De Haas v Chloer Pty Ltd, in liq. (formerly Business Catalyst International Pty Ltd) and Another [2008] NSWIRComm 227

Industrial Court of New South Wales

CITATION: De Haas v Chloer Pty Ltd, in liq. (formerly Business Catalyst International Pty Ltd) and Another [2008] NSWIRComm 227

APPLICANT: Eric De Haas

PARTIES: FIRST RESPONDENT: Chloer Pty Ltd, in liq. (formerly Business Catalyst International Pty Ltd)

SECOND RESPONDENT: Zia Qureshi

FILE NUMBER(S): IRC 5872 of 2003

CORAM: Backman J

CATCHWORDS: Unfair contracts - s 106 of the Industrial Relations Act 1996 - applicant employed as executive manager by first respondent - applicant later purchased units in the BCI Employee Participation Trust (the Scheme) to value of $25,000 - Scheme in turn purchased shares in first respondent which were held in trust for applicant - applicant's salary reduced by 30 per cent for period of three months due to impact of economic downturn on first respondent - termination of employment - whether Scheme a related condition or collateral arrangement to contract of employment - whether contract of employment was unfair - allegation of poor work performance considered - allegation of breach of duty of confidence considered - whether reasonable notice on termination - whether Scheme unfair in its terms - whether Scheme became unfair at termination - whether alleged representations made Scheme unfair - whether unfairness in salary reduction - relief - whether second respondent liable to pay monetary orders - orders

Corporations Act 2001(Cth) LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Act 1996

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Barataud v Chipperfield (No 3) [2006] NSWIRComm 249 Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648; (1999) 93 IR 1 Brown and Others v Rezitis and Others (1970) 127 CLR 157 Cadwallader v Bajco Pty Ltd & Ors [2002] NSWCA 328 CASES CITED: Custom Credit Corporation Ltd v Goldsmith [1976] AR (NSW) 98 GIO Australia Limited and Another v O'Donnell (1996) 70 IR 1 Grygiel v Baine & Ors [2005] NSWCA 218 Jones v Dunkel and Another (1959) 101 CLR 298 Silbermann v One.Tel Limited (In liquidation) and anor [2005] NSWIRComm 477 Wheatley v Armstrong [1995] NSWIRComm 235 Wirraway (NSW) Pty Ltd v Ultra Tune Australia Pty Ltd (2006) 156 IR 367