Wei Zhao v Style Times Australia Pty Ltd
[2010] FWA 5247
•18 AUGUST 2010
[2010] FWA 5247 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Wei Zhao
v
Style Times Australia Pty Ltd
(U2010/6944)
COMMISSIONER ROBERTS | BRISBANE, 18 AUGUST 2010 |
Application for unfair dismissal remedy - jurisdiction - small business employer - redundancy.
[1] This decision concerns an application lodged on 12 March 2010 by Mr Zhao pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of his employment by Style Times Australia Pty Ltd (Style Times or the Company).
[2] The application was dealt with by a Fair Work Australia conciliator on 8 April 2010 but the conciliation was unsuccessful. The arbitration came before me for hearing in Sydney on 5 July 2010. Directions had been issued on 4 May 2010 for the filing of submissions, witness statements and other documentary materials and the directions were complied with by both parties. Mr Zhao represented himself and Mr Y Liu (Director of Style Times) appeared for the Company. An interpreter, Mr R Xiang, assisted both parties. Both Messrs Zhao and Liu gave sworn evidence.
[3] The Company raised a jurisdictional issue, claiming that it employed fewer than 15 full time equivalent employees at the time Mr Zhao’s employment was terminated and that his termination was a genuine redundancy.
Background
[4] Mr Zhao was first employed by Style Times in October 2003 and his employment was terminated by the Company on or about 5 March 2010. As noted above, the Company maintains that the termination was result of a genuine redundancy. Mr Zhao disputes this.
Legislative Framework
[5] Sections 385 and 389 of the Act provide:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
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.”
Evidence
Mr Zhao
[6] Mr Zhao gave sworn evidence. It was his evidence that he had worked hard for the Company and been promoted to the position of Manager. 1 This led to an increase in workload and a loss of overtime payments.2 In October 2007 he suffered an unexpected heart attack.3 He had no lifestyle factors which would have indicated that he might be in danger of developing heart disease and came to believe that it arose from his work.4 The Company subsequently “... made a couple of attempts to fire me...”5 He was finally dismissed by way of a letter dated 1 February 2010 with an operative date for the termination of on or about 5 March 2010.
[7] In cross-examination, Mr Zhao was questioned extensively on the possible link between his work and the development of heart disease and the alleged non-payment of overtime. 6
Mr Liu
[8] Mr Liu gave sworn evidence. It was his evidence that there was nothing to link Mr Zhao’s heart condition to his work for the Company. 7
[9] “The reason I dismissed Mr Zhao is that after global financial crisis, my business saw a downturn. My sales volume shrank. These dramatic changes were mentioned in my submissions to you. When my business was so bad that I could no longer manager to keep so many employees, as an employer I had no choice but to make some of them redundant. Another point I want to mention is that since October 2008, my company has been sacking people from time to time. During the period between October 2008 and March 2009, we made a total of 10 people redundant and Mr Zhao was the last. He was dismissed in March 2009. That is to say, when Mr Zhao was dismissed, he was the ninth. Because Mr Zhao was good at work and competent, that is - I dismissed him last and he was the last to be dismissed. So there’s no such thing as discrimination against Mr Zhao. I have grounds. If I had ever had such discrimination, he should have been the first to be sacked, not the ninth. The first eight cases of redundancy were genuine redundancies as well. The first eight cases of redundancy were happily settled. When it came to Mr Zhao’s turn, he said he was unfairly treated, so I think his claim is untrue. That’s all I want to tell you. Thank you.” 8
[10] Nothing of relevance arose in cross-examination.
Submissions
[11] Both Mr Zhao and the Company filed written submissions. 9 Mr Zhao’s written submissions repeated his oral evidence concerning his working responsibilities and health. His employment had been terminated by Mr Liu when Mr Zhao returned from an overseas holiday on 1 February 2010. He went on to say: “My understanding is Mr Liu has had my dismissal in his mind during my illness period and he had attempted to dismiss me several times ever since.”
[12] In a further written submission filed with the original application for relief, Mr Zhao raised the issue of non-payment of redundancy and claimed that the Company had replaced all long term full time employees with part-time and casual workers.
[13] In written submissions, the Company, through Mr Liu, submitted that the Global Financial Crisis had badly affected the Company’s financial position and it also faced cost increases of between 25 and 35 percent, allied with a drop in sales volume. This in turn led to a need to decrease the full time workforce. It was further submitted that between 17 May 2008 and 13 March 2010, a total of nine employees (including Mr Zhao) had been dismissed. Those employees’ names and the dates of their terminations of employment were set out in the written submissions.
[14] Mr Liu went on to submit that Mr Zhao had continued in employment for some 59 weeks after his heart surgery and that other employees had been terminated during that period.
Conclusions and Findings
[15] Firstly I turn to the issue whether the Company is a small business employer. In response to questions from me, Mr Liu said that his Company employed a total of five full time employees and three part-time employees as at the date of the termination of Mr Zhao’s employment. 10 Nothing was put to me by Mr Zhao to seriously challenge Mr Liu’s claim. On the balance of probabilities, I find that the Company employed fewer than 15 full time equivalent employees at the relevant time. I am also satisfied that Mr Zhao was given five weeks paid employment after being notified on 1 February 2010 that his employment was to be terminated. There was some confusion on Mr Zhao’s part over this matter as he was required to work out his notice and was not paid money in lieu.
[16] Having determined that Style Times is a small business employer, I now turn to the redundancy issue.
[17] Mr Zhao relied on the fact that the work he used to do is still being performed by someone to argue that the termination of his employment was not a genuine redundancy. He said: “Just now Mr Liu said that after I was fired nobody replaced me and nobody was appointed in my place. I don’t think what he said is true because it is impossible that nobody was hired to do my job. For example, in the past I was in charge of the outdoor installation. The business is still out there, so they still get such jobs from our clients. So definitely there must be someone doing these jobs.” 11
[18] In reply to Mr Zhao, Mr Liu said no new employees had been hired to replace Mr Zhao and that the work previously performed by the Applicant had now been outsourced to another company and some of Mr Zhao’s former duties were being performed by current employees. 12
[19] Following Mr Liu’s reply, I asked Mr Zhao directly if he accepted that the work he formerly performed had been outsourced and he replied: “Yes, I accept it, it was outsourced.” 13
[20] In the light of Mr Zhao’s concession, I am confident in finding that the termination of his employment was a genuine redundancy. Given the small employer status of Style Times, no redundancy payments to Mr Zhao would follow.
[21] All in all, and on the balance of probabilities, I find that the termination of Mr Zhao’s employment by Style Times was a genuine redundancy and the Tribunal therefore lacks jurisdiction to further consider Mr Zhao’s application for relief. Mr Zhao’s application is therefore dismissed.
COMMISSIONER
Appearances:
W Zhao, the Applicant.
Y Liu, for Style Times Australia Pty Ltd.
Hearing details:
2010.
Sydney:
July 5.
1 Transcript PN37.
2 Ibid.
3 Transcript PN38.
4 Transcript PN39.
5 Ibid.
6 Transcript PNs50-73.
7 Transcript PN109.
8 Transcript PNs111-113.
9 Exhibits Zhao1 and Liu1 respectively.
10 Transcript PNs86-94.
11 Transcript PN152.
12 Transcript PNs147 and 156-162.
13 Transcript PNs169-170.
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