Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - dismissal for misconduct that occurred 7 years earlier - unblemished record since that time - dismissal harsh - order for reinstatement

• [1] Stephan Matthai has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Dr Matthai was employed by The University of Melbourne (University) as a professor and chair of reservoir engineering in its Department of Infrastructure Engineering. In December 2024, Dr Matthai was dismissed for having contravened the University's Appropriate Workplace Behaviour Policy (AWB Policy). The contraventions had occurred many years earlier. In 2017, Dr Matthai had been the supervisor of a student who was undertaking a Doctor of Philosophy (PhD). At that time, Dr Matthai was struggling to come to terms with a recent separation from his partner. The student was also recently separated. In May and June of 2017, Dr Matthai and the student sent one another numerous intimate texts and emails. During these exchanges, the student told Dr Matthai that she loved him. Dr Matthai did not feel the same way. He 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 Dr Matthai'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. The student was assigned a new PhD supervisor. No further action was taken.

• [2] The years passed by. Then in January 2024, the student sent an email to the University alleging that in 2017 Dr Matthai had sexually harassed her. The University appointed an external investigator. The investigation found no basis for the allegation of sexual harassment, but concluded that Dr Matthai's messages to the student in May and June of 2017 had been highly inappropriate, and had contravened the AWB Policy. The University considered that this amounted to serious misconduct, and on 17 December 2024, it summarily dismissed him.

• [3] It is clear that Dr Matthai's messages to the student in 2017 were inappropriate and that they contravened the AWB Policy. Dr Matthai admitted as much to the University. He committed misconduct. When it occurred, the misconduct was a valid reason for dismissal. There is a question about whether it remained a valid reason for dismissal in 2024. In my view, it did. Although the University knew in 2018 that the student was concerned about Dr Matthai's behaviour, and might have discovered the 2017 messages had it investigated her concerns, the student did not want to make a formal complaint. The University's response was not unreasonable. It had no knowledge of the 2017 messages until 2024, and was right to be concerned about them when they were discovered. Nevertheless, I consider that it was harsh to dismiss Dr Matthai for misconduct that had occurred so long ago, in circumstances where he had maintained an unblemished record over the following 7 years of his employment. In my view the dismissal was unfair, and the appropriate remedy is for Dr Matthai to be reinstated.

• [4] At the request of the University, I decided that I would anonymise references in my decision to the student complainant, to whom I will refer as AB. It was appropriate to do so, as AB would not be participating in the proceeding. It was foreseeable that there might be contentions and evidence about her that could be sensitive or adverse to her interests, and which she would not have an opportunity to contest.

• [5] Dr Matthai is originally from Germany. He moved to Melbourne in 2015 to take up the chair of reservoir engineering at the University. At the time of his dismissal, Dr Matthai was covered by the University of Melbourne Enterprise Agreement 2024 (2024 Agreement). He was a person protected from unfair dismissal as defined in s 382 of the Act. At the time of the conduct for which he was dismissed, Dr Matthai was subject to the AWB Policy. His contract of employment stated that he was required to comply with the policies and procedures of the University and that professors should be role models in their relationships with students.

• [6] Dr Matthai gave evidence that his first contact with AB occurred when she wrote to him from her country of origin and asked whether she could nominate him as a potential supervisor on her application to undertake a PhD at the University. Dr Matthai was enthusiastic about AB's proposed research topic, and he agreed to supervise her in the event that her application was successful. AB obtained a university scholarship and arrived in Melbourne in March 2017 to commence her PhD under Dr Matthai's supervision.

• [7] Dr Matthai said that on 7 May 2017, AB attended his birthday party, along with other members of his research group. Dr Matthai had recently separated from his partner. During the party he spoke to AB about how much he was suffering from the breakup. AB told him that by coming to Australia, she had escaped an abusive relationship. The next day, Dr Matthai commenced a period of leave and travelled to Queensland. During the day, AB sent him a poem that she had written, using her private email address. He replied, sending AB a poem by one of her country's most famous poets. Dr Matthai's evidence was that from the conversations that unfolded from this initial exchange, it became clear to him that AB had a romantic interest in him. Many of her messages stated that she loved him. Dr Matthai said that he then attempted to manage AB's expectations and shifted the focus of their conversations back to work. In a message to AB on 9 May 2017, he told her that he did not want to create any expectations apart from the great company that they could give each other. He said that he was a 'construction site', evidently referring to his fragile emotional state, and said that he could not have any new relationship at the moment. Dr Matthai said in his evidence that he did not believe that he had encouraged AB in the direction of a romantic relationship, and that he had thought that she understood this. He noted that in a message to him on 10 May 2017, AB said that it was 'better that I keep my distance from you and only be your student'. Some days later, Dr Matthai remarked in a message to a friend that he had set the record straight with a female student.

• [8] Dr Matthai said that on 3 July 2017, he was asked to attend a meeting with the head of department, Professor Abbas Rajabifard, who told him that AB had complained about him and had asked to change supervisor. Dr Rajabifard did not give him any details of the complaint. Dr Matthai's evidence was that he told Professor Rajabifard about AB's romantic interest in him, and that they agreed that a change of supervisor would be the best way forward. Dr Matthai said that from July 2017, he continued supervising AB, jointly with Professor Andrew Western, and the relationship seemed to be back on track. In April 2018, he attended AB's confirmation. Professor Western then took over as her supervisor.

• [9] Dr Matthai said in his evidence that years later, in June 2024, the University sent him a list of allegations concerning his behaviour towards AB in mid-2017. In his response to the University, he explained that he had not been interested in AB romantically, but that he did not want to hurt her feelings. He cooperated with the University's investigation, and provided the investigator with all of the messages that had passed between him and AB in 2017, most of which were from May and June. Dr Matthai told the University that any suggestion that he had been pursuing AB in a romantic manner was simply wrong.

• [10] Dr Matthai's evidence was that in the early stages of his employment at the University he had received training that recommended an approach that was hard on the science but soft on the student, and that he did not want to be hard on AB when it became clear that she wanted some form of relationship with him. He said that with the benefit of hindsight he should have been more abrupt and direct with her, or simply not responded to her first personal email.

• [11] Professor Rajabifard gave evidence that from 2012 to 2020 he had been the head of the Department of Infrastructure Engineering. In June 2017, he received a message from AB raising what he described as 'high-level concerns' about Dr Matthai's supervision of her PhD. He said that sometime later AB came to see him regarding her concerns about Dr Matthai, and he suggested that she speak to human resources. Dr Rajabifard said that sometime later, Anshu Tara from human resources told him that AB's concerns related to Dr Matthai's behaviour towards her while supervising her PhD, but that Ms Tara did not mention any details. He said that it was later agreed that it was appropriate to find AB a new supervisor, and Professor Western took on this role. He did not recall Dr Matthai ever mentioning that AB was romantically interested in him.

• [12] Professor Western is the current head of the Department of Infrastructure Engineering and has held this role since 2020. Professor Western gave evidence that he first became aware of AB in mid-2017 when she approached him with concerns about the manner in which Dr Matthai was supervising her PhD. He said that she did not mention any specific incidents or characterise the nature of her concern. Over the next few months, Professor Western had some five to ten conversations with AB. He recalled her saying that Dr Matthai had told her that he wanted her to be his girlfriend, and from this he believed that her concern was in part that Dr Matthai was inappropriate and overly personal in his dealings with her. AB told Professor Western that she did not want Dr Matthai to be her supervisor any more. At some point in late 2017, Professor Western became a co-supervisor of AB alongside Dr Matthai. He encouraged AB to discuss her concerns about Dr Matthai with human resources, but she did not want to do this until her PhD was finished. Professor Western said that eventually he decided to report AB's concerns to human resources. On 14 May 2018, he met with Lauren Richards to discuss the matter. He said that in August 2018, AB began a new PhD under his supervision, which she completed in 2023.

• [13] Ms Tara gave evidence that in 2018 she was a human resources manager employed by the University. Ms Tara said that on 16 May 2018, she and Lauren Richards met with AB, who told them that she wanted to change PhD supervisor because of Dr Matthai's inappropriate behaviour. AB told them that Dr Matthai did not know appropriate boundaries and that some of his comments made her feel uncomfortable. AB said that she did not want to make a formal complaint, as she was concerned that this could jeopardise her PhD. Ms Tara's evidence was that her main focus was on what AB wanted. Ms Tara said that she did not recall exactly what happened next in relation to AB's concerns. She believed that she had a discussion with Professor Rajabifard, and that he said that he would speak with Professor Western and then address AB's concerns with Dr Matthai. Ms Tara said that she believed that Professor Rajabifard would have advised Dr Matthai about appropriate workplace behaviour and the University's expectations about his interactions with AB and other students, but she did not know whether this had occurred. Ms Tara said that she may have met with AB a second time and exchanged some further messages with her. Ms Tara left the University in 2022.

