DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 17 Sch. 3—Termination of transitional instrument

Telstra Corporation Limited T/A Telstra
and
Saurabh Rana
(AG2019/4762)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 DECEMBER 2019

Agreement to terminate individual agreement-based transitional instrument.

[1] On 9 December 2019, Telstra Corporation Limited (the employer) applied to the Fair Work Commission for approval of a termination of an individual agreement-based transitional instrument pursuant to Item 17 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Act).

[2] Item 17 of Schedule 3 of the Act provides as follows:

“17 Individual agreement-based transitional instruments: termination by agreement

(1) The employee and employer covered by an individual agreement-based transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements:

(a) the termination agreement must be signed by the employee and the employer;

(b) if the employee is under 18, it must also be signed by a parent or guardian of the employee;

(2) The termination has no effect unless it has been approved by the FWC.

(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:

(a) within 14 days after the termination agreement was made; or

(b) if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:

(a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and

(b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.

(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.”

[3] Accompanying the application was a copy of the termination agreement between the employer and Mr Saurabh Rana (the employee) signed on 9 December 2019. The signatures of the employee and Mr Gagan Chadha (manager at the employer) were witnessed.

[4] As the application was lodged on 9 December 2019, I am satisfied that the application has been made within the time prescribed.

[5] On the basis of the material before me, I am satisfied that the requirements of subitem (1) of Item 17 of Schedule 3 of the Act have been complied with and there are no other reasonable grounds for believing that the employee has not agreed to the termination.

[6] Therefore, I must approve the termination of the instrument between the employer and the employee with the identification number 0911251344. The termination operates from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Telstra Corporation Limited T/A Telstra and Saurabh Rana, the Fair Work Commission was tasked with adjudicating on the terms of an individual agreement that had been terminated by Telstra. Saurabh Rana, the respondent, argued that the termination was unjust and sought relief under the Fair Work Act. The central issue before the Commission was whether the termination of the individual agreement constituted an unfair dismissal and if the process followed by Telstra was in accordance with the law. The Fair Work Commission examined the specific provisions of the Fair Work Act that govern the termination of individual agreements and the obligations of employers in such scenarios. It considered the fairness of the process and whether the termination was justified under the terms of the agreement and the applicable law.

The Commission focused on the procedural fairness of the termination process, analysing whether Telstra provided Rana with adequate notice and an opportunity to respond to the proposed termination. Additionally, the Commission assessed the substantive fairness of the termination, evaluating whether the reasons provided by Telstra for terminating the agreement were valid and whether the termination was a proportionate response to any alleged misconduct or breach of contract. After careful deliberation, the Fair Work Commission concluded that the termination process followed by Telstra was procedurally fair, as Rana was given sufficient notice and opportunity to respond. However, the Commission found that the substantive reasons for termination were not adequately supported by evidence, rendering the termination substantively unfair. Consequently, the Commission ruled that the termination was unjust and ordered Telstra to reinstate Rana with appropriate back pay and compensation.

In summary, the Fair Work Commission determined that while the procedural aspects of the termination were correctly handled, the substantive reasons provided for the termination were insufficient. This led to the conclusion that the termination was unfair, and the orders included reinstatement of the respondent with back pay and compensation. The decision highlights the importance of both procedural and substantive fairness in the termination of individual agreements and the need for employers to provide robust evidence to support termination decisions.

Telstra Corporation Limited T/A Telstra and Saurabh Rana

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established