Mr Soon (Donald) Yap v Tata Consultancy Services Limited

[2014] FWC 8877

[2014] FWC 8877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Soon (Donald) Yap
v
Tata Consultancy Services Limited
(U2014/6926)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 10 DECEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr Yap for an unfair dismissal remedy pursuant to section 394(1) of the Fair Work Act 2009 (the Act).

[2] I heard the application in Sydney on 7 October and 18 November 2014. Mr Yap represented himself. Mr Lockwood, Head of Human Resources for TCS Consultancy Services Limited (TCS), represented the respondent.

[3] I have had regard to s.396 of the Act and determined that this application was made within the period required by the Act, that Mr Yap is a person protected from unfair dismissal and thatTCS is not a small business employer.

[4] It is necessary for me to determine whether or not Mr Yap's termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[5] Mr Yap commenced work at TCS on 13 November 2006. His employment was terminated on 11 April 2014 for what TCS submitted was a genuine redundancy. I am satisfied and find that Mr Yap’s termination of employment arose in the following manner.

[6] Mr Yap had returned from an assignment in China on 27 February 2014. On his return TCS looked for a further assignment for him. It indicated that a new assignment could not be found and dismissed him on 7 March 2014. In the course of the hearing it became apparent that TCS had misunderstood Mr Yap’s availability for future work. It had wrongly concluded Mr Yap was only available for work in Australia when in fact, although Mr Yap preferred to work in Australia, he was willing to undertake work overseas if that was all that was available. As a result of this misunderstanding TCS did not look for overseas work for Mr Yap. It confined its search to domestic positions. When none were found to be available Mr Yap’s employment was terminated.

[7] I stood the application over mid-hearing to allow TCS the opportunity to identify whether an international position had been available when Mr Yap's employment was terminated, and also to search for an international position that might then be available and suitable for Mr Yap. If such a position had been available TCS indicated it would offer it to Mr Yap. Unfortunately none was available.

[8] Mr Yap did not accept that TCS’s search for new employment on his behalf as at the date of termination of employment, or during the course of the hearing, was genuine.
[9] I accept the evidence of TCS’s witnesses as to the genuineness of the searches it has made for future employment for Mr Yap and as to the availability of an overseas appointment appropriate to Mr Yap at the date of termination of employment.

Valid reason - s.387(a)

[10] Mr Yap returned from an assignment in China. On his return TCS searched for employment for him in the domestic market. It did not search for employment in the overseas market. Having failed to locate domestic work within Mr Yap's skill set Mr Yap was dismissed. TCS’s understanding of Mr Yap's preference for domestic work was a mistake. It was careless. Mr Yap had a preference for domestic work but it was never the case that he would have refused overseas work if that was all that was available. As a result of that misunderstanding no overseas search was properly and appropriately conducted and Mr Yap's employment was terminated. I am satisfied and find that TCS did not have a valid reason for the termination of Mr Yap's employment on 11 April 2014. I am satisfied that TCS’s reason for the termination of Mr Yap’s employment was not sound, defensible and well founded.   

Notification of Reason - s.387(b)

[11] I am satisfied and find that Mr Yap was notified of the reason for his termination of employment.

Opportunity to Respond - s.387(c)

[12] I am satisfied and find that there was an insufficient opportunity provided to Mr Yap to discuss the possibility of future employment with TCS. Had such an opportunity been provided the misunderstanding which led to Mr Yap's termination of employment before a search for overseas work had been conducted would not have occurred.

Support Person - s.387(d)

[13] There was no refusal to provide a support person. Mr Yap did not request such an opportunity.

Unsatisfactory Performance - s387(e)

[14] There was no issue as to Mr Yap's performance.

Procedures for implementing dismissal - s.387(f) and (g)

[15] I am satisfied and find that the procedures adopted by TCS were inadequate. The level of consultation should have been greater. An understanding of Mr Yap's real position as to the acceptable geography of any further appointment would have been fully understood had such an opportunity been provided. The size of TCS’s business and the absence of any Human Resource professionals had no impact on the procedures.

Any other relevant matters – s.387 (h)

[16] I have considered the financial and social consequences to Mr Yap of termination of employment.

[17] Having considered the requirements indicated in s.387 of the Act I am satisfied that the dismissal of Mr Yap was harsh, unjust or unreasonable.

[18] I now have to consider remedy.

[19] I have already found as a matter of fact that TCS did not search for an overseas appointment for Mr Yap on his return from China. He would have taken such a position had it been offered to him. It was harsh, unjust or unreasonable to terminate his employment without a proper search in the area of work which would have been satisfactory to him and TCS. I am satisfied that a reasonable period to conduct that search would have been four to six weeks.

[20] Having considered the evidence of Mr Sampath, Human Resource Lead for TCS, as to the availability of overseas work at the date of termination of employment and prior to the conclusion of the hearing, I am satisfied that there would have been no such work available. At the end of the period of reasonable search and enquiry Mr Yap would still have been retrenched. However Mr Yap was entitled to have that search conducted on a proper basis and on the accurate information as to his availability provided to TCS by him.

[21] I have therefore decided to award Mr Yap six weeks compensation on the basis of my finding that six weeks would have been the appropriate period of such a search. Compensation shall be paid in fourteen days at the rate and on the conditions Mr Yap was paid whilst on assignment in China.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Yap on his own behalf

Mr Lockwoodfor TCS Australia Pty Ltd

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