Telstra tech employee says dismissal was ‘racially motivated’

A tech employee’s claim that his redundancy was “racially motivated” has been rejected by the Fair Work Commission, which ruled that there was “no evidence whatsoever” of this.

Former Telstra technical expert Zhiming Yang made an application for an unfair dismissal at the Fair Work Commission over his redundancy from the telecommunications giant earlier this year.

He claimed that this was not a “genuine redundancy” and that the decision to select him for redundancy was “racially motivated”, due to his manager and some of his colleagues being of Indian descent.

These arguments were roundly rejected by Fair Work Commission deputy president Alan Colman, who found that Yang’s dismissal was a genuine redundancy under the law, and that there was no racial element to the case.

Yang – a Telstra employee for 11 years – worked as a technical expert in Telstra’s Enterprise Unified Communications and Contact Centre, which is part of the Enterprise Service Management (ESM) group, providing technology assurance to clients.

There are about 1,000 employees in the ESM working with customers on hundreds of products.

In August this year, Yang received a letter from Telstra informing him that his position was redundant, and his employment would cease on 19 September.

But in a submission to the Commission, Yang said that he didn’t believe that his position was truly redundant.

He argued that over the last 12 months, Telstra had hired four more people to perform his role, that the company had invested “a lot” of money in the area he worked, and that this workload continued to grow.

He said that he was selected for redundancy based partly on an “incorrect and unfair assessment” of his performance in the previous year, which was undertaken by his manager, Adnan Adnan.

Yang claimed that this poor review was done with the purpose of “forcing him to leave Telstra”, and that Adnan was racially motivated by doing this, as he and the four new staff Yang referenced were of Indian descent.

“Mr Yang said that he believed his selection for redundancy was racially motivated, as the four new people hired to do his role were all Indian like Mr Adnan,” the Fair Work Commission said.

But Telstra head of service delivery Laura Riley told the Commission that a review into Telstra Enterprise Service Management earlier this year had proposed a number of changes, including the automation of some processes, a flatter team structure and the cross-skilling of other teams.

There was also a need to reduce costs in the division by $2.3 million, which would lead to 83 roles being removed and 48 new positions being created.

Within Yang’s Internet Protocol team, there would be a reduction of three staff members, with the team reducing from 26 people to 23.

Riley told the Commission that there had been a “steady reduction” in work for Yang’s team, and that fault tickets had reduced by 25 per cent since November last year.

Two people from the team voluntarily moved to other areas within Telstra, leaving the need for one involuntary redundancy.

Telstra then conducted a selection process involving a merit-based assessment of employees in the team against selection criteria, and Yang was the lowest ranked technical expert, meaning he was selected for redundancy, Riley said.

Telstra provided Yang with a redundancy entitlement of more than 43 weeks’ pay, equating to more than $111,000.

Telstra also denied Yang’s claim that four people had been hired in his team in the last year, saying there had instead been a reduction, and that he was not selected for redundancy because he was not Indian.

“Ms Riley said that Mr Yang’s position has been made redundant as part of a genuine redundancy process and that Telstra did not need Mr Yang’s job to be performed by anyone due to the changed operational requirements of the business,” the Commission ruling said.

“There is no evidence whatsoever to suggest that this was the case.

“Mr Yang said that Mr Adnan favoured people of Indian descent, but he failed entirely to substantiate this accusation.

“The most that Mr Yang could say about his claim of racism was that Mr Adnan was Indian and that so too were the new hires. Even if these things were true, it would not demonstrate racism.”

Under Australian law, a person cannot have been unfairly dismissed if the Commission is satisfied that the dismissal was a “genuine redundancy”, meaning that the person’s employer “no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise”.

“I find that Telstra’s operational requirements were such that it no longer needed as many technical experts and the pool of such workers needed to be reduced,” Colman said.

“Mr Yang is incorrect to say that because the type of work he was performing is still being done by others, his position could not really be redundant.

“Reducing the number of positions of a particular class is a very common circumstance of redundancy.”

The Commission also found that even if it had been an unfair dismissal, the redundancy payout of more than $111,000 would have more than compensated for this.

“Quite simply, I would have concluded that the redundancy payment of $111,348.54 remedied any unfairness,” Colman said.