Ling Xu v Australian Dairy Park Pty Ltd
[2023] FWC 2806
•25 OCTOBER 2023
| [2023] FWC 2806 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Unfair Dismissal
Ling Xu
v
Australian Dairy Park Pty Ltd
(U2023/3769)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 25 OCTOBER 2023 |
Application for unfair dismissal remedy – genuine redundancy.
This decision concerns an application made by Mr Ling Xu for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act).
Mr Xu was employed as a Performance Improvement Manager with Australian Dairy Park Pty Ltd, which is a food manufacturer. The respondent submits that Mr Xu was dismissed, with effect on 28 April 2023, by reason of genuine redundancy. Mr Xu contends that his redundancy was not genuine, and he was unfairly dismissed.
I have determined that Mr Xu’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. By reason of s 385(d), Mr Xu was not unfairly dismissed. The reasons for this decision follow.
Initial matters
For the purposes of s 396(a)-(c) of the Act, there was no dispute that the application was made within the 21-day period required by s 394(2), and Mr Xu was protected from unfair dismissal within the meaning of s 382. The respondent was not a small business employer within the meaning of s 23 of the Act and accordingly, the question of compliance with the Small Business Fair Dismissal Code did not arise.
Sections 396(d) and 385(d) of the Act require determination of whether the dismissal was a case of genuine redundancy. The parties are in dispute about this matter. Accordingly, I
must decide that question before considering the merits of Mr Xu’s application.
Background
The respondent describes itself as a dairy manufacturing facility, specialising in the manufacture and packaging of infant formula milk powder and functional milk powders. It is a subsidiary of Ausnutria Pty Ltd and is an associated entity of Nutrition Care Pharmaceuticals (NCP).[1]
Mr Xu commenced employment with the respondent on 4 December 2017 as a Production Supervisor.[2] Mr Xu was promoted to the role of Production Manager from 7 January 2019,[3] and from 19 October 2020 until the cessation of his employment, held the role of Performance Improvement Manager.[4]
Mr Xu’s role was responsible for measuring, reporting on and improving performance to ensure continuous improvement on matters such as quality, cost, safety and customer service.[5] In 2018, Mr Xu received an award from the respondent for being the “Most Innovative,” which was in recognition of Mr Xu’s contribution to improve productivity, share ideas, and help to implement them.[6]
It does not appear to be in dispute that there was no enterprise agreement covering Mr Xu’s employment.[7] Noting it was not contended otherwise, I am also satisfied that Mr Xu’s position was award-free.
Mr Xu reported to Mr Marko Peric from in or about 2020, following Mr Peric’s employment commencement.[8] Mr Peric currently holds dual roles as the respondent’s Director of Supply Chain and Operations, and the Acting Managing Director.[9]
Approximately 85% of the respondent’s business concerns the production of child infant formula.[10] A significant majority of the infant formula produced by the respondent is exported to China. Chinese authorities require the respondent to hold a China Infant Formula Product Registration (formula registration). In February 2023, the respondent’s formula registration expired. The respondent does not anticipate renewal of its formula registration until early 2024.[11] In the absence of its formula registration, the respondent says its sales dropped by 47% when compared with calendar year 2022, and production rates decreased by 97%.[12]
Evidence was given in these proceedings by Ms Tracey Jen, who holds the role of human resources director for the respondent.[13] Ms Jen forms part of the respondent’s executive team, which is comprised of directors from its key departments. The executive team shares decision-making with its global headquarters. Mr Peric also sits on the respondent’s executive team.[14]
On 30 March 2023, Mr Peric provided Mr Xu with a letter advising that an operational review would be conducted “due to a significant reduction in Australian Dairy Park’s current production capacity.” The letter stated that the operational review would address staffing levels, operational needs, redeployment opportunities and redundancy. The letter proceeded by stating as follows:[15]
“During consultation with each business area the Company will develop a set of objective criteria to identify which positions must be retained, and which positions may no longer need to be retained. The criteria used may include factors such as performance, skill set, experience. The decision will always be made to ensure business functionality can still continue.
