1
Fair Work Act 2009
s.394 – Unfair Dismissal
Ling Xu
v
Australian Dairy Park Pty Ltd
(U2023/3769)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 OCTOBER 2023
Application for unfair dismissal remedy – genuine redundancy.
[1] This decision concerns an application made by Mr Ling Xu for an unfair dismissal
remedy under s 394 of the Fair Work Act 2009 (Cth) (Act).
[2] Mr Xu was employed as a Performance Improvement Manager with Australian Dairy
Park Pty Ltd, which is a food manufacturer. The respondent submits that Mr Xu was dismissed,
with effect on 28 April 2023, by reason of genuine redundancy. Mr Xu contends that his
redundancy was not genuine, and he was unfairly dismissed.
[3] I have determined that Mr Xu’s dismissal was a case of genuine redundancy within the
meaning of s 389 of the Act. By reason of s 385(d), Mr Xu was not unfairly dismissed. The
reasons for this decision follow.
Initial matters
[4] For the purposes of s 396(a)-(c) of the Act, there was no dispute that the application was
made within the 21-day period required by s 394(2), and Mr Xu was protected from unfair
dismissal within the meaning of s 382. The respondent was not a small business employer
within the meaning of s 23 of the Act and accordingly, the question of compliance with the
Small Business Fair Dismissal Code did not arise.
[5] Sections 396(d) and 385(d) of the Act require determination of whether the dismissal
was a case of genuine redundancy. The parties are in dispute about this matter. Accordingly, I
must decide that question before considering the merits of Mr Xu’s application.
Background
[6] The respondent describes itself as a dairy manufacturing facility, specialising in the
manufacture and packaging of infant formula milk powder and functional milk powders. It is a
subsidiary of Ausnutria Pty Ltd and is an associated entity of Nutrition Care Pharmaceuticals
(NCP).1
[2023] FWC 2806
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2806
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[7] Mr Xu commenced employment with the respondent on 4 December 2017 as a
Production Supervisor.2 Mr Xu was promoted to the role of Production Manager from 7 January
2019,3 and from 19 October 2020 until the cessation of his employment, held the role of
Performance Improvement Manager.4
[8] Mr Xu’s role was responsible for measuring, reporting on and improving performance
to ensure continuous improvement on matters such as quality, cost, safety and customer
service.5 In 2018, Mr Xu received an award from the respondent for being the “Most
Innovative,” which was in recognition of Mr Xu’s contribution to improve productivity, share
ideas, and help to implement them.6
[9] It does not appear to be in dispute that there was no enterprise agreement covering Mr
Xu’s employment.7 Noting it was not contended otherwise, I am also satisfied that Mr Xu’s
position was award-free.
[10] Mr Xu reported to Mr Marko Peric from in or about 2020, following Mr Peric’s
employment commencement.8 Mr Peric currently holds dual roles as the respondent’s Director
of Supply Chain and Operations, and the Acting Managing Director.9
[11] Approximately 85% of the respondent’s business concerns the production of child infant
formula.10 A significant majority of the infant formula produced by the respondent is exported
to China. Chinese authorities require the respondent to hold a China Infant Formula Product
Registration (formula registration). In February 2023, the respondent’s formula registration
expired. The respondent does not anticipate renewal of its formula registration until early
2024.11 In the absence of its formula registration, the respondent says its sales dropped by 47%
when compared with calendar year 2022, and production rates decreased by 97%.12
[12] Evidence was given in these proceedings by Ms Tracey Jen, who holds the role of human
resources director for the respondent.13 Ms Jen forms part of the respondent’s executive team,
which is comprised of directors from its key departments. The executive team shares decision-
making with its global headquarters. Mr Peric also sits on the respondent’s executive team.14
[13] On 30 March 2023, Mr Peric provided Mr Xu with a letter advising that an operational
review would be conducted “due to a significant reduction in Australian Dairy Park’s current
production capacity.” The letter stated that the operational review would address staffing levels,
operational needs, redeployment opportunities and redundancy. The letter proceeded by stating
as follows:15
“During consultation with each business area the Company will develop a set of objective
criteria to identify which positions must be retained, and which positions may no longer
need to be retained. The criteria used may include factors such as performance, skill set,
experience. The decision will always be made to ensure business functionality can still
continue.
