1
Fair Work Act 2009
s.604—Appeal of decision
Piyush Jain
v
Infosys Limited T/A Infosys Technologies Limited
(C2014/767)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BLAIR
MELBOURNE, 28 AUGUST 2014
Appeal against decision [[2014] FWC 1934] of Deputy President Hamilton at Melbourne on
15 April 2014 in matter number U2013/3348; whether dismissal a case of genuine
redundancy; whether modern award applied to Appellant’s employment; no significant error
of fact or any other appellable error identified; permission to appeal refused.
Introduction
[1] Piyush Raj Jain (Appellant) was dismissed from his employment with Infosys
Technologies Ltd (Respondent) on 23 September 2013 on redundancy grounds. The
Appellant was at the time of his dismissal employed in the position of Associate Manager
Client Services in the Sustainability Unit of the Respondent’s business. The Respondent
decided to close the Sustainability Unit for financial reasons and as a consequence of that
decision the Appellant was dismissed.
[2] The Appellant lodged an application under s. 394 of the Fair Work Act 2009 (Act) for
an unfair dismissal remedy. Subsequently the Respondent lodged a jurisdictional objection to
the application in which it alleged that the dismissal was a case of genuine redundancy within
the meaning of the Act. Prior to the commencement of the hearing to deal with the objection,
the Respondent applied for and was granted permission to be represented by a lawyer. The
Appellant opposed the grant of permission. His Honour concluded, inter alia, that there were
complexities involved in a determination of suitable redeployment positions in overseas
locations and that having regard to these complexities the grant of permission to the
Respondent to be represented by a lawyer would enable the matter to be dealt with more
efficiently1.
[3] His Honour notified of the parties, through his Associate by email on 13 March 2014
of his decision to grant permission to the Respondent to be legally represented
(Representation Decision), but no reasons for that decision were given2. His Honour’s reasons
for the Representation Decision were published when His Honour published his decision on
1 AB3; [2014] FWC 1934 at [4]
2 AB at 105
[2014] FWCFB 5595
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 5595
2
the substantive question whether the Appellant’s dismissal was a case of genuine redundancy,
on 15 April 20143.
[4] His Honour was satisfied that the dismissal of the Appellant was a case of genuine
redundancy within the meaning of s. 389(1) of the Act4. His Honour was also satisfied that the
Respondent had examined whether there was a position into which the Appellant might be
redeployed but no suitable position had been found. As the Appellant was not able to identify
any specific job, position or other work into which he could have been redeployed, His
Honour was unable to conclude that it would have been reasonable in all of the circumstances
for the Appellant to be redeployed within the Respondent’s enterprise or within an enterprise
of an associated entity of the Respondent5.
[5] By notice of appeal dated 5 May 2014 the Appellant seeks permission to appeal
against both the Representation Decision and His Honour’s decision in dismissing the
Appellant’s application because the Appellant’s dismissal was a case of genuine redundancy
within the meaning of the Act6. The Appellant also seeks to agitate errors said to have been
made by His Honour in declining to make an order to require the attendance of a person to
give evidence (Attendance Decision) and in that which the Appellant alleges was a decision
by His Honour not to make an order for production of documents (Production Decision).
The nature of the appeal
[6] Each decision against which the Appellant seeks permission to appeal is a
discretionary decision. Section 596(2) confers discretion on the Commission to grant
permission to a person to be represented by a lawyer in the limited specified circumstances set
out in that section.
[7] A decision whether a person has been unfairly dismissed turns relevantly here on
whether the Commission is satisfied that the dismissal was not a case of genuine redundancy7.
As the High Court of Australia pointed out in Coal and Allied Operations Pty Limited v
Australian Industrial Relations Commission and Others8, “discretion” is a notion that
indicates a number of different legal concepts9. It may refer, for example to a decision-making
process in which no one consideration or a combination of considerations is necessarily
determinative of the result, where the decision maker is permitted some latitude as to the
choice of the decision that is to be made10. The notion of the discretion also includes the
circumstance where a decision maker is required to make a particular decision if the decision
maker forms a particular opinion or value judgement11.
[8] A decision which requires the decision maker to be “satisfied” of a particular state of
affairs is one requiring the decision maker to form a particular opinion albeit by reference to
3 AB3; [2014] FWC 1934
4 AB5, AB6; Ibid at [11] and [14]
5 AB7; Ibid at [20]
6 AB 107
7 See section 385
8 (2000) 203 CLR 194
9 Ibid at 204
10 Ibid at 205
11 Ibid
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3
the particular facts and circumstances of the case and is therefore a decision that may be
described as discretionary12. That s. 396 requires the question of whether a dismissal was a
case of genuine redundancy to be determined before the merits of an application are
considered does not change the character of the decision to be made. Ultimately it is for the
Commission to be satisfied that the dismissal was not a case of genuine redundancy. Here His
Honour was satisfied that the Appellant’s dismissal was a case of genuine redundancy for the
reasons set out in his decision. It seems to us therefore that the appeal against that decision is
an appeal from a discretionary decision.
[9] As to those parts of the appeal that concern the Attendance and Production Decisions,
it seems clear enough from the terms of s. 590(2), the source of the power to make the
relevant orders, that a decision whether such orders should be made is also discretionary.
[10] A party may only appeal a decision or order made by a single member of the
Commission with the permission of the Commission13. Unlike appeals against decisions made
under other provisions of the Act, permission to appeal a decision made under the unfair
dismissal regime in Part 3-2 will only be granted if the Commission considers it to be in the
public interest to do so14. This limitation on the circumstances in which permission to appeal
may be granted does not apply to the Representation Decision,15nor to Attendance or
Production Decisions.16 If an error of fact is made by the first instance decision-maker in
relation to a matter arising under a Part 3-2 matter, an appeal will only be available if that
error of fact is a significant error of fact17. This is true in relation to each of the decisions the
subject of appeal to the extent that any of the decisions is said to be affected by factual error,
as each is a decision in relation to a matter arising under Part 3-2. More generally, other errors
made by a first instance decision-maker must be of a kind identified in House v King18.
[11] The question of when it would be in the ‘public interest’ to grant permission to appeal
in accordance with s.400 was considered by a Full Bench of Fair Work Australia in
GlaxoSmithKline Australia Pty Ltd v Makin19. The Full Bench observed:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the
predecessors to the Act for decades. It has not been considered useful or appropriate to define the
concept in other than the most general terms and we do not intend to do so. The expression “in the
public interest”, when used in a statute, classically imports a discretionary value judgment to be made to
be made by reference to undefined factual matters, confined only by the objects of the legislation in
question. [citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that guidance from an
appellate court is required, or where the decision at first instance manifests an injustice, or the result is
12Ibid
13 Section 604(1)
14 Section 400(1)
15 That decision is made under Part 5-1 of the Act and not Part 3-2
16 These decisions are also made under Part 5-1
17 Section 400(2)
18 (1936) 55 CLR 499; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to
the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v
King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA
appeals.
19 [2010] FWAFB 5343
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2014] FWCFB 5595
4
counter intuitive, or that the legal principles applied appear disharmonious when compared with other
recent decisions dealing with similar matters, it seems to us that none of those elements is present in this
case.”
Preliminary matters
[12] Before we consider whether permission to appeal should be granted and the
substantive matters raised by the appeal it is necessary that we deal with three preliminary
matters.
