Anantapadma v Infosys Limited
[2020] QIRC 190
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- Anantapadma v Infosys Limited[2020] QIRC 190
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Anantapadma v Infosys Limited[2020] QIRC 190
Anantapadma v Infosys Limited[2020] QIRC 190
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Anantapadma v Infosys Limited [2020] QIRC 190 |
PARTIES: | Anantapadma, Nabhacharya Mathod Vedavyasa (Applicant) v Infosys Limited (Respondent) |
CASE NOS: | B/2020/8 |
PROCEEDING: | Application for proportionate payment of long service leave |
DELIVERED ON: | 2 November 2020 |
HEARING DATE: | 22 June 2020 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDERS: | The Applicant's application for unpaid wages for proportionate payment of long service leave is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – application for proportionate payment of long service leave – Applicant is a citizen of India employed by a company incorporated in India which operated in Australia – Applicant worked in Melbourne and Brisbane over a period of 8 years and 3 months when Applicant resigned – Applicant made an application for recovery of wages on the basis that he was entitled to a proportionate payment of long service leave - Applicant stated he terminated service to remain in Australia to enable his and his daughter's application for Australian citizenship to be approved – whether Applicant had 7 years continuous service within the meaning of s 95 of the Industrial Relations Act 2016 – whether, at time of Applicant's resignation, the Applicant's service had a substantial connection with Queensland – whether Applicant terminated service because of a domestic or other pressing necessity – application dismissed |
LEGISLATION: | Acts Interpretation Act 1954, s 14A and s 35 Industrial Conciliation and Acts 1961 to 1964, s 17 Industrial Relations Act 2016, s 13, s 21, s 93, s 95, s 107 and s 476 |
CASES: | Appeal from decision of Industrial Commission (1965) 60 QGIG 531 Application for Interpretation of sections 17 and 19 of the Industrial Conciliation and Acts 1961 to 1964 (1965) 58 QGIG 530 Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Cohen v iSoft Group Pty Ltd [2012] FCA 1071 Hawkins v Torres Strait Island Regional Council [2009] QIRC 97; (2009) 190 QGIG 151 Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64 Kumar v Minister for Immigration and Ethnic Affairs [1997] FCA 339; (1997) 144 ALR 441 Mihill v Harcourt Engineers Pty Ltd t/as Hardcourt Consulting Engineers [2009] QIRC 60; (2009) 191 QGIG 284 Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 Rogers v Taubmans Pty Ltd [2001] NSWCIMC 68 Saxby v Southern Downs Security Pty Ltd [2010] QIRC 40 Transport Workers Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 001 Trust Company of Australia Pty Ltd v Commissioner of State Revenue [2006] VSC 64; (2006) 15 VR 1 Vermeer v Montague Fresh Qld Pty Ltd [2007] QIRC 56; (2007) 185 QGIG 220 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581 |
APPEARANCES: | Mr N. Anantapadma, the Applicant in person Mr O. Fagir of Clayton Utz, for the Respondent |
Reasons for Decision
Introduction
- [1]Mr Nabhacharya Mathod Vedavyasa Anantapadma is presently a citizen of India. In November 2010, he was employed by Infosys Limited ('Infosys') in Mysore, India, in the position of Technical Test Lead. Infosys is a company incorporated in India.
- [2]Infosys operates in Australia and deploys its employees, from India, to work in Australia.
- [3]Mr Anantapadma worked for Infosys in India until approximately early September 2011. From 7 September 2011, Mr Anantapadma worked for Infosys in Australia. He worked in Melbourne, then in Brisbane, then Melbourne again and then in Brisbane again.
- [4]On 20 December 2019, Mr Anantapadma resigned from his employment with Infosys. At that point in time, Mr Anantapadma was working for Infosys in Brisbane. At the date of his resignation, Mr Anantapadma had approximately 8 years and 3 months continuous service, in Australia, with Infosys.
- [5]By application filed on 4 February 2020, Mr Anantapadma made an application, pursuant to s 476 of the Industrial Relations Act 2016 ('the Act'), to recover unpaid wages on the basis that there were wages payable and unpaid to him in the form of a proportionate payment of long service leave pursuant to s 95 of the Act.
- [6]Relevantly to Mr Anantapadma's application, the combined effect of s 95(3) and s 95(4)(b)(ii) of the Act is that an employee who has completed at least seven years continuous service is entitled to a proportionate payment for long service leave where the employee terminates the service because of a domestic or other pressing necessity.
- [7]Mr Anantapadma claims he is entitled to a proportionate payment of long service leave as he terminated his service with Infosys because:
- he had made an application for himself and his daughter to become citizens of Australia and that that application was close to approval;
- the project upon which he was working for Infosys in Australia had come to an end;
- Infosys asked him to travel back to India, or to Singapore, to undertake other work;
- the application for citizenship could not be approved if he and his daughter had to move away from Australia; and
- he resigned due to the fact that if he was required to travel back to India or to Singapore, his application for citizenship could not be approved.[1]
- [8]Infosys resists Mr Anantapadma's application on the grounds that:
- he did not have the requisite Queensland service for a proportionate payment of long service leave; and
- his resignation was not due to any pressing necessity.
