Industrial Relations Commission of New South Wales in Court Session CITATION : Ross v GN Comtext (Australia) Pty Limited [2000] NSWIRComm 133 APPLICANT: David Ross PARTIES : RESPONDENT: GN Comtext (Australia) Pty Limited FILE NUMBER: IRC 6383 of 1998 CORAM: Walton J Vice-President Unfair contract - multinational corporations - applicant moved between various countries over a number of years at employers request - redundancy - calculation of notice period - in circumstances of case period of employment with parent company overseas considered to be relevant to calculation of notice period when made redundant in Australia - relocation of emploee at employers request relevant to calculation of notice - one month notice plus one month ex gratia payment considered unfair - severence payment - redundancy and severance payments conceptually distinct CATCHWORDS : Contract of employment - finding of an arrangement between parties resulting in work in an industry - finding of arrangement treated as a contract for the purposes of s106 - finding of arrangement makes the question of contract in strict sense irrelevant for purposes of s106 - commission payments excluded from assessment of compensation Mitigation - mitigation will not strictly apply in all cases - applicant did not act unreasonably in the circumstances - contract varied - payments for notice and severance ordered LEGISLATION CITED : Industrial Relations Act 1996 s105 & s106 Abboud v The State of New South Wales (Department of School Education) No.2 [2000] NSWIRComm 110 Baker v National Distribution Services Limited (1993) 50 IR 254 Barclays Australia Investment Services Limited v Nordby (unreported, Bauer, Glynn and Hill JJ, CT 93/1205, 5 October 1995, at 33) Bankstown City Council v Paris (unreported, Wright J President, Peterson J and Bishop C, matter no 262 of 1999, 23 August 1999) Caine v LEP International Pty Limited (unreported, Glynn J, IRC 98/2441, 27 October 1999) Day v Lumley Life Limited (1997) 90 IR 70 Fryar v System Services Pty Ltd (1996) 137 ALR 321 Gala v State Bank of New South Wales (1998) 84 IR 216 Harcourt Brace & Company (Australia) Pty Ltd v Cory (1998) 81 IR 321 ICI Operations Pty Ltd (T/as Dulux Australia) v Hutton (1993) 47 IR 288 CASES CITED : Lavings v Barclay Mowlem Construction (New South Wales) Pty Ltd (unreported, Hill J, CT93/1233, 15 September 1994) Martin v National Textiles Limited (unreported, Schmidt J, IRC 98/5100, 21 February 2000) Michel v Ogilvy & Mather Pty Limited (1996) 71 IR 417 Newton v Goodman Fielder Mills Ltd (1997) 81 IR 227 Nordby v Barclays Australia Investment Services Limited & Anor (1993) 53 IR 319 Pavior-Smith & Anor v The National Mutual Life Association of Australasia Ltd (1999) 91 IR 8 Payne v Foxboro L & N Pty Ltd & Another (1998) 81 IR 404 Port Macquarie Golf Club Limited v Stead & Another (1996) 64 IR 53 Pullen v R & C Products Pty Ltd (1994) 60 IR 183 Re Redundancy Awards (1994) 53 IR 419 Starkey v Healthcare Corporation Pty Limited (unreported, Maidment J, IRC 97/6613, 24 August 1999) Wheeler v Philip Morris Limited (1989) 32 IR 323 HEARING DATES: 03/06/2000; 03/13/2000 DATE OF JUDGMENT: 08/31/2000 APPLICANT: Mr Gotting of Counsel SOLICITOR: Ms Petrine Costigan Haywards Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr Moses of Counsel SOLICITOR: Mr Richard Pegg Toomey Pegg Drevikovsky Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President 31 AUGUST 2000 MATTER NO. IRC 6383 OF 1998 DAVID ROSS v GN COMTEXT (AUSTRALIA) PTY LIMITED Application under section 106 of the Industrial Relations Act 1996. JUDGMENT Introduction 1 These proceedings arise from circumstances which have become increasingly common for professionals working in such fields as international business, finance or technology. Individuals are asked or encouraged by their employers to take up positions in different locations around the world. Frequently the individual will be working for or with various corporate entities within a large multinational corporate group. Each entity within the group may be incorporated under, and governed by, the law of a different country and its operations may be related to those of the corporate group in a more or less direct manner. Such a situation gives rise to issues, some of which are borne out in this case, as to the employment status and circumstances of the person so engaged. 2 The applicant in these proceedings, David William Ross, commenced employment with Comtext International Limited (later known as GN Comtext Limited), a company incorporated in the United Kingdom, on 1 September 1990 as a Technical Support Executive in the head office in London. The applicant was subsequently appointed to the position of Area Sales Manager in Jeddah and Saudi Arabia before taking up a position as Technical Advisor in Indonesia from March 1993 onwards. He was later promoted to the position of Comtext International's Business Development Manager for Indonesia during 1997. The applicant continued in that position until late 1998. At that time, the company's operations in Indonesia became untenable as a result of a dispute with an ex-agent and it was necessary for him to leave the country immediately. 3 It was then determined, apparently by officers of GN Comtext Ltd in London, that the applicant would be transferred to Australia as the Business Development Manager for the respondent company in these proceedings, GN Comtext (Australia) Pty Ltd. The applicant was apparently amenable to moving to Australia. He had by that time married an Australian national whom he met whilst working in Indonesia. To facilitate the transfer, a business sponsorship was arranged in order for the respondent to sponsor the applicant to obtain a working visa for Australia. A working visa, valid for a period of 24 months, was subsequently obtained. The applicant arrived in Australia on 15 December 1997 and commenced employment as Business Development Manager on 1 January 1998. On 26 January 1998, the applicant received a letter from Klaus Irner of GN Comtext Ltd in London confirming his salary package for 1998. In substance, the letter stated that from 1 January 1998 the applicant's target salary would be $110,000 which would be split into $80,000 basic salary and $30,000 target commission. It appears that ordinarily the commission was payable upon the achievement of pre-determined sales targets. The applicant was also to receive a car allowance, the amount of which was confirmed at a later date to be $1,000 per month, payable when he purchased or leased a vehicle on a long term basis. 4 At the commencement of his employment in Australia, the applicant stated that he briefly occupied the position of Acting Country Manager for the respondent before reverting to his position as Business Development Manager. The position of Business Development Manager involved identifying and exploiting key market opportunities in the financial, transportation and trading sectors, building alliances with specialist software businesses and developing a network of distributors for Comtext products and an infrastructure of sales and technical support. The applicant continued in this capacity until 1 June 1998. On that date, he received a letter from the Country Manager of the respondent for Australia (Mr Steven Cranitch) informing him that his position had been made redundant, effective immediately. The text of the letter was as follows: It is with regret that I have to inform you that your position has been made redundant, effective immediately. This has been caused due to the poor financial position the company is in. You will be paid your full holiday leave entitlements, and you will also receive one months basic salary and one months car allowance. The company also wishes to give you one extra month's basic salary and one extra months car allowance, as an ex gratia payment. These will be deposited in your bank account as soon as possible. You will also be required to return all company property. You will also be reimbursed any reasonable relocation costs to the UK for yourself and your wife, upon prior agreement with myself, and presentation of acceptable receipts. This relocation must take place within three months of 1st June 1998. If you intend to stay on in Australia, the company will pay you an additional one months basic salary in lieu of repatriation costs. I would like to thank you for your service to the company. 