Shashank Jain v Portland Group Pty Ltd
[2025] FWC 309
•6 FEBRUARY 2025
| [2025] FWC 309 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shashank Jain
v
Portland Group Pty Ltd
(U2024/9029)
| DEPUTY PRESIDENT BELL | MELBOURNE, 6 FEBRUARY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – whether applicant covered by a modern award or enterprise agreement – whether earnings above high income threshold – earnings above the high-income threshold – applicant not covered by modern award or enterprise agreement – application dismissed.
On 4 August 2024, Mr Shashank Jain (applicant / Mr Jain) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). Mr Jain alleges he was unfairly dismissed by Portland Group Pty Ltd (respondent / Portland Group) on 22 July 2024. The respondent agrees the applicant was dismissed on 22 July 2024 but denies the dismissal was unfair.
In its Form F3 Employer Response the respondent has raised a threshold jurisdictional objection, being that the applicant did not earn less than the current high-income threshold ($175,000 for dismissals after 1 July 2024) and his employment was not covered by a modern award or enterprise agreement (s 382 of the Act).
The respondent has also raised a jurisdictional objection that Mr Jain’s dismissal was a case of genuine redundancy (s 389).
This decision deals solely with the first two of the three jurisdictional issues, namely the ‘high income’ threshold question and the ‘Award coverage’ issue. Initially, the matter proceeded on all three issues, and in conformity with the directions issued at the time Mr Jain’s material addressed all matters, including a number of documents filed in support of the redundancy issue. During the hearing, Mr Jain clarified which documents were and were not relevant to the two jurisdictional issues the subject of this decision.
The respondent filed a witness statement of Mr Andrew Jarvis, the Chief Executive Officer of the respondent. That statement was directed at the award coverage and high-income threshold issues. In reply to that, Mr Jain filed a statement far more comprehensive than his initial statement on those issues – much of that material ought to have been in Mr Jain’s initial statement. As a result, the respondent was given leave to file a supplementary statement responding to Mr Jain’s ‘reply’ material on the day of the hearing. Both witnesses, Mr Jain and Mr Jarvis, were cross-examined.
Statutory context
Section 382 of the Act sets out when a person is protected from unfair dismissal. The section states:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
There is no dispute that Mr Jain had completed the minimum employment period. It was also agreed, and I accept, that there was no enterprise agreement applying to Mr Jain’s employment. In relation to the award coverage issue, there was a dispute as to whether any award covered Mr Jain. Mr Jain said the Professional Employees Award 2020 (Award) applied to his employment.
Clause 4 of the Award is titled “Coverage”. Clause 4.1 provides:
“This industry and occupational award covers employers throughout Australia as follows:
(a)Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A – Classification Structure and Definitions of the award and those employees.
(b)Employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A – Classification Structure and Definitions.
(c)Employers throughout Australia principally engaged as medical research institutes with respect to their employees performing professional medical research duties who are covered by the classifications in Schedule B – Medical Research Employees and those employees.” (Emphasis added).
As the case was initially put before me, for Mr Jain to be covered by the Award:
· the employer would need to be “principally engaged in the information technology industry”; and
· Mr Jain would need to be covered by a classification in Schedule A.
As to the Schedule A coverage, Mr Jain states that he was properly classified as “Level 4 – Professional” under the Award. That classification is located in “Schedule A – Classification Structure and Definitions”. The chapeau to Schedule A provides:
“An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.” (Emphasis added).
For Mr Jain to be covered by the Award, it was accepted he would need to be performing “professional information technology duties”. It was accepted by both parties that Mr Jain was not employed wholly or principally in a managerial position.[1]
The definitions for the “Information technology and telecommunications services stream” in cl 2.3 of the Award are relevant to whether Mr Jain was correctly classified as a “Level 4 – Professional” under the Award. It is unnecessary to set out all definitions but the following terms were relevant to the coverage dispute between the parties: “Information technology industry”, “Professional information technology duties” and “Professional information technology employee”. Those terms are defined as follows:
“Professional information technology duties means duties carried out by a person in employment where the adequate discharge of any of the duties requires a person to:
(a)hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or
(b)have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term professional information technology employee includes graduate information technology employee and experienced information technology employee as defined.”
For the employer to be covered by the Award, it would need to be principally engaged in one of more of the following definitions:
“Information technology industry means:
(a)the design and manufacture of computers and computer peripherals;
(b)the design and manufacture of telecommunications equipment;
(c)the design and manufacture of computer software;
(d)computer system installation, repair and maintenance;
(e)computer consultancy services;
(f)computer programming;
(g)system analysis services;
(h)the design, development and maintenance of online internet architecture and the facilitation of online content management; or
(i)activities which are incidental, ancillary or complementary to the activities set out in this definition.”