• [14] Lauren Richards is currently employed by the University as an associate director of human resources. In 2018, she was a human resources officer. Ms Richards said that on 14 May 2018, she bumped into Professor Western, who told her that a PhD student in his department needed to speak to someone in human resources. She and Ms Tara met with AB on 16 May 2025. Ms Richards' evidence was that AB raised concerns about Dr Matthai's behaviour but provided limited details. However, Ms Richards' notes of the meeting, which she appended to her witness statement, record a number of details of what AB said, including that Dr Matthai had spoken with her about his sadness at breaking up with his girlfriend, about how beautiful his girlfriend was, and about his sex life with his girlfriend; that he had asked people to help him find a new girlfriend; that Dr Matthai thought that she was jealous; and that Dr Matthai would not stop 'bothering' her. Ms Richards said that the outcome that AB sought was to be supervised by someone else, and that it was agreed that AB would speak to Professor Rajabifard about finding a new supervisor. AB said that she would call Ms Tara after her meeting with Professor Rajabifard. Ms Richards had no further involvement in the matter.

• [15] There is little of relevance to note in respect of the period from 2018 to early 2024, save for the important fact that throughout this period Dr Matthai remained in his position as chair of reservoir engineering and continued his work for the University, and that there is no evidence of any concerns having been raised about his behaviour over this time.

• [16] On 2 January 2024, Professor Western received a lengthy email from AB in which she raised numerous concerns about a company for which she had worked in September 2023. She stated that the main reason for her email was to raise a technical concern about one of the company's engineering projects. She also stated that she had experienced misconduct from her manager in the form of 'SH' (evidently, sexual harassment), as well as racism and harassment. AB then stated that in 2017, Dr Matthai had asked her to have a 'sextual relationship until he can find someone adequate for himself', but that she had rejected this, and that he had started 'bothering' her. She said that Dr Matthai had suggested that she cease her PhD and instead work for him for free. She said that Professor Western had become her supervisor, but that Dr Matthai had continued 'menacing' her. She said that she had needed to change supervisor, as well as her branch of study, that her PhD had taken 6 years, and that she had suffered. Towards the end of her message, AB said that she had experienced 'SH' both at the University and in industry in less than 7 years. Professor Western forwarded AB's message to human resources.

• [17] Belinda Robinson is a director of human resources at the University, a role she assumed in June 2024. Ms Robinson gave evidence, on information and belief, that on 19 January 2024, AB sent a formal complaint to Lauren Jenkins in human resources concerning Dr Matthai's conduct during the time he was her PhD supervisor. The complaint was a different text from the one that was sent to Professor Western on 2 January 2024. In her complaint, AB stated, among other things, that Dr Matthai had 'sextually and mentally abused' her for 14 months; that he had sent her emails with sexual subjects; that she knew that he did not 'like' her, as he repeatedly spoke about his ex-girlfriend; that he had wanted to 'abuse' her; that she had asked him to stop calling her and sending her messages; that he had spoken to her about love; that he had persuaded her to go swimming with him at the beach; that he had complimented her appearance; and that he had forced her to work for him for free.

• [18] Ms Robinson said that in February 2024, the University appointed an external investigator, Karen Wise, to investigate AB's complaint. On 5 June 2024, the University sent a letter to Dr Matthai informing him of the complaint, and of the investigation. The letter advised him that the investigator had already interviewed the complainant, and that he too would be interviewed. It attached copies of an allegation that had been formulated by the investigator. The allegation was not that he had sexually harassed AB. It was to the effect that he had breached the AWB Policy by communicating with AB in 2017 in an unprofessional, inappropriate, personal and intimate manner. Seven particulars of this allegation were provided, together with copies of messages that Dr Matthai had sent to AB at this time, in which, among other things, he had suggested that they use their private email to correspond with one another, and had spoken to her of love, their 'precious time together' and their 'bliss'. The particulars of the allegation are set out in full at [24] below.

• [19] Ms Robinson said that on 8 June 2024, Dr Matthai provided a written response to the allegations, which was attached to her statement. In the response, Dr Matthai stated that he wanted to explain the context of his messages to AB, as she had not provided the University with the messages that she had sent to him. Dr Matthai set out AB's messages, which included numerous declarations of love for him. He stated that when he realised that AB was not just expressing compassion, but love, he tried to manage her expectations. However, he agreed that he had acted unprofessionally and said that his judgment had been adversely affected by his emotional state at the time

• [20] Ms Wise gave evidence that she was engaged by the University to conduct an investigation, and that in March and April 2024, she reviewed background materials and interviewed AB. She later interviewed Dr Matthai and others. Ms Wise said that other than the evidence that she received from AB and Dr Matthai, she did not rely on witness evidence in making her factual findings for the investigation report. Most of the relevant interactions were recorded in emails and text messages, and it was the documentary evidence that formed the basis for the allegation that she formulated against Dr Matthai. This evidence included 141 pages of text messages between Dr Matthai and AB, which Dr Matthai had given her.

• [21] Ms Wise's investigation report dated 25 June 2024 was attached to her witness statement. In the report, Ms Wise recorded that she had recommended to the University that a number of matters that AB had raised should not be included in the formal investigation, as the available evidence did not show any basis for them. Ms Wise also noted that AB had left out details of her interactions with Dr Matthai that later came to light when he produced all of the messages that had passed between them. Ms Wise said that while she had initially found AB to be credible, her assessment changed after she read AB's messages to Dr Matthai. She said that AB had told her that Dr Matthai had spoken to her about things of a sexual nature, and that he had misread her friendship as a romantic interest; but in fact the totality of the messages showed AB instigating communications of a personal nature, and expressing her love for Dr Matthai, which AB had not previously mentioned.

• [22] AB's allegation that Dr Matthai sexually harassed her was not included in Ms Wise's list of allegations that would be put to Dr Matthai. It is no part of the University's case in this matter that Dr Matthai sexually harassed AB.

• [23] Ms Wise's evidence was that she considered many of the communications sent by Dr Matthai to AB in mid-2017 to have been unprofessional, inappropriate and overly personal, in circumstances where Dr Matthai was required by the AWB Policy to maintain appropriate professional boundaries. In the end, Ms Wise formulated a single broadly framed allegation (Allegation 1), with numerous components, or 'particulars'. Allegation 1 is recorded in the investigation report and is set out below:

'By acting in one or more of the ways particularised below in relation to a former PhD Student, [AB] while employed by the University of Melbourne, you breached the University of Melbourne Appropriate Workplace Behaviour Policy (MPF1328.1, effective 30 November 2016), which required you to:

a. maintain the highest international standards of ethics and quality in research, teaching and administration (paragraph 4.2(a));

b. sustain a diverse, inclusive and harmonious scholarly community committed to supporting employees and students to realise their full potential (paragraph 4.2(f));

c. maintain a respectful, safe, rewarding and environmentally sustainable learning and working environment (paragraph 4.2(g));

d. take all reasonable steps to demonstrate respect for others (paragraph 4.3);

e. maintain a standard of conduct and work performance required by the University and demonstrate professionalism and courtesy in dealing with other employees, students, contractors, visitors and members of the public (paragraph 5.1(c)); and

f. protect the interests of students (paragraph 5.2), including to take all reasonable steps to avoid and resolve conflicts of interest (paragraph 5.2(a)), respect the trust involved in the employee-student relationship and accept the constraints and obligations inherent in that relationship (paragraph 5.2(b)) and ensure that relationships with students are professional, trusting and respectful (paragraph 5.2(c)) including - not initiating or encouraging relationships with students that do not accord with the constraints and obligations referred to at section 5.2(b) (paragraph 5.2(c)(i))'.

