Gregory Webbe and Takapana Investments Pty Ltd [1995] IRCA 16

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 151/94 B E T W E E N: GREGORY WEBBE Applicant AND TAKAPANA INVESTMENTS PTY LTD Respondent MINUTES OF ORDER 2 February 1995 Judicial Registrar Chancellor THE COURT ORDERS THAT: 1. Pursuant to the contract of employment the Respondent pay the Applicant the sum of $1,898 being commissions due and owing to him. 2. Pursuant to Section 170EE(2) the Respondent pay the Applicant compensation in the sum of $16,001. 3. There be a stay of twenty-eight days with respect to the total sum payable of $17,899. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 151/94 B E T W E E N: GREGORY WEBBE Applicant AND TAKAPANA INVESTMENTS PTY LTD Respondent BEFORE: Judicial Registrar Chancellor PLACE: Melbourne DATE: 2 February 1995 REASONS FOR JUDGMENT This is an application pursuant to section 170EA of the Industrial Relations Act ("the Act") by Gregory Webbe seeking compensation in respect of the termination of his employment as National Engineering Services Manager by Takapana Investments Pty Ltd trading as Ipex Information Technology Group ("Ipex"). In addition to his claim under the Act the Applicant sought to litigate a claim pursuant to his contract of employment for commissions earned during his period of employment but unpaid, and also a claim for damages at common law for wrongful dismissal. He claimed that the appropriate reasonable period of notice in order to terminate his contract of employment was nine months. These additional claims were sought to be brought pursuant to Section 430 of the Act. This section was considered by Chief Justice Wilcox in the matter of Ardino v Count Financial Group Pty Ltd (14 November 1994) where he said at page 19: "Section 430 of the Industrial Relations Act gives the Court jurisdiction "in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked". This jurisdiction extends to claims under non-federal law that arise out of the same substratum of facts as those said to give rise to the Federal claim committed to the jurisdiction to the Court: See Fencott v Muller 1983 152 CLR 570 and Stack v Coast Securities (No.9) Pty Ltd 1983 154 CLR 261. It does not matter that the Federal claim may ultimately fail: See Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation 1987 18 FCR 212. Ordinarily, a contract claim that rises out of the same substratum of facts as an unlawful termination claim could be litigated in this Court in reliance on section 430". The additional claims in this case arise from the same substratum of facts and can properly be considered by this Court. Background Mr Webbe is aged 32 years. His employment history prior to commencing with Ipex was both stable and progressive. He worked for Lanier Business Products from 1981 to 1988 advancing to the position of Victorian Service Manager. From 1988 to November 1993 he was employed by Business Computers of Australia Pty Ltd as General Manager Engineering Services. In his last financial year with that company he earned a $72,000 base salary package together with an additional bonus of $22,000 based on sales of just under $1,000,000. In early 1993 Mr Webbe registered with a personnel consultant seeking new employment. He said that he needed a challenge and further progression in his career. It was through this personnel consultant that he eventually came to be employed by Ipex, his employment commencing on 29 November 1993. His employment with Ipex was terminated on or about 12 April 1994. On 8 June 1994 Mr Webbe commenced employment with J.N.A. Network Services as an Account Manager, essentially a sales type position, earning a base package of $50,000 per annum (later increased to $54,000 per annum from 1 October 1994) together with a commission guaranteed at $12,498.00 for the first six months of his employment. The Contract of Employment Prior to commencing employment with Ipex Mr Webbe had a number of pre employment meetings primarily with Joav Schwalb, the son of the Managing Director of Ipex, Mr Joel Schwalb. Ipex provides personal computers for corporate and government businesses. It is one of Australia's largest personal computer suppliers and has recently been developing overseas markets. Apart from the supply of computers the company was also involved in the service of hardware and also in follow-up and service in relation to system and software integration. Prior to Mr Webbe's employment Ari Benesra was the Hardware Maintenance Services Manager and Richard Hunt was the Network Services Manager. Mr Webbe was employed primarily to combine these two divisions into the one area of business in order to improve the efficiency and quality of the company's service provision. His position as National Engineering Services Manager was a new position within the company. The first interview between Mr Webbe and Joav Schwalb took place on 17 August 1993 and a more detailed interview took place on 2 September 1993. Mr Webbe was aware that he was creating a new division within the company and there had not previously been somebody holding his position. His evidence was that Joav gave him six to eight months to complete the creation of the new division and said that there was no real deadline provided he was doing the job. He was to have full accountability for the new division from 1 July 1994. Apart from his role in creating