3. the Respondent was not a "small business employer" within the meaning of s.23 of the Act at the relevant time. It is therefore unnecessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code.

[3] Section 389 of the Act sets out the meaning of "genuine redundancy" as follows:

(1) 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.

(2) 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:

(b) the enterprise of an associated entity of the employer."

Applicant's job no longer required to be performed by anyone (section 389(1)(a))

[4] A job is a collection of functions, duties and responsibilities assigned, as part of the scheme of the employer's organisation, to a particular employee.[3] Functions, duties and responsibilities may cease to be part of an employee's job through a reorganisation or redistribution of duties, so the question then is whether the employee has any duties left to perform or discharge.[4] When there is no longer any function or duty to be performed by an employee, his or her position or job becomes redundant[5] or, put another way, the employer no longer requires that employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

[5] An employee's dismissal may be a case of redundancy even though there are aspects of the employee's duties still being performed by other employees.[6] In the case of an organisational restructure or downsizing, the question will be whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.[7] It is a question whether the employee's 'job' is no longer required to be performed by anyone, rather than the employee's 'duties'.[8]

[6] The Applicant gave evidence that he started working in the Respondent's business in or about April 2016 as a Campus Traffic Controller / School Administrator and continued in that role until November 2017.[9] He was transferred to the Respondent's head office located at 13 Windsor Avenue, Mount Waverley, Victoria from December 2017 and he worked there from December 2017 to January 2020 as a photocopying administrator.[10] He worked at head office with variable working hours and days. From mid January 2019 until mid August 2019 he worked eight hours on each of Tuesday and Thursday each week. From mid August 2019 until the termination of his employment he worked eight hours every Tuesday.[11] His duties were photocopying all the educational and teaching materials for use in the Respondent's educational business.[12] I accept this evidence. It was not seriously in contest. There was some dispute in the evidence about whether the Applicant was subject to supervision or worked independently,[13] but nothing turns on the resolution of that controversy. The Respondent described the Applicant's job as a photocopying assistant. Nothing turns of this distinction since it is uncontroversial that the collection of duties constituting the Applicant's job was carrying out photocopying and printing of material for use at the school operated by the Respondent.

[7] The Applicant appears to have been the only employee in the Respondent's office with the specific role of performing printing and photocopying.[14]

[8] By correspondence date 15 August 2019, the City of Monash gave notice of a proposed inspection of the Respondent's head office premises located at 13 Windsor Avenue, Mount Waverley under the Building Act 1993 (Vic) (Building Act) to be conducted on 27 August 2019 in order to ensure the property met the requirements of the Building Act.[15] Subsequent to the inspection, by correspondence dated 12 September 2019, the City of Monash notified the Respondent that the inspection had revealed alterations had been made to the car park on the ground floor level for use as an office, without a building permit and contrary to the requirements of the Building Act.[16] A Building Notice issued under s.106 of the Building Act was also issued and the Respondent was required to 'show cause' why it should not be required, inter alia, to reinstate the use of the relevant building to its original approved use as a car park.[17]

[9] By correspondence dated 9 December 2019, the City of Monash advised the Respondent that it had failed to satisfactorily show cause as required by the aforementioned Building Notice with the consequence that a Building Order under s.111 of the Building Act had been made requiring the Respondent to carry out particularised works by 14 January 2020 including, inter alia, reinstating the relevant building to its original approved use as a car park.[18]

[10] The various correspondence from the City of Monash to the Respondent discloses that inspections by a building inspector of the premises housing the Respondent's head office were undertaken on 27 August 2019, 21 October 2019, 21 November 2019 and 14 January 2020.

[11] Mr Haoliang Sun is the Chairperson of the Respondent. He gave evidence that he had met with the building inspector at the several inspections and had "appealed" against the notice to reinstate the building to a car park.[19]

[12] By the 21 October 2019 inspection, the Respondent had answered to the 'show cause' request as it was required to do by 9:00am that day.[20] The grounds upon which the Respondent sought to show cause is not clear but is not material to any issue I need to determine.

[13] Mr Sun said that during the inspection on 21 November 2019, "we (referring to the building) did not pass the inspection".[21] His evidence was that he was told by the building inspector conducting the inspection "you don't argue with law, you have to return back, become garage."[22] Mr Sun said that he was told by the inspector ""This is no good and you need to clean up" and the authority was saying that they will produce formal written document that will follow out of this verbal notification".[23] Mr Sun's evidence was that thereafter "I'm no choice. Then I ask our school council."[24] I accept this evidence.

[14] It appears that Mr Sun was informed orally by the inspector on 21 November 2020 that a formal notice requiring works be undertaken to revert the building used as an office to a car park would be issued. Following the oral advice, Mr Sun decided to raise the matter at the Respondent's school committee meeting, which was held on 27 November 2019.