• [24] Seven 'particulars' of the allegation were put to Dr Matthai. Particular 6 contained 13 sub-particulars. Most of the particulars related to messages that Dr Matthai sent to AB in May and June of 2017. Particular 6 related in part to spoken remarks allegedly made by Dr Matthai to AB in this period. Particular 7 related to spoken remarks allegedly made by Dr Matthai in October and November 2017. The particulars, together with Ms Wise's findings in respect of them, were set out in the investigation report and are reproduced below:

On 8 May 2017, you communicated with [AB] from your personal email in an unprofessional, inappropriate and/or personal and intimate manner, including by stating "and I am so glad that this is out of the way now so that we can start focussing on the things we wanted to do together using this opportunity to meet. I have moved to my private email - also addressing you on yours because this is more appropriate for the conversations we are having. Nothing to be seen by UoM internet security people. It is our very own private conversation...and yes, we have the pleasure of getting a glimpse of this together and it is really beautiful reawakening. We share this on a deep intuitive level...".

The Investigator accepts Stephan's evidence that his reference to "... so that we can start focussing on the things we wanted to do together using this opportunity to meet" is related to work he was doing with a colleague and not [AB].

However, it is substantiated that the balance of Stephan's communications in this email, including Stephan moving his conversations with [AB] to his personal email address and stating "...Nothing to be seen by UoM internet security people..." was of an unprofessional, inappropriate and overly personal and intimate in nature.

On 9 May 2017, you communicated with [AB] from your personal email in an unprofessional, inappropriate and/or personal and intimate manner, including by stating "Oh [AB] - we both have been missing so much in our life. We are like the dry soil soaking up the autumn rain after a long hot summer. It is very beautiful and caresses our souls, but it should not give you pain. You know that I am barely coping with the separation from [omitted]. There are feelings of guilt of having mistreated her and anger for having been so blind to let the situation escalate to what it became. So I am a construction site and can't project myself into any new relationship at the moment. I need to heal...same for you...it is great to share my feelings with you, to cherish the beauty of life together and to feel our attraction where there has been a void in our lives, but I do not want to create any expectations apart from the great company we can give to each other. The Now! And that I feel we should embark on without any pressure or expectations about the future. I see that you write from your iPhone. What is your number? Perhaps we can have some FaceTime later this evening to speak about all this interactively. It will have to be after dinner so around 9pm, what do you think?".

Stephan's evidence is that at this time he realised that [AB] might have been interested in him romantically. Whilst in his email of 9 May 2017, Stephan said that he can't project himself into a new relationship, and he doesn't want to create any expectations, the Investigator's view is that Stephan has communicated with [AB] in an unprofessional and inappropriate manner and in an overly personal an intimate manner, in circumstances where he should have ensured to maintain appropriate professional boundaries.

On 10 May 2017, you communicated with [AB] from your personal email in an unprofessional, inappropriate and/or personal and intimate manner, including by stating "...yet there were also pleasant feelings arising from what we share: Feelings that give me confidence in the future. Last night, I read the Petit Prince chapter again, about taking the Fox - and you are right the taming creates expectations and the fox is suffering when the prince goes away... To engage with you, but still sending myself and my independence, just like you stressed yesterday how important being grounded in yourself is for you ... rather, lets inhabit fully what we do, enjoy, live the dynamics of the now and let this propel us to the next stage albeit watching carefully not to engage in unwholesome actions. Can you handle these emotional dynamics? - can I? - can one learn this growing up..... At the moment this is an expedition into unchartered territory, it is very exciting however, more than gambling is. Our FaceTime yesterday was a moment of bliss - Stephan".

[AB]'s forthright and intimate emails of 9 and 10 May 2017 (set out in the table on page 22) ought have rung alarm bells for Stephan and should have been clear signals to him that [AB]'s interest in him was romantic, and problematic, and this ought have been the impetus for Stephan to cease engaging with [AB] in a personal and intimate manner, and to seek support on managing this situation e.g. from the Head of Department, given the potential impacts for [AB], her PhD (and her associated student visa) if her relationship with Stephan did not remain professional or soured.

Whilst Stephan says that he aimed to steer their conversation to other subjects, this is not evident in the communications, which in the Investigator's assessment are poetic, personal and romantic, and reasonably open to misinterpretation by [AB], particularly as English is her second language.

On 11 May 2017, you communicated with [AB] from your personal email in an unprofessional, inappropriate and/or personal and intimate manner, including by stating "Dear [AB] - yes, I would like to share with you on FaceTime again tonight. I like to explore these differences between love and like with you then. I did not sleep so well last night, but still feel much better today than yesterday. Let's get some good work done and cherish this precious time together tonight. Also you are right: gratitude of what we have is so important and I felt that very intensely when lying awake last night".

Whilst Stephan's explanation is that he wanted to share his thoughts with [AB], and wanted her to understand that he liked her, but did not feel any romantic love or sexual feelings, the Investigator's view is that in light of the expressions of love [AB] had expressed to Stephan, it was inappropriate and unprofessional for Stephan to continue to engage with [AB] in a manner that was personal, intimate and romantic, particularly in light of [AB] speaking English as a second language, which increased the risk of her misunderstanding or misinterpreting Stephan's communications.

On 14 May 2017, you communicated with [AB] from your personal email in an unprofessional, inappropriate and/or personal and intimate manner, including by writing to her about the "5 love languages".

The Investigator's view is that it was unprofessional and inappropriate for Stephan to write to [AB] about the 5 love languages in light of the relevant circumstances.

In the period May 2017 to June 2017, you repeatedly communicated with [AB] in an unprofessional, inappropriate and/or personal and intimate manner, including:

Substantiated that in the period May 2017 to June 2017, Stephan repeatedly communicated with [AB] in an unprofessional, inappropriate and/or personal and intimate manner. Noting the particulars that are substantiated to be unprofessional, inappropriate and/or personal and intimate are:

- 6(i) - text message stating "And I come from the German 69 culture - anything goes, naked in the swimming pool. My mum gave me contraceptives when I was 12..."

- 6(iv) - Stephan messaged [AB] on her personal phone at around 1am in the morning, stating "I am burning".

- 6(v) - Stephan regularly complimented [AB] including in relation to her physical appearance and dress.

1. On or around May 2017 to June 2017, in response to [AB], mentioning that people in [her country of origin] don't have relationships before they marry, you said words to the effect of "in my country it is not like that, when I was 13 my mum gave me contraceptives and I had a relationship with a girl";

The text message evidence supports that Stephan messaged [AB] "And I come from the German 69 culture - anything goes, naked in the swimming pool. My mum gave me contraceptives when I was 12..."

1. On or around May 2017 to June 2017, you repeatedly asked [AB] to go swimming with you at the beach near your house, in circumstances where she told you that she didn't like water or swimming, and that she did not want to go;

Substantiated (noting this particular/ conduct is not determined to be inappropriate or unprofessional).

1. On or around May 2017 to June 2017, you called [AB] by Facetime on her personal phone, to speak about personal matters not related to her, and said words to the effect of "my mother gave me a place to live that was calm, because girls like to have sex in a calm place";

1. On or around May 2017 to June 2017, you messaged [AB] on her personal phone at around 1am in the morning, stating "I am burning", and in response to [AB] saying that you had woken her, and suggesting that you have a drink of water, you sent a further message stating that [AB] should keep her mobile phone on silent because you wanted to be able to message her at any time;

On or around May 2017 to June 2017, you messaged [AB] on her personal phone at around 1am in the morning, stating "I am burning".

That Stephan sent [AB] another message stating that [AB] should keep her mobile phone on silent because you wanted to be able to message her at any time

1. On or around May 2017 to June 2017, you repeatedly called [AB] on her personal phone, to chat about personal, non-PhD related topics, for example, on one occasion, you called [AB] whilst you were cooking dinner, and told her that you had called her as you wanted someone to chat with, and in response to [AB] saying that you couldn't just call her any time you liked, you said words to the effect of "I want to use all of my time effectively";

On or around May 2017 to June 2017, Stephan repeatedly called [AB] on her personal phone, to chat about personal, non-PhD related topics, for example, on one occasion, he called [AB] whilst cooking dinner, and told her that he had called her as he wanted someone to chat with.

That in response to [AB] saying that Stephan couldn't just call her any time he liked, Stephan said words to the effect of "I want to use all of my time effectively".

Noting this particular/ conduct is not determined to be inappropriate or unprofessional.

1. On or around May 2017 to June 2017, you said to [AB] words to the effect that you wanted to go to a conference to "find a good girl" for yourself, and said to [AB] words to the effect of "let's be with each other until that happens";

Noting that the text message evidence supports that it was [AB] who mentioned that Stephan could meet someone at a conference.