the new division Mr Webbe was also advised that he would manage a Helpdesk project which Ipex was developing and would also be involved with a Telecom project. Mr Schwalb's evidence of the meeting was similar in that he said Mr Webbe would be given three months to set up the guidelines, procedures, structure and business plan for the new division, and would then have three to four months to get the division running before taking full responsibility. There was no evidence given to contradict Mr Webbe's statements that he would be involved with the Helpdesk and Telecom projects. On 8 September 1993 Mr Webbe met with a number of the senior executives of Ipex including Joel Schwalb and David Cohen. They pointed out to him that his key responsibility was the integration and commencement of the new division. Following these meetings a letter of offer of employment dated 17 September 1993 was forwarded by Ipex to Mr Webbe. The letter stated: "Further to our discussions it is a pleasure to offer you employment with Ipex as National Engineering Services Manager. As this is a new position you will be involved in defining your specific job description (this needs to be done during the first three month planning period). Your charter is to (1) enhance and strengthen the Engineering Division of Ipex (2) to manage the division as a separate business unit (responsible to profit and loss). Your base gross wage is $72,000 per annum plus superannuation plus profit share. The profit share is 15% of profit (profit equals sales (collected) less cost of goods sold less expenses) to be paid at the end of the financial year. Ipex will guarantee that the division is running at least at a breakeven point until 30/06/93 (probably meant to be 94), hence any new business generated by you will be entitled to profit share (as per the above determination). On the 1 July 1994 you will take full responsibility on the P and L position of the division. As part of your role we will charge you to suggest a scheme of profit share increases for yourself and technical team. One of the charters of the division is to provide in warranty service and maintenance for Ipex and third party products - no remuneration will be paid to the division for those services. Annual leave entitlement are 20 days, sick leave entitlement is 5 days for the first year and 8 days per year thereafter. You will be reporting to Joel Schwalb. Start date 29 November 1993." The offer was not for any specified time period nor did it provide any indication of a period of notice which could be given by either of the parties. Mr Webbe gave evidence that he was keen to accept the position but was concerned that any profit share would not be paid until the end of the financial year i.e. June 1995 and that he would be unable to meet commitments. A further discussion took place with Joav Schwalb on 27 September 1993 in relation to payment of profit share and commissions. Following those discussions a note was added to the letter of offer of employment. The note stated: "This note is to form part of your offer of employment. The calculation for profit is based on a yearly basis. However commissions are to be paid monthly (once achieving a profit). This will be reviewed on a quarterly basis. ie Month one profit $10,000 you receive $1,500. Month two profit $5,000 you receive $750. Month three loss $6,000 you pay back $900. As long as the full year result is profitable you will receive the equivalent of 15% of the profit". Considerable and generally contradictory evidence was given in relation to the meeting on 27 September 1993. Mr Webbe asserted that with respect to the pre 1 July 1994 period, that he requested only the "direct costs" be counted in calculating his commission and his recollection was that Mr Schwalb agreed. Mr Webbe said that he felt that no running expenses should be included as he was to start with a clean sheet. It seems that although the words "collected" and "new business" appeared in the letter of offer of employment they were not specifically discussed, and it appears that Mr Webbe and Mr Schwalb had different views as to their meaning. In his evidence Joav Schwalb agreed that the question of how to measure the commissions was discussed. He recalled that Mr Webbe had concern over what costs and expenses would be attributed to him and wanted the matter clarified. He disagreed that only "direct costs" or start up costs were to be debited against Mr Webbe and he said that the profit calculation was to be done in the normal manner i.e. including all measurable and known expenses which could properly be related to Mr Webbe's newly introduced business.. However Mr Schwalb certainly agreed that it was contemplated that Mr Webbe could earn a commission prior to 1 July 1994. He said that between November 1993 and July 1994 the first three months were to be spent concentrating totally on developing the new integrated services system and structure and thereafter Mr Webbe definitely had the opportunity to earn commission. From March 1994 at least, he was entitled to a monthly commission on income generated from new business. It was basically conceded by both Mr Webbe and Mr Schwalb that the note forming part of the offer of employment did not adequately reflect their discussions of commission to be paid pre 1 July 1994. Although the letter of offer, subsequent discussions and