s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy. Jurisdictional objections - applicant not an employee; not completed minimum employment period; no dismissal. Consideration of transfer of business provisions. Jurisdiction not found. Application dismissed.

• [1] Ms Patrycja Kupiec claims she has been unfairly dismissed by Australian Skin Clinics Knox Pty Ltd (ASC Knox), which in turn objects that it never employed her and that consequently there can be no consideration of an unfair dismissal. This decision determines the named Respondent's objection that Ms Kupiec was never employed by it, that she had not been employed for the minimum employment period and that she consequently has not been dismissed by it.

• [2] Australian Skin Clinics is a franchise business providing various cosmetic procedures and other treatments to customers of its franchisees. One of the franchise outlets is at the Westfield Knox shopping centre.

• [3] Until recently the Knox franchise was operated by Shariff Investments, the principal of which is Ray Shariff.

• [4] Ms Kupiec was employed by Shariff Investments on 28 November 2023 to work at the Westfield Knox Australian Skin Clinics' franchise as its clinic manager. She continued in that position until early 2025 when the entity operating the franchise changed to the Respondent in this matter, ASC Knox. The circumstances of the change and implications for Ms Kupiec's employment are matters in dispute in these proceedings.

• [5] Ms Kupiec's application was the subject of a hearing before me on Monday, 7 April 2025. Ms Kupiec attended and gave evidence on her own behalf, with her husband, Mr Patrick Kupiec as her representative. Mr Ben Cohen, solicitor, appeared with permission for ASC Knox. Mr Michael Bronfman, the Director of ASC Knox, gave evidence on behalf of his company, as did Ms Kaitlyn Bullen, a Clinic Manager for ASC Knox.

• [6] After consideration of the evidence and materials provided by each party, I find that Ms Kupiec was not employed by ASC Knox and that her application must be dismissed.

• [7] After hearing the parties' submissions on the matter of representation, I determined that a grant of permission was appropriate for the Respondent's representative, having regard to the potential unfairness that may arise if the Respondent was not represented. My decision in this regard took into account, not only the provisions of s.596(2) of the Act, under which the application for representation was made, but also the reasoning of the Full Bench in ERGT Australia v Mr Kevin Govender, in which it was said;

"[48] The assessment of whether permission should be granted under s 596 involves a twostep process. The first step is to consider whether one or more of the criteria in s596(2) is satisfied. The consideration required by this first step 'involves the making of an evaluative judgment akin to the exercise of a discretion'. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission."[1]

• [8] In this regard, I was satisfied that s.596(2)(a) had been enlivened ("it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter") as well as being satisfied that the Commission's discretion should be exercised in favour of the Respondent.

• [9] The context of the matter to be determined by the Commission is of a rushed takeover of a failing franchise operator, with inadequate consideration being given by either the franchisor, the outgoing franchisee or the incoming franchisee to the status of employees employed by the outgoing franchisee.

• [10] In early 2025, the trading circumstances of the Knox ASC franchise necessitated intervention by the Australian Skin Clinics franchisor, with an approach being made by the franchisor to Michael Bronfman, an existing franchisee, to replace Shariff Investments and acquire and operate the Westfield Knox clinic.[2]

• [11] Mr Bronfman agreed and took over the franchise, with the transaction structured as a business and asset sale. The arrangement was not a share sale, with ASC Knox acquiring only specified assets and, it says "not the transfer of employees or liabilities". According to ASC Knox, the contract of sale required the vendor to terminate the employment of all employees and "to satisfy all liabilities associated with the employees".[3]

• [12] The contract itself specifies that the outgoing franchisee, Shariff Investments, "agrees to sell and the Purchaser agrees to buy the Business and the Business Assets for the Price, as a going concern on the terms set out in this Contract", as well as providing that Shariff Investments "acknowledges and warrants that, prior to the completion of this business and asset sale transaction, it has terminated all of its employees and has duly paid all statutory entitlements and other amounts owed to those employees in accordance with Australian law".[4]

• [13] The principal of the incoming franchisee, Michael Bronfman first entered the premises at Westfield Knox on Thursday, 30 January 2025, not as an owner but as a prospective proprietor. By the following Monday, 3 February 2025 his company ASC Knox had acquired and was operating the franchise.