5 The applicant was subsequently paid a total of $13,333.34 by the respondent, representing two months basic salary. He was not immediately paid his outstanding annual and long service leave entitlements and commenced proceedings before the Chief Industrial Magistrate's Court in respect of those monies. Those proceedings were eventually settled. Following his termination, the applicant decided to stay in Australia and commenced looking for alternative employment both by applying directly to prospective employers and through a number of employment agencies. There were some problems obtaining an appropriate visa and it was not until 27 October 1998 that the applicant was issued with a bridging visa entitling him to work in Australia. According to his evidence, the applicant was unemployed until he commenced a new position as a Data Sales Specialist for Telstra on 26 April 1999. The Application 6 On 2 December 1998, the applicant filed a summons for relief under s106 of the Industrial Relations Act 1996 ("the Act") alleging that his contract of employment with the respondent was unfair, harsh or unconscionable. Section 106 provides: 106. Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. 7 Section 105 provides: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 8 The summons for relief set out the relief sought by the applicant in the following terms: 1. An order declaring void in whole or in part or varying in whole or in part either from its commencement or from some other time the contract of employment between the Applicant and the Respondent under which the Applicant performed work in an industry. 2. Further, in addition, an order that the contract of employment between the Applicant and the Respondent under which the Applicant performed work in an industry was unfair, harsh and unconscionable and contrary to the public interest. 3. Further, in addition, an order varying the contract of employment between the Applicant and the Respondent from its commencement so as to include the following terms: (a) termination of employment shall not be harsh, unjust or unreasonable. For the purpose of this clause termination of employment shall include termination with or without notice; (b) upon termination of employment for any reason the Respondent shall give to the Applicant eighteen (18) months notice of termination or payment in lieu of such notice of termination; (c) for the purpose of (b) above payment in lieu of notice shall be calculated by reference to the total value of all benefits that the Applicant would have received during the notice period. 4. Further, in addition, an order that the Respondent pay to the Applicant such amount of money in connection with the contract so avoided or varied as may appear to be just in the circumstances. 5. An order that the Respondent pay to the Applicant interest upon such amount of money as is ordered to be paid to the Applicant in connection with the contract at such rates and from such time as this Honourable Commission considers appropriate. 6. An order that the Respondent pay the Applicant's costs of these proceedings. 7. Such further or other orders as this Honourable Commissioner considers appropriate. 9 The grounds advanced in support of the orders sought were as follows: 1. The Respondent was, at all material times, and is a company capable of being sued in and by its corporate style and title. 2. The Applicant was an employee of the Respondent occupying a senior executive position within the Respondent's business and was appointed in January, 1998 to Business Development Manager and also Acting Country Manager of Australia. 3. The Applicant commenced employment with the Respondent's parent company in September, 1990 based in its head office in London. 4. It was a term of the Applicant's contract of employment that the Applicant's employment could be terminated upon the giving of one (1) weeks basic salary for each year of service. 5. From January, 1992 to February, 1993 the Applicant was Area Sales Manager for the Respondent services in Jeddah, and Saudi Arabia. 6. In March, 1993 the Applicant was transferred to Indonesia where he was Technical Advisor to July 1997. 7. In August, 1997 the Applicant was appointed to Business Development Manager in Indonesia. 8. The Applicant was instructed to leave Indonesia in November, 1997 as there was an unacceptable risk both to the Applicant and the Company. 9. The Applicant was instructed to go to Australia and arrived in Australia on 15 December 1997. 10. Upon arrival in Australia, the Applicant was appointed as Acting Country Manager/Business Development Manager. 11. By letter dated 1 June, 1998 from Mr Stephen Cranitch, Country Manager, Australasia, the Applicant's employment was terminated on the basis that his position had been made redundant. 12. The Applicant was given no notice of termination or payment in lieu of notice of termination. 13. The Applicant is currently a temporary resident in Australia and is awaiting the outcome of a permanent residency application. 14. The contract of employment between the Applicant and the Respondent under which the Applicant performed work in an industry was and is unfair, harsh and unconscionable and contrary to the public interest in that: (a) it permitted the Respondent to terminate the contract of employment without any or any sufficient reason or valid reason; (b) it invested the Respondent with significant discretionary powers which may and have been used to the substantial disadvantage of the Applicant particularly in the circumstances relating to termination of the contract and/or the failure to continue the Applicant's employment; (c) the Applicant was at all material times in a position of unequal and inferior bargaining power in respect of his dealings with the Respondent and was specifically in such a position at the time of termination; (d) it permitted the Respondent to deprive the Applicant of significant benefit of long term secure career employment in circumstances which were erroneous and which had no foundation in fact; (e) it failed to provide for the giving of a fair and appropriate period of notice of termination of employment in all the circumstances; (f) it failed to provide for any or any reasonable payment to the Applicant by the Respondent upon termination of employment for any reason; (g) it failed to provide for payment of compensation to the Applicant by the Respondent in circumstances where the Respondent wrongfully terminated the contract in such a manner and for such reasons would cause the Applicant distress, anxiety and damage to his good name and character; (h) it failed to protect the Applicant against harsh, unjust and unreasonable dismissal; (i) it permitted the Respondent to terminate the contract in circumstances for reasons that were wrong and had no basis in fact or in law; (j) it failed to contain provisions and protection consistent with Australia' international obligations under the International Labour Organisation's Termination of Employment at the initiative of the Employer Convention to which Australia is a party; (k) it was unfair in its terms as to the circumstances in which a bonus would become payable to the Applicant by the Respondent in that the Respondent retained a discretion to withhold payments of a bonus to the Applicant upon termination of employment; (l) it was otherwise unfair, harsh and unconscionable or contrary to the public interest upon such ground and for such reasons as this Honourable Court may find. 10 The pleading in this matter, as is not unusual, raised a plethora of issues which as a result of the course of the proceedings may not prove necessary to determine. For instance, the summons listed a range of matters which were said to establish the unfairness of the contract of employment between the applicant and the respondent. At the commencement of submissions, Mr Gotting of counsel, who appeared for the applicant, indicated that the allegation of unfairness in the contract of employment related primarily to two matters; the adequacy of the period of notice given to the applicant upon termination and the lack of provision for severance pay. The case was advanced on that basis. 