Sisitha Jayasinghe v University of Tasmania
[2025] FWC 171
•20 FEBRUARY 2025
| [2025] FWC 171 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sisitha Jayasinghe
v
University of Tasmania
(U2024/5275)
| COMMISSIONER LEE | MELBOURNE, 20 FEBRUARY 2025 |
Application for an unfair dismissal remedy-dismissal for sexual harassment- allegations substantiated- satisfied serious misconduct-some factors weigh towards finding unfairness however dismissal not unfair-application dismissed
On 9 May 2024, Dr Sisitha Jayasinghe (the Applicant or Dr Jayasinghe) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with the University of Tasmania (the University or Respondent) on 2 May 2024. The dismissal followed an investigation conducted by the University which substantiated allegations that the Applicant had sexually harassed Student A[1], a post graduate student and research assistant working on a research project lead by the Applicant. The Applicant seeks reinstatement and back pay for the period since dismissal or an order for compensation in the alternative.
Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing in Launceston on 24 and 25 September 2024. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.
At the hearing, the Applicant was represented by Mr A Healer of Counsel who was granted permission to appear pursuant to s.596 of the Act. Mr Healer called the Applicant to give evidence as well as Professor Andrew Hills, a professor of exercise and sports science in the school of health sciences and, prior to dismissal, the Applicant’s immediate supervisor and mentor.
The University was represented by Ms S Masters who was also granted permission to appear pursuant to s.596 of the Act. Ms Masters called the following witnesses: Student A, Ms Kristen Derbyshire, the Chief People Officer at the University, and Mr Matthew Marshall, the lead investigator/manager of the Safe and Fair Communities Unit (SaFCU) at the University.
Jurisdiction
There is no dispute that there is jurisdiction in the Commission to hear and determine
the application given:
a)the Applicant was protected from unfair dismissal pursuant to s.382 of the Act because he earned less than the high-income threshold and was covered by the University of Tasmania Staff Agreement 2021-2025 (Agreement);
b)the Applicant made his application within 21 days of dismissal pursuant to s.394(2) of the Act;
c)this is not a case involving a genuine redundancy;
d)the Respondent is not a small business for the purposes of the Act; and
e)the Applicant was dismissed by the Respondent on 2 May 2024: s.385(a) and s.386(1)(a) of the Act.
The dispute between the parties relates to whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ such that he was unfairly dismissed.
The Respondent denies that the Applicant was unfairly dismissed within the meaning of s.385 of the Act and, accordingly, the Commission cannot order a remedy for the purpose of s.390(b) of the Act.
Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Background and evidence
Applicant’s employment
The Applicant commenced employment with the Respondent on 15 October 2018 in the casual role of a Post Doctoral Research Fellow and was subsequently appointed to the role of Lecturer and Lead Researcher in 2021. The Applicant holds a doctorate in Physiology, Endocrinology and Exercise Science and a bachelor’s degree in Sport Science. His research focuses on Exercise/Sport Science, Health and Metabolic Disease and his teaching focuses on Exercise and Sport Science, Pathophysiology, Biomedical Science and Nutrition Science.
The Applicant was summarily dismissed by the University on 2 May 2024 based on the substantiation of the allegations made against him.
Alleged misconduct
The matters in issue relate to the alleged conduct of the Applicant in his role of Lecturer and Lead Researcher towards Student A, a post-graduate student and Research Assistant of the Respondent who worked on a research project that the Applicant was leading from 24 April 2023 until the Applicant was suspended with pay on 4 August 2023 because of allegations relating to sexual harassment of Student A.
Extensive evidence was led in this matter, a great deal of which is contained in WhatsApp messages between the Applicant and Student A. There was also the oral evidence of the witnesses at the hearing. Based on all the evidence, the Respondent submits that the Commission should find that the Applicant engaged in conduct that amounted to sexual harassment directed at Student A. Further, that he has been dishonest during the investigation and disciplinary proceedings. The Applicant submits that he did not engage in conduct that amounted to sexual harassment and that he has been honest throughout the process.
Evidence of the interactions between the Applicant and Student A in 2022 and 2023
As noted above, the evidence in this matter is extensive. It is not necessary that all of it be reproduced in this decision. Much of the evidence is not in dispute. However, there is disputed evidence. Findings of credit in respect to the witness evidence is necessary in order to make findings on disputed facts. For reasons set out later in the decision, I prefer the evidence of Student A to that of the Applicant where there is a conflict on the evidence.
In August 2022 the Applicant made contact with Student A by email asking if she was interested in helping him at a university open day in Burnie. Student A did not reply to this email.
In early December 2022 the Applicant, along with four colleagues, visited Peppers Silo Hotel (Silos), where Student A worked. There was a brief discussion at that time between the Applicant and Student A about the research work that the Applicant was involved in.
Sometime after that discussion at Silos the Applicant emailed Student A at her university email address in the following terms:
“Dear [Student A],
Congratulations on finishing your degree!!
It was very nice seeing you the other night- shame we couldn’t chat longer!
Attached is a snapshot of my research involvement at the moment, and in the immediate future. It is impossible to explain all of it in an email but I have highlighted a few avenues where nutrition related honours/masters could be possible (see attached PPT).
As discussed, happy to meet or chat on the phone (details in signature) if/when you want.
Please don’t feel obliged for anything - simply forwarding info since you expressed interest.
Cheers,
SisithaP.S all attached material if FYI only – please don’t circulate widely”[2]
On 24 March Student A delivered a Zoom presentation at the University related to the summer scholarship research project. Following that, the Applicant sent Student A an invitation to a Zoom meeting. They then met via Zoom and discussed the OPTIMUS research project the Applicant was leading. During this discussion Student A claims the Applicant showed her a picture of the two cars that he owned. The Applicant denies showing Student A pictures of his two cars. On cross examination on this point, Student A provided considerable detail of the pictures of the cars, their colour and where they were located[3]. I prefer the evidence of Student A that the Applicant showed her pictures of his cars.
Three days later on 27 March, the Applicant sent a WhatsApp message to Student A advising the grant application related to the OPTIMUS project had been submitted. The message included some fingers crossed emojis. There is an exchange with Student A wishing him good luck and the Applicant suggesting a meeting with Dr Kiran Ahuja, the course co-ordinator for honours students, at the University to which Student A replied on 29 March: “Awesome! let me know when”[4].
The next day, on 30 March, the Applicant proposed to meet Student A for coffee on Saturday morning at 10:00am. The following exchange and interaction subsequently occurred:
Dr Jayasinghe: Coffee, Saturday morning, 10am?
Student A: Ahh I can’t this weekend! Would a weekday work?
Dr Jayasinghe: Hmmmm I have some free time between 12-2pm today, and 8-9.30am or after 4 pm tomorrow
Student A: Well I can meet this afternoon, I’m just getting my hair done now so I’m not sure when it’ll be done but definitely after 1! I can do tomorrow morning too but not the afternoon because I’m working!
Dr Jayasinghe: Ok.. let me know when you’re done with your hair appointment
.. let’s meet in town somewhere?
Student A: Hey I’ve just finished up! Maybe sweetbrew? Idk what parking is like though?[5]
From approximately 1:00pm, Dr Jayasinghe and Student A exchanged the following further WhatsApp messages:
Dr Jayasinghe: 2 mins .. trying to get a park
Student A: All good! Sorry I feel like there’s no good parking in cbd
Dr Jayasinghe: Nightmare! Can you come out to the street .. let’s go somewhere else
Student A: Ok no problem[6]
When Student A came out to the street, Dr Jayasinghe was parked at a bus stop and asked her to get in his car. Dr Jayasinghe and Student A drove in his car to Inside Café where they discussed the research project, OPTIMUS.
At 8:49pm, Dr Jayasinghe sent Student A a WhatsApp message which stated:
“Good news - just had a very good conversation with Andrew and Nuala about my proposal and they ‘re backing me a 100% in! So rest assured, you have a solid project to work in if you choose to do so! Also, I very much enjoyed our rendezvous earlier today! We should do that more often regardless of how the research collaboration pan out [smiley face emoji]”[7]
Student A does not reply to that message.
On 4 April the Applicant sent the following message:
“Should I be concerned about your radio silence? Can deploy a search party if needed [smiley face emoji] In any case there are more advancements from my end to discuss.. meet soon?”[8]
Student A did not reply until 10 April at 5:29 pm and replied as follows:
Hahaha no don’t be concerned at all!! No search party needed. Ooh sounds exciting? Can have a hint? And anytime this week that works?[9]
At 11.05pm the Applicant replied:
“Glad you’re alive! As for me, I haven’t had the best of weeks and feel like a zombie atm. So can we please put the work talk on ice for now?
Anyways, my trusty Mini Cooper and I have a steamy date planned for tomorrow-coffee, cruising, and chilling!! Want in on the action? Alternatively we can catch up when I'm feeling human again, like post-5pm Friday or during the weekend”[10]
Student A did not respond to that message.
On 12 April the Applicant sent a further message as follows:
“Hey, I’ve cc’d you in an email. Don’t panic - I’ll explain when we meet later in the week.”[11]
Student A again did not respond to that message.
On 14 April at 11:15am the Applicant sent the following message:
“Hey, tick-tock! Can you give me the details on our catch up? I’ve got a few other suitors vying for my time, and unfortunately, I haven’t figured out how to clone myself yet.”[12]
It is important to make some observations about the exchange that has occurred up until this point. The first is that the content and tenor of the messages from the Applicant strongly suggest that the Applicant is intent on pursuing a personal relationship as well as a professional one with Student A. His protestations that he wasn’t, are not plausible. The Applicant’s invitation to join him on a steamy date with his car is clearly an invitation for Student A to join him on a date. His evidence on this point was, “…the steamy date phrase is obviously a poor choice of words, I probably shouldn’t have said that. But I say that I’m gonna go on a steamy date with my trusty mini cooper which, is referring to my car. I never asked [Student A] to come up with me on a date”[13] This denial was not credible.
