Pallavi Golwara v Ibs Software Services Private Limited
[2017] FWC 6355
•11 DECEMBER 2017
| [2017] FWC 6355 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pallavi Golwara
v
IBS Software Services Private Limited
(U2017/8459)
DEPUTY PRESIDENT BOOTH | SYDNEY, 11 DECEMBER 2017 |
Application for an unfair dismissal remedy – jurisdictional objection – whether employee dismissed – Fair Work Act 2009 s.386 – whether employment had been terminated on the initiative of the employer – employee’s own actions not consistent with dismissal – employee not dismissed – jurisdictional objection upheld – application dismissed.
[1] Ms Pallavi Golwara has applied to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy in respect of her employment by IBS Software Services Private Limited (IBS). IBS denies that Ms Golwara has been unfairly dismissed; indeed, it denies that she has been dismissed at all.
[2] Following a telephone mention on 18 September 2017, I held a hearing on 16 October 2017, solely to determine IBS’ jurisdictional objection that Ms Golwara was not dismissed. At the hearing, Ms Golwara represented herself and gave evidence. With my permission, (with reasons conveyed in writing on 26 September 2017) Mr Kane of counsel appeared for IBS with Mr Ash, solicitor. Ms Greeshma Kandavara, Group Human Resources Manager (International), gave evidence for IBS.
[3] For the reasons that follow, I have decided that Ms Golwara was not dismissed as defined in s.386 of the Act. I therefore uphold IBS’ jurisdictional objection and dismiss Ms Golwara’s application.
[4] Section 385 of the Act sets out what an unfair dismissal is:
“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.”
[5] IBS submits that Ms Golwara has not been dismissed and, therefore, s.385 (a) is not satisfied in this case.
[6] Section 386 of the Act states:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”
[7] Neither party contends that s.386 (1)(b), (2) and/or (3) are relevant to Ms Golwara’s application. The only issue I need to determine at this stage is whether Ms Golwara’s employment has been terminated on the employer’s initiative. 1 This would require me to find that:
“… the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 2
[8] If this requirement is not satisfied, then Ms Golwara’s application must be dismissed. Whether the employment relationship between Ms Golwara and IBS has terminated is a question of fact. 3 The rest of this decision sets out my findings of fact and why, in all the circumstances, I do not accept that IBS took action that resulted directly or consequentially in Ms Golwara’s termination.
[9] IBS is a company incorporated in India. It is registered with the Australian Securities and Investments Commission as a foreign company and bears Australian Registered Body Number (ARBN) 112 781 423, 4 but it has no related or counterpart entity incorporated in Australia. IBS provides information technology services and solutions to travel, transportation and logistics businesses.
[10] Ms Golwara started working for IBS as a Business Consultant on 15 June 2015 in India. In this role, IBS would assign Ms Golwara to work on projects for various clients.
[11] On 21 November 2016, Ms Golwara commenced work on a project for APT Travel Group (APT), one of IBS’ clients, in Melbourne. Ms Golwara argued that when she accepted the opportunity to work in Melbourne, she ceased being employed by “IBS India” and commenced employment with “IBS Australia”. 5 I do not accept this. There is no evidence before me of two such distinct entities. While her contract6 in respect of the APT project names “IBS Software Services Private Limited (ACN 112 781 423)” as the other party, I accept IBS’ explanation7 that it should have read ARBN instead of ACN, thus referring to IBS, the Indian company. That is, Ms Golwara continued to be employed by the same entity while she performed work in Melbourne as the one that employed her while she worked in India.
[12] On 20 June 2017, Ms Golwara emailed Ms Kandavara and others indicating her understanding that the APT project team “will dissolve for 1 yr and formal communicated will be shared by July end [2017]”. 8 She set out three options for her continuing employment at IBS, one of which was taking a period of sabbatical leave on medical grounds. Subsequently, through a series of emails sent and received using her IBS email address, Ms Golwara negotiated and obtained approval to exhaust her paid annual and personal leave entitlements, and then take a period of unpaid sabbatical leave.9
[13] When asked why she believed IBS had terminated her employment, Ms Golwara referred to the allegedly inappropriate behaviour of a colleague from the APT project, which she characterises as action taken by IBS to “motivate” and “force” her to resign. 10 She gave evidence that she had sought to resign on 12 January 2017 due to this behaviour, but was persuaded by a “senior person” not to do so.
However, the main reason she gave for believing that she had been terminated concerns the interpretation of a letter 11 that Ms Kandavara sent Ms Golwara on 7 July 2017, which began:
“As Manu H and myself discussed today with you, Client APT in Australia have temporarily discontinued the project until December 2018 leading to the team in Melbourne to be dissolved until further notice. …
… In your case as you have requested for Sabbatical leave, as discussed and agreed with you, once you are back from the sabbatical leave we will place you in the resource pool and look for other opportunities globally at IBS.”
