[2013] FWC 668 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Benjamin Hill
v
Sahir T/A Cafe Moderno at Fountain Gate
(U2012/13643)
COMMISSIONER ROE |
MELBOURNE, 30 JANUARY 2013 |
Unfair dismissal - minimum period of employment - transfer of business.
[1] This is an application for an unfair dismissal remedy pursuant to Section 394 of the Fair Work Act 2009 (the Act). The Application for unfair dismissal remedy is made by Mr Benjamin Hill (the Applicant) in respect of his dismissal by Sahir Kaselias T/A Café Moderno at Fountain Gate (the Respondent).
[2] The parties were self represented. Mr Kaselias for the Respondent was assisted by an interpreter.
[3] It is not in contention that Mr Benjamin Hill (the Applicant) worked at Cafe Moderno on a permanent part time basis continuously for the period July 2011 until 22 September 2012 when he was advised by Mr Sahir Kaselias by text message that said: “Hi Ben, it is sahir, I just want to tell u that I’m not happy to have u with our staff members anymore, I will contact u very soon for ur wages”.
[4] Mr Kaselias says that he bought the business on 10 September 2012. Mr Kaselias accepts that the Applicant worked the three shifts as on the roster which had existed before Mr Kaselias took over the business between 10 September 2012 and 22 September 2012. Mr Kaselias says that he decided that the Applicant was not suitable to continue in employment. He says that as a result of observing the Applicant’s performance during this period he “didn’t select Mr Hill for my staff”. Mr Kaselias added: “I didn’t dismiss him, for he was not my employee, I simply chose not to select him for my business.”
[5] During the proceedings Mr Kaselias submitted that he felt a need to reduce the number of employees and observed their performance over a two week period to choose who should stay and who should go. The Applicant submitted that there was no discussion with him about monitoring or about potential redundancies.
[6] The previous owners were Bizcorp Support Services Pty Ltd T/A Watergarden Enterprises. The business traded as Cafe Moderno - Fountain Gate and it continued with the same trading name, same premises, same assets and same employees when Mr Kaselias took over on 10 September 2012.
[7] The Applicant says that in early September 2012 the manager, Tash, informed the staff that from 10 September 2012 a new owner would be taking over under a franchise arrangement. The old owners had and still have a number of other cafes which trade under the Cafe Moderno brand name. No information was given about future employment conditions but the manager encouraged staff to be patient and understanding with the new owners. Employment continued after 10 September 2012 with the new owners. There was no new paperwork in respect to employment, no change to shifts, no change to wages, and no request for taxation declarations.
[8] Annual leave entitlements were paid out at the time of the transfer of business.
[9] The relevant provisions of the Act are as follows:
“22 Meanings of service and continuous service
......
When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.
Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).
(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.
Note: For example:
(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and
(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.
Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
(a) the following conditions are satisfied:
(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;
(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or
(b) the following conditions are satisfied:
(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.
(8) A transfer of employment:
(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and
(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.
91 Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave
Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer
(1) Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between non-associated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division).
Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer
(2) If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave.
Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[10] This is a transfer of business between non-associated entities in accordance with Section 22(8). It is clear that upon transfer the trading name, the nature of the business and many of the assets are unchanged. There is a transfer of employment in accordance with Section 22(7)(b). The Applicant was employed in the business before the transfer between non-associated entities and after the transfer.
[11] I am satisfied that the new employer is not required to recognise the service of the Applicant with the old employer for the purposes of annual leave in accordance with Section 91 of the Act. This is not contested by the Applicant. It is quite clear from the statutory provisions that transfer of employment occurs even in cases where annual leave and or redundancy entitlements do not transfer but are paid out by the old employer. The legislative provisions for recognition of service are quite separate from these matters.
[12] Section 384(2)(b) provides that the period of service with the old employer does not count if the new employer informed the employee in writing before the new employment started that the period of service will not be recognised. If this has not occurred then Section 384(2)(b) does not apply to the Applicant and pursuant to Section 22(5)(a) the period of service with the first employer counts towards the period of continuous service.
[13] Mr Kaselias for the Respondent accepted in response to my question during proceedings that neither he nor anyone on his behalf informed the Applicant in writing before the new employment started that the period of service with the old employer would not be recognised. In fact Mr Kaselias does not suggest that there was any communication prior to him taking over the business.
[14] The text message of the Respondent to the Applicant terminating the employment,
“Hi Ben, it is sahir, I just want to tell u that I’m not happy to have u with our staff members anymore, I will contact u very soon for ur wages”
clearly uses the present tense to describe the Applicant’s employment. It is clear that it is the Respondent who is terminating the Applicant’s employment and that the Applicant’s employment is with the Respondent. The fact that the period of employment with the Respondent following the transfer of employment was short does not alter this fact.
[15] For these reasons I am satisfied that the conditions set out in Section 384(2)(b) have not been met and as a consequence I am satisfied that the Applicant does in fact have more than 12 months continuous service. The Applicant is protected from unfair dismissal. The jurisdictional objection is dismissed. The matter will be allocated to another member of the Fair Work Commission to consider whether or not the dismissal was unfair.
[16] At the conclusion of the hearing I advised the parties of my decision and offered to hold an immediate conciliation conference. The Respondent declined to participate in a conciliation conference.
COMMISSIONER
Appearances:
Both parties represented themselves.
Hearing details:
2013
Melbourne
January 25
Printed by authority of the Commonwealth Government Printer
<Price code C, PR533627>