1
Fair Work Act 2009
s.394—Unfair dismissal
Carmelo Sapienza
v
Cash in Transit Pty Ltd T/A Secure Cash
(U2017/8576)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 NOVEMBER 2017
Application for an unfair dismissal remedy.
[1] Mr Carmelo Sapienza alleged the termination of his employment by Cash in Transit
Pty Ltd trading as Secure Cash was unfair. In his application, he advised that he commenced
employment on 22 November 2016 and his employment ended 18 July 2017.
[2] In the employer response, Cash in Transit stated that his employment commenced on
22 March 2017 and his employment ended on 18 July 2017. Further, it said it was a small
business.
[3] Despite directions being issued neither party filed any material. On 9 October 2017 I
caused to be sent to Cash in Transit an email which noted that no material had been filed to
support its claim that it was a small business. In that email I set out the relevant provisions of
the Act and drew Cash in Transit’s attention to s.23 of the Fair Work Act 2009 which defines
a small business and s.50AAA of the Corporations Law which defines associated entities. In
accordance with Commission practice this email was also sent to Mr Sapienza.
[4] On 10 October 2017, Cash in Transit advised that it no longer pressed its objection
based on it being a small business but maintained its objection that Mr Sapienza had not met
the minimum employment period.
[5] On 11 October 2017, I caused to be sent to Mr Sapienza an email advising him of the
qualifying period of six months for employees to bring an unfair dismissal application. I noted
the conflict in the evidence and asked him to provide evidence that he commenced
employment on 22 November 2017. I provided Mr Sapienza with an extract of s.22 of the Act
and directed him to the Unfair Dismissal Bench book for further information. In accordance
with Commission practice this email was also sent to Cash in Transit.
[6] The matter was listed for a telephone hearing on 13 October 2017.
[7] At that hearing, Mr Bacchus said that West Coast Cash Exports Pty Ltd was
subcontracted to perform work for them in Western Australia. West Coast Cash was not an
[2017] FWC 5939
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 5939
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associated entity of Cash in Transit. West Coast Cash’s owner was having financial
difficulties and was intending leaving the country so Cash in Transit made a decision to
perform the work itself. Employees of West Coast Cash were told that they could apply for
work with Cash in Transit and Mr Sapienza made such an application. Mr Bacchus said that
there was no transfer of any assets from West Coast Cash to Cash in Transit. They were not
assigned any contracts from West Coast Cash.
[8] Mr Sapienza said he was not aware that that the companies were separate entities. At
the hearing, when asked what name appeared on his pay slip he was not able to answer the
question because he did not have his paperwork with him. He said that he was having
difficulty getting paid on time by West Coast Cash and he was told by his supervisor that his
pay would be coming out of head office in Adelaide. He said when he applied for work with
Cash in Transit he filled in an induction form but was not required to complete all the
paperwork as he only needed to complete his personal details including his banking details.
[9] As a result, I issued further directions to the parties to file material about whether there
had been a transfer of business. I directed the parties to s.311(1) and (5) of the Act and also
directed them to the decision of the Commission in Burdziejko v ERGT Australia Pty Ltd.1
[10] Mr Sapienza filed material in which he advised that he commenced employment with
West Coast Cash Escorts Pty Ltd which was based in Perth but had a post office box in
Adelaide. The information provided to him by West Coast Cash advised that clients are
contracted to Cash in Transit Pty Ltd trading as Secure Cash and that Cash Logistics Pty Ltd
is the agent appointed by Secure Cash to manage and allocate contractors for these clients and
the clients had been allocated to West Coast Cash.
[11] Mr Sapienza said that he worked from home and received information about his daily
schedule via email or text.
[12] Cash in Transit advised that there was no transfer of employment and that Mr
Sapienza commenced new employment with them on 20 March 2017.
[13] Neither party addressed the issue of whether there was a transfer of business.
[14] As a consequence, I caused a further email to be sent to the parties. Attached to that
email was a set of facts prepared by me as a result of the hearing. I asked the parties to advise
if they did not agree with the facts and if they did, to provide evidence to support their facts.
