Power Games at the University of Melbourne

UPDATE (06/09/26)

The University of Melbourne appealed the FWC decision. The appeal decision was handed down on 04/09/26: the UoM lost their appeal and have been ordered to reinstate Owczarek. There are things to say about this decision but I won’t unless and until it seems appropriate to do so.

UPDATE (08/09/26)

The Australian has a vicious and voyeuristic report on the FWC decision.

**************************************

Last month, just as Christmas was crashing in, Professor Moira O’Bryan, the Dean of Science at the University of Melbourne, found it “necessary” to email all staff at the School of Mathematics and Statistics. Why? Well, it all began a year ago. Or, four years ago, depending upon how you count. But let’s begin a year ago.

 

THE DISMISSAL AND THE APPEAL

Aleks Owczarek was, and maybe is, a professor of mathematics at the University of Melbourne. On December 14 2023, Owczarek was dismissed by the University for “serious misconduct”. The next day, O’Bryan wrote to the Mathematics and Statistics staff:

Dear Colleagues

I write to advise you that Professor Aleks Owczarek has been dismissed from the University with immediate effect due to serious misconduct arising from findings of serious contravention of University policy determined by an independent external investigation.

It is distinctly odd for a Dean to write to a School in that manner, a message more properly delivered by either the Head of School or by a Vice Chancellor type. Whatever the reason, the Dean, or whoever was ultimately responsible for the email, had a broader purpose:

While I appreciate this is difficult news to hear, the University takes seriously its support for victims of misconduct and its expectations of all staff members regarding standards of behaviour and adherence to University policy.

Fine, if a little melodramatic. Whether, however, the University was taking equally seriously the concerns that some staff members had for losing a friend and colleague, or concerns they might have had that Owczarek may have been screwed over, O’Bryan never said. But the Dean continued:

I understand that this is a sensitive issue and can be upsetting for those that might have experienced trauma. I remind you the University’s Employee Assistance Program is available, along with Counselling and Psychological Services and other support services that can be found on the Safer Community Program website.

If you have any further questions or receive external queries about this matter, please contact me directly.

Regards Moira

“Trauma”. Owczarek must have been one hell of a monster.

Owczarek evidently didn’t consider himself a monster, since he promptly appealed the University’s dismissal of him to the Fair Work Commission. Which brings us back to last month, when the decision of Deputy President Bell of the FWC was published. Once again, and again oddly, O’Bryan was on hand to deliver the news to the Mathematics and Statistics staff:

Dear colleagues,

I apologise for sending an email so close to the 2024 shutdown. Events, and associated concern from staff, mean that this is necessary.

We’ve reached the “necessary”.

You may have seen or heard about a recent Fair Work Commission decision in a matter brought against the University by Professor Owczarek, whose employment was terminated last year following serious misconduct.

We are pleased that the Fair Work Commission confirmed the view of the University that Dr Owczarek engaged in serious misconduct in the form of sexual harassment and that he failed to provide a respectful, safe, rewarding and environmentally sustainable learning and working environment.

That is, DP Bell agreed that Owcarek engaged in serious misconduct. Why then the “sorry to disturb you” announcement two days before Christmas? What was so “necessary” about it? O’Bryan explains, sort of:

Within that context the University is concerned that the Fair Work Commission has ordered Dr Owczarek to be reinstated to his employment.

Oh.

So, in the third paragraph, and after announcing how “pleased” the University is with other aspects of DP Bell’s judgment, O’Bryan finally gets around to telling us, in the smallest possible manner, that Owczarek won. That is, DP Bell found that Owczarek was unfairly dismissed by the University of Melbourne, although O’Bryan can’t get herself to write the words.

O’Bryan has other words, that “the University” is “concerned” that Bell ordered that Owczarek be reinstated:

We are currently reviewing the decision and considering all of our legal options, including an appeal.

“We”.

