Fair Work Act 2009
s.394—Unfair dismissal

Trinity Smith
v
BT Automation Pty Ltd
(U2021/4561)

Application for an unfair dismissal remedy – application dismissed.

[1] On 26 May 2021 Ms Trinity Smith made an application for a remedy pursuant to s.394 of the Fair Work Act 2009, alleging that she had been unfairly dismissed from her employment with BT Automation Pty Ltd (BT Automation).

[2] Ms Smith contends that her dismissal was unfair because at the time she was dismissed she was employed as a tender writer, and this position did not require a AGSVA security clearance. Further, there were no issues in relation to her performance as a tender writer which justified her dismissal.

[3] BT Automation contends that her employment as a ‘ServiceNow consultant’ was subject to her ability to maintain an active security clearance as this was a condition of her employment.

[4] The application was heard by video on 21 October 2021. Both parties were granted permission to be represented at the hearing. Mr W Ward of Mills Oakley appeared for Ms Smith and Ms G Sullivan of BAL Lawyers appeared for BT Automation. Ms Smith gave evidence on her own behalf and Mr Michael Bennett (Managing Director) and Ms Berceuse Bindle (Chief Security Officer) gave evidence for BT Automation.

[5] For the reasons set out below, I find that Ms Smith’s dismissal was not unfair, and I have dismissed her application.

Background

[6] BT Automation is an IT service provider which specialises in providing and customising a help-desk software platform known as ‘ServiceNow’.

[7] Ms Smith commenced employment with BT Automation on 16 July 2019. Her employment with BT Automation was subject to two employment contracts (titled “Letter of Engagement”). First contract was for a period of around 3 months. The second contract, dated 4 November 2019, confirmed her employment as a ServiceNow Consultant and that her core duties included:

“… tender writing, providing sales and presales support to BT Automation and its partners and configuring, implementing, developing and maintaining ServiceNow instances in accordance with customer requirements.

Additionally, you may be required to perform tasks associated with other business needs of BT Automation. Such tasks may include gathering customer requirements, attending meetings with customers or BT Automation staff, demonstrating the capabilities of ServiceNow and BT Automation, and other tasks reasonably requested of you by the Managing Director …”

[8] The second contract also provided that:

“By accepting this letter of engagement, you acknowledge that you must be eligible to obtain and maintain an AGSVA baseline security clearance as this is generally a customer requirement ...”

[9] By email of 6 May 2021, Ms Smith was notified of her dismissal. The Termination Letter reads as follows:

“Dear Trinity,

Notice of Termination of Employment

We refer to your employment with us.

As discussed with you previously, it is a condition of your employment with us that you maintain an AGSVA security clearance.

We understand that your current security clearance has expired, and based on material you have disclosed to us to date, it is unlikely to be reissued in the near future.

As advised, we only have 1 client who does not require an AGSVA security clearance, but they do require you to undergo a police check. You have refused to undergo a police check. As such, we have no clients to whom we can deploy you to work.

For these reasons, we stood you down on 21 August 2020 with 2 weeks pay with the intent of closing this matter through a deed of release. At your request, we agreed to place you on leave without pay for 3 months thereafter to assist you with your Centrelink dealings. Our efforts to resolve this matter amicably with you thereafter have proven unsuccessful.

To date, you have not advised us that your AGSVA clearance has been renewed or that you have reconsidered your decision to refuse a police check. You have not performed any work for us since 21 August 2020.

In these circumstances, we have determined to terminate your employment, with effect from the date of this letter. We will pay you 2 weeks’ pay in lieu of notice, and your accrued annual leave entitlements - this will be paid out by Friday 14 May 2021.

We sincerely wish you well in your future endeavours.”

Case for Ms Smith

[10] Ms Smith obtained a Negative Vetting 1 (NV1) security clearance from the Australian Government Security Vetting Agency (AGSVA) in 2014 while working in the public sector as an Infrastructure Engineer. Her requirement for a security clearance ceased after she began work in the private sector in April 2017.

[11] Her clearance was valid for 10 years from 2014, meaning she was not required to apply for a new clearance until 2024. A security clearance may be active or inactive. To be active, Ms Smith must be working for a government agency who sponsors her.

[12] If Ms Smith were to recommence work that required a security clearance, she can apply to have the clearance activated by notifying AGSVA of any changes to her circumstances and having her suitability for the role assessed. To do so, however, Ms Smith requires a government agency to sponsor her in order to activate the clearance.

[13] In November 2018 Ms Smith was charged with a series of drug related offences. She gave evidence that while waiting for a court date for the offences, she began job searching. She said that she was offered a job with a previous employer but the offer fell through when her National Police Check was processed.