A number of things in this exchange are strongly suggestive of the Applicant’s intent to pursue a personal relationship with Student A:
a)His repeated attempts to meet outside of work hours. His claim that he was too busy to meet during the week was not plausible nor supported by any cogent evidence. Whilst Student A gave evidence that he showed her his calendar to demonstrate his unavailability, other evidence given by the Applicant demonstrates he was quite capable of making himself available during work hours.[14]
b)His expressed enjoyment with their “rendezvous” and expressed desire to continue to have another rendezvous independently of what happened with the research project.
c)His request to put work talk on “ice”.
Further, the Applicant conceded on cross examination he didn’t have any other “suitors” vying for his time and what he meant was he had, “plenty of people interested in a lot of things that [he’s] doing so that includes collaborators, other academics, and other friends...”[15] The Applicant claimed that he was putting pressure on Student A because he, “needed to know if she’s going to be part of this or not because [he] had to formalise [his] plan so how [he] was going to move forward. So if [Student A] wasn’t going to part of the research or honours, whatever, [he] needs to know or [he] needs to find a way to keep the research team in order.”[16]
Student A provided evidence that at this point she had decided to send the Applicant a message because she did not feel confident that the Applicant was only wanting a professional relationship and some of his earlier messages had made her feel uncomfortable[17]. It is not surprising given the content and tenor of the messages from the Applicant, that Student A was concerned that the Applicant was wanting a personal and probably romantic relationship and is why she sent the following reply at 1:53pm on 14 April:
“Oh gee! Yeah sure! Sorry about that, I’m working days all this week so I’m not available over the weekend!
Sorry I should have just said and been a bit more clear, yes it sounds really exciting and I am really interested but if I’m being completely honest with you I’m just unsure if you want me to join on this project on purely professional terms, as I feel some of your wording comes across as a bit more than that of a mentor! Especially with catching up outside of your working times. This might be a usual thing to be a little bit more friendly past post graduate, but I just wasn’t sure and I honestly didn’t know to respond a lot of the time! I am young and have already found myself in situations that people have felt led on and I don’t think I can always respond correctly, but not responding at all is rude and I am sorry about that. I would love to work on the project and do not mind hanging out as long as it is purely platonic. I don’t know you very well and I am sure you are just being friendly and I have just overthought it, but as a young female I’m sure you can understand why I am wary of the situation and trying not to cross any boundaries..”[18]
This message I will refer to hereafter for convenience as the rejection message.
The rejection message Student A sent was a clear rejection of the personal advances of the Applicant. It was also done in a most respectful and mature manner. I accept the evidence of Student A that she was being very clear she wanted to establish professional boundaries and her reference to “not minding hanging out if it is purely platonic” was her “softening the blow”[19].
Shortly after that rejection message was sent the Applicant tried, unsuccessfully, to call Student A. The Applicant then sent the following message at 1.53pm:
“Thank you for bringing your concerns to my attention. While I appreciate your honesty, I would like to clarify that my intentions were solely professional. Any suggestion to meet outside of work was to accommodate our busy working schedules! That being said, I understand there may have been some miscommunication or confusion, and I apologise for any inadvertent doubts my words may have caused about my intentions. If we are to move forward with the project, I believe it is essential for us to address and clear any doubts. I’m not comfortable working together until we clear the air! Therefore, I would like to request a meeting to discuss this, ideally before Wednesday of next week. If we can’t resolve these issues then perhaps it would be best to not work together for now. I am available at the university to meet - C108”[20]
Had the pursuit by the Applicant of Student A for a personal relationship stopped at this point, the circumstances may well have been different. The Applicant now having been told in the clearest of terms that he was crossing professional boundaries (something he should have known without being told by Student A), the two of them may well have successfully completed the project and continued their interactions in a professional manner. However, this was not to be. The Applicant did not take her clear rejection as an acceptable answer and the evidence shows that his behaviour continued and indeed worsened. In my assessment of the evidence that follows, it is apparent the Applicant then engaged in sexual harassment of Student A.
On 17 April, there was a meeting between the Applicant, Student A, Professor Hills and Dr Ahuja. At this meeting the Applicant showed Student A his calendar in order to demonstrate why he could not meet during work hours. The Applicant points out that Student A did not raise any concerns about working with the Applicant at this meeting. However, in my view that is not surprising given that at that time she had already sent the rejection message and the Applicant in his reply appeared to understand her position. Student A also gave evidence that she thought about talking to Dr Ahuja about it at the meeting however, the Applicant was also in attendance throughout the meeting so, she did not.[21] The Applicant did not raise the rejection message with Professor Hills or Dr Ahuja at that meeting or at all. Despite claiming to understand that his role was to manage those professional boundaries, the Applicant didn’t think it was important to make them aware of this “miscommunication”[22].
According to Student A, after the meeting on 17 April with the others concluded, the Applicant stated to her that he was relieved that she did not answer his call (on 14 April) as he was very angry at the time and would have said things he would have regretted if they had spoken. The Applicant did not provide direct evidence on this point but, generally denied being angry in earlier responses. I prefer the evidence of Student A that this conversation did take place.
On 18 April 2023, Dr Jayasinghe emailed Student A and said that he had received grant funding for the OPTIMUS project and attached a Research Assistant job description to his email. On 19 April 2023 Student A agreed to work on the OPTIMUS Project as a Research Assistant while pursuing her Honours on a full-time basis. On 24 April 2023 Student A started formally working for Dr Jayasinghe, although her Honours did not officially start full-time until June 2023. Student A was engaged to perform 5 hours work per week. Student A started her Honours in July 2023.
On 25 April, the two met for coffee at the request of the Applicant. At that time, they discussed the non-response of Student A over the weekend and Student A revealed that it was her birthday that past weekend. The Applicant claims that Student A told him she did not receive any gifts and “feeling empathetic”[23] he chose to surprise her with a bottle of Channel perfume worth $190.00 on 26 April. In direct contradiction to the Applicant’s evidence, Student A claims that the Applicant stated that he should have got her something and that she told him not to get her anything. She also states that she did not tell him that she did not receive any gifts and in fact her evidence to the Commission was as follows, “I definitely was very spoilt. The reason that my birthday came up was because he asked me what I got up to over the weekend and I said I celebrated with friends... And I said that I got flowers, I got a cake made, I got a bracelet and (indistinct) from my partner…”[24] Student A’s evidence was highly credible, and I prefer the evidence of Student A.
The Applicant asserted that gift giving is a customary practice in his culture. However, he conceded that he had provided only given one small gift to his mentor Professor Hills in the last 5 and a half years. I’m not satisfied that the cultural explanation for gift giving is credible.[25]
As stated above, on 26 April, despite the rejection message and being told expressly by Student A not to give her a gift, the Applicant gave her a bottle of Chanel perfume. It is not in dispute that Student A ultimately accepted the gift. Her evidence as to why she did so was that she told the Applicant she didn’t want the perfume, and he said he could take it back, but Student A tried to clarify that she just didn’t want a present in general. After this back-and-forth Student A eventually just said thank you and accepted the gift.[26] It was consistent with a pattern of behaviour that Student A engaged in where she was clearly trying to manage the relationship with the Applicant without upsetting him. While Student A ultimately accepted this gift, as well as two other gifts given later, a feather pen and a sweater, I accept her evidence they were unwelcome and made her feel uncomfortable[27]. I found her evidence on this point credible.
On 26 April the Applicant also insisted that Student A include her work shifts on her outlook calendar that he now had access to. He also advised her that he had “managed to pull a few strings”[28] and had her included on a list of potential markers. Student A subsequently did that marking work.
I note at this point that there was some evidence that is contested as to whether the Applicant was poking or hitting Student A with a piece of paper while they worked together at various times. The evidence on this point was not clear and I have not had regard to it. However, against the background of the evidence as to other significant conduct of the Applicant it is a relatively minor issue.
On 5 May, there was an exchange between the Applicant and Student A about using a “BOD POD” machine[29] the next day. Student A was a part of the project to use the machine. The Applicant reminded her to wear tight fitting clothing and Student A agreed that tight fitting clothing was necessary. However, Student A maintained that previous to this the Applicant asked her to wear her underwear while using the BOD POD machine.[30] The Applicant denies this. I prefer Student A's evidence on this point.
On 14 May, the Applicant and Student A met at the University to use the BOD POD machine, however the machine was not working. Following this, the Applicant and Student A drove separately to the Applicant’s home. Student A gave evidence that the Applicant invited her to come to his house to do work. When they arrived, she stated that the Applicant had vegan milk and cheese that he had bought for her, and the Applicant suggested they should eat that and eat some other vegan food that he had already prepared for her. Student A gave evidence that she asked something like “what am I doing at your house and what is going on?” and to that the Applicant said that he had feelings for her. Student A says that she told the Applicant that she was not interested, and that she already had a partner. Her evidence is that she told him that she understood he could not help his feelings for her but because of that she would like to have stronger boundaries.
In contrast, the Applicant claims that he did not invite Student A to his house but agrees he did tell her that he made food with a plan to put it into take away containers so that she could take it home. His evidence on this point was inconsistent, ranging from not denying the proposition that he invited Student A, to then saying her didn’t invite her. His evidence was simply not credible. It is not in contest that he specifically made Sri Lankan food separate from meat products with Student A in mind. The Applicant also gave evidence that he was going to put it in takeaway containers, but this did not happen because as the BOD POD machine wasn’t working that day it meant Student A had time to have some food at his house. However, it is not logical that if his plan was always to put it in takeaway containers for Student A to take home, why he didn’t bring it to the University already in the takeaway containers. Despite the professional boundaries Student A tried to put in place, the Applicant appears to still invite her to his home on a number of occasions[31]. However, the Applicant denies that it was a number of occasions despite, conceding that he invited her to his home to eat the food he prepared and despite again inviting her over to his house the very next day.