Whether “the University” was equally concerned that, as DP Bell’s decision implies, the University got it badly wrong, O’Bryan never says. But of course, O’Bryan is always thinking of her troops, of the “associated concern from staff”:

Please remember, if you witness or have experienced sexual misconduct, or any other form of serious misconduct, I urge you to seek support through the Safer Community Program and/or make a report, anonymously if you wish, using the Speak Safely portal. Equally, your Head of School, Howard Bondell, your HR business partners … and I are always available.

Regards Moira

Yes, who knows when a monster like Owczarek may strike again, and so it’s reassuring that O’Bryan is always available for staff who feel threatened by serious misconduct. O’Bryan does not say if she is at all available for staff who may feel threatened by the University’s conduct.

A month later, and the University has not stated whether they have sought leave to appeal DP Bell’s decision to the full bench of the FWC: they had until January 10 to do so. Readers can read DP Bell’s decision, or my summary below, or the (very bad) Age article on the case, and then consider the wisdom and the morality of any such decision.¹

 

1. When a media organisation gets onto a story it is always worth pondering how they got onto it and whose interests the story serves. DP Bell’s judgment was delivered on Friday, 20 December , and was immediately made public; the University then had until Friday, 10 January to seek leave to appeal. The Age‘s story only appeared yesterday, on 12 January, so why now? If someone fed The Age the story, then who, and why? However the Age story came about, it needn’t have been so titillating and slanted. As one example, the headline reads, University of Melbourne ordered to reinstate academic sacked for sexual harassment. This is true, but a less suggestive and more to the point headline would have been, University of Melbourne ordered to reinstate academic whom they unfairly dismissed. The article then indulges in the details of Owkzarek’s conduct while offering almost nothing on the reasons by which DP Bell determined that Owczarek was unfairly dismissed.

***************************************************************************

DEAN O’BRYAN

At this point, the reader is likely confused, and below I will try give the background and some explanation for DP Bell’s judgment. But let’s first deal will O’Bryan’s email.

Rather than O’Bryan’s email being “necessary”, it seems to me that it was gratuitous, presumptuous, manipulative, inflammatory, grossly misrepresentative of DP Bell’s judgment, undermining of DP Bell’s order that Owczarek be reinstated to the School and contemptuous of the rule of law. I do not know whether any staff from UoM Maths-Stats have been sufficiently brave and/or foolish to object formally to O’Bryan’s email, since they will have known too well that O’Bryan has the weight of the University behind her, but I have little doubt that plenty of them will be pissed off and will believe that O’Bryan has way, way, way overstepped the mark. They know Owczarek, and whatever the muddiness of the dispute, and it is muddy, they know he is no monster.² DP Bell has judged that he is no monster.

One has to be careful here, and I will avoid getting into legal technicalities, and I will avoid indulging in my own concerns with the FWC judgment. But a month ago we were where we were. As it stood, Owczarek was judged to have been unfairly dismissed and he was to return to the University. Yes, the University was considering an appeal, to which they had every legal right, if much less clearly a moral right. But one would think that at that time a generally wise course of action would have been to shut the hell up and let the lawyers do the talking.

Why did O’Bryan butt in? It is a safe bet that it wasn’t her idea, at least not alone, and that some upper echelon powers were involved.³ An obvious candidate is the Provost, Nicola Phillips, who made the final decision to dismiss Owczarek. Still, even given O’Bryan was going to butt in, why do so in the manner of a bull in a china shop? It’d be a good question for someone to put to O’Bryan and Phillips, and to the incoming Vice Chancellor.

 

2. As a disclaimer, I’ve known Aleks for thirty years, although we were never close and the last contact was ten years ago. In what I saw of Aleks over many years, he was never less than principled. I have not talked to or contacted Aleks about his dispute with the University.

3. The Age article quotes “the university”. The quote is a verbatim repeat of two paragraphs of O’Bryan’s second email to School staff, beginning with “We are pleased …”. 

***************************************************************************

THE CONDUCT

I’ll now provide some explanation of the dispute: the conduct at issue, DP Bell’s judgment on this conduct and the nature of the complaints (plural) against Owczarek. As part of this I’ll also offer a couple brief and tentative thoughts of my own.

