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Transfer of a Business - Entitled to a Redundancy Payout?

Discussion in 'Employment Law Forum' started by Shelby, 8 July 2014.

  1. Shelby

    Shelby Member

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    Hi,

    I am really interested in getting some advice of my complicated situation.

    I currently work for an organisation which lost a contract faith in the health services department. This contract was then obtained by a new employer, in which is taking over the contract. Our old business is folding and all our employee contracts were to be transferred over to the new company.

    I had been with the old company for 2.5years on a permanent contract and am 30weeks pregnant so was due to finish working with them in 5 weeks time. When I had a meeting with the new employer they initially offered me a casual contract due to convenience that it was finishing up in 5 weeks due to maternity and they assumed I wasn't doing back to work.

    I questioned this with my current employer and said it would of been good to get a heads up as initially I was a bit surprised, she agreed that it was convenient for my circumstances. I advised her I would check my final leave entitlements.

    I spoke with Fair Work Australia and advised the situation and they said two things;
    Firstly, because even though I was offered the same role, but not the same contract (going from full time permanent to contract) that I would be entitled to redundancy pay as it is not the same employment status.

    Secondly, I could make a complaint if I wished as I had been discriminated by giving me the contract due to my circumstances.

    When I explained this to my current employer, they were not amused as they didn't expect to pay this and felt that this was the new employers fault, even thought this had initially been agreed between the both of them. My new employer has contacted the old employer and explained the situation and now they are trying to give me the option of a permanent contract, which presumably so, so that I will not get redundancy pay at all.

    When I spoke to fairwork this morning, the answer I got was pretty much, well yes you. Won't be entitled to any redundancy payout now as you have been offered this optional contract. But when I initially spoke with them, they said first that regardless none the less I would be entitled to redundancy because the initial contract I was offered was casual.

    Please can someone advise, what am I entitled to? I'm very upset and frustrated about the whole situation, just want to make sure I'm not being scammed out of money owed.

    Thanks
     
  2. Rod

    Rod Well-Known Member

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    If your employment is being continued over to the new company and your period of employment with your new employer includes the period with your old employer then you are not missing out on anything as far as redundancy is concerned because your new employer then becomes liable for any future redundancy that includes time with your old employer.

    But get it in writing!
     
  3. Shelby

    Shelby Member

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    Hi rod,

    Thank you so much for your helpful reply. I have been so keen for a response.

    The new company made it very clear to me in our meeting, that they they did not buy the company so they were not taking over it per say, they'd were just taking over the new contract with the hospital for our department through tender.

    Hence, with this, our company is having to pay us out all of our annual leave, leave loading entitlements, etc as this will not be being carried forth over to the new company. New company, clean slate. So any holidays, sick or anything is being carried over.

    Hence why if I was on there permanent contract, I wouldn't be offered there company maternity program pay as, new company, clean slate. He made it clear to me in our meeting that I would not be entitled to any of their company maternity pay, only apart from the unpaid maternity leave as I have not been with THEM FOR 12 months, even tho I had been with my old company who they took over 2.5 years.

    This is why I accepted their casual contract, but with me doing so I thought I would have been entitled to my redundancy pay from my old employer because effectively they folded and are paying us out our entitlements?!? But as fairwork have secondhandly advised, that because they initially offered me the casual contract which was completely different to my old permanent contract, I WOULD be entitled to my redundancy pay none the less, however on my second call, I was advised because they have offered me the permanent contract (because my old company called them annoyed as they didn't want to pay me my redundancy pay ) that I wouldn't be, because they have got their get out of jail card by offering me this.

    I just have no idea, now I feel like I lost something I was entitled to? Or am I still entitled to it, as I said, nothing of our status is going over at all to the new company, just the pays and leave loading, etc but apart from that, long service level etc, nope.
     
  4. Rod

    Rod Well-Known Member

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    Needs a better expert than me to answer your query. I'd have thought it was 'transfer all entitlements or none' but I have no basis for that reasoning. The Fair Work Ombudsman is the best source of info.
     

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