Jainos Chivonivoni v Cobham Aviation Services Engineering Pty Ltd
[2020] FWC 3568
•18 AUGUST 2020
| [2020] FWC 3568 |
| FAIR WORK COMMISSION |
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 was clear and plausible.
[15] Mr Foulkes, whose evidence was taken by video, was also a witness whose evidence can be relied upon. He was thoughtful and respectful in testimony though had inexact recall on some detail.
[16] Mr Kemp was a confident witness whose evidence, with one exception, is also reliable. Mr Kemp’s recall that he had no role in the decision to dismiss beyond conducting a risk assessment and being available in an advisory capacity is not preferred. I prefer the evidence of Ms Newell that Mr Kemp had an active role in that regard though, for reasons that follow, not much turns on whether Mr Kemp was one of the decision-makers or simply advising the decision-makers. The precise identity of the decision-maker (or decision makers) remains unclear.
[17] Ms Newell’s evidence was broadly reliable though her evidence on some matters was imprecise until taken to the written record.
[18] Cobham did not call its United States-based Director of Global Trade Compliance (Mr Andrew Perrone) whose advice was relevant to decisions made by Australian management. I draw no adverse inference from this omission though, for reasons that follow, the evidence of Australian managers on what they understood to be guidance provided by Mr Perrone was relevant but imprecise.
[19] I was not asked by either Mr Chivonivoni or Cobham to make confidentiality orders. That notwithstanding, there is material before me of a potentially sensitive nature relating to defence matters and arrangements between agencies of the Commonwealth of Australia and those of the United States of America. That material has been considered (where relevant) though I have only referred in these reasons (given their public nature) to those matters necessary for determination of Mr Chivonivoni’s unfair dismissal claim.
The Facts
[20] I make the following findings.
Cobham’s operations
[21] Cobham’s Australian operations are part of its global business. It provides aviation services nationally from Adelaide, South Australia with locations elsewhere in Australia (including New South Wales). Those services include (but are not limited to) contracts with agencies of the Commonwealth of Australia to conduct transportation and maritime surveillance.
[22] In Adelaide, as well as Sydney, Cobham employs technical crew, including engineers who service aircraft used in operations. In Adelaide, five types of aircraft are serviced. When an aircraft is serviced it is piloted to a hangar located in the environs of Adelaide airport. Aircraft are inspected and serviced mechanically and structurally.
[23] Of these five aircraft, two are fitted with surveillance devices. It is unnecessary for the purposes of this decision to identify those aircraft or expand on their activities.
Mr Chivonivoni’s employment and citizenship
[24] Mr Chivonivoni is an experienced and competent engineer specialising in aircraft structures. Until dismissed, Mr Chivonivoni worked at the Cobham facility in Adelaide on each of the five aircraft. He had done so for more than five years.
[25] In the first four of those years (2014 to 2018) Mr Chivonivoni was employed by a labour hire firm (Aerobond) which contracted his services to Cobham. In his final fourteen months Mr Chivonivoni was an employee of Cobham. In November 2018 he was recruited at Cobham’s initiative as a direct employee on account of Cobham’s high regard for his engineering skill and work ethic.
[26] Mr Chivonivoni holds dual nationality of Zimbabwe and Australia.
[27] Being Zimbabwean by birth, he holds the nationality of that country. Not enamoured with the then government of Zimbabwe, in 2006 Mr Chivonivoni uprooted himself and his family from Zimbabwe and moved to South Africa. He remained in South Africa until 2012 when he and his family emigrated to Australia under the skilled migrant visa programme.
[28] On 6 September 2016 Mr Chivonivoni acquired Australian citizenship. Since that date he has been a dual citizen of Australia and Zimbabwe.
[29] Upon being employed by Aerobond in 2014, Mr Chivonivoni disclosed that he was a citizen of Zimbabwe and had working rights in Australia (which he held). He undertook security testing and obtained all clearances allowing him to work for Aerobond from Cobham’s facilities servicing Cobham’s aircraft. Cobham approved the working arrangement.
[30] Upon being directly employed by Cobham in November 2018, Mr Chivonivoni disclosed to Cobham that he was (by then) a dual citizen of both Australia and Zimbabwe.
[31] Throughout his period of employment with Aerobond (working at Cobham) and when interviewed for direct employment by Cobham (in 2018) no question or issue was raised by either Aerobond or Cobham concerning Mr Chivonivoni’s Zimbabwean citizenship or its implications for the work he was performing. His security clearance allowing him to work from the Cobham facility at the Adelaide airport was renewed afresh when he became Cobham’s direct employee in November 2018.
[32] Throughout his near six years of combined employment with Aerobond and Cobham Mr Chivonivoni serviced Cobham aircraft fitted with surveillance devices and until September 2019 did so with the knowledge of his employers and without question.
International Traffic in Arms Regulations (ITAR)
[33] By virtue of contracts with United States based suppliers and United States and Commonwealth authorities, Cobham is bound to comply with the United States International Traffic in Arms Regulations (ITAR) insofar as those rules bind private companies operating aircraft fitted with defence sensitive equipment and controlled devices (CDAs).
[34] ITAR is also binding on the Commonwealth of Australia by enforceable obligations between Australia and the United States of America.
[35] On the Australian side, ITAR is overseen by the Department of Foreign Affairs though compliance by private companies (such as Cobham) with respect to defence-related contracts is (in the first instance) administered by the Department of Defence. On the United States side, ITAR is overseen by the State Department.
[36] The provisions of ITAR are wide-ranging. Amongst its purposes, it is designed to restrict the supply and disclosure of CDAs to nation states or citizens of those states that are, from time to time, considered a risk to the interests of the United States and partners to ITAR arrangements (Australia being a partner).
[37] ITAR imposes specific obligations on private companies entrusted with the operation of CDAs falling within the ITAR framework.
[38] At all relevant times (being whilst Mr Chivonivoni was working at Cobham as a labour hire employee (2014 - 2018) and as a direct employee (2018 - 2020):
• two of the five aircraft operated by Cobham and serviced by Mr Chivonivoni were fitted with ITAR regulated CDAs;
• unless the exemption in ITAR 126.18 applied, citizens of Zimbabwe working for a private company were prohibited by ITAR 126.1 from being in contact with or having access to CDAs (whether in physical form, via software or other means of access);
• by virtue of ITAR 126.18 dual citizens (including of Australia and of a country prohibited by ITAR 126.1) could be exempt from the prohibition on access to CDAs if they were assessed by the relevant private company as not having substantive contacts and not presenting a risk of disclosing information relating to CDAs to persons or nation states prohibited by ITAR 126.1; and
• the onus on proving that a dual citizen employee did not present such risk was on the private company, should they be put to proof by Australian or United States authorities.
Cobham and ITAR compliance
[39] In mid-2019, Cobham’s Australian management embarked on an internal programme to audit and enhance ITAR compliance. As part of that initiative it sought guidance from its United States based global officer versed in ITAR matters, Mr Perrone.
[40] The Australian programme was administered by Mr Kemp who reported to Mr Foulkes. It had the following elements:
• a screening process (involving an employee interview conducted by Mr Kemp and a security officer);
• referral of an employee case assessed as medium to high risk to a three-person escalation committee (comprising Mr Foulkes, the Manager of Security and Mr Kemp); and
• if the escalation committee confirmed the medium to high risk assessment, the employee’s case would be referred to operational managers to consider work-arounds, redeployment away from CDAs or other action.
[41] By September 2019 Cobham’s Australian managers identified that it employed a handful of persons (approximately six) who it believed were citizens or dual citizens of ITAR 126.1 proscribed countries. Mr Chivonivoni was one of those persons.
[42] As part of the programme Cobham also identified that compliance with ITAR rules required an exemption allowing it to discriminate against persons employed on the ground of nationality where such discrimination would otherwise be unlawful. In South Australia, Cobham applied for an exemption under sections 52 and 54 of the Equal Opportunity Act 1984 (SA).
[43] On 26 November 2019 the South Australian Civil and Administrative Tribunal granted Cobham an exemption on conditions. 3 The conditions included that discriminatory conduct on the ground of nationality was permitted only if “necessary” to meet contractual obligations requiring access to CDAs, and that Cobham had “taken all steps that are reasonably available” to avoid the necessity of engaging in the discriminatory conduct.4
ITAR risk assessment of Mr Chivonivoni
[44] Despite working on Cobham aircraft fitted with CDAs between 2014 and 2018, Cobham conducted no specific ITAR assessment of Mr Chivonivoni.
[45] Nor did Cobham do so between November 2018 and September 2019.
[46] In September 2019 5, as part of the compliance programme, Mr Kemp (assisted by a security officer) interviewed Mr Chivonivoni. The interview involved Mr Kemp asking six pre-prepared questions about his citizenship and contacts (if any) with Zimbabwe, and recording the answers on a spreadsheet.
