Xiaokun Hou v Scene Perfection Pty Ltd/The Trustee for Scene Perfection Unit Trust
[2025] FWC 2851
•24 SEPTEMBER 2025
| [2025] FWC 2851 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Xiaokun Hou
v
Scene Perfection Pty Ltd/The Trustee for Scene Perfection Unit Trust
(U2024/12113)
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 24 SEPTEMBER 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy - failure to comply with consultation obligations – dismissal unfair – compensation ordered
Ms Hou was employed in the position of Sales Assistant/Accounts Receivable/Receptionist by Scene Perfection Pty Ltd/The Trustee for Scene Perfection Unit Trust (Respondent) from 5 September 2022. Ms Hou was given written notice on 23 September 2024 that her employment would end by reason of redundancy on 18 October 2024. After further exchanges Ms Hou was paid four weeks in lieu of notice and her employment ended on 23 September 2024. Ms Hou contends that her dismissal was harsh, unjust and/or unreasonable.
A number of issues were raised by the Respondent in these proceedings including that:
a)The Respondent is a small business employer and complied with the Small Business Fair Dismissal Code (Code);
b)Ms Hou’s dismissal was a genuine redundancy;
c)Ms Hou’s dismissal was not otherwise harsh, unjust or unreasonable; and;
d)if Ms Hou’s dismissal was harsh, unjust or unreasonable that no remedy should be awarded by the Commission.
Having considered the evidence filed and submissions made by the parties I have determined that:
a)Ms Hou’s dismissal was not a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act) as the Respondent did not comply with an obligation in a modern award to consult Ms Hou about the redundancy;
b)Ms Hou’s dismissal was harsh and unreasonable; and;
c)that Ms Hou should be awarded compensation of $4,050.00 plus $465.75 in statutory superannuation.
Hearing and Evidence
After considering the views of Ms Hou and the Respondent, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (per s 399 of the Act). I heard Ms Hou’s dismissal case against the Respondent on 10 March and 2 April 2025. Over the months following the hearing the parties filed further evidence and submissions.
Ms Hou gave evidence on her own behalf. Mr Tao Xing (also known as Elton Xing), director of the Respondent, gave evidence on behalf of the Respondent with the assistance of an interpreter in the Mandarin language. Statements of both witnesses and Mr Hongfeng An, on behalf of Ms Hou, were tendered into evidence.
Both Ms Hou and Mr Xing urged me to make adverse credit findings regarding the other witness for various reasons. Having considered the documents relied on in support of their positions on credit, and evidence given by each witness I decline to make any such findings. I found both witnesses to be reliable witnesses of credit. I make this finding based on what each witness said including appropriate concessions made by Ms Hou and Mr Xing under cross examination. Where there were inconsistencies between documents filed and oral testimony, I consider those matters to be minor and to be expected given the time that has passed since the events leading up to Ms Hou’s dismissal. Where there is a factual contest between the evidence given, I have determined whose evidence I prefer below.
Ms Hou also tendered documents including:
· An outline of arguments dealing with merits and the jurisdictional objections, which included both evidence and submissions;
· A bundle of documents in relation to Ms Hou’s employment, including a contract of employment, redundancy letter, payslips, timesheets, description of her role and her coverage under the Clerks – Private Sector Award 2020 (‘Clerks Award’);
· Internal correspondence between Ms Hou and the Respondent’s Sales Manager, Ms Rachel Nigoghossian regarding Ms Hou’s redundancy, and business information available online regarding the Respondent;
· An invitation letter to the Chinese Embassy in Australia written by Mr Xing in relation to Ms Nigoghossian travelling to China;
· Correspondence between Mr Xing and Ms Hou by WeChat message;
· Business registration documents for “Scene Perfection LLC” filed with the State of California, Office of the Secretary of State, filled in by Mr Xing;
· A bundle of documents in relation to remedy, including evidence of Ms Hou’s job applications;
· A current and historical company extract from the Australian Securities and Investment Commission (‘ASIC’) for Au Way Holding Pty Ltd (Au Way);
· A bundle of documents from a website Qichamao (Enterprise Inquiry Treasure) including ‘business profiles’ and credit reports for Beijing Wensa Brothers International Trade Co Ltd, Beijing Zhonghe Zhida Garment Co Ltd and Beijing Zhonghe Zhida Garment Co Ltd – Guangzhou Branch;
· Recruitment advertisements for Beijing Zhinghe Zhida Garment Co., Ltd;
· A compiled spreadsheet made by Ms Hou of alleged connections between alleged associated entities of the Respondent;
· A civil judgement from the Guangzhou Intermediate People’s Court, regarding a labor dispute between Beijing Zhonghe Zhida Garment Co., Ltd and Tan Min; and
· Stills from a marketing video and information from Honey & Beau.
The Respondent also tendered documents including:
The Respondent’s argument in relation to Ms Hou’s Award coverage, consultation and redeployment which included both evidence and submissions;
The Respondent’s outline of arguments dealing with merits and jurisdictional objections, which included both evidence and submissions;
Ms Hou’s redundancy letter;
Financial documents in relation to various businesses, correspondence regarding the Respondent’s lease and a copy of a commercial lease schedule,
Ms Hou’s payslips, internal correspondence in relation to Ms Hou’s redundancy payments, termination letter and handover as well as correspondence between Mr Xing and Ms Hou by WeChat message;
A copy of the Code filled in by Mr Xing;
A bundle of documents produced pursuant to an order to produce dated 8 March 2025 which included:
oPayroll records detailing the number of employees of the Respondent;
oVarious business certification and registration documents, salary sheets, business receipts, taxation receipts, social insurance contribution forms, company statements; and
oA letter from Mr Xing as Deputy Manager of Scene Perfection LLC confirming the business status of this entity in the United States of America.
Internal correspondence between UN-STAR and the Respondent, including details of a packing list;
Invoices between Beijing Winsel Bro International Trade Co. Ltd and the Respondent;
Purchase orders from UN-STAR to ShowPo Distribution Centre, with correspondence attached;
Correspondence between Ms Hou and Mr Xing regarding her salary and a new employment opportunity; and
A bundle of documents in relation to remedy including details of the financial position of the Respondent.
The Respondent made an application for orders pursuant to Section 594 of the Act seeking to prohibit or restrict the publication of some of the documents sought to rely upon as evidence in these proceedings. Ms Hou opposed that application. Having conducted a hearing as to whether I should issue an order I determined that it was desirable to issue an order because of the confidential nature of the evidence. I gave verbal reasons for my decision.
Consideration
Initial matters to be considered
Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
There is no dispute between the parties and I am satisfied on the evidence that:
a)Ms. Hou’s application for unfair dismissal was made within the period required in s. 394(2) of the Act; and
b)Ms. Hou was a person protected from unfair dismissal.
The Respondent contended that the dismissal was a case of genuine redundancy, that the Respondent was a small business and that the dismissal was consistent with the Code. I must therefore turn to consider these matters.
Genuine Redundancy
In relation to the first ‘initial’ matter which I am required to consider, the Respondent contends that Ms Hou’s dismissal was a genuine redundancy. Ms Hou disputes this. Accordingly, I must decide this question before I consider the merits of the application.
Section 389 of the Act defines genuine redundancy as follows:
389 Meaning of genuine redundancy
(1)A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a)the employer’s enterprise; or
(b)the enterprise of an associated entity of the employer.
‘Associated entity’ has the meaning given by s 50AAA of the Corporations Act 2001 (Cth) (‘Corporations Act’).
Did the employer no longer require the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s389(1)(a))?
It is necessary to determine whether the Respondent no longer required Ms. Hou’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.[1]
A job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee’.[2] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has ‘duties left to discharge’.[3] For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.
An employee’s job may be genuinely made redundant when the employee’s duties, or aspects of them, are still being performed by other employees.[4] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[5]
The reference to ‘changes in the operational requirements of the employer’s enterprise’ in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to reduce costs or improve efficiency, productivity, sales, revenue or some other aspect of performance.[6] The operational circumstances of a business which may result in a redundancy are in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.[7]
Relevant facts – job no longer required because of changes in operational requirements
The Respondent designs women’s casual and evening dresses in Sydney. These are manufactured in a factory in Guangzhou, China. It operates under three brands: Honey & Beau, Romance and Pink Ruby. The business conducts wholesale sales in Australia and New Zealand through an agent and sells products online.