Factual findings
Portland Group Pty Ltd operates in the industry of management consulting and associated services, specialising in the business processes of procurement and supply chain management.
In about January 2012, the respondent was acquired by Infosys BPL Limited (now called Infosys BPM Limited), which is in turn a wholly-owned subsidiary of Infosys Limited. The respondent does not independently provide an annual report but reporting about its activities are included in the annual report of Infosys BPM Limited.
At the outset, it is necessary to note that a significant aspect of the dispute (more on Mr Jain’s account) concerns the extent that the respondent provides services related to computer consultancy and the like. I return to these matters below.
Mr Jain’s role
Mr Jain’s background and experience is set out in a resume included with his evidence. Relevantly, and a matter not in dispute, it records he was awarded a B.E. Computer Science (Honors) from The Northcap University, India, in 2004. By a letter dated 16 June 2016 from the Australian Computer Society, Mr Jain’s computer science qualification “has been now accredited and assessed to a comparable to an AQF Bachelor Degree with a major in computing.” There was no dispute about these matters.
By a contract of employment dated 18 October 2022, Mr Jain was employed by the respondent. The identified role was “Principal Consultant”. The role descriptor was very general. It stated, beside the heading “Role”:
“Involves being responsible for duties as directed by [a named manager], including the provision of support to Portland Group’s business units.
Your position, role, location of work, duties, responsibilities and title may change from time to time, although you will receive seven (7) days’ notice prior to any such change taking effect.”
The employment contract sets out Mr Jain’s duties in very general terms. The general obligation stated “Your duties shall be those as are usually the duties of a person carrying on the work assigned to you in the ordinary course of business”. Those general duties were then expressed to include various other matters, set out in similarly general language, such as “To perform, observe and conform with instructions as may from time to time be reasonably assigned or communicated to you by any of the directors of Portland.”
There was not any express requirement in the employment contract to hold a qualification accredited by the Australian Computer Society or to hold any qualification at all.
There was no position description for Mr Jain’s role. There was, however, a position description for a Principal Consultant role for the ‘procurement, operations and technology’ (POT) practice in the United States. That was a document Mr Jain sourced on a LinkedIn website in about August 2024, although he states it was “identical to the position I was offered upon joining in Australia”.[2] The employer agrees that position description was materially identical to Mr Jain’s role. As I consider it is the most helpful document setting out Mr Jain’s role and requirements, as well as broader aspects of the operations of Portland Group, it is largely extracted as follows.
“About the job
Infosys Portland is a part of the family of brands that make up Infosys, which was ranked #3 in Forbes ‘“World’s best regarded companies”.
…
OUR COMPANY
Infosys Portland partners with our clients to solve their most complex and challenging procurement and supply chain problems. We combine our specialist expertise with consulting rigor, leading technologies and proven services to get things done, deliver sustainable value and guide our clients into the future.Headquartered in Sydney, Australia, we also have established offices in Melbourne, Brisbane, Perth; Singapore; Chicago, USA; London, UK; and Pune, India. We work with leading national and global organizations across the full spectrum of industries, in both the public and private sectors. A track record of delivering outcomes for our clients over more than 20 years ensures we have a strong reputation as a leading professional services firm specializing in procurement and supply chain.
Infosys Portland is a wholly owned subsidiary of Infosys, a global provider of technology, services and consulting, with US$14.9 billion in annual revenues and over 250,000 employees spread across the world. This backing and network provides our clients and employees alike with unlimited opportunities to achieve better outcomes working with Infosys Portland.
THE POSITION
We are currently recruiting a small number of leaders in our digital procurement practice. High performing procurement functions are enabled by technology and hyper-efficient operations so that procurement team members and their customers can quickly and easily do their jobs. Infosys Portland’s digital procurement practice helps clients with all aspects of digitalizing procurement regardless of the stage they are at, including:· Digital procurement strategy
· Technology selection
· Implementation optimization
· Optimization / Remediation
We are the trusted advisors to our clients, which means we are technology agnostic, and we are not systems integrators. We help clients pick the right path, select the right technology, and optimize implementations (regardless of who is the systems integrator/implementer). We also help clients make the most out of their existing procurement technology, whatever that may be.
We are fortunate to operate in a great ecosystem that includes Infosys Portland’s broader procurement consulting and services practice as well as our Infosys parent companies/units who are working with many organizations in the region, a large proportion of whom need assistance with procurement technology.