11 In a further attempt to clarify the issues which were in fact in dispute and essential to the application, the Court directed that the parties prepare an agreed statement of issues. A draft statement of issues was filed by the parties and following discussion during the hearing a final version was agreed upon. The statement of issues thereby agreed between the parties was in the following terms: 1. Was the applicant employed under one contract of employment with Comtext International Limited (later known as GN Comtext Limited) a company incorporated in the United Kingdom (registration number 2308627) ("GN Comtext") commencing on 1 September 1990 and ceasing on 1 June 1998 or under a separate contract(s) of employment with the respondent and/or other subsidiaries? 2. Was the relationship between the applicant and the respondent an employment relationship pursuant to a contract of employment? 3. Was the relationship between the applicant and the respondent pursuant to an arrangement, or a related condition or collateral arrangement as distinct from an employment relationship? 4. Having regard to the answers to 1, 2 and 3 above, is the applicant entitled to a payment in lieu of notice in addition to the two months notice paid to him at the time of termination? 5. If the applicant is entitled to an additional payment in lieu of notice, what notice is the applicant entitled to receive? 6. Is the applicant entitled to receive a severance payment? 7. In calculating any additional payment in lieu of notice or severance payment, is the calculation based on: (a) base salary and car allowance; or (b) base salary, car allowance and "commission"; or (c) some other formula. 8. Did the applicant have a duty to mitigate his alleged loss and if so how does this impact on the Commission's exercise of discretion pursuant to s106(5) of the Act in awarding compensation? 12 As will become clear, even this list of issues was further reduced during the course of the hearing. However, it is convenient in this case for the judgment to follow the general structure of the statement of issues identified by the parties. The Jurisdictional Argument (Issues 1, 2 and 3) 13 Counsel for the respondent, Mr Moses , initially submitted that there was a jurisdictional impediment which would prevent the Court granting the orders sought by the applicant. According to Mr Moses , the case advanced by the applicant appeared to depend upon establishing that a contract of employment had been entered into between the applicant and the respondent following the applicant's arrival in Australia. Mr Moses submitted that there was no evidence which could satisfy the Court that there had been at any time a binding contract of employment between the applicant and the respondent which was capable of being varied by the Court, let alone evidence going to the terms of any such contract. The inference which should be drawn from the uncontested evidence was that the United Kingdom company had at all times a continuing contractual relationship with the applicant. Mr Moses pointed to the fact that the United Kingdom company made an offer to return the applicant to London and that the applicant was having ongoing discussions with the representatives of the United Kingdom company. 14 Further, Mr Moses submitted that the applicant's case was characterised by what he referred to as a shifting sands approach. The applicant's case appeared to assume that there was a new contract formed upon his arrival in Australia, but also sought to establish that there was some alternative form of arrangement which would allow the Court to take into consideration not only the period of employment in Australia, but also the period of employment since 1990. It was submitted that the applicant should have joined the United Kingdom company to the proceedings. Having not done so, the applicant is required to establish that there was a contract formed with the respondent. It was not sufficient, it was said, for the applicant to make general assertions as to the existence of a contract without addressing fundamental questions relating to the terms of the contract and what matters are relied upon as establishing the existence of the contract. 15 However, Mr Moses , later in the proceedings, conceded that, in light of the definition of "contract" contained in s105 of the Act, it was at the very least possible to say that there existed an "arrangement" between the applicant and the respondent whereby the applicant performed work in an industry in New South Wales. He submitted: It is open to your Honour, I must concede, to find that in the circumstances of this case that there was on the balance of probabilities an arrangement that existed between the applicant and the respondent whereby work was performed in a New South Wales industry. I do not think on any proper analysis one could run away from having to make that concession and I do make that concession. 16 Mr Moses further conceded that the answer to the third question raised in the statement of issues was affirmative and thereby the Court was not required to consider the second question (whereby the issue of jurisdiction had been raised with respect to the contractual relations between the applicant and the respondent). 17 In my view, these concessions were properly made. I consider that the Court has jurisdiction to determine the present application. It is pertinent to repeat that a "contract" for the purposes of s106 of the Act includes "any contract or arrangement, or any related condition or collateral arrangement". For present purposes, once it is established that there was an "arrangement" between the parties, then that arrangement (having regard to the provisions of s105 of the Act) is amenable to the jurisdiction of this Court in the exercise of its powers to make orders declaring contracts void (in whole or in part) or varying those contracts pursuant to s106. 18 Whether there was a contract, in the strict sense, between the applicant and the respondent is irrelevant, at least so far as jurisdiction is concerned, so long as it is found there was an arrangement whereby a person performs work in any industry. Having in mind these considerations, where I use the expression 'contract' in this judgment (including the orders made by the court) I do so in the extended sense arising from the definition of the word 'contract' in s105 of the Act (and in particular, by reference to the arrangement between the parties in this matter). 19 As Mr Moses conceded, any cursory examination of the facts of this case quickly reveals that the applicant was involved, at the very least, in an arrangement whereby he was to perform work in Australia for the respondent. Although his move to Australia was directed by representatives of the United Kingdom company in London, it was immediately envisaged that he would be working for the Australian arm of the company, that is, the respondent. The work he performed whilst in Australia was directly for and to the benefit of the respondent and he was in daily contact with other senior employees of the respondent. He was paid initially from London, but, as soon as could be arranged, was transferred to the payroll of the respondent. The applicant's letter of termination was written on behalf of the respondent. The termination payments were made by the respondent. Deductions for income tax were withheld from the applicant's salary by the respondent. 20 In my view, there was clearly an arrangement for the performance of work between the applicant and the respondent. The existence of the arrangement resolves the jurisdictional objection. It is, therefore, unnecessary to resolve the questions as framed by the parties in issues 1 and 2 of the statement of issues. It is unnecessary to determine any jurisdictional question concerning whether there was a separate contract entered into between the applicant and the respondent upon his arrival in Australia. The Adequacy of the Notice Period (Issues 4 and 5) 21 The first substantial argument raised on behalf of the applicant as to the unfairness of the contract concerned the inadequacy of the period of notice given by the respondent upon termination. Mr Gotting submitted that, in the circumstances of this case, the provision of one month's pay in lieu of notice plus an additional month described as an "ex gratia" payment was not adequate. 