Lecturer admitted touching the student's hair but denied any sexual element to the conduct
The Fair Work Commission (FWC) examined whether an associate lecturer's dismissal was harsh, unjust or unreasonable after the employer dismissed him following a student's complaint.
The lecturer was employed full-time for over six years until his dismissal, and his employment record was unblemished prior to the complaint.
The student alleged the lecturer inappropriately touched her hair by reaching out and tucking her fringe behind her ear without her consent, and on an unknown earlier date, told her, "you look cute" while reaching down to touch the stockings above her knee.
The lecturer admitted touching the student's hair but denied tucking it behind her ear and denied any sexual element to the conduct.
Background and incident
The lecturer, employed full-time for over six years with an unblemished record at a university college, was dismissed following a student complaint. The incident occurred when he and the student were alone in a classroom with the door closed.
The student alleged he inappropriately touched her hair by tucking her fringe behind her ear without consent, and on an earlier date, told her "you look cute" while reaching to touch her stockings.
The lecturer admitted moving the student's hair but denied tucking it behind her ear and denied any sexual element to his conduct.
He explained that during a one-on-one class session, while giving positive feedback on her work, he noticed hair hanging in front of her eye and impulsively reached forward to move it with his index finger. The student was so distressed that she went home and cut off her fringe.
FWC findings on the allegations
The FWC preferred the lecturer's account over the student's written complaint, noting it had the benefit of observing him give detailed, consistent evidence demonstrating genuine contrition.
The Commission found no sexual element to the hair-touching conduct, despite circumstances that could suggest otherwise—closed door, power imbalance, physical proximity, and the intimate nature of touching someone's hair.
The FWC accepted the lecturer's explanations: he typically kept classroom doors closed to limit noise, was alone with the student only because other enrolled students were absent that day, needed close proximity to view her iPad work, and moved the hair to maintain eye contact during their conversation.
However, the Commission determined the conduct breached the employer's staff-student relationships policy requiring all interactions be professional and appropriate.
A student support advisor testified that many young women would find such uninvited touching offensive, and the FWC agreed the conduct was unreasonable, unwelcome, and could reasonably offend or intimidate students.
The FWC found the second allegation—that he said "you look cute" and touched her stockings—was not substantiated. Key factors included: the student never mentioned this incident contemporaneously to her mother, the advisor she regularly contacted, or the employer; other students present recalled no such conduct; and the lecturer's testimony that he doesn't use the American expression "you look cute" had credibility.
Dismissal found harsh and process unfair
While finding a valid reason for termination due to policy breach, the FWC ruled the dismissal was harsh both in its severe consequences for the lecturer and because it was disproportionate to the misconduct's gravity.
The Commission emphasized his six-year exemplary service record and that the campus manager testified he was a very good, well-respected employee.
Critically, the FWC found serious procedural flaws: the investigator changed her finding on the second allegation from "unsubstantiated" to "substantiated" in the final report based on strong encouragement from the decision maker.
The decision maker admitted prioritizing the student's ability to continue studying over the lecturer's employment. The FWC determined he failed to act fairly or impartially, violating obligations under the enterprise agreement.
The FWC ordered reinstatement to his former position, finding that appropriate measures could protect the student while allowing the lecturer to continue teaching.
Suggested measures included: assigning another teacher for the student's subjects, informing the lecturer of the times the student would be in particular classrooms, prohibiting any communication or approach toward the student, and encouraging continued counseling support for the student.