- [9]Having regard to the contentions and submissions of the parties, the questions for my determination are:
- did Mr Anantapadma, as at 20 December 2019, when he resigned from Infosys, have at least seven years continuous service with Infosys within the meaning of s 95(3) of the Act? and
- if Mr Anantapadma has at least seven years continuous service with Infosys within the meaning of s 95(3) of the Act, did he terminate his service with Infosys because of a pressing necessity within the meaning of s 95(4)(b)(ii) of the Act?
- [10]In my view:
- as at 20 December 2019, Mr Anantapadma did not have at least seven years continuous service with Infosys within the meaning of s 95(3) of the Act; and
- Mr Anantapadma did not terminate his service with Infosys because of a pressing necessity within the meaning of s 95(4)(b)(ii) of the Act.
- [11]My reasons follow.
The entitlement to proportionate payment of long service leave under the Act
- [12]Chapter 2 of the Act is headed 'Modern employment conditions'. Part 3 of that chapter provides for what are known as the Queensland Employment Standards ('QES'). The QES are minimum standards of employment of employees which cannot be displaced except under ch 2.[2]
- [13]One of the minimum standards, contained in ch 2, pt 3, div 9, relates to long service leave. Section 13 of the Act relevantly provides that the provisions of the QES about long service leave may apply to employers and employees who are generally covered by the Fair Work Act 2009.
- [14]Chapter 2, pt 3, div 9 of the Act contains s 95 which, at the time of Mr Anantapadma's resignation, relevantly provided:
95 Entitlement-employees other than seasonal employees
- (1)This section applies to an employee, other than a seasonal employee.
Note-
For provisions applicable to seasonal employees, see subdivisions 7 and 8.
(2) The employee is entitled to long service leave, on full pay, of-
(a) if the employee has completed 10 years continuous service-8.6667 weeks; and
(b) after 10 years service, if the employee has completed at least a further 5 years continuous service-a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.
(4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if-
(a) the employee's service is terminated because of the employee's death; or
(b) the employee terminates the service because of-
(i) the employee's illness or incapacity; or
(ii) a domestic or other pressing necessity; or
…
(7) In this section-
proportionate payment means a payment equal to the employee's full pay for a period that represents the same proportion of 8.6667 weeks that the employee's period of continuous service bears to 10 years.
Matters not in dispute
- [15]There are some matters that are not in dispute.
- [16]First, Mr Anantapadma was, at all times relevant to his application, employed by Infosys and not by an Australian company.[3]
- [17]
- [18]Thirdly, Mr Anantapadma's service for Infosys in Australia was undertaken in the following locations and over the approximate following dates:
Employment Location | Start Date | Finish Date |
Melbourne | 7 September 2011[6] | about 17 September, 2018 |
Brisbane | 18 September 2018[7] | about 15 October 2018 |
Melbourne | 18 October 2018[8] | about 21 March 2019 |
Brisbane | 30 March 2019[9] | 20 December 2019 |
Did Mr Anantapadma, as at 20 December 2019, when he resigned from Infosys, have at least seven years continuous service with Infosys within the meaning of s 95(3) of the Act?
- [19]Before consideration should be given as to whether Mr Anantapadma terminated his service because of a domestic or other pressing necessity, for him to be eligible to receive a proportionate payment of long service leave, he had to have at least seven years continuous service with Infosys in Australia. Section 95(3) of the Act provides that an employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service in particular circumstances.
- [20]This question raises the issue of whether Mr Anantapadma's service in Melbourne and Brisbane between 7 September 2011 and 20 December 2019 means that he has completed at least seven years continuous service for the purposes of s 95(3) of the Act.
- [21]By virtue of s 35(1)(b) of the Acts Interpretation Act 1954, in an Act, the reference to a locality, jurisdiction or other thing is a reference to such locality, jurisdiction or other thing 'in and of Queensland.'[10] The composite phrase 'in and of' imports both situation and a close identification of the matter or thing with Queensland.[11]
- [22]Section 93 of the Act contains definitions for ch 2, pt 3, div 9 and relevantly provides:
93 Definitions for division
In this division—
continuous service, of an employee, means—
(a) in section 107[12]—the period of continuous service the employee is taken to have had with an employer under section 107(2)(b); or
(b) elsewhere—the employee’s continuous service with the same employer, whether wholly in the State or partly in and partly outside the State.
- [23]Thus, having regard to s 93(b), an employee may have seven years continuous service with the same employer where the service is wholly within Queensland or partly in and partly outside of Queensland.
