Mr Guy Lambert v ZTE (Australia) Pty Ltd

[2010] FWA 7846

[2010] FWA 7846

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Guy Lambert
v
ZTE (Australia) Pty Ltd
(U2010/9343)

COMMISSIONER ROE MELBOURNE, 11 OCTOBER 2010

Termination of employment- genuine redundancy.

[1] The matter arises from an application filed on 3 June 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr Guy Lambert (the Applicant) for relief in respect to the termination of his employment from ZTE (Australia) Pty Ltd (the Respondent).

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing.

[3] Directions were issued by Fair Work Australia and the matter was heard on 6 and 29 September 2010.

[4] At the hearing the Applicant was represented by Mr J McKenna and the Respondent was represented by Mr N Harrington assisted by Mr Tom Molan. Leave was given for counsel to appear for both the Applicant and the Respondent.

[5] The Applicant was dismissed at the initiative of the employer on 20 May 2010. The Applicant had been employed by the Respondent for a period of more than 3 years.

[6] Evidence for the Applicant was given by the Applicant and evidence for the Respondent was given by Mr Tom Zhong who is the General Manager - Network Solutions for the Respondent. Mr Zhong had been the Applicant’s immediate supervisor throughout the period of his employment. Mr Zhong reported directly to the CEO of the Respondent, Mr Bill Xiang. The Applicant and the Respondent produced detailed and careful submissions. I have carefully considered their arguments and the cases to which they referred.

[7] It is not disputed and I am satisfied that:

• The Respondent is a National System Employer.



• The Respondent is not a small business employer.



• The Applicant was dismissed at the initiative of the employer.



• The Applicant’s earnings were less than the high income threshold under the Fair Work Act 2009.



• The Applicant qualifies for access to unfair dismissal jurisdiction save for the contention of the Respondent that it was a genuine redundancy.



• The Respondent did not give the Applicant any advance notice of the termination.



• The Respondent did not give the Applicant any written reason for the termination prior to the termination, at the time of the termination or shortly thereafter.



• The Respondent did not give the Applicant any opportunity to respond to the reasons for the termination or to discuss options for redeployment or alternatives to redundancy if it was in fact a redundancy.



• The Respondent had not raised any issues concerning unsatisfactory conduct or performance with the Applicant prior to the dismissal.



• The Respondent had been awarded the highest outcome (Grade A) in each of his six monthly performance appraisals during the period of his employment.



• The Respondent had received a number of bonus payments in recognition of his performance during the period of his employment. The most recent bonus payment was in October 2009.

[8] The Applicant holds a High National Diploma in Electrical and Electronic Engineering from Reading College of Higher Education in the UK. Prior to being employed by the Respondent he had extensive experience as a technician in telecommunications and then as a network systems and project engineer with telecommunications service providers.

[9] The Respondent is a subsidiary of ZTE Corporation which is listed on the Hong Kong Stock Exchange. ZTE Corporation is a telecommunication equipment manufacturer and solution provider engaged in research, development, manufacturing and sales of all types of telecommunications equipment including handsets and network equipment to telecommunication carriers and utility companies. ZTE Corporation employs more than 60,000 people of whom some 45 to 49 are employed by the Respondent in Australia.

[10] The threshold issue is whether or not the dismissal was a genuine redundancy. Section 385(d) of the Act provides that if I am satisfied that the dismissal is a genuine redundancy then it cannot be an unfair dismissal. Genuine redundancy is defined as follows by the Act:

“389 Meaning of genuine redundancy

(1) A persons 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.

(2) 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:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

The evidence concerning the nature of the Applicant’s duties

[11] The job description applicable to the Applicant’s job as a Project Manager 1 includes:

• Project schedule planning;



• Liaison with customers and internal development teams;



• Trouble shooting to ensure on time and on budget delivery;



• Allocating resources to achieve project schedules;



• Reporting on project performance;



• Maintaining and creating effective teams;



• Knowledge of products and solutions;



• Training others in a team.

[12] It was clear from the evidence of both the Respondent and the Applicant that notwithstanding the job description the Applicant had very limited budget authority and was not responsible for monitoring performance of the projects he was involved with against budget. It was also clear that his responsibilities for supervising other employees were restricted to coordinating the work of others in a small team when working outside the office during the implementation of particular projects. When working inside the office all staff in the team were under the direction of Mr Zhong. 2

[13] I am satisfied from the evidence that the Applicant’s primary role is properly described as being a combination of project management and technical support engineer. It was also clear from the evidence that the job of the Applicant was not generic project management. A project manager from a major retail employer for example could not have done the job of the Applicant. The Applicant’s job focused on the use of his specialist technical skill and knowledge in electronics and telecommunications network engineering to schedule and manage and assist in the implementation of projects for ZTE. There was dispute between the Applicant and the Respondent in the proceedings about the extent to which the Applicant provided customers of ZTE with technical advice and support. Having weighed up the evidence I am satisfied that technical advice and support was a significant part of the job of the Applicant and that irregularly, but on some important occasions, he was also directly involved in installation and commissioning work. It was not primarily a supervisory role. The use of technical skills, qualifications and experience to manage technical projects was the dominant part of the job. It was a much more important part of the job than people management or sales.

[14] The Applicant produced as evidence a large number of emails which he said supported his construction of the nature of his job. 3

[15] The Applicant said that he was referred to both internally and externally as holding the position of “Optical Engineer” and “Technical Services Manager” in addition to the title on his position description as a “Project Manager”. He produced an organisational chart which showed these titles against his name. Mr Zhong did not recall the use of these alternative titles but did accept that internally he may have been called a technical support manager. 4

[16] I accept the evidence of the Applicant that in managing a project he was required to make a significant input into the scheduling, design, installation and technical support for that project. He did not design the original systems - that was a job for ZTE research and development engineers. However, he did use his skills and knowledge to develop proposals as to how to fit the ZTE equipment to meet the requirements of a particular customer and to then design, schedule, install and provide technical support. The Applicant did not do all of this work himself. Which member of the team took a lead in respect to the various aspects of a project would vary. In some cases he did detailed design work and in other cases he did hands on installation. In a number of cases he was the principal point of contact for customers in respect of technical support. 5

[17] The evidence of Mr Zhong and the cross examination of the Applicant did not undermine these basic conclusions. On one point, the extent to which the Applicant was involved in proof of concept testing for Optus, there was some inconsistency in the evidence of the Applicant. However, Mr Zhong accepts that the Applicant scheduled and managed this work and assisted with the proof of concept testing. 6 I am satisfied that this required the exercise of technical and professional engineering skill and knowledge.

[18] Mr Zhong accepted that when the Applicant was engaged ZTE was looking for a project manager and a project engineer and that the Applicant did perform project engineering work and also used tools 7 and provided technical support to customers.8

[19] Mr Zhong gave evidence that confirmed the limited level of responsibility that the Applicant had for the management of other employees and also for budget management. 9

[20] In an email of 24 August 2009, concerning a meeting with Optus regarding a contract, Mr Zhong wrote to the Applicant “You just need to turn up and show them we have someone to manage technical support for the project”. 10 Mr Zhong wrote to another client, the NT Government, on 13 February 2010 that “Guy and I will go to install the equipments in NT. While Perry and Jason may visit there as well”.11 On 7 August the Applicant provided Mr Zhong with a detailed budget “for the travel to undertake the MPLS rollout for Amcom in Brisbane, Sydney and Adelaide” and requested approval for himself and Xiaosheng to undertake this travel. On the same day Mr Zhong directed approval for travel for the Applicant as follows “Can you please approve Xiaoxheng and Guy’s travel for installation and commissioning of the Amcom’s National MPLS network”.12 On 13 October 2008 Mr Zhong approved the Applicant’s travel for “2 days for installation and commissioning of the STM-4 upgrade”.13

[21] On 2 October 2008 Mr Zhong was considering how to organise a proposed contract to provide technical support and maintenance in respect to certain systems provided to Telstra. He noted that “we fly people to Perth for Amcom’s support and engineering services (installation, upgrade for new projects) pretty regularly”. He proposed that “we can rotate Guy, Perry and Ziozhen there (say one month at a time)...” 14

[22] In a number of other cases Mr Zhong includes the Applicant as a contact point for engineering or technical support in respect to ZTE equipment in communications with customers. For example, on 3 January 2008, Mr Zhong advised Amcom that the Applicant was the primary contact for technical support arrangements for the “DWDM &SDH related issues” and for the “DC power systems related issues” and that he was the backup support in respect to “Ethernet switches related issues” and “voice switch”. 15 There are also a number of emails where the Applicant reports on technical support work he has completed or is required to undertake. There are also some cases where the Applicant in emails reports that he is undertaking installation and or commissioning work.16