[47] Going into the interview (and by virtue of his Zimbabwean citizenship) Mr Kemp had provisionally assessed Mr Chivonivoni as a person at high risk of disclosing information about CDAs. At the interview’s conclusion, Mr Chivonivoni was told that management would report back at some future time. Mr Chivonivoni was unaware, until February 2020, that he had been assessed as high risk.
[48] Mr Kemp referred Mr Chivonivoni’s case to the escalation committee.
[49] The escalation committee met in November 2019. The committee affirmed the pre and post interview high risk rating assessed by Mr Kemp. The committee referred the case to operational management to consider work-arounds or redeployment options. Mr Chivonivoni was not consulted by the escalation committee.
[50] On 15 January 2020 a meeting of operational management (including Mr Chivonivoni’s senior manager, Mr Cassidy) was held to discuss Mr Chivonivoni’s case (and the case of two others that fell within Mr Cassidy’s responsibility). 6 In attendance were Mr Kemp, Cobham’s Chief Operating Officer (COO) and Mr Cassidy. The meeting involved Mr Cassidy being briefed on the results of the ITAR screening process which had been conducted. The meeting adjourned to 24 January 2020. Mr Chivonivoni did not know of and was not involved in the January 2020 meetings.
[51] On 24 January 2020 management reconvened to consider Mr Chivonivoni’s case. The meeting noted that if Mr Chivonivoni chose to renounce his Zimbabwean citizenship then the problem would disappear. Mr Cassidy was tasked with specifically considering work-arounds or redeployment should he not renounce.
[52] Over the following week, Mr Cassidy explored the potential for work-arounds and redeployment. He concluded, with some regret, that neither option was available.
[53] Mr Cassidy reported his conclusion to the COO who asked Mr Cassidy to liaise with the human resources department on how to advise Mr Chivonivoni of the problem with his continuing employment and that no work-arounds or redeployment options appeared available.
Dismissal of Mr Chivonivoni
[54] Ms Newell, with Mr Cassidy, prepared two letters for Mr Chivonivoni. The first was notification of a mandatory meeting on “ITAR Follow Up” to be held the next day (letter 6 February 2020). 7
[55] Mr Chivonivoni attended the meeting held with Ms Newell and Mr Cassidy (with his immediate supervisor as a support person) on 7 February 2020. At that meeting he was handed a second letter which read: 8
“7 February 2020
PRIVATE AND CONFIDENTIAL
Dear Janios,
ITAR FOLLOW UP
As you may be aware, over the past six months, Cobham Aviation Services Australia has been undertaking a review of how it handles of controlled technology. As part of this review, CAvS embarked upon a compliance improvement program to address a number of areas within the review, and one of those areas is the screening of employees who have access to ITAR controlled technology (both physical items and technical information). ITAR (International Traffic in Arms Regulations) is a US requirement, and CAvS requires ITAR controlled equipment to provide services to some of its customers.
ITAR contains a list of countries under section 126.1 that citizens of those countries, including dual citizens, cannot have access to any ITAR equipment. Zimbabwe is one of those countries.
Under clause '1.8 Consultation' in your Enterprise Agreement we are required to discuss the introduction of this change, the effect the change is likely to have on you and measures we have taken/are taking to mitigate the adverse affects of the change on you.
Due to these regulations and as a citizen of Zimbabwe, it looks unlikely you will be able to undertake your role in Engineering at Cobham and be compliant under ITAR regulations.
We have looked at any other suitable vacancies within the business that match your skills, knowledge and abilities, or ways of isolating you from ITAR controlled technology, but have been unsuccessful to this point.
I invite you to meet with me and put forward any alternatives that you believe may lessen the adverse impact of this proposal at a meeting on Friday 14th February 2020 at 9.30am.
We ask that you consider any information that you feel may affect the final decision by Cobham Aviation and present that information at the abovementioned meeting. You are
invited to bring a support person with you to the meeting.
You are not required to attend work, until we meet with you again on Friday 14th February.
Please treat this matter as confidential.
I confirm that you are welcome to access our Employee Assistance Program (EAP). This program is available to both you and your direct family members if you require confidential counselling or support during this time.
If you have any questions or wish to discuss any aspect of this matter further, please contact me directly.
Yours sincerely
Mick Cassidy
Head of Aircraft Maintenance”
(emphasis added)
[56] On 7 February 2020 Ms Newell opened discussion working through a template of discussion points she had prepared. 9 Ms Newell did not direct Mr Chivonivoni to renounce his Zimbabwean citizenship but told him that if he chose to do so the problem with his employment would no longer arise and that the company would assist him in doing so. Mr Cassidy told Mr Chivonivoni that he was highly regarded and that the company did not want to lose him. Ms Newell (as per the letter) proposed a follow-up meeting a week later.
[57] Mr Chivonivoni was suspended on paid leave until the issue was sorted. Mr Chivonivoni was shocked but said little. He agreed to meet and provide a response on 14 February 2020.
[58] Mr Chivonivoni then made inquiries as to how a dual national would go about renouncing Zimbabwean citizenship. He was advised by the Zimbabwean embassy in Australia that this was not able to be done administratively by lodging paperwork in Australia but required travel back to Zimbabwe for an in-person interview with relevant Zimbabwean authorities.
[59] In this period Mr Chivonivoni also took legal advice on his circumstances, including his employment rights.
[60] To complete his enquiries and secure the advice needed, Mr Chivonivoni sought from Cobham, and was granted, an extension of a week before the response meeting was held.
[61] Cobham and Mr Chivonivoni met on 20 February 2020. Mr Chivonivoni advised that he had not yet decided whether to renounce Zimbabwean citizenship. The company advised that its position was unchanged but would be prepared to negotiate a mutual termination akin to a redundancy (4 week’s notice plus 4 week’s severance pay). In reply, Mr Chivonivoni advised that he would consider any dismissal to be an unfair dismissal and would not agree to the redundancy option. Mr Chivonivoni requested, and Cobham agreed, to a further short period for Mr Chivonivoni to make a final decision on renunciation.
[62] The next day, 21 February 2020, Mr Chivonivoni sent Cobham (Mr Cassidy) the following email:
“Hi Mick
After careful consideration with regards to my renouncing my citizenship. Taking into account the strenuous and bureaucratic process involved, due to the dysfunctional state of the country I have decided to desist from taking this step. Reapplying for the same citizenship in the future when and if the country is removed from the ITAR list has its own challenges that might make this impossible for me in the future. While I would like to keep working for Cobham I fear you have made this impossible for me due to the implied choices you placed before me, not to mention that I still feel if the company had done due diligence in Nov 2018 when I was recruited for this role I would not be in the situation I find myself in now.
Kind Regards
Jainos Chivonivoni”
[63] Mr Cassidy forwarded the email to Ms Newell. He sent a holding reply:
“Hi Janios,
Thank you for your email today, we will get back to you early next week on how this is to progress.”
[64] At some time between 21 February and 26 February 2020 a meeting was held between Ms Newell, Mr Cassidy and Mr Kemp. 10 A decision to dismiss was taken by Cobham at or around that time. Mr Cassidy was asked to schedule a final meeting with Mr Chivonivoni.
[65] The dismissal meeting occurred on 26 February 2020. Ms Newell and Mr Cassidy attended, as did Mr Chivonivoni. Ms Newell asked Mr Chivonivoni to confirm that he had decided not to renounce Zimbabwean citizenship. Mr Chivonivoni confirmed that position. Ms Newell again proposed the settlement offer as an agreed termination. Mr Chivonivoni again rejected it. Ms Newell then advised Mr Chivonivoni that his employment was terminated effective immediately. She agreed to confirm that in writing.
[66] Later that day (26 February 2020) Ms Newell sent Mr Chivonivoni the following email: 11
“Hi Janios,
This email is to confirm our discussions with you today, regarding your employment with Cobham.
We confirm that your employment with Cobham will cease effective immediately.
We also confirm that you rejected Cobham’s ex-gratia offer.
Any entitlements owing to you will be paid to your nominated bank account.
As discussed, you will return your security pass to Mick Cassidy tomorrow morning at 7am.
A formal letter of termination will follow.
We wish you all the best in the future.
Please don’t hesitate to contact me if you require anything further.
Regards,
Jennifer Newell”
[67] Mr Chivonivoni left the workplace and agreed to return his passes.
[68] The next day Mr Chivonivoni was sent the following letter: 12
“27 February 2020
Termination of Employment
Dear Janios,
This letter confirms the discussion that your employment as Structures Engineer with Cobham Aviation Services will cease effective Wednesday 26th February 2020 with the agreed payment in lieu of 4 weeks’ notice.
….
We wish to thank you for your contribution and to wish you the very best for the future.”
Yours sincerely,
Jennifer Newell
Human Resources Business Partner”
[69] As Mr Chivonivoni had not agreed to a mutual termination, Cobham paid four weeks in lieu of notice only. It did not make an ex gratia severance payment.
Circumstances since dismissal
[70] Mr Chivonivoni was shaken by his dismissal but having obtained legal advice he placed the matter into the hands of his solicitors whilst seeking alternate work.
[71] He filed these proceedings on 17 March 2020.