22 In considering what may constitute a fair and appropriate period of notice, Mr Gotting submitted that it was proper for the Court to take into account the applicant's period of service with the United Kingdom company since 1990. Mr Gotting submitted that a number of authorities indicate that service with related bodies corporate can be taken into account in assessing a fair period of notice for the purposes of s106. He referred specifically to the decision of Schmidt J in Nordby v Barclays Australia Investment Services Limited & Anor (1993) 53 IR 319, the decisions of Hill J in Payne v Foxboro L & N Pty Ltd & Another (1998) 81 IR 404 and Newton v Goodman Fielder Mills Ltd (1997) 81 IR 227. Mr Gotting was unable to refer to any specific authorities which dealt with the circumstance of employment with related overseas companies, but pointed to a number of decisions concerning long service leave in which periods of overseas service had been considered. 23 Mr Gotting cited two documents tendered in the proceedings which supported the view that the respondent treated the applicant in light of his entire service. Firstly, the applicant's original employment contract with Comtext International Limited (dated 1 January 1991) recognised that continuous service could include periods of employment with other companies which were then related to the company. Secondly, Mr Gotting referred to an e-mail from Kay Fairgrieve, Human Resource Manager for GN Comtext in London, to Stephen Cranitch in which she acknowledged that it would be "fair to recognise his [the applicant's] length of service with the whole group." 24 In asserting that the period of notice provided by the respondent was unfair, Mr Gotting referred to a number of aspects of the case. In particular, Mr Gotting cited the applicant's service with the Comtext group of almost eight years and the fact that he had moved around the world during this period of service. Mr Gotting highlighted the difficulties encountered by the applicant in obtaining alternative employment. The applicant did not obtain further employment until 26 April 1999. Mr Gotting contended that the applicant was a senior employee of the respondent and referred to passages from the application for business sponsorship in which the respondent acknowledged the skill and experience of the applicant and his importance to their organisation. The applicant's seniority was said to impact upon the reasonableness of the notice he received. 25 Mr Gotting referred to a number of additional matters which were said to have caused unfairness to the applicant. These included the fact that the applicant was not given the opportunity to serve out the period of notice and potentially transfer his sponsorship for the purposes of his working visa to another employer. As it was, the respondent withdrew its sponsorship of the applicant immediately forcing him to obtain further documentation in order to retain his entitlement to work in Australia. Mr Gotting also indicated that the payments in respect of annual and long service leave were not paid on termination and the applicant was forced to commence proceedings before the Chief Industrial Magistrate in order to recover the money to which he was entitled. 26 Mr Moses contended that in considering the fairness of the notice period the Court should have regard only to his period of service directly with the respondent whilst in Australia. That is, only the period of service commencing 1 January 1998 and ending 1 June 1998. If there was any arrangement with the respondent, the arrangement was limited to that period. He contended that there was no evidence to suggest that there was any representation on behalf of the respondent that there was a guarantee of employment or that the applicant's service in Australia was considered a continuation of his service with the United Kingdom company. Neither was there any express term to that effect in the contract, nor was there any evidence that the applicant was under a misapprehension as to the terms of his employment. In light of service of less that six months duration, Mr Moses submitted that the payment of one month's salary in lieu of notice plus another one month's payment for redundancy was entirely fair and reasonable. 27 In assessing the adequacy of the notice period which was afforded to the applicant, it is firstly necessary to consider whether that assessment should be made in light of the applicant's employment with the Comtext group since 1990. Having considered the circumstances of the case and the submissions advanced by the parties, I consider that it is proper to have regard to the entire period of service. I do not accept the submission advanced on behalf of the respondent that the fairness of the notice period afforded to the applicant should be assessed as though he had been employed only for a period of less than six months. Such an approach plainly ignores the reality of the applicant's employment situation, including his length of service and level or status of his position. 28 There are a number of cases in which it is clear that periods of employment with related entities has been considered in determining the fairness of an employee's treatment. In Payne v Foxboro L & N Pty Ltd , for example, Hill J considered the case of an employee who had been employed by a number of related companies over a period of 27 years, all of which had been under the direction of two United States parent companies. In determining the fairness of the notice of termination provided by the employer, Hill J clearly considered the entire period of service. His Honour concluded (at 407 - 408): So far as notice is concerned, it seems to me that the provision in the contract and/or arrangement for a period of one months notice of termination plus one months pay in lieu (the unilateral general policy of the respondents and their US parent/s) is patently unfair in the case of the applicant having regard to his length of service and the status of his position. He had been the National Sales Manager of the respondent/s since 1993 and prior to that the NSW Sales Manager since 1982, and with overall service in excess of 27 years. During the latter periods of his employment he was the most senior "technical" employee of the company in Australia and reported directly to the US parent; and it was his responsibility to ensure that its policy of "Business as usual" was complied with in order to make the business as attractive as possible so that the US parent could achieve its objective of sale. In my view, a period of 12 months notice (or payment in lieu) would have been fair and reasonable. 29 It is true that no authorities were cited in which the applicant had been employed by a related entity outside Australia. However, I do not consider that this fact alters the approach which may properly be adopted. The evidence in this case established that there was at all times a close relationship between the United Kingdom company and the Australian operations. The applicant took up the position in Australia at the behest of the United Kingdom company and presumably to best serve the interests of the Comtext group. His appointment in Australia followed assignments within the group in Saudi Arabia and Indonesia. The United Kingdom company was closely involved in the supervision of the respondent's operations in Australia and its relations with staff. It is clear that the United Kingdom company controlled the group's worldwide operations. Furthermore, at the time of the termination the United Kingdom company indicated its willingness to repatriate the applicant to a position in London and make him redundant under United Kingdom law. That act confirms that the respondent itself viewed the applicant as involved in a continuous period of service. To treat the applicant's period of service in Australia in isolation would be artificial and would result in obvious unfairness. 