Length of Service, transferring employees and unfair dismissal - Part Two

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By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner

In the Mills Oakley Workplace Relations, Employment & Safety alert published in April this year, we reported on the Fair Work Commission’s (Commission) decision in Vosper (see article here).

Commissioner Roe found that the failure by the worker’s new employer in a transfer of business situation, to formally advise the worker in writing that her previous service with the former employer would not be recognised (as permitted by section 384 of the Fair Work Act) meant that the worker could still bring a statutory unfair dismissal claim against the new employer (a small business). This was despite the fact that the worker had only been engaged by the new employer for around two months.

The worker also succeeded in her unfair dismissal claim.

The matter was subsequently appealed by the new employer (the Appeal).

The Commission dismissed the Appeal in a recent decision, finding in part that it was not satisfied there was an arguable case of error in relation to the Commissioner Roe’s findings, nor that it was in the public interest to allow the appeal as required by section 400 of the Fair Work Act.

Conclusion

This decision again highlights the need for new employers in transfer of business situations (involving non associated entities) to carefully consider their arrangements with transferring employees. In order to provide the new employer with time to assess whether the employee is suitable for their role, without the potential threat of an unfair dismissal claim, the new employer should provide an appropriate written notice to the transferring employee advising them that their period of service with the former employer will not be recognised.

For further information, please do not hesitate to contact us.

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