Before any final decisions are made, we will also explore all other possible scenarios such as:
·job sharing;
·redeployment;
·potential decrease in working hours;
·the taking of extended periods of leave (whether that be annual leave, long service leave if applicable or unpaid leave), with agreement and with appropriate notice to the employee (s) affected;
·changes to rosters or any other method that may mitigate potential termination from employment; and
·voluntary redundancy
Next steps will involve a one-on-one meeting with you, the Operations and Supply Chain Direction and HR to discuss current skills in the areas of On-the-job knowledge, Supervision, Communication skills, OH&S issues, quality, teamwork or any other items as considered relevant, in assessing your job role and the skills required to perform the inherent requirements of the role.”
On 14 April 2023, Mr Xu attended a meeting with Mr Peric and the Manufacturing Manager.[16] At this meeting, Mr Xu was informed of the termination of his employment by reason of redundancy and given a termination letter of the same date.[17] The 14 April 2023 letter relevantly stated that the respondent had been advised to “critically review” its structure and resourcing and considered that changes were necessary to ensure its long-term viability and success. The letter stated that based on the respondent’s “current and projected business needs the position of Performance Improvement Manager is no longer required.”
The letter further advised that the respondent had “carefully considered redeployment opportunities within the company and associated entities, including a fixed term secondment to Nutrition Care Pharmaceuticals (NCP) in the hope that over time, our operational needs would increase. Unfortunately, due to NCP also undergoing similar reviews based on limited production schedules, there is no additional work available in NCP.”
The letter continued as follows:
“As a result of this review, the position of Performance Improvement Manager is no longer needed. Regrettably this means your employment will terminate, on the grounds of genuine redundancy. This decision is not a reflection on your performance.
Your employment will end immediately…”
Mr Xu submits that the approach taken by Mr Peric to communicate the information in the 14 April 2023 letter humiliated him.[18] Mr Xu said that there was no human resources representative present, and the meeting took place in a “young manager’s office,” who is “the same level manager” as Mr Xu and with whom Mr Xu had no “reporting relationship.”[19]
Accordingly, on 14 April 2023, Mr Xu requested a discussion with the respondent’s Chief Executive Officer or Human Resources Director.[20] A meeting between Ms Jen and Mr Xu took place the same day.[21] Ms Jen’s written notes of the meeting are before the Commission. The notes indicate that the following matters were discussed:[22]
(1) Mr Xu respected and accepted the respondent’s decision regarding his redundancy and has no objection to the redundancy payment proposed.
(2) Mr Xu proposed that payment of his redundancy payment be deferred to 1 July 2023 for taxation purposes.
(3) Mr Xu separately wanted to lodge a complaint against Mr Peric based on the following matters:
(a)The redundancy procedure was harsh and humiliating due to “harsh notice” and a refusal to provide a “reasonable explanation,” the outcome was communicated in a “young manager’s” office, with whom Mr Xu had no connection,[23] which is humiliating and disrespectful, and the termination of email access and advice to clean the laptop of information is not accepted.
(b)Mr Xu has been unfairly treated by Mr Peric. This arises from Mr Xu’s concerns that Mr Peric has met with Mr Xu only twice since his commencement; Mr Peric has created an environment which isolates Mr Xu from team meetings and team communications; Mr Xu’s colleagues were informed by Mr Peric to ignore Mr Xu’s working suggestions and efforts; and Mr Peric ignored Mr Xu’s request to review his job, salary and bonus options.
(c)Mr Peric’s unfair treatment had caused Mr Xu mental harm, for which Mr Xu has medical evidence.
(4) Ms Jen committed to responding to Mr Xu’s request that his redundancy payment be deferred to 1 July 2023 once the respondent had made a decision on this matter.