Ms Hou worked as a part-time Sales Assistant, Accounts Receivable Officer and Office Receptionist pursuant to a written contract of employment. There was some dispute about the duties that Ms Hou performed. However, Ms Hou’s evidence, which I accept, and which is largely reflected in an email dated 13 May 2023 from Mr Xing regarding her duties,[8] is that she performed tasks across both office administration and accounts receivable functions, as well as some receptionist duties and assisting the Sales Manager. Whilst Ms Hou’s position title includes the nomenclature of “Sales Assistant”, the evidence that fell from Ms Hou and Mr Xing was that Ms Nigoghossian sold the product and Ms Hou’s role consisted of duties prior to and following sales being made. These included tasks such as doing the data entry of sales orders and following up enquiries from customers regarding sales orders and ensuring resolution, rather than Ms Hou engaging directly with clients to sell the product of the Respondent.[9]
Ms Hou had previously worked casually as a pick-and-pack employee in the warehouse of the Respondent from October 2021 to 5 September 2022 and had covered for warehouse staff during Christmas holidays, performing pick-and-pack duties during the December/January office closures in 2022 and 2023.[10]
Ms Hou’s evidence was that at 10 am on 23 September 2024 she returned to the office having been on personal carers leave since on or around 12 September 2024. On entering the upstairs showroom/open plan office she was handed a redundancy letter by the Sales Manager, Ms Nigoghossian. Ms Nigoghossian said words to the effect of “I am so sorry to [be] doing this” and “it is Elton’s decision”. A colleague of Ms Hou’s, Mr Hongfeng An (also known as “Rock”) was present for the conversation. Mr Xing was not.
Ms Hou’s evidence was that the letter, dated 20 September 2024, provided a notice period of two weeks and attached a payslip reflecting her final payments. That payslip reflected a two week notice period, a pay cycle ending on 22 September 2024 and a payment date of 21 September 2024.[11] Following this meeting Ms Hou raised concerns that the notice period in her contract was four weeks not two weeks and the Respondent agreed to pay her four weeks’ pay in lieu of notice. A corrected payslip was tendered into evidence.[12]
Ms Hou’s evidence was that there was no formal meeting before or after she received the letter, and that the three colleagues sat on the couch and all discussed the redundancy, their shock at the decision to retrench Ms Hou, whether the notice period was correct and various work handover issues.
Mr Xing’s evidence was that on the morning of 23 September 2024, Ms. Nigoghossian personally handed Ms Hou the redundancy letter and provided a detailed explanation of the reasons behind the redundancy, including the company’s operational challenges, and outlined the support available to Ms. Hou during the transition.
Ms Hou continued to perform work on 23 September including sending a handover to Ms Nigoghossian before leaving the office in the afternoon with her personal belongings.
On 23 September 2024 Ms Hou sent Mr Xing a message that she could work in the warehouse doing pick and pack functions when another employee Chloe (last name unknown) was unavailable. Mr Xing’s written response was not in evidence in English, but his oral evidence was to the effect that he responded that he would consider this.
The position of the Respondent is that the decision to make Ms. Hou’s role redundant was based solely on the company’s financial situation and the need to adjust staffing to meet operational demands. This decision was not related to Ms Hou’s performance. Due to the current economic downturn in Australia’s retail sector many clients of the Respondent, particularly bricks-and-mortar stores, had closed causing a sustained drop in “off-line” sales. In addition, the rising costs of operations driven by ongoing interest rate hikes had compromised the financial situation of the Respondent. As a result, in order to keep the Respondent running in Australia it had to implement a series of cost-saving measures, including moving the Sydney warehouse to a smaller warehouse in Melbourne to reduce rental costs and reducing operating expenses, including staffing.
Mr Xing’s evidence was that the Respondent, including Mr Xing and the Finance team, conducted a review of its operational requirements as it had a serious problem with cashflow arising from less orders and delayed payments. The review compared the previous years' sales, how much money could be collected each week and weekly accounts payable figures. That review identified that accounts receivable was insufficient to cover payables.[13] The review identified that increased revenue had to be generated by a renewed emphasis on higher sales and that costs needed to be cut, including downsizing the Sydney office “to a very small one” and moving the warehouse to Melbourne; resulting in an approximate 50% rent reduction.
The Respondent’s evidence was that cash flow and profit levels had been heavily affected. Redeployment or offering fewer working days to the Applicant was not feasible given the employment costs and the available work to be performed. The Respondent did advise Ms Hou that it was open to offering her casual employment opportunities in the future, should they become available.
The Respondent filed a spreadsheet that demonstrated that sales had reduced by approximately 58% from W1 2023 to W2 2024.[14] Ms Hou accepted that the wholesale sales had dropped compared to the previous year but recalled that Mr Xing had told her that online sales with one retailer had increased.[15] Ms Hou also acknowledged that some customers paid late but that the majority paid on time.[16] The Respondent also filed evidence recording substantial outstanding invoices as at September 2024,[17] and a separate arrangement with the Australian Taxation Office (‘ATO’) in September 2024 to pay a tax debt in instalments with the first, very significant, amount paid on 13 September 2024.[18]
The evidence also disclosed that the Respondent had been overdue on rental payments on its Sydney premises continuously since December 2023, and had asked for rent relief in October 2024, which had been denied. The Respondent decided to move its warehouse to Melbourne and this move commenced by in or around mid-November 2024.[19]
In relation to the changes to operational requirements of the Respondent it was the evidence of Mr Xing that the Sales Manager, Ms Nigoghossian, could do all the sales work independently and no longer needed the assistance of an assistant. In addition, the Respondent had enabled the XERO auto-collection function to replace manual payment collection, which had previously been done by Ms Hou. This evidence was not challenged in cross-examination. Mr Xing gave evidence, which I accept, that Ms Nigoghossian is now doing all Sales Assistant and Accounts Receivable functions including chasing arrears and that all employees are sharing the phone/receptionist function.[20]
Summary of submissions – job no longer required because of changes to operational requirements
At no time have any concerns been raised regarding Ms Hou’s performance.
The evidence of Mr Xing was that the Respondent had a deteriorating financial situation. The Respondent contends that rising costs, the impact of declining offline sales, a prolonged decline in business and the company’s financial situation resulted in a decision being made to make Ms Hou’s position redundant as a cost reduction strategy. It was decided that her duties would be shared amongst other employees including Ms Nigoghossian, or automated. As a result, the Respondent no longer needed Ms Hou’s job to be performed by anyone.
Ms Hou’s termination letter included the following reason for her redundancy:
“As a result of the continued economic challenges posed by rising interest rates in Australia, consumer spending has significantly weakened. This has directly impacted our offline sales performance, leading to a prolonged decline in business. After careful consideration, we have determined that, in order to maintain the long-term stability and sustainability of the company, we must make substantial adjustments to our organizational structure. Unfortunately, the position of Sales Assistant/Accounts Receivable is no longer needed, which means your employment will be made redundant. This decision is not a reflection of your performance.”[21]
There was no serious challenge to the difficult financial circumstances disclosed in the spreadsheets filed by the Respondent. The Respondent filed evidence that it had had delayed payments from customers for a lengthy period. This led to it being overdue on its ability to make rental payments commencing in December 2023,[22] and a decision to downsize its Sydney office and relocate its warehouse to Melbourne to cut costs.
Ms Hou submits that given the broad scope of her role, that her job is still required. This is in part as “the business is still functioning, and the Sales Manager continues to sell a new range in Australia through mid-November[23]” meaning that she still needs the assistance that Ms Hou provided whilst still in the employ of the Respondent. Ms Hou also submits that there are outstanding payments from customers for previous orders and that further orders were going to be placed between September and December 2024 which would have normally been dealt with administratively by Ms Hou. In addition, outstanding payments or arrears still needed to be managed within the Respondent.
Ms Hou also made submissions that the financial position of the Respondent was not as dire as the Respondent was seeking to portray and that, by way of example, the Respondent had hired a new designer in May 2024 and was planning on expanding into the US market by opening one or more clothing boutiques in Los Angeles with the assistance of an investor. Ms Hou also alluded to statements made by Mr Xing to staff that the company was growing and opportunities would be created.
Ms Hou made submissions that the Respondent did not discuss with her that there had been any decline in offline sales or how this might impact the company's structure or lead to her redundancy. To the contrary, Mr Xing consistently communicated with Ms Hou that the company was growing and that more opportunities would be created.
