[2026] FWC 722
General information, not legal advice.
Fair Work Commission
2026-03-04
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 4 March 2026.
The previous decision contained the full name of the Applicant which has now been removed due to privacy concerns.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - loss of security clearance - whether an inherent requirement of role - valid reason established - termination not harsh, unjust, or unreasonable - application dismissed.
[1] This decision concerns an application made by the Applicant for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 Cth (the Act). The Applicant was employed by Triple Zero Victoria (the Respondent) and was dismissed on 1 October 2025. The unfair dismissal application was lodged by the Applicant on 17 October 2025. The matter was listed for hearing before me on 23 February 2025 to deal with the merits of the application. Both parties filed material in advance of the hearing in accordance with directions issued.
[2] Mr Dan Dwyer, of the CEPU Communications Division (CWU) who appeared on behalf of the Applicant, called him and Mr David Marshall (Application Specialist - CAD) to give evidence. Mr Andrew Crocker of Counsel, who was granted permission to appear on behalf of the Respondent pursuant to s 596(2) of the Act, called Ms Jacinta Thompson (Executive Director Emergency Communications Information Services & Chief Information Officer/Chief Information Security Officer) and Mr Anthony Jones (Manager, Operational Mapping and Data) to give evidence for the Respondent.
"Ensuring ESTA employees exposed to and delivering ESTA services to Victoria Police are subjected to security vetting, including the declaration of conflict of interest and declarable associations in the same manner as Victoria Police recruiting and employment and as per the Service Delivery Requirements."[4]
[6] The Applicant reported to Mr Jones who is the Respondent's Operational Mapping and Data Manager and is responsible for the Data Group within which the Applicant worked. Mr Jones gave evidence in relation to the Applicant's role and the Data Group. Mr Jones described the Data Group's core function as follows
"......to manipulate and manage data within TZV's Computer Aided Dispatch (CAD) system by taking submissions/information provided by the various ESOs we work with and converting them into operational CAD workflows. This includes adjusting and maintaining records to ensure that appropriate resources are available, such as confirming that the correct vehicles with the required equipment are selected. This also involves managing technical configurations and response plans - for example, in the event of a fire in the CBD, the system is configured to select the appropriate fire appliances with the necessary capabilities. This work involves translating complex technical information and information provided by ESOs into the data formats and rules that are used by CAD that are then used to effectively provide operational responses."[5]
[11] During cross-examination, Mr Taylor also elaborated on other databases that employees of the Respondent may access if authorised. This included LEAP and ERIC. LEAP is a VicPol database that some authorised employees of the Respondent (such as Police Dispatchers) may be authorised to access. Mr Taylor confirmed that he did not have LEAP access and nor had the Applicant in his former role. The LEAP database contains all information recorded electronically by VicPol officers on cases they are involved in. He described ERIC as a database, available to employees of the Respondent, which is a catalogue of information and reports; replicating the CAD database in the corporate network. He confirmed that ERIC content appears the same as CAD content from a reader's perspective.
[12] During cross-examination, the Applicant gave the following evidence in relation to his duties, including access and use of CAD;
2.2 Service providers and external government agency personnel who require access to Victoria Police information and/or systems
providers and external government agency personnel who require access to Victoria Police information and/or systems for a legitimate business need.
[17] The Deed then provides a section dealing with its interpretation as follows
In this Deed unless the context otherwise requires, or the contrary intention appears:
[18] The Deed comprehensively details the obligations of the 'confidant,' in this case the Applicant, in respect of maintaining the confidentiality of all VicPol Information. It then goes on to detail the consequences of breach as follows;
The Confidant acknowledges and agrees that a breach by him/her of any clause of this Deed will entitle Victoria Police to:
In addition, the Confidant acknowledges and agrees that any breach by him/her may constitute an offence punishable by way of a fine or imprisonment.