We are looking for people who can provide true subject matter expertise and guidance to clients as they navigate their digitalization journey. To be able to do this, we would expect the following experience:
Procurement technology implementations. We need people with “scars” from previous implementations. Often the devil is in the detail, so we need people who have a true appreciation of what can go wrong as well as what works well
Technology and data. We don’t necessarily need true technologists or data architects, but we do need people who have worked in and around technology for many years. We need people who understand where and how technology can help, its limitations and how data is captured, stored and used
Process design. An understanding of procurement processes is key - how to identify and document existing procurement processes and how to design better processes
Other non-technology enablers. We all know that technology alone doesn’t solve anything. We need people with a holistic understanding of how non-technology factors are critical to success, such as policy, people and organization
…
EDUCATION
· Degree qualification in engineering, business, computer science, etc.
· Post-graduate qualifications would be advantageous
EXPERIENCE & COMPETENCE NECESSARY
· 6-10 years’ consulting experience in procurement and/or supply chain including system implementation experience
· Proven experience managing own projects and leading teams
· Strong business development experience and ability to generate new leads
· Outstanding analytical skills
· Excellent management skills with the ability to lead, grow and develop your team
· Demonstrated people management skills, including coaching of both junior employees and client staff
· Good facilitator and ability to develop a storyline for clients
· Good PowerPoint and Excel skills
… ”[3]
In addition to the above position description, the parties gave evidence about various projects worked on by Mr Jain. As those projects contain confidential information relevant to third parties, I will not summarise them here.
On the question of Mr Jain’s role requirements and work he undertook, each of Mr Jain and Mr Jarvis gave evidence about those matters and each was cross-examined.
Much of Mr Jain’s evidence was largely directed at supporting a more generalised proposition that, as his work was within the Procurement Operations and Technology practice of the respondent, he was performing professional information technology duties. Likewise, Mr Jain focused on Portland Group’s location within the wider Infosys group. As a subsidiary, Mr Jain states that Portland Group “doesn’t operate in isolation but [is] heavily reliant on integrated IT systems and technology to deliver its offerings.”[4] Mr Jain’s evidence sought to focus on aspects of his duty that involved some information technology element.
While I have not considered it necessary to summarise in any detail the competing evidence on Mr Jain’s role requirements, I have no difficulty in accepting the evidence of Mr Jarvis over Mr Jain to the extent of any conflict. Mr Jain was not a reliable witness. Mr Jarvis sought to, and largely did, attempt to give concise and clear evidence and provide direct answers to questions. Mr Jain’s evidence, by contrast, was characterised by a repeated unwillingness or inability to answer direct questions clearly without providing some gloss – frequently tendentious – and none of that evidence was inconsistent with the broader conclusion that Mr Jain’s role was to provide, primarily, consultancy services for their clients’ procurement needs.
There is no doubt that a number of the projects Mr Jain was a part of involved information technology and technology experts, but the adequate discharge of any of his duties did not require him to “hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level”. Importantly, where software supply, installation or coding was required, those tasks were performed by other entities involved with the project (typically another member of the Infosys group).
There is also no doubt that Mr Jain’s qualifications in computer science was plainly of assistance to the performance of his role, but those qualifications were not required for him to adequately discharge his role. As the agreed position description makes clear, “We don’t necessarily need true technologists or data architects, but we do need people who have worked in and around technology for many years”. That statement was reflected in the desired qualifications of any applicant for the position: “Degree qualification in engineering, business, computer science, etc. ” The explicit reference to a “business” degree, let alone the wider net cast by “etc”, is plainly inconsistent with the proposition that the adequate discharge of duties for the role “required” a degree in computer science or an accredited equivalent. The role was clearly directed at consulting experience in procurement and/or supply chains, which could be performed by persons with a range of qualifications, provided they had real industry experience working around relevant technology.
Portland Group’s business
Mr Jarvis’ evidence provided a description of the business activities of Portland Group. As CEO, he was plainly well positioned to do so. Mr Jarvis states that Portland Group is in the industry of management consulting and associated services, specialising in the business processes of procurement and supply chain. He says its “typical” competitors in the market are the consulting arms of the 'Big 4' accounting firms, procurement practices within larger management consultancies (e.g. Kearney, Bain & Co etc.) and other niche procurement and supply chain consultancies.
