ANU professor reinstated after intimate encounter with student
Dr Scott Morrison was an Associate Professor at the Australian National University (ANU). His employment was terminated after an internal investigation determined he had engaged in serious misconduct when he and a student (the Student) kissed after he stripped naked in front of her. Dr Morrison commenced an unfair dismissal application in the Fair Work Commission (FWC). In the matter of Scott Morrison v ANU [2022] FWC 301, the FWC found that while Dr Morrison’s conduct lacked judgement, it did not breach ANU policy and did not warrant his dismissal, and he was subsequently reinstated.
Facts
The Student was in her 20s and had been in one of Dr Morrison’s courses. Dr Morrison was in his mid 30s. He had seen the Student at classes, but had limited interaction with her. The course had concluded and all grading had been completed.
In November 2017, Dr Morrison organised and the Student attended a beachside retreat for students and academics. One evening, Dr Morrison and the Student went to the beach, where Dr Morrison took off his clothes and swam naked. The Student entered the water, wrapped her legs around Dr Morrison and kissed him. They later returned to the beach where they continued to kiss. The whole interaction lasted around 30 minutes.
After the interaction, the Student attempted to commence a relationship with Dr Morrison, but he distanced himself from her. In August 2019, the Student disclosed the incident to ANU’s Dean of Studies. Several months later, the Student made a formal complaint. Dr Morrison was stood down pending an investigation into the complaint. On 12 November 2019, Dr Morrison was provided with a letter of allegations and, after significant correspondence between Dr Morrison and his representatives and ANU, his employment was terminated in early 2020. He subsequently filed an unfair dismissal application.
After Dr Morrison’s dismissal, another student (the Second Student) came forward and told ANU that Dr Morrison had swum naked on a canyoning trip organised through the ANU Scuba Club. In the weeks afterwards, Dr Morrison confessed to the Second Student that he had a crush on her and made romantic advances towards her which she turned down.
Decision
The ANU took the view that the incident with the Student constituted serious misconduct, as Dr Morrison was obliged to ensure ANU’s duty of care to its students, and maintain professional relationships in light of his position of influence over the Student and her academic career. ANU believed that Dr Morrison should not have engaged in the behaviour, whether or not it was initiated by the Student, and contended that the evidence of the Second Student showed that Dr Morrison’s conduct with the Student was not isolated.
Dr Morrison accepted that his interactions with the Student were poorly handled but denied that his conduct justified the termination of his employment, because the Student had initiated the kissing. The dealings with the Second Student were not relevant because he did not teach the Second Student, who studied in a different faculty. Instead, Dr Morrison considered the Second Student a friend through their involvement in the Scuba Club.
The legal issue was whether the incident with the Student formed a valid reason for Dr Morrison’s termination, under either ANU policy or in the context of his role as a senior academic generally.
The FWC was satisfied that the conduct did not breach ANU policy. There was no prohibition on ANU staff engaging in consensual relationships with students; in fact, the policies expressly contemplated the existence of such relationships in requiring that staff members should not supervise or assess students with whom they have close personal relationships. The encounter was so brief that it may not even be considered a close personal relationship, but in any case, Dr Morrison was no longer involved in the supervision or assessment of the Student. Further, the incident was consensual, meaning it could not breach the Harassment Policy.
More generally, the FWC was satisfied that the conduct was initiated by the Student, and Dr Morrison’s conduct was not premeditated. While Dr Morrison’s handling of the situation after the interaction was clumsy, largely in an attempt not to hurt her feelings because he was not interested in pursuing a romantic relationship with her, there was no evidence that he had exploited the Student. He attempted to distance himself from her personally but re-establish a professional relationship with her.
In relation to the Second Student, the FWC noted that she and Dr Morrison had a history of attending Scuba Club activities together, and she only appeared to become uncomfortable after Dr Morrison made a romantic advance. After he was rejected, he respected her decision and did not pressure her. Therefore, the FWC did not believe that Dr Morrison’s dealings with the Second Student interfered with his obligations to ANU.
The FWC ordered that Dr Morrison be reinstated to his former position at ANU and that he be paid six months of unpaid wages.
Take Home Messages
While ANU has appealed this decision, the take home message remains that sexual and romantic relationships in the workplace should be approached with caution, particularly where there is an imbalance of power between the parties. However, entering into such a relationship may not be grounds for termination of employment, particularly where one party of the relationship does not have any supervisory role over the other and where there is mutual consent. The terms of any codes of conducts or behavioural policies, including personal relationship policies, will be key considerations.
If you would like to discuss any of the matters raised in this article, please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, Ganesh Krishnan on + 61 8217 1395 or gkrishnan@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.