Before any final decisions are made, we will also explore all other possible scenarios
such as:
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• job sharing;
• redeployment;
• potential decrease in working hours;
• the taking of extended periods of leave (whether that be annual leave, long
service leave if applicable or unpaid leave), with agreement and with appropriate
notice to the employee (s) affected;
• changes to rosters or any other method that may mitigate potential termination
from employment; and
• voluntary redundancy
Next steps will involve a one-on-one meeting with you, the Operations and Supply
Chain Direction and HR to discuss current skills in the areas of On-the-job knowledge,
Supervision, Communication skills, OH&S issues, quality, teamwork or any other items
as considered relevant, in assessing your job role and the skills required to perform the
inherent requirements of the role.”
[14] On 14 April 2023, Mr Xu attended a meeting with Mr Peric and the Manufacturing
Manager.16 At this meeting, Mr Xu was informed of the termination of his employment by
reason of redundancy and given a termination letter of the same date.17 The 14 April 2023 letter
relevantly stated that the respondent had been advised to “critically review” its structure and
resourcing and considered that changes were necessary to ensure its long-term viability and
success. The letter stated that based on the respondent’s “current and projected business needs
the position of Performance Improvement Manager is no longer required.”
[15] The letter further advised that the respondent had “carefully considered redeployment
opportunities within the company and associated entities, including a fixed term secondment to
Nutrition Care Pharmaceuticals (NCP) in the hope that over time, our operational needs would
increase. Unfortunately, due to NCP also undergoing similar reviews based on limited
production schedules, there is no additional work available in NCP.”
[16] The letter continued as follows:
“As a result of this review, the position of Performance Improvement Manager is no
longer needed. Regrettably this means your employment will terminate, on the grounds
of genuine redundancy. This decision is not a reflection on your performance.
Your employment will end immediately…”
[17] Mr Xu submits that the approach taken by Mr Peric to communicate the information in
the 14 April 2023 letter humiliated him.18 Mr Xu said that there was no human resources
representative present, and the meeting took place in a “young manager’s office,” who is “the
same level manager” as Mr Xu and with whom Mr Xu had no “reporting relationship.”19
[18] Accordingly, on 14 April 2023, Mr Xu requested a discussion with the respondent’s
Chief Executive Officer or Human Resources Director.20 A meeting between Ms Jen and Mr
Xu took place the same day.21 Ms Jen’s written notes of the meeting are before the Commission.
The notes indicate that the following matters were discussed:22
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(1) Mr Xu respected and accepted the respondent’s decision regarding his redundancy
and has no objection to the redundancy payment proposed.
(2) Mr Xu proposed that payment of his redundancy payment be deferred to 1 July 2023
for taxation purposes.
(3) Mr Xu separately wanted to lodge a complaint against Mr Peric based on the
following matters:
(a) The redundancy procedure was harsh and humiliating due to “harsh notice” and
a refusal to provide a “reasonable explanation,” the outcome was communicated
in a “young manager’s” office, with whom Mr Xu had no connection,23 which is
humiliating and disrespectful, and the termination of email access and advice to
clean the laptop of information is not accepted.
(b) Mr Xu has been unfairly treated by Mr Peric. This arises from Mr Xu’s concerns
that Mr Peric has met with Mr Xu only twice since his commencement; Mr Peric
has created an environment which isolates Mr Xu from team meetings and team
communications; Mr Xu’s colleagues were informed by Mr Peric to ignore Mr
Xu’s working suggestions and efforts; and Mr Peric ignored Mr Xu’s request to
review his job, salary and bonus options.