In outline, here is what happened (the numbers in parentheses refer to the paragraphs in DP Bell’s judgment):

• In 2019, Owczarek was appointed Acting Dean of Science, with the Complainant the Acting Executive Director: in effect, the Complainant was Owczarek’s second in command. They initially had a good working relationship, which extended into friendship (34-41). From around March 2019, however, the Complainant was developing “an increasing sense of disquiet about her perceptions of Dr Owczarek’s behaviour toward her” (42).

• The critical event was a dinner on 26 September 2019, to celebrate the Complainant being appointed to Faculty Executive Director (53-54). The Complainant was nervous enough about this dinner to contact Julia Hampshire, the Faculty of Science’s HR Director. They concocted a plan for Hampshire to call the Complainant during the dinner and thus to derail the evening. Hampshire called as planned but the Complainant declined the opportunity for derailment, and the evening continued; later, the Complainant sent Hampshire a “We’re behaving ourselves” text along with a photo of happy drinking (56-60). Later in the evening, Owczarek held the Complainant’s hand and made some expression of “love” (63). The mutuality of the hand-holding and the meaning of the expression of “love” were both contested during the hearing (65-81). The following day, Owczarek sent the Complainant an emotional (but not sexual or overtly romantic) text.

• In the week that followed, the Complainant took sick leave, discussed the matter with Hampshire and responded perfunctorily to (seemingly clueless) texts from Owczarek (82-87). On October 2, the Complainant texted Owczarek, indicated that what he had said at dinner had made her “very uncomfortable”: “We are friends but no more than that”. Owczarek replied the same day, indicating that he was “sorry to have made you feel at all uncomfortable” and that he “will work with you to make sure you feel right” (89-90). Owczarek also requested to meet with Hampshire to discuss the matter. Hampshire said something to the effect “that Dr Owczarek needed to stop this, at which Dr Owczarek responded that he did not understand”; Hampshire responded to the effect, “but you do” (100-101). On October 7, Owczarek and the Complainant met to discuss the matter, although the understanding reached was subsequently disputed (103-110).

• From October 2019 until December 2020, Owczarek and the Complainant continued in their roles. Owczarek made a number of friendlike overtures, which the Complainant downplayed or ducked or declined (120-145).

• In December 2020, the University selected Moira O’Bryan as the new Dean: Owczarek was an unsuccessful applicant. Owczarek returned to his substantive position in the School of Mathematics and Statistics, and ceased to have direct professional contact with the Complainant. Up to March 2021, Owczarek made a few more friendlike overtures via text and email, with the Complainant not replying or replying perfunctorily (146-171).

• On March 10 2021, the complainant texted Owczarek, requesting that he not contact her. Owczarek replied immediately: “I will comply with your request”. To this day, with the one exception directed by Hampshire (below), it would appear that Owczarek has scrupulously done so (175-177).

***************************************************************************

THE JUDGMENT

That is it. That is the conduct for which the University dismissed Owczarek. We’ll get to the complaints (plural) shortly, but first what to make of the conduct?

DP Bell had to make something of it, and he began with a general warning on the difficulty of the task (43-44):

I pause at this junction to make some observations about aspects of the evidence from this period of time and the challenges of dealing with matters of nuance that occurred nearly half a decade prior to the time of the hearing. A number of matters concern relatively fleeting interactions in conversations between ostensibly good work colleagues. Friendships at work are not new. The degree of friendships is extremely varied. Part and parcel with friendships are that people will share information with each other, not necessarily equally, that would not be shared with someone who was not a friend. So much is well-known as ordinary human experience. [emphasis added]

However, when the task falls to assess the character of some of these interactions, the starting point will necessarily include words spoken (for interactions involving a conversation) or websites viewed (another example in this matter) or photographs shown (a further example). But in making these assessments as to the overall character of an event, context and nuance might count significantly. 

