Huang & The Sunnyfield Association [2005] NSWIRComm 1215

LEGISLATION CITED: Industrial Relations Act 1996

Applicant represented himself LEGAL REPRESENTATIVES: Ms.C. Smith of the respondent.

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN THE MATTER OF : Jia Ju Huang and Sunnyfield Association

Application by Jia Ju Huang re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 Mr. Ji Ju Huang (the applicant) commenced employment with The Sunnyfield Association (the respondent) on 4 November 2003 in the capacity of a packaging and processing worker and was made redundant on 20 May 2005. 2 The applicant filed a claim for unfair dismissal on 24 June 2005, twelve days out of time. The matter was listed for conciliation and direction on 12 July 2005 but did not proceed as the respondent was unaware of the proceedings. The matter was re listed on 22 July and a report back took place on 15 August when a timetable for the filing and serving of evidentiary material took place. A further mention was held on 8 September. The matter was listed for hearing on 20 and 21 October but due to the ill health of the respondent's advocate (which was supported by medical evidence), the dates were cancelled. The hearing took place on 10 November 2005 and the decision was reserved. 3 During the hearing the services of an interpreter were required by the applicant. Applicant's case.

4 The applicant stated that on 24 January 2005 he discovered that he had a lump in his groin. On 27 January he went to see a doctor who advised it was an inguinal hernia. The doctor (Dr. Lim) believed it was work related. On 28 January the applicant provided a medical certificate to his supervisor at work, Mr. Neil Smith. 5 On 31 January 2005 the applicant stated that a Mr. Bin Fan, a Production Manager at work asked the applicant to withdraw his workers compensation claim and his job at the respondent's would be guaranteed. The promise of light work was also offered. The applicant believed he had a right to make a claim for workers compensation so he did not withdraw his claim. The applicant stated that he went to see other doctors including Dr. Richard Lee and Dr. Edwards from the CGU Insurance Company on 11 February 2005. On 10 March 2005 he saw a Dr. Gregory Falk who advised that surgery was required. 6 Whilst the applicant's workers compensation was provisionally accepted, correspondence from CGU dated 9 March 2005 declined his claim based on a medical report from Dr. Edwards that " No injury arised out of or in the course of employment." 7 On 20 May 2005 the applicant was directed to a meeting in the offices of Mr. Duncan MacGregor. In the presence of Mr. Neil Smith the applicant was advised that he was to be dismissed as a result of company restructure. That was his last day in employment with the respondent. He received two weeks pay in lieu of notice. Later on the applicant received a further four weeks pay. 8 On 23 May 2005 the applicant returned to the respondent's premises to deliver two letters. One to the General Manager of the Business Division, Mr. John Homan and the other to Mr. MacGregor. He received no reply. On the same day the applicant stated that he received a letter from Mr. MacGregor dated 20 May 2005 terminating his employment. At the meeting with Mr. MacGregor, Mr Fan was brought in. Mr. Fan stated in the meeting that he never said for the applicant to withdraw his workers compensation claim. The applicant said that he did not answer Mr. Fan in the meeting because this would lead to an argument. 9 In the applicant's view he was terminated because he did not withdraw his workers compensation application when asked to by Mr. Fan. He accepted that no other person took any action or made any comment that prevented him from filing a workers compensation claim. 10 With respect to the out of time aspect of his application, the applicant said that he went to Legal Aid NSW on 1 June and was advised that the first available date for an appointment was 20 June 2005. On that date he was advised that he could make a claim for unfair dismissal at the Industrial Relations Commission of NSW. The next day he went to the Commission obtained an application form and filed it on 24 June 2005. 11 The work of the applicant was to bring into the workshop the pallets with the recycled cartridges. He would then open the boxes with the cartridges in and sort them. The applicant said that he was aware of a new sorting rack at work but it was not in use when he was there. 12 By this application the applicant sought only reinstatement back to his previous position. Respondent's Case.

13 The following persons filed witness statements : Mr. Duncan MacGregor (Business Development Manager) Mr. Neil Smith (Production Manager) Mr. Shao-Bin Fan (Production Manager) Ms. Marlene Riddington (Return to Work Co Ordinator) Mr John Homan (General Manager) Ms. Lynne Little (Payroll Manager)