[23] On 25 November 2009 Mr Zhong directs the Applicant to “take a lead in the design process” for the network design for Railcorp. It is clear from the brief given by Railcorp that this is a highly technical process. 17 Mr Zhong gave evidence that other employees were available to do the actual design but the Applicant was required to take the lead in managing the process. Mr Zhong wrote a general email to staff in respect to the Railcorp project in October 2009 that “special thanks goes to Guy Lambert and Feifei Deng...for their outstanding contributions to the technical aspects of the project...”18

[24] Mr Zhong suggested under cross examination that some of these communications were written by Mr Zhong to make the customer feel comfortable and did not reflect reality. I did not find this evidence convincing. Mr Zhong also suggested that ZTE internal certification was needed to work with some of the equipment models and that the Applicant had such certification on some of the equipment but not on other models. 19 I did not find this evidence was consistent with what happened on the ground. Mr Zhong gave evidence that very few people had the internal certification for the ZTE models20 but he advised clients that the Applicant was the contact person for technical support on ZTE equipment for which the Applicant had not been internally certified.21

[25] I am satisfied that not having the particular firm specific training on a particular piece of equipment may limit the extent to which the Applicant could fully complete commissioning and post sales support work on that equipment by himself. However, I am satisfied that a person with the Applicant’s high levels of experience, qualifications and knowledge in the field would be able to be actively involved in all aspects of the pre and post sales and installation and commissioning process. The Applicant may have had to call upon support from a person with greater familiarity and training on the specific equipment from time to time. Having carefully considered the evidence I am satisfied that the Applicant was expected by the Respondent to be responsible to perform significant technical support work and this was a significant part of his job.

[26] Job titles do not necessarily give an accurate or consistent picture of the nature of an employee’s job. Some titles have a fairly consistent meaning (eg tradesperson, storesperson, shop assistant, driver) but others with the word management in the title are less likely to have a consistent meaning. Project manager is a job title which encompasses a wide range of meanings. In this case the Applicant was part of a small team of 7 or 8 people managed by Mr Zhong. The Applicant’s job involved a relatively low level of people management, decision making and budget authority. The Applicant’s job required the exercise of a high level of technical skill, knowledge and experience. To some extent the job involved direct technical advice to customers, trouble shooting and fault finding, installation and commissioning, and oversight of project implementation. However, even when the job was in developing and monitoring schedules and plans for projects and project proposals this involved the application of a high level of technical skill, knowledge and experience. The scheduling charts for the Amcom project which were produced by the Respondent as evidence of the nature of the Applicant’s job illustrate this point. 22

[27] The statements of the Applicant and of Mr Zhong and the submissions of both parties were particularly focused on the question of the extent of installation, commissioning and post sales technical support work undertaken by the Applicant. The evidence and submissions of the Applicant sought to maximise the extent of these elements of the job and the submissions and evidence of the Respondent sought to minimise the extent of these elements. I am satisfied that these elements were present to a greater extent than admitted by the Respondent but in some cases to a lesser extent than that suggested by the Applicant. However, I am satisfied that it is not necessary to establish that these elements were the predominant aspects of the job in order to establish that the Applicant’s job was covered by an Award or to establish that the Applicant could have been considered for redeployment to other jobs requiring the exercise of technical skills and knowledge.

[28] The Respondent was under a misapprehension that if it could show that hands on installation and commissioning work was peripheral to the Applicant’s duties then this would ensure that the Applicant’s work was not covered by an Award. I found the evidence of Mr Zhong unconvincing in that he appeared so desperate to prove this point that he discounted or denied what I was satisfied was clear evidence to the contrary. I have found earlier that the use of technical skills, knowledge and qualifications routinely occurs even where a technical or professional employee does not do hands on installation and commissioning. A job where the primary purpose is project management will usually be award covered provided there is a need to utilise technical or professional engineering skills, qualifications and experience in that work. A project management job which is primarily about people and budget management and which does not require significant use of technical or professional engineering skills, qualifications and experience is less likely to be award covered. I am satisfied that the Applicant’s job fits the first description not the second.

[29] Mr Zhong for the Respondent describes the work as follows:

“Engineering involves deployment of technology and devices to achieve a particular outcome. 'Pre-sale' engineering refers to a situation where a potential customer asks ZTE to help it achieve a certain objective within its business. ZTE, as part of the 'presale' engineering process will formulate a technological solution, involving the use of ZTE product. 'Post-sale' engineering involves implementing the product/solution. In practical terms, 'post-sale' engineering involves installing the ZTE product and the commissioning of it by configuring it to the network. 'Post-sale' engineering also involves providing ongoing support to the customer in its use of the technology and ZTE system.” 23

“While employed by ZTE, the Applicant was required to perform project management duties. From time-to-time, the Applicant performed technical duties.”

“When I use the term ‘project’, I refer to a situation where a third party has engaged ZTE to provide services and equipment to it. At ZTE, the project manager in the NS Team was required to schedule the timeline and resources to be used in the execution of a particular project. In addition to scheduling, the project manager was involved in the allocation of resources and 'tracking' the use of those resources. The project manager liaised with customers and internal divisions of ZTE for installation/technical functions. A project manager in the NS Team was required to allocate technicians to work in particular projects.

.....

Since 2007, the Applicant performed the following duties:

(a) project schedule planning and timetabling;

(b) liaising with customers and ZTE development teams, including technical support

engineers based in China, on project delivery schedules;

(c) resources planning, including overseeing the organisation of testing ZTE's

equipment and scheduling of work by technical support engineers;

(d) managing project delivery plans and allocating resources accordingly;

(e) reporting to me on project performance; and

(f) attending internal and external project meetings with clients.” 24

[30] I am satisfied that even if I accepted this evidence of Mr Zhong the work he describes is in the context of this case para-professional or professional engineering work which is generally award covered. In fact, for the reasons outlined earlier, I believe that Mr Zhong understates the elements of the Applicant’s job which utilised his technical skills, qualifications and experience.

[31] Jobs at the para-professional and professional level in the engineering field often combine management and technical skills and responsibility. These levels are clearly distinguishable from the trades or technician level particularly in the level of responsibility and autonomy. There is no requirement for the jobs at the para-professional and professional engineering level to be predominately hands on installation, commissioning, maintenance or fault finding work.

[32] The Applicant agreed that the relevant award was the Telecommunications Services Award 2010.

[33] The classification of Telecommunications Associate (Engineering) in the Telecommunications Services Award 2010 provides:

“Telecommunications Associate (Engineering)

Role definition

A Telecommunications Associate (Engineering) performs work involving the application of a significant range of fundamental principles and complex techniques across a wide and often unpredictable variety of contexts in relation to either varied or highly specific functions. Contribution to the development of a broad plan, budget or strategy is involved and accountability and responsibility for self and others in achieving the outcomes is involved.

An employee in this role is involved in:

• design, installation and management of telecommunications equipment and systems; and

• design, installation and management of data communications equipment.

This role includes assessing installation requirements, designing systems, planning and performing installations, testing installed equipment and fault finding. It involves a high degree of autonomy and may include some supervision of others.

Indicative tasks

The following tasks are indicative of those performed by an employee at this level:

• plan the development and growth of the telecommunications network;

• forecast service demand;

• prepare a project brief;

• develop project management plan;

• prepare a detailed design brief;

• undertake qualification testing of new or enhanced equipment and systems;

• undertake system administration;

• undertake network traffic management;

• co-ordinate fault rectification and restoration of service following network outages;

• ensure that network changes are implemented as planned with minimal impact to the customer;

• undertake network performance analysis;

• undertake management of the common channel signalling network;

• analyse and organise repair of the most complex telecommunications network faults;

• verify new software/hardware releases;

• monitor the capacity of, and recommend changes to, the mobile network;

• create code for applications; and

• prepare a detailed design for a communication network.

Qualifications

An employee who holds an Advanced Diploma in Telecommunications Engineering or equivalent would be classified at this level when employed to perform the functions in the role definition and taking into account the indicative tasks.

[34] I am satisfied that all the required elements of the role definition are present in the job of the Applicant. I do not read the definition as requiring that hands on installation must be involved but rather what is required is involvement in the installation process and utilisation of the technical skills and knowledge to achieve that outcome and or to support others in achieving that outcome.

[35] Clearly not every one of the indicative tasks is required to be performed by the Applicant. However, the Applicant is required to perform a number of the tasks. The Applicant’s evidence was that he performed regularly seven of these indicative tasks. 25 Mr Zhong disputed some of these tasks.26 I am satisfied that the truth of the matter is somewhere in between the two positions. However, even if I accepted Mr Zhong’s evidence the requirements of the classification definition would still be met.

[36] The Applicant’s qualification is at least equivalent to the Advanced Diploma in Telecommunications Engineering.

[37] The level of management tasks and responsibilities required of the Applicant are consistent with the level in this definition. For example, the management level of the Applicant’s job is fairly well described as “involves a high degree of autonomy and may include some supervision of others” and a “contribution to the development of a broad plan, budget or strategy is involved and accountability and responsibility for self and others in achieving the outcomes is involved.”

