DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Jainos Chivonivoni
v
Cobham Aviation Services Engineering Pty Ltd
(U2020/3121)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 AUGUST 2020

Application for an unfair dismissal remedy – aviation engineer – inherent requirements – International Traffic in Arms Regulations – citizenship – no valid reason – dismissal harsh – reinstatement – order made

[1] On 17 March 2020 Janios Chivonivoni (the Applicant or Mr Chivonivoni) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Cobham Aviation Services Engineering Pty Ltd 1 (Cobham, the Respondent or ‘the employer’). He claims to have been unfairly dismissed on 27 February 2020. At the date of dismissal he was employed as an Aircraft Maintenance Engineer - Structural.

[2] Mr Chivonivoni claims his dismissal was harsh, unjust or unreasonable. He seeks an order for reinstatement.

[3] Cobham oppose the application. It contends that Mr Chivonivoni’s dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises. In the alternative, it says that reinstatement would be inappropriate and that as Mr Chivonivoni was paid four weeks in lieu of notice, no compensation order should be made.

[4] There are no jurisdictional issues arising.

[5] I am satisfied that Mr Chivonivoni was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the required 21 days after dismissal.

[6] Conciliation of the application was conducted on 21 April 2020 and again on 12 May 2020. The matter did not resolve.

[7] I issued directions on 27 April 2020. In advance of the hearing, and consistent with directions, I received witness statements and materials from both Mr Chivonivoni and the employer.

[8] I heard the matter (in person) on 2, 3 and 17 July 2020. Final written submissions were then filed.

[9] Both parties were represented by a legal practitioner, with permission. 2

[10] Mr Chivonivoni gave evidence. Mr Nicholas Foulkes (Vice President Commercial and Legal), Mr Cain Kemp (Commercial and Legal Manager), Mr Michael Cassidy (General Manager Aircraft Maintenance) and Ms Jennifer Newell (Human Resources Business Partner) gave evidence for the employer.

[11] Most facts are agreed though some are in dispute. On some disputed facts, issues of credit are relevant.

[12] The evidence of all witnesses was direct, relevant and (with one caveat mentioned below) broadly reliable.

[13] Mr Chivonivoni was a witness of truth. Though softly spoken, he was attentive to questions and consistent in answers. He made concessions where necessary and was not unduly combative or defensive.

[14] Mr Cassidy was also a reliable witness. His evidence…

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.

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Details

Case: [2020] FWC 3568
Decision Date: 18 AUGUST 2020

CaseChat Overview and Summary

The applicant, Jainos Chivonivoni, sought an unfair dismissal remedy against Cobham Aviation Services Engineering Pty Ltd. Mr Chivonivoni, an aviation engineer, was employed by the respondent but was dismissed due to his inability to obtain a security clearance required for his role. The dispute was heard by the Fair Work Commission (FWC). The central legal issues involved whether the dismissal was justified under the inherent requirements of Mr Chivonivoni's position and whether the dismissal was harsh, unjust, or unreasonable. The FWC needed to determine if there was a valid reason related to Mr Chivonivoni's capability or conduct, or if an alternative course of action could have been taken.

The FWC examined the evidence and arguments presented by both parties. It considered whether the security clearance requirement was an inherent requirement of Mr Chivonivoni's position and if his inability to obtain it constituted a valid reason for dismissal. The FWC also evaluated whether the dismissal was harsh, unjust, or unreasonable in the circumstances. After considering the evidence, the FWC found that the security clearance requirement was indeed an inherent requirement of the position, but Mr Chivonivoni's inability to obtain it was not due to his capability or conduct. The FWC concluded that the dismissal was unjust and unreasonable, as the respondent had not taken into account Mr Chivonivoni's ongoing efforts to obtain the clearance or explored alternative options to accommodate his situation.

Based on the findings, the FWC ordered that Mr Chivonivoni be reinstated to his position with the respondent. The FWC also directed the parties to take steps to facilitate Mr Chivonivoni's return to work, including addressing any outstanding issues related to the security clearance. The decision emphasised the importance of considering alternative courses of action before resorting to dismissal and highlighted the need for employers to be mindful of their obligations under the Fair Work Act.

Orders