- [24]In his affidavit, Mr Anantapadma asserted that he had the requisite seven years continuous service.[13] Despite being invited to do so, Mr Anantapadma did not elaborate on that assertion in his oral submissions, other than to say that the majority of his service was in Victoria and that he had less than one year of service in Queensland.[14]
- [25]Infosys provided a written outline of argument. It referred to s 35 of the Acts Interpretation Act 1954 and contended that Mr Anantapadma does not have 'any relevant Queensland service' so as to entitle him to a proportionate payment of long service leave.[15]
- [26]In this regard, Infosys referred to the decision of the Industrial Commission of New South Wales in Court Session ('the NSW Commission') in International Computers (Australia) Pty Ltd v Weaving[16] ('Weaving') in support of its contention.[17] In that case, the question was whether an employee, who had commenced employment in 1963 in Victoria with a company incorporated in New South Wales, who then worked for a related company in New South Wales, then in South Africa and the United Kingdom, and then once again in New South Wales, was entitled to long service leave on the termination of his employment in 1978. The Chief Industrial Magistrate of New South Wales held that Mr Weaving was entitled to long service leave under the Long Service Leave Act 1955 (NSW). The employer appealed to the NSW Commission.
- [27]After considering the relevant authorities, including Australian Timken Pty Ltd v Stone (No 2) ('Timken'),[18] the NSW Commission held that it is not necessary that all service should be substantially connected with New South Wales, but that it is essential that, at the time when the relevant event occurred, the worker's service may be fairly said to be New South Wales service. At the relevant time in that case (the termination of the worker's employment), the worker's service had a substantial connection with New South Wales.[19]
- [28]The NSW Commission also held that:
- it would put the position too highly if it were to be said that service did not fall within the purview of the Act unless the total service was, to a substantial extent, New South Wales service;[20] and
- the employment relationship and circumstances overall needed to be considered in determining whether or not the service, at the relevant time, was New South Wales service.[21]
- [29]Infosys submitted[22] that the approach taken in Weaving has been followed in other cases including:
- Cohen v iSoft Group Pty Limited[23] where Flick J, after referring to Timken[24] and Weaving,[25] held that the test applied to determine whether the employee had an entitlement to long service leave was whether there was a substantial connection between the employee and the State of New South Wales; and his Honour held that, on the facts of that case, there was no substantial connection between the employee and New South Wales;[26] and
- Rogers v Taubmans Pty Ltd ('Rogers')[27] where Chief Industrial Magistrate Miller, in applying Timken and Weaving, held that, even though at the time of the termination of the employee's employment he was working in New South Wales, on the evidence before the Court, there was a clear intention that the employee's service in New South Wales was temporary service; and, for that reason, the employee's application was dismissed.[28]
- [30]Having regard to these cases, Infosys submits, in the present case, the relevant circumstances are that:
- Mr Anantapadma was employed by a foreign corporation;
- his deputation to Australia, and assignment to a project in Brisbane, were expressly stated to be, and were in fact, temporary;
- the terms of the deputation expressly provided that Mr Anantapadma would return to India on the conclusion of his deputation; and
- Mr Anantapadma was in Queensland for a total of 10 months.[29]
- [31]Infosys then submits that:
- Mr Anantapadma's Queensland service is properly described as temporary, in substance and in form;
- had Mr Anantapadma relocated to Singapore, returned to India and later resigned or been dismissed, it cannot be seriously argued that his service with Infosys was 'in and of' Queensland because he had spent 10 months on a temporary secondment in Queensland in the course of an almost 10 year career;
- the position is not different because Mr Anantapadma resigned while physically located in Queensland, and the fact that his employment happened to end in Queensland did not convert his service, or any part of it, to employment in and of Queensland; and
- it cannot be fairly said that Mr Anantapadma's employment, at any time, had the necessary connection to Queensland to give rise to a long service leave entitlement.[30]
- [32]Infosys developed its contention further in oral submissions. It submitted that:
- in determining the issue of whether Mr Anantapadma had requisite continuous service, the Commission should take into account that Mr Anantapadma only ever had one contract of employment which was made in India and that his employment was governed by an Indian contract;[31] and
- the facts of Mr Anantapadma's case were similar to the facts in Rogers where although, in that case, the employee's employment ended in New South Wales, the employee's service in New South Wales was temporary.[32]
- [33]Infosys submits that Mr Anantapadma's application should be dismissed on this basis.
My determination
The effect of s 93(b) of the Act
- [34]The predecessor to s 93(b) has been considered by the predecessor of the Queensland Industrial Relations Commission. Section 17(2) of the Industrial Conciliation and Arbitration Acts 1961 to 1964 provided that an employee had an entitlement to long service leave (as provided for under that Act) in respect of the employee's '… continuous service with one and the same employer (whether wholly within or partly within and partly without Queensland).'
- [35]That section was considered by the Industrial Conciliation and Arbitration Commission of Queensland in 1965 in the Federal Hotels case.[33] In that case, the employee, referred to as 'Mr. C':
- in August 1954, was first employed in Melbourne by Federal Hotels Limited;
- from 1954 to 1959, was then employed, by a wholly owned subsidiary of Federal Hotels Limited, in New South Wales;
- in 1959, then returned to Melbourne where he worked for Federal Hotels Limited for six months;
- in 1960, then worked in Queensland for Federal Hotels Limited; and
- effective 14 December 1964, resigned, in Queensland, from Federal Hotels Limited.[34]
- [36]In determining whether or not the employee was entitled to long service leave, having regard to his continuous service as referred to above, Industrial Commissioner Bennett relevantly held:
In the Queensland statute the legislature has attached rights and duties within the State to acts committed outside the State (section 17 (2) ) and it was not suggested that there is anything invalid or outside the power of Parliament to do this.
