Jooste v Digicore Technology Pty Ltd and Ors [2006] NSWIRComm 228

Industrial Court of New South Wales

CITATION: Jooste v Digicore Technology Pty Ltd and Ors [2006] NSWIRComm 228

Applicant Jonathon Michael Jooste

First respondent Digicore Technology Pty Ltd (A.C.N. 079 254 676)

Second respondent Digicore Distribution Pty Ltd (A.C.N. 081 000 651)

Third respondent Digicore Australia Pty Ltd (A.C.N. 094 666 029)

PARTIES: Fourth respondent Digicore International (Pty) Ltd (Reg No 971 4228/97)

Fifth respondent Digicore Technology (Pty) Ltd (Reg No 96/07067/07)

Sixth respondent Luke Van Kempen

Seventh respondent Hans Scheffer

Eighth respondent Technofin Holdings Pty Ltd (A.C.N. 091 570 357)

FILE NUMBER(S): IRC 2948 of 2001

CORAM: Backman J

CATCHWORDS: Unfair contract - s 106 of the Industrial Relations Act 1996 - necessity to identify the work performed by the applicant in New South Wales as a preliminary step - contract of employment for work performed in New South Wales identified - letter of appointment for work to be performed in South Africa not relevant to the issues to be decided under s 106 - later agreement for performance of work made between applicant and a non-legal entity not a legally enforceable contract - unfair contract found by reason of unilateral variations made to the terms of the contract against the interests of the applicant and without consultation with him - unfair contract found by reason of relocation of applicant and family from South Africa in anticipation of gainful and long-term employment in New South Wales - unfair contract found by reason of applicant's unequal bargaining status as a result of the necessity for applicant to be sponsored by a particular employer in New South Wales for two years in order to obtain permanent residence visa - unfair contract by reason of conduct on the part of first, sixth and seventh respondents in attempting to vary the applicant's terms and conditions of employment by appointing the third respondent as his employer even though at the time the third respondent was a non-existent legal entity - unfair contract by reason of conduct on the part of the first, sixth and seventh respondents in relation to the circumstances of the applicant's termination - whether applicant's claim for unfair contract was a claim for breach of contract - held: applicant's claims within the jurisdiction of s 106 - consideration of orders sought - principle of mitigation considered and not applied - whether any respondents who were non-parties to the contract should be liable for monetary orders - principles in Brown v Rezitis considered - held: first, sixth and seventh respondents liable to pay monetary orders under s 106(5) - held: third and eighth respondents not liable to pay monetary orders - orders - costs.