note leave considerable uncertainty the Court is under a duty to impose a reasonable meaning unless it is utterly impossible to do so. The Court should construe the document fairly and broadly without being too astute or subtle in finding defects: See Hammond v Vam Ltd 1972 2 NSW LR 16, 18; Brown v Gould 1971 2 AIIER 1505. In reaching a conclusion as to what was agreed between the parties primary recourse has to be given to the written documents. In my opinion, given that there is no new definition of profit included in the note the only conclusion that can be properly drawn is that the commission should take account of all expenses that can be reasonably credited to the particular transaction. I reject Mr Webbe's proposition that only direct costs should be included. The proposition lacks commercial credibility and is unlikely to have been accepted by Joav Schwalb. Mr. Joel Schwalb gave evidence that the average profit on a particular service contract was in the vicinity of 15%. Given the uncertainty as to the precise nature and amount of the expenses to be credited to Mr Webbe's new contracts it seems appropriate to work on a 15% profit figure as being fair and reasonable in all the circumstances. In my view Mr Webbe would therefore be entitled to 15% commission on the 15% profit made in relation to any new business. In my opinion the word "collected", requires both a written contract and also some element of payment, in this case the invoicing of the relevant amount. The fact that the written contract is signed gives rise to an entitlement to a commission, which becomes payable upon the invoicing. In my opinion the words "new business" should not be limited to new customers, but can properly include new contracts and new areas of business developed in relation to pre-existing customers of the company. The Employment Mr Webbe commenced employment on 29 November 1993. Prior to commencing employment he had been given a copy of the company's Helpdesk manual by Joav and clearly it was anticipated that he would be involved in the project. Initially Mr Webbe interviewed the heads of the relevant departments and went out on to the road with the engineers, in order to see how the company was carrying out its business. However, within a short period of time Mr Webbe ran into a significant problem in that he found Ari Benesra, the Hardware Maintenance Services Manager was not being co-operative with him. He reported this matter to Joel Schwalb. Joel basically replied to the effect that "I do not give instruction. If you can't sell it to Ari and Richard I won't help". However he did agree to hold a meeting in order to attempt to overcome the problem. Mr Schwalb gave evidence that the management structure of Ipex was non-hierarchal in nature with each manager having responsibility and accounting for his own particular unit. By implication, Mr Webbe was expected to have sufficient control and ability to sell his position in order to get Ari Benesra on side. It appears that toward the end of January 1994 Mr Schwalb was becoming concerned about the lack of progress of Mr Webbe in developing a new division. However, Mr Schwalb said in evidence that he thought Mr Webbe had commenced employment in October, when in fact he had started at the very end of November, and given this misunderstanding Mr Schwalb was probably expecting too much too soon. In any case, in early February a meeting was arranged at which Mr Schwalb, Mr Webbe and Ari Benesra amongst others were present. Rather than becoming a discussion as to how integration should be managed, the meeting became involved with a Department of Defence contract that had been developed by Mr Webbe. Mr Webbe was heavily criticised by both Ari Benesra and Joel Schwalb in relation to his costing of the contract. Mr Joel Schwalb gave evidence that by the end of February he had formed the view that Mr Webbe was going to be unable to develop the structure required for the new division and that the division would therefore not go ahead. Mr Schwalb gave evidence that either the unit could not be created or it would not work. He took the view that Mr Webbe should be moved into a different role and said that he spoke to David Cohen and other executives in relation to alternate work. He called a meeting with David Cohen and other executives to discuss Mr Webbe's on-going role within the company. However, he agreed in cross-examination that although it was open to him to invite Greg Webbe to the meeting , he did not do so. Mr Schwalb said that after the meeting he indicated to Mr Webbe that the new division had not been delivered and did not exist, that Mr Webbe should forget about the new unit and perhaps assist with the Telecom Helpdesk project. I reject Mr Schwalb's evidence in relation to this point. It is clear to me that Mr Webbe was not advised that the project to create a new division was at an end. Indeed, he continued working on the new division and later presented a document on the 29 March in relation to the new division. It is true that Mr Webbe became involved in the Telecom project, but this is what he expected from his pre-employment discussions. Mr Webbe became directly involved in the Telecom project in early March 1994 and attended a meeting at Telecom on 10 March 1994. In mid to late March a further meeting with Telecom was held. Mr Webbe was given the responsibility