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 Applicant: Mr M. Kimber SC with Mr P. Ginters of counsel Solicitors: Mr M.J. Sullivan Harmers Workplace Lawyers LEGAL REPRESENTATIVES: Respondent: Mr M.K. Scott of counsel Solicitors: Mr F.Farmakidis Pryor Tzannes & Wallis JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Tues 6 August 2002 Matter No. IRC2635 of 2000 CARMELO SAN GIL v ALCATEL AUSTRALIA LIMITED Application under s106 of the Industrial Relations Act 1996 JUDGMENT [2002] NSWIRComm 186 1 This application is brought under the provisions of s106 of the Industrial Relations Act 1996 (the Act). Mr Carmelo San Gil (the applicant) alleges the contract of employment which he entered into with Alcatel Australia Limited (the respondent) in its terms and/or, in its performance, was unfair, harsh or unconscionable. The applicant claims: 1. Appropriate payment for salary and notice just in the circumstances. 2. A payment of any moneys owed to the applicant during the period of his employment with the respondent. 3. Interest on both payments and/or a payment the applicant would have earned had he not accepted the representations of the respondent, and (i) salary for the period of time he was in employment with the respondent but measured by the earnings he would have earned in his prior employment but for the representations. (ii) and amount necessary to remedy a loss suffered by the applicant as a result of his relinquishing the stock options he had in Madge Networking in reliance on the representations of the respondent. (iii) such other sums as the Commission sees fit and (iv) costs. 2 Mr M. Kimber SC with Mr P. Ginters of counsel appeared for the applicant. Mr M. Scott of counsel appeared for the respondent. 3 The applicant relied upon two affidavits with attached relevant documentation. He also gave oral evidence and was cross examined. Further he relied, in support of his claim, on an affidavit of Mr David Lees, Director, Madge Oceania Pty Limited. Mr Lees was not required for cross examination. 4 The respondent relied upon affidavits of Mr Maxwell John Berghouse, Secretary and General Counsel, Alcatel's Asian Pacific operation, Mr Ross Fowler, Chief Executive Officer, Alcatel Australia and Mr Ian Poole, Managing Director, Alcatel E-Business Distribution Pty Limited. 5 Mr Paul Mentzalis, a partner of an accounting firm, BDO, provided an expert's report. He was required for cross examination. His report dealt with the applicant's claim for the value of stock options which could have issued to the applicant had he stayed in his prior employment with Madge Networks Australia Pty Limited (Madge Networks). The report and much of the evidence contained therein as to calculations relating to the value of shares at various times was partially accepted by the applicant. Further significant documentation was tendered by both parties related to alternate values as to the claim for share options. Facts 6 As to factual matters there was little dispute between the parties. For four years prior to December 1998 the applicant had been employed by Madge Networks, an information technology organisation, holding various positions which included Director of Sales, Asia. The applicant perceived himself as a "Salesman" within the telecommunications/computer area. 7 While he worked for Madge Networks, the applicant was earning, as at December 1998, $270,000 per annum (approximately). The applicant over the period of his employment was, at various times, granted a package of options to purchase shares in the company. These options generally vested to the applicant on a monthly basis over the period of his employment. 8 I accept the evidence which revealed during the applicant's employment with Madge Network, if the options were "in the money" when they were granted to him, he on-sold and took his profit. On occasions evidence revealed he also bought and sold the company's shares in the marketplace. The applicant was, from the evidence, an active participant in stock market activities contributing to a number of advisory sheets to assist in his decision making and trading activities. 9 The applicant was approached by a "head hunting" organisation. He was looking to advance in his chosen area of employment and he wanted a position which demanded less overseas travel. In or about September 1998, the applicant, through Mitchell Sutton-Gallagher, a recruitment organisation, was invited to an interview at Alcatel Australia Limited. On 15 October 1998 the applicant met with Mr Andrew Young, the General Manager, Business Systems Division, Alcatel and with Mr Tim Harricks, Alcatel's Human Resources Operations Manager. He asserts Mr Young said the following words to him: We have invested significant money in promoting the Alcatel mobile phone range and we want to grow our market share significantly in Australia. 10 Originally the applicant was not tempted by the position outlined in the interview as it did not seem to provide, for him, any advancement of career opportunity. He was however re-contacted and met with Mr Ron Spithill, Managing Director of Alcatel. Following this second meeting, Mr Young again contacted the applicant and organised a third meeting. At that meeting, he gave to the applicant a document identifying the job as "Senior Channel Executive, Channel Structure". It identified the position included responsibility for the sale of: Mobiles, Cordless/Key Systems for small office areas, a Key System for medium sized enterprises, and a Key System for a bigger system (the type used for call centres). 11 On 10 November 1998 further discussion took place between the applicant and Mr Young. At that meeting the title of the position changed to "Business Development Manager for Mobiles, SME, Customers and Channels". A document outlining where this position fell into the Australia/New Zealand, Alcatel organisation was given to the application for his consideration. The document revealed the applicant would be one of five senior Managers reporting to Mr Young as General Manger/Business Systems. Reporting to the applicant would be four persons each having an independent responsibility, one for Mobiles, one for Systems, one for Customers and one for Channels. Those persons each held a title: Sales Manager, Alliances; Sales Manager, Mobiles; Distribution Manager and Dealer Manager. Twelve persons in all reported to these Managers. 12 The applicant considered this offer during a period of time he was working overseas. On his return he contacted Mr Young to further discuss the offer. At the next meeting Mr Young offered him the position of "National Manager, Channels", a third variation on the position title, with the following remuneration package: Salary $160,000 Incentive bonus $20,000 Sales Commission $90,000 Total: $270,000 This offer was in writing and dated 16 November 1998. Attached to the Letter of Offer was a Commission Plan in the following terms: OUTLINE OF COMMISSION PLAN 1999 1. MOBILES (GSM) - SALES PAYMENT TARGET = $A 44 million OTE = $A 40,000 p.a. $40,000 SALES NOTE: This equates to 1999 budget 2. KEY SYSTEMS - SALES 2.1 TARGET = $A 26 million OTE = $A 20,000p.a. $20,000 NOTE: The 1999 budget is $20 million for this item 2.2 TARGET = MARGIN 1% $A 4,000 2% $ 8,000 3% $ 12,000 4% $ 16,000 5% OTE = $20,000. $20,000 NOTE: This is in excess of budget for 1999 3. CORDLESS TARGET = SALES $A 8 million OTE = $10,000 $10,000 NOTE: The budget for 1999 is $5 million for this item Total $90,000 . OVERTARGET Items 1,2.1,2.2,3 are calculated on a linear basis. . RESULTS Calculated monthly, based on YTD figures from Alcatel Australia Financial results. . PAYMENT Due on receipt of customer payment to Alcatel. . UNDER TARGET Whilst commission payments commence with monthly results on a linear basis, no commission is payable on components 1, 2.1, 3 if YTD results are <50% of Budget. 