Unfair dismissal; discretionary payments and the high income threshold

“In Jenny Craig Weight Loss Centres Pty Ltd v Margolina 5 the Full Bench stated:

“It seems clear enough that the legislature intended to exclude bonus payments which are contingent, either because they depend on performance in some way or because management reserves the right to modify or discontinue them. On the evidence in this case it seems that both the annual bonus and the one-off five year bonus are contingent in the relevant sense. In relation to the five year bonus, there is a specific reservation of the right to alter or discontinue the plan. It is unclear, although it is likely that the same reservation applies in relation to annual performance bonuses. This cannot be determined in advance because the remuneration policy provides that: ‘Management has the right to modify and discontinue the remuneration plan at its discretion’”

And see  Barnes v Appian Software Australia Pty Limited [2019] FWC 7526 delivered 5 November 2019 per Simpson