Mr Tim Au v Sing Tao Newspapers Pty Ltd

[2017] FWC 1303

[2017] FWC 1303

FAIR WORK COMMISSION

DECISION

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

Mr Tim Au
v
Sing Tao Newspapers Pty Ltd
(U2016/13314)

DEPUTY PRESIDENT SAMS SYDNEY, 9 MARCH 2017

Application for relief from unfair dismissal – jurisdictional objection to application – whether applicant’s dismissal a case of genuine redundancy – evidence of Company’s difficult financial circumstances – general consultation with entire workforce – offer to discuss voluntary redundancy – offer to make cost savings suggestions – named redundant employees not disclosed – no direct consultation with affected employees – redundancy not related to other Commission proceedings – finding on a narrow basis, that the dismissal was not a genuine redundancy – further proceedings.

BACKGROUND

[1] Mr Timothy Au was employed as the IT Administrator by Sing Tao Newspapers, under the Professional Employees Award 2010 (the ‘Award’), until his position was made redundant on 17 October 2016, when the business’s IT functions were outsourced to a contractor. Mr Au had been employed in this role, as the sole IT employee, since 4 January 2005, and at the time of his redundancy, he was paid a salary of $1,215 per week. There is no dispute that Mr Au was paid all his outstanding entitlements, including redundancy pay and notice in accordance with the National Employment Standards (NES).

[2] I set out the background to this matter as follows. Sing Tao Newspapers is a Sydney-based Chinese language newspaper. It is a subsidiary of Sing Tao Corporation Ltd, whose Head Office is based in Hong Kong. At the time of Mr Au’s termination of employment, the business employed more than 15 employees. Accordingly, the Small Business Fair Dismissal Code does not arise in this case. Throughout 2015 and 2016, the business was experiencing difficult financial and economic conditions (similar to much of the print media throughout the world), brought about by rapid advances in modern technology and a marked shift in customer demand from print to digital/social media. This phenomenon is very well known and its effects are manifest. In order to address these unfortunate circumstances, Mr Patrick Wong, the Company’s Australian General Manager, sent a memo to all staff on 20 April 2016 in the following terms:

‘Due to an economic downturn/poor business condition(s), the company may have to cut down on employee numbers again. If this happens, some positions in the company may be affected.

No final decisions have yet been made. We first wish to consult with you to either avoid the need to retrench or alternatively minimize the numbers of employees to be retrenched.

To facilitate a proper and effective consultation process, please consider the following information and/or proposals:

1. We believe it is necessary to reduce staff because the reduction of advertising and circulation income.
2. We have considered the following alternatives to proposed retrenchment:
- cutting down on overtime
- cutting down on employing leave relief
- reorganize work

We would like to meet with you on 21^st April 2015 at 2.15pm to proceed with the consultation process. Please consider our proposals and come to the meeting with your suggestions.

We commit ourselves to making the consultation process a joint problem-solving exercise and look forward to your cooperation in this regard.

Regards

Patrick Wong’

[3] The meeting as foreshadowed above was held the next day and short notes of the meeting were recorded as:

‘Introduction

- Patrick briefed in the meeting that the company’s income for the last three months has dropped substantially. This would affect the financial situation of the company.

- Due to the current economic downturn and poor market conditions, the company may be forced to cut down the number of employees in order to remain a viable business.

- The purpose of this meeting was to provide an opportunity for staff members to offer any suggestions or ideas and to discuss any concerns they might have.

Discussions

- No suggestion was raised from any staff member.

Conclusion

- Patrick concluded that the company would keep staff members up to date as to any new development regarding this issue.’

[4] On 16 May 2016, Mr Wong emailed to the Company’s Head Office, a list of five employees, including Mr Au, setting out their job descriptions, salaries and costs of redundancies, as a cost saving measure. Relevantly, Mr Au was not informed his name was on the list. Presumably, nor were the other four employees. In Mr Au’s case the details were set out:

Name: Timothy Au

Department: IT

Weekly Salary: $1,215.00

Monthly Salary: $5,265.00

Less Outsource: $2,230.00

Total Saving in Salary: $3,035.00

Redundancy Payment: $20,655.00

Outstanding Long

Service Leave (weeks): 9.887

Long Service

Leave Payment: $12,012.71

[5] On 23 May 2016, Mr Wong was authorised by Head Office to make the five named employees redundant, but with discretion given to him, as to the timing of the redundancies. The five employees were reduced to four in September 2016 when one employee resigned of her own accord.

[6] A further all staff meeting was held on 16 June 2016. A notice of the meeting minutes record the following:

‘Introduction

This was a follow up redundancy consultation meeting.

Patrick provided the following information in the meeting:

- Hong Kong head office had instructed all branches to restructure and cut costs in order to maintain a viable business.

- Hong Kong head office had retrenched a number of employees in April.

- We had postponed the restructure but the income over the last 2 months was still fall short of the budget.

- We had sent all staff members’ job descriptions to Hong Kong head office for their review.

- The trend of digital media had impacted on our traditional print media as a result skills needed to take the business forward to be crucial to the success of our business.

- Employees who wished to volunteer for retrenchment could contact Helen within the next two weeks.

- The restructure will take place in July.

