Pui Ling Jor v MSY Computer Discount Centre Pty Ltd
[2023] FWC 438
•22 FEBRUARY 2023
| [2023] FWC 438 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kai Hong Yuen; Pui Ling Jor
v
MSY Computer Discount Centre Pty Ltd
(U2022/12247; U2022/12255)
| COMMISSIONER MCKINNON | SYDNEY, 22 FEBRUARY 2023 |
Application for an unfair dismissal remedy – whether dismissed
Mr Kai Hong Yuen and Ms Pui Ling Jor were employed by MSY Technology Pty Ltd – in the case of Mr Yuen, from February 2019 and in the case of Ms Jor, from 20 December 2021. In June 2022, the business of MSY Technology transferred to MSY Computer Discount Centre Pty Ltd (MSY CDC), along with the employment of Mr Yuen and Ms Jor.
For the same reasons and in the same circumstances, the employment of Mr Yuen and Ms Jor ceased with effect from 10 December 2022. On 23 December 2022, Mr Yuen and Ms Jor applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). MSY CDC objects to the application on the basis that Mr Yuen and Ms Jor were not dismissed.
A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed.[1] Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.[2] This requires analysis as to whether there has been a termination of the employment relationship at the initiative of the employer for the purpose of section 386(1)(a).[3]
Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. It requires that the action of the employer be the principal contributing factor which led to termination of the employment relationship.[4]
The question is whether Mr Yuen and Ms Jor were dismissed.
I have found that Mr Yuen and Ms Jor were dismissed from their employment with MSY CDC. These are my reasons.
Were the employees dismissed?
On 18 November 2022, Mr Yuen was told that MSY CDC’s Fyshwick store, which he managed, needed to complete a full and accurate stock check as soon as possible as the owner of MSY CDC, Mr Andrew Shiau, would be doing a store inspection for all stores.
On a date between 18 and 25 November 2022, Mr Shiau and Mr Soon Yiap, the General Manager of MSY CDC, sent an email to all MSY stores reminding all staff to be punctual and to ensure that all stores were clean and tidy, with all products neat and in order.
On 25 November 2022, Mr Evan Casey, Chief Operating Officer of “Umart”, sent an introduction email to all MSY CDC store managers about an impending business “partnership” between MSY CDC and Umart. The email acknowledged that employees may have concerns and assured them that no employee would lose their role as part of the change. It invited them to raise any queries either through a feedback link or directly with “Peter”, the owner of Umart, or Mr Casey.
On 1 December 2022, Umart sent Mr Yuen and Ms Jor an email to arrange for their “onboarding” to Umart Holding Employment Pty Ltd, including through the signing of a new contract of employment.
On 2 and 3 December 2022, two Umart employees attended MSY CDC’s Fyshwick store to do a full stock check. They explained that Umart had bought MSY CDC from Mr Shiau and that Umart would manage the business in the future.
Between 4 and 8 December 2022, Mr Yuen and Ms Jor went through the new employment contract from Umart. They became concerned that the proposed terms and conditions of employment were unfair and less favourable than the arrangements they currently had in place. They sent an email to Mr Casey with their questions and concerns. They also did some research about their situation on the Fair Work Ombudsman’s website and made direct inquiries with the Ombudsman.
On the evening of 6 December 2022, Mr Casey replied to Mr Yuen and Ms Jor by email to advise that Umart would not force them to sign the proposed agreements. If they chose not to sign the contracts, they would not be offered employment with Umart and would need to speak to Mr Shiau about what that meant for their employment. As the change of ownership was due to take effect on 10 December 2022, they were advised that they would need to sign the documents before then to become employed by Umart.
On 7 and 8 December 2022, Mr Yuen contacted Mr Yiap and Jerry, the NSW State Manager of MSY CDC over the phone. He asked what the arrangement would be if they did not sign the agreements proposed by Umart. He was told that Mr Shiau had sold the whole business to Umart and the change in ownership was to be completed on 10 December 2022. This would be their last working day for MSY CDC, and they would be paid by MSY CDC until this date. MSY employees who had signed the new agreements would work for Umart on and from 12 December 2022. Those who did not sign the new agreements for whatever reason would be considered to have resigned from their employment and lose their jobs after 10 December 2022. Mr Yuen advised MSY CDC that this was not reasonable as neither he nor Ms Jor had resigned, and they could not be forced to resign.
On 9 December 2022, Mr Yuen emailed Mr Casey to advise that neither he nor Ms Jor would be signing the new contract and confidentiality agreement with Umart. He separately sent an email to Mr Shiau, on the advice of the Fair Work Ombudsman, confirming that neither he nor Ms Jor had resigned and seeking written notice of termination or payment instead of notice, as well as payment of accrued annual leave and redundancy pay. There was no response to this email.
The employment of Mr Yuen and Ms Jor ceased on 10 December 2022, which was their last working day.
Conclusion
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.
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.
For these reasons, I find that Mr Yuen and Ms Jor were dismissed by MSY CDC on 10 December 2022.
Disposition
The jurisdictional objection is dismissed. Directions will issue separately in relation to the further programming of the matter.
COMMISSIONER
Appearances:
K Yuen and P Jor on their own behalf.
S Yiap for the respondent.
Hearing details:
2022.
Sydney (by video):
February 22.
[1] Fair Work Act 2009 (Cth), s 385(a).
[2] Fair Work Act 2009 (Cth), s 386.
[3] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162.
[4] Ibid.
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