1. On or around May 2017 to June 2017, you spoke about personal and intimate matters with [AB], including, about your relationship and sex life with your former girlfriend [omitted]. In particular, you sent [AB] numerous photos of yourself and [former girlfriend] in various places including your bedroom and a hotel;

Noting that whilst text message evidence supports that Stephan sent photos of [former girlfriend] to [AB], these were not photos of Stephan and [former girlfriend] in a bedroom or hotel.

1. On or around May 2017 to June 2017, you sent [AB] numerous text messages of a personal and intimate nature, including messages describing former girlfriends, including comments about their bodies and sex lives. In particular, you sent [AB] a photo of a former girlfriend who had been your classmate at University, who is now a professor in Germany, and in response to [AB] saying that she looked competent and strong, you wrote words to the effect of "you should see her body, she looks sad in this photo but she is violent during sex. She is old for me now!";

1. On or around May 2017 to June 2017, you regularly complimented [AB], including by complimenting her face, body and clothing. In particular, during a meeting in your office, you constantly looked at [AB]'s body and said words to the effect of "you do not look 39, you look younger";

Substantiated (on the basis of Stephan's admission) that he regularly complimented [AB].

Not substantiated that Stephan said words to the effect of "you do not look 39, you look younger".

1. In one supervisory meeting in around May 2017, you asked [AB] to sit near you behind your monitor, instead of both sitting at the meeting table that was in the middle of his room, and when [AB] started speaking about her project and asked a question, you said words to the effect of "let's change the topic, why do you always want to speak about your project?", even though the purpose of the meeting was to discuss [AB]'s project;

Substantiated that Stephan asked [AB] to sit next to him in order to view the monitor in his office.

Not substantiated that Stephan said words to the effect of "let's change the topic, why do you always want to speak about your project?".

1. On one occasion in around May 2017, during a meeting to discuss [AB]'s PhD in a coffee shop, you said words to the effect of "let's change the topic, why do you always want to speak about your project?", in circumstances where the purpose of the meeting was to discuss [AB]'s project;

1. In around the end of May or early June 2017, after [AB] raised concerns about you asking her to work on the Otway Industrial Project without payment, you spoke to [AB] in a threatening manner and said words to the effect of "I am your supervisor and all of your PhD, its confirmation and completion are in my hands, you need to change your behaviour", and repeated comments of this nature a number of times; and

1. In around the end of May or early June 2017, after [AB] stopped responding to your messages, you became angry and on around three or four occasions said words to the effect of "you can't understand me [AB], all of your PhD is in my hands".

In around October to November 2017, you communicated with [AB] in an unprofessional, inappropriate and/or personal and intimate manner. You asked [AB] to hold a supervisory meeting in a coffee shop on the University grounds, and during the meeting, instead of answering [AB]'s questions, you gazed at [AB] and looked at her body and smiled, and did not respond to the questions she asked about her PhD.

• [25] Based on her findings in relation to the particulars that she had found to be substantiated, Ms Wise concluded that Dr Matthai had contravened each of the provisions of the AWB Policy cited in Allegation 1, and that the allegation was substantiated.

• [26] Ms Wise gave evidence that on 13 June 2024, she had met with Dr Matthai to obtain his responses to the particulars. He agreed that he had acted unprofessionally in his communications with her, particularly from 7 to 14 May 2017. Dr Matthai said that from around 10 May 2017, it had become clear to him that AB wanted a romantic relationship with him, and that he had then changed the way he interacted with her. Ms Wise said that she did not find this credible. She said that Dr Matthai had continued to engage with AB in an overly personal manner even after realising that AB had feelings for him. Ms Wise said that she was particularly concerned about Dr Matthai's evidence to her that during a FaceTime conversation he had with AB in May 2017, she had sought to strip; while Dr Matthai said that he had stopped her, Ms Wise considered that this must have made clear to him that he needed to change the personal nature of his communications with her, and that he should have informed the University so that he could seek support to put in place measures to ensure that he could work with AB in a professional manner. Ms Wise said that Dr Matthai was in a position of significant power as the supervisor of a vulnerable woman who had recently arrived in Australia from a different cultural background, and who had disclosed to him a history of domestic trauma. Ms Wise said that it was incumbent on Dr Matthai to set and maintain the boundaries of their working relationship.

• [27] Ms Robinson described in her evidence the various internal processes of the University after its receipt of Ms Wise's report. I will not recite all of these. On 2 October 2024, Ms Robinson and the interim dean met with Dr Matthai and handed him a summary of the investigation report. They told him that the University considered the substantiated allegations to constitute serious misconduct. Dr Matthai did not dispute the findings. He said that he knew that he had done the wrong thing, that he had made bad choices, that he was glad that AB had finished her PhD, and that he wished her well. On 7 October 2024, Dr Matthai sent the University a reply. This was appended to Ms Robinson's statement. In his reply, Dr Matthai said that he agreed with the general outcome of the investigation, that his behaviour in 2017 was highly inappropriate, and at times wilfully in contravention of the AWB policy. He said that his conduct towards AB ultimately 'corrupted' his professional relationship with AB. He said that at the time, his personal life had fallen apart and that, absorbed with his own problems, he had lacked the awareness that is a prerequisite for an effective professional relationship. He said that he deeply regretted his conduct, and that in the 8 years that had passed, he had learned to improve his emotional wellbeing.

• [28] The Provost of the University, Professor Nicola Phillips, gave evidence that on 7 November 2024, she received a message from the University's director of workplace relations attaching materials for her to make a decision in relation to allegations against Dr Matthai. These included a copy of Ms Wise's investigation report, Dr Matthai's reply, and a recommendation that Dr Matthai's employment be terminated, on notice, for serious misconduct. Professor Phillips said that after reviewing all of the materials she determined that the appropriate penalty was termination of employment without notice. She said that she reached this decision because of the severity of the conduct, the significant power imbalance between Dr Matthai and AB, and the fact that Dr Matthai had engaged in wilful and deliberate contraventions of the AWB policy, which he had explicitly acknowledged.

• [29] On 12 December 2024, Ms Robinson and others attended a meeting with Dr Matthai at which he was informed that the University intended to terminate his employment without notice. Dr Matthai was provided a further period to submit any additional information for the University's consideration. Dr Matthai asked to be provided with ongoing access to his email for a period of time, and raised various matters about the communication of his departure to his students. On 17 December 2024, the acting Provost sent a letter to Dr Matthai notifying him of the termination of his employment without notice on the ground of serious misconduct.

• [30] The primary contention of Dr Matthai's representative at the hearing was that the conduct on which the University relied for establishing a valid reason for his dismissal lay outside the domain of work and could not be the subject of regulation by the University. He said that the email exchanges with AB in mid-2017 were 'out of hours' conduct that was of a private nature, and could therefore not amount to misconduct or a valid reason for dismissal. He also contended that the University's use of Dr Matthai's private messages to AB had breached his right to privacy. In the alternative, Dr Matthai submitted that the central claim against him was that he had abused AB, but that this was not borne out by the evidence and was not true. He noted that, although AB's 2024 complaints had alleged that he had 'sextually and mentally abused her', and that he had asked her to have a 'sextual relationship', the University had not put these allegations to him, or any other allegation of sexual harassment. Instead, the University had put other matters to him, which were not the subject of AB's complaint. Dr Matthai said that AB had raised concerns about him with the University in 2017 and 2018, that the University had considered these, and that the action that the University had decided to take was to remove him as AB's supervisor. He said that it was unfair for the University to revisit these matters many years later.

• [31] Dr Matthai further submitted that the decision to terminate his employment was unfair because it was disproportionate to the conduct for which he was dismissed, and because the dismissal occurred 7 years after that conduct had occurred, and that during all of this time there had been no complaints or concerns raised about his conduct. Dr Matthai said that on no view of his correspondence with AB in 2017 could it be said to constitute serious misconduct. He submitted that taking into account the matters in s 387, his dismissal was harsh, unjust or unreasonable and that he should be reinstated to his former position, with an order for payment of lost wages and continuity of service.

