HR business partner alleges redundancy over parental leave

The Fair Work Commission (FWC) recently dealt with an unfair dismissal application lodged by a former HR business partner who questioned the validity of her redundancy, alleging that she was targeted for dismissal.

Employment background

A former HR business partner at Hisense Australia lodged an unfair dismissal application on 21 February 2024, ostensibly for the reason of genuine redundancy. The former employee, having recently become a new mother, argued her dismissal did not comply with the statutory definition of genuine redundancy and that the dismissal itself is unfair for other reasons.

The HR business partner commenced her employment with Hisense Australia in 2016 as an admin officer, shortly after she assumed the duties of a human resources business partner. The worker acted in the position of HR and admin manager between 31 March and 20 April 2023; however, the worker was otherwise employed as an HR business partner.

Due to being a new mother, the worker proceeded on parental leave on 20 April 2023 and returned to work on 5 December 2023.

While she was away on parental leave, two other employees were hired to cover her workload. Upon her return to work, she alleged that there was a notable shift in attitude from her boss and noted that a number of her prior responsibilities were reassigned to other colleagues.

Employment restructure

On 4 January 2024, the HR business partner said: “[My supervisor] proposed a transition to casual employment, which can only offer one or two days a week, due to a perceived lower workload, and threatened redundancy termination if I declined. I asked about the redundancy selection process, but I received no clear response.”

The following day, she was asked to attend a restructuring meeting, which was supposed to be held on 8 January 2024; however, due to a health condition she was experiencing, the HR business partner asked for the date to be changed, which was agreed by her supervisor.

The meeting eventually took place on 19 January 2024, where she was told her position was no longer required and that instead, Hisense could change her role to that of a casual human resources business partner or that she could be made redundant.

In response to this proposal from Hisense, the HR business partner said:

“I am writing to formally communicate my decision to decline the offered casual position. As a full-time employee with Hisense Australia on a permanent basis, I do not agree to change to casual employment.”

“Furthermore, I must express my concerns regarding the redundancy proposal. It appears that there is no legitimate reason for the redundancy, and it does not align with genuine redundancy criteria. This situation does not adhere to legal processes, and I cannot accept a non-genuine redundancy.”

Hisense responded to this correspondence by reiterating the redundancy, stating that the HR manager would be dismissed for reason of redundancy, with her being provided with four weeks’ notice of the impending termination of her employment.

She was also provided with 13 weeks’ wages, stated by Hisense to be “a genuine redundancy payment”, as well as the payment of any accrued statutory leave entitlements.

The HR business partner, therefore, put forward that because of associated matters arising at or around the time of termination, she believes matters of capacity or conduct were Hisense’s operative reasons for termination. Foregoing the claim that it was a genuine redundancy on Hisense’s behalf.

Hisense refuted these claims and offered extensive evidence to the FWC its reporting structure and the pressures on the business both internationally and in Australia, pointing to those factors as the reasons for the loss of the HR business partner’s role.

Skills assessment

Hisense’s global headquarters are in Shandong province, China, and the local business works in tandem with directions given by its parent company. The parent company offered the Australia-based team a directive to reduce the number of staff by 10 to achieve their target.

With this directive at hand, the supervisors decided to reduce its HR team by one position. To make this decision, assessments were made of each of the three HR staff members – including the one who was eventually made redundant – against five criteria.

The criteria for the assessment were the following:

1. Recruitment experience
2. Communication skill
3. English proficiency
4. Work efficiency
5. Multitask skills

The supervisor said: “[The HR business partner] scored the lowest out of the three HRBPs in terms of recruitment experience, communication skill, and English proficiency. [She] was unconfident about her English skill, and from what I recall, she has either never or rarely held interviews with native English speakers. I think this is a necessary skill to be a good HRBP in Australia.”

In a statement to the commissioner in regard to which of the staff was going to enter a restructure or be made redundant, the supervisor described the HR manager in question, saying: “I feel [she] was not – well, is not intelligent, emotionally intelligent enough, or sometimes a little bit emotional when dealing with conflict, cannot express herself clearly and rationally, compared with the other two.”

Consideration

In relation to the assertion that the HR business partner was dismissed for reason of having exercised a right to parental leave or for some other matter of discrimination associated with her parental status, the FWC found no evidence to support said conclusion.

Overall, the FWC accepted the evidence presented by the company in relation to needing to cut back on staff, as per the directive from its parent company. Due to the operational changes, the HR manager’s job role was no longer needed, and therefore, the redundancy was considered genuine.

“I am satisfied that notice was given to the HR manager of the definite decision taken by Hisense to reduce its Australian staffing generally and the likely impact of that decision on her own position,” said commissioner Nicholas Wilson.

“I am also satisfied that there was written notification given by Hisense to [the HR manager] about the change decision as well as the potential impact of the decision upon her. The evidence also leads to a finding that there were discussions with [the HR manager] about the proposal and that she was specifically advised that one of the consequences of the change might be that she lose her job for reason of redundancy.”

More evidence of the fact that it was a genuine redundancy was that re-employment was offered by way of casual employment; although the specifics weren’t explained to the HR manager, it was still offered nonetheless.

“I am also satisfied Hisense considered the potential for redeployment of [the HR manager] into another position and, in fact, offered a casual position to her,” Wilson said.

“I am satisfied for the reasons set out above that [the HR managers] dismissal by Hisense Australia was a ‘genuine redundancy’ as defined, one of the initial matters requiring determination under s.396. It follows that I must dismiss [the HR manager’s] unfair dismissal application, an order doing so is issued at the same time as these reasons for decision.”