Dilip Kamal Srivastava v Australian Securities and Investments Commission

[2018] FWC 43

[2018] FWC 43

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dilip Kamal Srivastava
v
Australian Securities and Investments Commission
(U2017/9151)

COMMISSIONER CAMBRIDGE SYDNEY, 12 JANUARY 2018

Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of the Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy established - jurisdictional objection upheld.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Dilip Kamal Srivastava (the applicant). The respondent employer is the Australian Securities and Investments Commission (ASIC or the employer).

[2] The application was lodged at Sydney on 23 August 2017. The application indicated that the date that the applicant’s dismissal took effect was 4 August 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation. The employer raised a jurisdictional objection to the application on the basis that the dismissal was alleged to be a case of genuine redundancy. The matter has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 13 November 2017. The Hearing dealt with evidence and submissions which encompassed both the jurisdictional objection regarding the question of genuine redundancy, and also the substantive issues of the alleged unfair dismissal.

[4] In an earlier Decision [2017 FWC 5264] the Commission refused permission for ASIC to be represented by lawyers or paid agents. At the Hearing, the applicant represented himself, and he provided evidence as the only witness in support of the unfair dismissal claim and against the jurisdictional objection raised by ASIC. Ms H O’Loughlin, the employer’s Senior Executive Leader, People and Development, appeared for ASIC at the Hearing. Ms O’Loughlin called a total of three witnesses who provided evidence on behalf of the employer.

[5] The application was the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant’s dismissal was a case of genuine redundancy. Consequently, subsection 396 (d) of the Act requires that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration is made of the merits of the application.

Background

[6] The employer is an independent Commonwealth Government agency set up under and to administer the Australian Securities and Investments Commission Act 2001. ASIC is the Australian Government regulatory authority for the administration and control of corporations, markets, financial services and consumer credit providers. ASIC has a primary responsibility for ensuring compliance with the requirements of the Corporations Act 2001. The employer is a large public sector entity with more than 1600 employees.

[7] The applicant commenced employment with ASIC in June 2016. The applicant was engaged in a position described as Siebel System Administrator, and he worked at the Market Street, Sydney Offices of ASIC. The work of the applicant broadly involved the establishment and maintenance of a particular computer and information system, referred to as the Siebel System, which hosts ASIC’s registry operations. The applicant’s employment was covered by the Australian Securities & Investments Commission Enterprise Agreement 2016 – 2019 (the EBA). 

[8] The applicant successfully completed his six months probationary period and his employment was generally without any recorded complaint except for a concern which arose in April 2017 regarding a potential conflict of interest. On 27 March 2017, the applicant completed a Biannual Declaration of Interest document that revealed that he had a mortgage broking and real estate license, and he was involved in conducting a business which involved employment outside of ASIC. In due course, the applicant agreed to commence the process of winding up his mortgage broking business, and to deregister his companies in order to ensure compliance with ASIC requirements regarding conflict of interests.

[9] In May and June 2017, the applicant took extended leave in order to return to India as a result of a personal family tragedy. During the period of the absence of the applicant his work as the Siebel System Administrator was undertaken by another employee, Mr Leo Chan. During the applicant’s absence Mr Chan was able to satisfactorily undertake the work of the applicant and attend to his other duties. Consequently, it became apparent that the position of Siebel Systems Administrator primarily involved work which would be completed by a systems check that occupied only about 30 minutes each day.

[10] Although the applicant was more qualified than Mr Chan and other IT employees, the employer established a business case for the abolition of the Siebel System Administrator position held by the applicant. The business case anticipated that the work undertaken by the Siebel System Administrator could be distributed amongst IT employees including Mr Chan.

[11] The applicant returned from India and recommenced work. Subsequently, on 31 July 2017, the applicant was called into a meeting whereby he was informed that the employer had established a business case for the abolition of the position that he held as Siebel System Administrator. Although there was some dispute in the evidence regarding what was said during the meeting held on 31 July, the applicant was presented with various options which included what he described as normal retrenchment and accelerated retrenchment. Further, the question of any potential redeployment of the applicant was also the subject of some discussion during the meeting of 31 July 2017. However, the applicant’s recollection of the discussion regarding redeployment was significantly different to that provided by the evidence from the witnesses for ASIC.

