Dr Aleksander Owczarek v The University of Melbourne
[2024] FWC 1368
•20 DECEMBER 2024
| [2024] FWC 1368 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dr Aleksander Owczarek
v
The University of Melbourne
(U2023/13159)
| DEPUTY PRESIDENT BELL | MELBOURNE, 20 DECEMBER 2024 |
Application for an unfair dismissal remedy – allegations of misconduct partially sustained – applicant informally warned and issued apology in March 2021 – no further misconduct - delay in conducting formal investigation until 2023 – dismissal unfair – reinstatement appropriate – order for lost pay not appropriate.
Overview
The applicant, Dr Aleksander Owczarek, was summarily dismissed by the respondent, The University of Melbourne (the University), on 14 December 2023. The applicant seeks an order for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act), primarily in the nature of reinstatement.
The reasons for dismissal were alleged serious misconduct, said to be constituted by a combination of sexual harassment (primarily in the nature of the extended pursuit of an unwelcomed romantic or non-platonic relationship) and inappropriate workplace behaviour by the applicant toward a work colleague (primarily unwelcome communications or attempts to communicate on repeated occasions for non-work matters), the latter of whom is described in these reasons as the “Complainant”[1]. During the period of alleged misconduct, the applicant was Acting Dean of the School of Sciences at the University, and the Complainant reported directly to him.
The critical incident of conduct commences at a dinner between the applicant and the Complainant on 26 September 2019, at a restaurant in Melbourne. At that dinner, the applicant was said to have placed his hands on his colleague’s hands (the applicant says they jointly held hands) and said “I love you” or similar words (the applicant takes issue with the exact form of words said, the context and alleged reciprocation by the Complainant). The University then relies on a series of communications or unwelcome attempts at contact over the course of the following 15 months to January 2021. Many of those communications, being text messages or emails, were not in dispute and none of them were in any way sexual. What was in dispute was the characterisation of those actions, with the University contending they were said to be in furtherance of pursuing a romantic relationship.
In addition to disputing aspects of the conduct relied upon by the University and the characterisation of other conduct, a central element of Dr Owczarek’s case concerns a meeting he had with human resources on 18 March 2021, where Dr Owczarek was told to “stop” all contact with the Complainant. Dr Owczarek’s contention was that he completely complied with that directive and he did not attempt to, or make, contact with the Complainant at all from that date. This period essentially coincided with a change in work roles by the applicant, such that he no longer had any professional dealings with the Complainant.
In the beginning of 2023, Dr Owczarek applied for a position that would once again see him working with the Complainant. At that stage, the Complainant made a formal complaint to the University about the matters from 2019 to early 2021, which the University formally investigated, and led to his dismissal.
Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. While there ended up being some extensions to those dates, in part for matters outside the parties’ control, those directions were complied with.
The applicant filed witness statements on his own behalf, and a number of supporting documents. The University filed statements by Mr Mark Dean (the CEO of Enmasse, a consultancy firm that provided workplace behaviour consultancy services to the University), Ms Erica Edmands (a solicitor appointed by the University to conduct its investigation), Professor Nicola Phillips (Provost at the University), Ms Julia Hampshire (Human Resources Director for the Faculty of Science at the University), and the Complainant. All witnesses were cross-examined. The hearing spanned six days in total, supplemented by extensive written submissions.
The parties were represented by solicitors and counsel, with permission having previously been given.
Factual findings
Dr Owczarek completed undergraduate studies in physics in 1985 at the University of Queensland and then his PhD in theoretical physics in 1989 at the Australian National University. After completing a postdoctoral fellowship at the University of Oxford throughout 1989 to 1991, he was continuously employed at the University of Melbourne since February, 1992. His employment at the University was all within the Department of Mathematics and Statistics or within the broader Faculty of Science.
In December 2000, Dr Owczarek was ‘tenured’ and in 2010 was appointed a full professor. The applicant’s research record is impressive. At the time of the hearing, he had published 134 refereed journal articles, many within leading international journals. He has been the principal or sole chief investigator for more than nine Australian Research Council grants and chief investigator in a further ten.
Employment obligations and policies
Dr Owczarek’s most recent contract of employment was dated 2 November 2016. His contract provided that he was required to comply with the University’s “Discrimination, Sexual Harassment and Bullying Policy and Procedures” and to complete the online learning course “Promoting Positive Workplace Behaviours”. The contract also provides that Dr Owczarek’s employment was subject to the University enterprise agreement and various policies and regulations.[2]
The University had a policy known as the Appropriate Workplace Behaviour Policy. Version 3 of the Appropriate Workplace Behaviour Policy came into effect on 19 August 2019 and applied to the allegations between August 2019 and 7 November 2019. Version 4 of the Appropriate Workplace Behaviour Policy came into effect on 8 November 2019 and applied in respect of all allegations occurring after that date.
The objectives of the Appropriate Workplace Behaviour Policies are expressed to detail the standards, values and expectations for appropriate behaviour in the workplace, in particular the obligations on individuals to act in good faith, with trust, ethically, and with integrity in the best interests of the University.[3]
Both versions 3 and 4 of the Appropriate Workplace Behaviour Policy contain the following values (which are separately stated to be obligations) at clause 4.2:
“Consistent with the University’s strategic imperatives in the pursuit of excellence, the University’s values are:
(a) maintaining the highest international standards of ethics and quality in research, teaching and administration;
…
(d) advocating and upholding fundamental human rights;
…
(g) [version 3] / (h) [version 4] maintaining a respectful, safe, rewarding and environmentally sustainable learning and working environment.”
Both versions of the Appropriate Workplace Behaviour Policy provide, at clause 7.3:
“An individual must not directly or indirectly, or incite others to, engage in any of the following behaviours, in any circumstance which may have an impact on the workplace:
…
(c) engage in sexual harassment;”.
Both versions of the Appropriate Workplace Behaviour Policy contain a definition of sexual harassment, which is as follows:
“Sexual harassment is unlawful in accordance with the Sex Discrimination Act 1984 and Equal Opportunity Act 2010. Sexual harassment is any unwelcome and uninvited harassment where the behaviour has a sexual element or implication and the harasser in all the circumstances should have reasonably anticipated that the other person would be offended, humiliated or intimidated. The harasser does not need to intend to offend, humiliate or intimidate, or even to know, that this was the effect of the behaviour for this conduct to breach this policy or be against the law.”
The University also has a Sexual Misconduct Prevention and Response Policy, which came into effect on 14 October 2021. The scope of that policy was expressed to apply to a “disclosure or complaint” about a “current incident or one that has occurred at any time in the past”. The University’s case before the Commission, at least as based upon breaches of University policies, was confined to relevant version of the Appropriate Workplace Behaviour Policy. For clarity, I understand that the Sexual Misconduct Prevention and Response Policy governed how complaints or disclosures would be managed but the assessment of breaches of any policy was measured against the policy in force at the time of the alleged conduct.
At all relevant times, the terms of the University of Melbourne Enterprise Agreement 2018 (the enterprise agreement) also applied to Dr Owczarek’s employment.
Dr Owczarek completed training on the Appropriate Workplace Behaviour Policy on, relevantly, 25 February 2018 and 12 February 2020.[4] As accepted by Dr Owczarek under cross-examination, the above obligations are important values which staff, and, in particular, the Dean must take seriously. He also accepted that it was a matter of personal and professional responsibility for him in his role as Dean (i.e. a leader) to establish and maintain appropriate boundaries in his workplace relationships.[5]
Overview of allegations
In 2023, the University conducted an investigation into the allegations against Dr Owczarek. The period of allegations spanned mid-2019 to March 2021. That investigation culminated in various documents that set out which allegations the University considered were substantiated, and how they were characterised. There were initially 13 allegations in total (including sub-categories), typically under headings “Allegation 1” and so forth.
For the purposes of the matters relied upon by the University for the dismissal and in the hearing before the Commission, it relied upon:[6]
· “inappropriate workplace behaviour” in breach of sections 4.2(a), (d) and (g)/(h) of the Appropriate Workplace Behaviour Policy, allegations 1(c), 2(a), 7 and 11; and
· both “sexual harassment” and “inappropriate workplace behaviour” in breach of section 7.3(c) of the Appropriate Workplace Behaviour Policy, allegations 2(b), 2(c), 12(b), 13(a)(ii), 13(a)(iii), 13(d), 13(e) and 13(f).
A summary of the findings from the investigation was provided to Dr Owczarek on 11 August 2023.[7] An important feature of the investigator’s findings was how the issue of sexual harassment was approached and the types of conduct that might constitute sexual harassment. The summary document provided to Dr Owczarek concluded that “None of the conduct complained of, other than possibly the unnecessary familiarity Professor Owczarek engaged in regarding [the Complainant’s] family and/or questions about her private life (mother, children) which [the Complainant] found intrusive, fall within any of these concepts. There are no allegations of inappropriate touching, no suggestive comments or jokes, no sexually explicit texts or emails and no requests for sex.”
The distinguishing feature was that the investigator found that Dr Owczarek had a “strong romantic attraction to [the Complainant] and by behaving in the way he did (in terms of the substantiated behaviours) he was motivated by romantic attraction as well as/in addition to work.”[8]
It was the combination of a “romantic attraction” or motivation with some of the conduct that led to the specific findings of sexual harassment.
