Why Academics Accused of Sexual Harassment in Australian Universities Are Being Reinstated by the Fair Work Commission

Unveiling the Prevalence of Sexual Harassment in Australian Higher Education

Sexual harassment remains a persistent challenge within Australian universities, affecting students, staff, and the overall academic environment. According to the landmark Change the Course report by the Australian Human Rights Commission, one in five university students experienced sexual harassment since commencing their studies. More recent data from the 2021 National Student Safety Survey (NSSS) indicates that 16.1% of students had faced sexual harassment, with rates even higher among certain demographics like international students and those in postgraduate programs. These figures underscore a systemic issue that universities have been compelled to address through policy reforms and reporting mechanisms.

In the staff context, complaints against academics are rising, signaling greater willingness to report but also highlighting enforcement gaps. The University of Melbourne's 2024 Sexual Misconduct Annual Report documented 21 complaints against staff, a sharp increase from seven the previous year, with four substantiated leading to dismissals—though not without legal pushback. Nationally, surveys by the National Tertiary Education Union (NTEU) show personal experiences of sexual harassment among members climbing from 19% in 2018 to 29% in 2023. This backdrop of widespread incidents sets the stage for understanding why dismissals do not always stick, particularly when challenged at the Fair Work Commission (FWC).

The Fair Work Commission's Role in Unfair Dismissal Disputes

The Fair Work Commission, Australia's national workplace tribunal, adjudicates unfair dismissal claims under section 394 of the Fair Work Act 2009. Employees dismissed for alleged serious misconduct, including sexual harassment, can apply for remedies like reinstatement or compensation if the termination is deemed harsh, unjust, or unreasonable. The FWC applies a four-step test:

• Valid reason: Was there a substantiated basis for dismissal related to conduct or capacity?
• Notification: Was the employee informed of the reason?
• Opportunity to respond: Did they have a chance to address the allegations?
• Other considerations: Size of the business, absence of dedicated HR, and overall proportionality.

Sexual harassment qualifies as serious misconduct if unwelcome conduct of a sexual nature offends, humiliates, or intimidates, violating university codes and anti-discrimination laws like the Sex Discrimination Act 1984. However, even when misconduct is acknowledged, the FWC may rule dismissal unfair if procedural flaws exist or the penalty is disproportionate—especially for long-serving academics with clean prior records. Reinstatement restores the employee to their position, maintaining service continuity, which can be contentious in sensitive cases.

Case Study: Dr Aleksander Owczarek at the University of Melbourne

One prominent example is Dr Aleksander Owczarek, a mathematician dismissed by the University of Melbourne in December 2023 after 31 years of service. The allegations arose from a 2019 dinner with a female colleague where he clasped her hands, said "I love you," and sent a florid text the next day expressing happiness and gratitude. Despite her setting boundaries, he sent further unanswered messages over 18 months. The university's investigation deemed this sexual harassment and a breach of a safe working environment.

Deputy President Andrew Bell of the FWC confirmed the boundary-crossing and sexual harassment but found dismissal disproportionate. Key factors included no ongoing misconduct since 2021, the complaint's aim to block reappointment rather than seek termination, and Owczarek's lack of insight balanced against his service length. He was reinstated, with the university considering an appeal. This case illustrates how FWC weighs severity against context.

Case Study: Professor Stephan Matthai's Historic Misconduct Challenge

Professor Stephan Matthai, also from the University of Melbourne, faced dismissal in 2024 over intimate emails and texts exchanged with a PhD student in 2017—seven years prior. An external probe cleared him of sexual harassment, finding no coercion, but the university proceeded citing serious misconduct and reputational risk after the student's 2024 complaint post-PhD completion.

The FWC ruled the dismissal unfair, ordering reinstatement and $28,000 compensation. Commissioner reasons centered on the antiquity of the conduct, absence of harassment substantiation, and procedural inadequacies like delayed action. The decision emphasized that historic private messages, without proven power imbalance exploitation, do not automatically justify summary dismissal, sparking debate on time limits for complaints.

Patterns in Reinstatements: Procedural and Proportionality Issues

A review of FWC decisions reveals patterns explaining reinstatements. Universities often face scrutiny for:

• Delayed investigations: Acting years later undermines urgency.
• Overreliance on internal findings: Ignoring external clearances, as in Matthai.
• Disproportionate sanctions: Dismissing for isolated incidents without patterns.
• Long service protection: Tenured academics benefit from tenure-like stability.

While not every case results in reinstatement—the University of Tasmania lecturer suggesting OnlyFans was upheld—the FWC's 2025-2026 trend shows Melbourne cases clustering, possibly due to rigorous reporting post-NSSS. Critics argue this erodes trust, but legally, FWC prioritizes industrial fairness over moral outrage.

Perspectives from Victims and Stakeholders

Victims' advocates, including End Rape on Campus Australia, decry reinstatements as revictimizing, forcing proximity in shared spaces. The complainant in Owczarek no longer works there, but fears linger. NTEU calls for better support, while Universities Australia stresses improved training—97% of Melbourne students completed respect modules in 2024, boosting reporting confidence.

Academics defend due process, noting false claims risks. Experts like those from the Australian Human Rights Commission urge dual tracks: FWC for employment, AHRC for discrimination remedies.

University Policies and National Reforms

Australian universities have bolstered responses post-2017 AHRC recommendations. Mandatory reporting portals like Melbourne's Speak Safely saw 15 disclosures in 2024. The 2021 NSSS drove Respect and Equality Plans, focusing prevention via bystander training and men's engagement.

Yet gaps persist: low substantiation rates (e.g., Melbourne's 7/20 student cases) and FWC losses highlight needs for robust evidence collection. Proposed reforms include positive duties under the Anti-Discrimination Act to proactively prevent harassment, with penalties for failures.

Broader Impacts on Higher Education Culture

These cases ripple through campuses, deterring reporting if outcomes seem lenient. Statistics show 1 in 12 students sexually assaulted since enrollment, demanding cultural shifts. Solutions include:

• Transparent investigations with external oversight.
• Alternative remedies like transfer or mediation.
• Enhanced support for complainants, including counseling and no-contact orders.
• Policy alignment with FWC criteria for defensible dismissals.

Stakeholders advocate hybrid approaches balancing natural justice and safety.

Photo by Eriksson Luo on Unsplash

Future Outlook: Toward Safer Campuses

With 2025-2026 seeing heightened scrutiny—Melbourne appealing losses and national surveys pending—expect tighter protocols. The FWC's recent Paladino ruling (misconduct, not sexual) reinforces evidentiary burdens. Positive trends: rising reports indicate trust-building, and collaborations like Group of Eight initiatives promise standardized responses.

For academics and students, prioritizing boundaries and reporting empowers change. Australian higher education stands at a crossroads, poised to transform through evidence-based reforms ensuring accountability without compromising fairness.