13 Commission payments would therefore be calculated relying upon mobile sales, key system sales and cordless sales. The plan set target margins for sales. The commission plan also identified the areas which would attract commission payments. Relevantly, the target for sales of mobile telephones was $44 million which would return to the applicant a commission of $40,000. This represented 44 per cent of the applicant's potential commission payments of a promised $90,000 for the year 1999. 14 Some discussion in relation to this Letter of Offer took place and a revised Letter of Offer dated 1 December 1998 was issued. It again changed the title of the applicant's proposed position to "National Manager, Consumer and Business Systems". It adopted the same Bonus and Sales Commission offer which was not varied except there was agreement the applicant would be guaranteed a commission payment for his first three months of employment: . GUARANTEE Commission will be guaranteed at O.T.E. level for February, March and April 1999. . A more detailed plan will be issued to you for the 1999 year. 15 The applicant accepted employment with Alcatel on the basis of the Letter of Offer of 1 December 1998. The applicant opined the role appeared to be a significant one with a higher earning potential than he had had at Madge Networks. Further, the position would allow him to spend more time in Australia as the position was Australian based. 16 The applicant commenced his employment on 11 January 1999. An e-mail the applicant sent to the respondent during the negotiation period is relevant in a consideration of some aspects of the applicant's claim. The e-mail dated 27 November 1998 and addressed to Alcatel employees, Messrs Harricks, Young and Mr Andrew Keayes (a recruitment consultant with Mitchell Sutton-Gallagher) indicated the applicant wanted his appointment kept confidential until the end of December 1998. Relevantly, the e-mail stated: . . . 5. I need to be an employee of Madge until the end of January. A significant value of options, shares and bonus are conditional on this. 6. My first day as an "employee" of Alcatel will be Monday February 1. 7. I will be available to work on behalf of Alcatel from Monday January 18. 8. Employment during the period January 18 to January 29 will be by way of consulting contract . . . (The applicant actually began work for Alcatel on contract from 11 January 1999.) 17 The evidence reveals from the day the applicant began work there was internal dispute as to his responsibilities. Evidence suggests Mr Young had not communicated either up or down the line of authority as to his determination of Mr San Gil's responsibilities. 18 The Alcatel line of responsibility works on a matrix structure. The head office for Alcatel is in France. As a result of the company structure and in its practical workings, employees are often required to report to two people. Management in the matrix system is organised around a number of distinct operational units. The operational units are not regionally independent and are connected to similar occupational units based either in Asia, Europe or the United States. So an employee could have a manager in Australia and another based in France or another country. 19 Mr Chilcott, who was identified in the applicant's Business Chart as the "Sales Manager, Mobiles" objected to reporting to the applicant and refused to so do. Mr Chilcott's view of the management chain under which he worked required he report first to the "Asian Manager, Mobiles" and then through to the French Manager. He rejected any requirement to report to an Australian Manager. 20 As early as 28 February 1999 these difficulties were discussed in France between the applicant and Mr Bruno Fabre, Vice-President, the Pacific and Consumer Division (the PCD). It was confirmed Mr Chilcott would continue to report to the PCD Director for Asia and then to France. By 26 March 1999 all responsibilities related to the mobile network had been removed from the applicant's area of responsibility. 21 The applicant expressed his concerns. He was even more concerned after the decision was made to remove him from all responsibility for every area of the mobile network. 22 A meeting was held with the applicant and Mr Young on 23 April 1999. Mr Young gave the applicant a Performance Review Document (it seems for his information) and attached to it was a revised "Commission Plan". It removed the targets and commission associated with the mobile telephone sales and added targets and commission for "Channel Development". The target for sales in Channel Development was broken up per an attachment and the commission was a mirror of that for Mobile Telephones, namely, $40,000. OUTLINE OF COMMISSION PLAN 1999 1. CHANNEL DEVELOPMENT (Ref. Att) PAYMENT $40,000 2. KEY SYSTEMS ANN 4400- SALES 2.1 TARGET = $A 20 million TE = $A 20,000 p.a. $20,000 NOTE: The 1999 budget is $20 million for this item 2.2 TARGET=MARGIN 1% $A 4,000 (Operator Profit) 2% $ 8,000 3% $ 12,000 4% $ 16,000 5% OTE = $20,000. $20,000 NOTE: This is in excess of budget for 1999-05-17 3. CORDLESS TARGET = SALES $A 8 million OTE = $10,000 $10,000 NOTE: The budget for 1999 is $5 million for this item $90,000 . OVERTARGET Items 1,2.1,2.2,3 are calculated on a linear basis. . RESULTS Calculated monthly, based on YTD figures from Alcatel Australia Financial results. . PAYMENT Due on receipt of customer payment to Alcatel. . A more detailed plan will be issued to you for the 1999 year. 23 The details as to Channel Development were attached as was the Commission Payment Plan as follows: Attachment 1.1 Development channels for Alcatel Australia across all actual and potential channels in Australia . For PCD Professional and ECG by direct activity . For PCD Consumer, in conjunction with the PCD Consumer Group CRITERIA Q2 Q3 Q4 Channel Expansion Strategy >1 Product in Channels - 20 Partners >70% of SMEpartners Bundling 1 order Ongoing Ongoing Business with Business with 3 partners 15 partners 1.2 Develop Capability for 4400 Into Channels Q2 Q3 Q4 Compact as First Phase Strategy 5 key partners 10 key partners established established M2andM3 as Second Strategy 5 Strategic 5 Strategic State Sales Sales 1.3 Alcatel/Xylan Channel Q2 Q3 Q4 Develop Alcatel's Introduce Alcatel to all Vars and subjective Relationship With Vars Relationship management As their preferred Channel Partners Voice and Data - 2 Sales 2 Sales Systems Sales With Xylan Vars Reference Customers 1.4 Strategy Advice re NZ Channels Q2 Q3 Q4 Subjective PAYMENT SCHEDULE 1.1 35% of 40,000 = 14,000 TOTAL Q1 Q2 Q3 Q4 Channel Expansion 4667 1167 1167 1167 1166 Product in Channels 4667 1167 1167 1167 1166 Bundling 4666 1167 1167 1167 1166 14000 3501 3501 3501 3498 1.2 35% of 40,000 = 14,000 TOTAL Q1 Q2 Q3 Q4 COMPACT 7000 1750 1750 1750 1750 M2 M3 7000 1750 1750 1750 1750 14000 3500 3500 3500 3500 1.3 20% of 40,000 = 8000 TOTAL 1 Q2 Q3 Q4 Relationship 4000 1000 1000 1000 1000 Sales 4000 1000 1000 1000 1000 8000 2000 2000 2000 2000 1.4 10% of 40,000 = 4000 TOTAL Q1 Q2 Q3 Q4 NZ Channels 4000 1000 1000 1000 1000 24 The plan had removed from the contract of employment the targets and commissions associated with the mobile telephone business. Added was a new target. It replaced the commission for mobile sales. The new target area attracting commission was to be "Channel Development". This was the further variation to the applicant's employment contract. The attainable Sales Commission for Channel Development was still acknowledged to be $40,000. 