Sexual Harassment Proven. Employee Reinstated. What Went Wrong?
The University of Melbourne v Dr Aleksander Owczarek [2026] FWCFB 230
A recent Full Bench decision of the Fair Work Commission offers an important lesson for employers managing historical complaints of workplace misconduct. In The University of Melbourne v Dr Aleksander Owczarek [2026] FWCFB 230, the Commission confirmed that serious misconduct can remain a valid reason for dismissal even where an employer delays taking formal action. However, that delay may still render a dismissal unfair and justify reinstatement.
What happened?
The University of Melbourne summarily dismissed a tenured professor in December 2023 after an investigation found he had sexually harassed a senior female employee who reported directly to him while he was Acting Dean. The conduct occurred between 2019 and 2021 and included unwelcome declarations of affection, physical contact, and ongoing conduct that the Commission found amounted to sexual harassment and inappropriate workplace behaviour.
At first instance, Deputy President Bell found that the professor had engaged in serious misconduct. Nevertheless, the dismissal was held to be harsh, unjust and unreasonable, and the professor was reinstated with continuity of service, although no compensation for lost pay was awarded.
The University appealed the decision.
The Full Bench decision
The Full Bench agreed that the Deputy President had fallen into error by treating the University's delay in acting on the misconduct as relevant to whether there was a "valid reason" for dismissal. The Commission confirmed that proven sexual harassment and serious misconduct can constitute a valid reason for dismissal regardless of how much time has passed since the relevant conduct occurred.
However, the Full Bench held that the error did not affect the ultimate outcome. The lengthy delay, coupled with the fact that the matter had previously been addressed through an informal intervention process, remained highly relevant to the broader assessment of whether the dismissal was harsh, unjust or unreasonable. As a result, the Full Bench dismissed the University's appeal and allowed the reinstatement order to stand.
Why this matters for employers
This decision highlights several key risks for employers:
Serious misconduct does not "expire" simply because it is historic. A delay in taking disciplinary action will not necessarily deprive an employer of a valid reason for dismissal.
Delay can still undermine a dismissal. If an employer is aware of misconduct but allows the employee to continue working for an extended period before acting, that delay may weigh heavily in an unfair dismissal application.
Earlier management responses matter. Where conduct has previously been addressed through counselling, intervention, apology, or other informal processes, later attempts to revisit the same conduct as grounds for dismissal may attract scrutiny.
Sexual harassment findings remain serious. Importantly, the reinstatement outcome was not an endorsement of the employee's conduct. The Commission maintained findings of sexual harassment and serious misconduct while still concluding that dismissal was unfair in the particular circumstances.
Employer takeaway
The decision serves as a reminder that employers should act promptly when concerns about serious misconduct arise. Delays in investigating or responding to known conduct may significantly weaken the defensibility of a subsequent dismissal, even where the underlying allegations are ultimately substantiated. Employers should ensure complaints are addressed consistently, documented appropriately, and resolved through clearly defined disciplinary processes.
Connect with Elevate to explore Respect@Work training, Positive Duty support, or custom workplace culture solutions tailored for Australian organisations.