With those explanations, it is convenient to extract the allegations relied upon by the University (original emphasis) for both sexual harassment and inappropriate workplace behaviour:
| Allegation | Finding |
| (Allegation 1(c)) “On a date unknown [in or about early – mid September 2019), took your wife to a store that you are aware [the Complainant] shopped at Camilla and Marc. Whilst there you took photos on your phone of your wife. In the Dean’s office in the Old Geology Building, University of Melbourne you showed [the Complainant] the photos on your iPad of your wife in the clothes, saying to [the Complainant] words to the effect that ‘these were clothes you felt would suit [the Complainant]’.” | “Partially substantiated Conduct was unwelcome at the time but was not conduct of a sexual nature. The behaviour was inappropriate given the professional nature of the relationship between Professor Owczarek and [the Complainant].” (original emphasis) |
| (Allegation 2(a) & (b)) “You were both at a work dinner at DiStasio on 26 September 2019 to celebrate [the Complainant] being appointed to the role of Faculty Executive Director (FED). At the time you were the Acting Dean of Science. It is alleged you: a. Held [the Complainant’s] hand across the table; b. At the conclusion of the dinner when outside, said to [the Complainant] words to the effect ‘I have never felt like this before, I have strong feelings’ and ‘I love you.” | [For 2(a)] Substantiated Inappropriate behaviour given the nature of the professional relationship between Professor Owczarek and [the Complainant]. [For 2(b)] Substantiated Sexual harassment and inappropriate behaviour given the nature of the professional relationship between Professor Owczarek and [the Complainant]. |
| (Allegation 2(c)) The following morning, 27 September 2019 at 11.54am you sent [the Complainant] a text which said: ‘As I have potted around an empty house this morning kept company only by a sleepy furball until a few moments ago and during a slow meditative run I have been supremely serene and a feeling of utter happiness has pervaded my existence. I am extremely grateful to be alive. Thank you so much for the most wonderful evening. Yours always. Aleks. P.s who needs white powder when you have this.’ | Substantiated Sexual harassment and inappropriate behaviour given the nature of the professional relationship between Professor Owczarek and [the Complainant]. |
| (Allegation 7) It is alleged that during the period November – December 2019, you engaged in unwelcome conduct of a sexual nature and/or inappropriate workplace behaviour given the professional nature of the relationship between you and [the Complainant]. Particulars You were aware that [the Complainant] did not want contact from you and did not engage in text or email exchange conversations with you. It is alleged: | Partially substantiated Conduct unwelcome. No sexual element or implication to the behaviour. Not sexual Given that [the Complainant] had been clear about the professional nature of the relationship she wanted at this point, the behaviour was inappropriate given the nature of the professional relationship between Professor Owczarek and [the Complainant]. |
| (Allegation 11) It is alleged that on 16 June [2020] you engaged in workplace behaviour that, given the nature of the professional relationship between you and [the Complainant], was inappropriate. Particulars It is alleged: You engaged in behaviour that was inappropriate, unreasonable, and distressing and that was intended to get [the Complainant’s] attention and to engage her into replying to you. [the Complainant] sent you a text the next day to say that had upset her. It is alleged that on 16 June 2020, you sent [the Complainant] two texts about 2pm. [the Complainant] did not respond to you. At 6.37pm that evening you sent another text and at the end said, ‘on a sad note Malte (an academic staff member that [the Complainant] did not know personally) had lost a baby and that puts things in perspective’. | Substantiated Unwelcome and inappropriate given the nature of the professional relationship between [the Complainant] and Professor Owczarek. |
| (Allegation 12(b)) It is alleged that on various dates during 2020 you engaged in unwelcome conduct of a sexual nature and/or workplace behaviour that, given the nature of the professional relationship between you and [the Complainant], was inappropriate in attempting to find ways to meet face to face with [the Complainant] when face to face meetings were not necessary. It is alleged: … b. When cafes re-opened on 16 November 2020 and [Melbourne residents] were permitted to go to cafes, you requested [the Complainant] meet you at a café for a meeting. You said you would come to her and proceeded to arrange a meeting in a cafe in the street adjacent to [the Complainant’s] personal residence. You required her to meet you there a couple of times. [the Complainant] sent you a text asking if you could go back to Zoom meetings | Substantiated Inappropriate behaviour Unwelcome conduct with a sexual element or implication that Professor Owczarek should have realised was likely to offend, in the sense of causing [the Complainant] displeasure or distaste. Sexual harassment. |
| (Allegations 13(a)(ii), 13(a)(iii), 13(d), 13(e) and 13(f)) It is alleged that between 3 and 20 December 2020 you engaged in unwelcome conduct of a sexual nature and/or workplace behaviour which, given the nature of the professional relationship between you and [the Complainant], was inappropriate. Particulars In the first week of December 2020 when the new Dean commenced there was a farewell dinner for you held in Carlton on a Friday night, 4 December 2020 and another event held in the city on the Monday night 7 December. It is alleged: | |
| a. At the Friday 4 December 2020 event: i. …; ii. After the event you sent [the Complainant] text messages, which were unwelcome, saying you did not get to catch up with [the Complainant] and that you would come to Gertrude St, where she lives, for a catch up. | a i Not Substantiated ii Substantiated Inappropriate behaviour Unwelcome conduct with a sexual element or implication that Professor Owczarek should have realised was likely to offend, in the sense of causing [the Complainant] displeasure or distaste. |
| iii. [the Complainant] responded saying she ‘did not have any time between now and Xmas’. As soon you received this text you started calling her and sending her multiple unwelcome texts that she did not respond to. … | iii Substantiated Inappropriate behaviour Unwelcome conduct with a sexual element or implication that Professor Owczarek should have realised was likely to offend, in the sense of causing [the Complainant] displeasure or distaste. |
| d. At the time of these two events, between 3 and 10 | Substantiated Inappropriate behaviour Unwelcome conduct with a sexual element or implication that Professor Owczarek should have realised was likely to offend in the sense of cause [the Complainant] minor displeasure or distaste. |
| e. On 10 December 2020 [the Complainant] sent you a text advising you she had ‘no free time between now and Christmas. Despite this, you called [the Complainant] and continued to ask her to catch up with you, and have coffee and continued to contact her, including on New Years Day at | Substantiated Inappropriate behaviour Unwelcome conduct with a sexual element or implication that Professor Owczarek should have realised was likely to offend in the sense of cause [the Complainant] minor displeasure or distaste. Sexual harassment. |
| f. On 1 January 2021 [sic 31 January 2021] at 5.31pm you sent an unwelcome | Substantiated Inappropriate behaviour Unwelcome conduct with a sexual element or implication that Professor Owczarek should have realised was likely to offend in the sense of cause [the Complainant] minor displeasure or distaste. Sexual harassment. |
Events of 2017 to mid 2018
Relevantly for the current proceeding, the applicant was appointed as Deputy Dean in the Faculty of Science in February 2017.
Pertinently, from about 2017, the Complainant was working in a role within the Faculty of Science in which the applicant and her began to have occasional work interactions, although there was no professional interaction at the time.
The applicant contends the relationship between them was friendlier than the Complainant suggests during this initial period from 2017. The applicant’s witness statement exhibited a number of emails and text messages said to demonstrate a friendly relationship between the two, although there were only a few predating August 2018 (the significance of which is described below). I prefer the Complainant’s account for this period and find there was nothing demonstrative of a “friendship which had developed around common interests” as the applicant suggests in his first witness statement.
In around March 2018, the Complainant commenced in the role of Manager, Strategy, Performance and Major Initiatives, which acted as a “2IC” role to a different Faculty executive role. At that time, the Complainant started to attend the same meetings as Dr Owczarek.
During this period, there was an unrelated workplace issue concerning a former senior administrator. There were, on the limited evidence of that matter before me (mostly of an historical hearsay basis), complaints made by the Complainant and, possibly, other staff at the time, which were resolved by the University at the time. The then-administrator relocated to a different role in a different faculty – on the applicant’s understanding, he considered this was causally connected to the Complainant’s influence, and is a basis for the applicant’s contention that the Complainant had “significant power”[9] to the extent that enabled her to “remove” a person of that seniority. To be clear, I express no views about that workplace issue nor even the accuracy of the factual circumstances described, save to note that Dr Owczarek placed some importance on them concerning his perception of the Complainant.
I pause here to note that the issue of “power” or “power imbalances” is a recurring theme in both parties’ submissions. It is a matter that I will return to below but I do not accept the submission in the applicant’s reply witness statement that the events from around mid-2018 demonstrated “power” or “significant power” by the Complainant at the time. The evidence, such as it was before me of these tangential events, was that the Complainant’s involvement in those events was simply as but one of a number of other actors.
I also do not accept the applicant held a belief at the time (or for some years later) that the Complainant was capable of wielding such power. At least according to a record of interview of Ms Hampshire signed on 29 June 2023[10], Dr Owczarek was concerned at the time to help “protect” the Complainant. The applicant’s own evidence of his “protective” role is similar.[11] While that is not inherently inconsistent with a belief – or the fact - of “significant” power, I consider that Dr Owczarek’s views on such matters were coloured by the later complaint lodged against him by the Complainant that led to his dismissal.
August 2018 to August 2019
In about August 2018, the Complainant was appointed to an acting role within the Faculty of Science. The role was a ‘professional’ role, in the sense to distinguish it from an academic role. At around that time, the University undertook a restructure of the Faculty of Science, which resulted in the applicant being elevated from the role of Deputy Dean to Acting Dean.
The role of Dean was a senior appointment. The Dean was to represent the Faculty of Science on the University’s Executive Committee. The Dean was ultimately responsible for the management of the Faculty, setting the Faculty’s strategic direction, dealing with campuses, courses, budgets, resources, marketing, communications and other aspects of teaching and learning. The Dean discharged those functions with the assistance of professional and academic staff.
In the Complainant’s executive role, her contract of employment dated July 2019[12] (whose terms appeared to be reflective of the Complainant’s duties and accountabilities while in her acting role from August 2018) provided that she was accountable to the Dean to “undertake duties, functions, responsibilities and behaviours required to achieve the performance requirements of the position set from time to time by the Dean.” The contract stated that the “Dean will assess the performance of the Executive within a timeframe and against criteria determined by the University.”
From August 2018, the professional working relationship between the applicant and Complainant became much closer, as did their friendship.
As to the professional relationship, the applicant regarded the Complainant “as my effective 2IC even though I had a Deputy Dean reporting to me.”
While there is some disagreement between the applicant and Complainant about the degree of personal closeness between the two, from outward appearances the two were good friends. For avoidance of any doubt at all, the circumstances I am describing here are not intended to convey any non-platonic relationship.
While that friendship was largely manifested within the confines of the working relationship, there were some instances where the two would associate essentially in a social context. For example, Dr Owczarek refers to a dinner at his house hosted by Dr Owczarek and his wife in which the Complainant and her family attended, although the only such event in question appears to have occurred in 2018 and others from work were invited. Dr Owczarek also identifies various other occasions or instances of what I consider to be purely social interactions. They include some drinks after work and other events (although all but one during this period included other work colleagues), and exchanges about their respective personal interests. The interactions were not all initiated by Dr Owczarek – the evidence discloses the Complainant inviting Dr Owczarek and his wife to the Complainant’s and her husband’s birthdays.
In his oral evidence, Dr Owczarek contends that over the 10 month period up to September 2019, there were four dinners and two other social occasions. Nonetheless, the majority of these involved other people.
Dr Owczarek asserts that the Complainant would “often” comment about what she considered was the “uniqueness” of their working relationship. The Complainant denies that, and I prefer her evidence. The Complainant did acknowledge that her relationship with Dr Owczarek was the “best working relationship I ever had with a manager” during this period and considered their relationship productive and effective.
Beginning around March 2019, the Complainant began to experience an increasing sense of disquiet about her perceptions of Dr Owczarek’s behaviour toward her. One event concerned him dropping off a second-hand toy horse to her house for her children. There were other events of more banal nature but the net effect of them was that the Complaint felt that Dr Owczarek was “infatuated” with her.
I pause at this junction to make some observations about aspects of the evidence from this period of time and the challenges of dealing with matters of nuance that occurred nearly half a decade prior to the time of the hearing. A number of matters concern relatively fleeting interactions in conversations between ostensibly good work colleagues. Friendships at work are not new. The degree of friendships is extremely varied. Part and parcel with friendships are that people will share information with each other, not necessarily equally, that would not be shared with someone who was not a friend. So much is well-known as ordinary human experience.
However, when the task falls to assess the character of some of these interactions, the starting point will necessarily include words spoken (for interactions involving a conversation) or websites viewed (another example in this matter) or photographs shown (a further example). But in making these assessments as to the overall character of an event, context and nuance might count significantly.
For a number of the general interactions between Dr Owczarek and the Complainant up to September 2019, neither witness could (and nor would I expect them to) give an account of the actual words in conversations surrounding the relevant events in any complete detail. A further difficulty with such a delay between the events in question and the individuals giving evidence about them is that much of the context and nuance is particularly difficult to capture.
As I describe further below, Dr Owczarek demonstrated a significant lack of insight into how his conduct might have impacted on the Complainant. While I generally prefer the evidence of the Complainant to Dr Owczarek on a number of the matters during this period of time, the Complainant herself was clearly viewing some matters coloured by her perceptions of Dr Owczarek’s intentions. To the Complainant’s credit, she candidly acknowledged a number of matters from early to mid-2019 “seemed trivial on an individual basis” but, in totality, she felt it was constant attention-seeking behaviour.
Allegation 1(c) - photographs
The first allegation of conduct in the chronology relied upon by the University concerned Dr Owczarek showing a photograph of his wife to the Complainant. The allegation states that “On a date unknown” Dr Owczarek “took your wife to a store that you are aware [the Complainant] shopped at Camilla and Marc. Whilst there you took photos on your phone of your wife” which he later showed to the Complainant.