25 The Channel Development Plan took into account work by the applicant with Xylan. Sometime in March 1999, Alcatel acquired an IT company called Xylan Limited. The incorporation of this company into the operations of Alcatel became another difficulty for the applicant. This Xylan operation was referred to in the applicant's late April 1999 outline of commission and targets and infers the responsibility for the incorporation of Xylan into Alcatel would be the applicant's. Later, on 10 August 1999, another organisational chart was distributed to staff. The chart indicated the applicant had a dual responsibility at Alcatel – "Manager, Medium Small Business and Channels Manager". This chart endorsed the applicant's responsibility for the absorption of the Xylan operation into Alcatel. The applicant was led, over many months, to believe this was Alcatel's intention. However, within two days of the August 1999 chart being issued the Xylan Division recruited an independent "Channels Manager". Mr San Gil had been misled into believing he would be responsible for the integration into Alcatel of the Xylan operation. 26 The applicant also raised concern as to the "termination of employment" clause of his contract which stated: A minimum of a calendar month's notice is required to be given by either party in the event of termination. This term of the contract was altered after it was identified as one of the applicant's concerns in a long email which the applicant sent to Mr Young. The email addressed 16 perceived employment problems by Mr San Gil and raised the following: In view of all the above, I have requested that the existing clause in my letter of offer relating to 'one months notice' be deleted or replaced by something providing 'reasonable notice'. You have agreed to discuss this with the HR Dept. 27 The Human Resources Department through the Human Resources Director, Mr Rick McAndrew, on 17 May 1999 wrote the following to the applicant: This confirms Alcatel's agreement to your request that your period of notice be increased from one month to three months. This change is effective from today until 31 December 1999 and applies to both parties. From 1 January 2000, one-month's notice period is reinstalled. This was a further variation to the applicant's contract of employment. The term of the variation was not discussed with the applicant nor agreed upon by the applicant though he did nothing further on this issue once he received Mr McAndrew's correspondence. 28 Around November 1999, Mr Ross Fowler replaced Mr Young as General Manager of the Division to which the applicant reported. The applicant admitted: Over the period between September 1999 and March 2000, Alcatel, principally through Mr Fowler, raised issues of a performance nature with me. It was my principal contention in relation to these performance issues that delays in product launches and lack of support from the organisation rendered it impossible for budgets and targets within my areas of responsibility to be met . . . Further memoranda travelled between the applicant and management expressing ongoing concerns as to areas of responsibility and opportunities. 29 A Performance Review of Mr San Gil was conducted on 3 December 1999. This review was conducted for the overseas operation by Mr Georges Laplanche, Vice President, Indirect Sales ESD. He was, in the matrix system, part of the oversea's operation. It contained the following comment: 1. Carmelo's targets and objectives(?) have been changed three times since February 1999. 2. PCD logistic issues in 1999 have slowed down Business development in Australia independently of Carmelo's efforts. 3. Office range and 4440 compact launches delayed by central organisation with clear impact on local Business development. 30 Mr Ross Fowler, Chief Executive Officer, Alcatel Australia and Mr Ian Poole, Managing Director, Alcatel E-Business Distribution Pty Limited then initiated a further, Australia based, Performance Review between 20-22 December 1999. By 20 March 2000, the applicant wrote to Mr Rob Watson, the HR Director, as the applicant had been given no copy or report back on the Australian Performance Review. Further the applicant was still owed and had not received outstanding payments for Bonus for 1999. While the applicant had been paid $48,734.00 of his expected $90,000 commission for 1999, he also queried when he was to receive the balance of his promised commission payment. 31 On 27 March 2000 the applicant met with Mr Poole. Present with Mr Poole was Mr Rob Watson, the Human Resources Director. Mr Poole handed to the applicant a letter. The contents of the letter read as follows: Monday 27 March 2000 Dear Carmelo I wish to inform you that as a result of reviewing the Business in ESD I have restructured the small to medium business/channels. As a result, your position of Manager Medium-Small Business/Channels is to be made redundant. Effective immediately, you will be on special leave and requested to remain at home. Over the next couple of days, I will try and re-deploy you within the Alcatel group in Australia. If we are unable to re-deploy you then you will be retrenched. We anticipate this process to be finalised by 31st March 2000. Please find attached, indicative final pay out figures ... Carmelo, please be assured this decision has not been taken lightly. Yours sincerely (Signed) Ian Poole, General Manager ECG. The applicant was thereby terminated. The applicant was later told the inquiries referred to in the letter had revealed there were no other suitable positions within the company available to him. 32 The applicant was paid the following on termination: ESTIMATE O REDUNDANCY PAY CALCUALTION Name: SAN GIL, Carmelo Staff No.125005 Service Period DD MM YEAR Salary p.a. 150868.00 Terminated 31 3 2000 Original Salary p/m12572.33 Start Date: 1 7 1999 Allowance p/m 0 SAC % 20.00% DOB: 20 7 1955 HECS(y/n): n Age: 44.73 $ 3 Months Additional Pay 0.00 Pro-Rata Bonus 0 6,666.67 Pro-Rata Commission 0 30,000.00 Salary in lieu (months) 4 50,289.33 Tax free part 0 Taxable part 50289.33 Redundancy Pay Weeks 7 20,309.15 Tax free part 7287.00 Taxable part 13022.15 Unused annual leave (days) 13.78 7,997.68 Long service leave (weeks) 0.00 LSL taken (weeks) 0.00 Leave loading 0.00 Sub-total 115,262.83 Less Rollover to Asgard, Lum Sum C 25,594.48 Less Rollover to Inspired Solutions, Lum Sum C 37,717.00 Total gross 51,951.35 Less Tax -8,385.94 Net pay 43,565.41 Submissions: As to Unfairness 33 The applicant submits the facts before the Commission in Court Session support a finding the contract entered into between Alcatel and the applicant was unfair in its terms and in its conduct, such as would warrant a declaration of unfairness. The applicant submits the contract was unfair on its face and in its operation such as to warrant a declaration of unfairness and an order that the contract be set aside. The representations of the respondent as to the applicant's duties, it is argued, were not met by the respondent and such is sufficient to establish a finding of unfairness. It is the applicant's submission, in changing the job description and removing from him his responsibilities, the Mobile Telephone Division and later the Systems Business, the promised representation of $90,000 as commission payment based on targets set for sales in those two areas was not achievable. The representations therefore as to income generated from the performance of the contract were also unfair. Further the applicant submits the contract contained an expressed notice of termination provision of a "minimum of one month's notice." This, submits the applicant, is a manifest unfairness as a term of the contract in the circumstances of the applicant's termination. 34 The respondent as to the unfairness submits regard must be had to all of the circumstances relevant to the relationship between the parties prior to the applicant commencing employment with the respondent on 11 January 1999. The respondent submits the applicant worked as a contractor during the period 11 January to 1 February 1999 and in that period of time became aware of the difficulties related to his proposed responsibility for the mobile telephone distribution business. The applicant, the respondent submits, by 1 February 1999 "was in possession of relevant facts so as to allow for a considered decision to be made with regard to his employment with the respondent." The respondent develops this proposition to submit the potential existed for the applicant, if he was dissatisfied with the employment position that Alcatel had created for him, to withdraw his resignation and return to work with Madge Networks Australia Pty Limited. 