Dr. Scott Morrison (Not to be confused with the Australian Prime Minister) lodged an application for unfair dismissal with the Fair Work Commission (FWC) after his employer, Australian National University (ANU) terminated him from his position as Associate Professor in the Mathematical Sciences Institute.
Circumstances of the Termination – the case of Scott Morrison v Australian National University (U2020/3161)
The termination arose after a student complained of misconduct which had occurred between herself and Dr. Morrison. It was accepted that following the conclusion of the teaching period, Dr. Morrison had embarked on activities whilst on a retreat with a student that led to the two of them being at a beach alone at night. Dr. Morrison removed all of his clothing and entered the water for a swim. It is accepted that the student then stripped down to her underwear and swam to Dr. Morrison when they began kissing in the water. After some time, they both exited the water and sat on a grassy area where the student voluntarily removed the remainder of her clothes and continued to engage in further sexual activity with Dr. Morrison.
After this ordeal, the student expressed her emotions to Dr. Morrison and stated her intentions to form a relationship with him. Dr. Morrison rejected these feelings as he was married and no longer wished to pursue a relationship with the student. There were then several attempts of contact by the student with Dr. Morrison and his wife. After not achieving the result she desired, the student then reported the events to ANU bringing an investigation and ultimately the termination of employment of Dr. Morrison.
The factual circumstances of the matter were largely undisputed by the parties.
Breach of Policy?
The grounds relied on by ANU lay in the breach of the University Policy Guidelines and code of conduct rules. Relying on several provisions of the code including breach of duty of care, breach of duty to act in good faith, and duty about the use of position. ANU also relied on the Conflict Policy where it was stated
“The relationship between the parties should not affect the interests of other parties. Because the effects on other people at work or in the classroom are frequently not apparent to the persons involved in a close personal relationship…..”
The university further alleged that the conduct of Dr. Morrison constituted a breach of the harassment policies where his conduct was inappropriate in his supervision of a student.
The University called a new witness to give evidence that the conduct exhibited in the matter at hand was not a one-off instance. However, the FWC held that the evidence given by the new witness did not hold grounds toward the dismissal of Dr. Morrison. In their submissions, ANU argued that Dr. Morrison’s misconduct was contradictory to his obligations as an educator to maintain a professional relationship with his students. In one instance Dr. Morrison involved his wife who had aggressive communications with the student, ANU alleges that this action was a failure to re-establish a professional relationship.
The case put forth for Dr. Morrison contends that the conduct of the student was consensual and was initiated by the student. The position held by Dr. Morrison was one of research only and not as an assessing teacher. Dr. Morrison offered optional academic seminars and did not hold the power to grade, pass or fail the student. Dr. Morrison had consent from the student to take his clothes off and placed himself several metres away from her. He did not make direct advances to initiate sexual contact.
Considerations by FWC
The FWC carefully considered the provisions of section 387 of the Fair Work Act 2009 (the Act) to determine whether the dismissal was harsh. The FWC applied the criteria outlined by Byrne v Australian Airlines Ltd (1995)[1]. In applying this criterion, the commission determined that a valid reason under s387(a) of the Act, the reason must be well-founded. Furthermore, the Commission emphasised that it will not place itself in the position of the employer at the time of the dismissal, it is for the employer to demonstrate their reasoning before the commission.
It was held by the commission that ANU could not establish any breaches of their policy by Dr. Morrison. This was due to:
- according to the policies of the university, Dr. Morrison was not required to notify anyone of the relationship;
- at the time of the events, Dr. Morrison was no longer responsible for the student’s supervision, nor did he try to change her grades;
- when considering the harassment policies, the FWC did not find any breach of these, the conduct was completely consensual and in evidence (accepted by both parties), instigated by the student.
The FWC found that Dr. Morrison did not exploit his position in any way. Deputy President Lyndall Dean who resided in the matter criticised the ‘poor judgment’ of Dr. Morrison, however it was held that his conduct does not meet the requirements for a valid reason to dismiss. Dr. Morrison’s submissions were largely accepted by the commission, the FWC accepted that both students and staff, as adults, are responsible for their actions. The employer was unable to prove any misconduct, harassment, or breach of policy, therefore, leading to the determination that the dismissal was unfair.
Remedies
After considering the support provided by other female students and other colleagues, the FWC considered it was most appropriate to reinstate Dr. Morrison to his former position. The commission ordered that his employment be maintained moving forward under section 391 (2) of the Act. Under sections 391(3) and 391 (4) of the Act, the FWC ordered that the employer compensate the employee for the remuneration lost since the dismissal.
What should employers know?
Employers, organisations and entities should be wary of the precedent set by this case. Where ANU thought their long-standing policies were sufficient to terminate an employee they perceived as engaging in misconduct, they were no doubt astounded by the decision made before them. Policies must be precise, clear and express the direct conduct required.
The FWC in this matter has demonstrated that;
- Where matters involving conduct, it is not on the basis of probability, that the events may have occurred. Rather the commission will look to whether proven misconduct occurred.
- Employers’ belief on reasonable grounds after their investigative process is not sufficient to dismiss. The employer must look at the evidence before them when determining valid grounds for dismissal and cannot rely on assumptions.
- The employer must establish the misconduct upon which it relies;
- To ensure procedural fairness and natural justice an employer should give an employee an opportunity to respond to any allegations of misconduct;
- An employer’s policies should specifically state the required conduct asked of their employees in this case, the affair and sexual encounters in on itself is not the issue but the potential for conflict of interest is most inherent and any breach should be clearly identified in policy;
- Preventing consensual relationships in the workplace is fraught with danger as there is no general legal right to do so (there are some exceptions) – however, a policy could be in place to ensure that employees disclose the relationship to ensure there is an avoidance of a conflict of interest and clear policies around appropriate behaviour and professional conduct can also be set out.
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[1] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465
Written By
Director
NB Lawyers – Lawyers for Employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
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