[20] During cross-examination, the Applicant stated that he only became aware of the VicPol Security Clearance requirement recently, that he was not made aware of it at the time of his commencement of employment with the Respondent, and that the possession of such a clearance was not part of his Employment Agreement. As regards the Deed, he says he was not provided with a copy of the Deed prior to his dismissal, he could not recall signing it in June 2023, and despite his efforts could find no record of having signed it. He further stated that had he signed it, he believed he would have kept a record of it. He conceded that had no reason to doubt the authenticity of the document given that it was forwarded by VicPol to the Respondent on 18 September 2025. He accepted that the Deed was apparently signed on 20 June 2023, 6 days after he signed his Employment Agreement and prior to his commencement of employment on 10 July 2023.
[21] When cross-examined on the security clearance requirements, Ms Thompson conceded that she was not familiar with the process, that she was unsure if the Respondent circulated copies of the VicPol Manual to its employees, and that she was unaware of the Applicant's security clearance or Deed until she received a copy of the Deed from VicPol on 18 September 2025. She confirmed that she possessed a VicPol Security Clearance from her time as an employee of VicPol. She also claimed that the Respondent's employees were aware they had to do additional checks on commencement of employment and that the majority of employees, including IT staff, had access in their roles to what is described in the Deed as Victoria Police Information.
[22] Mr Jones was similarly unaware of whether he had a VicPol Security Clearance and could not recall applying for or being issued with one. He also agreed that the PD for the Applicant's former role made no mention of the requirement to hold a VicPol Security Clearance.
[23] Mr Marshall is currently employed by the Respondent as an Application Specialist - CAD and also acts as a workplace delegate, a role he says he has carried out for 18 years. He challenges the Respondent's view that possession of a VicPol Security Clearance is an inherent requirement of the Applicant's former role and states as follows;
[31] On 2 December 2024, the Applicant was sent a letter by Ms Rubira indicating the Respondent had reviewed his disclosure and decided to resolve the disciplinary matter in relation to the misconduct by issuing a first and final warning. The letter relevantly stated as follows;
Disclosure of Triple Zero Victoria (TZV) information and warning letter
Thank you for providing your statement dated 20 November 2024 in which you acknowledge disclosing confidential TZV information to a third party in relation to a personal matter you were involved in. TZV is taking this information in good faith as we are yet to be advised by Victoria Police.
As you're aware this conduct is in breach of several policies and procedures including the TZV Code of Ethics and Values. We note your genuine remorse, accountability, and honesty throughout the process.
As a result, TZV has decided to issue you with a first and final warning. Should this conduct be repeated, it may result in further disciplinary action up to and including termination of employment.
Please also be aware that should TZV be advised by Victoria Police of other charges or offences, TZV will review any further action to take.
This letter is to confirm the conversation with Vanessa Rubira on 05 February 2025.
Due to Victoria Police (VicPol) revoking your police clearance, you have been on a combination of paid company leave and your own personal and annual leave for the past several months. However, as of 25 January 2025, your personal and annual leave accruals have been exhausted. You do have long service leave balance of 13.7496 weeks which you have chosen not to use.
Triple Zero Victoria (TZV) have agreed to approve six months LWOP from 25 January 2025 to 24 July 2025 whilst you attempt to sort out this matter with VicPol.
Should this matter not be resolved within this timeline, TZV will review your employment status and discuss this with you.
[34] During cross-examination, the Applicant disagreed that he had requested six months LWOP as inferred by the 7 February 2025 letter from Ms Thompson.
[36] On 21 May 2025, Ms Prue Taylor, Senior Manager Workforce Operations for the Respondent, sent an email to the Contractor Security Manager at VicPol in the wake of the above-referred court proceedings. She relevantly stated as follows;
[the Applicant] has advised that he recently attended court proceedings related to the matter that resulted in his security clearance being revoked. The court found guilty without conviction on the charge of disclosure of confidential information with an undertaking for a good behaviour bond form.
I have been asked by Executive to seek an understanding of whether the security clearance is likely to be reinstated following this finding from the court. And if not, does that change at the expiry of the good behaviour period (assuming no issues during that time)?
I am not sure if any advice can be provided or whether the best path forward would resubmission to determine the outcome? Any advice would be greatly appreciated.
[44] On 14 July 2025, the Applicant sent a further email to Ms Thompson in the following terms;
The email is in addition and was a response to the newly provided document.
My response is as per my letter and Thursday's meeting.