[15] There is some controversy about the meeting held on 27 November 2019. The Applicant contends in essence, that the record of the meeting produced by the Respondent during the proceedings is not authentic and that the "school committee on 27 November 2019 regarding [the Applicant's] dismissal is fictitious".[25]

[16] The first record of the committee meeting of 27 November 2019 produced by the Respondent is titled "Minutes" and records, amongst other things, the following:

"Haoliang Sun claimed that a letter from Monash City Council informed the school that the garage in the head office was not permitted to be used as office and thus all the office and photocopying work in the garage were to be ceased immediately and photocopying machine was to be removed. Pan agreed with the idea and suggested the whole project of photocopying work should be cancelled and Mr Jianping Liu's work at Xin Jin Shan should be stopped. Haoliang suggested that the Baoquan Chan should inform Mr Liu the termination of his work."[26]

[17] The Minutes are signed by Ms Pan Zampogna as "Minutes Taker".[27] Ms Zampogna gave evidence and explained how and when this document came into existence which is recorded in the following extract from the transcript:

Before you do, can I - I'm just going to hand the witness exhibit 2, the last two pages thereof. Ms Zhou have you seen that document before?---Yes. Yes.

Who prepared that document?---I do the Chinese one then - - -

That one that I've given you?---This is not, this is my English secretary, Ka Li Hong(?).

So you didn't prepare that document?---I didn't do the English version, I did it Chinese version.

All right. Over the page, can you turn the page, is that your signature?---Yes. Yes, that's my signature.

The entries in that document appear to be different to the translation attached to your notes?---Which one? Yes, I didn't read - when Li Hong (indistinct) because I asked very urgent, so I didn't read the discussion very carefully but in the first one 5 o'clock, in the - in my original I haven't got that.

No. There's a number of things. But when was that document prepared, the one I gave you?---(Indistinct) is Tuesday, I think.

Last week?---Last week, Tuesday I think (indistinct) this is the one to the minutes.

All right, thank you. Can I have that document back, please?"[28]

[18] As is apparent from the extract above, Ms Zampogna took contemporaneous handwritten notes in Chinese during the meeting on 27 November 2019[29], but these were not transcribed. Presumably for the purpose of these proceedings, Ms Zampogna asked Ms Li Hong to type her notes. Once typed, Ms Zampogna signed the Minutes without reading the document. Ms Zampogna produced her handwritten notes together with a certified English translation.

[19] Ms Zampogna's translated handwritten notes disclose the following:

"Chairman of the Board, Sun Haoliang, raised an urgent matter that the board needed to reach a decision on the meeting. because the Monash City Council had sent letter to us, requesting Xin Jin Shan Library to stop using the garage as an office or for doing printing or for any other purposes, the photocopiers needed to be stopped and moved out, and all printing jobs should be stopped. Xu Panxue consented and suggested that all printing work be discontinued, or photocopiers been moved out and Liu's job be discontinued. Everyone present at the meeting consented to this suggestion. Sun suggested that Chan Baoquan should follow this up and inform Liu of this decision and that his job has been made redundant."[30]

[20] Ms Zampogna gave evidence that it was her practice to record the Minutes of each meeting in her notebook.[31] The reference to "Xu Panxue" in the extract above is to Ms Zampogna who is also referred to as Han Zhou.[32]

[21] The substance of the Minutes and Ms Zampogna's notes is the same. The committee decided to comply with a requirement to cease using the building that had been the subject of inspections as an office and revert it to a car park. The committee also decided to cease inhouse photocopying and printing functions and that the Applicant's job, which was as photocopying administrator, would as a consequence be redundant. Mr Baoquan Chen was assigned the task of conveying this decision to the Applicant.

[22] In addition to the record of the meeting on 27 November 2019, Mr Sun's evidence about the decision taken at the meeting and the reason for it is consistent with the record.[33] Moreover, the record of the meeting notes that six people attended the meeting. Of these, five of the attendees (including Mr Sun) gave evidence of their attendance. Each person confirmed the matters discussed and the consensus that had been reached.[34] Their accounts are consistent with the written records. I accept their evidence and I accept that Ms Zampogna's notes, which are accompanied by a certified English translation, are an accurate record of the decisions taken at the meeting on 27 November 2019 and of the reasons for those decisions.

[23] There is also some controversy (generated from my questions to Mr Sun)[35] about the reference in the record of a meeting to a letter from Monash City Council informing the Respondent that it must cease using the property as an office[36] in circumstances where the relevant Building Order requiring this was not given to the Respondent until 9 December 2019.[37] On the basis of these questions the Applicant contends "the school committee on 27 November 2019 must be fictitious"[38] and all the "persons who participated in the meeting at the time (and who gave evidence) lied".[39]

