Elke Small v Tyco Projects (Australia) Pty Ltd [2007] NSWIRComm 97

Elke Small v Tyco Projects (Australia) Pty Ltd [2007] NSWIRComm 97

The Deed of Release was unfair insofar as it obliged the appellant to repay FBT she was not liable for; accordingly, the Deed should be varied to remove this unfairness and respondent ordered to pay appellant for the FBT component plus interest.

Parties
Appellant: Elke Small; Respondent: Tyco Projects (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
02 May 2007
Procedural Posture
Appeal / Full Bench Judgment
Outcome
appeal upheld in part
Legal Topics
Unfair Contract, Redundancy, Deed of Release, Fringe Benefits Tax, Duress, Estoppel
Employment Law Contract Law Unfair Contract Redundancy Deed of Release Fringe Benefits Tax Duress Estoppel

Case Brief

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Parties

Elke Small

Appellant

Tyco Projects (Australia) Pty Ltd

Respondent

Procedural Posture

Appeal / Full Bench Judgment

Legal Issues

  1. 1 Whether the Deed of Release was an unfair contract under s 106 Industrial Relations Act 1996
  2. 2 Responsibility for payment of Fringe Benefits Tax (FBT) under the Deed of Release
  3. 3 Whether the appellant was subjected to duress signing the Deed

Ratio Decidendi

The Deed of Release was unfair insofar as it obliged the appellant to repay FBT she was not liable for; accordingly, the Deed should be varied to remove this unfairness and respondent ordered to pay appellant for the FBT component plus interest.

Court Disposition

appeal upheld in part

Orders

  • Leave to appeal is granted.
  • Deed of Release is varied to provide that Elke Small shall be paid $24,370.80 net.