1: There is nothing in my employment contract indicating I must maintain a Victoria Police contractor security clearance.
2: Notwithstanding, Triple Zero Victoria are not contractors of Victoria Police.
3: Adherence to internal Victoria Police policy is impossible as it's not available to Triple Zero Victoria employees and has never been available to me.
4: I have been provided no procedural fairness nor natural justice in the matter and any decision by Victoria Police, who is not my employer, is arbitrary, secret and unchallengeable by myself.
5: Triple Zero Victoria has directly blocked myself from dealing with this issue with Victoria Police.
6: I meet the requirements of my employment contract and there is no cause at all for dismissal, termination or any other cause of action.
7: Victoria Police are applying a higher standard to myself than they do to a serving, sworn and members of their own organisation. Numerous examples are given in the recent IBAC report.
8: Victoria Police and Triple Zero Victoria have both been chastised by HREOC for this exact issue before (Gordon v Victoria 2006)
The provision of the policy after the meeting has raised more issues and concerns than discussed on Thursday, and while they can be read in conjunction with that was advised on Thursday. The above summary is my formal response.
[47] Ms Thompson was taken during cross-examination to s 2.5 of the VicPol Manual which deals with 'Assessment of security checks.' Relevantly, the VicPol manual states that in conducting a security assessment, the assessor 'should not consider spent convictions.' Ms Thompson was asked whether she was aware of the relevant definition of 'spent convictions' and that it includes where a conviction is not recorded, as occurred in the Applicant's case. Ms Thompson responded that she was not familiar with the legislation. She also conceded that she did not raise with VicPol during her various discussions with them about the Applicant that his court outcome recorded no conviction which arguably gave it the same status as a spent conviction under s 2.5 of the VicPol Manual. When further pressed on whether the Applicant was able to seek a 'review' of an unfavourable assessment in accordance with s 9 of the VicPol Manual, she responded that she did not know.
[48] On 3 September 2025, Ms Thompson met with several representatives from VicPol to discuss whether VicPol would be willing to reinstate the Applicant's Security Check. The VicPol representatives in attendance at the meeting included the Assistant Commissioner, the Acting Chief Information Security Officer, and the Manager of the Personnel Security Unit. Ms Thompson states that during the meeting the Applicant's case was discussed at length including the following matters;
(a) Ms Keenan and Ms Thompson provided information they held about the resolution of the Applicant's criminal charges and the Respondent's ability to consider having him return to the workplace;
(b) VicPol emphasised that it was necessary that the Applicant access information which had been sourced from VicPol to carry out his role;
(c) VicPol noted the Applicant had misused the Respondent's systems and been found guilty of an offence;
(d) VicPol also noted the Applicant had breached the Deed that he had signed in favour of VicPol on 20 June 2023 ; and
[51] A threshold issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be "dismissed" are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[52] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute, and I find that the Applicant's employment with the Respondent terminated at the initiative of the Respondent.
[53] Having found that the Applicant was dismissed with the meaning of s 386(1) of the Act, I am now obliged under section 396 of the Act, to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
[54] Relevant to the determination of the preliminary matters I am satisfied that;
[55] Having considered each of the initial matters, I am satisfied that the application was made within the required period in s 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application, and it is to that I now turn.
Was the dismissal harsh, unjust, or unreasonable?
[56] Section 387 of the Act provides that, 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.
Was there a valid reason for the dismissal related to the Applicant's capacity or conduct - s 387(a)?
[58] The Applicant was engaged in the position of Data Group Lead, the accountabilities of which were set out in the PD for the position. Mr Jones gave largely unchallenged evidence in relation to the CAD system and the requirements of the Data Group Lead, including the need for the Applicant to engage with data sourced from VicPol that was held in the Respondent's CAD and other databases. There can be no doubt based on the definition contained in the Deed entered into by the Applicant, that information sourced from VicPol that is held in the Respondent's databases, falls under the definition of Victoria Police Information.