- Patrick asked if any staff members would like to offer any suggestions or provide ideas or raise any questions concerning them.

Discussions

- No suggestion was raised from any staff member.

Conclusion

- Patrick concluded that the restructure will take place in July 2016.’

[7] From the date of Mr Wong’s approval and notwithstanding earlier advice of the restructuring to take place in July 2016, there was a period of some five months before Mr Au was sent an email on 17 October 2016 advising of his immediate redundancy. The letter read:

‘Dear Timothy

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by the company of its operational requirements, and what this means for you.

As a result of economic downturn and decline in sales order, your position of I.T. Administrator is no longer required. Further to this, despite considerable effort, we have been unable to identify a suitable redeployment opportunity for you elsewhere within the Company.

Regrettably this means your employment will terminate by way of bona fide redundancy, with this effective as at close of business 17 October 2016.

Based on your length of service, your notice period is 5 weeks. Instead of receiving that notice, you will be paid the sum of $6,075.00 plus the redundancy entitlement set out below.

Due to your employment ending because of redundancy, you will also be paid redundancy pay of $14,580.00 in accordance with the National Employment Standards. This amount represents 12 weeks’ pay which is based on your service with the company.

You will also be paid the following accrued entitlements and any outstanding pay, including superannuation if applicable, up to and including your last day of employment.

1. Unused annual leave with loading 397.5277 hours $14,934.75
2. Normal pay up to 17 October 2016 7.6 hours $243.00
3. Unused long service leave 10.217 weeks $12,413.66

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

Yours sincerely

Sing Tao Newspapers Pty Ltd

Patrick Wong

General Manager’

[8] Mr Wong explained the hiatus period between 23 May and 17 October 2016 in his evidence. He had delayed actioning the redundancies for the following reasons:

• he was hoping that business conditions might improve;



• employees had been encouraged to ‘volunteer’ for redundancy;



• the business was negotiating with a number of contractors to outsource its IT functions. This was not finalised until September/October 2016.

[9] There is no dispute that until he was advised of his redundancy, on the same day it took effect, Mr Au did not know his name was on the list of five employees selected for redundancy five months earlier. It is also not in contest that Mr Au did not offer himself for voluntary redundancy. Nor did he approach anyone in management about his own position or offer any suggestions as to costs saving measures, which might mitigate any adverse consequences of the restructure.

[10] On 4 November 2016, Mr Au (hereafter referred to as the ‘applicant’) filed an application in the Fair Work Commission (the ‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking an unfair dismissal remedy being reinstatement, ‘preferably starting in February 2017, on enhanced terms’ and with compensation to be ‘negotiated with the Directors.’ The applicant claims his dismissal was not a case of genuine redundancy and it was ‘harsh, unreasonable and unjust,’ in accordance with s 387 of the Act. Unsurprisingly, Sing Tao Newspapers (hereafter referred to as the ‘respondent’), maintains the applicant’s dismissal was a case of genuine redundancy and his unfair dismissal application should be dismissed, as beyond the Commission’s jurisdiction.

STATUTORY PROVISIONS

[11] At this juncture, it is helpful to set out the statutory provisions dealing with matters of this kind. Section 385 of the Act defines an unfair dismissal under four headings, each of which must be satisfied, if the person seeking a remedy from unfair dismissal, is to succeed. The section reads:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[12] The matter proceeded on the consensus of the parties that at this stage, the Commission must decide the jurisdictional tests set out at s 396 of the Act, each of which must also be satisfied before returning to whether the dismissal was ‘harsh, unjust or unreasonable,’ in s 385(b) above. Section 396 is as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d)  whether the dismissal was a case of genuine redundancy.

[13] The meaning of genuine redundancy is set out at s 389 of the Act as follows:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(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.

[14] To complete the uncontroversial aspects of the jurisdictional exercise, the Commission finds that:

(a) The application was filed on 4 November 2016. It was therefore made within the requisite 21 day time period set out in s 394(2);
(b) The applicant was a person protected from unfair dismissal in that:

(i) he had the requisite minimum employment period required by s 383(a);
(ii) his employment was governed by an Award (Professional Employees Award 2010 [MA000065]);
(iii) the Small Business Fair Dismissal Code is not relevant.

[15] It will often be the case in genuine redundancy matters, that the merits of the matter, particularly going to procedural issues, will arise for consideration by the Commission. So much so was plainly evident here. While I apprehend the applicant accepted his position was made redundant, due to the outsourcing of all the respondent’s IT functions, he argued that firstly, the cost of outsourcing his job was far greater than the cost of retaining him; secondly, the respondent had failed to consult him about his redundancy, in accordance with its Award obligations; and thirdly, the respondent could have reduced costs by offering him part-time work or redeploying him to another position.

[16] The Applicant’s reliance of the Award’s consultation requirements stems from clause 9 of the Award, which reads as follows:

9.1 Consultation regarding major workplace change

(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, 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.
(ii) 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.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), 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.
(ii) 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(a).
(iii) 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.