Only Mr. MacGregor , Mr. Smith and Mr. Fan were required for cross examination. 14 Mr. MacGregor stated that he was the Commercial Manager up until a restructure of the business in July 2005. As the Commercial Manager he was responsible for approximately 25 able bodied employees and 107 disabled employees. His responsibility covered the processing and recycling of used printer cartridges. 15 He said the applicant commenced employment with the respondent on 4 November 2003 as a casual and became full time on 20 May 2004. He was one of two able bodied process workers and one full time equivalent disabled employee in the cartridge sorting section and was supervised by a Mr. Daniel Gu who in turn reported to Mr. Neil Smith. The applicant's position involved the moving of pallets, sorting printer cartridges onto pallets and flattening waste. His light duties from January 2005 onwards involved unpacking and sorting returned printer cartridges. 16 He said that around April 2005 he had discussions with Mr. Smith concerning the restructuring of the cartridge sorting section. It was losing money and the way it was run was a mess. In around May he came to the decision on financial and efficiency reasons that it did not require one of the process workers. He reported this to Mr. Homan. 17 The basis for the restructure was to reduce the number of able bodied process workers by upgrading to a static conveyor and installing racks and introducing more intellectually disabled employees into the cartridge sorting section. Product is being handled once or twice not three or four times. The final version of the racking went into operation in June 2005. 18 He also considered whether there were any alternative positions suitable for the applicant but no such position was available. 19 He advised Mr. Smith on 13 May of his decision and advised the applicant one week later. 20 He denied the termination of the applicant had anything to do with his claim for workers compensation nor had he been treated less favourably than any other employee. 21 He stated that he told the applicant of the respondent's decision on 20 May and that there were no alternative positions. In response to a question from the applicant concerning his workers compensation claim he told the applicant that he had a right to appeal. At the end of the meeting he gave the applicant his termination letter. He asked the applicant if there was anything he didn't understand and the applicant shook his head. 22 On 23 May he met with the applicant and received a letter from him. He again told the applicant that his termination had nothing to do with his workers compensation claim. After reading the letter, Mr. MacGregor requested Mr. Fan to join the meeting. Mr Fan and the applicant conversed in Chinese. Mr. Fan said that he did not tell the applicant to withdraw his workers compensation claim. The applicant did not reply. Mr. MacGregor restated to the applicant why he had been terminated and that it had nothing to do with his workers compensation claim. 23 The applicant was chosen for termination instead of the other able bodied employee, who had been seconded into that section, because the other employee had extensive experience in the main factory. This person has since proceeded on to maternity leave and when she returns she will be accommodated back in the main factory. The applicant had only worked in the cartridge sorting area. 24 Attached to his statement was a document that showed that post May 2005 there was one able bodied process worker and two employees with a disability. As at September there are no able bodied process workers and two employees with a disability. The static conveyor had been replaced by an electric conveyor which had further streamlined the process. 25 Mr. MacGregor stated that a similar review of the Avon packing section took place in February 2005 because it had similar problems. 26 Mr. Neil Smith stated that he had been with the respondent since August 1998. He is the production manager that covers the cartridge section. He confirmed that he was approached in April 2005 by Mr. MacGregor to restructure the cartridge section for financial and efficiency reasons. He also confirmed that on 13 May 2005 Mr. MacGregor said that the applicant would be made redundant. 27 Currently the applicant's other duties are done by an employee with an intellectual disability using the rack. His remaining duties are carried out by Mr. Gu who continues to carry out his supervisory duties. 28 Mr. Smith stated that he provided the applicant with the appropriate workers compensation forms and later involved Ms. Marlene Riddington, Return to Work Co Ordinator for the Allambie Business Service site. A risk assessment was carried out by Mr. Smith and Ms. Riddington in early February and a list of tasks were developed for the applicant in line with his restrictions. Mr. Smith denied that the applicant had been treated less favourable either before or after his workers compensation was filed and subsequently denied. 29 Mr. Smith was present at the meeting on 20 May 2005 when Mr. MacGregor advised the applicant that he was to be made redundant. Mr. MacGregor explained why the termination was happening and gave the applicant a letter. The applicant at the time did not read the letter. 30 He stated that he had been prompted by Mr. MacGregor to develop a better system of handling the used cartridges due to financial pressures. The introduction of the racking meant that the work could be done with two disabled workers. 31 Mr. Bin Fan stated that he was told by the applicant in late January 2005 that he had been to see a doctor. He had a hernia and that would claim workers compensation. He denied that he told the applicant to withdraw his workers compensation claim or that he something beneficial would happen to him as a consequence. 32 In her witness statement Ms. Marlene Riddington stated that in late January 2005 she received a work cover certificate from the applicant and was asked to prepare a list of tasks the applicant carried out. Later a risk assessment was developed with Mr. Smith. The list of tasks was given to the Payroll Manager Ms. Lynne Little. On or around early March 2005 Ms. Riddington was told by Ms. Little that the applicant's claim for workers compensation had not been successful. She advised Mr. Smith of this information. The process that Ms. Riddington had carried out in the applicant's case was no different to any other case. 33 Mr. John Homan stated that the respondent provided services to people with an intellectual disability, in particular accommodation, community services and business services. The Business Services Division is responsible for the sourcing and providing of work for people with an intellectual disability. It is also responsible for the provision of of vocational training and employment services to people with an intellectual disability. A total of approximately 340 able bodied and disabled people are employed. In April 2005 he was told by Mr. MacGregor that he was having to restructure the cartridge sorting division. Later in May Mr. MacGregor advised that he would have to make one person redundant. On 23 May 2005 he was given a letter by the applicant. As he was on the phone at the time he did not speak to him. Later that morning he spoke with Mr. MacGregor who advised that he had spoken with the applicant about the contents of the letter and thus it was not necessary to write a response to the applicant. At the time he asked Mr. MacGregor whether alternative employment existed for the applicant but was advised that there were no vacant alternative positions. 34 Ms Lynne Little stated that she had been the Payroll Manager since she commenced with the respondent in August 1997. As part of her responsibilities she processes all workers compensation claims. Since commencing with the respondent she had processed 162 workers compensation claims, of which 28 had been from the Business Services Division, 7 between January 2005 and May 2005. She was unaware of any employee being terminated due to the filing of a workers compensation claim. She advised that she processed the applicant's workers compensation claim like any other, liaising with Ms. Riddington and CGU. When she received the letter from CGU denying the claim she requested that CGU advise the applicant that he had the right to dispute the denial. Consideration and Decision.