A further meeting was held between Mr Xu and Ms Jen on 18 April 2023. At this meeting, Ms Jen said she further explained the “reason for the redundancy” to Mr Xu. It was noted at this meeting that Mr Xu said on 14 April 2023 that he respected and accepted the respondent’s decision.[24] Ms Jen explained that the purpose of this meeting was to listen to Mr Xu’s concerns, which Ms Jen understood to be focussed upon Mr Xu’s view that he had been bullied or victimised by Mr Peric, and that he had been overlooked for salary reviews and discretionary bonuses.[25]
It is apparent from the evidence before the Commission that the meeting was also convened for the purpose of discussing a proposal by Mr Xu that (a) he receive additional compensation in connection with his dismissal,[26] and (b) his redundancy be deferred until 1 July 2023 for taxation purposes.[27] To this end, Ms Jen referred to the meeting as a “dismissal conditions” discussion.[28] The respondent declined to defer the redundancy to the next financial year.[29] However, Ms Jen said that as a gesture of goodwill, there had been “one or two rounds of golden handshaking opportunities” with Mr Xu. Upon confirmation by Mr Xu on 27 April 2023 that he had declined the respondent’s offer,[30] the respondent issued the 28 April 2023 letter to Mr Xu and paid out his statutory entitlements.[31]
The 28 April 2023 letter to Mr Xu provides relevantly as follows:
“Following on from our previous communication to you, dated 14th April 2023, and subsequent discussions held with Tracy Jen, HR Director, we wish to confirm the following:
There is no change to the previous decision communicated to you, that being the position of Performance Improvement Manager is no longer needed. Regrettably this means your employment will terminate, on the grounds of redundancy. This decision is not a reflection of your performance.”
The letter stated that, “[y]our employment will now end today, 28th April 2023.” The letter advised that:[32]
(a) Mr Xu would receive a payment in lieu of notice (being an eight-week period which the respondent increased by one year having regard to Mr Xu’s age and completed period of service), and a redundancy payment in accordance with the Act (being 10 weeks’ pay); and
(b) the period between 14 April and 28 April 2023 would be processed as follows:
a. leave without pay for the week commencing 17 April 2023 in accordance with a leave application completed by Mr Xu following receipt of the 14 April 2023 letter; and
b. a combination of leave without pay, a payment for a public holiday not worked, and wages for the period between 24 April and 28 April 2023.
Ms Jen explained that while the respondent had made its decision to declare Mr Xu’s role redundant on 14 April 2023, it had refrained from finalising Mr Xu’s employment while it negotiated a potential ex gratia payment with Mr Xu, as a gesture of goodwill. The 28 April 2023 letter was said to reflect the respondent’s official “approval” of its 14 April 2023 decision following the conclusion of those negotiations.[33]
Some evidence was given during the proceedings about discussions between Mr Xu and leaders from the respondent’s “headquarters” pertaining to confidential information said to have been held by Mr Xu regarding the respondent and its associated entities. I have not taken the limited evidence of these discussions into account in this decision. The discussions post-date the cessation of Mr Xu’s employment with the respondent, and the termination payment. Accordingly, such discussions do not bear upon the matters to be determined by the Commission in these proceedings.[34]
Was Mr Xu’s dismissal a case of genuine redundancy?
Under s 389(1) of the Act, a person’s dismissal was a case of genuine redundancy if:
(a)the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b)the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
Section 389(2) of the Act provides that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. The term “associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).
I consider these matters in the analysis that follows.
Was Mr Xu’s job no longer required to be performed by anyone because of changes in the operational requirements of the respondent’s enterprise?
Ms Jen gave evidence that as a consequence of an embargo on the respondent’s formula registration by the Chinese authorities, the respondent “will not have any production for the entire year.” Ms Jen said that this had “a big impact” to Mr Xu’s role.[35] Ms Jen said that in the absence of the renewal of its formula registration, the respondent’s production has dropped by 97% by comparison to calendar year 2022, and sales have reduced by 47% from the same period.[36]
The respondent does not anticipate that the Chinese authorities will renew its formula registration until “early 2024.”[37] Ms Jen understands this to be an issue shared by other Australian manufacturers in the industry. Ms Jen’s evidence is that the auditing process takes a period of three to six months, followed by a period of three to six months for decision making. The process also involves a quality audit, conducted by a team from China.[38] In light of this, Ms Jen said that the respondent will not receive orders for infant formula from the “China side” for a period of at least 12 months.[39]
Mr Xu contends that while the respondent’s production volume has slowed while it awaits the renewal of the formula registration, the respondent continues making “the products.” Mr Xu says that the respondent did not make any other employees besides him redundant. Further, Mr Xu says that the respondent continues to employ workers on the production line and employed new staff one week prior to Mr Xu’s position being declared redundant.[40]