• [32] The University contended that Dr Matthai had been dismissed for his highly inappropriate and unprofessional messages and comments to AB in 2017 and that these had been in clear contravention of the AWB policy. It said that this amounted to serious misconduct within the meaning of clause 1.39.2 of the 2024 Agreement, and a valid reason for dismissal. The conduct had been wilful. Dr Matthai had deliberately diverted his correspondence with AB to private channels of communication so that the University could not see it. The University said that given the nature of the relationship between a supervising professor and a PhD student, it was untenable to suggest that these communications were 'out of hours' conduct. The inappropriate messages were sent in the context of a significant power imbalance between Dr Matthai and a vulnerable foreign student. Such behaviour was not to be tolerated and the University had a legitimate concern to prevent it and to take disciplinary action if it occurred. The University had no choice but to trust its academic staff to behave appropriately with students, because by the nature of their roles, academics have frequent unsupervised contact with students, especially those undertaking PhDs.

• [33] The University submitted that although the misconduct had occurred in mid-2017, it had only come to its attention in 2024, following the investigation undertaken by Ms Wise that was precipitated by AB's complaints in January of that year. Although AB had raised concerns about Dr Matthai with Professor Western and with human resources in 2017, she gave little detail and did not want to make a formal complaint, but sought only to change supervisors. It submitted that Dr Matthai was therefore wrong to say that the University had dealt with the matter in 2017 and 2018, because it did not know about his inappropriate messages to AB until 2024. The University submitted that Dr Matthai's misconduct was confirmed after a fair process which entailed an external investigation and an extensive opportunity for him to respond both to the allegations and to the proposed decision to terminate his employment. During the investigation, Dr Matthai raised in his defence that he had been going through difficult personal circumstances, and that AB had willingly engaged in the exchange of messages that were found to be inappropriate, but neither of these matters justified his conduct or mitigated its severity. The conduct had been a flagrant and deliberate breach of the AWB Policy which warranted dismissal, and there was nothing about the circumstances which was harsh, unjust or unreasonable. The University said that, should the Commission conclude otherwise, reinstatement was inappropriate because the conduct was destructive of the trust and confidence necessary for an effective employment relationship, and that any compensation should be significantly reduced on account of the misconduct.

• [34] In determining whether a dismissal is harsh, unjust, or unreasonable, and therefore unfair, the Commission must take into account the matters in ss 387(a) to (h) of the Act, based on the evidence before it. Where there are contested facts, the Commission will resolve them by making factual findings. In the present case, the facts that comprise the conduct for which Dr Matthai was dismissed are not in dispute. Most of the substantiated conduct is recorded in messages that Dr Matthai sent to AB. These documents speak for themselves. Some of the allegations related to Dr Matthai's spoken words, but these are not in dispute.

• [35] The Commission is required to consider whether there was a valid reason for the dismissal related to the person's capacity or conduct (s 387(a)). An employee's private conduct will generally not give rise to a valid reason for dismissal. In Sydney Trains v Bobrenitsky [2022] FWCFB 32, a Full Bench of the Commission stated that, to constitute a valid reason for dismissal, conduct must have a relevant connection with employment (at [142]), and that such a connection might exist where, for example, the employee damages the employer's interests in respect of its relationships with clients or staff (at [148]), or because of the adverse effect of the conduct on other employees, or the efficient operation of the business (at [149]). In such cases, conduct that might otherwise have been regarded as private will be work-related and can be relied on as a valid reason for dismissal.

• [36] In his response to the University's allegations, Dr Matthai accepted that he had contravened the AWB Policy, that he had done so wilfully, and that he deeply regretted his behaviour. However, by the time Dr Matthai reached the Commission to prosecute his unfair dismissal application through the advocacy of representative, his contention was that the conduct for which he was dismissed was in the private domain, and that it was none of the University's business to regulate it.

• [37] I reject Dr Matthai's contention that his correspondence with AB in mid-2017 was 'out of hours' conduct that was in the private domain. The contention fails to take account of at least three critical features of the relationship that Dr Matthai had with AB in mid-2017. First, the academic supervisor holds a position of significant power over the PhD candidate. As Professor Phillips explained in her evidence, the PhD student is reliant on the supervisor in numerous respects. Most immediately, the student depends on the guidance of the supervisor in order to develop the PhD. This will greatly affect the quality of the work that the student will produce, as well as whether the student will ultimately be successful in obtaining the degree. Students also rely on supervisors to provide them with work, and to facilitate work opportunities during their studies, such as on projects for which the supervisor has received funding. Students also depend on their supervisors to introduce them to others in their chosen field and to foster relationships that can be important in their future working life. Professor Phillips explained that an early career academic will typically use their PhD supervisor as a referee, and were this not to occur, it would raise questions. These factors clearly create power dynamics that may make it difficult for students to raise any concerns they may have about the personal aspect of the relationship. If proper boundaries are not observed, student welfare is put at risk.

• [38] Secondly, the relationship between an academic supervisor and a PhD student is an intense one that requires much time to be spent together. It is only to be expected that students and supervisors will endeavour to establish a good rapport with one another. All professional relationships will have a personal aspect of some kind. But in this case the relationship is a particularly close one that is intensified by the fact that it is an important two-person common endeavour spanning several years. Interpersonal complications will have an acute capacity to adversely affect the work of the PhD, and hence the work of the supervisor.

• [39] Thirdly, a PhD is a research undertaking that takes place largely outside of lecture halls and tutorial rooms. The interactions between supervisors and students occur both in person and remotely and take place at any and all times that are convenient to them. There are no set working days or hours of work. In my view it does not make sense to speak of 'out of hours' conduct in this context because working hours can be any hours on any day.

• [40] 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. Contrary to Dr Matthai's contention before the Commission, the AWB Policy was not disengaged when he went on holiday to Queensland in May 2017, just as it was not disengaged when he walked off campus on Friday evenings. All interactions between Dr Matthai and AB, including personal ones, took place in the context of an ever-present academic relationship. Dr Matthai argued that he wore different 'hats' at different times. In his broader life, this may be true. But when he was communicating with AB, he wore only one hat. It was a University of Melbourne hat.

• [41] In my view, the correct analysis is that from the perspective of the academic supervisor, the relationship with the PhD student remains at all times one that is intrinsically in the domain of work. Alternatively, to the extent that the distinction between work and 'out of hours' conduct has any application to the relationship, my factual finding in this case is that the communications that Dr Matthai sent to AB in mid-2017 had a substantial connection to work, for the reasons given above. A further connection to work arose from the propensity of Dr Matthai's communications to derail his academic relationship with AB. The connection to work also subsisted because of the University's legitimate concern in preventing communications of this kind by maintaining the standards of behaviour set out in the AWB Policy. Professor Phillips explained in her evidence that the University has an important responsibility to ensure that academic staff conduct themselves appropriately in the performance of their duties and that they do not misuse their significant positions of power over students. I agree. Because of the nature of the relationship, it is essential that supervisors scrupulously maintain proper professional boundaries between themselves and their students at all times.

• [42] The AWB Policy applied to Dr Matthai at all times that are relevant for the purposes of this proceeding. I will not recite all of the provisions of the policy that were the subject of Allegation 1, but note simply that Dr Matthai was required by the policy to demonstrate professionalism in dealing with students, and to protect their interests; to accept the constraints and obligations inherent in relationships with students; and not to encourage relationships with students that did not accord with these constraints. Dr Matthai contended that these requirements of the policy were abstract and that the training he received on the policy was of a general nature. He said that the policy did not define the appropriate constraints that were said to be inherent in relationships with students. But the requirements of the policy are matters of common sense. Any reasonable person would understand that the relevant constraints preclude supervisors from having intimate personal relationships with students because it compromises objectivity and the requirement to protect the interests of the students; and that it is not permissible to communicate with students in terms of close personal intimacy of the kind set out in the particulars of Allegation 1, because it is unprofessional to do so.

Dr Matthai's reaction to AB's romantic interest in him

• [43] I accept Dr Matthai's evidence that when he realised that AB had romantic feelings for him, he attempted to manage her expectations. But he did so most ineptly. His message to AB of 9 May 2017 stated that he was barely coping following his breakup, and that he could not have any new relationship at the moment. The message should have conveyed categorically that there could be no such relationship at all, not just that he was not ready for one now. Further, although Dr Matthai told AB that he did not want to create any 'expectations', he did so in these terms: 'It is great to share my feelings with you, to cherish the beauty of life together and to feel our attraction where there has been a void in our lives, but I do not want to create any expectations apart from the great company we can give to each other'. To speak of attraction was completely inappropriate and apt to give AB the impression that perhaps Dr Matthai would be interested in a relationship with her in the future. Dr Matthai said in his evidence that attraction can simply mean that it is very nice to talk to someone, but that is not the understanding that AB was reasonably likely to have.

