Commissioner Bruce Lander issued a public statement this afternoon following a three-month investigation into allegations of improper conduct by Rathjen, who resigned from the university in July citing “ill health”.
According to Lander, Rathjen engaged in conduct that was “entirely inappropriate” and treated the two unnamed female staff members with “egregious disrespect” by deliberately hugging and touching them in a sexual manner after a university function on April 11 last year.
Lander described the behaviour as “unwanted and unwelcome” by the two women – named “Ms A” and “Ms B” in the statement – who claim their health has since been affected by the investigation.
During the function, Rathjen was found to have:
- Hugged and deliberately touched Ms A’s bottom whilst they were at a hotel
- Deliberately touched Ms A’s bottom on the walk to another hotel
- Hugged Ms A and deliberately touched her bottom on two occasions while they were at a second hotel
- Kissed Ms A on the mouth on two occasions
- Deliberately placed one hand on Ms B’s waist whilst they were at the hotel
- Hugged Ms B whilst they were at the hotel and deliberately placed both of his hands around her waist
Lander said Rathjen’s conduct amounted to serious misconduct and a “clear breach” of the university’s code of conduct.
He said the behaviour was “worse having regard to his position within the university and the two women’s relative positions in the university”.
According to Lander, Rathjen denied that his conduct was sexual in nature – a claim the commissioner refuted.
“I have rejected the Vice-Chancellor’s evidence in every respect where he sought to disagree with the account given by the two women or to minimise his conduct,” his statement says.
“I have found that the evidence given by the two women about the events at the function was true and I have accepted both of them as witnesses of truth.”
Lander found that despite its later criticism of Scarce, the University’s Senior Executive Review Committee did not initially ‘see the Vice-Chancellor’s conduct as having been as serious as they later determined’.
According to Lander, one of the women made a complaint about Rathjen to her manager, who later confronted the Vice-Chancellor with the allegations.
Lander said Rathjen “did not deny the conduct” and offered to apologise “if there had been a misunderstanding”.
He wrote that the university’s human resources department sought advice from a private solicitor, who advised that it was up to the then Chancellor Kevin Scarce to confront Rathjen about the allegations, but the university’s council did not need to be informed.
Scarce, who stepped aside in the same week as Rathjen, wrote to Rathjen in May last year “admonishing him for his conduct and warning him that if there was any further conduct of the kind reported it would warrant a very serious consequence”.
“In accordance with the advice which he received, and relying on the women’s wishes not to have their identities made known, the Chancellor did not report the matter to the University Council or its committees,” Lander wrote, noting that now-Chancellor Catherine Branson “later criticised [Scarce] for his failure to advise the Council or its committees of the conduct”.
“That is not a criticism that I would embrace,” Lander writes.
“I think the Chancellor was entitled not to report the conduct for the two reasons he gave – first because of the women’s wishes not be identified [and] secondly because he was given legal advice to that effect.”
Lander found however that the matter should have been reported to his Office of Public Integrity.
He also noted a 2019 blog post published by US-based journalist and academic Michael Balter “in which he made an allegation of previous sexual harassment on the part of the Vice-Chancellor ‘going back to his earlier days as a professor’”.
Lander wrote that Scarce took advice from the same lawyer and was told to confront Rathjen about the allegations in the blog.
“Two or three days after the Chancellor asked that question, and sought that response, the Vice-Chancellor was advised by way of letter by Senior Counsel practising in Melbourne that she was carrying out an investigation into historical claims of sexual harassment or abuse by the Vice-Chancellor, of a female post graduate student, whilst he was an academic at the University of Melbourne,” Lander writes.
“The allegations were very serious. It was not important for the purpose of my investigation whether the claims are true, only that they were made.
“On 8 August 2019 the Vice-Chancellor was provided with a written copy of her proposed findings and invited to comment on those most serious allegations.”
The Chancellor was given a fait accompli. If he did not resign he would be stood down. That would have been extraordinarily embarrassing for him.
Rathjen instructed a lawyer to act for him in relation to the letter and “was advised to adopt certain strategies”.
