This conclusion was contrary to his Honour's earlier correct statement that redundancy involved focusing on "the position, not the person."
47 I also respectfully consider that statements made by his Honour in his judgment showed that he had misapprehended that any reorganisation or restructuring by the employer coupled with termination of an employee's employment meant that there had been a redundancy. The question which his Honour never addressed when he referred to "the reorganisation which took place ... in an anticipation [sic] of Mr Kou leaving and subsequent to his leaving" was what changes, if any, had been made to the role previously performed by Mr Kou as a result of the reorganisation or restructuring.
48 The evidence of the impact of the reorganisation on the role of General Manager, SFBL, varied. Mr Kou gave evidence that the reorganisation involving Mr Chan gaining responsibility for the sales, marketing and distribution of all international brands in China and Hong Kong represented 80% of his workload. (It was not clear to me, however, whether Mr Kou was talking about 80% of his overall workload or 80% of the time he spent in sales and marketing and distribution. If the latter, there was no attempt to quantify what part of Mr Kou's time was spent on the other areas of his responsibility.) On the other hand, Mr Bett estimated that the reorganisation would have reduced the General Manager's "overall responsibilities" by "less than 5%", while Ms Huson said that there was "negligible" change.
49 No finding was made by the learned trial judge about which, if any, of the above evidence of Mr Kou, Mr Bett and Ms Huson he accepted. Further, there was no analysis of the extent of the changes to the general manager's role as a result of the reorganisation carried out before and after Mr Kou's departure. There was not even a reference in the judgment to the increased role of Mr Chan despite the fact that Mr Kou's case had been opened on the basis that his redundancy had been brought about by the changes involving Mr Chan. His Honour simply referred to the fact there was reorganisation both before and after Mr Kou left as though that was sufficient evidence of his redundancy. In my opinion, this demonstrated that his Honour misunderstood the relationship between reorganisation or restructuring on the one hand and redundancy on the other.
50 The appellant advanced a number of other significant criticisms of the learned trial judge's reasons for finding that Mr Kou had been made redundant. One was that it was quite illogical for his Honour to criticise Mr Bett and Ms Huson for adopting a deceitful course of conduct of lying to Mr Kou by telling him that "it was a cost-cutting measure" when it apparently was his Honour's finding that it was Foster's decision "to get the job done for a smaller price by reorganisation", that is, its "cost-cutting measure" which amounted to a redundancy. If, as his Honour considered to be the case, "cost-cutting" or replacing one employee with another one at a lower cost was redundancy, then telling the employee that he or she is being terminated as a "cost-cutting measure" is not lying to the employee.
51 The reason why Mr Bett and Ms Huson admitted that they had lied to Mr Kou was that they agreed to tell him it was a "cost-cutting measure" when, in fact, he was being replaced because he had lost the trust of Mr Bett. His Honour appears to have accepted that this was the case because he held that "their intentions were honourable enough in order to preserve their employer's positions [sic] from the threat of adverse reaction of local contacts by Mr Kou's termination." Yet, his Honour did not go on to consider the implications of this finding on the question of whether the termination occurred "through no fault" of Mr Kou. Counsel for the respondent conceded that it could not be denied that Mr Bett had lost confidence in Mr Kou.
52 This was a critical omission, in my opinion, because there could be no redundancy if the termination was brought about by the fault of Mr Kou. I do not accept the respondent's submission that fault was irrelevant if the employer determined not to act on it by summarily dismissing the employee but instead chose to give the six months' notice in circumstances where it also happened that the employee's role was being abolished a result of a reorganisation or restructure. This submission ignores the relevant wording of Foster's policy and would penalise the employer who genuinely wanted to terminate an employee who was at fault yet was prepared, as here, to give the employee the benefit of the six months' notice or whole or partial payment in lieu.
53 The learned trial judge said nothing about the substantial body of evidence which could have justified the conclusion that Mr Kou's employment was terminated because, as a result of his deceptive conduct, he had lost the trust of Mr Bett. That evidence showed convincingly that there had been fault on the part of Mr Kou which ruled out any entitlement to redundancy benefits, whatever subsequently happened to his position.
54 Counsel for the respondent submitted the learned trial judge had dealt with this issue and rejected Mr Bett's claim that Mr Kou's employment was terminated because of his unsatisfactory conduct when his Honour said that Mr Bett and Ms Huson had lied to Mr Kou and pretended: