Ying Liu v Global Success Education and Training Group Pty Ltd T/A Worldwide Express Education, Training and Investment
[2011] FWA 2038
•4 APRIL 2011
Note: An appeal pursuant to s.604 (C2011/3817) was lodged against this decision - refer to Full Bench decision dated 25 May 2011 [[2011] FWAFB 3277] for result of appeal.
[2011] FWA 2038 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ying Liu
v
Global Success Education & Training Group Pty Ltd T/A Worldwide Express Education, Training and Investment
(U2010/1938)
COMMISSIONER GAY | MELBOURNE, 4 APRIL 2011 |
Termination of employment - arbitration.
[1] The decision set out below was given in transcript in Melbourne on Wednesday 9 March 2011 immediately following presentation of the parties’ cases.
[2] In the normal course of events the decision would have been edited prior to being published. As I have become aware that an appeal has been lodged I have determined to publish the decision as given extempore and despite several grammatical and other flaws.
[3] There is one other matter. On 24 March 2011 the Order [PR507445] referable to the 9 March 2011 proceedings was issued. It required the respondent to make a payment of $4,758.00 less tax. That sum was to be paid in two equal instalments, the first within 14 days of the date of the 24 March 2011 Order ie. on or before 7 April 2011 and the second instalment within 21 days of 24 March 2011 ie. on or before Thursday 14 April 2011. In reviewing these dates I have come to realise that the money amount set out in the Order, $4,758.00 less tax, misrendered the amount actually awarded in my decision and set out in paragraph 531 of the transcript, that is, $4,768.00 less tax.
[4] The ordinary course would have been to issue a Correction Order. With the decision under appeal I have decided not to take that corrective step favouring Ms Lui by $10.00 and, rather, now bring the typographical error to notice. To avoid any doubt the amount I intended to require be paid as compensation to Ms Liu is $4,768.00 less tax.
[5] “This is an application made pursuant to section 394 of the Act for an unfair dismissal remedy. It is made by Ms Ying Liu against her previous employer, Global Success Education and Training Group Pty Ltd trading as the Worldwide Express Education, Training and Investment, and in fact I have misrendered that. It is trading as Worldwide Express Education, Training and Investment.
[6] Now, I am not going to go through all the detailed narrative, the story of this case. It is well known to the parties, although in important respects they have a different view about some of these parts. I will say something about the foundation of the case though. It is of course true that for there to be an application made for relief under the section, the person has to be protected from unfair dismissal. A person is protected from unfair dismissal if the minimum employment period has been satisfied and if a modern award covers the person, or an enterprise agreement applies, or the sum of the person’s annual earnings is less than the high income threshold.
[7] In this case, it is very likely that the Educational Services (Post-Secondary Education) Award 2010 applies, or the modern Clerical Award applies, and I must say, I favour the Educational Services Award. Under the Act, a person has only been dismissed if the person’s employment with his employer, or her employer, has been terminated on the employer’s initiative. In this case, I find that the employment was terminated at the initiative of the employer.
[8] It is also necessary, however, for me to consider in this case whether the dismissal was a case of genuine redundancy. If the dismissal was a case of genuine redundancy, then an application cannot be made.
[9] The Act sets out what is a genuine redundancy at section 389. I am going to set out what that section says:
“A person’s dismissal was a case of genuine redundancy -
which would mean no application could be made -
if 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 the employer has complied with any obligations in a modern award or enterprise agreement that applies to the employment to consult about the redundancy.”
[10] Now, in this case, I find that it is true that the employer, Global Success Education and Training Group Pty Ltd - I use that as a shorthand term - did come to the position where it no longer required Ms Liu’s job to be performed because of changes in the operational requirements of the employer’s enterprise, other than for the work done by Ms Rui, and I will come back to that.
[11] As to 389(1)(b); that is, where the employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy, I find that there had not been consultation in the requisite sense. Now, with slight variation, the consultation provisions regarding major work-based change such as to threaten employment is generally consistent. In this case, there is an obligation for the employer to consult with its employees when a definite decision has been made to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees.
[12] On the evidence, it is my understanding that the administrative duties previously undertaken by Ms Liu were undertaken by Ms Rui. There is no doubt that that change in organisation constituted a significant effect within the meaning of the consultation obligation. It involved the elimination or diminution of job opportunities. It affected job tenure. It, in this case, seems to have affected the alteration of hours of work because what was a full-time job was to be compressed into three days.
[13] Now, when that situation arises, the employer is required to discuss the changes, and I am going to read from the Educational Services (Post-Secondary Education) Award 2010, which is very likely to apply:
“The employer must discuss with the employees affected, and their representatives, if any, the introduction of the changes. The discussions must commence as early as practicable after a definite decision has been made. For the purpose of such a discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees, and any other matters likely to affect employees, provided that no employer is required to disclose confidential information.”