Mr Xu submits that his role as Performance Improvement Manager is an important part of the respondent’s operations, and he does not accept that his job is no longer required.[41] Nor is there any evidence, in Mr Xu’s submission, demonstrating that the respondent is insolvent or bankrupt, closing down, relocating its business interstate or overseas, being reorganised as a consequence of a merger or takeover or which demonstrates that the respondent has introduced new technology such that his role is not required. Mr Xu submits that upon the formula registration being renewed, the respondent will have increased production needs and his role as Performance Improvement Manager will be “even more important.”[42]
In any event, Mr Xu contends that the respondent’s financial loss, caused by the delay in securing renewal of the formula registration, is “acceptable” to Yili Industrial Group Co. Ltd which is the only major shareholder of Ausnutria Dairy (China) Corp. Ltd, a related company of the respondent.[43]
Contrary to Mr Xu’s position, Ms Jen said that the respondent’s “headquarters” required the respondent to consider various cost control measures.[44] Ms Jen said that these measures necessarily involved a number of employee redundancies. The respondent’s “latest movement” of this kind in April to May 2023 concerned “at least seven roles.” This included “production operators, a few quality control specialists, one HR business partner for Australian Dairy Park and also the applicant’s role.”[45] Despite Mr Xu’s concern that the respondent had hired a new employee in the week prior to his redundancy, Ms Jen gave evidence that this was a “free internship” in a department unrelated to the production and manufacturing environment, which converted to paid employment after three months.[46]
Notwithstanding its cost-cutting measures, Ms Jen said that the respondent has endeavoured to retain one full set of manufacturing-related production employees to accommodate anything that “comes up.”[47] Mr Xu challenged the respondent’s position in this respect, contending that it brought into question the genuineness of his redundancy. However, Ms Jen’s said that production employees required up to three months of training and the retention of 15 trained workers, of which two are casual, provided the respondent with the capacity to remain “lean” but the flexibility to move quickly should the need arise.[48]
In addition, Mr Xu contends that the true reason for his dismissal arises from Mr Peric’s “long desire to eliminate” him from the business, after a lengthy period of bullying Mr Xu.[49] Mr Xu says he was targeted for dismissal by Mr Peric. Mr Xu says that shortly after Mr Peric commenced employment with the respondent in 2020, Mr Peric asked Mr Xu to step down from his position as Production Manager without a reasonable explanation. Mr Xu said he did not agree with the change, but the (then) Chief Executive Officer persuaded Mr Xu to “bear with it.”[50] Mr Xu also refers to the following:[51]
(a) An email said to have been sent by Mr Peric to the production department manager, advising him to “ignore” and “not implement” recommendations made by Mr Xu to the production department.[52] This email is not in evidence.
(b) An email from Mr Peric to Mr Xu advising Mr Xu not to action a request from a finance manager, with Mr Peric later complaining that Mr Xu was “useless.”[53] This email, or any details concerning Mr Peric’s complaint, are not in evidence.
(c) Mr Xu says that Mr Peric deprived him of the right to speak at the weekly management meeting, which impacted Mr Xu’s ability to perform his duties. Mr Xu relies upon an email dated 21 June 2022 which was sent by Mr Peric to a number of employees, including Mr Xu.[54] The email contains a meeting agenda and does not appear to seek an update from Mr Xu.[55] There are no other material details in evidence concerning this email.
(d) Mr Xu contends that Mr Peric’s purpose was to force the cessation of Mr Xu’s employment,[56] as has occurred with other employees.[57]
(e) Mr Xu did not receive a salary increase or bonus in recent years, whereas Mr Xu says that other employees have.[58]
(f) Mr Xu considers that Mr Peric attempted to make him redundant several times prior to 14 April 2023 and his approach to communicating Mr Xu’s redundancy was humiliating.[59]
(g) Mr Xu says that Mr Peric has spoken to him officially only twice in three years.
(h) Mr Xu says he was blocked from his emails by Mr Peric.[60]
The respondent rejects the above matters and says that they did not have any bearing upon its decision to declare Mr Xu’s position redundant. In response, the respondent says as follows:[61]
(a) The respondent conducted an investigation into Mr Xu’s concerns regarding Mr Peric’s conduct after Mr Xu raised them with Ms Jen on 14 April 2023. Mr Xu’s contention that he had been bullied by Mr Peric is unsubstantiated.[62]
(b) Mr Xu’s contention that the bullying caused him ill health, physically or mentally, is not a matter that was raised with the respondent during his employment and Mr Xu’s attendance records demonstrate little, if any, absenteeism from work.
(c) Mr Xu did not lodge a grievance in accordance with the respondent’s policies and procedures in relation to his concerns about Mr Peric’s behaviour towards him during his employment.
