Was it actually sexual harassment?

One Minute Summary

Mr Haslam, a lecturer, was terminated for touching the hair of a female student and then tucking it behind her ear, as well as touching her on the leg while stating ‘she looked cute’.
The Commission found the first allegation was not sexual in nature and the second allegation was not substantiated.
Mr Haslam was found not to have breached the Sex Discrimination Act but had breached the employer’s professional standards policy. The employer therefore had a valid reason to terminate.
However, the dismissal was considered harsh due to the impact on Mr Haslam and his family and because there were irregularities with a number of editions of the independent report. The first edition of the report had recommended a warning while the final edition recommended termination.
Mr Haslam was reinstated but suffered a financial penalty by not being paid for part of the time between termination and reinstatement.

Mr Nigel Haslam was employed by SAE Institute as Associate Lecturer at their Byron Bay campus from 2019 until 27 August 2025 when he was terminated for sexual harassment. He was recently reinstated by the Fair Work Commission when his dismissal was found to be harsh, unjust and unreasonable.

Let’s examine the background in more detail to establish the facts of the matter and how the impact of a termination on the applicant may affect the outcome in unfair dismissal proceedings.

The allegations against Mr Haslam included that:

On 24 June 2025 he inappropriately touched Student A’s hair by reaching out and tucking her fringe behind her ear without her consent; and
On an unknown date earlier in 2025 Mr Haslam told Student A, “you look cute”, while reaching down to touch the stockings above her knee and commenting that he liked the pattern on her stockings.

During the investigation that followed Mr Haslam admitted that he touched Student A’s hair but denied he had tucked it behind her ear. They had been sitting opposite each other and talking about a design project on her ipad which was between them. Mr Haslam stated he inadvertently used his index finger to push a lock of hair out of the way as they talked about the project as it interrupted their eye-to-eye contact. The only discussion that took place was about the project. There was no one else in the classroom as two students had failed to attend. Student A did not respond and remained for the full duration of the class engaging in discussion about her project.

The Deputy President observed that ‘his conduct in touching Student A’s hair was not pre-planned or pre-meditated; it as a one-off act, without much thought, taken in response to a lock of Student A’s hair hanging down in front of her eye’.

In acknowledging that Mr Haslam evidence ‘was detailed, consistent, and demonstrated contrition’ and ‘accepted that what he did…was wrong, unnecessary familiar’ the Deputy President accepted Mr Haslam’s position that he did not tuck Student A’s lock of hair behind her ear.

However, the Deputy President also stated ‘I do not consider that a reasonable bystander would consider Mr Haslam’s conduct in moving a lock of hair from in front of Student A’s eye to be of a sexual nature. It follows that Mr Haslam’s conduct does not meet the definition of sexual harassment in the Sex Discrimination Act 1984 or SAE Policies.’

The Deputy President was satisfied that Mr Haslam had breached his obligations under the Staff-Student Relationships Policy to ensure all interactions must be ‘professional and appropriate’. ‘I am satisfied that Mr Haslam’s conduct …. was unreasonable and unwelcome and could reasonably be expected to make Student A’s feel offended or intimidated.’

In respect to the second allegation the Deputy President preferred the evidence of Mr Haslam in that he did not say ‘you look cute’ or touch Student A’s stocking above the knee. This was based on the lack of evidence of this act from other students in Student A’s class who were interviewed during the investigation, and that Student A had not at any time mentioned or raised a complaint about the matter. Mr Haslam did admit that he had a made a comment about a ‘striking geometric pattern’ in respect to Student A’s stockings at some point earlier in the year.

In respect to finding whether there was a valid reason for termination the Deputy President found that Mr Haslam had materially breached the SAE Staff-Student Relationships Policy, as well as his obligation under his contract of employment to comply with applicable policies and procedures. ‘Accordingly, SAE had a valid reason to terminate his employment. ‘

A valid reason to terminate but…

Once a valid reason has been established the Commission is required to examine other relevant matters. While a valid reason may exist the termination itself could still be harsh, unjust or unreasonable.

While accepting SAE Institute’s argument it needed to have a high degree of trust and confidence in their lecturers and that trust and confidence was lost in Mr Haslam, the Deputy President stated Mr Haslam’s termination was considered harsh.

The first factor in coming to his conclusion was Mr Haslam’s 6 years of exemplary employment record. SAE senior management testifying at the Fair Work hearing stated he was a very good employee and was well respected by staff and students at the campus.

The second factor was the Deputy President’s assessment of the gravity of the misconduct and whether termination was a proportional response. He stated touching Student A’s hair was a once off unplanned act that was not of a sexual nature. He also acknowledged Mr Haslam as having shown genuine remorse and regret throughout the investigation and unfair dismissal proceedings.

The third factor was that as a result of the termination Mr Haslam would need to find work elsewhere – if another educational employer would actually employ him. It is possible he may not work in education again. He would need sell his house and relocate, his wife would need to change her job, and his daughter would need to find a new school.

The Deputy President then examined whether SAE had followed its own procedures which required fairness and impartiality. It appeared as though there were a number of editions of the independent investigation report. In relation to the second allegation the first draft stated the allegation was unsubstantiated. It was sent back for re-drafting by SAE and in a later draft the investigator changed the allegation to be substantiated. This then correlated to the first draft recommending a warning, while the final draft became a recommendation to terminate which was then actioned.

The Deputy President then determined

‘The dismissal was harsh in its consequences for the personal and economic situation of Mr Haslam and because it is disproportionate to the gravity of Mr Haslam’s misconduct:' and
'The dismissal was unjust and unreasonable because SAE did not comply with its obligation to act fairly and impartially in relation to its disciplinary procedure. ‘

The Deputy President ordered reinstatement as requested by Mr Haslam but allowed a period of time as unpaid between termination and reinstatement stating it was appropriate that Mr Haslam ‘bear a degree of responsibility for the financial consequences of his dismissal’.

Commentary

It’s becoming very clear that while the reason for a termination may be valid other relevant factors surrounding a termination may make that termination harsh or unjust or unreasonable.

This is making termination decisions much more difficult for employers who will be trying to second guess the Commission’s perspective of these relevant factors. In this decision the Deputy President highlighted the flow on effects of the termination of Mr Haslam which included selling his house in Byron Bay, the impact on his wife’s employment and his daughter’s education. Another factor is the question around Mr Haslam obtaining future work in the education sector.

A key relevant factor to consider is the age of the employee. The older the terminated employee the less likely that employee will find replacement employment.

Employers should consider such factors in a termination decision. This does not mean you cannot terminate such an employee if valid grounds exist but you will need to plan the lead up to such a termination much more carefully.

What was also quite interesting in this decision is that not every action which on the surface could be considered sexual harassment is actually/legally sexual harassment. This decision examined the action and the totality of the incident from a number of angles finding that while a touch did occur it was inadvertent, a one off and not sexual in nature.

Yes – it feels that we are probably splitting hairs here, but this is exactly what is occurring in such proceedings. In one sense such proceedings are ‘hindsight’ examining a moment frozen in time.

Even when employers think they are sitting ‘on a sure thing’ (in respect to a termination) they should get a professional opinion to examine it from a different and independent angle.

If you require assistance with investigations or terminations please do not hesitate to contact Michael.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au