30 This conclusion does not involve, as Mr Moses at one point suggested, an unwarranted lifting of the corporate veil. The task of the Court in a matter such as the present one is to determine whether the contract between the applicant and the respondent or the operation of that contract or arrangement was, amongst other things, unfair, harsh or unconscionable. That determination must be made in light of the entire circumstances of the case: see Port Macquarie Golf Club Limited v Stead & Another (1996) 64 IR 53 at 67. The relevant circumstances in this case must, in my view, include the fact that the applicant had been employed by the respondent's parent company for a period of almost eight years prior to taking up the position in Australia. It would not have been conscionable for the respondent to treat the applicant as if he were a new employee coming to the company from an unrelated position. The respondent should, in my view, have treated the applicant as a person with a history of continuous service to the group of companies and recognised that factor in the operation of the contract or arrangement entered into with the applicant. 31 In considering whether a contract is unfair the Court will have regard to the legal relations between the parties, and therefore, the question of legal form. However, by its very nature, the jurisdiction of the Court is not necessarily limited by legal forms. So much is the case where the Court is required to consider arrangements between parties. Further, the Court should look to, in my view, the reality of the relationships existing between the parties and not merely to the legal form. I note that, in this case, the legal form was not created for the benefit of the applicant. 32 I now turn to consider whether the contract was unfair in view of the period of notice which was provided to the applicant by the respondent. There was no serious dispute concerning the kind of factors which may be relevant in assessing whether a period of notice given on termination is fair or unfair. In Lavings v Barclay Mowlem Construction (New South Wales) Pty Ltd (unreported, Hill J, CT93/1233, 15 September 1994), for instance, Hill J stated (at 12 - 13): As to the period of notice the authorities demonstrate that the period of 'reasonable' notice to be implied in a contract of employment which is silent on the matter depends upon all relevant circumstances of the particular employment, including (but not limited to) the nature and status of the position, the degree of responsibility and authority involved, the qualifications and experience necessary, the availability of suitable alternative employment, the amount and form of the remuneration and the basis upon which it is expressed, any relevant trade custom or practice and the length of service of the employee. In the present case, of course, the contract contains express provision for notice of termination and the issue is whether it is fair or unfair in the context of the contract as a whole, the circumstances in which it was made and the circumstances of its application and operation. 33 This passage was endorsed by the Full Bench in Port Macquarie Golf Club v Stead (at 65). With respect, I adopt the summary of the approach to be adopted in Barclay Mowlem Construction for the purposes of considering the fairness of a notice period in this case (see also Pullen v R & C Products Pty Ltd (1994) 60 IR 183 at 210). 34 In this matter, I have formed the view that the provision of one month's pay in lieu of notice plus a payment of an additional month, described as an "ex gratia" payment, was inadequate when tested against the standards of fairness. When assessing the fairness of the notice provided by the applicant a number of features of the case stand out. The applicant was, as mentioned, employed by the Comtext group, of which the respondent formed part, in a variety of positions for a period of almost eight years. Whilst this period does not represent anywhere near the entirety of the applicant's working life, he nonetheless devoted a substantial period of time and effort to the corporate group. This is, in itself, a significant factor calling for the respondent to provide the applicant with a substantial period of notice upon redundancy. 35 In addition to the period of time which he was employed, it is, in my view, relevant to note that the applicant was moved to different positions around the world. Prior to taking up the position in Australia, the applicant was employed in long term appointments in Saudi Arabia and Indonesia. Where employees are compelled or encouraged to relocate to a new country in pursuance of their work, a reasonable employer would extend even greater consideration should it become necessary to make that employee redundant. Certainly, the respondent should have borne in mind this consideration in its treatment of the applicant in the arrangements it made with the applicant for the performance of work in Australia. The evidence also established that upon arriving in Australia the applicant was permitted to form an expectation that his employment would continue for some period. The applicant was sponsored for a working visa which was valid for a period of two years and relied upon an ongoing position in Australia. He had, for instance, leased a rental property shortly before he was informed of his redundancy. 36 The applicant occupied a relatively senior position in the respondent's organisation, although perhaps not in the highest echelon of seniority. The applicant's evidence, which does not appear to have been challenged, was that when he arrived in Australia he occupied the position of Acting Country Manger, before reverting to his appointed position as Business Development Manager. The responsibilities of that position were considerable and the applicant possessed a high level skills and experience. Although the applicant certainly possessed skills which would make him attractive to alternative employers, there is no doubt that his immediate capacity to obtain employment in Australia was restricted by a number of factors. To the knowledge of the respondent, the applicant was required to obtain sponsorship from any future employer until his visa situation was resolved. He had also arrived in a new country only a matter of months before. These are further factors which should have weighed upon the decision of the respondent as to the notice to be given upon his termination. Severance Pay (Issue 6) 37 The second element which was said to evidence the unfairness of the contract or arrangement concerned the failure to provide for a reasonable severance payment on termination. Mr Gotting submitted that the failure to do so caused the contract to be unfair to the applicant. He indicated that an appropriate basis upon which the Court could determine a fair period of severance payment would be in accordance with the formula set down in Re Redundancy Awards (1994) 53 IR 419. Mr Gotting pointed out that the formula propounded in that case has been applied in proceedings under s106 or its predecessors: see Gala v State Bank of New South Wales (1998) 84 IR 216 at 226. In calculating an appropriate severance payment, Mr Gotting again contended that it was appropriate to have regard to the applicant's entire period of service with the Comtext group. 38 Mr Moses submitted that there was no entitlement to a severance payment of any nature. He once more submitted that because the application was made only against the respondent, not the United Kingdom company, any entitlement to a severance payment could be assessed only in light of the service in Australia. As such, the applicant had been employed for a period of less than six months. Established principles set down in Re Redundancy Awards and Gala v State Bank would not support any payment in addition to the two months' salary which has already been paid to the applicant. Mr Moses also noted that there were no allegations made in this case of bad conduct on the part of the respondent, of any misrepresentation being made or any attack on the bona fides of the redundancy. 