The Applicant also claims that Student A said that she had a personal matter to discuss which was that her “guy best friend” did not want her to hang out with him. While I prefer the account of Student A, even if it were true that she said to the Applicant that her friend did not want her hanging out with him, it is yet another of the continual attempts of Student A to establish professional boundaries between her and the Applicant. A task she should not have had to perform. In any case, the Applicant continues to ignore the clear messages of rejection from Student A.
On 15 May the Applicant, who despite the claims referred to earlier that he was too busy to meet Student A during normal business hours, sent a message to Student A at 2:59pm saying “I’m heading home…meet you there soon”. Consistent with her evidence that she continually sought to establish boundaries with the Applicant, Student A seeks to meet elsewhere and replies, “Ahh, what’s the plan sorry? Maybe we could go somewhere else like blue? Idk” (I don’t know). The Applicant replies, “I’m not fussed.. but I though a drink would be good… I’m technically supposed to be still at work…that’s why I suggested home..”.[32]
The reply from Student A is consistent with her evidence as to the conversation that occurred at his house the day before. Her reply is “Hmmm not in a rude way but following the convo yesterday I’m not sure how appropriate coming to your house for a drink will be…we could get a coffee if that makes it better?”[33] The two then met at Blue Café but it was closed. The Applicant invited Student A into his car and then proceeded to drive ostensibly to find another cafe and ultimately, he drove somewhat aimlessly out of town and did not stop until Student A asked him to pull over near the Tamar River Wetlands car park. There is a dispute then as to what occurred. There is common ground that there was no discussion about work related matters. Student A gave evidence that she again reiterated she wanted stronger boundaries. In response to that the Applicant asked her to lay her car seat back (which she declined). The Applicant then made comments to the effect that Student A was “trouble”[34] and started driving back toward town at Student A’s request. On the drive back the Applicant made further comments to Student A along the lines of “the only time I get to spend with you, we end up arguing. I just want to have a nice time and a nice conversation”[35]. Student A also states that he asked her for a hug and that she said no, and he then said “come here”[36] and she leant over to him, and he hugged her and squeezed her hip. In contrast, the Applicant claims that there was a discussion about the alleged steroid use of Student A’s friend and that Student A also told him that her boyfriend was not comfortable with their interactions and the Applicant offered to arrange an alternative supervisor. The Applicant also asserts that Student A’s boyfriend called her during this time and that she told him that she was in the library. Student A agrees that her boyfriend called her during this time but states she told him she was out and then he asked if she was with the Applicant, and she confirmed she was[37]. The Applicant believes that prior to leaving the car, Student A initiated a goodbye hug. As discussed later, these are what I consider minor inconsistencies in the Applicant’s evidence about these events. However, I prefer the evidence of Student A as to what occurred on the 15 May.
On 21 May while in the laboratory, Student A gives evidence that the Applicant asked her to hug him. She acquiesced. When she tried to remove herself from the hug, he said something like “just a little bit longer”[38]. The Applicant denies requesting a hug on that day or at any stage thereafter. I prefer the evidence of Student A that the Applicant sought to hug and did hug Student A on that occasion and others.
On 22 May, Student A initiated the first steps to deal with her concerns about the conduct of the Applicant formally, meeting with a counsellor at the University. I will set out further information about those aspects of the evidence separately.
On 2 June, Student A attended the Applicant’s home for a meeting and waited outside until he arrived. Both parties agree that the location of the meeting began as TBC (To Be Confirmed). However, Student A’s evidence is that the Applicant suggested his house as the place for the meeting and she proposed the University instead. Student A’s evidence is that this caused an argument and so she reluctantly agreed to his house as the meeting place. In contrast, the Applicant’s evidence is that he forgot about the meeting after a busy week and when he arrived home Student A was waiting for him. Further that while she was at his home Student A ordered a pizza with meat products and they both went to the pizza shop to collect it.
Student A gives evidence that when she went into the house the Applicant proceeded to have a shower and asked Student A to order pizza. She complied and ordered a meat lovers pizza – Student A is vegan. Student A states that the Applicant repeatedly pushed her to have a glass of wine which she refused but ultimately accepted a soft drink instead. Student A states that she said words to the effect of “If we are to continue to work together, I do not want a personal relationship at all and I do not want to speak about personal issues or do things as friends”.[39] The Applicant then started to argue with Student A and proceed to ask Student A if he could kiss her to which Student A declined. The Applicant then said something to the effect of, “Sorry, I had something come over me and thought that if we kissed that it would then stop the arguments and everything would be ok”.[40] Student A recalled the occasion with considerable clarity.[41]
The Applicant disputes this version of events. He claims that he said he was “knackered”[42] and did not want to continue working. He claims Student A requested they grab something to eat anyway since she was already at his home. This is inconsistent with Student A, a vegan, ordering a meat pizza which she obviously did not consume. He drank champagne and says he offered her a soft drink. He disputes having a shower and disputes making comments relating to a relationship with Student A or seeking to kiss her. It is not in dispute that Mr Bugg, a friend of the Applicant, also attended the house during the evening but left before Student A did. I prefer Student A’s version of what occurred that evening. The Applicant’s evidence is not credible.
On 21 June, during a long WhatsApp exchange between Student A and the Applicant about a document, the Applicant made a number of references to his desire for Student A to cook him a meal. Student A does not engage with these references, but the Applicant continues to return to the theme asking, “you thinking of making me dinner?”[43]. When Student A returns the topic to work related matters the Applicant response is, “So? How is that related to my dinner?”[44].
On 27 June 2023 there is there is an extensive WhatsApp exchange between the Applicant and Student A. I consider it one of the more disturbing exchanges between them and is set out in full below:
Dr Jayasinghe: Do you trust me?
Student A: What do you mean?
Dr Jayasinghe: I mean exactly what I said.. it’s a simple question isn’t it
Student A: Haha well it is such a random question and I suppose I don’t understand the context! Like I mean, sure I do but you asking the question makes me feel uneasy and confused. Do you mean about the project?
Dr Jayasinghe: Is it? About everything.. do you trust me with your future?
Student A: My future is based on me and my actions/decisions so I can’t really expect someone else to carry the weight of my life so no in that sense but I trust that you are going to do right by me, and assist me in ways you are capable of! Is that what you are asking? That’s a very deep question to ask I think, so I’m not sure I can answer properly haha. Why do you ask??
Dr Jayasinghe: You’re right.. I can’t and won’t carry anyone else! I have loved [sic][45] up to all I’ve promised so far haven’t I? What about you? Are you going to do so right by me? Many reasons why I want to know you at a deeper level, but to put it simply, I need to convince myself this is a worthwhile investment in the long run
Student A: Yeah for sure to answer all of those questions! Oh is there a reason you are doubting me today? I thought everything was all ok!
Dr Jayasinghe: I see.. do you see your life circumstances changing because of all if this? Or are you going to stay in your comfort zone? For instance, where do you see yourself after honours is done? You know I’m full of questions.. so today ain’t any different
Student A: Sorry I just had to finish work and I couldn’t get back to my phone! Yes and I don’t think I’m gonna stay working in hospo forever, I really enjoy research and the world of academics and constant learning so I would like to continue that! Very true
Dr Jayasinghe: Why are you deflecting my question? Where will we be I can’t get you PhD opportunity or a foot in-the-door in academia?
Student A: Oh I didn’t mean to deflect I thought that was a good answer
Dr Jayasinghe: No it wasn’t
Student A: I mean there’s always a year later I suppose and I could work until that came up? Idk I haven’t put that much thought into it like I just live life and things fall where they are supposed to. Why is it worrying you so much?
Dr Jayasinghe: Also for what it’s worth, when you’re with me, random opinions have minimal impact! I see.. maybe it’s worth putting some thought into... As you know I don’t really leave things up to chance/ fate when I know I can change things for the good! I’m scared
Student A: Why? Well we are obviously different people haha but of course I think about things I just don’t want to worry all the time
Dr Jayasinghe: I guess I’m scared of losing people I care about.. losing relationships that I’ve worked so hard on. Sure.. I’m definitely the pretty one.. care to share your honest thoughts on this then?
Student A: My honest thoughts are I question why you bring this up. I feel like I’m missing information about the wider context. And I thought we were talking about something else entirely than apparently what we were. So I don’t really know how to respond right now
Dr Jayasinghe: Because it’s important to me.. and frankly, us... I thought I could talk to you about anything. What do you think we’re discussing about?
Student A: Idk just uni stuff, future endeavours, plans for Optimus and phd. I mean yes, sure, but why are you bringing this up now?[46]
During that message exchange, Student A expressed that she did not understand the messages. She thought that the messages were related to university and career matters but was then unsure. The message exchange continued between 12:28am and 12:33am as follows:
Dr Jayasinghe: So we can’t talk about non-uni things?
Student A: Why can’t you just let things be without analysing them or making it complicated haha”
Dr Jayasinghe: Wasn’t intentional.. just didn’t think that there was a perfect time for it
Student A: Again, sure, but that’s just not what I thought the conversation was about . No but I question what inspired it
Dr Jayasinghe: Righto
Student A: Angry?
