Unfair dismissal; transfer of employment and length of service

Under the Fair Work Act, a new employer is obliged to notify a transferring employee in a transfer of employment context, whether or not a period of employment with an old employer will be recognized by the new employer. The Fair Work Commission has held in an unfair dismissal case which turned on whether the employee had been employed for the minimum length of employment to be protected from unfair dismissal, that it is not permissible for the new employer to claim that such notice that service with the old employer would not be recognized by the new employer was provided by the first employer with its authority.

“Did the letter by the old employer, purportedly as agent for the new employer satisfy the requirements of s.384(2)(b)(iii)

[59] Section 384(2)(b)(iii) states that it is the new employer who is required to inform the employee, in this instance Mr Brownhalls, in writing that a period of service with the old employer would not be recognised.

[60] At no time did the new employer, the Respondent do so. It now seeks the Commission to accept that the old employer was acting with its authority when it did so, purportedly on its behalf.

[61] Whether authority was given by the Respondent to the old employer to make a representation to Mr Brownhalls is not, I consider, a determining factor. I conclude that the Act requires strict compliance for the new employer to communicate to the employee its position. The Act does not provide for an alternative, that being “on behalf of”; it states what the new employer is required to do.

[62] In my view, the positive obligation on the new employer cannot be delegated to a different corporate entity.

[63] I cannot be satisfied that s.384(2)(b)(iii) has been met. Section 384(2) requires all conditions to have been met before service with the old employer does not count towards the employee’s period of employment with the new employer.

[64] I am therefore satisfied that, at the time of dismissal, Mr Brownhalls was an employee who has completed a period of employment with the Respondent of at least the minimum employment period.

Conclusion

[65] I determine that Mr Brownhalls was employed by the Respondent for a period of more than six months, and therefore has completed the minimum period of employment pursuant to s.383(a) of the Act.

[66] For that reason, I am satisfied that Mr Brownhalls was, pursuant to s.382 of the Act, a person protected from unfair dismissal. The Respondent’s threshold jurisdictional objection to the application is dismissed.

[67] Accordingly, the application is to proceed before the Commission.”

Brownhalls v BB161013 Pty Ltd (2020) FWC 5807delivered 9 November 2020 per Hunt C