1. The University took steps to deal with the Complainant's grievance in March 2021 and affirmed the employment contract at that time;

1. The external investigation was conducted with unfairness and bias;

1. The Applicant's employment history and his personal circumstances;

1. To ensure the objective of a "fair go all round".

• [316] The matters in (a) - (c) of the above paragraph I have previously addressed. Notwithstanding, I consider that if, contrary to my view regarding the effect of the events from March 2021 on valid reason, I accept Dr Owczarek's submission that they - and the issue of delay I described above - are relevant as 'other matters' pursuant to s 387(h).

• [317] In relation to the allegation of bias against Ms Edmands, I reject that allegation. The allegation was founded on two elements: first, an apparent commercial connection with a "material" witness, Mr Dean; second, the infected reasoning said to be evident concerning allegation 13(g). Neither are persuasive. Notwithstanding that Ms Edmands has had some limited professional dealings previously with Mr Dean, there is no sensible basis for me to conclude anything other than that Ms Edmands approached her task professionally and objectively. Mr Dean's materiality to the case before me was limited. The complaints about allegation 13(g) really go no higher than challenging Ms Edmands' conclusion that Dr Owczarek was motivated to romantically pursue the Complainant. While I have reached a different conclusion to Ms Edmands about those matters, I have had advantages in my fact-finding process that Ms Edmands did not possess and could not be reasonably expected to possess, the most obvious being the ability to take sworn evidence from witnesses tested in open court. I also observe that it was not inherently unreasonable for Ms Edmands and the University to conclude that Dr Owczarek was romantically motivated towards the Complainant. As part of their assessment, they were confronted with Dr Owczarek's repeated reliance on unpersuasive 'contextual' matters. If Dr Owczarek had demonstrated greater insight as to his own conduct during that investigation, the conclusions may well have been different. Of course, if Dr Owczarek had demonstrated greater insight with his professional relationship with the Complainant more generally, it is quite likely he would never have been the subject of investigation.

• [318] Dr Owczarek's personal circumstances are matters weighing in his favour. He is a career academic of considerable success and renown, and had been employed by the University for almost 32 years. In his field of expertise, I accept Dr Owczarek's submission that there is a relatively limited and specialised employment market of the closely interconnected tertiary education academic sector.

• [319] I am required to consider each of the criteria in s 387, to the extent they are relevant to the factual circumstances before me. The following statement from Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 is well-known:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

• [320] Having regard to my lengthier factual findings and conclusions regarding the constituent elements of s 387 above, my overall conclusion can be stated more shortly.

• [321] I am satisfied that the dismissal of Dr Owczarek was harsh, unjust and unreasonable in all of the circumstances. The University has established misconduct on Dr Owczarek's behalf, albeit not to the extent that he was dismissed for. They are matters that would ordinarily weigh in favour of upholding the dismissal.

• [322] To my mind, a very significant factor in this case concerns my conclusion that, in a real and practical sense, the misconduct (and other perceptions of misconduct) had been dealt with by March 2021 and commitments given to prevent their recurrence. The catalyst that led to the formal complaint being made against Dr Owczarek was the validly held concern that, if Dr Owczarek successfully applied for a new Faculty position, he would be working again with the Complainant (and her concern for others in the Faculty with whom he would also work). Whether those matters are considered in the context of being a 'valid reason' or as 'other matters', I reach the same conclusion. A proportionate response would have been refusing to appoint Dr Owczarek to that position for those reasons, and possibly other steps short of dismissal. Dismissal was disproportionate in circumstances where there was no credible evidence of any ongoing misconduct or similar conduct since March 2021 and the complaint was not lodged to have Dr Owczarek dismissed but to preclude his reappointment to a Faculty-level position (although the Complainant considered that dismissal was a possibility). The personal circumstances of Dr Owczarek reinforce the harshness of dismissal.

• [323] As the other statutory prerequisites under s 385 of the Act have been met, I am satisfied that Dr Owczarek was unfairly dismissed.

• [325] By s 390(1) of the Act, the Commission may (not must) order reinstatement, or the payment of compensation to a person, if satisfied that the person was protected from unfair dismissal and was unfairly dismissed. Satisfaction of those conditions is met.

• [326] By s 390(3), the Commission must not order the payment of compensation to a person unless satisfied that reinstatement of the person is "inappropriate" and an order for compensation is appropriate. Section 381(1) provides that an objective of Part 3-2 of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

• [327] The University submits that Dr Owczarek's misconduct was totally destructive of the necessary trust and confidence between himself and the University and he has shown no insight into his own behaviour and the effect of his behaviour on others. It submits the Commission could have no confidence that Dr Owczarek's behaviour would change.

