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Consensual sexual conduct justified dismissal – Redundancy/Layoff

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Background

A recent decision of the Full Bench of the Fair Work Commission (the “Full Bench”) has overturned the decision to reinstate a university professor who engaged in consensual sexual conduct with a student. The decision is a reminder to employers about the importance of communicating clear standards of conduct in policies and to be aware of the dynamics in workplaces involving those in senior roles.

The conduct

Dr Morrison was an associate professor at the Australian National University (“ANU”) at the time of the incident. Dr Morrison and the student engaged in sexual conduct while on a university retreat held at ANU’s Kioloa campus in November 2017. While it was agreed that the exchange was consensual, the student made a formal complaint almost a year later. The associate professor was dismissed by ANU as a result of his conduct being deemed to be in breach of ANU’s Code of Conduct.

The original decision

The original decision of the Fair Work Commission (the
“FWC”) found that the associate professor had not breached any ANU policies or the Code of Conduct, stating that the Conflict Policy itself “expressly contemplates the existence of a ‘close personal relationship’ between a staff member and another staff member or student”.

The FWC found that there was no prohibition on an ANU staff member engaging in a consensual relationship with a student and dismissed ANU’s arguments that Dr Morrison had breached the Code of Conduct.

The FWC agreed that the associate professor had displayed poor judgment overall but held the dismissal to be harsh and unfair, and ordered that the associate professor be reinstated.

The Full Bench decision

ANU appealed the decision of the FWC to reinstate Dr Morrison. The Full Bench did not question that the interaction was consensual, nor the fact that ANU’s policies contemplated consensual sexual relationships between academics and students.

The Full Bench placed significant weight on the fact that Dr Morrison had engaged in the conduct during the course of a university educational activity and found this to be inconsistent with Dr Morrison’s employment obligations as a senior academic. Under the Code of Conduct Dr Morrison was obliged to
“Discharge his duties with a degree of care and diligence.” The Full Bench reflected that engaging in sexual conduct with the student during the retreat where his duty was to engage in the education of students and organize the retreat was completely incompatible with carrying out his duties with care and diligence.

The Full Bench also noted in the Code of Conduct that Dr Morrison was to “refrain acting in a way that would unfairly harm the reputation and career prospects of other staff and students”. On one occasion the associate professor had emailed the student following the incident requesting that she keep away from university seminars in the future. The Full Bench held that this request caused the student serious distress and resulted in her not taking a tutoring role at ANU.

While overturning the decision, the Full Bench directed the parties to reconcile in an effort to reach a settlement. The Full Bench noted that the case was finely balanced one, in that there was a valid reason for Dr Morrison’s dismissal but also the decision may arguably be harsh as it not only involved the loss of Dr Morrison’s employment but his entire academic career.

Reminder for employers

In the end, the Full Bench made its decision to overturn the reinstatement order based on the specific wording of ANU’s policies. It is important that employers draft these policies carefully so they can be relied on in circumstances of misconduct.

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