Permission to be represented by a lawyer
[13] The first concerns the application made by the Respondent that it be represented by a
lawyer in the appeal proceedings. That application was opposed by the Appellant. On 8 July
2014 we decided to grant permission to the Respondent to be represented by a lawyer because
it would enable the appeal to be dealt with more efficiently having regard to the complexity of
the appeal and because it would be unfair not to allow the Respondent to be represented as it
would not be able to effectively represent itself given the complexity of the appeal. These are
our reasons for the grant of that permission.
[14] As is evident from the notice of appeal lodged, the Appellant raises 17 grounds of
appeal. The appeal grounds raise errors said to have been made that are factual in nature and a
number that are legal in nature. In particular the question whether it was reasonable in all the
circumstances to redeploy the Appellant within the Respondent’s enterprise overseas or
overseas to another enterprise of an associated entity of the Respondent is not without
complexity. Given the size and nature of the Respondent’s global relationships the question
whether particular entities within this global relationship are associated entities is also not
without complexity. Other matters sought to be agitated on appeal such as the duty of a
member of the Commission to provide assistance to an unrepresented party and the extent to
which a member is obliged to inquire as to the existence of an applicable modern award are
also not without complexity. In these circumstances taking into account the complexity of the
matters that would be agitated on appeal, we were satisfied that permission to the Respondent
to be represented by a lawyer should be granted because it would enable the appeal to be dealt
with more efficiently.
[15] Further we were satisfied given the experience available amongst the employee
resources that might be called upon and deployed by the Respondent to conduct the appeal
that those employee resources lacked the necessary skill and experience to effectively conduct
the appeal for the Respondent, and that the Respondent would not be able in the
circumstances to represent itself effectively. Consequently we were satisfied that it be unfair
not to allow the Respondent to be represented by a lawyer because in the circumstances of
this appeal the Respondent is unable to represent itself effectively.
Application to admit further evidence
[16] The second matter concerns an application by the Appellant to be allowed to adduce
further evidence on appeal. The Appellant sought leave to adduce additional evidence in the
form of the Infosys Annual Report for 2013 – 2014, the Respondent’s Policy on Global
Relocation and the Respondent’s Policy on Global Staff Mobility. During the hearing of the
[2014] FWCFB 5595
5
appeal we did not allow the Appellant to adduce that evidence20. Our reasons for that decision
are as follows.
[17] Section 607(2) of the Act provides that:
The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
[18] Relevant material that comes to light subsequent to the time of an initial hearing may
be admitted if it bears on an issue to be determined in the appeal21. It is uncontroversial that
the exercise of the discretion to admit further evidence is governed by the principles set out in
Akins v National Australia Bank22. In Akins, the Court held at that:
Although it is not possible to formulate a test which should be applied in every case to determine
whether or not special grounds exist there are well understood general principles upon which a
determination is made. These principles require that, in general, three conditions need be met before
fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been
obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be
a high degree of probability that there would be a different verdict; (3) The evidence must be credible.23
[19] In considering whether to exercise the discretion in s. 607(2), it is permissible in an
appropriate case to depart from the principles set out in Akins and the principles need not be
strictly applied24. However, we do not think this is an appropriate case.
[20] The first of the documents sought to be introduced as additional evidence is of
marginal relevance to any issue that requires determination in this appeal or that required the
determination in the matter before His Honour. The annual report was sought to be tendered
in order to establish that there has been growth in the Respondent’s business over the last five
years25. That there has been such growth is accepted by the Respondent26. The annual report
does not contain information about vacancies in positions to be filled within the Respondent27,
or information from which it might be concluded that the Appellant was suitably qualified or
experienced to fill any such vacancies28. The report does not contain information which would
assist in determining whether other documents sought by the Appellant existed29.
[21] Whilst it is accepted that the annual report was not available to the Appellant at a time
when he could have sought to tender that document in the proceedings before His Honour,
20 Transcript PN 1522
21 The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust;
Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349 at [22]
22 (1994) 34 NSWLR 155
23 Ibid at [160]
24 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [95]
25 Transcript PN 1436
26 Transcript PN 1437
27 Transcript PN 1428 – PN 1429
28 Ibid
29 Transcript PN 1430 – PN 1433
http://www.fwc.gov.au/decisionssigned/html/2010fwafb9963.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb4349.htm
[2014] FWCFB 5595
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given the concession made by the Respondent, the admission of the annual report as evidence
is not necessary to make good that point. Nor would its admission serve to establish by
evidence any other point that the Appellant was seeking to make. Certainly it is not evidence
of the kind from which it can be said that there is a high degree of probability that there would
be a different decision if it were entered into the evidence.
[22] As to the second and third documents, policies of the kind to which the Appellant
refers were produced by the Respondent and given to the Appellant before the
commencement of proceedings before His Honour. It also seems clear that there is not in
existence a document which is a policy on international relocation in the event of
redundancy30. Given that such policies as maybe relevant to a question that requires
determination were available to the Appellant at the time of proceedings before His Honour,
but were not sought to be adduced as evidence, it does not seem to us appropriate that he be
given permission to introduce that material into evidence in this appeal. Further as neither
document deals with international redeployment of redundant employees, their relevance is
marginal.
Applicant to extend time in which appeal against representation decision may be instituted
[23] The third matter concerns whether the Appellant should be given leave to institute an
appeal against the Representation Decision. That decision was made on 13 March 2014. The
decision was in writing and was published to the parties31 however reasons for decision were
provided later and were among the substantive reasons for decision the subject of this
appeal32.
[24] The appeal (including an appeal against the Representation Decision) was lodged on 6
May 2014. Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time
period for instituting appeals. That rule relevantly provides that an appeal must be instituted
within 21 days after the date of the decision appealed against. The appeal against the
Representation Decision should have been instituted by no later than 3 April 2014. It was
therefore instituted some 33 days after the last day available for lodgement of the appeal. Rule
56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is
to be lodged.
[25] Time limits of the kind in Rule 56 should not simply be extended as a matter of
course. There are sound administrative and policy reasons for setting a limit to the time for
bringing an appeal and it should only be extended where there are good reasons for doing so.
The authorities33 indicate that the following matters are relevant to the exercise of the
Commission’s discretion under Rule 56(2)(c):
whether there is a satisfactory reason for the delay;
the length of the delay;
30 Transcript PN 1471 – PN 1534
31 AB 105
32 AB3; [2014] FWC 1934 at [4]
33 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C;
Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona
Operations Ltd v Esam and Organ (2005) 141 IR 338 and more recently Jobs Australia v Eland [2014] FWCFB 4822 per
Ross J, Gostencnik DP and Bissett C
http://www.fwc.gov.au/alldocuments/PR923358.htm
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the nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
any prejudice to the Respondent if time was extended.
[26] In broad terms the issue for the Commission is whether, in all the circumstances and
having regard to the matters set out above, the interests of justice favour an extension of the
time within which to lodge the appeal.
[27] The Appellant raises three broad grounds in support of his application that he should
be allowed to institute the appeal against the Representation Decision outside the time
prescribed in the rules. Firstly, the Appellant says that he was not aware that it was a decision
about which he could appeal34. Secondly, he says that the decision was communicated to him
by email and that it did not have a reference number he could cite to lodge an appeal35.
Thirdly, he says until the substantive decision that is the subject of this appeal was published
he was not aware of the reasons for the Representation Decision and that he had made
enquiries about being provided with an explanation for the reasons for the Representation
Decision before this time but did not receive any explanation36, at least until the substantive
decision was published.