[72] During March 2020, Mr Chivonivoni secured a six week contract of work as an engineer for a Cairns based aviation company.
[73] However, due to the advent of COVID-19, after working in Cairns for only three weeks, that contract was ended and Mr Chivonivoni returned to his family in Adelaide in advance of border shut-downs.
[74] He has since been looking for work, but unsuccessfully. The impact of COVID-19 on aviation services has materially affected employment opportunities notwithstanding his skill and capability.
[75] Mr Chivonivoni is currently in receipt of Jobseeker (a Commonwealth funded and Centrelink administered unemployment benefit). That, apart for the four weeks in lieu of notice paid on termination, has been his sole source of income.
Consideration
[76] In considering whether Mr Chivonivoni’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.13 Those matters must be considered as part of an overall assessment of whether the dismissal was harsh, unjust or unreasonable. That assessment is based on the ordinary meaning of these words, in their statutory context. That context includes the object stated in section 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
[77] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason
[78] Valid in this context is generally considered to be whether there is a sound, defensible or well-founded reason for dismissal.14 In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them.
[79] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. It is not enough for an employer (other than in cases of summary dismissal by a small business employer15) to rely on its reasonable belief that the termination was for a valid reason.16 Equally, facts justifying dismissal which existed at the time of the termination can be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.17
[80] The existence of a valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.18
[81] Cobham contend there was a valid reason related to Mr Chivonivoni’s continuing capacity to perform an inherent requirement of his job without putting his employer at risk of breaching ITAR rules or its contractual obligations to Commonwealth and United States interests.
[82] The inherent requirement is said to have been the obligation to conduct engineering work and service of aircraft structures that contain CDAs as defined by the ITAR rules.
[83] An employee’s inability to lawfully perform work or fulfil an inherent requirement of the job will generally provide a valid reason for dismissal.19 As recently noted by a Full Bench of the Commission:20
“A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability.”
[84] Mr Chivonivoni’s ability to do the job was not in issue. Nor was his performance or technical qualifications.
[85] The valid reason is said to be that, once assessed as having substantive contacts and being high risk, the mere continuing performance of his duties on aircraft fitted with CDAs put his employer in breach of ITAR rules and its contractual obligations.
[86] In the context of an unfair dismissal case, this proposition requires a consideration of three elements:
• was Cobham bound by ITAR rules and at material commercial risk should it be in breach?
• were the decisions made by Cobham to assess Mr Chivonivoni as having substantive contacts and not exempt under ITAR 126.18 reasonable?
• were the decisions that no work-arounds or redeployment options existed reasonable?
[87] For Mr Chivonivoni’s dismissal to be for a valid reason, each of these propositions need to be answered in the affirmative. The case advanced by Cobham for dismissing Mr Chivonivoni falls away if either the ITAR obligations (correctly applied) did not exist; or the circumstances of Mr Chivonivoni did not warrant sanction under the ITAR rules; or no reasonable option other than dismissal existed.
[88] I now consider each element.
[89] Before doing so, I observe that this matter is determined on the basis that Mr Chivonivoni was, at the time of dismissal, a citizen of Zimbabwe (in addition to being a citizen of Australia). In closing, counsel for Mr Chivonivoni advanced a submission that Zimbabwean law (section 9 of the Citizenship of Zimbabwe Act) had caused his Zimbabwean citizenship to have fallen away upon becoming an Australian citizen in 2016. 21 Cobham advanced a contrary position on the ground that this section of Zimbabwean law is unconstitutional as (it submitted) it is inconsistent with the constitution of the State of Zimbabwe.22
[90] Given my findings and conclusions on other matters, I need not determine this question even were it a justiciable issue for Australian courts or tribunals. I note that as a matter of fact, Mr Chivonivoni’s Zimbabwean citizenship has not been renounced or annulled at any relevant time. At the time of dismissal he considered himself to be a citizen of both Zimbabwe and Australia. So too did Cobham.
Was Cobham bound by ITAR rules and at material commercial risk should it be in breach?
[91] The answer to this question is yes.
[92] Cobham is bound to comply with the requirements of ITAR by virtue of commercial contracts with United States companies that supply CDAs and by virtue of export authorisations for such articles between United States suppliers, Cobham and the United States government. Cobham also incurs responsibilities by virtue of contracts with the Commonwealth and arrangements between the Commonwealth and the United States.
[93] Cobham’s obligations have binding force. A failure to comply puts the company at risk of proceedings for breach and, more practically, at risk of contracts being cancelled, not renewed or the company not being considered for future work. 23 The commercial consequences are potentially far reaching and extend beyond its Australian interests. These conclusions accord with the findings of SACAT in November 2019.24
[94] Also relevant is that Cobham, as with any private employer contractually bound by ITAR rules, carries the onus of establishing that it is not in breach.
[95] Of relevance to this matter are ITAR rules generally but two in particular: ITAR 126.1 and ITAR 126.18.
[96] ITAR 126.1 25 prohibits (subject to exceptions) the grant of licences and other approvals for exports and imports of CDAs. Access is denied to prohibited countries. Australia is not a prohibited country. However, private companies operating in Australia are only permitted to access CDAs if authorised and, in any event, are prohibited from disclosing CDAs to a prohibited country (or any person acting on behalf of a prohibited country).
[97] Since approximately 2008, Zimbabwe has been a prohibited country under ITAR 126.1.
[98] As an authorised private company end user of CDAs, Cobham was prohibited from disclosing or transferring CDAs to Zimbabwe or a person acting on behalf of the state of Zimbabwe. 26
[99] Cobham was capable of breaching this obligation by the conduct of its employees.
[100] ITAR 126.18 provides an exemption from the prohibition on access to CDAs by employees of authorised private companies who are dual nationals or third country nationals. 27 The exemption provision is not limited to dual nationals or third country nationals of prohibited countries (though sole third country nationals of certain countries such as Australia are automatically exempted).
[101] I conclude that Cobham was bound by ITAR rules and at material commercial risk should it be in breach.
Were the decisions made by Cobham to assess Mr Chivonivoni as having substantive contacts and not exempt under ITAR 126.18 reasonable?
[102] The answer to this question is no.
[103] ITAR rules provide that “bona fide regular employees directly employed” 28 by Cobham are permitted access to CDAs if they have either a security clearance approved by the Australian government or have been subject to screening for substantive contacts with prohibited countries.
[104] The obligation on a private employer to conduct a screening process is set out in ITAR 126.18(b). There must be:
“effective procedures to prevent diversion to destinations, entities or for purposes other than those authorised by the applicable export licence…”
[105] The nature of the screening process is outlined in ITAR 126.18(c):
“(2) The end-user or consignee to have in place a process to screen its employees and to have executed a Non-Disclosure Agreement that provides assurances that the employee will not transfer any defense articles to persons or entities unless specifically authorized by the consignee or end-user. The end-user or consignee must screen its employees for substantive contacts with restricted or prohibited countries listed in §126.1. Substantive contacts include regular travel to such countries, recent or continuing contact with agents, brokers, and nationals of such countries, continued demonstrated allegiance to such countries, maintenance of business relationships with persons from such countries, maintenance of a residence in such countries, receiving salary or other continuing monetary compensation from such countries, or acts otherwise indicating a risk of diversion. Although nationality does not, in and of itself, prohibit access to defense articles, an employee who has substantive contacts with persons from countries listed in §126.1(d)(1) shall be presumed to raise a risk of diversion, unless DDTC 29 determines otherwise. End-users and consignees must maintain a technology security/clearance plan that includes procedures for screening employees for such substantive contacts and maintain records of such screening for five years. The technology security/clearance plan and screening records shall be made available to DDTC or its agents for civil and criminal law enforcement purposes upon request.”
(emphasis added)
[106] Australian defence authorities have published guidance on the operation and application of ITAR 126.18. The guidance material was known to Cobham. Relevantly it provides: 30
“To qualify for the section 126.18(c)(2) ITAR exemption, the Australian employer is responsible for screening their relevant bona fide regular employee(s) (see ITAR 120.39 for definition of regular employee). The purpose of the screening is to identify and prevent the risk of dual or third country nationals diverting US export controlled technology and goods to non-authorised third parties or destinations. The countries of most concern are listed in ITAR s126.1.
The screening process and employee standard required by an employer is discretionary. The employer must use their own judgement as to whether a substantive risk of diversion exists. Remembering that both the employer and employee are responsible for any US export control violations, it is in the employer's best interests to give the screening process careful attention.
The screening process relies on employees voluntarily agreeing to be screened. Unless they volunteer, screening should not occur and an alternative authorisation will need to be sought. Prior to implementing any process, an employer should seek advice from their human resource and/or legal department. All screening processes must be recorded in detail, maintained in accordance with the Privacy Act 1988 (Cth) and regular reassessments should occur.
