[2014] FWC 4919


Fair Work Act 2009

s.394—Unfair dismissal

Department of Defence



Application for relief from unfair dismissal.

[1] On 6 September 2013 the Applicant (applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Department of Defence (the respondent) was unfair.

[2] Attempts were made by the Fair Work Commission (Commission) to assist the parties to resolve the matter through conciliation, but these attempts were unsuccessful.

[3] After some delays to allow internal review processes to be exhausted, and to provide special arrangements for the hearing of the matter, the hearing took place in Canberra on 12 May 2014.

[4] Permission was granted for the respondent to be represented at the hearing as I considered that such representation would enable the matter would be dealt with more efficiently given the complex security issues involved.


[5] The applicant was employed by the respondent in the agency known as the Australian Signals Directorate (ASD) from 22 January 2007 until the termination of his employment on 21 August 2013. He was required, as a condition of his employment, to hold a Top Secret Positive Vetting (TSPV) security clearance. He held this level of security clearance throughout his employment until the security clearance was revoked on 19 July 2013.

[6] On 21 December 2012 the then Director of ASD, Mr Ian McKenzie determined that he would request the Australian Government Security Vetting Agency (AGSVA) to conduct a Review for Cause to determine if the applicant should have his security clearance altered or revoked.

[7] On 2 January 2013 (the first working day after the Christmas break) the applicant was advised that he was suspended on full pay while the review of his security clearance was conducted.

[8] On 19 July 2013 the applicant was advised that his security clearance had been revoked and that he would not be able to apply for a new clearance for a period of five years.

[9] On 21 August 2013 the applicant was advised by the Director of ASD that his employment was terminated with effect from 22 August 2013.

The Respondent’s case.

[10] It is the respondent’s case that the applicant was dismissed because he did not hold an essential qualification, the TSPV security clearance. At the time of his termination the applicant held no security clearance at any level and was prohibited for applying for one for a period of five years. The respondent claimed that, as the applicant was unable to perform the duties of the position in which he was employed, there was a valid reason for the termination of his employment.

[11] Mr Ian McKenzie, who held the position of Director of the ASD during the relevant time period filed a statement of evidence and was cross-examined by the applicant.

[12] It was the evidence of Mr McKenzie that while he worked as Director of ASD he held a number of delegations from the Secretary of Defence under the Public Service Act 1999, including a delegation to terminate an ASD employee’s employment. However according to Mr McKenzie, he did not have the power to remove or grant security clearances.

[13] Mr McKenzie’s statement covered the nature and sensitivity of ASD’s work in some detail. He noted the need for the careful protection of ASD’s work through a range of security processes and the need for security clearances at the highest level (TSPV) for all ASD employees, from ‘the front desk receptionist to the agency head’.

[14] According to Mr McKenzie’s evidence AGSVA is responsible for security vetting processes and assigning security clearances for most Australian Government agencies, including ASD.

[15] At paragraph 21 of his statement Mr McKenzie noted:

[16] Mr McKenzie’s statement outlined the limited interaction that occurs between ASD and AGSVA concerning the granting and revoking of security clearances for staff. According to his evidence the security clearances, once granted are reassessed every 5 years or when a request for re-assessment is made outside the 5 yearly pattern (‘Review for Cause’). He stated that such a review could be initiated by ASD, or by AGSVA acting independently, and that heads of agencies are obliged to notify AGSVA if they have any concerns about the continued suitability of their staff to hold security clearances.

[17] Mr McKenzie chaired the Management Review Board (MRB) of the ASD which met monthly to discuss any concerns identified in relation to ASD personnel and to determine how they should be managed. The MRB comprised the Director and four Deputy Directors supported by staff with human resources, security and psychology backgrounds. A member of AGSVA also attended these meetings for the purpose of providing updates on the timing of security assessments of current and prospective employees and to ‘understand the security environment of the agency they were supporting’. The AGSVA did not discuss any aspect of the vetting process other than the timing. It was stressed that the AGSVA operates independently of the ASD.