Dr Jayasinghe: No
Student A: Alright well that’s good, I know I can’t answer these questions how you expect or want but I feel like I’m missing from half the conversation - like you have already had half of it without me so I’m left a little confused as to what is going on. Also, I have to go to bed I’m quite tired sorry
Dr Jayasinghe: Well our interactions started through uni.. so whatever non uni things we talk about will unfortunately will be linked to uni in some shape or form[47]
As well as reflecting the Applicant’s continued pursuit of a personal relationship, this exchange reflects what is now clearly an abuse of the power relationship that the Applicant has over Student A. His question as to whether Student A is going to do so right by him is followed by his confession that he wants to know her at a “deeper level”. This is followed again by a reference to whether Student A is a “worthwhile investment”. The Applicant then references potential PhD opportunities and career opportunities in academia for Student A. It is apparent the Applicant is referencing his power to secure PhD and career opportunities as leverage to secure his obvious and constant pursuit of a personal relationship with Student A. At the hearing the Applicant, again, denied this being a pursuit of a personal relationship with Student A and insisted what he meant was that if she was committed to the project and pulled her weight, he would assist her in gaining opportunities.[48] This denial wasn’t plausible and was entirely inconsistent with the WhatsApp messages. His answer on cross examination as to what he meant by “deeper level” lacked credibility.[49]
In late June 2023 more gifts were given to Student A by the Applicant. A pink jumper with a chicken motif on it and a feather pen. The Applicant told Student A that the jumper was a gift for his sister who lives in France but, she didn’t want it. Student A accepted both of the gifts. I’m satisfied she did so consistent with her pattern of behaviour of trying to manage what should have been a professional relationship without jeopardising her employment and Honours programme. The gifts further evidence the Applicant’s continual and persistent pursuit of a personal relationship.
Student A gave evidence that on 5 July the Applicant repeatedly hugged her in circumstances where she said no. The Applicant denies those allegations. However, the Applicant does accept that there was repeated hugging between them generally[50]. According to Student A, on 6 July she told the Applicant that she is not a physical person and was not enjoying hugs all the time to which the Applicant replied, “why were you ok the day before and not now?”[51] To which Student A replied, “I wasn’t really ok with it on Wednesday”[52].
A further WhatsApp exchange takes place on 6 July related to Student A’s attendance at a job interview. The exchange is as follows:
Dr Jayasinghe: They’re lucky to have you! I thought I was meant to judge the outfit?
Student A: Hahaha I’m pretty sure I’ll be fine with my outfit decision I just need to get there on the right day lol
Dr Jayasinghe: Nice deflection! Bravo
Student A: I didn’t know I was good at these things until you pointed them out
Dr Jayasinghe: Sustained deflection.. even better.. it’s the lawyer in you coming through
Student A: I would have been a good lawyer if i wasn’t so sensitive
Dr Jayasinghe: Sensitive? Why do you say that?
Student A: Hahahaah I’m just joking. Because I’m a crybaby about things.
Dr Jayasinghe: Well you could be a bit sensitive to me
Student A: Like i couldn’t argue in the court without crying. No you freaked out last time.
Dr Jayasinghe: Never seen you cry.. cant imagine what it’s like. When?
Student A: When I cried
Dr Jayasinghe: I didn’t.. I never over react.. I have never been a drama queen
Student A: No comment
Dr Jayasinghe: wish I had some comfort right now! Did you just roll your eyes at me?
Student A: Yes haha
Dr Jayasinghe: Is it fun to be mean to me?[53]
The Applicant’s suggestion that he would judge her outfit as well as expressing a desire that Student A be sensitive to him and that wished he had some comfort right now along with a smirking emoji, are further evidence of the Applicant seeking a personal relationship with Student A.
Student A gives evidence that the Applicant told her prior to the WhatsApp exchange above that she should come to see him in her interview outfit which she declined to do. The Applicant’s evidence is that Student A asked him for help to choose an interview outfit. That does not align with the exchange above where Student A is trying to deflect the requests of the Applicant to judge what she is wearing.
On 7 July the Applicant sent Student A a message which said, “Well-played you win!” Student A replies, “What did I win”. The Applicant replied, “You get what you want .. i get nothing...Sounds like a clear win to you! Student A then replies, “What do you mean??”[54] The Applicant does not respond to that message.
Between the 18th and 20th of July Student A gave evidence that while doing marking in the Applicant’s office he repeatedly reached out to hold her hand and touch her face. The Applicant denies this allegation. I prefer the evidence of Student A, and I am satisfied that the Applicant engaged in this behaviour.
The Applicant and Student A attended the University gym together on approximately 5 occasions throughout July. CCTV footage of some of those gym sessions was played to the Commission. During those gym sessions the Applicant physically touched Student A when “spotting” her. The Applicant also spent time massaging Student A’s hip area. The Applicant points to the concession from Student A that she did not specifically ask the Applicant to stop engaging in these activities. However, I accept the evidence of Student A that she did not seek out the gym membership and rather that it was the Applicant who pressured her to attend. Student A also gave evidence that she already had another gym membership elsewhere[55]. Again, Student A did not want to attend the gym with the Applicant but submitted that once they had gone to the gym and he had exerted his energy he was nice to her and wouldn’t harass her for a week or so, providing a peaceful working environment. Student A said it was when she would repeatedly tell the Applicant “No” that he would make her life harder with the research project and put extra pressure on her.[56] I’m satisfied that Student A attended the gym and put up with the constant physical touching from the Applicant in her continued attempt to manage the relationship with him. The discomfort she is feeling with their interaction is evident when one watches the videos of their attendance. Further, the Applicant’s claim that he was required to massage Student A because of a musculoskeletal condition was a fiction. Student A gave credible evidence, and I accept, that she has not and did not have such condition.
I also accept the evidence of Student A that during the gym sessions the Applicant made comments to her to the following effect:
“I think you’re sexy. I think you could start an OnlyFans”,
“If you go to the gym, you’ll have a big bum and then you can start an OnlyFans”, and
“You collaborate with me on research papers, but you won’t collaborate in the bedroom with me”.[57]
In mid-July 2023 there were some exchanges about travel to Burnie for a work trip and also travel to Sydney. I prefer Student A’s evidence as to what occurred in the lead up to the trip to Burnie which ultimately, she did not undertake. It’s apparent from the observation of the recorded Zoom meeting they had in respect to the Sydney trip, which was played for the Commission, that Student A was deeply unhappy and did not want to go.
It is not in dispute that on 19 July the Applicant attended Silos while Student A was working there and remained at the bar from around 6:30pm until 9:00pm. The Applicant asserts that his attendance was at the request of Student A and at the end of her shift she declined to take payment from the Applicant and offered him a lift home. In contrast, Student A’s evidence is that she had mentioned to the Applicant that she was working that night, and he said something like, “Maybe I’ll come in” to which she replied something like, “Maybe not”[58]. The Applicant then came to her work, drank at the bar and at the conclusion of her shift he asked her for a lift home to which she agreed because she could not think of an excuse. Her evidence is that after she drove the Applicant home, he asked her to come inside his home which she refused. The Applicant then asked her to sit with him in the car for one to two minutes and then to hug him for at least one to two minutes which she acceded to. While these events are denied by the Applicant[59], I prefer Student A’s evidence as to what happened that evening. The uncontested evidence shows that the Applicant has continued to pursue a personal relationship with Student A, consistently crossing professional boundaries. He has attended the workplace of Student A and sat at the bar. He has stayed there for two and a half hours and then had her drive him home. This is a continuation of the pattern of harassment that the Applicant has been firmly engaged in since April. The request for the long hug is sexual misconduct.
On 2 August Student A noticed a missed call from the Applicant and called him back. Student A gave evidence that she told the Applicant she did not think that the working relationship was working well, and she did not feel comfortable with everything that had been going on like him touching and grabbing her and that she did not want to work with him anymore. Her evidence is that he replied telling her that she makes him feel like a rapist and that she is selfish. The Applicant does not dispute that he called Student A but claims it was to discuss the message he received about her not returning to work which he regarded as unprofessional and discourteous. He claims he regretted his tone in the call so sent a message later to apologise. I prefer the evidence of Student A as to what was said in the phone call.
On 4 August the Applicant was suspended on full pay pending the investigation into allegations made by Student A.
Witness credit findings
An assessment of the credibility and reliability of the Applicant and Student A is necessary in the determination of this matter. While there is a great deal of uncontested evidence, largely from the WhatsApp messages, there is also contested evidence on which findings need to be made. Findings of credit are necessary in order to make such findings.
In the Respondent’s submissions, they assert that the Applicant was an unreliable witness and set out comprehensively why they say the Commission should make that finding. I agree that the Applicant was an unreliable witness lacking in credibility.
The Applicant was evasive and at times argumentative. One of the many examples is the exchange during the hearing related to his request to Student A to join him on a steamy date in his car.[60] There was a consistent lack of candour. His evidence was often not at all consistent with the objective evidence in the WhatsApp messages and in the CCTV footage from the gym.
The lack of candour in the Applicant’s evidence is evident from a number of factors:
a)His failure to accept that he had a desire for a personal relationship with Student A despite that being absolutely apparent from the objective evidence in the WhatsApp messages;
b)His delusional view that Student A had strong affectionate feelings for him based on the highlighted sentence in the following paragraph of a statement made by Student A in support of a restraining order against him which, read as follows:
Once I had made my complaint to SaFCU, I felt like I was starting to process what had happened and I had very strong feelings towards the Respondent. Before I made the complaint, I would tell myself that I just had to get through the year and then it would be over. However, after I made the complaint, I felt like the Respondent had taken advantage of me.[61]
Student A responded to the Applicant’s misconstrued view during the hearing stating the following:
“When I said I had very strong feelings I meant I was very upset. There was a strong feeling. I was angry as well like I was just really upset by this. It was a lot that I had gone through with him. I felt like at least. Yeah, my strong feelings weren’t positive towards him. I was very very upset at that time..”[62]
c)The Applicant’s evidence was not only often at odds with the objective evidence, but it was also often contradicted by his own evidence. For example, the Applicant made repeated assertions that he thought that Student A’s complaint about the alleged behaviour was motivated by a desire to avoid a negative performance review on 4 August. There is simply no evidence that the Applicant was contemplating giving Student A a negative performance review. In fact, the Applicant’s evidence on this point completely contradicts this claim:
i.the Applicant provided Student A with a glowing written reference just five weeks earlier on 29 June 2023 which stated, amongst other things: “I am delighted to recommend her without hesitation”; “[Student A] has consistently demonstrated qualities that make her an exceptional individual to work with. Her diligence, hardworking nature, and exceptional organizational skills enable her to handle multiple tasks simultaneously while maintaining a high level of efficiency”; and “I wholeheartedly recommend [Student A] for any professional opportunity that aligns with her skills and aspirations”;
ii.the Applicant followed up the reference with a WhatsApp message to Student A on 30 June 2023 confirming he “meant every single word”;
iii.the notes prepared by the Applicant for the 4 August 2023 meeting were overwhelmingly positive and the Applicant conceded there was no likelihood of an adverse outcome for Student A; and
iv.the Applicant’s assertion in cross examination that his reference was limited to a “non-Uni job, non research” position is objectively contradicted by the wording of the reference and surrounding documents.
d)The Applicant would not concede that he was standing in a physically intimate position with the Applicant in the gym when the CCTV footage clearly shows that he was.