39 There have been many cases in which the Court has seen fit to include a payment in the nature of a redundancy within the scope of the payment which is just in the circumstances of a case pursuant to s106(5) of the Act. In Gala v State Bank , for instance, the Full Bench concluded (at 226 - 227) that it was reasonable for the appellant to be awarded an amount referable to the lack of notice in that case, as well as to the failure of the respondent to extend to the appellant benefits which would normally be expected upon a termination on account of redundancy. Other cases in which it has been deemed appropriate to order for a payment in the nature of a redundancy or severance pay include ICI Operations Pty Ltd (T/as Dulux Australia) v Hutton (1993) 47 IR 288 at 309, Baker v National Distribution Services Limited (1993) 50 IR 254 at 278 - 279, Day v Lumley Life Limited (1997) 90 IR 70 at 94 - 95, Starkey v Healthcare Corporation Pty Limited (unreported, Maidment J, IRC 97/6613, 24 August 1999), Caine v LEP International Pty Limited (unreported, Glynn J, IRC 98/2441, 27 October 1999) and Martin v National Textiles Limited (unreported, Schmidt J, IRC 98/5100, 21 February 2000). 40 Although the function of a notice period, or a payment made in lieu of notice, and a severance or redundancy payment overlap to some extent, the purposes of such payments are conceptually distinct. In Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 331, Von Doussa J explained: There is a distinction between the nature and purpose of a period of notice or payment in lieu, and a severance payment. The distinction is reflected in Arts 11 and 12 of the Termination of Employment Convention. While the two are often treated together to arrive at a global redundancy package, the separate nature and purpose of the two entitlements remains, and assume importance in this case. A period of notice is to give an employee the opportunity to adjust to the change in circumstances which is to occur and to seek other employment: Matthews v Coles Myer Ltd (1993) 47 IR 229. The period may be worked out, as s 170DB allows, and it often is, as it is recognised that the employee's prospects of obtaining other employment may be better if the search is undertaken while the employee remains in employment: see for example Sinclair v Anthony Smith & Associates Pty Ltd (IRC of A, v on Doussa J, 1 December 1995, unreported) at 8. A severance payment, however, is intended to provide a payment as compensation for the loss of non-transferable credits and entitlements that have been built up through length of service such as sick leave and long service leave, and for inconvenience and hardship imposed by the termination of employment through no fault of the employee: Termination, Change and Redundancy case (1984) 8 IR 34 at 62, 73. The inconvenience and hardship includes the disruption to an employee's routine and social contacts and the competitive disability to long term employees arising from opportunities forgone in the continuous service of the employer: Food Preservers Union of Australia v Wattie Pict Ltd (1975) 172 CAR 227. Such a payment is taxed on the favourable terms which apply to an eligible termination payment. It is quite inconsistent with the nature and purpose of the payment, and the taxation regime, that the severance entitlement should be worked out as if the number of weeks used to calculate the entitlement were weeks of notice. 41 The distinct rationales for a payment in lieu of notice and a severance or redundancy payment have been accepted on a number of occasions in proceedings arising under s106 or its predecessors. In ICI Operations Pty Ltd v Hutton , for example, the Full Bench stated (at 296): In the context of modern sociological situations dismissals are frequently effected in circumstances of redundancy parallel to those of this case, not only with notice of termination or payment in lieu in accordance with the contract of employment and/or any applicable award but payments are also made to take account of the element of redundancy; and not infrequently the period of notice or payment in lieu is also increased over and above that provided in the relevant contracts and/or awards. In other words there has evolved a new concept or sociological event known as redundancy and which would in the usual industrial context attract redundancy payments. Such payments are now commonplace; they may be negotiated an/or may appear in awards or collateral agreements or arrangements. Indeed recent industrial legislation has made mandatory the insertion, on application, into awards of what are described as "Employment protection provisions". For example the 1940 Act was amended in 1987 so to provide, and the 1991 Act also contains similar provisions. 42 In Newton v Goodman Fielder Mill Ltd , Hill J recognised the possibility of overlapping payments, but observed (at 238): There are, in my opinion, significant differences in the nature and purpose of provisions governing notice of termination of employment and provisions dealing with the appropriate severance payments to be made on retrenchment for redundancy reasons more particularly in the case of the restructuring of a business - despite that there may be some overlapping of the factors relevant to take into account in each case. See generally Sinclair v Anthony Smith & Associates Pty Ltd (unreported, Industrial Relations Court of Australia, von Doussa J dated 1 December 1995, Matter No. SI 126 of 1995). See also Lavings v Barclay Mowlem Construction (NSW) Ltd (unreported, Industrial Court of New South Wales, Hill J, 15 September 1994, Matter No, 1233 of 1993); Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 331; Matthews v Coles Myer Limited (1993) 47 IR 229 ; Termination Change and Redundancy Case (1984) 8 IR 34 at 62, 73; Food Preservers Union of Australia v Wattie Pict Limited (1975) 172 CAR 227; cf Marks J in Caulfield v Broken Hill City Council (1995) 60 IR 221 . Furthermore, in addition to the considerations referred to in these cases and others the general rule, except in cases of summary dismissal for cause and/or any contractual provision to the contrary, is that an employee is entitled as of right to fair and reasonable notice of termination irrespective of the reasons therefor. Termination of employment on the ground of redundancy consequent upon restructuring for reasons of economy and efficiency, has long attracted special consideration, and generally speaking, separate and additional benefits. 43 I accept that in the context of a termination on grounds of redundancy, particularly where the employee has been employed for an extended period of time, it is appropriate to consider the need for a severance or redundancy payment. The failure of a contract to so provide, (or to ensure that a reasonable payment is made in it's operation), is a matter which may lead to the conclusion that the contract is unfair in its terms or its operation. In this case, the failure to ensure that a reasonable payment was made upon redundancy supports the conclusions already reached that the contract or arrangement was unfair to the applicant. In assessing the fairness of the arrangement, I again conclude that it is appropriate to have regard to the applicant's entire period of service with the Comtext group, not merely the service whilst in Australia. 44 The need for a redundancy or severance payment is also a matter which may be considered by the Court when assessing any order to be made under s106(5). It is important to remember, however, that the discretion conferred by s106(5) is extremely broad. The Court may make such order as to the payment of money as it considers "just in the circumstances of the case". As was said by the Full Bench in Barclays Australia Investment Services Limited v Nordby (unreported, Bauer, Glynn and Hill JJ, CT 93/1205, 5 October 1995, at 33), "the task of assessing a 'just' monetary amount is one which, not infrequently, involves the exercise of a broad judgment without the assistance of defined and identifiable parameters or heads of loss or damage." The circumstances to be considered may include the fact that an employee has been made redundant and the loss of entitlements, inconvenience and hardship which are commonly consequent upon redundancy. 