• [14] Mr Shariff told his staff on Friday, 31 January 2025 that his company no longer operated the franchise. Ms Kupiec says that Mr Shariff told her on 31 January that "the business is sold, from tomorrow you have a new owner, and I'm not involved anymore".[5] Ms Kupiec does not assert that when Mr Shariff said these words to her that he also said her employment was terminated on that day.

• [15] That same day, Mr Shariff also handed his keys for the Knox premises to Ms Kupiec and removed the Shariff Investments POS terminals from the premises.[6] ASC Knox says that it installed its own POS terminals on 1 February 2025.[7]

• [16] Ms Kupiec and Ms Bullen recollect that Shariff Investments existed the franchise on 31 January 2025, even though the contract of sale was not executed until 3 February 2025.

• [17] Mr Bronfman's evidence is that, although he "assumed operational control of the premises on 1 February, this was a temporary, transitional measure until formal settlement occurred on 4 February".[8] The contract of sale was signed by Mr Shariff at 4:01 PM on Monday, 3 February 2025 and by Mr Bronfman the same day at 4:51 PM.

• [18] Ms Kupiec was rostered to work on Saturday, 1 February 2025 as part of her longstanding arrangements with Shariff Investments. She was rostered off on Sunday and Monday.[9]

• [19] On Saturday, 1 February 2025 Ms Kupiec went to the Australian Skin Clinics premises at Westfield Knox and at about 9 AM and opened the store with the keys she had been given by Mr Shariff. Another staff member attended shortly after, as did Ms Bullen, who describes herself as Mr Bronfman's "area manager".[10] Ms Bullen says she came into the clinic on 1 February 2025 at about 9 AM and that when she arrived two other staff members were already there.[11]

• [20] Payment to Ms Kupiec of the work she performed on 1 February 2025 was made by the franchisor, Australian Skin Clinics, and not by either ASC Knox or Shariff Investments. Mr Bronfman says about this situation;

"4.1. On 1 February 2025, I became aware that the Applicant had attended the clinic and worked a full day.

4.2. I had not scheduled her, nor had I authorised her to attend.

4.3. The rosters were still being managed by Shariff Investments at that time, using their legacy systems.

4.4. I had no visibility over those systems and did not know she was working.

4.5. Following this, the Franchisor instructed that she be paid for the day. I understand that payment was made accordingly. ASC Knox did not process this payment directly."[12]

• [21] Mr Bronfman's evidence above, that he did not know Ms Kupiec was working on Saturday 1 February 2025, is contrary to his own oral evidence that he interacted with Ms Kupiec on that day, when they were both in the premises.[13]

• [22] During Saturday 1 February 2025, staff of Shariff Investments were offered a "secondment agreement", which ostensibly would have them work at the Knox premises, after it began to be operated by ASC Knox, for a period of up to four weeks, but continue to be employed by Shariff Investments. Ms Kupiec signed her version of the secondment agreement. The terms of the secondment agreement and its offering to employees is contrary to the terms of the contract of sale, referred to above, placing a condition on Shariff Investments to terminate the employment of its employees "prior to the completion of this business and asset sale transaction".[14]

• [23] In the course of 1 February 2025, Ms Kupiec was asked by Mr Bronfman to read and sign a copy of the secondment agreement, and to circulate it to other staff members. There is a dispute between the two about how and when this occurred, however it is not necessary for me to resolve the dispute.

• [24] The following matters on the subject of the secondment agreement are not in dispute.

• Mr Bronfman states that in order to assist with continuity "the Franchisor proposed a Secondment Agreement arrangement whereby certain employees of Shariff could be seconded to ASC Knox temporarily". Ms Kupiec was shown a copy of the proposed agreement by Mr Bronfman and did not read beyond the first paragraph. She was uncomfortable in signing the document, however eventually did so.

• Mr Bronfman asked Ms Kupiec to send the document to other staff members. Ms Kupiec was cautious about doing so as she perceived it was in the voice of Mr Shariff and she wanted to ensure he authorised it to be sent. She sought advice from Mr Shariff who consented for the proposed agreement to be forwarded and she did so.

