Qian Tang v Hisense Australia Pty Ltd
[2024] FWC 2259
•27 AUGUST 2024
| [2024] FWC 2259 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Qian Tang
v
Hisense Australia Pty Ltd
(U2024/2835)
| COMMISSIONER WILSON | MELBOURNE, 27 AUGUST 2024 |
Application for an unfair dismissal remedy. Initial matter for determination – genuine redundancy. Genuine redundancy found and application dismissed.
This decision concerns an application for unfair dismissal remedy lodged by Ms Qian Tang, who was dismissed by Hisense Australia Pty Ltd on 21 February 2024, ostensibly for reason of genuine redundancy. At the time of her dismissal, Ms Tang was employed as a HR business partner and had recently returned from a period of parental leave. Ms Tang’s unfair dismissal application was made on 12 March 2023.
Section 396 of the Fair Work Act 2009 (FW Act) requires the determination of four initial matters before consideration of the merits of the application. Those matters are, whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that either of the first three matters required consideration and in relation to those matters, I find that Ms Tang’s application was lodged with the Commission within the 21-day period for making applications required by s.394(2); that at the time of her dismissal she was protected from unfair dismissal; and that the Small Business Fair Dismissal Code has no application to her termination.
On 19 March 2024, Hisense Australia filed a Form F3 – Employer Response to application for an Unfair Dismissal Remedy in which it raised the jurisdictional objection that Ms Tang’s dismissal was an instance of genuine redundancy. Ms Tang puts forward that the dismissal does not comply with the statutory definition of genuine redundancy and that the dismissal itself is unfair for other reasons and in particular that she was targeted for dismissal, having recently become a new mother and taken parental leave. Due to the interlinked nature of whether Ms Tang’s dismissal was a genuine redundancy and the merits of her case, I determined that these matters should be heard together.
Having had regard to ss.397-399 of the Act and having consulted with the parties, I conducted a determinative conference about these matters on 13 June 2024. Ms Tang attended the determinative conference and gave evidence on her own behalf. Ms Ran Sun, Hisense’s operations director appeared and gave evidence on behalf of the respondent.
For the reasons set out below, I am satisfied that Ms Tang’s dismissal was a genuine redundancy and that consequently, her unfair dismissal application must be dismissed.
BACKGROUND
Ms Tang’s evidence is that she commenced employment with Hisense Australia as an admin officer on 10 November 2016, and that shortly after, she assumed duties of a human resources business partner. Ms Tang asserts, and Hisense does not contradict, that Ms Tang’s employment was covered by the Clerks - Private Sector Award 2020.
Ms Tang acted in the position of HR & Admin Manager between 31 March and 20 April 2023, however, was otherwise employed as a HR Business Partner. Ms Tang proceeded on parental leave on 20 April 2023 and returned to work on 5 December 2023.[1]
Ms Tang says that during the period of her parental leave, two other employees, Jess Han and Jin Lin were hired to cover her workload. Ms Tang was also nominated during her maternity leave in June 2023 to participate in a management talent selection interview.
Ms Tang says that upon her return to work on 5 December 2023, she experienced a notable shift in attitude from Ms Sun and that a number of her responsibilities, including payroll, were reassigned to other colleagues. Then, on 4 January 2024 “Ran Sun proposed a transition to casual employment, which can only offer one or two days a week, due to a perceived lower workload, and threatened redundancy termination if I declined. I asked about the redundancy selection process, but I received no clear response”.[2]
The following day, Ms Tang was asked to attend a restructure meeting which was to be held on 8 January 2024. On 7 January 2024, Ms Tang requested the meeting be rescheduled owing to a health condition she was experiencing, and Hisense agreed that the date of the meeting should be changed. The meeting was eventually rescheduled to 19 January 2024.
Before the meeting took place, and after it was first notified, Ms Sun wrote to Ms Tang, indicating that certain documents were missing from her employee file and requested that she provide them to Hisense. Ms Sun also asked for Ms Tang to sign copies of the company’s Employee Handbook and Safety and Health Handbook.