[12] On the following day, 1 August 2017, a further meeting was held with the applicant and relevant ASIC managers. During this meeting the applicant indicated a desire to be provided with arrangements that would provide him with the optimum retrenchment benefit which anticipated that his employment would terminate on Friday, 4 August 2017 1. Subsequently, the applicant confirmed that his preference was to “leave ASIC ASAP”2 and that he was “happy to leave tomorrow…”3

[13] Consequently, the employer provided the applicant with a letter dated 4 August 2017, which confirmed the termination of his employment on the basis that the applicant had “elected to be made involuntarily redundant from ASIC under clause 29.23 of the Enterprise Agreement.” 4 The applicant was paid accrued entitlements including a redundancy payment of approximately seven months’ pay, which totalled nearly $73,000.

[14] On 22 August 2017, the applicant sent a lengthy email to various senior managers of the employer including the then chair of ASIC, Greg Metcalf. In this email the applicant made numerous serious allegations arising from the circumstances surrounding the termination of his employment. The applicant took issue with the legitimacy of the redundancy of his position, and he also asserted, inter alia, that his dismissal had been implemented contrary to the terms of the EBA. Further, the applicant alleged that his retrenchment involved a conspiracy that should lead to punishment of the particular managers who were involved with the termination of his employment being “terminated by doing unlawful activities in ASIC.” 5

The Jurisdictional Objection

[15] Ms O’Loughlin,who appeared for ASIC, made oral submissions in support of written material which had been filed on behalf of the employer. In summary, Ms O’Loughlinsubmitted that the Commission could not be satisfied that the dismissal of the applicant was not a case of genuine redundancy as required by subsection 385 (d) of the Act. Further, Ms O’Loughlin submitted that in the alternative, the dismissal of the applicant was not harsh, unjust or unreasonable.

[16] Ms O’Loughlin referred to s. 389 of the Act which provided a definition for the meaning of genuine redundancy.Ms O’Loughlin said that the employer had identified the lack of work for a full-time Siebel Administrator, and that the work that the applicant had been performing could be redistributed without negative impact. Consequently, according to the submissions of Ms O’Loughlin, the employer no longer required the job performed by the applicant as Siebel Systems Administrator.

[17] Ms O’Loughlin also stated that the redundancy process was conducted in accordance with the requirements of the EBA. In particular, Ms O’Loughlin mentioned that once a business case for the abolition of the Siebel Systems Administrator position had been prepared, the applicant was engaged in the first meeting held on 31 July 2017, at which time he was provided with both various options regarding his circumstances, and an opportunity to consider and respond accordingly.

[18] Ms O’Loughlin further submitted that the evidence clearly established that the applicant wanted to pursue the involuntary redundancy option and to leave ASIC as soon as possible. Ms O’Loughlin submitted that in these circumstances the consultation process had been completed and any consultation requirements of the EBA had been satisfied.

[19] Ms O’Loughlin also made submissions which challenged the credibility of the applicant. Ms O’Loughlin said that the applicant was an unreliable witness. Ms O’Loughlin referred to inconsistent and contradictory evidence provided by the applicant. Ms O’Loughlin also said that the applicant showed no interest in redeployment or outplacement arrangements that had been offered by ASIC. Instead, according to the submissions made by Ms O’Loughlin, the applicant’s only concern during the consultation process was to maximise his redundancy payment and to leave the employment as soon as possible.

[20] Ms O’Loughlin also made submissions which addressed the particular requirements of s. 389 of the Act in further detail. In this regard, Ms O’Loughlin noted that there were three requirements arising from subsections (1) and (2) of s. 389 of the Act which needed to be met in order to constitute a genuine redundancy. Ms O’Loughlin said that the dismissal of the applicant satisfied all three of these requirements.

