Fair Work Act 2009

s.394 - Unfair dismissal

Application to re-open case - application granted.

[1] Mr Morrison has made an application for an unfair dismissal remedy, having been dismissed from his employment with the Australian National University (ANU or the University).

[2] His application was listed for hearing over multiple days in late November 2020. At the conclusion of the evidence, Counsel for both Mr Morrison and the ANU requested an extended time period in which to file their closing submissions, citing their unavailability over December and part of January as the basis of the request. With some reluctance, their request was granted.

[3] In early December 2020 the ANU's student newspaper, the ANU Observer, printed an article about the proceedings. As a result of that article, a former student of the ANU (the New Witness) approached the ANU's HR division about her interactions with Mr Morrison in 2016.

[4] The ANU now seeks leave pursuant to s.589 of the Act to lead new evidence in the form of a statement from the New Witness and to rely upon that evidence in these proceedings (the application to reopen). The application to reopen is opposed by Mr Morrison.

[5] The application to reopen was made on 9 February 2021 and was the subject of a hearing on 9 March 2021. Prior to the hearing on 9 March, the parties proposed a timetable and directions for dealing with the application to reopen and all the outstanding matters relating to Mr Morrison's application for an unfair dismissal remedy, which was accepted by the Commission.

[6] So as not to impact on the remainder of the timetable, I advised by the parties by email yesterday that I would grant the ANU's application to reopen the proceedings and allow the evidence of the New Witness, and that my reasons for doing so would be provided today.

[7] These are my reasons.

[8] The ANU submits that its application should be granted on the following basis:

1. The evidence of the New Witness was not available at the time of the hearing. The New Witness did not approach the University to complain about Mr Morrison's conduct until December 2020, following the publication of an article in the ANU Observer regarding Mr Morrison's dismissal. Accordingly, and importantly, there was no failure on its part to lead the new evidence during the hearing. The University has a good explanation as to why the evidence was not led at that time of the hearing; the evidence was not available to it.

2. It is in the interests of justice to allow ANU to re-open the proceedings. This is because the new evidence is directly relevant to the question of whether the University has a valid reason to dismiss Mr Morrison. It is also relevant to the question of whether reinstatement is appropriate if the Commission finds that Mr Morrison was unfairly dismissed.

3. The evidence is relevant as to whether ANU had a valid reason to dismiss Mr Morrison because it demonstrates inappropriate conduct by a senior academic with respect to an undergraduate student. It was also relevant because it was responsive to Mr Morrison's assertions that his interactions with the Relevant Student were 'an exceptional and isolated situation' and was a 'lapse in judgment that I will never repeat'. The evidence is responsive to Mr Morrison's evidence that he has an 'established history of respectful relationships with female students and junior faculty'.

4. Further, the evidence of the New Witness is directly relevant to whether Mr Morrison should be reinstated because he has shown a remarkable lack of judgment in dealing with an undergraduate student. His poor judgment with respect to the New Witness is clearly relevant to whether the ANU can be confident he can be trusted to safely interact with students.

5. The admission of the new evidence will not cause substantive prejudice to Mr Morrison because it is of short compass and can be dealt with quickly. In particular, the parties are yet to make their closing submissions and can therefore accommodate this evidence. The time taken to hear the new evidence must be balanced against the justice to be served by ensuring that the Commission has before it all available, relevant evidence.

[9] In their written and oral submissions, the ANU expanded upon these contentions by reference to the statement of the New Witness and other evidence in the proceedings.

[10] Counsel for Mr Morrison submitted that the Commission should not exercise its discretion to reopen the proceedings to allow the evidence of the New Witness.

[11] The basis for this submission included that:

1. The evidence of the New Witness was not relevant to a fact in issue. Her evidence, at its highest, discloses a consensual friendship between Mr Morrison and the New Witness, during which Mr Morrison apparently developed feelings for the New Witness who happened to be a student at ANU.

2. Mr Morrison did not teach the New Witness and there was no prospect of him teaching her as she was enrolled in another faculty. Accordingly, there was nothing for him to declare in terms of any alleged conflict of interest.

3. There is no possibility that her evidence supports a finding that the ANU's Code of Conduct had been breached, as there is nothing in the Code which prevents lecturers from engaging in intimate relationships with students outside their faculty.

