Defence Business Issue 52 OCT-DEC 2020

Oct - Dec 2020 Defence Business
PIPER ALDERMAN
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Cobham undertook a screening process in this case, to consider Mr Chivonivoni’s level
of “contact” with Zimbabwe’s government. The employee advised that:
• he had relatives who potentially worked for government departments as teachers
or nurses, but that he did not know for certain, because he left the country in
2012 and had not returned
• he had an uncle who worked in the Ministry of Education, but he did not know if
he still worked there
• he occasionally spoke with parents and siblings who still live in Zimbabwe and
• he had no property in Zimbabwe, though he owned a flat in South Africa.
Cobham had concluded these factors indicated substantive contacts with Zimbabwe.
The Commissioner disagreed, finding that the level of contact Mr Chivonivoni had with
Zimbabwe was “unremarkable”.
The Commissioner also concluded that Cobham could have, instead of terminating
the employment, alleviated the risk of breaching the ITAR by asking Mr Chivonivoni to
enter into a Non-Disclosure Agreement. (Though it is worth noting that this may not
always be an appropriate method of managing the risk.) The Commission said that the
ITAR did not operate as an absolute bar to any dual citizens of proscribed nations from
being able to work for defence-contracting organisations like Cobham.
Finally, the Commission concluded that the fact that Cobham had an exemption from
equal opportunity legislations allowing it to discriminate on nationality grounds, was
not relevant to the issue of whether there was a valid reason for the dismissal of an
existing employee.
Key Takeaways
The outcome of the decision seems to be at odds with the significant weight placed on
ITAR compliance in the defence industry. The decision highlights the tension between
stringent international obligations and the Fair Work Act’s focus on fairness to an
individual employee.
"A key consideration in that jurisdiction is
whether there was, objectively, a valid reason
for the termination. Deputy President Anderson
determined that there was no valid reason for
the termination and ordered the employer to
reinstate and back-pay the employee."
While each case will turn on its own facts, for organisations where ITAR compliance is
required it is important to:
• Ensure that ITAR compliance is incorporated into recruitment processes given that
different considerations will arise in recruitment as opposed to possible termination
of an existing employee
• Incorporate ITAR compliance obligations into contracts of employment
• If an ITAR issue arises with an existing employee, it is important to consider
any possible exemptions including assessing the real level of “contact” with a
proscribed nation, remembering that the mere fact of citizenship may not be
sufficient to warrant intervention to comply with the ITAR
• bear in mind that any discrimination exemptions applying to the organisation will
not render an otherwise “unfair” dismissal into a fair one for the purposes of the
Fair Work Act; and
• seek specialist legal advice to ensure that any ITAR related employment changes are
consistent where possible with the Fair Work Act.