(c) Mr Peric’s unfair treatment had caused Mr Xu mental harm, for which Mr Xu
has medical evidence.
(4) Ms Jen committed to responding to Mr Xu’s request that his redundancy payment
be deferred to 1 July 2023 once the respondent had made a decision on this matter.
[19] A further meeting was held between Mr Xu and Ms Jen on 18 April 2023. At this
meeting, Ms Jen said she further explained the “reason for the redundancy” to Mr Xu. It was
noted at this meeting that Mr Xu said on 14 April 2023 that he respected and accepted the
respondent’s decision.24 Ms Jen explained that the purpose of this meeting was to listen to Mr
Xu’s concerns, which Ms Jen understood to be focussed upon Mr Xu’s view that he had been
bullied or victimised by Mr Peric, and that he had been overlooked for salary reviews and
discretionary bonuses.25
[20] It is apparent from the evidence before the Commission that the meeting was also
convened for the purpose of discussing a proposal by Mr Xu that (a) he receive additional
compensation in connection with his dismissal,26 and (b) his redundancy be deferred until 1
July 2023 for taxation purposes.27 To this end, Ms Jen referred to the meeting as a “dismissal
conditions” discussion.28 The respondent declined to defer the redundancy to the next financial
year.29 However, Ms Jen said that as a gesture of goodwill, there had been “one or two rounds
of golden handshaking opportunities” with Mr Xu. Upon confirmation by Mr Xu on 27 April
2023 that he had declined the respondent’s offer,30 the respondent issued the 28 April 2023
letter to Mr Xu and paid out his statutory entitlements.31
[21] The 28 April 2023 letter to Mr Xu provides relevantly as follows:
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“Following on from our previous communication to you, dated 14th April 2023, and
subsequent discussions held with Tracy Jen, HR Director, we wish to confirm the
following:
There is no change to the previous decision communicated to you, that being the position
of Performance Improvement Manager is no longer needed. Regrettably this means your
employment will terminate, on the grounds of redundancy. This decision is not a
reflection of your performance.”
[22] The letter stated that, “[y]our employment will now end today, 28th April 2023.” The
letter advised that:32
(a) Mr Xu would receive a payment in lieu of notice (being an eight-week period which
the respondent increased by one year having regard to Mr Xu’s age and completed
period of service), and a redundancy payment in accordance with the Act (being 10
weeks’ pay); and
(b) the period between 14 April and 28 April 2023 would be processed as follows:
a. leave without pay for the week commencing 17 April 2023 in accordance
with a leave application completed by Mr Xu following receipt of the 14
April 2023 letter; and
b. a combination of leave without pay, a payment for a public holiday not
worked, and wages for the period between 24 April and 28 April 2023.
[23] Ms Jen explained that while the respondent had made its decision to declare Mr Xu’s
role redundant on 14 April 2023, it had refrained from finalising Mr Xu’s employment while it
negotiated a potential ex gratia payment with Mr Xu, as a gesture of goodwill. The 28 April
2023 letter was said to reflect the respondent’s official “approval” of its 14 April 2023 decision
following the conclusion of those negotiations.33
[24] Some evidence was given during the proceedings about discussions between Mr Xu and
leaders from the respondent’s “headquarters” pertaining to confidential information said to have
been held by Mr Xu regarding the respondent and its associated entities. I have not taken the
limited evidence of these discussions into account in this decision. The discussions post-date
the cessation of Mr Xu’s employment with the respondent, and the termination payment.
Accordingly, such discussions do not bear upon the matters to be determined by the
Commission in these proceedings.34
Was Mr Xu’s dismissal a case of genuine redundancy?
[25] Under s 389(1) of the Act, 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.
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[26] Section 389(2) of the Act provides that 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. The term “associated entity” has the meaning given by s 50AAA of the Corporations
Act 2001 (Cth).
[27] I consider these matters in the analysis that follows.
