Mr Daniel Sandiford v Pactera Technology International Ltd
[2016] FWC 7728
•14 NOVEMBER 2016
| [2016] FWC 7728 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Daniel Sandiford
v
Pactera Technology International Ltd; Pactera Technologies Australia Pty Ltd
(C2016/1231)
COMMISSIONER RIORDAN | SYDNEY, 14 NOVEMBER 2016 |
Application to deal with contraventions involving dismissal.
[1] This decision relates to a general protections application by Mr Daniel Sandiford in relation to his employment with Pactera Technology International Ltd (PTI). Mr Sandiford alleges that he was dismissed by Pactera Technologies Australia Pty Ltd (PTA) because he continually sought clarification about one of the conditions of his employment.
[2] Leave was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act), for Mr Justin Le Blond from HWL Ebsworth Lawyers to represent Mr Sandiford and for Mr Richard Wilson of Counsel with Mr Cameron Groppi from Baker Jones Lawyers to represent PTI and PTA.
[3] This is a complex matter. At the request of the parties, if required, I have agreed to deal with the issue of the employment relationship on the basis that the determination of that issue may have a determinative effect on the extension of time application.
[4] Mr Sandiford was offered the role of Telstra Account Executive by PTI by way of the following undated correspondence:
“Pactera
Strictly Confidential
Dear Daniel Sandiford
We are very pleased to offer you the position with Pactera Technology International Ltd. (the "Company''), as its Telstra Account Executive, reporting to Mr. Victor Li, SVP of Pactera. If you decide to join us, you will receive an annual salary of AUD 225,000 (income tax included) to be paid into payroll account in 12 equal instalments at each month in accordance with the Company's normal payroll procedures, and shall be entitled to statutory benefits as required by local laws. You should note that the Company may modify job titles and benefits from time to time as it deems necessary.
You will be eligible for an on target performance commission of AUD 150,000 on a yearly basis, to be determined by SVP and approved by CEO.
In addition, if you decide to join the Company, subject to approval of the Board of Directors, you will be awarded a Time Based Stock Option grant to subscribe for 10,000 shares and, a Performance Based Restricted Stock Unit grant to subscribe for 10,000 shares, vesting period are 4 years.
The Company reserves the right to conduct reference check on all of its potential employees. Your job offer, therefore, is contingent upon a clearance of such background screening and medical check up.
You agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. Similarly, you agree not to bring any third party confidential information to the Company, including that of your former employer, and that in performing your duties for the Company you will not in any way utilize any such information.
As a Company employee, you will be expected to abide by the Company's rules and standards. Specifically, you will be required to sign the Company's non-disclosure agreement.
To accept the Company's offer, please sign and date this letter in the space provided below. If you accept our offer, your first day of employment will be Aug, 18th (tentatively). This lettersets forth the terms of your employment with the Company and supersedes any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral.
This offer of employment will terminate if it is not accepted, signed and returned by Aug. 10th.
The Company is excited about your joining and we look forward to your favourable reply.
Sincerely
Katie Jin
Chief Human Resource Officer
Pactera Technology International Limited” 1
[5] It is not in dispute that Mr Sandiford signed and returned this document.
[6] On 6 August 2014, Mr Victor Li sent Mr Sandiford the following email attaching his contract:
“Pactera
Pactera Technologies Australia Pty Ltd.
Consulting | Solutions | Outsourcing
6 August 2014
Dear Dan
Offer of Employment
I am delighted to offer you employment with Pactera Technologies Australia Pty Ltd. Congratulations and welcome to our team!
The growth and success of our Company depends upon our team of great people and we believe by joining us you will make an active and important contribution to that ongoing success in the near future.
This agreement, together with the associated schedules enclosed, sets out the terms and conditions of your employment offer. Please indicate your acceptance of the terms and conditions outlined by initialling each page and signing the Offer Acceptance page at the end of this agreement and returning it to Caroline Marston by 13 August 2014. This offer is valid until that time and we require you to accept and return this executed document within that period or the offer will lapse. As discussed, we believe that you will be joining us on 18 August 2014.
Once again, congratulations on joining Pactera Technologies Australia Pty Ltd. This is an exciting time in our evolution and look forward to personally welcoming you to the team very shortly.
Yours sincerely
Victor Li
Senior Vice President – CMU
Pactera Technologies Australia Pty Ltd” 2
[7] The employment contract clearly states that Mr Sandiford’s employment is with PTA. The contract is non-controversial. It deals with remuneration, leave, probation, hours of work, duties, travel, confidentiality, termination etc.