In contrast Student A gave, for the most part, cogent and consistent evidence. Her account of events was consistent with the objective evidence, largely contained in the WhatsApp messages. The following evidence is also relevant to Student A’s credibility:
The evidence that Student A had sought counselling as a result of the Applicant’s conduct towards her by April 2023;
Mr Marshall’s evidence that Student A discussed concerns about the Applicant’s conduct towards her with him as early as May 2023;
the CCTV footage of the interactions between the Applicant and Student A at the University gym; and
the footage of the Zoom meeting recording on 10 August 2023.
I have considered the submission that the Applicant has made as to the credit of Student A largely related to some inconsistencies with her evidence. I agree with the Respondent that Student A provided plausible explanations for the minor inconsistencies between the statements made to SaFCU. The statements cover a pattern of conduct that extended over many months. In the circumstances and given what the objective evidence alone shows that Student A had to endure, some minor inconsistencies, e.g. whether he “grabbed” her bottom or gave it a little squeeze as per her evidence in the Commission is understandable.
Indeed, the vast majority of the evidence of Student A was consistent, remained unshaken and indeed at times strengthened in cross examination. While her evidence as to whether her Statement to SaFCU contained 72 or 75 paragraphs appeared at first blush to be inconsistent, the confusion was understandable in light of the evidence of Mr Marshall which is discussed later in the decision.
As to the attendance and acquiescence of Student A, for example attending the home of the Applicant and engaging in similar behaviours such as attending the gym with the Applicant, it needs to be said that her stated reasons for doing so are plausible in the context of the extraordinary circumstances she was dealing with. Student A gave credible evidence that she was trying to essentially manage the relationship with the Applicant and not upset him: “Yeah, well I remember asking if we could do it at (indistinct) and then he said like it would be a long day for him. And then it was, at this point, I felt like I wasn’t able to say no because I’d upset him, and I didn’t want to upset him again because we were constantly going through this. I would say no, and he would get upset. And then I don’t know he would apologise, or I would apologise, or something would happen and then it would be ok for a little bit again and then he would push past my boundaries and then yeah. I didn’t want to say no I didn’t want to be in that space again”[63]. There was also, consistent with the obvious power imbalance between them, a fear of retribution from the Applicant. An objective analysis of the WhatsApp messages clearly indicates that was something that Student A was right to contemplate, for example the reference to trusting that the Applicant will do right by her and the associated references to future career opportunities[64]. Student A gave evidence during the hearing stating, “I didn’t want him to be upset with me because it meant more than just that argument as well, he’s talked about me not finishing on the project or me not doing well on the project”[65]. Student A was clearly well mannered and stated that she strived to be polite to her supervisor.[66]
The conduct of Student A in agreeing on various occasions to comply with the continual demands from the Applicant to cross the boundary of the professional to personal relationship was understandable for a person facing the clear power imbalance Student A was facing.
As I said earlier, I accept that there were some inconsistencies in the evidence of Student A including some elements of evidence that were not included in her statement to the Magistrates’ Court in support of her application for a restraining order. However, these inconsistencies have to be considered against the background of the trauma she has experienced as direct result of the egregious conduct of the Applicant as well as the commonly cited nature of the recall of victims of such behaviour. In Pell v The Queen[67], Chief Justice Ferguson made the following observation:
When you are assessing the evidence, also bear in mind that experience shows the following. One, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Two, trauma may affect different people differently, including by affecting how they recall events. Three, it is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts. And finally, both truthful and untruthful accounts of a sexual offence may contain differences.
Student A’s evidence was entirely consistent with an honest and reliable witness who was prepared to make appropriate concessions to ensure her evidence was accurate. Her evidence was consistent with the objective evidence sourced from the WhatsApp exchanges. This stands in stark contrast to the evidence of the Applicant who did not make concessions and whose evidence was inconsistent with the objective evidence in the WhatsApp exchanges.
For the foregoing reasons, where there is a conflict on the evidence as between Student A and the Applicant, I prefer the evidence of Student A.
Other witnesses
Professor Andrew Hills gave evidence in support of the Applicant however, it became clear that he was not aware of all of the evidence against the Applicant, particularly, the WhatsApp messages and for this reason I have given his evidence little weight.
Mr Marshall gave evidence in support of the University as to Student A’s interaction with SaFCU and the process in making the formal complaint along with her statement. Mr Marshall was forthright and clear in his evidence, and this was largely supported by documentation.
Ms Derbyshire gave evidence in support of the University as to the processes and procedures followed by the University during the investigation of the Applicant’s conduct. Her evidence was clear, and she made appropriate concessions in respect of the delay in the University’s process.[68]
Alleged failure to call witnesses
Student A refers to a ‘Dr Nathan Pitchford’, ‘Nicole’ and ‘Taylor’ as people who were present on separate occasions where Student A says the Applicant had acted inappropriately towards Student A. The Respondent did not call any of these three people to give witness evidence in the matter before the Commission.
The Applicant submits that the Commission should therefore draw an adverse inference against the Respondent that their evidence would not have helped the Respondent’s case. The Applicant cited Jones v Dunkel[69] as their authority on this matter.
However, this rule only applies where a party is ‘required to explain or contradict’[70] and this depends on the issues thrown up by the evidence in a particular case.
The Respondent’s response is that the evidence of those witnesses is not material given they could only attest to isolated instances, the probative value of the witness evidence would not outweigh the impact on those witnesses if required to give evidence, their evidence given during the investigation was available to the Commission in the report and if the Applicant thought their evidence would have assisted the Commission they were open to seek an order requiring them to attend which, they did not. I agree with the Respondent’s submissions and there is no basis to draw the adverse inference sought by the Applicant.
Findings of fact as to conduct
Having assessed the evidence and made my findings of the relative credibility of the witnesses, I make the following factual findings:
a) the Applicant pursued Student A to accept a position as a Research Assistant on the research project;
b) the Applicant’s initial interactions in the WhatsApp messages objectively demonstrate that the Applicant sought a personal relationship with Student A;
c) Student A expressly rejected the Applicant’s advances by sending the rejection message on 14 April 2023 and attempted to put in place clear professional boundaries with the Applicant;
d) having received the rejection message, the Applicant was on notice that his attempts to pursue a personal relationship with Student A were unwelcome;
e) notwithstanding this, the Applicant engaged in a series of undisputed actions which were not consistent with maintaining professional boundaries, including:
i.buying a $190.00 bottle of Chanel perfume for the Applicant’s birthday 12 days after the rejection message;
ii.cooking her vegan food and asking her to his home on 14 May 2023;
iii.inviting her into his car for an ‘aimless’ drive on 15 May 2023;
iv.sending a series of personal, overly familiar WhatsApp messages between May 2023 and July 2023;
v.meeting with Student A at his home on 2 July 2023;
vi.attending Student A’s place of work on 19 July 2023 and sitting at the bar for two and a half hours; and
vii.engaging in repeated physical touching of Student A in four sessions at the University gym in July 2023; and
f) Objectively, the Applicant’s conduct is consistent with him making repeated advances to Student A in circumstances where he was on notice that his conduct was not welcome.
As well as the conduct set out above, I’m satisfied on the balance of the probabilities that the Applicant engaged in conduct which was more explicitly of a sexual nature towards Student A including:
a)telling her he had feelings for her on 14 May 2023;
b)asking her to lay her seat back to talk to him during an argument and to hug him on 15 May 2023;
c)requesting to kiss her on 2 June 2023;
d)giving her lingering hugs and repeatedly putting pressure on her to hug him and at times for an extended period; and
e)making overtly sexual comments to her during gym sessions such as “I think you’re sexy. I think you could start an OnlyFans”, “If you go to the gym, you’ll have a big bum and then you can start an OnlyFans” and “you collaborate with me on research papers, but you won’t collaborate in the bedroom with me”.
Against the background of those findings, I’m satisfied on the balance of probabilities that the Applicant:
a)sexually harassed Student A on the basis that the conduct:
i.was unwelcome – having regard to the rejection message and Student A’s evidence about having repeatedly reiterated professional boundaries and rejecting his advances for physical contact and/or declaration of having feelings towards her;
ii.was of a sexual nature – given the Applicant’s course of conduct was engaged in with a view to pursuing a personal or romantic relationship with Student A; and
iii.occurred in circumstances where a reasonable person would have anticipated that Student A would be offended, humiliated, or intimidated - particularly given the power imbalance, the rejection message and Student A’s ongoing attempts to put in place professional boundaries; and
b)engaged in conduct that was contrary to:
i.the Respondent’s Behaviour Policy and Procedure[71]; and
ii.the Act[72] and the Sex Discrimination Act 1984 (Cth)[73].
As I set out in detail later in the decision, the Applicant was well aware of his obligations under the Respondent’s Behaviour Policy and Procedure including understanding the power imbalance between him and Student A.