[28] The first ground is unpersuasive and does not provide a satisfactory reason for the
delay. It is well established in the context of the grant of an extension of time in respect of, for
example, the making of an unfair dismissal remedy application, that being unaware of a right
to make an application or of the time limit which pertains to making a valid application will
not on its own justify extending time37. We see no reason why the same approach should not
be adopted in considering whether knowledge or awareness of a right of appeal should found
a basis upon which an extension of time would be granted. We are not persuaded that it does.
The second ground is also unpersuasive. Firstly, we observe that the suggestion that the
absence of a reference number from the notification of the Representation Decision as a
reason for being unable to lodge an appeal within time is inconsistent with an assertion that
the Appellant was unaware of his right to appeal. Secondly, the absence of a reference number
is no bar to instituting an appeal. Decision reference numbers are merely administrative in
nature and there is no requirement in the Act that decisions that are made and published to
parties carry a reference number38. Some decisions of the Commission are only recorded in
transcript and do not carry reference numbers but are nonetheless appellable and are not
infrequently the subject of appeal.
[29] As to the third ground, having regard to the nature of the Representation Decision it
was not necessary for the Appellant to await the reasons for that decision before instituting the
appeal. There was nothing to prevent the Appellant instituting the appeal, noting that the
reasons had not yet been delivered, and subsequently seeking leave to amend the grounds of
appeal. The circumstances in which the exercise of His Honour’s discretion to grant
permission to the Respondent to be represented by a lawyer arises are limited. The grounds
upon which the Respondent sought permission were set out in submissions filed beforehand
to which the Appellant responded. While there is some scope to argue that different
34 Transcript PN 40 – PN 41
35 Transcript PN 42 – PN 45
36 Transcript PN 46 – PN 54
37 See for example Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
38 See section 601
[2014] FWCFB 5595
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considerations arise where the decision subject to appeal involves the exercise of a discretion
because in such a case the reasons may themselves provide the basis for an appeal, for
example where the reasons disclose that the Member has had regard to an irrelevant
consideration, we are not persuaded in the present case that significant weight should attach to
the fact that His Honour‘s discretionary decision was made without reasons accompanying it.
[30] Moreover it seems to us that His Honour correctly identified, found and was satisfied
of an appropriate factual basis relevant to the requirements of s. 596(2) and the exercise of his
discretion. In our view His Honour correctly considered and applied the requirements of s.
596. The Appellant’s complaint as disclosed in the notice of appeal that the Representation
Decision resulted in prejudice because he as a self represented litigant was not able to
effectively cross examine the Respondent witnesses is a complaint about the consequence of
that decision. It is not a complaint that the decision was erroneously made. The Appellant’s
complaint that he was otherwise disadvantaged because the Respondent was legally
represented and he was not, is a submission that he put to His Honour at first instance39 and
misunderstands the circumstance in s. 596(2)(c). That circumstance is concerned with
unfairness to the person applying to be represented taking into account fairness as between
that person and others in the same matter. It also misunderstands the interrelationship between
each of the circumstances set out in s. 596(2). The Commission need not be satisfied that each
of the circumstances is present. It only needs to be satisfied that one of the circumstances set
out in s. 596(2) is present before deciding whether or not to exercise its discretion and grant
permission for a party or parties to be represented. It is clear His Honour was satisfied of
existence of the circumstances in s. 596(2)(a). He did not have to consider any other basis for
granting permission.
[31] In these circumstances the Respondent’s appeal against the Representation Decision,
should it be permitted to be lodged outside of the time prescribed, has little merit and the
grounds upon which the appeal is advanced as disclosed in the notice of appeal and as argued
in the written submissions filed by the Appellant have little prospect of being upheld.
[32] The length of delay is significant and the Appellant took no steps (other than lodging
the substantive appeal) to institute an appeal against the representation decision after reasons
for it were published on 15 April 2014. The length of delay does not assist the Appellant’s
application for an extension of time. The Respondent did not assert that it would suffer any
prejudice if an extension of time were granted, however the mere absence of prejudice will
not on its own warrant the grant of an extension of time and ultimately we consider this factor
to be neutral in the present circumstances.
[33] Therefore taking into account all of the circumstances we are not persuaded that it is in
the interests of justice to extend time to institute the appeal against the Representation
Decision. Accordingly, we dismiss the application to extend the time for the institution of that
appeal.
Onus
[34] Before turning to consider the grounds of appeal we should make some observations
about the question of onus or burden of proof in respect of unfair dismissal remedy
applications in which the question whether the dismissal was a case of genuine redundancy is
39 AB151
[2014] FWCFB 5595
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raised. This is because the question arises tangentially in a number of the grounds for appeal.
The question arises in relation to the errors alleged in Grounds 5, 11 and 12 set out in the
Appellant’s notice of appeal.40 The question of onus or burden of proof related to whether a
dismissal was a case of genuine redundancy was very recently considered by a Full Bench of
this Commission in Teterin and Others v Resource Pacific Pty Limited41.
[35] It is apparent from the decision in Teterin, the question whether and the extent to
which the legal concept of onus arises in relation to matters considered by a statutory tribunal
such as the Commission is a difficult one. That said, in the context of the question whether a
dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a
case of genuine redundancy, to the extent that there is a legal onus of proof or something
analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of
failure if the satisfaction required by s. 385 including paragraph (d) is not reached.42
[36] If a Respondent relies upon the dismissal as being a case of genuine redundancy, the
Respondent would be expected to adduce sufficient evidence concerning the matters which
arise for consideration in s. 389. This is because it bears the risk that without evidence the
Commission might not be satisfied that the dismissal was a case of genuine redundancy. In
that sense the Respondent to an unfair dismissal remedy application involving an allegation of
genuine redundancy bears an evidentiary onus or something analogous thereto in respect of
the matters in s. 389.43
[37] In most cases the question of where an evidentiary onus (or something analogous to it)
resides will be answered by asking; in relation to each matter about which the Commission
must be satisfied, which party will fail if no evidence or no further evidence about that matter
were given? The evidentiary onus will generally be the party that will fail in that event.
Consideration of Appellant’s grounds of appeal
[38] The notice of appeal sets out the 17 grounds of appeal alleging either significant errors
of fact or errors of law said to have been made by His Honour in his decision. Grounds 2 and
4 are directed to the Representation Decision and for reasons already given are not considered
further. Ground 3 alleges a denial of procedural fairness and ground 8 alleges error as to the
Attendance and Production Decisions. The remaining grounds attack His Honour’s reasoning
and conclusions relating to the constituent elements of s. 389 of the Act and we address those
grounds under each of the elements of s. 389 to which they relate rather than in seriatim.
Appellant’s job no longer required to be performed by anyone (section 389 (1) (a)) - appeal
grounds 1 and 5
[39] Section 389 sets out the meaning of a case of genuine redundancy and provides,
relevantly, that a dismissal was a case of genuine redundancy if “the person’s employer no
longer required the person’s job to be performed by anyone because of changes in the
operational requirements of the employer’s enterprise”44.
40 AB107 - AB113
41 [2014] FWCFB 4125
42 Ibid [23] - [29] and [31] - [32]
43 Ibid; See also TAFE NSW v Pykett [2014] FWCFB 714 at [36] - [37]
44 Section 389 (1) (a)
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[40] His Honour was satisfied that the Respondent no longer required the Appellant’s job
to be performed by anyone because of operational requirements of the Respondent’s
enterprise45.