It seems to me that DP Bell worked hard and well at this. In places, I have a very different sense of the “context and nuance”, but DP Bell’s judgment seems generally sensible and human.

DP Bell is strong and clear on certain aspects of what Owczarek did and did not intend by his actions (3, 116):

The University then relies on a series of communications or unwelcome attempts at contact over the course of the following 15 months to January 2021. Many of those communications, being text messages or emails, were not in dispute and none of them were in any way sexual.

I conclude that Dr Owczarek had a romanticised world view of his friendship with the Complainant (and quite likely others) but I do not feel an actual sense of persuasion that he was pursuing or was motivated to pursue any romantic or non-platonic relationship with her. [emphasis in the original]

And, from the University’s summary of its internal investigation (22):

“There are no allegations of inappropriate touching, no suggestive comments or jokes, no sexually explicit texts or emails and no requests for sex.”

Nonetheless, DP Bell agreed that, even if unintended, Owczarek engaged in “serious misconduct”, a combination of “sexual harassment” and “inappropriate workplace behaviour” (299):

I agree with the University that Dr Owczarek had engaged in instances of misconduct, although my findings are much more limited in scope than the University found. [emphasis added]

Of the critical dinner, DP Bell concluded (271),

To adapt the language of Katzmann J [in Taylor v August and Pemberton], the objective picture is that Dr Owczarek was attempting to “woo” the Complainant, although I accept that, subjectively, Dr Owczarek was not in fact in love with the Complainant and nor was he in fact motivated in the pursuit of any romantic or non-platonic purpose. However, the objective position is too difficult to ignore.

This was sufficient for DP Bell to conclude that Owczarek’s conduct at the dinner, and the text sent the following day, constituted sexual harassment (270, 272).

Of Owczarek’s subsequent conduct, DP Bell noted that Owczarek simply failed to get the message of the Complainant’s text of 2 October (275):

Unfortunately, Dr Owczarek failed to perceive the changed nature of their relationship. On 2 October 2019, the Complainant’s text message was a very clear message that boundaries needed resetting. … Suffice to say, Dr Owczarek did not understand the clear implications of the message and what was told to him on 7 October 2019. Dr Owczarek appeared to hear only what he wanted to hear.

As such, DP Bell found that some of Owczarek’s subsequent conduct, although significantly less than alleged by the University, constituted inappropriate workplace behaviour. DP Bell did not find that any of this subsequent conduct constituted sexual harassment, as was alleged by the University in a number of instances (276-282).

***************************************************************************

THE COMPLAINTS

There were two complaints sufficiently formal for the purposes of DP Bell’s analysis and judgment. The first complaint came on the back of the Complainant’s text of March 10 2020, requesting no further contact from Owczarek. Not content with Owczarek’s immediate and unembellished promise to comply, the Complainant texted Hampshire the following day. (DP Bell infers that Hampshire and the Complainant were “frequently” in contact around that time.) The Complainant’s text noted “that Dr Owczarek had taken a particular female staff member out to lunch, a matter of evident concern to the Complainant” (178). Noting this text, Hampshire indicates that “by this stage she was ‘fed up’ with her perception of Dr Owczarek’s ‘behaviour’ and she ‘wanted to inform him directly about appropriate boundaries and at the same time convey [the Complainant’s] request that he stop contacting her'” (180).

DP Bell notes all this without comment. I think that is too easy. I think there is plenty of context and nuance here that one might reasonably contemplate.

In any case, Hampshire arranged for a colleague and her to ambush Owczarek with her concerns, which was done on March 18 (186). At that meeting, Owczarek was “directed” to write an apology to the Complainant. There was dispute in the hearing over whether Owczarek was “directed” in a formal sense, or merely in a strong-arm sense, but it didn’t much matter. DP Bell judged that Owczarek regarded it as an offer he couldn’t sensibly or safely refuse (194-195). Owczarek wrote the apology letter and emailed it to the Complainant the same day.

