[2013] FWC 668

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Benjamin Hill
Sahir T/A Cafe Moderno at Fountain Gate



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

91 Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave

384 Period of employment

[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,

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.



Both parties represented themselves.

Hearing details:



January 25

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