s.394 - Application for unfair dismissal remedy

• [1] Ms Qingwei Alice Wang ("the Applicant") has applied to the Fair Work Commission ("the Commission") for a remedy, alleging that she was unfairly dismissed from her employment with Learner Centre Pty Ltd, which trades as Apex Training Institute ("Apex" or "the Respondent").

• [2] Apex opposes the application and objects on the basis that Ms Wang's dismissal was for genuine redundancy.

• [3] For the reasons set out below I have decided to dismiss the application.

• [4] Ms Wang was the General Manager at the time of the termination of her employment. She reported to Mr Tony Njanja, the CEO of the Respondent, who also appears to have used the title "Marketing Director." Ms Wang's dismissal took effect on 9 August 2024.

• [5] This application was made under section 394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act") and alleges that the Applicant was unfairly dismissed. In unfair dismissal cases the two main questions are:[1]

• • Was the Applicant "protected from unfair dismissal" at the time their employment ended?[2]

• • Was the Applicant unfairly dismissed?[3]

• [6] These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.

• [7] There are various conditions the Applicant has to meet to be protected from unfair dismissal under section 382 of the Fair Work Act. There are also various issues to consider in deciding whether someone has been unfairly dismissed under section 385.

• [8] Section 385 of the Fair Work Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

• [9] Under subsection 389(1) of the Fair Work Act, a person's dismissal was a case of genuine redundancy if:

(a) the 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.

• [10] Subsection 389(2) of the Fair Work Act provides an exclusion, relating to whether the employee could reasonably have been redeployed within the employer's enterprise or the enterprise of an associated entity of the employer.

• [11] The application was filed on 22 August 2024. The employer response was filed on 19 September 2024. The parties did not resolve their dispute by conciliation, and so this application was allocated to me for determination.

• [12] I issued directions on 1 November 2024 and listed the matter for conference on 26 November 2024. That conference was adjourned. I issued further directions on 2 December 2024. On 19 December 2024 I issued a decision refusing permission for the Respondent to be represented by a paid agent[4]. I issued further directions on 20 December 2024. The matter was listed for the conference to be resumed on 8 January 2025.

• [13] On 17 January 2025, Apex made an application for the matter to be summarily dismissed. I dismissed that application by decision issued on 10 March 2025.[5]

• [14] The matter was listed for hearing or determinative conference on 13 March 2025. I considered the parties' views, and whether a hearing would be the most effective and efficient way to resolve the matter. After doing so I decided to proceed by way of a hearing. Neither party was represented.

• [15] Ms Wang gave evidence for herself, along with Ms Maggie Huang and Mr Narendra Sanyal. Mr Tony Njanja and Ms Preeti Ronil gave evidence for Apex.

• [16] Ms Wang filed an outline of submissions on 2 December 2024. Apex filed an outline of submissions on 18 December 2024. The Applicant filed an outline of submissions in reply on 3 January 2025.

• [17] The parties made their closing submissions in writing. Ms Wang's closing submissions were filed on 28 March 2025. Apex's closing submissions were filed on 11 April 2025. Ms Wang's submissions in reply were filed on 21 April 2025.

• [18] By directions made 13 March 2025, I also provided parties with an opportunity to provide submissions and additional evidence in relation to only the question of remedy, if any. I provided extensive procedural guidance to the parties in that regard at the conclusion of the hearing. I also added notes to the Directions stating:

Note: This Direction does not give permission for any party to file more evidence in relation to the "genuine redundancy" objection or the merits of the case, including whether the dismissal was harsh, unjust, or unreasonable.

• [19] Both parties sought to file additional documentary evidence (including, in Ms Wang's case, a recording). Apex's materials went to pay and conditions, which may have been relevant to remedy. As I have decided to dismiss the application it has not been necessary to consider those documents. Ms Wang's documents went beyond the issue of remedy to deal with the issue of whether her dismissal had been because of her performance. For the reasons that are set out below I have decided not to admit Ms Wang's additional documents, and so I have not had regard to them. Otherwise, I have had regard to all of the evidence and submissions in this matter.