[41] The Appellant criticises this aspect of His Honour’s decision on the basis that His
Honour “erred as a matter of law in finding that the Appellant’s dismissal was a genuine
redundancy”46. The Appellant also says that His Honour was in error because he reached his
conclusion “in the absence of sufficient documentary evidences (sic)”47, that this led His
Honour into making an error of law48, that His Honour should have ordered the production of
business records sought by the Appellant49 and that the appropriate test to be applied under s.
389(1) is “whether there was a valid reason for the redundancy, in the sense that the reason
was sound, defensible and well founded”50
[42] The Appellant’s job was that of Associate Manager Client Services in the
Sustainability Unit of the Respondent. The Respondent led evidence establishing that it had
closed the Sustainability Unit on financial grounds, consequently the Appellant’s job in that
unit was no longer required and it had not employed any other person to carry out that job.
His Honour’s reasoning is set out at [9] – [11] of his decision51 as follows:
Mr.Ramasheshan gave evidence that on 11 September a decision was made globally by
Infosys to close down the Sustainability Unit because of a lack of revenue. Mr.Jain worked in
that Unit and as a consequence his position of ‘Associate Manager - Client Services’ no longer
existed, and no new employees have been employed as a replacement or substitute for that
position . He was not cross examined on that evidence except in a somewhat tangential
fashion.
Mr.Jain agreed that the Sustainability Unit was closed because it was not making a profit :
‘They have alleged that the sustainability unit was closed because it wasn’t making a profit.
Now, do you accept that? - Yes.’. He agreed that the evidence he put about the overall
profitability of Infosys did not deal with a downturn in the Sustainability Unit. He agreed that
the executive chairman of Infosys, Mr.Murthy, was reappointed because the business was
stagnating in terms of growth and that while various units might be profitable overall they
were not growing at the rate the Board wanted, and that accordingly there was a restructure of
operations in which the Sustainability Unit was disbanded. Other evidence he gave was
generally consistent with the submissions put by Infosys on the Sustainability Unit and its lack
of profitability, including that the Unit was dissolved, that his position no longer exists, and no
replacements have been appointed in substitute for his former position. There was some
evidence that the same products were being sold by Infosys through different structures, but
that is not a rejection of the employer’s evidence, and the evidence of Mr.Jain on the
profitability of the Sustainability Unit.
45 AB5; [2014] FWC 1934 at [11]
46 AB109
47 Ibid
48 Ibid
49 AB 110
50 Ibid
51 AB4 – AB5
[2014] FWCFB 5595
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Given the degree of agreement I am satisfied that the requirements of s.389(1)(a) are met .52
(endnotes omitted)
[43] It is clear from the above passages His Honour relied upon the evidence led by the
Respondent and the concession made by the Appellant that the Sustainability Unit in which he
had worked had closed for financial reasons. There were also other concessions made by the
Appellant before His Honour, for example that the Sustainability Unit as an independent
entity has been dissolved53, which support the conclusion of His Honour. In essence the
Appellant contends that because the Respondent has not stopped selling sustainability
services it means that the job that he performed continues to be performed. That contention
misunderstands the enquiry that is made under s. 389(1)(a). That the Respondent may have
continued to sell sustainability services does not mean it has not made an operational decision
to close down the Sustainability Unit. That the operational decision was made was not in
dispute. That the Appellant’s job was in the Sustainability Unit was not in dispute. That as a
consequence of the operational decision of the Respondent to close the Sustainability Unit the
Appellant’s job in that unit was no longer required by anyone was also not in dispute. It seems
to us therefore that His Honour correctly concluded that the requirements in s. 389 (1)(a) had
been met and no appellable error is apparent.
[44] To the extent that the Appellant suggests that His Honour should have sought
“documentary evidence” and evidence from persons other than Mr Ramaseshan who gave
evidence for the Respondent, in order to satisfy himself as to the matters in s. 389(1) (a), we
reject that suggestion. No such obligation arose in the context of the case before His Honour.
It is patently clear that the Respondent led sworn evidence from Mr Ramaseshan as to the
matters in s. 389(1)(a) which combined with the Appellant’s concessions provided a sufficient
evidentiary basis upon which His Honour could conclude on the balance of probabilities that
the Respondent no longer required the Appellant’s job to be performed by anyone because of
changes in the operational requirements of the Respondent’s enterprise, and he correctly did
so. No appellable error is apparent.
[45] As to the submission that there is a “valid reason” test that is to be applied in relation
to s. 389(1), that submission is misconceived. The requirement that a preliminary
determination of whether a dismissal is a case of genuine redundancy be made by the
Commission before merits are considered, takes operational decisions resulting in redundancy
out of the purview of review relating to whether a dismissal is harsh unjust or unreasonable54.
[46] The question whether a reason for dismissal was a valid reason is confined to
assessing whether there was a valid reason relating to a person’s capacity or conduct55. In a
case of a redundancy related dismissal the question does not arise unless there is first a
conclusion that the dismissal was not a case of genuine redundancy56and that issue is
separately considered from the question whether the dismissal was harsh unjust or
unreasonable57.
52 Ibid; [2014] FWC 1934 [9] – [11]
53 AB 31/PN 330
54 See section 170 CG(3) of the Workplace Relations Act 1996
55 See section 387 (a)
56 See section 396
57 See section 385
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[47] We do not discern any appellable error in His Honour’s reasoning or conclusion in
relation to s. 389(1)(a).
Compliance with consultation obligation under applicable award or enterprise agreement
((section 389 (1) (b)) – grounds 1, 6, and 7
[48] Section 389(1)(b) contains the second limb of the definition of a case of genuine
redundancy. It requires that the employer has complied with any obligation in a modern award
or enterprise agreement that applied to the employment to consult about the redundancy. The
requirement that consultation occur in relation to the redundancy only arises, for the purposes
of the definition, if a modern award or enterprise agreement applied to the Appellant’s
employment. Therefore His Honour was first required to determine whether there was a
relevant modern award or agreement that applied to the Appellant’s employment.
[49] Apart from the non-specific ground that His Honour erred as a matter of law in finding
that the Appellant’s dismissal was a genuine redundancy58, the Appellant also asserts that His
Honour erred as a matter of “law and of fact by not making reasonable efforts to find [an]
alternative applicable award when His Honour found at [13] that stated award “Professional
Award 2010” did not apply”59. The Appellant now asserts that with reasonable effort His
Honour should have found that the “Commercial Sales Award 2010” applied to the
Appellant’s employment60. Further the Appellant says that His Honour was in error in finding
“that no modern award applied. Even if it did I am satisfied that Infosys conducted the
requisite consultation”61.
[50] His Honour’s deals with the s. 389(1)(b) limb of the definition at [12] – [14] of his
decision as follows:
It is agreed that there is no agreement in place. However Infosys submit that no modern award applies,
while Mr.Jain disagrees.
Mr.Jain had the primary function of sales in his work (see Gray v. Hamilton James at 27), and he used
his engineering degree to assist him in that job. This was the evidence of both Mr.Jain and Infosys.
While Mr.Jain quite properly pointed to the importance of his engineering degree in assisting him in his
sales function, his job did not have the principal purpose of engineering within the Professional
Employees Award 2010 (eg. clause 3.2), or otherwise fall within that award. No other award was
discussed by the parties and I am unable to find any other relevant award.