Consistently with Mr Jarvis’ general description, the Portland Group website states:
“Over the past 20 years, we’ve helped more than 450+ clients to realize the sustainable value and positive bottom-line impact by leveraging better Procurement and Supply Chain processes, people and technologies. We support our clients with:
· Strategy and advice: We combine deep domain expertise with leading practice and analytical rigour to help businesses solve their most complex problems
· Delivery and implementation: We execute strategies quickly and efficiently, which helps our clients realise the benefits sooner
· Ongoing support: We help our clients manage their day-to-day operations to deliver further efficiencies
· Enabling technology: We assess, optimize, and implement our clients’ technology landscape to ensure that they are well-placed to operate in an ever-changing world”
The Infosys annual report 2022-23 provides a limited description of Portland Group, which includes the following:
“Infosys Portland had a positive year with increasing revenues from procurement and supply chain consulting and managed services and software on-sell agreements, reflecting our objective to expand our delivery footprint in key target markets of Australia, India, USA and UK / Europe. …”[5]
Mr Jarvis explained that the reference to “software on-sell agreements” is that, within Australia, the Portland Group entity is utilised to purchase certain software licenses on behalf of Infosys Limited.[6]
Aspects of Mr Jarvis’ evidence was somewhat conclusionary as to a legal question, in that he purported to give evidence that none of Portland Group’s activities fell within any of the definitions of “Information technology industry” within the meaning of the Award. Relevantly, the only parts of that term that were in issue were subclause (e), being “computer consultancy services”, subclause (g), being “systems analysis services”, and subclause (i), being activities which are incidental, ancillary or complementary to the activities (a) – (g).
In terms of the financial contribution of the procurement, operation and technology practice within the respondent, Mr Jarvis provided a breakdown of various revenue figures. As that material is presumably commercially sensitive, I will not provide exact figures. However, that practice only represents a small part of Portland Group’s revenue and below 10 percent. Mr Jain did not offer different figures but stated that revenue figures “alone may not be the most definitive or reliable indicator of a core offering’s significance.”[7] Mr Jain states the “strategic importance or growth potential” are not captured by the revenue figures.
In terms of employee headcount, Portland Group employed 80 people in Australia and 300 globally. The highest number of employees dedicated to the POT practice was six (including Mr Jain), a number that had reduced to three at the time of the hearing.
Mr Jain’s agreed remuneration
Mr Jain’s employment contract, next to the heading “Base Salary”, stated that Mr Jain’s base salary was “$175,000 per annum exclusive of Superannuation.”
This figure was not in dispute. Mr Jain instead relies on a payslip for the year ending 30 June 2024, which shows a ‘YTD’ Base Salary figure of $174,999.96.
Consideration
Whether a ‘professional information technology employee’
For Mr Jain to be an employee to whom cl 4.1 of the Award provided coverage, one requirement was that he be “covered by the classifications in Schedule A – Classification Structure and Definitions”.
The relevant extracts for Schedule A have been set out above. Relevantly, to be covered, Mr Jain needed to be performing one of ‘professional engineering duties’, ‘professional scientific duties’, ‘professional information technology duties’, or ‘quality auditing’.
Mr Jain’s case was put on the basis that he performed ‘professional information technology duties’. Given my findings above that the adequate discharge of any of Mr Jain’s duties did not require him to hold a university degree or equivalent accredited by the Australian Computer Society at a professional level, I find that Mr Jain did not perform professional information technology duties within the meaning of the Award.
It follows that Mr Jain cannot be covered by the Award on the basis of the case as advanced, and he is therefore unable to satisfy me that he was protected from unfair dismissal for the purposes of s 390(1)(a) of the Act, at least so far it concerns whether Mr Jain was covered by a modern award under s 382(b)(i).
Whether the employer was covered by the Award
Even if I took a different view to the conclusion just stated above, I find that Portland Group was not covered by the Award, as it was not principally engaged in the information technology industry. In reaching this conclusion, I proceed without expressing any final view that Portland Group may have been providing at least one of the list of services in the definition of ‘information technology industry’.
It is at least arguable that ‘computer consulting services’ pertain to consulting about computer software and hardware. Portland Group submits that “computer”, as used here, refers to computer hardware. I am doubtful that the reference to “computer” would be construed so narrowly, particularly having regard to “computer programming” in cl 2.3(g). I do not consider computer programming is limited to programming for computer hardware and, while the same definition of “computer” need not apply to each of the sub definitions in cl 2.3 of the Award, I consider it indicative of eschewing the narrower meaning of “computer consulting services”.
Regardless of any final views that I might need to express on that issue, there is no basis to conclude that Portland Group is “principally” engaged in the information technology industry. As is made particularly clear by Mr Jarvis’ evidence, Portland Group is a specialised management consultancy firm, focussing overwhelmingly on procurement and supply chain consultancy. I acknowledge that Portland Group’s offerings include consultancy services involving various “digital” offers for supply chain and procurement needs, which includes assisting those clients with achieving better outcomes for those needs. Pausing there, so much is unsurprising given the increasing reliance of businesses for integrated technology needs but that does not affect the essential character of Portland Group’s business, which is fundamentally focused on procurement and supply chain activities.