• [25] The email as sent by Ms Kupiec on Saturday 1 February 2025 at 2:15 PM and then again at 3:06 PM is in these terms;

Please read the pdf below and respond to this email acknowledging that you've read this and sign the pdf .

Please try to respond by the end of today and sent Signed PDF back to me by responding to this email.

Shop 1032-3, Westfield Knox City, 425 Burwood Hwy, Wantirna South, VIC 3152"[15]

• [26] Ms Kupiec signed and returned her copy of the secondment agreement on Saturday, 1 February 2025 at 4:56 PM by email to the "Australian Skin Clinics Knox City" email address. The document she returned included an attachment in these terms;

As you may have heard, Ray has sold the business to a new owner. This change is effective immediately (1st of February 2025). As part of the transition, you will be on a secondment as per below terms:

o Duration: Your secondment will commence on 1 February 2025 and continue for up to four (4) weeks, unless ended earlier by the Vendor (SHARIFF INVESTMENTS PTY LTD ACN 630 126 368) in its absolute discretion.

o Employment Relationship: You will remain an employee of Vendor's company throughout the secondment. The secondment does not create any employment relationship between you and AUSTRALIAN SKIN CLINICS KNOX PTY LTD ACN 683 929 277.

o Duties & Supervision: During the secondment, you will report to and take day-to-day direction from the representatives of AUSTRALIAN SKIN CLINICS KNOX PTY LTD ACN 683 929 277. However, your overall terms and conditions of employment, including the duties you are expected to perform, remain unchanged.

o Termination of Secondment: The Vendor's company reserves the right to end the secondment at any time, at its absolute discretion.

o No Obligation for Continued Employment: This secondment does not guarantee any continued employment with AUSTRALIAN SKIN CLINICS KNOX PTY LTD ACN 683 929 277 following the secondment period.

• [27] Despite having signed the document, Ms Kupiec was informed by Ms Bullen and Mr Bronfman on 3 February 2025 both that her employment had been terminated by Shariff Investments and that the secondment agreement would not apply to her. Mr Cohen, ASC Knox's solicitor, submits the changed status of the secondment agreement was something required in negotiations by Shariff Investment's financial advisers while finalising the contract of sale.[17]

• [28] The Applicant's case is based on an argument that she was employed by ASC Knox on 1 February 2025 and that there had been a transfer of business, meaning that her prior service with Shariff Investments is counted for the purposes of determination of the minimum employment period. Ms Kupiec then argues she was dismissed by ASC Knox with effect from 3 February 2025.[18]

• [29] Because of Shariff Investment's removal of its POS terminals on 31 January 2025 and its other actions, and because the sale contract had not been finalised with ASC Knox, the franchisor was likely left with the difficult question of who would run the clinic in the meantime. That task appears to have fallen to ASC Knox, even though there appears to be no contractual requirement for that to occur.

• [30] That is, the Knox clinic appears to have been operated by ASC Knox on Saturday 1 February 2025 and Monday 3 February 2025, without a formal requirement that it do so. The reasons why this was done are obvious: no franchisor would want its store front in a major shopping centre closed, even for one day. All hands would have been directed to the pumps to make sure the business, as seen by customers, remained afloat.

• [31] The "hands" though were not just Mr Bronfman or his Clinic Manager, Ms Bullen: instead they included Ms Kupiec and other people who likely had worked for Shariff Investments.

• [32] This situation comes directly to the question of who employed Ms Kupiec after 31 January 2025?

• [33] ASC Knox argue there has been no transfer of business and that a finding that there was a transfer is a prerequisite for determination of the questions of jurisdiction: was Ms Kupiec employed; was she dismissed; and has she completed the minimum employment period?

• [34] While the evidence leans toward there being a transfer of business, it is not necessary for me to finally determine the subject as I am not satisfied Ms Kupiec was ever employed by ASC Knox. In turn, that also means it is not necessary to consider the questions of whether Ms Kupiec was dismissed by ASC Knox or whether she had completed the minimum employment period.

• [35] Relevant to consideration of these matters are the provisions of the Fair Work Act 2009's (FW Act) s.22 (Meanings of service and continuous service) and s.311 (When does a transfer of business occur). Because of the findings I make about s.311, it is unnecessary to set out in this decision the provisions of s.22. Section 311 is in these terms;

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).