There it rested (by and large) until February 2023, at which time Owczarek applied to be the Director of the Bachelor of Science. That position would presumably have required him to have regular contact with the Complainant. The Complainant was concerned about this and complained to Dean O’Bryan. The Complainant did so to “stop him getting the role” and thereby to “stop him working with me and a team of other young female professional staff” (223-225).

In early March, the University launched an independent investigation, which was completed late in 2023 (227). On 11 August, Owczarek was sent a summary of the investigation report, which concluded that Owczarek’s conduct constituted sexual harassment. Owczarek was initially given a week to respond (248).

Owczarek provided a written response on 1 September. He denied having engaged in misconduct, but expressed remorse (249):

Dr Owczarek also expressed remorse if he had hurt anyone and committed to “making all necessary adjustments to my Behaviour” and promised “to ensure that my behaviour in the future not only is but is clearly seen to be above reproach.” He stated he was “humbly contrite and ready to take all appropriate actions moving forward.”

Owczarek was dismissed on 14 December. Explaining her decision that the University should dismiss Owczarek, Provost Phillips gave evidence at the hearing on Owczarek’s lack of “understanding” (253):

Professor Phillips also concluded that there was “no indication that Dr Owczarek understood the seriousness of the matter, or that he accepted that any of his behaviour was questionable or could constitute misconduct. Dr Owczarek’s showed very little understanding of the issues at play in the behaviour that was documented, and the impact that his behaviour had on [the Complainant].”

***************************************************************************

THE DECISION

DP Bell had to determine by law whether Owczarek had been fairly dismissed, the “law” in this case being the combination of the University of Melbourne’s Appropriate Workplace Behaviour Policy and the Federal Fair Work Act (2009). In applying the law, DP Bell determined that Owczarek’s conduct had constituted sexual harassment and inappropriate workplace behaviour, and he concluded (321),

The University has established misconduct on Dr Owczarek’s behalf, albeit not to the extent that he was dismissed for. They are matters that would ordinarily weigh in favour of upholding the dismissal.

We shall get to why Owczarek’s case is not “ordinary”, but I think it is worth pausing a moment. DP Bell’s “ordinarily” is difficult to interpret, and the law is the law. It seems to me, however, that if the law would “ordinarily” permit conduct such as Owczarek’s to be grounds for dismissal then the law is incredibly nasty and is deserving of proper scrutiny.

It seems unarguable that Owczarek overstepped boundaries, and that he was remarkably and continually clueless for an extended period of time. But Owczarek was never aggressive, never sought to cause any discomfort and was remorseful when he did. Owczarek never sought a romantic or sexual relationship. If Owczarek was officially in a position of “power” he did not seek to wield that power. If and when Owczarek’s attention and gentle invitations were unwelcome, Owczarek was entirely unaware that they would be. For all this, DP Bell suggests that Owczarek’s conduct would “ordinarily” be grounds for dismissal. Proper management, no doubt. But dismissal? I find the suggestion incredible, and chilling.

DP Bell ruled, however, that Owczarek’s case was not ordinary, that Owczarek had been unfairly dismissed. Why? DP Bell explains (255, 319):

The determination of whether Dr Owczarek was unfairly dismissed falls to the question of whether his dismissal was harsh [or] unjust or unreasonable.

I am satisfied that the dismissal of Dr Owczarek was harsh [and] unjust and unreasonable in all of the circumstances. [emphases added]

In brief this was because: when Owczarek was confronted with his behaviour he expressed genuine remorse and did what he was told thereafter; and, the University’s dismissal was way too long after the conduct and Owczarek’s written apology. As DP Bell explains (305-306, 322),

However, for the purposes of assessing whether a reason is a valid reason for dismissal, I do not consider it sound or defensible for an employer to allow a significant period of time to pass – in this case two years at the lower end and nearly three and a half years for the core allegation – where the employer is on notice about, and to a significant extent has dealt with, fundamental aspects of the conduct. Put simply, an employer should not sit on a serious allegation to be possibly acted upon “formally” at some indeterminate point later on following further reflection or receipt of a formal complaint. Such delay is not sound, because it can cause real difficulties in getting to the bottom of the allegations in question. That delay creates unfairness to the employee accused of misconduct but also to other employees who might be asked to remember subtle, but very important, details involving nuance from months or years earlier.