[14] Ms Smith gave the following evidence as to her employment with BT Automation:

“On 4 July 2019 I contacted Mr Ben Dexter, a former colleague of mine and then the IT Security Advisor for BT Automation and I asked him to meet me for a coffee to discuss potential job opportunities.

At the meeting with Mr Dexter I was completely honest about my situation and having been charged because I didn't want to have a job offer fall through like it did with my last employer. I said words to the effect of ‘I don't want to waste your time so I will be upfront, I have a criminal record with charges pending’. I explained to Mr Dexter the legal situation concerning the charges against me in full and I said that the charges would be finalised on 22 July 2019. We discussed it at length and Mr Dexter assured me this would not pose an issue for the employment position he had in mind.

On 5 July 2019 Mr Dexter introduced me to BT Automation’s Managing Director, Mr Mike Bennett over coffee in Gungahlin, ACT. Roughly 30 minutes after this meeting started, Mike suggested I meet with a representative of one of his clients, DXC, named Carl Webb, in Civic that same day as he needed a consultant. The three of us then travelled separately to Civic to meet with the Mr Webb. At this meeting, it was agreed I would be engaged as a ServiceNow consultant on a trial three-month fixed term basis and contracted to the client.”

[15] On 9 July 2019, Ms Smith received a contract via email from Mr Mike Rosalky, BT Automation’s Legal Advisor, and on 16 July 2019 she commenced fixed term employment with BT Automation as a ServiceNow Consultant.

[16] On 22 July 2019 Ms Smith attended court and pleaded guilty to a number of drug possession offences.

[17] Ms Smith also gave evidence that:

“On 18 September 2019, I engaged in a phone conference with Mr Dexter, Mr Bennett and Mr Rosalky to discuss further employment opportunities for me with BT Automation given my good performance during my initial three-month contract. During this conversation we discussed my conviction and I was again assured that my criminal record would cause no issue. I understood this was because Mike never intended to propose me for a role that required a security clearance. I was specifically told by Mr Ben Dexter not to submit a Change of Circumstance form to the Australian Government Security Vetting Agency (AGSVA) as my security clearance wasn't required. I would only need to do this if BT Automation were to sponsor me for a role with a government agency that required a clearance. If this were to occur, I understood that I would need to undergo additional assessment by AGSVA to ensure I was suitable for the role.

On 19 September 2019, I received an email from Mr Dexter summarising our conversation from the day before. The email stated “as discussed, your security clearance is currently inactive” and “if you are required to reactivate your clearance in the future, you will need to be sponsored by an Australian Government Agency and AGVSA will require you to fill in a change of circumstances form for reactivation - should this occur, please ensure you fill out details around your personal circumstances honestly to enable AGSVA to make an accurate assessment of your suitability to hold a clearance”.

On 20 September 2019, Mike Bennett contacted me via email to discuss alternative duties as a Tender Writer. Mr Bennett wrote to me, “would you be happy to do a course in tendering? It's a skill that we could really use and would require minimum contact with the world. To start with, I think it would be a small part of a greater set of duties but moving forward I think it could be a full time gig”.

Between 20 September and 20 October 2019, in addition to my consultancy for DXC, I commenced working part time for BT Automation creating and contributing to tender material and completing other admin duties as required.

On 20 October 2019, my position with DXC ended and I began working full time for BT Automation. My job was primarily to write tender material and complete other admin duties as directed.

On 5 November 2019, I offered to undertake a National Police Check as part of formalising my new full time role and I forwarded the results to Mr Mike Bennett via email in order to make sure that he was fully aware of the extent of the criminal charges against me before I signed my employment contract.

On 14 November 2019 I signed my full time employment contract with BT Automation. My letter of engagement provided new core duties of tender writing, providing sales and presales support to BT Automation and its partners and configuring, implementing, developing and maintaining ServiceNow instances. My official title was Strategic Enablement Manager.

Clause 14 of my contract provides that I ‘must be eligible to obtain and maintain an AGSVA baseline security clearance as this is generally a customer requirement’.

In and around this time I was assured on multiple occasions by Mr Bennett that my criminal record would not be an issue with the duties I was contracted to perform. I was told I would backfill other positions or assist clients where possible, but my main role would be as a Tender Writer with BT Automation, and that this was my priority.

Between November 2019 and January 2020, I worked full time for BT Automation contributing to tender content, drafting contracts and assisting with other admin duties.

On 2 January 2020, I was directed by Mr Bennett to assist a client, the Canberra Rape Crisis Centre, by backfilling a position both on site and remotely. Mr Bennett told me that my tender writing duties were still the priority. I started working at the Canberra Rape Crisis Centre approximately two days a week (or as required by the client) and continue to work 3 days a week as a tender writer for BT Automation.