[17] The application was listed for the usual telephone conciliation, but the applicant did not participate, as he believed it would be a ‘waste of time.’ Nevertheless, I convened a conciliation conference on 6 December 2016, which was unsuccessful, and the matter was listed for arbitration on 20 January 2017. Directions were issued accordingly. At the hearing, the applicant represented himself, with the assistance of a Cantonese interpreter. Mr S Du of Canaan Lawyers appeared with permission, pursuant to s 596 of the Act, for the respondent.

THE EVIDENCE

[18] The following persons gave statement and oral evidence in the proceeding:

• Mr Patrick Wong, General Manager,



• Ms Helen Man, Administration Manager,



• Mr Tim Au, applicant, and



• Mr Vincent Ho, employed by the respondent as Managing Chief Editor until his retirement in September 2016.

Mr Patrick Wong

[19] In his statement, Mr Wong set out his duties and responsibilities as the respondent’s General Manager in Australia. Attached to his statement, were the Company’s financial reports from June to October 2016. There was no serious challenge to the respondent’s difficult financial circumstances disclosed by these reports. Mr Wong deposed that as a consequence of the deteriorating situation, he was instructed by Head Office to identify cost-saving measures. His email exchanges with Hong Kong about the situation were also attached to his statement. After receiving approval to proceed with five redundancies, Mr Wong met with his management team where it was agreed to adopt a ‘wait and see’ approach, but also to inform all staff of Hong Kong’s intentions to make changes in the respondent’s Australian operations.

[20] Mr Wong deposed that as a result of continuing poor sales performance, he was summoned to Hong Kong in late September 2016 to meet with the Head Office Board to discuss the business and financial position of the Australian operations. The result was to implement the five redundancies, as soon as possible, and to outsource the respondent’s IT functions to an external provider. Mr Wong said that he was required to act on the direct instructions of Head Office. However, he decided the best time to implement the redundancies was when the Administration Manager, Ms Man, returned from annual leave on 14 October 2016. The applicant was informed of his redundancy shortly thereafter, on 17 October 2016. Mr Wong attached to his statement the outsourced IT contract (redacted) with SNT Technology Pty Ltd (‘SNT’), which was later tendered in full, on a confidential basis.

[21] Mr Wong detailed the consultations with staff on 21 April and 16 June 2016. In the first meeting, he had reported on the financial position of the respondent and of the need to reduce the number of employees to remain viable. Employees were invited to make suggestions and offer feedback. Mr Wong believed that the applicant did not do so at any time. In the second meeting, Mr Wong advised employees of Head Office’s instruction to cut costs and that Head Office itself had retrenched a number of employees in April 2016. He told the employees he had sent job descriptions to Head Office and he invited volunteers for retrenchment to contact Ms Man.

[22] Mr Wong said that post the applicant’s redundancy, he had requested his redundancy entitlements be paid by electronic funds transfer, although a cheque had already been sent to his registered address. The cheque was cancelled and the applicant acknowledged his acceptance on 22 October 2016 by emailing:

‘Funds received as advised – efforts much appreciated.’

[23] In a supplementary statement, Mr Wong deposed that the decision to outsource the respondent’s IT functions was the culmination of a long period of discussions with Head Office, commencing in around August 2015. Given this timing, the decision affecting the applicant was in no way related to any of the applicant’s claims against himself or the respondent. The applicant had filed an anti-bullying application on 11 February 2016 against Mr Wong, which was settled by an agreement between the parties on 10 March 2016 – seven months before his redundancy. More about this later.

[24] Mr Wong said that as the applicant was the respondent’s only IT employee and that all of these functions were to be outsourced, there were no redeployment opportunities for him. His later suggestion that he perform audit functions was not possible, as the respondent also outsourced its audit requirements to Ernst & Young.

[25] Mr Wong denied that a letter sent to the applicant on 21 November 2016 from the respondent’s solicitor, was intimidating or inappropriate. It merely set out the respondent’s legal rights and invited the applicant to obtain his own advice before responding.

[26] In cross-examination, Mr Wong denied misleading the Commission as to the cost savings of the applicant’s redundancy set out in his statement. The full salary cost was identified for the purposes of calculating the applicant’s entitlements. The figures in the evidence sent to Head Office, included the redundancy costs, salary savings and outsourcing costs. The applicant queried why the person who had resigned did not receive redundancy entitlements. Mr Wong replied that the applicant had identified the wrong person - the person who resigned was in the editorial department and had resigned for personal reasons.

[27] Mr Wong reaffirmed the chain of events concerning the discussions about the Company’s financial position, cost saving measures and the decision to outsource the IT department in around November 2015. Negotiations with an outsourcing company were not completed until October 2016. Consultation with staff began in April 2016, including offering voluntary redundancy. The decision to identify five employees to be made redundant was approved on 23 May 2016. Mr Wong acknowledged that the five named individuals were not informed of their redundancy until 17 October 2016.

[28] The applicant questioned Mr Wong as to the distinction between ‘retrenchment’ and ‘redundancy.’ Mr Wong understood it meant the same thing. However, the applicant claimed that in Cantonese, it means different things. The interpreter advised that the two terms are interchangeable. Mr Wong agreed that employees were not individually invited to make suggestions or offer to take a voluntary redundancy. Nevertheless, it was made clear they could personally approach management, including Ms Man, if they wished to. The applicant’s understanding was that when he was told directly his position was to be made redundant on 17 October 2016, he was then able to make suggestions – as he later did – to reduce the costs for the Company, without making his position redundant.