• [328] The University's submission raises a number of discrete considerations. First, when the University is referring to Dr Owczarek's misconduct, it is referring to the allegations forming the basis for his dismissal. While the University has had some success on those matters, I consider that a significant emphasis for the dismissal included Dr Owczarek's alleged motivation of a romantic pursuit, which I do not accept.

• [329] By contrast, the University's legitimate concern about Dr Owczarek's profound lack of insight about appropriate workplace boundaries has real force and, if Dr Owczarek was in the position of Dean at the time of his dismissal or with ongoing wider managerial supervision of others, the outcome in this proceeding may well have been very different. But I do not accept the proposition that there can be no confidence that Dr Owczarek's behaviour would change. Dr Owczarek had been performing in his tenured professorial role since March 2021 without incident. The process of the unfair dismissal proceeding itself is capable of establishing insight or self-awareness that might weigh on the question of reinstatement.[36] I anticipate these reasons will reinforce the University's expectations about proper boundaries for the future. I did not find the University's evidence regarding reinstatement persuasive and, while it would not affect my conclusion, the Complainant herself no longer works at the University.

• [330] I am not satisfied that the reinstatement of Dr Owczarek would be inappropriate. That enlivens my discretion to make an order for his reinstatement. I consider it appropriate to exercise that discretion and will order that Dr Owczarek should be reinstated. I will also make an order for continuity of employment, given the length of tenure prior to dismissal. I will order that reinstatement take effect within 28 days of this decision.

• [331] The remaining issue concerns what, if any, order for lost pay ought be made under section 391(3). For avoidance of doubt, there is no basis for a compensation order under section 392, as an order under that provision can only be made "in lieu" of reinstatement.

• [332] In Millington v Traders International Pty Ltd [2014] FWCFB 888, a Full Bench stated:

"[73] The capacity under s.391(3) to seek an order for pay lost or likely to have been lost as a result of the dismissal cannot be equated to an action for damages for wrongful dismissal. An order under s.391(3) can only be made if an order for reinstatement is made under s.391(1); it is therefore entirely ancillary to and not severable from the personal remedy of reinstatement. Further, there is no right to a lost pay order even where reinstatement is ordered; a lost pay order may only be made where the Commission "considers it appropriate to do so" and is therefore discretionary in nature. The Commission and its predecessors have not infrequently declined to make lost pay orders even though reinstatement has been ordered." (citations omitted).

• [333] In a footnote to the above quotation, reference was made by the Full Bench to paragraph [104] of the decision of Hatcher VP in Ismail Gurdil v The Star Pty Ltd [2013] FWC 6780 (Gurdil), referred to above, and to an earlier Full Bench decision Regional Express Holdings Limited trading as REX Airlines v R Richards [2010] FWAFB 8753. In both those matters, a factor found relevant to the exercise of discretion to refuse to make an order for lost pay under s 391(3) was the conduct of the employee leading to the dismissal.

• [334] In Gurdil, Hatcher VP also considered that declining an order for lost pay "will also serve to reinforce with Mr Gurdil that his conduct on 1 March 2013 was inappropriate and must not happen again." It is sufficient in my view to refuse to make any order for lost remuneration under s 391(3) for the sole basis of serving to reinforce to Dr Owczarek that his conduct was inappropriate and must not happen again - I refer to my numerous observations about Dr Owczarek's troubling lack of insight as a matter calling for any order for lost remuneration to be refused. If it were necessary to do so, I would also consider that Dr Owczarek's misconduct would make an order for lost pay to be not appropriate.

• [335] In reaching these conclusions, I have taken into account the amounts earned since dismissal and likely to be earned up to reinstatement: s 393(4). The amounts "earned" are in dispute in one sense, which requires some explanation. In February 2024, Dr Owczarek successfully obtained a fixed term professorial contract with Monash University. He did so after having disclosed to Monash University a copy of the adverse findings made against him. That contract was to run until December 2024, albeit with a possibility of renewal.

• [336] Within about a week, Dr Owczarek was stood down. Evidently, different levels of the Monash University administration took a different view about his employment, and sought further details from the University of Melbourne (which were provided). It is sufficient to note that Dr Owczarek's employment with Monash University was terminated on 1 March 2024, for the reasons stated as follows:

"In the circumstances, whilst I acknowledge your co-operation in this process and that you dispute the University of Melbourne findings, I have determined that it is not tenable for you to continue in employment with Monash University. To do so would be inconsistent with the University's values, its positive duty to take all reasonable steps to prevent sexual harassment and obligations to ensure a safe workplace, including in respect of staff or others who are aware from the public announcements at the University of Melbourne of those matters and consequently have concerns and anxiety about your employment with Monash University.