The rescheduled meeting took place on 19 January 2024, in the course of which Ms Tang was told her position was no longer required and that instead, Hisense could change her role to that of a casual human resources business partner or that she could be made redundant. The matters discussed within the meeting were summarised in a letter from Ms Sun to Ms Tang dated 19 January 2024, the contents of which included the following;
“Notification of proposed restructure
This letter serves to provide written notice of a proposed major workplace change that may affect your position.
We are considering either changing the role to casual HRBP or getting the role redundant.
At our meeting today, we discussed this proposal with you. We then invited you to attend a further meeting on 23/01/2024 at 4pm where we will consider any proposal or alternatives you make before we make a final determination on the proposed restructure. This will include any strategies to minimise any negative impact of the changes.
We will take all the information before us at that time to make a final determination on the proposed restructure and the impact on your role.
If you have any questions, please do not hesitate to contact us.”[3]
Ms Tang was invited to attend a further meeting with Ms Sun on 23 January 2024, in which Ms Sun “reiterated the intention to terminate me due to the rejection of casual employment”, with Ms Tang in response emphasising “the unfairness of this decision”.[4]
On 23 January 2024, Ms Tang declined the proposal to move into a casual position, stating the following in an email to Ms Sun;
“I am writing to formally communicate my decision to decline the offered casual position. As a full-me employee with Hisense Australia on a permanent basis, I do not agree to change to casual employment.
Furthermore, I must express my concerns regarding the redundancy proposal. It appears that there is no legitimate reason for the redundancy, and it does not align with genuine redundancy criteria. This situation does not adhere to legal processes, and I cannot accept a non-genuine redundancy.
I kindly request a thorough review of the redundancy decision, considering the lack of reasonable grounds and adherence to legal procedures. I am open to discussions to resolve this matter amicably.”[5]
Hisense responded to this correspondence by confirming in writing that Ms Tang would be dismissed for reason of redundancy, with her being provided with four weeks’ notice of the impending termination of her employment. Further, she was provided with 13 weeks wages, stated by Hisense to be “a genuine redundancy payment”, as well as the payment of any accrued statutory leave entitlements.
Ms Tang was fortunate enough to obtain further employment on a full-time basis which commenced on 6 March 2024, with the pay rate stated by Ms Tang to be in excess of the salary paid to her by Hisense.[6]
CONSIDERATION
In this case, Hisense argue Ms Tang was dismissed for reason of genuine redundancy and does not say that Ms Tang’s capacity or conduct was the reason for her dismissal. While that is so, Ms Tang puts forward that because of associated matters arising at or around the time of termination, she believes matters of capacity or conduct were Hisense’s operative reasons for termination. While those contentions are amply evident, s.396 requires determination of whether the dismissal was a case of genuine redundancy “before considering the merits of the application”.
The Act defines a genuine redundancy in the way set out in s.389:
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.
It is evident from the above that the features of a genuine redundancy include that the job in question is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; that the employer has complied with any obligation of an applicable modern award or enterprise agreement to consult about the redundancy; and a termination cannot be a genuine redundancy if redeployment would have been reasonable in the circumstances.
Evidence
Ms Sun gave extensive evidence about Hisense’s reporting structure and the pressures on the business both internationally and in Australia, pointing to those factors as the reasons for the loss of Ms Tang’s job.
Hisense’s global headquarters are in Shandong province, China and the local business works in tandem with directions given by its parent company. Relevant to this case is that Hisense Australia’s business plan for 2024 was only finalised and approved by its head office in December 2023.[7] Hisense made the decision to reduce the quantity of its Australian team members in early December 2023, with Hisense’s headquarters instructing that there should be reductions in the number of people employed in the Australian operations.[8] Ms Sun’s evidence is that Hisense Australia was given a forward target of 120 employees and that instructions were given for the reduction by Hisense Australia of around 10 positions in order to achieve the target.[9] Following these instructions, the Australian business needed to make decisions about where in its operations staff reductions could be made. The managers in the local business discussed the impact of the instruction, with Ms Sun giving this evidence about the implementation of the decision to reduce staff;
“THE COMMISSIONER: Having got the instruction from headquarters, what did local management do about that? Did they make a decision that we will have this many from sales, this many from warehouse, this many from HR?