Consideration – job no longer required because of changes to operational requirements
The High Court recently considered s 389 of the Act in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29.[24] Steward J relevantly explained the provision as follows:
“Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person's job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.
The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed "because of changes in the operational requirements of the employer's enterprise". However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer's "enterprise" which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer's "prerogative". As Ryan J observed in Jones v Department of Energy and Minerals:
"[I]t is within the employer's prerogative to 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."” [25]
(citations omitted)
In Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259,[26] the Full Bench succinctly said at [28]:
“In determining whether a dismissal is a ‘genuine redundancy’ the Commission is concerned with whether the employer no longer required the person’s job to be performed by anyone ‘because of changes in the operational requirements of the employer’s enterprise.”[27]
In determining whether a redundancy is genuine it is relevant to identify whether an employee’s “job” is no longer required to be performed rather than their “duties.”[28] The relevant test is whether the previous “job” survived, rather than a question as to whether the employee’s “duties” have survived in some form.[29] Accordingly, the test is not whether discrete tasks or duties continue to be performed by others. The test is whether the job that Ms. Hou was working in is no longer required to be performed by anyone. Downsizing or a headcount reduction can give rise to a finding under s 389(1)(a) “that the person’s employer no longer required the person’s job to be performed by anyone.” There are circumstances where tasks and duties of a particular employee continue to be performed but nevertheless their job no longer exists. That can include situations where the duties of someone’s job are broken up and distributed among other positions.
I find that this is what occurred in this matter. The evidence demonstrates to my satisfaction that the Respondent no longer required the job being performed by Ms. Hou to be performed by anyone after 23 September 2024. I consider that some of Ms. Hou’s tasks have been automated, and others were distributed amongst Ms. Nigoghossian, who also retained her previous duties as Sales Manager, and other staff, in the case of telephone/receptionist duties.
The second element of s 389(1)(a) is a question of causation: did changes in the operational requirements of the employer’s enterprise cause the employer to no longer require Ms. Hou’s job to be performed by anyone? I consider, based on the evidence before me, that they did.
Mr. Xing gave evidence that there had been a decline in offline sales, an increase in costs and that many clients, including brick-and-mortar stores, had closed. This resulted in an increased emphasis on sales and the need for the Respondent to implement a costs reduction strategy including a staff headcount reduction. I accept Mr Xing’s evidence on these matters. I do not consider that the Respondent’s plans to open a store or stores in the United States of America tell against the change in operational requirements that was active at the time that the decision to dismiss Ms. Hou was made.
I am satisfied on the evidence that the decision to make Ms. Hou’s role redundant was based on the business and economic factors deposed to by Mr. Xing.
Conclusion – job no longer required because of changes to operational requirements
Based on the evidence and for the reasons discussed above, I am satisfied, on the balance of probabilities, that the Respondent no longer required Ms Hou’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))
For there to be a genuine redundancy within the meaning of s 389 of the Act, the Respondent must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
Ms Hou contends that she was covered by the Clerks Award at the time of her dismissal. The Respondent’s formal position in these proceedings was that it was not sure if Ms Hou was covered by a modern award.[30] It was common ground that no enterprise agreement applied to Ms Hou.
Was Ms Hou covered by an award?
In accordance with s 143(2) of the Act, the coverage provisions of modern awards describe coverage in terms of specified employers, and specified employees of those employers. For a particular employee to be covered by a modern award, the employee must fit within the class of employees in respect of which the award is expressed to cover, and the employee’s employer must also fit within the class of employers in respect of which the award is expressed to cover.[31]
The characteristics, skills and duties of classifications in the Clerks Award are expressed in highly generic terms, but they must be read as necessarily limited by the scope of coverage of the Clerks Award.[32]
Clause 4.1 of the Clerks Award defines the scope of its coverage as follows:
“This occupational award covers:
(a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and
(b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a).”[33]
The expression “clerical work” used in clause 4.1 is defined in clause 2, Definitions, as follows:
“clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard, attending a reception desk and administrative duties of a clerical nature.”[34]
Turning then to the provisions of the Clerks Award in order to ascertain whether Ms Hou was covered by it at the time of her dismissal. Ms Hou’s role was that of Sales Assistant/ Accounts Receivable Officer/Office Receptionist. Certain documents were placed into evidence relevant to the proper characterisation of Ms Hou’s role. The first of these was an email from Mr Xing to staff of the Respondent. This email described Ms Hou’s role as follows:
“1. To be assistant of Rachel to do fitting, comment recording and comment sending to China.
2. Assist Rachel to participate in the look book shooting of each season including sample preparation, coordinate assistance during shooting, and look book information checking after shooting.
3. Order Entry, cross checking, sorting and sending to production team of China.
4. Price entry and price list export, sending price list to agent of each state and production team in China except Price list of N.Z.
5. Sending invoice and payment statement to customers, track payment and collect.
6. Arrange and file credit applications for each customer. Make sure all non-COD clients are signed before cooperation.
7. Daily telephone answering and customer reception.
8. Office daily maintenance, including daily cleaning, telephone, network and etc.
9. RN number issued once returns to be approved, and return records are made, regularly updated and reported to the director.
10. Purchase and storage of daily office supplies.”[35]
Ms Hou also provided an email to the Commission summarising her role. Ms Hou’s oral evidence confirmed the accuracy of that email and provided minor additional detail regarding her duties dealing with emails regarding returns. That email described her role as follows (reproduced as written):
“My role was the sales assistant/account receivable in Women clothing wholesale company, experience with generating and emailing the customer invoices, data entry the agent’s sales order and finalize the purchase order to the Production team manufactory.
Greeting clients, and monitoring all incoming calls and emails, answering enquiries, & booking appointments and arrange travel and visas for sales manager.
General office administration – data entry, filing and document preparation, maintaining office supplies.
Assisting sales operation manager to prepare selling samples with pricelist and follow up general customer’s sales order enquiries from new and repeated customers and ensures appropriate resolution.
Ensuring billing operational efficiency and accuracy as an Accounts Receivable Clerk for analyzing and handling invoices, payments, and financial records while responding to and quickly resolving customer billing enquiries.
Managing accounts receivable for over 60 days customer’s accounts, monitoring for non-payment and delayed payment. And follow up calls on past due accounts in a professional and courteous manner.
Maintained meticulous accounts receivable customer files.”[36]
Mr Xing’s evidence was that Ms Hou had two roles only: Sales Assistant, and one involving elements of debt collection. Whilst Mr Xing disputed the extent to which Ms Hou answered the phone and engaged in administrative duties, I am satisfied that these two emails accurately reflect the duties that Ms Hou was performing. Mr Xing does not dispute that Ms Hou did not perform these functions at all.
Ms Hou’s oral evidence included the following exchange with the Bench:
“What was the mix of – I understand you do the sales data entry, and you answer the phone, as you said, and you do the other administrative roles, in terms of accounts receivable. What was the mix – what did you do most? What was the main purpose of your role? ---(Indistinct) I remember Mr Xing told me is half-half. It's – because depends on the season. Because, you know, when you sell, I got more sales order to do. But after sale, I don't have sales order, and then I do chasing the payment, and then I create an invoice. Because we are wholesaler, we are not always selling. We design and then prepare, and then sell. And then, when the stock arrive, and chasing – I create an invoice, and after that, I'm waiting for the payment after three days.
So was the main purpose of your role the administrative support of the sales and the accounts functions, is that right?---Yes. I need to chasing the overdue invoice, as late payment. I need to email them, I need to call them, sending them final notice. Even the downstairs, before sending the stock, I need to create an invoice, return (indistinct) return authorities by me as well. Yes, so it's a whole process, me. Only designer, design, don't need me.”[37]
The “principal purpose test” is relevant to whether an employee is covered by a modern award.[38] I acknowledge that the Full Bench in Zheng, Lingli v Poten & Partners (Australia) Pty Ltd[39] expressed some concerns about the appropriateness of the test in ascertaining whether an employee was classified under a classification of the Professional Employees Award 2020 given the terms of the award. Regardless, the Full Bench went on to consider the original decision under appeal in that matter through the lens of the principal purpose test.