of introducing parts of the presentation. It appears that Joel Schwalb was unhappy with some of his work and dictated certain changes. On the day of the presentation there was a problem. Mr Webbe gave evidence that Joel Schwalb intervened and made the Telecom parties unhappy. Joel Schwalb's evidence was that Mr Webbe did not properly understand his presentation and that it was Mr Webbe who caused the problem. After that meeting Mr Webbe played a very limited role with the Telecom Helpdesk project. He was told that it was a technical issue and to leave it up to those with greater technical expertise. By early April it seems that Mr Webbe was concerned that he was not attending meetings and not receiving any support from Joel Schwalb. On 7 April 1994 he spoke to David Cohen indicating that he was working very hard and that no one seemed to understand exactly what he was doing. David Cohen suggested that Mr Webbe prepare a list of projects on which he was working and this list was drawn up. Shortly prior to the meeting with David Cohen on 7 April 1994, and at a presentation meeting on 29 March 1994, Mr Webbe had launched a new services manual upon which he had obviously spent considerable time and effort. Mr Webbe felt that this manual was a starting point in the creation of the new division. The Termination On Monday 11 April 1994 Mr Schwalb advised Mr Webbe that his services were no longer required and suggested that Mr Webbe resign. Mr Webbe's evidence was that Joel said to him:- "You have not achieved what you have supposed to have achieved. I have spoken to several managers and they cannot use you. It is not a fault of yours. It is like a marriage gone wrong. You don't fit in with the culture of the company." Mr Schwalb's evidence was similar in that he said that he told Mr Webbe that the unit had not materialised, the Telecom Helpdesk project did not work and David Cohen couldn't work with him. Mr Schwalb agreed in cross-examination that he said that Mr Webbe was hard working and that his performance had been excellent. Mr Webbe showed Joel Schwalb the services specification manual which had been launched at the meeting on 29 March which Mr Schwalb had not attended. It appears that Mr Schwalb was not aware of the existence of that document prior to the decision to terminate. His evidence indicated that it would not have mattered as he saw the document as being a sales and marketing tool that did not constitute the structure which was required. Mr Webbe was shocked by the dismissal and was crying. Mr Schwalb offered to pay Mr Webbe until he was able to find alternate employment. Mr Webbe wished to continue in employment but Mr Schwalb said it was not possible. Overnight Mr Webbe contacted his solicitors and the next day indicated that he refused to resign and demanded nine months salary in lieu of notice. His termination was then confirmed by Joel Schwalb and he was paid one months base package salary in lieu of notice. Was the Termination in Breach of The Act? Pursuant to Section 170DE(1) of the Act the onus is on the Respondent to show that there was a valid reason or reasons for the termination of employment. The primary reason given at the time of termination was that the new division was not or had not been created. If that was the true reason relied upon it seems to me that the Respondent may have jumped the gun. Although it is true that a plan or structure was expected to be in place after three months, Mr Webbe had until 30 June 1994 to have the new division up and running. It seems to me that Mr Schwalb, being mistaken as to Mr Webbe's commencement date, had reached conclusions at too early a stage in relation to the alleged lack of progress of the creation of the division. Further, he had not specifically asked Mr Webbe exactly where the division stood immediately prior to reaching the decision to terminate. It may have been that there were some doubts as to Mr Webbe's capacity, given the conflict over the Department of Defence contract and its costing, and also given the conflict over the Telecom Helpdesk presentation. However, these were not given as reasons by Mr Schwalb at the time of termination. In discussions between Mr Webbe and Mr Schwalb on 12 April some mention was made of a redundancy on the basis that the new division had not been created and that there was not suitable employment elsewhere within the company. On balance, I am not satisfied that there was a sustainable and valid reason in existence at the time of termination. Even if I am wrong in relation to this point, I believe that there has been a clear breach of 170DC of the Act. The section requires that allegations in relation to conduct or performance which might justify termination must be put fairly and squarely to the employee. In relation to the question of Mr Webbe's general competence and performance he called a number of witnesses to establish his capacity and experience. Caroline Lewin a former workmate at Business Computers of Australia Pty Ltd spoke highly of Mr Webbe's competence and confirmed that he had successfully set up BCA's Helpdesk program. Janice Mason who is the Helpdesk coordinator at Nissan confirmed that Mr Webbe implemented the Helpdesk system and was very successfully involved in its installation and training at Nissan. Darren Buller was employed by World Vision at the time of its initial dealings with