I conclude that no modern award applied. Even if it did I am satisfied that Infosys conducted the
requisite consultation. I prefer the evidence given by Mr.Ramaseshan to that of Mr.Jain.62 (Endnotes
omitted)
[51] It is apparent from His Honour’s reasons above that he concluded that the modern
award said by the Appellant to have applied to his employment did not apply. We note that
the Appellant does not challenge that conclusion in his notice of appeal. However he still
58 AB 109
59 AB 110
60 Ibid
61 Ibid
62 AB5- AB6; [2014] FWC 1934 at [12] – [14]
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maintained during oral argument63that it applied while also maintaining that the Commercial
Sales Award 2010 applied64. A particular modern award will only apply if it contains
particular classifications that cover a person’s employment and another modern award does
not apply. In effect only one modern award can apply to a person’s employment. This is
because modern awards contain provisions dealing with multiple awards covering an
employer and provisions for determining which of those multiple awards covers the relevant
employee.65 The Appellant cannot maintain as he seems to do, that His Honour was wrong in
concluding that the Professional Employees Award 2010 did not apply and also maintain that
the Commercial Sales Award 2010 applied to his employment. In any event, for the reasons
identified below, neither of these modern awards applied to the Appellant’s employment.
[52] His Honour concluded that the Appellant’s position of Manager Client Services was a
sales function and not one involving the performance of engineering duties. His Honour was
plainly correct. Consequently the Professional Employees Award 2010 did not apply to the
Appellant’s employment.
[53] His Honour observes that he was unable to identify any other modern award which
applied to the Appellant’s employment. The suggestion that His Honour did not make
reasonable efforts to find an alternative applicable award and had he done so he would have
identified the Commercial Sales Award 2010 as applicable is flawed and is rejected. First,
there is no authority for the proposition that His Honour was required to make “reasonable
additional efforts” to identify an applicable award. The Appellant asserted before His Honour
that a particular award applied. His Honour considered the application of that award and
concluded that it did not apply to the Appellant’s employment.
[54] Secondly, if such an obligation arose, it is clear from His Honour’s reasons that he did
make efforts and he was unable to identify an applicable award66. That the Appellant now
says that another award, the Commercial Sales Award 2010 applies is not evidence of any
failure on His Honour’s part to make reasonable additional efforts to identify an applicable
award.
[55] Thirdly the argument now advanced by the Appellant as to the application of the
Commercial Sales Award 2010 to the Appellant’s employment was not an argument advanced
by the Appellant before His Honour. It is a new argument sought by the Appellant to be
advanced on appeal.
[56] Fourthly, even if we were minded to allow the Appellant to advance a new argument,
on a proper examination of the coverage of Commercial Sales Award 2010, it seems patently
clear that in order for the Appellant’s employment to have been covered by that award he
would have been required to be employed away or substantially away from the Respondent’s
place of business. There was no evidence before His Honour that the Appellant was employed
in this way. Nor did the Appellant seek permission to adduce additional evidence which
would have established that he was employed in this way.
63 Transcript PN 204 – PN 214
64 Transcript PN 215 – PN 216
65 See for example cl. 4.10 of the Professional Employees Award 2010
66 AB5; [2014] FWC 1934 at [13]
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[57] As to the Appellant’s argument that His Honour was wrong in concluding that “[E]ven
if it did I am satisfied that Infosys conducted the requisite consultation”67, we make the
following observations. First, it is clear that the observation of tHis Honour’s was obiter dicta
as the issue of meeting the Respondent’s consultation obligations did not arise because His
Honour had already concluded that no modern award applied. Secondly, contrary to the
Appellant’s submission, His Honour was not suggesting that such consultation obligations as
may exist under various awards have each been complied with. His Honour was focusing on
the consultation obligations under the Professional Employees Award 2010, the award
asserted by the Appellant to have application. In our view this is clear from the words “even if
it did” whereby His Honour is clearly referring to that award. Thirdly, there was a sufficient
evidentiary basis upon which His Honour could conclude that if the Professional Employees
Award 2010 applied to the Appellant’s employment, the Respondent had discharged its
evidentiary burden to show that it had complied with those obligations. His Honour preferred
the evidence of the Respondent’s witness about consultation to the evidence given by the
Appellant. If it were necessary for His Honour to make a finding about consultation, it was
open to him to do so, on the evidence. But as we indicate above such a conclusion was not
necessary having regard to the finding that no modern award applied to the Appellant’s
employment.
[58] We do not discern any appellable error in His Honour’s reasoning or conclusion in
relation to section 389 (1) (b).
Reasonable in all the circumstances for the person to be redeployed (section 389 (2)) –
grounds 9 – 17
[59] Section 389 (2) provides that a dismissal is not a case of genuine redundancy if it
would have been reasonable in all of the circumstances for the person to be redeployed within
the employer’s enterprise or the enterprise of an associated entity of the employer. In the case
of the Appellant’s dismissal, in order that s. 389(2) is engaged, His Honour was required to
find, on the balance of probabilities, that there was a job or position or other work either
within the Respondent’s enterprise or that of an associated entity of the Respondent, into
which it would have been reasonable in all the circumstances to redeploy the Appellant68.
[60] As a Full Bench of this Commission in Technical and Further Education Commission
v Pykett69 observed there must be an appropriate evidentiary basis for such finding. Facts that
are relevant to such a finding will usually be peculiarly within the knowledge of the employer
rather than the former employee and that if an employer asserts that a dismissal was a case of
genuine redundancy the employer will ordinarily be expected, relevantly under this head, to
adduce evidence as to whether there was a job or a position or other work within the
employer’s enterprise or that of an associated entity to which it would have been reasonable in
all circumstances to redeploy the former employee70. The nature and extent of the onus of
burden or proof is discussed earlier above.
[61] The Appellant criticises His Honour’s findings as to matters relating to s. 389(2) on 9
broad bases. In summary the Appellant says His Honour erred:
67 AB6; [2014] FWC 1934 at [14]
68 See Technical and Further Education Commission v Pykett [2014] FWCFB 714 at [36]
69 [2014] FWCFB 714
70 Ibid at [36]
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in preferring the Respondent’s evidence (and in failing to provide reasons for so
doing) about the positions available and redeployment efforts to the Appellant’s
evidence in relation to whether there was a “bona fide exercise” to identify available
positions or something done after the event of termination;
in finding that only 18 positions were available locally, His Honour did not deal with
any vacancies that were available to be filled by internal candidates, and the identified
number of vacancies was not supported by documentary evidence;
in erroneously focusing on identifying a suitable position into which the Appellant
could be redeployed His Honour did not give proper regard to whether it was
reasonable in all the circumstances to redeploy the Appellant;
in not considering growth in other parts of the Respondent’s business in determining
whether it was reasonable in all circumstances to redeploy the Appellant;
in failing to consider whether it would have been reasonable to move on staff on 457
visas or considering such staff for redundancy and thereby creating a vacancy or
avoiding the need to terminate the Appellant’s employment;
in not considering international redeployment;
in misapplying or not having regard to the decision in a Roy v SNC – Lavelin Australia
Pty Ltd71;
in concluding that he was not satisfied that the Respondent has a facility for effecting
redeployment overseas for redundant employees; and
in failing to make a finding that it was not reasonable in all the circumstances to
redeploy the Appellant to a position in an enterprise of an associated entity of the
Respondent.
[62] His Honour deals with the question of redeployment for the purposes of s. 389 (2) at
[15] – [21] as follows:
The issue of redeployment within s.389(2) has been considered in a number of Commission decisions
including Full Bench decisions in Ulan v. Ulan Coal Mines Limited and TAFE NSW v. Pykett. I adopt
the reasoning in those decisions, which it is unnecessary to repeat. Commission decisions on the issue
of redeployment overseas include Roy v. SNC-Lavelin Australia Pty Ltd, in which the difficulty of
redeployment overeas (sic) was recognised.