MS SUN: Yes. We have a discussion about the whole business and the employees in each department and their role. So we try to formally make a role redundant if we think that they don't have forward role, we don't need it and can share it between other members.”[10]
In around mid-December 2023, the decision was made by Ms Sun and other managers to reduce its human resources staffing by one position.[11] Following this in-principle decision, and also in mid-December 2023, Ms Sun assessed each of the three staff who could be made redundant, which included Ms Tang, against five criteria. She reports the process in her witness statement in the following manner;
“6. In the plan for Y2024, we have no new headcount for the Finance and Logistics Departments. These two teams had low turnover rate since Jul 2023 and that means the work related with HR in the Finance and Logistics Departments will decrease dramatically.
7. The HRBP workload for the Service, Sales & Marketing Departments were likely to remain steady for Y2024.
8. I assessed all three HRBPs to select the person for redundancy. The assessment was based on:
a. Recruitment experience;
b. Communication skill;
c. English proficiency;
d. Work efficiency; and
e. Multi-task skills.
9. Ms. Tang scored the lowest out of the three HRBPs in terms of recruitment experience, communication skill and English proficiency. Ms. Tang was unconfident about her English skill and from what I recall she has either never or rarely held interviews with native English speakers. I think this is a necessary skill to be a good HRBP in Australia.
10. The full assessment table was as follows:”
”[12]
As may be seen, Ms Sun rated Ms Tang lower than the other two candidates on a number of matters, including communication skills and English proficiency, with Ms Sun giving the following oral evidence about her rating of Ms Tang on these criteria;
“THE COMMISSIONER: One of the comments which is made - I'm sorry, just a moment. Yes, one of the comments which is made at paragraph 9 is that Ms Tang scored the lowest of the three about English proficiency, which I understand what you're saying in that respect, but what about the other four criteria? What caused you to rank Ms Tang lower or equal to some of the others?
MS SUN: Well, I go one by one. From recruitment experience, in Hisense Australia, we generally have native English speaker and native Chinese speaker. So when we're doing the recruitment, we have - that's why it's relevant with English proficiency that we sometimes have to communicate with them in two languages, depending on which one they feel comfortable. However, Ms Tang, according - or as far as I recall, she didn't have any experiences in recruiting English natives, so we had a conversation before about that - years before - she felt a little unconfident about her English skills, so she turned down those opportunities when we have the interview with native English speaker. So that's why it narrowed her experience on the recruitment only for Mandarin speaking candidates. But, however, for the whole company, especially in service and sales marketing department, most of our employees are native English speaker.
THE COMMISSIONER: Sure.
MS SUN: And communication skill is - in the daily work, I feel Ms Tang was not - well, is not intelligent, emotionally intelligent enough, or sometimes a little bit emotional when dealing with conflict, cannot express herself clearly and rationally, compared with the other two. English proficiency, I have already said, and then the other four.[13]”
There is common ground between the parties that in the meeting held on 19 January 2024, Ms Tang was offered casual employment, which she rejected both within the meeting and later.
There is also agreement that there was a further meeting with Ms Tang on 23 January 2024 and that following the meeting, Hisense’s decision to make Ms Tang’s position redundant was confirmed to her in writing, with her being informed of the following;
“Dear Jessie,
Termination of employment by reason of redundancy
This letter serves to confirm that a decision has been made to terminate your employment by reason of redundancy.
This follows our initial consultation meeting on 19 January 2024 and subsequent meeting on 23 January 2024. As confirmed at the conclusion of our meeting, having considered the matters that you raised in response to the proposed restructure impacting on your position, and your rejection of transferring to causal HRBP, you were advised that the business will proceed with making you redundant.
Taking into account your length of service, the notice period is 4 weeks. Your last day with Hisense will be 21/02/2024.
