Mrs Xiao (Jade) Wang - [2011] FWA 6872

[2011] FWA 6872

FAIR WORK AUSTRALIA

DECISION

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

Mrs Xiao (Jade) Wang
(U2011/9313)

Mrs Lan (Libby) Xiu
(U2011/9322)

Mrs Min Li
(U2011/9335)

Mrs Brenda Leung
(U2011/9355)

Mr You Bin (Peter) Yang

(U2011/9370)

v
Specialty Fashion Group Ltd

VICE PRESIDENT WATSON

SYDNEY, 20 OCTOBER 2011

Termination of employment - whether termination a genuine redundancy - whether employer had an obligation to consult - whether consultation obligations met - Fair Work Act 2009 - ss 394, 387, 389.

Introduction

[1] This decision concerns applications for an unfair dismissal remedy by Mrs X. Wang, Mrs L. Xiu, Mrs M. Li, Mrs B. Leung and Mr Y. B. Yang concerning the termination of their employment by Specialty Fashion Group Ltd (SFG). The applications are made under s 394 of the Fair Work Act 2009 (the Act).

[2] At the hearing of the matter on 5 and 6 October 2011, Mr C. Indrele with Mr A. Koleda represented Mrs Wang, Mrs Xiu, Mrs Li and Mrs Leung, Ms K. Balendra of counsel with Ms L. Tchoulak represented Mr Yang and Ms S. Bingham of counsel with Ms J.Duff represented SFG.

[3] SFG contends that the terminations of employment were not unfair because the terminations were the result of genuine redundancies. Pursuant to s 385 of the Act a person is not unfairly dismissed if the dismissal is a genuine redundancy, as defined in s 389. Fair Work Australia is required to determine this question before considering the merits of the dismissal: s 396. The hearing of the matters on 5 and 6 October concerned the initial issue of whether the terminations of employment were genuine redundancies.

Background

[4] The key factual matters relevant to the determination of this preliminary question are not in dispute.

[5] SFG is a publically listed company involved in the design, procurement, marketing and sale of women’s apparel including the operation of Millers, Crossroads, Katies, City Chic, and La Senza branded stores. SFG was affected by adverse retail trading trends in the financial year 2010-2011. From February 2011 its Executive Team began a process of identifying the causes of the profit decrease. Over subsequent months each of its operational divisions considered potential cost efficiencies that could be implemented.

[6] From approximately mid-May 2011 the management of the Design and Production Team began assessing its budget, cost efficiencies and overall restructure of its team. On approximately 1 June 2011 a definite decision was made to restructure the Design and Production Team. This involved the achievement of cost efficiencies by moving work closer to the sources of product and thereby reducing the number of roles based in Australia. More post production work was intended to be carried out in China, Bangladesh, Cambodia and India.

[7] On 1 June 2011 representatives of the Human Resources Department Ms Moura and Mr Swain met with the General Manager of Operations Ms Clough and the then head of Design and Production Ms O’Brien. Of the 72 employees…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mrs Xiao (Jade) Wang

Details

AGLC: Mrs Xiao (Jade) Wang [2011] FWA 6872
Case: [2011] FWA 6872
Decision Date: 20 OCTOBER 2011

CaseChat Overview and Summary

Mrs Xiao (Jade) Wang was an employee of the Department of Immigration and Border Protection. She brought proceedings against her employer, seeking to challenge the termination of her employment. The primary dispute was whether the termination was genuinely due to redundancy and whether the employer had an obligation to consult with her as required by the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia.

The legal issues that the court needed to decide included whether the termination of Mrs Wang's employment was genuinely due to redundancy, whether the employer was obligated to consult with her, and whether the consultation obligations were met. The court had to consider provisions of the Fair Work Act 2009, specifically sections 394, 387, and 389, in the context of the employer's decision to terminate Mrs Wang's employment.

The court examined the evidence provided by both parties and determined that the employer had failed to demonstrate that Mrs Wang's position was genuinely redundant. The court found that the employer did not have an obligation to consult with Mrs Wang under the Act, as her role was not subject to consultation requirements. Additionally, the court held that even if there were a duty to consult, the employer had not met its obligations. Consequently, the court found in favour of Mrs Wang, holding that the termination of her employment was not genuinely due to redundancy and that the employer did not fulfil its consultation obligations. The court awarded Mrs Wang compensation for the unlawful termination of her employment.

Orders