Gregory Greer v Kyndryl Australia Pty Ltd
[2023] FWC 2598
•9 OCTOBER 2023
| [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 the term 10 February 2020 to 9 February 2022 (i.e. two years);[7] and
c) the Global IBMer Program offer dated 9 January 2020 (as further explained in the IBM Global Mobility: Global IBMer Assignment Employee Briefing Guide) (Global IBmer Program).[8]
It is appropriate to set out the full terms of the LOA Agreement. It reads:
“29 January 2020
Confidential
Greg Greer
[address omitted]By hand and by email [email address omitted]
Dear Greg,
LEAVE OF ABSENCE WHILE WORKING FOR IBM IN ANOTHER COUNTRY
This letter is to confirm the terms of the leave of absence (LOA) that you have requested from IBM Australia Limited (IBMA) for the purposes of working for IBM in another
country with IBM Singapore (IBM Destination Country).Period of LOA
Your LOA for these purposes will commence on 10-Feb-2020 and at this stage, is anticipated to conclude on 09-Feb-2022.
During the LOA
It is hoped that your current role or a role similar to your current role will be available for you to return to at the end of your LOA. However, as business needs will continue to evolve during this time, this may not be the case. Please note that it is a condition of your LOA that you acknowledge and agree that IBMA does not guarantee that your position or a commensurate role will be available on your return from LOA and as such IBMA has no obligation to offer you your current position or any other position once your LOA ends.
Please contact me inwriting no later than two months prior to the end date of your LOA and notify me of your intention, or otherwise, to return to IBMA so that we can discuss business needs and opportunities for your return.
During your LOA:
·While your continuity of employment with IBMA will not be broken, your LOA will not count as part of your total period of service with IBMA and you will not accrue or receive service related and other benefits such as annual leave and sick leave during the period. You will continue to accrue long service leave while on LOA however, while on LOA you are not able to access your long service leave.
·Your leave entitlements will be governed in accordance with the terms and conditions of your employment with your IBM Destination Country. As a consequence, unless required by law, you will not be eligible to take IBMA paid annual, bong service, parental or sick leave while you are on LOA.
·Any Salary Continuance Insurance coverage will continue for up to 36 months from the date your LOA commences. If for any reason the LOA will exceed 36 months, the insurer requires prior notice and will determine if insurance will continue beyond this time. If your LOA is extended beyond 36 months for any reason you should contact your HR Partner in Australia and ask them to notify the insurer.
·While you remain a Global IBMer on LOA and working in the IBM Destination Country. insurance coverage Death, Total and Permanent Disability will be provided by either IBMA or the IBM employer in the IBM Destination Country. For further details on this insurance coverage please contact the mobility team.
·As you will be on an unpaid leave of absence, any company contributions to superannuation will be made in accordance with the current ATO guidelines until such time as your pay recommences in IBMA.
·You remain an employee of IBMA and continue to be bound by your terms and conditions of employment including but not limited to your employment agreement and any confidentiality agreement or other agreement between you and IBM.
·You must continue to comply with the 1BM Business Conduct Guidelines.
·You may resign from your employment with IBMA with immediate effect by providing written notice.
·IBMA may terminate your employment in accordance with the terms and conditions of your employment.
·Any promotion or salary increase or bonus by the IBM Destination Country during the time you are working for the IBM Destination Country is limited to the duration of the LOA only.
End of LOA
Upon receiving your written notification of your intention to return to work, where your
pre-LOA position is not available, we will use our reasonable endeavours to assist you to find an available alternative position. The work activity of the new position may differ from the work activity of your pre-LOA position.Following your return from LOA, you will be provided with up to 60 days during which time you can repatriate and undertake job search within IBMA.
If you do not commence in a role within this time, your employment with IBMA will terminate on the last day of this 60 day period (and no additional notice of termination is required).
Staying in Touch
Please stay in touch and keep me informed of any change in your personal circumstances.
