The Full Federal Court has unanimously dismissed the appeal of the taxpayer, a former senior tax officer, and confirmed that a termination payment made to her because her services could no longer be effectively utilised by the Tax Office was not a “genuine redundancy payment” under s 83-175 of the ITAA 1997.
The taxpayer was offered, and accepted, a “redundancy” under clause 97 of the ATO (Executive Level 2) Agency Agreement 2009 on the ground that she could no longer be effectively utilised in the ATO and that she was “excess to the requirements of” the ATO in terms of s 29(3)(a) of the Public Service Act 1999“.
Originally, in AAT Case [2011] AATA 499, the AAT found for the Commissioner on the grounds that a “redundancy” under s 83-175 only occurs where the position is made redundant” (ie where an employer no longer requires that a job be done by anyone), but that a cessation of employment under clause 97 of the Agency Agreement was only relevant where an employee’s job was still required and that the employee would be replaced (as in this case).
In Weeks v FCT [2012] FCA 342, the Federal Court dismissed the taxpayer’s appeal on the basis that several grounds of the taxpayer’s appeal did not raise questions of law and that the AAT had not erred in its construction of s 83-175(1) and that, otherwise, the AAT findings of fact were not open to be reviewed.
Before the Full Federal Court, the taxpayer, in effect, argued that the AAT had failed to make sufficiently detailed findings of fact as to the nature of her position and, in particular, as to the operation of clause 97 of the Agency Agreement as it applied to her circumstances (and contrary to the approach of the Full Federal Court in Dibb v FCT (2004) 55 ATR 786) and had thereby erred in law. However, in dismissing the appeal, the Full Federal Court found that the taxpayer had failed to establish that the AAT had erred in law or that the Court at first instance had erred in failing to find the AAT erred in law.
(Weeks v FCT [2013] FCAFC 2, Full Federal Court, Dowsett, Besanko and Robertson JJ, 25 January 2013.)
[LTN 18, 29/1/13]