Professor wins reinstatement despite seven-year-old misconduct

The Fair Work Commission (FWC) recently dealt with a case involving a university professor who was dismissed for misconduct that occurred seven years earlier. The professor had been found to have engaged in inappropriate communications with a PhD student under his supervision in 2017, but was only dismissed in December 2024 following a formal complaint.

The professor argued that his dismissal was unfair because the conduct had occurred so long ago and he had maintained an unblemished record throughout the intervening period.

The university contended that the professor's messages to the student were highly inappropriate and constituted serious misconduct that warranted dismissal regardless of when it was discovered.

This case examines whether employers can fairly dismiss workers for historical misconduct, particularly when significant time has passed and the employee has demonstrated reformed behaviour, and what remedies are appropriate in such circumstances.

Employment background and inappropriate relationship develops

The professor was employed by the university in 2015 having moved to Melbourne to take up the position. In 2017, he was supervising a student who was undertaking a Doctor of Philosophy. At that time, the professor was struggling to come to terms with a recent separation from his partner, and the student was also recently separated.

In May and June of 2017, the professor and the student sent one another numerous intimate texts and emails. During these exchanges, the student told the professor that she loved him.

The professor did not feel the same way and endeavoured to convey this to the student, but then continued to correspond with her in intimate terms. Later in 2017, the student told another professor that she was concerned about the professor's behaviour and that she no longer wanted him to be her supervisor.

In 2018, this was relayed to the university's human resources department, whose officers met with the student to discuss the matter. The student did not want to make a formal complaint and was assigned a new PhD supervisor. No further action was taken at that time, and the years passed by without incident.

Formal complaint triggers investigation seven years later

In January 2024, the student sent an email to the university alleging that in 2017 the professor had sexually harassed her. The university appointed an external investigator to examine the allegations.

The investigation found no basis for the allegation of sexual harassment, but concluded that the professor's messages to the student in May and June of 2017 had been highly inappropriate and had contravened the university's Appropriate Workplace Behaviour Policy.

The external investigator reviewed 141 pages of text messages between the professor and the student, which the professor had provided during the investigation.

While initially finding the student to be credible, the investigator's assessment changed after reading the student's messages to the professor, which showed the student instigating communications of a personal nature and expressing her love for the professor.

The investigator formulated a single broadly framed allegation with numerous components, finding that the professor had breached the Appropriate Workplace Behaviour Policy by communicating with the student in an unprofessional, inappropriate and intimate manner. Seven particulars of this allegation were substantiated, relating primarily to messages the professor sent to the student in May and June 2017.

University dismisses professor for serious misconduct

The university considered the substantiated allegations to constitute serious misconduct. On 2 October 2024, university officials met with the professor and handed him a summary of the investigation report, telling him the university considered the substantiated allegations to constitute serious misconduct. The professor did not dispute the findings, saying he knew he had done the wrong thing and had made bad choices.

On 7 October 2024, the professor sent the university a reply in which he agreed with the general outcome of the investigation, stating his behaviour in 2017 was highly inappropriate and at times wilfully in contravention of the policy.

He said his conduct towards the student ultimately 'corrupted' his professional relationship with her, and that at the time his personal life had fallen apart and he had lacked the awareness that is a prerequisite for an effective professional relationship.

The university's Provost determined that the appropriate penalty was termination of employment without notice. She reached this decision because of the severity of the conduct, the significant power imbalance between the professor and the student, and the fact that the professor had engaged in wilful and deliberate contraventions of the policy.

On 17 December 2024, the university sent a letter to the professor notifying him of the termination of his employment without notice on the ground of serious misconduct.

FWC finds conduct constituted valid reason for dismissal

The FWC considered whether there was a valid reason for dismissal related to the professor's conduct. The Commission found that the professor's correspondence with the student in mid-2017 was not 'out of hours' conduct that was in the private domain, as argued by the professor.

The FWC noted the significant power imbalance between academic supervisors and PhD students, the intense nature of their relationship, and that PhD supervision occurs at all times convenient to both parties.

The FWC stated: "Having regard to these characteristics of the relationship, I consider that the workplace of an academic supervisor is present during any interaction with a PhD student." The Commission found that all interactions between the professor and the student took place in the context of an ever-present academic relationship, and that the Appropriate Workplace Behaviour Policy applied at all times.

The Commission found that when the professor realised the student had romantic feelings for him, he attempted to manage her expectations but did so "most ineptly."

The FWC noted that the professor continued to communicate with the student in intimate and inappropriate terms, including discussing body types, sending a photograph of himself in boxer shorts, and using romantic language even after the student had expressed her feelings.

Historical nature of misconduct renders dismissal harsh

The FWC considered whether the misconduct remained a valid reason for dismissal seven years later. The Commission found that although the university knew in 2018 that the student was concerned about the professor's behaviour, the university's response at that time was not unreasonable given that the student did not want to make a formal complaint. The FWC concluded that when the messages were uncovered in 2024, the university was right to be concerned about them.

However, the Commission found that the dismissal was harsh because of the significant time gap between the misconduct and the dismissal. The FWC stated:

"A prominent feature of this case is the fact that the conduct for which [the professor] was dismissed had occurred over 7 years earlier. One feels instinctively that this was unfair." The Commission noted that during the seven years between the misconduct and dismissal, the professor had maintained an unblemished record.

The FWC observed: "Because [the professor's] employment continued for so long after the misconduct for which he was later dismissed, the university effectively gave him an opportunity to demonstrate that his misconduct was isolated and would not recur."

The Commission found that the decision to dismiss the professor in such circumstances was harsh, concluding: "I consider that the dismissal of [the professor] in December 2024 was harsh, and therefore unfair."

Professor ordered reinstated with limited back pay

The FWC determined that reinstatement was the appropriate remedy, rejecting the university's argument that the employment relationship was irreparably damaged. The Commission found that the university's conclusion that it had lost trust and confidence in the professor was not soundly based, noting his seven years of service without incident following the misconduct.

The FWC stated: "I reject the university's contention that there is a real risk that [the professor] will engage in similar behaviour again. This is contrary to the fact of his unblemished record since 2017." The Commission found that any damage to the employment relationship had been made good by the professor's subsequent service.

The Commission ordered the professor's reinstatement under section 391(1) of the Fair Work Act 2009. However, the FWC limited the back pay order to six weeks, finding that while the professor had made some efforts to find alternative employment, he had not made all reasonable efforts to mitigate his loss. The Commission stated:

"I consider it unlikely that, even with best endeavours, [the professor] would have found work immediately" given he was summarily dismissed shortly before Christmas, but found it inappropriate to award lost pay beyond six weeks. The total back pay awarded was $28,098.12 less applicable taxation.