• [44] It was not enough for Dr Matthai to say to AB that he did not want a relationship. He also needed to make sure that he did not encourage AB's romantic interest in him. He should have ensured that all of his interactions with AB remained work-related, scrupulously avoiding any word or gesture that could have been suggestive of intimacy. Instead, he continued to communicate with AB in intimate and inappropriate terms. Only days later, Dr Matthai engaged in a discussion with AB about body types, and sent her a photograph of himself in his boxershorts, stating that this was to demonstrate that he was an ectomorph. In response to a message from AB asking, 'Can I love you German professor,' Dr Matthai replied, 'You do not need my permission, do you?' Dr Matthai's evidence was that he was being facetious, but the only acceptable response was to convey a clear negative. In reply to a message from AB stating that she would try to control her feelings, Dr Matthai stated, 'I like it when our souls touch. This is very special.' In a message to AB on 10 May 2017, Dr Matthai spoke about the 'pleasant feelings arising from what we share', and that their recent FaceTime was 'a moment of bliss'. AB had told Dr Matthai on 10 May 2017 that she would 'try to manage' her feelings, and that she would be near him 'only for forgetting her' (for him to forget his former partner), which she said was 'very bitter'. Clearly, AB she still had feelings for him. But still Dr Matthai engaged in very personal exchanges with her. As Ms Wise rightly said in her report, it was entirely inappropriate and unprofessional for Dr Matthai to continue to engage with AB in a manner that was personal, intimate and romantic. Ms Wise said that AB's messages to Dr Matthai contained alarm bells. They were veritable sirens that should have elicited a much clearer immediate response, followed by a strictly professional tone.

• [45] I accept Dr Matthai's evidence that he did not want a romantic relationship and that he did not want to hurt AB's feelings. I find however that Dr Matthai wanted his close relationship with AB to continue. He was going through a difficult period after the breakup with his partner. Not everyone is willing to listen to the sorrows of the broken-hearted. But AB was willing. I agree with the University that Dr Matthai derived comfort and affirmation from AB's attention. He candidly told Ms Wise that he had sent AB the photograph of himself in his boxershorts because he had been feeling 'unworthy and abandoned' and needed some 'positive feedback'. In late May 2017, he sent AB a message stating that he felt old and unattractive. Not content with the response that he was no doubt hoping for ('No, you are attractive'), he proceeded to ask: 'You think so? You think others do as well?' Dr Matthai put his own emotional needs before those of AB. And he continued to use mawkish, romantic language, and to discuss intimate topics. This was highly inappropriate.

• [46] I find that Dr Matthai was aware of the general standards that were expected of him by the University pursuant to the terms of the AWB Policy. During cross-examination, Dr Matthai said that even in the absence of training on the AWB behaviour policy, as a senior academic who held senior positions at the University, he understood that he needed to maintain appropriate professional boundaries between himself and students, and that this meant that he should not engage with students in an intimate manner. He acknowledged that it was his responsibility to monitor these boundaries and that if they became blurry, he needed to address this. Dr Matthai ought to have known how these standards translated into practice. The messages that were the subject of the particulars of allegations were inappropriate intimate communications that were contrary to the AWB Policy. Dr Matthai recognised that his conduct had corrupted his relationship with AB.

• [47] By sending AB the messages referred to in the substantiated particulars of the allegation, Dr Matthai failed to observe the requirements of the AWB Policy that are identified in the investigation report. This placed Dr Matthai in breach of his contract of employment, which required him to comply with policies of the University. The contract effectively placed the onus on him to be familiar with the content of these policies. But there is no dispute that Dr Matthai was in fact aware of them. And despite Dr Matthai's statements in cross-examination to the effect that the concepts in the policy were too general, I consider that he understood their import. As noted above, he acknowledged that he was required to maintain appropriate professional boundaries between himself and students, including not to engage with students in an intimate manner. His conduct fell well short of acceptable standards of behaviour.

• [48] Dr Matthai acknowledged to the University that he had wilfully contravened the AWB Policy. He did not say in what particular respect his conduct was wilful. But at least one aspect of wilfulness is clear. This was Dr Matthai's deliberate decision to take his discussions with AB off the University's email system and continue them on private channels. Dr Matthai told AB that this was 'more appropriate for the conversations we are having', so there would be 'nothing to be seen by UoM internet security people'. This reflected Dr Matthai's awareness that his correspondence with AB was wrong, as well as an effort to avoid detection. Particularly in this respect, the contraventions of the policy were serious. In my view the conduct was also wilful insofar as Dr Matthai derived an emotional benefit from the correspondence, and wanted it to continue.

• [49] Dr Matthai submitted that AB's complaint about him in 2024 was fundamentally that he had 'abused' or sexually harassed her, but that the University did not allege that this had occurred, and that her complaint was therefore unsubstantiated. But that is beside the point. The scope of legitimate concern for the University was not confined to the particular allegations made by AB. Her complaint had led to an investigation that had uncovered the exchange of messages from mid-2017, which the University rightly concluded had contravened the AWB Policy. It is also irrelevant that most of the messages from mid-2017 were only discovered by the University because Dr Matthai produced them. One would expect him to cooperate with the investigation. And clearly, Dr Matthai wanted to show the University that, contrary to what AB had suggested, it was she who had the romantic interest in him, not the other way around. This does not diminish the seriousness of the conduct. It was Dr Matthai's responsibility to set and maintain appropriate boundaries. Had he done so, he could have spared AB the embarrassment of making declarations of love for him. Instead, he sent her countless emotive and gushing messages, apparently in pursuit of an intimate platonic relationship that was satisfying his own psychological needs during a time of personal distress. He should have put the interests of AB first, including her interest in having a professional, fully functional and productive relationship with her PhD supervisor without emotional distraction, embarrassment, or anxiety.

• [50] The University contended that one dimension of the seriousness of Dr Matthai's conduct was the fact that AB was a vulnerable young student. Dr Matthai disputed that AB was vulnerable. In my opinion, AB was not a person of great vulnerability. But even if the University is right about this, it would not affect my overall view of this matter. All PhD students are vulnerable vis-à-vis their supervisors, and it will not always be apparent whether they have special vulnerabilities. This underscores the rationale for having a policy such as the AWB Policy, and its importance.

• [51] The University submitted that AB was clearly aggrieved by Dr Matthai's conduct, It would appear from the complaints that AB sent to the University in January 2024 that she is not in good mental health, and that she attributes some responsibility for this both to the University and Dr Matthai. However, I make no findings about these matters. AB did not give evidence and there is an insufficient basis to draw sound conclusions about the impact that Dr Matthai's conduct had on her.

• [52] A contravention of a university policy amounts to misconduct for the purposes of clause 1.39 of the 2024 Agreement. 'Serious misconduct' is defined in clause 1.39.2 of the 2024 Agreement to include 'wilful and deliberate behaviour which results in a serious contravention' of a policy. Clause 1.39.6 goes on to state that if the University determines that serious misconduct has occurred, it will assess the conduct and determine the appropriate remedy. Clause 1.39.7 sets out the actions that the University may take in respect of misconduct and serious misconduct. In the latter case, the University may terminate employment with or without notice. On one view, the bar that is set by the 2024 Agreement for serious misconduct is lower than the one that would apply under the general law. In any event, I find that Dr Matthai's conduct was wilful and deliberate, and that the contravention of policy was serious. I conclude therefore that the conduct amounted to serious misconduct for the purposes of the 2024 Agreement. This of course does not preclude a conclusion by the Commission in a proceeding under s 394 of the Act that a dismissal for such conduct was harsh, unjust or unreasonable and was therefore unfair.

Whether the valid reason remained valid after 7 years

• [53] When it occurred, Dr Matthai's conduct gave the University a valid reason to dismiss him within the meaning of s 387(a) of the Act. But did this remain a valid reason for dismissal 7 years later? In Chol v Vivesco Pty Ltd [2024] FWC 1220, I stated that a valid reason may lose its 'window of currency' if it is not acted upon in good time. In that case, the employer knew of the employee's misconduct but did not take disciplinary action for a number of weeks. I considered that it would be wrong to encourage hasty dismissals by adopting too narrow an approach to a valid reason's window of currency.

