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Superannuation Contributions on a payment in lieu of notice

 

The New South Wales Court of Appeal has interpreted the Superannuation rules to require an employer to pay superannuation in respect of a payment made to an employee in lieu of Notice of Termination.


In this case (Willis v Health Commissions Network) the contract of employment indicated a total fixed remuneration package, with elements described as Base Salary, Fringe Benefits Tax and compulsory employer superannuation contributions.

Those contributions exceeded the minimum under the Superannuation Guarantee Legislation.  When this employee was dismissed, he was paid six months in lieu of notice, based upon Base Salary. 

His other claims regarding redundancy were dismissed, but the Court of Appeal reasoned that superannuation was akin to a salary sacrifice arrangement, and had he continued to work for the further six months, he would have received superannuation as well as his salary.  Although no argument was submitted about Fringe Benefits Tax on the above reasoning, he could also have received the equivalent value.

Although the New South Wales Court is interpreting Federal Legislation and it is likely to be followed in similar "Salary Sacrifice" type situations, this decision may not be followed when a simple 9% and normal salary are the only remuneration.  However, the precedent is there and it could easily become extended further.

Employers should carefully review employees Contract of Employment, to ensure they understand the obligations on termination.

 

 

 

 



7th-May-2008