By Felicity Simpson

7 June 2017

Contracts of employment often include bonus arrangements and redundancy entitlements linked to company policies.

These policies (or contacts of employment themselves) may incorporate a statement to the effect that these are ex gratia payments made in the “sole” or “absolute” discretion of the employer. Does the employer’s “absolute discretion” enable an employer to reduce or not pay the discretionary payment at any time as they see fit?

Employers need to appreciate that the courts have shown a willingness to imply terms into the contract of employment. It has always been the case that employment contracts are subject to the ordinary rules of interpretation. Discretionary employee payments are no exception.

The 2015 Federal Circuit decision in Russo v Westpac Banking Corporation (Russo) confirmed that an earlier 2010 NSW Supreme Court decision in Silverbrook Research Pty Ltd v Lindley (Silverbrook) was binding. Even though the facts in these decisions were different, the Court was clear in its position – the employer’s discretion was not unfettered. The Court stated that an employer’s discretion in respect of ex gratia payments “should not be construed so as to permit the appellant to withhold the bonus capriciously or arbitrarily or unreasonably”.

The Court in Silverbrook noted that “There may be many circumstances in which it would be legitimate, and conformable with the purposes of the contract, not to pay the bonus.” Essentially, each circumstance will need to be considered individually, in the context of the agreed contract of employment.

The practical implication for employers is that their discretion may not be unfettered. In those circumstances, all discretionary payments must be given due consideration in accordance with the employer’s own policies. Failure to do so, may place an employer at risk of a claim for breach of contract, in line with the above cases.

Employer’s wishing to have absolute unfettered discretion regarding “discretionary payments”, must ensure that the contract of employment is very clearly, precisely states its intentions and seeks to incorporate the criteria set out in Silverbrook. Also, employer’s should carefully consider and review any policies or guidelines used in determining the entitlement to and amount of any discretionary payment.

Further, careful consideration should be given to the inclusion of company policies (in whole or in part) into contracts of employment. Every business has its own specific requirements to be taken into consideration.


If you are an employer who pays discretionary bonuses or redundancy payments (or an employee wanting to claim an entitlement to a discretionary payment), please contact Felicity Simpson or a member of the Commercial Law Team.

Related Articles

View All
Employment Law / Litigation & Dispute Resolution / Intellectual Property

Dude, Where’s my Business? High Court Delivers Warning to Employees and Competitors who engage in Dishonest Conduct to Get Ahead in the Game

The case of Ancient Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018]...
Read More
Employment Law / Litigation & Dispute Resolution / Construction

Does it Really Matter What You Call Your Employees? The Difference Between a Permanent and a Casual Employee.

The Federal Court found the casual employee worked a regular and continuous pattern of work for more than two years,...
Read More
Business Law / Construction / Employment Law

September 2018 Newsletter

September 2018 Newsletter See the full newsletter here Welcome TLFC Law are pleased to welcome Min Seetoh to the...
Read More
Business Law / Employment Law / Real Estate Agents

Are you complying with the Real Estate Industry Award? Don’t get caught out!

Changes to the Real Estate Industry Award 2010 Important changes to the Award include: Classification of employees and...
Read More
Australia-Israel Legal Advice / Charities & Not-for-Profit / Technology and Start Ups

TLFC – Award Finalist for Law Firm of the Year (Medium Category)

Tisher Liner FC are proud to be nominated as an award finalist in the 14th annual Victorian Legal Awards Medium Law...
Read More
Employment Law

First they came for the accountants…

With several popular restaurants recently making headlines for allegedly underpaying employees, it is a good time for...
Read More
Employment Law

Casual to Permanent Swap

The Fair Work Commission (Commission) will introduce a “ casual conversion ” clause into modern awards following a...
Read More
Employment Law

Why (most) Post-Employment Restraints are Illegal

What is the relevance of this to post employment restraints Post employment restraints, without proper limitations,...
Read More
Business Law / Employment Law

Employee Departures | How to Protect your Business

A large part of the parameters of these are already set down in whatever employment contract your employee has been...
Read More
Employment Law / Business Law

The Unsigned Employment Contract | Binding Agreement or Meaningless Piece of Paper?

Employers prepare such documents and present them to prospective employees at the commencement of the employment...
Read More
Employment Law

When “Super” may not be so Super

In either case, in the event of a Member’s death, the amount which has accumulated, known as the Death Benefit, may...
Read More