By Darlene Rowlands
Content Warning: alleged sexual misconduct
A Full Bench of the Fair Work Commission (FWC) has overturned the February decision that Dr Scott Morrison was dismissed from ANU without valid reason, firmly rejecting the previous finding. In doing so, ANU’s appeal of the decision has been upheld. Other aspects of Dr Morrison’s unfair dismissal application are set to be redetermined, and Morrison will no longer be reinstated at ANU under the direction of the February decision.
A former student of Dr Morrison’s (Student #1) gave a statement to the University in October 2019. Student #1 was completing an Honours in Mathematics, and detailed a Kioloa retreat in November 2017 wherein Dr Morrison was sexually intimate with her on a beach. A number of interactions with Morrison and his wife following the November incident were also alleged to distress Student #1 to the extent that she severed any further engagement with the Mathematical Sciences Institute (MSI).
Dr Morrison was an organiser of the retreat, and the convenor of a course Student #1 was taking which had concluded coursework at that point. Dr Morrison was subsequently dismissed in February 2020 on the basis of “serious misconduct”, with ANU claiming he breached the Code of Conduct Policy alongside the Conflict of Interest and Commitment Policy in numerous respects.
Dr Morrison lodged an unfair dismissal application with the FWC shortly afterwards, with a decision first expected in March 2021. The application was reopened before the decision when additional but separate claims of misconduct against Dr Morrison were made by a second student.
The February 2022 decision by FWC Deputy President, Lyndall Dean, rejected both the University’s contentions that Dr Morrison had breached any university policy and that the conduct with Student #1 was plainly inappropriate. Dean based her finding on a number of primary facts about the 2017 retreat and interactions thereafter. She emphasised most strongly that Morrison having already submitted final grades for the course Student #1 was enrolled in meant his supervisory role had concluded, and that all intimate contact on the beach was consensual.
From Dean’s judgement of the primary facts, she concluded that the dismissal was “harsh, and as a result, unfair”. Dean ordered for Morrison to be reinstated to his position at ANU, and granted six months of back pay for lost remuneration.
ANU subsequently lodged an application to appeal the decision in March, which stalled Dean’s reinstatement order pending a decision of the Full Bench.
The Full Bench’s decision, issued this Monday 30 May, has concluded in opposition with Dean on the validity of Morrison’s dismissal. They state that “the Deputy President’s conclusion that no valid reason for Dr Morrison’s dismissal had been established in error” due jointly to “errors of principle”, “significant errors of fact”, and the failure to take into account “significant aspects of the evidence” in the University’s case to dismiss Dr Morrison.
In addition to Dean’s claim that Dr Morrison’s role as a supervisor had ended at the time of the beach incident, Dean found that ANU policy “did not ban staff from having consensual relationships with students”. Further, the beach incident was described by Dean to be “wholly consensual and instigated by [Student #1]”, which was generally corroborated by Student #1’s own evidence.
“Poor judgement was not a valid reason for dismissal”, Dean claimed.
The Full Bench considered that Dean had made a fundamental “error in principle” in her characterisation of the beach incident. Since the beach incident was “not private in nature …but was rather directly connected to his employment”, they argued that the ANU expectations of employee conduct did indeed apply to Dr Morrison, and he was thus in contravention of it based both on his conduct at the beach and his subsequent failure to disclose it.
“The retreat at Kioloa, as stated above, was a University educational activity and conducted on University premises”, they stressed. “Dr Morrison was present at the retreat in his capacity as a senior academic in the MSI as well as an organiser of the retreat, and the Student was there in her capacity as an Honours student in the MSI. All of Dr Morrison’s obligations as a senior academic with respect to a student therefore applied.”
“It is inconsistent with the employment obligations of a senior academic to utilise their employment to engage in sexual intimacy with one of their students, irrespective that this is consensual and even initiated in some respect by the student”.
Although the Full Bench accepted that an ANU academic being intimately involved with somebody who happened to be a student when it occurred in an entirely private context would likely not be fair grounds for dismissal, they maintained that “the factual context here is entirely different” to that scenario.
More broadly, they found Dean had made fundamental “errors” in her decision when she accounted for several factors that were irrelevant to the sole assessment of whether ANU had a valid reason to dismiss Dr Morrison. Her findings included that Student #1 “made a conscious decision to follow Dr Morrison into the water no doubt to make some contact with him”, and there was consequently “no basis to doubt that [Student #1] knew what she was doing”. Dean further judged that “Dr Morrison’s unwillingness to engage in a relationship with her upset her, culminating in her complaint to the University some 18 months after the interaction”.
“Leaving aside that we consider these findings were based on scant evidence and unfairly seek to cast [Student #1] as some sort of embittered seductress”, the Full Bench observed, “they involve a misconception as to the task which the Deputy President was required to undertake, namely to properly characterise Dr Morrison’s conduct in light of the employment duties and obligations he owed to the University in order to determine whether that conduct constituted a valid reason for his dismissal.”