[29] Mr Wong explained that the long period of discussion about the IT outsourcing was because of negotiations with three or four outsourcing companies. The applicant challenged the relatively low price for the successful tender, as he had obtained very much higher quotes for the same work. Mr Wong confirmed the successful contract price was $2,230 a month commencing in November 2016.

Ms Helen Man

[30] Ms Man described her duties as the respondent’s Administration Manager. Ms Man’s evidence primarily dealt with the staff meetings of 21 April and 16 June 2016, both of which she had prepared for and attended. She corroborated Mr Wong’s evidence that the applicant did not contribute or provide feedback to her. It was Ms Man’s further evidence that during these two meetings, it was made clear that if any employee had concerns with the Company restructure, including potential redundancies, they could approach management (including her) for private and confidential discussions. The applicant did not approach her at any time, although another employee had asked her on 20 June 2016 about voluntary redundancy. Ms Man did not accept consultation with staff was ‘mere lip service.’ Rather, it was made clear that channels of communication were available to all employees.

[31] In cross-examination, Ms Man explained that it had been made very clear in the meetings with all employees that anyone who wished to talk to her about the restructure or voluntary retrenchment, could do so. She also believed the staff understood that the print media was ‘dying’ and it would affect their employment. Ms Man acknowledged she did not speak at the meetings. It was Mr Wong who did all the talking. However, she had prepared the summary minutes tendered through the evidence; see: paragraphs 3 and 6 above.

Mr Tim Au

[32] The applicant provided three documents which were a panoply of evidence, opinions, questions and submissions. All three documents were admitted into evidence. Mr Du helpfully did not object to the documents’ tender, with the caveat that much of the material was not in proper form, as it contained opinion/submissions, was argumentative and included irrelevant matters to the issue to be determined by the Commission. In unpacking this material and disentangling submission from evidence, the Commission has attempted to identify the principal arguments the applicant put in support of his case.

[33] The applicant acknowledged that cl 9.1(a) of the Award, was complied with by the respondent in so far as the staff meetings convened on 21 April and 16 June 2016. However, he insisted that these meetings did not promote discussion. They were perfunctory (lasting less than five minutes), were held in an open area and most of the speaking was done by Mr Wong. No affected employee was identified, and certainly not one of the five persons notified to Head Office in May 2016 were told they were on a list for redundancy. As a result, consultation was not genuine; see: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone  Network Pty Ltd[2001] AIRC 1189 and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652.

[34] The applicant submitted that the minutes of the meetings were not circulated or confirmed for accuracy. Accordingly, staff members were not advised, in writing, of the proposed changes, contrary to cl 9.1(b) (iii) of the Award. The applicant had not been advised of his redundancy until 17 October 2016, with less than two hours notice. This was not consultation. Had he been consulted and told of the outsourcing cost savings, he could have offered to work three days a week, rather than five days.

[35] The applicant questioned the genuineness of his redundancy when, a few days before he was made redundant, he had discontinued his anti-bullying application against Mr Wong. He asked, was this adverse action (his redundancy) for exercising a workplace right? The applicant also questioned the accuracy of the cost savings claimed by Mr Wong in outsourcing the IT functions. Mr Wong had estimated a monthly cost of $2,230, whereas he had obtained earlier quotes, for the same functions, of between $8,000 and $10,000.

[36] The applicant responded to Mr Du’s submissions as follows:

• The respondent’s lawyer had sent a ‘threatening’ letter to him on 21 November 2016.



• The fact that he accepted the redundancy payment was a result of confusion as to how the monies were remitted to him, not a sign of accepting his dismissal as fair.



• Mr Wong’s claim that his redundancy saved the respondent $63,180 was incorrect.



• He had obtained quotes in the past of between $90,000 and $120,000 for IT contracts - well below Mr Wong’s eventual acknowledgement of the outsourcing cost at $26,760 per annum.



• The fact that the respondent claimed ‘in confidence’ information in respect of the IT outsourcing contract, demonstrated it had never provided all relevant information to him, in breach of cl 9.1(b) of the Award.

[37] In cross-examination, the applicant understood that he was made redundant on 17 October 2016. He had accepted his redundancy package, although there was an unresolved issue of a cheque being sent to the wrong address. He described his duties as the IT Administrator. He agreed that although he was a certified auditor, he had not fulfilled any auditing function for 11 years. However, he had offered to be redeployed to a part-time accounting position.

[38] The applicant agreed he had attended both staff meetings at which Mr Wong had explained the Company’s difficult financial position. However, given the meeting location, it was difficult to hear everything Mr Wong had said. He could not recall whether it was said that any employee concerned about the restructure, could contact Mr Wong or Ms Man. However, he could recall mention of staff who were interested in voluntary retrenchment, could contact Ms Man. He conceded he had not contacted anyone about any issues concerning the restructure.

[39] The applicant accepted that although he did not have a right to access privileged or commercially-sensitive information, he was the person in the Company most qualified, to prepare and assess quotes for IT work; although he agreed he might have a conflict of interest in assessing tenders for his own job. The applicant said that although the Company had a commercial-in-confidence arrangement with SNT, it did not mean the respondent was relieved of its obligations to consult him about his redundancy. The applicant agreed he had been informed of the restructuring proposal, but no minutes of the meetings were provided and no one was individually told what the impact of the restructure would be on them personally.