(d) The manner in which Mr Xu’s redundancy was communicated to him on 14 April 2023 was not intended to offend or humiliate Mr Xu. Due to the short tenure of the respondent’s human resources business partner, the 14 April 2023 meeting was conducted with Mr Peric and the Manufacturing Manager, an employee with whom the respondent understood Mr Xu had a close working relationship. Mr Xu did not object to the presence of the Manufacturing Manager at the time of the meeting.
(e) Salary increases are at the respondent’s discretion, and it is not accurate to say that all other employees received increases or bonus payments.
(f) The alteration of Mr Xu’s role from Production Manager to Performance Improvement Manager from October 2020 was consistent with the terms of Mr Xu’s contract of employment, which enables the respondent to alter Mr Xu’s position, position description and responsibilities in accordance with business needs from time to time. Further, the change reflected an alteration to the respondent’s operational structure and drew upon Mr Xu’s skills in efficiency and continuous improvement.
(g) Mr Xu continued to be invited to weekly production planning meetings at which he was able to contribute, but the agenda was streamlined for efficiency.
(h) Any requests by Mr Peric not to proceed with certain actions or tasks arose due to conflicting data across various departments such that further clarification was required before certain requests were actioned. Mr Xu did not bring this matter to the respondent’s attention or raise a complaint at the time of these events.
(i) There is no evidence that Mr Xu was precluded from performing his duties on account of Mr Peric excluding Mr Xu from emails or relevant information.
I am satisfied on the evidence that there has been a change in the operational requirements of the respondent’s enterprise. The uncontested evidence is that a significant component of the respondent’s business concerns the production of child infant formula, with a vast majority of that product exported to China. It is not in dispute that the respondent’s formula registration has not been renewed by the Chinese authorities. In the absence of holding a current formula registration, I am satisfied that the respondent is precluded from exporting its product to China and this informs the significant reduction in its sales and thereby its production levels. The respondent’s evidence as to a 97% drop in production and a 47% reduction in sales when compared to calendar year 2022 was not the subject of any significant challenge by Mr Xu.
I accept Ms Jen’s evidence that the formula registration is not expected to be renewed until early 2024. While Mr Xu contends that this timeframe is not accurate, Mr Xu relies upon a report said to have been prepared by the respondent in 2022 that it would run a “double shift on Q3/2023.”[63] I do not consider that a forecast prepared by the respondent approximately 12 months ago supplants Ms Jen’s direct evidence on this matter, having regard to her role as a decision-maker within the respondent’s executive team.
There is no evidentiary support for Mr Xu’s contention that the financial loss incurred by the respondent because of these external events was “acceptable” to the respondent or the corporate group. The contention is also contrary to Ms Jen’s direct evidence on this matter, which I accept given her role. The evidence demonstrates that the respondent was under instruction to implement cost control measures, having regard to its deteriorating financial performance since late 2022, including implementing employee redundancies where appropriate. This position was communicated to Mr Xu in the 30 March 2023 letter.
The evidence establishes that the respondent made approximately seven employees redundant, including Mr Xu, during April and May 2023 in response to these operational issues. Contrary to Mr Xu’s contention that he was the only affected employee, the outcomes were not isolated to Mr Xu. It is not in dispute, and I am satisfied, that Mr Xu’s role is not being performed by anyone.
There is no direct evidence before the Commission that draws a causative link between the redundancy of Mr Xu’s role and Mr Xu’s allegation that he was targeted for dismissal by Mr Peric. Mr Peric was not called to give evidence in the proceedings and Mr Xu’s contention that there is a connection between his alleged treatment by Mr Peric and his redundancy is, on the evidence before the Commission, speculative. Further, the contention that Mr Peric effectively orchestrated Mr Xu’s redundancy fails to take into account Ms Jen’s evidence that the decision to declare Mr Xu’s role redundant was made by the executive team and the headquarter leaders, not by Mr Peric alone.[64] It follows that Mr Xu’s submission that the true reason for his dismissal was a long-held desire by Mr Peric to remove Mr Xu from the business is not a conclusion that is available on the evidence before the Commission. Nor should the Commission determine contentions as to unfair selection procedures at this stage of the proceedings, noting that such matters are relevant to the merits of the unfair dismissal application and Mr Xu’s contention that he was dismissed harshly, unjustly or unreasonably.[65]
Having regard to my consideration of the evidence and the parties’ respective positions, I find that the respondent no longer required Mr Xu’s job to be performed by anyone because of changes in the operational requirements of its enterprise. It follows that the criterion in s 389(1)(a) of the Act is satisfied. Mr Xu’s contention that he was bullied by Mr Peric is otherwise addressed at [52] of this decision.