35 I have noted the reasons given by the applicant for his late application and recognise that when he was eventually made aware of his rights he acted immediately. I also recognise that the applicant's command of English is not strong and the opportunity for misunderstanding was substantial leading him to seek assistance from Legal Aid instead of proceeding directly to the Industrial Registry for information and assistance. For those reasons and the short period of delay involved in this case I will in accordance with s.85(3) of the Industrial Relations Act 1996 use my discretion and allow the application to proceed.

36 The applicant seeks reinstatement only. It was his submission that as a consequence of his making of a claim for workers compensation in late January 2005 he was terminated on the basis of redundancy in May 2005. It was the applicant's view that he had a greater number of skills than were expressed by the respondent's witnesses. 37 It was the respondent's submission that Mr. Fan categorically denied advising the applicant not to file a workers compensation claim or that he would obtain a benefit if he didn't. The respondent handled the claim like any other and in no way treated the applicant any different to any other employee. There was no evidence of any obstruction by any of the officers with respect to his claim. The reasons for the restructure were financial and greater efficiency. The change was necessary and a choice had to be made. In comparing the skills of the employees the other employee had greater skills and experience. 38 In this case the onus falls on the applicant to establish that intervention by the Commission is warranted. 39 After listening to all the witnesses and reading all the evidence it is my finding that the applicant was made redundant as a consequence of the restructuring of the Division he worked in. The evidence of Mr. MacGregor was clear that as a consequence of both financial pressures and greater efficiency action had to be taken. He spoke with Mr. Smith and as a result new racking was designed. The introduction of new and different equipment streamlined the handling process and allowed the respondent to have more disabled workers in that Department. At the present moment the respondent has no able bodied employees in that Department. 40 The applicant has failed to convince myself that his application for workers compensation was the reason why he was terminated. I note the uncontested evidence of both Ms. Little and Ms. Riddington with respect to the procedure they independently carried out with respect to the applicant's workers compensation claim. It is my finding that his claim was treated in a normal fashion. 41 With respect to the alleged conversation in late January 2005 between the applicant and Mr. Fan, I note that Mr. Fan was not the applicant's supervisor and therefore did not have the authority to give any assurances to the applicant about future work. Whilst I prefer the evidence of Mr. Fan, I do not believe the issue is of great consequence as Mr. Fan played no part in the selection and subsequent termination of the applicant. Such action was carried out by Mr. MacGregor in consultation with Mr. Smith and Mr. Homan. 42 Evidence was given that the respondent sought alternative employment within the business but was not successful. I am satisfied that the respondent sought to find alternative suitable employment. 43 The applicant believed he possessed greater skills than those Mr. MacGregor believed he had. Mr. Macgregor was not cross examined about this issue. In fact very little cross examination took place. I therefore must accept his evidence. 44 In summary, I find that the termination of the applicant by the respondent was for the reason of redundancy as a consequence of a restructure and it was neither harsh, unjust or unreasonable. 45 The application is declined and the matter is concluded.

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