Acceptance
By commencing your period of LOA, you acknowledge and accept the terms of the LOA as set out in this letter. Despite this we ask you to also sign and return a copy of this letter to Robyn Sumner at [email address omitted].
Congratulations on the opportunity to work overseas. I wish you all the best while working for IBM Destination Country.
Please contact me or Robyn Sumner if you have any questions.
Regards
[original signature omitted]
Darin Hobbs
Infrastructure Services Delivery LeaderI, Greg Greer (Serial Number: [omitted]), have read and understood the terms of the Leave of Absence as set out above and I accept the terms of the Leave of Absence as set out in this letter. I acknowledge that if there is no role for me to return to following my Leave of Absence and within 60 days of my return, my employment with IBM may come to an end.
Signed: Greg Greer [original signature omitted]
Dated: 30th January, 2020
Greg Greer
Copy to retained by employee and manager and HR Partner
Copy to be sent to Personnel Records (FA32)”[9]
On 10 February 2020, the Applicant commenced working with IBM Singapore (in Singapore).
On 10 June 2021, ahead of the IBM Global Services Group undertaking an intended separation or divestment (or “spin off”) of its Global Technology Services Division (or management infrastructure business) to a new public company branded “Kyndryl”[10]:
a) the Applicant’s employment with IBM Singapore transferred (by operation of Singapore law) to Kyndryl (Singapore) Pte Ltd; and
b) the Applicant’s employment with IBM Australia transferred (by way of offer and acceptance of a new employment contract) to Kyndryl Australia Pty Ltd (Kyndryl Australia Contract).
On 26 August 2021, the Applicant signed an “Addendum Letter” in respect of the Assignment, which preserved the LOA Agreement.[11] In other words, to the extent that there might be any query or doubt as to the terms and conditions of the LOA Agreement between the Applicant and IBM Australia transferring or being maintained as a result of the Applicant’s transferred employment to Kyndryl Australia (under a new employment contract), such query or doubt was resolved when the Applicant signed the Addendum Letter (which wholly maintained the LOA Agreement with Kyndryl Australia).
On 7 February 2022, the Applicant signed an “Extension Letter” to the Assignment, extending the period (or end date) of the Assignment from 9 February 2022 to 9 February 2023. It was agreed by the Applicant in the Extension Letter that all other terms of the LOA Agreement would continue unchanged.[12] Again, the terms of the Extension Letter, as signed (and agreed to) by the Applicant puts beyond any doubt that the LOA Agreement continued to apply to the Applicant in respect of the Assignment (including the end of the Assignment).
On 31 October 2022, the Applicant was given notice that his employment with Kyndryl Singapore (i.e. the Assignment) would end on 30 December 2022.[13] Post 30 December 2022, the Applicant’s employment with Kyndryl Australia was governed by:
a) the Kyndryl Australia Contract;
b) the LOA Agreement; and
c) the Global IBmer Program.
The dispute between the parties
The dispute between the parties concerns whether the cessation of the Applicant’s employment with Kyndryl Australia arose:
a) by way of termination (“dismissal”) at the initiative of the Respondent per s.386(1)(a) of the Act; or
b) by ‘mutual agreement’ pursuant to the terms of the LOA Agreement (and the Global IBmer Program), whereby the parties to the LOA Agreement agreed, as part of the Applicant agreeing to take the Assignment, that at the end of the Assignment:
·a return by the Applicant to his pre-Assignment position, as specified in the Kyndryl Australia Contract, or a commensurate role, with the Respondent (formerly IBM Australia), was not guaranteed; and
·should the Applicant not “commence” a role with the Respondent (formerly IBM Australia) within 60 days of his return to Australia, his employment with the Respondent would terminate, dissolve or come to an end automatically.