Was Mr Xu’s job no longer required to be performed by anyone because of changes in the
operational requirements of the respondent’s enterprise?
[28] Ms Jen gave evidence that as a consequence of an embargo on the respondent’s formula
registration by the Chinese authorities, the respondent “will not have any production for the
entire year.” Ms Jen said that this had “a big impact” to Mr Xu’s role.35 Ms Jen said that in the
absence of the renewal of its formula registration, the respondent’s production has dropped by
97% by comparison to calendar year 2022, and sales have reduced by 47% from the same
period.36
[29] The respondent does not anticipate that the Chinese authorities will renew its formula
registration until “early 2024.”37 Ms Jen understands this to be an issue shared by other
Australian manufacturers in the industry. Ms Jen’s evidence is that the auditing process takes a
period of three to six months, followed by a period of three to six months for decision making.
The process also involves a quality audit, conducted by a team from China.38 In light of this,
Ms Jen said that the respondent will not receive orders for infant formula from the “China side”
for a period of at least 12 months.39
[30] Mr Xu contends that while the respondent’s production volume has slowed while it
awaits the renewal of the formula registration, the respondent continues making “the products.”
Mr Xu says that the respondent did not make any other employees besides him redundant.
Further, Mr Xu says that the respondent continues to employ workers on the production line
and employed new staff one week prior to Mr Xu’s position being declared redundant.40
[31] Mr Xu submits that his role as Performance Improvement Manager is an important part
of the respondent’s operations, and he does not accept that his job is no longer required.41 Nor
is there any evidence, in Mr Xu’s submission, demonstrating that the respondent is insolvent or
bankrupt, closing down, relocating its business interstate or overseas, being reorganised as a
consequence of a merger or takeover or which demonstrates that the respondent has introduced
new technology such that his role is not required. Mr Xu submits that upon the formula
registration being renewed, the respondent will have increased production needs and his role as
Performance Improvement Manager will be “even more important.”42
[32] In any event, Mr Xu contends that the respondent’s financial loss, caused by the delay
in securing renewal of the formula registration, is “acceptable” to Yili Industrial Group Co. Ltd
which is the only major shareholder of Ausnutria Dairy (China) Corp. Ltd, a related company
of the respondent.43
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[33] Contrary to Mr Xu’s position, Ms Jen said that the respondent’s “headquarters” required
the respondent to consider various cost control measures.44 Ms Jen said that these measures
necessarily involved a number of employee redundancies. The respondent’s “latest movement”
of this kind in April to May 2023 concerned “at least seven roles.” This included “production
operators, a few quality control specialists, one HR business partner for Australian Dairy Park
and also the applicant’s role.”45 Despite Mr Xu’s concern that the respondent had hired a new
employee in the week prior to his redundancy, Ms Jen gave evidence that this was a “free
internship” in a department unrelated to the production and manufacturing environment, which
converted to paid employment after three months.46
[34] Notwithstanding its cost-cutting measures, Ms Jen said that the respondent has
endeavoured to retain one full set of manufacturing-related production employees to
accommodate anything that “comes up.”47 Mr Xu challenged the respondent’s position in this
respect, contending that it brought into question the genuineness of his redundancy. However,
Ms Jen’s said that production employees required up to three months of training and the
retention of 15 trained workers, of which two are casual, provided the respondent with the
capacity to remain “lean” but the flexibility to move quickly should the need arise.48
[35] In addition, Mr Xu contends that the true reason for his dismissal arises from Mr Peric’s
“long desire to eliminate” him from the business, after a lengthy period of bullying Mr Xu.49
Mr Xu says he was targeted for dismissal by Mr Peric. Mr Xu says that shortly after Mr Peric
commenced employment with the respondent in 2020, Mr Peric asked Mr Xu to step down from
his position as Production Manager without a reasonable explanation. Mr Xu said he did not
agree with the change, but the (then) Chief Executive Officer persuaded Mr Xu to “bear with
it.”50 Mr Xu also refers to the following:51
(a) An email said to have been sent by Mr Peric to the production department manager,
advising him to “ignore” and “not implement” recommendations made by Mr Xu to
the production department.52 This email is not in evidence.
