Carmelo San Gil v Alcatel Australia Limited [2002] NSWIRComm 186

Industrial Relations Commission of New South Wales in Court Session

CITATION : Carmelo San Gil v Alcatel Australia Limited [2002] NSWIRComm 186 APPLICANT: PARTIES : Carmelo San Gil RESPONDENT: Alcatel Australia Limited FILE NUMBER: IRC2635 of 2000 CORAM: Kavanagh J CATCHWORDS : Section 106 - claim of unfair contract of employment - representations made that applicant's earnings from targeted sales would attract commission payments - representations as to areas of responsibility for sales varied by respondent from commencement of the contract of employment - only partial commission payment made - notice provision also varied then reinstated - unfairness found. Claim brought for "loss of opportunity" as basis of Application for Order of Court for restitution - value of claim "just in the circumstances" based on claim for options which would have been granted during prior employment had applicant not resigned. Application for loss of opportunity claim rejected - contract found unfair - contract varied and orders given for payment on termination of further notice and payment for commission owed and which would have been earned during extended notice period. Such order held "just in the circumstances" LEGISLATION CITED : Industrial Relations Act 1996 Port Macquarie Golf Club Limited v Stead & Anor (1995-1996) 64 IR 53 CASES CITED : Westfield Holdings v Adams [2001] NSWIRComm 293 Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 David Jones Limited v Cukeric (1997) 78 IR 430 HEARING DATES: 05/16/2002; 05/17/2002; 05/23/2002 DATE OF JUDGMENT: 08/06/2002