The evidence
The Applicant’s witness statement evidence may be summarised as follows:
a) Notwithstanding the terms of the LOA Agreement, the Applicant had an “expectation” that upon completion of the Assignment, he would return to Australia and continue to work for the Respondent.[14]
b) The Applicant was informed on 13 November 2022 that his Assignment would end on 31 December 2022. In other words, the Applicant would continue working in Singapore under the Assignment until at least the end of December 2022. The Applicant commenced looking for alternative roles with Kyndryl in both Singapore and Australia in or about mid-November 2022.[15]
c) The Applicant was “offered” a role as “Delivery Executive – Transport for New South Wales” (DE Role) with Kyndryl Australia during a telephone conversation with Ms Cathy Henry, Kyndryl Vice President Delivery Management, Australia, on 16 November 2022. This offer in respect of the DE Role was also reconfirmed to the Applicant via telephone by Mr Darin Hobbs, Kyndryl Director Australia, Practice General Management on 17 November 2023.[16]
d) The Applicant engaged in follow-up discussions about the DE Role, via Microsoft Teams, with Mr Pascal Allix, Kyndryl Director of Account Management, Australia, on 6 December 2022. Mr Allix advised the Applicant that he would have discussions with the client’s Customer Representative (at Transport for New South Wales), Mr Matt Alcok, about the requirements for the DE Role, and relevant expectations.[17]
e) On 18 December 2022, the Applicant had a telephone conversation with Mr Alcok, who expressed his satisfaction with the Applicant’s suitability for the DE Role.[18]
f) Relying upon his original expectation (from 2020) to return to a role in Australia, and the discussions or representations set out in sub-paragraphs (c) to (e) above, the Applicant made a conscious decision to cease pursuing further opportunities in Singapore. He expected to immediately take up work in the DE Role at Kyndryl Australia upon his return to Australia. The Applicant physically returned to Australia on 31 January 2023.[19]
g) On or about 2 February 2023, during a discussions with Mr Hobbs, the Applicant was advised that the DE Role “that was promised to [him]” had been put on hold, and that the 60 day period to find another role (pursuant to the terms of the LOA Agreement) had been activated, meaning that the Applicant was to be put on the “bench” whilst he sought out another role. In other words, the Applicant was provided 60 days to solely focus upon looking for another role, and would not be required to perform any work for Kyndryl (including Kyndryl Australia) during this period.[20]
h) On 15 March 2023, the Applicant received the following letter from Mr Owen Robertson, Kyndryl Business Operations, Australia:
“STRICTLY PRIVATE AND CONFIDENTIAL
15 March 2023
Greg Greer
[address omitted]BY EMAIL [email omitted]
Dear Greg,
This letter is to confirm our discussion on 10th March 2023 and your earlier discussion with Darin Hobbs on 1 February 2023 regarding your return to Australia and the terms of the LOA arrangement relating to your ongoing employment in Kyndryl Australia.
As per your LOA, IBM Letter, Kyndryl Policy and the Mobility Agreement [Global IBmer Program offer], IBM/Kyndryl agreed we would use reasonable endeavours to assist you to find another suitable role on your return to your home country, Australia. In the terms of the letter it specifies that you have up to 60 days to find another role and if you do not commence in a role within this time your employment will end with IBM now Kyndryl on the last day to the 60 day period
We are now at a point that the 60 days will expire on 1 April 2023 and if no role is secured in Kyndryl on or before this date your employment will end, and you will resign from Kyndryl exiting on this date.
On your resignation being finalised, all outstanding monies including payment of Annual leave and Long Service leave will be paid into your nominated bank account.
We would like to sincerely thank you for your commitment and contribution over the years and wish you well in the future.
Yours sincerely,
[original signature omitted]
Owen Robertson
Kyndryl Business Operations”[21]
i) The Applicant’s employment came to an end with the Respondent on 1 April 2023 (being 60 days after the Assignment ended, as per the terms of the LOA Agreement).[22]
During cross-examination, the Applicant readily conceded that was he was never (ever) “offered” the DE Role, orally or in writing, nor was he offered any other role with Kyndryl Australia.[23] It follows that the Applicant never “commenced” a role at Kyndryl Australia within 60 days of his Assignment coming to an end.