[59] The Applicant disagreed with Mr Jones' evidence that engaging with Victorian Police Information was necessary for the performance of his role. The Applicant sought to draw a distinction during cross-examination between accessing VicPol databases such as LEAP, which he did not have access to, and accessing information held in the Respondent's databases. The distinction sought to be drawn was unpersuasive. Moreover, the Applicant failed to effectively rebut Mr Jones evidence, by way of any reply material or during his cross-examination, regarding the need for the Data Group Lead to regularly engage with the CAD system which held data sourced from ESO's: including VicPol. It follows that I am comfortably satisfied that accessing the CAD and other databases held by the Respondent that contained confidential information sourced from VicPol was a necessary part of the Applicant's role. Given Mr Jones' evidence on the work performed by the Applicant in his former role and the Data Group more generally which I accept, I am further satisfied that a capacity to access CAD and engage with the Victoria Police Information held within it, was an inherent requirement of the Applicant's former role. Tellingly, the Applicant failed to explain how he could perform his former role without such access.
[60] Turning now to the revocation of the Applicant's VicPol Security Clearance. I am satisfied on the basis of the evidence set out above, that on commencement of employment with the Respondent, the Applicant entered into a Deed with VicPol as part of his employment with the Respondent. The Deed set out the Applicant's obligations and the consequences of breaching them. The consequences of breaching the Deed included revocation of the Applicant's access to Victoria Police Information. I am satisfied that the Applicant's disclosure of Victoria Police Information sourced from the Respondent's databases, for which he was subsequently charged and found guilty, was a breach of the terms of the Deed.
[61] While the Applicant states he could not recall signing the Deed, I am comfortably satisfied that he did sign it on 20 June 2023. The Applicant did not challenge and nor is there any reason to doubt the authenticity of the document which was provided by VicPol to the Respondent on 18 September 2025. Further, signing of the Deed on 20 June 2023, fell within the period of the Applicant's on-boarding process with the Respondent. That is, it fell in the period between the Applicant signing his Employment Agreement on 14 June 2023 and commencing employment on 10 July 2023. The timeline supports my conclusion that the Applicant did in fact sign the Deed despite claiming no recollection of this.
[62] Returning briefly to the timeline of events, VicPol formally advised the Respondent on 5 September 2024 that the Applicant was no longer suitable to work as a service provider to VicPol. This followed earlier advice given to the Respondent which was passed on to the Applicant on 28 August 2024 that VicPol had revoked his VicPol Security Clearance. The Applicant was then directed to take paid leave for a period of several weeks following which he took several months of LWOP. During the period between 28 August 2024 and the Applicant's dismissal on 1 October 2025, the Applicant was interviewed by VicPol officers in relation to a breach of TZV Act, charged then dealt with in court proceedings on 16 May 2025, resulting in a finding of a guilt, the imposition of a fine and a 12-month good behaviour with no conviction recorded.
[63] In the wake of the above-referred court proceedings, VicPol declined to reverse its earlier decision to revoke the Applicant's VicPol Security Clearance. The position of VicPol was confirmed in an email from Ms Barrera to Ms Taylor on 27 May 2025 and reaffirmed in a meeting between representatives of the Respondent and VicPol on 3 September 2025. The refusal of VicPol to reverse its decision to revoke the Applicant's VicPol Security Clearance, placed the Respondent in a position where it was unable to permit the Applicant perform the Data Group Lead role: the Applicant was no longer an authorised 'service provider' within the meaning of the VicPol Manual.
[64] The Applicant contends that the Respondent lacked a valid reason to dismiss him for the reasons set out below;
[65] The Applicant's maintenance of a satisfactory National Police Records check at all times during his employment with the Respondent was not at issue in these proceedings. Nor was it in dispute that the only specified security requirement in the Applicant's Employment Agreement was that of the maintenance of a satisfactory National Police Records check. No reference was made in the Employment Agreement to the requirement for the Applicant to maintain a VicPol Security Clearance.
[66] The absence of any reference in the Employment Agreement to the VicPol Security Clearance requirement, does not however mean that the Respondent is unable to rely on the requirement for the Applicant to possess such a clearance. That requirement is imposed on the Respondent by the administrative arrangements existing between VicPol and the Respondent, and by the VicPol Manual where it deals with the security requirements for service providers. I have found above that such requirement was an inherent requirement of the Applicant's former role. I accept however, that the opaqueness of the arrangements between VicPol and the Respondent in relation to the security clearance requirements for the Respondent's employees is unsatisfactory; on which I will have more to say further in this decision. That said, the Applicant entered into a Deed with VicPol on commencement of his employment and ought to have been aware of the consequences of breaching its terms.