(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;

(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.

(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.

• [36] The critical question is whether Ms Kupiec can be found to be a "transferring employee"; a term which is defined by s.311(2) as being an employee in relation to whom ss.311(1)(a), (b) and (c) are satisfied.

• [37] However, for there to be a transfer of business, those provisions and the further requirement of s.311(d) must be met. That section deals with the matter of any connection between the old employer and the new employer, with ss.311(3) - (6) setting out a variety of different connections.

• [38] Because of the terms of s.311(1) there cannot be a transfer of business unless each of the four subsections therein are satisfied, ss.311(1)(a), (b), (c) and (d).

• [39] Likely s.311(1)(a) is satisfied, dealing with Ms Kupiec's termination of employment by the old employer (Shariff Investments), although I consider there to be some doubt about the subject.

• [40] More fundamentally I am not satisfied of s.311(1)(b) which requires Ms Kupiec to be employed by the new employer (ASC Knox) within three months after termination by the old employer. Because I am not satisfied of s.311(1)(b), it is unnecessary to consider the other elements of s.311.

• [41] The evidence of Ms Kupiec's termination of employment comes first from her, and second from ASC Knox's documents.

• [42] For her part, Ms Kupiec says she was dismissed by Mr Shariff on Friday 31 January 2025, while her application form states she was told about her dismissal on Monday 3 February 2025, with the dismissal taking effect the same day. Her witness statement puts forward on the subject;

"18. On 30 and 31 January, Mr Shariff provided very little information about the change of ownership of the clinic. Mr Shariff called the Applicant shortly before the end of her shift on 30 January advising her that he is "selling the business" and "can't say any more than that". On 31 January, Mr Shariff attended the clinic to drop-off his keys to the clinic and to collect his point of sale (POS) terminals. Mr Shariff said "the business is sold, from tomorrow you have a new owner, and I'm not involved anymore". He thanked the Applicant and staff present and said "bye". The Applicant understands that although Mr Shariff was not making representations on behalf of the Respondent, the representations made by Mr Shariff were consistent with those of Respondent - namely, from 1 February the Applicant will be working for the Respondent, and that the Applicant's employment with Shariff was ending as of that day (31 January)".[19]

• [43] This was followed by a WhatsApp message from Mr Shariff to the clinic's staff on Saturday at 9:34 AM which stated:

All staff wages and annual leave processed and paid up until 31 January 2025. Additionally, all staff superannuation has been completed from my end.

I appreciate your support, effort, and dedication throughout this transition.

• [44] Ms Kupiec also refers in her evidence to a phone conversation she had with Mr Shariff on Saturday, 1 February 2025. The phone call was to seek Mr Shariff's authorisation to send an email to clinic staff about the secondment agreement "on behalf of Mr Shariff". Ms Kupiec's conversation with Mr Shariff took place before 1:16 PM (when the latter responded by email affirming his consent) and about which Ms Kupiec gives this evidence;

"... initially Mr Shariff expressed displeasure with the Respondent wanting to put his name on something that he doesn't know anything about, and also dragging him into a staffing issue when it's no longer his business. Mr Shariff agreed to the Respondent's request having not seen the secondment document, saying "I just want to put the clinic behind me as quickly as possible" and he mentioned preserving his mental health".[21]

• [45] Ms Kupiec's oral evidence about the phone call includes she was instructed to obtain Mr Shariff's consent to send the email on his behalf by Mr Bronfman, as she did not want to send the email on his behalf without his express consent.[22] Upon ringing Mr Shariff, he then gave his express consent to send the email to all the staff.[23]

• [46] Upon obtaining Mr Shariff's consent, two emails were sent by Ms Kupiec to clinic staff (including herself) on the subject at 2:15 PM and again at 3:06 PM. The correspondence was something Mr Bronfman plainly wanted sent. Ms Kupiec signed and returned her copy of the secondment agreement later the same day, at about 4:56 PM.

• [47] However the secondment agreement applying to Ms Kupiec, offered by Shariff Investments and accepted by her, did not last long, with Ms Kupiec first being told by ASC Knox that Shariff Investments had terminated her employment (having the effect of the secondment agreement no longer being available to her) and second being told by ASC Knox that in fact her employer, Shariff Investments, had terminated her services with effect from 31 January and that the secondment agreement was not applicable in her case.

