[2020] FWC 2990

FAIR WORK COMMISSION

DECISION

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

Ms Benyan Yao
v
Murray Farming Pty Ltd T/A Natures Haven
(U2019/12319)

COMMISSIONER HUNT

BRISBANE, 24 JUNE 2020

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – position no longer required to be performed by anyone – consultation obligation under enterprise agreement – not reasonable in the circumstances to redeploy – jurisdictional objection upheld – application dismissed.

[1] On 5 November 2019, Ms Benyan Yao made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Murray Farming Pty Ltd T/A Natures Haven (Murray Farming).

[2] Murray Farming raised a jurisdictional objection that Ms Yao’s dismissal was a case of genuine redundancy, and on that basis, Ms Yao was not able to pursue an unfair dismissal application.

[3] On allocation to me, I determined that both the jurisdictional objection and the merits application should be heard at the same time. A determinative conference took place by telephone on 21 April 2020. At the determinative conference, Ms Yao appeared on her own behalf with the assistance of an interpreter. Murray Farming was represented by Mr Donald Murray, Owner, and Ms Jodi Murray, Dispatch Manager. Ms Murray is Mr Murray’s daughter.

Request for order of attendance and production of documents

[4] On 2 April 2020, Ms Yao filed an application for an order requiring three witnesses to attend and give evidence before the Commission. On 6 April 2020, Ms Yao filed an application for the production of a very substantial number of documents to be produced. The documents sought included all text messages sent between herself and seven people.

[5] On 6 April 2020, Ms Yao also produced a medical report from Dr Kerry Francis, Clinical Psychologist dated 29 March 2020. On 6 April 2020, the following email was sent from my chambers to the parties:

“The Commissioner has reviewed the letter dated 29 March 2020 from Dr Kerry Francis, Clinical Psychologist. The Commissioner wishes to make it very clear that the matter will proceed as a telephone hearing on 21 April 2020……….. Dr Francis has stated the following:

“It is for these reasons that I believe that Ms Yao will require support to continue with complaint proceedings. Having interpreter services are vitally important for her to present her case appropriately. Additionally, a support person would be ideal. I strongly recommend that she not be placed in the same room as her ex-employer, nor be present if these people speak on the telephone, as these situations would be very triggering. She may struggle to maintain her equilibrium and this in turn would prejudice her ability to present her case. She is also likely to require breaks to enable her to downregulate her nervous system.”

The Commissioner advises that it will indeed be necessary for the Applicant to remain on the phone and hear the evidence of the Respondent’s witnesses, and hear submissions made by them. If it is necessary for any of the Respondent’s evidence or submissions to be interpreted, that will occur. The Applicant will not be excused from hearing the Respondent’s evidence or submissions. If the Applicant is medically unable to hear the evidence or submissions of the Respondent’s witnesses (which will be in English), then the Applicant is invited to seek an adjournment of the proceedings. Presently, the Commissioner’s decision is that the telephone hearing will occur with all parties present, including an interpreter. All necessary breaks during the proceedings will be accommodated, however it is noted that the hearing is listed for one day only.”

[6] On 14 April 2020, the following email was sent from my chambers to the parties:

“Dear parties,

The Commissioner has reviewed the Applicant’s Form F51 filed 2 April 2020 and Form F52 filed 6 April 2020 (the Applications), together with the Respondent’s objections submitted on 7 April 2020.

Decision

The Commissioner has made the following decision in respect of the Applications:

1. None of the witnesses sought by the Applicant will be ordered to attend and give evidence before the Commission. The Commissioner will provide her reasons in the written decision following the hearing.

2. None of the material sought by the Applicant will be ordered to be produced. The Commissioner will provide her reasons in the written decision following the hearing.

Further directions

The Respondent is directed to file and serve a witness statement of Ms Jodi Murray. The witness statement must be in the first person, and contain numbered paragraphs. The statement must include all of the duties undertaken by Ms Murray in each of the months June 2019 – December 2019, and detail how or if there were any changes to her duties in any of the particular months on account of the Applicant’s absence due to personal leave, and on the Applicant’s return to work from mid-September to mid-October 2019. The statement must also describe all of the duties of the Applicant from June 2019 until 15 October 2019. Ms Murray is directed to accurately describe all of the duties undertaken by her following the Applicant’s employment ending by way of redundancy. Ms Murray’s statement must describe how or if any of the Applicant’s duties were ceased on her role being made redundant, or if some of the duties were absorbed into the roles of others, and specifically nominate those duties.

Further, the Respondent is directed to provide evidence in the way of a consolidated payroll summary of all employees employed from 30 September 2019 to 31 December 2019. The payroll summary must include the employee’s name and their weekly hours of work. The evidence need not include the employee’s rate of pay, and permission is granted to redact that information from the payroll summary. If Ms Lykka Madsen has been employed from October 2019 as asserted by the Applicant, the Respondent is directed to make a witness statement by a person within the business explaining the functions performed by Ms Madsen.

The Respondent is directed to file to chambers, and to serve on the Applicant, the above evidence by no later than 4:00pm Thursday, 16 April 2020.

Chambers awaits receipt of the above material to be filed by the Respondent. It is noted that the Applicant is not required to take any steps at this time.”

[7] The reasons for not making the orders sought by Ms Yao for the attendance of three witnesses, and the substantial amount of material sought to be produced is that it was not necessary to hear from the three witnesses. They were unable to provide any further information relevant to the redundancy situation, nor would the material sought to be discovered be of assistance. Further, many of the text messages between Ms Yao and the seven other people was within Ms Yao’s knowledge and could have been produced by her if she had so wished. In any event, on 20 April 2020, and the morning of the determinative conference, Ms Yao filed and served further unsolicited material to support her arguments, which I have taken into account in this decision.

Background

[8] Murray Farms operates a farming enterprise, predominantly growing zucchini. Ms Yao commenced work as a casual employee on 18 January 2018 in the position of pack house employee at its farm in Dimbulah. Initially Ms Yao was on a short-term stay visa that allowed her to work in Australia having immigrated from China in 2016. She continued in that role until September 2018. Ms Yao stated that her role included dispatch manager and packing team supervisor.

[9] Murray Farming is a Standard Business Sponsor, and has been since 2016, allowing it to sponsor immigrant workers. Ms Yao requested sponsorship for a Temporary Skill Shortage 482 visa. She was approved for the visa with Murray Farming as her sponsor and worked in a sponsored position as an Agricultural Technician (Ag Technician) from 26 September 2018 to 15 October 2019, when she was dismissed. Ms Yao described her roles as also including dispatch manager, packing team supervisor and Ag Technician.

[10] The employment agreement dated 18 January 2018 described her as reporting to Jodi Murray – Dispatch & Spray Manager. The employment agreement for the Ag Technician role described her as reporting to the QLD Manager, who she considered might be Ms Murray, Mr Murray, or Chris Walsh, the FNQ Farm Manager.

[11] In early 2019, Murray Farming was struggling with its fresh food operation. Mr Murray’s evidence is that it was becoming increasingly difficult to compete against some other operators who, to his knowledge, did not pay appropriate award wages to employees, or through labour hire companies. He attempted to sell the business as a going concern but was unable to. As a result, Murray Farming began to progressively close its fresh vegetable operation, beginning with farms in New South Wales.

[12] Ms Yao’s employment ended on 15 October 2019 on account of her position becoming redundant.

Legislation

[13] Section 385 of the Act sets out when a person will have been unfairly dismissed, and states:

“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

(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.”

[14] Section 396 of the Act sets out several initial matters that must be considered before the merits of an application for an unfair dismissal remedy, and states:

“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;

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

[15] Ms Yao cannot have been unfairly dismissed if her dismissal occurred as a result of a genuine redundancy. Whether Ms Yao’s dismissal was a case of genuine redundancy must be considered before the merits of her application. Section 389 of the Act sets out the meaning of ‘genuine redundancy’ within s.385(d), and states:

“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.”