[8] Relevantly the contract contains the following clauses:
“13. Exclusivity
13.1 Exclusive Employment
During your employment you are to provide exclusive service to the Company and must not, without express written consent from the Company, enter into any engagement or carry on any activity which might in any way restrict you performing your duties for the Company, or facilitate others to compete with the Company or the Company’s business.
19. Entire Agreement and Severability
You acknowledge this employment agreement and any attached schedules represent the whole of the agreement reached between yourself and Pactera. In addition, this agreement supersedes all prior negotiations, understandings, contracts, agreement, representations, warranties, memoranda or commitments between the parties relating to the subject matter of this agreement.
If part or all or any of the paragraphs or clauses in this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions in this Agreement.
Schedule 1
Personal Employment Details
Full name: Dan Sandiford
Role: Vice President and Account Executive
Commencement Date: 18 August 2014
Employment Status: Full Time
Total Remuneration Package:
Your remuneration package will be made up of a base salary, superannuation, short term incentive (commission plan) and long term incentive. Details of the long term incentive will be sent to you by separate cover.” 3
[9] On 11 August 2014, Ms Caroline Marston, HR Director Australia sent the following email to Mr Sandiford:
“On 11 Aug 2014, at 9:12am, Caroline Marston wrote:
Hi Dan
Welcome to Pactera Australia. Please find attached a copy of your Australian employment contract plus some other paperwork that we will need you to complete. Please note, an original copy of the Tax File Number declaration form will need to also be completed when you come into our Melbourne offices.
I have put in a start date of 18 August in this letter. Should there need to be any change to the start date at all, please tell me.
We look forward to welcoming you on board.
Kind regards
Caroline Marston
HR Director, Australia” 4
[10] Mr Sandiford responded on the same day in the following terms:
“From: Daniel Sandiford
Sent: Monday, 11 August 2014 11:01am
To: Caroline Marston
Cc: Victory Li
Subject: Re Employment Officer
Hi Caroline/Victor
Thanks for the welcome.
I’ve reviewed the contract and have included the following clarifications and requests for amendments.
I’m happy to discuss these at any time.
Thanks, Dan” 5
[11] Mr Wilson submitted that Mr Sandiford was only ever employed by PTA and that his letter of offer from PTI had been “taken over” by his employment contract with PTA. There is no argument that Mr Sandiford received his wages and entitlements from PTA.
[12] Mr Sandiford was informed on 20 October 2014 that he had been included in the company’s new incentive program by Ms Katie Jin, Chief Human Resources Officer. The end of the email identifies that Ms Jin works overseas and for PTI.
[13] The stock option (which is the incentive program) was granted by BCP (Singapore) VI Cayman Acquisition Co Ltd. The termination of employment provisions of this Agreement state:
“(c) Termination of Employment.
(i) Immediately upon the cessation of the Participant’s Employment, any portion of the Stock Option that is unvested at the time of cessation of Employment will be forfeited.
(ii) The portion of the Stock Option that is vested will also terminate and be no longer exercisable and all Received Shares will be forfeited upon such cessation of the Participant's Employment if the Administrator in its sole discretion determines that such cessation occurred by reason-of an act or failure to act constituting Cause (or such Participant's Employment could have been terminated for Cause (without regard to the lapsing of any required notice or cure periods in connection therewith) at the time such Participant terminated Employment), and the Participant will have no further rights in the Stock Option.” 6
[14] Mr Sandiford was terminated during a discussion with Mr Chris Beukers on 10 February 2016. Mr Beukers, confirmed the termination by way of the following correspondence:
“Pactera
Pactera Technologies Australia Pty Ltd.
Consulting | Solutions | Outsourcing
10 February 2016
Dear Dan,
Re: Termination of employment
I refer to our discussion today Wednesday 10th Febraury, 2016. I wish to confirm that due to changes within the Pactera Australia organisation, your role within the business is no longer required.
As a result, your role with the company will be terminated effective today, Wednesday 10th February 2016. You will receive 3 weeks’ notice in lieu, this is in line with current legislative requirements. In addition to this letter, you will be provided with an estimated termination statement, outlining all monies owing, including:
● Payment in lieu of notice
● Severance payment
● Final hours worked
● Payment for any accrued an unused annual leave
Upon final return of all work issued items and settlement of any other outstanding matter, Termination monies will be paid to you within the next 5 working days from your last day of employment.
