McCluskey v Karagiozis [2002] FCA 1137

McCluskey v Karagiozis [2002] FCA 1137

Because the transfer of employment of the employees was effected without their express or implied assent, their employment with the pre-restructure employer continued and their employment with the post-restructure employer did not commence; thus, for administration purposes, employees are to be treated as retained by the pre-restructure company, save specified exceptions.

Jurisdiction
Australia
Judgment Date
12 September 2002
Procedural Posture
Application for Directions (corporations Administration) / Final Judgment
Outcome
Orders made that employees are to be treated as having continued employment with pre-restructure companies; costs to be costs in administration; liberty to apply reserved for further orders on costs.
Legal Topics
['employee Entitlements' 'transfer of Employment' 'administration of Companies' 'creditor Status' 'corporate Restructure']
['corporations Law' 'employment Law'] ['employee Entitlements' 'transfer of Employment' 'administration of Companies' 'creditor Status' 'corporate Restructure']

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Procedural Posture

Application for Directions (corporations Administration) / Final Judgment

Legal Issues

  1. 1 ['Whether employees are to be treated as having continued employment with pre-restructure companies for the purposes of administration' 'Whether purported transfers of employment without employee consent are legally effective' 'Whether employees are creditors of pre-restructure or post-restructure companies regarding entitlements']

Ratio Decidendi

Because the transfer of employment of the employees was effected without their express or implied assent, their employment with the pre-restructure employer continued and their employment with the post-restructure employer did not commence; thus, for administration purposes, employees are to be treated as retained by the pre-restructure company, save specified exceptions.

Court Disposition

Orders made that employees are to be treated as having continued employment with pre-restructure companies; costs to be costs in administration; liberty to apply reserved for further orders on costs.

Orders

  • ['Employees specified in the schedule (with named exceptions) are to be treated as having continued to be employed by their pre-restructure companies at all material times.' 'Costs of all parties to be costs in the administration of Coogi Nominees Pty Ltd (administrators appointed) on an indemnity basis, except...