DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australian National University
v
Scott Morrison
(C2022/1533)

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 2022 1 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 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.

(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 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 decision 4 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:

“[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.

[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 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 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

•  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.

[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.”

[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 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;

(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 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.

[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 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;

•  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;

•  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, 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;

•  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).

(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);

•  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 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 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).

[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 Ltd 55 does not arise for consideration under s 387(a).

Significant errors of fact

[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

[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 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 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

(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] 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 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, 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.

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 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 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 him 99 (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 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

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 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.

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

Printed by authority of the Commonwealth Government Printer

<PR742085>

 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

 4   Scott Morrison v Australian National University [2021] FWC 1250

 5   [2022] FWC 301 at [4]

 6   Ibid

 7   Ibid at [6]

 8   Ibid at [16]

 9   Ibid at [18]

 10   Ibid

 11   Ibid at [21]

 12   Ibid at [24]

 13   Ibid at [25]-[26]

 14   Ibid at [27]-[29]

 15   Ibid at [30]-[33]

 16   Ibid at [74]

 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]

 26   Ibid at [84]

 27   Ibid at [85]

 28   Ibid at [86]

 29   Ibid at [87]

 30   Ibid at [88]

 31   Ibid at [89]

 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]

 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]

 45   Ibid at [129] – [131]

 46   [1936] HCA 40, 55 CLR 499

 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]

 48   Australian National University Enterprise Agreement 2013-2016 cl 6.1

 49   Fox v Percy [2003] HCA 22, 214 CLR 118 at [25]-[27] per Gleeson CJ, Gummow and Kirby JJ

 50   [1957] HCA 32, 100 CLR 526 at 530

 51   [2022] FWC 301 at [85]

 52   Ibid at [87]

 53   Ibid at [92]

 54   Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410 at 465 per McHugh and Gummow JJ

 55   Ibid

 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

 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

 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

 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

 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

 78   Ibid, Annexure SM17

 79   Ibid at [39] – [40]

 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]

 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

 91   Exhibit 1: Dr Scott Morrison Witness Statement dated 24 June 2020 at [38]

 92   Ibid

 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

 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

 107   Ibid, PN 744

 108   Ibid, PN 748

 109   Exhibit 12: Student Witness Statement dated 31 July 2020, Annexure 1, page 12

 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]