MSI and resulted in the Student feeling scared, was
the direct result of Dr Morrison:
(a) earlier inviting the Student to speak to his wife instead of himself and thus
ensuring that his wife had the Student’s phone number;110 and
(b) reporting to his wife the outcome of his conversation with the Student on 31
January 2018 – a meeting which had the ostensible purpose of restoring
professional boundaries.
[96] Eighth, following the receipt of Dr Morrison’s “keep away” email of 11 November
2018, which alleged that she had followed Dr Morrison after the seminar on 9 November 2018,
the Student’s evidence was that she felt “really scared and worried that [she] had been defamed
in other ways around the Department”.111 Her distress was such that she could not complete
her work marking final mathematics papers at the University the following day and withdrew
from her earlier verbal commitment to tutor a summer mathematics course. The Student further
said that she had not entered the mathematics department building at the University since that
date.112 The acceptance of this evidence would necessarily lead Dr Morrison’s conduct to be
cast in a more serious light.
[97] All the above eight matters were, in our view, fundamental to the proper characterisation
of Dr Morrison’s conduct (and were significant to the case advanced by the University below).
We consider that the Deputy President’s failure to take into account this evidence caused her
exercise of the discretion to miscarry. It is no answer to this to point to the Deputy President’s
statement in the decision that “all the evidence and submissions have been carefully
considered”,113 since the evidence referred to above was on the face of the decision given no
weight at all and thus effectively not taken into account.114
Conclusion
[98] 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 were attended by
significant error and omitted to address important aspects of the evidence, the conclusion that
110 Exhibit 2: Dr Scott Morrison Witness Statement dated 20 August 2020 at [20]
111 Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 16
112 Ibid
113 [2022] FWC 301 at [3]
114 Milillo v Konnecke [2009] NSWCA 109 at [94]-[95]
[2022] FWCFB 83
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there was not a valid reason for the dismissal was not reasonably available. We consider 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. Since, as
discussed, the Deputy President’s finding pursuant to s 387(a) was the sole basis for her
conclusion that Dr Morrison’s dismissal was harsh and therefore unfair, the appeal must be
upheld and the decision quashed.
Redetermination of Dr Morrison’s unfair dismissal application
[99] The University submitted that, if its appeal was upheld, we should proceed ourselves
to redetermine Dr Morrison’s unfair dismissal application on the basis of the evidence currently
before the Commission. This course was not opposed by Dr Morrison.
[100] We will take this course, subject to one caveat to which we will return. For the reasons
stated earlier, we find for the purpose of s 387(a) that there was a valid reason for the dismissal
of Dr Morrison related to his conduct. There was no challenge to the Deputy President’s
findings in respect of s 387(b)-(g), and accordingly we will adopt those findings as our own.
[101] In respect of our consideration under s 387(h) and our overall assessment of whether the
dismissal was harsh, unjust or unreasonable, we consider that the appropriate course is, first, to
invite Dr Morrison to provide further evidence concerning his personal, employment and
financial circumstances since his dismissal and, second, to invite further submissions. The
former course is necessary because the primary evidence about Dr Morrison’s post-dismissal
circumstances was contained in a witness statement he made on 24 June 2020, almost two years
ago. The evidence which Dr Morrison did give was also somewhat vague about his post-
dismissal employment and earnings (if any). Such further evidence will also be necessary if it
becomes necessary for us to consider the question of remedy.
[102] As to the second course, we consider it appropriate to provide the parties an opportunity
to provide further submissions in light of our conclusion that there was a valid reason for the
dismissal. It will be necessary, for the purpose of our further consideration of the matter, to
assess the seriousness of the conduct of Dr Morrison which we have found constituted a valid
reason for his dismissal. This will need to take into account our conclusions that, at the time of
the beach incident on 21 November 2017, Dr Morrison retained a
teaching/administrative/supervisory role with respect to the Student, and that he was not honest
in the course of the University’s investigation and review process. It will also be necessary for
us to take into account the important aspects of the evidence earlier identified which the Deputy
President failed to consider, and the parties’ submissions should address what findings should
be made and inferences drawn from that evidence.
[103] We also consider it appropriate, in light of the conclusions which we have reached to
this point, to provide the parties with a further opportunity to settle this matter. We observe that
this case is a finely balanced one: on the one hand, there was in our view plainly a valid reason
for Dr Morrison’s dismissal but, on the other, the dismissal may arguably have been harsh
because it appears to have involved not only the loss of Dr Morrison’s employment but his
entire academic career. We will therefore direct the parties to attend a conciliation conference,
to be conducted by a Commission member who is not sitting on this Full Bench.
[2022] FWCFB 83
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Orders and directions
[104] We order and direct as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision of Deputy President Dean of 21 February 2022 ([2022] FWC 301)
is quashed.
(4) The parties are directed to attend a conciliation conference in relation to the
application in matter U2020/3161 at a time, date and place to be advised.
[105] If the conciliation conference fails to resolve the matter, it will be listed for further
directions before the presiding member.
VICE PRESIDENT
Appearances:
K Nomchong SC and K Weir of counsel for the appellant.
T Brennan SC and S McIntosh of counsel for the respondent.
Hearing details:
2022.
Sydney (via video-link):
20 April 2022
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PR742085
OF THE FAIR WORK COMMISSION THE