• [20] Section 396 of the Fair Work Act requires that certain matters be dealt with first. They are:

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code, if it applies;

(d) whether the dismissal was because of genuine redundancy.

• [21] The dismissal took effect on either 8 or 9 August, and Ms Wang filed her application on 22 August. There is no doubt, and I find, that the application was made within the period required under subsection 394(2) of the Fair Work Act.

• [22] It was not in contest, and I find, that at the time of being dismissed Ms Wang met the requirements of section 382 of the Fair Work Act and was a person who is protected from unfair dismissal for the purposes of that section 382.

• [23] It is also not in contest, and I find, that Ms Wang was dismissed, and that the employer was not a small business employer. So, the only issues that arise under section 385 of the Fair Work Act are whether the dismissal was a case of genuine redundancy, and, if not, whether Ms Wang's dismissal was harsh, unjust or unreasonable.

• [24] As stated above, the employer objects on the ground that Ms Wang's employment ended by way of genuine redundancy. If its objection is upheld that is the end of the matter.[6] This question has to be determined before considering the merits of Ms Wang's application,[7] but this can be done in the same hearing (or determinative conference).[8]

• [25] As to what constitutes a genuine redundancy, section 398 of the Fair Work Act provides:

(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.

• [26] Ms Wang was employed as the General Manager. In its employer response Apex explained the basis for its objection as:

The role of General Manager has not and will not be replaced. The termination of employment was a genuine redundancy with the Respondent informing the Applicant in January 2024 that the role would be made redundancy sometime in July. On 27 June 2024 the Applicant was informed that her role would be made redundant on 08 August 2024.

• [27] In that response, Apex gave the reason for dismissal as:

Unfortunately the Respondent made the decision to make the role of General Manager redundant due to extreme financial difficulties.

• [28] In her initial outline of submissions, Ms Wang appeared to concede that the dismissal was for operational reasons, and to rely on a failure to consult and a failure to attempt to redeploy her, as the basis for resisting the employer's objection. Later, in her outline of submissions in reply, and in her closing submissions, she argued that her employment had been terminated for reasons connected with her performance. She said the redundancy had been retrofitted after the event. As I indicated above, this had been a new line of argument first made in her reply materials.

• [29] I will first consider the evidence in relation to the termination of Ms Wang's employment.

• [30] At the time of the termination of her employment Ms Wang was employed as the General Manager. Ms Ronil's evidence was that Ms Wang's role had not been replaced.[9] Ms Wang tendered various job advertisements from November 2024, which she said were for roles with the Respondent.[10] She also tendered someone's LinkedIn profile showing a new role that had been created in July 2024.[11] The roles she referred to were not similar to the General Manager role: one was an executive assistant, two related to sales, and the other related to "Student Success."

• [31] The evidence shows the parties had been communicating about Ms Wang's role being redundant for a long period of time.

• [32] Mr Njanja said he had discussions with Ms Wang as early as 2023 in relation to a possible redundancy.[12] Ms Wang disputed this.

• [33] Apex used an internal messaging platform called "Basecamp".

• [34] In August and September 2023, Ms Wang and Mr Njanja had been negotiating about Ms Wang moving into a role called "Operations Lead." Mr Njanja had written to Ms Wang on 11 August 2023, making a formal employment offer for the position,[13] which was said to enclose an employment contract and a "job scorecard." It was not in contest that this role was a different role to the General Manager role. Mr Njanja said the new role would include all of the KPIs for the General Manager role but also other KPIs. Ms Wang's view at the time that she should be paid $138,000 per annum for the new role, compared with $88,000 for the General Manager role,[14] also suggests she considered it to be a different role.

• [35] Mr Njanja said he had seen this as a promotion opportunity for Ms Wang.