[38] The Applicant argued that if the Telecommunications Services Award 2010 did not apply then the Professional Employees Award 2010 was applicable.

[39] The classifications of professional information technology employee in the Professional Employees Award 2010 similarly combine the application of technical and professional skills and knowledge with management. An engineer who has significant management responsibilities is still covered by the Award so long as they are involved in the performance of professional engineering duties.

[40] Vice President Lawler has recently revisited the question of what are professional engineering duties and I agree with his analysis. 27 Professional engineering duties have been consistently defined in Awards since the making of the separate Professional Engineers Award in 1961. The definition was addressed by the High Court in its unanimous judgment which made the making of the 1961 Award possible. The High Court said that the task was to determine whether “the adequate discharge of some portion of the duties involved does or does not require the qualifications stated”.28 Vice President Lawler concludes that the qualification must relate to the duties in question and that engineers who advance their career and assume an increasing load of administrative duties remain covered if they still perform some engineering duties, the adequate discharge of which requires the relevant qualification.29 It is clear in this case that the qualifications of the Applicant were in the same field as his employment and the evidence is very strong that he was required to utilise the knowledge and skills obtained through those qualifications in carrying out his duties.

[41] The same conclusions apply to the para-professional or Engineering Associate occupations in the Manufacturing and Associated Industries and OccupationsAward 2010. In that Award an Engineering Associate is “a generic term which includes technical officers in a wide range of disciplines including laboratories and quality assurance, draughting officers, planners and other para-professionals”. The definitions at various classification levels include project management roles which include a high degree of autonomy and accountability and some supervision of others and responsibility for the development of plans including budget and strategy. However, the application of technical skills, knowledge and experience in this process is an essential characteristic and I am satisfied this requirement is satisfied in the circumstances of this case.

[42] I am satisfied that the occupation of the Applicant in carrying out the work required by the Respondent is properly described as either an engineering associate or professional information technology employee occupation and is comprehended by the classification structure of the three awards I have analysed above.

The Award coverage

[43] There may be an argument that some managers employed by firms which provide telecommunications services or incidental, ancillary or complementary services to the businesses who operate as telecommunications service carriers or who supply telecommunications services may be award free. However, in this case the Applicant was not primarily engaged to be responsible for managing the work of other employees of the Respondent or for managing the budget of the Respondent. 30 His focus was on managing particular projects.31 I am satisfied that project managers in this industry area who utilise technical or professional engineering skill, qualifications and knowledge in designing, scheduling and/or managing projects to upgrade, install or commission network equipment and systems are award covered.

[44] For reasons that I will outline below the relevant Award is either:

• The Telecommunications Services Award 2010 (MA 41) and the classification of Telecommunications Associate (Engineering) in that Award or



• The Professional Employees Award 2010 (MA 65) and the classifications of professional information technology employee in that Award or



• Manufacturing and Associated Industries and OccupationsAward 2010 (MA10) and the classifications of Engineering Associate or above in that Award.

[45] Vice President Lawler has recently accurately summarised the nature of Modern Awards:

“The modern awards made as a consequence of the award modernisation process under Part 10A of the Workplace Relations Act 1996 (WR Act)fall into three categories:

(a) awards that cover an industry or industries;

(b) awards that cover an occupation or occupations; and

(c) hybrid awards that have both an industry coverage and also an occupational coverage.” 32

[46] I conclude that:

• MA 41 applies unless the work of the respondent is excluded by virtue of the exclusion in Clause 4(f) or (g) of that Award.



• If MA 41 does not apply then MA 65 applies if the Applicant has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.



• MA 10 applies if neither MA 41 nor MA 65 applies.



• It should be noted that MA 41 operates as an industry award for the Telecommunications Services industry as defined in that Award.



• MA 65, The Professional Employees Award 2010, operates as an industry award for the information technology and telecommunications services industry (Clause 4.2 of the Award) and the telecommunications services industry in respect of that Award has a broader scope than the industry as defined in MA 41. MA 65 also operates as a broad occupational award for various professional occupations.



• MA 10 operates as an industry award in various industry sectors including wide areas of engineering, maintenance and installation and as an occupational award in respect of engineering associate occupations. 33

[47] The Telecommunications services industry is defined in the Telecommunications Services Award 2010 (MA 41). The relevant parts of that definition are found in Clauses 4.2, 4.3 and 4.5 as follows:

“4.2 For the purposes of this clause telecommunications services industry means any business:

(a) whose principal function is a telecommunications service carrier; or

(b) whose principal function is a carriage service provider or a content service provider; or

(c) whose principal function is the supply of telecommunications services including value added telecommunications services; or

(d) whose principal function is incidental, ancillary or complementary to the businesses referred to in clauses 4.2(a), (b), or (c); or

(e) which supplies labour to a business in the telecommunications services industry on a labour hire basis in respect of any such labour hire employees while engaged in the performance of work for a business in the telecommunications services industry.

4.3 Telecommunications service carrier means the holder of a carrier licence.”

4.5 Exclusions

This award does not cover:

(a) an employee excluded from award coverage by the Act;

(b) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

(c) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

(d) television stations and radio stations;

(e) employees of electrical contractors covered by the scope of the Electrical, Electronic and Communications Contracting Award 2010;

(f) a business whose principal function is the manufacture and supply of telecommunications equipment and lines whether or not such business also installs and monitors telecommunications equipment and lines; and

(g) a business whose principal function is the installation, service and/or maintenance of telecommunications equipment and lines, unless the business also operates that equipment and lines”.

[48] The Respondent provides telecommunications solutions to telecommunications service carriers and utility companies involving the use of ZTE products. This involves project development, design and management together with installation, commissioning and pre and post sales technical and other support. The Respondent is not a Telecommunications service carrier but its principal function is the supply of telecommunications services or incidental, ancillary or complementary services to the businesses who operate as telecommunications service carriers or who supply telecommunications services. The Respondent does not manufacture the equipment but the parent company ZTE Corporation does manufacture the equipment. There is an argument that it is excluded from the Telecommunications Service Award by virtue of Clause 4.5(f).

[49] It is arguable that the Respondent could be described as having a principal function as “the installation, service and or maintenance of telecommunications equipment and lines” and if this is correct it would be excluded from being covered from the Telecommunications Service Award by virtue of Clause 4.5(g).

[50] Were it not for the operation of Clause 4.5(f) and (g) I am satisfied that the Respondent would be covered by the Telecommunications Services Award 2010 (MA 41). The Respondent argued that it is excluded by virtue of Clauses 4.5(f) and (g). I am inclined to agree. There is however an argument that the principal function of ZTE in Australia is distinguishable from the manufacturing, supply, installation, service or maintenance of telecommunications equipment and lines in that it is focused on the design, development, installation, commissioning and maintenance of network systems.

[51] An examination of the history of the making of MA41 shows that it is intended to exclude:

• Electrical contractors who do a great deal of the installation, maintenance and commissioning work for telecommunications service providers as they are covered by the Electrical, Electronics and Communications Contracting Award 2010.



• Firms like Alcatel, Siemens and NEC who develop and design solutions for telecommunications service providers utilising the equipment that they or their parent company manufacture and then install and maintain that equipment. These firms and their work are covered by MA10 or MA65. There is a long history of these firms being covered by the predecessor Awards of MA10 and MA65. There is in my view a strong similarity between the nature of the work performed by companies like Alcatel, Siemens and NEC in Australia and the nature of the work performed by ZTE. These companies are all multinational manufacturers of telecommunications equipment whose Australian entities provide integrated design, installation, and service solutions utilising their manufactured products to those who operate telecommunications services.

[52] This reinforces my conclusion that if the Respondent and the relevant work are not covered by MA41 then they are covered by either MA10 or MA65. I think it likely that MA41 does not apply.

[53] The Professional Employees Award 2010 (MA 65) Clause 4.2 provides that:

“This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.”

[54] In Clause 3.3 of the Professional Employees Award 2010 (MA65) the information technology industry is defined as:

“(a) the design and manufacture of computers and computer peripherals;

(b) the design and manufacture of telecommunications equipment;

(c) the design and manufacture of computer software;

(d) computer system installation, repair and maintenance;

(e) computer consultancy services;

(f) computer programming;

(g) system analysis services;

(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or

(i) activities which are incidental, ancillary or complementary to the activities set out in this definition.”

[55] The Telecommunications Services Industry and telecommunications service are defined in MA 65 Clause 3.3 as:

“telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both

telecommunications services industry means:

the supply and/or installation and/or maintenance of telecommunications services; or

the supply and/or installation and/or maintenance of value added telecommunications services; or

incidental, ancillary or complementary to the supply and/or installation and/or maintenance of telecommunications services; or

the installation and/or maintenance of telecommunications equipment and line.”

