Transfer of business - no termination of employment

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Transfer of business - no termination of employment

An employee whose position was transferred to another organisation when the employer sold that part of the business was not unfairly dismissed when she did not take the position offered to her.

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An employee whose position was transferred to another organisation when the employer sold that part of the business was not unfairly dismissed when she did not take the position offered to her.

The employer sold a part of its business. The sale involved the transfer of employees to the new employer. The employee claimed that the position offered to her was not at the same level of responsibility or seniority. The employee failed to 'take-up' the offer of employment by the cut-off date so was dismissed. Employees failing to take-up employment with the new employer were not offered redundancy (Semmel v Dulux Australia; Print R5877, [1999] 651 IRCommA).

The employer argued that the employee had been informed on many occasions that the position being offered to her was comparable in terms of seniority and responsibility. Also, there would be no loss of pay or entitlements. The employer also submitted that the employee was the only employee affected by the transfer that did not accept a new position. The employee was provided with an opportunity to respond before she was finally dismissed.

The Australian Industrial Relations Commission concluded that "whatever was put to [the employee] regarding her job being transferred from Dulux to PPG with the same classification, duties, location and rate of pay, the [employee] had determined that her job was with Dulux and with no one else."

The Commission held that the employee had been offered comparable alternative employment, that provided the same classification, duties, location and rate of pay and that she had been assured of this on many occasions.

The Commission found that the termination of employment was at the employee's instigation and that therefore, the dismissal was not harsh, unjust or unreasonable. The application for unfair dismissal was rejected.

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