Turning to deal specifically with Mr.Jain’s submissions, in his first submission he submits that despite
his contacts with Infosys worldwide, ‘Nothing was offered to me or explained about available job
positions . . . and my fitment to those’, but no specific job is identified as suitable for his redeployment.
This is a general submission that more should have been done, and it is consistent with his overall
approach to this issue. In his second submission no specific job suitable for redeployment is identified.
The third submission deals with consultation. In his fourth submission no job is identified, although it is
a response to the employer’s submission which lists 18 jobs which Infosys claims were vacant positions
and which they claim were not suitable for him for various reasons. Mr.Jain does not claim that any one
of these 18 jobs is one to which he could have been redeployed.
In his fifth and final submission, put after proceedings and evidence had concluded, Mr.Jain sought to
introduce new evidence. He claimed that there were currently a number of positions ‘with a good
fitment with my profile’, and named them . In making the arrangements for final written submissions I
specifically warned Mr.Jain that this was not the opportunity to introduce new material, but that
submissions had to be based on the evidence he had already put. Mr.Jain said that he understood this. I
have not had regard to this new material. Even if I did have regard to it, there is no basis on which I can
find that it is relevant. None of the jobs currently available might have been available at the relevant
71 [2013] FWC 7309
[2014] FWCFB 5595
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period, during the period of redeployment efforts. Even if they were available then I have no basis on
which I can conclude that they are suitable for Mr.Jain’s skills and experience. Infosys has not had the
opportunity to test that and other material.
Mr.Rameseshan gave evidence that he discussed Mr.Jain’s skills and experience with the Regional
Business Leaders - Sales and Delivery, and was notified of no suitable role being available having
regard to those skills and experience. He listed 18 positions which were positions available in Australia
and New Zealand. He gives reasons why these positions were not suitable to redeploy Mr.Jain to .
Mr.Jain does not dispute that assessment in his subsequent submission or in his cross examination of
Mr.Rameseshan, except in limited respects. In any event I accept the explanation given by
Mr.Rameseshan with respect to each position. Mr.Jain gave evidence that his employer rated him as a
‘poorly performing’. He tendered an email from his employer which broke down the four quarters
revenue by four managers which demonstrated this. There was no job to which Mr.Jain could have been
redeployed.
Mr.Rameseshan gave evidence that redeployment locally was not a reasonable option, and gave
evidence about the positions available across Australia and New Zealand, and about the reasons why
Mr.Jain was not suitable for those positions. He was subject to strenuous challenge about issues such as
the autonomy of local operations and managers. I prefer his evidence to contrary evidence given by
Mr.Jain. This was a bona fide redeployment exercise, and it was not conducted after the redundancy
took place as some form of sham.
In this case Mr.Jain has not identified or claimed that there is a specific ‘job, position or other work’ to
which he could have been redeployed. Infosys identified 18 jobs that were available, and Mr.Jain did
not claim that any one of them was a suitable job into which he could be redeployed. During Mr.Jain’s
employment he could use Infosys intranet to access a list of positions in Australia and overseas, but
again he did not identify any suitable job. In TAFE NSW v. Pykett it was found that a suitable job for
redeployment must be identified before a determination can be made that an applicant could be
reasonably redeployed within s.389(2). I am accordingly unable to find that it would have been
reasonable to redeploy Mr.Jain within s.389(2). There is no evidentiary basis for a finding that there was
a job to which he could have been redeployed.
It is unnecessary to deal further with the matter. However, Mr.Jain put a number of other submissions
which it is convenient to briefly deal with. As Infosys submitted there are real practical difficulties with
redeployment overseas such as visa requirements, and I am not satisfied that such issues have been dealt
with to the extent as to make redeployment overseas reasonable within s.389(2). I am not satisfied that
Infosys has a facility for effecting redeployment overseas of redundant employees. In any event, again,
no specific suitable job has been identified.72 (endnotes omitted)
[63] It is to be observed that His Honour turned his mind appropriately to the questions
relevant in determining the matters raised for consideration by s. 389 (2). To the extent that it
is suggested by the matters raised on appeal that His Honour did not correctly apply the
decision in Pykett that submission is rejected. Although in a number of places in the passages
reproduced above His Honour refers to “jobs” when considering whether there was a job,
position or other work available into which the Appellant could be redeployed, when one
reads the entirety of His Honour’s reasons above it is clear that his reference to “jobs” is a
shorthand reference to the availability of a job, position or other work and that His Honour
was concerned with the identification of an available job, position or other work into which
the Appellant could be redeployed73.
[64] Turning then to the specific criticisms raised by the Appellant. As to the first basis of
criticism, it is not correct as the Appellant submits, that His Honour did not give reasons for
72 AB6 – AB7; [2014] FWC 1934 at [15] – [21]
73 See for example AB7; [2014] FWC 1934 at [20]
[2014] FWCFB 5595
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preferring the Respondent’s evidence to the Appellant’s as to the availability of, and steps
taken to identify available positions into which the Appellant might be redeployed. The
evidence given by the Respondent on these matters is discussed by His Honour at [18] – [19]
of his decision. The evidence was that there were 18 positions that were available and the
Appellant did not have the skills required to fulfil the duties of any of these positions this
evidence was not disputed by the Appellant. The evidence given for the Respondent also dealt
with the steps taken by the Respondent to identify positions and that there were no suitable
positions that had been identified into which the Appellant could be redeployed. The
Appellant gave evidence by way of an assertion that this was incorrect but did not adduce any
evidence to support the assertion made. For example, the Appellant did not identify any job,
position or other work in Australia or abroad that was available and into which he would have
been redeployed. Based on the evidence before His Honour the conclusion reached was open
to him. Consequently there is no error and the reasons given adequately disclose why it is that
His Honour preferred the Respondent’s evidence. No appellable error is disclosed.
[65] As to the second basis, the Appellant criticises His Honour’s decision because in
finding that only 18 positions were available locally, he did not deal with any vacancies that
were available to be filled by internal candidates. Further it is said by the Appellant that the
identified number of vacancies was not supported by documentary evidence. There is no merit
to this criticism. The conclusion that there was no job, position or other work into which he
could be redeployed was based on the direct sworn evidence given by the Respondent’s
witness. The Appellant did not identify any vacancies either in Australia or overseas into
which the Appellant could have been redeployed. It is clear from the evidence given by the
Respondent’s witness that it explored the availability of positions both in Australia and New
Zealand. Indeed 18 vacant and available positions were identified however the Respondent’s
skills did not match the requirements of those positions. Although the Appellant asserted that
the Respondent did not consider “vacancies available for fulfilment with internal candidates”
no such actual vacancy was identified by the Appellant. On a review of the evidence that was
available to His Honour it was reasonably open to His Honour to reach the conclusion he did.
No appellable error is disclosed.