• [36] The parties were unable to agree on salary for the Operations Lead role. The discussions ended with Ms Wang staying in her current role. Over the course of 6 to 8 September 2023 Ms Wang and Mr Njanja had the following exchange on Basecamp:[15]

Ms Wang: Hi Tony, given the rapidly rising inflation and interest rates, it's challenging to accept the offer with only a slight increase in the base salary and the prospect of significant challenges.

Mr Njanja: In that case sadly then it looks like we are unable to come to terms on that position. Your thoughts?

Ms Wang: Good morning Tony. It looks like that unfortunately.

Mr Njanja: Good morning. [waving hand emoji] So what next do you think? [thinking face emoji]

Ms Wang: I have no idea, Tony. I am happy to have your suggestion.

Mr Njanja: I think then we will continue as we'd (sic) are and continue the strategic planning. And see what results from that. Sounds good?

• [37] A role was then established with the title "Head of Operations and People" in around October 2023.[16] Ms Ronil was appointed as Head of Operations and People. She commenced on 17 January 2025. Mr Njanja says this was different to the Operations Lead role that had been offered to Ms Wang, because Ms Wang would have needed more support, with a view to growing into the role. He agreed that the role had been offered to her on the basis of her skillset and her experience, that she would receive training on the job. But he said that Ms Ronil had required less support so the role could be different.

• [38] It appears the prospect of Ms Wang's position being made redundant had become firm by January 2025. In the employer response the Respondent had said that Ms Wang had been verbally informed in January 2024 that her role would be made redundant in coming months. In his sworn evidence Mr Njanja adopted the content of his filed witness statement which in turn adopted the content of the employer response filed in this matter. Ms Wang did not contradict this assertion in her statement in reply.

• [39] Basecamp messages between Ms Ronil and Ms Wang show that on 11 March 2024 Ms Ronil said to Ms Wang:[17]

"some of the things I wanted to cover today were: 1. Here are we at with the signing of contract with placement providers? 2. website issues getting fixed? 3. Salesforce to hub staff transfer, was there anything you wanted to raise? I do not have an update for you regarding the future of your role - i do know it will become redundancy. However, Tony [Njanja] wanted updated on the above projects to see where we would be going with your role."

• [40] Ms Wang responded with, relevantly, "I can update the above here."

• [41] There was a message exchange between Ms Wang and Ms Ronil on 22 April 2024.[18] Ms Wang said to Ms Ronil:

I would like to propose to be placed working in the placement team after my position as General Manager is made redundant. Placement is a fundamental part of our courses, and representing Apex for all stakeholders will emphasise and strengthen the relationship and ensure the team can continue providing assistance the whole time. The work schedule would be 3 days (Wed-Fri or negotiable), part-time, and the salary would be AUD $80K. Thank you for your consideration."

• [42] There was then a further exchange between the two of them, the next day, regarding Ms Wang's current salary, how it compared with her proposed salary, and Ms Ronil's view that Ms Wang's responsibilities would decrease under Ms Wang's proposal.

• [43] There was a message exchange between Ms Wang and Ms Ronil on 3 May 2024, as follows:[19]

Ms Ronil: hi Alice we need to work on your score card asap. Have you decided on what we spoke about previously? will you be taking on the 3 day role with the same current pay? If so, what specific tasks are you proposing to do? Can you draft your task list and map out the three days role so that I can get it confirmed with Tony. we are running out of time for this as we need to have it finalised prior to Tony's leave

Ms Wang: Hi Preet, I don't feel like I have enough information to make the decision, and the pay has dropped drastically, which is not sustainable at least before I secure another 2-day job (which taxes heavily)

Ms Ronil: the pay will not change unfortunately. What other information do you need to make the decision?

Ms Wang: The total payment for redundancy, scorecard, do I lose redundancy payment if I take the position

• [44] It was not in dispute that the copies of these various messages, which were before me, were true copies of messages between Ms Wang and Ms Ronil and Mr Njanja.

• [45] On 26 June 2024, Ms Ronil and Ms Wang had an exchange about scheduling "the redundancy meeting," and whether Ms Wang wanted Mr Njanja there.[20] The meeting was scheduled for 12 noon on 27 June.