35 While the respondent admits significant management changes did occur during the year 1999, at all times, the respondent argues, organisational charts indicate, incorporated into those changes, was a role, at a senior level, for the applicant. As the applicant's position was always given consideration the respondent submits there could be no finding of unfairness in the employment contract. Consideration: As to unfairness 36 As to the claim for a finding of unfairness in the contract and/or in the performance of the contract, the court is guided by the principles enunciated in Port Macquarie Golf Club Limited v Stead & Anor (1995-1996) 64 IR 53 as recently endorsed in Westfield Holdings v Adams [2001] NSWIRComm 293 (Full Bench, Wright J, President; Walton J, Vice President; Boland J, published 21 December 2001). The Full Court of the Industrial Court of New South Wales in Port Macquarie Golf Club Limited v Stead examined s275 of the Industrial Relations Act 1991 which is a similar provision to s106 of the Industrial Relations Act 1996 and held (at 59): (6) Unfairness may arise either from the terms of the contract or arrangement itself, the surrounding circumstances and/or from the manner of performance or operation of the contract or arrangement: Barry v Incitec Limited (1991) 45 IR 143 at 146; Incitec Limited v Industrial Court of New South Wales (1992) 45 IR 155 at 157-158; and Baker v National Distribution Services Ltd (1993) 50 IR 254 at 270-271. In applying the test for unfairness this Commission sitting in Court Session must take (at 59-60): (7) . . . the commonsense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement, bearing in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement: Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 at 374: A & M Thompson Pty Ltd v. Total Australia Limited [1980] 2 NSWLR 1 at 13; and Baker at 271-272. 37 I am persuaded the applicant had a successful career in the information and technology industry. Working his way up through that industry by the age of 44 years the applicant had achieved the position of Asian Pacific Sales Director, Madge Networks. The applicant spent approximately two years in a number of his prior employments before working for Madge Networks. I do not accept this work pattern should be held against the applicant but rather find it indicates, within an industry, he was working his way up the "chain of command". 38 Prior to accepting the position with the respondent, the applicant was employed on a package earning $275,245 per year plus share options at Madge Networks. I accept the applicant had a good reputation within the industry. Independent evidence given by Mr Lees, uncontested, persuades me, within the Madge Networks organisation, the applicant was a key individual. While the evidence also reveals Madge Networks was, as were most other Tel Co organisations, affected by significant downturns in the late 1990s and early 2000, nonetheless, I find the applicant was secure in his employment with them. However, I accept, for reasons the applicant himself provided, he was searching for further opportunity and was amenable to a change in his work situation when approached by Alcatel. 39 I am satisfied the applicant, in addressing the effect of his decision to change employment, took into account all the financial effects of his decision to leave Madge Networks. On 27 November 1998 per an e-mail to Messrs Harricks, Young of Alcatel and Mr Keayes, of Mitchell Sutton-Gallagher, the applicant set out some 12 conditions which he thought had to be negotiated before he accepted the position: 1. As per the offer letter and conditions of employment, I need to undergo a medical examination. Tim harricks is arranging this at the mascot Medical Centre, . Prefered time is Tuesday, December 1 at about 4 pm. 2. I will resign formally as soon as possible after the "clear" report on the medical. 3. My preference is that the move will be kept confidential at Madge until the end of December. 4. I understand that the move will not be announced at Alcatel until shortly before I commence work. This is in view of some sensitive internal HR issues. 5. I need to be an employee of Madge until the end of January. A significant value of options, shares and bonus are conditional on this. 6. My first day as an "employee" of Alcatel will be Monday, February 1. 7. I will be available to work on behalf of Alcatel from Monday January 18. 8. Employment during the period, January 18 to January 19 will be by way of consulting contract with Inspired Solutions Pty. Ltd. ACN 003586490. 9. For this period, the daily contract rate will be equivalent to the proposed OTE of $270,000 divided by the number of working days in 1999. 10. Alcatel has agreed to a bonus and commission "guarantee" for the first 3 months of employment i.e. February to April inclusive. During this period the monthly salary will be equivalent to $270,000 divided by 12. 11. I propose to join the Alcatel/STC Superannuation Fund as a Full member. 12. On a regular basis, I will be making additional pre tax contributions to the Inspired Solutiuons Superannuation Fund. This is a compliant fund and makes annual reports to both the ATO and the ISC. (emphasis added) 40 Within that memorandum, it is revealed, the applicant took into account the effect of his resignation on the value of options, shares and bonuses that he held or might hold in Madge Networks. The applicant elected to stay in the employ of Madge Networks until the end of January 1999 to gain the significant value of options, shares and bonus to which he was entitled. He ensured he gained not only the advantage related to the options and shares when he set his starting date at 1 February 1999 but he also earned his bonus payment from Madge Networks. 41 I find the applicant was searching for opportunity and he accepted employment at Alcatel on representations made to him through Mr Young. I accept the applicant as a witness of truth. Further, most of the relevant representations relied upon by the applicant are supported by the documentation before the court. As to those representations, I accept the applicant was offered a position with responsibility for distinct management areas which included, at first, the mobile telephones sales. I accept this responsibility was early in the employment removed from him and later he was promised the Channel Division business. 42 The representations as to earnings are an area of dispute between the parties. The documents reveal the promised commission for targeted sales in the Mobile Telephone Division was expected to be $40,000. This is agreed. The mobile telephone sales area of responsibility was almost immediately removed from the applicant's responsibilities. This is also agreed. The respondent submits, while it kept changing his areas of responsibility, the applicant's earning capacity was not affected. 43 I find the removal of mobile telephone sales significantly affected the applicant's ability to earn commission. The expected $40,000 commission was accepted by the parties as reasonable for the targets set for mobile telephone sales. It represented 44 per cent of the representations given to the applicant. 44 In addition, the evidence revealed by April 1999, targeted sales of the applicant for the Key Systems Business was reduced from $26 million to $20 million and by late 1999, a further $8 million in targeted sales was removed from the applicant's area of responsibility. This was as a result of the sale of the respondent's Cordless Telephone Business. The changes made are not disputed. 