[24] These submissions cannot be accepted. Although it is the case that the Building Notice requiring reversion was not issued until 9 December 2019, Mr Sun gave evidence as I have earlier noted that he was told by the inspector during the 21 November 2019 inspection that a notice requiring reversion will be issued and that Mr Sun believed he had no choice but to comply and to advise the school council. Moreover, the Respondent had been issued with notices to show cause why it ought not be required to revert the building to its authorised use as a car park. Taken together with the oral advice given to Mr Sun by the inspector it is unremarkable that the record of the meeting records that the Respondent is in receipt of a letter from Monash City Council informing the Respondent that it must cease using the property as an office. Beyond the bare assertion of lies, there is no probative evidence that any of the attendees at the meeting who gave evidence lied or that the meeting was fictitious. The Applicant did not put to any witness attending the committee meeting on 27 November 2019 that the meeting did not take place on or around that date. Save for a suggestion without proper foundation of fabrication,[40] Ms Zampogna was not challenged about the accuracy of her note taking or any of the matters which she had recorded in her notes. Those notes establish that because the Respondent would not be permitted to continue the use of the building the subject of inspection as an office and photocopying area the committee decided to cease that particular activity and, consequently, terminate the Applicant's position as the photocopying administrator at the head office of the Respondent. The preponderance of the evidence supports a conclusion that the meeting occurred on 27 November 2019 and the decisions recorded in the record of the meeting were taken.

[25] As to the continued need for the photocopying administrator job performed by the Applicant, Mr Sun gave evidence that after the Applicant's dismissal, the two photocopying machines which had been in use during the Applicant's employment were stored in a corridor in the office awaiting the end of their lease and were no longer in use.[41] Mr Sun said the Respondent had outsourced photocopying[42] and that each department was now responsible for undertaking its own photocopying rather than having the Applicant undertake the work.[43] By this evidence I understood Mr Sun to be conveying that as and when the need arises the Respondent would send out large photocopying jobs to external providers rather than that a formal outsourcing photocopying contract had been entered into with an external provider.[44] The Respondent has used external providers for printing and photocopying services in the months following the Applicant's dismissal.[45] The substance of Mr Sun's evidence about photocopying "outsourcing" finds corroboration in the evidence given by Ms Liya Lin.[46] I accept Ms Lin's and Mr Sun's evidence on this subject.

[26] There is also an absence of any probative evidence that the Respondent engaged anyone else in the Applicant's position following his dismissal. The Applicant sought to establish that others were hired or engaged to perform duties he had performed before his dismissal through the following contained in his witness statement:

"67. On 21st January 21 2020 when I was dismissed from XJS School, it happened to be the busiest time for photocopying department. Because the textbooks had not shipped from overseas yet, XJS School needed to prepare all the teaching materials immediately. My workload was a lot.

68. At 5:30PM On 21st January, after I was told by Teacher BaoQuan Chen about my dismissal, teacher Qi Shao went to photocopy room and continue my work. She worked at night. She also sent messages via wechat in XJS management group and asked for help. She said printing job was too much. She needed someone to help her. And the next day, there were any person Mr. Yang took my job and did my work.

69. After I was dismissed, the two staffs Mr Wallace Huang and Ms Huang who worked in organization of Australian Unions Migrant Workers Centre[47] made a phone call to a staff of the XJS School. Mr. and Ms. Huang asked about the current work of the photocopy department. They were been told that after Liu was dismissed, XJS School employed Mr Yang to work in the school's administrative department to help teacher Qi Shao print the teaching materials. Mr Yang is the husband of the school's principal Xuemei Wang, It is said that another new staff member was also hired. Mr and Ms Huang were also been told that after I was dismissed, XJS school moved the photocopiers from the carport back to its original position under the stairs outside the carport. Photocopiers are operated by teacher Qi Shao and new employees.

70. When Mr. Wallace Huang was making phone calls to staff of XJS School, I and another female staff from Unions Ms Huang were also present. The phone call was made at meeting room of Migrant workers centre office in Melbourne City.

71. I do not think it is right to dismiss me and let someone else to take over my job. Especially this someone else is a relative of the existing principal of XJS School. Mr Yang didn't have any photocopying skill at all. But I do have computing and photocopying skills. I also have higher education qualifications. I have diploma of Chinese Language and Literature and a bachelor degree in economics and management."

[27] This "evidence" is far from probative. Neither of the employees of the Migrant Workers Centre was called to give evidence about the phone call. The staff member of the Respondent said to have taken the call is not identified. The Applicant would not identify the staff member[48] and so the veracity of the allegation cannot be tested. Mr Yang's evidence was that he commenced employment with the Respondent on 1 July 2018 and that from 1 July 2019 he also worked at head office "organising and counting textbooks and teaching materials in accordance with different campus demands and needs, and sorting textbooks and teaching materials".[49] He also said that "photocopying work has never been part of my job responsibilities and I have never done such work for the school".[50] The so called "new employees" were also not identified and Ms Qi Shao gave evidence that "everybody has their own photocopying work" and that she would manage her own photocopying work if it was a small amount, and if it was a large amount she would report to her manager and ask for direction.[51] This is consistent with the evidence of Mr Sun.[52] Ms Shao gave evidence that no one had taken over the Applicant's job.[53]

[28] Mr Yang was not challenged about the dates he says he commenced employment with the Respondent or at head office, both of which precede the Applicant's dismissal. Mr Yang was not challenged about his duties which did not include photocopying. The content of the telephone call about which the Applicant gave evidence as concerns Mr Yang and Ms Shao was not put to either witness. Mr Yang's evidence and Ms Shao's evidence renders the assertion of a state of affairs to which the telephone discussion refers improbable. I accept Mr Yang's evidence and Ms Shao's evidence and plainly the Applicant's "evidence" must be rejected.

