A lecturer sacked by the Australian National University after swimming naked and kissing a student was unfairly dismissed and should be reinstated, the industrial umpire has found.
The Fair Work Commission handed down the decision, saying there was no valid reason for dismissing the academic, because his encounter with the student was consensual and had not violated any university policies.
However the Australian National University has obtained a stay on Fair Work's reinstatement order and is appealing the decision, saying the commission's reasons are inconsistent with the university's approach to its workplace.
The academic went to a beach to look at bioluminescence in the water with a student during a retreat on the NSW south coast in November 2017.
He stripped down and went swimming.
The student followed the associate professor into the water wearing her underwear. She swam to him, and without being asked or encouraged, wrapped her legs around him and kissed him, the Fair Work Commission said in its decision handed down in Canberra.
The commission also accepted evidence from the lecturer that he asked the student whether she objected to him taking off his clothes, and she did not object.
The lecturer, who was in his mid-30s, and the student, in her mid-20s, later kissed on the beach before they returned to their separate accommodation.
Deputy president Lyndall Dean said the two did not have sex, and their contact both in the water and later on the beach was wholly consensual and instigated by the student.
The student had been enrolled from June 2017 in a course in which the man was the lecturer. However he did not have a teaching, supervision or administrative role relating to the student at the time of the retreat at ANU's Kioloa campus on the south coast, an event he co-organised. All grading of the students enrolled in the lecturer's course had been completed.
The university lecturer later told the student in November 2017 that what happened between them at the beach "was not a good idea", and said while he thought she was "a good person and attractive in many ways", his relationship with his wife was more important.
The lecturer, who had told his wife about the incident, asked the student not to tell anyone what had happened at the beach.
Deputy president Dean said the student was "keen" to pursue a relationship with the lecturer, and made efforts to meet him on on several occasions.
When the student called the lecturer in December that year, he told her to contact his wife and gave her his wife's mobile number. The student called and told the lecturer's wife she felt she had "a special connection" with the lecturer.
His wife then asked him to avoid the student because "it's only going to make things worse for her", referring to the student's obvious interest in the lecturer that was not reciprocated, the commission said.
He met with the student in January 2018 at the ANU campus, apologised to her for his lapse in judgment, suggested they should not have further personal contact, and said he wanted things to return to how they were before their encounter at the beach, the industrial umpire found.
'Highly inappropriate conduct'
The student, who finished her studies at the university in June 2018, made a formal complaint about what happened at the retreat in late 2019.
ANU suspended the lecturer in November that year pending an investigation into the complaint, and in January 2020 told him he would be dismissed.
The ANU said he had "engaged in highly inappropriate, unprofessional conduct by taking the [student] to a secluded beach, alone at night, stripping naked in front of her and was thereafter sexually intimate with her".
It said the lecturer had consistently failed to understand why his conduct was inappropriate, and that it constituted serious misconduct.
The university said this was completely antithetical to his obligation as an educator to maintain professional relationships with students and to discharge his role in ensuring the university's duty of care to its students.
The ANU argued his conduct had serious consequences for the student, who it said felt shut out of the department, did not pursue a PhD, and had given evidence that after the interaction she did not feel comfortable or supported by the lecturer to continue study.
It dismissed the lecturer "because of his dereliction from his duties and his demonstrable lack of insight and judgment when dealing with students, such judgment and insight being essential to his duties", the university confirmed.
The ANU also argued thatthe lecturer's conduct towards the student was not an isolated event. It said in an interaction with a witness during a canyoning trip in April 2016, in her first year at university, the lecturer stripped naked in front of her and sat naked in front of her while he ate his lunch.
It said he had also sent her Facebook messages to the effect that he had a "bit of a crush" on her and had thought about her sleeping in his bed, referring to when she had "house sat" for the lecturer when he and his family had been away.
The ANU said the witness was made to feel uncomfortable by the lecturer because she was not interested in a relationship with him, he was older and was an ANU staff member.
Legal counsel for the lecturer said that in relation to the witness, he had voiced feelings towards her in circumstances where they had been friends, and that she was not and would never be a student under his power and control.
It also argued that the situations involving the student and witness were not comparable, as he had asked the student for her permission before he swam naked, and he did not undress right in front of the witness during the canyoning trip as he was several metres away from her at the time.
The lecturer gave evidence he had never been intimate with the witness, they had been friends for some time and had developed "a crush on her", whereas he had no prior feelings for the student prior to the interaction at the beach.
The Fair Work Commission found that none of the lecturer's interactions with the witness interfered with his obligations and duties to the university."
The legal counsel for the lecturer said the case, at its core, was about whether conduct he engaged in towards two young women ought to warrant the termination of his employment.
The legal counsel for the lecturer argued the case was not and should not be about personal views on whether there is anything inherently wrong with a relationship between people where there is a large age gap.
It also said it was irrelevant that the lecturer and his wife had something akin to an open relationship, having slept with other people with the consent of the other during their marriage.
'Poor judgment'
Deputy president Dean on February 21 this year found there was no valid reason for the lecturer's dismissal, and that the decision was harsh and unfair.
The lecturer did not breach policies on harassment or conflicts of interest, because his interaction with the student was consensual, and in lasting only 30 minutes was not a close personal relationship, deputy president Dean said.
"There is no prohibition on ANU staff engaging in a consensual relationship with a student," the deputy president said.
"While it is clear that [the lecturer]'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 [the lecturer] exploited his position in any way," the deputy president said.
"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.
"I am also satisfied that even though [the lecturer]'s conduct did not warrant his dismissal, it demonstrated a lack of judgment that should not be condoned."
Deputy President Dean said legal counsel for the lecturer summed up the matter well in saying the student and the witness "is a grown woman responsible for her own life and she must live with the decisions she made with regard to romantic interests she chose to pursue (or not).
"To make a ruling that the applicant in this case was liable for how a student felt about having her romantic attentions ultimately rejected in one case, or having to tell him that if he was interested in anything beyond friendship she was not in another, would be to uphold disciplinary action not authorised by policies, his contract or the law.
"It is also essentially paternalistic behaviour towards women that subjugate them to social norms rather than the law or policy and their own free agency."
Deputy president Dean said she was satisfied based on the lecturer's evidence that he was "fully cognisant" of the effect of his actions and there would be no repeat of this type of conduct.
"Were there to be further such conduct, [the lecturer] ought to expect to be dismissed as a result," she said.
Deputy president Dean ordered the lecturer to be reinstated from March 7, 2022 and that the university pay him six months' worth of lost wages.
An ANU spokesperson said the university disagreed with the decision and reasons of deputy president Dean, which the spokesperson said were inconsistent with the university's approach to its workplace.
The university is appealing the decision, and has obtained a stay of the reinstatement order while the matter is determined on appeal.
