DECISION NO: 265/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - COMPENSATION - Income Tax Assessment Act 1936 (Cth): s 27f - taxation aspects of COMPENSATION AWARD
Income Tax Assessment Act 1936 (Cth): s 27f
Slifka v J W Sanders Pty Limited (Industrial Relations Court of Australia, North J, 19 December 1995, unreported)
Lloyd John Boris GOLJA v. Kelvin Ernest LORD t/as KELVIN LORD & CO
WI 1193 of 1995
CORAM: MADGWICK J
PLACE: PERTH
DATE: 20 JUNE 1996
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
No. WI 1193R of 1995
BETWEEN Lloyd John Boris GOLJA
Applicant
AND Kelvin Ernest LORD
trading as KELVIN LORD & CO
Respondent
CORAM: MADGWICK J
PLACE: PERTH
DATE: 20 JUNE 1996
MINUTES OF ORDER
1. The respondent is to pay to the Western Australia District Registrar within 28 days the sum of $17,307 (the pre-tax sum of the compensation elements).
2. The Registrar, upon such payment, is to pay the sum of $10,399 (the sum conceded by the respondent to be payable to the applicant) to the applicant.
3. The balance of $6,968 is to be invested by the Registrar in an interest-bearing bank or building society account pending further order of the Court.
4. Either party may apply on 48 hours notice as to the further disposition of the said balance and interest thereon when the approach of the Commissioner for Taxation is known.
5. The parties may jointly apply for a consent order at any time before the time contemplated by Order 4.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
No. WI 1193R of 1995
BETWEEN Lloyd John Boris GOLJA
Applicant
AND Kelvin Ernest LORD
trading as KELVIN LORD & CO
Respondent
CORAM: MADGWICK J
PLACE: PERTH
DATE: 20 JUNE 1996
SUPPLEMENTARY REASONS FOR JUDGMENT
MADGWICK J:
Taxation Aspects
The further submissions made in relation to this matter illustrate the inadequacies of the available machinery for determining the impact of the income tax provisions in framing awards of wage or salary-related compensation.
In my decision in principle I indicated that the applicant should, subject to taxation considerations, receive the sum of three components:
(a) notional "severance pay" of one week's pay for each year of service. Before tax this would be $8,307.
(b) compensation for loss of the high probability that long service leave would soon have accrued to the applicant had the employment not been unlawfully terminated. Before tax this would be $8,000.
(c) a differential for a short period between what he would have earned for his employment with the respondent, had it continued, and what he received in other work that he found. Before tax this would be $1,500.
Thus, on a gross basis and before taxation considerations are taken into account, a total of $17,807 would be involved.
Both parties agree that North J's decision in Slifka v J W Sanders Pty Limited (Industrial Relations Court of Australia, North J, 19 December 1995, unreported) should be followed, both as to the necessity to take tax considerations into account and, in principle, as to how they should be taken into account. I am content to abide those submissions. However the parties do not agree on the result.
The competing submissions
The respondent asserts that the entire quantum of any intended award would constitute a "bona fide redundancy payment" under s 27f of the Income Tax Assessment Act 1936 (Cth) which would qualify for concessional tax treatment; indeed, no tax would be payable on it. Consequently it is argued that, from what would be an award of $17,307, there should be deducted $6,968, representing tax which, it is submitted, the applicant would have had to pay had he received those sums in the ordinary course of his employment or upon termination other than for redundancy. An award for the applicant of $10,399 should therefore be made.
The applicant, not surprisingly, takes a different approach. However, if followed, his actual approach would result, spectacularly, in an award to him of over $20,000, that is, more than the pre-tax sum I think he is entitled to.
Conclusion
The Court should not play tax assessor. Where there is an arguable position put, but one which is not very plainly right, there is a risk of injustice if the Court tries to determine the matter. The Commissioner for Taxation cannot be heard here. The Commissioner must disagree with one party and may disagree with both and with a view formed by the Court. Where a situation such as this arises, I think the just course is as I will order. The order will also, I trust, have the practical effect of minimising anyone's interest in a persistence in what might be called "ambit" submissions.
Orders
1. The respondent is to pay to the Western Australia District Registrar within 28 days the sum of $17,307 (the pre-tax sum of the compensation elements).
2. The Registrar, upon such payment, is to pay the sum of $10,399 (the sum conceded by the respondent to be payable to the applicant) to the applicant.
3. The balance of $6,968 is to be invested by the Registrar in an interest-bearing bank or building society account pending further order of the Court.
4. Either party may apply on 48 hours notice as to the further disposition of the said balance and interest thereon when the approach of the Commissioner for Taxation is known.
5. The parties may jointly apply for a consent order at any time before the time contemplated by Order 4.
I certify that this and the preceding 3 pages are a true copy of the Supplementary Reasons for Judgment of His Honour Justice Madgwick.
Associate:
Dated: 20 June 1996
APPEARANCES
Counsel for the Applicant: Peter De Zwart
Solicitor for the Applicant: Parker & Parker
Counsel for the Respondent: Jon Long
Solicitor for the Respondent: J A Long & Co
Date of hearing: 19 February 1995