[18] So far as the termination of the applicant’s employment was concerned, Mr McKenzie noted that the applicant had maintained a TSPV security clearance from the commencement of his employment with ASD. Around the end of December 2012 Mr McKenzie had requested of AGSVA a ‘Review for Cause’ of the applicant’s TPSV security clearance as he had ‘received a number of reports about [the applicant’s] behaviour that indicated to me that there was a question for AGSVA to consider about whether there were any doubts about his suitability to hold the clearance’. According to Mr McKenzie this was the second review for cause that had been conducted in relation to the applicant, the first had been in 2009 and the applicant had retained his clearance.

[19] Mr McKenzie stated that his action in asking AGSVA to conduct a Review for Cause of the applicant’s security clearance was motivated solely by security-related concerns. He requested that AGSVA give the review high priority and, as is common with all such reviews, ASD received periodic updates about the progress and expected timing of the assessment.

[20] In late July 2013 Mr McKenzie was informed that AGSVA had completed the review and decided to revoke the applicant’s TSPV clearance, that AGSVA would not grant any lower level of clearance and would not to consider any future clearance for the applicant for a period of five years. On 30 July 2013 Mr McKenzie signed a letter to the applicant advising that he was considering terminating his employment as a consequence of the loss of his security clearance and requested a response from the applicant providing any reasons or there circumstances that might influence his decision. The applicant responded on 7 August.

[21] On 13 August Mr McKenzie responded to the applicant’s letter and advised him that his employment was to be terminated with effect from 15 August 2013. Despite the terms of the letter of 15 August the applicant was offered the opportunity to resign his employment on certain conditions and with certain benefits, if he decided to take this course. It was Mr McKenzie’s evidence that although he initially indicated that he would accept the offer of resignation and complied with one of the conditions required, the applicant subsequently did not resign. As a result, a further letter was provided to the applicant on 21 August 2013 terminating his employment on the ground of the loss of an essential qualification.

[22] In his evidence, Mr McKenzie noted that the applicant was provided with a number of benefits on termination, in addition to those entitlements required by law.

[23] At the hearing, and in response to a number of claims that had been made by the applicant in his written submissions, Mr McKenzie:

[24] Mr McKenzie’s evidence was that at the MRB meeting on 19 December 2012 concerns were raised by reports of behaviour exhibited by the applicant in November and December 2012. It was his evidence that the concerns arose from reports of inappropriate remarks made by the applicant to other employees and of the applicant accessing areas of ASD which he was not supposed to enter. Having considered the summary of all the reports of the applicant’s conduct, on 21 December 2012 Mr McKenzie determined that there were serious security concerns and that he should make an immediate request to AGSVA for a Review for Cause of the applicant’s security clearance. In his view the matter warranted more serious action than a Code of Conduct process. He also decided that for the period of the Review the applicant should be stood down on full pay and not allowed access to the workplace. He took this view in light of the applicant’s technical skills and a concern that the applicant might present a threat to the agency given some of the remarks that it was reported he had made. Mr McKenzie stated that he did not predetermine the applicant’s culpability as that was a matter for AGSVA. He had had different reports about the applicant’s behaviour from a number of different people and in his view that was sufficient to warrant a request for a Review for Cause.

[25] In response to matters raised at paragraph 25 of the applicant’s submissions, Mr McKenzie stated that the offer to allow the applicant to resign his employment was made in an attempt to assist the applicant to move forward and was the sort of offer that would be made to most persons who were (unwillingly) leaving the high security environment of ASD. The offer was made in an attempt to make the transition easier, and to avoid any danger of unauthorised disclosure of classified material. It was clear that a decision had been taken to terminate the applicant’s employment and if he did not resign he would be terminated. In addition to the offer of resignation the applicant was also offered additional payments, training, relocation costs and counselling support to assist his transition. As the applicant chose ultimately not to resign, the termination proceeded.