[67] It might be said in this case, for all the Applicant's complaints about the security screening process, that he was to some extent the architect of his own misfortune. He signed the Deed with VicPol, which clearly spelled out the potential consequences of a breach of the Deed's obligations. He breached the confidentiality terms of the Deed, was charged pursuant to s 63 of the Triple Zero Act. He was found guilty of the charge, without a record of conviction recorded, and now complains of the consequences of that confidentiality breach: loss of access to Victoria Police Information and consequent loss of his employment. This is not a case in my view where the Applicant can legitimately argue he was blindsided by the outcome.
[69] The relevant circumstances of Christie was that of the imposition by Qantas of a requirement for its international pilots to be under the age of 60. That requirement was not contained in the relevant contract of employment or industrial instruments that covered Mr Christie. Rather, the requirement was imposed by an international civil aviation convention that imposed a requirement on State parties to the convention to not permit a pilot who had attained the age of 60, to act as a pilot in command of an international air service. The vast majority of countries into which Qantas flew were party to the convention and enforced the requirement, even though Australia did not. The High Court found that an inherent requirement of the role of an international pilot flying for Qantas, was that of being under the age of 60.
[70] The principle in Christie is relevant to the present matter, where the Employment Agreement and the 2024 Enterprise Agreement make no reference to what I have found is an inherent requirement of the Applicant's former role.
[71] Turning to the Applicant's contention that he is not required to access any VicPol database. I accept that the Applicant did not have access to LEAP or any other VicPol database. That however is irrelevant to the question of whether the Applicant had access to Victorian Police Information, which I have found he needed access to in order to perform his role. An argument that access to information sourced from VicPol and stored on the Respondent's databases, would not enliven the confidentiality obligations imposed by the Deed must be rejected. The Victoria Police Information wherever stored, be that in LEAP or CAD or other databases maintained by the Respondent such as ERIC, does not alter the confidential nature of the information. The unauthorised release of such information clearly breaches the terms of the Deed, and as occurred in the Applicant's case, led to VicPol's revocation of his access to Victoria Police Information, rendering the Applicant unable to perform his role.
[72] The Applicant contends that his disclosure of confidential information to a 3rd party was dealt with by the Respondent in November 2024, by the imposition of a first and final warning. The argument is misconceived because the reason for the Applicant's dismissal was not because of his breach of confidentiality. His dismissal was because of the loss of his VicPol Security Clearance and the consequent inability to perform the inherent requirements of his role. The Applicant appears to conflate the two issues.
[73] The Applicant's complaint that VicPol failed to comply with aspects of its own VicPol Manual takes his argument on valid reason no further. His claim may well be correct but does not alter VicPol's decision or its refusal to reverse that decision. It is not apparent how that complaint regarding VicPol's compliance with the VicPol Manual can alter the fact that the Applicant's authority to work as a service provider to VicPol was revoked. Nor is it within the Commission's jurisdiction in this matter to determine the rights and obligations of VicPol in its application of the VicPol Manual, when it is not a party to these proceedings.
[74] The Applicant further contends that he was denied an opportunity to challenge and/or seek a review of VicPol's decision to revoke his security clearance. That argument may bear upon procedural fairness or other criteria to be considered under s 387 but is not relevant to the question of whether there was a valid reason for his dismissal. Similarly, the failure of the Respondent to provide a copy of the signed Deed, prior to the Applicant's dismissal and after it received a copy on 18 September 2025; might also go to the process of dismissal but does not bear upon the reason for the dismissal, that being the loss of the Applicant's VicPol Security Clearance. I would observe however, that having signed the Deed in June 2023, it might have been assumed that the Applicant retained a copy: although he says he has no record of it.
[75] It follows from the foregoing that I am satisfied that the dismissal of the Applicant was supported by a valid reason related to his capacity, being his inability to perform the inherent requirements of his former role due to the revocation of his VicPol Security Clearance. This weighs in favour of a finding that the dismissal was not unfair.