[56] Workers who are covered by the Professional Employees Award 2010 in this field are defined in Clause 3.3 as follows:

“Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:

that they have graduated with a university degree, with a science or information technology major (three, four or five year course) and had four years’ experience on professional information technology duties since graduating; or

that they, not having so graduated, have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society plus a further four years’ experience on professional information technology duties.

Graduate information technology employee means a person who:

holds a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

Professional information technology duties means duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires a person to:

hold a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term Professional information technology employee will embrace and include Graduate information technology employee and Experienced information technology employee as defined.”

[57] Schedule B of the Award includes a number of classifications for Professional Information Technology Employees. A prerequisite for such an employee is that the person has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society and that they are engaged at least in part to perform duties which require such qualifications and experience.

[58] It is clear that the work of the Respondent falls within the scope of the telecommunications service industry and the information technology industry as defined in the Professional Employees Award.

[59] The work of the Applicant clearly falls within the coverage of the Professional Employees Award and professional information technology employee in particular provided that the Applicant has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

[60] As I set out earlier there was significant difference between the evidence of the Applicant and the evidence of the Respondent as to the extent to which the Applicant was required to perform technical or professional engineering work which required the use of his qualifications and experience. However, there was no dispute that the Applicant was required to perform or assist in the performance of installation work and the provision of technical support and advice utilising his information technology and telecommunications technology qualifications. There is no doubt that the primary functions of the Applicant, project management and technical support management, required the Applicant to regularly use his technical qualifications and experience. The field in which his qualifications are focused is the field in which he was working for the respondent. The level of technical knowledge and experience utilised in his work for the respondent was sufficient to be able to say that at least some portion of the duties require the use of the qualifications which he holds. This is essentially the test required under the Professional Employees Award. 34

[61] The Applicant is a member of the Institute of Electrical and Electronics Engineers. Membership of this international body requires similar qualifications and experience to the requirements for professional status under the Professional Employees Award.

[62] In the statement provided in the proceedings the Applicant said “My qualifications include a High National Diploma in Electronic and Electrical Engineering from Reading College of Higher Education in the UK, completed in the mid 1980s. Prior to this I obtained an Ordinary National Diploma in Electrical and Electrical Engineering.” 35 This was not disputed and I accept this evidence.

[63] The Applicant on the CV he provided at the time he applied for work with the Respondent cited his qualifications as including a “Bachelor of Science in Electronic and Electrical Engineering (UK)” and an “Ordinary National Diploma in Electrical and Electronic Engineering.” 36

[64] The Respondent made much of this inconsistency and suggested that the evidence of the Applicant should be discounted because he had lied in the CV provided to the Respondent when he applied for the job. The Applicant said that he had used the term Bachelor of Science in Electronic and Electrical Engineering (UK) because many in Australia did not understand the British system and that a High National Diploma in Electronic and Electrical Engineering was regarded as equivalent to the Bachelor of Science in Electronic and Electrical Engineering. I am satisfied with the explanation of the Applicant.

[65] I accept his evidence that at the time he completed his qualification many in the UK accepted general equivalence between some High National Diplomas and some three year degrees in engineering. It is a fact that the equivalence might be disputed and the Respondent produced evidence that today in the UK the High National Diploma is recognised as being a level below the Bachelor Degree. Higher education qualifications are now generally distinguished from para-professional qualifications. However, this was not always the case. Even in Australia engineering diploma level qualifications from institutions such as RMIT and NSWIT were previously recognised as meeting the requirements for the professional engineering level. This was made clear by the Tribunal in making the original Professional Engineers Award in 1961.

[66] I accept that the Applicant was putting the best spin on his qualifications as part of seeking a job. I regard the way this was done as inappropriate and I accept that the Respondent is right to find this inappropriate. However, I do not believe this was an act of deliberate deceit which puts a cloud over the rest of the Applicant’s evidence.

[67] I consider that it quite possible that the Applicant has “sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society” and is therefore covered by the Professional Employees Award. However, there was insufficient evidence provided in these proceedings for me to make a definitive finding in respect of this matter.

[68] The industry coverage of the Manufacturing and Associated Industries and Occupations Award 2010 (MA10) includes at Clause 4.9(a)(iv) mechanical and electrical engineering. The occupational coverage of the Manufacturing and Associated Industries and Occupations Award 2010 (MA10) includes at Clause 4.9(c)(ii) technical workers. The occupational coverage of the Award does not extend to an employer who is outside the scope of the industry coverage of the Award if the employer is covered by another Modern Award containing a classification which is more appropriate to the work performed by the employee. If the work of the Respondent in Australia does not fall within the industry scope of The Telecommunications Services Award 2010 (MA 41) for the reasons outlined earlier then I am satisfied that the work does fall within the mechanical and electrical engineering industries more generally and hence within the scope of MA10. If however this is not the case then it will certainly fall within the occupational coverage given that the work of the Respondent does not fall within the industry coverage of another Award. For the reasons set out earlier when I analysed the nature of the Applicant’s job, the work of the Applicant falls clearly within the scope of the classification structure and of an engineering associate in particular if he does not meet the requirements for professional classification under MA 65.

[69] For the reasons set out above, the evidence presented to me was insufficient for me to make a definitive finding as to which of the three Awards is applicable. My conclusion is that it is likely the exclusions mean that MA41 does not apply to the Respondent. Given the lack of definitive evidence concerning the eligibility of the Applicant for admission to the Australian Computer Society, the most likely Award is therefore the Manufacturing and Associated Industries and OccupationsAward 2010 (MA10). However, the evidence is sufficient for me to find that one of the three Awards does apply to the work of the Applicant for the Respondent.

Consultation Requirements - Section 389(1)(b)

[70] It is not necessary for me to make a finding concerning the particular Award since each of the three relevant Awards does contain a consultation clause in similar terms to the following:

“Consultation regarding major workplace change

9.1 Employer to notify

(a) Where an employer has made a definite decision to introduce major changes in production, program, organization, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

9.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1.

(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[71] The Respondent argued that the redundancy of the Applicant did not constitute a major change which triggered the award consultation obligation. They argued this on two grounds firstly that the change was not a major change and secondly that the significant effect was only on a single employee and not on employees as specified in the Award clause. In support of their position the Respondent referred to the decision of Justice Von Doussa in Lane and Ors v Arrowcrest Group Ltd. 37

[72] In the Lane case his Honour was required to determine whether or not there had been a breach of the Award consultation clause. One of the Award clauses in contention was in similar terms to the clause I have to consider. In the Lane case the two employees were engaged as casual employees for a period of less than six months in one case and six weeks in the other. It was by no means clear that it was a redundancy situation. Furthermore there was a customary fluctuation in the work and labour required for that work. “Mr Edge’s evidence strongly suggests that the economic downturn which led to the dismissal of Mr Argirov and Mr Koehn had produced a fluctuation of the kind normally to be expected in production in the OE machine shop”. 38 The circumstances of the Lane case are clearly distinguishable from the present case. In this case there is no customary fluctuation of work and we are not dealing with short term casual employees.

[73] In the circumstances of this particular case I am satisfied that a decision to make redundant a senior full time employee who had been engaged for more than three years in a firm of less than 50 employees and in a work group or department of 7 employees constitutes a major change within the meaning of the Award clause. Furthermore, that change, namely termination of employment, is defined in the Award clause as a significant change. The termination of one employee clearly will normally have an effect on other employees. I am satisfied that the work of remaining employees, including Mr Erickson, on projects such as the Railcorp project have been effected. Even if this were not the case I do not accept that the requirement in the Award clause to “discuss with the employees effected” means that the clause is only activated when there is an effect on more than one employee. The clause makes sense even if the number of employees effected is one.

[74] I am therefore satisfied that there is an Award obligation and Section 389(1)(b) is activated.

[75] The Respondent had an obligation under a Modern Award that applied to the employment to consult about redundancy. For the dismissal to be a genuine redundancy Section 389(1)(b) requires that the employer has complied with such an obligation. In this case there is no dispute that the employer did not in any way consult with the Applicant prior to the dismissal and therefore did not comply with the Award obligation.

The evidence relating to redundancy- Section 389(1)(a)

[76] The letter of 20 May 2010 dismissing the Applicant 39 was handed to the Applicant by Mr Zhong during the meeting when he was dismissed. There was no other communication concerning the dismissal or potential dismissal prior to the meeting of 20 May 2010. The letter signed by Mr Zhong of 20 May 2010 makes no mention of redundancy or shortage of work or changed operational requirements as the reason for dismissal. Apart from giving details of the final payments it simply states that “We regret to inform that your employment with ZTE (Australia) Pty Ltd ends from today....It was a difficult decision by the management team. We sincerely wish you well.”40 The final payments are identified as being outstanding salary to 20 May 2010, outstanding annual leave and compensation (1 month). The taxation to be deducted from the one month compensation is set out and it is at the normal tax rate (31.5% of the total) and not at the discounted rate for an eligible termination payment.

[77] The Applicant says that no mention was made of redundancy or shortage of work during the meeting on 20 May whilst Mr Zhong, the only other person present, says that he told the Applicant that it was a redundancy. Generally I found Mr Zhong to be an evasive witness. He dismissed, undermined or distorted any evidence which might be seen to favour the Applicant. I found the evidence of the Applicant as to what happened in the meeting of 20 May 2010 more believable than the evidence of Mr Zhong.

[78] The final pay slip provided to the Applicant following the dismissal makes no mention of redundancy or redundancy payment. It does include payments described as “unused annual leave” ($8825.97) and an amount ($7809.00) equivalent to one month’s base salary described as “other income”. Under the heading of “type of payment” the pay slip identifies this later payment as “wages”. Other payments are indentified as tax, entitlements and superannuation expenses. I conclude that if the payment was a redundancy payment it would have been identified as such. 41

[79] The Employment Separation Certificate provided by the Respondent to the Applicant dated 11 June 2010 gives “unsuitability for this type of work” as the reason for the separation. The Form provides other options including redundancy, misconduct, shortage of work and unsatisfactory work performance but these options are not ticked on the form. This form also indicates that one month’s base salary ($7809.00) has been paid “in lieu of notice.” No amount is listed under the heading redundancy. This form was completed more than a week after the unfair dismissal application was made. 42

[80] Mr Zhong for the Respondent gave evidence that the Separation Certificate is in error and that Ms Ng who signed the certificate had not spoken to him about the reason for the termination prior to completing the certificate. However, I am satisfied that the certificate is clearly signed with the authority of the Respondent. In fact Mr Zhong in cross examination admitted that he had spoken to Ms Ng and asked her to do the calculations for the preparation of the termination letter presented to the Applicant at the meeting of 20 May 2010. 43 I am satisfied that Mr Zhong did discuss the reasons for the dismissal with Ms Ng. Mr Zhong would have known that Ms Ng would have needed some basic information in order to complete the information for the dismissal letter properly and would have provided her with information. I am satisfied that Mr Zhong did not tell Ms Ng that the Applicant was being made redundant. The most likely reason for this is that it was not a redundancy.

[81] On 14 July 2010 the Respondent signed a group certificate which was subsequently issued to the Applicant. 44 This shows two lump sum payments. The amount of $7809 and the amount of $8825. This first amount is the amount shown on earlier documents as one month’s salary in lieu of notice and the later amount is the amount shown on the earlier documents as accumulated annual leave. The type of payment box is shown as “R” which the Respondent says means “redundancy” and this is placed against the annual leave amount or $8825. This does not support the Respondent’s contention that the amount of $7809 was paid as a redundancy payment. This form was completed after the employer had submitted its response to the unfair dismissal claim on the 28 June 2010. In that response the employer indicated that the reason for dismissal was “genuine redundancy”. I do not believe that the statement on the group certificate that $8825 was paid as redundancy payment is correct.

[82] The sequence of events leads me to believe that the redundancy reason was constructed some time after the dismissal and this puts it’s genuineness in serious doubt.

[83] The Employment Contract of the Applicant 45 provides for one month’s notice of termination or payment in lieu (Clause 12.1). This applies in cases of unsatisfactory performance and also in cases where “the Employee’s position ceases to exist or is significantly changed” (Clause 12.2) The Employment Contract also provides (Clause 12.4) that “Where the Employer declares the Employee to be redundant, the Employer shall give the Employee one month’s notice, or payment in lieu thereof. The parties agree that no other compensation will be payable in the event of redundancy.” However, the contract provides that where the employment transmits in a transmission of business “there shall be no obligation upon the Employer to make any redundancy payment to the Employee or to give the Employee notice or payment in lieu of notice” (Clause 12.5). This suggests to me that the redundancy payment and the notice payment are two separate entitlements which might arise in the case of a redundancy but they do not apply when there is a transmission of business and employment. I am satisfied that a reasonable reading of the Contract is that the provision of one month’s redundancy compensation is additional to the provision of one month’s notice of termination of the contract of employment. There was no notice of termination given and only one month’s notice payment in total.

[84] Under the National Employment Standards the Applicant is entitled to 3 weeks notice and to 7 weeks redundancy pay; a total of 10 weeks pay. He received 4 weeks pay in total.

[85] The evidence suggests to me that the Respondent did not tell the Applicant that the reason for dismissal was genuine redundancy and that in fact the redundancy reason was first put forward as part of a response to the unfair dismissal application of the Applicant.

The nature of the change in operational requirements of the business.

[86] The Applicant gave evidence that there was plenty of work and that the period in the early part of 2010 was particularly busy. The Applicant had three weeks leave around Easter 2010. He returned to work around 10 April 2010 and was dismissed on 20 May 2010. The Applicant noted that Mr Rentsch had been made redundant on 23 April 2010 and he says that he was assured by the CEO that there was plenty of work for him to do and that the redundancy of Mr Rentsch was purely related to the NBN Project tender being unsuccessful. The Respondent also engaged an additional support engineer and advertised for that position on 19 April 2010. The Respondent engaged a number of new engineering staff during March 2010 and further new engineering staff following the dismissal of the Applicant. This is acknowledged by the Respondent. However, there is dispute between the Applicant and the Respondent as to whether these positions are ones that could have been filled by the Applicant. The engagement of new engineering staff does to some extent undermine the contentions of the Respondent concerning shortage of work.

[87] The Respondent gave evidence that there was little work between March and May 2010 to occupy the Applicant. There is no suggestion of shortage of work prior to that time. Given the Applicant was on leave until 10 April there were effectively only six weeks during which there was an alleged shortage of work. 46 The Respondent gave evidence that there were only 72 emails sent by the Applicant during this period. In the absence of more information about how many emails the Applicant was normally required to send and the particular sort of work he was engaged in at that time compared to other times I do not see this as strong evidence of lack of work.

[88] The Respondent gave evidence that during April and May there were several tenders which were unsuccessful. Two employees who were directly employed on the unsuccessful NBN Project tender were made redundant. These redundancies occurred about one month before the dismissal of the Applicant. There is no suggestion that the Applicant was involved in the NBN project tender. I suspect that if the shortage of work for the Applicant related to the failure of the NBN tender then the Applicant would have been made redundant at the same time as the other two employees. The Respondent says that it came to the opinion in May 2010 that there was no real continuing work opportunities for the Applicant in the ZTE business due to the failure to win new projects to occupy the Applicant in his project manager role. There have been no other redundancies and a number of new employees have been engaged in the period prior to the dismissal of the Applicant and subsequent to the dismissal.

[89] The job title formerly occupied by the Applicant no longer exists. The Respondent did provide some evidence of contracts for which the Respondent submitted tenders but where the Respondent was unsuccessful. The Respondent did provide evidence that the Applicant sent 72 emails in the final six weeks of his employment. I am not satisfied that these three pieces of evidence are sufficient in themselves to establish that the job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s business. The fact that there have been no other redundancies and that there have been new technical employees engaged weakens the case for shortage of work.

[90] A Full Bench of Fair Work Australia has recently reaffirmed the principles to be followed in assessing whether or not the employer “…no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.” 47 There are many decisions which establish that this test can be met when job functions are retained but are redistributed and restructured.

[91] Mr Zhong gave evidence that:

“From March 2007, the Applicant was employed by ZTE in the NS Team. Including myself, the NS Team comprised eight positions. The other seven positions were:

a) the Applicant as Project Manager;

b) a pre-sales support engineer;

c) three post-sale support engineers; and

d) two general sales employees.

Since the termination of the Applicant’s employment, the NS Team now comprises seven positions including myself. There are two pre-sales support engineers, three post-sales support engineers and one Senior System Engineer, who performs both pre-sales and post-sales engineering”. 48

[92] This must be accepted as some evidence in support of the contention that there has been a restructuring which has resulted in a situation where the employer no longer requires the Applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. However, the only change in the operational requirements affecting the Applicant’s job put forward in the evidence of the Respondent was the argument concerning a down turn or shortage of work for the Applicant. It is possible that the change in the structure of the NS team has been implemented after the termination of the Applicant as a response to the NBN related redundancies and to the dismissal of the Applicant. In other words the Applicant’s job was not removed due to changes to operational requirements but rather it was removed in response to his dismissal and also to the separate NBN related redundancies. It is also unclear to what extent the change in job titles actually reflects a change in the work required.

[93] In March or April 2010 ZTE engaged Mr Rolf Erickson as a Senior Systems Engineer in the same team as the Applicant. This was a new role. An examination of the background of Mr Erickson 49 shows that he had paraprofessional project and technical experience not greatly dissimilar to that of the Applicant. However, the particular types of equipment on which Mr Erickson and the Applicant may have had training and experience clearly differed. At the time of the engagement both the Applicant and Mr Erickson were heavily involved in the network deployment of the RailCorp Project. Mr Zhong gave evidence that the role of Mr Erickson involved a higher level of responsibility and remuneration than that of the Applicant. The Applicant gave evidence that Mr Erickson took over the key roles he had been performing on the RailCorp project.50 Mr Zhong gave evidence that Mr Erickson’s role was different to that of the Applicant.51 In addition Ms Cindy Gu was employed in March 2010 and she was also working on the RailCorp project.52 Mr Zhou says that Ms Gu was employed to deal with Wireless Technology in which the Applicant was not experienced. After weighing up the evidence it is in my view possible that the dismissal of the Applicant was at least in part due to the decision to appoint Mr Erickson and to utilise him instead of the Applicant to perform work which might otherwise have been performed by the Applicant.

[94] I conclude that:

• There is some evidence in support of the contention of down turn or shortage of work but I was not satisfied that there was sufficient evidence to support a conclusion that a shortage of work led to the dismissal of the Applicant.



• There is some evidence of an organisational restructure and that the Applicant’s position no longer exists as a result of that restructure but I am not satisfied that this is because of changes in the operational requirements of the enterprise. Other than claimed shortage of work for the Applicant the Respondent did not produce any clear evidence of how changes in operational requirements led to the position no longer being required.



• The Respondent did not advise the Applicant that his position was redundant and the redundancy reason was only raised well after the time the unfair dismissal case was initiated. This creates doubts concerning whether or not the redundancy was genuine.

[95] On balance I am not satisfied that there was a genuine redundancy in the sense required by Section 389(1)(a) of the Act. However, even if I am wrong about this I have concluded that the condition required by Section 389(1)(b) of the Act was not met and hence it cannot be regarded as a genuine redundancy for the purposes of excluding the Applicant from unfair dismissal protection.

Redeployment

[96] The job performed by the Applicant involved a combination of generalist project and people management (scheduling, critical paths, liaison with suppliers and customers etc); industry and technology specific project and people management - that is the capacity to know what are the likely critical steps in a project because of technical knowledge and actual experience in installation and commissioning; technical support and advice pre and post sales; support, advice and supervision of installation and commissioning work; and actual installation and/or commissioning and/or modification work. The Respondent sought to emphasise the generalist project management tasks but there was sufficient evidence to show that this was not a complete picture. An examination of the CV of the Applicant shows the central role of technical expertise in his previous project management work. The Respondent has clearly satisfied itself of the accuracy of the CV except for one point around the qualifications of the Applicant which was the subject of some controversy in proceedings. The Applicant is an experienced network engineer. A network engineer is not simply some generalist project manager - a network engineer utilises their high level technical and engineering skills, experience and knowledge even if they never pick up a screwdriver or program a controller.

[97] Mr Zhong provided evidence in respect of each of the four positions filled since the Applicant was terminated. He also provided evidence in respect to three vacancies which existed at the time the Applicant was made redundant. 53 The Respondent sought to differentiate between the job of the Applicant and the various other network engineering jobs including the newly created jobs. I accept that there are differences between the various jobs. I accept that there may have been some technical tasks for which the Applicant might have required some technical back up or advice, or familiarisation or some further training. However, given the breadth and depth of the technical and project management experience, skills and qualifications of the Applicant I am satisfied that he could have adapted to the changing needs of the business and a new job role.

[98] In my view the skills and experience of the Applicant are quite broad and at quite a high level. In these circumstances it is clear that he could adapt to a range of different job roles within the general fields of telecommunications engineering and project management. It is true that there may be particular specialist aspects of a given job role which the Applicant may not be able to perform. However, the Respondent clearly has access to a number of specialists who could fill these gaps. Furthermore, the generic skills, training and experience possessed by the Applicant means that he is capable of quickly learning the requirements of particular new products and applications given appropriate training. There was evidence in the proceedings that it was not unusual for employees to lack training on a particular product and for training in that product to be provided. This was understandable given that a multi-national company like ZTE operating in a rapidly developing field is bringing new products and solutions on to the market at regular intervals. Very few employees will have complete competence and understanding in these new products without some training and support.

[99] The evidence of the Applicant and the Respondent were quite conflicting on the issue of whether or not redeployment was an option. The evidence was insufficient to be able to make a definitive judgment about all of the alternative job options.

[100] On balance I am satisfied that Mr Zhong did not actively consider redeployment prior to the termination. In his original statement in response to the statement of the Applicant Mr Zhong does explain why he believes that there were no suitable redeployment options but I do not regard this as convincing evidence that he actively carried out this analysis prior to deciding to dismiss the Applicant. I found his evidence on this matter under examination and cross examination that suggested prior active consideration unconvincing. Given all the circumstances I believe that the consideration only occurred after the dismissal and as part of the preparation for the unfair dismissal case.

[101] The Applicant gave evidence as to why he would have been able to perform the alternative roles. Mr Zhong gave evidence that:

• The Support Engineer role was unsuitable for the Applicant because it required wireless technology specialisation which Mr Lambert did not have and because it paid less than the Applicant’s position.



• The Senior Solutions Manager role was unsuitable because it required sales and technical expertise which Mr Lambert did not have



• The IP Support Engineer in Perth was unsuitable because it required three months CCIE training in internet protocols and also the liaison work with China made Mandarin speaking desirable



• The Technical Writer position was unsuitable because it required technical writing skills and Mr Zhong did not believe that Mr Lambert’s technical writing was good enough based upon work Mr Lambert had produced earlier.

[102] I tend to accept the evidence of Mr Zhong that the Applicant was unsuitable to be redeployed to another position that of the Wireless Terminal Sales based in New Zealand. If Mr Zhong is correct that Mandarin is a requirement for the IP Support Engineering position in Perth then clearly the Applicant could not be redeployed to that position. There was insufficient information for me to determine if the Applicant could have been redeployed to the position of Senior Solutions Manager. However, redeployment to the positions of Account Director in Sydney, Support Engineer in Sydney, or Technical Writer may have been possible. Even though some of these jobs were at lower pay levels the Applicant has given evidence that he would have accepted those jobs. I am more inclined to accept this in circumstances where there is no evidence that the employer actually offered redeployment and where I am not satisfied that Mr Zhong seriously considered redeployment prior to the dismissal.

[103] The Technical Writer job involved writing skills. Mr Zhong gave evidence that he had found that the Applicant did not have good enough writing skills. 54 I am not convinced by this evidence given the excellent and consistent performance ratings that the Respondent gave the Applicant throughout the period of employment and also because there is no suggestion that this concern was ever raised with the Applicant. It was not contested that the Applicant had been required to perform the technical writing job on a number of occasions in preparation of tender and other proposals.55

[104] The Support Engineer position was filled after the dismissal of the Applicant by Mr Kathak. Mr Zhong conceded that eventhough the position was advertised at a lower pay rate than applied to the Applicant Mr Kathak was in fact being paid at the same level as the Applicant. An examination of the job requirements set out in the advertisement for the position suggests that the Applicant could perform the work. This was considered in some detail in cross examination of Mr Zhong. 56 Having weighed up the conflicting evidence in respect to this matter I am satisfied that this is a job which could have been performed by the Applicant.

[105] I am satisfied that the Applicant could have been redeployed to at least one of the other jobs which were available or known to be about to become available. I am satisfied that Section 389(2) applies and that “…it would have been reasonable in all of the circumstances for the person to be redeployed” within the employer’s enterprise. Given the technical nature of the jobs concerned and the nature of the evidence provided by the parties I am not in a position to be certain about the particular alternative jobs which would have been suitable for redeployment. However, the range of options is sufficient to satisfy me that if the Respondent had wished to redeploy the Applicant an appropriate role for the Applicant could have been found given his skills, qualifications and experience.

[106] The dismissal was not a genuine redundancy within the meaning of Section 389.

Was the dismissal harsh, unjust or unfair.

[107] The Respondent accepted that no issues concerning unsatisfactory conduct or performance had been raised with the Applicant prior to the dismissal.

[108] There was nothing significant raised by the Respondent that suggested conduct or performance which might justify dismissal except for the matters which came to light when the Respondent examined the hard drive of the Applicant’s laptop following the dismissal.

[109] In the material produced by the Respondent prior to the hearing on 6 September 2010, the Respondent raised the issue that the Applicant had deleted emails from the ZTE server and that this was improper and constituted a valid reason for dismissal. During subsequent proceedings the issue of deletion of emails from the laptop was also raised. The Applicant produced an email from the Chief Executive, Bill Xiang that advised all employees that “for network efficiency and email security we would like to introduce the following Email policies”. These policies included “please delete all emails from the server each day and remember to empty trash box on Server”. 57 Of course a policy to delete from the server is not the same thing as deleting them from the personal laptop. The Applicant gave evidence that he routinely deleted emails and that he did not have any opportunity to do anything with his laptop after he was advised of his termination. The Respondent did not produce any evidence to contradict this. I am not satisfied that there is any evidence of improper actions by the Applicant in respect to emails deleted from the ZTE server or from his laptop.

[110] On 6 September 2010 the hearing was delayed because the parties sought to introduce new material which had not been exchanged in accordance with the Directions issued. The new material the Respondent sought to introduce 58 consisted of 9 images and some transcript of chat room conversations the Respondent said it had recovered from the Applicant’s laptop. The Respondent said that the security systems in place on the laptop had made recovery of material difficult. In the end I admitted the material into the proceedings. There was no suggestion that there was further material to be produced nor any application for further time to recover further material.

[111] Partly due to the delayed start to the proceedings on 6 September 2010 the matter did not finish as expected on that day. However, the Applicant had concluded his case and the evidence of the Respondent was also largely complete. The majority of the cross examination of the only witness for the Respondent, Mr Zhong, had been conducted. I proposed to relist the matter at the first available date which was 13 September 2010. This was not suitable to the parties so the matter was relisted by agreement on 16 September 2010. The Applicant’s representative subsequently advised us of some difficulties and the parties then agreed to an adjournment until 29 September 2010. On 23 September 2010 the Respondent sent further chat room transcripts recovered from the Applicant’s laptop to the Applicant’s representatives. When we reconvened on the 29 September 2010 the Applicant opposed the admission of the new material. The Respondent sought to have the new material admitted and also sought to recall the Applicant as a witness so that he could be questioned about the material.

[112] The Respondent said that the new chat room transcripts demonstrated:

• Contrary to the evidence of the Applicant, the Applicant had engaged in chat room conversations whilst at work and at times when he should have been working



• The conversations conducted both at work and not at work which were found on the laptop contained comments of a sexualised nature which was inappropriate



• The conversations contained material which showed that the Applicant did not like his job and contained material critical of the employer

[113] The Applicant strenuously opposed the admission of the new material and the recall of the Applicant. I do not intend to summarise here the submissions made by the Applicant and the Respondent concerning the admission of these new materials. I considered the submissions and determined not to admit the material. The material was not material which arose in response to the evidence submitted by the Applicant. The Directions in these proceedings required the Respondent to provide the evidence on which they rely prior to the proceedings. The Respondent did provide that material on 3 September 2010. The Respondent had a period of three months to discover the evidence. The Respondent did not start trying to recover material from the laptop until after August 31. I am satisfied that the Respondent had sufficient opportunity to recover and produce the material by 6 September 2010 notwithstanding the technical difficulties. The objects of the Part 3-2 of the Act require that the procedures for dealing with unfair dismissal applications be “quick, flexible and informal”. To admit the material would have meant that the proceedings could not have concluded on 29 September 2010 and would have meant further delays and costs to the parties. To require the recall of the Applicant and the admission of new material this late in the proceedings would also in my view have been unfair. There will be situations where the circumstances and the exceptional nature of the evidence mean that it is not unfair to admit subsequently discovered evidence in circumstances like this. However, I believed it would be unfair and inappropriate in this case.

[114] In making the decision to refuse to allow the new material I had regard to the nature of that material. The material did not in any way relate to the issue of whether or not there was a genuine redundancy which is the main issue in contention in these proceedings. The material could not influence the question of the nature of any consultation requirement. The Respondent argued that the material might be a circumstance that should be taken into consideration in determining whether or not it was reasonable to redeploy the Applicant. However, I doubt that it would be appropriate to determine that redeployment is not reasonable because of this sort of subsequently discovered material. The reasonableness of redeployment is primarily about the facts relating to available jobs and the skills of the applicant.

[115] There is chat room material already in evidence that goes to all the main issues that the Respondent says the new material goes to. Therefore the material already in evidence may be a consideration in respect to whether or not there was a valid reason for termination and also the length of likely employment in the event that termination had not occurred which is a relevant consideration in respect to remedy. I believe these are the two main issues to which material of this sort discovered after dismissal may have relevance.

[116] The laptop was issued to the Applicant and he was able to take it home and there was inadequate evidence that the Applicant was aware of any particular policy restrictions on its use. Mr Zhong gave evidence that a policy was available on the company intranet but the Applicant denied being aware of any policy document. Nevertheless I am satisfied that the Applicant understood or should have understood that it is inappropriate to use work laptop or email or internet facilities to send offensive material and also that care must be taken to limit the extent to which work laptop or email or internet facilities are used for personal purposes during work time. In my view “the employer’s right to exercise control over its own information technology systems is undoubted”. For this reason, and others, the use of the company email and internet systems to download or send sexually-related or pornographic images is a serious matter. In the case of Wake v Queensland Rail the Full Bench 59 found that it was not necessary for there to be “breaches of policy involving large amounts of hard core pornography” for termination of employment to be justified.60 The present case is distinguishable from the Wake case in that:

• the material was on a laptop which was able to be used at work and at home;



• there was no suggestion that there was any policy which restricted private use of the laptop;



• the evidence was not conclusive about the existence of a clearly advertised and understood policy on internet use at work;



• the material was not on the company email or internet server.

[117] I now consider the relevance of the images and chat room transcripts 61 which were admitted into evidence to the question of whether or not there was a valid reason for dismissal.

[118] The Respondent gave evidence that 9 images were found on the Applicant’s laptop. 62 The images are not of a category that would be subject to any censorship classification or restrictions on their publication. They are of type that could be commonly seen in advertising and generally available publications. There might be some concern if these images had been found on the server at work or if they had been sent to someone else by the Applicant or if there was some evidence that they had been downloaded during times when the Applicant should have been working. There was no such evidence. The Applicant gave evidence that other employees used his laptop and he denied downloading the images or ever having seen the images before.63 I am satisfied that it is likely that Applicant did download the images despite his denial. However, I am not satisfied that the evidence concerning the images even if they had been discovered prior to the dismissal would be sufficient to create a finding of misconduct.

[119] The Respondent gave evidence that the Applicant had participated in chat room conversations on the laptop issued to him by the Respondent. 64 The Applicant does not deny he participated in these conversations however he asserted that the conversations took place when he was not at work. Some of the content of these chat room conversations is about sexual activity. I do not consider the fact that a person engaged in this sort of conversation outside of work as a matter which would constitute misconduct even if it was using a work laptop provided that there was no policy which limited private use of the work laptop. However, it would be clearly inappropriate to engage in this sort of conversation during work time using a company supplied laptop and internet connection. However, it would not provide a valid reason for dismissal without prior warning.

[120] I was not convinced by two aspects of the evidence of the Applicant in respect to the chat room conversations. Firstly, I have some serious doubts about the truth of his assertion that he never participated in the chat room whilst at work. In the chat room conversation on several occasions the Applicant says that he is at work. Although this is not definitive evidence given the propensity for people to adopt a fictional persona in a chat room I was not convinced by the Applicant’s denial. Secondly, I have serious doubts about the explanation given by the Applicant as to why he engaged in the chat room conversations. 65 I can understand that the Applicant was surprised and embarrassed by the revelation of intensely personal chat room conversations and his responses have to be considered in that light. For this reason my lack of conviction about the truth of his responses in respect to the chat room conversations and the downloaded images did not disturb my conviction about the overall reliability of his evidence on a number of other matters.

[121] The Applicant also gave evidence that not everything attributed to him in the conversation was necessarily true and that it was common practice to assume an identity during a chat room conversation. I accept this evidence. For example in the chat room conversation the Applicant claims he is considerably younger than he actually is. For this reason in my view it would very difficult to draw strong conclusions from the content of what was said by the Applicant in these chat room conversations. There is no suggestion that the Applicant did anything illegal in the chat room conversations. The Applicant does at one point say in the chat room conversation that his job is “so boring.” 66 I have no particular reason to doubt that this was a reflection of how the Applicant felt at that time but cannot conclude this is likely to be the truth. I do not see anything particularly damaging to the Respondent in the conversations. The revelation that the Applicant had said that he found his job boring might have some damaging impact on his future employment in the event that it was known to the employer. However, I do not see this as a case where comments of this nature would be a repudiation of the employment contract or fatal to the continuing relationship.

[122] The engaging in this sort of chat room conversation on the work provided laptop during work time would certainly justify a warning by the Respondent but I am not satisfied that the chat room conversations are evidence of misconduct which would justify dismissal. My judgment on this matter would not have changed even if there had been evidence of more extensive chat room conversations of a similar type. However, the discovery of this sort of chat room activity would be likely to weaken the confidence and trust that the Respondent had in the Applicant and might well shorten his future employment.