[16] In Ulan Coal Mines Limited v Honeysett (Ulan), 1 the Full Bench of Fair Work Australia, as the Commission then was, considered the operation of s.389 of the Act and described that s.389(1) has an inclusionary aspect which a dismissal must meet to be a case of genuine redundancy, and s.389(2) has an exclusionary aspect which a dismissal cannot meet to be a case of genuine redundancy.

[17] It is accepted that Ms Yao was employed under the Murray Farming Pty Ltd T/A Natures Haven & Employees Enterprise Agreement 2018 2 (the Agreement). The Agreement incorporates the model consultation term as set out in the Fair Work Regulations 2009:

“8. CONSULTATION

Model consultation term

8.1 This clause applies if the Employer:

has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the Employees; or

proposes to introduce a change to the regular roster or ordinary hours of work of Employees.

Major change

8.2 For a major change referred to in subclause 8.1(a):

(a) the Employer must notify the relevant Employees of the decision to introduce the major change; and

(b) subclauses 8.3 to 8.9 apply.

8.3 The relevant Employees may appoint a representative for the purposes of the procedures in this clause.

8.4 If:

(a) a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation; and

(b) the Employee or Employees advise the Employer of the identity of the representative;

the Employer must recognise the representative.

8.5 As soon as practicable after making its decision, the Employer must:

(a) discuss with the relevant Employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the Employees; and

(iii) measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employees; and

(b) for the purposes of the discussion-provide, in writing, to the relevant Employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the Employees; and

(iii) any other matters likely to affect the Employees.

8.6 However, the Employer is not required to disclose confidential or commercially sensitive information to the relevant Employees.

8.7 The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.

8.8 If a clause in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Employer, the requirements set out in subclause 8.2(a) and subclauses 8.3 and 8.5 are taken not to apply.

8.9 In this term, a major change is likely to have a significant effect on Employees if it results in:

(a) the termination of the employment of Employees; or

(b) major change to the composition, operation or size of the Employer's workforce or

(d) the elimination or diminution of job opportunities (including opportunities for

(e) promotion or tenure); or

(f) the alteration of hours of work; or

(g) the need to retrain Employees; or

(h) the need to relocate Employees to another workplace; or

(i) the restructuring of jobs.

Change to regular roster or ordinary hours of work

8.10 For a change referred to in subclause 8.1 (b):

(a) the Employer must notify the relevant Employees of the proposed change; and

(b) subclauses 8.11 to 8.15 apply.

8.11 The relevant Employees may appoint a representative for the purposes of the

procedures in this clause.

8.12 If:

(a) a relevant Employee appoints, or relevant Employees appoint, a representative for

(b) the purposes of consultation; and

the Employer must recognise the representative.

8.13 As soon as practicable after proposing to introduce the change, the Employer must:

(a) discuss with the relevant Employees the introduction of the change; and

(b) for the purposes of the discussion-provide to the relevant Employees:

(i) all relevant information about the change, including the nature of the change; and

(ii) information about what the Employer reasonably believes will be the effects of the change on the Employees; and

(iii) information about any other matters that the Employer reasonably

(d) invite the relevant Employees to give their views about the impact of the change

(e) (including any impact in relation to their family or caring responsibilities).

8.14 However, the Employer is not required to disclose confidential or commercially sensitive information to the relevant Employees.

8.15 The Employer must give prompt and genuine consideration to matters raised about the change by the relevant Employees.

8.16 In this clause:

relevant Employees means the Employees who may be affected by a change referred to in clause 8.1.”

[18] The Agreement also includes clauses specifically referring to redundancy and includes some benefits that are greater than those under the relevant Award and the National Employment Standards (NES) pursuant to the Act:

“14. REDUNDANCY

14.1 Redundancy pay is provided for in the NES.

14.2 Transfer to lower paid duties

Where an Employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the Employee would have been entitled to if the employment had been terminated and the Employer may, at the Employer's option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay for the number of weeks of notice still owing.

14.3 Employee leaving during notice period

An Employee given notice of termination in circumstances of redundancy may terminate their employment during the notice period. The Employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice, but, is not entitled to payment instead of notice.

14.4 Job Search entitlement

(a) An Employee given notice of termination in circumstances of redundancy must be allowed up to one day's time off without loss of pay during each week of notice, for seeking other employment.

(b) If the Employee has been allowed paid leave for more than one day during the notice period for seeking other employment, the Employee must, at the request of the Employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose, a statutory declaration is sufficient.”

Evidence of Ms Yao

[19] Ms Yao provided a substantial amount of information to the Commission for its consideration. The bulk of the material provided by Ms Yao largely extended to merit material and was not relevant to the jurisdictional objection. It will only become relevant if the jurisdictional objection is dismissed. Not all the material produced by Ms Yao has been reproduced in this decision.

[20] Ms Yao’s evidence is that she regularly worked an average of 48-52 hours per week across six days per week. She considered that she had a good relationship with casual workers in the packing team, the harvest team, and other workers whom she described as ‘illegal’ workers. I understand she means they were underpaid labour hire workers.

[21] She considered that she stood up for bullied workers, including those to whom Mr Murray would demand of them to work faster. She had issues with Mr Walsh and his wife, Bella, who worked in the shed under Ms Yao’s supervision. Ms Yao considered that she kept the workplace safe.

[22] Ms Yao understood that her visa sponsorship requires, as a condition, that she only work in the occupation for which the visa is approved. Upon being dismissed, she understood that she would have 60 days to find a new sponsor.

[23] Ms Yao stated that she suffered workplace stress for the following reasons, and contemplated attempting suicide:

(a) Driving the forklift without a licence and she had an accident 2 June 2019;

(b) Her work partner was dismissed on 12 July 2019 and accordingly her work hours increased to 12 hours per day without assistance;

(d) She had not been trained in fire hazards and she burned herself around 24 July 2019. Ms Elaine Murray, wife of Mr Murray stated, “I don’t care”;

(e) She was suffering verbal abuse from Mr Walsh relevant to messages about her husband.

[24] Ms Yao took sick leave between 1 – 16 August 2019, with another two weeks of paid leave, and then a further two weeks of leave without pay where she went overseas. She returned to work on 17 September 2019.

[25] She stated that on her return to work she was treated unfairly. She was not allowed to use the SAVI system, nor the email accounts previously used by her. She was able to print labels but was not able to use the SAVI system on account of not having the password. She asked Ms Murray why she couldn’t get access to the SAVI system, to which Ms Murray replied that she was the only one allowed to use the system.

[26] She stated that this greatly affected her work, and she was not able to access transport consignment paperwork and organise pickup of produce from the farm. It would typically take 30 minutes to one hour to complete this task. Ms Murray completed paperwork on 23 September 2019 and called the transport company without discussing it with Ms Yao, this being Ms Yao’s usual task.

[27] Previously Ms Yao accessed the sales system to do sales reports which she estimates took her 30 minutes per week to complete. On her third week since her return to work, Ms Marina Zylmans, an office/administrative employee of Murray Farming, informed her that she would do the sales report and Ms Yao was not required to perform that work.

[28] Ms Yao observed that on her return to work, female staff in the packing shed had resumed wearing earrings which was prohibited. Two of the women refrained from wearing earrings on her second day back, however Bella continued to wear earrings, even though she had been involved in a loss of an earring into produce in April 2019, which had thankfully been discovered after a short while.

[29] Ms Yao also discovered Bella driving the forklift while unlicensed. She reported this issue to Ms Murray. Further, she found it unacceptable that packing shed staff had not been told to bring lunch to work, as their hours often fluctuate. She considered that not informing staff to bring lunch to work could affect their blood sugar levels.

[30] She considered that on her return to work Mr Murray often ignored her and would deliberately stare at her Muslim head scarf which she had recently come to wear on account of her marriage in September 2019.

[31] On her return to work she was required to drive the forklift every day. She had become licensed to operate it on 15 July 2019 but held a psychological fear due to the accident on 2 June 2019. She considered that she had not been consulted on the requirement to operate the forklift.

[32] She considered that on her return to work she was not given “SMART” tasks that are specific, measurable, achievable, relevant and time bound. She was required to perform an audit but not had not been trained to do the audit. Further, she was requested by Ms Zylmans to complete a report which she considered to be unachievable by October 2019. She reflected that Ms Murray and Ms Zylmans were often in the office, and she was busy in the shed, yet despite not having the time and energy to do the tasks, they were required of her.