The Full Bench proceeded to outline a number of significant facts that were either not included or incorrectly recounted in Dean’s decision. First, Dean’s assertion that Dr Morrison “did not have a teaching, supervision or administrative role with respect to [Student #1]” was made on the basis that grading for his course – in which Student #1 was enrolled – had been completed at the time of the retreat.
The Full Bench asserted this to be incorrect. They stated that although lectures for the course had indeed finished, marks for the final exam had been released, and Dr Morrison had submitted the final grade sheets for the course, “Dr Morrison retained the capacity to change the grades as at the time of the retreat”. Additionally, no indication had been found that Student #1 was aware Dr Morrison had completed grading, or that she knew he would not “alter her grading once it was determined”.
“The interaction between Dr Morrison and [Student #1] at a time when she was awaiting her final grade in his course”, the Full Bench continued, “had the potential…of giving rise to a perception that her grading may have been compromised”. As a consequence, “that undoubtedly meant that he did retain a teaching and supervision role with respect to [Student #1] at the time of the retreat”.
The Bench identified a further error in Dean’s finding that Dr Morrison was not dishonest during ANU’s investigation process; she had concluded that he “answered the questions that were put to him openly and honestly”. In addition to the incorrect suggestion that there was a specific question and answer process that took place, there was at least one recorded instance of Morrison providing contradictory accounts of the beach incident. Although he indicated in a ‘narrative summary’ submission to the ANU Review Committee in February 2020 that he felt Student #1 wanted further sexual contact whilst he did not, his primary witness statement provided at a different time claimed the opposite.
In the narrative summary, he stated that “at some point, I got cold and indicated I wanted to stop, and I felt at the time that I was disappointing [Student #1]”. In contrast, he said in his primary witness statement that “I recall at one stage I asked ‘Would you like to do more?’ meaning more than what we had been doing, and she said ‘No’”.
Finally, there were a number of instrumental facts in the University’s case to dismiss Morrison that were notably absent from Dean’s conclusion. This included the evidence provided by Student #1 that “while she and Dr Morrison were engaged in further physical intimacy…Dr Morrison said ‘[Student’s name], you are such a distraction at seminars’”.
Student #1 further provided that in response to her saying she didn’t appreciate him calling her a distraction, Morrison added “but that’s what makes it fun”. Morrison claimed he did not recall saying that, but did not expressly deny it. The Full Bench claimed the absence of this fact was significant as it “would also support an inference that Dr Morrison had formed a sexual attraction to [Student #1] well before [the incident]”.
The Full Bench added that there were discrepancies in the evidence given by Student #1 and Morrison about their interactions at the retreat that Dean “failed to consider and address”. This included Student #1’s claim that Morrison and her spoke twice at Kioloa following the beach incident, against Morrison’s claim they only spoke once afterwards, and her evidence regarding the content of their conversations.
According to Student #1, “Dr Morrison said he had told his wife about the beach incident and that his wife was upset and jealous of [her]” during the first conversation, and that in the second conversation he “was crying and said ‘I am sorry for dragging you into all my mess’”. There was “no reference to this evidence in the decision”, despite the fact that this may indicate that Morrison did not actually attempt to “re-establish a professional relationship” with Student #1 as claimed by Dean.
Student #1 also stated that Morrison had told her, in reference to their intimate contact on the beach, that “these sorts of things have happened before in the MSI”. Morrison admitted to saying this, but “the meaning of Dr Morrison’s comment…was not explored” despite the fact it may infer that he “believed that non-professional relationships between academics and students in the MSI were acceptable”.
The Full Bench concluded 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 [Student #1], and his lack of honesty in the investigation and review process, constituted a valid reason for his dismissal”.
“Since, as discussed, the Deputy President’s finding…was the sole basis for her conclusion that Dr Morrison’s dismissal was harsh and therefore unfair, the [ANU] appeal must be upheld and the decision quashed”.
The FWC will fully redetermine Morrison’s unfair dismissal application based on this decision, although the Full Bench accepts the majority of Dean’s other findings. Turning toward a re-assessment of other factors that may be considered relevant to the case under s.387(h) of the Fair Work Act, the Full Bench will “invite Dr Morrison to provide further evidence concerning his personal, employment and financial circumstances since his dismissal and…invite further submissions”. The Bench noted that Dr Morrison’s witness statement on the effects of his dismissal is now two years old, and “was somewhat vague about his post-dismissal employment and earnings (if any)”.
The Full Bench acknowledged that this case is “a finely balanced one”, whereby “there was in our view a plainly valid reason for Dr Morrison’s dismissal” alongside the consideration that the dismissal may have indeed been “harsh” due to its effect on Morrison’s “entire academic career” in addition to his employment at ANU. As a result, they have directed the parties to the application to attend a conciliation conference, wherein the matter may be voluntarily discussed further.
If this article has raised any concerns for you, or you have been affected by its content, support is available:
Canberra Rape Crisis Center 02 6247 2525 (7am–11pm) or 131 444 (after hours)
1800 RESPECT 1800 737 732
Domestic Violence Crisis Service
Lifeline 13 11 14
ANU Counselling [email protected]
ANU Student Wellbeing [email protected]
ANUSA Women’s Officer [email protected]
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