A lecturer sacked by the Australian National University after swimming naked and kissing a student was fairly dismissed, the industrial umpire has found after an appeal by the ANU against an earlier decision.
In February, the Fair Work Commission handed down the initial decision, saying that there was no valid reason for dismissing the academic because his encounter with the student was consensual and had not violated any university policies.
It said then that the academic went to a beach to look at bioluminescence (when water sparkles in moonlight) 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 initial decision handed down in Canberra.
But after an appeal by the ANU, the commission has decided to overturn that decision and rule instead that the dismissal was fair. It found that even though the 30 minute swim and contact were consensual, ANU rules had been broken.
The appeal decision turned on whether it was within the ANU's rules to behave as the lecturer did, rather than the appropriateness of the consensual acts at the time.
The appeal ruling says that the lecturer's "duty at the retreat was to engage in the education of students and to organise the retreat. 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 took into account that the student and the lecturer had to interact subsequently, and this had "long-lasting consequences for the Student: it led to her subsequently becoming involved in a series of what were, on any view, intensely personal interactions with both (the lecturer) and his wife, and plainly caused her emotional distress".
The lecturer, in the appeal panel's words, "plainly did not conduct himself with care and diligence as to the consequences of his actions on the evening of 21 November 2017, used his position as a senior academic and organiser at the retreat to place himself in a compromising position alone with the Student on the beach, and did not treat the Student in her capacity as such at a University educational event but rather interacted with her as if he was engaged in a purely private social activity.
"The effect and consequence of (the lecturer's) conduct was to establish a non-professional, personal relationship with the Student - a situation which he was required to avoid and, once it occurred, to disclose to the University. He did neither, and thus placed at risk the trust which the University reposed in him."
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, was asked by the student not to tell anyone what had happened at the beach.
The commission's deputy president Lyndall Dean said at the initial hearing that the student was "keen" to pursue a relationship with the lecturer, and made efforts to meet him 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.
In the initial hearing, one of the deputy president's of the Fair Work Commission found there was no valid reason for the lecturer's dismissal because he hadn't breached 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.
"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 at the initial hearing.
"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."
The appeal has disagreed.