[77] The Applicant in his reply submissions submits that the actual reason for his dismissal was never articulated other than the reliance of the Respondent on the revocation of his VicPol Security Clearance. With respect, that was the valid reason for his dismissal. The loss of his security clearance prevented him from fulfilling the inherent requirements of his role. The submission that the Applicant was not notified of a valid reason for his dismissal prior to the dismissal decision is rejected.
[78] I am satisfied that the Applicant was notified on 7 July 2025 that the Respondent was considering the termination of the Applicant's employment based on the revocation of his security clearance. A show cause meeting was then held on 10 July 2025, following which the Applicant sent correspondence to the Respondent on 12 & 14 July 2025 to supplement the responses he provided during the meeting of 10 July 2025. It is apparent from the 7 July 2025 correspondence from the Respondent and the Applicant's subsequent correspondence, that the Applicant was on notice of the valid reason subsequently relied on by the Respondent in dismissing him. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct - s 387(c)
[79] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[74]
[80] Contrary to the submission of the Applicant, he was provided with an opportunity to respond to the reason for his dismissal in a meeting on 10 July 2025 and in further correspondence to the Respondent on 12 & 14 July 2025. It is evident from the Applicant's correspondence that he was aware that the Respondent was considering the termination of his employment because of the loss of his VicPol Security Clearance. He advanced in that correspondence a number of reasons why such action would be unfair, including that his contract of employment did not require the maintenance of a VicPol Security Clearance and that the VicPol Manual, a copy of which was provided to him on 11 July 2025, did not apply to the Respondent and by extension to him.
[81] The arguments advanced by the Applicant in response to the proposed termination of his employment were not accepted by the Respondent. That does not mean the Applicant was denied an opportunity to respond to the reasons for his dismissal. The opportunity to respond does not require an employer to accept the points made by an employee; it requires an employee to be able state their case to their employer prior to a dismissal decision being taken and for their explanations or position to be considered.
[82] The Applicant also contends that he was denied a procedurally fair process because he was denied an opportunity to seek a review of VicPol's decision to revoke his VicPol Security Clearance, having been instructed by the Respondent not to contact VicPol regarding the security clearance. I accept that; the VicPol Manual permits an individual to seek a review of an unfavourable decision of VicPol and that the Applicant appears to have been prevented from seeking such a review prior to his dismissal. This goes to whether the Applicant was denied an opportunity to persuade VicPol to reverse its security clearance revocation decision. It does not however go to the Applicant's opportunity to respond to the Respondent on his proposed dismissal. The opportunity to respond in the context of s 387(c) is not in my view concerned with the ability of an individual to put their case to a third party that is external to the employment relationship. It is concerned with the opportunity to respond to the employer. The Applicant was clearly given that opportunity.
[83] The Applicant further submits that he was not provided with a copy of the Deed that he entered into with VicPol on 20 June 2023, after it was provided by VicPol to the Respondent on 18 September 2025. The Respondent might have assumed that the Applicant held a copy of the Deed having signed it on 20 June 2023. The Applicant says that was not the case, however. Even if it were assumed by the Respondent that the Applicant held a copy of the Deed, it would still have been appropriate for the Respondent to have put the existence of the Deed to the Applicant during the show cause process. While this is an omission on the Respondent's part, I do not believe that its failure to put the existence of the Deed to the Applicant prior to his dismissal, materially impacted on the Applicant's opportunity to respond. He did not advance during the proceedings how his opportunity to respond to his proposed dismissal would have materially changed had a copy of the Deed been provided to him before his dismissal, or how the outcome would have been different. Rather than assist him resist his proposed dismissal, the existence of the Deed weakened his position, which in my view would not have changed had he been given an opportunity to comment on the Deed before the dismissal.
[84] Notwithstanding my comments in relation to the Deed, I am satisfied that the Applicant was afforded an opportunity to respond to the capacity reasons relied on by the Respondent in terminating his employment. This weighs in favour of a finding that the dismissal was not unfair.