(b) An email from Mr Peric to Mr Xu advising Mr Xu not to action a request from a
finance manager, with Mr Peric later complaining that Mr Xu was “useless.”53 This
email, or any details concerning Mr Peric’s complaint, are not in evidence.
(c) Mr Xu says that Mr Peric deprived him of the right to speak at the weekly
management meeting, which impacted Mr Xu’s ability to perform his duties. Mr Xu
relies upon an email dated 21 June 2022 which was sent by Mr Peric to a number of
employees, including Mr Xu.54 The email contains a meeting agenda and does not
appear to seek an update from Mr Xu.55 There are no other material details in
evidence concerning this email.
(d) Mr Xu contends that Mr Peric’s purpose was to force the cessation of Mr Xu’s
employment,56 as has occurred with other employees.57
(e) Mr Xu did not receive a salary increase or bonus in recent years, whereas Mr Xu
says that other employees have.58
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(f) Mr Xu considers that Mr Peric attempted to make him redundant several times prior
to 14 April 2023 and his approach to communicating Mr Xu’s redundancy was
humiliating.59
(g) Mr Xu says that Mr Peric has spoken to him officially only twice in three years.
(h) Mr Xu says he was blocked from his emails by Mr Peric.60
[36] The respondent rejects the above matters and says that they did not have any bearing
upon its decision to declare Mr Xu’s position redundant. In response, the respondent says as
follows:61
(a) The respondent conducted an investigation into Mr Xu’s concerns regarding Mr
Peric’s conduct after Mr Xu raised them with Ms Jen on 14 April 2023. Mr Xu’s
contention that he had been bullied by Mr Peric is unsubstantiated.62
(b) Mr Xu’s contention that the bullying caused him ill health, physically or mentally,
is not a matter that was raised with the respondent during his employment and Mr
Xu’s attendance records demonstrate little, if any, absenteeism from work.
(c) Mr Xu did not lodge a grievance in accordance with the respondent’s policies and
procedures in relation to his concerns about Mr Peric’s behaviour towards him
during his employment.
(d) The manner in which Mr Xu’s redundancy was communicated to him on 14 April
2023 was not intended to offend or humiliate Mr Xu. Due to the short tenure of the
respondent’s human resources business partner, the 14 April 2023 meeting was
conducted with Mr Peric and the Manufacturing Manager, an employee with whom
the respondent understood Mr Xu had a close working relationship. Mr Xu did not
object to the presence of the Manufacturing Manager at the time of the meeting.
(e) Salary increases are at the respondent’s discretion, and it is not accurate to say that
all other employees received increases or bonus payments.
(f) The alteration of Mr Xu’s role from Production Manager to Performance
Improvement Manager from October 2020 was consistent with the terms of Mr Xu’s
contract of employment, which enables the respondent to alter Mr Xu’s position,
position description and responsibilities in accordance with business needs from
time to time. Further, the change reflected an alteration to the respondent’s
operational structure and drew upon Mr Xu’s skills in efficiency and continuous
improvement.
(g) Mr Xu continued to be invited to weekly production planning meetings at which he
was able to contribute, but the agenda was streamlined for efficiency.
(h) Any requests by Mr Peric not to proceed with certain actions or tasks arose due to
conflicting data across various departments such that further clarification was
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required before certain requests were actioned. Mr Xu did not bring this matter to
the respondent’s attention or raise a complaint at the time of these events.
(i) There is no evidence that Mr Xu was precluded from performing his duties on
account of Mr Peric excluding Mr Xu from emails or relevant information.