On 17 August 2020, I received an email from the CEO of the Canberra Rape Crisis Centre (CRCC), Ms Chrystina Stanford, requesting I submit to a National Police Check so that I might be able to acquire a Working with Vulnerable People Card (WWVP card), which I understood was now a requirement for any employee working on site.

A short time after I received the email from Ms Stanford, Mr Bennett showed up at my office at CRCC to discuss other potential employment options for me. I said to Mr Bennett that I would like to get a WWVP card for other reasons, so would be happy to undertake that process to fulfill the requirement for working at CRCC. I also said to Mr Bennett that I would be happy if he provided the CRCC with my police check from November 2019 but he told me not to bother. Instead, I was presented with two options for alternative work; one position with an ACT Government client and the other DXC. I immediately chose the ACT Government client role. Mr Bennett appeared shocked when I did so, and asked me "but don't you have a bad relationship with them" to which I answered that I didn't and would eagerly accept.

On 21 August 2020, I attended a meeting with Mr Claudio Lostumbo and Mr Bennett. I thought the meeting was going to be about me starting a new role with ACT Government. However, instead at this meeting I was told that both the ACT Government and DXC clients now required National Police Checks and therefore I would not be put forward for those roles and was immediately stood down from all duties.”

[18] On 24 August 2020, Ms Smith said Mr Rosalky emailed her a Deed of Release to end her employment with BT Automation.

[19] On 21 September 2020, Ms Smith made a request to take unpaid personal leave for a period of three months while she considered the Deed of Release. This request was approved by BT Automation’s Operations Manager, Mr Claudio Lostumbo, and she was placed on unpaid leave backdated from 10 September 2020 to 10 December 2020.

[20] She gave evidence that on 20 December 2020 she reviewed the Deed of Release. She considered that the deed “contained false information relating to my AGSVA clearance and stated that I had refused to complete a National Police Check, both of which were incorrect”. She then wrote an email to Mr Rosalky indicating that there was no issue with her ability to obtain or maintain a security clearance and asked for the deed to be amended on this basis.

[21] What followed was multiple emails between the parties negotiating the terms of the deed, stretching out until May 2021. As part of this exchange, BT Automation wrote to Ms Smith on 30 March 2021 offering to arrange to reactivate her security clearance, which also required her to complete a police check. After further correspondence between the parties about the likelihood of having her clearance reactivated, Ms Smith’s employment was terminated by letter dated 6 May 2021.

[22] Ms Smith claimed that the reasons provided in the Termination Letter for her dismissal, that being her security clearance had expired and she refused to undergo a police check, were both untrue. Ms Smith contended that she had at all times complied with all of BT Automation’s requirements of her and she was at all times able to perform the core duties of her position. She also submitted that she was directed by the Respondent not to lodge a ‘change of circumstances form’ with the AGSVA, and as a result she was never assessed by the AGSVA as ineligible to hold a security clearance. It followed, she argued, that the Respondent prematurely and unreasonably assumed her criminal record would exclude her from maintaining her security clearance.

[23] Ms Smith further contended that at the time of her dismissal she performed the role of a tender writer and this position did not require a security clearance. As there were no issues with respect to her performance in this role, there was no valid reason for her dismissal.

[24] Ms Smith argued that the first issue the Commission needed to determine was whether she was employed as a tender writer. Only if Ms Smith was not found to be employed as a tender writer, it was argued, would the Commission need to consider the matter of her security clearance.

[25] It was submitted that despite earlier cases 1 to the effect that a criminal record or the failure to hold a security clearance might constitute the loss of an inherent requirement of the job and could give rise to a valid reason for dismissal, this case should be differentiated on the basis that:

a. Ms Smith was only contractually obligated to remain ‘eligible’ for a security clearance; and
b. The particulars of her convictions were never put to the AGSVA at the employer’s directive.

Case for BT Automation

[26] Mr Bennett gave evidence that BT Automation is a relatively new business established in 2017 and currently employs about 35 staff. All its customers except for one are either government departments or tier 1 ICT providers who contract to government departments, both of which require background checks and usually including a baseline AGSVA clearance or higher for BT Automation personnel to access the client site or data.

[27] The Respondent says that it delivers its services via the deployment of ServiceNow Consultants to its customer sites. These consultants are required to access customer data and being eligible to hold and maintain an AGSVA security clearance is a common customer requirement.

[28] Mr Bennett referred the ServiceNow Consultants as ‘billable resources’ of BT Automation given its customers are largely billed on the time spent by these Consultants customising the software to meet client requirements.

