MDC Legal successfully defended an employer against an
employee's claims for unpaid visa expenses and bonuses
exceeding $200,000.1 The case highlights the importance
for employers of having clear, unambiguous employment contracts and
bonus schemes in place. Generally, the employer would be wise to
state clearly that it reserves a discretion with respect to
bonuses. It highlights the importance of claimants getting proper
advice on their claims before embarking on costly litigation.
Mr Bradley was employed Binder Group as their WA Industrial
Sales Manager and later as its National Sales Manager.
After resigning, Mr Bradley sued Binder in the WA Industrial
Relations Commission (Commission) alleging that he
was owed contractual benefits of $8,043 in costs associated with Mr
Bradley and his family obtaining permanent residency in Australia
and three lots of bonuses totalling $213,038.88 for the three
financial years 2011/2012 to 2013/2014.
All of Mr Bradley's claims were rejected by the
The Commission found that Binder had agreed to take over Mr
Bradley 457 visa while he qualified for permanent residence, but
rejected his claim that it was an oral term of his contract that
Binder Group would pay the expenses of his application for
The Commission noted that it was "surprising to say the
least" that Mr Bradley did not confirm the alleged
agreement with Binder Group in writing given Mr Bradley's
assertion that "the payment of costs for his permanent
residency was so important to him."
Bonus Payment for the 2011/2012 Financial Year
Mr Bradley argued that he was entitled to a total payment of
$121,604.44 for the 2011/2012 financial year under a bonus scheme
provided via email. After he made demands during his employment he
received a $40,000, given Binder said as a compromise settlement.
But Mr Bradley argued that he was entitled to the balance of
Binder Group said he had no such entitlement, arguing that there
was no consideration to support the scheme and that scheme was also
void for uncertainty. Finally, Binder argued the bonus scheme was
discretionary. Binder Group also argued that the $40,000 payment to
Mr Bradley was in full settlement and satisfaction of his bonus
The Commission found for Binder on each of these defences but
held here was consideration to support the bonus scheme, in the
form or Mr Bradley working to achieve those bonus payments.
Further, the Commission said in relation to the payment of $40,000
if Mr Bradley did not accept the payment in full and final
settlement of his claim, he was obliged to tell Binder Group
Bonus Payment for the 2012/2013 Financial Year
Mr Bradley claimed that he was entitled to a bonus of $98,934.55
for the 2012/2013 financial year in his new position of National
Sales Manager. He relied on a clause in his new contract that said
a performance bonus would be provided separately. That clause also
said it was subject to the Managing Director's discretion. No
new scheme was provided. Mr Bradley contended that in the absence
of an agreed bonus scheme, the parties were bound by the 2011/2012
Binder Group argued that by not implementing a new scheme it had
exercised its discretion not to make any bonus payments. Further,
Binder Group contended that the scheme was "so uncertain
and so dependent on the initiatives and discretion of one
party" that it did not create an enforceable
The Commission agreed with Binder Group that the terms of the
previous bonus scheme would not "simply carry
over" as an implied term to the new agreement, and that
the terms of the bonus scheme were "uncertain, illusory and
Bonus Payment for 2013/2014 Financial Year
Mr Bradley argued that he was entitled to $32,500 under a new
bonus scheme for the 2013/2014 financial year. Under that scheme Mr
Bradley would receive a bonus if Binder Group achieved its overall
budget and if each branch achieved its individual
The national budget was achieved, but the Victorian branch did
not make its individual budget.
Mr Bradley argued that the terms of the scheme had been varied
by oral agreement to exclude the Victorian branch from the
The Commission again rejected Mr Bradley's claims that there
was an oral variation, and agreed with Binder Group that the terms
of the bonus scheme were "clear and
unambiguous." Accordingly, the scheme made it
"crystal clear" that both overall group targets
and branch targets were conditions that needed to be met before a
bonus was payable. As the Victorian branch had not met its profit
target, the preconditions for Mr Bradley's bonus had not been
Mr Bradley's case was dismissed.
1Bradley v Binder Group Pty Ltd
 WAIRC 00731
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