While the date of this event is unknown, the best evidence is that this event possibly occurred in September 2019 (and before the dinner on 26 September 2019). There was a dispute as to whether the clothing was the brand ‘Camilla and Marcs’ (the Complainant’s recollection) or a different brand, ‘Anna Thomas’ (Dr Owczarek’s best guess). There is no suggestion that there was anything untoward about the photo as such (eg, being only partially dressed). Dr Owczarek’s evidence was that there were no photographs he possessed from around that time of his wife wearing Camilla and Marcs but only of Anna Thomas. No photographs were in evidence by either party. Dr Owczarek’s evidence in chief was that he had no recollection of showing those photographs (presumably the Anna Thomas photographs) to the Complainant. Somewhat inconsistently, he did speculate in a statement dated 18 May 2023 to the University during the course of its investigation that he “may” have shown photographs but contended the “context” was “that we had been to [the Complainant’s and her husband’s] birthday party, and they had been to our house. It was a polite comment to show off how beautiful my wife is — look at her new outfit. [The Complainant] had shown me purchases of her own and where she shops — my wife and I have never shopped in any of these stores.”
The allegation by the University forming part of its reason to dismiss Dr Owczarek was that the conduct was unwelcome but not conduct of a sexual nature. The University found the behaviour was inappropriate given the professional nature of the relationship between Dr Owczarek and the Complainant. I agree that the conduct was not of a sexual nature.
I also accept that the conduct was unwelcome, given that the Complainant’s view by this point was that there was far too much intrusion of personal matters into the working relationship with Dr Owczarek. However, I find that Dr Owczarek was not aware that the conduct was unwelcome and nor ought he have reasonably believed it was unwelcome at this point in time, although that is a belief that ought to have changed shortly after.
The University’s findings for this allegation underpinning the dismissal was that the behaviour was “inappropriate given the professional nature of the relationship” between Dr Owczarek and the Complainant. While the reference to “inappropriate” in this context is a reference to the University’s policies (which I described above), I briefly record here that am unable to share that conclusion. As I indicated above, nuance can sometimes be important. In this case it is. I do not accept Dr Owczarek’s speculation as to the “context” he described to the University’s investigator but, in fairness to Dr Owczarek, I cannot see how he could be expected to give accurate evidence of the context for what was at the time, for him, a relatively benign event. At least at that point in time, independent observers such as Ms Hampshire considered that Dr Owczarek and the Complainant were “close”. This was not an exchange between strangers and, even though the Complainant reported to Dr Owczarek, an event of that nature is capable of being part of a friendly relationship overlaying the professional relationship, albeit the context will be important.
In circumstances where the event occurred about five years prior to giving evidence, the photograph in question (or any possible photograph) was not in evidence and that Dr Owczarek and the Complainant were still being friendly at that point, I am unable to feel actual or positive persuasion that the event occurred in such a manner to constitute inappropriate workplace behaviour.
Allegations 2(a), (b) and (c) – the 26 September 2019 dinner and 27 September text message
The events in relation to a dinner on Thursday, 26 September 2019 (‘the 26 September dinner’) are described by the University as the “critical incident”, a matter I agree with. As with my observations above, the 26 September 2019 dinner was an event occurring over four years from the time of the dismissal and closer to five years from the time of giving evidence. Neither party made contemporaneous notes of the event and, in those circumstances, neither party is capable of giving a complete account of it.
It is not entirely clear what the reason for the dinner was. The Complainant’s guess is that the dinner was to celebrate her permanent appointment as Faculty Executive Director. Dr Owczarek denies this but does not provide a clear reason of his own. The Complainant’s evidence, which I accept, is that Dr Owczarek suggested the dinner and location, which was Di Stasio Citta, a restaurant in the Melbourne central business district and a short distance from the University.
It is also not clear when the dinner was arranged. The best evidence is some point in September 2019.
The Complainant’s evidence is that, particularly as the event came closer, she did not wish to go to the dinner but felt that she could not cancel, in part because Dr Owczarek had organised it and was her boss and in part because she felt he would keep asking her to go out to dinner. The Complainant’s reasons for not wishing to attend were mixed. They included a general desire to avoid further encroachment on her personal life with time spent with Dr Owczarek and her view he was overly interested in her. The reasons also included a general preference to be spending time with her family (and the day following the dinner was a public holiday in Melbourne). I accept the Complainant’s evidence of her feelings about the matter.
Such was the Complainant’s feelings about the pending dinner that she contacted Ms Hampshire, the Faculty’s HR Manager (her role at the time), about what to do. The Complainant’s evidence is that prior to the dinner, she had been sharing with Ms Hampshire her concerns about Dr Owczarek. While I accept that evidence, the details of what was shared were not before me.
About one day before the scheduled dinner, the Complainant told Ms Hampshire she did not want to go to the dinner. Ms Hampshire recalls, and I accept, that the Complainant said that Dr Owczarek had asked her out for drinks again and that she did not want to be out with Dr Owczarek all evening. Ms Hampshire told the Complainant that if she felt like she could not say no to Dr Owczarek’s invitation, she would call her while the two of them were out together, and she could tell Dr Owczarek that it was a member of her family and that she had to leave. This plan was agreed between the two.
On 26 September 2019, Dr Owczarek and the Complainant caught a tram from the University and then walked to the restaurant. The two had a few drinks between them but neither gave evidence of anything excessive or considered either party was particularly inebriated.
Ms Hampshire did contact the Complainant by telephone as planned. That call occurred at around 7.00pm - 8.00pm and was brief. Ms Hampshire recalls the Complainant laughed and said words to the effect of “it’s fine, I’m having a good time.” At 9.20pm, the Complainant then sent a text message to Ms Hampshire with a picture of two drink glasses clinking, which was an actual picture she took of her and Dr Owczarek holding their respective glasses. Accompanying that photograph to Ms Hampshire was two brief statements, the first being “We’re behaving ourselves” and the second “Thanks for calling x”.
The conversation at the dinner ranged. Each participant discussed various personal matters. As each party requested (and I made) confidentiality orders about those matters, I will not repeat them but I have had regard to them. While there are some differences in degree, those differences are not particularly material in my view.
Despite the Complainant’s apprehensions conveyed to Ms Hampshire, she states that the dinner was not as bad as she feared. Indeed, I infer the dinner started well and was generally enjoyable for both participants at least up until the closing stages of the dinner having regard to the above matters.
What followed at the concluding stages of the dinner were two critical allegations made by the University. The first allegation is that towards the conclusion of the dinner Dr Owczarek placed his hand on the Complainant’s hand at the dinner and the second, and related allegation, is he said something to the effect of “I have never felt like this before, I have strong feelings” and “I love you”. In the Complainant’s evidence, she also refers to an additional statement that was not put by her to the University investigator, which was that Dr Owczarek also said “I can see us being in each other’s lives for the rest of our lives” before saying “I love you”.
The parties addressed me on the applicability of the ‘Briginshaw’ standard or principles. Some precision needs to be adopted when the Briginshaw standard is invoked. Specifically, in the context of this matter, there is a factual difference between the physical acts that occurred and the factual state of mind of Dr Owczarek accompanying those acts. On the question of the physical acts that occurred, Dr Owczarek does not dispute holding hands but contends, not with consistency, that it was mutual. He also accepts that he said “I love you” but that the Complainant replied “I love you too”. The Complainant denies any mutuality and states Dr Owczarek took her hand from across the table and this immediately made her feel uncomfortable. I am comfortably satisfied that the Complainant’s evidence is to be preferred and I accept it to a level of actual persuasion that this event occurred consistent with the Complainant’s recollection.
Focusing firstly on the Complainant’s evidence, it is unchallenged and corroborated that the Complainant was significantly apprehensive prior to the dinner, so much so that she had arranged for the HR Manager to call and, if necessary, pass that call off as a family matter requiring her to leave. While up to this point the dinner had in fact gone very well, it is improbable she would have mutually reached out to hold hands with the very person she had been making plans to avoid. Then there is the Complainant’s reaction to the dinner. While she initially presented with a positive disposition to Dr Owczarek, that belied the reality. She expressed her concerns in the days following to her husband and sister. She also expressed her concerns to the HR Manager, Ms Hampshire. The Complainant took leave for the week following to deal with her distress. More generally, I consider that the Complainant’s evidence was the more credible of the two key witnesses and I also prefer her evidence on that basis.
The forensic significance of these discussions about personal matters was primarily put in issue by Dr Owczarek to explain or respond to those two critical allegations.
Focusing on Dr Owczarek’s evidence, I find his explanations about “context” unpersuasive and inconsistent. In his initial statement dated 17 May 2023 to the University investigator, he firstly referred to the personal matters each of the two had discussed – including a “very private” matter on his own account, before stating:
“In the context of our friendship I felt privileged that someone could be so open with me and allow me to do the same. It occurred to me that this was truly a special friendship — and to express this indeed I said something like “you know I love you” to which [the Complainant] immediately and enthusiastically replied with the same complement. We mutually held hands. It was absolutely meant as two besties would say to each other — the context is vital and the whole evening had been about our friendship and sharing much more than the professional.”
Dr Owczarek’s signed statement to the University investigator was in different terms. In that, he stated:
“There was an article in the Age about special work relationships which mentioned love. We both acknowledged we had that sort of deep working relationship that had a friendship to it. I was loving that feeling and we accomplished so much. It was me holding her hands saying; ‘you know I love you’ in that context — friendship, not sexual love.”
In his first witness statement, Dr Owczarek explained for the first time that he held the Complainant’s hands to “reassure” her about the personal matters she was disclosing, even though those matters apparently made Dr Owczarek “uncomfortable”. He stated:
“I told [the University investigator] Erica Edmands that I probably did hold [the Complainant’s] hands in the course of this dinner. She was telling me things which were clearly causing her some distress and I recall trying with my responses to reassure her that I was there for her. I was uncomfortable hearing some things she was telling me but I felt privileged that she considered me such a friend that she would disclose such personal parts of her life.”
In cross-examination, Dr Owczarek first stated that his recollection was that their hands “moved together” into the centre of the table but eventually “I may have moved my hands first, and then she’s reciprocated.”
In his first witness statement, Dr Owczarek takes umbrage at a statement by the University investigator that, at the dinner, “the two were engaged in an in-depth personal conversation”. Dr Owczarek’s evidence (which is in fact little more than argumentative submission) on that issue was that the investigator’s statement was a “gross mischaracterisation and underplaying [the Complainant’s] unsolicited disclosures” on personal matters.
The different explanations provided by Dr Owczarek are not inherently contradictory, however I do not consider them persuasive. Much of Dr Owczarek’s “contextual” evidence is no more than Dr Owczarek’s subjective assessment of events, imputing a state of friendship that did not exist as he believed it.
While I accept that, up to and including the dinner, the Complainant had not conveyed her increasing discomfort about Dr Owczarek to him, which had the result that he was genuinely unaware (nor, I consider, ought reasonably should have been aware) of those matters, it does not follow that there was any objectively reasonable basis for Dr Owczarek, at the end of those conversations, to place his hand on the Complainant’s hand and to state either at that time or shortly after “I love you” in essentially unqualified terms.
What Dr Owczarek evidently failed to understand was that work colleagues will often share quite personal matters about themselves to other work colleagues. Sometimes it is because the colleagues are very good friends but, in many cases, they are simply just colleagues and that matters of a personal nature can and do arise in conversation or some particular context. Many work colleagues will often talk about family members, or friends, including about sensitive or personal subjects. It is a general part of the human experience that many people share their experiences with each other and many do so at work even though many will almost never converse with those same work colleagues out of work. Some employees might not share very much, some will overshare. There is nothing in the personal disclosures contained in the confidential evidence or the otherwise close working relationship between Dr Owczarek and the Complainant up until that point in time that justified Dr Owczarek’s conduct. Many if not nearly all were matters the Complainant had communicated with other work colleagues.
Dr Owczarek lost all sense of professional and personal objectivity, particularly in the context where he was Dean of the Faculty at a dinner alone with a younger, female work colleague who was a direct report to him.