[123] The use of this sort of subsequently discovered material to find that there was a valid reason for termination was considered Justice Von Doussa in Lane v Arrowcrest. His Honour does not suggest that such material can always be used to justify termination. His Honour says about a decision to use subsequently discovered material:

“Whether the decision can be justified will depend upon all the circumstances. A circumstance likely to favour the decision to dismiss would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance.” 67

[124] The situation in Lane V Arrowcrest was one where the facts discovered after the event were about fraud or dishonesty. I am not suggesting that the only circumstance in which subsequently discovered material can provide a valid reason for dismissal is where fraud or dishonesty contributed to the employer’s state of ignorance. What I am suggesting is that in the Lane v Arrowcrest case the material subsequently discovered was both extremely serious and damaging and also the fact that it was not discovered was due to the fraud or dishonesty of the worker and not due to the lack of reasonable inquiry on the part of the employer. If that fraud or dishonesty had been revealed earlier it is certain that the employment relationship would never have commenced or it would have been justifiably terminated as soon as it had been revealed. The chat room material in this case is not a circumstance of the sort that existed in Lane V Arrowcrest. The Tribunal has generally accepted that subsequently discovered evidence can be considered 68 but all of the circumstances must be considered. In these circumstances the subsequently discovered material does not provide a valid reason for termination but it could affect the length of likely future employment in the event that termination had not occurred.

[125] There was no valid reason for dismissal. The evidence is clear that there was no proper process. There is no evidence that the Applicant was warned prior to the dismissal that his job was in any way at risk. Mr Zhong had a conversation with the Applicant after the redundancies that occurred as a result of ZTE not winning the NBN tender and Mr Zhong did not suggest to the Applicant that his job was at risk. 69 The Applicant was not notified of a valid reason for dismissal. The Applicant was not given any opportunity to respond to the reasons for the dismissal. The Applicant did not have a support person present but I do not find that there was an unreasonable refusal to allow a support person to be present. The Applicant’s dismissal did not relate to unsatisfactory performance and there were no warnings about performance. The size of the employer is not a factor which has impacted on the fairness or otherwise of the dismissal. The employer is not a small employer. I find that the lack of dedicated human resource specialists did not have a significant impact on the fairness of the procedures surrounding the dismissal. Mr Zhong consulted the Human Resources Manager for ZTE South East Asia and Pacific region concerning the dismissal.70 The deficiencies in the processes adopted were obvious to any reasonable management regardless of their speciality. Having found that it was not a genuine redundancy and taking into account the facts that are not in the main in contention I am able to conclude that the dismissal was harsh, unjust and unfair.

Remedy

[126] In considering the matter of remedy I believe that the following factors are of particular relevance:

• The Applicant does not seek reinstatement.



• The relationship between the Respondent and the Applicant has been seriously damaged.



• The Applicant was employed in a senior position where a relationship of trust with the Respondent is essential.



• The unchallenged evidence of the Applicant is that he has applied for a large number of positions since the dismissal and has attended a number of job interviews. I accept that he has taken appropriate steps to mitigate his loss and that he has not received any income since the dismissal.



• The Applicant had been employed for a period of three years and clearly wished to continue in employment with the Respondent on an ongoing basis and had reasonable expectation that this would occur.



• Any order that I might make in these proceedings will not effect the viability of the employer’s enterprise. The Respondent is an associated entity of a very large multinational company.



• I am not satisfied that misconduct by the Applicant contributed to the decision to dismiss the Applicant.



• I note that the Applicant has not been paid the 10 week’s notice and redundancy entitlements under the National Employment Standards but instead received a total of 4 weeks payment upon termination.



• I accept the evidence of the Applicant and the Respondent that a week’s salary should be regarded as $1802. I have not taken into account a bonus payment made during the previous twelve months.

[127] I have seriously considered the question of reinstatement noting that this is the appropriate remedy unless I am satisfied that reinstatement is inappropriate and that compensation is appropriate. I have decided that reinstatement is not appropriate and that an order of compensation is appropriate.

[128] The most difficult question in this matter is making an assessment of the likely period of ongoing employment in the event that the dismissal had not occurred at the time and in the manner in which it did. In my view the Respondent had lost faith in the Applicant. The reasons for this are not clear to me but I am convinced that the Respondent would have taken all available steps to end the employment relationship with the Applicant. The reasons why I found that there was not a genuine redundancy related particularly to the process undertaken by the Respondent. In particular I found that it was not a genuine redundancy due to the lack of adherence to the consultation requirements and the lack of proper consideration of redeployment options. I was not satisfied that there had been a change in operational requirements but this situation was less clear cut. The nature of the business is one where the need for restructuring is common.

[129] I also take into account the fact that the discovery of the chat room conversations on the Applicant’s computer might have reduced the trust and confidence that the Respondent had in the Applicant. The chat room conversations were discovered after the dismissal but I cannot ignore the possibility that they might have been discovered in the normal course.

[130] In light of these factors I am satisfied that the Respondent would have found a way to legitimately terminate the employment of the Applicant within three to six months.

[131] Taking these factors into account and the principle of a fair go all round, I have determined that 12 weeks compensation or a gross payment of $21,624 is the appropriate remedy. I order that this amount be paid within 14 days. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

Mr J McKenna for the Applicant.

Mr N Harrington assisted by Mr Tom Molan for the Respondent

Hearing details:

2010

Melbourne

September 6, 29

 1   Exhibit ZTE-5, Schedule A to Attachment TZ-2.

 2   PN408.

 3   Exhibits GDL-C, GDL-D and GDL-E.

 4   PN1143.

 5  PN426, PN443, PN449, PN466, PN469 and PN495.

 6   PN567 and PN881.

 7   PN924 and PN928.

 8   PN941 to PN9422.

 9   PN954 to PN966.

 10   Exhibit GDL-D.

 11   Exhibit GDL-C.

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15   Exhibit GDL-E.

 16   Exhibits GDL-C, GDL-D and GDL-E.

 17   Exhibit GDL-E.

 18   Exhibit GDL-A, Attachment GLD-5 and PN1179.

 19   Exhibit ZTE-5, Paragraphs 21 and 22.

 20   PN973.

 21   PN1082 to PN1086.

 22   Exhibit ZTE-5, Attachment TZ-3.

 23   Ibid at Paragraph 5.

 24   Ibid at Paragraphs 18, 19 and 20.

 25   Exhibit GDL-A, Paragraph 39.

 26   Exhibit ZTE-5, Paragraph 69.

 27   U2010/7458 Sanjay Halasagi v George Weston Foods Limited [PR00903].

 28   [1957] 100 CLR, Paragraphs 157-160.

 29   U2010/7458 Sanjay Halasagi v George Weston Foods Limited [PR500903], Paragraph 23.

 30   PN408.

 31   PN426.

 32   (2010 FWA 6503) Sanjay Halasagi v George Weston Foods Limited U2010/7458 [PR500903], Paragraph 4.

 33   (2009) AIRCFB 450. Paragraph 190.

 34   (2010 FWA 6503) Sanjay Halasagi v George Weston Foods Limited U2010/7458 [PR500903].

 35   Exhibit GDL-A, Paragraph 2.

 36   Exhibit ZTE-5, Attachment TZ-1.

 37 (1990) 99 ALR 45.

 38 Lane and Ors V Arrowcrest Group Ltd (1990) 99 ALR 55.

 39   Exhibit GDL-A, Attachment GDL-13.

 40   Ibid.

 41   Ibid at Attachment GDL-14.

 42   Ibid at Attachment GDL-15.

 43   PN1603.

 44   Exhibit ZTE-5, Attachment TZ-11.

 45   Exhibit GDL-A, Attachment GDL-1.

 46   Exhibit ZTE-5, Paragraph 44.

 47   Ulan Coal Mines Limited v Henry Jon Howarth and others [PR 996697].

 48   Exhibit ZTE-5, Paragraphs 16 and 17.

 49   Ibid at Attachment TZ-4.

 50   PN809 to PN810.

 51   PN990 to PN993.

 52   Exhibit GDL-A, Paragraphs 58 and 59.

 53   Exhibit ZTE-5, Paragraphs 53-56 and 77, and at PN1333 to PN1343 and PN1417 to PN1577.

 54   Ibid at Paragraph 43.

 55   Similar approach to this issue was taken by Commissioner Simpson in U2009/13208 Mr Gim Pheng Ho v AP Eagers Limited [PR500144] at paragraph 62.

 56   PN1438 and following.

 57   Exhibit GDL-B.

 58   Exhibits ZTE-3 and ZTE-4.

 59   PR974391

 60   PR974391 at paragraph 3.

 61   Exhibits ZTE-3 and ZTE-4.

 62   Exhibit ZTE-4.

 63   PN668 to PN674.

 64   Exhibit ZTE-3.

 65   PN747.

 66   PN742 to PN744.

 67 99 ALR 45 at page 75.

 68   Australian Meat Holdings Pty Ltd V McLauchlan Q1625 (1998) 84IR.

 69   PN870.

 70   PN917.

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