If it is held that the long service leave provisions of the Queensland Act apply to Mr. C. it seems then that the period of continuous service in New South Wales, Victoria and Queensland can be taken into consideration in deciding the value of the leave payable.
There are two extreme cases which could arise under the legislation. The first, at one extreme, where an employee works for a Queensland employer in Queensland for the whole of his service performing work which would bring him within the Act provision. Then, at the other extreme, there could be the case of an employee from another State employed for a very short period in Queensland and then returning to his home State. It seems obvious that such an employee would be subject to the long service leave provisions of the Act in his home State.
But the present case falls somewhere between these two. Mr. C had the final four years of his service with the Company in Queensland.
Had Mr. C. been appointed in the first place to Queensland by Federal Hotels Limited and had he the same length of continuous service in Queensland that he has had in New South Wales, Victoria and Queensland, I think it might well be, even conceding Victorian employment, that he would have become entitled to the benefit of the Queensland Act at the termination of his employment.
…
The facts show that the employment of Mr. C. in Queensland was not of a casual or temporary nature and in my opinion he was entitled to the benefits of the Queensland legislation at the time of ceasing his employment in Queensland.[35]
- [37]On appeal by Federal Hotels Limited to the Industrial Court of Queensland, the decision of Industrial Commissioner Bennett was upheld.[36] In that case, President Hanger held that on the facts of that case, the employee came '… literally within the words of the Act of Parliament' so as to be entitled to long service leave.[37]
- [38]It seems to me that in the Federal Hotels case, the Industrial Conciliation and Arbitration Commission of Queensland, having regard to the provisions of s 17(2) of the Industrial Conciliation and Arbitration Acts 1961 to 1964, applied reasoning similar to that as applied by the NSW Commission 16 years later in Weaving. That is, despite an employee's service in other States, at the time of the termination of the worker's employment, the employee's service had to have substantial connection with Queensland for all of the employee's service to be continuous service for the purposes of accruing long service leave.
Did Mr Anantapadma's service, as at 20 December 2019, have a substantial connection with Queensland?
- [39]The employment relationship and circumstances overall need to be considered in determining the question of whether, at the time of his resignation, Mr Anantapadma's service had a substantial connection with Queensland.
- [40]By letter dated 5 September 2011, when he was in India, Mr Anantapadma was advised that he was being seconded to Infosys Technologies Australian Pty Limited.[38] Mr Anantapadma worked for Infosys in Melbourne from 7 September 2011 to mid‑September 2018.
- [41]By letter dated 17 September 2018, Mr Anantapadma was advised that he was being assigned to work with Suncorp IT in Brisbane, from 18 September 2017, for a period of about two months. He was advised that the exact duration of this assignment would depend on the specific requirements of the project and, or in the alternative, the discretion of Infosys.[39] Mr Anantapadma's assignment in Brisbane ended in October 2018.
- [42]By letter dated 8 October 2018, Mr Anantapadma was reassigned to work with the National Bank of Australia in Melbourne as from 18 October 2018. Mr Anantapadma was advised that this assignment would be for a period of about three months. Again, Mr Anantapadma was advised that the exact duration of his assignment would depend on the specific requirements of the project and, or in the alternative, the discretion of Infosys.[40] Mr Anantapadma's assignment in Melbourne then ended in March 2019.
- [43]By letter dated 21 March 2019, Mr Anantapadma was reassigned to work with the Bank of Queensland in Brisbane for a period of about seven months. Once again, Mr Anantapadma was advised that the exact duration of that assignment would depend upon the specific requirements of the project and, or in the alternative, the discretion of Infosys.[41] Mr Anantapadma commenced work in Brisbane on 30 March 2019.
- [44]The initial project upon which Mr Anantapadma had been working on for the Bank of Queensland came to an end in October 2019.[42] Mr Anantapadma then worked on another Bank of Queensland project which came to an end in mid-November 2019.[43] Mr Anantapadma resigned from Infosys effective 20 December 2019.
- [45]By s 93(b) of the Act, Mr Anantapadma's service with Infosys, which was partly in and partly outside of Queensland, counts towards his continuous service for the purposes of his entitlement to a proportionate payment of long service leave under the Act.
- [46]But, at the time of his resignation in December 2019, Mr Anantapadma had only been working in Brisbane since March 2019. Furthermore, at the time of Mr Anantapadma's resignation, he was performing work in Queensland on a temporary basis.
- [47]Having regard to these facts, I am not persuaded that, at the time of the cessation of his employment, Mr Anantapadma's service with Infosys had a substantial connection with Queensland. Mr Anantapadma's service in Queensland was always intended to be temporary.[44] Further, Mr Anantapadma's most recent service in Queensland, at the time of his resignation, had not been long; only about nine months.
