Foster's Group Ltd v David Kou Tien Wing

[2005] VSCA 322

---

Foster's Group Ltd
vDavid Kou Tien Wing

Court:

Judges: Maxwell P
Nettle JA
Habersberger AJA

Subject References:
Employment
Employment agreement terminated by employer prior to expiry of term
Whether employee entitled to redundancy payment
Meaning of redundancy
Reorganisation both before and after employee's departure reduced responsibilities of his former role as General Manager of the appellant's business in China
Employee's position as General Manager filled in acting capacity for 17 months and then permanently
Role still retained important functions and duties
Held no redundancy

Legislative References:
Income Tax Assessment Act 1936 - section 27F

Hearing date: 17 November 2005
Judgment date: 23 December 2005

---

Orders

[72] For the above reasons, I would:

(a) allow the appeal, set aside the judgment below and in lieu thereof order that there be judgment for the defendant with the defendant's costs of the proceeding, including all reserved costs, to be paid by the plaintiff, such costs in default of agreement to be taxed on Scale "D", with certification for counsel for three refreshers, written submissions and attendance to hear judgment;

(b) dismiss the cross-appeal; and

(c) order that the respondent/cross-appellant pay the appellant's/cross-respondent's costs of the appeal and of the cross-appeal.

Appeal allowed.

Cross-appeal dismissed.

Counsel for the appellant: Mr J L Bourke
Counsel for the respondent: Mr R R S Tracey QC withMr P D Burchardt
Solicitors for the appellant: Corrs Chambers Westgarth
Solicitors for the respondent: A J Macken & Co