[33] She was not invited to weekly meetings by management since her return to work.

[34] On 10 October 2019, Ms Murray placed a sign in the kitchen to the effect that whoever is leaving the table sticky, they need to clean up after themselves, or the kitchen facilities will be removed. Ms Yao considered this to be a slight against her and considered that she always cleaned up after herself. On 13 October 2019 Ms Murray asked her, “What do you eat to make the table so sticky?”

[35] Ms Yao considered that she was not notified about the potential end of her employment before 4 October 2019. She understood that if the business was sold, Murray Farming would attempt to sell it under the same business structure. If, however, nobody purchased the business, it would be suggested that she work in another farm near Brisbane which has a close relationship with Murray Farming. She considered that Murray Farming did not provide to her notice of the business situation, so she didn’t know the real picture of the business.

[36] She contends that on 20 May 2019, Ms Murray promised full time workers they would be transferred to the new employer if the farm was purchased. Further, Ms Elaine Murray suggested that Ms Yao change her IELTS English test appointment from the end of 2019 to the middle of 2019, and her results were achieved in July 2019. Ms Jodi Murray messaged Ms Yao “Congratulations” on hearing her good news.

[37] In June 2019 Ms Yao applied for a New Zealand tourism visa as she planned to holiday there in late 2019.

[38] On 4 October 2019, Ms Yao sent the following email to Mr Murray:

“Dear Sir or Madam,

I would like to request your assistance in applying for 187 visa direct entry stream.

As you may know, I have been thinking about applying for one for a while. I got enrolled in Agribusiness management diploma course provided by Queensland agriculture training college and I will finish final assessments within this month and get the diploma.

I passed IELTS test and each component scores minimum 6.

3 years of experience in related duties.

I realise this is a very special time for the company and it would be not that easy to make a decision about my employment and sponsorships. I am hoping that I can get a chance to apply 187 Visa (Regional sponsored migration scheme) before it close on 16 November 2019.

Whether the decision is yes or no, whether the application is successful or not, I appreciate everyone’s efforts all the time.”

[39] Mr Murray replied on 4 October 2019 as follows:

“Dear Yan

As you are aware, we have been trying to sell our business.

Unfortunately we have been unable to sell the business as a going concern.

All our properties are now being offered for individual sale.

As our production will be severely limited, this means that most positions will no longer be required and most positions to remain will be on a casual basis with hours worked being very variable.

Therefore we no longer have the capacity to continue with any sponsorship arrangements or initiate any new sponsorships in the foreseeable future. As such it would be in your best interests if you source another sponsor.

Staff will be advised later in October as to whether we can retain their employment in the short-term.”

[40] She was not sure what date in October was meant by that email. She considered that other workers in the shed had been informed or had suggested to them that their work would end on 1 December 2019, and the business would shut down on 20 January 2020. On 8 October 2019 Ms Yao replied:

“Hi,

Thank you for your detailed explanation to let me know the current situation of the company. I will understand and support the HR adjustment plan that the management of the company will make.

For myself, I have no current plans to find another employer. First of all, I never expected that I need find a new employer. I thought will have buyer to take over the business and I will work under the same organisational structure, or I will be recommended to work elsewhere near Brisbane. The company’s current development situation and decisions are beyond my expectation. Furthermore, my courses in QATC will be closed at the end of October, and I may go to the school headquarters to meet my mentor after finishing my courses. Finally, I believe and still hope that things will turn out well. Still have chance to resume production next year, I cannot give up at this time.

The right time, place and many factors combine to make things work. I know that under the current circumstances I cannot successfully apply for the 187 visa and it will even end my work and 482 temporary visa. My motto in life is to do what I can do and leave the rest to God’s will. I hope that if possible, I can continue to be a permanent employee after October until May next year. I will continue to work at here, even if the working hours are sharply reduced. I will fill out an application for leave without pay if I work less than 38 hours. And I don’t need any benefits and vacations for permanent employees.

If the development of the company does not usher in a new good turnaround before May next year, I will apply for a protection visa, this is my last step if I can’t work here or find new employer. I have been in Australia for 4 years, I really enjoy the quiet living environment here, I don’t want to go to any country outside Australia.

Still hope for the best, and already prepared for the worst.”

[41] On 15 October 2019, a meeting between Ms Yao, Mr Murray and Ms Zylmans took place. Ms Yao was issued with the following termination letter:

“Dear Yan

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Murray Farming Pty Ltd (the employer) of its operational requirements, and what this means for you.

As a result of winding back our business and cutting back production, the position of Agricultural Technician is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

Unfortunately, as the business is substantially reducing its operations it is not possible to redeploy you elsewhere within the business as there will be a substantial reduction in staff levels.

Your employment will end immediately. Based on your length of service, your notice period is two weeks. In lieu of receiving that notice, you will be paid the sum of $2,319.86.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any flex leave accrued but not yet taken, and superannuation.

If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at

For Australian Residents

If you are an Australian resident and are entitled to Centrelink payments take note that redundancy and leave payments will usually give rise to waiting periods for Centrelink payment. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.

For Sponsored Employees

If you are a sponsored employee, we will have to notify the immigration department of your sponsorships arrangement ending with us. They will provide you with a short period of time to make arrangements with another sponsor. At the conclusion of this time they will cancel your VISA if you have not make alternate arrangements.

We thank you for your valuable contribution during your employment with us. Please do not hesitate to use me as a referee.

Yours sincerely,

Don Murray
General Manager”

[42] Later that day Ms Yao requested several documents from the employer, including a written reference, reimbursement of $627.00 for training, and a copy of a document she signed which she stated she did not properly read before signing. A further meeting was planned to occur on the afternoon of 16 October 2019. Ms Yao then requested the last two years of hand-written time sheets. Ms Zylmans replied to Ms Yao on a few occasions and then said it would be best to discuss in the meeting planned for that afternoon. Ms Yao sent the following email:

“Hi,

Sending email is the most efficient and accurate way to discuss this mater. As I cannot find someone good at English and Chinese to explain it in Chinese with me. Most of the time I work there I am not really understand what are you saying, I am only able to get key words from your sentences and conversation and assume the meaning. So I would suggest everything sorted out in email. Because it will waste more time to discuss this matter and not have any conclusion, if I cannot understand what are you guys talking about in Aus English.”

[43] After several emails between Ms Yao and Ms Zylmans, an interpreter was requested to be available from the Immigration Department.

[44] On 24 October 2019 Ms Yao sent a further email to Murray Farming, including:

(a) A request for a written reference;

(b) Advising that she was hoping to be nominated for sponsorship with another employer, and she has been asked for a reference, but if it’s not provided, that’s OK;

(d) Further request for hand-written time sheets.

[45] On 26 October 2019, Ms Yao sent a further email, including the following:

“…..16/10/19 Meeting closed with I said this dismissal was unfair dismissal. Don Murray asked me look at his eyes and asked me leave the farm soon. I am still not been given any chance to take me belongs or nothing been mentioned about me timesheet rectify………

What’s more there is no discussion at all between me and management team, and I sent email on 08/10/2019 to Don Murray to inquire about any chance to leave without pay or change my job duties and keep my position in Murray Farming. I want confirm that he didn’t answer my email, not because something wrong with my email that resulted I haven’t got any reply……

And I have another booking with GP on 30/10/2019 due to workplace stress since 17/09/2019 until been sacked recently, symptoms including high blood pressure, dizzy and headache and losing weight and appetite, heart beat fast and can’t control breath. I will submit my second workcover claim soon.”

[46] On 28 October 2019, Mr Murray responded by email:

“Hi Yan,

………Marina is planning to make available the time sheet information to you on Tuesday (all this information you have received in your pay summaries in the past).

Reference letter this has been explained to you on a number of occasion.

In your email of 26/10/2019 you have so many inaccuracies/fantasies. I don’t intend to answer them.