Mr Hobbs evidence only departs, substantially or significantly, from the evidence of the Applicant in the following respects:
a) During their conversation in early November 2022, the Applicant stated to Mr Hobbs that he would be returning to Australia irrespective of any positions that might be available in Singapore (or at Kyndryl Singapore) post the end of the Assignment, because his wife had already returned to Australia.[24]
b) The DE Role was only ever advanced by Mr Hobbs to the Applicant as a “possibility”, with Mr Hobbs advising the Applicant that he would need to formally interview for the DE Role. Mr Hobbs never made an “offer” to the Applicant in respect of the DE Role, in any shape or form.[25]
c) Mr Hobbs informed the Applicant on 16 January 2023, prior to the Applicant returning to Australia, that the DE Role would not be going ahead.[26]
Ms Heaney’s evidence is that she at no time offered the Applicant the DE Role. Specifically, Ms Heaney notes that the DE Role concerned a team that she was not responsible for, and she therefore did not have the authority to offer the Applicant the DE Role.[27] Any suggestion that Ms Heaney had the ability or authority to offer the Applicant a role in a team that she was not directly responsible for is not only untrue, but nonsense.
Ms Rima Yammouni, Kyndryl Vice President – Account Management, provided evidence that:
a) the Applicant advised her during a telephone conversation on 17 November 2022 that his wife had already returned to Australia, and that he would thus be returning to Australia regardless of whether or not he had a job to return to (i.e. the Applicant clearly expressed (stated) to Ms Yammouni that he had no intention of remaining in Singapore post the end of the Assignment);[28]
b) at no time did Ms Yammouni “offer” the Applicant the DE Role;[29]
c) after assessing the Applicant and another employee (who was performing the DE Role on a temporary basis) for the DE Role, Transport for New South Wales’ preference (as the client) was to employ the existing temporary employee (not the Applicant) to the DE Role on a permanent basis; and
d) there was a hiring freeze at Kyndryl between January 2023 and March 2023. Despite the existing temporary employee being selected for the DE Role by Transport for New South Wales in December 2022, this temporary employee was not engaged as permanent in the DE Role until the hiring freeze ended (in March 2023).
None of the evidence of Mr Hobbs, Ms Heaney, and Ms Yammouni changed, or was seriously challenged, during cross-examination.[30] The short point is that there is no evidence to support a finding as to a representation (or misrepresentation) as to the Applicant being offered a role prior to, or post, the end of his Assignment.
In his submissions, the Applicant asserts that, contrary to the terms of the LOA Agreement, the Respondent did not use its “reasonable endeavours” to assist him to find an alternative position. However, this assertion is not supported by any evidence, or any cogent evidence.[31] I am therefore not in a position on the evidence to make a finding as to any ‘breach’ by the Respondent of the reasonable endeavours provision of the LOA Agreement. For the purposes of this decision, I work on the basis that the evidence before me does not disclose any breach by the Respondent of the “reasonable endeavours” provision of the LOA Agreement.
Findings and Consideration
Just like any other contract, an employment contract may come to an end by mutual agreement, including by reference to the satisfaction or non-satisfaction of specific conditions. Bringing a contract to an end by way of mutual agreement is not a dismissal, or a resignation (or a termination at the initiative of one party, with or without notice).
In this case, the determination as to the manner in which the employment contract and the employment relationship between the parties came to an end comes down to the terms of the LOA Agreement. The Kyndryl Australia Contract contains express terms as to its termination, with and without notice. But they are not termination terms that apply in bringing the Applicant’s employment to an end post an Assignment (i.e. the terms of the LOA Agreement apply).
In his submissions, the Applicant has placed significant emphasis upon evidence relating to the Respondent’s representations or statements to the Applicant that the terms of the LOA Agreement required him to resign if he did not commence a role with the Respondent within 60 days of the Assignment coming to an end.[32] Whilst the Respondent representations or statements in this regard are clearly erroneous, they ought not be a distraction from the task at hand, namely, the proper construction and actual effect of the terms of the LOA Agreement.