[29] I am satisfied the evidence as a whole establishes that there was a change in the Respondent's operational requirements, consequent on the requirement imposed by Monash City Council that the Respondent cease operating a building located at 13 Windsor Avenue, Mount Waverley, Victoria as an office and revert the use to that which was permitted - a car park. Because of this change, the Respondent decided that it no longer required the Applicant's job to be performed by anyone. Instead, each department would be responsible for undertaking its own photocopying rather than having the Applicant undertake the work. Where there was a requirement for larger scale copying, that work would be (and has been) sent to an external provider.

[30] There was no evidence of anyone at the head office performing the role of the Applicant after his dismissal.

[31] Consequently, I am satisfied that at the date of the Applicant's dismissal the Respondent no longer required the Applicant's job to be performed by anyone because of changes to the operational requirements of the Respondent's enterprise.

Compliance with consultation obligation under applicable award or enterprise agreement (section 389(1)(b))

[32] Section 389(1)(b) contains the second limb of the definition of genuine redundancy. It requires that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The requirement that consultation occur in relation to the redundancy only arises, for the purposes of the definition, if a modern award or enterprise agreement applied to the Applicant's employment.

[33] I consider, and the Respondent accepts, that the relevant modern award which applied to the Applicant's employment is the Clerks - Private Sector Award 2010 (Award).[54]

[34] Clause 8 of the Award, as it then was, deals with consultation about major workplace change and provides:

8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).

8.5 In clause 8:

significant effects, on employees, includes any of the following:

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(f) the need for employees to be retrained or transferred to other work or locations; or

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5,such alteration is taken not to have significant effect."

[35] Clause 8.1(a) required the Respondent first, to notify the Applicant once a definite decision had been made to major changes in production, program, organisation, structure or technology (cessation of dedicated in house photocopying function) that are likely to have significant effects (termination of his employment) on the Applicant. On the evidence the definite decision was made on 27 November 2020. Secondly, the Respondent was required to commence discussions with the Applicant as soon as practicable after a definite decision had been made. Thirdly, in the discussions the Respondent was required to discuss with the Applicant the change, its likely effects, and mitigation measures, and by clause 8.4 to give prompt consideration to any matters raised by the Applicant.

[36] For the purposes of those discussions, clause 8.2 required the Respondent to give in writing to the Applicant all relevant information about the changes including their nature, their expected effect on the Applicant and any other matters likely to affect the Applicant.

[37] The Respondent contends that it complied with the Award obligation. It plainly did not. First and foremost, the Respondent did not comply with clause 8.2. It did not give, nor did it produce any evidence that it gave the Applicant in writing, all relevant information about the changes including their nature, their expected effect on the Applicant and any other matters likely to affect the Applicant. The obligation to do so, is for the purposes of the discussions required by the clause. The obligation to set out relevant matters in writing gives an employee an opportunity to properly consider the change and its impact from the perspective of being fully and properly informed of all relevant information so that the employee is then able to meaningfully raise relevant matters which may impact upon the changes the subject of the employer's decision and matters which might mitigate the effects of the change on the employee.

[38] The Respondent relies on the letter of termination given to the Applicant on 23 January 2020 as complying with clause 38.2 (then clause 8.2).[55] This submission is rejected for the following reasons:

➢ First, the Respondent relies on a meeting with the Applicant on 3 December 2019 as fulfilling its discussion obligations under clause 38.1(b) (then clauses 8.1(b)).[56] Plainly the letter of termination written over six weeks later cannot have been "for the purposes of the discussion" that is said to have occurred on 3 December 2019;

➢ Secondly, on the Respondent's evidence, it was the applicant who requested the letter of termination and "threatened to come each day until he received the letter".[57] On this basis it cannot seriously be argued that the letter of termination was prepared "for the purposes of the discussion" required by clause 8.1(b).

[39] The failure by the Respondent to comply with its obligation to consult about the redundancy under the Award means that the Applicant's dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.