I appreciate that this may be a difficult time for you and your family. Should you need support through this time, please feel free utilise our Employee Assistance Program, offering confidential counselling services for you and your family. You can connect with the EAP on 1300 *** ***.
I would like to take the opportunity to wish you all the best for the future and thank you for your dedicated service to Pactera.
Yours sincerely
Chris Beukers,
EVP, GM of Asia-Pacific Business Group
__________________________________
Pactera Technology International Ltd
Level 11, 160 Queen Street Melbourne VIC Australia 3000
Level 2, 181 Miller Street, North Sydney, NSW 2060
Level 7, Lakeside 1 HK Science Park New Territories Hong Kong
60 Alexandria Terrace Singapore 118502” 7
[15] I note that this correspondence contains PTA’s logo in the top right hand corner of the page and the name, logo and a variety of business addresses for PTI in the bottom left hand corner.
[16] On 14 February 2016, Ms Wen Li sent Mr Sandiford the following email:
“From: Li, Wen
Date: 14 February 2016 at 4:49:18pm AEDT
To: Dan Sandiford
Subject: Notice of Departing, ESOP participant
To Dan,
Dear Dan:
Whereas, the board of directors of BCP (Singapore) VI Cayman Acquisition Co. Ltd. (the “Company) granted you Stock Options to purchase certain amount of shares of the Company’s common stock/Restricted Stock Units (the “Awards”), as listed in below spreadsheet, under the Company’s common stock/Restricted Stocks/Restricted Stocks Units (the “Awards”), as listed in below spreadsheet, under the Company’s 2014 Equity Incentive Plan (the “Plan”) and pursuant to an applicable award agreement evidencing your Awards;
Whereas, your Employment was ceased on Feb. 10, 2016 (the “Cessation Date”).
This letter now informs you that (i) as of the Cessation Date, the number of Awards that have been vested and are exercisable (the “Vested Awards”), and Awards that have not been vested (the “Un-vested Units”) are listed in below spreadsheet, (ii) the Vested Awards will remain outstanding and can be exercised until the tenth (10th) anniversary of the date of grant of the Awards, when all of the Vested Awards that have not been exercised will automatically be forfeited, and (iii) all of the Un-vested Units will be forfeited immediately upon the Cessation Date.
Note: All the vested shares only can be exercised after BCP launched IPO successfully.
Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.
Pls. pay more attention that in order to keep your exercise right of the vested options until our IPO, you may need to sign on the attached intent to exercise stock option letter and make a deposit equal with vested option units*grant price to the company (5469*4.38 total 23,954.22USD), if you wish to do that, pls. fill the attached letter and scan your signature back, I will inform you the company bank account after confirmed the Financial Dept.
BTW, pls. leave your personnel email address and mobile No. to us, thanks.
For and on behalf of
BCP (Singapore) VI Cayman Acquisition Co. Ltd.
Pactera Technology International Ltd.” 8
(my emphasis)
[17] A Deed of Release was proposed by PTA on 10 February 2014. Mr Sandiford’s legal representatives (HWL Ebsworth) and PTA’s legal representatives (Baker Jones) then embarked on a series of communications, proposing without prejudice offers and counter offers over the next twelve weeks. Relevantly, at no stage was there any mention of a general protections application or any accusation that Mr Sandiford had been terminated for exercising a workplace right.
[18] I note that in correspondence dated 22 February 2016 from HWL Ebsworth to PTI contained the following relevant paragraphs:
“2. Pactera Australia is the Australian Operation of Pactera International.
23. Mr Sandiford’s redundancy was effected witout procedural fairness, including (amongst other things):
(a) no prior notification that as a consequence of the review being conducted, his position may be made redundant;
(b) no opportunity for Mr Sandiford to provide input other comments in relation to the redundancy process; and
(c) no indication that any suitable redeployment opportunities were considered.” 9
[19] Relevantly, on 11 March 2016, Baker Jones sent correspondence to HWL Ebsworth which, in part, dealt with the issue of Mr Sandiford’s alleged employment with PTI:
“ …Employment Relationship
1. The document referred to in your letter as the “Pactera International Contract” was not a separate contract of employment. The letter is a standard offer letter (Offer Letter) issued by the Human Resources department of Pactera International to confirm offers of employment on behalf of the relevant local entity. The local entity then provides an employment agreement to the employee in terms which comply with the laws and practices in that Country. In the case of Mr Sandiford, this was done for and on behalf of Pactera Australia. Further, the employment agreement between Pactera Australia and Mr Sandiford, signed by Mr Sandiford on 11 August 2014 (Employment Agreement), provides at clause 19 that it (the Employment Agreement) “supersedes all prior negotiations, understandings, contracts, agreements, representations, warranties, memoranda or commitments between the parties relating to the subject matter of this agreement.” 10
[20] On 6 May 2016, Baker Jones sent the following letter to HWL Ebsworth:
“6 May 2016
Attention: Mr Steven Penning and Mr Justin Le Blond
HWL Ebsworth Lawyers
GPO Box ****
SYDNEY NSW 2001
By email only: [email protected]
Dear Sirs,
Daniel Sandiford and Pactera Technologies Australia Pty Ltd & Pactera Technology International Ltd
We refer to previous correspondence in this matter concerning your client Mr
Sandiford.