[21] Firstly, Ms O’Loughlin submitted that ASIC no longer required the applicant’s job to be performed by anyone because of changes in its operational requirements. Ms O’Loughlin said that the applicant’s position had become redundant in circumstances where the employer reorganised its structure and changed its operational requirements by breaking up the collection of functions, duties and responsibilities assigned to the applicant, and distributing them amongst the holders of other positions, in this case, in particular involving Mr Chan. Ms O’Loughlin said that the applicant’s duties had been subsumed into another role, the Automation and Objective Administrator, which is held by Mr Chan who has been trained in Siebel administration functions.

[22] Secondly, the submissions made by Ms O’Loughlin asserted that ASIC had complied with the obligations in the EBA to consult with the applicant about his redundancy. Ms O’Loughlin referred to the particular provisions of clauses 29.13 to 29.17 of the EBA. Ms O’Loughlin said that it became clear during the second meeting held with the applicant on 1 August 2017 that he took no issue or challenge to the redundancy, but instead he sought to finalise his employment as quickly as possible providing for the maximum amount of redundancy benefit. Ms O’Loughlin submitted that in these circumstances the consultation process was exhausted.

[23] Thirdly, Ms O’Loughlin made submissions regarding whether it would have been reasonable in all the circumstances for the applicant to have been redeployed either within the employer’s enterprise or in an enterprise of an associated entity of the employer. Ms O’Loughlin referred to various communications and documents that confirmed that the applicant had rejected any prospect of pursuit of redeployment, and he had similarly ruled out any outplacement assistance as he wanted his employment to be finalised as soon as possible. Ms O’Loughlin submitted that it was not reasonable in all the circumstances for the applicant to be redeployed.

[24] Consequently, Ms O’Loughlin submitted that the three particular requirements of s. 389 of the Act had been met, and therefore the applicant’s dismissal was a case of genuine redundancy. Ms O’Loughlin urged the Commission to find that the dismissal of the applicant was a case of genuine redundancy, and therefore subsection 385 (d) of the Act operated as a jurisdictional bar to the applicant’s claim for unfair dismissal remedy.

[25] Ms O’Loughlin also made submissions which addressed the prospect that the employer’s jurisdictional objection may be rejected by the Commission. These alternative or secondary submissions examined the factors contained in s. 387 of the Act and developed a proposition that even if the dismissal of the applicant did not satisfy the definition of genuine redundancy, it was nevertheless not a dismissal which was unfair.

[26] Further, Ms O’Loughlin also made submissions which dealt with the prospect for any remedy that the applicant might obtain if his claim was successful. Ms O’Loughlin noted that any remedy would need to properly reconcile the payments that were made in respect to a redundancy situation. In this regard, if a remedy of compensation was contemplated, the amounts that had been paid to the applicant which approximated with seven months remuneration on the basis of redundancy, would exceed the compensation cap prescribed by subsections 392 (5) and 392 (6) of the Act.

[27] In summary,Ms O’Loughlin submitted that the applicant’s dismissal was a case of genuine redundancy because each of the relevant requirements of s. 389 of the Act had been satisfied. Specifically, Ms O’Loughlin submitted that; (a), ASIC no longer required the applicant’s job to be performed by anyone because it had been restructured and redistributed, primarily to Mr Chan, and (b), ASIC had complied with the relevant consultation requirements of the EBA, and, (c) it would not have been reasonable in all the circumstances for the applicant to have been redeployed. Consequently,Ms O’Loughlin said that the application did not have jurisdiction, and therefore the application for relief from unfair dismissal should be dismissed.

The Case Against the Jurisdictional Objection

[28] The applicant submitted that his dismissal did not involve a case of genuine redundancy. The applicant provided extensive documentary material which included a combination of assertions of fact and submissions. This material was introduced as evidence from the applicant as a witness, and respectively marked as Exhibits 1, 2 and 3.

[29] The applicant made submissions which challenged that the work that he had previously performed was no longer required. The applicant said that the specialist skill and experience that he possessed was required to perform the Siebel Administrators role and therefore the employer still needed that work to be done by someone. The applicant said that he believed that ASIC should not have retrenched this position because the other Siebel developers still need to keep doing their work and they do not have the same high level of expert knowledge and experience that he has.