We organised an interpreter to be on the phone for you on the 16/10/2019 as you said you didn’t understand us. After the meeting started it became obvious that you would not accept what was being said to you from us or the interpreter. As the meeting went on it became obvious that you were being aggressive towards the interpreter as well towards all other staff present, as this is unacceptable I made sure I had your attention and told you to leave the property and not to return. This was done because of your harassment of my staff and for their mental well being.

I see the email you have sent as a continuation of harassment and as such I am instructing you to make no further contact with Murray Farming physically, phone, email or any other method.

Any further communication will need to be through a third party.”

[47] On the same day, just four minutes later, Ms Yao sent an email to Mr Murray with the heading, “Sorry, I am not able to read your email due to stress”. The email itself was empty. On 2 November 2019 Ms Yao sent a further email again requesting a written reference, or if the employer was uncomfortable, a statement of service.

[48] On account of Ms Yao’s failure to provide relevant information to the Commission as to her role and the duties within, Ms Yao was afforded a further period to submit relevant material. The additional material is dealt with below.

[49] Ms Yao submitted that her position of Agricultural Technician was an essential role which is required at all times unless Murray Farming elected to cease carrying on the business. 3 Ms Yao said her duties and responsibilities were to:

(a) implement dispatch processes;

(b) examine the physical soil characteristics of the farm to determine most effective agricultural use and identify deficiencies;

(d) identify pathogenic micro-organisms, insects, parasites and fungi that are harmful to crops and assist in devising methods of control;

(e) analyse produce to set and maintain standards of quality; and

(f) conduct shelf-life trials and research other methods for enhancing shelf life. 4

[50] These duties match those on the Form 1196N – Nominating overseas employees to work temporarily in Australia dated 4 July 2018 which provided Ms Yao’s responsibilities as:

• Analysing production and produce to maintain high standards of quality;

• Assisting with the planning of harvesting and dispatch as well as other aspect of the production processes;

• Participate in R&D Programs;

• Ensure staff compliance with programs, policies, procedures and WHS; and

• Compliance with Organic, Food safety programs.

[51] The Form 1196N also provided Ms Yao’s main tasks:

• Implement dispatch and packhouse processes;

• Organising and supervise packhouse and harvesting staff movements;

• Analyse results and document quality control systems;

• Prepare and study farm maps;

• Research and supervise packaging methods;

• Manage staff to ensure compliance with Organic Food Safety, WHS and Business Policy; and

• Liaise between staff and management.

[52] Ms Yao said that approximately 10 weeks prior to her dismissal, Ms Murraystarted to carry out Ms Yao’s responsibilities, notwithstanding that Ms Yao’s performance did not alter and Ms Yao did not request any other person's assistance to carry out her responsibilities. Ms Yao said that Ms Murray’s assumption of her duties gradually intensified over the 10 week period, and after Ms Yao’s dismissal, Ms Murray continued to carry out Ms Yao’s responsibilities.

[53] Ms Yao asserted that a new supervisor had been appointed following Ms Yao’s dismissal, on or around 20 October 2019. This person is Ms Lykka Madsen, a farm hand in the business. She contended that Ms Madsen’s work diary demonstrated that she worked similar hours to the hours previously performed by her, and acted as a supervisor, managed the shed ladies and reported to Ms Murray.

[54] Ms Yao produced what she stated was Ms Madsen’s work diary demonstrating hours of work from July 2019 to mid-September 2019. There is a break in work until resumption on 25 October 2019, continuing until 27 November 2019. The tasks described in the diary include:

• Forklift

• Picked and wash

• Clean trays

• Packed corn

• Cleaned out hopper and bins

[55] A diary note, which appears to have been made by Ms Madsen stated the following:

“I worked for Murray Farming from 1 June 2015 until work ran out 6 December 2019.

My job was a farmhand working in the paddock, but got pulled in to the shed when they were in strife. After Yan got redundant I was the only legal person with a forklift license, so I had to work in the shed – which wasn’t my [fortune].

In my opinion Yan was a good supervisor in the shed. Always willing to help and explain why and how you do things. Always clean and helping cleaning up.

Sorry to say but there was NO communication from management about my job – I even ask if farms down south had been sold – and got told no – even though they were already sold (by Jodi). I think this was around September.

Never got told that I might lose my job, until around the end of November beginning December, as sweetcorn still was going to get grown all year.”

Evidence of Murray Farming

[56] Murray Farming submitted that it had attempted to sell the business as a going concern but when the sale did not eventuate, it determined to close down the fresh food operation. In the Form F3 Employer’s response, it was stated that the farm in Dimbulah had ceased any new plantings of zucchinis (the main income generating crop) in September 2019, and sweet potato and sweetcorn plantings were ceased in August 2019 and November 2019 respectively. 5

[57] Murray Farming submitted that the organisation’s gross turnover in the 2019 financial year was $3.679 million, and provided evidence in the form of a signed statement from its accountant. The business employed less than 15 employees.

[58] Murray Farming submitted all staff had been given ample warning in May 2019 that the business fresh vegetable operation was shutting down and had been advised to seek alternative

employment. Of the three permanent employees, one departed on 26 September 2019 and Ms Yao was made redundant on 15 October 2019.

[59] All zucchini harvesting was expected to be completed around 15 November 2019, which would only leave permanent work for one employee and intermittent work for a small number of casuals until sometime in January 2020, when all fresh vegetable harvesting would be complete and the fresh vegetable operation would cease. In October 2019, a staff reduction program was put in place.

[60] Ms Murray’s evidence was that from June 2019 she was requested to compile information for the research and development program, which was part of Ms Yao’s position, as at May 2019, Ms Yao had indicated that she did not want to do this task.

[61] On account of Murray Farming ceasing using labour contractors for field work in mid-November 2019, the remaining harvesting work was performed by the packers from the pack shed, operations staff, and Ms Murray when needed until the conclusion of harvesting in early December 2019. The payroll report produced in these proceedings demonstrate that in Ms Yao’s last week of work, there was 297.25 hours of work performed by employees and 278.75 hours of work performed by contractors. By week ending 20 November 2019, just 181.75 hours of work was performed by four employees, and 121 hours of work performed by contractors. By 10 December 2019, only Ms Murray and Mr Richard Keppel performed any work.

[62] When Ms Zylmans left the business on 6November 2019, Ms Murray also took up the essential tasks of this position as well, and these additional tasks did not require any extra hours from her as the amount of work required had dropped off significantly.

[63] Ms Murray stated that Ms Yao’s duties included assisting her with dispatch activities. As Ms Murray had to take on the R&D duties due to Ms Yao’s refusal to do it, Ms Murray required Ms Yao to provide more assistance with dispatch during this time. Ms Murray said that when Ms Yao had about six weeks off from the end of July to mid-September 2019, all of the tasks Ms Yao assisted with reverted back to Ms Murray.

[64] Ms Murray stated that as the business was beginning to shut down during the time Ms Yao was away, there was no longer any need to have more than one person involved with dispatch, and Ms Yao had a number of other tasks in her role as Agricultural Technician. Ms Murray said Ms Yao showed extreme reluctance to do any of these other tasks or did them in a way that was unsatisfactory. Ms Murray’s evidence was that after the business decided to shut down the fresh food operation, the duties of the Agricultural Technician role were no longer needed.

[65] In her witness statement, Ms Murray provided a table showing the duties Ms Yao was required to perform as part of her role and the status of those duties following Ms Yao’s dismissal:

Task in Fresh Food operation	Status as of Oct 2019
Analysing production and produce to maintain high standards of quality	No longer required
Assisting with the planning of harvesting and dispatch as well as other aspects of the production processes	Assistance no longer required
Participate in R&D Programs	No longer required
Ensure staff compliance with programs, policies, procedures and WHS	Not specific applicable to all staff
Compliance with Organic, Food safety programs	Not specific applicable to all staff
Implement dispatch processes	Multiple staff no longer required
Prepare and study farm maps	No longer required
Research and supervise packaging methods	No longer required
Liaise between staff and management	Not specific applicable to all staff

[66] Relevant to the proceedings before the Commission, it was submitted that Ms Yao simply wanted retaliation for not continuing to be sponsored. Mr Murray’s evidence is that all appropriate advice was sought to ensure the redundancy was compliant with the Act, including obtaining information from the Commission and Home Affairs.