[66] The third basis of criticism made by the Appellant is that His Honour erred in focusing
on identifying a suitable position and thus, not giving proper regard to whether it was
reasonable in all the circumstances to redeploy the Appellant. In this regard the Appellant
submitted that it was incumbent on the Respondent to present evidence about vacancies for
internal and external hiring to enable the Commission to make a finding and that His Honour
incorrectly required the Appellant to identify a suitable job. Putting to one side whether this
submission correctly characterises that which was required of the Respondent or of the
Appellant, it seems to us clear that the Respondent led evidence about steps it took to identify
jobs or positions into which the Appellant might be able to be redeployed. His Honour did
not, as the Appellant submits, expect the Appellant to identify a specific job, position or other
work into which he could have been redeployed. His Honour’s observation at [20] of his
decision is simply a statement of fact. That the Respondent identified particular positions and
gave evidence that these were the only available positions and that the Appellant did not or
could not identify any other job, position or work into which he could be redeployed is a
reasonable basis upon which His Honour could have concluded, and did conclude that there
was not a suitable job, position or other work into which the Appellant could be redeployed.
The conclusion was reasonably open on the evidence. No Appellable error is disclosed.
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[67] The fourth basis of criticism is that His Honour failed to consider growth in other parts
of the Respondent’s business, in determining whether it was reasonable in all circumstances
to redeploy the Appellant. In the result the Appellant submitted that by confining His
Honour’s inquiry to the closure of the Sustainability Unit and not considering the expansion
or growth in other areas of the Respondent’s business, His Honour narrowed the test in s. 389
(2). This ground of appeal and the submissions made in support misunderstand that which is
required under s. 389 (2). That the business of the Respondent is experiencing growth was not
disputed by the Respondent. It does not follow that the Respondent is required by reason of
growth in its business overall to maintain units in its business which are not financially viable.
[68] Moreover that the business of the Respondent is experiencing growth does not mean
that there is a job, position or work that is suitable into which the Appellant could be
redeployed. There was no evidence before His Honour from which such a conclusion could be
drawn. There was evidence before His Honour that enquiries had been made about available
positions, that particular positions had been identified, that the Appellant did not have the
requisite skills to fill the requirements of the available positions and that no other positions
were available. That the Respondent’s business was experiencing growth does not diminish
the weight of this evidence. Evidence of business growth is no more than tangentially relevant
on its own. Evidence of growth itself is not sufficiently persuasive so as to outweigh the
evidence given about the actual positions available and the Appellant’s suitability to fill those
positions. No appellable error is disclosed.
[69] The fifth basis for criticising His Honour’s decision is that he failed to consider
whether it would have been reasonable to move on staff on 457 visas or considering such staff
for redundancy and thereby creating a vacancy or avoiding the need to terminate the
Appellant’s employment. Again this ground of appeal and the submissions made in support of
it misunderstand that which is in issue in considering whether the Appellant’s dismissal was a
case of genuine redundancy. The question whether the Appellant’s dismissal was a case of
genuine redundancy does not involve a consideration of whether the process for selecting the
Appellant for redundancy was fair or whether some other selection process was more
appropriate. Such considerations are irrelevant74 and had His Honour adopted such an
approach he would have done so erroneously. Furthermore there is no requirement that the
Respondent in effect dismiss from its employment employees engaged under a 457 visa
arrangement in order to create a vacant position. His Honour rightly did not consider this
issue. No appellable error is disclosed.
[70] The sixth, seventh and eighth bases upon which His Honour’s decision is criticised all
concern the question of international redeployment and can be dealt with in short compass.
The Appellant submitted that the Respondent had a formal international relocation policy
titled “Policy on Global Relocation” and consequently His Honour should have found that the
Appellant could have been redeployed to a position overseas under that policy. For this
proposition the Appellant relied upon the decision in Roy. This submission misunderstands
the nature of the policy said to exist and the proposition for which the decision in Roy stands.
The policy on global relocation is not a policy or facility to redeploy redundant employees to
international locations. Consequently the existence of the policy cannot be said to be evidence
that the Respondent held out or represented itself as having a formal policy or process for
effecting international redeployment of redundant employees. It follows that the passages
relied upon by the Appellant in Roy had no bearing on the facts as found by His Honour.
74 See UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241
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[71] His Honour’s finding that the Respondent did not have a policy which would facilitate
international relocation of redundant employees was open on the material before His Honour.
Again the Appellant misunderstands the difference between a policy on global relocation of
existing employees either to facilitate a request or in furtherance of the Respondent’s business
objectives on the one hand, and on the other a policy that has as one of its purposes to
facilitate the redeployment of redundant employees to position internationally. There was no
evidence before His Honour of the latter. Consequently there is no appellable error identified.
[72] A further and more fundamental difficulty for the Appellant in advancing of these
grounds is the absence of any evidence before His Honour of the existence of a suitable
position overseas into which the Appellant could have been redeployed even if the policy
existed. That the Respondent, as asserted by the Appellant, conducted business by utilising
fixed term contracts or by utilising a global staff pool or by regularly redeploying its staffing
resources internationally, even if correct, does not take the matter further. Ultimately His
Honour was satisfied on the evidence before him that there was no suitable job, position or
other work into which the Appellant could be redeployed. There was no evidence before His
Honour that such business practices resulted in an identifiable, suitable and vacant position
into which the Appellant could be redeployed. Without such evidence the conclusion urged by
the Appellant could not properly have been reached by His Honour. His Honour therefore
correctly concluded that the absence of any evidence of a position available overseas and the
absence of a policy facilitating redeployment of redundant employees overseas it was not in
all the circumstances reasonable to redeploy the Appellant. No appellable error is disclosed.
[73] The final basis for criticising His Honour’s decision relating to redeployment is that
His Honour failed to make a finding that it was not reasonable in all the circumstances to
redeploy the Appellant to a position in an enterprise of an associated entity of the Respondent.
Putting to one side the obvious flaw in the argument - that there was no evidence about the
existence of such position - in the proceedings before His Honour the Respondent’s evidence
was that decisions about hiring and firing both in Australia and overseas are made locally in
the jurisdiction seeking to fill a particular position and His Honour accepted that evidence as
he was entitled to do. His Honour also took into account the practical difficulties with
overseas employment requirements such as complying with visa requirements of overseas
jurisdictions. His Honour’s conclusion that he was “not satisfied that such issues had been
dealt with to the extent as to make redeployment overseas reasonable within s. 389 (2)”75 is
clearly directed to the lack of probative evidence led by the Appellant to overcome the
evidence led by the Respondent of the difficulties associated with overseas redeployment and
the absence of a policy for effecting redeployment overseas of redundant employee. On the
evidence before His Honour, his conclusion was reasonably open. No appellable error is
disclosed.
General grounds - grounds 3 and 8
[74] The Appellant raises two further grounds for appeal. First, the Appellant says that he
was denied procedural fairness during the proceedings because he was not provided additional
assistance as a self represented litigant in order to minimise the imbalance created by legal
representation of the Respondent. Secondly, the Appellant says that His Honour erred in not
granting his application for an order to produce documents and for an order requiring a person
75 AB7; [2014] FWC 1934 at [21]
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to attend the Commission. Therefore he was denied the opportunity to adduce further
evidence that might have been available had the orders been made.
[75] In performing functions and exercising its powers under the Act the Commission must
perform those functions and exercising those powers in a manner that, relevantly is fair and
just; is quick, informal and avoids unnecessary technicalities; and is open and transparent76.
There is little doubt that these requirements result in the Commission providing assistance to
an unrepresented party to put their case. This will involve ensuring that the Appellant receives
a fair hearing and that the Appellant is provided with such information, instruction or advice
as is necessary to ensure that end. It does not involve the Commission running the Appellant’s
case for him. Nor does it require the Commission to ensure that an Appellant makes the best
use of the opportunity given to him to put his case.