In Zheng, Lingli v Poten & Partners (Australia) Pty Ltd,[40] the Full Bench described this test at [47] as follows:
“It remains necessary to consider what the application of the “principal purpose” test requires. As was stated in [Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387], the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor.”[41]
A Full Bench of the Commission in Broadspectrum Limited t/a Broadspectrum v United Voice described the analysis required in applying the “principal purpose test” as follows:[42]
“… the required analysis of the principal purpose is to be conducted by reference to the work performed by the employee. The test enunciated is primarily of utility where an employee performs a mixture of duties some of which fall, prima facie, within the coverage of the award or classification under consideration and some of which do not. However the test cannot be used to bring an employee within the coverage of an award or classification where the employee does not perform any of the prescribed work duties.”[43]
Having examined the nature of the work that Ms Hou performed for the Respondent and the circumstances in which she was employed to do that work, I find that the principal purpose for which Ms Hou was employed was to provide clerical and administrative support to enable the Respondent to perform its sales function including the after sales accounts receivable function. My finding in that regard is supported by the extensive (largely unchallenged) evidence given by Ms Hou concerning her duties and day-to-day work activities, the Respondent’s own email summarising Ms Hou’s duties and Mr Xing’s evidence as set out in [58]. Whilst Ms Hou also had a role assisting with the “look book” of the Respondent and assisting with fashion shoots, this was a minor part of her role.
I find that Ms Hou was wholly or principally engaged in clerical work as defined in the Clerks Award. There is no dispute that the Respondent is a private sector employer. Having considered the nature and circumstances of Ms Hou’s role and having identified the principal purpose of role and the classification descriptors in the Award, I consider that Ms Hou would likely have been, at a minimum, a Level 2 employee.
In reaching my conclusion I have had regard to the competency and skill that Ms Hou was required to exercise in the work that she performed. Ms Hou’s evidence established to my satisfaction that the characteristics at Schedule A3.1 (a),(b) and (c) applied to her. She had sufficient experience and training to enable her to be responsible and accountable for her own work under the general direction of Ms Nigoghossian and Mr Xing. When considering the typical skills and duties (which are indicative only) it is apparent that Ms Hou engaged in reception duties, responded to enquiries from customers, operated business equipment, used word processing to generate documents, maintained records including records included in the list in Schedule A3.2(f) and used relevant computer applications for one or more of the functions included in the list in Schedule A3.2(g).
Clauses 4.1 (3) and (4) of the Clerks Award have the effect of excluding various employees and employers from coverage of the award.[44] I am satisfied that none of these exclusions apply to the circumstances of Ms Hou’s employment. I cannot identify any other modern award that might apply to the Respondent that contains clerical classifications (as per the exclusion in clause 4.3). Nor do I consider that the Respondent or Ms Hou would be covered by any of the awards listed in clause 4.4. In reaching this conclusion I have had particular regard to the provisions of the General Retail Industry Award 2020 (‘General Retail Award’), including Clause 4.2 which “applies to the retail sale or hire of goods and services” and specifically provides that it does not apply to “clerical functions performed away from a retail establishment.”[45] I do not consider that the Respondent’s operations fall within the definition of applying to the “retail hire of goods and services” given that the Respondent did not operate a shopfront in Australia and instead designs, distributes and acts as a wholesaler. In any event, Ms Hou did not perform clerical functions in a retail establishment, and I think it unlikely that the General Retail Award covered her. I have also had regard to the provisions of the Storage Services and Wholesale Award 2020 and am satisfied that this Award does not cover Ms Hou’s employment as there is no classification that would apply to Ms Hou, as required by clause 4.1 of that award.[46]
I am satisfied that Ms Hou was covered by the Clerks Award. Accordingly, the Respondent was required to consult with Ms Hou in relation to her redundancy, in accordance with clause 38, to meet the requirements of s 389(1)(b) of the Act.[47]
Relevant facts – was the requirement to consult in the Award met?
Ms Hou’s evidence regarding her dismissal is summarised at [23]-[25] above. Ms Hou gave evidence that there was no consultation before the redundancy meeting and that the first time that she knew that there was a restructure or that she might be dismissed was when she was provided with a letter which dismissed her from the Respondent’s employ.[48]
Mr Xing told the Commission that the redundancy decision was made on 20 September 2024 whilst Ms Hou was on leave.[49] However, it would appear, based on an email sent on 19 September 2024 by Mr Xing that the decision was made by 19 September 2024. Whilst the Respondent asserts that this email was doctored, it has not provided supporting evidence of this serious accusation. In any event, not much turns on this issue, as Mr Xing accepts that the decision to make Ms Hou redundant was made before 23 September 2024 and I find accordingly.
Mr Xing’s evidence varied regarding the consultation and discussion process performed by the Respondent. In some evidence he indicated that the letter had been handed to Ms Hou at the beginning of the meeting on 23 September 2024,[50] and in other evidence he stated that “before forwarding the Redundancy letter to the employee, the employee's supervisor explained in detail to the employee the reasons and background of the redundancy, the company's predicament, and the assistance that could be provided to the employee.”[51] The Respondent also relied on communications with Ms Hou following the dismissal meeting where “the employer received and responded to the questions raised by the employee in a timely manner to clarify the employee’s concerns.”[52]
Ultimately, I prefer the evidence of Ms Hou regarding the meeting of 23 September. Mr Xing was not at the meeting and neither Ms Nigoghossian nor Mr An were called to give evidence on behalf of the Respondent. I find that the dismissal meeting occurred as described by Ms Hou in the evidence, including that she was provided with the dismissal letter at the beginning of the meeting, that no consultation occurred prior to this and that she was sent an amended letter via email following Ms Hou raising concerns regarding the first letter including only a two week notice period. This is also consistent with the documentary evidence filed including the contemporaneous reference to “the updated redundancy letter” in an email from Ms Hou to Mr Xing sent on 23 September 2024,[53] and the original hardcopy termination pay slip which included only two weeks of notice pay.[54]
I find that Ms Hou’s work email and personal Xero account were disabled by the Respondent on either 20 September 2024 or on the morning of 23 September 2024.
Ms Hou’s evidence was that no-one offered her reduced hours, days or a reduced rate or asked her whether she would accept these. Ms Hou’s evidence was that she would have considered a pick and pack role. After raising this with Mr Xing he said that he “would let her know” or “would consider it.” I understood Mr Xing’s evidence to mean that if such a role became available in the future that he would consider Ms Hou for it.
Submissions regarding consultation
Ms Hou submits that the Respondent did not discuss or notify her of any decline in offline sales that would impact on the company's structure or lead to her redundancy and that she was given no warning that her role was at risk.
Ms Hou argues that a decision to dismiss her had been made prior to 23 September 2024 as demonstrated by her being provided the letter at the beginning of the meeting,[55] and having had her email and Xero access cut off. Ms Hou also relies on the date on her final payslip which was attached to the termination letter as it had a payment date of 21 September 2024. It follows, in her submission, that she could not have been consulted in accordance with any obligation under the Clerks Award.
The Respondent properly acknowledges that it should have provided more timely communication to Ms. Hou in relation to the termination of her employment. However, it submitted that throughout the redundancy process, the employer had full and comprehensive communication with the employee, responding to questions raised by Ms Hou in a timely fashion.
Did the Respondent comply with any consultation provisions in the Clerks Award?
Clause 38 of the Clerks Award is as follows:
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 38.2does 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.
In my view the obligations in Clause 38 were activated as the Respondent had made a definite decision to make a major change in production, program, organisation, structure or technology and this was likely to have significant effects on Ms Hou, given that it was likely to lead to the termination of her employment.
In these circumstances, Clause 38 imposes an obligation on an employer to provide information in writing to an employee. The information to be provided is “all relevant information about the changes” including but not limited to their nature, their expected effect on employees and any other matters likely to affect employees.
The Respondent also had an obligation to discuss the changes with Ms Hou. These discussions were required to commence as soon as practicable after a definite decision had been made. If Ms Hou raised any matters about the major change, then the Respondent was obliged to give prompt consideration to those matters.
The Shorter Oxford English Dictionary defines “discuss” as to “investigate or examine by argument; debate; talk about (a topic) to, with, or with another person.”[56] In my view, as is plain from this definition and in accordance with common sense, discussions are a two-way street. They require that both parties have all relevant information and the opportunity, having considered that information, to express a view and put a position. That position should be heard and considered. This should not just be perfunctory, or a tick-a-box exercise, but a meaningful exchange. Obviously, exactly what is required will depend on the factual context.