[67] Ms Yao was undertaking study, and she requested and was granted access to office facilities after finishing work. This request was made and granted in November 2018. Further, Mr Murray offered to fund 30% of her tuition, to which Ms Yao stated this was not necessary.

[68] Relevant to Ms Yao’s sponsorship, she was paid $59,000 per annum, plus superannuation, to bring her remuneration to $64,605. Murray Farming stated that it is not possible to change the sponsored employee’s role without first obtaining a new visa that complies with the requirements of a temporary 482 visa. The remaining farm jobs available from October 2019 would not comply with the professional job duties of sponsored employees. Mr Murray’s evidence is that aside from having no suitable tasks to suit a 482 visa application, the remaining time-frame for the fresh food operation was not of sufficient duration to make a visa application feasible.

[69] As for the tasks required of Ms Yao, having a forklift licence is noted as one of the conditions in her sponsorship nomination application. Regarding R&D, Ms Yao did not want to do it, and Mr Murray considered that she shirked her responsibilities, requiring the task to be given to somebody else to perform.

[70] Mr Murray asserted that Ms Yao was not working the excessive hours as claimed by her, and if she was staying back it was to do her own study.

[71] Relevant to Ms Yao’s assertion that she had a good relationship with staff, Mr Murray stated that this was not the case. Ms Murray had cause to document the following incident report on 21 September 2018:

“I was inside the house and heard an argument happening outside in the packing area. I walked out to see what the problem was and found it was Yan and Bella arguing.

I asked them what the problem was. They proceeded to tell me.

Yan has said that she asked Bella to re-pack a tray of corn and Bella refused and started to rip corn instead.

Bella said that Yan has been picking on her and that Yan does not treat the other staff the way she treats her.

Yan then mentioned an un-related issue between Yan’s boyfriend and Bella’s husband and that that was the reason she was treating Bella unfairly.

An argument [ensued] so I took Yan aside to get her side of everything that has happened. Yan said that she had been treating Bella unfairly because of the issue between their partners. She said that they are husband and wife she knows what her husband does so Bella was at fault as well.

I proceeded to tell her that if there is an issue between her boyfriend and Bella’s husband then her boyfriend needs to report it to Bella’s husband’s direct supervisor Don. I also told Yan that what she is doing is bullying and that Bella has no control on what her husband does or says. They are not the same person. Yan admitted that she was being unfair to Bella and apologised to me for the [scene] that was caused.

When I talked with Bella she told me that Yan had been very harsh and criticising a lot of her work and did not do the same to anyone else when they did the same thing.

Bella also said that the argument started because Yan was not happy with the quality of the wrapping of the corn trays (I thought they were fine when I looked when I first went out) and Bella said that she would just rip the corn instead and that Yan could re-wrap if she wasn’t happy with it.

Bella admitted that she was a little snappy but she had been getting criticism from Yan for a while.

As Bella was upset she left work and went home so I thought of the best course of action over the weekend.

On Sunday evening Yan sent a message to me apologising to Bella and her husband to which I forwarded to them.

On Monday morning I got Yan to apologise to Bella in person and reaffirmed the issue with Yan that she is not to take other issues out on people and that any issues that happen should be conveyed to person’s supervisor or manager.”

[72] The text message sent from Ms Yao to Ms Murray is included below:

“Hi, Jodi, all good in shed, Salman decided to work in Darwin 2-4 weeks, he is willing come back to work in Natureshaven. Al good, thanks. And please forward the apology message to Mr Chris if you think it is necessary, I been blocked”

“Morning, Mr Chris and her Bella. Please allow me to apologise for what I said on last Friday to Bella. My behaviour was extremely inappropriate, immature, and lacked the respect you and your family members…..”

[73] Relevant to Ms Yao’s assertions of illegal workers in the workplace, Mr Murray’s evidence is that in all labour hire contracts, he insisted that workers must be legally entitled to work in Australia. When Murray Farming conducted VEVO checks on labour hire workers on its premises, Ms Yao petitioned Murray Farming to employ those workers. Mr Murray sent himself the following email on 22 July 2019:

“Yan just talked to me 6:15pm 22/7/2019

Wants me to employ [name] and [name].

Both did work for [name] (contractor) on our farm when [name] told we would check

[VEVO] they no longer turned up for work.

I told Yan they can work for us if they have the right to work in Australia eg. [Vevo].

Yan insisted that I let them work for Natures Haven.

I told her I can’t have illegals work for us its against the law.

Yan still insisted I let them work.

I ended conversation.”

[74] Relevant to Ms Yao’s concerns with Mr Welsh, Mr Murray wrote to Growcom, an agricultural industry association on 19 July 2019 as follows:

“We have Benyan Yao (Yan) employed on a working visa.

Had a problem on Friday 12^th July.

We have been for several weeks been putting pressure on what was our main contractor to ensure all his people and paper work is up to scratch, as we suspected it wasn’t. We started employing people ourselves and another contractor, on 11 July we informed our contractor that on Friday we would start checking all his workers ourselves and if any were not ok he would not be our contractor anymore.

So on Friday several of his workers did not show. A few for picking in the paddock and 2 from the packing shed.

Chris the overall labor manager looks after the paddock and Yan and Jodi the packing shed (Jodi was away that day).

So Yan has asked one of our workers (this worker is on their last warning on how she treats people)I that brought zucchini to the shed for 2 particular workers to come to the shed.

Chris declined and sent 2 new people as he needed them in the paddock to show the new people how slow they were. [attachment not included]

The shed had 3 experienced ladies in the shed to help with 2 new people the paddock had 10 new people.

(Friday 10am approx) Yan saw Chris and me (Don) talking and came over and aggressively accused Chris of being racists. Chris was taking back and said he knew she was upset about something but he didn’t expect that. Chris has work on aid abroad for a large part of his life married an Indonesian worked in northern Australia with Aboriginal communities and the majority of our workers are Asian.

None of this would have occurred if Yan had rung Chris asking who can he supply to help with the packing. Yan knows this is how it should occur.

Now the icing on the cake [attachment 3 not included] what are your suggestions.”

[75] Mr Murray further explained this as follows in his statement:

“The discrimination issue revolves around Yan requesting additional staff for the packing from the field crew. Yan sent another staff member to collect particular people from the field. Chris could not spare these people and made others available instead. When challenged by the staff member Chris replied something like “She just wants to keep the Chinese connection”. The staff member reported this comment back to Yan. Although Yan says this is discriminatory, it is not, it is a statement of fact and the comment was not made to her. It is noted that Yan did want Chinese/Mandarin speaking people for the shed but chose to make demands for what she wants and was not willing to accept compromise.”

[76] Relevant to the fire where Ms Yao burned her hand, the following is Mr Murray’s evidence in his statement, and included an incident report prepared by Ms Elaine Murray [not reproduced]:

“When the fire was lit the applicant was not doing their job. The applicant was directed not to light a fire and chose to do so anyway. All the work-related material had already been removed by another staff member. Yan wanted to light a fire and collected a bunch of branches from the garden [not her responsibility]. When Elaine approached the site where the fire was burning and asked who had given authority for the fire to be lit, Yan tried to blame someone else. Yan did not realise that Elaine had already spoken to everyone who could have given authority for the fire to be lit and they either had no knowledge of it or they had given a direct order not to light a fire. In one of the numerous claims Yan has made since her redundancy, she submitted photos of her having singed hair. Yan did not mention this or anything about burning her hand subsequent to the fire nor did she mention it in her report about the fire. Elaine’s response to Yan trying to blame someone else was to say “I don’t care, don’t you know ho dangerous it is to light a fire in such windy conditions and so close to trees and buildings”. The fire was lit underneath some palm tress which were already singed black. If they had caught alight there was potential risk to the pack shed, house, adjacent machinery as well as risk of harm to other personnel. Yan would not acknowledge that what she had done was extremely dangerous. Another staff member had come across and was putting out the fire. The outcome of this incident could have been much more catastrophic if they had not done so. A meeting was held with the applicant to discuss the severe nature of this breach and have her sign a letter of compliance to ensure she both understood the severity of the breach and her compliance with directions.”