[40] As to the applicant’s evidence of these quotes for IT work he had asked for in 2012, he agreed no one in management had asked him to obtain such quotes. He added that his purpose in obtaining the quotes was to learn what other providers were offering and how much it would cost. Nevertheless, the applicant conceded he had no evidence of his claim that the SNT contract was not commercially sustainable - other than from what his experience and knowledge told him.

[41] The applicant recognised that due to the Company’s financial position, it was not possible to retain him as a full-time employee. Nevertheless, part-time employment was an option, but not offered to him. The applicant accepted that everyone is ‘replaceable.’

[42] The applicant was asked about the timeline of the respondent’s IT outsourcing proposal in August 2015 and his own anti-bullying application lodged with the Commission in 2016. The applicant said the timing is not conclusive of the two matters being unrelated. The applicant said the letter he received from the respondent’s solicitors, dated 21 November 2016, was ‘threatening’ and he had never received such a letter before. He conceded the letter advised him to obtain legal advice about his case. He did not do so due to the cost and his expectation that this would be a ‘quick process,’ because the Commission has a process to deal with such matters quickly and effectively.

Mr Vincent Ho

[43] Mr Ho retired from the employ of the respondent on 1 October 2016, having been employed for almost 25 years. Even so, he had attended both staff briefings on 21 April and 16 June 2016 on possible retrenchment. In his witness statement, he said he could not recall voluntary redundancy options being offered to staff in either briefing meetings.

[44] In cross-examination, Mr Ho further described the two staff briefings. They were held in an open-plan workplace with staff sitting or standing against the wall. There was little interaction, in part because ‘retrenchment’ in Cantonese is cynically called ‘stir-fried squid.’ During the meeting, he had remained working at his desk and was some distance from Mr Wong. He paid no attention to the meeting, because he was retiring anyway. However, he believed there was no consultation with other staff - just Mr Wong making an announcement. He believed that given the background of most employees and them being unaware of their individual rights, this explained why no one else said anything.

[45] Mr Ho said his main concern with these meetings was that Sydney had not followed Hong Kong’s cost-saving example of senior executives taking a pay cut of 15% and a moratorium on pay increases. This had been told to the Sydney office when the Head of Overseas Operations had visited Australia. He was motivated, in part, by Hong Kong’s approach to the financial difficulties. It was well-known the Company was in financial difficulties and everybody in the Sydney office was aware of it. However, he was surprised at the different approach adopted in Sydney (redundancies). Nevertheless, Mr Ho acknowledged consultation was not relevant to him because in June 2016, he had decided to retire.

SUBMISSIONS

[46] The applicant did not make any final submissions and relied on his earlier material tendered in the proceeding.

[47] Mr Du submitted that the actions of the respondent in dismissing the applicant, were fair and consistent with its obligations under the Award and the Act, as a result of the genuine financial difficulties the Company was experiencing. Mr Du denied the consultations were ‘perfunctory.’ They were real and genuine. Employees were invited to discuss their particular circumstances with management. In any event, consultation with the applicant would not have altered the fact that all the respondent’s IT functions were to be outsourced.

[48] The applicant had accepted he was redundant and actively sought and accepted his redundancy payment. In addition, as the outsourcing decision was being considered from August 2015, there was no connection at all between his redundancy and his settled anti-bullying claim. Mr Du said it was understandable the applicant was upset at losing his job and believed it was unfair; but that circumstance was forced on the respondent and appropriately addressed under the Act’s processes and requirements. There were no redeployment options available for the applicant. The respondent had made considerable savings as a result of the outsourcing and there was no job, full-time or part-time, that he could be reinstated to. Accordingly, as the applicant’s dismissal was a case of genuine redundancy, his application for an unfair dismissal remedy, should be dismissed.

[49] In reply, the applicant said he did not accept that genuine consultation had taken place. The respondent should have provided all of the information on which its decision had been based; see: Ball v Metro Trains Melbourne t/a Melbourne Trains[2012] FWA 7729 and Librio v Engineering PlasticsPty Ltd [2011] FWA 6193.

CONSIDERATION

Relevant principles and authorities

[50] At paragraphs 11-14 above, I set out the statutory provisions applicable to this matter and the meaning of ‘genuine redundancy.’ The Explanatory Memorandum to the Fair Work Bill 2008 further developed the meaning of ‘genuine redundancy’ as follows:

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;
• the employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer's operational requirements relate only to a part of the employer's enterprise, as this will still constitute a change to the employer's enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

[51] As the applicant accepted that his position had been made redundant on 17 October 2016, it is unnecessary to refer to the long line of authorities of this Commission which have considered the meaning of redundancy. Nevertheless, I cite just one authority which is apposite to the circumstances of this case. In Schneider v Apollo Motorhome Holidays Pty Ltd[2015] FWCFB 1259, the Full Bench succinctly said at paragraph 28:

‘[28] In determining whether a dismissal is a ‘genuine redundancy’ the Commission is concerned with whether the 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’. A decision by an employer to outsource all of an employee’s duties is clearly a redundancy.’ (My emphasis)

[52] There is no question that the respondent had commenced considering outsourcing its IT functions as early as August 2015. The applicant did not seek to challenge the evidence of Mr Wong on this score. Nor was there any doubt - as confirmed by longstanding former employee, Mr Ho - that everyone knew the Company was experiencing financial difficulties. Moreover, it is plainly open for the Commission to take judicial notice of the fact that the print media is rapidly losing worldwide customers, as the focus of the populace shifts to digital and social media outlets to obtain news and information.