• [54] The University contended that it did not know about Dr Matthai's 2017 messages to AB until 2024, when it discovered them in connection with its investigation of AB's complaints in January 2024. It submitted that the primary focus of AB's concern in 2017 and 2018 was to change supervisor, that she was not forthcoming with any particularity of the nature of her concerns, and that such detail as she did provide focused on the differences between Dr Matthai and her in relation to the PhD. The University said that it did not have any substantial knowledge of the facts that constituted Dr Matthai's misconduct until 2024. It asked rhetorically what information it could possibly have put to Dr Matthai in 2017 as an allegation.

• [55] The University understates what it knew about the relationship between Dr Matthai and AB in 2017 and 2018. It was aware of numerous details of the allegations that AB had raised about the conduct of Dr Matthai. In 2017, AB had told Professor Western that Dr Matthai wanted her to be his girlfriend. Professor Western knew that AB was concerned about Dr Matthai's behaviour towards her, and in May 2018, he told human resources that AB had raised concerns with him. Ms Tara and Ms Richards then spoke with AB. Ms Richards' notes of the meeting record numerous details, including that AB alleged that Dr Matthai did not know appropriate boundaries; that this made her uncomfortable; that he spoke about sexual matters; and that he was bothering her. The University knew that AB was concerned about Dr Matthai's conduct. It would have had a reasonable basis to investigate AB's concerns. And had it done so, it could well have discovered Dr Matthai's inappropriate messages from 2017.

• [56] Nevertheless, it was understandable that the University give weight to the fact that AB did not want to make a formal complaint. While the University could have chosen to investigate Dr Matthai's conduct despite this, I consider that the approach that it took to the matter in 2018 was not unreasonable. When the messages were uncovered in 2024, the University was right to be concerned about them. This is not a case where the employer knew about the relevant misconduct and did nothing, only to revisit the matter at a later time and dismiss the employee for that conduct. In my view, the misconduct constituted by the inappropriate communications in 2017 was a valid reason for dismissal in 2024. I note that on one view, even though the messages were only discovered in 2024, the very fact that the misconduct occurred so long ago is a matter that affects the consideration of whether the reason for dismissal was a valid one. However in my opinion this more logically falls for consideration under s 387(h), which I address below.

• [57] As to the other matters that s 387 requires the Commission to take into account, it is clear that Dr Matthai was notified of the valid reason for dismissal and was given an opportunity to respond to it (ss 387(b) and (c)). He was not unreasonably refused a support person to assist at discussions relating to dismissal (s 387(d)). The dismissal did not relate to unsatisfactory performance, therefore it is not relevant to consider warnings about performance (s 387(e)). The University is a large and sophisticated organisation: the size of the enterprise did not impact on the procedures followed in effecting the dismissal (s 387(f)). There was nothing unfair about these procedures in any event. The University has dedicated human resources specialists, and therefore the consideration in s 387(g) is not relevant.

Section 387(h) - dismissal for historical conduct

• [58] Section 387(h) requires the Commission to take into account other matters that it considers relevant. A prominent feature of this case is the fact that the conduct for which Dr Matthai was dismissed had occurred over 7 years earlier. One feels instinctively that this was unfair. Generally, if a worker is to be dismissed for misconduct, this should happen in good time, not years after the event. But why should it be considered unfair to dismiss a worker for misconduct long after the event? One reason is that the worker continues to invest time and labour in the employer's enterprise, not knowing that he is on borrowed time. In Dr Matthai's case, he was deprived of the opportunity of seeking new employment at the age of 55, rather than at 62. The University might say that Dr Matthai should have known that he would be dismissed for his misconduct, should it be discovered, but I disagree. While the conduct was serious, and dismissal was a possible outcome, it was not a foregone conclusion that the University would proceed to terminate his employment for this behaviour.

• [59] Another significant matter is that, because Dr Matthai'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. In my view, a relevant and weighty consideration under s 387(h) is the fact that during the 7 years between Dr Matthai's misconduct and his dismissal, he maintained an unblemished record. The University submitted that it could not be concluded that Dr Matthai had not behaved inappropriately on other occasions simply because of the absence of other complaints, and the fact that it was not aware of other misconduct did not mean that none had occurred. I reject this submission. A worker is to be presumed innocent of misconduct until the employer proves otherwise. There is no evidence that Dr Matthai has committed any other misconduct. There is no evidence that anyone has expressed so much as a concern about his behaviour over the many years of service he rendered to the University following his misconduct in 2017. Nor did he have a record of any disciplinary offences prior to this time. In my opinion, the decision to dismiss Dr Matthai in such circumstances was harsh.

• [60] I am not the first member of the Commission to conclude that a significant gap between crime and punishment can manifest unfairness to a dismissed worker. In Owczarek v The University of Melbourne [2024] FWC 1368, Bell DP considered an unfair dismissal application from a professor who had been dismissed by the University for behaviour that had occurred nearly 3 years earlier. That case differed from the present matter in various respects, including because the Deputy President found that the University had dealt with the misconduct at the time by having the professor apologise to the complainant and directing him to stop contacting her; some years later a formal complaint was made and the professor was dismissed. In the course of concluding that the dismissal in that case was unfair, the Deputy President stated that he considered the professor's dismissal in December 2023 to be disproportionate to the misconduct which had occurred earlier, in circumstances where there was no evidence of similar conduct since early 2021. Cases of dismissal for misconduct that occurred long ago will turn on their own facts, but the passage of time, and an employee's record during that time, are matters that should be taken into account in considering whether the dismissal was unfair.

• [61] Another relevant consideration under s 387(h) is Dr Matthai's attitude to the AWB Policy and whether he has insight into his misconduct, and appreciates that his behaviour was inappropriate. As noted earlier, in his response to the University's allegations Dr Matthai fully accepted that he had contravened that AWB Policy, however before the Commission he argued, wrongly, that his conduct was in the private domain. It is relevant to consider whether this contention is indicative of a lack of insight into the misconduct. On one level, Dr Matthai's contention in the appeal reflects a forensic choice as to how best to prosecute his unfair dismissal claim. In my view it was a poor choice, not just because the argument was wrong, but because of its potential detriment to Dr Matthai's case in connection with the question of his insight. But a party is bound by the arguments of their representative and Dr Matthai did not seek to disavow them. Further, Dr Matthai's evidence in cross-examination was in line with his contention that the conduct was private and not subject to the AWB Policy. During his evidence, Dr Matthai stated that the policy did not apply to personal discussions with students; that its terms were vague; that what is appropriate depends on judgment and that 'appropriate' is not a useful term; and that while he still accepted that he breached the AWB Policy, how much of a breach there had been was debateable. Further, Dr Matthai remarked, in respect of his acknowledgment to the University that his conduct had been highly inappropriate, that 'if you have to bow, you bow low.' This arguably suggested that Dr Matthai does not acknowledge that his conduct was highly inappropriate and that he only told the University what he thought it wanted to hear. In his written submissions, Dr Matthai referred to his messages to AB as 'rather innocuous emails'. In cross-examination, he said that in France his conduct would have been viewed differently.

• [62] Dr Matthai did himself a disservice by saying these things. The appropriate response to the allegations was the one that he spontaneously gave to the University when the allegations were put to him: he accepted that he had contravened the policy and unreservedly apologised. My impression is that Dr Matthai may have assimilated the erroneous 'out of hours' argument advanced by his representative, and that this may have caused him to be indignant about his treatment by the University. Dr Matthai was apparently beguiled by another unmeritorious legal contention: in his evidence Dr Matthai said that he now understood (evidently, from his representative) that the University had breached his right to privacy by using his private messages to AB against him. It will not be necessary to address this specious argument, other than to record that it is erroneous for various reasons, one of which is that there was nothing remotely unlawful or arbitrary about the University's use of the messages, which Professor Matthai freely gave to the University during the investigation (see s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic)).

• [63] However, I proceed on the basis that the submissions of Dr Matthai's representative were made on instructions, and that Dr Matthai's statements in cross-examination about the application and effect of the policy reflect his own views. It is difficult to reconcile Dr Matthai's complete acceptance of his wrongdoing to the University prior to his dismissal with some of the contentions and statements referred to above. I have considered whether these contentions and statements are indicative of a lack of insight by Dr Matthai into his misconduct, and perhaps also of an absence of real remorse. I have concluded that this is not the case. I find that Dr Matthai accepts that what he did was wrong and is genuinely sorry for his misconduct in 2017. His letter to the University of 7 October 2024 was in my opinion sincere and insightful. And other aspects of Dr Matthai's evidence to the Commission made clear that he maintains his acceptance that his behaviour was wrong, including his acknowledgement that it was his responsibility to set and maintain proper boundaries, and that he breached the AWB Policy. I note that Dr Matthai also said that he believed that he had set proper boundaries, but I find that he was talking here about his efforts to divert AB's interest in a romantic relationship.