4. Further, the evidence only proves the existence of a friendship, a discussion between them of taking the friendship further, and that the relationship did not progress because the New Witness told him she was not interested in him as anything other than a friend.

5. There is no proper basis for the ANU to put any submission that the new evidence comprises a breach of the law or of his contract of employment. Persons may have their own views on the appropriateness or otherwise of relationships between adults who are many years apart in age, but that is not a basis upon which to dismiss someone.

6. The New Witness has recast her friendship with Mr Morrison in an entirely different way having read the allegations against him in December 2020.

7. The ANU could have obtained the new evidence with reasonable diligence. There is no evidence from the ANU as to what it did to identify any other witnesses prior to the hearing, for example by undertaking an audit of its students to ensure nothing untoward had happened.

8. The delay in making the application to reopen should weigh against granting the application.

9. To the extent that the new evidence has possible relevance as tendency evidence and credit, its probative value is so low as to require it to be rejected.

10. The evidence is not 'extremely confined' and the evidence in reply may require evidence from Mr Morrison, his wife, and the other academic identified on the canyoning trip.

[12] Both parties in their written submissions set out the principles generally relevant to the consideration of whether proceedings ought be reopened. I have not repeated their submissions in this decision.

[13] It is not in contention that the power to reopen a case should be exercised sparingly, having regard to the public interest in maintaining the finality of litigation.

[14] In deciding whether to reopen proceedings, the following considerations are relevant:

1. Is the evidence relevant, in that it engages in one or more of the issues requiring determination?

2. Was the evidence able to be obtained with reasonable diligence for use during the hearing?

3. Are the interests of justice served better by allowing or rejecting the evidence?

4. What is the likely prejudice to the party resisting the application?

5. Will a denial of procedural fairness likely arise if a party does not have an adequate opportunity to argue its case?

6. Was the evidence not led because of inadvertence or mistake?

[15] I consider the arguments for and against exercising my discretion to reopen these proceedings to be finely balanced.

[16] In terms of evidence, no evidence currently has been filed by Mr Morrison in response to the statement of the New Witness, there having been no requirement for him to do so unless the application to reopen is granted. Further, the evidence of the New Witness is untested. On the face of it, the new evidence engages in at least one of the issues I may need to decide, that being whether reinstatement is practicable. Whether the new evidence is actually relevant and has probative value is difficult to determine at this point in time, noting it is not at all unusual that answers given by witnesses in cross examination can significantly change the complexion of that person's evidence.

[17] I am not satisfied that the ANU could have obtained the evidence of the New Witness with reasonable diligence prior to the hearing. This would have effectively required it to publicise the nature of the alleged conduct and reasons for Mr Morrison's dismissal broadly. I would not consider this to be a reasonable step to take, and no doubt not one that Mr Morrison would want the ANU to take.

[18] Mr Morrison does not argue that there is prejudice to him in terms of the issues raised by the evidence of the New Witness. The submissions on his behalf also note that his legal costs are now increased significantly regardless of the outcome of the application to reopen.

[19] I consider that the ANU has had an adequate opportunity to present its case, and accordingly a denial of procedural fairness does not arise in this matter.

[20] There is no suggestion that the evidence was not led because of inadvertence or mistake.

[21] In terms of the significant delay attributable to the ANU in the Commission being able to deal the application to reopen, as outlined earlier, the ANU were contacted by the New Witness on 8 December 2020 and its HR division met with her on 15 December 2020. The application to reopen was not made until 9 February 2021. The delay was attributed to Christmas leave period closures and the unavailability of Counsel for the ANU.

[22] In a jurisdiction where unfair dismissal applications are to be dealt with quickly, a delay of almost two months without even flagging the issue with Mr Morrison's lawyers or the Commission is highly unsatisfactory. However, given the delay both parties had sought regarding the making of final submissions, I am not satisfied that this delay should weigh against exercising my discretion in favour of reopening the proceedings.

[23] Having carefully weighed all these considerations, I am on balance satisfied that the interests of justice are better served by allowing the new evidence. Accordingly, the application to reopen the proceedings to allow the evidence of the New Witness is granted.

[24] The parties are aware of the directions previously issued to progress and finalise this matter. No further adjournments or extensions will be entertained.

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