The business will make the following payments to you:
(a) 13 weeks' wages as a genuine redundancy payment; and
(b) any accrued annual leave and long service leave owing to you.These final payments will be subject to tax (where applicable) and all final amounts will be paid into your bank account within 7 days of the termination of your employment. Final superannuation payments will also be paid into your superannuation fund.
We thank you for your contribution to the business and wish you all the best in your future endeavours.
Kind regards”[14]
A payslip submitted by the Respondent in its documents confirms these payments, including that Ms Tang was paid 494 hours of redundancy pay, equivalent to 13 weeks pay at 38 hours per week.
Beyond the assertion made by Ms Tang that she was dismissed for reason of having exercised a right to parental leave or for some other matter of discrimination associated with her parental status, there is no evidence before me that would lead to a conclusion that such was an operative factor either in the decision to dismiss Ms Tang or the decision to select her for redundancy.
In the circumstances, it is unnecessary to make findings of credit about the evidence given respectively by Ms Tang and Ms Sun. In my view, after hearing what each had to say, it may be observed that each put forward their perspective openly and honestly and that where the perspectives differ those differences are explained by their differing involvement in the decision to terminate Ms Tang’s employment.
Having said that, I prefer Ms Sun’s evidence over that of Ms Tang, not that it is more credible or that Ms Tang’s lacks credibility but rather, Ms Sun’s evidence goes to the heart of the decision-making by Hisense about which Ms Tang is unable to directly contradict, because she was not involved in the relevant decisions. Instead, Ms Sun described a compelling set of decision-making in mid December 2023 by the Hisense head office, which left the Australian entity with no choice other than to reduce its overall staffing. I accept as well Ms Sun’s evidence about the skill ratings she gave each of the three HR Business Partners. Ms Sun explained how she considered each criterion and how she then rated each individual. I accept that she had to make difficult decisions about three employees involved and, relevant to Ms Tang, that she gave a higher rating to the other two employees because of what she described as their native English skills.
I turn now to a consideration of the criteria within s.389 (Meaning of genuine redundancy).
Whether the job in question was no longer required to be performed by anyone (s.389(1)(a))
Ms Sun’s evidence that Hisense Australia needed to reduce by up to 10 people in order to achieve its ongoing target of 120 employees was not rebutted by Ms Tang. While noting that position, such is not a criticism of Ms Tang as the capacity of a former employee to know about or diminish evidence of the employer about a large-scale redundancy event is necessarily limited and, in Ms Tang’s case, unable to be met.
The matter then turns to whether Ms Tang’s position itself was redundant in the sense of Hisense no longer requiring her job to be performed by anyone because of changes in the operational requirements of Hisense’s enterprise. Ms Tang does not concede her job is no longer required to be done by anyone.
The evidence of Ms Sun is that there were three employees performing essentially generic roles in the human resources department, that she needed to reduce that number by one, and that she then had to assess which of the three should be selected for redundancy. In this regard, she decided to assess the performance of each against key skill criteria. Ms Sun’s evidence then was that, of the three employees, Ms Tang’s performance was the weakest of the three, recording the lowest comparative score in 3 of 5 criteria. In her oral evidence, Ms Sun explained that Ms Tang’s communication skills and her English proficiency were not as strong as the other two candidates. In the absence of alternative evidence that would suggest these rankings were contrived or otherwise not be relied upon, I accept what Ms Sun has to say on the subject, with it following that Hisense was within its rights to declare that Ms Tang’s job was no longer required to be performed by anyone because of changes in its operational requirements.
Whether employer complied with modern award consultation obligation (s.389(1)(b))
The parties accept the Clerks - Private Sector Award 2020 (the Award) applied to Ms Tang’s employment which provides the following about consultation with employees;
“38. Consultation about major workplace change
38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
38.2 For the purposes of the discussion under clause 38.1(b) , the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b) .