- [48]For these reasons, I cannot conclude that as at the date of his resignation, Mr Anantapadma had seven years continuous service with Infosys within the meaning of s 95(3) of the Act.
- [49]Both parties have gone to argue whether Mr Anantapadma's decision to resign was because of a domestic or other pressing necessity within the meaning of s 95(4)(b)(ii) of the Act.
- [50]In case I am wrong about whether Mr Anantapadma had at least seven years continuous service with Infosys within the meaning of s 95(3) of the Act, I will consider whether Mr Anantapadma resigned because of a domestic or other pressing necessity within the meaning of s 95(4)(b)(ii) of the Act.
Did Mr Anantapadma terminate his service with Infosys because of a domestic or other pressing necessity?
The relevant principles of statutory construction
- [51]The technique of statutory construction is to choose from among the range of possible meanings the meaning which Parliament should be taken to have intended.[45]
- [52]In R v A2,[46] Kiefel CJ and Keane J, in summarising the principles of statutory construction, stated in part:
- The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
- Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
- [53]The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of relevant provisions.[47]
- [54]Further, s 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The noun 'purpose', for an Act, is defined in the Acts Interpretation Act 1954 to include its policy objective.
The purpose or policy objective of s 95(4)(b) of the Act
- [55]Having regard to s 95 as a whole, including its place in ch 2 as one of the minimum standards of employment in the QES, the purpose or policy objective of s 95(4)(b) is to ensure that an employee is not deprived of a proportionate payment of long service leave where the employee terminates his or her service because of the employee's illness or incapacity, or because of a domestic or other pressing necessity.
'because of'
- [56]The use of the phrase 'because of' in s 95(4)(b)(ii) implies a causal relationship between the domestic or other pressing necessity and the termination.[48] That is, the question is whether there is a relationship of cause and effect between the employee's illness or incapacity (or, in the case of s 95(4)(b)(ii), domestic or other pressing necessity) and the termination by the employee of his or her service.[49]
'… or other pressing necessity'
- [57]There have been a number of decisions of the Commission which have construed the phrase '… or other pressing necessity' by reference to the ordinary meaning of the words 'pressing' and 'necessity' taken from dictionaries.[50]
- [58]
[27] For Mr Swift to be successful he needs to establish that he resigned his employment because of, that is, for the reason of, pressing necessity. Various decisions of this Commission have considered the meaning of "pressing necessity" by reference to the definitions of the words "pressing" and "necessity" found in the Macquarie Dictionary: Vermeer v Montague Fresh Pty Ltd; Hawkins v Torres Strait Island Regional Council; and Mihill v Harcourt Engineers Pty Ltd t/as Harcourt Consulting Engineers. In each of those decisions the definition of "pressing" was given as "urgent: demanding immediate attention" and "necessity" as "something necessary or indispensable". Adopting those definitions the question to be answered then is whether Mr Swift resigned his employment for an urgent reason, one that demanded his immediate attention and was necessary.[52]
- [59]In my view:
- the phrase '… or other pressing necessity' should be construed in context;[53] and
- any use of a dictionary to enable the ordinary meaning of words to be identified should not result in the words used in a statute being abandoned in favour of some other synonymous word or expression.[54]
- [60]Having regard to the context of the phrase '… other pressing necessity' contained in s 95(4)(b) of the Act, the matter or issue, like that of a 'domestic …necessity', must be of such a pressing character that it necessitates the resignation of the employee.
Mr Anantapadma's evidence and submissions
- [61]Mr Anantapadma's evidence is that:
- he made an application for Australian citizenship for himself and his daughter on 8 September 2018 and '… cleared citizenship test on 02 Oct 2019';
- he is not allowed to move outside of Australia when his citizenship application is pending;
- as his project with the Bank of Queensland '… went on hold', he requested an opportunity to work in Brisbane and that he had planned to send his daughter to Brisbane Central State School;
- Infosys could not provide any opportunity for him to work in Brisbane and that it was suggested to him that he take up an opportunity in Singapore but he could not take that opportunity because it would impact on his and his daughter's application for Australian citizenship; and
- as a consequence, he decided to resign from Infosys.[55]
- [62]In essence, Mr Anantapadma's submission is that if he was to take up the opportunity to work for Infosys in Singapore, his and his daughter's application for Australian citizenship would have gone on hold as they would have been outside of Australia.