[37] I am satisfied on the evidence that there has been a change in the operational
requirements of the respondent’s enterprise. The uncontested evidence is that a significant
component of the respondent’s business concerns the production of child infant formula, with
a vast majority of that product exported to China. It is not in dispute that the respondent’s
formula registration has not been renewed by the Chinese authorities. In the absence of holding
a current formula registration, I am satisfied that the respondent is precluded from exporting its
product to China and this informs the significant reduction in its sales and thereby its production
levels. The respondent’s evidence as to a 97% drop in production and a 47% reduction in sales
when compared to calendar year 2022 was not the subject of any significant challenge by Mr
Xu.
[38] I accept Ms Jen’s evidence that the formula registration is not expected to be renewed
until early 2024. While Mr Xu contends that this timeframe is not accurate, Mr Xu relies upon
a report said to have been prepared by the respondent in 2022 that it would run a “double shift
on Q3/2023.”63 I do not consider that a forecast prepared by the respondent approximately 12
months ago supplants Ms Jen’s direct evidence on this matter, having regard to her role as a
decision-maker within the respondent’s executive team.
[39] There is no evidentiary support for Mr Xu’s contention that the financial loss incurred
by the respondent because of these external events was “acceptable” to the respondent or the
corporate group. The contention is also contrary to Ms Jen’s direct evidence on this matter,
which I accept given her role. The evidence demonstrates that the respondent was under
instruction to implement cost control measures, having regard to its deteriorating financial
performance since late 2022, including implementing employee redundancies where
appropriate. This position was communicated to Mr Xu in the 30 March 2023 letter.
[40] The evidence establishes that the respondent made approximately seven employees
redundant, including Mr Xu, during April and May 2023 in response to these operational issues.
Contrary to Mr Xu’s contention that he was the only affected employee, the outcomes were not
isolated to Mr Xu. It is not in dispute, and I am satisfied, that Mr Xu’s role is not being
performed by anyone.
[41] There is no direct evidence before the Commission that draws a causative link between
the redundancy of Mr Xu’s role and Mr Xu’s allegation that he was targeted for dismissal by
Mr Peric. Mr Peric was not called to give evidence in the proceedings and Mr Xu’s contention
that there is a connection between his alleged treatment by Mr Peric and his redundancy is, on
the evidence before the Commission, speculative. Further, the contention that Mr Peric
effectively orchestrated Mr Xu’s redundancy fails to take into account Ms Jen’s evidence that
the decision to declare Mr Xu’s role redundant was made by the executive team and the
headquarter leaders, not by Mr Peric alone.64 It follows that Mr Xu’s submission that the true
reason for his dismissal was a long-held desire by Mr Peric to remove Mr Xu from the business
is not a conclusion that is available on the evidence before the Commission. Nor should the
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Commission determine contentions as to unfair selection procedures at this stage of the
proceedings, noting that such matters are relevant to the merits of the unfair dismissal
application and Mr Xu’s contention that he was dismissed harshly, unjustly or unreasonably.65
[42] Having regard to my consideration of the evidence and the parties’ respective positions,
I find that the respondent no longer required Mr Xu’s job to be performed by anyone because
of changes in the operational requirements of its enterprise. It follows that the criterion in s
389(1)(a) of the Act is satisfied. Mr Xu’s contention that he was bullied by Mr Peric is otherwise
addressed at [52] of this decision.
Was there an obligation upon the respondent to consult?
[43] Section 389(1)(b) of the Act requires the Commission to consider whether the
respondent has complied with any obligation in a modern award or enterprise agreement that
applied to Mr Xu’s employment to consult about the redundancy.
[44] As earlier noted, it is not in contest that there is no enterprise agreement that applied to
Mr Xu in his employment with the respondent. Nor am I satisfied that a modern award has
application. In reaching this conclusion, I have considered the coverage of the Food, Beverage
and Tobacco Manufacturing Award 2020 (Award), being an industry award covering
employers throughout Australia in the food, beverage and tobacco manufacturing industry and
their employees in the classifications in the Award. I am satisfied, having regard to the seniority
of Mr Xu’s role as Performance Improvement Manager, and the position responsibilities
attached to it,66 that the role is not captured by the Award’s classification structure and
definitions.67 Nor did the parties contend otherwise.68
[45] It follows that for the purposes of s 389(1)(b) of the Act, the respondent was not required
to comply with the consultation obligations in Part 7 of the Award insofar as it concerned Mr
Xu.