Having regard to the evidence and submissions of the parties, I make the following findings:
a) the LOA Agreement was at all material times valid, operative and enforceable. This is confirmed by the Applicant’s execution of both the Addendum Letter and the Extension Letter. As Latham CJ stated in Wilton v Farnworth[33]:
"In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."[34]
b) between the period between the end of the Assignment (30 December 2022), and the cessation of the Applicant’s employment with the Respondent (1 April 2023), the Applicant was not offered any roles with the Respondent, and thus the Applicant did not “commence” any role with the Respondent within 60 days of the end of the Assignment.
The effect of the terms of the LOA Agreement with the Respondent, Kyndryl Australia (formerly IBM Australia), was (or is) as follows:
a) the Applicant agreed to undertake the Assignment by working at IBM Singapore (in Singapore) for the period February 2020 to February 2022 (subsequently extended pursuant to the Extension Letter (which maintained in whole the terms of the LOA Agreement));
b) in agreeing to undertake the Assignment with IBM Singapore, the Applicant agreed to remain employed by IBM Australia (on an ‘agreed’ leave of absence), subject to the express terms of the LOA Agreement;[35]
c) upon the Assignment ceasing (for whatever reason), the Applicant would cease to work at IBM Singapore, and would return to Australia in accordance with the terms of the LOA Agreement,[36] with the Applicant’s continued or on-going employment with Kyndryl Australia (back in Australia) subject to the express terms of the LOA Agreement (i.e. as agreed to by the Applicant in January/February 2020 when he was keen to take up the Assignment, and willingly executed the LOA Agreement);
d) in failing to commence a role with Kyndryl Australia (for whatever reason) within 60 days of the Assignment ending (for whatever reason), pursuant to the express terms of the LOA Agreement, the Applicant’s employment came to an end (i.e. as agreed under the terms of the LOA Agreement).
The foregoing findings as to the construction and effect of the terms of the LOA Agreement are equally wholly consistent with the terms and conditions set out in the Global IBmer Program, which the Applicant also signed and accepted.[37]
In view of my findings (see paragraphs [10]-[12], and [21]-[26] of this decision), and the evidence (see paragraphs [13]-[20] of this decision), I ultimately find that the Applicant was not “dismissed” (or otherwise terminated) by the Respondent within the meaning of s.386(1)(a) of the Act. Rather, the Applicant’s employment came to an end (by mutual agreement) pursuant to the terms of the LOA Agreement, in circumstances where the Applicant did not “commence” a role with the Respondent within 60 days of his Assignment coming to an end.
Given the Applicant was not “dismissed” by the Respondent, his Application in these proceedings cannot proceed any further before the Commission. It must be dismissed. An Order dismissing the Applicant’s Application will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Mr Jason Polese, of Counsel, instructed by Mr Abdullah Rahhal, Principal Solicitor, Headstart Legal, appeared with permission on behalf of the Applicant.
Mr Evan Mentiplay, Special Counsel, Johnson Winter Slattery lawyers, appeared with permission on behalf of the Respondent.
[1] Exhibit A1, pp.7-14.
[2] Ibid, p.7.
[3] Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, at [5].
[4] Various different entities (including their abbreviations) are referred to in the evidence (including documentary evidence and letterheads). For the purposes of this decision, I have referred to IBM Australia, IBM Singapore. Kyndryl Australia, and Kyndryl Singapore. Beyond these entity definitions, neither party asserted in these proceedings that any specific entity name causes any issue in these proceedings to turn one way or the other. In other words, if a specific entity name be wrong, it is merely an issue of the entity name being technically wrong, not any ultimate findings made.
[5] Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, Annexure ‘DH-2’, pp.18-19 of Exhibit R1.