Employers can consider the following measures as part of the screening process:
• A risk assessment (International Standard ISO 31000:2009 is a recognised assessment method);
• A police check;
• Character references;
• A questionnaire regarding:
a. Personal contacts with foreign government officials, agents or proxies;
b. Business contacts with foreign government officials, agents or proxies;
c. Family contacts with foreign government officials, agents or proxies;
d. Assets, businesses, residences in foreign country;
e. Contacts with individuals posing a risk of diversion;
f. Frequent travel to a foreign country; and
g. Maintaining assets in a foreign country.
• Inquiries into connections to individuals illegally dealing in arms, working for front companies or part of criminal or terrorist organisations. By way of example, the US Government maintains a consolidated list of entities that are sanctioned or otherwise subject to special scrutiny before accessing US defence technology.
It must be noted that mere contact with foreign individuals or organisations does not automatically raise a concern, but it is the nature and substance of the contact that is determinative of the risk of diversion.
Where a potential risk is identified the employer needs to consider its options regarding the access of the relevant employee. These may include:
• the adoption of a management plan to reduce the risks of diversion;
• not allowing the employee access to the US controlled technology; or
• seeking US Department of State Assistance in devising a strategy.”
(emphasis added)
[107] The guidance continues: 31
“To be clear, mere contact with individuals or organisations from these countries does not automatically raise a concern, but rather the nature and substance of the contact are determinative of the risk of diversion. If the substance of the relationship poses a risk of diversion then the Australian entity needs to consider its options.
….
No single indicator should be determinative; instead, a holistic approach should be taken when making an assessment.”
(emphasis added)
[108] Mr Chivonivoni was, at the time of dismissal, a dual citizen of Australia and Zimbabwe. He did not hold an Australian government issued security clearance for classified information (few Cobham employees did).
[109] The screening process conducted by Cobham concerning Mr Chivonivoni elicited limited information only. Cobham knew (as a consequence of Mr Chivonivoni’s earlier disclosure when employed) that he was a Zimbabwean citizen who had become a dual Zimbabwean / Australian citizen. At the screening process interview in September 2019 Mr Kemp posed six pre-prepared questions. The questions and answers were as follows: 32
“QUESTION 1: DO YOU CURRENTLY HAVE, OR HAVE YOU HAD, ANY CONTACT WITH FOREIGN GOVERNMENT OFFICIALS, AGENTS OR PROXIES?
ANSWER: I have relatives who may or may not be working in various government dept including teachers and nurses as these are all government depts also having left the country back in 2012 I do not know where they work now so I am not certain.
QUESTION 2: DO ANY FAMILY MEMBERS HAVE CONTACT WITH FOREIGN GOVERNMENT OFFICIALS, AGENTS OR PROXIES?
ANSWER: I know, through my father, that I have an uncle in the Ministry of Education but that was back in 2010 and I do not know if he still works there.
QUESTION 3: DO YOU HAVE ANY CONTACT WITH ANY INDIVIDUALS FROM COUNTRIES FOR WHICH UN OR US SANCTIONS APPLY?
ANSWER: My parents and siblings are still in Zimbabwe and we occasionally talk.
QUESTION 4: DO YOU HAVE ANY SIGNIFICANT ASSETS OR PROPERTY OR BUSINESSES IN A FOREIGN COUNTRY?
ANSWER: I have a flat in South Africa.
QUESTION 5: DO YOU MAINTAIN ANY ASSETS, BUSINESSES OR PROPERTY IN A FOREIGN COUNTRY ON BEHALF OF ANOTHER PERSON OR ENTITY?
ANSWER: No.
QUESTION 6: DO YOU FREQUENTLY TRAVEL TO A FOREIGN COUNTRY?
ANSWER: I have never been back to Zimbabwe since arriving in Australia April 2012.”
[110] Mr Kemp commenced the interview having made an initial assessment of Mr Chivonivoni as “high risk” on account of Mr Chivonivoni’s Zimbabwean citizenship. He appears to have done so because ITAR 126.18 contains the following: 33
“Although nationality does not, in and of itself, prohibit access to defense articles, an employee who has substantive contacts with persons from countries listed in §126.1(d)(1) shall be presumed to raise a risk of diversion, unless DDTC 34 determines otherwise.
[111] As DDTC had not determined otherwise, Mr Kemp considered that the presumption applied.
[112] However, in its own terms, the presumption only applies to an employee “who has substantive contacts”. An objectively formed conclusion that substantive contacts exist is a precondition to the operation of the presumption.
[113] On the evidence before me, there was no reasonable basis for Cobham to commence the screening process on the assumption that Mr Chivonivoni had substantive contacts with Zimbabwe. At that point, Cobham knew little more than that Mr Chivonivoni was a dual Australian / Zimbabwean citizen and that Zimbabwe was a country proscribed by ITAR 126.1.
[114] The answers given by Mr Chivonivoni during the interview did not alter Mr Kemp’s initial (high risk) assessment. Mr Kemp concluded that Mr Chivonivoni had “extensive” 35 contact with persons from Zimbabwe.
[115] Was this a reasonable conclusion?
[116] I think not.
[117] Mr Chivonivoni’s answers to Mr Kemp, whether taken individually or collectively, provided no basis for such a conclusion. Those answers were repeated in sworn evidence before the Commission. His evidence was plausible and I accept that evidence as a basis for findings of fact. Beyond those answers, nothing more on contacts emerged than what Cobham had ascertained or in evidence in these proceedings.
[118] The fact that Mr Chivonivoni has parents and siblings living in Zimbabwe and that they “occasionally talk” is unremarkable. It discloses nothing more than a familial connection. Mr Kemp noted in his interview spreadsheet that Mr Chivonivoni’s “wife is Zimbabwean 36. This notation appears alongside Mr Kemp’s reference to “extensive” contacts. Mr Chivonivoni’s wife lives with their children in Adelaide, Australia. His marital connection to a Zimbabwean citizen is unremarkable.
[119] Nor is there objective evidence to suggest that Mr Chivonivoni has other substantive connections with the state of Zimbabwe. He disclosed to Mr Kemp and the Commission that his sister works in Zimbabwe as a primary school teacher, has an uncle (who he had never met) with an historical connection to that country’s education department (with his current status unknown to Mr Chivonivoni) and another relative (an aunt) had previously worked in Zimbabwe as a nurse (also with current status unknown to Mr Chivonivoni). Without more, such disclosures are unremarkable.
[120] Mr Chivonivoni disclosed that he owns a flat in South Africa (not Zimbabwe). His evidence before the Commission was that he sold all assets in Zimbabwe upon leaving the country and currently holds none. He disclosed that he has not travelled back to Zimbabwe since leaving the African continent in 2012.
[121] None of these disclosures go any distance to establishing “substantive” contacts. The evidence is that Mr Chivonivoni’s personal contacts with government officials or employees were and are almost nil, his business contacts were and are nil, his family contacts were and are minimal, he holds no assets in the country and has not travelled back to Zimbabwe for any purpose since leaving Africa eight years ago.
[122] Mr Kemp formed a different view. The evidence suggests he did so because the mere existence of a contact with Zimbabwe and not the nature of that contact was his operative consideration:
“The questions were designed to substantiate whether there was any contact not to drill down into the absolute specifics of that; so the mere existence of contact or the mere existence of family contacts that was enough for the screening procedure to say there is some additional considerations that need to be made on a person’s applicability to access controlled technology” 37; and
“The screening process is designed to look at ‘is there contact’ not necessarily the nature or the depth of that contact…that’s how I understand the legislation to operate” 38;
“Substantive contact exists where contacts are present…the fact that a contact exists is enough to add to the weight whether the substantive contact condition under 126.18 is met or not met.” 39
[123] The assessment made also involved assumptions:
“What led you to conclude the contact was “extensive”?...I don’t recall the specific interview; my understanding was that Mr Chivonivoni would have said that he had lots of contact or words to that effect” 40; and
“In my experience individuals that remain a citizen of a particular country rarely don’t just in and of itself have citizenship of that country; they will have family members that still reside in that country, they may have property in that country, they may have travelled back regularly to that country…the screening is to look at the totality of that individual…in my experience if someone is a citizen…the contact would not only reside in question three.” 41
[124] A fairer assessment of whether “substantive contacts” existed required the notion of “substantive” to be assessed qualitatively, not just quantitively, and absent assumptions.
[125] There being no objective basis on which Cobham concluded that substantive contacts existed within the meaning of ITAR 126.18, a precondition to the operation of the presumption did not exist. The presumption of a risk of diversion could not operate in those circumstances.
[126] In any event, I consider the presumption (had it applied) to be rebuttable for the following reasons:
• the ordinary meaning of the word “presumption” is a proposition that assumes a fact or position. A presumption is not necessarily an immutable fact. Notwithstanding its substantial detail, ITAR rules do not expressly indicate whether the presumption is immutable or rebuttable;
• the words in the relevant sentence of ITAR 126.18(2) “nationality does not, in and of itself, prohibit access to defense articles” must be given some effect. Those words are not consistent with applying a non-rebuttable presumption on nationality grounds;
• if ITAR 126.18 could not apply and ITAR 126.1 acted as an absolute bar to a private employer employing a Zimbabwean dual citizen, there would be no purpose in ITAR rules requiring a screening process of an employee who is a dual national of an ITAR 126.1 country. There would have been no purpose in Cobham submitting Mr Chivonivoni to that process; and
• the Australian guidance material for the establishment of the screening process emphasises the role of discretion and judgement by Australian entities by expressly providing that “no single indicator should be determinative” 42.
