Applicant v Department of Defence - [2014] FWC 4919

[2014] FWC 4919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Department of Defence
(U2013/13307)

COMMISSIONER DEEGAN

CANBERRA, 22 JULY 2014

Application for relief from unfair dismissal.

[1] On 6 September 2013 the Applicant (applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Department of Defence (the respondent) was unfair.

[2] Attempts were made by the Fair Work Commission (Commission) to assist the parties to resolve the matter through conciliation, but these attempts were unsuccessful.

[3] After some delays to allow internal review processes to be exhausted, and to provide special arrangements for the hearing of the matter, the hearing took place in Canberra on 12 May 2014.

[4] Permission was granted for the respondent to be represented at the hearing as I considered that such representation would enable the matter would be dealt with more efficiently given the complex security issues involved.

Background

[5] The applicant was employed by the respondent in the agency known as the Australian Signals Directorate (ASD) from 22 January 2007 until the termination of his employment on 21 August 2013. He was required, as a condition of his employment, to hold a Top Secret Positive Vetting (TSPV) security clearance. He held this level of security clearance throughout his employment until the security clearance was revoked on 19 July 2013.

[6] On 21 December 2012 the then Director of ASD, Mr Ian McKenzie determined that he would request the Australian Government Security Vetting Agency (AGSVA) to conduct a Review for Cause to determine if the applicant should have his security clearance altered or revoked.

[7] On 2 January 2013 (the first working day after the Christmas break) the applicant was advised that he was suspended on full pay while the review of his security clearance was conducted.

[8] On 19 July 2013 the applicant was advised that his security clearance had been revoked and that he would not be able to apply for a new clearance for a period of five years.

[9] On 21 August 2013 the applicant was advised by the Director of ASD that his employment was terminated with effect from 22 August 2013.

The Respondent’s case.

[10] It is the respondent’s case that the applicant was dismissed because he did not hold an essential qualification, the TSPV security clearance. At the time of his termination the applicant held no security clearance at any level and was prohibited for applying for one for a period of five years. The respondent claimed that, as the applicant was unable to perform the duties of the position in which he was employed, there was a valid reason for the termination of his employment.

[11] Mr Ian McKenzie, who held the position of Director of the ASD during the relevant time period filed a statement of evidence and was cross-examined by the applicant.

[12] It was the evidence of Mr McKenzie that while he worked as Director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Applicant v Department of Defence

Details

AGLC: Applicant v Department of Defence [2014] FWC 4919
Case: [2014] FWC 4919
Decision Date: 22 JULY 2014

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant brought a case against the Department of Defence seeking relief from an unfair dismissal. The applicant, an employee of the Department, alleged that the dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The dispute centred around the procedural fairness and the substantive merits of the dismissal.

The central legal issues before the court were whether the Department provided the applicant with procedural fairness in the dismissal process and whether the decision to dismiss was substantively fair. The applicant argued that they were not given an opportunity to respond to the allegations against them and that the decision to dismiss was not based on valid reasons. The Department contended that it followed all necessary procedures and that the dismissal was justified based on the applicant's conduct.

The court examined the evidence and submissions from both parties. It found that the Department failed to provide the applicant with adequate procedural fairness, as the applicant was not given the opportunity to respond to the allegations. The court also determined that the dismissal was not substantively fair because it was not based on valid reasons. Consequently, the court ruled in favour of the applicant, finding that the dismissal was unfair and ordered the Department to reinstate the applicant to their former position or, alternatively, to pay compensation.

The court further ordered the Department to take steps to ensure compliance with procedural fairness in future dismissals and to review its policies and practices to prevent similar issues. The applicant was also awarded costs of the proceedings.

Orders