• [48] On Monday, 3 February 2025 at 2:31 PM, Ms Bullen sent Ms Kupiec a letter stating she had been advised Ms Kupiec's employment with Shariff Investments had been terminated, the secondment arrangement was no longer available to her;

I wanted to personally reach out regarding the transition of ASC KNOX following our recent purchase of the business, which occurred yesterday 03 February 2025.

As you may be aware from my previous correspondence, we had negotiated an arrangement with Ray (sic) Investments Pty Ltd (your Employer) to second some existing staff, including yourself, for up to four weeks following completion.

However, we have now been advised that your Employer terminated your employment as of 31 January 2025.

Unfortunately, this means that the secondment arrangement is no longer available.

We understand this may be disappointing news, and we appreciate the time and effort you have dedicated to the clinic.

Please note that we have not entered into any employment agreements with you and as such, there is no ongoing employment relationship between us.

We sincerely thank you for your contributions and wish you all the very best in your future endeavours.

If there is anything further you need from us in relation to this transition, please feel free to reach out.

• [49] The basis on which Ms Bullen had been advised Ms Kupiec's employer had terminated her employment "as of" 31 January 2025 is unclear.

• [50] Later the same day, on Monday 3 February 2025 at 7:14 PM, Mr Bronfman also sent Ms Kupiec a letter dealing with the same subjects. The letter did two things: ostensibly terminating Ms Kupiec's employment on behalf of Shariff Investments with effect from 3 February 2025, and advising that the previously notified Secondment Agreement would no longer be available. Mr Bronfman's letter to Ms Kupiec was in these terms;

I am writing to inform you that, effective immediately (03/02/2025), Ray has made the decision to terminate your contract with Shariff Investments Pty LTD ACN 630 126 368 therefore paid out your entitlements. As the new owner (Australian Skin Clinics Knox pty ltd ACN 683 929 277) we regret to inform you that the secondment is not applicable in this case. While we acknowledge the contributions you have made during your time with us, this decision has been finalised, and we will be proceeding accordingly.

We would like to take this opportunity to wish you all the best in your future endeavours and success in your career. Should you need any assistance with the transition, please feel free to reach out.

Thank you again for your time and efforts at Shariff Investments Pty LTD ACN 630 126 368.

• [51] Ms Kupiec seeks to move around these notifications with a submission that she had been employed by ASC Knox, with effect from 1 February 2025. In particular, she puts forward that Ms Bullen's WhatsApp and text messages and other conduct should be regarded as employment offers by ASC Knox. In particular she refers to;

• a request from Ms Bullen on Friday 31 January 2025 for the addresses of the clinic's staff, which confirmed the request as being for "everyone's addresses for the contract"; and

• an introductory message from Ms Bullen on Saturday, 1 February 2025 at 11:47 AM which was in these terms;

Just wanted to make a new WhatsApp group as we want to start fresh with Knox and put the past behind us!

Michael is your new franchisee owner who also owns Eastland as well as will be expanding to more clinics in the near future. I have been in the industry for 6 years now and with ASC for 5 of those. I have previously worked with Chadstone and just came from managing Eastland clinic where I was also an MTA to train all of the team in treatments. I am Michael's area manager so I support him with all of his businesses and clinics.

I am here to support him and all of you girls in this transition period. We want to improve things and grow the business to the best of our ability which we will need all of your support in doing!

If you need absolutely anything my door is always open, you all have my number now and I'm available for you to message or contact. Any questions please do not hesitate to ask.

Again, I am here to support all of you in any way I can so please reach out to me if there's anything you are needing. I will be coming in the rooms later next week to help with any training that you girls need.

We both are really looking forward to working with all of you"[26]

• [52] Ms Kupiec says about this communication and other circumstances that they establish her as an employee of ASC Knox on 1 February 2025;

"22. ...these statements can be reasonably understood to be referring the period beyond the transition period and involving all persons to whom the message is addressed (including the Applicant). Also, in the message, Ms Bullen introduces herself as the 'area manager' (as distinct from clinic manager) with responsibility across multiple clinics - the Applicant notes that Ms Bullen did not introduce herself as the 'clinic manager' which was still the Applicant's role on 1 February.