• [64] In any event however, I find that, to the extent that Dr Matthai advanced contentions and expressed opinions in evidence to the effect that his communications with AB were in the private domain, or questioned the extent to which he had contravened the AWB Policy, these were the views of a layperson about the interpretation of a document in the context of a legal question concerning his employer's right to regulate his conduct. They are simply wrong. But Dr Matthai is an intelligent person. He is amendable to instruction, and I have clearly explained the application and effect of the policy in this decision. It is entirely clear that a supervisor must not do or say anything that could encourage a student to pursue an intimate relationship, or to perceive that the supervisor wishes to have such a relationship with them. Supervisors must maintain professional, arms-length relationships at all times. There must be a conspicuous awareness of proper boundaries.

• [65] Even if Dr Matthai did lack insight into his misconduct, my decision in this matter has now enlightened him. I do not hold any concern that Dr Matthai will breach the AWB Policy again. He has seen and felt the consequences of such behaviour. I am fortified in my conclusion by the fact that for the 7 long years that followed his misconduct, Dr Matthai maintained an unblemished disciplinary record.

• [66] Dr Matthai's communications with AB in 2017 contravened the AWB Policy and constituted serious misconduct for the purposes of the 2024 Agreement. The University was right to be concerned about this. However, because the misconduct had occurred over 7 years earlier, and Dr Matthai had maintained an unblemished record over this time, I consider that the dismissal of Dr Matthai in December 2024 was harsh, and therefore unfair.

• [67] Section 390 of the Act provides that, if the Commission determines that a person was unfairly dismissed, it may order either reinstatement or compensation. Compensation can only be ordered if the Commission is satisfied that reinstatement is inappropriate (s 390(3)(a)). In this sense, reinstatement is the primary remedy.

• [68] The University submitted that reinstatement was inappropriate because Dr Matthai's conduct was serious and wilful, and that it was destructive of the trust and confidence necessary for the relationship between Dr Matthai and the University to continue. Professor Phillips said in her evidence that she considered the conduct to have been completely unacceptable and that it had compromised the University's ability to ensure that it was complying with its duty of care to students at all times. She also considered that Dr Matthai's references to the difficult personal circumstances that he was experiencing at the time of his misconduct were an effort by him to justify his behaviour, and reflected a lack of insight. Professor Phillips said that the University needed to be able to be completely confident in the conduct of its academic staff, particularly those supervising PhD students, and know that they will behave professionally at all times. She said that the University had lost trust in Dr Matthai's ability to behave appropriately and that the employment relationship was untenable.

• [69] In my opinion, the University's conclusion that it has lost trust and confidence in Dr Matthai is not soundly and rationally based (see Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [15]). It overlooks the fact that after the misconduct Dr Matthai rendered over 7 years of service without incident. I do not consider that Dr Matthai's explanation of his difficult personal circumstances in mid-2017 was an effort to justify his conduct. These were contextual matters that Dr Matthai raised not to excuse, but to explain his conduct. I found Dr Matthai's letter to the University of 7 October 2024 to be sincere and insightful into his own personal failings that had led to the misconduct. He recognised that he had been insensitive and had not thought about his conduct from AB's point of view. He said that he deeply regretted his actions and was terribly sorry that he had hurt her. He said that when one is absorbed by personal problems, one lacks the awareness that is a prerequisite for an effective professional relationship. He said that he was confident that he would remain a respectful and responsible member of their community. And in all the years that he continued to work for the University after his misconduct in mid-2017, there is no evidence of any concern having been raised about his conduct. I reject the University's contention that there is a real risk that Dr Matthai will engage in similar behaviour again. This is contrary to the fact of his unblemished record since 2017. I find that the employment relationship between Dr Matthai and the University was not irreparably damaged by his misconduct. The damage that was done has been made good by his 7 years of subsequent service.

• [70] The University contended that Dr Matthai does not accept that the University's behavioural expectations of him, as set out in the AWB Policy, apply to all of his dealings with students. But I have dealt with the question of insight above. While some of Dr Matthai's contentions and evidence were suggestive of a lack of insight, my conclusion is that he accepts that what he did was wrong and is genuinely sorry for his misconduct in 2017. And in any event, I have explained in this decision how the policy applies and hold no concern that Dr Matthai will fail to comply with it.

• [71] In all the circumstances, I consider that it is appropriate to make an order under s 391(1) of the Act that Dr Matthai be reinstated to the position that he held prior to his dismissal.

• [72] Section 391(3) of the Act states that if the Commission makes an order for reinstatement under s 391(1), and considers it appropriate to do so, it may also make any order that it considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, because of the dismissal. There is no right to an order for lost pay where a reinstatement order is issued, nor any presumption that one ought to be made unless this course is shown to be inappropriate. Section 391(3) is concerned with the 'appropriateness' of an order for lost pay at two levels. First, the Commission must consider whether it is appropriate to make any such order. If it is, the Commission may then make an order in the amount that it considers to be appropriate in the circumstances. The Commission must also consider the remuneration earned by the person since the dismissal, and the amount reasonably likely to be earned between the order for reinstatement and the actual reinstatement (see s 391(4)).

• [73] In Millington v Traders International Pty Ltd [2014] FWCFB 888, a Full Bench observed that the Commission and its predecessors have 'not infrequently' declined to make lost pay orders (at [73]). In Gurdil v The Star Pty Ltd [2013] FWC 6780, the Commission considered that declining to make an order for lost pay would serve to reinforce with the applicant that his conduct was inappropriate and must not happen again. However, each case will turn on its own facts. I do not consider it necessary to reinforce the point that the conduct must not happen again, particularly because there was no further misconduct over the 7 years of employment that followed what occurred in 2017.

• [74] In my view it is appropriate to make an order for lost pay under s 391(3). Dr Matthai's misconduct was serious. But he should not have been dismissed 7 years after the event given his unblemished record over that time. The question then is what order for lost pay should be made. Dr Matthai said, and I accept, that he has not earned money since his dismissal. It is appropriate then to take into account whether Dr Matthai made reasonable efforts to mitigate his loss. Dr Matthai said that after his dismissal, he was in touch with his contacts in Australia, but that he is now 62 years old and only 5 years from retirement, and that it is not easy to find another professorship. He said that there were not many academic positions in Australia, and therefore he had looked for positions abroad. He had applied for a post in Saudi Arabia but was unsuccessful, and for another in Norway, which remains under consideration. Dr Matthai is also a visiting professor at Shenyang University, but is not paid for his work, and instead receives food and lodging.

• [75] Based on the evidence that has been put before the Commission, I do not consider that Dr Matthai has made all reasonable efforts to mitigate his loss. He has made some efforts to do so and has applied for two academic positions. However, it is not known how widely Dr Matthai cast the net in seeking academic positions, or whether he extended his searches to other professional work that he might reasonably have been able to undertake. It appears that Dr Matthai has focused on available professorships, but it is not clear whether he has also sought other teaching roles, or other kinds of work for which he is qualified, including consultancies in the private sector. However, I consider it unlikely that, even with best endeavours, Dr Matthai would have found work immediately. He was summarily dismissed. There was no notice period during which he could have begun to look for work while still being paid. And he was dismissed shortly before Christmas. The holiday season is not a propitious time to apply for jobs. I consider that it is unlikely that, with all reasonable effort, Dr Matthai could have found alternative work within 6 weeks of his summary dismissal. But I do not consider that it is appropriate for a lost pay order to reflect the period beyond these 6 weeks.

• [76] I have considered whether to reduce the order for lost pay by an amount in respect of the misconduct that was the reason for the dismissal but have concluded that it is not appropriate to do in light of the passage of time and Dr Matthai's substantial further service to the University. Dr Matthai said, and the University did not dispute, that at the time of his dismissal he earned a gross annual salary of $226,517 with a 'loading' of $17,000. On a weekly basis, he was paid a total amount of $4683.02. Six weeks' pay at this rate quals $28,098.12, less applicable taxation.

• [77] I will also make orders under ss 391(2)(a) and (b) to maintain both the continuity of Dr Matthai's employment and the period of his continuous service. A separate order will be issued to give effect to this decision (PR788967).

S. Cheligoy of counsel for the University of Melbourne

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