At no point did Dr Owczarek appear to consider the potential impact of his conduct on the other. Dr Owczarek was cross-examined at some length. On the question of his insight, or lack thereof, it is somewhat of an understatement to observe that Dr Owczarek did not fare well as a result of that cross-examination. I consider that Dr Owczarek’s lack of insight into his effect on the Complainant and her responses (and lack of responses) to him was quite profound, not just about the dinner but also in the matters through to early 2021 which I describe below.
After the dinner, Dr Owczarek and the Complainant exchanged some text messages that night. Dr Owczarek relies on the messages sent by the Complainant to demonstrate that the events of the dinner had the character he contended. By way of example, the Complainant in one message referred to their “wonderful” evening. There is no doubt that those messages in part explain Dr Owczarek’s interpretation of events and I am not critical of him for his misunderstanding of the true position based upon them but I accept the Complainant’s explanation about them. Moreover, it is clear to me that the Complainant was affected by the events at the dinner, albeit I consider that the impact of the dinner did not fully manifest until the Complainant’s receipt of a text message the following day from Dr Owczarek.
The next day, Dr Owczarek sent the Complainant a text message (‘the 27 September text message’) as follows:
“As I have potted around an empty house this morning kept company only by a sleepy furball until a few moments ago and during a slow meditative run I have been supremely serene and a feeling of utter happiness has pervaded my existence. I am extremely grateful to be alive. Thank you so much for the most wonderful evening. Yours always. Aleks. P.s who needs white powder when you have this.”
It is difficult to read such a message, sent as it was by a Faculty Dean to an employee directly reporting to him. It must have been difficult for the Complainant to receive and I have no hesitation in accepting her evidence that this text message confirmed in her mind that Dr Owczarek had deeper feelings for her than friendship.
In his evidence in chief, Dr Owczarek says little of this text message of substance other than:
“My intention was simply to follow up on my concern that [the Complainant] was clearly troubled by the matters she had raised with me at the dinner. I was trying to convey the sentiment that life could be good just doing ordinary everyday things and I would be there to support her as a platonic friend.”
Dr Owczarek’s explanation is simply unpersuasive and I do not accept it. There is no part of the 27 September text message that expresses any indication of “concern”. To the contrary, the euphoric language of the text message provides further objective indication that Dr Owczarek’s placement of his hand on the Complainant’s hand at the 26 September dinner was not about his concern for her feelings but an expression of his own feelings.
29 September 2019 – 1 October 2019
On Sunday, 29 September 2019, the Complainant responded to the 27 September text message. The Complainant’s message apologised for the “slow reply” and was generally light in tone and states (among other matters) she “hope you’ve continued to have a restful and happy weekend” and concludes with a friendly sign off.
Dr Owczarek submits the Complainant’s text message supports the contention that she took no offence to Dr Owczarek’s text message. I do not accept this submission. I do accept Dr Owczarek’s submission that he was unaware of the Complainant’s actual state of mind. However, I accept the Complainant’s evidence that at this stage she did not know how to respond to Dr Owczarek and her response was a holding message to “keep the peace” while she worked out what to do.
On the same day, the Complainant later sent an email to Dr Owczarek and to Ms Hampshire stating that she had been feeling unwell and would not be attending work the next day, which she did not do.
On 30 September 2019, Dr Owczarek sent the Complainant a text message in reference to her email, expressing (appropriately in my view) that he was hoping the Complainant would be feeling well soon. Over the course of that day and the next, he sent a total of nine text messages, none of which were responded to. A number of those text messages were of a level of banality – multiple photographs of Dr Owczarek with work colleagues in a dress up at a work function – that did not need to be sent but I acknowledge that, at the time they were sent, Dr Owczarek was unaware of the Complainant’s distress.
Also on 30 September 2019, the Complainant and Ms Hampshire spoke and exchanged messages. The Complainant’s evidence is that she told Ms Hampshire about the 26 September dinner and that Dr Owczarek had said he “loved” her. Ms Hampshire’s recollection is marginally less detailed but consistent. Ms Hampshire’s witness statement says she advised the Complainant to tell Dr Owczarek that she did not reciprocate his feelings. The Complainant told Ms Hampshire she would do that in writing.
The Complainant remained away on personal (sick) leave.
2 October 2019 text message and reply
On 2 October 2019, the Complainant sent Dr Owczarek the following text message (‘the 2 October text message’):
“Hi Aleks, I haven’t been able to come into work this week because what you said on Thursday night made me very uncomfortable. We are friends but no more than that. I need to establish more space between work and personal life and I hope our working relationship can continue. I’m not able to talk to you about this at the moment.
[Complainant]”
On the same day, Dr Owczarek replied to the 2 October text message in the following terms:
“Hi [Complainant]
I am very sorry to have made you feel at all uncomfortable and will work with you to make sure you feel right.
Aleks”
Also on 2 October 2019, Dr Owczarek sent the Complainant a second message. The substantive parts of what he wrote were:
“As you may appreciate I am struggling to undertake my work understanding I have so deeply hurt you
I am cognizant of the number of issues in my inbox and of course PBC [Planning and Budget Conference] next week
I do understand your need to have some time as a breather
However, I would appreciate the earliest opportunity to apologize in person and hopefully get our working relationship back on track”
Notwithstanding the implied contrition on Dr Owczarek’s behalf in his reply text messages, that was not the reality. The evidence Dr Owczarek gave was that he did not consider he had done anything wrong but he was “simply responding to [the Complainant] telling me I had made her uncomfortable”, a matter that he did feel sorry about.
However, further diminishing his apparent contrition, Dr Owczarek states that the Complainant in fact “caused me discomfort” by the extent of the “very personal” information she shared at the 26 September dinner (I refer to my observations about those matters, above). Dr Owczarek’s second text message on 2 October 2019, above, further indicates that Dr Owczarek was as much focussed on the impact to him as exhibiting concern for the Complainant.
In his first witness statement, Dr Owczarek states that he “accept[s] that [the Complainant’s] message to me was implying that I had wanted something more than friendship”, albeit he considered her assumption wrong. It is not clear from Dr Owczarek’s evidence if that was his state of mind at the time of or in the weeks after the message was received or merely at the hearing, but I infer the former.
In Dr Owczarek’s closing submissions, he submits:
“The Complainant’s 2 October 2019 text message says “we are friends, but no more”. That is exactly the nature of the relationship which ensued.”
The 2 October text message was an important communication. I conclude that the gravamen of what it conveyed, given the circumstances in which it was delivered, were significantly understated by the applicant.
The evidence and submissions of Dr Owczarek focus on a selected aspect of the literal text from that communication and fundamentally disregards what messages it conveyed.
Focusing simply on the text of the 2 October text message, the following matters are plain:
· First, it states (as was the case) the Complaint had not come into work that “week”. That itself was a strong signal that there was serious concern.
· Second, it states the reason the Complainant had not been at work was “because” of what “you” [i.e. Dr Owczarek] said on “Thursday night”. The reference to Thursday night can only be to the dinner on Thursday, 26 September 2019.
· Third, what Dr Owczarek said made the Complainant “very uncomfortable”. This ought to have immediately caused Dr Owczarek to reflect on what he “said” that night. There is no serious evidence of anything else Dr Owczarek said, other than his declaration that “I love you”, that might possibly have caused the possible result that the Complainant would be so affected so as to be unable to work for the following week. Dr Owczarek was aware he said those words.
· Fourth, and with the above context, the statement “We are friends but no more [than] that” is hardly a declaration of any solid or robust friendship in the context of an employee treading a fine line in how to address a matter of conduct concerning her direct supervisor.
· Fifth, the concept of friendship itself is a spectrum. I acknowledge different people may view that spectrum differently. But here the Complainant was expressly stating she would “need to establish more space between work and personal life”. That is, whatever the state of perceived friendship between the two prior to the dinner, the Complainant was unambiguously indicating that, from this point in time, it would need to be different and, specifically, more strictly professional.
· Sixth, the Complainant merely said she “hope[d]” the working relationship can continue. Again, far from providing a ringing endorsement of the health of their working relationship at that time, the Complainant could simply “hope” that it might continue. Whether those hopes would be realised was a matter for the future.
· Seventh, if further cues were required for Dr Owczarek, the Complainant was “not able” to even talk about the matter with Dr Owczarek at the time.
What also did not occur to Dr Owczarek was to reflect on the 2 October text message in the context in which this was written. That context arose directly out of a one-on-one dinner he had with a direct report, to whom he said “I love you” and who had clearly been made “very” uncomfortable (this, self-evidently, being an understatement) and for whom a working relationship would need to continue. It should have been apparent to Dr Owczarek that writing such a message was itself a matter of considerable difficulty for a person in the Complainant’s position.
7 October 2019 meeting
The Complainant sent Ms Hampshire a copy of the 2 October text message on the day she sent it. In addition, the Complainant had “frequent discussions” with Ms Hampshire while she was on leave. Among other matters, Ms Hampshire told the Complainant that she should also discuss with Dr Owczarek her feelings on the matter. The Complainant determined to do so.
At some point while the Complainant was on leave, Dr Owczarek requested to meet with Ms Hampshire. I infer the timing of the meeting was after the 2 October text message but before the Complainant returned to work.
Dr Owczarek’s purpose for the meeting with Ms Hampshire was to inquire about the Complainant. Unsurprisingly, both witnesses’ recollection of the meeting are imperfect. I am satisfied that Dr Owczarek told Ms Hampshire, with sincerity, that he had not meant to upset the Complainant but also said he wanted to hear the Complainant’s voice. At some point during the conversation, Ms Hampshire said to the effect that Dr Owczarek needed to stop this, at which Dr Owczarek responded that he did not understand. Ms Hampshire said to the effect “but you do”.
On 4 October 2019, the Complainant returned to work.
On 7 October 2019, the Complainant and Dr Owczarek had a meeting. There is some dispute about whether the meeting took place in a “scheduled” meeting time or not but nothing turns on this.
In Dr Owczarek’s first witness statement, he provides very little detail of the event. He states that the Complainant “told” him that she did not think that Dr Owczarek had been suggesting anything “illicit or inappropriate” in his “conversation” with her or subsequent message. Dr Owczarek’s oral evidence was a little different. He said in oral evidence he raised that particular subject[13] by asking, ‘You know I wasn’t suggesting anything illicit or inappropriate in what I said or did’, and she said, ‘Alek, I didn’t think you were.’ In the Complainant’s oral evidence, she denied that she told Dr Owczarek that she did not consider there was anything illicit or inappropriate but agreed that Dr Owczarek raised the matter. She denied agreeing with Dr Owczarek that there was nothing illicit or inappropriate but did not contradict him.[14]
The balance of Dr Owczarek’s evidence is that he and the Complainant “agreed” that the issue was regarded as “resolved and concluded” and, for his part, he “confirmed” that he was not interested in any “intimate” relationship with her. As to the first of these two items, the Complainant recalls saying something like “so I don’t need to worry about this” and being assured “no”. She also states one of them “may” have said “we would move on and put the matter behind us” but it was not put to her that the words “resolved and concluded” were used. The Complainant agreed in her oral evidence that Dr Owczarek said he was not interested in an “intimate” relationship with her.
The Complainant’s evidence in chief also includes her telling Dr Owczarek that she did not have “feelings” for him and asked him to confirm he had no feelings for her. Dr Owczarek agreed he said in the meeting he denied having feelings for the Complainant.
The Complainant’s evidence in chief described her saying to Dr Owczarek to the effect that their relationship was “only a professional one, that we were only colleagues and that I did not have feelings for him”. While Dr Owczarek acknowledged the topic of “feelings”, he denies in his reply evidence that the Complainant said “that we were no longer friends but only professional colleagues”. Dr Owczarek’s denial elides what the Complainant said. She did not assert she said “we were no longer friends”, she said “I told Dr Owczarek that our relationship was only a professional one, that we were only colleagues and that I did not have feelings for him”.