[40] It is necessary to say something about the meeting said to have taken place between the Applicant and representatives of the Respondent on 3 December 2019. The Applicant has maintained that no such meeting took place.[58]

[41] Both Mr Chen and Ms Shao gave evidence that they were present on 3 December 2019 when Mr Chen informed Mr Liu that he was being dismissed.[59]

[42] Mr Chen said he was directed at the committee meeting on 27 November 2019 to inform the Applicant that his employment was to be terminated following a decision to close down the office operation in the carport.[60] This is consistent with the record of the committee meeting about which I have earlier made findings. Mr Chen said that on Tuesday, 3 December 2019 he informed the Applicant in the presence of Ms Shao that his employment would be terminated and that "he did not need to come to work from that day".[61] Mr Chen said that in response the Applicant "was very calm and did not say anything or show any emotion".[62]

[43] Ms Shao said she was told by Mr Chen that the office in the carport was to be demolished and so there was no space for the photocopier used by the Applicant and as a result he was being made redundant.[63] Her evidence was that on 3 December 2019 she went with Mr Chen to meet the Applicant and that during the meeting Mr Chen informed the Applicant that there was no longer a photocopying position for him because of the Monash City Council's refusal to allow the Respondent to continue using the carport for office activities.[64] Ms Shao said that the Applicant "did not respond and there was no discussion"[65].

[44] The 3rd of December 2019 was a Tuesday and it is uncontroversial that the Applicant worked on Tuesdays. The Applicant does not contend he did not work that day. That day was also the first day that the Applicant had worked since the committee meeting on 27 November 2019. The Applicant did not put to Ms Shao that there was no meeting on 3 December 2019 nor was such a proposition put to Mr Chen. During the Applicant's evidence about the 3 December meeting the follow question was asked and answer given:

"Mr Liu, please answer my question, which was that it's true that Mr Chen explained to you the effect of the council's building notice, when he notified you about the termination?---We did discuss about this, but nothing about my dismissal. There was a day when I was having lunch, after finishing my photocopying job, that he came and we had a chit chat so he was doing the signage work, so we talked about the council's thing, but not my dismissal." [66]

[45] This is consistent with at least a discussion in or about December 2019 occurring about the requirement of the Council about the reversion of the building to a car park.

[46] Overall on the weight of the evidence, I accept that a discussion occurred on or about 3 December 2019 with the Applicant and the content of that discussion concerned the fact that there was no longer a photocopying position for the Applicant because of the Monash City Council's refusal to allow the Respondent to continue using the carport for office activities. I do not accept that he was dismissed on that day or that he was told that he "did not need to come to work from that day". This is because it is inconsistent with the fact that the Applicant continued to attend for work in January 2020 and was paid. It is also inconsistent with the letter of termination given to the Applicant on 23 January 2020 stating that his employment would end with effect on 1 February 2020. If employment ended in December 2019, there would have been no need to end it again with effect on 1 February 2020.

[47] I also do not accept that this meeting discharged the Respondent's obligation to discuss the change as required by the Award. There is no evidence given about a discussion about when the change was to be introduced, bearing in mind that the Building Notice was not given until 9 December 2019 and so this would not have been known to Mr Chen. There is no suggestion in the evidence that measures to avoid or reduce the adverse effects of the changes on the Applicant were raised by Mr Chen. Moreover, the absence of written material for the purpose of the discussion meant that the Applicant did not have any time to consider the change, the effect of the change on him or matters which might mitigate the effect, much less respond in any meaningful sense.

[48] The whole discussion was carried out in a perfunctory manner, and the attempt now by the Respondent to dress the meeting of 3 December 2019 up as a consultation discussion is, respectfully, disingenuous.

Would it have been reasonable in all the circumstances for the person to be redeployed within the Respondent's enterprise or the enterprise of an associated entity? (s.389(2))

[49] Although strictly not necessary for the purposes of this aspect of the case, given my earlier conclusions, I turn nevertheless to the issue of redeployment. The Applicant's dismissal will not have been a case of genuine redundancy if it would have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent's enterprise or the enterprise of an associated entity of the Respondent. The Applicant gave evidence that he believed that it would have been reasonable to redeploy him within an enterprise of an associated entity of the Respondent.[67] He also submitted that:

"There are many opportunities for the XJS School to transfer me to other positions. The XJS School has 11 campuses, more than 300 teachers, and the XJS Symphony Orchestra. The teacher's turnover is relatively high. And many new teachers are recruited every year. I should have other positions to transfer."[68]

"To the allegation that Mr Liu could have been redeployed as there are 10 campuses, 300+ teachers, a media company and a symphony orchestra, I say: The media company has nothing to do with the School. It is not associated or related to the School. No positions were available for the skills Mr Liu had. We were still in school holidays when he left and when the schools were due to return, coronavirus hit and we have not been employing. In fact we were concerned we would not have enough funding to pay our staff.

To the allegation that the School's has since hired Chinese editors and that Mr Liu was qualified to do such work I say: I did not know he was qualified to edit. He had no experience in this to my knowledge. Teachers must have qualifications. In any event there have been no such vacancies since his departure."[69]

[51] Except for the question of the Applicant's qualifications, Mr Sun's evidence about redeployment opportunities and associated entities was not seriously challenged. Moreover, apart from the Applicant's vague assertions about his belief as to the possibility of redeployment, he did not assert or identify any particular opportunity into which he might reasonably have been redeployed. I accept Mr Sun's evidence in this regard and conclude that it would not have been reasonable to redeploy the Applicant within an enterprise of an associated entity of the Respondent.