[26] Mr McKenzie also denied the applicant’s claim that his dismissal had been predetermined given that his security pass had been removed, his access to the workplace and IT systems removed, and his personal belongings boxed. It was noted that in such a high security environment, and given the decision that the applicant should be stood down, the removal of access to the workplace and systems followed as a matter of course. Further the decision was taken to box the applicant’s belongings as the ASD had a shortage of accommodation for staff and the review was expected to be lengthy. It was Mr McKenzie’s evidence that nothing was done that could not been reinstated had the applicant’s security clearance been confirmed.

[27] According to Mr McKenzie the MRB was advised by AGSVA on 2 July 2013 that the Review was almost complete and that the intention was to deny the applicant a security clearance. By this time AGSVA had already received the applicant’s response to the Procedural Fairness letter advising that the intention was to revoke his clearance. The final decision to revoke the clearance was advised to the MRB on 26 July 2013. Mr McKenzie stated that it was normal for the MRB to be advised of the progress of reviews and that reviews were close to conclusion but that no detail was given. It was also his evidence that it was normal for ‘exit plans’ for employees undergoing reviews to be prepared in advance of any decision by AGSVA as a contingency, as if a clearance was revoked the exit strategy was complicated and could not be prepared in a rush.

[28] Mr McKenzie denied that security reviews were utilised by ASD to avoid Code of Conduct procedures. He noted that Code of Conduct processes were used where appropriate but not in cases that were fundamentally a security issue. He also stated that, on occasion, performance issues and security concerns could overlap. He claimed that scarce resources would not be used to conduct security reviews unless necessary. He also reiterated that he requested Reviews for Cause but that it was a matter for AGSVA if one were conducted. It was his evidence that there were a number of concerns that led to his decision to request the review not just once instance of inappropriate behaviour by the applicant in relation to one staff member, as the applicant appeared to believe.

[29] The witness disputed the applicant’s claim that he could have been redeployed to unclassified work while the review progressed and after his clearance was revoked. He stated that there was no ‘unclassified’ area of work at ASD and even the area where employees were located while their full clearances were carried out required a baseline security clearance, which the applicant did not hold.

[30] According to Mr McKenzie while the applicant’s Review for Cause was carried out in 2010 he was productively engaged on work that was not his normal work and on that occasion the applicant was not suspended.

[31] When cross-examined by the applicant the witness agreed that both ASD and AGSVA are part of the Department of Defence and the Australian Public Service and are required to follow public service policy. When asked if the applicant had a security breach during his employment, Mr McKenzie stated that at the end of his employment he lost his clearance and had been subject to a Review for Cause in 2009-2010. He further stated that such serious security concerns involving intervention by management were serious and unusual.

[32] When asked why he had not subjected the applicant to a Code of Conduct process, Mr McKenzie responded that he had asked for a Review for Cause because the primary concern was a matter of security and he did not want two processes being conducted concurrently.

[33] The witness stated that he was unaware that the complaint made against the applicant that was the subject of a Quick Assessment (QA) in December 2012. According to Mr McKenzie, the dismissal occurred in accordance with APS policy and stated that it was a coincidence that the QA was handed down on the day he requested further information about the applicant’s behaviour, as he had no knowledge of the QA and the matters were not connected. As far as Mr McKenzie knew the QA was not a factor in the security review. He also stated that the purpose of the MRB was to discuss security issues, and the MRB did not make dismissal decisions.

[34] Mr McKenzie reiterated his earlier evidence that the decision to dismiss the applicant was taken after AGSVA revoked the applicant’s security clearance and was not pre-determined. He noted that the most important part of the dismissal process was the debriefing and that this did not occur until August 2013. He denied the applicant’s assertion that the security review was manufactured to provide a reason for the applicant’s dismissal

The Applicant’s case

[35] The applicant filed a statement of evidence 2 and submissions3. Much of the applicant’s evidence is set out above when each of his allegations were put to Mr McKenzie for response. In most cases I do not repeat those matters.

