Joe Lavery v Cybermerc Pty Ltd - [2022] FWC 3196

[2022] FWC 3196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joe Lavery
v

Cybermerc Pty Ltd

(U2022/3702)

DEPUTY PRESIDENT DEAN

CANBERRA, 5 DECEMBER 2022

Application for an unfair dismissal remedy – removal from client site – whether valid reason.

This decision concerns an application made by Mr Joe Lavery pursuant to s.394 of the Fair Work Act 2009 alleging he was unfairly dismissed by Cybermerc Pty Ltd (Cybermerc or Respondent). Mr Lavery seeks reinstatement, continuity of service and lost remuneration arising from his dismissal.

Cybermerc is a cyber security business based in the ACT which provides cyber security, threat intelligence, ICT consulting and management services to its clients in both the private and public sectors.

Mr Lavery was employed by the Respondent in the role of Director of Education and Research under the terms of an employment contract dated 19 October 2019.

By letter of 9 March 2022 Cybermerc informed Mr Lavery that his employment was terminated and provided him with two weeks’ pay in lieu of notice. His dismissal followed his removal from a project contracted with the Australia Defence Force (Defence) of which he was designated as ‘Program Director’. The letter of termination was expressed as follows:

“Dear Joe
Termination of your employment with Cybermerc
I refer to the letter from your lawyers, dated 1 March 2022, that we received in response to our show cause letter and previous correspondence in relation to your employment with Cybermerc.
Your lawyers’ letter ignores the reality of the situation in relation to your employment in a number of aspects.
Firstly, it is patently incorrect to claim that you have not been provided with particulars in relation to concerns that have arisen in relation to your conduct and performance. We have provided you with all the details that have been provided to us by Defence. To demand to be provided with material that does not exist is foolish stubbornness.
As we advised you in our show cause letter, you have been provided with more than enough information in relation to the conduct and performance concerns being raised in order to be able to provide a response.
Secondly, your lawyers' letter fails to acknowledge or properly address the crucially important fact that Defence has directed us to remove you from the ADFCGP Project. Defence has also indicated that it will not permit us to have you involved in further work for Defence.
It is this second issue, that leaves us with little choice but to consider the termination of your employment, given that we are currently unable to identify another client with which we can place you.
Without such a placement, the continuation of your employment is not financially viable for our business. Accordingly, we asked if you could identify an alternative role. The response in your lawyers’ letter to simply allow you to return to work to ‘develop new projects for Cybermerc’ is not financially realistic or viable.
We have considered the contents of the letter from your lawyers…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] FWC 3196
Decision Date: 5 DECEMBER 2022

CaseChat Overview and Summary

This decision concerns an application made by Mr Joe Lavery pursuant to s.394 of the Fair Work Act 2009 alleging he was unfairly dismissed by Cybermerc Pty Ltd. Mr Lavery seeks reinstatement, continuity of service and lost remuneration arising from his dismissal. Cybermerc is a cyber security business based in the ACT which provides cyber security, threat intelligence, ICT consulting and management services to its clients in both the private and public sectors. Mr Lavery was employed by the Respondent in the role of Director of Education and Research under the terms of an employment contract dated 19 October 2019. His dismissal followed his removal from a project contracted with the Australia Defence Force of which he was designated as ‘Program Director’. The letter of termination was expressed as follows:“Termination of your employment with CybermercI refer to the letter from your lawyers, dated 1 March 2022, that we received in response to our show cause letter and previous correspondence in relation to your employment with Cybermerc.Your lawyers’ letter ignores the reality of the situation in a number of aspects.Firstly, it is patently incorrect to claim that you have not been provided with particulars in relation to concerns that have arisen in relation to your conduct and performance. We have provided you with all the details that have been provided to us by Defence. To demand to be provided with material that does not exist is foolish stubbornness.As we advised you in our show cause letter, you have been provided with more than enough information in relation to the conduct and performance concerns being raised in order to be able to provide a response.Secondly, your lawyers' letter fails to acknowledge or properly address the crucially important fact that Defence has directed us to remove you from the ADFCGP Project. Defence has also indicated that it will not permit us to have you involved in further work for Defence.It is this second issue, that leaves us with little choice but to consider the termination of your employment, given that we are currently unable to identify another client with which we can place you.Without such a placement, the continuation of your employment is not financially viable for our business. Accordingly, we asked if you could identify an alternative role. The response in your lawyers’ letter to simply allow you to return to work to ‘develop new projects for Cybermerc’ is not financially realistic or viable.We have considered the contents of the letter from your lawyers in response to our show cause letter. However, it does not contain anything that identifies a financially practical way that we can redeploy you and continue your employment. Consequently, we unfortunately advise that the decision has now been made to terminate your employment with Cybermerc. Accordingly, please regard this letter as notice of termination of your employment. Pursuant to your contract of employment and the National Employment Standards, you are entitled to two weeks’ notice of termination. However, as we are unable to identify any appropriate alternative position for you, we have also decided to pay you two weeks’ pay in lieu of notice. As a result, your employment will end today.In addition to receiving a payment in lieu of notice, you will also be paid all accrued and undertaken annual leave.Your lawyers’ letter seeks confirmation of the issuance of X class shares. We advise that we will be processing and providing you with this as soon as reasonably practicable.Your lawyers’ letter also seeks payment of commissions. We advise that we will be processing and paying this entitlement in the usual way and that the amount is expected to be significantly less than the amount sought in your lawyers’ letter.Finally, your lawyers’ letter seeks that we provide your pay records by 8 March 2022. The Fair Work Regulations 2009 (r3.42) provide us with 14 days from the date of the request in which to provide such records. Naturally, we will comply with the timeline requirements of the regulations in relation to providing you with pay records. Accordingly, the litigation threatened by in your lawyers’ letter is premature.Notwithstanding the above and the sentiment conveyed in your lawyers’ letter, we would like to part ways amicably and wish you all the best for the future. In this regard we hope that you genuinely understand that our hand has been forced by Defence in relation to your employment and that the reasons alleged in you lawyers’ letter had nothing to do with the termination.If you have any questions please contact me.”The Deputy President found that Mr Lavery’s dismissal was not unfair. The Deputy President found that Mr Lavery’s dismissal was based on his capacity to perform the work required on the Cyber Gap Program and was not based on his conduct. The Deputy President found that there was a valid reason for Mr Lavery’s dismissal, that being his inability to be able to work on the Cyber Gap Program at the request of Defence. The Deputy President found that Mr Lavery was notified of the reason for his dismissal, and while the timeframe he was given to respond was short, he was given an opportunity to respond to the reason. Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, the Deputy President was not satisfied that the dismissal of Mr Lavery was unfair, in that it was not harsh, unjust or unreasonable. The application was therefore dismissed.

Orders