Jain v Infosys Limited

[2014] FWCFB 5595

[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

(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 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 position 1. 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 profit 2: ‘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 met 6.

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 James 7 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.

[14] I conclude that no modern award applied. Even if it did I am satisfied that Infosys conducted the requisite consultation 9. 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 Limited 10and 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 them 16. 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 positions available in Australia and New Zealand. He gives reasons why these positions were not suitable to redeploy Mr.Jain to 18. 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 overseas 23, but again he did not identify any suitable job. In TAFE NSW v. Pykett24it 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 employees 25. In any event, again, no specific suitable job has been identified.

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

 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

 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

 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

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