The evidence establishes that the Respondent did engage in discussion with Ms Hou about various matters after it had told her she was dismissed. These discussions were about her notice period, her pay and a statement of service. However, there is no evidence demonstrating that the Respondent gave Ms Hou written or verbal notice of the changes to its structure or discussed those changes and their effect with Ms Hou. Nor is there evidence that the Respondent consulted Ms Hou on appropriate measures to avoid or reduce the adverse effect of the changes on her before it had made her role redundant and told her that her employment would end.
I have found above that the decision to dismiss Ms Hou was made before 23 September 2024. The dismissal was effected by Ms Nigoghossian providing Ms Hou with the dismissal letter at the beginning of the 23 September meeting. That letter was categorical in its terms. Ms Hou understood that a decision had been made and turned to deal with the incorrect notice period that was provided for in the letter.
I accept that the Respondent was not aware that Ms Hou was covered by a modern award. However, ignorance will not absolve an employer of an obligation to consult. I find that the first communication between the Respondent and Ms Hou in relation to her dismissal was on the day she was dismissed after she had been told that her employment was coming to an end.
To comply with the Clerks Award, information about the changes must be provided in writing including their nature, their expected effect and any other matters likely to affect employees. As a result of this not occurring prior to her dismissal being communicated to Ms Hou, she was deprived of the opportunity to persuade her employer, to raise matters for the Respondent’s consideration or propose alternatives to her dismissal. Ms Hou rightly understood from this correspondence that the decision had been made, her employment would come to an end on 18 October 2024,[57] and therefore that no real opportunity to consult existed. Ms Hou’s evidence, which I accept, was that she was not aware that she was at risk of redundancy until 23 September and had no warning that her employment was at risk.[58]
I find that the Respondent did not comply with the obligation under the Clerks Award to consult about the redundancy.
Was it reasonable in all the circumstances for Ms Hou to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2))?
For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[59] The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function.”[60]
If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee.[61]
In determining whether redeployment would have been reasonable a number of matters may be relevant, including:
(a)Whether there exists a job or position or other work to which the employee can be redeployed;[62]
(b)The nature of any available position;[63]
(c)Qualifications required to perform the job;[64]
(d)The employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining;[65] and
(e)The location of the job in relation to the employee’s residence and the remuneration which is offered.[66]
It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act. In all cases; the circumstances of each particular case must be considered.[67]
The Respondent submitted that it took all reasonable steps to redeploy Ms Hou. Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed.[68]
Mr Xing’s evidence was that before providing the redundancy letter to Ms Hou, the Respondent had considered options to reduce the hours or days of work of Ms Hou or offer her pick and pack type duties but that these were not viable opportunities due to the financial position of the Respondent.[69]
Mr Xing’s evidence was that the Respondent had considered the possibility of moving Ms Hou into another position, either within the same business or in an associated business, including considering converting her role to be that of a warehouse assistant. However, as the rent of the warehouse in Sydney had continued to rise sharply the Respondent had decided to move the warehouse out of the Sydney area so this could not be done.
Ms Hou tendered a message sent to Mr Xing after her dismissal had been effected at the meeting on 23 September 2024 offering to work in the warehouse doing pick and pack duties when “Chloe was not available.” Mr Xing responded with words to the effect of “I will consider it” or “I will let you know”.[70]
I have considered the evidence and submissions regarding whether it would have been reasonable in all the circumstances for Ms Hou to be redeployed within the Respondent or the enterprise of an associated entity of the Respondent.
It is not clear whether Ms Hou contends that the casual pick and pack role in the warehouse of the Respondent was available. She has said in these proceedings that she would have accepted less hours and a changed role and that she would have performed casual pick and pack duties in the warehouse, which she had covered previously.
One of the difficulties for the Respondent is that, due to the lack of consultation with Ms Hou before a final decision was made or communicated, there was no discussion about whether she might be able to relocate or what reduced hours/pay or changed role she would accept. This means that the Respondent was considering what redeployment opportunities existed within a vacuum, making it challenging to meaningfully assess the reasonableness of redeployment.
That said, there is no evidence of any specific roles to which Ms Hou could have been redeployed to at the same or different location or at a lower classification within the Respondent or any associated entity. Ms Hou has not identified any, and Mr Xing says that there weren’t any. All bar one of the alleged associated entities of the Respondent were outside of Australia. Ms Hou’s evidence refers to her willingness to perform the pick and pack duties of Chloe when Chloe was not available. Mr Xing gave evidence that Chloe was an employee of Au Way and not the Respondent.[71] I infer from Ms Hou’s evidence, that there was no vacant role, or work available, performing pick and pack duties but only the potential to assist when the employee who performed that function (Chloe) was unavailable from time to time, including over the Christmas holidays. I am satisfied on the evidence that there were no available positions at the time of the restructure. I am also satisfied that it would not have been reasonable to redeploy Ms Hou into Chloe’s role, even if Chloe was employed by Au Way and the two entities are related entities, given that Chloe was continuing to work in it and, in any event, the warehouse was shortly to be moved to Melbourne. As a result, I consider that, in all the circumstances, it would not have been reasonable to redeploy Ms Hou within the Respondent or the enterprise of an associated entity of the Respondent.
Conclusion - was Ms Hou’s dismissal a case of genuine redundancy?
Given my findings regarding the Respondent’s failure to comply with the consultation provisions of the Clerks Award, I am not satisfied that Ms Hou’s dismissal was a case of genuine redundancy within the meaning of s 389(1) of the Act. The Respondent has not made out its objection that Ms Hou’s dismissal was a case of genuine redundancy. Accordingly, I am satisfied of the matter in s 385(d) of the Act.
Small Business Employer
The Respondent contends that they meet the definition of a ‘small business employer’ as defined in s 23 of the Act and that they have complied with the Code. Ms Hou disputes this. I will now turn to consider whether the Respondent was a small business employer and, if so, whether the dismissal of Ms Hou was consistent with the Code.
Section 23 of the Act defines a small business employer as follows:
“(1)A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2)For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
Section 12 of the Act states:
“associated entity has the meaning given by section 50AAA of the Corporations Act 2001.”
Corporations Act
Section 50AAA of the Corporations Act defines an associated entity in the following terms:
“50AAA Associated entities
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b)the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the principal; and
(c)the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)), in the associate; and
(b)the principal has significant influence over the associate; and
(c) the interest is material to the principal
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b)the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b)has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”
Section 50AA of the Corporations Act defines the meaning of control for the purposes of the Corporations Act as follows:
“50AA Meaning of control
(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.
(2) In determining whether the first entity has this capacity:
(a)the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and
(b)any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).”
The evidence and submissions – small business employer
Ms Hou contends that the following entities are associated entities of the Respondent (‘the Entities’):
a.Beijing Un-Star Fashion Co Ltd (which is also referred to in some of the documents filed as Beijing Jongjida Garment Company Limited);
b.Beijing Zhonghe Zhida Garment Co., Ltd. Guangzhou Branch;
c.Beijing Wensa Brothers/Winsel/Wenzhou Bro. International Trade Co. LTD;
d.Scene Perfection LLC (a limited liability company in California); and
e.Au Way[72]
Ms Hou filed extensive evidence in support of her submission that the Respondent was not a small business employer. Ms Hou contended that the Respondent employed more than 15 employees at the time of Ms Hou’s dismissal by virtue of the relationships of association between the Entities per s.23 of the Act.
Ms Hou’s submissions primarily relied on the proximity and interrelated nature of the business relationships between the Entities as demonstrated by (without limitation):
(a) The current or past role of Mr Xing in many of the companies as a director, legal representative, past director or shareholder;
(b) familial ties between Mr Xing and Ms Rui Ba of Au Way.
Ms Hou also relied upon various:
(a) documents referencing the number of employees of some of the Entities at various points in time to seek to demonstrate that the Entities employed more than 15 employees at the time of Ms Hou’s dismissal (including decisions of tribunals, job advertisements, exchanges with Ms Bo and a statement of Mr An);
(b) operational links between Au Way and the Respondent including shared premises and shared employees; and
(c) the operational links between the Respondent, Beijing Un-Star Fashion Co Ltd and Beijing Wensa Brothers/Winsel/Wenzhou Bro. International Trade Co. LTD regarding the production and distribution of the Respondent’s product.