[127] Further, applying ITAR 126.18 as a non-rebuttable presumption risks unfairness should an employee be dismissed by mere fact of citizenship of an ITAR 126.1 proscribed country. Fairness requires the presumption to be rebuttable in the sense of it being capable of being set aside by contrary evidence emerging from a screening process.
[128] It is also relevant to note that under ITAR rules a screening process is not simply screening for contacts per se but for substantive contacts relevant to “the risk of diversion”. 43 Diversion is described as the “transfer any defense articles to persons or entities unless specifically authorized”.44 Having determined that substantive contacts with a prohibited country existed Cobham consequentially assessed Mr Chivonivoni as presenting a “high risk” of diversion.
[129] There was no objective basis for doing so even with the starting presumption of high risk. Maintaining a high risk assessment was without foundation.
[130] The substantive contacts and high risk assessment made by Mr Kemp was confirmed by Cobham’s escalation committee. The escalation committee received no additional material on which it formed that view. For the same reason Mr Kemp’s assessment was not reasonably open, so also the view of the escalation committee.
[131] Cobham’s assessment was in error because both Mr Foulkes and Mr Kemp were operating on the premise that Mr Chivonivoni’s (dual) Zimbabwean citizenship left little scope for him to secure an exemption under ITAR 126.18 to work on aircraft fitted with CDAs:
“DEPUTY PRESIDENT: What realistic chance did you consider that a citizen of Zimbabwe albeit a dual citizen would have to be able to pass the screening process?
MR KEMP: Very low…on my understanding of ITAR…citizenship of a 126.1 country is certainly a factor that needs to be seriously considered…” 45
DEPUTY PRESIDENT: If an employee from a 126.1 country has a very low chance of being successfully screened, what is the point of screening them at all?
MR KEMP: The legislation requires you to; if they are a dual national they are required to be screened. 46
“DEPUTY PRESIDENT: Do I understand you to be saying that even if Mr Chivonivoni…was assessed by your screening process as low risk, Cobham was operating on the belief that the mere fact that he was still a Zimbabwean citizen would have precluded Cobham from being capable of complying with his ITAR obligations?
MR FOULKES: Yes…” 47
“DEPUTY PRESIDENT: So was the fact that the country here was Zimbabwe, did that on the advice you received from Mr Perrone carry adverse weighting as far as contacts with government through family members? Is that what I understand you to be saying?
MR FOULKES: There was a suggestion that it would carry greater weight than some other countries but probably less than a country such as China...my recollection of the conversation with Mr Perrone was that Zimbabwe certainly wasn’t at the lower end of the spectrum of the prohibited countries and so therefore that needed to be taken into consideration in the rationalisation by all of us but again the strength of the allegiance was the biggest factor.” 48
[132] Each formed this view after discussions with Mr Perrone. 49 Mr Kemp was also applying an approach to the ITAR rules consistent with experience drawn from his previous employment50 (though unlike Mr Foulkes he did not consider that US authorities attached different weightings to 126.1 proscribed countries).
[133] Mr Kemp and Mr Foulkes were acting in good faith. They formed a view, after taking advice from Mr Perrone, that United States authorities may interpret ITAR 126.18 in a strict manner:
“Some of these aspects are quite subjective in an area of US law which is at best difficult because it is often unclear. We made interpretation calls to the best of our ability after taking advice from Cobham’s expert on export controls.” 51
[134] Whilst I give weight to this consideration, and the predicament it placed Australian managers, the Commission’s role is to determine this matter on an objective basis. I have no evidence of what view United States authorities may or may not have formed in these circumstances. I have before me the ITAR rules and their terms; the Australian guidance material; and the facts as presented by Mr Chivonivoni to Cobham and the Commission, and Cobham’s evidence. It is on that objective material I determine this matter, not the subjective belief, howsoever genuinely held, of Australian managers.
[135] The view reached by Cobham was not reasonably based. Although acting in good faith, Cobham took an excessively risk-averse approach to protecting its commercial and contractual interests: 52
“We looked at this from the potential implications to individuals and the business if we allowed the access to ITAR controlled articles to persons who should not have access; and those consequences involve significant fines to the business and potentially individuals, potential jail times to individuals and potential for the US Department of State to essentially stop Cobham globally having access which is potentially business ending…so we had that context in our minds.”
[136] As a result, Cobham misapplied ITAR 126.18 concluding wrongly that Mr Chivonivoni had substantive contacts that presented a high risk of diversion. Cobham’s approach was overzealous and its judgment clouded by a desire not to be put to proof should Australian or United States authorities call upon it to discharge the onus of explaining why it was employing a Zimbabwean citizen with access to CDAs:
“if we were to be audited by the US Department of State we would have a reverse onus of proof…we would have to prove that people…who presented in the US Department of State’s eyes as being of high risk i.e. someone on the prohibited list didn’t have access to ITAR to which would seemingly be impossible ” 53
“DEPUTY PRESIDENT: Do I understand your evidence to be then that Cobham adopted the interpretation of the ITAR rule you identified because it best protected Cobham from potential breach even if the rules weren’t so strictly interpreted by US authorities. Is that right?
MR FOULKES: Yes your Honour.” 54
[137] Had Cobham adopted a clearer-eyed view of whether the contacts were “substantive” and presented a “high” risk it would have remained open to protect its legitimate interests by requiring Mr Chivonivoni to enter into a non-disclosure agreement under clauses 129.18(2) and (4) of the ITAR rules. It did not do so.
[138] A reasonable application of ITAR 126.18 would have been for Mr Chivonivoni to have been exempt on the condition that he entered such an agreement.
Were the decisions that no work-arounds or redeployment options existed reasonable decisions?
[139] The answer to this question is yes.
[140] Mr Cassidy’s evidence is that he conscientiously examined both work-around and redeployment options. I accept this evidence without reservation. Mr Cassidy operated on the premise that he did not wish to lose one of his most competent structural engineers.
[141] His view that work-around options were not viable was soundly based. Mr Chivonivoni had three modes of access to CDAs – access via the storeroom, access via software plans of aircraft structures and access via physical inspection of aircraft.
[142] Mr Cassidy concluded that whilst some restriction could be placed on access to the storeroom, a similar filter could not restrict access to software plans of aircraft structures (or downloaded hard copies) and that, in practice, physical separation of CDA-fitted aircraft in the hangar from other aircraft was neither practical nor consistent with the range of duties required of a full time engineer.
[143] I am satisfied that each of these conclusions was soundly based and that the overall decision to reject work-arounds as a viable option was made with appropriate care and judgment.
[144] I am also satisfied that Cobham did not have, at the relevant time, a role for a full time structural engineer on non-CDA fitted aircraft available in South Australia or elsewhere in Australia. Mr Cassidy explored this possibility and despite this being a theoretical possibility no such position existed.
[145] In those circumstances, the decisions that no work-arounds or redeployment options existed were reasonably made.
Conclusion on valid reason
[146] I conclude that whilst the first and third elements of a valid reason existed (the operation of ITAR rules of material consequence and that work-arounds and redeployment options did not exist) the second element to establish a valid reason is not made out.
[147] That element goes to the heart of this matter.
[148] Cobham’s decision that Mr Chivonivoni had substantive contacts with an ITAR 126.1 proscribed country (Zimbabwe) was not soundly based.
[149] Nor was Cobham’s consequential decision that Mr Chivonivoni presented a high risk of diversion of information concerning CDAs to an ITAR 126.1 proscribed country (Zimbabwe) or persons acting on behalf of that State.
[150] That being so, Cobham wrongly concluded that Mr Chivonivoni did not meet the criteria for exemption in ITAR 126.18. He met the criteria and was entitled to be exempt from the prohibition on access to CDAs.
[151] As Mr Chivonivoni did not have substantive contacts and was not a material risk of disclosing proscribed information, his continued employment as a structural engineer on aircraft containing CDAs presented no proper basis on which Cobham could conclude that dismissal was a necessary incident of meeting its contractual obligations and protecting its commercial interests.
[152] There was no well-founded reason for dismissal.
[153] As there was no well-founded reason for dismissal, there was no valid reason for dismissal.
[154] The absence of a valid reason weighs strongly in favour of a finding of an unfair dismissal. 55
Notification of reason for dismissal
[155] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment,56 and in plain and clear terms.57
[156] Cobham’s dismissal letter of 27 February 2020 was administrative in nature. It did not mention the reason for dismissal nor did the earlier dismissal email of 26 February 2020.
[157] Nonetheless, although it is not clear who made the decision to dismiss, the reason for dismissal was orally communicated at meetings on 20 and 26 February 2020.