The evidence shows that the Applicant’s conduct has had a devastating impact on Student A. Her evidence on this point, which was credible, and I accept, included that:
a)she was in a constant state of stress interacting with the Applicant and not knowing how to react or respond to his advances;
b)she lost around 5 to 6 kilograms as she had difficulty eating due to the stress;
c)after making her complaint, she lost paid work and had to restart her Honours project;
d)she quit her job at Silos, moved house and got a new car as she did not want the Applicant to be able to find her; and
e)her anxiety worsened and she now gets quite socially anxious worrying that she will see the Applicant when out and has difficulty sleeping.[74]
Consistent with the evidence of the Respondent (particularly of Ms Derbyshire), the Commission has recognised in a recent case dealing with sexual harassment in a University environment:
It is trite to observe that sexual harassment of students (and staff members) has never been acceptable behaviour with or without detailed policies and procedures being in place. It is, however, the case that steps taken to deal with sexual harassment and misconduct within institutions such as and including the University have gathered pace and force in more recent years, as it needed to in light of compelling feedback obtained through national student surveys….[75]
The unchallenged evidence of Ms Derbyshire reinforces that having trust and confidence that an employee will behave appropriately is particularly critical in the higher education sector where:
a)there are significant power imbalances that have been perpetuated over time given the nature of the student and academic staff member relationship[76];
b)the University operates within a ‘closed door environment’ and academics undertake work that is not necessarily visible to others[77]; and
c)people in vulnerable positions, such as students or junior employees are reluctant to complain about academic staff members due to fear of repercussions on their academic or professional lives.[78]
In the decision of the Commission in Harwood, it was stated that, in similar factual circumstances, that the conduct of an applicant was serious misconduct as the sexual harassment posed a ‘serious and imminent risk’ to the health and safety of the student and to the reputation of the University.[79]
The Agreement adopts the Fair Work Regulations 2009 (Regulations) definition of serious misconduct (and the Applicant’s conduct would also be serious misconduct under the Agreement).
The Applicant’s conduct in this case is particularly egregious having regard to the:
a)significant power imbalance in the relationship between the Applicant and Student A; and
b)express rejection of the Applicant’s advances by Student A.
Based on the above, I am satisfied that the Applicant’s sexual harassment of Student A constitutes serious misconduct. It is clearly a sound, defensible and valid reason for dismissal.
I now turn to consider the second potential valid reason for dismissal advanced by the Respondent, that of the Applicant’s dishonesty.
Having considered the evidence and made the findings I have made above, I am satisfied that the Applicant has failed to accept accountability for his actions and has also attempted to dishonestly ‘re-characterise’ the nature and context of his interactions to exculpate himself. The manner in which the Applicant engaged in the Respondent’s investigation process was dishonest and demonstrated that the Applicant was unwilling to accept any responsibility or accountability for his actions. I am satisfied that this behaviour destroyed the relationship of trust between the Applicant and the Respondent.
The Applicant’s response has not only been to sustain a denial of any wrongdoing, but to also:
a)seek to discredit Student A, including by describing the complaint as, amongst other things, “concocted and fanciful”[80], “baseless”,[81] “unfounded and fictional”[82], “delusional”[83], “fabricated”[84] and reflective of her “unsettled state of mind”[85];
b)undermine Student A’s version of events by stating that his therapists had concluded that Student A was the one who had developed an attraction to him[86]; and
c)refer to Student A’s alleged acquiescence to his behaviour as a defence for his actions, including that Student A ‘never explicitly stated that she ‘did not consent’ to anything at any time!’ and ‘... willingly participated in these conversations’[87]. This theme continued during the hearing with the Applicant inferring there was mutuality as they are two adults and “it takes two to tango”.[88]
The Applicant’s chosen responses to the allegations demonstrate a:
a)total denial of wrongdoing;
b)failure to take any responsibility for his behaviour; and
c)total ignorance for the level of seriousness of his conduct in circumstances where he was in a position of trust with respect to the Respondent and power with respect to Student A.
I am satisfied that the Applicant has been dishonest on many occasions during the investigation and the disciplinary process conducted by the University. This is a further valid reason for dismissal.
Further, the Respondent submits, and I agree that the conduct of the Applicant has led to a situation where the Respondent is entitled to lose all trust and confidence in the Applicant. This is not simply because of the Applicant’s continued dishonesty. The Applicant also chose to attack the Respondent, which included him stating:
a)he was a “casualty of UTAS’s Gestapo tactics”;
b)the People and Wellbeing division of the Respondent have a “consistent track record of unprofessionalism and incompetence” such that it was “futile” for him to expect “fair and reasonable adjudication from the university”; and
c)his “confidence in UTAS to execute this task (his disciplinary proceedings) competently or reasonably (had) evaporated”.
That the Applicant would give evidence to this effect, in all the circumstances of this case, demonstrates either:
a)a level of delusion which makes it unsafe for the Applicant to ever be in a position of working closely with students (or staff) of the Respondent; or
b)that the Applicant is prepared to say anything, regardless of whether he believes it to be true or not, in an attempt to exculpate himself for his conduct towards Student A.
Either conclusion reasonably supports the Respondent’s position that it could not ever be satisfied that the Applicant could be trusted to be placed in a position of working closely with students of the Respondent in the future.[89]
University Policies and the Applicant’s duties and responsibilities and standards of behaviour and the Applicant’s knowledge of those duties and responsibilities
The Applicant held the position of Lecturer and Lead Researcher. He was bound by the policies of the Respondent including its Behaviour Policy and Procedure which confirmed that sexual harassment is behaviour and conduct that will not be accepted by the Respondent.[90]
The Applicant completed training in relation to appropriate workplace behaviour on 26
October 2021.[91] It was his evidence, and he accepted in cross examination, that:
a)there is a general power imbalance in institutions like the Respondent;[92]
b)there was a specific power imbalance between him and Student A as she was just starting out and he already had his qualifications;[93]
c)Student A had a degree of interdependency on him and needed his guidance;[94]
d)given that power imbalance, it is important to carefully manage relationships with students, including Student A;[95]
e)it is important to ensure that professional boundaries are in place and don’t get crossed;[96] and
f)the obligation to carefully manage professional boundaries sat with him as the Lead Researcher and Supervisor.[97]
Despite the Applicant understanding his obligations to behave appropriately he has wilfully and repeatedly breached those obligations.
The Complaint and the process of investigation and ultimate termination of employment
Student A took her first steps in terms of dealing with the unwanted conduct on 22 May 2023 when she met a counsellor at the University, Mr Barry Turvey. On 31 May she again met with Mr Turvey who took her to meet Mr Matthew Marshall (the investigator at SaFCU). Mr Marshall advised Student A about her options. In or around June 2023, Student A spoke to Dr Ahuja at the University and said “I think he likes me and I have said no to him”[98]. On 25 July Student A met Mr Marshall at the SaFCU office and Mr Marshall began taking a statement from Student A. On 28 July Student A again met Mr Marshall to finalise her statement. On 3 August the evidence of Mr Marshall and Student A is that the finalised statement contained 72 paragraphs.[99] Student A gave evidence that her statement was 72 paragraphs then changed that to say there was 75 paragraphs. The Applicant makes much of this inconsistency however, I think it is readily explainable. Mr Marshall gave evidence that he provided the statement to Student A for final review and signature, and she returned the statement with some additional paragraphs. However, the statement had already been sent to the workplace relations team and the allegations had been set.[100] I am satisfied that this explains why Student A believed her statement was 75 paragraphs when the final version submitted was actually 72 paragraphs.
The investigation and disciplinary process then proceed as follows:
On 4 August 2023, Dr Jayasinghe was provided with a letter signed by Ms Derbyshire suspending him on full pay.
On 8 August 2023, Dr Jayasinghe was provided with a letter signed by Professor Nuala Byrne setting out the allegations and relevant attachments.
On 18 August 2023, Dr Jayasinghe provided a response to the allegations letter.
On 29 August 2023, Ms Jocelyn Sparks (Director of SaFCU) was appointed to investigate the matter.
On 15 September 2023, Dr Jayasinghe participated in an investigation interview with Ms Sparks, Mr Marshall and Professor Hills (as support person).
In late September 2023, the conditions of Dr Jayasinghe’s suspension were revised to allow him to perform limited work.
Around 31 October 2023, Ms Sparks finalised her investigation report.
On 7 November 2023, Professor Denise Fassett (Executive Dean – College of Health and Medicine) provided a report in accordance with clause 74.1(e) of the Agreement to Ms Derbyshire.
On 8 November 2023, Dr Jayasinghe was provided with a letter outlining the outcome of the investigation (that the allegations were substantiated) and that termination of employment is being considered but the matter would be referred to the Disciplinary Review Committee (DRC) as is required by clause 74.1(h) of the Agreement. Clause 74.1(h) expressly provides that if the employee is an Academic Staff Member, and they have not admitted the allegations in full, the matter will be referred by the Chief People Officer to the DRC.
On 9 November 2023, Student A made an Application for a Restraint Order against the Applicant to the Magistrates Court of Tasmania. Student A’s affidavit in support of her application exhibited a 75 paragraph statement purporting to be the finalised statement lodged with the Respondent. As discussed earlier the document that Student A exhibited was not the 72 paragraph statement that Mr Marshall and Ms Derbyshire agreed was the finalised statement, but the mistake was understandable considering the circumstances set out earlier.
On 22 November 2023, Dr Jayasinghe emailed his show cause response to Ms Derbyshire. Dr Jayasinghe’s response included:
oan apology; and
oa description of the behavioural changes that he intended to implement.
In late November 2023, Ms Derbyshire and her team made inquiries regarding appointing a barrister in Hobart as independent chair of the DRC. Ms Derbyshire’s evidence is that she may have spoken to Deputy Vice-Chancellor (Academic) Professor Ian Anderson about Dr Jayasinghe’s matter.
On 29 November 2023, Ms Derbyshire’s evidence is that Professor Anderson sent correspondence in respect of convening the DRC that was to consider Dr Jayasinghe’s matter. Professor Anderson’s witness statement says that he “… first became aware of the process involving Dr Jayasinghe and the allegations against him by [Student A] in early April 2024”[101].
