1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Piyush Jain
v
Infosys Limited T/A Infosys Technologies Limited
(U2013/3348)
DEPUTY PRESIDENT HAMILTON MELBOURNE, 15 APRIL 2014
Application for relief from unfair dismissal - genuine redundancy - operational reasons,
consultation, redeployment
[1] On 8 October 2013 Mr Piyush Raj Jain filed an application for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (the Act) against Infosys.
[2] The matter was conciliated and no settlement was reached.
[3] The parties agreed that the matter be dealt with as a determinative conference.
[4] Pursuant to s.596(1)(a) I granted permission for the respondent to be represented because
it would enable the matter to be dealt with more efficiently given the complexity of the
matter. These complexities include the suitability of redeployment to positions overseas
when considering the tests in s.389.
[5] Written submissions and witness statements were filed, and the following witnesses gave
evidence:-
Mr Venkateswaran Ramaseshan
Mr Piyush Raj Jain
[6] I have had regard to all the submissions and evidence.
Genuine Redundancy
[7] The Act provides:
‘385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
[2014] FWC 1934 [Note: An appeal pursuant to s.604 (C2014/767) was
lodged against this decision - refer to Full Bench decision dated 28 August
2014 [[2014] FWCFB 5595] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB5595.htm
[2014] FWC 1934
2
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal
Code: see section 388.
...
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) 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; and
(b) the employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the
redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have
been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.’
Submissions
[8] In this case Mr.Jain submits in his final submissions that the redeployment
requirements of s.389(2) were not met because it did not engage in global redeployment
having regard to the structure of the company, and the nature of Mr.Jain’s previous job which
included responsibility for the rest of the world region, which was mainly but not exclusively
Australia and New Zealand. He submits that the consultation during the redundancy process
‘did not have a genuine intention’, that the redeployment exercise was prepared after the
redundancy took place, and that there was a lack of procedural fairness during the redundancy
process. He submits that Infosys’s ‘financial condition does not justify hurried redundancy
due to restructure’, with 23 per cent of net profit as a percentage of the revenue according to
its corporate website. He seeks reinstatement. Infosys submits that the requirements of s.389
were met. Infosys denies these claims and submits that this was a genuine redundancy.
Was there a genuine redundancy?
Section 389(1)(a) - Operational requirements
[9] 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
[2014] FWC 1934
3
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 position1. He was not cross examined on that evidence except in a
somewhat tangential fashion.
[10] Mr.Jain agreed that the Sustainability Unit was closed because it was not making a
profit2: ‘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 Unit3. 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 disbanded4. 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 position5. 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.
[11] Given the degree of agreement I am satisfied that the requirements of s.389(1)(a) are
met6.
Consultation
[12] It is agreed that there is no agreement in place. However Infosys submit that no
modern award applies, while Mr.Jain disagrees.
[13] Mr.Jain had the primary function of sales in his work (see Gray v. Hamilton James7 at
27), and he used his engineering degree to assist him in that job. This was the evidence of
both Mr.Jain8 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.
1 Exhibit I1, paragraphs 20-22
2 PN865
3 PN829-830
4 PN702-710
5 PN337-344;573-576
6 See Boeing Australia Limited v B Acworth, [2007] AIRCFB 730, at para 6; Village Cinemas Australia Pty Ltd v Carter
[2007] AIRCFB 35, at paras10 and 14; A Cruickshank v Priceline Pty Ltd, [2007] AIRCFB 513, at para 5; and
Kieselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 [34].
7 [2011] FWAFB 6884
8 PN303-312; PN453-466; PN754
http://www.fwc.gov.au/decisionssigned/html/2007aircfb513.htm
http://www.fwc.gov.au/decisionssigned/html/2007aircfb35.htm
http://www.fwc.gov.au/decisionssigned/html/2007aircfb730.htm
[2014] FWC 1934
4
[14] I conclude that no modern award applied. Even if it did I am satisfied that Infosys
conducted the requisite consultation9. I prefer the evidence given by Mr.Ramaseshan to that
of Mr.Jain.
Section 389(2) - Reasonable to redeploy
Redeployment
[15] 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 Limited10
and TAFE NSW v. Pykett11. 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 Ltd12, in which the difficulty of redeployment overeas was recognised.
[16] 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’13, 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 identified14. 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 reasons15. Mr.Jain does not claim
that any one of these 18 jobs is one to which he could have been redeployed.
[17] 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 them16. 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 this17. 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
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.
[18] 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
9 Exhibit I1, paragraphs 61-67
10 [2010] FWAFB 7578
11 [2014] FWAFB 714 at 37
12 [2013] FWC 7309
13 Exhibit J1, paragraph 19
14 Exhibit J2
15 Applicant’s Submission on 26 March 2014, paragraphs 15-18
16 Applicant’s Final Submissions, paragraph 14, 2 April 2014
17 PN1208-11
[2014] FWC 1934
5
positions available in Australia and New Zealand. He gives reasons why these positions were
not suitable to redeploy Mr.Jain to18. Mr.Jain does not dispute that assessment in his
subsequent submission or in his cross examination of Mr.Rameseshan19, except in limited
respects20. 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’21.
He tendered an email from his employer which broke down the four quarters revenue by four
managers which demonstrated this22. There was no job to which Mr.Jain could have been
redeployed.
[19] 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.
[20] 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 overseas23, but again he did not identify any suitable job. In
TAFE NSW v. Pykett24 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.
[21] 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 employees25. In any event, again, no specific suitable
job has been identified.
18 Exhibit I1, paragraphs 23-51
19 Eg. PN1045-1046
20 PN1097-1098
21 PN843-846
22 Exhibit J4, email dated 31 December 2012
23 PN673
24 [2014] FWAFB 714 at 37-40
25 See Roy v. SNC Lavelin ibid at 38-39
[2014] FWC 1934
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Conclusion
[22] I am satisfied that there is a genuine redundancy within s.389. I am therefore required
to dismiss the application pursuant to s.385. An order dismissing the application is contained
in PR549336.
DEPUTY PRESIDENT
Appearances:
Mr P J Jain, the applicant
Mr A Abraham for the respondent
Hearing details:
2014
Melbourne
21 March
Final written submissions:
2014
3 April
2 April
1 April
26 March
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