Again noting the passage of time between this event and the hearing, neither witnesses’ recollection of the meeting is particularly clear and there are no contemporaneous notes. The Complainant acknowledges there are matters she may not recall. And, despite the “very clear” recollection of the meeting that Dr Owczarek asserts he has in his first witness statement, the high-level conclusionary language of his evidence – we “agreed…”, I “confirmed …” and “I felt it had cleared the air” – and differences in his oral evidence belies that clarity. Curiously, in his oral evidence, Dr Owczarek states the Complainant “hardly spoke” in the meeting, a proposition I have some difficulty accepting so far as indicating that the few instances where the Complainant did speak included assuring Dr Owczarek that the matter was “resolved and concluded” and he did nothing “illicit or inappropriate”. The Complainant was attending the meeting in (for her) very difficult circumstances and with particular objectives in mind, which was to reiterate her lack of “feelings” for Dr Owczarek and to convey that their relationship was only to be a “professional” one as “colleagues”. I again find that the Complainant’s evidence is more reliable of the two.
I am satisfied that at the 7 October meeting, the Complainant stated that she and Dr Owczarek were “only colleagues” and their relationship a “professional one”. Dr Owczarek provided assurances that he did not have “feelings” for the Complainant. I accept that Dr Owczarek stated he was not suggesting (from the 26 September dinner or 2 October text message) anything “illicit” or “inappropriate” and the Complainant did not contradict him (notwithstanding her private reservations about the matter). I do not find that either party stated the matter was “resolved and concluded”, although I accept that Dr Owczarek formed that belief.
The Complainant felt that she was treading a fine line between what she could say and not impacting her employment. I accept that is how she viewed matters and the events were clearly very difficult for her. She also did not take at face value the assurances that Dr Owczarek had provided her about his lack of interest, a matter I now address.
Dr Owczarek’s state of mind
A recurring element of the University’s case is that Dr Owczarek was motivated by the pursuit of a romantic (non-platonic) relationship. On the University’s case, it was the coexistence of the pursuit of a romantic relationship together with certain specific communications or events between October 2019 and March 2021 that amounted to sexual harassment.
This question of Dr Owczarek’s state of mind is a difficult one. On the one hand, the largely unqualified declaration of “love” at the 26 September dinner, coupled that evening with the unsolicited placing of his hand on the Complainant’s is plainly indicative of a romantic or non-platonic interest. The gushing, unsolicited language of the 27 September text message reinforces this view.
On the other hand, Dr Owczarek was adamant throughout his evidence that he was not so motivated. He did not deviate from that view and appeared sincere in doing so, despite a number of other difficulties I had with other aspects of Dr Owczarek’s evidence (such as his lack of insight about the expectations of the Complainant and Dr Owczarek’s conduct toward her). The positions are difficult to reconcile.
During the University’s investigation in 2023, Ms Hampshire was asked by the investigator to describe Dr Owczarek. She did so, with particular bluntness:[15]
“Describe Aleks: He is fairly typical of someone in maths and stats and in that particular school. Very little in way of EQ. Wants to be admired, to be liked. He is a dandy very vain and buys this ridiculously expensive stuff (designer clothes, artworks) – He doesn’t seem to have grown up. I would say he is like a teenage boy with a romanticised view of what life is like and what women are like. He is a ditherer, cannot make his mind up, a very poor public speaker as he stutters a lot, very emotional. He is a disaster waiting to happen because he romanticises friendships.”
Ms Hampshire’s observations in her record of interview did not make their way into her witness statement. While her record of interview was tendered into evidence, I do not adopt her observations as proof of any of those observations (which they plainly cannot prove). However, Ms Hampshire’s description of someone who has a “romanticised” view of the world is one that rings true.
To adapt Ms Hampshire’s observations, I conclude that Dr Owczarek had a romanticised world view of his friendship with the Complainant (and quite likely others) but I do not feel an actual sense of persuasion that he was pursuing or was motivated to pursue any romantic or non-platonic relationship with her. That is not to be taken as an endorsement of his conduct or to excuse it - Dr Owczarek clearly crossed a professional boundary and, for reasons described later, the events of the 26 September dinner constituted sexual harassment. But for the following events of November 2019 to March 2021, I find that Dr Owczarek was not motivated by the pursuit of a romantic or non-platonic interest.
A different aspect of Dr Owczarek’s state of mind concerns his assessment of the strength of friendship between himself and the Complainant after the events of September and October 2019. I note this in the specific context of Dr Owczarek’s reply evidence, where he states “There was no indication given to me that we were no longer friends until 10 March 2021 and when [the Complainant] made this clear to me for the first time, I acted on her request.”
As with the 2 October text message, the 7 October meeting was an important event. In addition to the matters actually said at the meeting, there is what was conveyed. Putting to one side that the spectrum of “friendship” is a very broad one, the evidence of Dr Owczarek that there was no “indication” by mid-October 2019 that he and the Complainant were no longer friends seriously misinterprets the clear messages being conveyed by the Complainant, first by the 2 October text message and now in the 7 October meeting where she states the two are “only” colleagues.
It is difficult to read the 2 October text message, followed by the discussion at the 7 October meeting, as conveying much room for a genuine friendship – as distinct from a cordial and professional working relationship – but I accept that was Dr Owczarek’s subjectively held view. Unfortunately, Dr Owczarek’s understanding of their relationship seemed only to be a slightly muted version of his understanding of their friendship prior to the 26 September dinner. This was not the case. Dr Owczarek’s misguided view of matters had another consequence, which was that he overestimated the strength of the work collegiality with the Complainant after the 26 September dinner. It meant he continued to send communications to the Complainant that were unwelcome, caused her unnecessary distress, and further caused her to consider that he was attempting to pursue her romantically.
Events of November to December 2019 (allegation 7)
The Complainant was on pre-planned annual leave from 14 – 29 October 2019. In early November 2019, the Complainant and Dr Owczarek attended a work conference in Brisbane. A number of events during this period continued to cause the Complainant distress due to her perceptions about Dr Owczarek’s intentions towards her. However, as no allegations of misconduct are alleged by the University in this period, it is unnecessary to set them out.
Between 21 November 2019 and 2 December 2019, the Complainant took leave. She did so to avoid Dr Owczarek. Dr Owczarek was aware that the Complainant was on leave but the reason for that leave was not known to him.
On 21 November 2019, the first day of the Complainant’s leave, Dr Owczarek sent the Complainant the following text message:
“Hi [Complainant]
Hope things are ok with you and your [a family member] is on an even keel
We are having so much fun here
We had to evacuate Creswick [a University rural campus] today because of the bushfires
All good - everyone out
Not before some academics went into the forest and were nearly crushed by falling trees
It was very windy!
I can’t fathom what they were thinking !!!
Tonight is the launch of the John McKenzie fund event so I think that should be good
On Tuesday I saw photograph 51 and had dinner with 19 female STEM leaders which was inspiring
Today I had lunch with Gen and Emma which was pleasant
Physics is still a pain...
Take care Aleks”
The Complainant did not respond to his message.
On 27 November 2019, Dr Owczarek sent the Complainant the following text message:
“Hi [first name initial], Hope all is looking better for you mate. Tres amicalement. A”
The Complainant did not respond to his message.
On 5 December 2019, Dr Owczarek called the Complainant on her mobile phone at about 4.47pm. The call was not answered and Dr Owczarek did not leave a message. The Complainant did not call him back.
On 6 December 2019, Dr Owczarek sent a text message stating “On my way”. The message, sent at 2.01pm on a Friday, appears to be a work-related message and no evidence was led to the contrary. There is no reply to the text message.
On 18 December 2019, Dr Owczarek sent a text message of what is obviously a presentation he was viewing or some work-related document on a computer screen in front of him. There was no reply to that message.
I would not have commented upon the telephone call of 5 December 2019, or text messages on 6 and 18 December 2019, save that these three events were included in ‘allegation 7’ as inappropriate behaviour. As I understand their relevance, to be inappropriate conduct, it could only be due to the fact that the communication attempts were unnecessary and outside of the working relationship. I cannot make that conclusion and observe that the two text messages ostensibly appear to have a positive connection to work. While I accept it is clearly possible that communications ostensibly about work matters may in fact be unnecessary (and, in the context of this case, be said to demonstrate attempts to further a romantic or non-platonic relationship) I cannot draw that conclusion on the material before me. I again reiterate my observations concerning the difficulties of adducing reliable evidence about isolated communications or attempted communications as part of a wider working relationship, particularly when that forensic task is being undertaken years after the events in question.
Toward the end of December 2019 (the exact date is not clear), Dr Owczarek gave the Complainant a Christmas card and a small gift. The card stated:
“What an extraordinary year we have had: full of challenges at every turn.
You should feel very proud of what you have accomplished. Thank you so
very much for being such an amazing leader. I admire your tenacity, your
intelligence and your determined authority. You inspire me every day and
drive me to do better all the time. I trust you, and your judgement across
the whole business, implicitly. I know of no other colleague, academic or
professional I could say that of. Our work partnership is something I truly
cherish. We are formidable team and I am looking forward to next year
(and hopefully the years to come)! I will do my utmost to support you – I
will always have your back.Your friendship is something I also deeply respect and will endeavor [sic]
to be the best and true friend I can be to you. You have my commitment
in that. You have made me a better person. Hopefully we will have time
for some laughter and negronis to make the undoubtedly new challenges
in 2020 seem less so!”
In response, the Complainant purchased Dr Owczarek a small gift and gave him a Christmas card. Her card was less effusive than Dr Owczarek’s card, and stated:
“Dear Aleks
Best wishes for the festive period and I hope you have a wonderful break with your family.
Thank you for your support and calm guidance over the past 12 months.
Looking forward to a great 2020!
[Complainant].”
The Complainant’s evidence, which I accept, is she gave Dr Owczarek the card and gift because he gave her a card and gift and she felt obliged. Dr Owczarek was not aware of the Complainant’s reservations (and, to be clear, that is not a criticism of the Complainant, who was plainly having difficulty managing her concerns about her direct supervisor).
At least in relation to the communications described in allegation 7, Dr Owczarek says:
“In the proper context of our working relationship and my friendship with [the Complainant] (and her husband), this engagement with [the Complainant] was simply a continuation of the same communications that had been a feature of the interactions previously between us. I had no reason to believe that anything had changed” (my emphasis).[16]
The above view of Dr Owczarek, namely that his relationship with the Complainant after the 26 September dinner was “simply a continuation of the same” relationship prior to that event, is an unfortunate illustration of the significant lack of insight Dr Owczarek ought to have had in light of the very clear messages conveyed by the Complainant in the 2 October text message and at the 7 October meeting. In a similar vein, he states that the text of 21 November 2019 was “chatty” and sent “in the usual way we had been accustomed to engage with each other”, further illustrating that the messages that had been clearly conveyed to him by the Complainant had unfortunately not been understood.
Events of 16 June 2020 (allegation 11)
The investigation conducted by the University initially canvassed a number of allegations spanning the first half of 2020, albeit the allegations were ultimately found not to be established and were not otherwise pressed. Notwithstanding, aspects of these allegations made their way into the evidence and, for the purposes of the chronology, I will very briefly note them.
The first two allegations (allegations 8 and 9) concerned COVID-19 ‘lockdowns’ in Victoria for the period March 2020 to May 2020. During March 2020, Dr Owczarek scheduled a “Daily Catchup” meeting of 30 minutes’ duration, which was then scheduled for every second day in April 2020 and were stopped when the lockdown stopped. For the same period, it was initially alleged that meeting agendas for meetings between Dr Owczarek and the Complainant had items added to them that were unnecessary to their work relationship. While the Daily Catchup meetings and agenda items were found by the investigator to be “unwelcome” from the Complainant’s perspective, the investigator found they were neither inappropriate or sexual harassment and the proceeding before me was maintained on that basis.