[30] The applicant also made submissions which asserted that the consultation requirements of the EBA had not been followed. The submissions made by the applicant referred to various terms within the EBA which he said had not been complied with in his case. The applicant said that he strongly believed that the consultation had not been as per the enterprise agreement and that the matter involved pre-decided consequences.

[31] In further submissions the applicant stated that he had not challenged the redundancy at the time because he felt embarrassed, and he asked to leave ASIC as soon as possible. The applicant said that there was no point in raising any dispute and his surrender and acceptance of everything had the simple meaning to receive the support money for his family responsibility and mortgage repayments.

[32] The applicant also submitted that redeployment opportunity had not been discussed with him but rather he said that he had been told that there was no redeployment option available for him. The applicant said that his dismissal was not a case of genuine redundancy and that his termination of employment was unjust and harsh.

[33] The applicant also made submissions regarding any potential remedy for his alleged unfair dismissal. In this regard the applicant said that he had used the money paid in respect of his redundancy to pay out his mortgage and for other household expenses. The applicant said that this payment had been fully consumed, and he requested that the Commission issue an Order that he not be required to pay the redundancy payment back to ASIC, and instead, this payment could be used to compensate him against his mental harassment, defamation and financial hardship due to harsh, unjust and unreasonable redundancy from his permanent job.

[34] Consequently,the applicantasked the Commission to dismiss the jurisdictional objection raised by ASIC. Further, the applicant submitted that his dismissal was not a case of genuine redundancy, and that as his dismissal was unfair he should be reinstated to his position with ASIC as Siebel Systems Administrator.

Consideration

[35] This Decision has involved the determination of a jurisdictional objection which was advanced by the employer.

[36] Relevantly s. 396 of the Act requires that the Commission must decide a number of specified matters before considering the merits of any application made under s. 394. In this instance the jurisdictional objection arises from the provisions of subsection 396 (d) of the Act. The particular provisions of s. 396 of the Act are:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) ...

...

(d) whether the dismissal was a case of genuine redundancy.”

The Genuine Redundancy Question

[37] It would seem that a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy. This appears to be the clear corollary of subsection 385 (d) of the Act:

“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

…

(d) the dismissal was not a case of genuine redundancy.”

[38] Section 389 of the Act provides for a meaning of genuine redundancy:

“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.”

[39] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.

[40] For convenience I have abbreviated the three elements identified within s. 389. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”, the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”, and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.

[41] Consequently, the consideration of the question of whether the dismissal of the applicant was a case of genuine redundancy has involved examination of the three separate elements contained in s. 389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established, and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.

Job Lost Due To Operational Requirements

[42] In this instance, the evidence has established that the position that the applicant occupied as Siebel Systems Administrator was no longer required. ASIC identified that the work that the applicant performed in the position of Siebel Systems Administrator could be conveniently distributed to other employees, primarily Mr Chan.

[43] There was evidence which suggested that in the ordinary course of events on most days the applicant was only required to perform about 30 minutes of actual engagement in the Siebel Systems administration work. Further, although the applicant may have been well-qualified to perform this work, during his absence, Mr Chan undertook this work without identified difficulty. Relevantly, the applicant did not challenge evidence that during the first meeting held on 31 July 2017, when he was advised that the demand for Siebel administration work had reduced significantly to the point at which the applicant’s role had been identified as surplus, the applicant responded as follows:

“I am happy to get the package, I’m not busy and bored of coming to work.” 6

[44] Further, during the Hearing the applicant acknowledged that the work that he had previously performed had been redistributed, primarily to Mr Chan, as the following extract from transcript reveals:

“THE COMMISSIONER:  You don't dispute, though, that the work that you previously did has been redistributed and is now being performed by Mr Chan and that overall there is a reduction in the numbers?

MR SRIVASTAVA:  Sir, I have already raised my dispute around that, that Mr Chan doesn't have that qualification and experience.