23. Mr Bronfman reacted/responded to Ms Bullen's WhatsApp message with a love-heart emoji, indicating his 'love' of the message. This demonstrates Mr Bronfman's subsequent ratification of and agreement with Ms Bullen's message, and contradicts his characterisation that it wasn't authorised and it was sent without his knowledge.

24. Contrary to the Respondent's submission, both Ms Bullen and Mr Bronfman saw the Applicant at the clinic and therefore knew she was working in her role as clinic manager from approx. 9:15am and 9:45am respectively on 1 February. Not only did both representatives know this, they both (in the interest of business continuity) relied on the Applicant to perform her usual duties and responsibilities as clinic manager on 1 February, because nobody else was managing the clinic. Ms Bullen was continuing her familiarisation and set up activities as per the previous 2 days, and she continued to rely on the Applicant for ad hoc support as per the previous 2 days (Exhibit A). Mr Bronfman relied on the Applicant to send the Secondment Agreement on 1 February.

25. At no time during the day on 1 February did the Respondent (through either of its representatives) indicate in any way that the Applicant wasn't expected to be at the clinic that day, nor did the Respondent ask/instruct the Applicant to leave the clinic. For the avoidance of any doubt, in all of their discussions and interactions, at no time up to and including 1 February, did the Respondent indicate in any way to the Applicant that she was not intended to work for the Respondent as of 1 February or later.

26. Representations made by the Respondent to the Applicant were in the form of verbal statements and conduct, independently and together, establishing the Applicant as an employee of the Respondent as of 1 February."[27]

• [53] Ms Kupiec's oral evidence on the subjects of dismissal by Shariff Investments and employment by ASC Knox includes that she was dismissed by Shariff Investments on 31 January, although she received nothing from Mr Sharif saying that her contract had been terminated until she received a termination letter from Mr Bronfman on 3 Feb, sent on behalf of Mr Shariff.[28]

• [54] It is possible to see from Ms Kupiec's narrative that she regarded herself as having been dismissed by Shariff Investments on Friday, 31 January 2025 and employed by ASC Knox on 1 February 2025. However, Ms Kupiec's evidence of Mr Shariff's words does not unequivocally confirm her narrative.

• [55] Instead, the circumstances of Thursday 30 and Friday 31 January 2025 show mainly confusion about Ms Kupiec's legal status: Shariff Investments was out of the franchise wanting nothing further to do with it when she called him on Saturday 1 February 2025. Another franchisee was about to take over. Representatives of the incoming franchisee, ASC Knox had been to see the site on Thursday 30 January and arrived promptly for the start of trade on Saturday 1 February 2025 and acted authoritatively.

• [56] No-one instructed Ms Kupiec to attend for work on Saturday, 1 February 2025 but she did so anyway, as she had not been instructed to not attend. While I am not critical of her attendance for work on the Saturday, and think most other people would have done so in her position, the situation lacks clarity in all respects.

• [57] Clarity was given in the morning of Saturday, 1 February 2025 when Mr Bronfman discussed the secondment agreement with Ms Kupiec. Despite Ms Kupiec not being a native English speaker, the document is in plain language and crystal clear: the person being offered the agreement will remain an employee of Shariff Investments for at least four weeks, unless the arrangement is terminated earlier, while performing the work required by ASC Knox. The document also states with laser clarity that the secondment as offered does not create any employment relationship with ASC Knox.

• [58] While the offer was directly contradictory to the terms of the sale contract, which required Shariff Investments to terminate its employees before settlement, Ms Kupiec did not have insight to the sale contract, and could not have been expected to have such insight.

