Gregory Greer v Kyndryl Australia Pty Ltd - [2023] FWC 2598

[2023] FWC 2598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Gregory Greer
v

Kyndryl Australia Pty Ltd

(C2023/2286)

DEPUTY PRESIDENT BOYCE

SYDNEY, 9 OCTOBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant “dismissed” within the meaning of s.386(1)(a) of the Fair Work Act 2009 – respondent asserts that applicant’s employment ended by ‘mutual agreement’ (not dismissal at the employer’s initiative) pursuant to a contractual term – jurisdictional objection upheld – application dismissed

Introduction

Mr Gregory Greer (Applicant) has filed a Form F8 with the Fair Work Commission (Commission), being a general protections involving dismissal application (Application). By way of that Application, the Applicant asserts that his dismissal by Kyndryl Australia Pty Ltd (Respondent) occurred in contravention of Part 3-1 of the Fair Work Act 2009 (Act).

The Respondent raises a jurisdictional objection to the Application, and otherwise denies the Applicant’s allegations as to contravention. In relation to the jurisdictional objection, the Respondent says that it did not “dismiss” the Applicant within the meaning of ss.12 and 386(1)(a) of the Act.

At the hearing, the Applicant was represented (with permission) by Mr Jason Polese, of Counsel, instructed by Mr Abdullah Rahhal, Principal Solicitor, Headstart Legal. The Respondent was represented (with permission) by Mr Evan Mentiplay, Special Counsel, Johnson Winter Slattery lawyers. Final written submissions were filed on 13 September 2023.

The parties and their contractual relations

By way of a “conversion letter”,[1] duly executed by the Applicant, the Applicant’s terms and conditions of employment were converted from “Westpac terms and conditions” to “IBM Global Services Australia terms and conditions” effective 10 December 2001.[2] The short point appears to be that on and from 10 December 2001, the Applicant became employed by IBM Global Services Australia Pty Ltd (IBM Australia), part of the IBM Global Services Group, with his previous service and entitlements with Westpac Banking Corporation (accrued since December 1970) transferred, recognised, and/or updated (as per the conversion letter) as part of his new engagement with IBM Australia.

In December 2019, the Applicant expressed a keen interest in taking up a role with IBM Global Services Pte Ltd located in Singapore (IBM Singapore).[3] As I understand it, IBM Australia and IBM Singapore, were relevantly (at this time) part of IBM Global Services Group, with relevant employees in one location able to take up roles within the group at other locations (subject to relevant contractual arrangements being agreed and/or entered into).[4]

On 8 January 2020, the Applicant was offered and accepted a role with IBM Singapore (Assignment).[5] In agreeing to this Assignment, the Applicant also agreed to, or entered into, the terms and conditions set out in the following written documents:

a) an employment contract with IBM Singapore;[6]

b) a Leave Of Absence Agreement (LOA Agreement) with IBM Australia (dated 29 January 2020, and signed by the Applicant on 30 January 2020), for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2598
Decision Date: 9 OCTOBER 2023

CaseChat Overview and Summary

The Fair Work Commission was tasked with determining whether Gregory Greer had been dismissed by Kyndryl Australia Pty Ltd in contravention of the Fair Work Act 2009. Greer had filed an application asserting that his dismissal by Kyndryl Australia was unlawful. The respondent argued that Greer's employment had ended by mutual agreement, as stipulated in their Leave of Absence (LOA) Agreement, and thus was not a dismissal within the meaning of the Act. The Commission had to decide whether Greer had been "dismissed" under s.386(1)(a) of the Act or if his employment ended by mutual agreement as per the LOA Agreement. After examining the evidence, the Commission found that the LOA Agreement was valid and enforceable, and that Greer had not been offered or commenced any role within 60 days of the end of his assignment, as required by the LOA Agreement. Consequently, Greer's employment ended by mutual agreement, not by dismissal. The Commission dismissed Greer's application for lacking jurisdiction.

Orders