- [63]In Mr Anantapadma's submission, the pressing necessity was '… for my daughter's sake I had no option but to leave Infosys.'[56]
The evidence led by Infosys
- [64]The evidence of Mr Daniel Erwin, Senior League Business Partner, Human Resources of Infosys, is that:
- the Bank of Queensland project upon which Mr Anantapadma was working came to an end in October 2019;
- Mr Anantapadma was advised, on around 18 October 2019, that that project and his deputation to Brisbane would end;
- Infosys then arranged for Mr Anantapadma to be redeployed to another Bank of Queensland project and that, although that project was scheduled to run until the end of January 2020, the Bank of Queensland decided, in November 2019, to put that project on hold;
- Infosys then made various attempts to redeploy Mr Anantapadma and various roles were discussed with him and he was offered a role in Singapore; and
- Mr Anantapadma declined the Singapore role and resigned effective around 20 December 2019 while the redeployment efforts were ongoing.[57]
- [65]Annexed to Mr Irwin's affidavit was written feedback provided by Mr Anantapadma as part of the exit process from Infosys. The feedback was provided online. A screenshot of the feedback provided by Mr Anantapadma, relevantly provided:
JOINING OTHER COMPANY:
The main reason is my pending citizenship ceremony, my project was meant to continue until next year but project was shut down. I'm not in a position to relocate at the moment, so I decided to move on here. Yes I have another role. Relationship with manager and colleagues, Infosys is like another home, I was here when the NAB Portfolio commenced, and I have been in touch with all the senior managers and teams I have worked with. Nothing materialised for me to stay on here during this time.
QUALITATIVE REMARKS:
Team morale was all good in the new project, it was an agile mode and the initial mode, before it got shut down. I have enjoyed the opportunity I have here. I don't think the salary I received was sufficient, I was on the same salary for a few years. Policies if an employee is getting deployed in other locations, rental agreements lease breakage needs to be utilised more than once if deputees relocate numerous times due to different locations. Yes I would recommend Infosys to others.[58]
- [66]Mr Anantapadma was cross-examined and his evidence was:
- he read the letter from Infosys, requiring him to work in Australia as a deputee, before he left India for Australia;[59]
- he agreed that his home country was India and the host country Australia, and that Infosys could withdraw the secondment at any time;[60]
- the projects upon which he worked in Australia could vary in length and that it was up to the client of Infosys, and not Infosys, to determine the length of any project;[61]
- he started on the Bank of Queensland project in Brisbane on 30 March 2019 with an estimated completion date of 30 September 2019;[62]
- if the Bank of Queensland project did end on 30 September 2019, he would have had the same problem that he faced in November and December 2019, in that his citizenship application could not have been completed (because he would have been required to leave Australia);[63]
- at the time he resigned from Infosys, his opinion was that his salary was not sufficient as he was trying to get his family to live in Australia;[64]
- as at 14 November 2019, he had been offered a job in Australia for which he had applied, being with ASG Group Limited ('ASG');[65]
- the salary for the ASG position was $135,000 AUD,[66] and that he accepted that offer on 16 November 2019;[67] and
- even though he commenced employment with ASG on 6 January 2020, he had had discussions with ASG to have an earlier start date.[68]
- [67]It was put to Mr Anantapadma that the reason he did not refer, in his affidavit, to the fact that he had been searching for employment at the end of 2019 and had been successful in obtaining employment in Australia with ASG, was because it would not have been good for his case before the Commission. Mr Anantapadma denied this.[69]
- [68]When given the opportunity to give evidence by way of re-examination, Mr Anantapadma stated that when he resigned, he gave 30 days' notice, but that Infosys may not have required him to work out the full period of notice which was the reason why he accepted the position with ASG.[70]
- [69]In his evidence, Mr Irwin stated that Mr Anantapadma was not required to work out the 30 days' notice because his departure date was put forward by mutual consent.[71]
Infosys' submissions
- [70]Infosys submitted that there was no pressing necessity for Mr Anantapadma to terminate his services with it.
- [71]In this regard, Infosys submitted that:
- the evidence suggests that Mr Anantapadma resigned because he had found another better paying job, and perhaps he was concerned he would be redeployed outside Australia and consequently his application for Australian citizenship would be affected;
- the test for determining whether employment ended by way of pressing necessity is whether there was a really serious problem in the home, although not necessarily a crisis, such that a reasonable person may feel compelled to seek its solution by terminating his or her employment;
- the cases in which pressing necessity have been found to exist are those where some external factor has forced an employee to resign their employment;
- in Mr Anantapadma's case, by contrast, nothing occurred beyond that which could be expected to happen at the end of a temporary, international secondment;
- Mr Anantapadma voluntarily accepted a posting to Australia, and in doing so, he obtained a significantly higher salary than that which he would have received in India;
- it was clear that the deputation was temporary, its duration was unpredictable and based on business and client requirements and that he was likely to return to India at the end of the deputation;
- Mr Anantapadma chose to take up the deputation knowing the above matters;
- as it happened, Mr Anantapadma's deputation to Australia provided an opportunity for him to obtain Australian citizenship, and his assignment to Brisbane also gave him the opportunity to search for and obtain a different job in Brisbane at a significantly higher pay than his Australian Infosys salary;
- with the end of the Bank of Queensland project, Mr Anantapadma faced the prospect that he would be redeployed away from Brisbane and potentially outside of Australia and that that prospect could not have been a surprise to him; and
- Mr Anantapadma searched for and found other work at a higher salary and resigned while his redeployment process was continuing and, presumably, he did so because he preferred to take up other employment at a higher salary so as to avoid the inconvenience of relocation and to ensure that he would not jeopardise his ability to obtain his citizenship by leaving Australia.[72]
- [72]Infosys' submissions conclude:
24. That was a legitimate and rational choice for the applicant to make. It does not however demonstrate that he was forced to resign because of a pressing domestic necessity. He was not forced to resign but simply chose to take a better option, as do many employees every day.