[77] It has not been provided to the Commission, but it appears that Ms Yao wrote to Murray Farming in mid-July 2019 and early August 2019 asserting grievances in the workplace. Murray Farming engaged a law firm to investigate the grievances and Ms Yao was interviewed on 21 August 2019. The grievances relate to the following:

(a) An allegation that Chris Walsh said words to the effect of “I don’t need those Chinese guys” and/or “I don’t need those Chinese people.”

(b) An incident on 12 July 2019 – the “Chinese connection”; and

(c) An allegation that Chris Walsh said to Ms Yao words to the effect of “Don and Elaine are crazy to let you do that” referring to R&D.

[78] A meeting was held on 28 August 2019 between Ms Yao, Ms Murray, Ms Zylmans, while Mr Murray attended by telephone.

[79] Mr Murray sent Ms Yao and email on 28 August 2019, discussing the meeting that had been held, and noting that at times Ms Yao had been upset. Mr Murray’s email stated that he was satisfied a safe workplace could be provided to Ms Yao, and he welcomed her return. A mediation with Mr Walsh would be organised, noting she had stated that she was agreeable to that proposal. Mr Murray prosed a further meeting the following morning. It appears that the meeting took place on 30 August 2019.

[80] On 29 August 2019, Ms Yao emailed thanking Murray Farming for engaging a lawyer to investigate her grievances. Further she stated:

“I hope tomorrow mediation we can talk about the following things:

1. Chris Walsh need to meet psychologist or psychiatrist to clarify he don’t have any mental health problem (especially no intend of use violence to hurt people) and I suggest him to get certain help from them about how to control his mouth.

2. Spouse should not work together especially have conflicts happened. Bella have done a very good job and helped me a lot this year but I feel stressful to work with her and I think she also feel stressful. The face Chris showed to shed workers is totally different from showed to his wife. I am unable to act as a supervisor and do my job when I know someone is my direct manger’s family member, especially the manager have done something bad to my partner.

3. Hospitalisation cos around $4000? Need to b paid by Chris Walsh. I know this request can’t be supported by law, but I still insist it. If he don’t pay anything he will never remember.

4. I don’t have any other compensation request to Nature’s Haven, because I already got certain help.

5. If I can back to work, I need to get support from Lykka when she is available.

6. If I cannot back to work please help me organise end employment documents.”

[81] A meeting of 30 August 2019 picked up from the meeting of 28 August 2019. The same people were in attendance. A recorded copy of the meeting has been admitted into evidence. An approximate transcription of the meeting is below:

“J. Murray: Before you return to work the issue of the fire needs to be discussed. Issued written warning.

Ms Yao: I appreciate I get a chance to work here and I hope I can work here but I need a safe environment. Yesterday I sent an email to you with five requests. I need to make sure I’m safe to work with Chris. He has intent to use violence. When he gets angry with people he threw his phone. He needs help with psychologist especially his mouth.

D. Murray: [explained he had not read the email thoroughly] Don’t see any problems with Chris is between Murray Farming and Chris, not to be involved with you. You can’t expect us as Murray Farming to force Chris to do things that’s not in the best interest of Chris and Murray Farming.

Ms Yao: I understand that, I only sent request. I’m unable to work with Bella. She’s done a very good job this year and she’s helped me a lot, but only problem is she’s Chris Welsh’s wife and Chris Welsh is my direct manager.

D. Murray: No, Jodi is.

Ms Yao: No, FNQ manager. Jodi is my direct supervisor.

D. Murray: Yes, so she’s your direct manager.

J. Murray: I’m packing, he is field

Ms Yao: I’m unable to work with his wife.

Third thing he need to pay for medical cost I spent this month. It’s around $4,000. It’s up to him, I can’t force, but we can negotiate. If he doesn’t want to pay, that’s OK.

D. Murray: What you’re asking for Chris to do and for us to do, you want us to remove Bella to be removed because she’s his wife?

Ms Yao: I’m unable to work with my managers’ wife. She is like a supervisor in front of me.

D. Murray: I don’t see that at all. That doesn’t make sense to me. The way it works is you are Bella’s supervisor and Jodi is your supervisor. Chris manages paddock and there has to be communication between packing shed and field operations because all those things have to come together. You want us to remove Bella?

Ms Yao: Yes

D. Murray: We have no reason to remove Bella from Murray Farming.

Ms Yao: Ok no problem

D. Murray: She has done nothing to substantiate the removal of Bella from our employment

Ms Yao: I’m not forcing anything, I suggest. You make the decision

D. Murray: I can’t see there being any reason to remove Bella

Ms Yao: OK, no problem

I don’t know why I get this letter, I need time to read it.

D. Murray: Yes, you need time to read it and understand it.

Ms Yao: I already send you the email, I send it again. I hope I can get official.

The last recourse. If any of my requests cannot be accepted I’m happy to sign end of employment document.

D. Murray: I don’t understand.

J. Murray: That she is willing to sin the documents to end our employment.

D. Murray: OK. I’ll have a look at that email and get back to you on that. No worries, Jodi will give you time to read that and understand that and I hope you can sign it before you go away.”

[82] On 2 September 2019, Mr Murray wrote the following email to Ms Yao:

“Dear Yan,

I refer to your meeting on 30 August 2019 with myself, Jodi Murray, your direct supervisor, and Marina Zylmans, note taker.

I also confirm receipt of your email to me on 29 August 2019 at 8.13pm, which I did not read in detail prior to the meeting. I have now considered your email.

I am deeply concerned by a number of the requests that you have made in your email of 29 August 2019 (and reiterated in the meeting on 30 August 2019). In particular, I am concerned by:

1. Your continued agitation to impose a form of punishment on MrWalsh which is not justified in the circumstances nor is it within your right to make such a request as an employee. Murray Farming have gone to considerable lengths to engage an independent third party to assess your complaint as against MrWalsh and it has been found that there is an insufficient basis to conduct a full investigation and/or present allegations to MrWalsh for response. As such, we will not tolerate any further requests by you regarding the issues that have been raised by you against MrWalsh, as they have been dealt with appropriately.

Secondly, there is no basis for you to request that MrWalsh be examined by a psychologist or psychiatrist or that he pay the costs of your hospitalisation. MrWalsh is a contractor of Murray Farming and we have at all times ensured that the conduct of our contractors has not in any way been inappropriate towards our employees. Murray Farming will continue to ensure that this is the case.

2. I do not accept your view that spouses should not work together nor do I accept that it is appropriate for you to direct that I must terminate the employment of Bella in circumstances where there has been no misconduct. Upon your return to work, you will be required to return to work undertaking your usual duties, and we expect you to behave appropriately towards Bella and other staff. We will also require you to undertake refresher training on our policies and procedures.

In the meeting on 30 August 2019, you made a statement about MrWalsh using words to the effect of “he has intent of violence.” You referenced that he deletes people’s phone numbers when he gets upset with stuff. Even if this is the case, I do not accept that is evidence of violence. I will not accept such serious accusations being made about someone which lack particulars and appears to be made with the intention of supporting your desire to have MrWalsh terminated.

I am further concerned that your continued raising of issues with me (and others) concerning past events indicates to me that you are not willing to move forward in employment at Murray Farming and indeed that your behaviour is inconsistent with someone who wants to continue in employment at Murray Farming. You repeatedly raising the issue of Mr Walsh’s alleged poor treatment of your partner is not related to you and we reiterate that we will not be taking any action as the issues that have been raised by you have been appropriately dealt with. Yan, as you are now on annual leave without pay until 15 September 2019, it is our expectation that upon your return to Murray Farming following your annual leave, you will be in a position to move forward and comply with all reasonable management directions.

At the conclusion of the meeting on 30 August 2019, you said words to the effect of “If my requests cannot be accepted, I am happy to sign end of employment documents.” Whilst this appears to be a confusing statement, we consider that if it is your intention to resign from your employment based on this statement, then please put that forward in writing (email) for my consideration. We otherwise await your return from annual leave.