[53] Once a decision was taken by the respondent to outsource all of its IT functions, that is at the time it obtained Head Office approval to make a number of employees redundant (23 May 2016), there was an obligation to genuinely consult with affected employees, as to measures which might mitigate the effects of that decision on them personally. That said, I accept there was simply no IT job, part-time or full-time, that the applicant could have been redeployed to, let alone reinstated to, as a consequence of this s 394 application.

[54] It must be stressed that consultation does not mean agreement. In addition, consultation does not mean that it was open to the applicant to challenge the respondent’s decision, per se, on the basis of his views as to its costs implications. The decision was entirely one for the respondent to make. Whether it ends up being more costly to the respondent, than retaining its IT functions in-house, or on some other limited basis, is not the point. The respondent must live with its decision, whether the outcome is good or bad.

[55] For this reason, I do not consider it relevant that the applicant claimed the outsourcing costs were greatly underestimated. If this is so, I am sure the respondent will quickly find out. It will have to live with the consequences. At the date of the hearing, it was Mr Wong’s evidence that there had been no issues with the SNT contract. I have no reason to doubt that in the period from 1 November 2016 to 1 January 2017, there have been no issues with outsourcing the IT contract to SNT.

[56] For completeness, I do not accept that the respondent was obliged to provide confidential documents of its contractual proposals or discussions with outsourcing companies competing for the IT contract. I agree with Mr Du that there would have been an obvious conflict of interest, if the applicant was judging the merits of various tenders to replace his own job. Apart from whether he was entitled to know the rationale for the respondent’s outsourcing decision, he would have been in an impossible and unrealistic position, likely to be contrary to the employer’s interests. There was no breach of this facet of clause 9.1(b)(iii) of the Award.

[57] For the above reasons, I am satisfied that subsection 389(1)(a) of the Act has been met. Specifically, the respondent no longer required the applicant’s job to be performed by anyone because of the operational requirements of its enterprise.

[58] The focus then moves to the consultation and redeployment obligations of the respondent, which the applicant correctly concentrated his arguments on. Consultation obligations derive from cl 9 of the Award (see paragraph 16 above) and redeployment options are necessary to be considered, pursuant to s 389(2) of the Act (see paragraph 13 above).

[59] Two Full Bench decisions have considered the obligations of an employer in respect to redeployment. In Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578, the Full Bench said at paragraph 28:

‘the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.’

[60] Further, in Technical and Further Education Commission t/a TAFE NSW v L. Pykett[2014] FWCFB 714 the Full Bench said at paragraph 36:

‘For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; 
(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and 
(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.’

[61] A recent Full Bench decision has considered whether voluntary redundancy ‘swaps’ are necessary for the purposes of satisfying s 389(2) of the Act. However, I do not consider that the decision of the Full Bench in Skinner & Pemberton and Others v [2017] FWCFB 574 is applicable to the facts and circumstances of this case; particularly, given that voluntary retrenchment had been offered, but not taken up.

[62] Even if the applicant had suggested before 17 October 2016, the redeployment options of working part-time or in an accounting role, the evidence makes clear that:

• the applicant’s only experience with the respondent was in its IT functions;

• the applicant was the only in-house IT employee;

• as all the IT functions were to be outsourced, any suggestion of part-time IT work was impractical and illogical;

• there was no associated entity to which the applicant could have been redeployed, save perhaps to Hong Kong (unlikely to have been a possibility);

• the applicant did have an auditing qualification, but had not utilised them in 11 years;

• the respondent’s audit function was also outsourced;

• there was no evidence of any other skills and/or experience of the applicant which could be translated to any other of the respondent’s functions, such as editorial or marketing; and

• there was no accounting role to which the applicant could have been redeployed.

[63] Accordingly, I find that it would not have been reasonable in all the circumstances for the applicant to be redeployed within the employer’s enterprise or an associated entity of the employer. Section 389(2) is therefore satisfied.

[64] This leaves the question of whether the respondent undertook appropriate consultation with the applicant as to his redundancy, or was merely paying ‘lip service’ to consultation. Whether consultation has been undertaken to the requisite standard, is one of the most frequently debated issues before this Commission.

[65] The meaning of the word ‘consult,’ was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165 (‘Consultation Clause in Modern Awards’). At paras [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy :

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

• to provide information about the change; and

• to provide an opportunity for affected employees to give their views about the impact of the change; and

• to consider any views about the impact of the change that are given by the employees [footnotes omitted].’