- [73]In oral submissions, Infosys further contended that:
- Mr Anantapadma wanted to improve his situation, and that of his daughter, to have Australian citizenship, which was something of value to him;[73]
- Mr Anantapadma was no worse off if he did not obtain Australia citizenship;[74]
- because he left his job to improve his situation and that of his daughter, it was not a 'necessity' as in the case where employees resigned to avoid some detriment, such as illness or to maintain a family relationship;[75] and
- because he did not refer, in his affidavit, to his success at obtaining other employment, his evidence should be approached cautiously which leads to a conclusion that the real reason he resigned was to obtain more salary.[76]
My determination
- [74]In my view, Mr Anantapadma's decision to resign from Infosys was not because of a pressing necessity within the meaning of s 95(4)(b)(ii) of the Act.
- [75]Infosys did not dispute that Mr Anantapadma had to remain in Australia so that his application for citizenship, and that of his daughter, could be finally determined.
- [76]Mr Anantapadma had been working for Infosys in Australia since September 2011. Mr Anantapadma knew that his deputation to Australia could end upon a determination made by the clients of Infosys for whom he was working.
- [77]It was clearly Mr Anantapadma's aspiration for him and his daughter to become Australian citizens.
- [78]On the evidence, Mr Anantapadma probably resigned for two reasons. First, his desire to remain in Australia to permit his and his daughter's application for citizenship to be determined. Secondly, the greater salary he would earn with ASG which he stated he needed because he wanted his family to live in Australia.
- [79]It was Mr Anantapadma's choice to apply for Australian citizenship and his choice to make an application for his daughter to become an Australian citizen. It was his choice to look for other employment within Australia, and to ultimately resign from Infosys, so that his application for Australian citizenship, and that of his daughter, could be determined.
- [80]While there is a casual connection between his resignation and his desire to remain in Australia so that his application for citizenship, and that of his daughter, could be determined, I am not persuaded that Mr Anantapadma resigned from Infosys because of a 'pressing necessity'.
- [81]Mr Anantapadma, on his own evidence[77] stated that he resigned because if he took up the Infosys job in Singapore, his citizenship application, and that of his daughter, would have '… gone on hold as we would be outside Australia.' Mr Anantapadma's evidence was: 'This is a pressing necessity for my daughter's sake I had no option but to leave Infosys.'
- [82]However, Mr Anantapadma's application for him and his daughter to be Australian citizens does not give any particular reason why the application was made.[78] Mr Anantapadma did not give any evidence why it was pressing for him or his daughter to become Australian citizens. There is no evidence why it was pressing that Mr Anantapadma and his daughter be granted Australian citizenship such that he had to resign in order for the citizenship application to be determined.
- [83]In my view, Mr Anantapadma's resignation, so that his application for citizenship could be determined and not put on hold, was not because of a pressing necessity within the meaning of s 95(4)(b)(ii) of the Act.
Conclusion
- [84]For the reasons given above:
- as at the date of his resignation, Mr Anantapadma did not have at least seven years continuous service with Infosys within the meaning of s 95(3) of the Act; and
- Mr Anantapadma did not terminate his service with Infosys because of a pressing necessity within the meaning of s 95(4)(b)(ii) of the Act.
- [85]Mr Anantapadma's claim for proportionate payment of long service leave is dismissed.
Order
- [86]I make the following order:
That the Applicant's application for unpaid wages for proportionate payment of long service leave is dismissed.
Footnotes
[1] The application for proportionate payment of long service leave filed by Mr Anantapadma on 4 February 2020 ('Mr Anantapadma's application'), page 4/6.
[2] Industrial Relations Act 2016 s 21(1).
[3] Exhibit 1, exhibit C and Exhibit 2, para. 8. The unchallenged evidence of Mr Daniel Erwin, Senior Lead Business Partner, was that Infosys operates in Australia as a foreign entity registered with the Australian Securities and Investments Commission - Exhibit 2, para. 2.
[4] Exhibit 1, exhibit B and Exhibit 2, para. 9.
[5] T 1-13, ll 1-8.
[6] Exhibit 2, exhibit C.
[7] Exhibit 2, exhibit E.
[8] Exhibit 2, exhibit F.
[9] Exhibit 2, exhibit G.
[10] Acts Interpretation Act 1954 s 35(1)(b).
[11] Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581, 612-613 (McTiernan J).
[12] Section 107 of the Act is inapplicable in the present case because that section deals with seasonal employees in the sugar industry and in meat works.
[13] Exhibit 1, page 2/3.
[14] T 1-22, ll 18-47.
[15] The submissions of Infosys Limited filed on 18 June 2020 ('Infosys' submissions'), para. 2(a).