Mr Xing filed extensive evidence in support of his contention that the Respondent was a small business within the meaning of s 23 of the Act. He also filed a statement to the following effect in relation to the Entities (reproduced as written):[73]
“Beijing Un-Star Fashion Co. Ltd.
Founded by Mr Xing and two other shareholders in 2010 in Beijing, China. The main business is wholesale clothing. It is currently one of the suppliers of the Respondent. Scene Perfection is one of the many clients of Un-Star, Un-Star also serves local Chinese clients as well as European and American clients. The two companies have a client-supplier relationship.Beijing Winsel Bro International Trade Co.,Ltd.
This is an export agency with import and export rights granted by the government. The company assists local Chinese companies, including Un-Star, with import and export formalities including customs clearance, logistics, and other services. There is no direct relationship or affiliation with Mr Xing.
AU WAY PTY LTD.
The company was founded in Melbourne by Mr Xing's wife. Mr Xing has no shareholding in the company and is not involved in its operation.SCENE PERFECTION LLC
The company was founded in Los Angeles by Mr Xing in March 2024. The company was originally founded to expand into the North American market. As of September 23 2024, the company was not conducting any business and did not employ any employees. Nor does it have any relationship with any of the above companies.”
When considering whether the definition of small business employer at s.23 of the Act applies, the question is whether the Respondent employed ‘fewer than 15 employees’ at the time of Ms Hou’s dismissal on 23 September 2024. Ultimately there is significant factual contest between the parties regarding whether the Respondent is a small business and whether any of the Entities were associated entities of the Respondent. Each party produced voluminous documents and evidence and made submissions about this issue.
Ultimately, I do not need to make a finding about this issue as I am comfortably satisfied that the Code was not followed. I will turn to consider this issue now.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the Act provides that a person’s dismissal was consistent with the Code if:
(d) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(e) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
The Code declared by the Minister pursuant to section 388(1) of the Act is in the following terms:
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Conclusion regarding the Small Business Fair Dismissal Code
The Code does not capture economic dismissals, including redundancy situations.[74] Accordingly, Ms Hou’s dismissal was not consistent with the Code.
Was the dismissal harsh, unjust or unreasonable?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that Ms Hou was protected from unfair dismissal at the time of being dismissed; and
(b) Ms Hou has been unfairly dismissed.
Both limbs must be satisfied. I have determined at [11] above that Ms Hou was protected from unfair dismissal at the time of being dismissed. I must therefore turn to consider whether Ms Hou has been unfairly dismissed.
Because Ms. Hou’s dismissal was not a case of genuine redundancy within the meaning of s 389 of the Act, I must take into account each of the matters set out in s. 387 (a) to (h) in considering whether Ms. Hou’s dismissal was harsh, unjust and/or unreasonable.
Section 387 of the Act is as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Each matter must be given appropriate weight having regard to the factual findings and taking into account the submissions of the parties. I address each of these matters in turn below.
In Byrne v Australian Airlines Ltd,[75] McHugh and Gummow JJ considered the concepts of ‘harsh, unjust or unreasonable’ as follows:
“… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of misconduct which the employee acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[76]
Was there a valid reason for the dismissal of Ms. Hou (s. 387(a))?
Section 387(a) of the Act is directed at an examination of whether there is a valid reason arising from the dismissed employee’s capacity or conduct. A dismissal will not be related to an employee’s capacity or conduct where they have been dismissed because of changes to the operational requirements of their employer. There is no suggestion that Ms Hou’s dismissal was as a result of poor performance. In these circumstances, there will not be a valid reason for the dismissal related to the employee’s capacity or conduct. It follows that s 387(a) should be regarded as a neutral matter with respect to the question of whether the dismissal was harsh, unjust or unreasonable.[77]
However, if an employee was dismissed because of changes to the operational requirements of their employer’s enterprise and it was not reasonable in all the circumstances for the employer to redeploy them, this is a matter that should be considered under s 387(h) of the Act and tends against a conclusion that the dismissal was harsh, unjust or unreasonable.[78]
In the circumstances, I am satisfied that Ms Hou was dismissed because of changes to the operational requirements of the Respondent. Accordingly, s 387(a) is a neutral factor.
Notification of reason (s 387(b))
Section 387(b) of the Act refers to notification of “that reason”. I consider this to be a reference to a reason related to the person’s capacity or conduct as contemplated in s 387(a). Given that the reason for Ms Hou’s dismissal was the redundancy of her role and accordingly is not a reason related to her capacity or conduct, s 387(b) is a neutral factor in relation to the question of whether Ms Hou’s dismissal was harsh, unjust or unreasonable.
Opportunity to respond (s 387(c))
Section 387(c) of the Act is also predicated on there being a reason for dismissal which is related to the capacity or conduct of the employee.[79] It follows that s 387(c) is a neutral factor in relation to the question of whether Ms Hou’s dismissal was harsh, unjust or unreasonable.
Unreasonable refusal to allow a support person (s 387(d))
Ms Hou did not request a support person to assist at any discussions relating to her dismissal. This is unsurprising given that she was not aware that she was going to be dismissed in the meeting held on 23 September 2024. However, this means that the Respondent did not unreasonably refuse to allow Ms Hou to have a support person. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Ms Hou’s dismissal was harsh, unjust or unreasonable.[80]
Warnings of unsatisfactory performance (s 387(e))
Neither party contends that Ms Hou’s dismissal related to her unsatisfactory performance. Indeed, the dismissal letter makes it abundantly clear that it didn’t. It follows that s 387(e) of the Act is also a neutral factor in relation to the question of whether Ms Hou’s dismissal was harsh, unjust or unreasonable.[81]
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
The Respondent is a small employer. It did not have any dedicated human resource management specialists or persons with related expertise in its enterprise at the time that it decided to terminate Ms Hou’s employment on the grounds of redundancy. I am satisfied that these matters had an impact on the procedures followed in effecting Ms Hou’s dismissal. This is clear given the Respondent’s submissions in these proceedings, that it was not aware of whether Ms Hou was, or was not, covered by a modern award which imposed consultation obligations on it.[82]
In the circumstances, I consider that these factors weigh slightly in favour of the Respondent’s argument that its dismissal of Ms Hou was not harsh, unjust or unreasonable.
Other relevant matters (s 387(h))
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal was explained by the Full Bench majority in B, C And D v Australian Postal Corporation in the following terms:[83]
[41]“Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462;Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42]Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1)The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2)The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3)The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]”[84]
I consider that that there was a valid reason for Ms Hou’s dismissal; namely that the Respondent no longer required her job to be performed by anyone because of changes to the operational requirements of the Respondent’s enterprise. Accordingly, her role was redundant. I have found above that it would not have been reasonable in all the circumstances for Ms Hou to be redeployed. This weighs against a conclusion that the dismissal was harsh, unjust or unreasonable.
On the other hand, the Respondent failed to comply with its obligations to consult Ms Hou under the Clerks Award. I consider this to be a relevant matter for my consideration. That said, a failure to consult will not necessarily give rise to a finding that a dismissal was harsh, unjust or unreasonable.[85] The weight to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfairness in practice.[86]
I have considered what a proper consultation period would have looked like in order for the Respondent to comply with the Clerks Award, that is for Ms Hou to have a proper opportunity to raise and discuss any concerns, proposals or measures to mitigate the effects on her and for the Respondent to consider the matters raised by Ms Hou.
I consider that three weeks is the amount of time which would have been required to give the Respondent time to prepare the relevant information and provide it to Ms Hou in writing, for Ms Hou to have a proper opportunity to consider the restructure and its impact on her role, including the written information provided by the Respondent in relation to those matters and for Ms Hou to raise any queries that she had about the restructure. This period would have allowed Ms Hou to have proper discussions with the Respondent about her personal circumstances, including her carers commitments and financial circumstances, for her to assess her ability to accept reduced pay or hours (including making enquiries of her other employer for whom she also worked at the time of her dismissal about picking up additional hours) and put a considered proposal regarding her willingness to work reduced days or hours or in a different role if it meant retaining her employment with the Respondent. Depending on the proposal put by Ms Hou, the Respondent would have needed time to consider that proposal and potentially to get advice on any proposal or concerns raised by Ms Hou.