[14] Ms Golwara submitted 12 that the basis for considering that her employment with IBS (as opposed to her assignment to the APT Travel Group project) had terminated was in the second-last paragraph of that same letter:
“The terms set out above are being made in full and final satisfaction of all and any claims that you may have against IBS with regard to your employment or its termination.” [my emphasis]
[15] IBS submitted that the use of the word “termination” here does not refer to the termination of Ms Golwara’s employment, but of the APT project. 13 Whilst I find this interpretation difficult to accept, I find that when the letter is read as a whole, it cannot reasonably be interpreted as dismissing Ms Golwara. This is because several other parts of the letter clearly indicate IBS’ intention to continue the employment relationship, e.g.:
• “… once you are back from the sabbatical leave we will place you in the resource pool and look for other opportunities globally at IBS”
• “You will be transferred back to IBS Software Services Private Limited, India effective 07 August 2017. All your IBS India benefits, including medical insurance and outpatient facility will continue.”
• “You can start your sabbatical leave from 7th August 2017 onwards for 2 month (ends on 6th October 2017) under India payroll. In the event of you joining back [sic] to work before 6th October 2017, you will have to work from the base location of the company, you are employed by.” [all my emphases]
It is apparent to me that a form letter or template has been adapted for the purpose of informing Ms Golwara of IBS’s decision and has not been properly customised to the circumstances. Nevertheless, I do not think that a reasonable person could possibly interpret the letter, when read in its entirety, as an employment termination letter. It may suit Ms Golwara’s case to focus on the penultimate paragraph, but I do not accept her interpretation of the letter.
[16] On 4 August 2017, Ms Golwara filed her application for an unfair dismissal remedy with the Commission. This was within the period of paid leave that she had sought and been granted per the letter of 7 July 2017, which preceded the sabbatical leave that had also been approved.
[17] On 18 August 2017, Ms Golwara sent an email to Ms Kandavara 14 with the subject “Resume Work with a lighter project?” She attached the latest report from her general practitioner and asked if IBS could provide her with “any light work which I may start doing in the interim”. This action is inconsistent with a belief that she no longer worked for IBS. If anything, it suggests that IBS and Ms Golwara were of the common understanding that she was on leave for a time and expected to return to full duties (as opposed to light work or duties) in the future. Additionally, if Ms Golwara believed that she was no longer employed by IBS as at 4 August 2017, there would be no reason to provide IBS with a copy of her doctor’s report.
[18] Subsequently, on 12 September 2017, Ms Golwara indicated through one of IBS’ internal systems that she wished to resign. I accept IBS’ submission that this action implies that Ms Golwara considered there to be an ongoing employment relationship at that point. If Ms Golwara genuinely believed her employment had already been terminated, then there would be no position from which to resign.
[19] The evidence before me reflects no action by IBS to terminate Ms Golwara’s employment. Conversely, it discloses several actions by Ms Golwara herself that are incompatible with a belief that IBS had terminated her employment.
[20] Before concluding, I should note for completeness that Ms Golwara sought to give and elicit evidence about several aspects of her employment with IBS and its business practices that she considered objectionable. These included allegations of workplace bullying, tax evasion and covert recording of a conversation between herself and Ms Kandavara. She also disputed that she had agreed to what would happen in relation to her employment after the APT project ended (being transferred permanently to the India payroll, etc.). 15 These issues are not relevant to whether her employment was terminated on IBS’ initiative, and I make no findings in relation to them.
[21] I further note IBS’ submission that it considers that Ms Golwara is still its employee as at the hearing date. However, I do not consider it necessary for the purposes of this application to determine whether Ms Golwara remains employed, and make no finding on that point.
[22] On 3 December 2017 Ms Golwara sent further material to my Chambers without providing that material to IBS. Given the nature and timing of it, I informed the parties on 8 December 2017 that a document had been provided that I did not intend to take into account in making my decision.
[23] In summary, I find that Ms Golwara was not dismissed as defined in s.386 of the Act. Accordingly, the Commission has no jurisdiction to determine her application. I dismiss the application.
DEPUTY PRESIDENT
Appearances:
Ms P Golwara, self-represented.
Mr T Kane of counsel with Mr A Ash, solicitor, for the Respondent.
Hearing details:
2017.
Sydney:
October, 16.
1 Fair Work Act 2009 (Cth) s.386(1)(a).
2 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205-6.
3 Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 [32].
4 Exhibit K1 annexure A.
5 Transcript PN651-654.
6 Exhibit K1 annexure C.
7 Transcript PN86-88; PN928.
8 Exhibit K1 annexure E.
9 Exhibit G1; exhibit G3 annexures I, J.
10 Transcript PN717-720.
11 Exhibit K1 annexure J; exhibit G3 annexure M.
12 Transcript PN709-715.
13 Transcript PN125-127.
14 Exhibit K1 annexure N.
15 Transcript PN226, 254-281.
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