[158] The absence of clarity as to who made the decision to dismiss is somewhat perplexing. None of Mr Foulkes, Mr Kemp, Mr Cassidy or Ms Newell said that they made the decision or were directly involved in making the decision. Mr Kemp’s evidence was that he disengaged from the process other than in an advisory role following the work of the escalation committee and the meeting with operational managers in January 2020. 58 Whilst this may have been so, I accept the evidence of Ms Newell59 and Mr Cassidy60 that Mr Kemp was present at a meeting with them between 21 and 26 February 2020. It was in this period a decision to dismiss was made. In all probability it was a decision by that group sanctioned by the “legal and commercial” division (of which Mr Foulkes and Mr Kemp formed part)61 which flowed from Cobham’s earlier in-principle view reached before 7 February 2020 that, in the absence of renunciation, dismissal was ‘likely’62.
[159] A lack of clarity as to who or what group of persons made a decision to dismiss makes the Commission’s task of assessing substantive and procedural fairness more difficult. Given that the Commission is not (other than in the case of a small business) assessing whether a decision-maker had reasonable grounds for the views they formed but rather conducting an objective assessment of fairness, an evidentiary lacuna of this type is unhelpful but not determinative. However, I repeat observations I made in Carmody v ISS integrated Services: 63
“One aspect of the employer’s decision-making process I have assessed for potential unfairness is the opaqueness associated with who actually made the decision to dismiss…one can readily conceive of circumstances where a failure to disclose who made a decision to dismiss (either directly, or by accepting an internal recommendation) could constitute a denial of procedural fairness. For example, relevant ‘history’ may exist between the decision-maker and the dismissed (such as prior workplace conflict) that compromises fair and independent judgment of the facts or the appropriate sanction.
Whilst for an employer a decision to dismiss is often a business decision based on conduct, performance, or operational requirements, for an employee it is an intensely personal matter. Being dismissed by unknown persons in an opaque system of managerial hierarchy can add to a sense of frustration. It can leave questions unanswered, and may contribute to proceedings such as these being filed in search for answers. There are good reasons for medium and larger businesses requiring final decisions to dismiss to be made or authorised ‘up the line’; for example, this can add checks and balances that counter the impulsiveness of some managers. However, a failure of transparency risks unfairness.”
[160] In this matter I am satisfied that at the meetings on 20 and 26 February 2020 (in the context of the earlier meeting of 7 February 2020 and letter of same date) Mr Chivonivoni was informed of the intended reason for dismissal, and that this was communicated as the reason for dismissal once he declined to renounce his Zimbabwean citizenship. As the letter of 7 February 2020 put it: 64
“Due to these regulations and as a citizen of Zimbabwe, it looks unlikely you will be able to undertake your role in Engineering at Cobham and be complaint under ITAR regulations.”
[161] Whilst Mr Chivonivoni did not consider this reason justified he was not misled about Cobham’s view of its predicament and its intentions.
[162] This consideration weighs somewhat against a finding of unfair dismissal.
Opportunity to respond
[163] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate the employee’s employment.65
[164] The opportunity to respond is an element of procedural fairness but does not require formality and this consideration is to be applied in a common sense way to ensure the employee is treated fairly.66 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.67
[165] Mr Chivonivoni was provided an opportunity to respond. Whilst not consulted at the escalation committee stage of the screening process (resulting in a four month gap without feedback after the initial interview with Mr Kemp in September 2019) he was consulted on three occasions in February 2020. Whilst the 26 February 2020 meeting was brief and proceeded on the basis that a decision to dismiss had already been made should non-renunciation be confirmed, the discussions between Mr Chivonivoni and Cobham on 7 and 20 February 2020 were meaningful. Whilst Cobham had by 7 February 2020 formed a view that alternate options were not viable and, absent citizenship renunciation, dismissal was “likely” I am satisfied that Mr Cassidy and Ms Newell were sufficiently open-minded to consider his feedback. Mr Cassidy in particular did not wish to lose a high quality engineer.
[166] Although Mr Chivonivoni was understandably worried by the turn of events in February 2020, I am satisfied that dismissal as a consequence or likely consequence of non-renunciation was made known to him with a sufficient degree of clarity during the 7 and 20 February 2020 meetings. 68
[167] The consultation undertaken was somewhat peculiarly expressed by Cobham as being required by clause 1.8 of the enterprise agreement governing Mr Chivonivoni’s employment. Whilst Cobham was not introducing major change that would trigger an obligation from that source, the end goal (consultation) is a requirement of procedural fairness; one that Cobham met.
[168] Nor did Cobham rush the consultation. It extended time for a follow-up meeting after 7 February 2020 and again on 20 February gave Mr Chivonivoni a further short period to confirm his stated desire not to renounce.
[169] Overall, this consideration weighs somewhat against a finding of unfair dismissal.
Opportunity for support person
[170] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
[171] Cobham did not refuse Mr Chivonivoni a support person, let alone unreasonably so. Cobham encouraged participation at the February 2020 meetings with a support person. Mr Chivonivoni did so (on 7 February 2020 via a supervisor).
[172] This is a neutral consideration.
Warnings concerning performance
[173] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant.
Size of enterprise and human resource capability
[174] Cobham is a sizeable organisation with national and global operations and with dedicated human resource specialists and expertise.
[175] Neither the size of Cobham nor its human resource capability constrained its ability to provide substantive and procedural fairness to employees on termination matters. Australian managers sought counsel from internal human resource specialists and from its overseas expert on ITAR, as needed.
[176] This is a neutral consideration.
Other matters
Harsh – Employed for more than five years in the vicinity of CDA-fitted Cobham aircraft without ITAR concerns
[177] Mr Chivonivoni submits that his dismissal was harsh because he was employed (firstly by Aerobond and then by Cobham) for more than five years working on Cobham aircraft fitted with CDAs without incident and without ITAR compliance being an issue.
[178] There is force in this submission particularly as it relates to the period after November 2018 when Mr Chivonivoni became a direct employee of Cobham.
[179] Mr Chivonivoni disclosed to Cobham his Zimbabwean citizenship and, at the time he became a direct employee, his dual citizenship. He had secured all security clearances including completing ITAR paperwork provided by his employers. 69 The ITAR rules were binding obligations on Cobham, not on, him. It was the responsibility of Cobham to apply those rules to his circumstances, not his.
[180] That Cobham did not do so until the second half of 2019 was a product of its internal systems, not a failure by its employee. Mr Foulkes and Mr Kemp had clearly become concerned at inadequate enforcement of ITAR rules amongst its workforce and acted responsibly to rectify that shortcoming. Their attention to the issue does not, however, displace the fact that Mr Chivonivoni had, by then, worked for nearly five years on Cobham aircraft and been in the vicinity of CDAs throughout that time. Across the previous year he had done so as its direct employee after being actively recruited by the company. He had without incident passed Cobham’s then interview and security processes (which included completing ITAR-relevant paperwork).
[181] Nor does the 2019 compliance programme displace the fact that ITAR rules had not changed in any material way over the period of Mr Chivonivoni’s two engagements (Aerobond and Cobham) and the fact that Zimbabwe had, since about 2008, been proscribed under ITAR 126.1. If the ITAR rules were to have such serious consequences for Mr Chivonivoni’s employability, that consequence was applicable from the outset of his employment.
[182] Also relevant is the fact that the screening process had not revealed evidence that Mr Chivonivoni had disclosed any information about CDAs during the course of the previous five years. Whilst an ITAR assessment under 126.18 is about risk and not actuality, the absence of evidence of disclosure in circumstances where a private employer had this lived experience of Mr Chivonivoni’s conduct, was relevant to (and inconsistent with) its assessment of high risk, and thus relevant to the issue of harshness.
[183] Also relevant to harshness is the fact that there was nothing done by Mr Chivonivoni during his more than five years of work on Cobham aircraft that contributed to his dismissal. All that could reasonably have been expected of Mr Chivonivoni was honesty and competent work – and that was provided. He was honest to Cobham when employed in November 2018 and was transparent to Cobham when interviewed by Mr Kemp in September 2019. His disclosures were as unambiguous as they were unremarkable.
[184] In these circumstances Mr Chivonivoni had reason to feel misled. As he said in his final communication with Cobham on 21 February 2020: 70
“I still feel if the company had done due diligence in Nov 2018 when I was recruited for this role I would not be in the situation I find myself now.”
[185] That Mr Chivonivoni was employed for more than five years working on Cobham aircraft fitted with CDAs without ITAR concerns being raised, and with no material change in either his, Cobham’s or ITAR circumstances at the time of dismissal, weighs strongly in favour of a finding that the dismissal was harsh.
Harsh – Redeployment efforts not reasonable
[186] Mr Chivonivoni submits that Cobham failed to make reasonable efforts to re-deploy him to comparable and equally remunerative work.
[187] I do not accept this submission. I have found that Mr Cassidy made reasonable efforts not just to assess whether work-arounds were viable, but also whether other (non-CDA exposed) work for a structural engineer was available in South Australia or interstate.