45 Further, when sales of mobile telephones were taken from the applicant and responsibility for Channel Development replaced it for commission earnings, this representation was also not delivered in reality. Alcatel's Business chart acknowledged the absorption of Xylan's operations into the applicant's responsibilities. This chart, however, was never implemented. The second commission plan also acknowledged his involvement in the Xylan absorption into Alcatel. I find while the respondent made representation it did not effectively replace the opportunity for the applicant to earn the commission lost when it took from him the mobile telephone sales. When it did not fully implement the promised responsibility for Channel Development then the applicant was left in no position to earn promised achievable commission payments. 46 Evidence revealed Mr Fowler, Chief Executive Officer, Alcatel Australia and Mr San Gil differed significantly as to how the Xylan operation should be absorbed into Alcatel. Mr Fowler however, acknowledged the applicant had made "good progress in growing our Channel Business in an environment where significant changes have occurred". 47 Notwithstanding the many plans by the company to give the applicant the management of the "Channel Business" and to incorporate the responsibilities of Xylan into his area of responsibility, this did not occur. I am satisfied these intentions were representations made by the company to the applicant which representations in the conduct of the contract were not given effect. The effect of these misrepresentations I am satisfied was a dissatisfaction by the applicant with his role in the company and a significant concern by him as to his ability to earn up to $90,000 in commission payments. The evidence revealed in the year 1999 the applicant was paid only $48,000 of the expected commission of $90,000 and much of this payment reflects the respondent's guarantee the applicant be paid three month's commission in advance. 48 Each time there was such an organisational change the applicant expressed his concern clearly to his managerial superiors namely: It was impossible for budgets and targets within my area of responsibility to be met. 49 Notwithstanding the treatment of the applicant during 1999, Performance Reviews in evidence before me and conducted by both the Australian and the French arm of the defendant company indicated the applicant had over achieved in most areas and under achieved in only one. While Mr Fowler and the applicant had a professional disagreement as to how to handle the Xylan absorption there was no evidence the applicant was terminated for poor performance. Mr Ian Poole indicated that, as at 2 February 2000, there had been no consideration to making the applicant redundant. This was a date after the Australian Performance Review was conducted. 50 A variation to the employment contract was made by the respondent inserting a three month notice provision for the applicant up to 31 December 1999 on 17 May 1999. Then the variation allowed the three month notice term to revert back to a minimum one month's notice period effective from 1 January 2000. As to the term of the contract related to notice, given the circumstances in which the applicant worked, taking into account the circumstances where the notice provision was changed from three months back to a minimum of one month, taking into account there was an acknowledgment by the respondent that the original one month's notice was not fair in the circumstances where the applicant's employment terms and conditions were being altered, and taking into account all of the circumstances leading to the applicant's termination, I find the reinsertion of the provision of a minimum one month's notice unfair. 51 The circumstances in which the applicant was terminated also give rise to an alleged unfairness. I accept that Mr Poole and the HR Department made efforts to find the applicant suitable employment within the respondent's operation. I accept that out sourcing services were offered and used by the applicant. However, with no warning on 27 March 2000 the applicant was given "special leave" and requested to stay at home. He was advised by 31 March 2000 job searches had been completed but had been unsuccessful. 52 I find the conduct of the contract of employment between the applicant and the respondent where his terms and conditions of employment were randomly varied both as to job responsibilities, notice and the promise of earnings reveals a manifest unfairness in the performance of this contract. Submissions as to orders just in the circumstances 53 On termination the applicant received four months notice based on his basic salary rate. He was paid four months in the context that his contract, at that time, required a minimum of one month's notice (as it had reverted back to the variation which allowed three month's notice). 54 The applicant makes a number of alternative submissions as to what the Commission in Court Session could find as payment "just in the circumstances" given the finding as to unfairness. In one alternative, the applicant seeks an order from the Court for the payment of the applicant's salary in lieu of notice based on his 12 months anticipated salary package for the year 2000 at Alcatel. The applicant claims 12 months notice in accordance with his anticipated salary package for 2000 at Alcatel. 55 In the alternative without "double dipping" as to base salary paid for work with Alcatel, the applicant seeks compensation for: . . . the real damage done to this career path/prospects as a consequence of the respondent's unconscionable conduct and compensation for the significant loss of opportunity to earn reliable income and benefit from valuable share options with Madge in the years 1999 to 2001 . . . The applicant submits the substantial tangible benefits which he would have in all likelihood received from Madge Networks but for the respondent's misrepresentation, induced him to give up secure and valuable employment with Madge Networks, reflected especially in his lost stock options. The applicant therefore submits he is entitled to compensation for lost opportunity. Reliance is based on the High Court judgment in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. The applicant submits the Commission in Court Session should have regard to principles applying in the common law and in comparable statutory contexts including the Trade Practices Act context (being the context in which Sellars was decided). The applicant submits this submission has been confirmed by the findings of the Full Bench in Westfield Holdings v Adams . 56 The applicant submits an order for compensation therefore should be based upon his lost opportunity which the applicant identifies as the value of the share options which, but for the respondent's representations, he would have been granted had he continued his employment with Madge Networks over the period of time he was employed by the respondent. The applicant acknowledges the court would not order a payment as to salary earnings as this would involve the concept of twice earning salary. The payment of the value of shares which would have been granted to him by Madge Networks, the applicant submits, would put him back in the position he had been in but for the terms and/or operation of the unfair employment contract with Alcatel. 