As you are employed on a fixed term contract that expires on 31 December 2024 the University will make payment in respect of the remaining period of the Contract in satisfaction of its contractual obligations to you."

• [337] Dr Owczarek's evidence is that the position with Monash University was "essentially the same" as his previous professorial position with the University of Melbourne. I infer this to include the same remuneration among other matters, albeit at the University of Melbourne, Dr Owczarek stated his remuneration included "an additional allowance paid to me by the University of Melbourne in recognition of my status as a Redmond Barry Distinguished Professor." The character of that allowance was not elaborated upon by either party, including whether it might be withdrawn or altered, although I infer it was paid in direct connection with Dr Owczarek's performance as a professor of mathematics and statistics.

• [338] Dr Owczarek contends that the monetary amounts he received from Monash University should not be taken into account for any order for lost pay under s 391(4). He submits those amounts are "damages", as distinct from remuneration. In light of the final sentence from the above letter from Monash University stating that the payments made to Dr Owczarek were "in satisfaction of its contractual obligations to you", I have very real doubts these payments are to be excluded from consideration under s 391(4). But even if that were to be the case, they are plainly capable of bearing on the question under s 391(3) as to whether any order for lost remuneration is "appropriate". I consider these payments reinforce my conclusion that any payment for lost remuneration is not appropriate, as they are plainly on account of remuneration that would have been earned, even if (which I doubt) they are correctly characterised as damages and fall outside of the amounts to be taken into account under s 391(4).

• [339] Dr Owczarek also submits that the University "was directly involved in procuring Monash University's breach of contract" and engaged in "the intentional interference" of Dr Owczarek's attempts to gain alternative employment. I am not satisfied on the evidence before me that the University "procured" or "intentionally" interfered with any breach of contract, let alone there was any breach of contract. But even if there was, the payout (to use a neutral term) by Monash University remains a matter I would take into account and my conclusion remains unchanged.

• [340] The final matter concerns the Redmond Barry Distinguished Professor allowance. The order I will make for reinstatement is that Dr Owczarek be reappointed to the position in which he was employed immediately before the dismissal. I have proceeded on the assumption that this position included the Redmond Barry Distinguished Professor honorific and concomitant allowance. If that was not part of Dr Owczarek's position, then my order has no application to that element. I make the same observation concerning the role of Principal Chief Investigator for the ARC grant Dr Owczarek was working on at the time he was dismissed.

• [341] An Order[37] giving effect to my reasons above will be published together with this decision.

M. Rinaldi of Counsel, instructed by A J Macken & Co for the Applicant.

M. Felman with F. Leoncio of Counsel, instructed by Lander & Rogers Lawyers for the Respondent.

[1] There are ongoing orders relating to confidentiality made in this proceeding, including in relation to the Complainant and to two other employees referred to as 'AB' and 'XY' in this proceeding.

[4] Witness statement of Professor Phillips, Annexure NP-5, CB p.980.

[6] Respondent's Outline of Submissions dated 16 April 2024 at [45], CB p.1205.

[7] Witness Statement of Professor Owczarek, Annexure 22.

[8] For example, paragraph [39] of the summary of findings provided to Dr Owczarek on 11 August 2023, CB p.273.

[9] Further Witness Statement of Professor Owczarek at [196], CB p.1349.

[11] Witness Statement of Professor Owczarek at [12], CB p.33.

[13] Transcript PN1068, with a transcript correction from 'elicit' to 'illicit'.

[15] Exhibit A4, Record of interview of Julia Hampshire signed 29 June 2023.

[16] Witness Statement of Professor Owczarek at [43], CB p.39.

[17] University closing submissions, para [89].

[18] CB p.1266. Having regard to the nature of the matter, I will not set it out.

[19] This text message comprises allegation 13(f), which contains typographical reference to 1 January 2021.

[20] Exhibit A5, Record of Interview of [XY] signed on 26 June 2023.

[22] Witness statement of Complainant at [161], CB p.1239.

[23] Witness statement of Complainant at [117] - [118], CB p.1234

[25] Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [111].

[26] The conduct (and the other inappropriate workplace conduct breaches I describe below) would likely also constitute contraventions of the other policy clauses relied upon by the University, but I do not consider anything turns on the fact that a particular instance of conduct might constitute a breach of multiple provisions of the policies.

[27] Appropriate Workplace Behaviour training module, CB p.951.

[28] Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520 at [28], citing Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32].

[29] Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150 at [352].

[34] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[35] Applicant's Outline of Submissions at [147], CB p.362.

[36] See Ismail Gurdil v The Star Pty Ltd [2013] FWC 6780 at [103].

[37] PR775319

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