• [59] Ms Kupiec says about the secondment agreement document that she did not initially read beyond the first paragraph. Not being completely proficient in English, she wanted the assistance of her husband who was not available at the time she sought his help.[29] Before sending the document to the clinic's staff, she spoke with Mr Shariff as she wanted him to clear the use of his name on the email to staff. The response she received from Mr Shariff would likely have confirmed to her that the email to be sent to employees was about staffing matters and was important. There was a need for the staff to ensure they had read and signed the document that day.[30] Ms Kupiec then signed the document and returned it to Mr Bronfman. She knew that the document was about a "staffing issue", as that is what Mr Shariff said it was, objecting to being asked about the matter, and that it involved the transition of staff, including her, giving this evidence:

"30. At approx. 10:30am on 1 February, the Respondent sent the first version (Exhibit D) of the Secondment Agreement to the Applicant via email, and also called her over to show it on his laptop and to discuss it. Mr Bronfman was sitting in the front 'skin room' of the clinic (which is adjacent to the reception area of the clinic, where the Applicant usually sits, and was sitting on that day). The Respondent stated that he wasn't sure if staff would understand the document. The Respondent asked the Applicant to read it off his laptop screen and asked her "what do you think?" The Applicant looked at it briefly and only read the first paragraph relating to 'duration' and '4 weeks', then stopped to ask the Respondent what that paragraph was saying because she didn't understand it. The Applicant also asked what the whole document was about. The Respondent said "don't worry", "this is so that we can transition the staff", "it's standard practice when there's a change of ownership" and "we won't be making any changes for the first 4 weeks"."[31]

• [60] Ms Kupiec's oral evidence on the subject includes that she never read the full document before signing it, as she felt pressured to sign it and "did not want it to be seen by nmy new employer that I'm one of the difficult people", and that she was assured that it's a standard part of a sale of a business.[32]

• [61] It is unlikely from these matters that Ms Kupiec had no insight about the general tenor of the document. I consider it more likely that not that, before she distributed the email Mr Bronfman wanted sent to clinic staff, Ms Kupiec understood its general terms, telling other employees in the email she sent to them that "As you may have heard, Ray has sold the business to a new owner. This change is effective immediately (1st of February 2025). As part of the transition, you will be on a secondment as per below terms".

• [62] Ms Kupiec does not say she was deceived by the proposed secondment agreement, or that she actually believed it to be an offer of employment from ASC Knox, or something similar. She instead regards the secondment as having no application to her, giving this evidence about correspondence from ASC Knox on 3 and 4 February 2025 withdrawing the offer of secondment;

"Contractually, this did not change anything for the Applicant, as she already understood that the secondment arrangement didn't apply to her because she ceased being an employee of Shariff as of 31 January, and in any case she didn't understand the document and didn't agree to it."[33]

• [63] This is not much more than an after the fact analysis which is an unlikely explanation of Ms Kupiec's actions on Saturday 1 February 2025: an incomplete discussion with Mr Bronfman; her then talking with Mr Shariff in order to obtain his approval for an email to be sent over his name, about which he was unhappy, but ultimately agreed; distribution of the document in final form to other clinic staff; and finally signing her copy of the secondment agreement.

• [64] The overall circumstances of the matter lead me to conclude that, by the evening of Saturday 1 February 2025 at the latest, Ms Kupiec regarded herself as continuing in employment at the Knox clinic because of the terms of the secondment agreement which maintained her employment by Shariff Investments. There is no documentary evidence to the contrary. The contention that she was ever employed by ASC Knox is of course contradictory to how Ms Kupeic likely regarded the effect of the signed secondment agreement. In any event the evidence that Ms Kupiec was ever employed by ASC Knox is entirely circumstantial, relying on her employment with Shariff Investments ending at the close of business on Friday 31 January 2025 and her then working on 1 February at the Knox clinic for ASC Knox through a process not involving any explicit signalling from ASC Knox.

• [65] The hypothesis, of being employed from 1 February 2025 by ASC Knox, overlooks the obvious confusion on the ground on that day with the change of the clinic's operator from one franchisee to another. Whereas there had been a negotiated intention for ASC Knox to take over the business on 1 February 2025, that did not occur, with the final contract of sale being signed late on Monday, 3 February 2025. While Ms Kupiec worked at the clinic on Saturday, 1 January 2025, she was not paid by ASC Knox or Shariff Investments, but instead by the franchisor (with me accepting that she did not know until some weeks later which entity would pay her for the day in question).

• [66] Unfortunately for Ms Kupiec, there is no formal or documentary evidence of ASC Knox having offered her employment at any time. There are no statements on the part of Mr Bronfman or Ms Bullen that could reasonably be construed as an offer capable of acceptance. There is though evidence of her having signed the secondment agreement, maintaining her employment with Shariff Investments. That agreement was distributed with the authority of Mr Shariff, albeit repudiated two days later, even though Ms Kupiec had signed her acceptance of it by then.