57 For the applicant to succeed in his submission as to any orders covering possible share allocation, it is accepted the Commission in Court Session would find the applicant would have remained, but for his resignation, in the employ of the Madge Networks organisation from January 1999 to March 2000. The Commission in Court Session would also have to find the applicant would have been granted options in the company and exercised his options and on-sold his shares during the five month period they were "in the money", that is, between November 1999 and April 2000. Further, the Commission in Court Session would find the applicant would have exercised his options at about the mid peak of the share price rise on or about 28 January 2000 at $13.28 per share, the price being fixed at a time almost a year to the date of his resignation taking effect at Madge Networks. The court would then order the respondent to pay to the applicant monetary value of the shares lost based on the chosen date. 58 As to this submission, the respondent submits the discretion vested in the Commission in Court Session by s106(5) is a broad one and should not be read down by application of principles of either common law, contract, tort or the provisions of the Trade Practices Act, 1974. The respondent submits there is no authority of the Commission in Court Session where the phrase as to compensation "just in the circumstances" warrants a reading to include quantified loss of opportunity or chance. The respondent relies on the view of Dean J in Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 (at 117-118): The hypothetical position in which a plaintiff would have been if a breach or repudiation of a contract had not occurred is not, of course, the hypothetical situation which would have existed if there had been no contract at all. To the contrary, in a case where it does not appear that the contract would not have been performed in any event, it is customary to treat that position as corresponding to that which would have existed if the contract had been fully performed (see Robinson v. Harman ( 1848) 1 Ex 850, at p 855 (154 ER 363, at p 365)). That being so, the breach or repudiation of a contract by a defendant does not ordinarily entitle the plaintiff directly to recover wasted expenditure incurred by him in procuring or performing it. In that sense, the assessment of damages for repudiation or breach of contract is not directed to the restitutio in integrum for which equity strives in, for example, a case where a contract is rescinded for fraud. There are, however, circumstances in which the doctrine of restitution or unjust enrichment overlays the ordinary general rule as to the assessment of damages and gives rise to a direct right of action to recover from the other party money paid under the contract to that other party for a consideration which has failed completely. Even in a case where the consideration has not failed completely, it would seem that that doctrine will found a direct action for the excess of money paid by the innocent party to the other party over the value of any consideration actually received if the circumstances are such that it would be unconscionable conduct on the part of the guilty party to retain the excess. It is unnecessary to pursue that question in the present case since it has not been suggested that the repudiating party (i.e. the Commonwealth) derived or retained any substantial benefit for itself at the expense of the other party (i.e. Amann Aviation Pty. Ltd). It is, however, desirable to keep in mind the importance of the doctrine of restitution or unjust enrichment as the rational basis of significant parts of the common law in determining the content of particular rules in some of the persistently grey areas of the law of damages. 59 The respondent submits if there is an onus to find a causal nexus between an action of the respondent and the loss of a commercial opportunity by the applicant, the evidence is not sufficient to so find. The respondent submits the applicant took a conscious decision to accept the job offer with the respondent. The respondent submits there is no causal link between the actions of the respondent in employing the applicant and the applicant's inability to profitably trade in options from Madge Networks which he may/could have been granted and which he may/could have traded between the period December 1999 and April 2000. 60 The respondent submits the Commission in Court Session should not be persuaded the applicant would have remained in employment with Madge Networks for the alleged period of time. The respondent relies upon an analysis of the applicant's past employment where the applicant averaged in each job approximately two years. Given the evidence there was a cutting back at Madge Networks the respondent submits the Commission in Court Session would not concede the applicant would have enjoyed secure employment at Madge Networks. The respondent submits the applicant had shown in the middle of 1998 a willingness to discuss alternative job opportunities with a head hunter organisation. The applicant had stated a desire to reduce his travels to Asia and the Pacific. The applicant had expressed a view to the company being British and rigid. 61 Evidence would further satisfy the Commission in Court Session in the middle of 1997 the Madge Networks group of companies had reduced its staffing by 22 per cent world wide. The shares in Madge Networks had been low and trending downwards from about August 1997 and at the time of the applicant's employment with the respondent, Madge Networks Australia had reduced its staffing during 1999 from 30 to 15. Even if the applicant had stayed in that employment, the company would then have been a very small company in recession mode. This, it is submitted by the respondent, must have affected the applicant's earnings with regard to sales. Orders 62 Having found an unfairness in both the terms of and performance of this employment contract the court must apply its discretion to determine whether to void or vary the contract and give orders just in the circumstances. As was held in Port Macquarie Golf Club Limited v Stead (at 60) and endorsed by the Full Bench in Westfield Holdings v Adams: (8) If a contract or arrangement be found to relevantly offend one or more of the grounds, such as it being unfair, contained in s275(1) then the next question involves the exercise of a discretion, to be performed judicially, as to whether the contract or arrangement should be avoided or varied: Hodges [1985 ] 11 IR 60 at 62-63; Autobake Pty Ltd v Budd [1986] 19 I.R. 18 at 20; and Baker v National Distribution Services Ltd (1993) 50 IR 254 at 267. (9) If it be decided to avoid or vary the contract or arrangement under s.275(1) then a further discretion arises as to whether an order should be made under s.275(3) for the payment of money in connection with the contract or arrangement declared void or varied: Hodges v Streets Ice Cream Pty Ltd (1985) 11 IR 60 at 63; Autobake at 20; and Baker at 267. . . . 63 The claim for the Commission in Court Session to consider "opportunity lost" is based on the reasoning of Mason CJ, Dawson, Toohey and Gaudron JJ in Sellars v Adelaide Petroleum N.L [1992-1994] 179 CLR 332 (at 355) where the High Court held: . . . whether the deprivation occurred by reason of breach of contract, tort or contravention of s52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind. On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable. 64 Mr Kimber submitted for the applicant: The year 1998 the share bounces around but is in decline as at the later part of 1998. Then the question . . . in terms of the share options issued and the loss of opportunity to benefit really involves a consideration of that year 1999, the likelihood the applicant would have stayed . . . with Madge during 1999 and . . . would have been around to benefit from the spike which occurred just before the year 2000 and going on through to April 2000. . . . The next question is had he been there would he have exercised his options when they came into the money? Again the evidence is clear as to his practice. It is open . . . to conclude firstly he would have been there in all likelihood; and secondly, he would have exercised his share options to his advantage in the manner he suggested for the reasons he advanced in which case he would have made a substantial profit. 