A top mathematician who was sacked after he and a student kissed and swam naked together has won his job back, along with six months' pay.
But Scott Morrison will not be returning to his Canberra workplace yet, as the Australian National University (ANU) is appealing against the Fair Work Commission's (FWC) decision.
The ANU sacked Dr Morrison in January 2020 — just days after it promoted him to professor — over what it called an incident of sexual misconduct two-and-a-half years earlier.
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.
Both agreed that the student initiated the intimacy and it was consensual. At the time, she 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.
But FWC 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.
Relationship was neither close nor a conflict: arbitrator
At the heart of the legal dispute was whether Dr Morrison breached the ANU's conflict of interest policy.
This requires 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.
"If I am wrong about this and he was required to notify a supervisor, this is not a breach of the conflict policy that could reasonably ground a valid reason for his dismissal."
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.
Professor was 'less than clear' when rejecting student
The commission heard other evidence that the intimacy was not an extended relationship.
Dr Morrison told his wife about the beach incident when she attended the retreat the next day.
He spoke with the student the following day, and told her she was "a good person and attractive in many ways" but his wife was more important to him.
At the student's request, she met Dr Morrison two days later in a park and told him she was interested in an ongoing relationship with him.
The commission heard that Dr Morrison told her he did not want this but, because he was concerned not to hurt her feelings, he was less clear than he should have been.
The student contacted him several more times by phone and text over the next two months, and Dr Morrison said he again told her he was uninterested in a relationship.
On one occasion, he encouraged the student to call his wife rather than speak directly to him.
The student did so, telling his wife she felt a "special connection" to the academic; the wife yelled at and threatened the student.
Dr Morrison later apologised to the student for their beach interaction, and, according to the commission, tried to re-establish a professional relationship with her to check that she "was OK".
"He was less than clear in his communication with her that he was not going to have an ongoing relationship with her," Ms Dean said.
The woman completed her studies in June 2018. She told the ANU's dean of students about the beach interaction in August 2019 and, two months later, lodged an official complaint against Dr Morrison.
University has 'lost trust and confidence' in Dr Morrison
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, but Ms Dean rejected the ANU's arguments.
She said Dr Morrison had not breached any ANU policy, nor was he "dishonest and untruthful" as the university had suggested.
She also noted the professor's decision not to disclose the beach incident to his employer respected the student's request that he not tell anyone about it.
"His conduct demonstrates poor judgement. While his poor judgement might have resulted in some disciplinary action, it was not a valid reason for his dismissal."
She ordered that ANU reinstate Dr Morrison's position at the university and pay him six months' wages.
She also rejected the university's arguments that his reinstatement was unworkable, noting many of his colleagues had advocated for his return and two female students had given evidence of his respectful academic relationships with them and other students.
But the ANU has since applied successfully for a stay on Dr Morrison's return, saying it will appeal against the FWC's decision.
"The Australian National University respectfully disagrees with the decision and reasons of Deputy President Dean, which are inconsistent with the university’s approach to its workplace," an ANU spokeswoman said.