[36] It was the applicant’s case that his security clearance should not have been revoked and that the review for cause had been arranged by ASD in order to bring about the termination of his employment in circumstances where such a course would not have been open to it, had any concerns about his behaviour been dealt with in accordance with the policies of the Department of Defence and the Australian Public Service.

[37] The applicant’s written submissions and statement claim that his dismissal resulted from a complaint made about him by a work colleague in early December 2012. That complaint was the subject of a QA, the outcome of which was handed down on 19 December 2012. The applicant complained that he was unable to properly defend himself against the complaint as he was not given sufficient detail about it to do so. It was his evidence that, as a result of that complaint, a decision was taken to conduct a Review for Cause of his security clearance so as to avoid having to deal with the matter in accordance with Defence and APS policies which would allow him to properly defend himself.

[38] The applicant also claimed that there were no grounds for revoking his security clearance and that the security clearance process had been abused so as to enable the respondent to terminate his employment without having to provide him with the rights he would otherwise have under the APS Code of Conduct process and Department of Defence policies.

[39] It was the applicant’s evidence was he was sent two separate letters of termination ( on 13 and 21 August 2013) and that neither of these were processed. He claimed that the respondent processed his dismissal as a voluntary resignation (as evidenced by the Employment Separation Certificate) and that the purpose of each of the termination letters was to force his resignation.

[40] At the hearing the applicant reiterated his claim that he had an exemplary security record and performance history during his years of employment with ASD.

[41] The respondent did not wish to cross examine the applicant on his evidence.

[42] In response to a question from the tribunal the applicant advised that he had applied for a number of jobs since his dismissal but had not found alternative employment. He has relocated and is studying at university this year.


[43] The respondent relied upon the written submissions filed in the matters and made further oral submissions at the conclusion of the evidence.

[44] It was the respondent’s submission that the applicant’s employment was terminated by the respondent on the ground that the applicant had lost an essential qualification, his TSPV security clearance. It was put that this was a valid reason for the termination as all employees of ASD are required to hold a TPSV clearance and without that qualification the applicant’s capacity to perform the duties of his position was affected.

[45] The respondent denied that the decision by Mr McKenzie to initiate a Review for Cause constituted a ‘dismissal’. It was not a foregone conclusion that the applicant’s security clearance would be revoked. This much was clear as this had been the outcome of the 2009-2010 Review for Cause. The decision to revoke the security clearance was not made by ASD but by a separate independent body, AGSVA.

[46] It was put that the main question for determination by the Commission was whether the respondent had abused the security review process to dismiss the applicant.

[47] At the hearing the respondent contended that the Commission was not determining whether the applicant’s security clearance should have been removed and, in the circumstances the only outcome available, should the Commission find the dismissal unfair, was an order for compensation. The respondent reiterated its written submission that reinstatement is not an available remedy given that the applicant does not hold the requisite TPSV security clearance.

[48] Further, it argued that for the respondent that if the applicant’s claims were accepted as being true, the Commission would be required to find the existence of a major conspiracy involving senior employees of both ASD and AGSVA. As this was such a serious matter further written submissions were handed up dealing with allegations of bad faith and the numerous decisions supporting the principle that allegations that powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld’ 4. It was noted that the applicant’s submissions in this regard were not based on direct evidence but on inferences drawn by him from various documents and events.

[49] It was put for the respondent that:

[50] It was also put for the respondent that the applicant’s complaint that he was misled about the period in which he could request a review of the security clearance decision was dealt with and the applicant was given a review which was conducted at a very senior level.

[51] So far as the applicant had attempted to draw inferences from the minutes of the MRB meetings that he was provided with, it was submitted that Mr McKenzie’s evidence had demonstrated that the question of termination had not been pre-determined by the MRB and that action taken by ASD prior to the decision to terminate being made was not evidence of a ‘fait accompli’.