65 A similar claim for compensation for "opportunity lost" was considered in Westfield Holdings v Adams by the Full Bench of the Industrial Relations Commission sitting in Court Session which stated [at 103]: The . . . principle proposed by the appellant was that "in determining loss, and what would amount to appropriate restitution, the Court would have regard to the principles for the assessment of compensation at common law, and under the similar (sic) Trade Practices Act . And continued [at 129-130]: . . . However, we reiterate that the power to make money orders under s 106(5) is not limited by analogy or otherwise with either the power to award compensation for loss or damage under ss 82 and 87 of the Trade Practices Act or with common law principles relating to the assessment of damages. Consequently, we do not accept the appellant's contention that in determining what might be appropriate compensation under s 106(5) in circumstances where unfairness may have been caused by misrepresentation, it is necessary to have regard to the test applied by McHugh, Hayne and Callinan JJ in Marks or any other decision under ss 82 and 87 of the Trade Practices Act . We have, of course, acknowledged earlier in this judgment that whilst orders made pursuant to s 106(5) should not be limited by drawing some analogy with the law of contract, tort or equitable remedies, it is proper to have regard to common law and equity principles but recognising that, in particular cases, some of the principles will be inappropriate. This means that, for example, where a contract or arrangement has been found to be unfair, and the unfairness has been caused by fraudulent misrepresentation or negligent misstatement, in making any money orders under s 106(5) it is proper for the trial judge, in appropriate cases, to have regard to the common law principles relating to the assessment of damages. It may also be helpful to have regard to approaches taken to the assessment of damages in decisions under ss 82 and 87 of the Trade Practices Act , especially where the common law principles may have been a consideration. However, given the different statutory requirements of ss 82 and 87 of the Trade Practices Act as opposed to s 106(5) of the Industrial Relations Act , particular caution needs to be exercised. Ultimately, the relevant guiding principle for the Commission in Court Session under s 106(5) is not confined to a question of what loss or damage an aggrieved party has suffered but rather a wider test, namely, what is just in the circumstances of the case. That is not to say that the discretion of a trial judge under s 106(5) is at large. The jurisprudence developed by the extensive case law on the subject enables, and requires, limits on what orders may or should be made . . . 66 The claim for lost opportunity before me requires orders which would reflect a payment based not on earnings lost on termination from Alcatel, the respondent corporation, but on the possible earnings of the applicant at a prior employer, Madge Networks inclusive of calculations based on the possible allocation of stock options which the applicant would have been granted had he continued in that prior employment. Further, the reasoning of the applicant requires the Commission in Court Session to make a finding the applicant would have stayed in the employ of the respondent for a period longer than 12 months in circumstances where the applicant resigned. The grant of the options within that 12 months would then require an order that the value of those options be quantified during a particularly narrow time encompassing the period which, the evidence revealed, was when the shares came "into the money". There would then be an order the applicant be paid by the respondent employer the value of those shares in the market place. 67 I reject the submission for such orders based on a lost opportunity claim. I have made findings which would in effect reject the applicant's submission that, but for the offer of employment with the respondent, the applicant would have stayed at Madge Networks and thereafter have received all of the benefits of his employment with them for a period of 15 months or at least up until January 2000. The evidence revealed the applicant had already sought the help of an employment placement service to see what other employment opportunities there were for him. He had reasons other than the representations made by the respondent company, to leave his employment. I have found the applicant made a considered and informed decision when he left Madge Networks. I do not believe justice in this case requires the applicant to be put back into the position he would have been in had he not made a reasoned decision to take up the employment with the respondent. I am satisfied on the circumstances before me that the applicant, in taking employment with the respondent company, clearly took into his calculations the financial effect of his decision. 68 I am satisfied on the totality of the evidence the applicant made a calculated and informed decision, for his own reasons, to leave Madge Networks and to join Alcatel. I am further satisfied he took into account the effect this decision had on his opportunity for the grant of options, shares and bonus with Madge Networks. I am satisfied the applicant arranged his departure date keeping in mind his rights at Madge Networks and setting the timing of his resignation to his own advantage to ensure when he left the employ of Madge Networks he gained a maximum financial benefit. I am not satisfied the representations made to him by the respondent as to earnings, which representations were not sustained, reflect the sole reason for his leaving Madge Networks. 69 In all the circumstances, I find it would not be just in the circumstances to make orders based on a claim for loss of opportunity calculated on the basis the applicant would have stayed in the employ of Madge Networks, gained options which he would then have taken up; which shares the court would order should be valued at a time they "came into the money" over one year after resignation and which would reflect in an order for payment by the respondent to the applicant of the value of those shares. 70 As to what is the appropriate order just in the circumstance, the court considers the evidence the applicant was paid four month's notice on termination at his base salary rate. The respondent submits the payment of four months salary in lieu of notice having regard to the applicant's age, seniority, salary level, supervision level and length of service was a generous payment and not so low as to be unfair. Further, the respondent points out the payment was three months more than that referred to under the contract which had reverted to a one month notice provision. The fairness of a four month notice provision, it is submitted, is particularly so when regard is had to the additional seven weeks redundancy payment as accepted as fair by the applicant. The respondent submits the seven week's redundancy pay, additional to the four months' salary as to notice equalled 23 weeks pay which was fair in circumstances where the applicant had only been employed in total for 15 months. 71 The applicant does not dispute the fairness of the payment of the seven weeks redundancy payment which he received on termination. As was said by the Full Bench in Westfield Holdings v Adams [at 161]: (6) . . . the differing purposes of a payment in lieu of notice and a payment for redundancy or severance are important matters to be taken into account when considering the application of the principle of mitigation to a sum which may otherwise be ordered under s 106(5) of the Act. . . . 72 I accept, as do the parties to the litigation, the redundancy payment paid to the applicant was fair. The payment of four month's notice based only on the applicant's base salary I find was not just fair in the circumstances. 