Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy. Whether applicant dismissed at end of Australian assignment.

[1] This matter was heard before me on 21 November 2019. This is the published version of the decision in transcript edited for style and clarity. [1]

[2] As I said earlier this morning I was going to go away and have a think about what has been said and hand my decision down this afternoon. I will in due course have the decision printed and make any editorial changes that need to be made. In any event I have reached a conclusion.

[3] Mr Sahni filed his application on 8 September of 2019 alleging that he was unfairly dismissed by his employer, Tata Consultancy Services Ltd, which I will refer to as TCS.

[4] He alleges he was dismissed on 15 April 2019. If that is the case then it is abundantly clear his application has been made well outside of time, being a period of nearly five months since he alleges he was dismissed, whereas the Fair Work Act 2009 (the Act) provides only a period of 21 days for an applicant to file a claim of unfair dismissal. However, the Act does allow for out of time extensions to be granted in exceptional circumstances.

[5] In this case, Mr Sahni has stated in his application that the reasons for filing out of time include that he had previously filed a general protections application, matter C2019/1426 on 5 March 2019, some time before his alleged dismissal. In addition, Mr Sahni has referred to not knowing his legal rights in respect to the timeframe for filing an unfair dismissal, he also relied upon being a new immigrant.

[6] The application is opposed by the TCS, and they note that the application has been filed out of time and raise a jurisdictional objection that the applicant was never dismissed.

[7] This decision deals only with the issue of whether there has been a dismissal.

[8] Before the Commission is vested with jurisdiction to deal with an unfair dismissal it must establish that there has been a dismissal as s.385 of the Act requires. Section 386 of the Act goes on to state the meaning of a dismissal which can be of one of two methods. One is that the employee has been terminated at the employer's initiative, or, secondly, that the employee has resigned because of the conduct of the employer.

[9] There is no suggestion that Mr Sahni has resigned. In fact, this morning he has again reiterated that he has not resigned and has stated that he commenced his employment on 4 June 2007 in India, as an assistant consultant.

[10] The employer's evidence in opposing the application was given by Mr Prabal Chatterjee, the General Manager of Human Resources, Australia and New Zealand. His evidence was that TCS is a multi-national company whose head office is in Mumbai, India. On occasions offers known as deputations are made to Indian based employees, or in Australia the term referred to is normally a secondment, where employees can work temporarily in another country while remaining an employee of TCS.

[11] Despite entering into a deputation or secondment, employees do not transfer to another employer; their employment with TCS continues. Mr Chatterjee stated that secondments are temporary, and employees are expected to return to their home country at the end of their secondment. Indeed, Mr Chatterjee referred to the applicant having previously been seconded to countries such as the United Kingdom and United States and having returned to India at the end of each of those assignments.

[12] On this occasion on 28 October 2015, the applicant signed a deputation agreement in New Delhi, India. Clause 1.1 of that deputation agreement is headed 'Place, Duration and Time', and Mr Chatterjee referred to the wording of the clause which states:

"The employee has decided the place of initial deputation to be Australia. The duration of deputation and the deputation time shall be at the sole discretion of the employer."

[13] Mr Chatterjee relies upon this to establish that there's been no dismissal and that the applicant remains an employee of TCS.

[14] The evidence was that the applicant commenced his deputation or secondment in Australia in late 2015 and that TCS's client at the time was the Commonwealth Bank of Australia.

[15] In September 2017, Mr Sahni suffered a stroke. Subsequently he entered into flexible working arrangements with his employer including working from home. As a result of his illness and possibly other illnesses, Mr Sahni took three weeks of sick leave in January 2019. In February 2019 he took another three weeks of sick leave.

[16] On 15 February 2019, Mr Sahni's wife and himself met with the employer. Mr Chatterjee states that at this meeting that Mr Sahni raised his voice, threatened self-harm, alleged that the employer was harming his health and called Triple 0 where the ambulance and police attended.

[17] On 22 February 2019, Mr Chatterjee wrote to the applicant stating that their client, the Commonwealth Bank of Australia, had concluded that the assignment it had with TCS should be ended. The letter reads in part:

"TCS has been notified that your current assignment at the client site has concluded. TCS will now proceed in exploring other opportunities for you in Australia. This search for other opportunities will continue until 8 March 2019. Should we be successful in identifying a suitable role we will consult with you in regard to the appropriate next steps. While we continue with the above process you will not be required to attend work during this period. TCS will consider this period as special paid leave. With your assignment concluding at the client's site we understand that you are in possession of equipment or assets that belong to our client and request that you decide for its return. Should you have any further questions or concerns please feel free to email me at any time."

[18] The correspondence was signed by Mr Chatterjee in his role as General Manager, Human Resources.

[19] On 8 March 2019, Mr Chatterjee again wrote to Mr Sahni advising him that a suitable role in Australia had not been identified. However, TCS would continue to search for a suitable role up until 15 March noting his flexible work requirements, and he was not required to report for duty until further notice.

[20] On 15 March 2019, a further letter was sent by Mr Chatterjee. In that letter he referred to redeployment options being unsuccessful and that his deputation in Australia would come to an end within one month, making it 15 April, being the date that Mr Sahni now alleges he was dismissed.