[52] That leaves redeployment within the Respondent's enterprise. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome.[70] The exception is applied at the time of dismissal.[71] It operates so that a dismissal that would otherwise be a case of genuine redundancy under s.389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within, relevantly, the employer's enterprise.

[53] As the Full Bench observed in TAFE NSW v Pykett,[72] to show that it would have been reasonable for the Respondent to redeploy the Applicant, it is not necessary to identify a particular job or position in which the Applicant could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a 'job or a position or other work' to which it would have been reasonable to redeploy the Applicant.

[54] The Respondent contends[73] it would not have been reasonable to redeploy the Applicant in all the circumstances because:

➢ There is evidence that the Respondent had received complaints from parents about Mr Liu when he was engaged as a traffic controller and other duties on campus he had performed previously.[74]

➢ The evidence of Mr Sun and Mr Chen that they were both present "on one occasion" on an unspecified date in 2019 when Mr Liu reacted to a question from Mr Chen about how he was undertaking a printing job with the words, "fuck your mother".[75]

➢ The Applicant had a very confined role at the school by reason of his limited skills,[76] lack of English, his abrupt and/or rude manner and his argumentative propensity[77]and his snide comments and heavy-handed language was exposed during the hearing.[78]

➢ By the time the Applicant was dismissed he only worked one day a week as the photocopying assistant and had to be supervised and the retirement of the photocopiers meant there was nothing for him to do.

➢ There is no evidence of other roles being available which were suitable for the Applicant at or around the time his employment was terminated and Mr Sun gave evidence that there were no suitable potions available into which the Applicant could have been redeployed.[79]

[55] I accept the last-mentioned matter above but not the remainder. These other matters are, on the evidence, weak. The so-called complaints were not established on the evidence as having any validity. The crude comments attributed to the Applicant did not at the time warrant so much as a warning or other disciplinary action. The Applicant's confined role at the school does not speak to the redeployment options that might have been available. His lack of English in an environment where the principal business of the Respondent is to teach Chinese language and culture is a "furphy". The matters about his abruptness occurred in the context of these proceedings. There is no probative evidence of these matters occurring during his employment or that they were raised with the Applicant during that employment. His hours of work at the time of his dismissal do not speak to the availability of redeployment. There is no suggestion the Applicant would not have been willing to increase his hours of work. As to his limited skills, as the Applicant made clear, he is in fact well qualified including holding a diploma in Chinese language and literature.[80] I accept the Respondent was not aware of the Applicant's qualifications, but that is because it made no inquiries - it did not consult with him as it was required to do.

[56] Ultimately however whether something is reasonable in all of the circumstances involves an objective assessment based on probative evidence about those circumstances. In the present circumstances I am not persuaded on the evidence that there was a job or a position or other work to which it would have been reasonable to redeploy the Applicant. Nothing of the kind has been identified in the evidence. The Applicant's request of Mr Chen on 21 January 2020 about "other job opportunities"[81] appears to me to be a plea by the Applicant that he be kept in employment in another job. That is understandable but there is nothing in the evidence which would suggest that there was a job or a position or other work into which it would have been reasonable to redeploy the Applicant. To the contrary Mr Sun's evidence, which I accept, was that at the time of the Applicant's dismissal the Respondent was not employing staff and there were no vacancies.[82]

[57] For the reasons earlier stated, the Applicant's dismissal was not a case of genuine redundancy. It therefore follows that the Respondent's jurisdictional objection be dismissed.

[58] I turn now to consider the merits of the application.

Was the Applicant's dismissal harsh, unjust or unreasonable

[59] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the following factors outlined in s.387 of the Act:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the Commission considers relevant.

[60] In deciding whether a dismissal was harsh, unjust or unreasonable, each of the matters identified in that section must be taken into account. They are mandatory relevant considerations and each matter must be given appropriate weight having regard to the factual findings made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a 'relevant consideration' in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend).[83] That is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.387 means that each of the matters must be treated as a matter of significance in the decision-making process.[84] This means to evaluate it and give it due weight, having regard to all other relevant factors and a matter is not taken into account by being noticed and erroneously discarded as irrelevant.[85] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:

"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable"."[86]

[61] The meaning of the words "harsh, unjust or unreasonable" in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd[87] by McHugh and Gummow JJ as follows:

". . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[88]

[62] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable. I consider these matters in turn below.