Was there an obligation upon the respondent to consult?
Section 389(1)(b) of the Act requires the Commission to consider whether the respondent has complied with any obligation in a modern award or enterprise agreement that applied to Mr Xu’s employment to consult about the redundancy.
As earlier noted, it is not in contest that there is no enterprise agreement that applied to Mr Xu in his employment with the respondent. Nor am I satisfied that a modern award has application. In reaching this conclusion, I have considered the coverage of the Food, Beverage and Tobacco Manufacturing Award 2020 (Award), being an industry award covering employers throughout Australia in the food, beverage and tobacco manufacturing industry and their employees in the classifications in the Award. I am satisfied, having regard to the seniority of Mr Xu’s role as Performance Improvement Manager, and the position responsibilities attached to it,[66] that the role is not captured by the Award’s classification structure and definitions.[67] Nor did the parties contend otherwise.[68]
It follows that for the purposes of s 389(1)(b) of the Act, the respondent was not required to comply with the consultation obligations in Part 7 of the Award insofar as it concerned Mr Xu.
Would it have been reasonable in all the circumstances for Mr Xu to be redeployed within the respondent’s enterprise or the enterprise of an associated entity?
Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.[69] In order to conclude that it would have been reasonable to redeploy the dismissed person the Commission must find, on the balance of probabilities, that there was an alternative job, position, or work to which it would have been reasonable to redeploy the dismissed employee.[70] The term “redeployed” in s 389(2) is be given its ordinary and natural meaning, which is to “transfer to another job, task or function.”[71]
Mr Xu contends that the respondent did not adequately consider redeployment opportunities for him. However, Mr Xu has not identified an alternative job, position or work which existed at the time of the dismissal to which he could or should have been redeployed. I accept Ms Jen’s evidence was that the respondent conducted an “organisational chart evaluation” by reference to Mr Xu’s capabilities and remuneration. This process involved consideration by the respondent of any available roles suitable for Mr Xu’s skill set. The respondent concluded that there were no redeployment opportunities for Mr Xu within the company and its associated entities.[72] While the respondent considered the possibility of redeploying Mr Xu to NCP on a fixed term secondment, it was determined that this was not possible as a result of a similar cost cutting exercise within NCP’s business.[73] Further, I accept Ms Jen’s evidence that there were no redeployment opportunities within Ausnutria, which is a holding company and largely cost centred.[74]
There is no evidence before the Commission that allows a finding, on the balance of probabilities, that there was a job, or a position, or other work within the respondent’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mr Xu. Accordingly, I am satisfied, and I find for the purposes of s 389(2) of the Act that it was not reasonable in all of the circumstances for Mr Xu to be redeployed within the respondent’s enterprise or the enterprise of an associated entity.
In reaching this conclusion, I have taken into account that Mr Xu’s primary concern, insofar as it relates to the question of redeployment, appears to be that the respondent did not meet with him to discuss options to avoid a redundancy, such as job sharing, taking extended leave, taking unpaid leave, or decreasing his working hours.[75] Mr Xu said that the respondent did not consider the possibility of him taking a period of extended leave pending the renewal of the formula registration, and its decision to proceed with his redundancy is these circumstances is unfair.[76]
The question of whether the respondent met with Mr Xu to discuss these options is not a matter that bears upon my conclusion at [48] above. The focus of the obligation in s 389(2) concerns whether it would have been reasonable for Mr Xu to be redeployed – that is, transferred – to another job, task or function. In any event, I note that the commitment given by the respondent in the 30 March 2023 letter is that the respondent will “explore” alternatives before any final decisions are made. Ms Jen’s evidence that the respondent met this commitment. Ms Jen was involved in considering alternative arrangements for Mr Xu,[77] but concluded that it could not accommodate such options in light of the operational changes to the respondent’s enterprise. While these matters were not specifically discussed with Mr Xu,[78] the respondent was not compelled to consult with Mr Xu prior to making its decision to declare his role redundant (see [45] of this decision). Accordingly, the question of whether Mr Xu declined an invitation to attend a meeting with the respondent to discuss such matters prior to the respondent’s decision to declare his role redundant does require determination in these proceedings.[79] I note, however, Mr Xu’s evidence that the respondent did not engage with him about such matters.[80]
Conclusion
Having regard to the above matters, and the conclusions reached, I am satisfied that Mr Xu’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. It follows, by reason of s 385(d) of the Act, that Mr Xu was not unfairly dismissed.