On 2 June 2020, Dr Owczarek sent the Complainant a text message. The message, sent at 8.59pm, was plainly unrelated to work and contained a newspaper link to a story reporting the death of the fashion designer, Anna Thomas, who is mentioned above. The Complainant did not respond to the message. While this text message was included in the University’s evidence, it did not form part of the allegations against Dr Owczarek during the investigation nor was it conduct relied upon by the University as a valid reason.
I note that the University asserts[17] more broadly that, during 2020, there was unchallenged evidence that Dr Owczarek continued to contact the Complainant “frequently” about personal matters. While it is correct that the Complainant’s witness statement did state Dr Owczarek “frequently” contacted her, the only examples given were those described above and what follows for allegation 11.
Allegation 11 relies upon a text message sent on 16 June 2020 at 6.37pm. Dr Owczarek sent three text messages that day. The first two were sent at 2.08pm and, on their face, were work-related. One of those two messages was about a “steering committee” meeting and the other about a discussion with a work colleague, which Dr Owczarek stated he “can elaborate next time we talk”. The Complainant did not respond to either message.
The third text message, at 6.37pm, addressed two items: the first was, on its face, a work-related matter. While that matter was work-related, it is doubtful that it needed to be sent at that particular time, although it appears broadly of the character of other work-related messages sent by Dr Owczarek. The second item the text message addressed was a highly personal matter[18] about a work colleague. I accept the Complainant’s evidence that the colleague in question was a colleague she had never met although she knew of. As the Complainant stated in her reply text message the next morning, she found the message upsetting.
The University took issue with Dr Owczarek’s statement to the University investigator, which was to the effect that Dr Owczarek considered it was appropriate for the Complainant to know about the issue with the work colleague out of care and concern for that colleague. The University contends the message was “designed” to get the Complainant’s attention so that she would respond to him on a personal level and was inappropriate workplace conduct, although it does not contend it was sexual harassment. While I consider there was nothing about that part of the text message that could not wait until Dr Owczarek and the Complainant next spoke – and, indeed, it would have been more appropriate to convey that information in that forum – I am not persuaded the message was a device or hook designed to elicit a response. Unknown to the Complainant at the time, Dr Owczarek himself had been told that information by a very senior University academic for the very purpose of ensuring that the Faculty of Science dealt with that staff member “gently”, in the context of other changes about to occur that would affect that staff member. Dr Owczarek was passing that information on, as the evidence before me indicates he did with others (although no communications are included). I note that Dr Owczarek apologised to the Complainant after she told him his message upset her.
Events of September 2020 (allegation 12(b))
In September 2020, there was an announcement that the permanent position of Dean of Science had been finalised. Dr Owczarek was unsuccessful for the position. The new Dean of Science would be commencing on about 7 December 2020, with Dr Owczarek remaining as Acting Dean until then.
At the beginning of November 2020, there were evidently some changes to the work environment associated with the pending exit of Dr Owczarek as Acting Dean. Dr Owczarek gave a specific example of a “stressful situation” at that time, where he considered it was necessary to defend his team, which included defending the Complainant. Between 2 and 5 November 2020, the Complainant and Dr Owczarek exchanged text messages about it. Those messages were, in my view, positive.
Allegation 12(b) states that, after about 16 November 2020 (which is identified as when ‘cafes re-opened’ in Melbourne), Dr Owczarek requested to meet the Complainant at a cafe. The context to the cafes reopening was that, during September 2020 in Melbourne, ‘lockdowns’ were ongoing due to Victorian Government impositions at the time. The cafe meetings were about work, although the Complainant states that at the end of the meetings, Dr Owczarek would keep talking as if it was a social catchup. The meetings made the Complainant uncomfortable and, after two meetings, she requested their meetings return to Zoom meetings rather than in-person, which appears to be what occurred.
I acknowledge that the Complainant did not want to be meeting face to face with Dr Owczarek, however I accept Dr Owczarek’s evidence that there was no inappropriate motive in doing so and, as his evidence indicates, he considered sitting in a cafe at that time in Melbourne a “novelty” after the extended periods of restrictions that had recently been imposed.
Events of December 2020 to February 2021 (allegation 13)
By 7 December 2020, the direct working relationship between Dr Owczarek and the Complainant was to cease, as Dr Owczarek would be concluding his role within the Faculty of Science executive and would be returning to a substantive position of Professor with the School of Mathematics.
Relevantly, on Friday 4 December 2020, there was a farewell event for Dr Owczarek, held in Carlton. The event was a dinner, which a number of people attended, including the Complainant.
The event on 4 December 2020 was not isolated, as Dr Owczarek had organised lunches with a number of different staff. However, the event was one of the two main ‘farewell’ group events, with the other being on Monday, 7 December 2020.
It appears that the Complainant and Dr Owczarek did not speak at the dinner. So much is explicable, given the Complainant was generally trying to avoid him at the time.
On Sunday, 6 December 2020 at 5.04pm, Dr Owczarek sent the Complainant the following text message:
“Hi [Complainant’s first name]
I hope the weekend has treated you well - strange weather today for sure
Thanks for Friday evening with the team - it was a special night and I appreciate it
I reflected over the weekend on that amazing team we built and I know the Faculty is in safe hands
The next events did not take place until June 2020, forming allegation 11. Allegation 11 comprised a text message containing a highly personal matter about a work colleague, which had followed two unreciprocated text messages that day. Allegation 11 asserts the message was “intended to get [the Complainant’s] attention to engage her into replying to you” and constituted inappropriate workplace behaviour. My earlier findings were that Dr Owczarek had a proper basis to send that text message, albeit it was a message that could have waited until the next day, and I am not satisfied the message was designed to elicit a response beyond perhaps an acknowledgement of the subject matter. I am not satisfied that the conduct alleged in allegation 11 was inappropriate workplace behaviour.
Allegation 12(b) is said to constitute sexual harassment and inappropriate workplace behaviour. The allegation concerns ‘cafe’ meetings arranged by Dr Owczarek on or shortly after 16 November 2020 when Melbourne residents were permitted to go to cafes after another extended COVID-19 ‘lockdown’ for most residents of that city. Having regard to my finding that Dr Owczarek was not motivated by the romantic or non-platonic pursuit of the Complainant, it follows I do not conclude these meetings constituted any sexual harassment. There was no sexual advance or other conduct of a sexual nature and, while the requests were unwelcome, I also conclude that the requests are not conduct that a reasonable person would have anticipated the possibility that the Complainant would be offended, humiliated or intimidated. I am also not persuaded that the meetings were inappropriate workplace behaviour, either. The meetings were about work and there is nothing improper about a manager proposing a meeting in a cafe following the extended period in which many employees had been effectively restricted to their own home. The position might be different if Dr Owczarek persisted in arranging these meetings over the objection of the Complainant but he did not do so. When the Complainant requested that their meetings return to an online ‘Zoom’ format, that is what occurred.
Allegation 13 comprises a number of discrete events, which are relied upon by the University as establishing sexual harassment and inappropriate workplace behaviour. As with allegation 12(b), based on the first and third elements of the definition of sexual harassment, I am not satisfied that there was any sexual harassment, albeit I acknowledge that the communications and attempts to communicate on Dr Owczarek’s behalf were unwelcome to the Complainant. The question of whether the communications, or some of them, constituted inappropriate workplace behaviour (now version 4 of the policy) is more evenly balanced.
In one sense, there is nothing inappropriate in a person as part of their ‘farewell’ events seeking to speak to and arrange specific farewell catch-ups with staff with whom they have worked closely. But that is not the extent of matters.
The University submits, with some considerable force, that the obvious explanation for the Complainant’s non-responses in the period between 3 December and 31 January was that she did not want to communicate or meet with Dr Owczarek or be friends with him. At least by 10 December 2020 this position was uncomfortably clear, which is when the Complainant indicated she was unavailable at all with “no free time between now and Christmas”. Again, if there was no background between the parties, the position might be different. But there was significant background context, which returns to the 2 October text message and meeting on 7 October 2019. Dr Owczarek’s conduct, at least from 10 December 2020, demonstrated the same lack of insight that he exhibited a year earlier in December 2019. I do not consider that Dr Owczarek was improperly motivated by any of his communications with the Complainant during this period but his lack of insight reflects poorly upon his ability to exercise sound judgment in such matters. His lack of insight is no answer, however, to the conclusion that his conduct failed to provide a respectful, safe, rewarding and environmentally sustainable learning and working environment (c.f. clause 4.2(h) of version 4 of the Appropriate Workplace Behaviour Policy) in light of the demonstrated request for “space” the year earlier.
Valid reason – effect of March 2021 events and delay
A significant matter in this proceeding are the events from March 2021 and, more generally, the knowledge of the University about key events from late September 2019.
Firstly, there was the direction by the Complainant to Dr Owczarek for no further contact. Dr Owczarek undertook to comply with that request and he abided by it. Notwithstanding Dr Owczarek’s profound lack of insight in very important matters before that time, there is no question that he has fully understood the boundaries between himself and the Complainant since his email on 10 March 2021 and reiterated more formally in his apology sent on 18 March 2021.
Second, there was the 18 March 2021 meeting. That meeting raises a number of issues about the University’s later reliance about conduct anterior to that meeting as a basis for dismissal.
Dr Owczarek submits there was an “election to affirm” the employment contract on the University’s behalf, such that the University is precluded from later exercising any right to terminate on the grounds said to be affirmed.
The University states that contentions regarding the alleged affirmation of contract are misconceived and says that the existence of a valid reason is not assessed by reference to a contractually legal right to dismiss.[28] At common law, the University also states that without “full knowledge” of the conduct in question, there can be no waiver of the right for summary dismissal at law or condonation of misconduct.[29]
I also consider that misconduct in the form of sexual harassment is likely to provide greater latitude for delay. As quoted by Katzmann J in Taylor v August and Pemberton at [332]:
“Those who experience workplace sexual harassment are often caught in a bind when deciding on the timing of making a complaint to their employer. When they report the behaviour immediately, observers perceive them as more credible and the harasser as more responsible. Yet for an individual to reach a point where they are ready to make a complaint, they must first process what has happened to them, weigh up the available options open to them, and determine the possible detriments that may result from making a complaint. Consequently, there can be a significant, yet legitimate delay between experiencing sexual harassment and reporting it, if indeed it ever gets reported.”
Version 4 of the Appropriate Workplace Behaviour policy contemplates informal responses to dealing with misconduct as well as formal complaints. The policy also makes clear that a formal complaint might follow whether or not informal attempts to deal with the misconduct have been attempted.[30] This aspect of the policy is broadly supportive of the University’s position that informal steps might be taken, including after the effluxion of a reasonably long period of time, before a “formal” complaint is made. But that is also not the end of the matter. The policy also established a “positive duty” on the University about such matters[31] and provides that the University “may, at its discretion, determine that suspected or alleged non-compliance with this policy may warrant investigation of the matter without necessity of a complaint being raised.” [32]
In Chol v Vivesco Pty Ltd[2024] FWC 1220 at [18], Colman DP considered that “a valid reason will lose its window of ‘currency’” through the effluxion of time, although the Deputy President considered it would be wrong to punish leniency, and to encourage hasty dismissals, by adopting too narrow an approach to this window. For context, the circumstances before the Deputy President involved about an eight-week delay from an initial incident in December 2023. That incident, known to the employer at the time, was not acted upon by the employer at the time but was later relied upon as a basis for dismissal when further complaints about fresh conduct toward the employee were made in the subsequent weeks.
