Zhiming Yang v Telstra Limited - [2023] FWC 3319

[2023] FWC 3319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zhiming Yang
v

Telstra Limited

(U2023/9422)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 12 DECEMBER 2023

Application for an unfair dismissal remedy – genuine redundancy – application dismissed

Zhiming Yang has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). His former employer, Telstra Limited (Telstra), contends that the dismissal was a case of ‘genuine redundancy’ within the meaning of s 389. This is one of the matters that s 396 requires the Commission to decide before considering the merits of an unfair dismissal application. On 8 December 2023, I conducted a determinative conference to hear from the parties on Telstra’s objection and the merits, with a view to deciding the jurisdictional objection first, and then the merits should that be necessary.

Mr Yang’s evidence was that he was employed by Telstra as a ‘technical expert’ in the ‘CCUC Technology Team’ providing various forms of technical support to Telstra’s customers. On 23 August 2023, he received a letter from Telstra stating that his position was redundant and that his employment would end on 19 September 2023. Mr Yang did not believe that his position was truly redundant. Mr Yang said that over the previous 12 months Telstra had hired four more staff to perform his role, that Telstra had invested a lot of money in the area in which he worked, and that the work of his team had continued to grow.

Mr Yang said that he believed Telstra had unfairly selected him for redundancy based partly on an incorrect and unfair assessment of his 2023 performance that was undertaken by his manager, Adnan Adnan, for the 2022/23 financial year. Mr Adnan had said in his evaluation of Mr Yang’s performance that his troubleshooting and issue resolution skills were improving, when according to Mr Yang he had advanced skills in these areas, having closed almost one hundred percent of his cases. Mr Yang had also received commendations for his work and had built good relationships with major customers. Mr Yang said that Mr Adnan had failed to apply the assessment standards objectively across his team. He said that the number of cases he had closed was above the average number for his team, and that he doubted that Mr Adnan had really compared his achievements to those of others. Mr Yang also said that his ratings for 2022 and 2023 were inconsistent, because in 2022 he had closed 140 cases and received a rating of 3, but in 2023 he had closed many more cases but received a rating of only 2. Mr Yang said that he told Mr Adnan that he thought that his performance rating of 2 was unfair and that he would dispute it, and that he then raised the matter with Ms Riley and another manager. He said that Ms Riley sent him a link to a webpage through which he could raise a formal dispute however…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 3319
Decision Date: 12 DECEMBER 2023

CaseChat Overview and Summary

Zhiming Yang sought relief from the Fair Work Commission under section 394 of the Fair Work Act 2009 for unfair dismissal by his employer, Telstra Limited. Telstra argued that Mr Yang’s dismissal was a genuine redundancy. The Deputy President, Colman, conducted a determinative conference on 8 December 2023, hearing from both parties regarding the objection and the merits of the application. The Deputy President found that the dismissal was a genuine redundancy under section 389 of the Act.

The legal issues before the Deputy President were whether Telstra had reduced the number of technical experts in Mr Yang’s area due to changed operational requirements, and whether it would have been reasonable to redeploy Mr Yang within Telstra or an associated entity. The Deputy President concluded that Telstra had reduced the number of technical experts due to operational requirements, and that it was not reasonable to redeploy Mr Yang. The Deputy President found that Telstra’s selection criteria were applied objectively, and that Mr Yang was not selected for redundancy on the basis of his race. The Deputy President also found that Telstra complied with its obligations to consult about the redundancy.

The Deputy President rejected Mr Yang’s arguments that his dismissal was not a genuine redundancy, and that his performance was incorrectly evaluated. The Deputy President concluded that even if Mr Yang’s arguments were accepted, his dismissal would still not be unfair due to the redundancy payment of $111,348.54. The Deputy President found that the dismissal was a genuine redundancy, and dismissed the application.

The Deputy President did not make any orders beyond dismissing the application.

Orders