We are instructed to write to you on behalf of both Pactera Technologies Australia Pty
Ltd and its international holding company, Pactera Technology International Ltd.
Mr Sandiford's employment was terminated by Chris Beukers, EVP, GM of Asia-Pacific Business Group, by letter to your client dated 10 February 2016 (termination letter).
Mr Sandiford had held the position of Vice President and Account Executive heading the Telstra Business Unit in Australia for Pactera Technologies Australia Pty Ltd. The termination letter provided a breakdown of his termination payment estimate (including salary, termination payment, redundancy payments comprising a severance component and payment in lieu of notice, and superannuation). A settlement deed enclosed with the termination letter offered an additional 2 weeks' salary payment in lieu of notice and an ex gratia payment described as a bonus. An updated deed (correcting the start date of his employment) was emailed to him by Pactera Technologies Australia Pty Ltd on 18 February 2016.
The offer in the settlement deed was not accepted by your client, and to the extent it is now necessary to do so, it is formally withdrawn.
After his employment was terminated on 10 February 2016 Pactera Technologies Australia Pty Ltd subsequently paid Mr Sandiford, and he accepted receipt of, all payments to which he was entitled under the terms of his employment upon termination. He was also paid, and accepted receipt of, a bonus payment by Pactera Technologies Australia Pty Ltd.
Following termination of his employment you have asserted, under cover of “without prejudice” correspondence, that Mr Sandiford was employed from 18 August 2014 by both:
(a) Pactera Technology International Ltd pursuant to an offer of employment letter signed by him on 9 August 2014; and
(b) Pactera Technologies Australia Pty Ltd (CAN 110 045 684) pursuant an employment agreement dated 11 August 2014 and signed by him on 11 August 2014.
You have asserted that while Mr Sandiford's employment with Pactera Technologies Australia Pty Ltd has been terminated, his asserted employment with Pactera Technology International Ltd has not. You have further asserted that your client has alleged rights as an asserted employee of Pactera Technology International Ltd that you assert continue to accrue under agreements between your client and BCP
(Singapore) VI Cayman Acquisition Co Ltd in relation to stock options and restricted stock units.
These contentions are rejected by our clients. Your client was employed in a full time capacity from 18 August 2014 to 10 February 2016 as Vice President and Telstra Account Executive in Australia solely by Pactera Technologies Australia Pty Ltd.
Our clients refute the assertion made by you on behalf of your client that he was separately employed by Pactera Technology International Ltd.
We are instructed that at no stage during his employment as Telstra Account Executive between 18 August 2014 and 10 February 2016 did Mr Sandiford ever work for Pactera Technology International Ltd or assert that he was employed by that company.
To the extent that your client asserts employment with or by Pactera Technology
International Ltd, which is denied:
(a) it is our clients' position that any such asserted employment was terminated by the termination letter dated 10 February 2016 from Chris Beukers, EVP, GM of Asia-Pacific Business Group; and further
(b) to the extent that the termination letter did not terminate any asserted' employment with Pactera Technology International Ltd (which employment relationship remains denied), we are instructed to hereby terminate your client's asserted employment with Pactera Technology International Ltd with immediate effect.
Further, our clients are of the view that your client does not have any remaining entitlement relating to his employment with Pactera Technologies Australia Pty Ltd.
This is an open letter and will be relied upon in relation to the question of costs in the event that your client subsequently instructs you to issue legal proceedings.