Ipex. He spoke very highly of Mr Webbe and felt that the level of service from Ipex dropped when Mr Webbe left. All in all, it seems that Mr Webbe's performance in terms of Helpdesk and maintenance and service was generally said to be first class. I find that prior to his termination allegations that Mr Webbe had failed to set up the new division were never specifically put to him. There was no formal meeting arranged in which Mr Webbe was asked to state the exact state of the project and present all of the relevant information regarding the new division to Mr Schwalb. At the very best, there were only informal and infrequent mentions of the matter by Mr Schwalb to Mr Webbe. Indeed, although Mr Schwalb may have felt that the project was at an end by late February, I find that Mr Webbe was not so advised, nor was he notified that his position within the company was being changed. Indeed, Mr Webbe continued working on the establishment of the new division. In so far as matters of general performance are concerned I find that although there was one meeting involving the Defence Department contract at which issues were raised, there were no other meetings or matters which were specifically raised with Mr Webbe. There is certainly no other evidence that he was warned or counselled in relation to his performance. I further find that the termination was harsh unjust or unreasonable and in breach of Section 170DE(2) of the Act. In late February when Mr Joel Schwalb decided that the creation of the new division would not proceed he did not advise Mr Webbe of this fact. Further, although he arranged a meeting with a number of executives to decide what Mr Webbe should do, he did not invite Mr Webbe to this meeting nor did he consult him in relation to the matter. Further, when he was considering other alternatives for Mr Webbe there was again no consultation at all with Mr Webbe. If it was a redundancy type situation then there was a complete absence of consultation, notice and the application of objective criteria to the termination of Mr Webbe's employment. Although there was evidence called at the trial to criticise Mr Webbe's costing of both the World Vision contract and the Defence Department contract these particular calculations were not put to him prior to termination. The Respondent argued that as a senior manager with a very responsible position and almost total responsibility for the creation of the new division, that Mr Webbe should have been aware of his own shortcomings and should have been aware of the fact that the company was unhappy with his performance. There is some merit to this argument but it certainly does not absolve the Respondent from its legal responsibility to properly inform the Applicant of its concerns, although arguably a lesser standard is required in this type of situation. Remedy In relation to the claim for wrongful dismissal it is my view that taking into account the factors referred to in Macken McCarry and Sappideen "The Law of Employment" 3rd edition 1990 at pages 157 and 158 that four months notice would have been reasonable in all the circumstances. Although Mr Webbe was in a senior and well paid position he is a young man with apparently good job prospects and he had made his own decision to leave his previously secure employment prior to being approached by the Respondent. Given that finding it seems to me that he can be adequately compensated pursuant to Section 170EE of the Act. In relation to his claim for commissions pursuant to his contract of employment Mr Webbe claimed commissions in respect to four contracts - Crown Casino, World Vision, Department of Defence and Department of Agriculture. Although Mr Webbe was of the view that the Department of Agriculture contract had received a verbal okay I find that no contract was entered into and that the contract has not proceeded. In relation to the Crown Casino contract there was considerable argument as to whether this was "new business" and whether Mr Webbe made a substantial contribution to the contract. Although Crown Casino was already a client of Ipex I find that the service and maintenance agreement constituted "new business" and after considering the evidence I find that Mr Webbe had considerable involvement in the development of the new contract in terms of both negotiation and the actual drawing up of the contract. It was suggested in cross-examination that the original salesman Rick Benjamin should be entitled to the commission, however Mr Webbe's evidence was that Rick and himself had agreed that 25% of the sale would be attributed to Rick and that the balance would be attributed to Mr Webbe. This evidence was not contradicted and seems to be consistent with the fact that Mr Webbe made a substantial contribution. The final contract was not signed until June 1994 and invoiced in July 1994 However, I find that if Mr Webbe had continued in his employment with the Respondent it is almost certain that he would have been involved in the final contract and therefore it is proper to include the relevant commission as part of compensation pursuant to 170EE of the Act. In relation to the World Vision contract there was some argument as to Mr Webbe's involvement, but I find that he was involved in several weeks of negotiation and arranged the final signing of the contract. Further, there was criticism that the World Vision