On 21 December 2024, Ms Derbyshire emailed the NTEU seeking approval to appoint Mr Phil Leerson as the independent chair of the DRC.
On 15 January 2024, the NTEU emailed Ms Derbyshire indicating that they did not agree to Mr Leerson’s appointment.
On 25 January 2024, Ms Patricia Leary agreed to be the independent chair.
On 9 February 2024, the Interim Review Statement was received from the DRC. The DRC stated: “There is no verifiable evidence of Serious Misconduct, or Misconduct, as prescribed in the Agreement, and the suspension of Dr Jayasinghe should be lifted, and he be returned to his position immediately”.
On 21 February 2024, the final report was received from the DRC. The DRC’s findings included that:
a) “The clear lack of procedural fairness and a denial of natural justice has resulted in a finding that defies common sense and a process which is unfair…”[102]
b) “We find no evidence of sexual harassment and stalking when reviewing the finding of the Report”[103]
c) “The finding that the allegation, and all its elements, has been substantiated cannot be justified on the evidence presented. The time taken to process the mater and the procedures adopted are a serious denial of procedural fairness and suggest a lack of respect or concern for the welfare of [Dr Jayasinghe]”[104]; and
On 21 March 2024, Ms Derbyshire emailed Professor Anderson providing the DRC report and attachments and her comments and recommendations. It is not in contest that Ms Derbyshire’s comments did not include any reference to Dr Jayasinghe’s apology, or the behavioural changes that Dr Jayasinghe said he intended to implement. The assessment she conveyed to Professor Anderson was that the DRC report contained several fundamental errors and that therefore it was open to the University to not adopt the findings and recommendations in the DRC report[105].In my view Ms Derbyshire was broadly correct in her identification of numerous fundamental errors in the DRC report. Ms Derbyshire advised Professor Anderson that it was reasonably open to the University to find the Applicants conduct was serious misconduct.[106]
On 3 April 2024, Professor Anderson wrote to Dr Jayasinghe outlining that he was proposing to terminate his employment and giving him a further opportunity to respond.
On 11 April 2024, the Restraint Order Application resolved by way of mutual undertakings of 12 months’ duration.
On 16 April 2024, Dr Jayasinghe provided a response to Professor Anderson’s further show cause letter.
On 24 April 2024, Professor Anderson provided a termination letter to Dr Jayasinghe.
On 2 May 2024, in accordance with clause 74.1(j) of the Agreement, Dr Jayasinghe’s termination took effect.
Was the dismissal harsh, unjust, or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[107] and should not be “capricious, fanciful, spiteful or prejudiced[108].” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[109]. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[110]
In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[111] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[112]
The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[113] In cases such as the present where a serious allegation of misconduct is made, the Briginshaw[114] standard applies so that any findings, if made, of the misconduct alleged are not made lightly;
“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”[115]
The findings of fact I made above as to the misconduct of the Applicant can comfortably be made within the Briginshaw standard. The findings of disputed fact are consistent with the objective and uncontested facts, particularly the extensive WhatsApp messaging that was engaged in.
The Applicant pursued Student A to accept a position as a Research Assistant on his project and then relentlessly pursued a personal relationship with her too. He did this despite his attempts to do so being rebuffed by Student A as early as 14 April 2023 with the rejection message. With that message Student A endeavoured to establish professional boundaries with the Applicant. Her efforts failed because the Applicant continued to wilfully and deliberately ignore the rejection and maintain his efforts to establish a personal relationship. The Applicant has clearly engaged in sexual harassment of Student A for the reasons set out earlier.
I set out earlier the evidence given by Student A, which I accept as credible, that the conduct of the Applicant had a devastating impact on her. There is no doubt in all the circumstances that the Applicant’s sexual harassment of Student A caused a serious and imminent risk to the health and safety of Student A. Having regard to this fact, there is also no doubt that the Applicant’s conduct was serious misconduct[116]. I am also satisfied taking into account the evidence of Ms Derbyshire that the conduct of the Applicant posed a serious and imminent risk to the reputation of the University[117]. It follows I am satisfied that the Applicant’s conduct constitutes serious misconduct within the meaning of Reg 1.07 of the Regulations.
I am also satisfied that the Applicant has been dishonest with his employer throughout the investigation process that led to his dismissal.
There are many examples where it has been accepted that dishonesty during an investigation and/or disciplinary process amounts to a valid reason for dismissal.[118]
Further, where the dishonesty is not a ‘spur of the moment lie’ but a carefully considered lie that was persisted with, this will undoubtedly establish a valid reason for dismissal of itself (even in the absence of any other misconduct).[119]
The manner in which the Applicant engaged in the Respondent’s investigation process was dishonest and demonstrated that the Applicant was unwilling to accept any responsibility or accountability for his actions. This behaviour destroyed the relationship of trust between the Applicant and the Respondent.
The Applicant has been deliberately dishonest with the Respondent, and this is a further valid reason for his dismissal. I note that this was not put to the Applicant prior to the termination as a reason for dismissal and I deal with that issue later in the consideration.
I have found that the Applicant’s behaviour constitutes serious misconduct thus establishing a valid reason for his dismissal. I have also found that the Applicant has been dishonest with the Respondent throughout the investigation process. This is a further valid reason for dismissal. This weighs in favour of a finding that the dismissal was not unfair.
Notification of the valid reason – s.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[120] and in explicit[121], plain and clear terms[122].
I have found that there are two valid reasons for the Applicant’s dismissal. As to the first, that of the sexual harassment constituting serious misconduct, this was contained in the allegations letter put to the Applicant on 8 August 2023. It was also put to him in an interview with Ms Sparks on 15 September 2023. It was included in the investigation report and potential termination of his employment notification which the Applicant responded to on 22 November 2023. It was also put to him in the Final Show Cause Letter which the Applicant responded to on 16 April 2024. It is clear that the sexual harassment reason for dismissal was raised with the Applicant, prior to the decision to terminate his employment. This consideration weighs in favour of a finding that the dismissal was not unfair.
The second valid reason for the dismissal was the Applicant’s dishonesty in the investigation process which was not relied on by the Respondent for the dismissal and therefore he was not notified of that reason. This consideration weighs slightly in favour of a finding that the dismissal was unfair.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[123]
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[124] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[125]
It is apparent from the evidence set out above that the Applicant had an opportunity to respond to the allegations of sexual harassment put to him and he did respond. This weighs in favour of a finding that the dismissal was not unfair.
Consistent with the consideration under (b) there was no opportunity for the Applicant to respond to the valid reason for termination I have found, that being his dishonesty in the investigation process as it was not relied upon by the Respondent at the time as a reason for dismissal. This weighs in favour of a finding that the dismissal was unfair but not significantly so.
Support person – s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[126]
The Applicant was offered to have a support person throughout the process and did in fact have a chosen support person throughout the process as well as representation. In the circumstances this is a neutral consideration
Warnings regarding unsatisfactory performance – s.387(e)
The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the University on procedures followed and impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f) and (g)
The Applicant submitted that the Commission should take into account the delay in the procedure being unfair to the Applicant given the University has a People and Wellbeing division with approximately 70 employees pursuant to s.387(f) and (g).[127] I agree with the Applicant that these delays should be taken into account and have done so under subsection (h). However, the size of the University and the fact they have a dedicated human resources department has not impacted on the procedure followed and this factor does not raise the bar for larger employers.[128] This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
The Applicant raises a number of factors which he contends renders the dismissal unfair. Many of these relate to procedural fairness issues in effecting the dismissal. I have set out above that the Applicant was notified of the first valid reason for dismissal and given an opportunity to respond to it. However, he was not notified of the second valid reason nor given an opportunity to respond to it and this factor weighs somewhat in favour of the Applicant. However, the Respondent raises broader matters related to procedural fairness which are in summary:
a)The alleged failure of Professor Anderson to consider the DRC Report and the Applicant’s responses;
b)The delays in the Respondent’s conduct of the disciplinary process; and
c)Professor Anderson’s involvement in the disciplinary process prior to the DRC being convened.
It is appropriate that these matters be considered as part of the scope of other relevant matters in a consideration as to whether the dismissal is unfair.
In respect to the alleged failure of Professor Anderson to consider the DRC report and the Applicant’s responses, the key aspects of this asserted by the Applicant are that Professor Anderson did not give evidence and that while his absence at the hearing was explained, the Commission should not accept his untested evidence as to matters in dispute. Further that it can be inferred that Professor Anderson did not himself read the DRC report or response document and that therefore the Applicant was deprived of the realistic possibility of a favourable decision. As discussed above, the DRC report made various findings including that there was no verifiable evidence of serious misconduct or misconduct and recommended that the Applicant be returned to his position immediately. Having regard to my findings above, it is apparent that my findings stand in stark contradiction to the findings of the DRC. To the extent that the findings of the DRC report are inconsistent with those made in this decision, and the inconsistencies are many, I disagree with them and disagree with them strongly. In the circumstances, whether or not Professor Anderson fully considered the DRC report and the responses of the Applicant to the level that the Applicant expected makes little difference to the outcome. In my view, Professor Anderson sensibly rejected the findings of the DRC report. One might form the view in some situations that a report was not meaningfully considered were it to be subject to a type of “tick and flick” exercise by the decision maker, its recommendations accepted without analysis or question. However, that is not what happened here. A considered response was made, and a significant decision was made to reject the report’s recommendations. Reasons were given for that decision. In any event, there is no logical basis for the contention advanced by the Applicant that Professor Anderson did not read or properly consider the report for the reasons advanced by the Respondent in their final submissions[129]. In particular, while the Applicant seems to place some weight on Professor Anderson’s reference to “note” as opposed to “reviewed” the report, this is hardly a basis on which to find that the report was not properly considered when assessed against the objective evidence as to what actually occurred. Consideration of this factor does not weigh in favour of a finding of unfairness.