[16] [1981] 2 NSWLR 64 ('Weaving').
[17] Infosys' submissions, para. 11.
[18] [1971] AR (NSW) 246. At 253, McKeon, Sheldon and Sheppard JJ, relevantly held:
'We think that the benefits provided for in the Act accrue if at the time the relevant event occurs (that is, completion, termination or cessation) the service which was being performed at that time had a substantial connection with this State.
[19] Ibid 74 (Watson, Day and Macken JJ).
[20] Weaving (n 16) 76.
[21] Ibid.
[22] Infosys' submissions, paras. 12 and 13.
[23] [2012] FCA 1071.
[24] Ibid [172].
[25] Ibid.
[26] Ibid [174]-[176].
[27] [2001] NSWCIMC 68.
[28] Ibid 7.
[29] Infosys' submissions, para. 14.
[30] Infosys' submissions, paras. 15-18.
[31] T 1-24, ll 39-46.
[32] T 1-25, ll 6-22.
[33] Application for Interpretation of sections 17 and 19 of the Industrial Conciliation and Acts 1961 to 1964 (1965) 58 QGIG 530 ('the Federal Hotels case').
[34] Ibid.
[35] Federal Hotels case (n 33).
[36] Appeal from decision of Industrial Commission (1965) 60 QGIG 531 (President Hanger).
[37] Ibid.
[38] Exhibit 2, exhibit C. In March 2012, that secondment was changed to Infosys Technologies Ltd - Exhibit 2, exhibit D
[39] Exhibit 2, exhibit E.
[40] Exhibit 2, exhibit F.
[41] Exhibit 2, exhibit G.
[42] Exhibit 2, paras. 15 and 16.
[43] Exhibit 2, para. 17.
[44] Exhibit 2, exhibit G.
[45] Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1, [57] (French CJ, Hayne, Kiefel and Nettle JJ).
[46] [2019] HCA 35; (2019) 93 ALJR 1106 (citations omitted) (Nettle and Gordon JJ at [148] agreeing).
[47] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).
[48] Transport Workers Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 001, [15] (Martin J, President) - which concerned the construction of s 43(4)(b)(i) of the Industrial Relations Act 1999 being the predecessor to s 95(4)(b)(i) of the Act.
[49] Ibid [16]. In this decision, Martin J, President referred with approval to Trust Company of Australia Ltd v Commissioner of State Revenue [2006] VSC 64; (2006) 15 VR 1, where Hansen J stated:
[40] The critical question is the meaning and application of the expression “because of” as it appears in the exemption. The Concise Oxford Dictionary, 10th ed, (1999), defines “because of” as meaning “by reason of”. So defined, the expression “because of” is reduced to its bare bones, so to speak. To seek to clarify the expression by language of my own would involve the risk of placing a judicial gloss or qualification on the expression. Further, to go beyond this definition with further definition would be to go around in circles or at least, hopefully, in a circle that would return one to the beginning, but also with the risk I have mentioned. I merely observe that “because of” is an expression of causation; if event Y occurred “because of” event X, it follows that event X caused event Y.
[50] For example, Vermeer v Montague Fresh Qld Pty Ltd [2007] QIRC 56; (2007) 185 QGIG 220, 233(Commissioner Brown), Hawkins v Torres Strait Island Regional Council [2009] QIRC 97; (2009) 190 QGIG 151, 154-155 (Swan DP) and Mihill v Harcourt Engineers Pty Ltd t/as Hardcourt Consulting Engineers [2009] QIRC 60; (2009) 191 QGIG 284, 297 (Bloomfield DP).
[51] [2010] QIRC 40.
[52] Footnotes omitted.
[53] Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 ('Norrie'), [85] (Beazley JA).
[54] Kumar v Minister for Immigration and Ethnic Affairs [1997] FCA 339; (1997) 144 ALR 441, 446 (Tamberlin J) and Norrie (n 53), [85] (Beazley JA).
[55] Exhibit 1, page 2/3.
[56] Ibid.
[57] Exhibit 2, paras. 15-18.
[58] Exhibit 2, Exhibit I.
[59] T 1-12, ll 39-42.
[60] T 1-12, ll 44-45 and T 1-13, ll 4-5.
[61] T1-13, ll 7-11.
[62] T 1-13, ll 38-42.
[63] T 1-13, ll 44-47.
[64] T 1-14, ll 5-11.
[65] T 1-15, ll 40-43.
[66] T 1-14, l 36.
[67] T 1-16, ll 1-2.
[68] T 1-16, ll 6-8.
[69] T 1-15, ll 30-33.
[70] T 1-16, ll 22-26.
[71] T 1-18, ll 39-46.
[72] Infosys' submissions, paras. 19-23.
[73] T 1-28, ll 40-44.
[74] T 1-29, ll 1-3.
[75] T 1-29, ll 10-16.
[76] T 1-29, l 40 to T 1-30, l 5.
[77] Exhibit 1, page 2/3.
[78] Exhibit 1, exhibit A, pages 1-28.