He responded to Scarce telling him “there was nothing that the Chancellor needed to know in relation to his past conduct”.
“Plainly that was untrue,” Lander notes.
“The Vice-Chancellor said that he did not advise the Chancellor that he was being investigated in relation to his conduct at the University of Melbourne because he had received advice from his lawyer not to do so.
“I have specifically found that the lawyer did not give any advice to the Vice-Chancellor in respect to the question that had been posed of him by the Chancellor.
“In my opinion the Vice-Chancellor’s evidence that he received advice from a lawyer to effectively mislead the Chancellor was false.
“I have found that the Vice-Chancellor lied to the Chancellor because he knew, if he told the Chancellor the truth, that he was subject to investigation in relation to a previous claim of sexual misconduct it would jeopardise his tenure at the University of Adelaide.”
Lander found that despite its later criticism of Scarce, the University’s Senior Executive Review Committee did not initially “see the Vice-Chancellor’s conduct as having been as serious as they later determined”.
In March this year, Rathjen again failed to disclose to Scarce that there were “allegations arising from his time at the University of Melbourne which he knew were the subject of investigation”.
“I have found the Vice-Chancellor again deliberately misled the Chancellor to protect his position as Vice-Chancellor,” Lander finds.
“I have found the Vice-Chancellor lied to the Chancellor on three occasions.
“He lied in his evidence to me.
“I have found that he has lied when it suited him to do so.”
A report detailing the full extent of Lander’s findings has been provided to the university but it will not be made public.
Both women asked Lander not to publish his report publicly as they said doing so would cause them “significant embarrassment and distress and would further victimise them for having assisted in the investigation”.
They also said that the investigation “has and would affect their health”.
Lander said the university had also asked for the report not to be made public as it would discourage other people in the future from reporting claims of sexual harassment or misconduct.
He said he had agreed not to make the report public as it would be “inappropriate” to cause the victims further embarrassment and humiliation.
“It may be because of the brevity of this statement compared with the report, that the seriousness of the conduct will not be understood,” he said.
“However, that is better than the victims suffering further hurt.”
Chancellor Catherine Branson told reporters this afternoon the university felt “deeply disappointed” and “let down by the most senior manager that we had”.
She said the university regretted and apologised for Rathjen’s behaviour and acknowledged that it reflected badly on the university.
The university has accepted all eight recommendations made by Lander in his report, including reviewing its complaints policies and implementing an education program for staff about sexual harassment.
“We will appointing a suitable and experienced person to review all of our processes to make sure that nothing of this kind happens again,” Branson said.
“It is an opportunity for us to redouble our efforts to ensure that our campuses are safe for all students and all staff.”
Branson said the university had given an “entirely appropriate” payout to “Ms A”, but she had not met with either victim, saying “I will meet with them if they wish to meet with me”.
“I will not force on them a meeting they do not wish to have and my understanding is that they wish to put this matter right behind them.”
The university is in the process of recruiting a new Vice-Chancellor to replace Rathjen, with committee formed to oversee the external appointment.
Rathjen did not answer calls but apologised to the two women in a statement sent via his lawyer Nick Iles.
“I deeply regret the distress and embarrassment that I caused two female staff members after a University function in Sydney in April 2019,” his statement reads.
“I also deeply regret the fact that, through no fault of their own, they became embroiled in a very public inquiry which they did not seek and did not wish to participate in.
“I apologise to both of them.
“There was no need for this investigation.”
He said the “fact is that the University knew about, investigated and dealt with the matter in May 2019”.
“When the then Chancellor, Kevin Scarce, put the allegations to me at that time, I immediately admitted them.
“I acknowledged a serious error of judgement.”
Rathjen maintains that “despite the fact that neither staff member wanted me disciplined, I accepted, without challenge, the Chancellor’s decision to issue me with a formal warning”.
“That decision was based on the advice of an expert employment lawyer who had advised the University for over two decades and the Executive Director of Human Resources at the University, herself a lawyer,” he said.
“It was the University’s view that this was an internal matter with which the University could, and would, deal. The course the matter took thereafter was not influenced, let alone determined, by me.