• [46] The meeting occurred. Mr Njanja says that Ms Wang was informed that her role "was at risk" of being made redundant on 8 August 2024.[21]

• [47] At 3.09 pm on 27 June 2024, Ms Ronil messaged Ms Wang saying:[22]

Hi Alice thanks for making time to chat with me today. I appreciate it so much. Let me know if you want a day off tomorrow or anything.

Hi Preeti, it has been a hard day. I would like to request exemption from all meetings. I will ensure the smooth handover. Sad to say but definitely feel undervalued and unjustified for this outcome. What did Tony say about my requests?

• [49] That evening Ms Ronil responded with:

Oh no Alice! Definitely don't want you to feel like that! What can I do to make it better? Would still love your input in meetings as you always have good ideas but I understand what you mean.

• [50] The following morning Ms Ronil messaged Ms Wang letting her know she could be exempted from meetings, and that she needed to reschedule a meeting they had planned that afternoon because of a medical appointment for a family member. She also indicated she was waiting to hear back from Mr Njanja regarding Ms Wang's request for a ten year gift, and asked Ms Wang what she had in mind.[23]

• [51] The parties met again on 2 July 2024. Apex also wrote to Ms Wang on that date, confirming her role was being made redundant.[24] Though that letter was marked "without prejudice" there was no objection to it being received into evidence, and it does not appear to be a letter that would be expected to attract without prejudice privilege. The letter relevantly stated:

This letter is to confirm that the position of full time General Manager with APEX Training Institute will be declared redundant on 09 August 2024.

As you know we have reviewed alternative options and redeployment opportunities within the company, however as discussed, there are no suitable alternative position currently for you within APEX Training Institute. You have also unfortunately not been able to recommend a suitable solution that would meet the needs of both parties. Accordingly, we regret to inform you that your employment as General Manager with Apex Training Institute will cease due to redundancy on 09 August 2024.

As discussed we would like you to work out part of your notice period to handover your tasks. So your final working day is yet to be confirmed. On the next page we have provided you with the estimated monetary entitlements that will be paid to you on termination of your employment. Tax will be deducted from these payments before the net amounts are paid to you and will be deposited into your bank account within seven days.

As you know this was a very difficult decision for the business to make and we would encourage you to apply for any future vacancies that might fit your skill set.

Should you require an Employment Separation Certificate and/or a Statement of Service or if you have any further questions, please contact me.

• [52] That same day, 2 July, Ms Wang messaged Ms Ronil indicating that she would like a new 16-inch MacBook Pro as a gift of appreciation.[25]

• [53] Mr Njanja said the decision to make Ms Wang redundant was not a decision they came lightly to, and that their financial situation could not support the role.[26] Ms Wang tendered some advertisements aimed at international students to argue that the Respondent was not in financial hardship.[27] Ms Wang also said the job advertisements she had tendered showed that the company was expanding. This was not persuasive. Mr Njanja sought to cross-examine Ms Wang as to her knowledge of the Respondent's financial performance, including her access to reporting on sales and the employer's accounts.

• [54] On 4 July 2024, messages were exchanged between Ms Ronil and Ms Wang in which Ms Ronil was exploring with Ms Wang whether she would be interested in an IT role that was to be advertised, including whether other things could be added to it, to make it a four-day per week role. Ms Wang indicated she wanted to sleep on it. There appears to have been further exchanges on 8 and 11 July regarding the hourly rate for the new role, and calculations regarding long service leave. However, it appears the parties again could not reach agreement.[28]

• [55] There were further messages between Ms Wang and Ms Ronil on 6 and 7 August regarding going through some work, organising a farewell, and a gift for Ms Wang,[29] who was insisting on receiving a new MacBook Pro.[30]

• [56] On the afternoon of 7 August, Ms Wang texted Mr Njanja regarding her mother's terminal illness. She indicated that she had cousins who were oncologists in China who had urged her mother to return to China ASAP to get her illness under control. She said that with that in mind she must start preparing for the move with her mother. She asked Mr Njanja to ensure she received her entitlements on 9 August, and she again asked for a MacBook (presumably a reference to a MacBook Pro) as a gift after ten years' service.[31]

• [57] On 8 August 2024, Apex advised Ms Wang that contrary to their previous advice, her annual leave and long service leave entitlements would be paid out in weekly instalments over a three-month period because the business was in severe financial difficulties.[32]

• [58] Apex wrote to Ms Wang again on 9 August 2024.[33] The letter relevantly stated:

Thank you for meeting with us. Please find below a summary of the next steps.