Mr Jain was more specifically focused on ‘procurement, operations and technology’, and the POT group he worked in. Even if that work was considered to be principally engaged in the information technology industry, which I do not accept, that work was only a small proportion of Portland Group’s offerings (and I do not find Mr Jain’s submissions about its growth or strategic importance persuasive).
In submissions principally advanced by Mr Jain after the close of the hearing, he submitted cl 4.1(b) of the Award could be read as applying to an employee covered by Schedule A simpliciter, without the additional requirement that the employer of that employee be principally engaged in the information technology industry, the quality auditing industry or telecommunications services industry (as might be applicable). Given my earlier findings that Mr Jain is not covered by any classification in Schedule A, it is strictly unnecessary to address this element, however as the parties addressed me on it, I will briefly record that I do not accept Mr Jain’s contention about cl 4.1(b).
Clause 4.1(b) can only cover an employee on the basis that the employer of that employee is principally engaged in one of the three industries identified in cl 4.1(b) and the employee is relevantly covered by a classification in Schedule A. If that were not the case, the words directed at the employer’s principal activities would have no work to do. Moreover, if it was sufficient for an employee to be covered under cl 4.1(b) merely by their coverage of a classification in Schedule A, that would extend to employees performing professional engineering duties or professional scientific duties (each of whom are specifically described in Schedule A). As coverage of employees performing professional engineering duties or professional scientific duties is specifically described by cl 4.1(a) (without any requirement that employers be “principally” engaged in those industries), this further confirms that each of the two requirements — those for the employer and those for the employee — in cl 4.1(b) are intended to operate differently and both elements must be met.
The high-income threshold issue
Section 382(b)(iii) is directed at an employee’s “annual rate of earnings” and requires that amount to be “less than” the “high income threshold”. There is no dispute that the high-income threshold at the time of dismissal was $175,000 per annum.
Portland Group correctly refers to various decisions of the Commission, in which it has been held that the annual rate of earnings is assessed at the time of the dismissal and is not an assessment of the actual earnings in the 12 months prior to the dismissal. It is sufficient to refer to Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment[2021] FWCFB 154 (Dirkis), in which the Full Bench stated:
“[49] In any event as the Full Bench observed in Zappia, what needs to be ascertained is the annual rate of earnings at that time of the termination of the person's employment, not the actual annual earnings to that time. The Letter of Appointment was clear as to rate of pay and standard working week, and the calculation of the Appellant’s annual rate of earnings by the Commissioner as being $208,000.00 was correct and unexceptional. That the Appellant took unpaid leave does not affect in any way the calculation of his annual rate of earnings.”[8]
The Letter of Appointment in Dirkis clearly identified the rate of pay. Similar to Dirkis, there is no difficulty ascertaining what the annual rate for Mr Jain was at the time of his dismissal, namely on 22 July 2024: that amount was the rate specified as the Base Salary in his employment contract. The Base Salary was $175,000 precisely. A four-cent discrepancy (if it was even a discrepancy) for an earlier period based on the year ending 30 June 2024 does not affect that conclusion. As that amount was not “less than” the high-income threshold (it was exactly the same as it), Mr Jain does not meet the requirements of s 382(b)(iii).
Disposition
In conclusion, Mr Jain was not a person “protected by unfair dismissal” because his annual rate of earnings was not less than the high income threshold of $175,000 per annum and there was no modern award that applied to his employment. It was uncontested that there were no enterprise agreement applying to Mr Jain’s employment.
As Mr Jain did not meet any of the requirements in s 382(b)(i)-(iii) of the Act, he was not a person protected from unfair dismissal and it follows that his application must be dismissed. An order[9] dismissing Mr Jain’s application will be issued concurrently with these reasons.
DEPUTY PRESIDENT
Appearances:
S. Jain on his own behalf.
S. Hardy of K&L Gates for the Respondent.
Hearing details:
2024.
Melbourne (by video link via Microsoft Teams):
October 24.
[1] E.g, Transcript PN133 – PN134.
[2] Applicant’s Reply to Respondent’s Submissions (Applicant’s Reply Statement) at [42], Digital Court Book (DCB) p.439.
[3] Applicant’s Material, DCB p.100.
[4] Applicant’s Reply Statement at [4], DCB p.428.
[5] Witness Statement of Andrew Jarvis at [16], DCB p.226.
[6] Witness Statement of Andrew Jarvis at [17], DCB p.227.
[7] Applicant’s Reply Statement at [11], DCB p.430.
[8] Citing Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia [2012] FWAFB 6108.
[9] PR780410.
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