[14] I find that no such discussion occurred and in the circumstances of this case, had such a discussion occurred, it is very likely, almost inevitable, that Ms Liu would have been able to take up, had she chosen to do so, a three-day position in lieu of losing her job and face redundancy. In any event, it is as a result of the ongoing work performed by Ms Rui that I find that the dismissal in this case was not a case of genuine redundancy.
[15] There is no doubt that the company was suffering a serious trading position and there was indeed much to consult about, but it cannot be said that the person’s dismissal was a case of genuine redundancy because a very substantial part of Ms Liu’s position was required by the employer to be performed, and continued to be performed.
[16] I have already said I’m not going to set out the detail of the argument, but Ms Liu relies on the fact that there was advice given to her by the email mechanism when she was on annual leave, and upon her return to Australia, there was no offer of any sort made by Mr Yip, certainly not until the conciliation had occurred. Most particularly, Ms Liu’s case relies on the fact that in the telephone conversation that she did have with Mr Yip, initiated by her, that solely dealt with superannuation matters. It was put to her that that is not the case that indeed, Mr Yip had tried to make contact previously and did offer employment.
[17] I have accepted the evidence of Ms Liu in this case. Where Ms Liu’s evidence conflicts with the assertions from the bar table of Mr Yip - of course I bring to notice that Mr Yip chose not to go into the witness box. Where there is a conflict between the two parties in this matter, I have no hesitation of accepting that of Ms Liu. I do accept that there was no earlier offer; that is, about the time of the telephone conciliation, and rather, that in the 1 December conversation, that was initiated by Ms Liu and it dealt solely with superannuation.
[18] Ms Liu’s case relies also on the fact that Mr Yip did not comply with directions. I must say I have not placed a great deal of weight on that point. Of course parties should comply. It makes the hearing of the case difficult. It has made the hearing of today’s case difficult because the argument is not set out very clearly. However, I am conscious that the parties are unrepresented.
[19] I accept the submission that what Ms Liu was offered at the time she was advised that she had lost her job was the profit-share consultancy arrangement.
[20] It is necessary to deal with the matter of redeployment, particularly necessary not just in considering the fairness of this case but also section 389 subsection (2), which of course reads under the heading of Genuine Redundancy:
“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 the employer’s enterprise or the enterprise of an associated entity of the employer.”
[21] There would always have been the problem of the compression of five days’ work to three days to reflect the reduced capacity and operation of a business. It would have been reasonable for Ms Liu to have been offered the position of the three-day Ms Rui job or to have been redeployed into that position. As to the enterprise of an associated entity of the employer, there is insufficient evidence before me to come to a concluded view as to whether the other company, of which Mr Liu is a director or part-owner, constitutes such an enterprise.
[22] To the extent though that I have material before me, it seems that there certainly is a conflict in the evidence that Mr Yip says a position was offered which would have seen Ms Liu transferred either to Box Hill or the city. Mr Yip indicated ultimately that it was in the city and it was therefore reasonable for Ms Liu to take up that position.
[23] To the extent that a later position was offered; that is, late in December, in my view, Ms Liu’s evidence can be relied on that Box Hill was mentioned and that it is reasonable in the circumstance for Ms Liu not to have accepted that position, and I so find.
[24] Now, the rates of pay. I am told that Ms Liu was paid 31,000 a year after her two years and five months’ service. It is very likely, in my view, that level 1.3 of the general staff minimum weekly rate of the Educational Services (Post-Secondary Education) Award 2010, a rate of $656, would apply. I simply do not have sufficient material before me to serve as the foundation for an order to be made in those terms and I am instead going to consider the weekly rate of Ms Liu of $596 to provide the basis of further consideration.
[25] I find, pursuant to section 388(2) that the employer did not comply with the Small Business Fair Dismissal Code and for that reason, there is no obligation on my part to consider these events in the context of the code.
[26] It is not disputed in this case that the National Employment Standards as to notice and redundancy payments, severance payments, were not paid. I found that Ms Liu made the necessary efforts to mitigate her losses and any award made should not be reduced by virtue of a failure to mitigate. Ms Liu has suffered an ongoing economic loss where she has received work only, despite efforts, which I have accepted, extended to very fulsome satisfaction of the obligation to mitigate, of two days per week.
[27] The National Employment Standards require, in relation to notice, for an employee in Ms Liu’s category, for a payment of two weeks’ notice to be made; that is, for a person who has given service of more than one year but not more than three years, two weeks’ notice.
[28] Now, while notice was given, which forms part of Ms Liu’s complaint, while Ms Liu was on annual leave, it should not be thought of as notice in the sense that is contained within the National Employment Standards. An employee in Ms Liu’s case, enjoying a period of authorised annual leave, who is given notice still has an entitlement to the notice, either to serve it out or to be paid; in Ms Liu’s case, two weeks.
[29] The National Employment Standards set out redundancy payments which constitute the minimum payments in Australia for someone who is retrenched, whose position is made redundant. The entitlement for an employee of Ms Liu’s standard is for six weeks’ redundancy pay.