45 Whether, in a particular case, it is appropriate to order a separate payment in the nature of severance or redundancy pay or one payment in light of both notice and the circumstance of redundancy is a matter for the discretion of the Court. It may in some cases be convenient to assess separate sums having regard to a reasonable period of notice and reasonable redundancy payment. Recent cases in which such an approach has been adopted include Starkey v Healthcare Corporation Pty Ltd and Caine v LEP International Pty Limited . In other cases, the Court has made one order for the payment of money to take account of the inadequacy of the notice given, the failure to provide for adequate redundancy benefits and other aspects of the employment which resulted in unfairness to the employee. Gala v State Bank , the case primarily relied upon by the applicant, is one such example. In that case, having noted the various formulae which have been employed to calculate redundancy entitlements, the Full Bench determined (at 226 - 227) that the payment of a single sum equivalent to nine months' salary was an appropriate amount referrable to the lack of notice and the failure to provide redundancy benefits. Similarly, in Day v Lumley Life Ltd , Hungerford J (at 94 - 95) assessed a single sum of seven months' salary for both notice and redundancy having regard to the degree of unfairness and circumstances of the dismissal in that case. Commission (Issue 7) 46 Should the Commission conclude that the payment of one months pay, plus an additional month "ex gratia" payment, was inadequate, the parties were also in dispute concerning the method of calculation of any additional entitlement. As has been mentioned, the applicant's salary package provided for $80,000 base salary plus $30,000 target commission and car allowance. The commission was ordinarily payable upon the achievement of pre-determined sale targets. The targets were apparently met for January and February of 1998, but the results for the remainder of the period up to June 1998 fell well short. Mr Moses submitted that any additional entitlement should be calculated only on the applicant's base salary and car allowance. Mr Gotting , on the other hand, submitted that any calculation should be based on the base salary, car allowance and commission entitlements. 47 In his evidence, the applicant agreed that generally the commissions were performance based. However, he stated that as a result of difficulties encountered with the operation in Australia he had received assurances that the commission would be paid for 1998 regardless of whether the targets were met. This statement was supported by evidence that at least for March and April 1998 the commission was paid even though the sales targets were not met. However, when taken to the e-mail from Klaus Irner and Graham Hanson in London in which he believed those assurances were contained the applicant was forced to admit that no such assurances were there made. The e-mail indicated that as a result of market and economic conditions as well as delivery problems the targets were proving difficult to achieve. As a result, it was envisaged that the targets may be reviewed. The e-mail dated 26 March 1998 and addressed to the Regional Managers and Country Managers stated in part: We are very much aware of the concerns of the majority of you that market and economic conditions are making your 1998 budgets look very difficult to achieve. In addition we accept that there are some product/service delays, such as IN roll out, which were assumed in the budgets and thus impact potential achievement. As always our prime concern to ensure that we have a motivated and adequately rewarded salesforce, who are committed to driving forward our business growth. In this respect chasing an unachievable target will not serve either your own or the company's best interests. We are intent therefore on taking the unusual step of redefining sales targets, to seek to ensure they are seen as reasonable, whilst challenging, for each of you. At this stage we are addressing this note to Country Managers and not below (other than UK Sales as there is no Country Manager), in that the individual targets of any salespeople within a country will be left at the discretion of the Chief Industrial Magistrate's within the context of their own revised target. As always it is important though that Klaus concurs with any revisions. 48 Later the e-mail continued: If the above represents, as we are sure it will, some welcome news, it is important to make a few caveats; - reviewing targets does not necessarily mean that we will reduce targets in each and every case; but we will be fair. - we will still have to have a close relationship between revenue and cost. If your revenue (and hence contribution) is reduced then clearly your costs should also be reduced by an amount to sustain the gross contribution. We recognise that this may not always be feasible, nor in our best overall interests, but it should be our starting point. 49 Although the e-mail envisaged a revision of the sales targets, it clearly stated that the commissions will remain payable only on the achievement of the targets which were subsequently set. There was no indication that the commission would be paid as a matter of course. Mr Gotting conceded as much. The applicant conceded that he was mistaken about the source of the assurances he claimed to have received. He stated that the change of policy must have been reflected in another document or a verbal assurance. He was not, however, able to identify the source of any written confirmation or to identify a person with whom a verbal understanding was reached in relation to the commission payments. 50 Having observed the evidence given by the applicant and re-reading the transcript of his evidence, I am not able to accept the reliability of his evidence in relation to the question of his entitlement to commission payments. His evidence was at times confused and was repeatedly contradicted by other evidence. I am not satisfied that any arrangement was reached whereby the applicant would be paid the commission notwithstanding the sales outcomes. The e-mail to which I have referred indicated that the commission would remain payable on achievement of specified targets. The sales outcomes in the period leading up to the termination were substantially below the existing targets. Although it was envisaged that a review of the targets may take place, I believe that a fair outcome would be for the payment to the applicant to be calculated without the inclusion of commission. 51 I do not consider that, in the circumstances of this case, the exclusion of the commission from payments received by the applicant upon redundancy was unfair. It has not been demonstrated that the refinement of targets would have necessarily benefited the applicant at his performance level or that the refinements, in fact, would have been applicable in his case. 52 It may have been possible for the applicant to challenge the fairness of the commission arrangement itself or the method of calculation of the commission: see, for example, Nordby v Barclays Australia Investment Services Ltd . However, Mr Gotting expressly disavowed any submission of this nature. 53 In these circumstances, I have formed the view that the additional payment to be ordered in light of the inadequate notice and severance pay should be calculated on the basis of the applicant's base salary and car allowance only. That is, a base salary of $80,000 plus car allowance of $1,000 per month. Mitigation of Loss (Issue 8) 54 The final issue identified by the parties concerned the question of mitigation of loss. Mr Moses submitted that the applicant was under an obligation to mitigate any loss arising from the redundancy. In particular, Mr Moses suggested that the applicant had a duty to return to the position he previously occupied prior to arriving in Australia. That is, the applicant should have taken up the offer by the United Kingdom company to repatriate him to the United Kingdom and make him redundant there. In not doing so, the applicant was said to have failed to mitigate his loss. This was a matter which should, it was submitted, be taken into account in determining whether it is appropriate to order the payment of a sum of money under s106(5) and the amount of any such payment as would be just in the circumstances. 