Yours faithfully
BAKER JONES
Cameron Groppi
Lawyer” 11
Statutory Provisions
[21] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances,” taking into account the following five criteria:
“(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[22] The term “exceptional circumstances” has been the subject of extensive litigation. The accepted and countervailing principles were enunciated by a Full Bench of Fair Work Australia in Nutly v Blue Star Group 12, where it was held:
“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
Section 366(2)(a) – reason for the delay
[23] Mr Sandiford’s application was lodged on 27 May 2016, twenty one days after the correspondence from Baker Jones. Mr Le Blond submitted that this correspondence was the first time that Mr Sandiford had been officially notified that his employment with PTI had been terminated.
[24] Mr Le Blond argued that, as a result of this correspondence, the general protections application was within the statutory timeframe in relation to Mr Sandiford’s termination with PTI. Mr Le Blond also submitted that on the basis that PTA is an associated entity of PTI, any matter pertaining to Mr Sandiford’s employment with PTA is also within time.
[25] Mr Wilson argued that Mr Sandiford’s application was 87 days out of time on the basis that he was only ever employed by PTA and that his employment was terminated by PTA on 10 February 2016. Further, Mr Wilson claimed that PTI does not trade in Australia, nor does it employ anybody in Australia and that every component of Mr Sandiford’s employment was with PTA, namely, wages, leave, duties, supervision etc. Finally, Mr Wilson submitted that Mr Sandiford’s termination was due to a corporate restructure and was a genuine redundancy. PTA decided to change its operations by no longer treating its Telstra account as a separate business unit and instead splitting it into two areas, namely Commercial and Delivery with its responsibility now shared between two Managers namely Mr Chris Beukers and Mr Victor Li.
Section 366(2)(b) – action taken to dispute the dismissal
[26] The parties exchanged a significant number of “without prejudice” pieces of correspondence during the period of March – June 2016, that formed part of their submissions or were submitted during the proceedings. Whilst there were submissions made in relation to possible misleading conduct in relation to the redundancy process, the overwhelming majority of the correspondence dealt with the issues pertaining to the possible terms of settlement in a proposed Deed of Release.
[27] I note, however, that Mr Le Blond raised the issue of Mr Sandiford’s on-going employment with PTI in correspondence on 22 February 2016.
Section 366(2)(c) – prejudice to the employer
[28] Mr Wilson submitted that PTA would suffer prejudice if an extension of time was granted because a relevant employee, Ms Wen Li, is no longer employed by the Company.
Section 366(2)(d) – merits of the application
[29] Whilst Mr Wilson argued that Mr Sandiford’s application lacks merit, it is a well established principle that the FWC should not embark on a detailed analysis of the merits of a particular application. In Kornicki v Telstra Network Technology Group 13 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 14
[30] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 15 for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.
[31] I adopt this reasoning. However, I note that there is no evidence that PTI has engaged in any conduct which could be regarded as being a denial of a workplace right. This suggests Mr Sandiford may experience a degree of difficulty in progressing his application against PTI.
Section 366(2)(e) – fairness
[32] I am not aware of any other employee is in a similar position to Mr Sandiford. I do not regard this issue as a relevant consideration.
Conclusion
[33] I have taken into account all of the submissions and evidence that have been provided by the parties.
[34] I do not accept the submission from Mr Le Blond that the “associated entity” provisions of the Act, allow Mr Sandiford to “reach back” to PTA through his employment with PTI. Mr Le Blond argued that Mr Sandiford’s employment contract with PTI was completely separate to his contract with PTA. If this proposition is accepted, it would be inconsistent to suggest that this contract can now connect the two companies to allow Mr Sandiford the opportunity to re-ignite any rights he may have had, but have now expired.
[35] I am satisfied that Mr Sandiford’s general protections application was an afterthought. At no stage during the exchange of correspondence between the parties did Mr Le Blond mention his intention to file a general protections application. At no stage did Mr Le Blond seriously question Mr Sandiford’s termination. The correspondence between the parties was focused on negotiating an improved financial outcome for Mr Sandiford. If there was any consideration of lodging a general protections application, it is likely that such a possibility would have been used as a negotiating tool in an attempt to increase any offer of settlement. This did not occur.
[36] I am satisfied that Mr Sandiford’s employment with PTA was terminated on 10 February 2016. I agree that PTA is the Australian operation of PTI.