Kind Regards
Don Murray”

[83] Mr Murray’s evidence is that on Ms Yao’s return to work in mid-September 2019, the fact that she did not have access to passwords did not mean that she had a change in job duties. Mr Murray’s evidence is that there had been IT issues, resulting in only one computer station being able to access the sales email account, that being Ms Murray’s computer. Other office computers did not regain access to this email until 2-3 weeks after Ms Yao’s return to work.

[84] Ms Yao was informed during earlier meetings that her first task on her return to work was to review policy as Mr Murray considered that she had been negligent with her compliance with business and WHS policy. The organisation wanted to ensure that she did not risk the health and safety of others. Ms Yao did not want to review policy and wished to return to other tasks immediately.

[85] Mr Murray considered that given the demands that had been made by Ms Yao, Murray Farming’s decision to suspend access to accounts was the correct one until Ms Yao could demonstrate the appropriate emotional stability to return to work. It is Mr Murray’s contention that on Ms Yao’s return to work, she did not accept that the business was winding down and no longer required multiple staff to be involved in dispatch.

[86] Relevant to Ms Yao’s notification of redundancy on 15 October 2019, Mr Murray referred to the email sent to Ms Yao on 4 October 2019 demonstrating her knowledge of the imminent termination of her employment. Mr Murray stated that one staff member had finished up earlier than 15 October 2019, three finished up on 16 and 23 October 2019, three finished in early November 2019, with a further two in early December 2019.

[87] Ms Yao was not packing staff, and she was employed as a sponsored Agricultural Technician. The fresh food operation was shutting down and there was no longer a requirement for an Agricultural Technician. Per Ms Yao’s request to be provided with an opportunity, as an alternative to redundancy, to be on leave without pay, Mr Murray stated that was unethical. In any event, the business did not continue into 2020, with the fresh food operations concluding by mid-December 2019.

[88] On 15 October 2019, having been informed her role was redundant, Ms Yao left the farm. When another meeting was scheduled the next day, with the assistance of an interpreter, it is Mr Murray’s evidence that Ms Yao became aggressive and argumentative and he directed her to leave the farm immediately.

[89] Relevant to the tasks performed by others following Ms Yao’s redundancy, Mr Murray stated that Ms Murray is the Dispatch manager, and Ms Yao’s role had only ever been to assist Ms Murray. An assistant was no longer required. Ms Murray gave evidence that it only took her around 30 minutes to do dispatch work given the reduction in orders.

[90] With respect to Ms Madsen, Ms Murray’s evidence is that she was not a shed supervisor. She had been with the business for 4.5 years, and mostly worked in the field, but would often come to work in the shed to assist with packing activities. Ms Madsen was away for approximately five weeks from mid-September to late October 2019. On her return she resumed her pack shed and field duties. She was utilised to drive the forklift when required, and she had done this on many occasions during her employment.

Consideration

[91] I turn now to a consideration of the criteria set out in s.389 of the Act. For Ms Yao’s dismissal to be a case of genuine redundancy, Murray Farms must meet each of the criteria set out in s.389 of the Act.

s.389(1)(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

[92] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge. 6 Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.7

[93] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt 8 considered this point and established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. The Full Bench in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 and said:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)”

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

[94] It is clear that many of Ms Yao’s duties were consolidated into Ms Murray’s role. This is unsurprising, given Ms Murray was Ms Yao’s supervisor and a number of Ms Yao’s tasks were to provide assistance to Ms Murray. Further, the remaining duties performed by Ms Yao in her job, such as analysing production and produce to maintain high standards of quality, preparing and studying farm maps, and researching and supervising packaging methods, were no longer required to be performed by anyone with the imminent closure of the fresh food operations.

[95] In Solari v RLA Polymers Pty Ltd[2010] FWA 5676, Deputy President Sams considered a redundancy where the employer closed one of its two plants and only one employee, who had worked for 16 years for the employer, was made redundant. The Deputy President found the respondent had a difficult choice to make on the basis of its operational requirements and its knowledge of the applicant’s skills and experience, and ultimately dismissed the applicant. The Deputy President stated (my emphasis added):

“[15] It is perfectly understandable that the applicant would feel hurt, upset and even betrayed by the respondent’s decision to make him - and only him - redundant. It is also understandable that he believes he has the skills to perform the work of the other permanent employees. Most employees after 16 years service would feel they have the experience and knowledge to perform work across the broad spectrum of a company’s operations. This is a natural human reaction. However, when compared to others, this might not always be the reality. Ultimately however, it is the prerogative of Management to manage its business as it sees fit; subject to treating its employees fairly and honestly.

[16] Given the applicant’s 16 years of loyal and conscientious service (which I accept unreservedly), and the respondent’s genuine expressions of regret over the applicant’s redundancy (which I also accept), I have a great deal of sympathy for the applicant. However, sympathy alone does not overrule the legal position or the policy intent of the Act, which denies access to an unfair dismissal remedy where an employee’s termination of employment is a genuine redundancy, as defined. Any forced redundancy is always most regrettable and likely to have a severe impact on an employee and his/her family, particularly someone of the applicant’s age. This is, after all, why all employees are protected, in part, by redundancy payments under their relevant Award or Agreement and why minimum redundancy standards are now a legislated feature of the National Employment Standards (NES). I have no doubt that the respondent acted appropriately in that regard and, in fact, provided a greater period of notice than the Award provides.”

[96] Ms Yao clearly disagrees with the decision to continue to employ Ms Murray rather than herself, and is likely to continue to do so. Further, in October 2019, when the employment appeared to be nearing an end, she put to Murray Farms impossible scenarios to continue her employment. This included having her employed on leave without pay. It would be unlawful to do so, and in breach of the sponsorship arrangement.

[97] Further, Ms Yao’s objection to less-skilled employees continuing to be employed while her role was made redundant completely misses the point. Those employees were not employed as an Ag Technician; only she was. It was not possible for Murray Farming to require of Ms Yao the performance for the bulk of her remaining employment to perform the less meaningful work. For example, it is clear that Ms Madsen performed a large amount of forklift work following Ms Yao’s termination. To require Ms Yao to fill a large part of her working week with forklift duties would not be in the spirit of the sponsorship obligations. Further, she stated that she did not wish to operate the forklift given her psychological concerns.

[98] I do not accept that Ms Madsen stepped into fill all or most of Ms Yao’s duties. Ms Yao procured Ms Madsen’s statement which indicated that she had been employed at the enterprise for around four years. That she operated the forklift following Ms Yao’s departure from the business is inconsequential; Mr Murray’s evidence is that she did so during her employment. Ms Madsen’s own diary demonstrates that she regularly operated the forklift throughout August and September 2019, noting that this was a period when Ms Yao was on leave, but still employed.

[99] I do not accept that Ms Madsen was a shed supervisor on Ms Yao’s departure.

[100] It is an employer’s prerogative, within reasonable and lawful boundaries, having regard to all relevant legislation to manage business as it sees fit. Employees will frequently disagree with business decisions made, especially where they adversely affect them. This does not make those decisions any less valid or prevent the employer from making them.

[101] The term “operational requirements” is a broad term. It involves the past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve efficiency by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.

[102] In this case, the failure of the business to be sold as a going concern coupled with evidence of financial difficulties faced by Murray Farming resulted in the gradual closure of its fresh food operations; a step which was not taken lightly. The decision to downsize the staff to one fulltime employee was made, and Ms Murray was chosen as that employee. This seems a reasonable decision given Ms Murray’s supervisory role meant she was well equipped to perform the duties of Ms Yao’s job.

[103] I consider that while some of Ms Yao’s duties survived, as is evident from the table at [65], which I accept, Ms Yao’s job was no longer required to be performed by anyone because of changes in the operational requirements of Murray Farming’s business. Some of her duties were consolidated into the Dispatch and Spray Manager supervisory position, or because of the closure of the farm, were no longer required to be done at all.

s.389(1)(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

[104] As outlined above, the Agreement covering Ms Yao’s employment outlined consultation obligations in the case of major change, including termination of employment. The most pertinent clause within the Agreement, noting that the proposal to make Ms Yao’s role redundant constitutes major change, is reproduced as follows:

“8.5 As soon as practicable after making its decision, the Employer must:

(a) discuss with the relevant Employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the Employees; and

(iii) measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employees; and

(b) for the purposes of the discussion-provide, in writing, to the relevant Employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the Employees; and

(iii) any other matters likely to affect the Employees.”