[66] In Ulan Coal Mine Limited v Henry Jon Howarth and others[2010] FWAFB 3488, a Full Bench of Fair Work Australia (as the Commission was then styled) said at 27-28:

‘[27] As a general principle, there are sound reasons as a matter of good practice for there to be consultations and discussions with the particular employees or groups of employees to be dismissed due to redundancy. As the Commissioner notes in his decision, such discussions may enable “a better focus on individual circumstances and opportunities available in order to mitigate adverse effects” (at par [58]). However, whatever the general desirability of such consultations might be, the inquiry in the particular factual circumstances of the present case and for the purpose of determining whether the requirement in s.389(1)(b) of the Act is satisfied, must be directed to the proper construction of the obligation set out in sub-clause 23.1 of the Agreement.

[28] Sub-clause 23.1 is in somewhat similar terms to the consultation provisions determined in the TCR Cases. It is clear that the intention in those cases is that the employees and their representatives should be involved in the problems of redundancy as soon as a firm decision has been taken that retrenchments might be necessary (see TCR Case [1984] 8 IR 34, at 62-64). This intention can also be discerned from the wording of sub-clause 23.1 of the Agreement itself. The requirement is for discussions to begin “as soon as is practicable” after a definite decision is made about redundancies. The decision is described in the sub-clause as one which “may” lead to termination of employment (par 23.1(1)) and the discussions to be held will include consideration of the reasons for “proposed terminations” and measures to “avoid or minimise the terminations” (par 23.1(2)). The discussions as such will be of relevance to the entire workforce of an enterprise or at least to that part of the workforce whose work or jobs will be affected by terminations due to redundancy. In the present case, this would be the mineworker employees at the mine. These are the employees “directly affected” by the decision to change the size and composition of the mineworker workforce at the mine and the group with whom the Company must hold discussions. The discussions are envisaged to take place before the number of terminations is finalised and the particular employees to be retrenched are identified.’

[67] As mentioned earlier, I find that the definite decision to make the applicant’s position redundant was on 23 May 2016 after his and four other names were submitted to Head Office for approval, and approval was given. It is common ground that he and the others were not made aware of their names being identified for redundancy and being confirmed as redundant, until the day of the redundancy itself - 17 October 2016. In addition, there was really nothing provided directly to the applicant, of his proposed or actual redundancy in writing, until that date. Both these facts are inconsistent with the Award’s consultation obligations. Minutes of general staff discussion, do not meet the requisite standard. These circumstances plainly give rise to the applicant’s understandable belief that the consultation with him personally, was ‘perfunctory.’ In reality, it was non-existent.

[68] However, this conclusion should not be seen as a critical indictment of the respondent’s approach to consultation. Ultimately, the question is whether these errors would have made any difference to the outcome?

[69] I accept the respondent’s bona fides that by holding two staff meetings, there was a genuine attempt to advise all staff of the Company’s difficult financial circumstances and it was genuine in inviting suggestions as to cost saving measures. However, by the time of the second meeting, actual names had been approved for redundancy; albeit with the actual timing left to Mr Wong. I also accept Mr Wong and Ms Man’s evidence that employees were invited to raise any issues with them personally as to the effects of the restructure. The fact that no one did so (save one person) over a period of some six months is not a defect to be laid at the respondent’s feet.

[70] I do not accept, (nor did the interpreter) the applicant’s attempt to draw some semantic distinction between retrenchment and redundancy to ground his claim that the invitation to discuss voluntary retrenchment was not the same as discussing voluntary redundancy, so he did not do so. I do not believe there was any doubt about the intention of the invitation to discuss the restructure. In any event, the invitation to discuss was much broader than just voluntary retrenchment, but still no one did so (bar one).

[71] It might also be reasonable to acknowledge that it may have been inappropriate, unsettling and distressing to identify named employees when Mr Wong had sincere expectations that it may not have been necessary to take the drastic step of making anyone redundant. Mr Wong was a forthright and credible witness (as were all the witnesses) whose evidence I accept as truthful. While hoping that the finances might turn around or volunteers for redundancy might emerge, to remove the direct threat of forced redundancies, this process was perhaps unwise, but understandable and reasonable in the circumstances. Regrettably, the well-meaning intentions of the respondent did not strictly comply with its consultation obligations under the Award, particularly cls 9.1(a) (i) and (b).

[72] In my opinion, given that outsourcing all the IT functions was likely to eventuate and he was the only IT employee, the applicant should have been told of that likelihood as part of the restructure when his name was confirmed on 23 May 2016, or shortly thereafter. A lengthy period of consultation could have then ensued and the Award’s consultation requirements would have likely been satisfied.

[73] I would add, that I see no correlation with the applicant’s redundancy and his earlier anti-bullying claim against Mr Wong, which was settled by Agreement on 10 March 2016 - almost two months before his name was submitted to Head Office and seven months before his actual redundancy (with no evidence of any residual issues between them during that period). This timing is simply not indicative of any such link.

[74] Thus, I am satisfied that the applicant was not notified of the decision to make his position redundant at the time the definite decision was made (23 May 2016). As the definite decision was not communicated to the applicant until the date the dismissal took effect (17 October 2016), there could not have been the requisite Award consultation with the applicant and he was not provided in writing, any information at all about the effect of the restructure on him until 17 October 2016. It must follow that s 389(1)(b) has not been satisfied and the applicant’s dismissal was therefore not a case of genuine redundancy, within the meaning of the Act.

