The Commissioner found that while the worker’s employment with the original franchise owner may have ended on 31 January, there was insufficient evidence to establish that she became employed by the new owner afterwards.
Importance of employment documentation after sale
The Commissioner noted that the worker’s argument contradicted the secondment agreement she had signed, which explicitly maintained her employment with the original franchise owner, not the new owner.
“The contention that [the worker] was ever employed by [the employer] is of course contradictory to how [the worker] likely regarded the effect of the signed secondment agreement. In any event the evidence that [the worker] was ever employed by [the employer] is entirely circumstantial,” the Commissioner stated.
The Commissioner found no formal evidence of an employment offer from the new owner, explaining: “Unfortunately for [the worker], there is no formal or documentary evidence of [the employer] having offered her employment at any time. There are no statements on the part of [the manager] or [the area manager] that could reasonably be construed as an offer capable of acceptance.”
The FWC concluded: “I am not satisfied that the test within s.311(1)(b) for establishment of [the worker] as a transferring employee, namely that ‘within 3 months after the termination, the employee becomes employed by the new employer’ has been enlivened.”