[105] Ms Yao made only limited submissions in relation to consultation undertaken with regards to the potential redundancy and termination of her employment. Ms Yao said that Ms Murray had not consulted her in relation to the transport consignment duties and had taken over Ms Yao’s job before she had been dismissed. Ms Yao also submitted she had not been consulted about the changes to access to the SAVI system.

[106] What is known is that on 4 October 2019, Ms Yao wrote to Murray Farms and requested it consider sponsorship for a 187 visa (Regional sponsored migration scheme). Ms Yao stated that she appreciated it was a difficult time for the business but was hoping to apply before 16 November 2019. In unequivocal terms, Mr Murray replied informing her that the business will soon no longer be in operation, imminently the organisation would no longer be in a position to continue her current sponsorship, it would be in her best interests to look for another sponsoring employer, and staff will be informed later in October whether their employment could be retained in the short-term.

[107] Ms Yao responded, thanking Mr Murray for the detailed explanation. She acknowledged that her 482 visa would come to an end. By stating, “I hope that if possible, I can continue to be a permanent employee after October until May next year”, it is a clear indication that she knew, having been informed, that her employment would not continue beyond October 2019. Her next requests would have been unlawful according to the conditions of her sponsorship; she was proposing to work reduced hours, have leave without pay, or not have permanent entitlements. It was simply something that Murray Farms could not agree to.

[108] She finished her email off with, “Still hope for the best, and already prepared for the worst.”

[109] I am satisfied that prior to 4 October 2019, Murray Farming had, pursuant to clause 8.5(a) of the Agreement discussed with Ms Yao the introduction of the change being the potential winding down of the business, the effect the change that would likely have on Ms Yao, and the measures Murray Farming was taking to avert or mitigate the adverse effect on the change Ms Yeo’s employment. This is clear as Ms Yao was aware that every effort was being made to sell the business as a going concern, and if it could not, attempts would be made to secure her sponsored employment with another farm.

[110] I am further satisfied that on 4 October 2019, in responding to Ms Yao, Mr Murray met Murray Farm’s obligations in clause 8.5(b) of the Agreement by providing in writing all relevant information about the change including the nature of the change proposed (i.e. no further employment from some point in October 2019), and information about the expected effects of the change (encouraging her to find another employer sponsor). The email from Mr Murray to Ms Yao was straightforward, forthright, open and transparent.

[111] Ms Yao was informed of the redundancy on 15 October 2019, and due to her reaction, and it appears her lack of English skills, the meeting was repeated on 16 October 2019. The redundancy took effect on 15 October 2019.

[112] I am satisfied Murray Farming complied with the consultation obligations under the Agreement.

s.389(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.

[113] There is no evidence of Murray Farming having any associated entities.

[114] Ms Yao submitted that if Murray Farming restructured the business or sold the business or created a new legal entity, and provided the 482 visa holder worker continued to work in exactly the same position, performing the same duties in the same location, with the same working conditions, and/or the same management and/or the same business name under a new legal entity, there would not be any “side effects” on Ms Yao’s visa. Ms Yao said that if the business did shut down, it would affect her visa.

[115] Murray Farming submitted that redeployment within the business was not reasonable, as the farm in Coleambally had already been closed at the time of Ms Yao’s dismissal. Other employees were being let go at or around the same time as Ms Yao.

[116] Murray Farming submitted that visa 482 holders may only work in the occupation for
which the visa was approved, and to work in a different occupation, they must apply for and be granted a new TSS visa. Murray Farming submitted that Ms Yao made such concessions in her submissions.

[117] Murray Farming submitted it was not possible to redeploy Ms Yao to another position, even if there was one available. It submitted that Ms Yao is incorrect when asserting that she would not have to submit a new visa application unless her visa is about to expire. Murray Farming stated this is only the case if there are no notifiable changes in their status, and if Ms Yao no longer held the position of Agricultural Technician with Murray Farming, she must find a new sponsor and apply for a new visa.

[118] Having had the benefit of being a sponsored employee for some time, upon the role no longer being required, it became a form of a handcuff for Ms Yao. Murray Farming could not find her other less-meaningful work to do, nor agree that she take unpaid leave. It had important obligations pursuant to its sponsorship of Ms Yao, and all of the suggestions made by Ms Yao to keep the employment alive were not able to be lawfully agreed to by Murray Farming. Quite rightly, it rejected Ms Yao’s suggestions.

[119] Reassigning Ms Yao to another position is a breach of the sponsor arrangement and carries hefty sanctions which may include fines, civil penalties, cancellation of other sponsorships, and a bar on further sponsorship arrangements.

[120] There were no other positions for Ms Yao to be redeployed into pursuant to the obligations of her sponsored employment. The business was winding down. It was clear and obvious, yet, Ms Yao was prepared to propose unorthodox and inappropriate suggestions. On 15 October 2019 when her employment ended, there simply was no role she could lawfully perform while meeting the obligations of the sponsorship, which included paying to her the stated annual salary.

[121] I determine that Murray Farming satisfied itself that it would not be reasonable to redeploy Ms Yao before terminating her employment. I am satisfied that Murray Farming was entitled to make such a decision. I determine that it would not have been reasonable in the circumstances for Ms Yao to be redeployed within Murray Farming’s enterprise or any associated entities of which there is no evidence that there is any.

Conclusion

[122] Having regard to the matters outlined above, and in particular the requirements of s.389(2) of the Act, Murray Farming has satisfied the requirements that the termination of Ms Yao’s employment was a case of genuine redundancy.

[123] I note that the submissions in this matter from both parties were lengthy and often immaterial or irrelevant to the issue of whether Ms Yao’s dismissal was a genuine redundancy. The parties were invited to submit material relevant to the consideration in s.387 of the Act in the event that I dismissed the jurisdictional objection.

[124] It is clear, however, that there is significant ill-will between the parties that may not be resolved by this decision. It was rather disappointing to observe the parties’ disintegrating relationship in the weeks and months leading to the date of the determinative conference. Significant amounts of material before the Commission dealt with these issues, some of which have been touched on briefly above. I remark, however, during the determinative conference Ms Yao noted that Ms Murray was a very good supervisor to her.

[125] Both parties were self-represented for the majority of this matter. At various times in correspondence Ms Yao sought to inform the Commission of other matters of concern to her, unrelated to her employment or dismissal. Ms Yao is encouraged to carefully digest this decision. I consider it to be in her best interests to use her relevant work experience and tertiary qualifications to endeavour to find alternative employment and to put in the past what she now, without good reason, considers an unpleasant experience. Ms Yao should reflect that it was she who held the desire and willingness to work at Murray Farms up until May 2020 if that could be achieved, and at her urging. With rational reflection, Ms Yao should be able to concede that but for the business winding down, and her role naturally falling away as a result of the winding down, she may well have been employed for a longer period of time. The fact remains that the business no longer needed her role to be performed, and before too long, all fresh food roles were concluded.

[126] Having considered all of the facts and circumstances of this matter, I have determined that Ms Yao’s dismissal on 15 October 2019 was a case of genuine redundancy and was not an unfair dismissal in accordance with s.385(d) of the Act. The substantive application pursuant to s.394 of the Act is dismissed.

[127] I Order accordingly.

COMMISSIONER

Appearances:

B Yao, Applicant.
D Murray and J Murray, for the Respondent.

Hearing details:

21 April 2020, Brisbane (by Telephone).

Printed by authority of the Commonwealth Government Printer

1 [2010] FWAFB 7578, [5].

2 [2019] FWCA 2152 AE502636.

3 Ibid at [2].

4 Ibid.

5 Respondent’s Form F3, Q2.2.

6 Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32]

7 Ibid

8 [2010] FWA 674.

Ms Benyan Yao v Murray Farming Pty Ltd T/A Natures Haven

[2020] FWC 2990

24 JUNE 2020

DECISION

Background