As discussed during the meeting, the organisation is currently experiencing financial hardships, and we shall enact the following as a result:

● Your net termination payment shall be $15,919.36, which shall be paid out in weekly instalments of $1,326.61 (net) over the next three months, with the first payment being made today. Please find the breakdown of payment on the next page.

● Apex isn't in a position to pay a 16-week redundancy payment of $27,439.04 due to financial hardship. Therefore, we shall file a form F45A with the Fair Work Commission to request this amount be reduced to 0. Unfortunately, we are unable to tell you how long the process will take, but it will be lengthy, so we expect it could take a number of months for the Fair Work Commission to hand down its decision. However, we will keep you informed throughout the process.

We understand that this may be disappointing, and we remain committed to supporting you in any way we reasonably can as you transition to the next phase of your life.

• [59] Mr Njanja subsequently personally purchased a laptop for Ms Wang, valued at $1000, but it was not a MacBook Pro, which the Respondent says was valued at $4000.[34] After receiving the laptop Ms Wang made further requests for a MacBook Pro on the basis that it would be a more fitting gesture of appreciation.[35]

• [60] In September 2024, Apex filed an application to vary the amount of redundancy pay to be paid to Ms Wang. Ms Wang opposed the application.

• [61] On 13 December 2024, Apex wrote to Ms Wang again proposing a payment plan for the redundancy payment it said was owed to her.[36] The next day it discontinued its application to vary the amount of redundancy pay. The redundancy payment was made on 23 December 2024.[37]

• [62] For completeness, I observe that Ms Huang and Mr Sanyal's evidence was of little assistance as neither had been present at any of the relevant events or party to any of the relevant conversations.

• [63] As to the issue of the payment, Ms Wang gave evidence that Apex had withheld her "redundancy entitlements." She said the redundancy and the failure to provide redundancy payments had caused severe financial hardship.[38]

• [64] With her reply materials, Ms Wang filed a brief excerpt from what appeared to be a transcript. She tendered it at the hearing. The transcript is undated but is said to have been created on 7 August. It was a single paragraph, as follows:[39]

We couldn't come to terms on. We couldn't come to terms on salary and the financial part of it. And so we're like, okay, so then what we discussed that time was then we'll go reruit externally. And then once the new person comes in, we'll see if there's a. If there's a role available. Then we'll discuss that once the new person has come in. So, of course, [Preeti] came in and then pretty much. I think there were some positions that. I think the one position were interested in was work placement. So we reviewed everything, every kind of position, and they should just became. We couldn't find anything based on history where we could see that you'd be able to fit in. And that's kind of how we've ended up here.

• [65] Ms Wang underlined the words "We couldn't find anything based on history where we could see that you'd be able to fit in." She argued that this showed that her dismissal was really for performance reasons, not operational reasons.

• [66] Under cross-examination, Ms Wang also said that Mr Njanja had had a discussion with Ms Ronil about the termination being for performance reasons. When Mr Njanja asked her to point to evidence of that, Ms Wang said there was a meeting recording, but it had not been put before the Commission. She said this had been discussed at a meeting in January. I took this to be a reference to the conference held on 8 January 2025 in these proceedings. At that conference, Ms Wang had referred to the existence of recordings. However, she did not subsequently seek to file any such recordings or any other transcripts of them in advance of the hearing.

