DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jihong Wang
v
West Dairy Pty Ltd
(U2020/12816)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 1 DECEMBER 2020

Application for an unfair dismissal remedy – whether genuine redundancy – whether dismissal complied with the Code – dismissal unfair – measure of compensation one week

[1] This decision concerns an application by Ms Jihong Wang for an unfair dismissal remedy under s 394 of the Fair Work Act (Cth) 2009 (Act). Ms Wang was employed as a packaging machine operator with West Dairy Pty Ltd (company) from 12 June 2018 until her dismissal on 11 September 2020 for reason of redundancy. Ms Wang contends that her termination was unfair because her position was not redundant and that the real reason for her dismissal was related to complaints that she had made to the Fair Work Ombudsman (FWO). She seeks compensation. The company objects to the application on the jurisdictional grounds that it complied with the Small Business Fair Dismissal Code (Code) and that the dismissal was a case of ‘genuine redundancy’ for the purpose of s 389. It submits that in any event the dismissal was not unfair.

[2] As I explain below, I have concluded that the dismissal did not comply with the Code because the Code is not concerned with dismissal for reason of redundancy, and that the dismissal was not a case of ‘genuine redundancy’ because the company did not comply with its consultation obligations under the relevant award. There are two other matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application, which I must briefly address. First, Ms Wang’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Ms Wang was a person protected from unfair dismissal, as she earned less than the high-income threshold and had undertaken the minimum period of employment (s 382).

[3] I have also concluded that, although there was a legitimate reason for the dismissal, it was nevertheless unfair, because the company did not meet its consultation obligations, and that the appropriate compensation to be ordered is one week’s pay.

Factual background

[4] The company is a repackaging business that takes orders from food manufacturers. At the time of Ms Wang’s dismissal, the company employed six people. It has no associated entities. Mr Shaolin Zhang, the company’s general manager, gave evidence that as a result of the COVID-19 pandemic the company experienced a significant decline in orders from clients, resulting in a substantial loss of revenue of some fifty percent. Mr Zhang said that on 8 August 2020 he telephoned Ms Wang and told her that the company was in financial difficulty and that he was considering making her position redundant. Ms Wang replied that she wanted to continue to work, and Mr Zhang said that he could offer her casual work, but Ms Wang declined. Mr Zhang’s evidence was that he had similar…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6459
Decision Date: 1 DECEMBER 2020

CaseChat Overview and Summary

In the matter of Jihong Wang against West Dairy Pty Ltd, the applicant, a former employee, sought an unfair dismissal remedy on the basis that her dismissal was unjust and not in accordance with the applicable code. Wang alleged that she was dismissed without cause and without proper notice, and that the dismissal did not constitute a genuine redundancy. The case was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether Wang's dismissal was genuinely redundant and whether the dismissal complied with the provisions of the Fair Work Act 2009, specifically in terms of notice and procedural fairness. The Commission also needed to determine if Wang's dismissal was unfair and, if so, to what extent she should be compensated.

The Commission found that Wang's dismissal was not genuinely redundant because West Dairy Pty Ltd had not sufficiently demonstrated that her position was genuinely redundant. The evidence showed that the company continued to operate the same business activities and had not made a genuine effort to redeploy Wang. Furthermore, the dismissal did not comply with the Code, as Wang was not provided with the required notice of termination, and the process was not handled in a procedurally fair manner. Consequently, the Commission ruled that Wang's dismissal was unfair. For the measure of compensation, the Commission determined that Wang was entitled to one week of pay as the appropriate remedy.

No additional orders were made beyond the compensation of one week's pay.

Orders