[52] Finally it was put that the applicant’s claim of systematic abuse of the security clearance process designed to avoid proper processes for termination of employment was refuted by Mr McKenzie’s evidence. It was clear that security matters were dealt with by security processes and these took precedence over Code of Conduct matters.

[53] The Applicant relied on his written submission and made short oral submissions at the hearing. In his written submissions the applicant argued:

[54] The applicant’s written submissions dealt with those matters set out at s.387 of the FW Act. He claimed that as the official reason given for the termination of his employment was resignation and, as he had not resigned, there was no valid reason for the dismissal. He also claimed that loss of a security clearance was not a valid reason unless the process by which the clearance was revoked was conducted independently and there is an opportunity for independent review. The applicant claimed to have only become aware that ‘resignation’ was the reason for the termination some months after the dismissal took effect. It was also his contention that the decision to terminate was made months before the actual dismissal and as a result he was not given a genuine opportunity to respond.

[55] The applicant did not allege any denial of a support person and acknowledged that the dismissal was not related to unsatisfactory performance. He noted the size of the respondent organization and its large human resources department. He referred to mistakes made by that area in this dismissal process.

[56] It was the applicant’s submission at hearing that he was not arguing that there was a conspiracy, but that the respondent was not following its policies and was using the security clearance process to dismiss employees. He claimed that this much was clear from the MRB minutes. He also noted the problem with the Employment Separation Certificate. He alleged that this was a ‘key document’ which had indicated that he had resigned his employment when this was clearly not the case. At least, the applicant argued, the matter was not well-handled and the respondent’s human resources department was not performing very well.

[57] The applicant contended that there was a clear distinction between behavioural problems and matters of national security. He claimed that he was dismissed due to a complaint made a by a staff member and that he was entitled to be told the details of that complaint and to be allowed to respond to it, as the respondent was obliged to abide by its own policies. It was his submission that the decision in the review of his performance progression was clear evidence of the respondent’s failure to follow policy and ‘sloppy’ human resource management.

[58] Finally the applicant put that he had been unfairly dismissed and was entitled to be reinstated. He submitted the skills he utilized in his employment with the respondent were not easily transferable. He did not accept the respondent’s claim that he could not perform work for the ASD unless he possessed a TSPV clearance.


[59] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The respondent is not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[60] In determining whether the applicant has been unfairly dismissed I must take account

of those matters set out in s.387 of the Act, which is as follows:

Valid Reason

[61] I am satisfied that there was a valid reason for the applicant’s dismissal. Following a Review for Cause of the applicant’s security clearance, his TSPV clearance was revoked and he was denied any other level of security clearance. Furthermore he was not permitted to apply for a further security clearance for a period of 5 years. The holding of a TSPV clearance was an essential requirement of the applicant’s employment. The loss of that qualification was a valid reason for the dismissal.

[62] It was accepted by both parties that it was not my role to determine whether the AGSVA decision was correct. There was a review of that decision conducted at a senior level and the decision was confirmed. My role is to determine whether the decision taken to dismiss the applicant was unfair.

[63] The applicant submitted that it was not his position that ASD was involved in a conspiracy. His main concerns appeared to be that:

[64] Having considered all the evidence I am satisfied that the decision taken by Mr McKenzie to request that AGSVA conduct a review for cause of the applicant’s security clearance was not motivated by any reason other than legitimate security concerns. Similarly, I am satisfied that there was no obligation on Mr McKenzie to institute a Code of Conduct process in respect of the applicant’s conduct given his decision to refer the matter to AGSVA. The security concerns were of paramount importance and in the circumstances any Code of Conduct process was unnecessary. I do not find any evidence that Mr McKenzie, as Director ASD misused the AGSVA process in order to bring about the termination of the applicant’s employment. I accept Mr McKenzie’s evidence concerning his reasons for requesting the AGSVA review, including his evidence that the applicant’s altercation with the staff member that was the subject of the QA in December played little, if any, part in that decision.

