LIU & TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA v LEADING SPINNING PTY LTD; & XING & TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA v LEADING SPINNING PTY LTD [1997] IRCA 7

LIU & TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA v LEADING SPINNING PTY LTD; & XING & TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA v LEADING SPINNING PTY LTD [1997] IRCA 7

The employer did not establish that Min Su Liu volunteered for redundancy; termination was at respondent's initiative, contravening the Workplace Relations Act 1996. For Zhang Xing, the selection for redundancy was justified, as he had already been afforded an opportunity to respond at the time of the warning, and the process was found procedurally fair in the circumstances.

Parties
Applicant: Min Su Liu; Applicant: Textile Clothing & Footwear Union of Australia; Applicant: Zhang Xing; Respondent: Leading Spinning Pty Ltd
Jurisdiction
Australia
Judgment Date
28 January 1997
Procedural Posture
Industrial Law/employment Termination / Decision and Orders After Hearing
Outcome
Application by Min Su Liu granted; reinstatement ordered. Application by Zhang Xing dismissed.
Legal Topics
Termination of Employment, Redundancy, Procedural Fairness, Selection Criteria, Union Activity
Industrial Law Employment Law Termination of Employment Redundancy Procedural Fairness Selection Criteria Union Activity

Case Brief

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Parties

Min Su Liu

Applicant

Textile Clothing & Footwear Union of Australia

Applicant

Zhang Xing

Applicant

Leading Spinning Pty Ltd

Respondent

Procedural Posture

Industrial Law/employment Termination / Decision and Orders After Hearing

Legal Issues

  1. 1 Whether first named applicant (Min Su Liu) volunteered for redundancy or was terminated at employer's initiative
  2. 2 Whether there was a valid reason for selection of second named applicant (Zhang Xing) for redundancy
  3. 3 Whether the employer was required to give a further opportunity to respond to performance related allegations already subject of a formal warning

Ratio Decidendi

The employer did not establish that Min Su Liu volunteered for redundancy; termination was at respondent's initiative, contravening the Workplace Relations Act 1996. For Zhang Xing, the selection for redundancy was justified, as he had already been afforded an opportunity to respond at the time of the warning, and the process was found procedurally fair in the circumstances.

Court Disposition

Application by Min Su Liu granted; reinstatement ordered. Application by Zhang Xing dismissed.

Orders

  • The respondent reappoint Min Su Liu to a position on terms and conditions no less favourable than those on which he was employed immediately before his termination.
  • The employment of Min Su Liu be deemed to have been continuous for all purposes from 27 April 1996 to the date of reinstatement.