[29] Mr Bennett said he was introduced to Ms Smith through one of his employees, Mr Ben Dexter, who was their Chief Security Officer.

[30] In terms of Ms Smith’s employment, Mr Bennett’s evidence was that:

a. During the interview in July 2019 when he first met with Ms Smith, he asked her if she could hold and maintain an AGSVA security clearance and was told: “Yeah, there is no reason why I couldn’t. I have had a NV in the past.”

b. At the time Ms Smith was employed, he was never advised by anyone that Ms Smith had any outstanding criminal matters, nor did he ask her if she had any criminal record.

[31] Mr Bennett said he has had no contact with Mr Dexter since he resigned his employment with BT Automation in late November 2019.

[32] Mr Bennett gave evidence that:

a. Ms Smith first forwarded Mr Bennett a copy of the results of her police check in mid-November 2019, and he was surprised to see there were multiple convictions including that of drug importation.

b. At that time, BT Automation had one client that did not require a security clearance, being the Canberra Rape Crisis Centre (CRCC), and he hoped they would be successful in obtaining more clients in the private sector that did not require security clearances.

c. He advised Ms Smith in mid-November that BT Automation needed to ‘bill her out to maintain viability’, and that he would attempt to arrange a place for her with the CRCC. Further, if they were unable to ‘bill her’ to a client, they would not be able to afford to keep her employed, and she would be able to do some tender writing to make up the gap in work from any CRCC deployment.

d. From March 2020 Ms Smith was placed as a billable ServiceNow Consultant at the CRCC for around 3 days each week. She undertook tender writing and other administrative work for the other two days each week.

e. In August 2020 the CRCC advised BT Automation that they now required a police check for all contractors (including Ms Smith). Mr Bennett advised Ms Smith of this requirement, but she was not comfortable in providing CRCC with details of her criminal record.

f. He met with Ms Smith on 21 August 2020 to discuss the request by the CRCC and during that conversation she agreed she would resign.

g. In mid-September Ms Smith requested that her resignation be deferred and she take 3 months unpaid leave to allow her to make various arrangements with Centerlink.

h. Various conversations then took place through to March 2021 with a view to finalising her employment.

i. On 30 March 2021 Mr Bennett instructed Mr Rosalky (BT Automation in-house counsel) to provide one final opportunity to Ms Smith to reactivate her AGSVA clearance, but Ms Smith did not accept the offer. As a result, Ms Smith’s employment was terminated by letter dated 6 May 2021, and she was paid two weeks pay in lieu of notice.

[33] The Respondent contended that it was a condition of Ms Smith’s employment that she maintain a security clearance, and she was not employed solely as a tender writer. Her second contract of employment made this clear. She acquired a criminal record for drug use and importation after she commenced employment, and the reason she was dismissed was that she did not consent to be deployed to customer sites that would require her to submit either to the AGSVA security clearance process or a police check. Given that she was a ‘billable consultant’, this position meant she was unable to be deployed to a client site, which is the valid reason for her dismissal.

[34] The Respondent agreed that Ms Smith’s performance was not in issue, and while her duties did include tender writing, her contract was clear that her duties were much broader than just tender writing. Further, it contended it was plain that Ms Smith did act as a billable consultant during the eight months she was employed in this role, that being with the CRCC.

Consideration

Protection from Unfair Dismissal

[35] There is no dispute and I am satisfied that Ms Smith is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if her dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[36] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

I the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[37] There is no dispute that Ms Smith was dismissed and that subsections I and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[38] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[39] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd² as follows:

‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[40] The onus is on Ms Smith to prove her dismissal was harsh, unjust and/or unreasonable.

[41] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.³

Valid reason – s.387(a)

[42] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”⁴ and should not be “capricious, fanciful, spiteful or prejudiced.”⁵ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁶

[43] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[44] Having considered all the evidence, I find that there was a valid reason for Ms Smith’s dismissal.

[45] I accept that Ms Smith was employed as a ServiceNow consultant who was intended to be ‘billed out’ to clients. While tender writing was a part of her duties, I find that the fundamental and core requirement of her role was that she was able to perform work that was ‘billed’ to clients of BT Automation to cover the cost of her salary. This is clear both from the provisions of the employment contract and from the work she actually performed (ie on a client site as a billable consultant), in addition to the evidence of Mr Bennett.

[46] It is abundantly clear that Ms Smith’s employment contract required her to be able to hold and maintain an AGSVA baseline clearance. I accept that Ms Smith held a valid clearance, but what is clear (and I find) is that she needed to be able to use her clearance if required. In other words, it needed to be able to be activated.