Would it have been reasonable in all the circumstances for Mr Xu to be redeployed within the
respondent’s enterprise or the enterprise of an associated entity?
[46] Whether redeployment of an employee is considered reasonable will depend on the
circumstances that exist at the time of the dismissal.69 In order to conclude that it would have
been reasonable to redeploy the dismissed person the Commission must find, on the balance of
probabilities, that there was an alternative job, position, or work to which it would have been
reasonable to redeploy the dismissed employee.70 The term “redeployed” in s 389(2) is be given
its ordinary and natural meaning, which is to “transfer to another job, task or function.”71
[47] Mr Xu contends that the respondent did not adequately consider redeployment
opportunities for him. However, Mr Xu has not identified an alternative job, position or work
which existed at the time of the dismissal to which he could or should have been redeployed. I
accept Ms Jen’s evidence was that the respondent conducted an “organisational chart
evaluation” by reference to Mr Xu’s capabilities and remuneration. This process involved
consideration by the respondent of any available roles suitable for Mr Xu’s skill set. The
respondent concluded that there were no redeployment opportunities for Mr Xu within the
company and its associated entities.72 While the respondent considered the possibility of
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redeploying Mr Xu to NCP on a fixed term secondment, it was determined that this was not
possible as a result of a similar cost cutting exercise within NCP’s business.73 Further, I accept
Ms Jen’s evidence that there were no redeployment opportunities within Ausnutria, which is a
holding company and largely cost centred.74
[48] There is no evidence before the Commission that allows a finding, on the balance of
probabilities, that there was a job, or a position, or other work within the respondent’s enterprise
(or that of an associated entity) to which it would have been reasonable in all the circumstances
to redeploy Mr Xu. Accordingly, I am satisfied, and I find for the purposes of s 389(2) of the
Act that it was not reasonable in all of the circumstances for Mr Xu to be redeployed within the
respondent’s enterprise or the enterprise of an associated entity.
[49] In reaching this conclusion, I have taken into account that Mr Xu’s primary concern,
insofar as it relates to the question of redeployment, appears to be that the respondent did not
meet with him to discuss options to avoid a redundancy, such as job sharing, taking extended
leave, taking unpaid leave, or decreasing his working hours.75 Mr Xu said that the respondent
did not consider the possibility of him taking a period of extended leave pending the renewal
of the formula registration, and its decision to proceed with his redundancy is these
circumstances is unfair.76
[50] The question of whether the respondent met with Mr Xu to discuss these options is not
a matter that bears upon my conclusion at [48] above. The focus of the obligation in s 389(2)
concerns whether it would have been reasonable for Mr Xu to be redeployed – that is,
transferred – to another job, task or function. In any event, I note that the commitment given by
the respondent in the 30 March 2023 letter is that the respondent will “explore” alternatives
before any final decisions are made. Ms Jen’s evidence that the respondent met this
commitment. Ms Jen was involved in considering alternative arrangements for Mr Xu,77 but
concluded that it could not accommodate such options in light of the operational changes to the
respondent’s enterprise. While these matters were not specifically discussed with Mr Xu,78 the
respondent was not compelled to consult with Mr Xu prior to making its decision to declare his
role redundant (see [45] of this decision). Accordingly, the question of whether Mr Xu declined
an invitation to attend a meeting with the respondent to discuss such matters prior to the
respondent’s decision to declare his role redundant does require determination in these
proceedings.79 I note, however, Mr Xu’s evidence that the respondent did not engage with him
about such matters.80
Conclusion
[51] Having regard to the above matters, and the conclusions reached, I am satisfied that Mr
Xu’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. It
follows, by reason of s 385(d) of the Act, that Mr Xu was not unfairly dismissed.