[30] I am required to consider whether a termination was harsh, unjust or unreasonable having regard to section 387 of the Act; that is, whether there was a valid reason, whether the person was notified of the reason, whether the person was given an opportunity to respond to any reason, any unreasonable refusal by the employer to allow the person to have a support person, and, if the dismissal related to unsatisfactory performance, whether there had been a warning, the size of the employer’s enterprise and the absence of dedicated human resource operatives, and other matters considered relevant.
[31] In my view, it was harsh indeed for an employee of two years and five months’ standing to be served a notice of termination of their employment where they are on annual without there being subsequently further real efforts made to contact the employee and see if there can be, even in some belated fashion, an opportunity for further work to be obtained or some change in the worker’s arrangements which might be mutually satisfactory.
[32] One knows that in this case there was such an opportunity and it was not taken up; that is, the three days’ employment. I make no finding about this but it is very likely that Ms Liu would have taken that opportunity to lessen her loss from five days’ employment to zero employment by taking up the three days’ employment, and that is evidenced by the fact that she has indeed taken up two days a week employment because she cannot find full-time employment.
[33] I am conscious, and I have to have regard, for the size of the enterprise, that it might have been likely to impact on the procedures followed and the absence of dedicated human resource operators. I am also very conscious of the need for me to have regard for the state of the business. I have endeavoured to bear that in mind.
[34] I note that in relation to redundancy pay, the National Employment Standards at section 120 provide Fair Work Australia with the capacity to determine that an amount of redundancy pay which otherwise would be payable can be reduced to a specified amount, which may be nil, that Fair Work Australia considers appropriate in the event that the employer cannot pay the amount. Now, that is a consideration.
[35] I have had regard for the fact that the parliament have enacted section 120. It seems to me a relevant consideration because I am principally conscious that in awarding a remedy for what I regard as the unfair dismissal in this case, I must have regard for the fact that there has not been, it seems, any step whatsoever taken to meet the obligation to pay Ms Liu six weeks by way of redundancy payments and two weeks by way of notice payments.
[36] Section 392(2) requires that in determining an amount for the purpose of an order under subsection (1); that is, an order of compensation, I must have regard for, or must take into account, the circumstances which include the effect of the order on the viability of the enterprise, the length of the employee’s service, the remuneration that the person would have received or would have been likely to receive, mitigation efforts and the amount of any remuneration earned, and any other amount. There is no misconduct which might reduce the amount in this case and I make no award for shock, distress or some analogous hurt.
[37] I have determined to make an order for compensation. In my view, Ms Liu’s treatment was harsh, unjust and unreasonable, and there should have been attempts to discuss the difficult position that faced Ms Liu, at least offer her whatever work was available and consider reasonable redeployment, which does not include, in the circumstances of this case, Box Hill.
[38] Ms Liu was an employee of some service. Nothing is said that she was a poor employee. I am conscious though, for the company, that there has been some remuneration received. I am going to make an order requiring the employer - perhaps I will go back one step and make explicit findings.
[39] I find there was not an offer of that employment claimed by the company prior to a date well into December of 2010, and I find also the submission that some obligation rested on Ms Liu to make contact with Mr Yip, or to the company officers, to be utterly without foundation. Ms Liu had written advice that her position was coming to an end and that she had the alternative, the sole alternative, to take up a commission partnership consultancy, not a prospect which appealed to Ms Liu. It was certainly not Ms Liu’s duty to make further contact.
[40] Ms Liu took that letter, email, as having one meaning, a very clear meaning, that she was being turned away and then when the opportunity for some work arose, the obligation rested, in my view, wholly and solely with the company and it ill behoves a person to put a submission that some duty or obligation rests on the applicant. In my view, that is quite wrong.
[41] I am going to make an order in all the circumstances of this case for a payment of eight weeks’ pay to Ms Liu, which does not represent the full degree of her loss, but it is diminished by the fact of the very straitened circumstances of the company and the fact that there have been some earnings.
[42] Now, I calculate eight weeks’ pay at what I understand from what I have been told to be the pay rate of $596 per week, resulting in a payment of $4768. That is very likely to be taxed as a redundancy amount, it being the case, for the purposes of taxation, the loss of Ms Liu’s job is a redundancy and it is not a genuine redundancy only within the specialised meaning of section 389.
[43] I am conscious that that is a substantial amount. The order I am going to make in this matter will provide for it to be paid in two instalments: the first half of that amount; that is, half of $4768, less any necessary taxation, within 14 days, and the remainder; that is, the other half, within 21 days of today’s date. An order to that effect will issue shortly. I now adjourn.”
COMMISSIONER
Appearances:
Y Liu, the applicant.
J Yip for Global Success Education & Training Group Pty Ltd T/A Worldwide Express
Education, Training and Investment (the respondent).
Hearing details:
2011.
Melbourne:
March 9.
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