A recent decision of the Full Bench of the Fair Work Commission (the “Full Bench”) has overturned the decision to reinstate a university professor who engaged in consensual sexual conduct with a student. The decision is a reminder to employers about the importance of communicating clear standards of conduct in policies and to be aware of the dynamics in workplaces involving those in senior roles.
The conduct
The employee was an associate professor employed at a university at the time of the incident. The employee and the student engaged in sexual conduct while on a university retreat held at one of its campuses in November 2017. While it was agreed that the exchange was consensual, the student made a formal complaint almost a year later. The associate professor was dismissed by the university as a result of his conduct being deemed to be in breach of its Code of Conduct.
The original decision
The original decision of the Fair Work Commission (the “FWC”) found that the associate professor had not breached any of the employer’s policies or the Code of Conduct, stating that the Conflict Policy itself “expressly contemplates the existence of a ‘close personal relationship’ between a staff member and another staff member or student”.
The FWC found that there was no prohibition on a university staff member engaging in a consensual relationship with a student and dismissed the employer’s arguments that the employee had breached the Code of Conduct.
The FWC agreed that the associate professor had displayed poor judgment overall but held the dismissal to be harsh and unfair, and ordered that the associate professor be reinstated.
The Full Bench decision
The employer appealed the decision of the FWC to reinstate the employee. The Full Bench did not question that the interaction was consensual, nor the fact that the employer’s policies contemplated consensual sexual relationships between academics and students.
The Full Bench placed significant weight on the fact that the employee had engaged in the conduct during the course of a university educational activity and found this to be inconsistent with the employee’s employment obligations as a senior academic. Under the Code of Conduct the employee was obliged to “discharge his duties with a degree of care and diligence”. The Full Bench reflected that engaging in sexual conduct with the student during the retreat where his duty was to engage in the education of students and organise the retreat was completely incompatible with carrying out his duties with care and diligence.
The Full Bench also noted in the Code of Conduct that the employee was to “refrain acting in a way that would unfairly harm the reputation and career prospects of other staff and students”. On one occasion the associate professor had emailed the student following the incident requesting that she keep away from university seminars in the future. The Full Bench held that this request caused the student serious distress and resulted in her not taking a tutoring role at the university.
While overturning the decision, the Full Bench directed the parties to conciliate in an effort to reach a settlement. The Full Bench noted that the case was finely balanced one, in that there was a valid reason for the employee’s dismissal but also the decision may arguably be harsh as it not only involved the loss of his employment but his entire academic career.
Reminder for employers
In the end, the Full Bench made its decision to overturn the reinstatement order based on the specific wording of the employer’s policies. It is important that employers draft these policies carefully so they can be relied on in circumstances of misconduct.