In light of this conclusion, Mr Xu’s contention that his dismissal was unfair, including his allegation that he was bullied by Mr Peric, does not fall to be determined in these proceedings.[81]
Order
Mr Xu’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
L Xu, on his own behalf.
T Jen for the respondent.
Hearing details:
2023.
Melbourne:
August 15.
[1] Transcript of proceedings dated 13 August 2023 (Transcript) at [113]-[115] and [118]
[2] Exhibit 1 (Court Book) 60, cf Court Book 16 at [1b]
[3] Court Book 29
[4] Ibid
[5] Court Book 12; Transcript at [92]
[6] Court Book 11; Court Book 37
[7] Transcript at [92]-[94]
[8] Court Book 37
[9] Transcript at [97]-[98]
[10] Transcript at [80]
[11] Court Book 57
[12] Court Book 57; Transcript at [74]
[13] Court Book 56
[14] Transcript at [97]-[98]
[15] Court Book 68-69
[16] Court Book 54, 3.2 at [1]
[17] Court Book 30-31
[18] Transcript at [451]-[453]
[19] Court Book 38
[20] Court Book 54, 3.2 at [2]; Transcript at [120]
[21] Court Book 56; Transcript at [120]
[22] Court Book 78-79
[23] Court Book 38
[24] Court Book 54, 3.2 at [3]
[25] Transcript at [120]-[121]
[26] Ibid
[27] Transcript at [140]
[28] Court Book 54, 3.2 at [3]
[29] Transcript at [301]
[30] Court Book 54-55, 3.2 at [4]
[31] Transcript at [139]-[140] and [144]
[32] Court Book 70-71
[33] Transcript at [144]
[34] Transcript at [141]-[143], [310], [320], [323] and [328]
[35] Transcript at [76]
[36] Transcript at [74] and [76]
[37] Court Book 102 at [4b]
[38] Court Book 76
[39] Transcript at [82]-[83]
[40] Court Book 21-22 at [6d]; Court Book 39, 41
[41] Transcript at [480]-[484]
[42] Court Book 21-23 at [6d]; Court Book 39
[43] Court Book 41; Transcript at [400]
[44] Transcript at [74]-[76]
[45] Transcript at [85]-[86], [177]-[180]
[46] Transcript at [181]-[183]
[47] Transcript at [87] and [197]
[48] Transcript at [198]-[199], [211]
[49] Court Book 38-39, 42; Transcript at [490]
[50] Court Book 37
[51] Court Book 37
[52] Transcript at [400], [424]-[425]
[53] Court Book 37; Transcript at [425]
[54] Transcript at [428]
[55] Court Book 40
[56] Transcript at [405]
[57] Transcript at [445]
[58] Transcript at [444]
[59] Court Book 38; Transcript at [446]
[60] Transcript at [426]
[61] Court Book 54-55; Court Book 72-77
[62] Transcript at [122], [132]
[63] Court Book 41
[64] Transcript [145]
[65] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]; cited in Eli Stever v Colas New South Wales Pty Ltd[2020] FWC 3832 at [14]
[66] Court Book 12
[67] Food, Beverage and Tobacco Manufacturing Award 2020, Schedule A
[68] Transcript at [501]-[502]
[69] Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28]
[70] Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130 at [36]
[71] Ibid at [25]
[72] Court Book 53
[73] Transcript at [111]-[113]
[74] Transcript at [118]
[75] Court Book 22, 42-43; Transcript at [271]
[76] Court Book 43
[77] Transcript at [108]-[110]
[78] Transcript at [277]
[79] Transcript at [532]
[80] Transcript at [512]-[519] and [536]-[541]
[81] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]; cited in Eli Stever v Colas New South Wales Pty Ltd[2020] FWC 3832 at [14]
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