73 Evidence revealed that since being terminated, the applicant had three months unemployment and then obtained a position as consultant with Sabre Pacific Pty Limited for three months whereupon he became a permanent employee of Sabre Pacific Pty Limited in October 2000 in the position of Sales Director. His salary package at that place was $198,200 so he suffered a financial loss but he had mitigated his loss after being made redundant by the respondent. He then left his permanent position with Sabre Pacific and works as a consultant sometimes with Sabre Pacific Pty Limited on $7,000 a month, but also with other companies such as Info-in Com Pty Limited. The applicant appears to be earning approximately half what he earned within the employ of Alcatel, and sometimes less than a third. I find the applicant has suffered on going financial loss after termination but has mitigated by his own endeavours that loss. I do not believe the applicant's earnings should be used as a mathematical basis for determining payments just in the circumstances. 74 In order to determine what order should be made in connection with the contract to vary it and what payment would be just in the circumstances, it is necessary to consider what would have been the applicant's salary package had he continued in the defendant's employ through the year 2000. As to what would have been the applicant's base salary at Alcatel for the year 2000, the only evidence placed before the Commission in Court Session was that of Mr Fowler who revealed he determined not to raise the basic salary rate of the applicant from $160,000 because sales targets had not been met in 1999. 75 However, the respondent on the applicant's termination also accepted a "pro rata bonus payment" was appropriate, and a "pro rata commission" payment was also paid to the applicant. The respondent submits the "pro rata commission" the applicant received was in fact an "ex gratia" benefit on commission of $7,500. A similar calculation the respondent submits could be made with regard to the "pro rata bonus" paid to the applicant where the applicant received an "ex gratia" bonus payment of $1666. The respondent submits on a "pro rata" basis to the end of March the applicant was overpaid and the amounts identified as "pro rata" should be perceived as including "ex gratia" payments. The respondent further submits the amounts paid on termination of the contract for the year 2000 would not have reflected in continuing commission and bonus payments for the year 2000. 76 I accept the calculations in the termination documentation reflect a "pro rata" view by the company of a right to commission payments which would have accrued to the applicant had he stayed in their employ throughout the year 2000. All the changes made indicated, as the respondent itself submitted, it tried to keep the applicant in a senior position. A senior position would have attracted commission payments. This information assists the Commission in Court Session in assessing what would have been the salary package of the applicant in the year 2000 if he had not been terminated. Accepting the pro rata bonus for three months was $6,666.67, the bonus for the year 2000 would have been $26,666. The pro rata commission paid for three months was $30,000 and the expected commission payment if targets had been met would have been $120,000 for the year 2000. I accept the basic salary of the applicant, from the evidence, would have remained at $160,000. 77 I have considered the submission put by the respondent that contained in these pro rata payments was an ex gratia payment but I reject this argument. It does not seem to me to have any foundation from the evidence. The respondent further submits there was no suggestion from the Letter of Offer that the level of income from commission was guaranteed except for the first three months of the applicant's employment. Rather, the respondent submits the evidence revealed that by early July 1999 the applicant was paid an advance on his expected commission which advance was an attempt by the company to address the company changes. Such an advance payment met the respondent's obligation to pay the applicant commission in 1999 it is submitted. 78 The applicant was paid $48,734.00 of his expected $90,000 commission payment during the 15 months of his employment. His last email addressed a query to the company as to when the balance of commission owed was to be paid to him. 79 I find the evidence was not that the applicant in his performance of the contract was unsatisfactory. Rather the evidence was as to his "loss of opportunity" to earn in accordance with the representations. I find it just in the circumstances the applicant be paid the difference owed to him of the commission of $90,000 and that paid of $48,734. This finding takes the earnings of the applicant for the year 1999 up to the earnings he relied upon on the representation he received in the Letter of Offer of employment. 80 As to the fair payment to the applicant in the circumstance as to notice on termination, in David Jones Limited v Cukeric (1997) 78 IR 430 (at 462) the Commission in Court Session considered compensation just in the circumstances be based on the applicant's salary package: The monetary order we propose will reflect all elements of Mr Cukeric's package on termination, including salary, all non-salary components of the package such as motor vehicle and other benefits, superannuation contributions, statutory entitlements While it may not always be perceived that bonus and commission payments be part of a salary package but rather discrete payments I believe it just in the circumstances that they be paid as part of the notice package in this case. When the salary was negotiated with the applicant, they were identified separately in the respondent's document, but then the salary was added to bonus and commission payments to reveal a total salary package. The respondent then calculated and gave to the applicant "pro rata" payments for both bonus and commission at his termination. The conduct of the respondent throughout the employment revealed an attempt to design structures to enable the applicant to earn these monies. While those proposed structures were not successfully implemented, I believe on the evidence, the applicant was expected to earn bonus and commission had he stayed in the respondent's employ through the year 2000. I believe it just that the payment of commission and bonus be used for the calculations as to notice in this circumstance. 81 The applicant's salary package for the year 2000 would therefore have been $306,666. 82 I consider it just in the circumstances given the differing purpose of each payment as to redundancy and notice to order the applicant be paid seven months' notice at a salary package of $306,666.00 per annum. The respondent is to be given credit for payments made as to four months which payment was incorrectly calculated. 83 In the circumstances, the court believes the payments to the applicant to which the court gives orders accrued on his termination. The court finds interest should accrue from the date of termination on all payments. The rates for the payment of interest should be calculated on the basis of rates prescribed in Schedule "J" to the Supreme Court Act 1970 as amended (see Graham v Macquarie Bank Limited [2000] NSWIRComm 253 [at 186]). I make the following draft orders: 1. The contract to be varied to alter the clause of the contract as to notice to allow a period of seven months' notice. The salary package for this calculation to be $306,666 per annum with credits for payments made. 2. In accordance with the terms of the contract (as varied) I order the payment in full in accordance with the Letter of Offer of the commission payment as promised of $90,000 for the year 1999. The respondent to have credits for commission payments made. 3. Interest from the date of termination in accordance with the Supreme Court Act 1970. 4. Costs are awarded to the applicant as agreed or assessed. 5. The parties are to file and serve Orders reflecting this judgment within 28 days with liberty to apply. 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.