Foster v Parbery;Foster v Elliott

In Foster v Parbery and Foster v Elliott, the applicant, Foster, sought to prove claims in the liquidation of two companies, Parbery Pty Ltd and Elliott Pty Ltd. Foster was a former employee of both companies and sought to recover employment entitlements including superannuation contributions, redundancy pay, annual leave and accrued rostered days off. Both companies rejected Foster's proofs of debt, claiming that the other company was his employer during the relevant periods. The central issue was the identification of Foster's employer and the determination of which company was liable for the claimed entitlements.

The court had to determine whether the business had been transferred between the two companies in such a way that would affect Foster's employment status and which company was responsible for the various employment entitlements. The court examined the nature of the transfer of business and whether it involved a transfer of employees. The court also considered whether Foster had given his consent to the transfer of employment and whether he had continued to work for the new employer. The court held that there had been a transfer of business from Elliott Pty Ltd to Parbery Pty Ltd, and Foster had become an employee of Parbery Pty Ltd once he became aware of this change and continued to work for Parbery Pty Ltd.

The court found that Foster was entitled to claim for superannuation contributions, redundancy pay, annual leave and accrued rostered days off from Parbery Pty Ltd. However, the court held that Foster was not entitled to claim for untaken sick leave as this was not a mandatory entitlement under the applicable industrial instrument. The appeals were allowed, and the rejections of Foster's proofs of debt were set aside. The liquidators were directed to accept the proofs of debt for the entitlements that Foster was entitled to claim.