A further element to the Applicant’s submission is that they assert that the Applicant made a “heartfelt” apology[130] in his 22 November 2023 response. I have set out above in my consideration my observations on the level of insight the Applicant has into his behaviour. Essentially in his conduct throughout the investigation and indeed before this Commission, the Applicant has shown he is in complete denial as to his conduct and has instead engaged in blaming the victim for his conduct. Ms Derbyshire gave evidence that she did not include the Applicant’s apology in the DRC for the following reason: “the apology itself lacked a degree of authenticity. I don’t believe it was an apology that truly indicated regret or remorse for the behaviour that was inflicted on [Student A], nor that it demonstrated true contrition. So, I think a person can say sorry and it cannot genuinely reflect an honest representation of being regretful for behaviour”[131]. The University and Ms Derbyshire were correct to view his apology as lacking in sincerity as it is an apology that is accompanied by a total denial of the allegations and all wrongdoing on his part. There is no ownership of the conduct on behalf of the Applicant, and he ensures to emphasise that any harm was unintentional. However, the intentions of the Applicant to pursue a relationship with Student A despite Student A seeking to establish professional boundaries could not be clearer. This factor does not assist the Applicant.
A further factor to consider is the delay in conducting the disciplinary process. The Agreement provides for the DRC to be convened within 10 working days, where practicable. As per clause 74.1(h). However, while it would seem apparent from November 2023 that the DRC would be required to convene, the chair was not appointed until 23 January 2024. Some of the delay is explainable, particularly the delay caused by the NTEU rejection of the first proposed chair, Mr Leerson. Ms Derbyshire also provided a reasonable explanation for the delay in providing the report to the decision maker. However, these delays were unfair to the Applicant and weigh in favour of a finding of unfairness.
As to the possible involvement of Professor Anderson in the disciplinary process prior to the DRC being convened, the Applicant complains that Professor Anderson’s involvement by way of potentially having a conversation with Ms Derbyshire and sending an email on 29 November (which has not been produced to the Commission) about the matter was not in accordance with clause 74 of the Agreement. Clause 74 provides for referral to the decision maker only after the DRC issues its report and therefore it is submitted this is procedurally unfair to the Applicant. However, it is not clear in what way that has denied procedural fairness to the Applicant particularly given that ultimately the DRC produced a report which was on any view favourable to the Applicant notwithstanding any involvement from Professor Anderson. This factor does not weigh in favour of the Applicant.
The Applicant’s length of service was approximately 5 and a half years, and he had an unblemished employment record up until his dismissal for misconduct. This time period of employment without incident is not of such a significant period that I consider it a factor that weighs in the Applicant’s favour.
As to the personal and economic consequences for the Applicant, the Applicant submitted that there is only one university in Tasmania so he will be forced to leave the state in order to continue working as an academic[132]. I am satisfied that these particular circumstances facing the Applicant weigh somewhat in favour of a finding the dismissal was unfair.
The Applicant has shown virtually no insight into his conduct or remorse I have set out earlier my consideration of the evidence and findings on this point. The continued insistence of the Applicant that it was Student A who had feelings for him despite the overwhelming evidence to the contrary, demonstrates the respondent could not ever trust the applicant to work closely with students of staff or the Respondent. It is abundantly clear on the evidence the Applicant lacks insight and remorse for what he has done. This is factor that weighs against a finding that the dismissal was unfair.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable[133].
As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his conduct amounting to the sexual harassment of Student A has been established. His conduct was willful and deliberate and it was serious misconduct. I am satisfied this was a valid reason for dismissal and the gravity of the misconduct strongly weighs against a finding of unfairness. I have also found that the Applicant was notified of that valid reason and given an opportunity to respond. I have also found that the Applicant was dishonest during the investigation, and this is a second valid reason for dismissal. However, the failure of the University to notify him of that reason and provide an opportunity to respond weighs in favour of the Applicant. The factors under (d), (e), (f) and (g) are neutral considerations.
I am also satisfied that the delays in the DRC process led to a level of procedural unfairness for the Applicant and this weighs somewhat in favour of a finding of unfairness. I am satisfied the particular personal and economic consequences for the Applicant weigh in favour of a finding of unfairness.
The Applicant has demonstrated that he has a near total lack of insight into his misconduct. This factor weighs against a finding the dismissal was unfair. All other factors are neutral considerations.
While there are some failures in providing procedural fairness to the Applicant set out above as well as personal and economic consequences for the Applicant, I am not satisfied in the circumstances of this case that these factors are sufficient to displace the weight to be accorded to the valid reason for the Applicant’s dismissal. That is, the gravity of the misconduct which the Applicant engaged in combined with his lack of insight into his behaviour weigh more significantly against a finding the dismissal was unfair than the procedural failings and personal and economic consequences which weigh slightly in favour of the Applicant.
It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there were valid reasons for the dismissal and the other factors weighing in favour of a finding that the dismissal was unfair were not sufficient to displace the weight I accord to other s.387 criteria and in particular the valid reason for dismissal.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
The application is dismissed. An Order[134] will be issued concurrently giving effect to my decision.
COMMISSIONER
Appearances:
Mr A Healer, Counsel for the Applicant
Ms S Masters, Representative for the Respondent
Hearing details:
24 and 25 September 2024.
Launceston Federal Circuit and Family Court.
Final written submissions:
Applicant, 3 December 2024
Respondent, 17 December 2024
Applicant in reply, 23 December 2024
[1] See PR783290 for Orders made at hearing.
[2] DHB, page 1030.
[3] PN1569.
[4] DHB, page 1032.
[5] Ibid.
[6] Ibid.
[7] Ibid, page 1032-1033.
[8] Ibid, page 1033.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] PN424.
[14] PN534-536.
[15] PN465.
[16] PN471.
[17] DHB, page 1003.
[18] Ibid, page 1033.
[19] PN1577.
[20] DHB, page 1034.
[21] PN1595.
[22] PN571-577.
[23] DHB, page 432.
[24] PN1613.
[25] PN656-683.
[26] PN1621.
[27] DHB, page 1006; PN1894.
[28] DHB, page 1035.
[29] Machine which measures body composition.
[30] DHB, page 1007; PN1642-1643.
[31] PN685.
[32] DHB, page 1039.
[33] Ibid, page 1040.
[34] Ibid, page 1010.
[35] Ibid.
[36] Ibid, page 1011.
[37] PN1802.
[38] DHB, page 1007.
[39] Ibid, page 1013.
[40] Ibid, page 1012.
[41] PN1854-1860.
[42] PN828.
[43] DHB, page 1048.
[44] Ibid.
[45] Conceded this should have read ‘lived’, PN895-896.
[46] DHB, page 1054-1055.
[47] Ibid, page 1055.
[48] PN920-928.
[49] PN907-910.
[50] DHB, page 433.
[51] DHB, page 1018.
[52] Ibid.
[53] DHB, page 1058-1059.
[54] Ibid, page 1059.
[55] PN2079.
[56] DHB, page 1020.
[57] Ibid.
[58] Ibid, page 1019.
[59] Ibid, page 442.
[60] PN421-427.
[61] DHB, page 491.
[62] PN2230.
[63] PN1832.
[64] DHB, page 1053.
[65] PN1932.
[66] PN1657.
[67] [2019] VSCA 186 at [76] per Chief Justice Ferguson.
[68] PN2432-2586.
[69] (1959) 101 CLR 298 at 320.
[70] Tamayo v Alsco Linen Service Pty Ltd, Print P1859, 4 November 1997 per Ross VP, Drake DP and Cargill C.
[71] Clauses 1.1, 1.3 and 1.4; DHB, page 1081.
[72] Section 527D.
[73] Section 28A.
[74] DHB, page 1026.
[75] Aaron Harwood v The University of Melbourne[2023] FWC 824 at [90].
[76] DHB, page 1074.
[77] Ibid.
[78] Ibid.
[79] Aaron Harwood v The University of Melbourne[2023] FWC 824 [123].
[80] DHB, page 1097.
[81] Ibid, page 1099.
[82] Ibid, page 1111.
[83] Ibid, page 1113.
[84] Ibid, page 1117.
[85] Ibid, page 1146.
[86] Ibid, page 1255.
[87] Ibid, page 1285.
[88] PN753; PN832.
[89] Ibid.
[90] DHB, page 1081-1082.
[91] Ibid, page 1083.
[92] PN229-230.
[93] PN224.
[94] PN212.
[95] PN231-234.
[96] PN235-238.
[97] PN239-242.
[98] DHB, page 1016.
[99] Exhibit R4; DHB, pages 1330-1339; PN2392-2393; PN2574-2583.
[100] PN2397.
[101] DHB, page 1612.
[102] Ibid, page 1321.
[103] Ibid, page 1325.
[104] Ibid, page 1326.
[105] Ibid, page 1347-1348.
[106] Ibid, page 1351.
[107] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[108] Ibid.
[109] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[110] Ibid.
[111] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213
[24].
[112] Ibid.
[113] Ibid.
[114] Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34.
[115] Ibid.
[116] As defined in reg.1.07 of the Fair Work Regulations 2009.
[117] Respondent’s closing submissions, page 27.
[118] Streeter v Telstra Corporation Limited [2008] AIRCFB 15 at [17].
[119] Hastilow Daniel Cornish v Nestle Australia Pty Ltd[2016] FWC 9104 at [95] and [111].
[120] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[121] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[122] Ibid.
[123] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[124] RMIT v Asher (2010) 194 IR 1, 14-15.
[125] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[126] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[127] Applicant’s closing submissions, page 13; PN2433.
[128] Anarieta Virisilla v Mermaid Cleaning Services Pty Ltd [2022] FWC 324, [19].
[129] Respondent’s closing submissions, paragraphs 143-145.
[130] DHB, page 1240.
[131] PN2589.
[132] DHB, page 436.
[133] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7].
[134] PR784504.
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