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