Can client preference be a reason to dismiss employee?

The Fair Work Commission (FWC) has ruled over an unfair dismissal claim relating to an employee who questioned her dismissal over a client’s preference that turned out to be an inherent requirement of her employment contract.

The employer is an IT service provider which specialises in providing and customising a help-desk software platform. The employee was on two employment contracts with the employer for one short-term contract and one as a consultant.

An employment condition stated that the employee should obtain and maintain an Australian Government Security Vetting Agency (AGSVA) baseline security clearance since the employer’s clients required it. The employee was an infrastructure engineer who previously worked for the public sector. She held the required security clearance due to her public work “but it ceased when she started work in the private sector”.

Later, the employee was charged with a series of drug-related offences where she was found guilty. She then informed her employer about her conviction.

To continue her employment, the employer placed her to work with its only client that did not require security clearance but after a while, the client subsequently required a police check. According to records, the employee was “unable and unwilling” to obtain it, an allegation that she denied.

The employer then determined that it could not give “further roles” since all its clients required police checks and security clearance. Upon termination, the employee argued that the employer “prematurely and unreasonably assumed her criminal record would exclude her from maintaining her security clearance”.

Before the FWC, the employee said she was employed as a tender writer who did not need a security clearance. The employer argued that she was “not solely” as a tender writer and her employment condition of holding and maintaining the required security clearance were “inherent requirements” of her role and not just the clients’ preference.

The employer said that her dismissal was not over her criminal record since it was acquired after employment. “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 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,” the employer submitted.

In its decision, the FWC said it was satisfied that there was a valid reason for her employment termination, saying her employment conditions were clearly stated.

Thus, it held the dismissal was not unjust or unreasonable. The decision was handed down on 4 February.