[52] In light of this conclusion, Mr Xu’s contention that his dismissal was unfair, including
his allegation that he was bullied by Mr Peric, does not fall to be determined in these
proceedings.81
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Order
[53] Mr Xu’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
L Xu, on his own behalf.
T Jen for the respondent.
Hearing details:
2023.
Melbourne:
August 15.
Printed by authority of the Commonwealth Government Printer
PR767622
1 Transcript of proceedings dated 13 August 2023 (Transcript) at [113]-[115] and [118]
2 Exhibit 1 (Court Book) 60, cf Court Book 16 at [1b]
3 Court Book 29
4 Ibid
5 Court Book 12; Transcript at [92]
6 Court Book 11; Court Book 37
7 Transcript at [92]-[94]
8 Court Book 37
9 Transcript at [97]-[98]
10 Transcript at [80]
11 Court Book 57
12 Court Book 57; Transcript at [74]
13 Court Book 56
14 Transcript at [97]-[98]
WORK COMMISSION THE SEALLBE THE
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15 Court Book 68-69
16 Court Book 54, 3.2 at [1]
17 Court Book 30-31
18 Transcript at [451]-[453]
19 Court Book 38
20 Court Book 54, 3.2 at [2]; Transcript at [120]
21 Court Book 56; Transcript at [120]
22 Court Book 78-79
23 Court Book 38
24 Court Book 54, 3.2 at [3]
25 Transcript at [120]-[121]
26 Ibid
27 Transcript at [140]
28 Court Book 54, 3.2 at [3]
29 Transcript at [301]
30 Court Book 54-55, 3.2 at [4]
31 Transcript at [139]-[140] and [144]
32 Court Book 70-71
33 Transcript at [144]
34 Transcript at [141]-[143], [310], [320], [323] and [328]
35 Transcript at [76]
36 Transcript at [74] and [76]
37 Court Book 102 at [4b]
38 Court Book 76
39 Transcript at [82]-[83]
40 Court Book 21-22 at [6d]; Court Book 39, 41
41 Transcript at [480]-[484]
42 Court Book 21-23 at [6d]; Court Book 39
43 Court Book 41; Transcript at [400]
44 Transcript at [74]-[76]
45 Transcript at [85]-[86], [177]-[180]
46 Transcript at [181]-[183]
47 Transcript at [87] and [197]
48 Transcript at [198]-[199], [211]
49 Court Book 38-39, 42; Transcript at [490]
50 Court Book 37
51 Court Book 37
52 Transcript at [400], [424]-[425]
53 Court Book 37; Transcript at [425]
54 Transcript at [428]
55 Court Book 40
56 Transcript at [405]
57 Transcript at [445]
58 Transcript at [444]
[2023] FWC 2806
14
59 Court Book 38; Transcript at [446]
60 Transcript at [426]
61 Court Book 54-55; Court Book 72-77
62 Transcript at [122], [132]
63 Court Book 41
64 Transcript [145]
65 Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]; cited in Eli Stever v Colas New South Wales
Pty Ltd [2020] FWC 3832 at [14]
66 Court Book 12
67 Food, Beverage and Tobacco Manufacturing Award 2020, Schedule A
68 Transcript at [501]-[502]
69 Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28]
70 Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130 at [36]
71 Ibid at [25]
72 Court Book 53
73 Transcript at [111]-[113]
74 Transcript at [118]
75 Court Book 22, 42-43; Transcript at [271]
76 Court Book 43
77 Transcript at [108]-[110]
78 Transcript at [277]
79 Transcript at [532]
80 Transcript at [512]-[519] and [536]-[541]
81 Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]; cited in Eli Stever v Colas New South Wales
Pty Ltd [2020] FWC 3832 at [14]
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc3832.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc3832.htm
