Ms Tahanee Kakoschke v BG & BJ Pty Ltd T/A Wantirna South Studfield Newsagency [2016] FWC 1074 (U2015/15269). GOSTENCNIK, DP. 26 FEBRUARY 2016

This decision was in relation to the counting of service from the old employer to the new employer. The fact that the new employer did not put in writing to the employee that it would not recognise service from the old employer meant that the previous service was NOT counted.

The Applicant commenced her employment with BG & BJ Pty Ltd t/a Wantirna South Studfield Newsagency (Respondent) a few days after the Respondent acquired the business formerly conducted by Hi-Rail Pty Ltd t/a Wantirna South Studfield Newsagency (old employer) on or about 25 May 2015.

The Applicant’s employment with the Respondent ended on or about 5 November 2015.

Was there is a live question as to whether there was a dismissal within the meaning of the FWA?

The Respondent maintains that the application should be dismissed because the Applicant had not at the time of the dismissal served the minimum employment period.

Continuous service is defined in s.22 of the Act and that section relevantly provides that if there is a transfer of employment, any period of service of the employee with the first employer counts as service with the second employer and the period between the termination of employment with the first employer and the start of the employment with the second employer does not break continuity. It does not, however, count towards the employee’s period of continuous service.

In relation to a transfer of business, a transferring employee is an employee whose employment with the old employer has been terminated, who within three months of termination becomes employed by the new employer and who performs work for the new employer that is the same or substantially the same as the work performed by that employee for the old employer.

The sale of business contract contained provisions which deal with the transfer of assets of the business from the old employer to the Respondent. Thirdly, it is not in dispute that the Applicant commenced employment with the Respondent within a period of three months of the termination of her employment with the old employer, and it is apparent that the work the Applicant performed for the old employer, that is performing the work of a sales assistant, is the same or substantially the same as the work that she performs or performed for the Respondent.

The FWC was therefore satisfied that there was a transfer of business and I was also satisfied that, the Applicant, was a transferring employee within the meaning of the Act in relation to the transfer of business.

However, in the case of a transferring employee in relation to a transfer of business where the old employer and the new employer are not associated entities, prior service with the old employer may not be recognised if the new employer informed the employee in writing before the new employment started that the period of service with the old employer would not be recognised.

 

 

The Respondent conceded that she did not provide the Applicant anything in writing which would advise the Applicant of that fact, but says that it was communicated to the Applicant by the Respondent orally. It is sufficient to note that even if it did occur, it is not a sufficient basis to conclude that the prior service with the old employer would not be recognised for the purposes of the minimum period of employment because it is clearly set out in the FWA that the notice to the employee must be in writing.

The jurisdictional objection raised by the Respondent was therefore dismissed.

See also: Holly Gregory v Shaver Shop Pty Ltd [2016] FWC 1323 (U2016/4098), GOOLEY, DP. 1 MARCH 2016

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

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