[76] It seems to us clear from a perusal of the transcript, that His Honour did a number of
things to assist the Appellant. First, His Honour conducted the proceedings by adopting a
more inquisitorial style which was clearly aimed at eliciting factual matters that were relevant
to questions that he had to determine. Secondly, His Honour allowed the Appellant an
adjournment in order to enable him to review documents to be tendered in evidence77.
Thirdly, Appellant was given leave to tender additional written material as evidence even
though that material should have been earlier filed and served in accordance with directions
that has been made. Although it is apparent from the transcript that some of the questioning of
the Appellant by His Honour might be described as robust, the questions were aimed squarely
at eliciting answers relevant to His Honour’s consideration of the issues that required
determination. There was no denial of procedural fairness and no appellable error is otherwise
apparent.
[77] Contrary to the Appellants assertion, His Honour made an order directing the
Respondent to produce documents. A copy of the sealed order is annexed to this decision. It is
also clear that the Respondent produced such of the documents as existed to the Commission
with a copy given to the Respondent on the day of the hearing. The documents sought that
were in existence were provided. That the Appellant did not make use of the documents
provided is not a basis for appeal. No appellable error is disclosed.
[78] As to the order to attend, apart from the suggestion that Mr Cole the person to whom
the order would have been directed would have been more appropriate than Mr Ramaseshan
to give evidence, the Appellant does not point to any particular error in the exercise of the
Commission’s discretion, although we note the complaint that the consequence of not being
granted the order is said to be a denial of procedural fairness. We make the following
observations. First, the Appellant produced no evidence before His Honour and did not seek
permission to adduce any evidence before us as to the steps that he had taken to ask Mr Cole
to give evidence. Before us the Appellant conceded that he did not ask Mr Cole to attend to
give evidence.78 Secondly as the Respondent points out the witnesses it chooses to call to
discharge such evidentiary onus as falls upon it, is a matter for it. Thirdly, even if Mr Cole
could give “more relevant evidence” as asserted by the Appellant, it does not follow that the
evidence given by the witness called by the Respondent was not relevant or did not speak to
the issues that required determination. Fourthly, it is not suggested by the Appellant that Mr
76 See section 577
77 Transcript PN 73 – PN 777 and PN 787 – 789
78 PN 1007 - PN 1010
[2014] FWCFB 5595
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Cole would have given evidence that would contradict the evidence given by the
Respondent’s witness. Fifthly, the Appellant did not agitate the question of whether Mr Cole
should be compelled to attend to give evidence at any time during the hearing before His
Honour on 17 July 2014. Finally, it is to be noted that the Appellant made the application for
an order only a few days before the commencement of the hearing. That fact alone is a
significant matter in an assessment whether such a coercive order compelling attendance
should have been made. We are not satisfied that His Honour’s discretion miscarried. Nor are
we satisfied that the failure or refusal to make an order in the circumstances was a denial of
procedural fairness.
Disposition of Appeal
[79] As is apparent from our reasons above, we have not identified any significant error of
fact or any other appellable error in the reasoning or conclusions of His Honour.
[80] Furthermore the matters raised in this appeal do not concern issues of importance and
general application. This is not a case where there is a diversity of decisions at first instance
so that guidance from an appellate tribunal is required, where the decision at first instance
manifests any injustice or the result is counter intuitive, or that the legal principles applied
appear disharmonious compared with other recent decisions dealing with similar matters. This
is a case simply where the Appellant did not like the result. In our view on the evidence
available to His Honour, the result was correct.
[81] Consequently this is not a case in which permission to appeal ought properly to be
given.
Conclusion
[82] Permission to appeal is refused.
DEPUTY PRESIDENT
A WORK COMMISSION SEAL OF
[2014] FWCFB 5595
22
Appearances:
P. Jain on his own behalf
Y. Shariff of Counsel for the Respondent
Hearing details:
Melbourne.
2014.
17 July
Printed by authority of the Commonwealth Government Printer
Price code G, PR554341
[2014] FWCFB 5595
23
Form [52-Order requiring production of documents etc to L'air Work Commission (Rule 19, Fair Work Commission Rules 2010)
IN FAIR WORK COMMISSION FWC Matter No: U2013/3348
Applicant: Mr Piyush Jain Respondent: Infosys Limited T/A Infosys Technologies Limited
ORDER REQUIRING PRODUCTION OF DOCUMENTS ETC. TO FAIR WORK COMMISSION Fair Work Act 2009-5.590(2)(c)
[Name] Infosys Limited T/A Infosys Technologies Limited [Address] Venkateswaran Ramacechan Email. verkat_RO1@infosys.com
Commission the documents, records and other information specified in the Schedule to this order before the Fair Work Commission at the following time, date and place: Time: 9:00 am Date: 20 March 2011
Place: Fair Work Commission 11 Exhibition Street Melbourne VIC Dated 20 March 2014
2. WORK COMM'S F FAIR
341 DEANTY PRESIDENT Note:
This order has been issued al the request of Mr Piyush Jain. You can apply to have this order set aside or vaned. Instead of attending to provide the documents etc covered by this order at the time and place specified above, you may produce them to an officer of the Fair Work Commission at the place the day mention
. If you have any queries in relation to this order please contact the aceociate to Deputy Preeident Hamilton on (03) 8661 7718.
[2014] FWCFB 5595
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SCHEDULE Employee Data 1. Please provide below data for Infosys global entity including all associated entities: Total number of staff as on today in Australia. Annual new staff hired for years :- 2013-14 (till date), 2012-13 and 2011-12 in Australia. List of available vacant positions as on today in Australia. Projected numbers of staff hire for next year in Australia. Total number of global staff with valid work visas for Australia and New Zealand including who are not in Australia and New Zealand currently. Total number of work visas applied for Australia and New Zealand in the year 2013-14 (till date). Please provide number of international transfers in last three years. Transfers where base location of a staff has been changed from one country to other country. 2. Please provide below data for Infosys Australia and New Zealand location: Total number of staff with non-Australia and non-New Zealand base location placed in Australia and New Zealand as on 17th Sep 2013 (or nearest date). Total number of staff in sales and sales support roles from non-Australia and non-New Zealand base location placed in Australia and New Zealand as on 17th September 2013 (or nearest date). Annual local hire numbers for year 2013-14 (till date), 2012-13, 2011-12. List of vacant positions (including internal staffing via IJP etc) with job descriptions as of today. Organisation structure Please provide: Infosys global organisation structure with P&L responsibilities as on 17th September 2013 including various business units. P&L responsibilities at a level used in public reporting. Organisation structure for ROW region for RCL (Retail), ECS (Energy, Communication and Services), MFG (Manufacturing and resources) and FSI (Financial sector) business units as on 17th September 2013. Organisation Structure of Global Human Resources department including head of HR for Australia and New Zealand. Organisation structure of Human Resources team at Infosys Australia and New Zealand. Human Resource organisation structure for Products Platform and Solutions group including Sustainability unit as on September 2013. Other information 4. Please provide peer group details for Piyush Raj Jain for performance appraisal in last two cycles i.e. Staff against whom Piyush Raj Jain's comparative performance was evaluated. 5. Please provide list of positions included in IJP process used to redeploy US staff of Sustainability unit.
[2014] FWCFB 5595
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6. Please provide below policy documents: Policy on Domestic Relocation (Australia). Policy on global relocation. Policy on Allowances and Benefits for deputed employees. Guideline for bench management. Guideline for talent management. Policy for 457 visa application. 7. Please process or system description for below: Internal Job Placement IJP. . WithInfy. SkillCentral. Corporate Pool.
