Termination of skinny-dipping Academic is found not to be unfair?
The Full Bench of the Fair Work Commission (FWCFB) has upheld the Australian National University’s (ANU) appeal over the dismissal of a mathematics professor after he went skinny-dipping with a student before kissing her and engaging in intimate but not sexual intercourse with her.
Background
This matter concerned a Mathematics Academic employed by the ANU, Dr. Scott Morrison (not the former Prime Minister).
The facts of the case were that the ANU terminated Dr. Morrison’s employment for serious misconduct in 2020 after it found he had stripped naked in front of a student at a secluded beach on a mathematics retreat in late 2017 and was “sexually intimate” with her.
At the time, Dr Morrison was in his mid-30s and the student was in her early 20s.
Dr. Morrison challenged his termination. The matter came before the Fair Work Commission (FWC) Scott Morrison v Australian National University [2022] FWC 301. The FWC Deputy President Dean found there was no valid reason for dismissal as Dr. Morrison did not breach any policy.
DP Dean said that whilst the interaction was “clumsy” no policy was breached as the intimate interaction was brief and consensual and Dr. Morrison was not required to disclose it.
The ANU appealed the finding to the Full Bench. In the recent Appeal decision of Australian National University v Scott Morrison [2022] FWCFB 83, the FWCFB overturned DP Dean’s decision and granted the ANU leave to appeal
The Full Bench found that it was inconsequential for the FWC at first instance to have focused on the nature of the intimacy between the parties at the retreat as it inferred that the student was a “seductress”. This was inherently wrong and took emphasis away from Dr. Morrison.
Rather, the FWCFB found that Dr. Morrison had an overarching duty to supervise and mentor his students and this extended to his time at the retreat. It was his breach of this duty in line with his actions at the retreat that constituted a valid dismissal on the part of the ANU.
Key takeaway points
Employers should note the following:
Employees who are in a position of seniority with trust and supervision need to be aware that out of work conduct that places them in a situation where that trust can be breached can then place their job in jeopardy;
It is the conduct of the employee subject to the disciplinary issue that is in question and not the third party; and
It is important to undertake a comprehensive and external workplace investigation to assess the weight of the evidence and the facts in question.
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
