Rebecca Dolby v Mirrabooka Doctors Surgery T/A Mirrabooka Doctors Surgery

[2018] FWC 4017

[2018] FWC 4017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Dolby
v
Mirrabooka Doctors Surgery T/A Mirrabooka Doctors Surgery
(U2018/4181)

COMMISSIONER PLATT ADELAIDE, 5 JULY 2018

Application for an unfair dismissal remedy – minimum employment period met – jurisdictional objection dismissed.

[1] On 22 April 2018, Ms Rebecca Dolby made an application for a remedy in respect of an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) by her former employer Mirrabooka Doctors Surgery T/A Mirrabooka Doctors Surgery (MDS) on 5 April 2018.

[2] Ms Dolby’s Form F2 application recorded her commencement date with MDS as 6 January 2018.

[3] On 2 May 2018, MDS lodged a Form F3 Employer Response which raised a jurisdictional objection on the basis that Ms Dolby had not met the minimum employment period required by s.383 of the Act. It also raised a jurisdictional objection in relation to the Small Business Fair Dismissal Code. This decision only relates to the objection concerning minimum employment period.

[4] Directions were issued requiring the parties to file written submissions and witness statements – material was received from each party.

[5] On 5 July 2018, a hearing by way of telephone conference was conducted. Ms Dolby represented herself and Mr Paul Spiccia (Director) and Ms April Ratajczak (Practice Manager) represented the Respondent. The hearing was recorded.

[6] In order to be protected from unfair dismissal under s.382 of the Act, Ms Dolby must have been employed by the employer for at least the minimum employment period. It is not disputed that MDS was a small business at the time of the applicant’s dismissal and that therefore the relevant minimum period of employment is a period of at least 12 months. 1

[7] It was not in dispute that the operator of MDS (Spin FX Medical Pty Ltd ATF MedOne Unit Trust) purchased the medical practice from Parklands Medical Group Pty Ltd which was a related entity to Lavington Group Pty Ltd (Lavington). A copy of the sale contract was submitted which identified that the sale was completed on 5 January 2018. The sale contract provided for the assignment of a lease, the acquisition of intellectual property, office furniture and medical equipment.

[8] Prior to the sale, Ms Dolby worked for Lavington as a Medical Receptionist. Her employment was terminated by Lavington by letter dated 8 December 2017 and took effect on 5 January 2018.

[9] Ms Dolby accepted an offer of employment by MDS as a Medical Receptionist dated 12 December 2017. Her employment commenced on 6 January 2018.

[10] The key matter relating to determination of Ms Dolby’s length of service is whether a transfer of business occurred and if the new employer advised Ms Dolby in writing that it would not recognise her prior service with Lavington.

[11] If Ms Dolby’s prior service is required to be recognised then she will easily meet the 12 month minimum employment period, if not then the period will not be met.

[12] Section 22(5) of the Act provides as follows:

“When service with one employer counts as service with another employer

(5)  If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a)  any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b)  the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee's continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee's continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee's service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).”

[13] Section 22(7), (8) of the Act provides as follows;

“Meaning of transfer of employment etc.

(7)  There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer ) if:

(a)  the following conditions are satisfied:

(i)  the employee becomes employed by the second employer not more than 3 months after the termination of the employee's employment with the first employer;

(ii)  the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b)  the following conditions are satisfied:

(i)  the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii)  the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8)  A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.”

[14] As a result of s.22(8) of the Act, for there to be a transfer between Lavington and MDS the requirements of s.22(7)(b) must be satisfied.

[15] There is no doubt that MDS is a national system employer as is Lavington. There is no dispute that MDS and Lavington are not associated entities.

[16] The meaning of transfer of business is contained in s.311 of the Act which provides as follows:

“When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1)  There is a transfer of business from an employer (the old employer ) to another employer (the new employer ) if the following requirements are satisfied:

(a)  the employment of an employee of the old employer has terminated;

(b)  within 3 months after the termination, the employee becomes employed by the new employer;

(c)  the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d)  there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2)  An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3)  There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a)  the old employer or an associated entity of the old employer; and

(b)  the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c)  that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d)  that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

(4)  There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5)  There is a connection between the old employer and the new employer if:

(a)  the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b)  the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6)  There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.”

[17] The facts in this matter are largely agreed.

[18] Ms Dolby had been employed as a Medical Receptionist with Lavington for approximately four years. Ms Dolby’s employment ceased with Lavington on 5 January 2018.

[19] Ms Dolby was subsequently engaged by MDS on 6 January 2018 within three months of her employment ceasing with the former owner.

[20] The duties Ms Dolby performed as a Medical Receptionist for MDS were the same that she had previously been required to perform by Lavington.

[21] Further, there was a connection between Lavington and MDS by way of the assignment of the lease, acquisition of intellectual property and the office furniture and medical equipment as detailed in the sales agreement.

[22] The sole remaining issue is whether or not MDS gave written notice of the information required in s. 384(2)(b)(iii).

[23] At hearing, MDS relied upon paragraph 10 of the contract of employment to contend that it had advised Ms Dolby in writing that the period of service with Lavington should not be recognised for the purposes of this application. The relevant paragraph relied upon by MDS provides, as follows:

“10. Entire agreement

10.1 The terms and conditions referred to in this letter constitute all of the terms and conditions of your employment and replace any prior understanding or agreement between you are the employer.

10.2 The terms and conditions referred to in this letter may only be varied by a written agreement signed by both you and the employer.”

[24] In my view, paragraph 10 deals with the terms and conditions of emploment and does not in any way suggest that the period of service with the former employer would not be recognised.

[25] It is clear that a transfer of business occurred and that the previous service with Lavington must be added to her service with MDS and as a result Ms Dolby has met the 12 month minimum employment period.

[26] I am satisfied that Ms Dolby has completed the required minimum employment period and, therefore, is a person protected from unfair dismissal under s.382 of the Act.

[27] Consequently, the jurisdictional objection is dismissed and an Order 2 to this effect will be issued.

[28] The matter will be referred to a Western Australian member for hearing.

COMMISSIONER

Appearances (Telephone):

Ms R Dolby, the Applicant.

Mr P Spiccia and Ms A Ratajczak, the Respondent.

Hearing details:

2018.

Adelaide:

5 July.

Printed by authority of the Commonwealth Government Printer

<PR608797>

 1 Section 383 of the Fair Work Act 2009.

 2   PR608798.