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NSW Employment Contract - Bonus Entitlement Without Performance Criteria?

Discussion in 'Employment Law Forum' started by Nagoh, 13 April 2016.

  1. Nagoh

    Nagoh Member

    26 November 2014
    Likes Received:

    I have recently resigned from my position after13 months of employment and believe I should be entitled to a bonus paid out, as stipulated in my employment contract. The company is positioning that the bonus component is only payable at their discretion, yet there is nothing in the contract to suggest this.

    Further, as the employment contract has indicated in Appendix 1, that the bonus is to be paid quarterly, and they haven't paid this to-date, then the precedence has been set for them to not pay it at all.

    I have had one email from my manager (who has since departed) regarding the performance criteria for this bonus. In this, my manager suggested that the bonus is now to be annual, and some suggested performance criteria, though these were never committed to from either my manager or myself.

    The 2 relevant parts to my employment agreement are:

    2. Remuneration

    You will be provided with a base salary of $X plus Superannuation. Please refer to Appendix 1 for full details of your package. Your base salary has been calculated to be inclusive of any overtime, penalty rates, leave loading or allowances applicable under any relevant industrial instrument. Details of the makeup of your monthly salary package will be shown on your first pay advice, and if you have any questions you should clarify these with your Manager.

    In the event that an excess payment is made to the employee by the company in error, the employee authorises the company to make the appropriate deductions from the employee’s subsequent pay or alternative, from an agreed number of pays, until the excess payment has been recouped by the Company.

    All information in relation to your remuneration is confidential and must not be disclosed or discussed with other employees. Failure to adhere to this requirement may result in disciplinary action taken against you.

    Appendix 1

    Base $ X
    Super $ X 9.5%
    Total Base Package $ X Paid monthly
    15% Bonus $ X 9.5%
    Super on bonus component $ X
    Total On Target Bonus $ X Paid quarterly
    Total OTE remuneration $ X

    Really hoping someone can help me with this. I have had a look at the following article and feel I am probably in a strong position to have this paid to me?

    Can an employer be forced to pay a discretionary bonus? - Employment and HR - Australia

  2. Serge Gorval

    Serge Gorval Well-Known Member
    LawTap Verified Lawyer

    2 November 2015
    Likes Received:
    There is a specific claim that would best apply to your case. A claim for restitution. its a little long and complex to discuss on the forum, but happy to have an obligation free chat.
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