[37] The only arguable point of difference between the employment of Mr Sandiford at PTA or PTI is the issue of the stock options (incentive plan). I am satisfied that the email of 14 February 2016 should have left Mr Sandiford in no doubt as to the status of any perceived employment with PTI. The subject heading on the email states “Notice of Departing ESOP participant”. This email clearly refers to Mr Sandiford’s termination on 10 February 2016. The email then proposes a payment option for Mr Sandiford to exercise his stock options in accordance with his incentive plan agreement. It should have been crystal clear to Mr Sandiford at this point in time that PTI regarded his employment to have been terminated on 10 February 2016.
[38] In Mohammed Ayub v NSW Trains 16a Full Bench of the FWC held:
“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.”
[39] I am not pursuaded that Mr Sandiford had two contracts of employment. I am not satisifed that PTI conducts any business or employs any employees in Australia. Mr Sandiford had a contractual obligation to exclusively work for PTA. I am satisfied that Mr Sandiford satisfied this obligation. Mr Sandiford only worked for PTA. He was the Account Executive of the Telstra Account. He took instruction from his PTA seniors. His staff worked for PTA. Mr Sandiford was paid by PTA and earned his service entitlements from PTA. Mr Sandiford amended his contract of employment with PTA to conform with the letter of offer from PTI. The submission that Mr Sandiford was also employed by PTI is not supported by the evidence.
[40] If I am wrong in my conclusion that Mr Sandiford was only employed by PTA, then I am satisfied and find that Mr Sandiford was terminated by both PTA and PTI on 10 February 2016. Mr Sandiford did not perform any work for either PTA or PTI from that date. Mr Sandiford has not been paid by either organisation since that date. The terminating correspondence contained the identifying letterhead of both PTI and PTA. I am satisfied that it was the intention of Pactera to sever all employment contracts with Mr Sandiford on this date. The email of 14 February 2016 reinforced the position to Mr Sandiford that he had been terminated from all Pactera companies on 10 February 2016. The statutory clock started ticking at this point in time.
[41] Having found that Mr Sandiford, if employed by both corporations, was terminated on 10 February 2016, Mr Sandiford’s general protections application was 87 days out of time. Mr Sandiford would therefore need to satisfy the “exceptional circumstances” test for the FWC to grant an extension of time.
[42] a) I am not satisfied that Mr Sandiford has provided any reason for the lateness of the application which would justify granting an extension of time to allow Mr Sandiford to lodge his general protections application. The fact that the parties were in contact with each other negotiating Mr Skender’s termination package did not preclude Mr Skender from filing his application.
b) Whilst Mr Sandiford questioned the authenticity of his redundancy, I am not satisfied that Mr Sandiford undertook the requisite action to dispute his termination. The overwhelming majority of the correspondence between the parties was in relation to Mr Sandiford’s termination payments and entitlements, including his incentive scheme entitlements. There is no evidence to suggest that Mr Sandiford contacted, or tried to contact, the superior of Mr Beukers to object to his role being made redundant. Nor is there any evidence of Mr Sandiford seeking redeployment within the Pactera Group of companies.
c) I accept that PTI/PTA would suffer prejudice if an extension of time was granted on the basis that Mr Li is no longer employed by any entity in the Pactera Group.
d) I have mentioned earlier that I am of the preliminary view that Mr Sandiford would have difficulty in progressing his application on the basis the evidence fails to clearly identify any adverse action. However, it is not appropriate for the FWC to conduct a detailed analysis or consideration of this issue. Such analysis is the domain of the Court.
[43] I am not satisfied that the circumstances of Mr Sandiford’s termination satisfy the necessary requirements in order for it to be identified as an “exceptional circumstance”.
[44] I cannot find any circumstance which could be reasonably identified as being “out of the ordinary course, unusual, special or uncommon.”
[45] I find that Mr Sandiford does not have an exceptional circumstance which would warrant granting an extension of time for his general protections application.
[46] The application is dismissed.
COMMISSIONER
1 F8 Annexure C
2 F8 Annexure I
3 F8 Annexure I
4 Respondent’s outline dated 26 August 2016 – Annexure 9
5 Respondent’s outline dated 26 August 2016 – Annexure 10
6 F8 Annexure E
7 Respondent’s outline dated 26 August 2016 – Annexure 3(c)
8 F8 Annexure G
9 F8 Annexure H
10 Respondent’s outline dated 26 August 2016 – Annexure 6(a)
11 Respondent’s outline dated 26 August 2016 – Annexure 6(k)
12 [2011] 203 IR 1
13 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C
14 Ibid.
15 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
16 [2016] FWCFB 5500
Printed by authority of the Commonwealth Government Printer
<Price code C, PR586865>
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