THE COMMISSIONER:  It may not be what you think is the optimum.  You probably think you have got - you described it as ASIC taking a risk with Mr Chan, but isn't the reality of this that even if they decide to take the risk, the overall reduction in numbers has meant that there was a position that's gone?  That seems to be undeniable.  You don't take issue with that, do you?

MR SRIVASTAVA:  No, definitely, that should not be, like, I mean, in the case, like, I mean, ASIC, what they did with Mr Chan, in my opinion, and as expert like, you know, taken from the Arkle who is the vendor that this application should not be handled by any non-knowledgeable person.  So it is a risk and definitely, yes, ASIC has taken the risk.

THE COMMISSIONER:  But the end result is that they have actually made one position redundant.

MR SRIVASTAVA:  Yes.” 7

[45] In this instance, the evidence has clearly established that the work that had been performed by the applicant in the position of Siebel Systems Administrator has been redistributed or reassigned amongst other employees. The redistribution or reassignment of work amongst retained employees does not alter the fact that a job as opposed to the work of an individual was no longer required. In this case the job of a Siebel Systems Administrator was no longer required by ASIC.

[46] Consequently, the first element of s. 389 of the Act has been established, that is, the employer no longer required the job of the applicant as Siebel Systems Administrator to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

Consultation Obligations

[47] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy.

[48] ASIC submitted that it had complied with the consultation obligations of the EBA and it referred in particular to clauses 29.11 to 29.17 of the EBA. However, clause 29.23 appears to have been the relevant operative provision in respect to the particular circumstances of the applicant. Relevantly, the following provisions of clause 29.23 of the EBA would have application to the applicant in this instance:

“29.23 At any time after the end of 2 months from the start of the Consultation Process, (or earlier, where the employee agrees) or at the end of the support period if the employee has not been redeployed to another position within ASIC or the APS, or their employment with ASIC has not already ceased, the chairman may terminate the employment of the excess employee involuntarily under section 29 of the Public Service Act 1999.” [emphasis added]

[49] Consequently, in circumstances where an employee agrees to be made involuntarily redundant there would be no purpose served in engaging in the consultation process as set out in clauses 29.13 to 29.17 of the EBA. Clause 29.23 recognises that other consultation obligations could be dispensed with in circumstances where an employee agrees to be made involuntarily redundant in accordance with this clause.

[50] During the Hearing, the applicant also acknowledged that his agreement, indeed his desire, to be made involuntarily redundant made any further consultation unnecessary as the following extract from transcript reveals:

“THE COMMISSIONER:  In terms of the consultation obligations, it seems quite clear that because of your embarrassment, as soon as that was approached, the consultation obligations seem to have been a futility because you had indicated that you simply wanted to go straight away.

MR SRIVASTAVA: Yes, sir.” 8

[51] Consequently, as the applicant agreed to be made involuntarily redundant ASIC adopted a process to implement its operational restructure which complied with the consultation obligations arising from the provisions of the EBA. In particular, the circumstances involved the agreement of the applicant and the operation of clause 29.23 of the EBA, and therefore other consultation provisions of the EBA became otiose. Consequently, I find that the relevant consultation obligations have been met and this element of s. 389 of the Act has been satisfied.

Reasonable Redeployment

[52] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which possessed the elements of subsection 389 (1), to not be a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.

[53] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis having regard for the approach to redeployment adopted by both the employer and the employee.

[54] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which ASIC undertook in the pursuit of redeployment for the applicant, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicant.

[55] There was directly conflicting evidence about the discussion regarding redeployment that occurred between the applicant and his relevant managers, Mr Bethi and Ms Lyng, during their meeting on 31 July. The applicant asserted that Ms Lyng had told him that there were no redeployment opportunities for him. Conversely, the evidence provided by both Ms Lyng and Mr Bethi, was that the applicant had stated that he believed that there were no suitable redeployment options within ASIC.

[56] The evidence provided by Mr Bethi and Ms Lyng regarding the applicant’s rejection of any pursuit of redeployment opportunities was supported by documentary evidence including the contemporaneous handwritten notation 9 made by Ms Lyng. Further, it was clear that the haste with which the applicant was pursuing departure from his employment with ASIC would naturally rule out any investigation of redeployment opportunities.