• [67] The only transcript she had sought to file in advance of the hearing was the brief excerpt[40] referred to above. That document was admitted into evidence in the course of her evidence in-chief. If she had other materials in her possession in January, there is no apparent reason that she could not have sought permission to file additional witness material prior to the hearing, or why she could not have sought permission to tender it prior to being cross-examined at the hearing.

• [68] Ms Wang's evidence-in-chief consisted of very brief statements and several documents. As she was self-represented, I took her through each during her evidence-in-chief, to give her an opportunity to identify, prove, and tender the documents she had filed. After doing so, and before the commencement of cross-examination, I asked her if that was the end of the Applicant's material and if I had missed anything.

• [69] Later, after her cross-examination had finished, in re-examination, Ms Wang asked if she could provide additional documents. I declined to grant permission given the stage of the proceedings. Ms Wang went on to say that there were recordings of Mr Njanja and Ms Ronil talking about her not meeting performance indicators. I asked her if she understood those documents were not before me on the evidence. She said that she did.

• [70] Before reaching a conclusion as to Ms Wang's argument that her employment had been terminated for performance reasons, not genuine redundancy, it is necessary to deal with a matter that then arose after the conclusion of the hearing.

• [71] At the conclusion of the hearing, I had given the parties leave to file their closing submissions in writing. I also gave them leave to file further witness statements in relation to remedy, if any, only. I also provided the parties with further procedural guidance about how to seek permission to file additional material.

• [72] Ms Wang did not seek or obtain permission to file additional material. Nonetheless, on 21 April 2025, when she provided closing submissions, Ms Wang also included two additional documents that fell outside the scope of the question of remedy. One was a two-page transcript, and one was a .mov file.

• [73] On 10 June 2025, I invited Ms Wang to provide submissions as to why she should have leave to file the two additional documents. In conveying that invitation to Ms Wang, the email from my chambers set out the procedural background and then stated:

"It would assist if you could specifically address:

• the background set out above;
• when you first obtained the two documents;
• why the further evidence could not have been filed in advance of the hearing, or why you could not have sought permission to tender the evidence as part of your evidence-in-chief;
• whether the evidence is so material that the interests of justice require its admission;
• whether the further evidence, if accepted, would be likely to affect the result of the case;
• whether prejudice to the Respondent would ensue by reason of the late admission of the further evidence."

• [74] Ms Wang's submissions were as follows:

Thank you for the opportunity to make submissions regarding the additional documents (Attachments A and B) I sought to tender following the hearing.

I fully respect the Deputy President's decision if it is ultimately determined that my material is not compliant with the Directions issued on 13 March 2025. I did not intend to disregard the Commission's processes, and I appreciate the chance to provide this explanation as to why I sought to submit the documents.

I was not intending to submit further material following the hearing and was prepared to have the matter decided on the evidence already presented. However, the Respondent subsequently submitted additional material on 11 April after the hearing. Hence, I submitted this evidence as I believed it would be fair for both parties to have the same opportunity to provide relevant material.

My login granted by the Respondent had me access to the evidence while I was acting as GM. Due to my personal situation (including acting as the sole carer for my terminally ill mother while managing complex proceedings without legal representation), I did not fully understand that permission would be required to introduce the evidence post-hearing, especially given the context in which the Respondent submitted additional materials.

I acted in good faith, with the intention of ensuring fairness in the process, and not to disrupt the proceedings. Once again, I fully respect the Deputy President's discretion and any final decision on this matter. Thank you for the opportunity to explain the context in which the documents were submitted.

• [75] I have not considered it necessary to seek submissions in response from the Respondent.

• [76] I do not accept that Ms Wang did not understand that permission would be required to adduce additional evidence as to the question of liability. Ms Wang had the benefit of the case management discussion on 8 January. I provided procedural guidance as necessary throughout the hearing. At the conclusion of the hearing there was a long procedural discussion where I took, and sought to answer, questions from the parties. My directions issued on 13 March after the hearing were explicit about what could and could not be filed. Ms Wang was in a managerial position and my view, having seen her give evidence and conduct her case, is that she is not an unsophisticated person. Ms Wang was assisted by an interpreter throughout the hearing, and at the conferences conducted before me in this matter, at her request. In addition, the documentary evidence in this matter is replete with examples of Ms Wang communicating in English.