Such delay is not defensible because the University had undertaken or been involved in steps for the informal resolution of the matter. The University had taken steps by its Human Resources staff to warn Dr Owczarek about his conduct and obtained the procurement of an apology for the Complainant. The University’s actions were taken with the sanction of the Complainant, who wanted the conduct to “stop”. While there are differences about what type of conduct was to be stopped, the evidence before me all points one way that all relevant conduct stopped. It took longer than it ought to have for Dr Owczarek to get the message in relation to the Complainant, but he did finally get the message.

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

Owczarek may have been clueless but he wished no one harm, and whatever harm he caused can hardly be considered at the more serious end. Subsequently, Owczarek immediately complied with all requests to avoid causing any further harm. DP Bell recognised all this. The University of Melbourne did not recognise all this and seemingly still does not.

***************************************************************************

POWER

It is difficult to talk about sexual harassment without also talking about “power”, and even when it is possible those in a position to lecture others will seldom permit it. DP Bell notes Provost Phillips’ evidence (254):

Finally, and I consider it important to note, that this case was not simply about an allegation of sexual harassment (although that allegation was significant) but that the University placed considerable importance on the management of its “power imbalance” concerns and unacceptable conduct where such imbalances exist. Professor Phillips states that the third issue of concern to her was:

“The existence of a significant power imbalance. Dr Owczarek was the Acting Dean when much of the conduct occurred, and therefore in a position of considerable power in relation to all employees in the Faculty. He was also one of the most senior leaders in the University, and therefore in a position of significant trust. As [the Complainant’s] direct supervisor, Dr Owczarek had considerable influence over key parts of [the Complainant’s] employment, including her appointment to the role, her remuneration and performance ratings. I considered that his position of power in this respect had been abused. …”

Perhaps Provost Phillips, and Dean O’Bryan, would like to think a little more carefully about power imbalances. They might consider the University employing its massive power to wallop Owczarek, a power that DP Bell found was employed in a harsh AND unjust AND unreasonable manner. They might consider the “power imbalance” of the University using its might if it sought leave to appeal DP Bell’s decision.

Was there anything in Owczarek’s behaviour that even remotely amounted to an abuse of power? Phillips claims so but I can find nothing in DP Bell’s judgment to support this and I simply cannot see it. Phillips and O’Bryan and the University, however, is another matter. It seems to me that they have used their significant power very much in an abusive manner. In particular, and to return to the beginning of this post, the effect of Dean O’Bryan’s emails to the staff of the School of Mathematics and Statistics, including Owczarek’s close friends and close colleagues, was to wield her power in a manner that, very predictably, would cow and would silence. Again, DP Bell ruled that the University’s decision was harsh AND unjust AND unreasonable and, a month ago and now, that is where the law stands. I cannot see any sense in which Dean O’Bryan’s latest email was remotely respectful of or considerate to either her “colleagues” or to DP Bell.

Perhaps if O’Bryan and Phillips had considered the wielding of their power with some genuine humility, as, ironically, did Owczarek, then O’Bryan and Phillips might have been a little more circumspect and a little less sanctimonious.

 

NOTE (14/01/25)

Commenters, please note that this is a post about a legal matter, and you should be very careful with your comments. Also, although I have done my best to convey the facts and the process and the decisions as clearly and as fairly as possible, I am not a lawyer and I have tried to summarise a lot of material. If you want to comment on specifics of the law or the University’s decision or DP Bell’s decision, then you should at least read carefully what I wrote, and preferably DP Bell’s judgment.

I am obviously very critical of Owczarek’s dismissal, but, as I tried to make clear, I see this as a matter of fairness et al, not as concerning a lack of due process.