[57] On balance and weight I have no hesitation in accepting the evidence provided by Mr Bethi and Ms Lyng, and I reject the applicant’s assertion that Ms Lyng had ruled out the prospect of any redeployment for the applicant. Unfortunately, the conduct of the applicant involving his hasty pursuit of termination of his employment with ASIC under the most lucrative payment arrangement that was available, represented an approach that extinguished any practicable pursuit of any redeployment opportunity.

[58] Therefore, in these circumstances, it was the conduct of the applicant that established that it would not have been reasonable in all of the circumstances for him to be redeployed either within ASIC or some related entity.

[59] Consequently, the requirements which have been established to arise from subsection 389 (2) of the Act, and as confirmed in the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors 10, have been satisfied.

Conclusion

[60] This Decision has been made in respect to a jurisdictional objection raised by ASIC as the respondent to an application for unfair dismissal remedy. The jurisdictional objection has been advanced on the basis that the dismissal of the applicant was a case of genuine redundancy and therefore, by operation of subsection 385 (d) of the Act, without jurisdictional standing.

[61] The determination of the jurisdictional objection has focused upon the meaning of genuine redundancy as contained in s. 389 of the Act. Section 389 of the Act contains two affirmative elements and one negatory element which must be satisfied so as to establish whether a dismissal was or was not a case of genuine redundancy.

[62] Upon analysis I have determined that the first two affirmative elements were satisfied and in respect to the negatory element contained in subsection 389 (2) which deals with reasonable redeployment, I have determined that in all the circumstances the negatory element in subsection 389 (2) was not established, and therefore the dismissal of the applicant was a case of genuine redundancy.

[63] Although the determination of this matter has been made by way of application of the relevant legislative provisions, there is also a somewhat disturbing characteristic of the application that requires mention.

[64] The agitation of an unfair dismissal claim in circumstances where the applicant had actively sought to finalise his employment as soon as possible, upon the most lucrative terms available, and without any indication of complaint, but then to subsequently contest that dismissal and in doing so raise serious allegations against the managers that facilitated the arrangements that he had sought, is an approach that I find to be highly distasteful.

[65] The applicant attempted to justify his initial concurrence with his dismissal and his desire to leave employment as soon as possible because he had felt embarrassed to stay in an environment where fellow employees knew that he would be leaving ASIC. Even if such embarrassment was a genuine motivation for hastening his dismissal, in all good conscience he should have advised his employer at the time that his conduct arose from his embarrassment, and that he had underlying objections and complaints as to the basis for his dismissal. When the applicant was questioned about why he had not raised any concerns until his letter to the chair of ASIC on 22 August 2017, he provided an embarrassingly pitiful explanation. 11

[66] In his letter of 22 August to the chair of ASIC and other senior managers, the applicant alleged, amongst many things, that the circumstances of his retrenchment were highly unethical. Regrettably, that description would more fittingly describe the conduct of the applicant.

[67] In view of the finding made as to genuine redundancy, the jurisdictional objection of the employer is upheld. The application for unfair dismissal remedy is jurisdictionally barred and must therefore be dismissed. An appropriate Order dismissing the application will be issued accordingly.

COMMISSIONER

Appearances:

Mr D Srivastava appeared unrepresented.

Ms H O’Loughlin appeared for the employer.

Hearing details:

2017.

Sydney:

November 13

 1   Exhibit 4 – Attachment 7.

 2   Exhibit 4 – Attachment 9.

 3   Ibid.

 4   Exhibit 4 – Attachment 13.

 5   Exhibit 4 – Attachment 14.

 6   Exhibit 5 – paragraph 40.

 7   Transcript of proceedings @ PN381 to PN386.

 8   Transcript of proceedings @ PN387 to PN388.

 9   Exhibit 4 – Attachment 5, page 2 of 2.

 10   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

 11   Transcript of proceedings @ PN212.

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