[21] The letter advised Mr Sahni that his request of 25 February 2019 to be transferred from the TCS branch in New Delhi to TCS Sydney could not be accommodated. He was then invited to submit his travel request to return to India at the earliest opportunity including family members.

[22] Mr Sahni has not returned to India despite the request made by the HR Manager on 15 March to provide his travel requests. In cross-examination, and in response to questions from the Bench, Mr Chatterjee advised that the reference to travel arrangements for family members was only on the basis that they could travel and be repatriated back to India if they required; they were under no obligation to return to India.

[23] Mr Chatterjee also advised that Mr Sahni had made a general protections application, which was conciliated in the Fair Work Commission on 21 March 2019 which remains unresolved to his knowledge. Mr Chatterjee advised that on 20 February 2019 Mr Sahni also made an application in the Australian Human Rights Commission and he had filed on 22 May 2019 an application in the Federal Circuit of Australia alleging unlawful discrimination, a copy of that application was attached to Mr Chatterjee's witness statement.

[24] In summary, Mr Chatterjee states that there has never been a dismissal of Mr Sahni, and that he remains in the employment of TCS.

[25] In respect to what was put by the applicant, Mr Sahni, did not give evidence or provide a witness statement. He did however make oral submissions in addition to his previous written submissions. He relied upon the testimony of his wife, Mrs Harleen Kaur, who provided a witness statement and gave evidence and was cross-examined by Mr Chatterjee.

[26] Mrs Kaur stated that the request by TCS for Mr Sahni to return to India by 15 April 2019 was a dismissal as TCS has no legal right to require Mr Sahni or his family to return to India. Ms Kaur in her witness statement states that the issues that Mr Sahni has had with TCS have been escalated at various times to his local Member of Parliament, Mr Peter Dutton, and the Prime Minister.

[27] Mr Sahni confirmed that he had been employed since 4 June 2007 by TCS, originally commencing in India, and had since accepted work in the United Kingdom and America and had returned to India at the end of each assignment. In 2014, he independently obtained a Subclass 190 Skilled Visa allowing him to live and work in Australia as a permanent resident indefinitely. He acknowledged that on 28 October 2015 he had signed in India a deputation agreement. However, he points to clause 10, which is headed Choice of Laws, which states:

"The parties acknowledge and agree that this agreement shall be governed by the laws of the place of deputation."

[28] On this basis and having regard to clause 10, Choice of Law, Mr Sahni submits that he should have received an Australian employment contract from his employer which was not forthcoming.

[29] Mr Sahni maintains that the correspondence of 15 March advising him that on 15 April 2019 his employment will continue from his base branch in New Delhi was a dismissal under Australian law.

[30] Having regard to what has been put before the Commission from both parties and as already stated, there must be a dismissal at the initiative of the employer for the Commission to be able to entertain an application alleging unfair dismissal.

[31] Mr Sahni submits that through his Subclass 190 visa status he has the right to work and remain in Australia. This much was conceded by the employer, and Mr Chatterjee submits that their request for Mr Sahni to return to New Delhi is to allow for his employment with their company to continue. They acknowledge that he is free to remain in Australia, however, there is no employment with TCS in Australia for him to undertake, despite their best efforts to find alternate work for him in Australia.

[32] It is true that while working in Australia Mr Sahni is protected by the relevant Australian employment laws including the right to claim unfair dismissal. However, working in Australia and having permanent residence status does not extinguish a contract entered into overseas, nor does it require a contract of employment to be issued in Australia.

[33] Mr Sahni has freely, while based in New Delhi, agreed to be assigned to work in Australia by working for TCS as per clause 1.1 of the deputation agreement. The agreement provides TCS the right at its discretion to determine the length of the deputation which it has exercised and now determined that it will cease from 15 April 2019.

[34] Clause 4 of the deputation document states that Mr Sahni agrees to return to India at the conclusion of the deputation. Mr Sahni, having decided that he does not wish to return to India whether for family, health or a combination of reasons, cannot convert his decision into a termination of employment at the initiative of TCS.

[35] It is not uncommon for multi-national companies to place their employees at a location overseas on a temporary basis including Australia on the understanding that they will return to their country of origin at the end of their temporary location.

[36] If an employee has secured visa rights to remain in the overseas country including Australia, then whether they choose to remain in that country is a choice that they make. In this case Mr Sahni has determined not to return to India. That is a decision he is free to make. That choice, however, means that his employment with TCS remains ongoing until they either determine that they will dismiss Mr Sahni, or that he resigns. However, at this point in time having regard to section 386 of the Act, there has been no dismissal.

On this basis the Commission is without jurisdiction to entertain the application, there being a finding that at this point time there has been no dismissal of Mr Sahni's employment.

[37] The application therefore is dismissed.

Mr M Singh Sahni, the applicant, appeared on his own behalf with his support person Mrs H Kaur.

Mr P Chatterjee, General Manager Human Resources, for the respondent.

[1] See extra curial publication (1997) 9 Judicial Officers' Bulletin Gleeson CJ at 25

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