Mr Anthony Young v Spotless Services Aus Ltd

[2015] FWC 1116

[2015] FWC 1116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Anthony Young
v
Spotless Services Aus Ltd
(U2014/16528)

COMMISSIONER SIMPSON BRISBANE, 17 FEBRUARY 2015

Application for relief from unfair dismissal - No dismissal - application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Anthony Young (“the Applicant”) who alleges that the termination of his employment with Spotless Facility Services Proprietary Limited (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 19 December 2014. I listed the matter for a directions hearing on 16 February 2015.

[3] The Applicant was represented by his wife Lynette Young. The Application says that the Applicant commenced employment with the Respondent on 18 March 2010 and was notified of his dismissal on 24 November 2014. The Application stated that the dismissal took effect from 2 December 2014.

[4] The Application stated that the Applicant sought a remedy of compensation for loss of earnings for twelve months and improved training/supervision for all assessing officers at the Australian Government Security Vetting Agency (AGSVA). According to its website AGSVA is the central agency for the processing and granting of security clearances for Australian Government agencies and state and territory agencies.

[5] In his application the Applicant gave the following as the reasons given for dismissal by his employer.

“1. Baseline vetting by AGSVA (Australian Government Security Vetting Agency) was so onerous that I was forced to resign

2. I was unable to obtain some paperwork in a timely manner (I was given two days to obtain paperwork from government departments)

3. I was made to feel like a second-class citizen of Australia despite having lived here since 1969 as a permanent resident (working and paying taxes)

4. I was repeatedly questioned about my rights to apply for a small British pension and any investments in the UK

5. The AO refused my request for a face-to-face interview (profound hearing impairment should require mandatory F-to-F interview)

6. As I saw no end to the discrimination that I had endured, and no hope of receiving baseline clearance, I made the difficult decision to resign

Please note: Although Spotless services was my employer at the time of my resignation, I do not hold them directly responsible for the way in which the baseline vetting process was conducted. That honour falls solely to AGSVA assessing officer Matt Scofield.”

[6] In stating on the application why the dismissal was unfair the Applicant wrote:

“1. On 4th December 2014 Toni Torrens (AGSVA Supervisor) rang and spoke to my wife Lynette Young. She apologised for issues with the vetting process words used: overzealous, insufficient training,.....too little - too late

2. I have been left shocked and traumatised by my treatment at the hands of an “overzealous, undertrained” assessing officer

3. At no time was I permitted adequate time to obtain paperwork as required by the AGSVA assessing officer

4. The baseline vetting clearance should have been in place by 1 December as process commenced in July; conversations with Toni Torrens proved that had proper process been followed, clearance would have been granted pending a positive police check (which I already have)”

[7] The Respondent said in its form F3 Response to the Application that the Respondent did not terminate the Applicant, and the termination was at the initiative of the Applicant by way of a telephone call to his manager on 28 November 2014.

[8] The Respondent agreed that the employment relationship ended on 2 December 2014. The matter was originally listed for conciliation before a Fair Work Commission conciliator however on 2 January 2015 the Respondent filed a Form F4 Objection to the Application.

[9] The Respondent said that it objected to Application and sought its dismissal on the basis that;

1. As stated in the application itself, this was not a termination at the initiative of the Respondent.

2. The Respondent requires its objection to be dealt with prior to conciliation and it requested that the conciliation be vacated.

[10] In the Form F3 filed by the Respondent in responding to the Application it said as follows:

“1. In the application itself, the Applicant states he resigned because of issues experienced in obtaining the necessary clearance from the Australian Government Security Vetting Agency, which clearance is a precondition for employment under new contracts between the Respondent and the Department of Defence.

2. The Respondent provided ongoing assistance to the Applicant in obtaining the necessary security clearance.

3. Previously the Applicant only required AFP clearance. Under the new contracts a full Baseline Security Clearance is required for all employees. A basic precondition for this clearance is that the Applicant is an Australian citizen. The Applicant was not an Australian citizen. He was a British citizen.

4. The Applicant was employed as a cleaner at Wide Bay. He was the only cleaner at this location and no other employment was available.”

[11] Section 386(1) of the Fair Work Act reads as follows:

    “386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[12] In the course of the directions hearing the Applicant’s representative, Mrs Young, agreed that the Applicant communicated a resignation to a representative of the Respondent on 28 November 2014 to have effect from 2 December 2014. I invited Mrs Young on behalf of her husband to make any further submission on the reasons for the Applicants resignation on the basis that it appeared to me as a preliminary matter that the reasons stated for resignation were clearly not because of the conduct, or a course of conduct, engaged in by the Respondent. Ms Young advised that the reason for the resignation was because of advice received from AGSVA, although suggested it may have been a requirement of the Respondent that the security clearance be obtained by that date.

[13] In response to a question from me Ms Young agreed that no one from the Respondent had advised the Applicant he would be terminated on 2 December if he did not have a clearance and that this concern came from advice from AGSVA.

[14] The Respondent at the direction hearing elaborated on the submission put in its Form F3 response and in its Form F4 Objection that the Department of Defence, the Respondents client, placed a requirement on the Respondent that its employees have the necessary clearance to work.

[15] In the course of the directions hearing I indicated to the parties that I was prepared to proceed to deal with the jurisdictional objection on the basis of the material before me and the oral submissions made at the directions hearing if both parties were in agreement with that course. Both parties agreed.

[16] There is no suggestion from the Applicant that he was instructed to resign in the face of a threatened or impending dismissal by the Respondent. There is no suggestion that the resignation was in response to conduct by the Respondent which gave him no reasonable alternative but to resign.

[17] It is clear the Applicant resigned because he was unable to get a full Baseline Security Clearance from an Australian Government regulatory agency, not because of any conduct on the part of the Respondent. As the Applicant concluded he would be unable to obtain the Baseline Security Clearance by 2 December he decided to resign with the Respondent, before the deadline of 2 December 2014. This is not a resignation because of conduct, or a course of conduct, engaged in by the Respondent. There has been no dismissal within the meaning of section 386 of the Act and there is no jurisdiction for the matter to proceed. On that basis the application is dismissed.

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