[85] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant was not refused the right to be accompanied by a support person in discussions relating to his dismissal. I regard this as a neutral factor to be weighed in my consideration.
Warnings regarding unsatisfactory performance - s 387(e)
[86] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed - s 387(f)
[87] The Respondent's Form F3 indicates that at the time of the Applicant's dismissal it employed 1,400 employees. The Respondent does not contend that its size adversely impacted on the processes it followed in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed - s 387(g)
[88] The evidence in this matter indicates that the Respondent did have access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.
[89] There are number of other relevant matters which in my view bear upon the unfairness of the dismissal. These are as follows.
[90] Firstly, the opaqueness of the VicPol Security Clearance process is problematic in my view. Contracts of employment of the Respondent's employees, while referring to the National Police Checks requirements, make no reference to the additional layer of security checks imposed by VicPol on the Respondent and its employees. There is little visibility or knowledge of the requirements or processes involved. It is entirely unclear to me why those additional security requirements are not spelt out clearly in contracts of employment, along with the process of VicPol granting and revoking such security clearances and the potential employment consequences in circumstances where a VicPol Security Clearance is revoked. The present case brings that issue into stark relief. The opaqueness of the additional security requirement and process adds to the harshness of the dismissal decision.
[91] The Applicant also raises the following three matters. The VicPol Manual and the Administrative Arrangements Part B documents were not provided to him until after the 10 July 2024 show cause meeting, while a copy of the Deed was not provided to him until after his dismissal. Dealing with the first two matters, I accept that the Applicant was not provided with copies of the VicPol Manual or Administrative Arrangements Part B documents until 11 July 2025 which was after the show cause meeting on 10 July 2025. Any detriment arising from that omission was remedied by the Applicant's opportunity to make further written submissions to the Respondent on 12 & 14 July 2025 which dealt in part with these documents. As regards the failure of the Respondent to provide a copy of the Deed to the Applicant prior to his dismissal, I have dealt with this issue when considering whether the Applicant had an opportunity to respond to the allegations.
[92] Having regard to the above I am satisfied that the opaqueness of the VicPol Security Clearance process is a matter that weighs in favour of a finding of harshness. Further it is a matter I would strongly encourage the Respondent to address moving forward, both by providing clarity in contracts of employment and through open communication with staff. The other matters raised by the Applicant do not weigh in favour of unfairness.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
[94] As set out above, I am satisfied that a valid reason for the Applicant's dismissal related to his capacity to perform the inherent requirements of his former role has been established. I am also satisfied that the Applicant was notified of a valid reason for his dismissal prior to the decision being made to terminate his employment and he was given an opportunity to respond to that reason. The dismissal was not related to the Applicant's performance, and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. The only further matter to be considered is the opaqueness of VicPol Security Clearance process which weighs in favour of a finding that the dismissal was unfair. While it is significant, it is not sufficient to displace the weight I give to the established valid reason and what I regard as a procedurally fair process.
[95] It follows from the above that having considered each of the matters specified in s 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal, the process followed by the Respondent was procedurally fair and no other factors weigh sufficiently in favour of a finding that the dismissal was unfair.
[96] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s 385 of the Act. The application is consequently dismissed. An Order will be separately issued giving effect to my decision.
[1] Exhibit A1, Witness Statement of the Applicant, dated 14 January 2026, at [4]-[9]
[3] Exhibit R1, Witness Statement of Ms Jacinta Thompson, dated 29 January 2025, at [11]-[14], Annexure JT-1, Administrative Arrangements Part B
[4] Exhibit R1, Annexure JT-1 at Court Book p.150
[5] Exhibit R2, Witness Statement of Mr Anthony Jones, dated 29 January 2025, at [6]
[12] Exhibit A1, Annexure CL-30 at clause 7
[13] Exhibit A1, Annexures CL-13 & CL-14
[19] Exhibit R2, Witness Statement of David Marshall, dated 9 January 2026, at [60]
[36] Ibid at [32]-[34], Annexure CL-04
[40] Ibid at [39]-[40], Annexure CL-08
[45] Exhibit A1, at [44], Exhibit R1, Annexure JT-3
Applicant
Triple Zero Victoria [2026] FWC 722