“I believed at the time that the Chancellor’s decision had resolved the matter.
“By early 2020, the University’s senior leadership, including the key governing bodies of the University and the present Chancellor, herself a former Federal Court Judge and President of the Australian Human Rights Commission, were fully aware of the events in Sydney in April 2019.
“None of them were of the view that what had happened constituted ‘serious misconduct’.
“To the contrary, they continued to express confidence in me.”
Rathjen argues it is therefore “difficult to understand Mr Lander’s conclusion that my conduct constituted ‘serious misconduct’ in public administration”.
“By early July 2020, it was clear to me that the deterioration in my physical and mental health meant that I was no longer able to discharge my duties,” his statement continued.
“The restoration of my health became paramount. The University, which I have had the honour to serve, graciously supported that decision and agreed terms for my resignation and departure.”
Iles added in a further response that “in circumstances where the University, properly advised, had dealt with the matter in 2019, it is difficult to see what purpose has been served by Mr Lander’s investigation”.
“It is particularly regrettable that he thought it appropriate to make public comments in advance of the investigation,” Iles writes.
“The finding of ‘serious misconduct’ is disproportionate to the conduct found. Mr Lander has rejected evidence and submissions which did not suit his narrative and drawn unwarranted inferences from those which did.
“As a result, significant public monies have been expended on a procedurally inadequate investigation which no-one wanted and which has cost the University its key leadership.”
Iles argued “the decision to investigate this matter underscores the urgent need to amend the ICAC Act to limit the role of ICAC to matters of genuine ‘corruption'”.
“There are far better ways of dealing with matters falling short of this, not the least being to allow public authorities to address these issues in accordance with internal protocols, as legally advised, or by normal legal processes, be it in a Court or Tribunal,” Iles said.
Former Chancellor “should not have been put in position”
Lander’s statement also raises questions about whether former Chancellor Kevin Scarce should have been forced out of his position.
He said the university’s Convenor’s Committee formed a four-member group, which then Deputy Chancellor Branson described as a “Rump”.
This group “decided that the Chancellor should be advised there would be a risk that if he did not resign a motion would be put to Council for him to be stood down during the (ICAC) investigation”.
“The Deputy Chancellor requested that the Chancellor meet with her at her home on 26 April 2020.
“At that meeting the Chancellor was advised that for the good of the University and for his own good he ought to consider resigning. Otherwise a recommendation would be made to the Council that he be stood down.
“The Deputy Chancellor also advised him that she wished to become Chancellor.
“The Chancellor was given a fait accompli. If he did not resign he would be stood down. That would have been extraordinarily embarrassing for him.
“On 27 April 2020 the Chancellor resigned. On 30 April 2020 the Deputy Chancellor met with the Vice-Chancellor and told him that I was investigating his conduct and that a resolution would be taken to Council to stand him down. He took leave.
“I do not think that the Chancellor should have been put in the position in which he was put. I do not think my investigation could have embarrassed him or the University such that he needed to resign. However, he elected to put the University’s interests about his own by resigning.”
Branson said this afternoon that her actions were “entirely proper” to “preserve the integrity of the ICAC investigation” and to “reduce embarrassment to staff and council members who might be required to give evidence about the Chancellor’s conduct”.
“I did not give the then Chancellor any such ultimatum,” she said.
“I did not ask him to resign – I pointed out to him that… a recommendation would go to Council, that he be stood aside during the course of the inquiry, but that he might find it preferable, given he was nearing the end of his term, to bring the end of that term forward.
“The choice was for him, he had a senior lawyer with him when we discussed this matter, no immediate decision was made.
“He made the decision to bring the end of his term forward.”
Scarce, who earlier told InDaily he was “having a detailed read of the report”, later released a statement saying he welcomed “the conclusion of the Independent Commissioner’s investigation”.
“In doing so, I would like to express my sincere regret for the hurt and embarrassment caused to the two women at the core of this matter,” the former Chancellor and one-time state Governor said.
“Any allegation of sexual harassment is among the most serious of any workplace complaint and must be treated as such.
“I am pleased that the matter has now concluded, and that the University can continue to grow and prosper.”
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