The Fair Work Commission has upheld an appeal from the Australian National University (ANU) over its dismissal of a mathematics professor after he engaged in inappropriate behaviour with a student.
Lecturer Scott Morrison was sacked in January 2020 over an incident that occurred two-and-a-half years earlier, when he and a student kissed and swam naked together.
But Dr Morrison won his job back in March after the Fair Work Commission found he was unfairly dismissed.
That decision has now been overturned, with the Fair Work Commission finding the ANU had the right to dismiss him for the incident.
The commission heard a student from one of Dr Morrison's courses had attended an academic retreat he ran at the ANU's Kioloa coastal campus.
In the evening, he invited her to the beach and removed his clothes to skinny dip.
The student then swam to him in her underwear, wrapped her legs around him and kissed him.
When they returned to the beach, she removed the rest of her clothes. She declined Dr Morrison's offer of oral sex but the pair were intimate without having sex.
After about 30 minutes, they returned to their own rooms.
At the time, the student was aged in her early 20s and Dr Morrison was in his mid-30s.
The ANU said Dr Morrison's behaviour was "highly inappropriate and unprofessional", and constituted a breach of his position of trust as a senior academic.
Sexual interaction occurred after grades were decided
In the Fair Work Commission's original decision, handed down earlier this year, deputy president Lyndal Dean dismissed most of the ANU's claims, saying that while Dr Morrison's conduct was "clumsy" and showed a lack of judgement, it did not warrant the loss of his job.
At the heart of the legal dispute was whether Dr Morrison breached the ANU's conflict of interest policy — requiring staff to declare a "close personal relationship" with a student if they supervise or assess them.
The policy defines this as "a relationship with … any person with whom there is currently, or has been, an intimate relationship".
Ms Dean noted there was no ban on ANU staff having consensual relationships with students, and found Dr Morrison was not required to tell anyone about the beach incident.
"[On] any reasonable view, the interaction could not be characterised as a close personal relationship given the whole of the interaction lasted no more than 30 minutes," she said.
She also noted that, at the time of the retreat, Dr Morrison was not the student's teacher and he had completed his role in determining her grades.
Student did not pursue PhD after incident
The ANU argued Dr Morrison's conduct was incompatible with his obligation to maintain professional relationships with students.
It said the incident had serious consequences for the affected student, who "felt shut out of the [maths] department and effectively did not pursue a PhD".
The ANU's solicitors also claimed Dr Morrison's behaviour had undermined the university's reputation.
They argued the institution had "lost trust and confidence" in him and it would be inappropriate to reinstate his job.
This week, the Fair Work Commission gave permission to the ANU to appeal the deputy president's decision, determining Dr Morrison's behaviour at the retreat to be "incompatible" with his duty as a professor.
"Dr Morrison's duty at the retreat was to engage in the education of students and to organise the retreat," the Fair Work appeal judges said.
"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 appeal judges also found there was a valid reason for Dr Morrison's dismissal from the university.
"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," they said.
"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."
They also found that, contrary to the deputy president's finding, the student had not conceded she initiated the interaction.
"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," they said.
In granting the ANU's appeal, the judges said all parties were invited to attend a conciliation meeting in a bid to settle the matter.
They said they would consider the impact of his dismissal on Dr Morrison's career.
"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," they said.
