Worker’s employment wasn’t transferred

Cases

Worker’s employment wasn’t transferred

In a case where a worker failed to prove she was a transferred employee, a list of employees had been given to the new employer but a FWA Full Bench found it had no obligation to employ anyone on that list.

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In a case where a worker failed to prove she was a transferred employee, a list of employees had been given to the new employer but a FWA Full Bench found it had no obligation to employ anyone on that list.
 
Consequently, the argument that there had been a transfer of business carrying over employee entitlements under Fair Work legislation failed. The employee was a new employee, not a transferred employee; so, she had failed to work the minimum period of employment to bring an unfair dismissal action.
 
 
Background
 
This was an appeal against the decision of a single commissioner who found there was an arrangement between the employee’s previous employer and her new employer (the appellant) such that an employee was a person who was a transferring employee in relation to a transfer of business within the meaning of s384 of the Fair Work Act 2009
 
The commissioner found there was arrangement between the old and new employers involving a transfer of assets as contemplated by s311(3) of the Act — with the effect that the employee’s period of service with the old employer was counted towards her period of employment with new employer. This meant she would have effectively worked beyond the minimum period of employment and would be able to bring an unfair dismissal action.
 
The new employer submitted it would be in public interest to grant permission to appeal as the correct application of term ‘arrangement’ in s311 had not been considered by a Full Bench and the decision of the commissioner contained
significant errors of fact.
 
No transfer found
 
The Full Bench was satisfied that whatever arrangement existed was between the hotel owner and new employer; and this did not establish the necessary connection between ‘old employer’ and ‘new employer’ as required by s311(3) of Act.
 
The Full Bench was satisfied that it was in the public interest to grant the new employer permission to appeal and was satisfied that there was no evidence to support the commissioner’s finding that there was an arrangement between the employee’s old employer and new employer involving transfer of assets. It was satisfied that the employee was not employed for the minimum employment period and therefore she was not protected from unfair dismissal. The appeal was upheld.
 
Arrangement
 
The Full Bench concluded:
‘In accordance with the Explanatory Memorandum the word “arrangement” should be interpreted broadly. It certainly need not imply a formal let alone legally enforceable agreement between the two parties. However the expression must still be given some content. From the authorities it can be concluded that for an “arrangement” to exist one party must have assumed at least a moral obligation, or given an “assurance” or “undertaking” that it will act in a certain way.

Did the transfer of assets (such as they were) between Wanslea Grove and the appellant occur in an accordance with an “arrangement” between them? The respondent cited as evidence of such an arrangement the request by Mr L. for Wanslea Grove to provide him with certain information, and the subsequent provision of that information. However that in no way created any obligation, legal, moral or otherwise on the part of the appellant.

For example, while a list of employees was sent to the appellant, there was no evidence that this created an obligation on the part of the appellant to employ anyone on that list. In fact there is no evidence that the list was used at all. The uncontested evidence is that Mr L. contacted a person named M. whom he had employed previously and who he had seen working at the hotel and enquired whether he was looking for work. M recommended Ms H as another person who could work at the hotel ...
 
Whatever arrangement existed was between the owner of the hotel and the appellant. This does not establish a connection between the “old employer” and the “new employer” as required by s.311 (3) ...’
 
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