[75] Obviously, that is not the end of the matter. A number of decisions of the Commission have considered the circumstances in which a redundant employee may not have been given the necessary opportunity to be consulted and what would have happened had the requisite consultation taken place in the context of any order of compensatory remedy under s 392 of the Act.

[76] Watson VP in Maswan v Escada Textilvertrieb t/a ESCADA[2011] FWA 4239 at 39:

‘[39]In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.’

[77] Two recent decisions of the Commission are also relevant for present purposes. In Oshea v Stihl [2017] FWC 739, Roe C said at paragraph 39:

‘[39] The opportunity to consult is about justice and procedural fairness. However, it is also a recognition of the negative impacts redundancy causes to employee wellbeing and that it is harsh to terminate employees for reason of redundancy without giving them the dignity and opportunity provided by the consultation process. In my view in the circumstances of this case it is difficult to conclude that nothing would have changed if the consultation process had occurred. This is the case even where other viable options have not been specifically identified. The whole idea of the consultation process is to allow for exploration of options both known and unknown. Employees often have information and ideas which are not apparent to management. In an unfair dismissal hearing the protagonists are not engaging in such a consultative exploration. Opportunities for redeployment can be assessed on the evidence but alternatives to a restructure and options for modification to a restructure and its impacts are difficult to assess in the context of an unfair dismissal hearing. It is often not possible to determine what might or might not have resulted from consultation which did not occur.’

[78] In Maat v WCH Services Pty Ltd [2017] FWCFB 547, the Full Bench said at paragraphs 7-10:

‘[7] A central matter for consideration by the Commissioner was whether or not Mr Maat’s dismissal was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (the Act). She held that it was not a genuine redundancy, principally for the reason that the Respondent’s proprietor, Mr Hancock, had not consulted with Mr Maat about the loss of the company’s contract, which was its obligation under the Modern Award applying to Mr Maat’s employment.
[8] The Commissioner’s written reasons for her decision canvassed each of the criteria within s.387 of the Act. In relation to s.387(a), concerning the question of whether or not there was a valid reason held by the employer for Mr Maat’s dismissal relating to his capacity or conduct (including its effect on the safety and welfare of other employees), the Commissioner found that there was a valid reason for his dismissal, being the changes in the company’s operational requirements and, in particular, the loss of its trolley collection contract. In finality, the Commissioner found that Mr Maat’s dismissal was harsh for the reason that he was not advised as soon as his employer knew that the company’s trolley collection contract had been terminated, and unreasonable as it did not allow Mr Maat an opportunity to secure employment with the ongoing contract. She also took into account that Mr Maat was employed by the company in and around an area in which unemployment is high, particularly in relation to lower skilled jobs.

[9] Having found that Mr Maat was unfairly dismissed, the Commissioner proceeded to determine the question of remedy for the unfair dismissal, and, after finding that reinstatement was inappropriate and that compensation was appropriate, she made the following findings about the amount of compensation to be awarded;

“[55] Given the reason for Mr Maat’s dismissal, it is my view that the remuneration that Mr Maat would have received, or would have been likely to receive, if he had not been dismissed would have been another two weeks’ remuneration. This is on the basis that two weeks is the period that it would have taken the Respondent to comply with its obligations in the relevant modern award to consult with Mr Maat about the redundancy that led to his dismissal.
[56] Two weeks’ remuneration for Mr Maat is $962.28 gross plus 9.5% superannuation. This is based on the figures provided by Mr Maat and Mr Whelan during the determinative conference, together with Mr Maat’s timesheet.”  (references omitted)

[10] After considering the other criteria within s.392, the Commissioner finalised the matter with an order of compensation in the amount of $962.28 gross, less taxation as required by law plus 9.5% superannuation.’(My emphasis)

(For completeness, I note that Mr Maat’s appeal of the Commissioner’s decision did not attract any public interest considerations and was dismissed).

CONCLUSIONS

[79] Given my finding under s 389(1)(a) of the Act and my conclusions as to the matters raised by the applicant as to his options for redeployment, I do not consider that the failure of the applicant to consult him prior to 17 October 2016 would have changed the decision to dismiss him for operational reasons, directly relevant to its financial difficulties and the outsourcing of all the respondent’s IT functions. Nevertheless, the applicant had no opportunity to put anything at all to the respondent once he became aware of the respondent’s decision to outsource his role, no matter how unlikely or impractical his suggestions may have been. As a matter of fairness and common decency, he should have at least been provided with that opportunity. I estimate that a further two weeks would have been adequate for that purpose.

[80] While I have not formalised any final view as to whether the applicant’s dismissal was ‘harsh, unjust or unreasonable,’ within the meaning of s 387 of the Act and if so, what remedy should be ordered, my findings above should serve as a basis for positive discussions between the parties with a view to settlement of the claim in full. A further three weeks from today is to be utilised for that exercise. Failing any agreed settlement, I will then consider what further steps are necessary to finally conclude the matter.

DEPUTY PRESIDENT

Appearances:

Mr T Au, for himself.

Mr S Du, Solicitor for the Respondent

Hearing details:

Sydney

2017

January.

27.

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