[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.]

FAIR WORK COMMISSION

DECISION

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

(b) the dismissal was harsh, unjust or unreasonable; 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…

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: [2014] FWCFB 5595
Decision Date: 15 APRIL 2014

CaseChat Overview and Summary

The applicant, Mr Jain, filed an application for relief from unfair dismissal against Infosys Limited, his former employer. The dispute arose from the termination of Mr Jain's employment, which Infosys claimed was due to a genuine redundancy. Mr Jain contested the grounds of redundancy, arguing that he was not genuinely redundant and that the dismissal was unfair due to lack of consultation, redeployment, and operational reasons. The matter was heard in the Fair Work Commission (FWC).

The central legal issues before the Commission involved whether the dismissal was justified as a genuine redundancy, whether the necessary consultation was undertaken, and whether there were operational reasons for the dismissal. Additionally, the court had to consider whether there were opportunities for redeployment within the organisation.

The FWC found that Infosys had failed to demonstrate that the dismissal of Mr Jain was a genuine redundancy. The Commission held that the employer did not adequately consult with Mr Jain, as required by the Fair Work Act. Furthermore, the FWC found that there were operational reasons to support the dismissal, but these reasons did not outweigh the employer's failure to meet its obligations. Consequently, the FWC ruled in favour of Mr Jain, finding the dismissal unfair. The employer was ordered to pay compensation and reinstate Mr Jain to his previous position.

Orders