38.5 In clause 38 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.”
Operation of the clause is triggered by the making of “a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees” and there is no question that the circumstances in which Hisense found itself in mid-December 2023 and January 2024 meet this test. Because of the decisions taken about the company’s 2024 employment target, numerous people were to lose their job, or have their job changed. Those circumstances plainly meet the threshold requirement for activation of the steps in Clause 38.1, in the event of “a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects” as well as the definition of “significant effects” as set out in Clause 38.5.
At this point, Hisense was obliged to give notice of the changes to affected employees and their representatives and to then discuss with employees and their representatives the things set out in Clause 38.1(b) and to commence those discussions “as soon as practicable” after the definite decision was made (Clause 38.1(c)). Clause 38(2) requires information in writing to be given to the affected employees and their representatives and Clause 38(4) requires the employer to promptly consider any matters put to the employer about the notified changes.
I am satisfied that notice was given to Ms Tang of the definite decision taken by Hisense to reduce its Australian staffing generally and the likely impact of that decision on her own position. In particular, such notification was likely given in the discussion Ms Sun held with her on 4 January 2024. In this regard Ms Tang accepts that, in the course of their conversation on that day, the proposal was made that Ms Tang move to casual employment and that failing that, her employment may be terminated. Similarly, the evidence about the meeting on 19 January 2024 leads to acceptance that Ms Sun reiterated the circumstance in which Hisense found itself, as well as that she asked Ms Tang for her suggestions on minimising the potential negative impact of the decision on her, albeit that Ms Tang declined to comment.
I am also satisfied that there was written notification given by Hisense to Ms Tang about the change decision as well as the potential impact of the decision upon her. The evidence also leads to a finding that there were discussions with Ms Tang about the proposal and that she was specifically advised that one of the consequences of the change might be that she lose her job for reason of redundancy.
These matters lead me to be satisfied that the requirements of Clause 38 of the Award had been met by Hisense. The consultation obligation in the Award was for notice and information to be given; for discussion; and for prompt consideration of “any matters raised by the employees or their representatives about the changes in the course of the discussion”. I am satisfied that notice, provision of information and discussion as soon as practicable took place. There were no matters of substance raised by Ms Tang, other than for her to say she was not interested in moving to a casual position.
Whether redeployment would have been reasonable in the circumstances
I am also satisfied Hisense considered the potential for redeployment of Ms Tang into another position and in fact offered a casual position to her. The dimensions though of that position were not completely clear to Ms Tang. Her then current position was a full-time, 38 hour per week position and the proposal as put by Hisense was for what appears to be a genuinely casual arrangement, with no guarantee of minimum hours. Despite that situation, I am satisfied that the position offered to Ms Tang was the only one available to her within the company at that time.
It follows from the above findings about the s.389 elements that Hisense Australia’s objection to this matter has been made out.
Conclusion
I am satisfied for the reasons set out above that Ms Tang’s dismissal by Hisense Australia was a ‘genuine redundancy’ as defined, one of the initial matters requiring determination under s.396. It follows that I must dismiss Ms Tang’s unfair dismissal application, an order doing so is issued at the same time as these reasons for decision.[15]
COMMISSIONER
Appearances:
Ms Q Tang for the Applicant
Ms R Sun for the Respondent
Hearing details:
2024.
Melbourne:
13 June.
[1] Transcript, PN 67 – 72.
[2] Transcript, PN 40.
[3] Applicant’s Documents; Digital Hearing Book, p.31.
[4] Application Form, Form F2, Attachment; Digital Hearing Book, p.7.
[5] Email from Jessie Tang, Employer Response Form, Form F3, Attachment; Digital Hearing Book, p.142.
[6] Transcript, PN 75 – 82.
[7] Transcript, PN 88.
[8] Ibid, PN 101 – 108, 113 – 115.
[9] Ibid, PN, 121 – 128.
[10] Ibid, PN 129 – 130.
[11] Ibid, PN 132.
[12] Witness Statement of Ran Sun; Digital Hearing Book, pp.184 – 185.
[13] Transcript, PN 149 – 152.
[14] Applicant’s Documents; DHB, p.36.
[15] PR778574.
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