[63] The inquiry under s.387(a) is concerned with whether there was "a valid reason" for the dismissal relating to the Applicant's capacity or conduct. In the present case, the reason for the Applicant's dismissal was not related to his capacity or conduct. I have earlier concluded the Respondent no longer required the Applicant's job to be performed by anyone because of changes to the operational requirements of the Respondent's enterprise. This is a classical definition of redundancy (albeit not a genuine redundancy within the meaning of s.389 of the Act) and the Respondent dismissed the Applicant for that reason. I accept that that is so. I do not accept the Applicant's contentions that he was dismissed for some other reason. Such a contention finds no support in the evidence. As the majority in UES (Int'l) Pty Ltd v Harvey[89] determined, where a decision to dismiss is made on redundancy grounds and does not relate to the dismissed employee's capacity or conduct there cannot have been a valid reason for that dismissal related to the employee's capacity or conduct.[90] The Respondent does not contend that there was any valid reason for dismissal related to the Applicant's capacity or conduct. Neither party suggested that the decision in UES was wrong and should not be followed.

[64] The factual findings that I have earlier made support a conclusion that the Applicant's dismissal was on redundancy grounds and did not relate to his capacity or conduct. Like the majority in UES, it seems to me appropriate in the circumstances of this case, that the question of whether there was a valid reason related to the Applicant's capacity or conduct in considering whether the Applicant's dismissal was harsh, unjust or unreasonable, is a neutral factor.

[65] The Applicant was notified of the reason the Respondent relied on for the dismissal.[91] However as is evident from the terms of s.387(b), the consideration as to notification of the reason is concerned with a reason connected with capacity or conduct. For reasons already given, that is not the case here. In the ordinary course, this factor would seem to be neutral in a case like this[92] and there is no reason why in this case a different conclusion should pertain.

[66] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. Once again, this consideration is concerned with affording an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The Applicant's dismissal did not relate to his capacity or conduct and so, in the circumstances of this case, this consideration is also neutral.

Any unreasonable refusal by the employer to allow the person to have a support person -s.387(d)

[67] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. This consideration is directed to an employer's unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. There is no evidence of any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist in either the discussion on 3 December 2019 or 21 January 2020 relating to his dismissal. This consideration does not weigh in favour of a conclusion the dismissal was unfair.

Warnings regarding unsatisfactory performance - s.387(e)

[68] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee's capacity than their conduct. For the reasons given earlier in this decision, I am satisfied that the Respondent dismissed the Applicant on redundancy grounds and that the dismissal did not relate to any unsatisfactory performance on the part of the Applicant. In the circumstances this consideration weighs neutrally.

Impact of the size of the Respondent on the procedure followed - s.387(f)

[69] The consideration in s.387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer's enterprise.

[70] There is no evidence that the Respondent's size, in and of itself, affected the procedure adopted by the Respondent in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up to the dismissal and in effecting the dismissal fell short of appropriate. Though I accept that a discussion about redundancy occurred on or about 3 December 2019, I do not accept that the fact that the Applicant's employment was to end at that point was communicated clearly to him or at all. Plainly on the evidence the Applicant worked in January 2020 for two shifts for which he was paid. There is no suggestion that this was part of his notice period. The contention is also inconsistent with the letter of termination which indicates that the employment will end on 1 February 2020. Furthermore, as I have already concluded the Respondent has failed to consult. As a consequence of that failure some of the considerations that might have had the effect of mitigating or ameliorating effects of redundancy on the Applicant were not considered. The size of the Respondent's enterprise does not excuse nor explain this omission. Nor does the Respondent contend by way of mitigation that its size impacted on the procedure it followed in effecting the Applicant's dismissal.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[71] This consideration is concerned with "the degree to which the absence of dedicated human resources management specialists or expertise" would be likely to have the identified impact. Neither party gave evidence about the absence or otherwise of dedicate human resources management specialists or expertise or that any such absence contributed to the manner in which the dismissal was effected. Accordingly, I am unable to find that here there was such absence or if there was, what impact on the procedure adopted the absence might have had and so this consideration does not weigh as a mitigating factor in the consideration of whether the Applicant's dismissal was unfair.

Any other matters that the Commission considers relevant - s.387(h)

[72] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant.

[73] That the Respondent failed to consult the Applicant about the redundancy is a relevant consideration. For the reasons earlier given, at best the Applicant was informed of the decision to dismiss him on redundancy grounds and the reason for it. It did not consider alternatives. Through proper and effective consultation the Respondent would have discovered the extent of the Applicant's qualification and could have considered whether those skills, which appear to me to be compatible with the Respondent's core business, could be put to use in some other role or function. By not consulting as required, the Respondent deprived the Applicant of the opportunity to put to it matters which might have mitigated against the effects of the decision to cease in house large-scale photocopying. The Respondent assumed, without enquiry, that the Applicant had no skills other than as a photocopying assistant. It was wrong in that assumption. The point here is not that it would have been reasonable to redeploy, because as I have earlier concluded, I am not so persuaded. Rather the issue is that the failure to consult meant, amongst other things, the Respondent did not discover the extent of the Applicant's qualifications and so deprived him of the opportunity to put a case for his continued employment in some other role which the Respondent might have been content to facilitate. The absence of proper and effective consultation in effecting the dismissal weighs in favour of a conclusion that the dismissal was harsh.