contract was under-priced but Mr Webbe gave evidence that the price was agreed with Ari Benesra and this was uncontradicted. Further, although the contract had been in existence for a considerable time up to the date of hearing, there was no evidence called to show that was any problem with the pricing or costing. The contract in relation to this matter was signed on 24 March 1994 whilst Mr Webbe was still employed. Although the invoice was raised on 4 May 1994 after the termination, I find that pursuant to the contract of employment he is still entitled to commission in relation to the World Vision contract. In relation to the Department of Defence contract it was agreed that Mr Webbe had total responsibility for the development of this new business. However, there was very strong criticism of his costing of the project. Although it was put in cross-examination that the project was running at and will run at a loss there was no evidence called to support this proposition. Indeed, David Cohen, who was said by Mr Schwalb to be the man who would know best, said that he generally only gets involved in on-going maintenance contracts where there are problems. He was unable to comment on how the Department of Defence contract was performing and accordingly the inference can be drawn that there were no on-going problems. The contract was signed on 14 February 1994 and the matter was invoiced shortly after termination on 15 April 1994. I find that Mr Webbe is entitled to a commission in relation to this contract pursuant to his contract of employment. I calculate the commission as follows: World Vision contract $49,350 Department of Defence contract $35,000 $84,350 Expected 15% gross profit $12,652 15% commission owing to Gregory Webbe $ 1,898 As I have said previously in relation to the Crown Casino contract I believe that it is appropriate to award the relevant commission as compensation pursuant to Section 170EE. I calculate the commission as follows: Total sum of contract $145,591 less 25% attributable to Rick Benjamin = $109,193.00 Estimated 15% gross profit $16,378.95 15% commission to Greg Webbe $2,457.00 I note that Mr Webbe was unemployed from the date of termination for eight weeks until his re-employment on 8 June 1994. His base salary package during that period would have been the sum of $11,077. His anticipated commission, based on the commissions earned during the last two or three months of his employment when he started taking on the sales work and his own project list, I estimate at $3,000, giving a total of $14,077. He was paid the sum of $5,533 upon termination, the net balance being $8,544. I find that he is entitled to this sum by way of compensation. Fortunately, Mr Webbe has bounced back fairly quickly and has found new employment. However, his earnings are less than that which he could have expected to earn with Ipex taking into account his anticipated commissions and base salary package. Given that Mr Webbe has obtained new employment and given that the decision has been made by Ipex not to proceed to create a new division, reinstatement was not sought and indeed would seem to be impracticable in the circumstances. In relation to what further compensation, if any, should be payable I take into account the following factors:- (a) The reasonable notice period as previously discussed; (b) The effect on Mr Webbe's reputation within the information technology industry. I note Mr Schwalb eventually agreed in cross-examination that it was a reasonable concern to Mr Webbe that a short period of employment followed by a termination might have an impact on his reputation; (c) The fact that Mr Webbe's new position was effectively a demotion from his previous two employment positions; (d) I also take into account the fact that there seemed to be a personality conflict, certainly between Ari Benesra and Mr Webbe and perhaps to some extent also between Mr Joel Schwalb and Mr Webbe. Further, it seems that most of the senior executives of the Respondent were somewhat older than Mr Webbe and perhaps used to adopting different methods. Indeed, one of the reasons given by Mr Schwalb for the termination was that Mr Webbe did not fit into "the culture" of the company. Mr Webbe seemed to have some difficulty fitting in to the company's management structure. In those circumstances, it may well have been that Mr Webbe and the Respondent may have reached some mutual agreement to lawfully terminate the employment at some stage. (e) Superannuation contributions payable by the Respondent. Taking into account all of those factors I believe that it is appropriate to award further compensation in the sum of $5,000. THE COURT ORDERS: (1) Pursuant to the contract of employment the Respondent pay the Applicant the sum of $1,898 being commissions due and owing to him. (2) Pursuant to Section 170EE(2) the Respondent pay the Applicant compensation in the sum of $16,001. (3) There be a stay of twenty-eight days with respect to the total sum payable of $17,899. I certify that this and the preceding twenty three (23) pages are a true copy of the Reasons for Judgment of Judicial Registrar Chancellor Associate Date 2 February 1995 Appearances: Counsel for the Applicant Ms Bernice Wearne Solicitors for the Applicant Mr Webster, J M Smith & Emmerton Counsel for the Respondent Mr Bruce Shaw Solicitors for the Respondent Mr D J Marks, VECCI