• [77] Should permission be granted regardless? As can be appreciated Ms Wang's submission was not responsive to the considerations to which her attention was directed, in my chambers' correspondence of 10 June. She did not say how long the two documents have been in her possession. I infer from her having raised this question at the conference on 8 January, and from her lack of assertion to the contrary, that it is likely that the two documents have been in her possession since at least that time. It remains unclear why the further evidence could not have been filed in advance of the hearing, or why she could not have sought permission to tender the evidence as additional evidence-in-chief. Ms Wang has made no submission as to whether the evidence is so material that the interests of justice require its admission, whether the further evidence, if accepted, would be likely to affect the result of the case, or whether prejudice to the Respondent would ensue by reason of the late admission of the further evidence.

• [78] In the circumstances I do not consider Ms Wang has made out a basis for permission to adduce additional documents to be granted.

• [79] Having dealt with that issue, and having regard to the evidence before me, I am not persuaded that Ms Wang was dismissed for performance reasons. Ms Wang's own words show that at all material times, until she commenced this new line of argument in her reply materials, she considered that her employment was ending because of redundancy. The preponderance of the evidence shows, and I accept, that her employment was terminated because Apex no longer required Ms Wang's job to be performed by anyone because of changes in the operational requirements of its enterprise.

• [80] The next question under subsection 389(1) of the Fair Work Act is whether the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [81] The employer asserted that there was no modern award or enterprise agreement applying to Ms Wang's employment. Ms Wang did not seek to contradict this. It appears then that no consultation obligation arose. For completeness, though, I observe that the evidence demonstrates that genuine consultation occurred, including through Ms Ronil's discussions with Ms Wang about possible alternative arrangements, with a view to keeping her in the business.

• [82] In light of the above, I am satisfied that the requirements of subsection 389(1) were met. Subsection 389(2) 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.

• [83] Ms Wang referred to an exchange of messages on 11 July 2025, where she says she asked about redeployment, but Ms Ronil did not respond. The message related to the rate of pay of the new role that they had been discussing in the previous days. Ms Wang asked Ms Ronil about this in cross-examination and Ms Ronil said that they had spoken after those messages. Ms Wang also asked Ms Ronil if the company was recruiting multiple roles before Ms Wang's departure. Ms Ronil said they were not recruiting multiple roles in Australia.

• [84] I accept that Apex was in financial difficulty. I accept that it had had negotiations with Ms Wang in 2023 in relation to the Operations Lead role, and again in 2024 in relation to part-time work. It genuinely considered redeployment. Ms Wang also told the Respondent two days before the termination was to take effect that she was moving to China with her terminally ill mother. In the circumstances, Ms Wang could not reasonably be redeployed. I find that the exclusion in subsection 389(2) is not enlivened.

• [85] I am therefore satisfied that the dismissal was a case of genuine redundancy. Given this finding, the question of whether the dismissal was harsh, unjust, or unreasonable does not arise.

• [86] Ms Wang's dismissal cannot be an unfair dismissal, and I cannot be satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Fair Work Act. The Applicant's application is therefore dismissed.

[1] Fair Work Act 2009, s 390.

[2] Ibid, s 382.

[3] Ibid, ss 385 and 390(1).

[4] Qingwei Wang v Learner Centre Pty Ltd [2024] FWC 3538.

[5] Qingwei Wang v Learner Centre Pty Ltd [2025] FWC 693.

[6] Ibid, s 385(d).

[7] Ibid, s 396(d).

[8] McKerlie v RateIt Australia Pty Ltd (t/a RateIt) [2020] FWCFB 5131, [58].

[21] Exhibit 23 adopting Employer response, 3.2 [1].

[32] Exhibit 23 adopting Employer response, 3.2 [2].

[34] Exhibit 23 adopting Employer response, 3.2 [3].

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