[47] I accept the evidence of Mr Bennett that, having advised Ms Smith in August 2021 of the CRCC’s requirement for a police check, Ms Smith did not want to pursue this option and instead agreed the best course of action was to cease her employment.

[48] Ms Smith argued that she ‘did not refuse’ to be put forward for a position requiring a clearance, and that she ‘did not refuse’ to undergo a police check. I am satisfied however, based on the evidence of Mr Bennett, that Ms Smith did not consent to either process being undertaken by BT Automation. In my view, either process required her consent. That she did not give her consent justified the actions of BT Automation in dismissing her.

[49] This is evident by the fact that she was offered a deployment (at PM&C) in around October 2019 that required a security clearance but did not accept this offer. Further, on 31 March 2021 BT Automation again offered to deploy her to a client site that required a clearance, provided that her clearance could be reactivated, but again she refused this offer in mid-April 2021.

[50] While I accept that the Termination Letter referenced that Ms Smith’s clearance had ‘expired’ rather than saying was ‘inactive’, I accept the submissions of BT Automation that no detriment flowed to Ms Smith as a result of the incorrect terminology being used.

[51] As a result, I am satisfied that there was a valid reason for Ms Smith’s dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[52] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁷ in explicit terms⁸ and in plain and clear terms.⁹ In Crozier v Palazzo Corporation Pty Ltd¹⁰ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”11

[53] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the 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.¹² This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹³

[54] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Ms Smith before her dismissal was effected.

[55] Ms Smith contends that she was not notified of a valid reason or provided with an opportunity to respond because BT Automation failed to provide a valid reason for her dismissal. Further, even if there was a valid reason, she was not provided with the opportunity to respond to the reasons for her dismissal.

[56] Having found that there was a valid reason for Ms Smith’s dismissal, I am also satisfied that Mr Smith was notified of this reason and given an opportunity to respond. The evidence is clear that there was extensive communication between the parties from August 2020 to May 2021. I am satisfied that Ms Smith was advised of the reason during this period and was able to respond.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[57] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[58] Ms Smith said she thought the purpose of the meeting on 21 August 2020 was to talk about a new job opportunity, but instead she was stood down from all duties. Accordingly, she argued, she was denied the opportunity to bring a support person.

[59] I do not accept that she was unaware of the purpose of the meeting. It was clear from the conversation on 20 August 2020 between Mr Bennett and Ms Smith that she would no longer be able to continue working at the CRCC without a police check. It either was, or ought to have been clear to Ms Smith that her ongoing ability to perform work was the purpose of the discussion on 21 August.

Warnings regarding unsatisfactory performance - s.387(e)

[60] A warning for the purposes of s.387(e) must clearly identify:

(a) the areas of deficiency in the employee’s performance;

(b) the assistance or training that might be provided;

(c) the standards required; and

(d) a reasonable timeframe within which the employee is required to meet such standards.¹⁴

[61] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”¹⁵

[62] This consideration is not relevant as Ms Smith was not dismissed for reasons related to unsatisfactory performance.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[63] I am satisfied that the size of BT Automation and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[64] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[65] Ms Smith submitted that her dismissal was unjust because it constituted unlawful discrimination on the ground of irrelevant criminal record. She submitted that because she was dismissed without a valid reason, the only reasonable inference is that she was dismissed because BT Automation disliked that she had a criminal record and therefore dismissed her on this basis.

[66] Having found there was a valid reason for Ms Smith’s dismissal, this argument is rejected. Further, it is clear on the evidence that BT Automation was aware of Ms Smith’s criminal convictions when it offered her the second contract in November 2019.

Conclusion

[67] Having carefully considered each of the required matters, I am not satisfied that Ms Smith has discharged her onus of proving that her dismissal was harsh, unjust or unreasonable. Accordingly, I am not satisfied that Ms Smith was unfairly dismissed within the meaning of s.385 of the Act, and her application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

W Ward, for Trinity Smith.

G Sullivan, for BT Automation Pty Ltd.

Hearing details:

2021.

By video:

October 21.

Printed by authority of the Commonwealth Government Printer

<PR737520>

 1   J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022 and Lampton v Ferdy’s Haven Alcohol Rehabilitation Aboriginal Corporation T/A Ferdy’s Haven [2013] FWC 1769.

2 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

3 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

5 Ibid.

6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

7 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

8 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

9 Previsic v Australian Quarantine Inspection Services Print Q3730.

10 (2000) 98 IR 137.

11 Ibid at 151.

12 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

13 RMIT v Asher (2010) 194 IR 1, 14-15.

14 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

15 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].