Harsh – Personal and financial impacts
[188] Mr Chivonivoni submits that the dismissal was harsh because of its impact personally and financially.
[189] There is no doubt that an employee wrongly assessed as a high risk of disclosing defence-sensitive information under the terms of an arrangement between commercial entities and nation states would consider their reputation adversely impacted. It is also reasonable to apprehend that this may impact future employability and put Mr Chivonivoni, at the very least to the discomfort of having to explain to prospective employers the circumstances by which this assessment was made, and why.
[190] Mr Chivonivoni was not dismissed on conduct or performance grounds. Cobham openly accepted that he was amongst its best aircraft engineers. Given that, coupled with the lack of an objective basis on which to conclude that he presented a high risk of diversion risk by virtue of substantive contacts, the potential stain on Mr Chivonivoni’s reputation is a material risk and a harsh consequence of a dismissal for no valid reason.
[191] That harsh consequence, which goes beyond the more orthodox impact on a tradesman’s professional standing when dismissed for cause, weighs somewhat in favour of a finding of unfair dismissal.
[192] However, this decision has the potential to ameliorate that consequence.
[193] The financial impact on Mr Chivonivoni and his family consequent on being dismissed is real. He is an industrious person (evident by his willingness to work in Cairns in order to secure a post-dismissal job). In light of COVID-19 impacts on the aviation industry, he has not found ongoing alternate work.
[194] However, these financial consequences, albeit exacerbated by the impacts of COVID-19, are not unique; they are currently shared by workers in the aviation sector and dismissed employees generally. They do not transform this dismissal into one that is harsh simply by virtue of those realities. 71
Conclusion
[195] Each assessment of whether a dismissal is unfair must be considered on its merits. In arriving at an overall assessment, the statutory considerations must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.72 The Commission will not stand in the shoes of an employer and assess what the Commission would have done had it been in the position of the employer73 but has a statutory obligation to objectively determine fairness given the events that occurred.
[196] I have found there to be no valid reason for dismissal. Whilst unfair dismissal matters are multifactorial74, I adopt the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo:75
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair.”
[197] In this matter that observation has telling force. Absent a valid reason associated with the application of ITAR rules to Mr Chivonivoni’s circumstances there is nothing more that Cobham points to that can sustain the dismissal of a competent employee.
[198] My findings of procedural fairness in the decision-making process (notwithstanding a lack of clarity as to who made the decision) weigh somewhat against a finding of unfairness but do not nearly offset the absence of a valid reason.
[199] Whilst not expressly directed by Cobham to renounce his Zimbabwean citizenship, the effect of its (unreasonable) application of the ITAR rules, coupled with the employer’s (reasonable) view that there were no viable work-arounds or redeployment options, left Mr Chivonivoni in practice with a ‘renounce my citizenship, resign or be sacked’ option. Mr Cassidy was clear in his evidence that this was the choice ultimately presented to Mr Chivonivoni. 76 Ms Newell, in her contemporaneous handwritten notes of the 20 February 2020 meeting put it this way:77
“Company stance that if renounce Zimbabwean citizenship Janios would be safe from this point and his employment wouldn’t be in jeopardy.”
[200] In so doing, the burden of decision making was unfairly placed on Mr Chivonivoni. He was a citizen of Zimbabwe by birth. His citizenship was his birthright. It is no small matter for an employer to effectively put an employee in a position of choosing between their birth identity and their job. In some circumstances this may necessarily flow from the application of the ITAR rules (for example if an employee was captured by ITAR 126.1 and not a dual citizen such that ITAR 126.18 did not apply). That was not Mr Chivonivoni’s circumstance. He was a dual citizen. It is axiomatic that private employers need to exercise care and sensitivity when applying ITAR rules so as to minimise, wherever possible, circumstances in which their employees are presented with such a personal and invidious choice.
[201] That level of care and sensitivity was not afforded to Mr Chivonivoni. The decision to assess him as having substantive contacts and consequentially presenting a high risk of diversion and thus unable to access the exemption in ITAR 126.18 was unfair.
[202] Cobham place weight on the SACAT decision of November 2019 and in particular that the company was (via the SACAT exemption) able to discriminate against employees in South Australia on the ground of nationality. I have noted the findings of SACAT and have regard to the fact that Cobham was so exempted at the time it dismissed Mr Chivonivoni. However, there are three significant limitations on the utility of that decision in determining this matter. Firstly, SACAT was dealing with a different question – whether grounds for a general exemption from unlawful conduct under a State discrimination law was made out. It was not dealing with an unfair dismissal matter or the circumstance of any individual employee. Secondly, the exemption granted was not unconditional; the exemption only operates “where necessary” and where “all reasonable steps” to avoid discrimination exist. Thirdly, that an employer can lawfully dismiss is no answer to an unfair dismissal claim. These proceedings concern fairness, not lawfulness.
[203] Applying the principle of a ‘fair go all round’, it would have been reasonable for Cobham to exempt Mr Chivonivoni under ITAR 126.18 and not dismiss him. Had it done so, it would have still acted within the terms of SACAT’s order.
[204] Whilst recognising the predicament in which Cobham found itself, weighing the absence of a valid reason against other relevant considerations in section 387 of the FW Act, I conclude that Mr Chivonivoni’s dismissal was harsh, unjust or unreasonable.
[205] Mr Chivonivoni’s alternate submission was that, even if a valid reason based on ITAR rules existed, his dismissal was unfair because Cobham failed to apply those rules during the more than five years during which Cobham allowed him to work on Cobham aircraft fitted with CDAs.
[206] I need not determine this issue in light of my earlier conclusion. Suffice to say it has compelling force. Whilst an employer is entitled to start afresh enforcing rules or policies that either existed (but were not actively enforced) or did not exist but are subsequently created (establishing zero tolerance approaches to drugs or alcohol in the workplace are but one example), doing so would (having regard to fairness principles) require clear notification to employees and plain evidence of established breaches before conduct in breach could justify dismissal.
Remedy
[207] Having found Mr Chivonivoni’s dismissal was harsh, unjust or unreasonable I now turn to the issue of remedy.
[208] In determining remedy, I am required to apply the provisions of Division 4 of Part 3-2 of the FW Act. Section 390 provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The Commission may make the order only if the person has made an application under section 394.
(3) The Commission must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[209] In this matter, the requirements of subsections (1) and (2) have been met.
[210] A decision to order a remedy is discretionary. 78 Subsections (1) and (2) provide that the Commission “may” make an order. The FW Act does not require the Commission to do so.
[211] Having regard to my findings, and in particular the conclusion that Mr Chivonivoni was not dismissed for a valid reason, I am well satisfied that I should exercise discretion in favour of granting a remedy.
[212] The only remedies required to be considered are reinstatement under section 391 of the FW Act or compensation under section 392. I am required by the provisions of section 390(3) to not order compensation unless I am “satisfied that reinstatement is inappropriate”. 79
[213] An order for reinstatement can be either an order appointing the person “to the position they were employed immediately before the dismissal” 80 or to “another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal”.81
[214] I am empowered to make orders for reinstatement against an associated entity of the employer in the circumstances provided by section 391(1A). In this matter, that issue does not arise.
[215] In making a reinstatement order, the Commission has discretion to make ancillary orders maintaining continuity of employment and restoring lost pay because of the dismissal. 82
Is reinstatement inappropriate?
[216] Mr Chivonivoni seeks an order for reinstatement to his former position accompanied by an order to restore lost pay and an order to maintain continuity of service.
[217] Cobham oppose an order for reinstatement. It says such an order would put it at risk of breaching ITAR rules and be unworkable given the circumstances leading up to dismissal.
[218] As a general proposition, it is inappropriate to order reinstatement if an employment relationship has irretrievably broken down and there are no reasonable prospects of it being restored. 83
[219] This proposition flows from the fact that trust and confidence is a necessary ingredient in an employment relationship. However, the mere fact that an employer asserts trust and confidence has been eroded to such an extent that the relationship is irretrievable is not, in itself, a sufficient ground on which to conclude that reinstatement is inappropriate. An objective consideration of the question needs to be made and the conclusion reached should be soundly and rationally based. 84
[220] Further, mere embarrassment or difficulty on the part of an employer is not necessarily indicative of a loss of trust or confidence sufficient to render the employment relationship irretrievable. 85
[221] I accept that in finding there was no valid reason for dismissal it does not automatically flow that reinstatement is the appropriate remedy. 86
[222] Considering all relevant factors, I am not satisfied that reinstatement is inappropriate. I am satisfied that it is both appropriate and necessary in the interests of fairness.
[223] Mr Chivonivoni’s employment record is unblemished. There was no element of his dismissal that concerned questionable performance or misconduct. I have found, indeed it was readily accepted by Mr Cassidy, that Mr Chivonivoni was a high quality employee and one Cobham did not wish to lose.
[224] Nor is there a basis to consider that trust is eroded or working relationships between Mr Chivonivoni and managers damaged in a material way or incapable of being effectively restored.