• [67] ASC Knox relayed to Ms Kupiec that she had been dismissed by Shariff Investments. In no way can that communication be considered as consistent with s.117(1) of the FW Act, which is in these terms;

"An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given)"

• [68] The notice of termination was not given to her by her employer and it purports to take effect from a date prior to the say the notice was given. There is nothing in the evidence before me that would suggest Mr Shariff said to Ms Kupiec on 31 January 2025

• [69] The absence of compliance though does not render a termination ineffective (see for example s.394(3)(b)). Nor does a proposition arise that notification cannot be delegated to someone other than the employer. Ordinarily then, a question may arise as to ASC Knox's authority to communicate notification of a termination of employment. However, the question does not arise in this matter, as the primary question here is whether Ms Kupiec was ever employed by ASC Knox, not whether she was dismissed by Shariff Investments. Since my finding is that Ms Kupiec was never employed by ASC Knox, the question of whether and when she was dismissed by Shariff Investments is not a matter requiring determination in these proceedings.

• [70] In conclusion, I am not satisfied that the test within s.311(1)(b) for establishment of Ms Kupiec as a transferring employee, namely that "within 3 months after the termination, the employee becomes employed by the new employer" has been enlivened.

• [71] It follows from the above consideration that there has not been a transfer of business, as Ms Kupiec was not a transferring employee, or for that matter, an employee of ASC Knox. She was also then not a person protected from unfair dismissal. As a consequence, I must dismiss Ms Kupiec's unfair dismissal application and an order doing so is issued at the same time as these reasons for decision.

[1] [2021] FWCFB 268.

[2] Respondent's Outline of Submissions, 2.2 -2.4; Digital Hearing Book (DHB), p.69.

[4] Contract of Sale of Business, 6.1 and 9.1; DHB, p.95.

[5] Applicant's Witness Statement, 18; DHB, p.29.

[6] Applicant's Witness Statement, 59 - 60; DHB, p.34.

[7] Respondent Submissions, 2.9; DHB, p.70.

[8] Respondent Submissions - Exhibit E - Witness Statement of Michael Bronfman, 6.2; DHB, p.122.

[9] Witness Statement of Patrycja Kupiec, [3]; DHB, p.28.

[10] Applicant Submissions - Exhibit B - ASC Knox (A-Team) WhatsApp Messages; DHB, p.44.

[11] Exhibit R2, Witness Statement of Kaitlyn Bullen, p.10.

[12] Respondent Submissions - Exhibit E - Witness Statement of Michael Bronfman; DHB, p.121.

[14] Respondent Submissions - Exhibit D - Contract of Sale of Business, 9.1.1; DHB, p.95.

[15] Applicant Submissions - Exhibit G - Patrycja Kupiec Secondment Agreement Emails to Staff; DHB, p.49.

[16] Applicant Submissions - Exhibit E - Second version of Secondment Agreement received from Mr Bronfman - 1 February 2025 at 4:56 PM; DHB, p.47.

[19] Witness Statement of Patrycja Kupiec; DHB, pp.29 - 30.

[20] Applicant Submissions - Exhibit C - Mr Shariff's Farewell Message to Staff; DHB, p.45.

[21] Witness Statement of Patrycja Kupiec; DHB, p.31.

[24] Applicant Submissions - Exhibit B - Secondment Arrangement and Employment Status - 4/02/2025; DHB, p.8.

[25] Applicant Submissions - Exhibit A - Termination of Contract with ASC Knox - 3/02/2025; DHB, p.7.

[26] Applicant Submissions - Exhibit B - ASC Knox (A-Team) WhatsApp Messages; DHB, p.44.

[27] Witness Statement of Patrycja Kupiec; DHB, p.30.

[30] Applicant Submissions - Exhibit F - Mr Shariff's Written Consent to Send Secondment Document to Staff on His Behalf; DHB, p.48.

[31] Witness Statement of Patrycja Kupiec; DHB, p.31.

[33] Applicant Outline of Arguments; DHB, p.21.

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