In the case before me, the delay is significantly greater. It at least extends to 18 March 2021 but, in a real sense, begins much earlier. The University had substantial knowledge of the “critical incident” from almost the time it occurred, over four years prior to the time it dismissed Dr Owczarek. I accept that the University did not have “full knowledge” of all the events it later relied upon, although I consider that elides the question of what it did know (or believed). Quite unusually, the “critical” evening of 26 September 2019 was one in which Human Resources was aware of as it was occurring and made a telephone call to the Complainant to offer an excuse to leave the dinner. Quite clearly, the details of what was occurring were not known to Ms Hampshire but she was told by the Complainant on 30 September 2019 Dr Owczarek has said he “loved” her and Ms Hampshire advised the Complainant to tell Dr Owczarek that she did not reciprocate his feelings. Ms Hampshire was aware that the conduct was sufficiently serious to cause the Complainant to take a week off work and Ms Hampshire was regularly checking in by telephone during that period.
Ms Hampshire’s actions were not merely the actions of a concerned work colleague, although she was also that. She was clothed in the ostensible authority of her position, which included being authorised to expend University funds to involve Mr Dean, to conduct the “intervention” leading to the apology, among other steps. She was not merely acting as a friend or confidant of the Complainant, but considered herself to be acting independently as a HR practitioner in the Faculty.[33]
I do not wish my observations to be impliedly critical of Ms Hampshire. To the contrary, I consider that throughout the relevant period, Ms Hampshire acted out of fierce concern for the Complainant (and others, as Ms Hampshire perceived those matters) and acted in accordance with the Complainant’s wishes, while providing support where requested, and taking action when appropriate. Ms Hampshire had very clear views about the maintenance of appropriate workplace boundaries.
Moving forward to 18 March 2021, Ms Hampshire had determined in the week preceding on a course of action involving Dr Owczarek. That course of action included the involvement of Mr Dean, an apology, and a meeting without notice to Dr Owczarek. Again reflecting Ms Hampshire’s steps to assist with the Complainant’s concerns, she kept the Complainant apprised of her plans.
While the University may not have had full knowledge, it had (or assumed) a lot through Ms Hampshire. According to the Complainant, Ms Hampshire had the idea that she would set up a meeting with Dr Owczarek as an “intervention”. An “intervention” is not something undertaken without some assumed state of affairs warranting it. Ms Hampshire clearly considered such a state of affairs existed.
The Complainant’s evidence also records that Ms Hampshire suggested that she take with her Mr Dean. Ms Hampshire told the Complainant that Dr Owczarek was not clearly understanding that these behaviours needed to “stop” and that Ms Hampshire felt that this “intervention” would be firmer and having Mr Dean there in a supporting role would provide safety for Ms Hampshire and also offer Dr Owczarek someone to speak to if he needed it. Reflecting again that Ms Hampshire was acting in accordance with the Complainant’s approval, the Complainant’s evidence was:
“I was comfortable with Ms Hampshire’s suggestion. While I had thought about making a formal complaint, at this stage, I just wanted the behaviours to stop, and I wanted to be left alone so I could get on with my job.”
The Complainant’s evidence is also consistent with her contemporaneous text message to Ms Hampshire on 18 March 2021, following the “intervention”. The Complainant wrote “Thanks Julia. I'm seriously considering making a formal complaint” and then “But won’t do anything that could harm others”.
The Complainant’s position about a formal complaint changed when, with some understandable alarm to her, she learnt in early 2023 about the prospect of herself and Dr Owczarek having to work directly with each other again. She made a “formal” complaint to prevent that occurring, but not to get Dr Owczarek dismissed.
Conclusions on valid reason
I agree with the University that Dr Owczarek had engaged in instances of misconduct, although my findings are much more limited in scope than the University found. Further, I agree with the University that allegations 2(a) – (c) (as I found them established) are serious misconduct, being sexual harassment albeit not with that intention by Dr Owczarek. I also consider that the conduct underpinning allegation 7 was serious misconduct, following as it did directly in the shadow of allegation 2. Given the effluxion of time, I do not consider allegations 13 (as relevant) are serious misconduct but they were misconduct nonetheless for reasons I gave earlier.
While much of Dr Owczarek’s attack on the University’s case understandably focused on the sexual harassment allegations, that attack does not address some fundamental aspects of the University’s reasons for dismissal focussed on the wider course of conduct. Professor Phillips concluded that there was serious misconduct warranting dismissal in part because she saw “no indication that Dr Owczarek understood the seriousness of the matter, or that he accepted that any of his behaviour was questionable or could constitute misconduct. Dr Owczarek’s showed very little understanding of the issues at play in the behaviour that was documented, and the impact that his behaviour had on [the Complainant]”.
Further, Professor Phillips concluded:
“Regardless of whether there was ever a time where any aspect of an interaction had been mutual, it is the responsibility of all employees – but most particularly someone in a position of such seniority and authority – to establish and maintain appropriate workplace boundaries. In this case, the boundaries had been systematically breached.”
Putting aside her conclusion that the boundaries had been ‘systematically’ breached, Professor Phillips’ concern for appropriate workplace boundaries, particularly for persons in positions of seniority and authority, are entirely appropriate. In no way do I wish my decision to be taken as doubting the University’s position on these matters.
With those observations having been made, there is a significant caveat to the University’s reliance on Dr Owczarek’s misconduct: delay in circumstances of informal outcomes having been taken.
It is well-established that a valid reason must be sound, defensible and well-founded and a reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.[34] There is no suggestion that the University’s actions were capricious, fanciful, spiteful or prejudiced.
However, for the purposes of assessing whether a reason is a valid reason for dismissal, I do not consider it sound or defensible for an employer to allow a significant period of time to pass – in this case two years at the lower end and nearly three and a half years for the core allegation – where the employer is on notice about, and to a significant extent has dealt with, fundamental aspects of the conduct. Put simply, an employer should not sit on a serious allegation to be possibly acted upon “formally” at some indeterminate point later on following further reflection or receipt of a formal complaint. Such delay is not sound, because it can cause real difficulties in getting to the bottom of the allegations in question. That delay creates unfairness to the employee accused of misconduct but also to other employees who might be asked to remember subtle, but very important, details involving nuance from months or years earlier.
Such delay is not defensible because the University had undertaken or been involved in steps for the informal resolution of the matter. The University had taken steps by its Human Resources staff to warn Dr Owczarek about his conduct and obtained the procurement of an apology for the Complainant. The University’s actions were taken with the sanction of the Complainant, who wanted the conduct to “stop”. While there are differences about what type of conduct was to be stopped, the evidence before me all points one way that all relevant conduct stopped. It took longer than it ought to have for Dr Owczarek to get the message in relation to the Complainant, but he did finally get the message.
In the circumstances, I am not satisfied that there is a valid reason to support the dismissal of Dr Owczarek.
Notification of the reason for dismissal – s 387(b)
I am satisfied that Dr Owczarek was notified of the reasons for his dismissal in explicit, plain and clear terms.
First, particularised allegations were provided to Dr Owczarek on 5 May 2023. Second, the 11 August 2023 letter was accompanied by a summary of the investigation findings, including a summary of the factual findings and identified policy breaches. Third, in the meeting between Dr Owczarek and Professor Phillips on 12 December 2023, Professor Phillips confirmed that the University relied on the allegations substantiated, except for allegation 13(g), in determining that Dr Owczarek had engaged in serious misconduct and that his employment should be terminated without notice. A letter dated 12 December 2023, confirmed the matters discussed during the meeting that day. Fourth, the termination letter dated 14 December 2023 confirmed that Dr Owczarek’s employment was terminated for serious misconduct based on the findings of the investigation (other than allegation 13(g)).
Opportunity to respond – s 387(c)
With the exception of allegation 13(g), I am satisfied that Dr Owczarek was given adequate opportunity to respond to the allegations being put to him.
Those opportunities included his written response provided to the investigator on 17 May 2023, his verbal responses during the meeting with the investigator on 18 May 2023 and his written response to the University on 1 September 2023 (for which the University granted him an extension of time to submit). In relation to allegation 13(g), the University accepted Dr Owczarek’s complaint about that allegation and it was withdrawn by the University as a matter relied upon.
Unreasonable refusal of support person – s 387(d)
I am satisfied that there was no unreasonable refusal – or any refusal – to permit Dr Owczarek have a support person to assist him at any relevant time.
Whether warning about unsatisfactory performance – s 387(e)
Dr Owczarek was not dismissed for reasons associated with his performance. Both parties submit, and I accept, that the factor in s 387(e) of the Act is a neutral consideration.
Whether employer size / absence of expertise impacted on procedures followed – s 387(f)&(g)
The University is a large employer with dedicated human resources management expertise. Sections 387(f) and (g) are neutral factors. In the present case, the University also engaged the services of an independent specialist to assist with the investigation.
Other matters – s 387(h)
For the purposes of section 387(h) of the Act, Dr Owczarek submits[35] the following matters are relevant:
a. The Applicant’s conduct did not constitute serious misconduct and did not justify summary dismissal;
b. The Applicant immediately complied with the Complainant’s “one and only” request for him to cease contact with her in March 2021 and has never spoken to the Complainant or communicated with her since his letter of apology of 18 March 2021 nor attempted to do so;
c. The University took steps to deal with the Complainant’s grievance in March 2021 and affirmed the employment contract at that time;
d. The external investigation was conducted with unfairness and bias;
e. The Applicant’s employment history and his personal circumstances;
f. To ensure the objective of a “fair go all round”.
The matters in (a) – (c) of the above paragraph I have previously addressed. Notwithstanding, I consider that if, contrary to my view regarding the effect of the events from March 2021 on valid reason, I accept Dr Owczarek’s submission that they – and the issue of delay I described above - are relevant as ‘other matters’ pursuant to s 387(h).
In relation to the allegation of bias against Ms Edmands, I reject that allegation. The allegation was founded on two elements: first, an apparent commercial connection with a “material” witness, Mr Dean; second, the infected reasoning said to be evident concerning allegation 13(g). Neither are persuasive. Notwithstanding that Ms Edmands has had some limited professional dealings previously with Mr Dean, there is no sensible basis for me to conclude anything other than that Ms Edmands approached her task professionally and objectively. Mr Dean’s materiality to the case before me was limited. The complaints about allegation 13(g) really go no higher than challenging Ms Edmands’ conclusion that Dr Owczarek was motivated to romantically pursue the Complainant. While I have reached a different conclusion to Ms Edmands about those matters, I have had advantages in my fact-finding process that Ms Edmands did not possess and could not be reasonably expected to possess, the most obvious being the ability to take sworn evidence from witnesses tested in open court. I also observe that it was not inherently unreasonable for Ms Edmands and the University to conclude that Dr Owczarek was romantically motivated towards the Complainant. As part of their assessment, they were confronted with Dr Owczarek’s repeated reliance on unpersuasive ‘contextual’ matters. If Dr Owczarek had demonstrated greater insight as to his own conduct during that investigation, the conclusions may well have been different. Of course, if Dr Owczarek had demonstrated greater insight with his professional relationship with the Complainant more generally, it is quite likely he would never have been the subject of investigation.
Dr Owczarek’s personal circumstances are matters weighing in his favour. He is a career academic of considerable success and renown, and had been employed by the University for almost 32 years. In his field of expertise, I accept Dr Owczarek’s submission that there is a relatively limited and specialised employment market of the closely interconnected tertiary education academic sector.
Whether harsh, unjust or unreasonable
I am required to consider each of the criteria in s 387, to the extent they are relevant to the factual circumstances before me. The following statement from Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 is well-known:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
Having regard to my lengthier factual findings and conclusions regarding the constituent elements of s 387 above, my overall conclusion can be stated more shortly.