[225] If reinstated, there is no basis to conclude that Mr Chivonivoni would be other than diligent, capable and productive. He has a strong work ethic. He is ready, willing and able to work.
[226] The fact that the legislature contemplates reinstatement as a consequence of successful unfair dismissal litigation means that a period of absence between dismissal and a reinstatement order is not, in itself, a bar to such an order being made. 87 In any event, despite the complexity of this matter, in less than six months, proceedings have been heard, determined and orders made.
[227] Nor do I consider that a reinstatement order puts Cobham at risk of breaching its contractual obligations to comply with ITAR rules. I have found that dismissal on that basis was not for a valid reason. Should Cobham be put to proof as to why it is employing Mr Chivonivoni then this decision, objectively made, can be put before relevant authorities. For the reasons set out in this decision and on the currently known facts Mr Chivonivoni was entitled to be exempt under ITAR 126.18 and, by virtue of that exemption, continue in employment.
[228] As indicated, I consider it reasonable for Cobham, should it wish to protect its interests, to propose that a non-disclosure agreement under ITAR 126.18 be entered into by Mr Chivonivoni upon reinstatement. I consider that it would be reasonable for Mr Chivonivoni to agree to such a proposal should it be made.
[229] I will order that Mr Chivonivoni be reinstated to his former position within fourteen days of the date of this decision or at such other time as may be agreed between the parties.
[230] I consider it appropriate to make an order under section 391(2) to maintain the continuity of Mr Chivonivoni’s employment.
[231] An order to restore lost pay under section 391(3) of the FW Act does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and on terms the Commission considers appropriate. 88 Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.89
[232] I consider it appropriate to make an order under section 391(3) of the FW Act that Cobham pay Mr Chivonivoni for remuneration (including superannuation) lost or likely to have been lost because of his dismissal. This includes the period between this decision and the date reinstatement takes effect. There is no basis to order any deduction from this sum, other than:
• the sum of notice paid in lieu (four weeks); and
• the sum of Mr Chivonivoni’s direct earnings since dismissal (for example, the earnings for the period of work in March 2020 with a Cairns-based aviation company).
[233] Consistent with established authority 90, the status of any sums that have been received by Mr Chivonivoni since dismissal by way of unemployment benefits (Jobseeker) is a matter between Mr Chivonivoni and the Commonwealth. It is the payment and repayment rules of the Commonwealth, not an order of the Commission, which establishes whether such sums are to be repaid.
[234] The parties are directed to confer on the actual amount of lost remuneration (including superannuation) to be paid (being the sum of what Mr Chivonivoni would have earned less his actual earnings in other employment less the four weeks paid in lieu) and advise my chambers of this amount within fourteen days of the date of this decision.
[235] Having found that reinstatement is not inappropriate, I do not deal with the compensation provisions of the FW Act.
Conclusion
[236] Mr Chivonivoni’s application under section 394 of the FW Act is granted. Reinstatement to his former position within fourteen days (or such other time as agreed) with continuity of service and without loss of wages (but with the aforementioned deductions) is the appropriate remedy. I direct the parties confer within fourteen days of this decision on the date of reinstatement (in the absence of agreement, it is to be within fourteen days) and on the quantum of lost remuneration (including superannuation) consistent with this decision.
[237] An order 91 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Mr D Nyamirandu, with permission for Mr Chivonivoni
Mr K Luke, with permission for Cobham Aviation Services Engineering Pty Ltd
Hearing details:
2020
Adelaide (with video to Perth)
2, 3 and 17 July
Final written submissions:
Cobham Aviation Services Engineering Pty Ltd – 24 July 2020
Mr Chivonivoni – 31 July 2020
Printed by authority of the Commonwealth Government Printer
<PR720815>
1 Respondent’s name amended by leave 3 July 2020
2 Decision on representation 9 June 2020
3 Applicant’s Submissions Annexure 1 SACAT Decision 26 November 2019
4 Applicant’s Submissions Annexure 1 Order 26 November 2019
5 Mr Chivonivoni recalled the interview to have been held in about November 2019. Mr Kemp’s recall was not exact but he believed it was held in September 2019. Mr Kemp’s spreadsheet records the meeting was held on 5 September 2019: CK2 column 2
6 Mr Kemp (R3 paragraph 22) and Mr Foulkes (R1 paragraph 8) refer to an earlier meeting of senior managers in November 2019 following the escalation committee having met
7 MC1
8 JN2
9 JN1
10 The witness statements filed by Cobham make no reference to this meeting. Mr Kemp made no reference to this meeting in oral evidence. I accept the oral evidence of Ms Newell and Mr Cassidy that such a meeting occurred
11 JN5
12 A1 Exhibit B
13 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
14 Sydney Trains v Hilder[2020] FWCFB 1373 at [26]
15 Small Business Fair Dismissal Code: section 388(2) FW Act
16 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999
17 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468
18 Sydney Trains v Hilder[2020] FWCFB 1373 at [26] principle (6)
19 J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022 at [29]
20 Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [42]
21 Applicant’s Supplementary Closing Submission 31 July 2020 paragraphs 11 and 12
22 Respondent’s Supplementary Closing Submissions 24 July 2020 at paragraphs 4.15 and 4.16
23 Respondent’s Outline of Submissions 9 June 2020 paragraph 14
24 Applicant’s Submissions Annexure 1 SACAT Decision 26 November 2019 at 22
25 MFI R4
26 ITAR 125.1 and ITAR 124.8(5)
27 The exemption in ITAR 126.18 has operated since August 2011
28 ITAR 126.18(a)
29 DDTC is the Directorate of Defense Trade Controls (US)
30 MFI R13
31 MFI R14 page 3/8
32 A1 paragraph 12; R3 CK2
33 MFI R6 ITAR 126.18(2) mid paragraph
34 DDTC is the Directorate of Defense Trade Controls (US)
35 CK2 question 3 (column entry)
36 R3 CK2
37 Audio transcript 2 July 2020 1627pm
38 Audio transcript 2 July 2020 1630pm
39 Audio transcript 2 July 2020 1631pm
40 Audio transcript 2 July 2020 Mr Kemp 1649pm
41 Audio transcript 2 July 2020 Mr Kemp 1645pm
42 MFI R14 page 3/8
43 ITAR 126.18(2) sentences 3 and 4
44 ITAR 126.18(2) sentence 1
45 Audio transcript 2 July 2020 1643pm
46 Audio transcript 2 July 2020 1648pm
47 Audio transcript 2 July 2020 1447pm to 1448pm
48 Audio transcript 2 July 2020 1547pm
49 Audio transcript 2 July 2020 Mr Foulkes 1542 and 1551pm; Mr Kemp 1642
50 Audio transcript 2 July 2020 1641pm and 1643pm
51 Audio transcript 2 July 2020 Mr Foulkes 1455pm
52 Audio transcript 2 July 2020 Mr Foulkes 1452pm
53 Audio transcript 2 July 2020 Mr Foulkes 1453pm
54 Audio transcript 2 July 2020 1459pm
55 [2011] FWAFB 7498 at 20
56 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.
57 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
58 R3 paragraph 23; see also audio transcript 2 July 2020 1643pm
59 Audio transcript 3 July 2020 1157am – 1159am
60 Audio transcript 3 July 2020 1050am
61 Ms Newell audio transcript 3 July 2020 1159pm
62 JN2 Letter 7 February 2020 “it looks unlikely you will be able to undertake your role”
63 [2019] FWC 6070 at [172] to [174]
64 JN2
65 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75]
66 RMIT v Asher (2010) 194 IR 1 at 14-15
67 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
68 Mr Cassidy audio transcript 3 July 2020 1058am and 1102am
69 Audio transcript 2 July 2020 1055am; 1109am – 1112am
70 MC2
71 Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [48]
72 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
73 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
74 Jones v Brite Services[2013] FWC 4280 at [24]
75 [2011] FWAFB 7498 at 20
76 Audio transcript 3 July 2020 1059am
77 JN3 final paragraph
78 Nguyen v Vietnamese Community in Australia trading as Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]
79 Section 390(3)(a) FW Act
80 Section 391(1)(a) FW Act
81 Section 391(1)(b) FW Act
82 Sections 391(2) and (3) FW Act
83 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
84 Ibid at [191]
85 Nguyen v Vietnamese Community in Australia trading as Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [27]
86 Brambleby v Australian Postal Corporation T/A Australia Post [2014] FWCFB 9000 at [56]
87 Mercuri v Green Castle Renmark Pty Ltd t/as Renmark Country Club[2020] FWCFB 988 at [18]
88 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001) at [25]
89 For example, Regional Express Holdings Ltd v Richards[2010] FWAFB 8753 at [29]
90 Sprigg v Paul's Licensed Festival Supermarket, Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998); Ellawala v Australian Postal Corporation Print S5109, 17 April 2000; Steggels Ltd v West, Print S5876 (AIRCFB, Watson SDP, Williams SDP, Smith C, 11 May 2000)
91 PR721872
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