55 In addition to the availability of a position in the United Kingdom, an issue arose during the hearing concerning sums of money which were deposited in the applicant's bank account in the period following his termination. For example, a deposit of $2,500 was made on 28 August 1998, of $2,000 on 9 September 1998, of $3,500 on 17 September 1998 and of $4,500 on 30 November 1998. Further deposits were made after this date. When asked about the source of these payments, the applicant answered that he had "no recollection", was "not certain" or "did not know". In re-examination, the applicant suggested that some of the deposits may have related to funds obtained from the casino. He maintained his statement that he did not receive any income from working in the period from 2 June 1998 to 26 June 1999, that he did not act as a consultant and did not receive any social security benefits. 56 It was submitted on behalf of the applicant that the Court should not apply the principle of mitigation in this case. The Court was said to have a discretion as to whether to apply the principle of mitigation to the assessment of compensation under s106(5). Mr Gotting pointed to a number of cases in which the Court had refused to deduct monies actually earned after termination of employment from compensation that would otherwise be ordered to remedy unfairness flowing from an inadequate period of notice of termination. Mr Gotting submitted that, in any event, the applicant had taken reasonable steps to mitigate his loss. He submitted that it was reasonable for the applicant not to relocate to the United Kingdom given the expenses involved, the inadequate notice of termination and his recent experience in the Asia Pacific region. Mr Gotting also stated that the applicant made reasonable efforts to obtain alternative employment. This was not challenged in submissions. 57 The principle of mitigation will not apply strictly in all cases under s106. In Harcourt Brace & Company (Australia) Pty Ltd v Cory (1998) 81 IR 321, for instance, the Full Bench emphasised (at 338) that in the circumstances of that case the application of the common law principle of mitigation could be inappropriate and overly strict. The Full Bench did, however, indicate that it may have been appropriate to apply the principle if the employee had acted unreasonably: see also Pavior-Smith & Anor v The National Mutual Life Association of Australasia Ltd (1999) 91 IR 8 at 61 - 62. In this case, I do not think that the applicant acted unreasonably in his attempts to obtain alternative employment. It was not, in my view, unreasonable for the applicant to remain in Australia rather than return to the United Kingdom. He was then residing in Australia with his wife who is an Australian national and had recently entered a lease on a rental property here. He had skills and experience in the Asia Pacific region. The applicant sought employment through a range of sources and I am satisfied that his attempts to obtain employment were reasonable. No submission was made on behalf of the respondent that there were additional steps that the applicant should have taken. 58 In relation to the sums of money which were deposited in the applicant's bank account in the period following his termination, I have difficulty accepting the applicant's evidence on this aspect. It was improbable that the applicant would be unable to recall the source of any of the considerable deposits which were made at this time. His eventual explanation that many of the deposits were comprised of gambling winnings was unconvincing. However, even if these sums were the result of alternative employment or business ventures I do not believe it is appropriate to reduce any payment which would otherwise be ordered under s106(5). There can be no doubt that the applicant suffered financially as a result of being made redundant. The financial detriment incurred would have been only partially ameliorated by the sums deposited into his bank account. 59 Moreover, the orders sought by the applicant were not, strictly speaking in consideration of economic loss. The applicant sought orders for payment in lieu of notice and severance pay. There is some force in what was said by Glynn J in Michel v Ogilvy & Mather Pty Limited (1996) 71 IR 417 at 432: In my view, the concept of mitigation in relation to moneys earned after termination is not relevant in respect of this matter. What is being sought by the application is to re-write a contract to include a term ab initio that would, if actually in the contract at the time of termination, have required the payment, at that time, to the applicant of $X in lieu of a specified period of notice. Mitigation would not have been relevant then. I do not see it as relevant now. 60 As a result, I do not think it appropriate to reduce any payment to be ordered in light of the principle of mitigation or the sums which were paid into the applicant's bank account in the period following his termination. Interest 61 I consider that it would be just in the circumstances of this case to make an order for the payment of interest; which interest should flow from the date of the application (see Abboud v The State of New South Wales (Department of School Education) No.2 [2000] NSWIRComm 110). Conclusion and Orders 62 I consider that the contract was unfair for the purposes of s106 as it did not provide either in the contract or by its operation for adequate notice of termination (or payment in lieu thereof) and severance payments. It should be varied to provide for notice of termination and severance payment of six months' remuneration. I consider that compensation for notice and severance should be assessed jointly excluding from the calculation of such amounts any commission payments. 63 I have considered, in reaching this conclusion, the adverse findings made by the Court in relation to the applicant's evidence as to commission payments and the depositing of monies in a bank account (the latter matter relating to the question of mitigation). Whilst these findings of fact do bear upon the assessment of particular issues arising in these proceedings (for example, the question of commission payments) they do not, in my view, deprive the applicant of remedies which are otherwise appropriate having regard to the provisions of s106 of the Act: see Wheeler v Philip Morris Limited (1989) 32 IR 323 at 340 - 341. Nor do such findings (which are limited to certain parts of the applicant's evidence) necessarily preclude the acceptance of other components of the applicant's evidence: Bankstown City Council v Paris (unreported, Wright J President, Peterson J and Bishop C, Matter No. IRC262 of 1999, 23 August 1999 at 16 - 17); Mills v Industrial Fish Tasmania Pty Ltd (Receivers and Managers Appointed) (1993) 49 IR 416 at 429 - 430. 64 In my view, the remainder of the applicant's evidence (apart from the evidence associated with the adverse findings) and the other evidence before the Court (which evidence is largely uncontested) warrants the conclusion, for the reasons earlier given in this judgment, that the contract was, by its terms and its operation, unfair for the purpose of s106 of the Act. 65 The Court makes the following orders: 1. The contract between the applicant and the respondent is varied so as to provide for notice of termination or payment in lieu thereof and severance payment of six months' remuneration. 2. The respondent is to pay the applicant an amount calculated by reference to: a) the remuneration which would have been paid to the applicant in base salary and car allowance under the contract for a period of six months less monies paid to the applicant on termination; and b) interest on that amount calculated in accordance with the Supreme Court scale from the date of filing the application until the date of judgment. 3. Costs are reserved. 66 The Court further orders: 4. The applicant file and serve short minutes of order reflecting this judgment (and the amount payable thereunder) on or before 4.00 pm, Tuesday, 5 September 2000. 5. Any application for costs shall be filed and served on or before 4.00 pm, Tuesday, 5 September 2000. 6. The matter will be listed to make final orders, make any consent orders as to costs or give directions in relation to any contest as to costs at 10.00 am, Wednesday, 6 September 2000. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.