In 2006, the Applicant (Mr Chivonivoni), moved his family from Zimbabwe to Australia. In 2014, the Applicant obtained employment with Aerobond which contracted his services to Cobham. In 2016 the Applicant became an Australian Citizen, holding dual citizenship. In 2018, the Applicant was directly employed by Cobham in the same position.
The Applicant’s position required security clearances to work on defence sensitive equipment and Controlled Devices (CDAs). The Respondent conducted an internal security audit in 2019, identifying the Applicant as a potential risk to the Respondent’s clients, due to restrictions under the International Traffic in Arms Regulations (ITAR), solely on the basis of his Zimbabwe citizenship.
The Respondent was concerned about potentially breaching the ITAR, primarily as the ITAR is designed to restrict the supply and disclosure of CDAs to nations or citizens that are considered a risk to the United States (of which Australia is a partner). The Respondent interviewed the Applicant regarding his citizenship and asked the Applicant to renounce his citizenship; the Applicant declined.
The Respondent sought to redeploy the Applicant but was unable to do so. Consequently, the Applicant’s employment was terminated by the Respondent. Deputy President Anderson of the Fair Work Commission determined the dismissal was unfair stating:
‘Although acting in good faith, Cobham took an excessively risk-averse approach to protecting its commercial and contractual interests’.
The Applicant sought reinstatement, to which the Respondent opposed. Anderson DP determined that the conclusion reached should be soundly and rationally based – and in this case, there was nothing to suggest the Applicant would not go on to be a model employee given his unblemished record.
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 FWC 3568.
Authors: Cameron Niven (Lawyer) & Nigel Saines (Principal)