I am satisfied that the dismissal of Dr Owczarek was harsh, unjust and unreasonable in all of the circumstances. The University has established misconduct on Dr Owczarek’s behalf, albeit not to the extent that he was dismissed for. They are matters that would ordinarily weigh in favour of upholding the dismissal.
To my mind, a very significant factor in this case concerns my conclusion that, in a real and practical sense, the misconduct (and other perceptions of misconduct) had been dealt with by March 2021 and commitments given to prevent their recurrence. The catalyst that led to the formal complaint being made against Dr Owczarek was the validly held concern that, if Dr Owczarek successfully applied for a new Faculty position, he would be working again with the Complainant (and her concern for others in the Faculty with whom he would also work). Whether those matters are considered in the context of being a ‘valid reason’ or as ‘other matters’, I reach the same conclusion. A proportionate response would have been refusing to appoint Dr Owczarek to that position for those reasons, and possibly other steps short of dismissal. Dismissal was disproportionate in circumstances where there was no credible evidence of any ongoing misconduct or similar conduct since March 2021 and the complaint was not lodged to have Dr Owczarek dismissed but to preclude his reappointment to a Faculty-level position (although the Complainant considered that dismissal was a possibility). The personal circumstances of Dr Owczarek reinforce the harshness of dismissal.
As the other statutory prerequisites under s 385 of the Act have been met, I am satisfied that Dr Owczarek was unfairly dismissed.
Remedy
Dr Owczarek seeks reinstatement.
By s 390(1) of the Act, the Commission may (not must) order reinstatement, or the payment of compensation to a person, if satisfied that the person was protected from unfair dismissal and was unfairly dismissed. Satisfaction of those conditions is met.
By s 390(3), the Commission must not order the payment of compensation to a person unless satisfied that reinstatement of the person is “inappropriate” and an order for compensation is appropriate. Section 381(1) provides that an objective of Part 3-2 of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
The University submits that Dr Owczarek’s misconduct was totally destructive of the necessary trust and confidence between himself and the University and he has shown no insight into his own behaviour and the effect of his behaviour on others. It submits the Commission could have no confidence that Dr Owczarek’s behaviour would change.
The University’s submission raises a number of discrete considerations. First, when the University is referring to Dr Owczarek’s misconduct, it is referring to the allegations forming the basis for his dismissal. While the University has had some success on those matters, I consider that a significant emphasis for the dismissal included Dr Owczarek’s alleged motivation of a romantic pursuit, which I do not accept.
By contrast, the University’s legitimate concern about Dr Owczarek’s profound lack of insight about appropriate workplace boundaries has real force and, if Dr Owczarek was in the position of Dean at the time of his dismissal or with ongoing wider managerial supervision of others, the outcome in this proceeding may well have been very different. But I do not accept the proposition that there can be no confidence that Dr Owczarek’s behaviour would change. Dr Owczarek had been performing in his tenured professorial role since March 2021 without incident. The process of the unfair dismissal proceeding itself is capable of establishing insight or self-awareness that might weigh on the question of reinstatement.[36] I anticipate these reasons will reinforce the University’s expectations about proper boundaries for the future. I did not find the University’s evidence regarding reinstatement persuasive and, while it would not affect my conclusion, the Complainant herself no longer works at the University.
I am not satisfied that the reinstatement of Dr Owczarek would be inappropriate. That enlivens my discretion to make an order for his reinstatement. I consider it appropriate to exercise that discretion and will order that Dr Owczarek should be reinstated. I will also make an order for continuity of employment, given the length of tenure prior to dismissal. I will order that reinstatement take effect within 28 days of this decision.
The remaining issue concerns what, if any, order for lost pay ought be made under section 391(3). For avoidance of doubt, there is no basis for a compensation order under section 392, as an order under that provision can only be made “in lieu” of reinstatement.
In Millington v Traders International Pty Ltd[2014] FWCFB 888, a Full Bench stated:
“[73] The capacity under s.391(3) to seek an order for pay lost or likely to have been lost as a result of the dismissal cannot be equated to an action for damages for wrongful dismissal. An order under s.391(3) can only be made if an order for reinstatement is made under s.391(1); it is therefore entirely ancillary to and not severable from the personal remedy of reinstatement. Further, there is no right to a lost pay order even where reinstatement is ordered; a lost pay order may only be made where the Commission “considers it appropriate to do so” and is therefore discretionary in nature. The Commission and its predecessors have not infrequently declined to make lost pay orders even though reinstatement has been ordered.” (citations omitted).
In a footnote to the above quotation, reference was made by the Full Bench to paragraph [104] of the decision of Hatcher VP in IsmailGurdil v The Star Pty Ltd[2013] FWC 6780 (Gurdil), referred to above, and to an earlier Full Bench decision Regional Express Holdings Limited trading as REX Airlines v R Richards[2010] FWAFB 8753. In both those matters, a factor found relevant to the exercise of discretion to refuse to make an order for lost pay under s 391(3) was the conduct of the employee leading to the dismissal.
In Gurdil, Hatcher VP also considered that declining an order for lost pay “will also serve to reinforce with Mr Gurdil that his conduct on 1 March 2013 was inappropriate and must not happen again.” It is sufficient in my view to refuse to make any order for lost remuneration under s 391(3) for the sole basis of serving to reinforce to Dr Owczarek that his conduct was inappropriate and must not happen again – I refer to my numerous observations about Dr Owczarek’s troubling lack of insight as a matter calling for any order for lost remuneration to be refused. If it were necessary to do so, I would also consider that Dr Owczarek’s misconduct would make an order for lost pay to be not appropriate.
In reaching these conclusions, I have taken into account the amounts earned since dismissal and likely to be earned up to reinstatement: s 393(4). The amounts “earned” are in dispute in one sense, which requires some explanation. In February 2024, Dr Owczarek successfully obtained a fixed term professorial contract with Monash University. He did so after having disclosed to Monash University a copy of the adverse findings made against him. That contract was to run until December 2024, albeit with a possibility of renewal.
Within about a week, Dr Owczarek was stood down. Evidently, different levels of the Monash University administration took a different view about his employment, and sought further details from the University of Melbourne (which were provided). It is sufficient to note that Dr Owczarek’s employment with Monash University was terminated on 1 March 2024, for the reasons stated as follows:
“In the circumstances, whilst I acknowledge your co-operation in this process and that you dispute the University of Melbourne findings, I have determined that it is not tenable for you to continue in employment with Monash University. To do so would be inconsistent with the University’s values, its positive duty to take all reasonable steps to prevent sexual harassment and obligations to ensure a safe workplace, including in respect of staff or others who are aware from the public announcements at the University of Melbourne of those matters and consequently have concerns and anxiety about your employment with Monash University.
As you are employed on a fixed term contract that expires on 31 December 2024 the University will make payment in respect of the remaining period of the Contract in satisfaction of its contractual obligations to you.”
Dr Owczarek’s evidence is that the position with Monash University was “essentially the same” as his previous professorial position with the University of Melbourne. I infer this to include the same remuneration among other matters, albeit at the University of Melbourne, Dr Owczarek stated his remuneration included “an additional allowance paid to me by the University of Melbourne in recognition of my status as a Redmond Barry Distinguished Professor.” The character of that allowance was not elaborated upon by either party, including whether it might be withdrawn or altered, although I infer it was paid in direct connection with Dr Owczarek’s performance as a professor of mathematics and statistics.
Dr Owczarek contends that the monetary amounts he received from Monash University should not be taken into account for any order for lost pay under s 391(4). He submits those amounts are “damages”, as distinct from remuneration. In light of the final sentence from the above letter from Monash University stating that the payments made to Dr Owczarek were “in satisfaction of its contractual obligations to you”, I have very real doubts these payments are to be excluded from consideration under s 391(4). But even if that were to be the case, they are plainly capable of bearing on the question under s 391(3) as to whether any order for lost remuneration is “appropriate”. I consider these payments reinforce my conclusion that any payment for lost remuneration is not appropriate, as they are plainly on account of remuneration that would have been earned, even if (which I doubt) they are correctly characterised as damages and fall outside of the amounts to be taken into account under s 391(4).
Dr Owczarek also submits that the University “was directly involved in procuring Monash University’s breach of contract” and engaged in “the intentional interference” of Dr Owczarek’s attempts to gain alternative employment. I am not satisfied on the evidence before me that the University “procured” or “intentionally” interfered with any breach of contract, let alone there was any breach of contract. But even if there was, the payout (to use a neutral term) by Monash University remains a matter I would take into account and my conclusion remains unchanged.
The final matter concerns the Redmond Barry Distinguished Professor allowance. The order I will make for reinstatement is that Dr Owczarek be reappointed to the position in which he was employed immediately before the dismissal. I have proceeded on the assumption that this position included the Redmond Barry Distinguished Professor honorific and concomitant allowance. If that was not part of Dr Owczarek’s position, then my order has no application to that element. I make the same observation concerning the role of Principal Chief Investigator for the ARC grant Dr Owczarek was working on at the time he was dismissed.
Orders
An Order[37] giving effect to my reasons above will be published together with this decision.
DEPUTY PRESIDENT
Appearances:
M. Rinaldi of Counsel, instructed by A J Macken & Co for the Applicant.
M. Felman with F. Leoncio of Counsel, instructed by Lander & Rogers Lawyers for the Respondent.
Hearing details:
2024.
Melbourne:
May 27 – 30;
June 21;
July 11.
[1] There are ongoing orders relating to confidentiality made in this proceeding, including in relation to the Complainant and to two other employees referred to as ‘AB’ and ‘XY’ in this proceeding.
[2] Court Book (CB) p.988 and 990.
[3] CB p.873 and 879.
[4] Witness statement of Professor Phillips, Annexure NP-5, CB p.980.
[5] Transcript PN328 – PN333.
[6] Respondent’s Outline of Submissions dated 16 April 2024 at [45], CB p.1205.
[7] Witness Statement of Professor Owczarek, Annexure 22.
[8] For example, paragraph [39] of the summary of findings provided to Dr Owczarek on 11 August 2023, CB p.273.
[9] Further Witness Statement of Professor Owczarek at [196], CB p.1349.
[10] Exhibit A4, [11].
[11] Witness Statement of Professor Owczarek at [12], CB p.33.
[12] Exhibit R6.
[13] Transcript PN1068, with a transcript correction from ‘elicit’ to ‘illicit’.
[14] Transcript PN3615 – PN3619.
[15] Exhibit A4, Record of interview of Julia Hampshire signed 29 June 2023.
[16] Witness Statement of Professor Owczarek at [43], CB p.39.
[17] University closing submissions, para [89].
[18] CB p.1266. Having regard to the nature of the matter, I will not set it out.
[19] This text message comprises allegation 13(f), which contains typographical reference to 1 January 2021.
[20] Exhibit A5, Record of Interview of [XY] signed on 26 June 2023.
[21] Exhibit A5.
[22] Witness statement of Complainant at [161], CB p.1239.
[23] Witness statement of Complainant at [117] – [118], CB p.1234
[24] Exhibit A8.
[25] Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [111].
[26] The conduct (and the other inappropriate workplace conduct breaches I describe below) would likely also constitute contraventions of the other policy clauses relied upon by the University, but I do not consider anything turns on the fact that a particular instance of conduct might constitute a breach of multiple provisions of the policies.
[27] Appropriate Workplace Behaviour training module, CB p.951.
[28] Titan Plant Hire Pty Ltd v Malsen[2016] FWCFB 5520 at [28], citing Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32].
[29] Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150 at [352].
[30] Clause 13.3, CB p.904.
[31] Clause 13.1(e), CB p.903.
[32] Clause 13.3, CB p.904.
[33] Transcript PN4121.
[34] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[35] Applicant’s Outline of Submissions at [147], CB p.362.
[36] See IsmailGurdil v The Star Pty Ltd[2013] FWC 6780 at [103].
[37] PR775319
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