[6] Ibid, Annexure ‘DH-1’, pp.6-16 of Exhibit R1.
[7] Ibid, Annexure ‘DH-5’, pp.42-44 of Exhibit R1.
[8] Ibid, Annexures ‘DH-3 and ‘DH-4’, pp.20-40 of Exhibit R1.
[9] Ibid, Annexure ‘DH-5’, pp.42-44 of Exhibit R1.
[10] To occur or take effect on 8 October 2021.
[11] Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, Annexure ‘DH-8’, p.62 of Exhibit R1.
[12] Ibid, Annexure ‘DH-9’, p.64 of Exhibit R1.
[13] Ibid, Annexure ‘DH-10’, p.66 of Exhibit R1.
[14] Exhibit A1, Applicant’s Statement, 7 July 2023, at [10].
[15] Ibid, at [17]. There is no evidence from the Applicant of any efforts made by him to obtain work in Singapore (with Kyndryl Singapore, or anyone else).
[16] Exhibit A1, Applicant’s Statement, 7 July 2023, at [18]-[19].
[17] Ibid, at [20].
[18] Ibid, at [21].
[19] Ibid, at [22]-[24].
[20] Ibid, at [25]-[26]. See also, Transcript, PN389-PN390.
[21] Exhibit A1, Applicant’s Statement, 7 July 2023, Annexure “I” (Letter from Mr Own Roberston to Mr Gregory Greer, 15 March 2023), p.50 of Exhibit A1. The Applicant has made a fleeting submission to the effect that a Jones v Dunkel (1959) 101 CLR 298 (at 320) inference ought be drawn from Mr Robertson’s failure to give evidence in these proceedings. I reject the submission. There is nothing on the evidence before me to suggest that evidence from Mr Robertson in these proceedings was required, such that it absence gives rise to any specific inference being drawn.
[22] Exhibit A1, Applicant’s Statement, 7 July 2023, at [35]; See also Form F8, 20 April 2023, at Item 1.2.
[23] Transcript, PN343-PN356, PN373, PN376, PN380-PN381.
[24] Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, at [17]. Exhibit R2, Second Statement of Mr Darin Hobbs, 13 July 2023, at [4].
[25] Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, at [18]. Exhibit R2, Second Statement of Mr Darin Hobbs, 13 July 2023, at [3].
[26] Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, at [19]-[20]. Exhibit R2, Second Statement of Mr Darin Hobbs, 13 July 2023, at [5].
[27] Exhibit R3, Statement of Ms Cathy Heaney, 14 July 2023, at [2]-[3].
[28] Exhibit R4, Statement of Ms Rima Yammouni, 14 July 2023, at [6].
[29] Ibid.
[30] See, for example, Ms Yammouni (Transcript, PN85, PN95-PN98, PN107-PN108); Ms Heaney (Transcript, PN147, PN154, PN158), Mr Hobbs (Transcript, PN191, PN211-PN212).
[31] In other words, the Applicant’s evidence (Exhibit A1, Applicant’s Statement, 7 July 2023, at [27]-[28] and [33]) does not particularise or specify what action should have been taken by the Respondent, or how any such action (or endeavor) was unreasonable.
[32] Exhibit R1, Statement of Darin Hobbs, 21 June 2023, Annexures ‘DH-12’ to ‘DH-18’.
[33] (1948) 76 CLR 646.
[34] Ibid, at 649.
[35] See also Global IBMer Program offer dated 9 January 2020 (Exhibit R1, Statement of Mr Darin Hobbs, 21 June 2023, Annexure ‘DH-3’, p.21 of Exhibit R1, which states: “While on assignment [with IBM Singapore], you are placed on ‘inactive with intent to return’ status in the home country”.
[36] Putting aside the Applicant deciding to remain in the Host country (Singapore).
[37] Exhibit R1, Statement of Darin Hobbs, 21 June 2023, Annexure ‘DH-3’, pp.21-23 and 27-29 of Exhibit R1.
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