[65] I do not accept that the AGSVA process was, as suggested by the applicant, manufactured to bring about the termination of his employment or, in any way, pre-determined. Such a predetermination would indicate the existence of a conspiracy, and the applicant clearly stated that he was not suggesting a conspiracy. It is evident that the process was lengthy and thorough and that the applicant was given every opportunity to put forward matters which he considered should be brought to the attention of the AGSVA reviewer. It is not for me to deal with whether the decision made by AGSVA was correct. As already noted the decision was the subject of a review which confirmed the original decision. In this respect I accept in full the explanations given by Mr McKenzie for those contents of the MRB minutes upon which the applicant relied to argue that the decision to terminate was made by the MRB and not AGSVA.

[66] In my view there is nothing to support the applicant’s claims that the termination letters sent by ASD were designed to force him to resign. Clearly, the preferable position for ASD was that the applicant did resign and that his departure occurred with as little resentment on his part as could be managed. Unfortunately this did not occur and, after initially agreeing to resign, the applicant decided he was not comfortable with signing the deed put forward by ASD and ASD continued with the termination. I am satisfied that it was for this reason (the applicant’s initial decision to resign his employment) that the Employment Separation Certificate was incorrectly completed and resignation given as the reason for the termination. I do not accept that this mistake resulted from any other motivation on behalf of the employer and am unable to understand why the applicant believed that the mistake had some other motivation. The termination letter was clear and the Defence computer records indicated that the reason for the applicant’s departure from ASD was the termination of his employment. The only real purpose of the Employment Separation Certificate is to enable Centrelink to determine the applicant’s eligibility for unemployment benefits. I accept that the document should have been accurately completed but do not accept that the mistake in any manner affected or disadvantaged the applicant. A corrected document was supplied when the mistake was brought to the attention of the employer.

[67] Upon the decision being made by AGSVA to revoke the applicant’s security clearance, the employer wrote to the applicant informing him that there was an intention to terminate his employment for loss of the essential qualification and the applicant was invited to respond. I am unable to accept the applicant’s contention that despite the loss of his security clearance he could have continued to work for the employer. I accept the evidence of Mr McKenzie that all employees of ASD are required to have a TSPV clearance and that every employee of the Department of Defence is required to hold at least a baseline security clearance. Although the applicant claimed that this was not the case there was no evidence to support his claim. It is certainly my experience that all employees of the Department of Defence are required to have at least a baseline security clearance.

[68] In light of my findings that:

it is apparent that there was a valid reason for the termination.

Notified of the reason

[69] There is no dispute that the applicant was advised on 21 August 2013 that his employment was to be terminated as a consequence of the loss of his TSPV security clearance.

Opportunity to respond

In his letter of 30 July 2013 Mr McKenzie invited the applicant to respond to the proposed termination of his employment. The applicant responded to that letter.

Support Person

[70] The applicant does not claim that the respondent at any time unreasonably denied him the assistance of a support person.

Unsatisfactory Performance

[71] The applicant acknowledges that his dismissal was not connected to any unsatisfactory performance on his part.

Size of employer and HR expertise

There was no submission to the effect that that the size of the employer or any lack of human resources expertise impacted on the procedures adopted in effecting the termination. The respondent is a large Commonwealth agency with dedicated human resources expertise.

Other relevant matters

[72] There are no other relevant matters which I need to take into account in determining whether or not the dismissal was unfair. While I accept that the applicant’s skills are not easily transferable, I am satisfied that the employer made every attempt to assist the applicant’s transition from his employment. He received benefits over and above his legal entitlements.


[73] Given those matters set out above I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable.


The applicant in person.

Mr T Begbie of Counsel, with Mr J Ensbey of the Australian Government Solicitor, for the respondent

Hearing details:



May 12.

 1   Exhibit M1 Paragraph 2

 2   Exhibit M2

 3   Exhibit M1

 4   Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 at [60]

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