[74] I also take into account the Applicant's age and the impact that his age will have on obtaining other employment. The Applicant is elderly and statistically will find gaining other employment difficult. This difficulty is magnified by the Applicant's limited command of English. I take into account the Applicant's period of service which was not insignificant (short of four years) but not lengthy. These matters taken together weigh in favour of a conclusion that the dismissal was harsh.

[75] I take into account that the reason for dismissal was redundancy in the classical sense and I accept on the evidence that this was so. This factor weighs against a conclusion that the dismissal was unfair.

[76] The Applicant was a part time employee.[93] I do not accept that the period that he worked in January 2020 was part of his notice. That he worked in January was the product of the manner in which the decision made on 27 November 2019 was communicated during the discussion on 3 December 2019. The Applicant was given a letter of termination dated 23 January 2020 indicating that his employment would end on 1 February 2020. There is some controversy about when the Applicant received the letter of termination.[94] Mr Chen's evidence was that he gave the Applicant a draft of the letter on 21 January 2020.[95] The Applicant contends that he did not receive a letter of termination until 23 January 2020.[96] For the purposes of determining this application nothing turns on this. In any event a draft is just that - it is not the final letter, which was dated and given to the Applicant on 23 January 2020. The letter of termination describes the Applicant's employment as casual. This is inconsistent with the Respondent's own outline of argument[97] and the pattern of hours worked by the Applicant.[98] I accept he was a part-time employee. His hours were predictable and that is consistent with the definition of part-time employee in clause 11 (now clause 10) of the Award. He was not paid beyond 21 January 2020.[99] He should have been given three weeks' notice or paid three weeks' pay in lieu of notice. Although he was given notice of a little over one week in the letter of 23 January 2020, the Applicant was not paid for this period. All of these matters add weight to a conclusion that the dismissal was harsh.

[77] He was also entitled to redundancy pay as the Respondent does not contend it is a small business. The Applicant received no redundancy pay when he was entitled to seven weeks' pay under the National Employment Statndards, which also weighs in favour of a conclusion that the dismissal was harsh.

[78] Taking all of these matters into account I conclude that the dismissal of the Applicant was harsh, and therefore unfair.

[79] I have not dealt with the Applicant's various assertions in his submission's that the Respondent's witnesses lied or committed perjury in giving evidence. There is no proper foundation for these assertions to have been made.

[80] For the reasons given, the Applicant's dismissal was not a genuine redundancy within the meaning of the s.389 of the Act.

[81] The Applicant's dismissal in the circumstances was harsh, and therefore unfair.

[82] I have separately issued directions to enable the parties to make further submissions as to the remedy (if any) that should be ordered taking into account my conclusion.

[1] Letter of termination of employment dated 23 January 2020

[2] Fair Work Act 2009, s.396

[3] See Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 at [17]

[6] See for example Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404‒405

[7] See Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27]

[8] Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 at [17]

[11] Exhibit 2, document titled 'Jianping Liu' Working Date and Hours'

[13] Ibid at [4], Exhibit 2 (job description) at p 2

[25] Applicant's final submission 28 August 2020 at [17]

[34] Mr Sun (Exhibit 3); Liya Lin (Exhibit 8); Baoquan Chen (Exhibit 5); Kevin Hu (Transcript PN890-PN936) and Ms Zampogna (Transcript PN1448-1491)

[35] Transcript PN680-PN723, PN830-PN859

[38] Applicant's final submission 28 August 2020 at [20]

[46] Transcript PN1599-PN1602; see also Exhibit 8

[47] Corrected during the Applicant's evidence: see transcript PN445-PN452

[54] Respondent's final Submission on genuine redundancy, 31 July 2020 at [26]

[58] Transcript PN336, PN349, PN352. PN366, PN368, PN371

[68] Applicant's final Submission at [82]

[70] Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847 at [20]

[71] Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578 at [28]; TAFE NSW v Pykett [2014] FWCFB 714, (2014) 240 IR 130 at [35]

[72] [2014] FWCFB 714, (2014) 240 IR 130 at [36]

[73] Respondent's final Submission on genuine redundancy, 31 July 2020 at [44]-[48]

[78] Transcript PN1731-PN1734, PN244-PN246

[81] Applicant's statement of evidence at [73]

[83] [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

[84] See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

[85] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184 cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA [2011] FCA 719; (2011) 195 FCR 74 at [103]

[86] [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41

[89] [2012] FWAFB 5241: (2012) 215 IR 263

[91] At the very least by 21 January 2020

[92] See UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 at [43]: (2012) 215 IR 263 at 278

[93] See Respondent's outline of argument: Merits (Q1c)

[94] Transcript PN1200 - PN1231 and PN1235 - PN1270

[96] Exhibit at [5] - [6] and Transcript PN1259 - PN1260

[97] Respondent's outline of argument: Merits (Q1c)

[98] Exhibit 2, document titled 'Patterns of Working Days & Hours'

[99] See Payroll advice attached to Respondent's document's list at p 23

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