What is a resignation?

A decision not to accept a transfer of employment following the sale of one business to

another is not a resignation.

 

“It is clear from the history of this matter that the employment of Mr Yuen and Ms Jor

were dismissed. Their employment was terminated at the initiative of MSY CDC with effect

from 10 December 2022. This followed MSY CDC’s decision to sell its business to Umart, and

to arrange for Umart to offer continuing employment to its employees. While an offer of

employment was made by Umart to Mr Yuen and Ms Jor, neither was bound to accept the offer

and neither did.

[18] A decision not to accept a transfer of employment following the sale of one business to

another is not a resignation. But for the sale of the business, Mr Yuen and Ms Jor would have

remained in the employment of MSY CDC. They had no role in the decision to sell the business

or its effect on their continuing employment with MSY CDC. The effect of the sale of business

was that there was no work left for them to do for MSY CDC. That is, MSY CDC no longer

required their jobs to be performed – either by them or anyone else. Upon completion of the

sale, their employment with MSY CDC came to an end. This occurred at the initiative of MSY

CDC and by reason of redundancy.

[19] For these reasons, I find that Mr Yuen and Ms Jor were dismissed by MSY CDC on

10 December 2022.

Disposition

[20] The jurisdictional objection is dismissed. Directions will issue separately in relation to

the further programming of the matter.”

Yuen and another v MSY Computer Discount Centre Pty Ltd  [2023] FWC 438 delivered 22 February 2023 per McKinnon C