Whilst I might normally consider that a shorter period was required, I have taken into account that the director of the Respondent, Mr Xing was in China at the time of the dismissal and the Respondent’s professed lack of Human Resources expertise and unfamiliarity with Australian laws. However, I am satisfied on the balance of probabilities that Ms Hou’s employment would have been terminated at the end of the three-week period on the ground of redundancy if the Respondent had complied with its consultation obligations and consulted with Ms Hou for the three-week period.
Ultimately, I consider that even if consultation in accordance with the requirements of the Clerks Award had occurred, that this would have not resulted in a different outcome, it just would have resulted in a three-week delay in Ms Hou’s dismissal being effected.
However, the Respondent’s complete absence of consultation with Ms Hou prior to her dismissal supports a finding that her dismissal was unreasonable. I have also taken into account that there was no procedural fairness in the process leading up to Ms Hou’s dismissal. She was not informed that there was going to be a meeting on 23 September 2024, let alone what the subject matter of that meeting was going to be. In addition, having been handed the dismissal letter at the beginning of that meeting and having been told that the decision had already been made by the Respondent, she was not given a meaningful or proper opportunity to comment on the reason for her dismissal before the decision was made to terminate her employment.
A relevant matter which contributed to the overall unfairness of the dismissal of Ms Hou was that she has the care of her dependent parents in Australia, one of whom had just suffered an illness or injury in the lead up to her dismissal. Ms Hou was required to cover the repayments of a substantial high interest mortgage and other expenses for herself and her parents as at the time of her dismissal.
The Respondent did not identify any performance or conduct issues that had arisen during Ms Hou’s employment and there was no evidence before me that she had been subject to any performance concerns, warnings or disciplinary action. I have considered this as part of my overall assessment.
Is the Commission satisfied that the dismissal of Ms Hou was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.[87]
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Ms Hou was harsh and unreasonable. Whilst there was a valid reason for the dismissal, being the redundancy of Ms Hou’s role, given the failure by the Respondent to consult and the consequences discussed above, together with procedural fairness deficiencies and the harsh consequences of the dismissal, I am satisfied that Ms Hou was unfairly dismissed within the meaning of section 385 of the Act.
Remedy
I have found that Ms Hou was protected from unfair dismissal, and that her dismissal was harsh and unreasonable. It follows that, it is necessary to consider what, if any, remedy should be granted to Ms Hou. Ms Hou did not seek the remedy of reinstatement. In any event, I am satisfied that reinstatement would be inappropriate in all the circumstances given the financial circumstances of the Respondent.
Section 390(3)(b) of the Act provides that the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[88]
Having regard to all the circumstances of the case, including the fact that Ms Hou has suffered financial loss because of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.
It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Ms Hou. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in subparagraphs (a) to (g).
Section 392(2) of the Act, requires consideration of the following:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of Ms Hou’s service;
(c)the remuneration that Ms Hou would have received, or would have been likely to receive, if she had not been dismissed;
(d)the efforts of Ms Hou (if any) to mitigate the loss suffered by her because of the dismissal;
(e)the amount of any remuneration earned by Ms Hou from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by Ms Hou during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
Ms Hou submitted that an order of any amount would have no effect on the viability of the employer’s enterprise because it had invested in the US markets and is planning an expansion there.
The Respondent submitted that an order of compensation would have an effect on the viability of the employer’s enterprise because “the company’s current production and operation is very difficult” and it has had to arrange repayments to the ATO in instalments for outstanding debt. The Respondent provided evidence of its arrangements with the ATO as of 13 September 2024. It did not provide any other evidence to support this submission other than the evidence cited above regarding the overall reduction in sales of the Respondent.
I find that whilst the Respondent’s financial situation has deteriorated since 2023 that an award of compensation would not affect the viability of the Respondent’s enterprise. My view is that no adjustment is required on this account.
Length of Ms Hou’s service
Ms Hou’s length of service was approximately 3 years and one month.
I consider that Ms Hou’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration earned and remuneration that Ms Hou would have received, or would have been likely to receive, if Ms Hou had not been dismissed
As stated by a majority of the Full Court of the Federal Court,
“[i]n determining the remuneration that the employee would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[89]
Neither party made submissions about how long Ms Hou’s employment would have been likely to continue for. However, Ms Hou gave evidence that she would have continued to work for as long as she could and had no plans to leave the Respondent.
However, I am satisfied on the balance of probabilities that if Ms Hou had not been dismissed on the grounds of redundancy on 23 September 2024 that her employment would have come to an end following a proper consultation process, which would have lasted a period of three weeks. I find that Ms Hou would have been made redundant on 14 October 2024. My reasons for making this finding are set out above.
Ms Hou was paid 30 hours per week at $32 (plus $13 in cash) per hour plus superannuation. Accordingly, I am satisfied that if Ms Hou had remained employed from 24 September 2024 to 14 October 2024 (inclusive) she would have received $4050.00 plus $465.75 in statutory superannuation.
Ms Hou’s evidence is that Ms Hou’s earnings ranged between $371 and $457.12 per week from employment or other work between the date of the dismissal up to 16 October 2024. This was remuneration earned from Ms Hou’s second part time job that she held prior to her dismissal and continued to hold after the dismissal. Given that Ms Hou had this role and this income prior to her dismissal I have determined not to make any deduction from the compensation amount as a result of this income.
Accordingly, my view is that $4,050.00 plus $465.75 in statutory superannuation is the gross amount of remuneration Ms Hou would likely have earned had she not been dismissed by the Respondent and instead continued to be employed for a further three-week consultation period commencing on 24 September 2024 and ending on 14 October 2024 (without deduction). This calculation is intended to put Ms Hou in the position she would have been in but for the termination of her employment.[90]
Efforts of Ms Hou to mitigate the loss suffered by Ms Hou because of the dismissal
Ms Hou must provide evidence that she has taken reasonable steps to minimise the impact of the dismissal.[91] What is reasonable depends on the circumstances of the case.[92]
Ms Hou submitted that she had taken reasonable steps to minimise the impact of the dismissal by applying for approximately 20 jobs per week and attending four in person interviews before commencing a new role on 5 November 2024.
The Respondent submitted that the impact of the dismissal could be completely minimised by Ms Hou increasing the number of hours she worked in other employment.
I accept the evidence of Ms Hou and find that, in all the circumstances, Ms Hou acted reasonably to mitigate the loss suffered by her because of the dismissal. I do not consider it appropriate to reduce the compensation on this account.
Other relevant matters
I have not identified any other relevant matters relevant to deciding the amount of compensation.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the Act… is to apply the “Sprigg formula,”[93] derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (‘Sprigg’).[94] This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[95]
The approach in Sprigg is as follows:
“Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.”[96]
Step 1
I have estimated the remuneration Ms Hou would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $4,050.00 plus statutory superannuation on the basis of my finding that Ms Hou would likely have remained in employment for a further period of three weeks. This estimate of how long Ms Hou would have remained in employment is the “anticipated period of employment.”[97]
Step 2
Only monies earned since termination for the anticipated period of employment are to be deducted.[98] I have determined not to make any deductions from the amount of $4,050.00 plus statutory superannuation on account of monies earned for the reasons outlined above.
Step 3
It is necessary to consider whether to discount the amount of $4,050.00 plus statutory superannuation for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Hou was subject might have brought about some change in earning capacity or earnings.
Any discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.[99]
As the anticipated period of employment has already passed, there is no uncertainty about Ms Hou’s earnings, capacity or any other matters during that period of time. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $4,050.00 plus statutory superannuation for contingencies.
Step 4
I have considered the impact of taxation. However, I prefer to determine compensation as a gross amount and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”[100]
Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.
Misconduct
If I am satisfied that misconduct of Ms Hou contributed to the employer’s decision to dismiss her, I am obliged by s 392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
Ms Hou did not commit any misconduct and I am satisfied that misconduct of Ms Hou did not contribute to the employer’s decision to dismiss her on account of her role becoming redundant. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
In accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation Cap (s 392(5)-(6))
Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a)the amount worked out under section 392(6); and
(b)half the amount of the high-income threshold immediately before the dismissal.
The amount of $4,050.00 plus $465.75 in statutory superannuation is less than half the amount of the high-income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Ms Hou was entitled in her employment with the Respondent during the 26 weeks immediately before her dismissal.
In those circumstances, my view is that there is no basis to reduce the amount of $4,050.00 plus $465.75 in statutory superannuation by reason of s 392(5) of the Act.
Instalments (s 393)
No application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on compensation
Having considered the outcome of applying the Sprigg formula, I have formed the view that the application of the formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate.
Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $4,050.00. I consider this amount of compensation to be appropriate.
In light of the above, I will make an order that the Respondent pay $4,050.00 gross (less taxation as required by law) plus superannuation at the statutory rate of 11.5% (being $465.75) to Ms Hou in lieu of reinstatement within 28 days of the date of this decision. An order will be made to that effect [PR792073].
DEPUTY PRESIDENT
Appearances:
Ms Xiaokun Hou on her own behalf.
Mr Elton Xing on behalf of the Respondent.
Hearing details:
2025.
Sydney.
10 March.
2 April.
Final written submissions:
11 August 2025.
[1] Section 389(1)(a) of the Act.
[2] Jones v Department of Energy and Minerals (1995) 60 IR 304, 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 [17]. (‘Ulan Coal 1’)
[3] Ibid.
[4] Dibb v Commissioner of Taxation (2004) 136 FCR 388, 404-5.
[5] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 [27] per Hamberger SDP. (‘Kekeris’)
[6] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 282, 373.
[7] Kieselbach v Amity Group Pty Ltd PR973864 [34].
[8] Exhibit A3, Applicant’s outline of arguments – Merits – 20 February 2025, Digital Hearing Book pg 53.
[9] Exhibit A6, Email to Chambers – Applicant – RE Duties dated 3 February 2025, Digital Hearing Book pg 109; Transcript PN253-255.
[10] Exhibit A2, Applicant’s outline of arguments – Jurisdiction – 20 February 2025, Digital Hearing Book pg 29; Transcript PN338.
[11] Annexure to Form F2, filed by Ms Hou on 10 October 2024.
[12] Exhibit A6, C. Final correct payslips – 20 September 2024, Digital Hearing Book pg 88.
[13] Transcript PN547.
[14] Exhibit R1, Form F3 and attachments, Digital Hearing Book pg 126.
[15] Transcript PN257.
[16] Transcript PN258.
[17] Exhibit R8, Respondent – Remedy-1.docx, pg 5.
[18] Ibid, pg 2-3.
[19] Exhibit R1, Form F3 and attachments, Digital Hearing Book pg 127-128.
[20] Transcript PN562-564.
[21] Exhibit R1, Form F3 and attachments, Digital Hearing Book pg 124.
[22] Ibid, 127-128.
[23] Exhibit A2, Applicant’s outline of arguments – Jurisdiction – 20 February 2025, Digital Hearing Book pg 29.
[24] Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29.
[25] Ibid [128]-[129] (Steward J).
[26] Schneider v Apollo Motorhome Holidays Pty Ltd [2015] FWCFB 1259.
[27] Ibid [28].
[28] Ulan Coal 1 (n 2) [17].
[29] Kekeris (n 5) [27].
[30] Exhibit R4, Respondent’s outline of argument – Jurisdiction – 31 January 2025, Digital Hearing Book pg 186.
[31] Mitolo Group Pty Ltd v NUW[2015] FWCFB 2524 [37].
[32] Broadspectrum Limited v United Voice[2017] FWCFB 3202 [34]. (‘Broadspectrum’)
[33] Clerks – Private Sector Award 2020 [MA000002], cl 4.1. (‘Clerks Award’)
[34] Ibid, cl 2 (definition of ‘clerical work’).
[35] Exhibit A3, Applicant’s outline of arguments – Merits – 20 February 2025, Digital Hearing Book pg 53.
[36] Exhibit A6, Email to Chambers – Applicant – RE Duties dated 3 February 2025, Digital Hearing Book pg 109.
[37] Transcript PN323-324.
[38] Hallam v Sodexo Remote Sites Australia Pty Ltd[2018] FWCFB 1496 [25], citing Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495; McMenemy v Thomas Duryea Consulting Pty Ltd[2012] FWAFB 7184; Layton v North Goonyella Coal Mines Pty Ltd [2007] AIRCFB 713; The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd[2014] FWCFB 5643.
[39] Ibid.
[40] [2021] FWCFB 3478.
[41] Ibid [47].
[42] Broadspectrum (n 32).
[43] Ibid [31].
[44] Clerks Award (n 33) cl 4.1(3) and 4.1(4).
[45] General Retail Industry Award 2020 [MA000004] cl 4.2.
[46] Storage Services and Wholesale Award 2020 [MA000084] cl 4.1.
[47] Clerks Award (n 33) cl 38.
[48] Transcript PN267.
[49] Transcript PN282
[50] Exhibit R3, Respondent’s outline of argument – Merits – 31 January 2025, Digital Hearing Book, pg 157.
[51] Exhibit R2, Email & attachments addressing Award coverage and consultation/redeployment – 6 February 2025, Digital Hearing Book pg 236.
[52] Ibid.
[53] Ibid 272.
[54] Annexure to Form F2, filed by Ms Hou on 10 October 2024.
[55] Transcript PN244.
[56] Shorter Oxford English Dictionary (5th ed, 2002) ‘discuss’ (def 5).
[57] Exhibit R1, Form F3 and attachments, Digital Hearing Book, pg 124.
[58] Transcript PN353-PN356.
[59] Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714; (2014) 240 IR 130 [36]. (‘TAFE’)
[60] Ibid [25]
[61] Ibid [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine [2014] FWCFB 4125; (2014) 244 IR 252 [28]-[29] (‘Teterin’)
[62] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363 (‘Ulan Coal 2’) [28].
[63] Ibid.
[64] Ibid.
[65] Ulan Coal 2 (n 62) [28] and [34].
[66] Ulan Coal 2 (n 62) [28].
[67] Teterin (n 61) [35].
[68] TAFE (n 59) [24] and [35]; Ulan Coal 2 (n 62) [28].
[69] Transcript PN505-507.
[70] Exhibit A6, I. WeChat Screenshot -Elton – 23 September 2024, Digital Hearing Book, pg 100; Transcript PN382-383.
[71] Transcript PN712.
[72] Exhibit A9, 9. 6 companies, Digital Hearing Book, pg 104.
[73] Exhibit R10, The relationship between each of the entities identified below and The Trustee for Scene Perfection Unit Trust.
[74] Groszek v Toyvision International Pty Ltd [2015] FWC 697 [37], citing Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125 (‘Iannello’); Harrison v Queensland University of Technology [2010] FWA 8789 [6], citing Nalevansky v Thought Equity Motion Inc. [2010] FWA 3707 and Iannello.
[75] (1995) 185 CLR 410.
[76] Ibid 465.
[77] Ventyx Pty Ltd v Murray [2014] FWCFB 2143 (‘Ventyx’) at 142, citing UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241, 42. (‘UES’)
[78] UES (n 77) [33] and [47].
[79] UES (n 77) [43]; Ventyx (n 77) [144].
[80] UES (n 77) [44].
[81] UES (n 77) [45]; Ventyx (n 77) [146].
[82] Exhibit R2, Email & attachments addressing Award coverage and consultation/redeployment – 6 February 2025, Digital Hearing Book pg 236.
[83] [2013] FWCFB 6191.
[84] Ibid [41]-[42].
[85] UES (n 77) [49]; Maswan v Escada Textilvertrieb[2011] FWA 4239 [39]; Ventyx (n 77) [151]-[162].
[86] Gomes v OE & DR Pope Pty Ltd [2014] FWC 8342 [59].
[87] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
[88] Kable v Bozelle, Michael Keith T/A Matilda Greenbank[2015] FWCFB 3512 [17].
[89] He v Lewin [2004] FCAFC 161, [58].
[90] Bowden v Ottrey Homes Cobram [2013] FWCFB 431 at [24], quoting Ellawala v Australian Postal Corporation Print S5109 [35].
[91] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001) [45].
[92] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [35] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[93] Double N Equipment Hire Pty Ltd t/a A1 Distributions [2016] FWCFB 7206, [16].
[94] (1998) 88 IR 21.
[95] [2013] FWCFB 431.
[96] Ibid [24], quoting Ellawala v Australian Postal Corporation [31].
[97] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[98] Ibid.
[99] Enhance Systems Pty Ltd v Cox PR910779 [39], citing Ellawalla v Australian Postal Corporation Print S5109, 17 April 2000; Smith v Capral Aluminium Print P1054, 19 November 1999.
[100] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17] citing Smith v Moore Paragon Australia Ltd PR942856, [2004] AIRC 57; (2004) 130 IR 446 [32].
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