Neither party advised of any objection to the facts. I sought further submissions on whether
there was a transfer of business. Again, no party filed any further submissions. I advised that
if there were no disputed facts or further submissions I would make a decision based on the
material before me.
1 [2015] FWC 2308
[2017] FWC 5939
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Facts not in dispute
1. Mr Sapienza commenced employment with West Coast Cash Escorts Pty Ltd on
23 November 2016.
2. West Coast Cash was contracted by Cash in Transit Pty Ltd to perform work for it
in Western Australia.
3. Clients are contracted to Cash in Transit Pty Ltd trading as Secure Cash and Cash
Logistics Pty Ltd is the agent appointed by Secure Cash to manage and allocate
contractors for these clients and the clients had been allocated to West Coast Cash.
4. The owner of West Coast Cash decided that he no longer wished to perform work
for Cash in Transit and as a consequence Cash in Transit decided to perform the
work itself and directly engage employees to perform the work.
5. West Coast Cash and Cash in Transit have the same post office box address.
6. West Coast Cash and Cash in Transit are not associated entities.
7. Cash in Transit was not assigned any contracts of West Coast Cash.
8. Cash in Transit did not have the use of any assets of West Coast Cash after West
Coast Cash ceased providing services to Cash in Transit.
9. Employees of West Coast Cash were advised that they could apply for work with
Cash in Transit.
10. Mr Sapienza did apply for work but was not required to complete the full
induction. He was only required to complete that part of the induction that
provided his personal details including his banking details.
11. Mr Sapienza commenced employment with Cash in Transit on 20 March 2017.
[15] An employee is required to have served six months (one year if employed by a small
business) employment to be protected from unfair dismissal.
[16] S.22 of the Act provides for service with a predecessor employer to count as service in
certain circumstances:
“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
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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.
….
(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.”
[17] S.311 of the Act defines a transfer of business as follows:
311 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;
[2017] FWC 5939
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(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
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(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.”
[18] I am satisfied that Mr Sapienza’s employment with West Coast Cash (the old
employer) was terminated and I am satisfied that Mr Sapienza was employed by Cash in
Transit (the new employer) within three months of that transfer. I am satisfied that the work
performed by Mr Sapienza for the new employer is the same or substantially the same as the
work Mr Sapienza performed for West Coast Cash.
[19] The question that needs to be determined is whether there is a connection between
West Coast Cash and Cash in Transit.
[20] I am satisfied that Cash in Transit does not own or has the beneficial use of some or all
of the assets (whether tangible or intangible) of West Coast Cash.
[21] I am satisfied that West Coast Cash did not outsource the work to Cash in Transit.
[22] However I am satisfied that Cash in Transit had outsourced its work to West Coast
Cash. This is supported by the agreed fact number 2 and the evidence of Mr Bacchus and the
contract between Mr Sapienza and West Coast Cash. I am satisfied that the transferring work
performed by Mr Sapienza as an employee of Cash in Transit occurred because Cash in
Transit decided to cease outsourcing the work to West Coast Cash.
[23] There was no evidence that, prior to commencing employment with Cash in Transit,
Mr Sapienza was provided with written advice that his service with West Coast Cash would
not count as service with Cash in Transit.2
[24] I am therefore satisfied that Mr Sapienza’s service with West Coast Cash counts a
service with Cash in Transit and hence Mr Sapienza was employed for the minimum period of
employment at the date of his dismissal. For these reasons the jurisdictional objection is
dismissed and Mr Sapienza’s application for an unfair dismissal remedy can be determined.
DEPUTY PRESIDENT
2 S.384(2)(b)
WORK R WON MAMISSION THE AUSTRALIA THE SEALOF
[2017] FWC 5939
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Appearances:
C Sapienza on his own behalf.
D. Bacchus for the Respondent.
Hearing details:
2017.
Melbourne, Perth and Adelaide: by telephone link.
October 27.
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Price code C, PR597661
